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Lord McIntosh of Haringey: My Lords, this has been an instructive little debate. It enables me to contrast the present law, the law as it will be (in the Bill as drafted) and the effect of the amendment. As we know, the current law is that there must be hearings even when there is no dispute. Magistrates, local authorities, the police and responsible authorities generally must turn up to hearings even when there are no objections. That involves a substantial waste of time and money, which clearly increases the cost of licences. Incidentally, the fact that there must be so many hearings is confirmed by the comments of the noble Lord, Lord Avebury, on the number of matters listed by Westminster licensing justices. The huge number of applications shows how bureaucratic the current procedure is. The list to which he referred includes not just original applications for licences but also renewals, variations, extensions and many special orders. None of those would require to be on any list and none of them would require to be inspected or searched for in the way in which he suggested.
In Clause 19, we provide for the determination of applications that are made under Clause 18. Clause 18 states that applications must comply with regulations. That is not in the guidance; the noble Lord should not look for it there. The form, manner and method of advertising applications will be set out in regulations rather than in guidance. That will ensure that each application goes directly to the responsible authority,
so that it does not have to search through other people's documents in order to find them. It will therefore be able to consider representations. The method of advertising to interested parties will also appear in the regulations.The circumstances in which the amendment would be triggered are those cases in which there have been no relevant representations. In other words, the police, having been notified of the application, would be satisfied on crime and disorder grounds, the fire authority would be satisfied that no fire risk was involved, health and safety authorities would be satisfied that there were no health or safety risks and environmental health authorities would be satisfied that, for example, there was no noise nuisance. The noble Lord's example in Bath fits in with my remarks because environmental health authorities have a responsibility—residents do not have to look out for it—and will be expected to protest if there are applications that involve noise nuisance. Moreover, the planning authority would be satisfied that there was no conflict with planning policy. We have been through the position regarding residents, residents' associations and businesses and I need not do so again. All of those bodies would have an opportunity through well-advertised applications to make their views known. If the Bill remains as amended on Report and survives the Commons, the local authority itself, in terms of any of its responsibilities, would be able to make relevant representations. The amendment will be triggered only when none of those people or organisations has made an objection.
The amendment then says that the licensing authority can second-guess all the experts, professionals, local people and everyone else. Can that really be the intention? Can it be intended that we should trigger hearings of that kind? Quite apart from anything else, there is an appeal system to the magistrates' courts. Do we believe that the magistrates' courts will sustain the turning down of an application when the licensing authority objects to it, having received no relevant representations?
The Bill concerns the simplification of the procedures so that the community, public safety, the prevention of crime and disorder and the protection of children are promoted in the easiest possible way. If there is to be a hearing of the kind that the amendment suggests, who will be invited? Will the police be summoned, even though they have made no objection? What will the content of the hearing be and what will be the cost? Clearly there cannot be a cost to the licensing authority because there is full-cost recovery. Therefore, the cost will go directly to the applicants.
A procedure is in place here. There is a system of responsible authorities and interested parties which, as I hope I made clear, covers all the points that need to be, and can be, made in terms of public protection. The amendment would simply add to the bureaucracy and to the possibility of dragging out the unnecessary procedures. Above all, it would add to the cost.
Lord Avebury: My Lords, the noble Lord, Lord McIntosh, is seldom wrong, but in this case he is wrong
to say that the amendment would add to the bureaucracy and to the costs. In my introductory remarks, I said that the events which would trigger the process dealt with in the amendment are extremely rare. The noble Lord has, in his comments, simply confirmed that that is so.Because these "sieves" are in place and because initially there will be a far smaller number of applications, that will make it easier for the objectors to look through them and discover those to which they want to lodge objections. The number that would trigger a hearing would therefore be relatively small. However, it is still a fact that the objectors will have only a week in which to do so. The fact that the objectors will have only, say, 50 applications instead of 198 to look through will make the job easier for them, but that does not mean that they will never make any mistakes. The same applies to all the authorities mentioned by the noble Lord.
I agree that it is extraordinarily unlikely that the police and fire, health and safety, environmental health and planning authorities will miss something important in an application so that it reaches the licensing authority without their having raised any objections, when, if it had been drawn to their attention or if they had noticed the implications of an application, they would certainly have done so.
However, I am trying to take care of the extremely rare instances where that could happen. The noble Lord says that such cases are impossible because of all the safeguards, but I believe that that contradicts human nature. Things can go wrong in every sphere of human activity. Even in this House we can make mistakes. We can spend as much time as we like on a Bill—on this Bill, for example—but provisions will still reach the statute book that will have to be the subject of amending legislation at some point in the future. Even though 650 people in this House and 650 in another place spend perhaps 100 or 200 hours examining proposals, the occasional thing will still get through the net and on to the statute book.
Lord McIntosh of Haringey: My Lords, I am sorry to intervene. The noble Lord said twice that there is only a week in which to make objections. The timescale has not been decided but it is much more likely to be 28 days.
Lord Avebury: My Lords, again, I am extremely relieved to hear that. In the case of the large application list which I have just mentioned, the timescale was a week—from last Tuesday to this Tuesday. The hearing was today. The bundle of 198 applications extending over 98 pages, which I showed your Lordships a few minutes ago, was given to potential objectors last Tuesday and, therefore, the timescale was one week.
