HOUSE OF LORDS
taken before the
Lord Brougham and Vaux
Lord Geddes (Chairman)
Ordered at : that Counsel and Parties be called in.
996. CHAIRMAN: A rather wet good morning to everybody. Thank you for being here promptly. Could I please ask again, trying to look at the ceiling rather than anywhere else, could all mobile phones please be turned off or into a silent mode? We have got to part four. Ms Lieven, do you want to start off? I gather Dr Rawlings may have something to say?
997. DR RAWLINGS: Thank you, my Lord Chairman. If I may ask my Lord Chairman, something has arisen this morning at our council of members which I really ought to attend as I have been asked to. With your permission, I would like to leave our petition as is. We had not intended to say anything, other than we fully support the Government, so with your permission, I would like to leave.
998. CHAIRMAN: Thank you. Duly noted.
999. MS LIEVEN: My Lord, we turn now to part four of the Act which deals with the ability to serve management notices on houses in multiple occupation, which I will call HMOs. I am afraid the Committee will need for the opening a copy of the Filled Bill and the legislation bundle which your Lordships should have. The position is that under Section 234 of the Housing Act 2004, which appears at page 1101 of the legislation bundle, all the relevant material is at tab three of the legislation bundle.
1000. CHAIRMAN: Take it a little slower than that. We have this morning received a new bundle, but it does not seem to go quite as far as you said.
1001. MS LIEVEN: No, it is not the new bundle. The Committee should have been given a bundle called "bundle of legislation".
1002. CHAIRMAN: Yes. Thank you.
1003. MS LIEVEN: Tab three relates to provisions relevant to part four of the Bill. Page 101 within tab three is Section 234 of the Housing Act 2004. That gives the power for the appropriate national authority to make provision for the purpose of ensuring that in respect of every house of multiple occupation, with descriptions specified in the regulations: (a) there are in place satisfactory management arrangements and (b) satisfactory standards of management are observed.
1004. Regulations have been made under that section, but before we go to them, if we can note that the only enforcement power in respect of the management regulations is in Section 234 (3) "a person commits an offence if he fails to comply with the regulation under this section". In respect of the management regulations, there is no power to require works to be done in default and no power for the local housing authority to do the works themselves. If one goes to the regulations which have been made under that power, they appear in the same bundle at page 118/11, if you look at the bottom right-hand corner. One sees there, The Management of Houses in Multiple Occupation (England) Regulations, and I am not going to take the Committee through them, but if you just glance at the headings: Duty of manager to provide information to occupier; Duty of manager to take safety measures; Duty of manager to maintain water supply and drainage; Duty of manager to supply and maintain gas and electricity; Duty of manager to maintain common parts, fixtures, fittings and appliances, and so on. They are all related to things to do with good management of HMOs.
1005. They are pretty general requirements which all relate to good management of the premises. The problem that the clauses in the Bill seek to deal with is that in order to enforce these regulations, the only thing the local authority can do is prosecute. I will come back to the statutory bundle in the moment, but if one turns to the Filled Bill and part four of the Filled Bill, which is at page nine, what the provisions in part four do is allow the local housing authority to serve a management notice. The management notice sets out remedial action that should be taken to remedy a failure to comply with the management regulations.
1006. I will take your Lordships through the provisions briefly, but just to show them to your lordships. Section 11 is interpretation, section 12, "Power to require remedial action to remedy a failure to comply with the management duties". 12 (1): "If in the opinion of the local housing authority the condition of a HMO in their area is defective in consequence of a failure to comply with any duty imposed by regulations under Section 234, the authority may serve on the person managing the HMO a management notice under this section in respect of the failure". Importantly, 12 (2): "A management notice under this section is a notice requiring the person on whom it is served to take such remedial action in respect of the failure concerned as is specified in the notice in accordance with section 13". Then section 13: Content of management notices, 13(2): "The notice must specify in relation to the failure or each of the failures to which it relates, (a) the nature of the failure and the HMO in respect of which it arose (b) the HMO in relation to which remedial action is to be taken is respect of the failure and the nature of the remedial action (c) the date, when it starts and (d) the period within which the remedial action is to be completed". It is pretty all pretty straightforward stuff. 13 (4) (a): "The notice must contain information about the right of appeal against the notice under schedule 2". I will come to the right of appeal in a second.
1007. Section 14, Operation of Management Notices, that sets out the timings in which notices come into effect. Section 15 is the appeal rights and they are detailed in great detail in schedule 2. Then 16 is important, "Taking of remedial action by local housing authority and recovery of expenses". To paraphrase, if the manager fails to comply with the notice and does not appeal or does not successfully appeal depending on the timing, then the local housing authority had the power to step in and do the works themselves and recover the cost. Then I think the other provisions are consequential and do not need to be taken through.
1008. Your Lordships can see the scheme is very straightforward, standard kind of stuff in this field. As Mr Rea, our witness, will explain, these are very useful powers because they allow a local authority simply and easily to set out the relevant defects in an HMO and ensure managers are aware of them and then step in and do the work if appropriate. In our submission, it is a straightforward scheme and it is helpful to both sides because it allows the local housing authority to say in a simple straightforward way, these are the problems, and it allows them to tell the manager exactly what the problems are in a very user-friendly way and exactly what the timing is to do something about them.
1009. Another important aspect of this is that the local housing authority do not have to wait until the problem reaches a certain level of severity. The management notices can focus on good management rather than necessarily simply on the physical state of the premises. It is obvious that it is a much more useful method than to have to prosecute for breach, which is incredibly heavy-handed and clearly in most cases contrary to the concordat that I showed your Lordships yesterday.
1010. I turn then to what is the main argument being put against these provisions raised in the report from DCLG and by the petitioners. As I understand it, the main argument against is that under the Housing Act 2004, quite apart from the management provision in Section 234, there is a power to serve notices, including something called an Improvement Notice, which could require various defects to be remedied and which it does include a power to do works in default. We quite accept that that is correct, there is such a power and it is set out in part one of the Housing Act 2004, but, and it is a big but, it is an extremely difficult system to operate for anything other than major breaches.
1011. Under the 2004 Act, a system was introduced, which is called the Housing Health and Safety Rating System, HHSRS, but I think it is known in the trade as the Rating System. What that involves is going through a very complex exercise of toting up the points relating to the defects that have been identified. Any enforcement action, service of improvement notices or any other enforcement action all depend on going through that system. If I could show your Lordships quite how complicated that is. In the authorities bundle, at page 118/1, which I think is where my Lord, Lord Burnett was earlier, are the regulations relating to the Housing Health and Safety Rating System. I do not intend to take your Lordships through these in any detail, if you want to know how they work, Mr Rea can explain, but what one can see in Regulation 3 is that a hazard is of a prescribed description for the purposes of the Act where the risk of harm is associated with the occurrence of any of the matters or circumstances listed in schedule 1. In schedule 1 there is a great list of matters and circumstances and then over the page at Regulation 6 is the provision about the seriousness of the hazards.
1012. Where the inspector has determined that a hazard of a prescribed description exists and considers having regard to any guidance for the time being given under Section 9 in relation to the assessment of hazards, that it is appropriate to calculate the seriousness of that hazard, then the seriousness of the hazard should be calculated in accordance with paragraphs two to four of the regulation. This is the stage where anybody other than a highly trained EHO gets lost because there is a table which sets out these, how you work out likelihood in ratios, and then in four there is a whole series of formulae that are applied to the likelihoods, which I am instructed end up in giving you the score. As I say, if the Committee want to know more about how it works in practice and how on earth you make all this work, Mr Ray will be here to answer those questions.
1013. At regulation seven you can see that the scores are then banded A to J.
1014. Regulation eight says that bands A, B and C is a category 1 hazard and anything below C is a category 2 hazard. Mr Ray can give more evidence on this, but what it is is a horrendously complicated system which may work well for serious hazards, imminent threats, they score over 1,000, there is a duty to take action in respect of those and in such clear cases it may well be relatively straightforward but, as Mr Ray will explain, the kind of defects that the Bill is primarily aimed at are those that would score fairly low on a rating system. We are not suggesting they are not ones that provide an imminent risk to human health, the kind of things are perhaps damages to common parts, defects that are only just starting to arise that have not got to a critical stage or perhaps those that relate particularly to poor management and maintenance rather than to things that would be categorised as existing hazards. For those kinds of defects, those kinds of problems, to go through the full scoring mechanism and serve an enforcement notice is an extremely cumbersome process. It involves carrying out a complex scoring formula and it is our case that it is particularly complex and disproportionate in respect of relatively minor breaches. In our submission, it is much simpler and much more effective to be able to serve a management notice, if necessary do the works in default, and in many cases nip a problem in the bud before it gets to the stage of being a significant hazard. That is the purpose of the clauses in part IV of the Bill.
1015. Before I finish I would like to refer the Committee to the consultation response from the national HMO network with respect to these clauses (Same handed). As it says in the first paragraph: "The national HMO network consists not only of local authority government officers with responsibility for regulating standards in the private rented sector but also organisations representing the interests of landlords and tenants". I am not going to read all through this. They start by welcoming some of the changes in the Housing Act but then they refer to the 1985 Housing Act and in the third paragraph the benefits of being able to serve management notices. In the third paragraph they say: "The use of management notices also reflect the difficulties faced by managers of HMOs where very often the most vulnerable individuals are accommodated and where there is an increased likelihood of tenant damage and normal wear and tear to fixtures and fittings that result from the increased turnover of tenants. It is often very difficult for managers to monitor the accommodation to ensure that all necessary repair is in hand and very often the intervention of the local housing authority actually assists the manager in identifying deficiencies and a service of a management notice provides a structured compliance strategy encompassing the many and varied deficiencies that may have been found at a point in time".
1016. Then if I can ask the Committee to turn over the page, in the third paragraph on the second page I want to highlight the critical points for our argument, the third paragraph: "Suggestions have been put forward that local authorities should use their powers under part I of the Housing Act to require remedial works to be carried out where neglect of proper management, ie breach of the management regulations, has resulted in hazards under the housing health and safety rating system. Whilst this may be appropriate in certain circumstances, part I powers cannot be used to remedy neglect of management that does not relate to the actual structure of the property or its fixture and fittings and there is no practical way to ensure that the facilities, once remedied, are maintained in good order". My Lords, I wanted to show your Lordships that to show that the problems we perceive with not being able to, say, serve management notices, it is by no means a problem only seen by the promoters of this Bill.
1017. Unless there is anything else I can assist your Lordships with at this stage, I will proceed to call Mr Ray.
1018. LORD BURNETT: Would you just explain to the Committee what sort of properties are affected?
MS LIEVEN: Yes, of course Mr Ray can tell you in much more
detail, but HMOs are typically a building or part of a building which is shared
by more than one household and where there is some sharing of basic
amenities. I was going to leave this to
Mr Ray but I will briefly explain. They
are a critical part of housing provision for the less well off and particularly
perhaps for a relatively transient population and that is why it is a
particular issue in
1020. LORD BURNETT: With any form of landlord? Private landlord, public sector landlord?
1021. MS LIEVEN: Not a public sector landlord, my Lord.
1022. LORD BURNETT: Only private?
1023. MS LIEVEN: Only private sector because all public sector tenancies are governed by a wholly different statutory code.
1024. CHAIRMAN: Can I ask you, Ms Lieven, about the national HMO network because Mr Ray, I notice, is the environmental health officer for Kensington and Chelsea. Is that HMO network nationwide?
1025. MS LIEVEN: Yes, my Lord.
CHAIRMAN: It is not restricted to
MS LIEVEN: It is not
1028. CHAIRMAN: Is this the right time to probe a little further about that last sentence in the third paragraph of the document you have just produced, "part I powers cannot be used to remedy neglected management that does not relate to the actual structure", and so on? Can you go into that in slightly more detail? It seems a rather important paragraph in that to an extent I am jumping the gun because we have the Government's response in our bundle to which you have already referred and that response and indeed the petitioners, as I understand from Dr Rawlings, are relying on the Government response and they are operating under the Housing Act, are they not?
1029. MS LIEVEN: They are, my Lord.
1030. CHAIRMAN: What is it? Can you lead it to us? What is it that part I powers cannot be used to remedy? Can you expand on that?
