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Lord Brooke of Sutton Mandeville moved Amendment No. 26:
- Page 3, line 16, leave out paragraph (b).
The noble Lord said: My Lords, Amendment No. 26 is the opening amendment of a group, the rest of which will be moved and spoken to by other noble Lords. Amendment No. 26 is not a bad amendment with which to open this particular discussion.
In carrying out its licensing functions, a licensing authority will be required to have its own licensing statement in addition to any guidance issued by the Secretary of State. That is familiar to all Members of your Lordships' House from the Committee stage and, indeed, from the Bill. Amendment No. 26—my Amendment No. 31A, which we shall discuss shortly, is in the same category—is proposed as a means of ensuring that those two requirements complement rather than compete with each other. There is a danger
otherwise that licensing authorities and the courts will be unclear as to Parliament's intentions on which should come first in the licensing authority's considerations. The proposal is that a licensing authority should be required to have regard to the Secretary of State's guidance when formulating its licensing statement. It will be clear from the amendment that the statement of licensing policy itself should guide the determination of licensing applications.Amendments No. 26 and 31A, taken together, reflect the respective roles of central and local government under other comparable regulatory regimes, for example, in planning. Under the Town and Country Planning Act 1990, the starting point for the determination of a planning application is the local authority's development plan. In determining the contents of its development plan, the planning authority has regard to regional planning guidance and other policy guidance issued by the Secretary of State. I hope that those words are sufficient to set the scene of the local authority interest. I beg to move.
Lord Redesdale: My Lords, I wish to speak to Amendments Nos. 27 and 30. The amendments are self-explanatory. They seek to substitute regulations for guidance. We on these Benches do not like the proliferation of secondary legislation. Our major objection to the guidance is that it can be changed by the Secretary of State at a moment's notice. The noble Lord opposite shakes his head. I refer to the flexibility that we discussed at earlier stages of the Bill. We believe that noble Lords should have the opportunity to examine the guidance. Unfortunately, it arrived only recently. However, I thank the Minister for providing the guidance which has meant that, unlike at the previous stage, our deliberations today on the Government's intentions are based more on fact than on supposition.
The Government's Amendment No. 28 goes some way to meet our concerns. I shall listen to the Minister's comments although at Third Reading I may return to the need for regulations. However, Amendment No. 28 is helpful in that it permits the guidance to be scrutinised by Parliament.
Baroness Buscombe: My Lords, I wish to speak to Amendments Nos. 27 and 30 which stand also in my name and that of my noble friend Lord Luke. In Committee I spoke on this subject at some length. I do not wish to repeat myself unnecessarily. The job of your Lordships' House is to scrutinise. With so many crucial details left off the face of the Bill and included instead in the guidance, such scrutiny of what is in effect the practical working of the legislation is nigh on impossible.
I appreciate that the Government may say that there is flexibility. We accept that the Government are keen to ensure that there is a degree of flexibility—we have sympathy with that—but the advantage of the guidance is that it may be changed by the Secretary of State to meet situations as they develop under the new licensing system. Although we are grateful to the
Minister for publishing the draft guidance in good time for us to consider its contents prior to this stage of the Bill, our initial reaction remains somewhat unchanged in relation to the need for regulations.We believe that there is no justification for compromising the scrutinising duties of the House simply to make allowance for the fact that no one knows how effectively the new system will work. The situation seems to have taken a turn for the better, however. Although the Government took their time in getting a draft version of the guidance to us, I was pleased that they took our admonishments to heart and tabled Amendment No. 28. We look forward to hearing what the Minister has to say about that amendment, and we certainly welcome the obligation that the guidance and any subsequent revision of it be laid before the House and approved by resolution. That is a positive step forward and allays a good deal of concern about the nature of the guidance.
Baroness Blackstone: My Lords, on 13th February we made available a draft of the guidance, placing copies in the Library. I am grateful for the noble Baroness's welcome of the fact that we were able to do that. It is an early draft. It was produced considerably ahead of our original schedule and I make no bones about the fact that some of it will need to be changed when it is formally issued.