However, I am relieved to hear what the noble Lord says. It simply makes the eventuality for which the amendment seeks to cater even less likely. Such instances will be extremely rare, and I have never denied that. But I believe that there will come a day when such an application comes before a licensing
authority and people will say to themselves, "What a pity that the House of Lords did not take the opportunity to put these amendments into the Bill when they had the chance to do so at Third Reading". However, I can see that I shall neither convince the noble Lord, Lord McIntosh, nor get enough people to come into the Lobby with me, as I should like. With that, I beg leave to withdraw the amendment.Amendment, by leave, withdrawn.
5.15 p.m.
Lord Brooke of Sutton Mandeville moved Amendment No. 5:
- Page 33, line 7, leave out paragraph (b) and insert—
The noble Lord said: My Lords, in moving this amendment, I shall speak also to Amendment No. 7, which carries the same words with the exception of the opening one. The first amendment relates to premises licences and the second to those of clubs.
The purpose of the amendments is clear: the setting of the fee level should be via guidance only on what costs to include, and local authorities should be allowed to determine their own costs based on the guidance and not have the amount fixed separately. The current statement in Clause 55 refers to regulations that may,
The Department for Culture, Media and Sport has said on numerous occasions that it will ensure that the centrally-set application fee and annual fee will cover all associated costs, and that is of course a welcome assurance. However, it is hard to envisage how the DCMS will come up with a one-size-fits-all fee that does not involve local authorities making either a loss or a profit. I believe that that is self-evident.
The amendment would still impose statutory regulations on fee setting. It would tightly control what may be charged for under the fee and how the fee should be calculated. Within those guidelines, local authorities would be able to set their own fee in consultation with licensees, residents and businesses. The outcome would be a "win, win, win" scenario for licensees, residents and local authorities.
On Report, the noble Baroness, Lady Thornton, referred to the potential costs that Camden would have and I spoke about the potential costs in Westminster. I do not propose to go over that ground again as those two case histories were recounted and recorded at that stage of the Bill. However, as this is a central and national issue and one in which the Local Government Association has an interest, I want to make some remarks about the principle.
If councils are not properly funded by fee income and restrict non-essential activity due to cost, it will not be effective to rely upon the right of residents to call for a review of a licence where and when problems arise. If a council is already making a loss on its licensing service, there will be a commercial pressure to resist setting up review hearings, which will be a relatively expensive process for the council.
The regulatory impact assessment currently estimates the industry costs and costs to local authorities for administering the new regime levels based on CIPFA information regarding current levels of court action. It has estimated that 1.5 per cent of alcohol licences and 0.5 per cent of public entertainment licences result in court action or warnings. Those figures have been used to estimate the costs under the new regime. But these low percentages are the consequence of rigorous enforcement procedures, proactive enforcement and checking, and locally agreed conditions and requirements under the established regime, backed up by local licensing policies and current powers. They are not indicative of the likely actual ratio of legal activity and costs under the new system. If those ratios are maintained it will simply be as a result of the financial constraints preventing local authorities enforcing to a standard that they currently deliver and wish to maintain.
Incidentally, I am reminded of the first debate in the previous Parliament on the Hunting Bill when Mr Michael Foster, the Member for Worcester, who brought forward the Bill quoted a MAFF pamphlet which said that farmers were now satisfied that lambs were not in danger, which produced a cheer from his side of the House. When I spoke in that debate I added that Mr Foster had omitted the second half of the sentence in the MAFF pamphlet which said that that is a consequence of strict pest control by hunts, which transformed the original statement that he had uttered.
Reliance on the statutory minimum requirements for monitoring and enforcement may well prove to be insufficient and wholly inappropriate for all but the most responsible of licensees and operators. Councils may have little choice in order for the regime to be cost neutral.
I shall not go into the legal issues, but my impression from the regulatory impact assessment is that they believe that the saving to the industry will be around £1.7 billion over 10 years. At least £400 million of that is said to be legal fees. My understanding from lawyers who have looked at the legislation is that there is not likely to be a saving on legal fees because of the complications that the Bill produces. Clearly, a number of such legal actions will be against licensing authorities which will add to the licensing authorities' costs.
The Licensing Act 1964—at this late stage I should declare an interest in that my late noble kinsman was Home Secretary at the time that that legislation was brought in—has many weaknesses, bureaucracy and faults that the legal profession has so ably been able to
I shall not refer to initial start up costs because we tabled a probing amendment in relation to that on Report. However, I want to mention the redistribution of savings and resources, which perhaps will be a harbinger for another place as well.
The police are being given significant new responsibilities as part of the Bill, but seemingly no new ring-fenced resources. There will be significant savings to the Lord Chancellor's Department in winding up the justices' licensing committees. There seems to be no reference to the balancing figures in the regulatory impact assessment. Has any estimate been made of the value of those savings? That is really a matter for another place, so I do not seek an answer to that tonight. We can assume that local authorities are not to receive additional support, so are there plans for the Home Office to benefit in a reciprocal way from those savings in order to ensure that the police can meet their new responsibilities? I beg to move.
"(b) prescribe guidance for licensing authorities when setting the amount of the fee and what may be charged for under the fee"
"prescribe the amount of the fee".
The fact that it will be done centrally is familiar to all those in your Lordships' House who have taken part in these debates.
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