1031. MS LIEVEN: My Lord, I can try and expand and Mr Ray can do so with a great deal more authority than me. As I understand it, if one looks at the schedule to the ratings system regulations, this is page 1185 of the authorities bundle, what are listed there are the matters and circumstances that, as it were, trigger the whole system. It is all focused around hazards so you have got to have the physical hazard in order to trigger the rest of the system. If there are management defects, such as a failure to display fire certificates or safety information, for example, and they do not produce a matter or circumstance set out in Schedule 1, then that, as I understand it, will fall outside the ratings system. I think that there was a wider point here which is that there may be matters which do fall within the ratings system but only score a very low number of points. For example, dodgy banisters in the common parts which, unless it was an extreme case, would score very low on the ratings system, there would be strong encouragement within the code of guidance produced by DCLG not to serve an Improvement Notice in those circumstances. I am plucking an example, the guidance does not say, "Don't serve it on dodgy banisters", obviously but the thrust of the guidance is do not serve notices on minor breaches but which might be indicative of significant problems with management. A major concern of Mr Ray is to try to be able to help managers of HMOs at a very early stage where you can see management problems which have not yet to any significant degree been reflected in hazards. Some things might not get within Schedule 1 at all; other things might touch Schedule 1 but in accordance with the guidance it probably would not be sensible to serve an Improvement Notice but there is an issue which, in Mr Ray's professional experience, needs to be addressed and which is much better addressed early rather than late.
1032. CHAIRMAN: You say would not be sensible, do you mean would not be sensible or would not be possible?
1033. MS LIEVEN: I mean would not be sensible.
1034. CHAIRMAN: It still could be served?
1035. MS LIEVEN: It could be served, yes, save perhaps for a very small category of cases, we are saying you could not have an Improvement Notice strictly in accordance with the statute and the regulations, but the way the whole system is set up with the code and with this very cumbersome system it would not be proportionate to go down the Improvement Notice route.
1036. CHAIRMAN: Am I right in thinking, and I am going on a very broad argument here, that the thrust of your argument is looking for simplicity?
1037. MS LIEVEN: Yes, it is looking for administrative simplicity. Can I slightly nuance that, my Lord, simplicity and being able to deal with problems earlier in the most appropriate and proportionate way, which might be the same thing as simplicity.
1038. LORD BURNETT: Simplicity and anticipation.
1039. MS LIEVEN: Yes.
1040. LORD ACTON: Within the organisation of the HMO network, the preamble says it "... consists not only of local authority and Government officers with responsibility for regulating standards in the private rented sector but also organisations representing the interests of landlords and tenants." Can you qualify "landlords and tenants"? Is that masses of landlords and tenants, some landlords and tenants, thousands of landlords and tenants, a few landlords and tenants?
1041. MS LIEVEN: I did check that it represented landlords, but how many - let me just find out.
1042. LORD ACTON: I do not need a precise figure but "representing the interests of landlords and tenants" is a very vague phrase. It might be two landlords.
1043. MS LIEVEN: I think the best way to answer that, my Lord, is in the short space of the morning for somebody in my team to go on the web and see whether they make some statement. I do not want to speculate on a question like that. My understanding is that the network does have members who are landlords and tenants and representative of, but I cannot speculate as to how many.
1044. LORD ACTON: I do not need precise figures, I merely want to know if there is broad coverage or not.
1045. MS LIEVEN: Can I come back to that, my Lord, in the course of the morning?
1046. CHAIRMAN: Are there any other questions of Ms Lieven at this stage? Would you like to call your witness?
MR ROBIN RAY, sworn
Examined by MS LIEVEN
1047. MS LIEVEN: Mr Ray, if I can start by introducing you: your name is Robin Ray. Is that right?
(Mr Ray) That is correct.
1048. You are employed by the Royal Borough of Kensington and Chelsea as an Environmental Health Officer in the private sector rented team, and you have been so employed since June 2004.
(Mr Ray) Correct.
1049. Prior to that you were employed by Kensington and Chelsea within the noise team and prior to that by Barnet as an Environmental Health Technician.
(Mr Ray) Correct.
1050. You have a degree in environmental health and you have undertaken the Housing Health and Safety Rating system assessor's course, and the rating system enforcement training. Is that right?
(Mr Ray) Correct.
1051. Can you just explain to the Committee in much more precise terms what an HMO actually is?
(Mr Ray) It is defined under the 2004 Act in section 254. I am not going to direct you towards that because it is a bit complicated to look at cold, but basically it is a building where there is some sharing of facilities, and those facilities have to be basic amenities - so a kitchen, a toilet or bathroom. Typically, you would find a dwelling that just contains maybe the living room/bedroom and kitchen facilities but they share a bathroom outside, and there would be different households sharing that facility. There are further definitions. Occasionally you will come across a property where it is not self-contained but everything belonged to that one flat. An example would be where you have a living room and bathroom, say, behind one door and that person would have to come out of their front door, walk down the stairs to use the kitchen/bathroom - whatever is provided in the main part - but it is for their exclusive use. There is one more, which is a building that is self-contained (so all the facilities for that household are behind one door) but the building has been poorly converted. That is under a different section - 257. It is a bit complicated, I know.
It is obvious why we are singling out HMOs in
(Mr Ray) I can quote some
statistics. They are exhibited and there
are contrary statistics available, but what we have tried to do to make it
consistent is use the same source of statistics, which is the English House
Conditions Survey 2001. It is reported
that there were 640,000 HMOs within
1053. CHAIRMAN: Sixteen per cent are in private?
(Mr Ray) Are in private only, compared
to 10 per cent in
1054. What is the definition of a "non-decent" home?
(Mr Ray) That is not too complicated. Basically, there are four criteria. The first one is that it meets the minimum standard for housing - currently, they define that as the property must not have any category one hazards within it. That is the first criteria. Category one hazards being the hazards over 1,000 points. If it has any hazards over 1,000 points it is non-decent.
1055. I asked you: what is a "non-decent" home?
(Mr Ray) One that contains a hazard over 1,000 points; one that is not in a reasonable state of repair; one that does not have reasonably modern facilities and services (which tends to be a kitchen over 20 years old, for example), and, also, one that does not provide a reasonable degree of thermal comfort.
1056. LORD BURNETT: So a cold kitchen or a too hot kitchen?
(Mr Ray) It actually refers to cold, so it is to do with insulation and a good heating system. Equally, good insulation protects you against heat.
1057. MS LIEVEN: Tell us, in a nutshell, what problems with HMOs the proposed clauses are addressing?
(Mr Ray) As has been explained, section 234 of the Housing Act states that the Secretary of State may make regulations to ensure that satisfactory management arrangements are in place. HMO Management Regulations came into force in April 2006. They set out a range of duties among which are a duty to maintain the water supply and drainage (regulation 5); a duty to maintain the common parts (regulation 7) and a duty to maintain living accommodation, which is regulation 8. By "living accommodation" it means the non-common parts behind someone's door. The general thrust of the regulations was to ensure that there was still a duty with managers to nip any maintenance problems in the bud to prevent health and safety risks from occurring. The 2006 regulations set out these duties but they did not provide a mechanism for local housing authorities (if it is okay, I would like to refer to it as "us") to carry out works in default. Section 243, subsection 3 did allow us to proceed with a prosecution in the event of a breach. So it enabled us to prosecute for non-compliance without service of notice, but that was all. These regulations sit alongside the rating system (the HHSRS), which are set out in Part I. The details of the secondary legislation you have already been directed towards - the HHSRS England Regulations 2005. They are in the statutory bundle, at 118(2). I might direct you back towards them just for the sake of examining them, in a moment.
1058. Shall we go to them, Mr Ray? That is page 118-1 of the authority bundle.
(Mr Ray) The basic principle is that it is a risk assessment. You take the likelihood of something occurring - a hazardous event - and then that event is then multiplied, if you will, by what the outcome of that event is going to be. It is a complex system. We undertake two days' training just to understand the system, then another day's training on how to implement it. In between that there will also be a day's practical training for the officer which he will undertake by himself. In the majority of cases this is not enough. Speaking as someone who has run a complaints team and who has undertaken the training, it is genuinely complex and genuinely hard to interpret. I now consider myself an expert and it is second nature to me, but for many officers it is not and they still come out of training more confused than before they went into it. So the regulations set out this complex system for calculating the score for any hazard identified at a property, and an important factor is that it does not matter how high the score is or how low the score is, the system is the same, so for low scores you have to do exactly the same process as with a high score. We have received guidance from what was then the ODPM and is now the CLG, which is this, and this goes through the process of a scoring system and helps us with the scoring process. It is not necessary to go through this document piece by piece because you do not need to understand the system in detail. This hazard score is, basically, a way of expressing the danger within the property from that hazard. Obviously, the higher the score the more dangerous the hazard to the occupant. Two important categories exist, as was explained: category one, one scoring over 1,000 points and category two, below this score. Turning to the 2004 Act, if it is a category one we must take one of the prescribed actions within the Act. It does not say which one, it just says we must take one of them. An improvement notice, which sets out what we are asking the landlord to do, and if he does not do so then we can go in and do the work in default and, also, pursue a prosecution. There is the option of a hazard awareness notice, which is purely informal in nature. It is a very similar way of formalising a letter; it sets out the work and if the landlord does not do the works there is nothing we can do.
1059. LORD BURNETT: Did you say it was an "informal" process?
(Mr Ray) Yes, purely informal. It is still a notice but there is no outcome from it if the works are not done.
1060. LORD ACTON: So what happens?
(Mr Ray) Nothing.
1061. CHAIRMAN: What was the second word of that notice?
(Mr Ray) A hazard awareness notice.
1062. LORD ACTON: What do you do, in the end? I cannot believe nothing. I am sorry - I do not mean to suggest you are lying on this question, but surely something happens.
(Mr Ray) If I go through the other options it might become clearer. Following that, we can also serve a prohibition order, and a prohibition order (if you are familiar with the old Act) is similar to a closing order. We can close a whole dwelling down, part of a dwelling, a floor of a dwelling or just a kitchen, perhaps, if the kitchen is dangerous. We can also serve a demolition order or declare a clearance area, both of which are very unlikely. They are self-explanatory: with a demolition order you can knock it down, and with a clearance order you will be knocking down a terrace. If it is a category one there are two further provisions, which means under emergency action if it is really serious and there is imminent risk of harm we can go in without serving a notice, do the works and then serve notice later - seven days later. They are quite rare events.
1063. CHAIRMAN: Mr Ray, are these various notices, orders, listed? Where would we find them?
(Mr Ray) Under the Housing Act. I am not sure whether it is part of the bundle. Yes, pages 92 to 94 and 95 to 96.
1064. MS LIEVEN: My Lords, if I can just explain, we have put in the provisions that relate to actions that can be taken in relation to category one and category two hazards. We have not put in the entirety of the Act because that would be unnecessary, but you can see on page 92, the contents page of the Act, that most of the notices that Mr Ray is referring to fall under chapter 2. If the Committee wants, I can have the contents page copied and you can see all the various notices.
1065. CHAIRMAN: It would appear, but this is the first time we have looked at this, that what Mr Ray is talking about is covered by 5(2), (a) to (f).
(Mr Ray) Yes. And 7(2) refers to "category two hazard only". If it is only category two ---
1066. That is extremely helpful. So it is 5(2) and 7(2).
(Mr Ray) Yes. Essentially, the only difference between the two sections are that for category two hazards (section 7(2)) we are not allowed to take emergency measures. Coming back to your question, the idea behind the Hazard Awareness Notice was to deal with more remote, minor hazards. It is, basically, different tiers of actions that we feel are appropriate.
1067. LORD ACTON: That is one of the things you are longing to do.
(Mr Ray) Yes, it is introducing another tier. As I said, the Hazard Awareness Notice is just - you can serve an improvement notice for low-score hazards, but the Hazard Awareness Notice is also there as an option for those low-score hazards, and that a more likely option.
1068. MS LIEVEN: Let us move on, Mr Ray, to the problem you see under the rating system for relatively low-scoring hazards. Under the 2004 Act, why is it not doing what you need it to do?
