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Lord Triesman: My Lords, I beg to move that further consideration on Report be now adjourned. In moving the Motion, perhaps I may suggest that the Report stage begin again not before 8.50 p.m.
Moved accordingly, and, on Question, Motion agreed to.
Business
Lord Grocott: My Lords, before we start the next debate, perhaps I may make a few comments that I hope are for the convenience of the House. Several noble Lords have asked me how long the debate will last. My answer to that, like my answer to most questions, is that I am not sure. Although it is not, as we know, a timed debate, we try to put business into the dinner adjournment that we think will last roughly an hour. As I have been asked, however, all I can say is that about seven noble Lords have indicated that they are likely to speak. The arithmetic is that if those seven were to speak for about five minutes, and allowing for the usual openings and closings, we would finish roughly within the hour.
I have to re-emphasise that I do not make the rules here. I am simply trying to give noble Lords the best information I have at present.
Guidance issued under Section 182 of the Licensing Act 2003 and Guidance to Police Officers on the Operation of Closure Powers in Part 8 of the Licensing Act 2003
Lord McIntosh of Haringey rose to move, That the draft guidance laid before the House on 23 March be approved [18th Report from the Joint Committee and 2nd Report from the Merits Committee].
The noble Lord said: My Lords, the guidance before the House is almost 200 pages long and contains more than 2,000 paragraphs. I suspect that the House will not want me to go into detail, but I shall do my best to explain its thrust and effect.
Under subsection (2) of Section 182 of the 2003 Act, the Secretary of State may not issue the licensing guidance unless a draft of it has been laid before, and approved by resolution of, each House of Parliament. Noble Lords will recall that the Select Committee on Delegated Powers proposed that the Licensing Bill be amended to provide a mechanism for scrutiny. We responded to that following the persuasive case put by
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some noble Lords present today. The procedure provides no mechanism for tabling amendments to the draft guidance. The draft must be either approved or rejected. I should also emphasise that the guidance cannot change the primary legislation that was so thoroughly scrutinised by both Houses. I make that point not least because some who have commented on the draft guidance seem to believe that it can override or modify the Act. It cannot.
A draft of the guidance was first made available during the parliamentary stages of the Licensing Bill to inform the debates in both Houses. Following Royal Assent in July last year, a further draft was prepared which reflected amendments made to the legislation and many of the points made in Parliament. It was published for consultation in August 2003. A prolonged and detailed consultation followed publication in August.
I should like to express my gratitude to the expert bodies and organisations listed at page 12 of the draft guidance which have provided an enormous amount of advice that enabled us to produce the draft being considered today. In addition to those who formed our advisory group, many other organisations provided comments and views, including residents' associations, individual local authorities, trade unions, industry trade bodies, individuals and members of the legal profession.
We have also consulted very closely with musicians and performers' groups to ensure that the draft guidance properly reflects their concerns which were much debated during the passage of the Bill. We also turned to a specialist group involving children's organisations such as the Children's Society and the NSPCC and the police for advice about the sections of the draft that deal with the protection of children from harm. And of course, because of the range of issues with which it deals, we have also consulted closely with a range of other government departments, agencies and public bodies. Inevitably, across such a great range of issues and the breadth of the consultation, there has been conflict between some of the views expressed. Where there has been conflict, we have sought to find a balanced position that represents best practice and the broadest possible consensus in the area concerned.
If the draft guidance is approved by both Houses, under subsection (3) of Section 4 of the 2003 Act any licensing authority will be required to have regard to it when carrying out any licensing function. The first licensing function to be carried out by any licensing authority will be to make its local statement of licensing policy. The process cannot formally begin until Parliament has made its decision about the draft guidance. The phrase "have regard to" does not mean that licensing authorities must slavishly follow its terms to the letter. In effect, the guidance will set a national policy framework which we expect local statements of licensing policy to complement and reflect. When carrying out its licensing functions, a licensing authority may depart from the guidance where it is justified by individual or local circumstances. But the authority will need to set out good reasons for doing so.
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The purpose of the guidance is to promote consistency and good practice, but not at a cost of eroding local discretion. The Act creates a local system under the control of locally elected representatives for the benefit of local communities. Our concern has therefore been to achieve balance between providing sufficient detail and advice and not being tempted into excessive prescription.
The draft is primarily directed at the professional and technical advisers of licensing authorities to enable them to assist licensing authorities and their committees in carrying out their role as Parliament intended. It is therefore complex and technical in parts. As a valuable by-product, we hope that it will also assist applicants, the police, other responsible authorities, performers and the general public to understand better the processes involved. But I must stress that it is not a substitute for a proper understanding of the Act itself and must always be read in conjunction with the primary legislation and secondary legislation to be made under the Act.
I now intend to touch on three connected issues that have received a good deal of attention in recent weeks: alcohol harm, the position of the police and the cumulative impact of a concentration of licensed premises.
It has been asserted by some that the 2003 Act and the draft guidance are incompatible with the alcohol harm reduction strategy and its focus on binge drinking and irresponsible trading of alcohol. However, there is nothing contradictory between the documents. They were developed together. We deliberately delayed the finalisation of the draft guidance until the terms of the strategy were agreed. Both documents were then published in March this year.
