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Lord McIntosh of Haringey: My Lords, I am not even allowed to finish a sentence in this House.

Lord Phillips of Sudbury: My Lords, I apologise for interrupting the Minister's sentence and again I am grateful to him for giving way. He really is, if I may say

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so, in danger of misleading the House when he correlates a district nurse making a visit at 3 a.m. with the predictable and invited attendance of members of the public to a pub at 3, 4 and 5 a.m. It is not being fair to the House to present that as any sort of parallel. I repeat my question. I indicated earlier that as a matter of law the Government were arguing that a person arriving at a pub at 3 a.m.—normal behaviour, normal use of car—and coming out again is a public nuisance, although there is no anti-social behaviour, nothing that one could complain about, except the fact that it is 3 a.m. and that starting and stopping motor cars and opening and closing their doors causes a great deal of noise and light. Is the Minister seriously telling the House that that could conceivably constitute private nuisance, let alone public nuisance?

Lord McIntosh of Haringey: My Lords, I did not say that. I am saying that the provisions of the Bill, as we provide for it, with the combination of "public nuisance"—for the kind of examples that the noble Lord, Lord Hylton, gave—and the statutory guidance, which will cover the issues raised in the House of Lords amendment, cover the point, not only adequately, but very significantly better than changing the words "public nuisance" to "public amenity". "Public amenity" is a narrower concept.

Lord Phillips of Sudbury: My Lords,—

Lord McIntosh of Haringey: My Lords, I have to be allowed to pursue my argument. "Public amenity" derives from planning law and relates to the aesthetic and visual qualities of the area. It does not cover the problems of noise and aspects of anti-social behaviour that we agree can happen from licensing legislation. By the way, I say to the noble Baroness, Lady Oppenheim-Barnes, that there is no question of legal aid. These are matters for representations to the licensing authority. I give way again.

Lord Phillips of Sudbury: My Lords, I am most grateful. The Minister is again, I am sorry to say, not using the language of the amendment that is sought to be overthrown. It does not talk about "public amenity", which I agree is a planning term. It talks about "living and working amenity". That is quite different and wholly unrelated to planning law concepts. The Minister claimed earlier that there was a remedy in respect of people who were ordinarily arriving and departing from pubs at 3, 4 or 5 a.m. I ask him again: is it the Government's position that there is a remedy under "public nuisance" for such a normal use of a car park, of a pub at 3 a.m.?

Lord McIntosh of Haringey: My Lords, I did not say that it was "public nuisance". Legitimate activities pursued at illegitimate times are matters for licensing authorities. They will be concerned with them because they will be covered in statutory guidance. I do not even know what the words "living amenity" mean. The regime that we propose in the Bill, a combination of a broad public nuisance criterion—which applies

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throughout the Bill—together with explicit statutory guidance covering the points raised by noble Lords when they passed the amendment in the House, is a better regime than importing from planning law a much more limited and ill-defined concept, which is the aim of the noble Lord, Lord Phillips.

Lord Phillips of Sudbury: My Lords, I promise that this will be my last intervention, but it is important. The Minister is again inadvertently misleading the House. The issue is not one of planning law at all. When the Minister says that the licensing authorities will be able to have regard to the guidance, the fact is that if "public nuisance" is the only objective dealing with amenity, local residents will not be able to make their case to the licensing authority. That is the point, because they will not be pursuing one of the four objectives in the Bill. If we claim—and I am certain that we are right—that there is no public nuisance in the normal use of a local village pub at 3, 4 or 5 a.m., then one is not even within the realms of being able to make representations. That is the point. Finally, regarding the Minister's concentration on guidance, Clause 5(3) says that the licensing authority only has to have "regard" to guidance. The Minister has not answered the point that if "public nuisance" is restored to the Bill, the guidance will not be able to reintroduce the words of our amendment that is being thrown out. The guidance must be within the context and contours of the Bill. We cannot have guidance that extends the scope of the Bill.