(Mr Ray) I should first make clear, if it is a significant hazard a local authority (one) has a statutory duty to take action under Part I, so it will do so, but it is also what we do as professionals is, if it is a serious hazard, we want it removed through an improvement notice. In theory we can deal with any hazard under that provision. The difficulty is that many of the breaches of the 2006 Management Regulations ----
1069. LORD BURNETT: Can you say that again, please?
(Mr Ray) A breach of the Management Regulations, and it will score a hazard but it will be a very, very small score or an insignificant score. So the rating system is not really a good fit for the Management Regulations because a breach of the Management Regulations will not score highly, and they are completely separate. The Management Regulations are not connected to the rating system in an exact way.
1070. LORD ACTON: Are you saying that there are a whole lot of hazards that do not make it under the points system but you want to be able to deal with them?
(Mr Ray) Essentially, yes. It is slightly more complicated than that because the power does exist under this Act to serve notice for low-scoring hazards, but the main thrust of our argument is that the HHSRS system, the rating system, under which you serve the improvement notice, is very complex. It takes several hours to draft a notice (we have got examples later on of a notice that I have served to illustrate this) and it is not an effective use of our powers and resources to go through this process for low-scoring hazards when the Management Regulations are there, it is a breach but the only way you can tackle those breaches at the moment is by prosecuting.
1071. MS LIEVEN: Can we just be very clear about this, Mr Ray, because it is very important that the Committee understand what this is about. We are not saying that there are hazards which do not score at all. We are saying that there are hazards which score very low points and where it would be disproportionate to go through the rating system improvement notice scheme; is that right?
(Mr Ray) Yes. To my knowledge there are only two of the regulations that would not result in a score. The first one would be that there is a duty of managers to provide their details in the common parts, how to be contacted in emergencies and the like. That would not result in a score at all. There is also a provision to keep the common parts clean and that would not result in a score either. Those are the only two that we could not tackle at all under the rating system.
1072. CHAIRMAN: They could not be?
(Mr Ray) They could not be tackled at all, no, unless we prosecuted them and that would not resolve it.
1073. LORD ACTON: You could tackle them under the system but it is too expensive in terms of time, in terms of money, in terms of what?
(Mr Ray) Both.
1074. And that is it?
(Mr Ray) Yes.
1075. Can you give us some figures? What is it going to cost now?
(Mr Ray) I can do.
1076. MS LIEVEN: Let us turn directly to that. If the Committee have the bundle of exhibits, which is the bundle we got given this morning or perhaps yesterday afternoon, it should say "Bundle of Exhibits HMOs", and I think it is page 16.
1077. CHAIRMAN: It is headed "In Parliament Local Authorities Bill Bundle of Exhibits HMO Part IV". Page?
1078. MS LIEVEN: Mr Ray, you tell us which page you want to go to.
(Mr Ray) We will go to 16. Under the Housing Act a local authority has power to charge for enforcement action. It sets out what we can charge for under each type of notice, so to make it fair we ran a series of tests and cold runs, if you will, on drafting notices, and then we went to committee and they approved the costs that we put out. They are set out on page 16.
1079. CHAIRMAN: By a committee of whom?
(Mr Ray) Of a local council.
1080. LORD BURNETT: Elected members?
(Mr Ray) Yes, elected members. Page 16 sets out what we anticipate and what actually happens in terms of the time it takes to serve an improvement notice in this particular case. An improvement notice is the way we have been directed to do it and you can see the total cost is 11 hours of time, which equates to £420 of money, and this is the standard fee we levy to serve an improvement notice. Because of the requirements of the management notice there is far less of an administration burden. You do not need to go through the scoring, which is a very large part of this. You do not need to submit as many documents within the notice bundle, so the charge we anticipate is between £255 and £295 compared to £420.
1081. CHAIRMAN: Do we have that tabulation anywhere?
(Mr Ray) I am not sure whether that has been submitted.
1082. MS LIEVEN: We have not submitted it as a table, my Lord.
(Mr Ray) Essentially, if you take out the HHSRS scoring on the table which has been submitted, which is two hours, and an hour from the preparation of the notice pack, that is how we come to that figure, because the notice pack is much smaller and we do not need to do the scoring system.
1083. In very broad terms, Mr Ray, you save about a third of the time by doing it via a management notice rather than an improvement notice?
(Mr Ray) Correct.
1084. CHAIRMAN: Can we just have the figures again? £416.78 under the present system.
(Mr Ray) Yes.
1085. Your estimate is?
(Mr Ray) Approximately £255 to £295.
1086. LORD ACTON: I did not understand about the third because the figure of £295 seems to me to be around three-quarters.
(Mr Ray) That is in terms of time.
1087. The time is reduced, the money less reduced?
(Mr Ray) What we have done is that when we have assessed the time we have done it in terms of officer time, manager time and administration time, and they are all at different rates. The time for the officer is greatly reduced but the time for the administration team is not reduced as much so that is why there is a discrepancy between the exact figures, and this is a projection. When we set a fee we have to be sure that we are setting a fair fee and a reasonable cost.
1088. CHAIRMAN: I think you are saying less chief time and about the same amount of Indian time.
(Mr Ray) Yes, basically.
1089. LORD BEW: Could I go back slightly? I just need to be clear in my mind. You were talking about two categories that were not covered, one, to give an address and, two, to keep the space clean.
(Mr Ray) Yes, clean the common parts.
1090. And you said that at the moment it is not possible to deal with that effectively at all, but it could be quite a serious matter.
(Mr Ray) At the moment keeping the common parts in good order, ie, clean, would not result in a hazard score and failure to display the notice of the manager's details would also not result in a hazard score but I would like to say that we want to try and tackle all of the failures of the management regulations, the no scores and the low scores.
1091. In other words that is the sort of thing that you would hopefully improve as a result of dealing with this?
(Mr Ray) Yes.
1092. LORD BURNETT: You have made the point already in this part of your argument to underline it that you might be having to deploy, or do you think you will have to deploy, too many high calibre staff to deal with what essentially should be an easier job and is it difficult to recruit those sorts of people to do this sort of job?
(Mr Ray) It is incredibly difficult to recruit trained EHOs, particularly within housing at the moment. There was a baby boom and if you look round my office there are a lot of people in particular around or coming up to retirement age, so there is a crisis within the environmental health field generally to have qualified officers. I do not have the figures for you but it is something that the Chartered Institute of Environmental Health is trying to tackle and it is something that is quite serious. There was a lack of qualified officers to help us deal with this. I am going slightly off track in terms how we wanted to present it, but tied into that was that these regulations, the HHSRS, are very good. I like them. They allowed a local authority to deal with a much broader scope of disrepair than we ever were able to. An example of this would be cold. It was very difficult for us to go into a property that had no heating and deal with it and now we can. The workload of the authority has gone up because we are dealing with more because the scope of our work has increased. The administration of it has gone up because it takes longer to deal with each individual problem, so we are having to prioritise and we are going to prioritise by health and safety risks, so the higher category hazards, not necessarily the category but the higher risk ones, category twos as well, are going to be dealt with first and the lower risk ones that we are talking about here, the breaches of these management regulations, are going to be left by the wayside and they are being left by the wayside. This is my job. This is what I do, and so, given a stark choice, I am going to ignore the failings of the management regulations to a certain degree and deal with the high risk ones.
1093. CHAIRMAN: I want to be very clear on this. You are saying that under the HHSRS that is the good news as far as you are concerned because you can do more?
(Mr Ray) Yes, in many regards.
1094. The bad news is - and again this is your argument; I am not saying this - that the present system is very cumbersome to do more?
(Mr Ray) Yes, it is. It has allowed us greater scope to deal with more things but it is more time-consuming to do them.
1095. MS LIEVEN: And in your experience, Mr Ray, is this leading, certainly in Kensington and Chelsea and perhaps in London generally, to changes in priority in what enforcement action you can and do take?
(Mr Ray) Yes. This rating system will give us a numerical score in terms of its risk. It is very hard to look at a lower numerical score and prioritise that. You are always going to prioritise these higher scores. These other lower scores are having a material effect on people's comfort and health and safety but we are not able to effectively tackle them at the moment because of this complex system.
Is that a problem that is just your experience and just Kensington and
(Mr Ray) In terms of the environmental
health field, it is a very small field.
We do not all know each other but we have regular group meetings. For instance, we work on a sub-regional level
1097. CHAIRMAN: Under the present system, and my guess is you can only answer for your borough, how many notices, if I could use that as a broad term, are served annually and have you estimated how many more you might serve annually under the proposed system?
(Mr Ray) We have estimated how many
would be served under the new system because it is hard to know how many
resources we would have available using this quicker system to deal with them,
if you understand. We are coming out of
a transitionary period in housing. The
first year of the implementation of the Act most authorities were panicking to
get the licensing regime sorted out because we had six months to do it. Our house is much more in order now and we
are starting to tackle these hazards much more effectively. I cannot answer that directly. All I can tell you is that Kensington last
year served 70 improvement notices approximately. Across
1098. I want to probe this one a bit further. You are a witness for the promoters.
(Mr Ray) Yes.
1099. To try and bring simplicity into the system.
(Mr Ray) Yes.
1100. Simplicity ought to mean that there would be improvements in exercising the system.
(Mr Ray) Yes.
1101. So I must press you again. Kensington and Chelsea in a year served 70 notices, and you have already said in your statement that the low priorities by definition go by default because you will always concentrate on the high priorities.
(Mr Ray) Yes.
1102. Which is entirely logical. How many more than 70, all other things being equal, would you expect to be able to serve under the proposed system?
(Mr Ray) I would imagine, because we are reducing our time by a third, that it could be a third more notices but, as I say, it is complicated and it is very difficult to put an exact figure on it. Speaking from personal experience, I know that if I had this available to me I would use it and I would use it much more readily than I would an improvement notice for the same things because they are such a low scoring it is a more laborious system. Exposure to these problems varies from officer to officer. I personally serve maybe ten improvement notices that go the whole way. I would anticipate maybe another three or four management notices on top of that, because at the moment we try and deal with it informally, so you take away the informal time and we will deal with that in the more formal approach.
1103. I am going to go on pressing you on this and I am going to mention a figure and ask you whether you agree or disagree with it. If the present figure is 70 would it be fair for the Committee to consider, let us say, that you could do 100 under the proposed system?
(Mr Ray) I think that is a fair assumption, yes. I used to run the complaints scheme within Kensington, so that is what I would be looking at. I would be looking at an increase in activity, mainly because at the moment we are not going through this complicated HHSRS process but we are still trying to resolve them informally and that takes longer, it is more confusing, so we would be able to take away some of that informal time into this notice procedure.
1104. LORD BURNETT: I do not have any pretensions or ambitions to be the Lucasian Professor of Mathematics. Nevertheless, if you have got a third more time and you can then devote that to a more simple procedure you should be able to serve a lot more notices than that third amount, if you see what I mean.
(Mr Ray) I can see why you have drawn that conclusion but it is not intended as a replacement for the rating system.
1105. That is what I want to know.
(Mr Ray) It is not a replacement in any way whatsoever. These are additional notices we would be serving.
1106. If you have got a third more time and the process is much more simple you might be able to do 40 of these under your new proposed regime.
(Mr Ray) We could do, but it is very hard to put an exact figure to it. I do not want to mislead you in any way. I want to make it as honest as I can.
Which authorities do you speak to in your little group where you
provided the notices and so you worked out the notices together? Is it the whole of
(Mr Ray) There are two separate
things. There is a west
1108. And they are all in favour of this, all 33?
(Mr Ray) Yes, all 33 boroughs are all signed up.
1109. LORD ACTON: The things you have just been saying, the strictures you have made on the existing system and your proposals for an improved system, have they been put to the Government? They are not on our papers. Have you said to the Government, "We find your system very cumbersome. Would it not be better to have a simplified system where endless time and money would be saved and we could all do our jobs far more efficiently?"?
(Mr Ray) I suppose the difficulty I would have in saying that is that I do not think the rating system is a bad system.
1110. It is cumbersome.
(Mr Ray) Incredibly cumbersome.
1111. Have you said that to Government?
(Mr Ray) I do not think that has been put to them, no.
1112. You have not said that to Government?
(Mr Ray) No, but we do have their response to this particular suggestion.