The 2003 Act and its guidance and the strategy aim to help curb irresponsible trading, alcohol-related violence, public nuisance and to protect children from harm. The 2003 Act provides expanded, more flexible and tougher powers to deal with premises that engage in trading that damages our communities and provokes drunkenness and disorder. The strategy, of course, goes much wider, to cover issues including public health education and so on. However, we have to recognise that while we need to act to reduce binge drinking and alcohol-related violence—and I think that anyone who saw the "Panorama" programme on Sunday night needs no convincing on that point—we also need to ensure that the development of the night-time economy can help to regenerate many areas through investment and the opening up of employment opportunities.
I also want to make clear that there is no dispute between the Government and the police about the value of the changes to be implemented through the 2003 Act. On 29 April of this year, Rick Naylor of the Police Superintendents' Association told Radio Four's "PM" programme:
"The Superintendents' Association have always been in favour of relaxing licensing laws and bringing them into the twenty-first century, and it is slightly disappointing we can't get this piece of legislation enacted sooner, because I think it will have an effect on violence in the streets".
Chris Fox, President of the Association of Chief Police Officers, said on the "Today" programme on 11 May 2004:
"However, for the vast majority of people the licensing laws will bring a welcome and civilised sort of approach to the world. They can get a drink and they can go and relax and socialise when they want".
The police have been constantly and closely involved in the development of the draft guidance. It was said in another place that we are just citing a few policemen when others hold misgivings. Chris Fox speaks for all chief officers as president of ACPO and is not just another policeman, and Rick Naylor speaks for superintendents. Within all organisations there will be dissenting voices—indeed, we heard them from Nottingham on Sunday night—but the president of ACPO represents the consensus, as does Mr Naylor.
I turn to the issue of saturation and cumulative impact. During the parliamentary stages of the Licensing Bill, there was much discussion of the need to address the cumulative impact on crime and disorder where there is a concentration of licensed premises. I know that this was a matter of concern in particular to the noble Lord, Lord Avebury, but of course, many others shared that concern.
We have therefore set out in paragraphs 3.13 to 3.28 of the draft detailed advice for licensing authorities about how these issues should be addressed where they arise. The Act does provide the necessary power to assist local communities in dealing with such matters due to impacts on the licensing objectives. However, the draft guidance also sensibly recognises that it can be only one part of a solution that requires a partnership approach.
We have seen briefing issued by the Local Government Association which says that the draft guidance applies the special policy described only to new applications and not to applications for variation or to provisional statements. If noble Lords will look at paragraph 3.19, they will see that the Local Government Association has failed to note that it says:
that is, a policy about saturation—
"is to create a rebuttable presumption that applications for new premises licences or club premises certificates or material variations will normally be refused".
Applications to vary licences are therefore included. As for provisional statements, the Local Government Association appears to have forgotten that there is no provision in the 2003 Act for refusing to make a provisional statement, and the guidance cannot, of course, amend the primary legislation as approved by Parliament. I have to say that its points on cumulative impact are therefore not well made.
The noble Lord, Lord Redesdale, will today argue that it would have been better to consider the draft guidance only after the fee levels have been made by the Secretary of State. I say with great respect to the noble Lord, as he played a most valuable part in the progress of the Bill, that I must oppose this Motion. For completeness, I should also mention that Section 178 of the Act is also relevant in addition to those he has cited.
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I am afraid that the noble Lord, Lord Redesdale, is attempting to have it both ways. Among others, he argued persuasively during the passage of the Licensing Bill that we should respect the view of the Select Committee and provide a mechanism allowing Parliament the opportunity to scrutinise the guidance before it is issued. We accepted the points that he and others made and we made the necessary amendment to the Bill. That is why we are here tonight.
We cannot presume that such scrutiny will lead automatically to the approval of the draft guidance today, or, indeed, in any revised form if we were obliged to take it away and return to Parliament. We would certainly be criticised for being arrogant if we sought to do so—if we proceeded with regulations before Parliament had approved the guidance that is related to them. The guidance is central to the processes and activity in which licensing authorities will engage, and indeed particular parts of local authorities. Any changes to the draft guidance can therefore impact on costs and costs in turn impact on fee levels.
Fee levels must be set at a level that allows licensing authorities to recover fully their costs of administration, inspection and enforcement. Until Parliament has finalised its scrutiny of the guidance, the Secretary of State cannot finalise the fee levels. I am sure that on reflection the noble Lord, Lord Redesdale, will agree that he cannot expect us to put the cart before the horse.
I wholly appreciate why licensing authorities and industry are keen to know the final terms of the fees. It is important for planning purposes. I can assure the House that we intend to make the fee levels known to the licensing authorities and other stakeholders as soon as possible following the approval of the guidance. The regulations, which, of course, have to be consulted on, will be in place in good time for the beginning of the transitional period.
The minimum time for the beginning of the transitional period after the passage of the guidance is six months. Representations have been made to us that a longer time is necessary. I assure the House that the Secretary of State is considering those representations carefully.
The Licensing Act 2003 is important legislation that will provide: radical reform of an essentially 19th century system; greater freedom and flexibility for the responsible parts of industry; greater choice for consumers; opportunities for regeneration, increased investment and new employment; a more democratically accountable system; and tougher and more comprehensive powers to deal with irresponsible licensed traders who cause problems within our communities.
The draft guidance that we are scrutinising will provide a national policy framework which will inform and guide the key decisions that licensing authorities will be required to take. I am satisfied that the provisions of the draft guidance are compatible with the European Convention on Human Rights and I commend it to the House.
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Moved, That the draft guidance laid before the House on 23 March be approved [18th Report from the Joint Committee and 2nd Report from the Merits Committee].—(Lord McIntosh of Haringey.)
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