Lord McIntosh of Haringey: My Lords, I wish that the noble Lord would set out his arguments in his first speech instead of letting them out in dribs and drabs in this way. He has not raised the issue of what can be complained about before, which is a different point. I shall try to recapitulate on the various points that he made and to emphasise how much they are at variance with the views of the noble Baroness, Lady Buscombe, who actually tabled the amendment. She is saying something quite different.

I have agreed that intermittent ordinary behaviour is not public nuisance and that it has to be covered by statutory guidance. However, the combination of many people in the vicinity of premises and the noise generated would change the nature of ordinary behaviour so that it could become—I cannot say in any specific circumstances—a matter of public nuisance to those in the vicinity of the premises. That is a question of fact that has to be determined on individual cases. It cannot be done entirely by law.

Can appeals be made to the licensing authority? Of course the licensing authority, having followed the statutory guidance, is under an obligation to see that the conditions that it applies are adhered to. Therefore, there is a reference to the licensing authority. I was asked about the views of the industry. A recent article in The Publican Newspaper was concerned that the Government had overturned the public amenity test because they viewed it as a less onerous criterion—less onerous not for the people in

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the vicinity, but for the licensees. Are we on the side of the people in the vicinity or on the side of the licensees when there is a conflict?

The noble Baroness, Lady Buscombe, very reasonably and understandably, wants us to reflect the spirit of the amendment that was agreed to, and that is what we shall do. On the other hand, the noble Lord, Lord Phillips, is pursuing a point of view directly opposite to what she is saying. His view is actually confirmed by the industry as favouring licensees rather than the public.

We fundamentally disagree with the limitation of the powers of the licensing authority that would be reintroduced by the amendment overturning the Commons amendment. We now have a combination of effective statutory guidance and a strong but not particularly high hurdle of public nuisance under the common law that will meet the requirements of the licensing authorities, the licensed trade and, above all, local people. I ask the House to resist Amendment No. 5A.

Lord Avebury: My Lords, is the Minister not going to deal with my argument?

Lord McIntosh of Haringey: My Lords, I beg the noble Lord's pardon. Of course, his question about the A3 use class is nothing to do with the amendment, but the Office of the Deputy Prime Minister has confirmed that pubs will be placed in a separate use class so that planning permission will be required to convert to a superpub. The Bill will not have any effect on that until at least 2005.

12.15 p.m.

Baroness Buscombe: I thank the Minister for his response. I also want to thank the noble Lords, Lord Phillips of Sudbury and Lord Hylton, my noble friends Lady Oppenheim-Barnes and Lord Peyton of Yeovil, and the right reverend Prelate the Bishop of Peterborough for their invaluable contributions to this important and worthwhile debate. The Minister clearly feels that the noble Lord, Lord Phillips of Sudbury, and I are coming from different quarters. I actually said that "public nuisance" is open to differing interpretations, as our debate makes absolutely clear. What we need now is clarity.

To some extent, I am assured. I would have much preferred to see our amendment remain in the Bill rather than go into statutory guidance. I hear and accept much of what was said by the noble Lord, Lord Phillips of Sudbury. However, I want to trust the Minister—if I may put it that way—on the basis that the words for which we ask will appear in the statutory guidance, at least in terms of the spirit of what we are really looking for, which is a fair and proportionate balance between the lives of people who live in the vicinity of the premises and enterprise and local business.

The many examples raised today are helpful in terms of what we are trying to achieve. I hope that the Government have very much taken on board the

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concerns that clearly continue to exist in the House and beyond. I am grateful to the Minister for agreeing to ensure sufficient wording to meet our needs in the statutory guidance and for saying that "public nuisance" will include the definition of, we hope, something akin to "living and working amenity". On that basis, I beg leave to withdraw the amendment.

Amendment No. 5A, as an amendment to the Motion, by leave, withdrawn.

On Question, Motion agreed to.

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