1113. Their response to this suggestion is not the suggestion you are making to us. It is just to the legislation. You are explaining to us why the legislation. Has anybody ever explained that to the Government?
(Mr Ray) I do not think that has been tackled. LACOTS as I understand it may have tackled it but generally HHSRS is not a bad system. It is good to be able to prioritise things.
1114. But it is cumbersome.
(Mr Ray) Yes, it is incredibly cumbersome.
1115. CHAIRMAN: If I can just interrupt, the departmental representative will be talking to their submission later on, so I think we might be able to pursue that particular line at that stage.
1116. LORD BEW: We are trying to get at how much improvement there might be and so far we have been concentrating on time and so on. I wonder if you could - and this might be a unfair question - explain to us precisely, of the cases where you have worked at have you ever thought, "We ought to be intervening there. We are really not because the nature of the system prioritises other types of activity"? If you could just talk through it about, "We really should have done that and it has not been done", I would be grateful.
(Mr Ray) Okay. I think you are after examples of things I have had to effectively walk away from.
(Mr Ray) That I would not walk away from if we had this.
(Mr Ray) I can think of a few off the top of my head. There was a converted HMO and there is a great deal of dampness within the common parts of the property. This extended also to a vault area that had electrical meters within it. If you look at the pure risk the exposure to the damp conditions is minimal. I would not even score it because there would be no point. The exposure to the electrics is also minimal. Although there is a potential for electrocution it is quite small. I am sure you would agree that if this was in your property you would want it resolved but the rating system does not lend itself towards that. It will come out with a very small score and I would have to go through this cumbersome procedure to deal with it. Also, there are grounds for appeal to the RPTS. One of the things they look at is how serious is the risk to health, but it is poor management. This is not to do with the rating system, this is to do with poor management and trying to remedy that. I am sorry we have come on to the Rating System but I think we have come on to it because we are being directed towards it and do not think it is appropriate.
1119. LORD BURNETT: This type of frustration on your part is reasonably common?
(Mr Ray) Yes, HMOs, for the big problems it does not matter because we go down the Rating System, but for the minor infringements, for example, HMOs, generally if we have been there, they have a fire detection system. If they have not tested it recently, they have to provide a test certificate. We ask for a test certificate and it is one of the requirements in the management regulations that they do so, but by not testing the system and by not providing that certificate, the actual risk of a fire has not increased all that much because the system may be operated completely adequately. A few years down the line, because they are not servicing it, it could well cause a problem. I should point out that the Rating System is not a snapshot, it is a 12‑month assessment, but we are looking at poor management over a longer period as well as that 12 month period. Can I make one point that does illustrate the nature of what we are dealing with perhaps better. Pages 17 to 33 are an improvement notice that I served. You do not need to go through it in detail, but basically there is a covering letter, the actual notice itself. There are two schedules attached, the first schedule is telling them what is wrong and the second schedule is telling them what they need to do. Then there is a statement of our reasons why we are choosing an improvement notice over a prohibition order. Then there is the scoring. Apart from the scoring, all those are statutory requirements to put into the notice pack, so apart from the last three pages, everything we have to put in. We have mocked-up a management notice which, again, is based on fact, it is based on an old management notice that was served under the old regulations. It is page 34 to 39 and just by the sheer number of pages, you can tell that the system is much more efficient under the new proposed system.
1120. CHAIRMAN: Sorry, 34 to 39 is a mock‑up of what it might be if the proposed clause went through?
(Mr Ray) Yes. We specify what should be in the notice. It is not a prescribed form, but we have just made a form up and we have included the schedules and everything else that would need to be in there is within those five or six pages.
1121. CHAIRMAN: Thank you.
1122. MS LIEVEN: The next thing to touch on, Mr Ray, is I think there was a report carried out for the Cabinet Office by Peter Rogers on National Enforcement Priorities for Local Authority Regulatory Services and we have produced an extract from that report at page 12 of the exhibit bundle. I think you just wanted to refer the Committee to one paragraph of that, paragraph 5.35 on page 13. What that says is: "The Housing Health and Rating Scheme (HHSRS) is a fundamental change of approach to housing standards and replaced a well understood concept of housing fitness. It appeared from discussions with Heads of Regulatory Services in the local authority events that little enforcement activity was occurring, however it was hard to establish whether that reflected a huge change of approach that is yet to bed in or some issue about their ability to be effective given the complexity of the law. This may be an area where further work should be given the number of people potentially affected". It is not a huge indicator, but clearly Mr Rogers saw that there was at least initially a problem with the Rating Scheme, is that right?
(Mr Ray) Yes, that is correct.
1123. Let us move on then. I think the next point is an obvious one but if you can just confirm it. Under the management ranks, the only enforcement power is to prosecute. Is that an effective power in your view?
(Mr Ray) I do not believe a prosecution is the way forward in all cases. Sometimes it is completely appropriate but in many cases, particularly with management regulations, the person is not aware of their responsibilities under the management regulations or aware of what needs to be done to correct those problems. If you take into account in order to secure a successful prosecution, there is a really lengthy process, you have to gather evidence, prepare the witness statements, take legal advice, the drafting of court documents and the issuing of proceedings, they all need to take place. If you take into account the time from a prosecution to issuing the proceedings to trial, it is quite a lengthy period as well. It can last several months and during that period, the people who are affected by these conditions will still be living there under those conditions. The remedy of the prosecution is just purely punitive. It does not resolve the underlying issue that you took the prosecution for. The magistrate does not have any powers to deal with the underlying issues of pour management and cannot provide us with an injunction or an interim remedy. It does not solve the underlying problem that we took the prosecution for, it may still be in existence. If you take into account the cost issues of taking a prosecution, both to us and to the defendant, it just increases the administration costs, the cost of the day, it ties up court time and in most cases what we are dealing with is low risks to health and safety, it is a disproportionate response.
1124. Can I move you on to another aspect of this, which is it might be said, why do you need local authorities to take action at all, this is a private matter between landlord and tenant. It may be obvious to Members of the Committee but can you explain why the normal contractual relationship between landlord and tenant is not adequate in this kind of situation?
(Mr Ray) We have touched on this already, but with HMOs they provide an affordable housing option for some of the most vulnerable and disadvantaged groups in society. This includes people on benefits, low incomes, homelessness applicants and those in temporary accommodation. It also includes students and asylum seekers within this broad group. We need to have robust powers of intervention to improve the conditions on behalf of these susceptible and disenfranchised communities within our boroughs. A housing research summary published by the CLG in August 2007 evaluated the impacts of housing of multiple occupation and selected licensing, it states, the most vulnerable tenants are generally in the worst housing accommodation with the worst landlords. It also states that harassment and intimidation of tenants is a problem in all areas, particularly in relation to vulnerable tenants and regulated tenants. Housing advice centres, both those run by local authorities and others like the Citizens Advice Bureau, are always overstretched and the workload is likely to increase. For many of these people living within HMOs, they represent the only affordable option for them. In 2005 the Mayor of London surveyed rent levels within it and found that the average rent level of a HMO was £92 per week. The next affordable option, which was a studio flat with one room and a kitchen, is £150 per week, so quite a leap, over 50 per cent. Therefore, HMOs have some of the most vulnerable members of society who need protection from poor physical conditions and these people will not necessarily know Section 12 of the Landlord and Tenant Act or to go to the Citizens Advice. While standards are very low generally in the private sector, they are lowest within the HMOs.
1125. CHAIRMAN: Sorry, can you slow down a little bit? You are very familiar with it, other people are not.
(Mr Ray) Sorry.
1126. MS LIEVEN: I think it is right also, Mr Ray, that tenants in HMOs tend to have quite a high turnover compared with even other private rented accommodation, let alone any other public sector accommodation.
(Mr Ray) Yes, so there would be less interest in the property overall.
1127. I think probably all the other points we have covered during your answers to questions, but I think there is one point we should deal with to give some comfort to the Committee. Does part four of the clauses allow for an appeal against a management notice and do you want to briefly explain the appeal process?
Certainly. I should explain first of all, all local authorities within
1128. Can I just confirm, that is a specialist tribunal of the Act which would be appropriate to deal with these kinds of notices, is that right?
(Mr Ray) That is correct. The tribunal panel will have a housing professional, a legal professional and a lay member and they will make the judgment on the validity of the notice and whether it needs to be modified in any way. They are the best placed people to make a judgment on housing matters. They have received training in HHSRS and many of them are HOs themselves, so they are the expert panel.
1129. LORD BURNETT: They are independent?
(Mr Ray) Yes.
1130. How are they selected?
(Mr Ray) At the moment through the judiciary courts recruitment process.
1131. MS LIEVEN: I know they are an Article 6, Compliant Tribunal and I will find the provision where their membership is set out. Just finally on the tribunal, Mr Ray, is it right that they already have procedural regulations which allow a fairly quick and relatively informal determination of the issues?
(Mr Ray) Yes. Procedurally, it is much quicker than going through the courts. It is a more informal process and it is by way of re‑hearing as well. What they tend to do is they visit the property in the morning and make a judgment as to how it is on that day and then they decide on the notice. It is a no‑cost jurisdiction as well, so there are a few exceptions, but generally the council will pay their costs and the appellant will pay their costs.
1132. CHAIRMAN: This wonderful tribunal, all things to all people, we are talking about proposed legislation regarding the HMOs, what does it decide on now?
(Mr Ray) It decides on many things, but relevant to this Committee, improvement notices, prohibition orders, licensing of HMOs, management orders if we come across a HMO which is really poorly managed, everything relating to the Housing Act they currently sit on, apart from the prosecution, which goes to the court.
1133. MS LIEVEN: What we have chosen to do under part four of the Bill, my Lord, is simply to adopt the appeal procedures that were created under the 2004 Act, so the purpose of the way we drafted our amendments is that they would slot in quite happily within the existing scheme in the 2004 Act rather than having management notices being appealed to some different tribunal which could make everybody's life more complicated. Just for your Lordships note, the Residential Property Tribunals are established under the 2004 Act under Section 229.
1134. CHAIRMAN: Thank you.
1135. MS LIEVEN: My Lord, that is all the questions I have for Mr Ray, if you would like to stay there for a moment.
1136. CHAIRMAN: I think at this stage, formally we have to ask the petitioners whether they want to say anything.
1137. MR BISH: I do not have anything to say.
1138. CHAIRMAN: I thought that was going to be the reply!
1139. MS LIEVEN: I was not sure, my Lord, I was sitting down. I do not think that Government representative normally ask questions but.
1140. CHAIRMAN: But we do normally have the Government representatives speaking.
1141. MS LIEVEN: Unless the Committee have any other questions for Mr Ray.
1142. CHAIRMAN: I am so sorry, you are absolutely right. Let us ask the Committee first if there are any further questions for Mr Ray.
1143. LORD BURNETT: The limit of the powers you are asking for are powers to serve a notice, if needs be, power to enter to do the works and then to charge and that is it?
(Mr Ray) That is it as far as I know.
1144. MS LIEVEN: Yes, that is it.
(Mr Ray) It would not remove our powers to prosecute as well as serving the notice.
1145. LORD BURNETT: You would have to elect which route to take and that is the limit.
(Mr Ray) Well, no, we could do both as is common throughout the housing Act.
1146. But this Bill enables you to serve a notice, enter the premises if needs be and then do the work and recover it from the landlord?
(Mr Ray) That is entirely correct.
1147. And that is it?
(Mr Ray) That is it.
1148. MS LIEVEN: Just to make that point absolutely clear, there is no criminal sanction in the Bill, so if somebody fails to abide by a management notice, there is no criminal sanction for that breach. It is open to the authority to go back to the primary legislation, the public legislation in Section 234, and prosecute under Section 234 but that would not be on the narrow basis of there being a breach of the notice.
1149. LORD BROUGHAM AND VAUX: You might have said this but I missed it, who is likely to own some of these buildings?
(Mr Ray) It varies. You have quite a lot of them within one ownership, there would be one private owner who has a HMO or he has a couple of HMOs. There are not large chains of landlords, if you will, these are independent landlords as opposed to the big ones.
1150. CHAIRMAN: Any further questions for this witness? Mr Bish, you said you did not want to question the witness, is that correct?