The guidance will evolve for several reasons. The policy will develop as we respond to concerns expressed in our debates. Our consultation on the guidance with a wide range of stakeholders, not least the local authorities, continues and will go on until it is finalised. Our discussions with other government departments and their agencies are also continuing, so some elements of the guidance will probably have to change to reflect developing policies in those departments. Particularly crucial will be the emerging findings of the Prime Minister's Strategy Unit in developing the alcohol harm reduction strategy, which will need to be reflected in the drafting of the guidance.
It may be helpful if I explain a little more about why we believe that guidance is a sensible approach to take. When reviewing licensing law prior to the publication of the White Paper, the Government became conscious of a number of problems with the current law. There was considerable inconsistency in practice and enforcement of both alcohol and public entertainment licensing law. Despite valuable initiatives such as the Justices' Clerks' Society's Good Practice Guide, the problems continued. In the case of local authorities, the inconsistencies could not always be justified by local differences. Those inconsistencies hampered planning by businesses involved in the sector and, where boundaries adjoined, could cause problems for the police, as people move across the boundaries seeking more liberal regimes.
Successive governments have had to tell each House in a number of debates on the subject that one matter or another was for licensing justices or the local authorities, and that any other change would have to await primary legislation. On one level, that
meant that successive governments could evade accountability for many of the matters that we have been debating. Primary legislation was always just a little out of reach.We therefore concluded that what was needed was a flexible mechanism, as referred to by the noble Baroness, which would promote best practice, ensure reasonably consistent application of licensing powers across the country and promote fairness, equal treatment and proportionality, but one which would be responsive to local circumstances. Guidance appeared to be the logical way forward.
Licensing authorities should be required to have regard to the guidance when exercising their powers but, equally, they should be free to depart from it where there are good reasons for doing so or local circumstances so dictate. In addition, the mechanism chosen needed to be flexible and responsive, so that advice on new issues arising could be dispatched to the authorities quickly and effectively without any delay.
I hope that it will also be accepted that, in drafting the guidance, we have listened carefully to the anxiety expressed in Committee. We have particularly considered the views of the Delegated Powers and Regulatory Reform Committee. As the House will recall, the committee stressed that a mechanism was needed to enable the House to debate the guidance before it was issued to licensing authorities. I shall therefore move Amendment No. 28 to meet the committee's concerns; I believe that it does so. Under Amendment No. 26, a draft of the initial guidance must be laid before Parliament and approved by resolution in each House. Any revisions or supplements to that guidance would come into force only when laid before Parliament. If either House disapproved the revision within a period of 40 days, a further revision would have to be laid.
As my noble friend Lord McIntosh said, that would give both Houses the opportunity to debate and disapprove the guidance and any subsequent revision of it. However, it would also preserve the flexibility to give clear and sometimes urgent advice to licensing authorities in response to developing situations.
In conclusion, I hope that the House will accept Amendment No. 28. In doing so, I hope that noble Lords will not press Amendments Nos. 27 and 30 in light of the concessions we have made.
I turn to the amendment of the noble Lord, Lord Brooke, which proposes that the licensing authority should not be required to have regard to the guidance at all. That would wholly undermine its purpose of promoting best practice and consistency. I have already outlined why I believe there is considerable merit in the guidance approach as a mechanism for spreading best practice. In discussion with a wide range of stakeholders, virtually everyone who had seen it thought it a valuable tool that they could support. While we may debate the content long and hard until it is finally issued, I hope that the noble Lord, Lord Brooke, can be persuaded that there is nothing sinister here and that guidance at least in some form is an
important and worthwhile part of the regime that the Bill proposes. I hope that he will not press his amendment.9 p.m.
Lord Brooke of Sutton Mandeville: My Lords, I am grateful to the Minister for her response. I respect the words in Amendment No. 28. I made it clear when I moved the amendment that it was intended to be balanced. I turn to what the noble Baroness laid at my door in relation to Amendment No. 26. In terms of not paying attention to the guidance, Amendment No. 31A refers to the need to have,
- "regard to any guidance issued by the Secretary of State under section 177".
Amendment, by leave, withdrawn.
Clause 177 [Guidance]:
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