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Lord Davies of Oldham: My Lords, Clause 176 provides that after determining an appeal, magistrates' courts may make any order as to costs they think fit. Amendment No. 236, moved by the noble Lord, Lord Avebury, would fetter the courts' discretion by requiring them on making an order as to costs to have regard to their own statement of policy as to costs. As the noble Lord described, that policy must be developed in consultation with licence holders, business, residents and any others the courts think appropriate. The policy must be reviewed every three years, again following consultation.
In our view it would be quite wrong to fetter the courts' discretion to make orders as to costs on the basis of the individual merits of any case. The courts do that every day. They are already the appeal body at first instance for appeals associated with public entertainment licences. The courts should not be expected to consult the community before they make decisions. Their independence is something we all value.
Aside from those points of principlethe amendment raises a point of principleI believe that the amendment is a recipe for what would be inconsistent practice all across the country on the matter of costs. If an appeal brought before the courts is considered vexatious by the magistrates or judged to be frivolous, surely it is only right that the courts should bear that in mind when making their decisions on costs. The courts have vast experience of such matters and we have no desire to change the existing arrangements with regard to appeal hearings. We must trust our judiciary to act reasonably and judiciously as they overwhelmingly do.
The noble Lord is concerned, and the noble Lord, Lord Brooke, at a previous stage of the Bill expressed concern, that local residents may be reluctant to mount appeals with the prospect that costs may be awarded against them. I understand the sentiment behind the representations. Those with a valid case have no reason to be deterred but it is right that any potential appellant should think hard before bringing an appeal. It is not meant to be a second bite at the cherry. The decision-making body under the terms of the Bill is the licensing authority. The appellate court is needed to ensure justice, fairness and reasonableness in the decision-making and as a remedy when parties are genuinely aggrieved.
Lord Avebury: My Lords, I shall not press the amendment without consulting the noble Lord, Lord Brooke. However, I found the Minister's reply unsatisfactory in the sense that he did not deal with the argument. I pointed out that the case law in the European Court of Human Rights requires that some indication of the circumstances in which the discretion of the courts would be exercised has to be given. At present, there is not any. Whatever the noble Lord may say, I believe there is a powerful deterrent against people who wish to exercise legitimate rights in appealing against the decision of the licensing authority for any of the reasons that I have given by virtue of the fact that they may be faced with almost unlimited costs. I do not think that any residents' association will take on the responsibility of formulating an appeal knowing that those risks exist, however remote, and however justifiable the case.
The best I can do at this stage is to say that I shall discuss the matter in detail with the noble Lord, Lord Brooke, and with those who he has consulted, who are experts in the law of Strasbourg and who have advised him, as I have told your Lordships, that a provision of this kind is required. It may not be in the exact wording of the amendment, but certainly the manner in which the discretion of the courts would be exercised has to be notified to those who might exercise their rights to appeal against the decision of the licensing authority. It is unfortunate that the Minister could not have given even an indication that the Government would consider the principle of the matter if not the detail of the amendment. We shall have to take it away and come back, if necessary, after consultations at another stage of the Bill. Meanwhile, I beg leave to withdraw the amendment.
The convention requires that decisions involving civil and convention rights must be made by independent and impartial tribunals such as, in this case, a magistrates' court. If they are made by an administrative body, such as a local authority, there must be an avenue of appeal to an independent tribunal on the facts as well as on the law.
The Bill does not give objectors the right to access to a magistrates' court unless they have made relevant representations. However, an individual may have been precluded from making relevant representations for a variety of reasons. There may have been no notice advertising the application and the local authority may have made a mistake in determining the application in those circumstances. The objector may incorrectly have been considered not an interested or responsible person. The licensing authority may incorrectly have deemed the representation frivolous or vexatious or, in a review, incorrectly considered the representation to be a repetition.
Those restrictions on access to an independent tribunal may fundamentally affect the rights of such an individual, whose only course of action may be to petition the administrative court for leave to quash a decision made on that basis. The burden on a resident in doing that would be onerous in terms of substantial cost and time. The essence of his right of access to an independent tribunal would be vitiated, which would be a violation of Article 6.
The amendments would deal with that problem by allowing the individual the right to appeal to the magistrates' courts, which would have the ability to award costs to prevent or deter abuse of the right.
Baroness Blackstone: My Lords, it is only right that all parties involved in the process of licensing applications have available appropriate remedies and the freedom to challenge decisions in appropriate circumstances. Where, following the advertisement of an application so that interested parties may have the opportunity to make relevant representations and then a hearing convened to consider them, it would seem
Amendment No. 237B would remove not only that right of appeal, but also the right of responsible authoritiesexpert bodies such as the police or environmental health body for the areato appeal against decisions. In this respect, the amendment would not only be unfair but would also remove a safeguard when, for whatever reason, such bodies feel that an appeal is necessary to ensure the promotion of the licensing objectives. Quite apart from those concerns, I would not be in a position to confirm to noble Lords that acceptance of the amendment would be compatible with convention rights. I therefore hope that the noble Lord, Lord Cobbold, will withdraw it.
Amendments Nos. 238 to 240 and 242 to 245, on the other hand, would add new circumstances in which appeals could be made. They would allow a person who had made representations about any of these applications to appeal on the grounds that the application should not have been treated as compliant by the licensing authority. They would allow someone to appeal a decision when their representations about applications or the review of licences or certificates had been deemed not relevant by the licensing authority. On all these matters, they would allow a person to appeal against a decision by the licensing authority that their representations were not relevant representations, or were frivolous or vexations.
The proposals strike at an important aspect of the procedures for applications for licences. The Bill, without the amendments, will enable the consideration and determination of applications to be dealt with speedily and effectively, involving the appropriate professional experts and those residents and businesses likely to be affected by the outcome of the application.
We have often pointed out during the course of debate that the Bill needs to strike a balance between allowing the licensed industry to go about its business and protecting the rights of interested parties and responsible authorities. The Bill allows those parties and authorities to have far more say in the licensing system than before. Not only can they make representations about all applications, they can also request the review of a licence on a ground relating to the licensing objectives at any time.
It is important, however, to ensure that safeguards exist to prevent a small number of troublemakers from frustrating the intentions of the Bill. That is why licensing authorities will be able to decide whether representations about applications or reviews have come from interested parties or responsible authoritiesand if they have, in the case of the former, whether they are relevant, and not frivolous or vexatious.
The amendments have the potential to create a nightmare scenario whereby every single administrative judgment about representations that the licensing authority makes could be appealed against, thereby protracting the operation of the licensing regime. I am also curious as to why there is such a distrust of licensing authorities, which is implied in the amendments. They are capable of making sound judgments in relation to representations and to the parties who have made them. It is right that there should be an avenue of appeal against the decisions that licensing authorities take about applications relating to licences, certificates and statements. But to allow appeals against the judgments that a licensing authority needs to make to ensure that it is considering the correct evidence from the right sources when making decisions is simply unnecessary. Judicial review is the appropriate recourse for a person aggrieved by judgments of this sort.