1151. MR BISH: I have no questions for the witness.
1152. CHAIRMAN: Then I think you may stand down.
The witness withdrew
1153. MS LIEVEN: Having got the procedure right, my Lord, that completes my case.
1154. CHAIRMAN: Thank you, Ms Lieven. Mr Bish, do you want to make any closing remarks.
1155. MR BISH: Like my friend, Dr Rawlings, we rely on our initial petition and the Government Department's case insofar as it has been submitted and put in front of your Lordships.
1156. CHAIRMAN: Thank you. Then I think the next sequential thing is to ask the Government representative if they would like to give us their words of wisdom.
MR LLEWELLYN: Thank you, my Lord. I am a Simon Llewellyn. I am
the Head of the Private Housing Management Condition Adaptations Division
within Communities and Local Government. Within my division is policy
responsibility for the housing, health and safety rating. That division covers
policy responsibility for the Housing Health and Safety Rating regime and also
for the licensing regime. We cover
general government policy in relation to private sector housing. The Chairman of the Committee will have
received a letter from the Minister for Housing and Planning, setting out her
opposition to part IV of the Bill on the basis that we would maintain those are
already sufficient powers, as we have heard already today, and also having
1158. CHAIRMAN: Mr Llewellyn, just half a second there to make sure all members of the Committee have this. It is a blue tab two in the red folder, I think.
MR LLEWELLYN: I thought you might find it helpful if I provided a
brief background to the provisions contained in the 2004 Act as seen from the
Department's overall policy towards ensuring decent standards in the private
rented sector. It was deliberately so
that the 2004 Act introduced a range of measures that sought to improve
management standards and conditions of private rented accommodation such as
HMOs, so the 2004 Act should be seen as whole package. In bringing forward this legislation, we took
a measured view as to the appropriate amount of regulation required in the
sector and empowered local authorities to act
to secure decent standards on both a statutory and voluntary basis, so
there was a deliberate decision in the passage of the Bill to remove the
provision about which we are discussing today.
The 2004 Act introduced mandatory licensing of the larger higher risk
houses of multiple occupation and also provided for local authorities to have
discretion to extend licensing of houses of multiple occupation and private
rented accommodation to other areas of their area and these could be used to
address particular management problems where they exist in smaller
properties. As we have heard today, the
Act also introduced the management regulations for all houses in multiple
occupation regardless of whether they are licensable which local authorities can
use to take action where they find management problems in specific
properties. As we heard, while a notice
cannot be served, they can prosecute and the maximum fine is Tariff 5 which is
£5,000 currently. Ministers gave
priority to dealing with high risk HMOs.
1160. CHAIRMAN: Give us that figure again.
MR LLEWELLYN: 8,713
licensable houses of multiple occupation.
That is based on information provided by
1162. CHAIRMAN: So we can be quite clear, is the 3,030 part of the 4,141?
1163. MR LLEWELLYN: Yes, it is part of 4,141.
1164. CHAIRMAN: If 4,141 applications have been received, of which 3,030 have been granted, it is leaving in round figures another 1,000 still under review?
MR LLEWELLYN: Exactly, and over 4,000 where applications have not
been received. The legislation gave a three-month period, I think from memory, for
applications to be submitted after commencement, which was
1166. CHAIRMAN: Again if I can interrupt you, and I am dealing very broadly, it sounds as if approximately 50 per cent of the total number, both right across the London boroughs and also Kensington and Chelsea as it happens, of the total applications have been received?
1167. MR LLEWELLYN: That is correct.
1168. CHAIRMAN: And then there are variations as to how many of those applications have or not been granted?
MR LLEWELLYN: That is correct and what government considers to be
the worst condition properties and where it was confirmed that vulnerable
people would be living. We believe that
rather than encouraging landlords to take action, if part IV of the Bill were
accepted, that it is a charter for bad landlords to presume no action is
required because the local authority would ultimately step in and undertake the
work on the landlords' behalf, and you have heard today how one of the key
elements of the notice is the undertaking of the work in default by the local
authority. This is undertaking of work
which is seen to be of lesser importance and of a more minor nature. We believe this undermines our broader
objective that landlords should take a professional approach to their
business. We would argue that this is
recognised in the encouragement Communities and Local Government give to the
accreditation of landlords and the establishment of a landlords forum in a local
authority area. We are pleased that
1170. LORD BROUGHAM AND VAUX: Could you repeat that?
MR LLEWELLYN: Yes, it is called the London-wide landlord
accreditation scheme. There is an
1172. CHAIRMAN: Those last statistics, they are nationwide?
MR LLEWELLYN: They are
nationwide. I think they are for
1174. CHAIRMAN: What was the date of this report again?
1175. MR LLEWELLYN: The date of the report would be February 2008 and it is called "The Chartered Institute Housing Survey of Local Authority Regulatory Activity Under the Housing Act 2004".
1176. CHAIRMAN: Could you repeat the figures again that you said?
1177. MR LLEWELLYN: In terms of a category 2 hazard the report suggests that 83 out of 124 local authorities responding used the HHSRS enforcement route for category 2 hazards alone.
1178. CHAIRMAN: Thank you.
1179. MR LLEWELLYN: It gives a very considerable amount of data in relation to enforcement activity. I would not seek to take the Committee through that in detail.
CHAIRMAN: Does the report include or exclude
MR LLEWELLYN: It does, it
CHAIRMAN: If the report
1184. CHAIRMAN: I want to get a feel for the weight.
1185. MR LLEWELLYN: The weight is that this is national legislation, so 124 authorities, and we generally say there are roughly 300 housing authorities, maybe 320 or so, in England so it is about a third response, which statistically is a good response.
CHAIRMAN: Out of the 124 -
I want to be clear on this - how many were
MR LLEWELLYN: I think it
is nine but I could check that for you. It is important that I think weight is
attached to the view of the Chartered Institute, the professional body for
environmental health officers. We have
heard today about the national HMO network and I suggest generally they
comprise of officers in local authorities who deal with HMO activity. I was privileged to speak their annual
1188. In terms of work in relation to the legislation, the Committee may be interested to be aware of a number of other points in relation to issues raised this morning. Mention was made of the Rogers Review and this is the review undertaken in relation to enforcement activity by Peter Rogers who was, I believe, the Chief Executive of Westminster City Council. The Committee will want to be aware this review was undertaken within the first year of activity of this legislation, so the report was actually published in March 2007, this legislation came into effect in April 2006, therefore the research for the report was done in the very early days of the commencement of this legislation. In personal discussions with those working on the Rogers Review we were able to confirm not with pride but with fact that the information they sought did not exist because the legislation was so new and that actually when they were seeking evidence in relation to the use of the Housing Health and Safety Ratings System, given it had come in less than nine months before, that information was not available to the Department. Also the Chartered Institute make reference to the Rogers Review and suggest that it is perhaps premature to dismiss the existing legislation and the information recorded. In terms of the Chartered Institute information, there is a suggestion within this - and I do not have the figures in front of me - that regulatory activity in the last year of the previous legislation and the first year of implementation of the new legislation was not dissimilar. So there has not been a significant fall-off in terms of regulatory activity, and I précis that almost all those that did this activity under the old legislation do a similar activity under the new legislation. For the department - and it is important to stress the department takes validating their legislation seriously - it requested that the Building Research Establishment did a baseline study of the condition of HMOs and the management activity and local authority activity in relation to HMOs prior to the introduction of the 2004 Act provisions. That baseline survey was important to us because we had intended, and have now, approximately, I suppose, about five months ago, asked the Building Research Establishment to undertake a further piece of research validating this legislation against the activity prior to the 2004 Act. That was a commitment given to Parliament during the passage of the legislation and one can take it forward. We expect that research to report in April of next year.
1189. In terms of the private rented sector generally, the Committee may be interested to be aware that the Minister for Housing and Planning has commissioned a review of the policy in relation to the private rented sector. This was announced on 12 December 2008, and Julie Rowe and David Rose of the Centre for Housing Policy at the University of York have undertaken an independent scrutiny of our policy in relation to the sector, and how best to take forward policy into the future in terms of the Government's view of the sector. That independent report will be submitted to government in October, and it was announced that our initial response to that report would be part of the Housing Reform Green Paper to be published towards the end of this year.
1190. Coming back to the activity of local authorities, as I would suggest to the Committee, the department believes that either local authorities should use the statutory route to enforce where there are the worst conditions, such as mandatory licensing, or discretionary licensing, which are open to local authorities including London authorities, or that they should be going through a more informal route. Again, the research by the Chartered Institute suggests that the majority of activity both before and after the Act is actually secured through informal activity rather than serving notices. We believe that using routes such as accreditation and such as landlords are actually more productive and less cost-intensive and management time-intensive. I am happy to take questions on this.
1191. CHAIRMAN: Thank you, Mr Llewellyn. Can I just ask two? I am sure other Members of the Committee would also like to ask questions. The two props, if you like, in the letter that we have (the two props from government), one is that the 2004 Act covers the problem anyway ----
1192. MR LLEWELLYN: Yes.
CHAIRMAN: The second prop is that you do not like the
idea of one set of legislation for
MR LLEWELLYN: I think it would be difficult from the
department's point of view to argue justification for why there would be a
different regime in
1195. CHAIRMAN: My second question may be a bit difficult for you to answer. You have given us information about the Green Paper coming out at the end of this year. Would you anticipate that that Green Paper would favour a national scheme along the lines of the proposed clause 4?
1196. MR LLEWELLYN: I would be surprised if, at the moment, that would be a consideration. The general view of both the Chartered Institute of Housing and our stakeholders has not been to push for any such legislation. The question was asked of Mr Ray earlier whether any formal submission had been made to the department in relation to this, and the answer was no.
1197. CHAIRMAN: Thank you. You have answered my third question before I had a chance to ask it!
1198. LORD BURNETT: I am bound to ask this question: what direct management responsibilities do your department have, if any, in relation to HMOs?
1199. MR LLEWELLYN: We are the policy directorate in the department. It is not for government departments, as such, to manage. The powers are given to local housing authorities, so you will see in the 2004 Act that it is Parliament giving local housing authorities the statutory duties. I am responsible for the residential property tribunal that you were hearing about earlier, and the management of that tribunal, and the appointment of members to that tribunal and its chairs, are the responsibilities of both our Secretary of State and the Lord Chancellor.
1200. LORD BURNETT: I anticipated the first part of the response and I am grateful for the point you made about the tribunal. So you do not have any direct responsibility for managing HMOs at all; you are making the laws for local authorities to do that.
1201. MR LLEWELLYN: We make the laws for the appropriate authorities. In English legislation the appropriate authority is always the local housing authority.
1202. LORD BURNETT: Thank you. Could you please elaborate more (because I slightly missed it) on how these proposals diverge from the Government's more central philosophy?
MR LLEWELLYN: The Government's more central philosophy,
basically, is worst first, and those at greatest risk first. The point I made is that within
LORD BURNETT: Finally, what weight does central government
give (your minister and officials) to the fact that these proposals are being
promoted by all 33
1205. MR LLEWELLYN: I would suggest that if it was the problem suggested in that statement a submission should have been made to government first - if there was a belief that there was a problem. At no pint in time has any submission been made to government, nor have we had any individual local authorities coming and requesting this power. The Chartered Institute of Environmental Health, which is the professional body for the practitioners in this field, are not seeking to support this provision, and have not approached us. Their report does not raise this and their President, who is coming in to see our housing minister in the near future, has not raised this as an issue directly with us. They are very supportive of the Housing Health and Safety Rating System and believe it does not affect their job (?).
1206. LORD ACTON: I was not quite clear from what you said. We have heard quite a lot this morning about the word "cumbersome". I do not know if the word "costly" was used, but the relative expense of the two choices. What do you have to say about that?
1207. MR LLEWELLYN: I think the figures that we used were necessarily the correct assumption because you were talking about the cost being cut, I think, from £400-and something down to £250 to £290, and the suggestion was that this was a reduction of a third in time. We are taking three hours out of 11 hours overall. I do not think it is a greater cost saving but that cost saving (a) can be charged to the landlord and (b) is actually on the back of providing a lesser product to the landlord. So it is a less thorough system.
