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4Leave out Clause 4

Lord McIntosh of Haringey: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 4.

Moved, That the House do agree with the Commons in their Amendment No. 4.—(Lord McIntosh of Haringey.)

[Amendment No. 4A not moved.]

On Question, Motion agreed to.


5Clause 5, page 3, line 28, leave out from first "of" to "; and" in line 31 and insert "public nuisance"

Lord McIntosh of Haringey: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 5.

The licensing objectives and their promotion must be capable of being translated into conditions that have to be complied with by licensees as well as representing the overarching criteria against which the licensing authority must discharge its functions in the public interest.

Amendment No. 5 restored to the Bill the four licensing objectives that it originally contained. Those are the prevention of crime and disorder; public safety; the prevention of public nuisance; and the protection of children from harm. The House removed the prevention of public nuisance by an amendment in another place. Amendment No. 5 therefore reversed that decision and deleted the reference to public amenity, which this House had put in its place.

We believe that replacing "public nuisance" with "amenity" significantly weakened the Bill, in particular in terms of the protection that it affords local residents in relation to the carrying on of

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licensable activities. I recognise that that was clearly not the intention, but it was the effect. In our debates at that time, an impression was given that public nuisance was a narrow concept that would not cover some of the problems that might be caused to residents living near licensed premises. That was because the House was directed by contributors to the debate to the narrow definition of "nuisance" used in the Environmental Protection Act 1990. That definition is misleading in the context of the Bill .

The Bill does not define "public nuisance". It retains the wider meaning that it has under common law; not that in the 1990 Act or in any other statutory definition. "Public nuisance" therefore retains the breadth and flexibility to take in all the concerns likely to arise from the operation of any premises conducting licensable activities in terms of the impact of nuisance on people living or doing business nearby.

On the other hand, "public amenity" is a narrower term derived from planning law and refers to the aesthetic and visual qualities of an area. It would not cover the problems of noise and many aspects of anti-social behaviour that we acknowledge, to which the operation of some premises could give rise. Planning law already provides local planning authorities with the tools that they need to address public amenity concerns at any premises, not only at licensed premises. It would therefore be repetitious to include them in the Bill. It is essential that the prevention of public nuisance remains one of the key licensing objectives of the Bill.

I can assure the House that in the guidance to be issued by the Secretary of State we shall make direct reference to public amenity issues that might properly give rise to conditions attached to licences under the objective of preventing public nuisance. I remind the House that we shall have an opportunity to fully debate the statutory guidance before it is issued. I hope that that will go some way towards persuading the House not to oppose the changes made when the Bill was in another place.

Moved, That the House do agree with the Commons in their Amendment No. 5.—(Lord McIntosh of Haringey.)

    5A Baroness Buscombe rose to move, as an amendment to the Motion that the House do agree with the Commons in their Amendment No. 5, leave out "agree" and insert "disagree".

The noble Baroness said: My Lords, we now return to an amendment that enjoyed much cross-party support when we moved it in your Lordships' House. The issue goes to the heart of the Bill. It concerns the impact of a licensed premises on everyone in the vicinity of those premises.

When we debated the matter at length in your Lordships' House, we asked—and we now ask again—the Government to recognise the need for licensing authorities, when carrying out their functions under the Act, to consider both the quality of life for all those living and working in the vicinity of a licensed premises and the interests of local businesses, local enterprise and their customers' enjoyment of the premises' facilities.

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A fair balance needs to be struck. The licensing objectives set out in the Bill as originally drafted fail to address that need. Although one of the four licensing objectives was the prevention of public nuisance, it was and remains our contention that simply referring to public nuisance fails to address that need. The term "public nuisance"—here I strongly disagree with the Minister—is open to broad interpretation, which would make it incredibly difficult for licensing authorities to be sure that they were promoting the licensing objectives in a fair and proportionate way.

Noble Lords may remember that in Committee I took time to highlight the case law on the subject of public nuisance to show that the definition of "public nuisance" is open to different interpretations. What we now need is clarity for the benefit of licensing authorities when promoting the licensing objectives. Our amendment clarified the situation and was fair and in the interests of industry and local residents. I am amazed that Members in another place saw fit to overturn what made sense for all their constituents.

Let me remind your Lordships of the wording that we used. When we refer to amenity, we mean the prevention of unreasonable diminution of the living and working amenity and environment of interested parties in the vicinity of the premises, balancing those matters against the benefits to be derived from the leisure amenity of such premises. We believe that this amendment is entirely proportionate, fair and sensible. We therefore ask the Government to reconsider the matter. It is a crucially important issue that can surely do no harm to the legislation. In the interests of enterprise and residents alike, it would do a great deal of good. I beg to move.

Moved, as an amendment to the Motion that the House do agree with the Commons in their Amendment No. 5, leave out "agree" and insert "disagree".—(Baroness Buscombe.)

Lord Phillips of Sudbury: My Lords, like the noble Baroness, Lady Buscombe, I, too, am unhappy and not persuaded by what the Minister has said. Incidentally, I congratulate him on his most recent attainment.

The truth of the matter is that guidance is no more than guidance. It has no statutory bite, and in any event it can be interpreted only within the ambit of the statute. If the statute, as proposed, refers only to public nuisance and not to the much wider and more balanced test to which the noble Baroness, Lady Buscombe, referred, which seeks to balance the amenity of local residents with entertainment and business factors, then it is not a matter of opinion but a matter of fact that the guidance can be construed only in accordance with that public nuisance objective.

As has been said many times on Report, in Committee and again today, "public nuisance" is a very high hurdle indeed. A publican ambitious to extend his or her trade is encouraged by the existing draft guidance to apply for and obtain a 24-hour licence; there is a strong predisposition in the guidance to 24-hour licences. It would therefore be idle to

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pretend that normal behaviour at abnormal hours, such as the regular coming and going to a village pub at three, four or five o'clock in the morning, would not create a great despoliation of individual amenity—noise, light, traffic.

It is also idle to pretend that the conduct of a single person going lawfully and peaceably to a village pub at four o'clock in the morning, getting out of his or her car, slamming the door, turning off the engine, going into the pub, coming out sober, getting back into the car, starting the engine, slamming the door and moving off, could constitute a nuisance. It would not come remotely within the definition of nuisance. The Government should not therefore pretend that "public nuisance", the third of the four objectives, would be of any use at all to counter that amenity loss.

In conclusion, leaving the statute as it is—regardless, frankly, of what is put in the guidance—is to disenfranchise local people even from being able to make objection to the grant of a licence. One can make objection only on the grounds that one of the four general objectives is likely to be breached. If one cannot therefore establish public nuisance—and one will not be able to—one cannot even go before the licensing authority and say one's piece. That is a most extraordinary state of affairs in a so-called free country. Although there are other aspects to the Bill, the centrality of its key objectives will disallow ordinary residents from having any remedy at all. I therefore remain deeply unhappy about the position; I believe that I also speak for my colleagues.

The Lord Bishop of Peterborough: My Lords, from these Benches I express my sympathy with the amendment. Every bishop in the land who lives in a town or city centre is aware of how the quality of life there has decreased. The clergy are often among the few residents who are still living in town and city centres. The increase in licensing hours and entertainment provision, and the opening of public houses, make it difficult to maintain quality of life in those places. I personally have had to move a clergyman who with his family found it impossible to continue to live where they were simply because the licensing authorities did not make allowance for his and his family's amenity in living near a city-centre pub in extending the provisions. From these Benches, I have considerable support for the amendment.

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