1208. LORD ACTON: I heard you say that.
MR LLEWELLYN: The provisions are that a local authority
should go through a very rigorously tested and developed risk based
analysis. The Housing Health and Safety
Rating System was not something dreamt up overnight by civil servants; this was
a regime that was commissioned, initially, from the
LORD ACTON: In other words, you are saying that the money
1211. MR LLEWELLYN: I think it would be justified but I do not think it is a proven case that the money is saved. We have not seen firm figures in relation to that, and here we are talking about a local authority which is choosing to go and do works that are of a lesser import than those that are out there within their area waiting for action to be taken.
1212. LORD ACTON: Thank you.
1213. LORD BEW: Mr Llewellyn, first of all to revisit something which related to the issue raised by my Lord Chairman, the future thinking of your department. Did I understand it correctly that you said you had an independent academic review?
1214. MR LLEWELLYN: Yes, Dr Julie Rowe. She is a respected academic from the Centre for Housing Policy. She has done a considerable amount of work in relation to the private rented sector.
1215. LORD BEW: Is the report going to directly address the sort of issues we talked about today - the worst first policy and so on?
1216. MR LLEWELLYN: Yes, it will look at the whole of the private rented sector in terms of both the legislation and in terms of issues such as retaliatory eviction raised by the Citizens Advice Bureau and in terms of issues raised in Law Commission reports and by both our department and the Ministry of Justice in relation to tenure, and it will look at how we take the policy forward to make it an appropriate tenure into the future.
1217. LORD BEW: Thank you. The thrust of much of what you said was that, actually, the existing system is working quite effectively. Are you saying that you do not really recognise the picture we have heard described earlier in the morning, at one point, which suggested that the sheer complexity of these regulations meant that at the extreme end there was a possibility that authorities could not deal with it at all, and that there was follow-up training, and so on. That was given as an extreme example, with no evidence at all of activity under this legislation, but are you saying you do not recognise that the problems out there are of any significance at all?
1218. MR LLEWELLYN: In terms of applying the legislation?
1219. LORD BEW: Yes. You say the picture is broadly satisfactory.
1220. MR LLEWELLYN: Yes. When I last discussed this with the local authority co-ordinators of regulatory services, and they are from the LGA family, the view was that implementation was going forward but, of course, as with any new system, there had been issues initially because you are learning a new approach. Actually, this had bedded down and was working effectively. The suggestion to me, and I shared it with you earlier as an anecdote rather than as an evidence-based statement, was that local authority officers had moved away from a handheld computer that they were given initially and had found it more useful to do it in a manual way. They found that an easier way and found it contributed, also, to the ease of transferring over to the new system. There has been, as I say, no suggestion coming back to us of a problem here. I have to say, we mentioned the Building Research Establishment work in relation to HMO licensing; a similar commitment was given to Parliament in relation to the Housing Health and Safety Rating System that within three years of the commencement the department committed to a review of its operation. That is not something we are planning to do in this financial year, but it is in our list of potential research projects for the next year.
1221. CHAIRMAN: Are there any other questions from the Committee? Ms Lieven, I am going to read out the procedure, so everybody is quite clear.
1222. MS LIEVEN: I have read it, my Lord.
1223. CHAIRMAN: You are not permitted to cross-examine Mr Llewellyn. If you do wish to ask questions you must seek my agreement and those questions can only be put through me. Mr Llewellyn, as a departmental representative, is entitled to refuse to answer any questions if he thinks he is being cross-examined. I will just, if I may, caution you not to try and cross-examine by a series of questions through me because I think I will be able to hoist that one on board. However, if you want to ask questions, please ask them of me and we will see how we get on.
1224. MS LIEVEN: My Lord, I struggled a little to understand what cross-examination was other than asking questions. I certainly do not want to ask any hostile questions at all, but there are a number of factual issues which I think it is important the Committee know, in the light of what Mr Llewellyn said, which, if I may, I will put through you to see whether Mr Llewellyn wants to comment on them.
1225. CHAIRMAN: Can you group them?
1226. MS LIEVEN: I can group them, my Lord, yes.
1227. CHAIRMAN: I think that might be sensible and maybe we will take them fairly slowly so Mr Llewellyn might like to take a note of what the questions are.
1228. MR LLEWELLYN: Mr Llewellyn might have to get his pen!
1229. CHAIRMAN: I trust there are not too many.
1230. MS LIEVEN: No, there are not too many, my Lord, and I will keep them as short as I can. I will put the point to you, my Lord, and you can decide whether it is appropriate, then Mr Llewellyn can decide whether he can answer it. There was reference to the position of the Chartered Institute of Environmental Health, who are the professional body for environmental health officers. There were two points I would like to make through you about that. First of all, to establish that Mr Llewellyn referred to a survey, and he said it was the Chartered Institute of Housing that carried out ----
1231. MR LLEWELLYN: Environmental Health. I am sorry.
1232. CHAIRMAN: I think this is very helpful. It is not terribly official but it is helpful. So that was a slip of the tongue?
1233. MR LLEWELLYN: It was a slip of the tongue. There are two Chartered Institutes, of Housing and Environmental Health. I apologise.
1234. CHAIRMAN: So the report was by the Chartered Institute of Environmental Health.
1235. MS LIEVEN: Which was the body, the Committee will remember, that Ms Potier came from yesterday. The other point on that Institute is that Mr Llewellyn said that they were not supporting the proposal. My Lords, if I can have passed round their consultation response, that is actually wrong. I will pass one directly to Mr Llewellyn, if I may. (Same handed)
1236. CHAIRMAN: I have a feeling the water is getting a little deep. Let us go on for a minute.
MS LIEVEN: If I tread over anybody's toes, please
say. This is the response of the
Chartered Institute of Environmental Health to the consultation on the Bill
proposals. We have just copied the page
which is relevant to the HMO issue. What they say is, "4.1 The creation of the
Housing Act 2004 has removed the power (which previously existed under the 1985
Act) for a
1238. CHAIRMAN: Do you recognise that document as part of that response?
1239. MR LLEWELLYN: I recognise it as their response to the consultation on the proposal of the London Local Authorities Bill because it says so. It is not a document I have seen before and it is not a document that has been submitted to the department. It is also not a sentiment that is within their own survey in relation to the 2004 Act, and I would expect the CIEH to respond in such a way in terms of a document because in a way they are being asked to support their member in a particular field that they would want and that would be an expectation of that trade body. I think if they believed it in a way that was unprompted they would have made submission to the department and I repeat the fact that they have not made any submission to the department in relation to this.
1240. CHAIRMAN: Just one question if I may. The date of this is October 2007. The date of the report I think you said was February 2008?
1241. MR LLEWELLYN: February 2008, so they could, if they had wished, make the point in this report that there was an omission in terms of the legislation and that it was missing an opportunity and they did not choose to make that point to the wider world.
1242. CHAIRMAN: Thank you. I think that is as far as you should go on that one.
1243. MS LIEVEN: Absolutely. I just want to clarify the point on the survey, but please tell me if I go too far, which is that I think Mr Llewellyn is clear that the national response to the level of enforcement activity was not quite the same as the London response, and I think the implication of what he was saying was that actually in London there was less enforcement of category 2 houses than in the rest of England. That was my understanding of what he was saying but it was not entirely clear. Is that right, Mr Llewellyn?
MR LLEWELLYN: No, that is not correct. I was not saying I did not have that information. I was answering questions in relation to what
percentage of those who had responded of the 124 were
1245. MS LIEVEN: I will leave that, my Lord. There is just one other factual area I think it is important the Committee understand. Through you, my Lord, my instructions are that only five per cent of HMOs in London are licensed and in Kensington and Chelsea the figures we actually have are that 200 are licensable, that is, eligible for licensing, and 150 are licensed, so there are 50 still in the pipeline, and that is out of a total just in Kensington and Chelsea of 4,000 HMOs. I have not done the maths but it is about five per cent in Kensington and Chelsea. The point is that the vast majority of HMOs are not eligible for licensing under the 2004 Act scheme.
CHAIRMAN: I must say, before Mr Llewellyn replies, I am
getting quite confused on those but, Mr Llewellyn, you gave us a figure of
1247. MR LLEWELLYN: Of licensable HMOs, and it is important to -----
1248. CHAIRMAN: Are we comparing like with like?
MR LLEWELLYN: I can clarify this point if that would be
helpful. What we are saying is that
local authorities complete a return to the department and this is called the
Register of Licensable HMOs, and this is based on information that they are required
to collect by statute. As of 3 July the
return to the department says that local authorities in
1250. CHAIRMAN: So we are way out on the figures.
1251. MS LIEVEN: My Lords, there is a perfectly simple explanation. Only a tiny proportion, something like five per cent, of all HMOs are eligible for licensing.
1252. MR LLEWELLYN: Are required to be licensed.
1253. MS LIEVEN: So the 8,000 and something that Mr Llewellyn quoted -----
1254. CHAIRMAN: 8,713.
MS LIEVEN: ----- is about five per cent of the total HMOs
1256. CHAIRMAN: So the point you are trying to make is that both the 2004 Act and the proposed clause 4 would impinge on all HMOs, not just licensed HMOs?
1257. MS LIEVEN: Absolutely, my Lord.
1258. CHAIRMAN: Thank you. I just want to get it clear. I am not taking one side or the other. I am trying to get the statistics right. Is that fair, Mr Llewellyn?
1259. MR LLEWELLYN: Yes. The point that I was making, which is a separate point, was that Government policy was that the worst properties should be dealt with first and the legislation prescribes that the worst properties are those that should be mandatorily licensed, so they are your five per cent of HMOs. The legislation then recognises that there are potentially other categories and puts in place provision for local authorities to declare discretionary licensing schemes where they feel that there are problems. The number in terms of HMOs nationally, and I think this is also an important point, is that in terms of information which has been given to us but we do not quote it as reliable any more is that it is about ten per cent in terms of the information that London authorities have given us. Ten per cent of HMOs are those that require mandatory licensing, not five per cent.
1260. CHAIRMAN: I doubt if the Committee's decision is going to be influenced as to whether it is five per cent or ten per cent.
1261. MR LLEWELLYN: Exactly.
1262. MS LIEVEN: Mr Llewellyn suggested that it was the worst HMOs.
1263. CHAIRMAN: You are veering towards cross-questioning. Please be careful.
MS LIEVEN: My Lords, let me put it this way. My instructions are that in Kensington and
1265. CHAIRMAN: With respect, I think you are flogging a dead horse. We have established that it is somewhere between five and ten per cent and I do not think as an overall consideration, and I hope my colleagues will agree with me, that that is going to influence the Committee's decision one way or the other. Can we just drop that particular point?
1266. MS LIEVEN: Absolutely, we will drop that, my Lord. The last point relates to Mr Llewellyn's suggestion that our proposal will support poor landlords because what will happen is that the boroughs will step in and do the works themselves and what the Government wants to encourage is landlords taking responsibility and carrying out their own repairs, and I just wanted to put, through you, my Lord, that -----
1267. CHAIRMAN: I think you are straying. This is not fact. We have heard the evidence.
1268. MS LIEVEN: It refers to a fact.
1269. CHAIRMAN: Well, try me but you are trying me.
MS LIEVEN: The last fact, my Lord, is that Kensington and
1271. CHAIRMAN: I take your point but I think we will just leave it there and I do not think I am even going to ask Mr Llewellyn to confirm or deny that.
1272. MS LIEVEN: I am very grateful for your Lordships' indulgence.
1273. CHAIRMAN: Thank you very much. Are there any further questions of Mr Llewellyn on this? (No response) We will see how far we can get on deliberation if the room could be cleared. We will return at . At least be available for . The Committee may or may not still be deliberating.
At Counsel and Parties are directed to withdraw
and at are again called in
1274. CHAIRMAN: Good afternoon. Could I do a reminder of mobile phones again? As you will see, Lord Burnett is not in his place. He apologies, he will be with us within 15 minutes but the rules of these committees do allow us to continue four strong, unless there are any objections. The Committee have considered the evidence this morning under part four and we concur with the proposal's intention without amendment. We therefore move to clause 23, do we not?
1275. MS LIEVEN: We do, my lords.
1276. CHAIRMAN: Ms Lieven, if you would like to get us underway.
1277. MS LIEVEN: Yes, I will do my best, my lords.
1278. CHAIRMAN: Sorry, before we start there, I do beg your pardon, I understand that you have received, or if you have not you are about to receive, our Counsel's proposed draft to deal with the Scores on Doors situation, which clearly you are going to look at, we as a committee are going to look at, I propose that we address that first thing tomorrow morning, assuming that we are going to go on tomorrow morning and if not, we will do it this evening. Is that all right? Is that enough time for you?
1279. MS LIEVEN: My Lords, I understand that it needs to be shown to the petitioners and see whether they have any representations to make on it, so I am not sure whether we will be ready to do that by the end of today. I think Mr Lewis is handling that. I am hoping we will finish clause 23 today.
1280. CHAIRMAN: So are we!
1281. MS LIEVEN: Perhaps we can take stock at the end of the day as to whether we are in a position to deal with the amendments then or not?
1282. CHAIRMAN: There is a practical problem and that is if we do finish clause 23 today and we cannot embark, as I understand it, with street trading, internet street trading, for which you will not be the counsel, we would be reluctant to have to meet tomorrow morning just hopefully to rubber‑stamp the draft.
1283. MS LIEVEN: Indeed. My understanding is that it may not be necessary to deal orally with the amended clause, assuming that we can get hold of the petitioners and see any comments from them. It may be possible to just deal with the Committee meeting without us being represented. What I do not know is what the position is on street trading. (Counsel took instructions). My instructions are it is very unlikely that the Committee will need to convene on street trading and Mr Lewis says that we should know by the end of the day.
1284. CHAIRMAN: This news gets better by the minute. Have you got any more!
1285. MS LIEVEN: Because I am not instructed on it, I have not been involved at all in the discussions, so I cannot give any percentage chance or explain at all what is going on. If we come back to the position on that and the position on the draft additions to clause 10A at the end of the day, then perhaps we can decide whether the Committee needs to meet tomorrow at all.
1286. CHAIRMAN: Let us see how we go. We have two variables, which I had not realised about the second variable, which sounds most welcome.
1287. MS LIEVEN: I understand in any event, as your Lordships on the HMO provisions have not accepted the Government position, there has to be a set of reasons for that.
1288. CHAIRMAN: A report, yes, there does, but that does not affect you.
1289. MS LIEVEN: No. My Lords, in those circumstances, shall I move on to clause 23?
1290. CHAIRMAN: I think that is an admirable idea.
MS LIEVEN: Clause 23 is to deal with a discreet problem which has
arisen under the new licensing regime in the 2003 Licensing Act. It is quite complicated, but it is a very
small and discreet problem. I will try and explain the licensing situation generally.
Before the 2003 Act, the licensing of public entertainment in
1292. Under the Local Government Act 1963, local authorities could impose standard conditions and routinely one of the standard conditions was what was known as a "no nudity condition ". This clause is all about no nudity conditions. That condition was routinely imposed on premises applying for a public entertainment licence, unless they expressly asked for a waiver. If you actually wanted to have striptease on your premises, then you had to ask for a waiver from the no nudity condition. That was the standard way it was dealt with.
1293. The Licensing Act 2003 abolished public entertainment licences and introduced a different regime for what was called "premises licences" which included regulated entertainment, including music and dance. Premises with existing public entertainment licences had their licences automatically transferred over, that is sometimes called "grandfather clauses", and if that happened, the transfer automatically included the no nudity clause. If you have got a premises that before 2003 had a public entertainment licence, had not applied for a waiver, it would have had a no nudity condition and when the new act came in, the whole thing was transferred lock stock and barrel, but there were a large number of premises who applied for premises licences who had never had a public entertainment licence. I think the most obvious category are pubs. They would not have had a public entertainment licence, probably have to apply for a premises licence. Those premises would not, because they did not have a public entertainment licence, have transferred over a no nudity condition, so they did not grandfather over the no nudity conditions.
1294. On the forms for the premises licence they could fill in, I think it was called "box N" in the form of appendix N, whether they intended to hold adult entertainment. If they said they did intend to hold adult entertainment, then appropriate conditions would have been attached about, for instance, ensuring that there was no acts which could be visible from the highway, from pavements for pedestrians, other issues to control what was going on in the premises. But those premises that did not indicate they wanted to have adult entertainment and were applying for a premises licence anew, the view was taken, based on government guidance at the time, that local authorities should not attach a standard no nudity condition. I think it is fair to say that the problem has arisen in some local authorities but not all and the particular concern is one before the Committee of Tower Hamlets but we believe it has arisen elsewhere as well. A large number of premises which can provide music and dance under their premises licence and potentially adult entertainment involving nudity, but which have no appropriate conditions because the premises licence would allow them to do so and because no standard condition was attached for no nudity, they are effectively free to carry on those kinds of activities without any of the controlling conditions which would have been appropriate.
1295. I have to say, and I think it is best that we completely own up to this, this is a problem that has arisen because of the way the 2003 Act powers were interpreted, it is an interpretation problem, because its particular issue in Tower Hamlets, who had advice that they could not attach standard conditions on no nudity, where there are a large number of these premises, I think Mr Greeno, the witness, will say I think it is something in the region of 200 premises which have premises licences which could potentially show adult entertainment and whether a no nudity condition is attached. I say it was a problem with interpretation because the council has now closed the loophole. For anybody who now applies for a premises licence under the 2003 Act, the council is now applying standard no nudity conditions, but of course if you have already got your premises licence, it is too late, you have got your license without any conditions.
1296. Mr Greeno will explain why Tower Hamlets in particular were so concerned about this problem and tell your lordships about the licensing objectives under the Licensing act and, in particular, unsurprisingly, the objective of protecting children from harm. There is one particular reason why it has become a concern to Tower Hamlets and, indeed, potentially across London, which is the Committee may be aware that there has been a fairly rapid increase in recent times of the number of lap dancing and pole dancing establishments in London in particular. We then get into some really quite difficult territory because if the establishment is what is call a "sex encounter establishment", then there is a separate licensing regime. That is a very strict regime, completely separate to what we are talking about, but the problem is that there is a very unclear line as to what constitutes a sex encounter establishment and what only requires a premises licence. That is a subject which has been the subject of some national debate recently, about whether national legislation should be amended in order to tighten up the provision so that lap dancing and pole dancing might come to be described as sex encounter establishments or the definition of sex encounter establishments might be extended. That is the national debate which the Committee may have seen in the national press. I think there were articles about it even this week. That is not really what we are concerned about, we are not trying to change the definition of sex encounter establishments, the only relevance of that is that it shows that you can have a pretty explicit level of adult entertainment before you go over the edge into being a sex encounter establishment and coming into the much stricter licensing regime.
1297. As the position currently stands, forms of entertainment could be offered of a pretty explicit variety in a large number of premises in Tower Hamlets, and other boroughs that took the same approach to the 2003 Act with no appropriate conditions. I should make entirely clear, as is clear from the Bill, the powers in clause 23 are time limited. What clause 23 allows us to do is to look at those premises where this problem has arisen and it is 23(2) in the filled Bill.
1298. CHAIRMAN: This is page 14?
1299. MS LIEVEN: Yes, 14, I am sorry. Page 14, 23(2). Within six months of the appointed day the borough council can serve a notice under clause 23(5) which triggers the ability to apply the standard clause where appropriate, so effectively we have got six-month window of opportunity to look at these cases, particular premises, again and decide whether or not conditions should be applied.
1300. If I can just deal with one argument put against us by, I think, the petitioners and potentially by the Home Office, although there is still nobody here from the Home Office, which is could the problem not be dealt with by reviewing the licence, because there are powers under the Licensing Act 2003 to review the licence? Mr Greeno, who has many long years of experience in licensing, will explain to you that reviewing a licence is not the easy thing that it sounds like just from the words. Reviews can only be triggered by certain designated people, they cannot be triggered by the council. The council's licensing authority has to be wholly neutral if a review is triggered and, although it is right to say that local residents can trigger reviews, it is the promoters' view that it is very difficult - Mr Greeno will explain this to you - for local residents to obtain a useful review. The system is very resident-unfriendly as far as reviews are concerned and my instructions are, and Mr Greeno can give evidence about this, that there is a strong inequality of arms, if I can put it like that, between the licence applicant who is often represented by lawyers and who can use the complications of the Licensing Act to good effect and local residents who often find the whole system very difficult. In some regimes such as the planning regime the local authority can step in and help the local residents, but in a review under the Licensing Act it cannot because it is the decision-making body, and there is lots of law about how very important it is they stay at arm's length from the parties. We say strongly that the review provisions under the Licensing Act do not solve the problem.
Finally, I should say this is a cross-London provision, it applies to
all the 33
1302. My Lords, in conclusion in opening, it is an important provision but it is a limited one, it is only a six-month power. It is effectively trying to close a loophole which should never have been there in the first place and which no longer arises.
1303. I am going to call Mr Greeno but I do not know if the Committee has questions for me at this stage?
1304. LORD ACTON: I want to try and get it in principle. There are 1963 licences that have been grandfathered in under the 2003 Act, they are all right?
1305. MS LIEVEN: Yes.
1306. LORD ACTON: There are post-2003 licences which have the Act conditions, they are all right?
1307. MS LIEVEN: Yes, they are all right.
1308. LORD ACTON: There are some, Tower Hamlets and others, mainly Tower Hamlets, post-2003 licences which do not have the appropriate no nudity conditions because it was misunderstood?
1309. MS LIEVEN: Yes.
1310. LORD ACTON: Tower Hamlets wants to be able to impose no nudity for reasons which are going to be developed?
1311. MS LIEVEN: Yes.
1312. LORD ACTON: That is it?
1313. MS LIEVEN: That is it. There were two more caveats, I should say, to be sure how limited it is. There are post - I cannot remember the date - but it is 2007 licences where Tower Hamlets spotted the problem and solved, so they are all right.
1314. LORD ACTON: They are all right, it is just a gap between?
MS LIEVEN: It is
1316. LORD ACTON: It is those five years.
1317. MS LIEVEN: Yes, and just to be very clear, if on a post-2003 application you said you wanted adult entertainment, then appropriate conditions would be imposed. These are the people who did not say under the 2003 Act, "We want adult entertainment", but now particularly perhaps in the light of difficult economic circumstances we think there is a real danger that some of these premises might say, "Right, the answer to my fall in turnover is to get in a bit of nudity, have striptease in the evening", or whatever. It is that kind of premises.
1318. CHAIRMAN: Those premises because of their grandfather rights can still do, so that is the loophole?
1319. MS LIEVEN: It is not the grandfather rights, my Lord, no. Under the 2003 Act all they needed was a premises licence, so under a premises licence you can do music and dance.
1320. CHAIRMAN: Provided you do not go as far as a sex encounter?
MS LIEVEN: Provided you do not go as far as a sex encounter
establishment. I am looking for Mr Greeno.
Yes. I do not, I have to say,
claim to be an expert in licensing but
1322. CHAIRMAN: I have one question. I am sure it was a slip of the tongue but I think you said the review procedure would prevent a review effectively because of the nature of the review procedure. My understanding is it would make it very much more difficult but would not actually prevent?
1323. MS LIEVEN: No, that is absolutely right. If you had a very well briefed group of local residents who perhaps had the resources to get a lawyer to represent them and present the case in a certain way, then the review procedures have the potential to deal with the problem.
1324. CHAIRMAN: Thank you. Any other questions before Mr Greeno is called? No, thank you.
1325. MR BISH: My Lord, can I ask a question of you, please. Mr Greeno from Tower Hamlets certainly presented a paper I had sight of before the session took place and I have used for some of my remarks that you will hear later. This document has been copied and I wonder if your Lordships would like to have a copy of it. I do not think it appears in any other bundle.
1326. MS LIEVEN: No. What it is, my Lord, is it is effectively an earlier draft of a proof of what Mr Greeno was going to say. I think my agents served it on the petitioners in order to assist them with how we were going to present the case so I am perfectly content for the Committee to see it, I have no problem with it.
1327. CHAIRMAN: I think if it has been served on the petitioners and petitioners are going to refer to it, we should see it.
1328. MS LIEVEN: I think Mr Bish has copies (Same handed).
1329. CHAIRMAN: Thank you, Mr Bish.
MR PAUL GREENO, Sworn
Examined by MS LIEVEN
1330. MS LIEVEN: Mr Greeno, your name is Paul Greeno, is that right?
(Mr Greeno) Yes.
I think you are a member of the
(Mr Greeno) Yes.
1332. For 12 of those years, the last 12, you have specialised in licensing and crime?
(Mr Greeno) Yes.
1333. During the past 12 years you have been the Council's senior prosecutor and senior licensing lawyer, is that right?
(Mr Greeno) Yes, that is right.
1334. Do you want to explain in summary what is the problem we are trying to address here?
(Mr Greeno) Essentially the problem is that on the public entertainment licences where they have not specifically applied to have striptease but have a no nudity clause. When the Licensing Act 2003 came into force in February 2005 there was a requirement for all of the licensees, both those premises just selling alcohol and those who had public entertainment licences, to transfer over to a premises licence. Any premises that had a public entertainment licence that had a no nudity condition, that condition transferred over. Any premises that had public entertainment licence that allowed striptease, that licence transferred over, they were permitted to continue having striptease but there were appropriate conditions imposed on the licence.
1335. For example, would the conditions potentially have said, "no lap dancing, table dancing or pole dancing"?
(Mr Greeno) No, it would not have said that. What the conditions would have been looking at is the age of patrons who can attend the premises, the age of performers, provisions relating to the safety of performers when they are performing in the premises. It would also be looking at whether or not the activity taking place within the premises could be viewed from outside the premises. For example, if you had an entry door to the premises and when opened you could have a clear view of what was going on, then you could look at either having some form of porch entry system which would stop that or the stage or the performance area would have to be moved away from the entrance doors so nobody walking past could see. If there were large windows on the premises, should they be curtained off, or have some form of non-reflective glass so people could see out and not see in, that type of thing.
1336. Explain to us the 2003 Act and what happened to public entertainment licences.
(Mr Greeno) The public entertainment licences that transferred over either had a striptease waiver with appropriate conditions or had a no nudity condition. What we also had was a large number of types of premises, such as pubs or some restaurants that wished to have late night refreshments, had to apply for a premises licence. Because they did not have an old public entertainment licence, those applications were considered on their own merits. The vast majority of those applications also went through unopposed. What we had is a number of pubs, and it was about 200 I believe in Tower Hamlets from going through the records, also apply for a variation so they were allowed to have music and dance under their premises licence, so in addition to retail sale of alcohol, they can have music and dance. What there is within the premises licence application form was a box called "box N", which is to give an indication as to whether or not you wish to have adult entertainment. Where that box was ticked and somebody indicated they did wish to have adult entertainment, then the local authority would be able to work with the applicant to look to impose a series of conditions that essentially would mean that entertainment could take place but they would be looking very much at protection of children from harm objectives. If it was next to a school, we would want to put controls on when the entertainment took place or, as I mentioned, wished to make sure you could not actually view what was taking place within the premises from outside. What we have at the moment is a number of premises, 200 in total, where they are allowed to have music and dance. They have not indicated that they intend to have any adult entertainment either because they said on box N they did not or they left it blank but could tomorrow or even today start having such entertainment.
1337. Explain to the Committee what the particular harm is that would be caused if those 200 establishments did start having adult entertainment, obviously not all of them but some of them?
(Mr Greeno) First and foremost because the local authority never looked at these premises with a view to whether or not they could have adult entertainment in terms of suitability, we just would not know. It may well be that the nature of the entertainment could be viewed from outside, it may well be that the pub itself is right next door to a children's playground, it could be next door to a school, we would want to know when that entertainment was taking place and what controls the owner of the establishment was putting in place to ensure that people under 18 would not be gaining access. None of those controls is in place so essentially it would be unregulated adult entertainment.
1338. Do those concerns tie in with the objectives of the 2003 Act?
(Mr Greeno) Yes, predominantly with regards to protection of children from harm. You could also look at it from the point of also potentially public nuisance subject to if they do start having some form of entertainment, maybe beforehand they were only playing recorded music but because of the nature of the striptease it is much louder recorded music, is that going to cause a nuisance as well? It would predominantly be protection for children from harm but could potentially also be in relation to public nuisance. There is also a slight issue with regard to crime and disorder. Within Tower Hamlets we do have a well known red light district around Spitalfields and if we were to have a premises operating striptease there, there are already a number of prostitutes in the area. It is rapidly become a residential area, so what type of impact would that have on that particular area and we would need to carry out an assessment on that and that would be very much police led in respect of crime and disorder.
1339. In terms of the objectives under the Act I think it might be worth us looking at the Act. If the Committee can take up the bundle of legislation, it is tab 4 relating to clause 23. At page 124 we have the general duties of a licensing authority. Section 4(2) has the licensing objectives and they are, I think, the matter that you have just covered, Mr Greeno. You mentioned crime and disorder, public space, the prevention of public nuisance and the protection of children from harm. Is that right?
(Mr Greeno) That is right, yes.
1340. And I think it is right that the Government has produced guidance under this Act.
(Mr Greeno) Yes, the first guidance was produced in July 2004. There was also another set of guidance come out in, I think, June 2007.
1341. It probably is not necessary to read it but is there express concern (unsurprisingly) set out in that guidance about the protection of children in relation to establishments with adult entertainment?
(Mr Greeno) Yes. The guidance does refer to looking at premises where there is adult entertainment. It refers specifically to the moral harm that could potentially be caused. What the guidance says is that where you are looking at adult entertainment there are particular areas of concern and conditions that you should be looking to impose.
1342. I do not think it is necessary to look at the guidance. It is self-evident the kinds of things that are covered, but it is in the exhibits pack. Let us turn to the crunch of the issue, Mr Greeno. Why did the council not insist from the outset of the 2003 Act on a "no nudity" clause condition in premises' licences?
(Mr Greeno) It was a slight combination of factors. One was that up until July 2004 it was essentially a draft guidance. Most local authorities had to have in place by February 2005 their statement of licensing policy. Because the local authority had to go through statutory consultation it then had to go through its own committee process before it was ratified by full council, and a lot of local authorities, Tower Hamlets included, had already drafted their statement of licensing policy before the final publication of the draft guidance. There was a bit of guesswork. Most of the work was done by licensing officers. They were predominantly taking advice themselves, quite often from other local authorities and also partly their own licensing group, they put it forward and they took the view that due to the government guidance they did not think they could impose the "no nudity" condition upon premises that were applying for a varied licence that did not already have a public entertainment licence.
1343. If I can ask the Committee to look at the guidance, which appears in the exhibits bundle, which is in the black file, tab C, divider 1, page 2, paragraph 7.5, to some degree why the problem occurred (and it may be historic and relatively unimportant) but, just to read 7.5, "The licensing authority may not therefore impose any conditions unless its discretion has been engaged following the making of relevant representations and it has been satisfied at a hearing of the necessity to impose conditions due to the representations raised. It may then only impose such conditions as are necessary to promote the licensing objectives arising out of the consideration of the representations. However, in order to minimise problems and the necessity for hearings, it would be sensible for applicants and clubs to consult with responsible authorities when schedules are being prepared. This would allow for proper liaison before representations prove necessary." Amongst other things was that paragraph one that led the council to the view that standard conditions should not be imposed?
1344. (Mr Greeno) Yes. At the time they considered that that meant it was mandatory. The council read it as "shall not" as opposed to "may not", so they read it that they "shall not impose conditions" as opposed to "may not".
1345. CHAIRMAN: I am sorry; this is important. This is on the top line of page 77, Ms Lieven, is it? "It may then only ...", and you are saying that they interpreted this as "It shall then only"?
1346. MS LIEVEN: Yes.
(Mr Greeno) It starts on the bottom of the previous page, "may not".
1347. CHAIRMAN: "May not therefore" interpreted as "shall not therefore"?
(Mr Greeno) And they interpreted it as mandatory so therefore "shall not" as opposed to permissive, "may not".
1348. MS LIEVEN: Whether that was a sensible mistake to make or not is probably neither here nor there. Can you explain to what degree there is a problem on the ground in Tower Hamlets around this issue?
(Mr Greeno) The concern is two-fold. First, towards the middle of last year we did have a premises within Tower Hamlets that decided to hold the equivalent of, I suppose, the BAFTAs for the pornographic industry. They had not on their application stated that they would be having any adult entertainment. Quite clearly what would be going on within the premises would have been certain adult entertainment. Thankfully, because of the nature of the publicity around that the local authority were aware before the event took place and were able to work with the applicants to ensure that there would not be a problem. What we have noticed in the past, especially when business gets a bit tight, is that pubs do try new things in order to get more custom and therefore more money. We have had problems in the past where we have had premises that have had a striptease waiver where they have been near to other premises and what they have tried to do is essentially push the envelope of what is allowed very much going from what is adult entertainment into sexual encounter establishments. There have been lengthy investigations into those and they have culminated in criminal proceedings. What we are concerned about is that if you get a local pub that does have music and dance and it suddenly says, "Hang on a minute. We are losing good money. We need to attract a bit more custom in. Striptease seems to work. Let us have some striptease and table dancing and lap dancing on a Friday afternoon or at a weekend or of an evening", and that is what the concern is.
1349. One of the points put against us is that we can deal with all this by way of review under the 2003 Act. What is your view on that as an experienced licensing expert?
(Mr Greeno) I have two problems with a review. First off it is the length of time the review process is going to take, even for one moment assuming that the review was successful you have a period of consultation which is going to amount to essentially four weeks, 28 days. You then have to have a hearing within four weeks of that, so 20 working days, so eight weeks. You then have an appeal process that needs to be followed through, so this activity could in fact be continuing for six months before the review is triggered. Secondly, I have had a number of cases where reviews have been triggered by residents a lone. Those reviews have very much been unsuccessful, the main reason being that a couple of residents have turned up to find that the holder of the premises licence has turned up. Of course, the licence is their financial interest. They want to do everything within their power to keep that financial interest. They have usually attended with legal representatives and those legal representatives have been able to really tie the residents up in knots and there has not been a lot that the local authority has been able to do to help because as a licensing authority we have to be neutral. Where reviews have worked it has tended to be where a responsible authority has also triggered the review themselves or has joined in as a party to the review. For example, if there has been an issue with noise from premises it has always been much more beneficial if there is somebody from environment and health there objecting on the basis of noise because they are looking at it from the point of view, "This is what can be done" as opposed to residents who are saying, "There is a noise", but they cannot really help as to the possible conditions that will be imposed or is there a problem with the structure of the premises, that kind of thing.
1350. I do not want to get into a vast amount of detail on this, but we have highlighted a particular aspect of the problem, being premises moving into the more explicit end of the adult entertainment market. One point that could be made against us is if the premises are actually operating as a sex encounter establishment then there is a wholly separate licensing regime.
(Mr Greeno) There is a wholly separate licensing regime but experience has shown that when we have prosecuted a premises because we say they are engaged in a sexual encounter establishment we end up having a trial and during the trial there is legal argument as well as factual argument as to what was happening and whether or not that crossed the line between what essentially is adult entertainment into sexual encounter. There is no specifically clear definition. The leading case on that is Willowcell(?) and that looks at peepshows. Peepshows are quite clearly under the definition sexual encounter establishments. Where it is striptease we have normally had to have officers going in covert visits to what is happening - how is the performer behaving, and it is a matter of gathering the evidence, possibly interviewing the premises licence holder and then taking the prosecution.
1351. LORD ACTON: Let me see if I have understood that. If it strays into sexual encounter and it definitely strays into sexual encounter then there is a new sort of licence? If it is marginal then the pub might argue that it is not sexual encounter and then you cannot impose conditions and you are stuck. Is that it?
(Mr Greeno) That is it unless you take a prosecution and the prosecution says it is a sexual encounter establishment or a review is triggered, which the licensing authority itself cannot trigger, and on that review the members of the licensing sub-committee determine whether what is happening is a sexual encounter.
1352. MS LIEVEN: Can you explain to us how clause 23 addresses the problems?
(Mr Greeno) What clause 23 will allow a local authority to do is to review those 200 premises and look at the location of those premises. Premises that are likely to trigger a review are those next to schools, those next to children's playgrounds, those that may be in a highly residential area where there are a lot of children, so there are families there. What we will do is we will probably, in the first instance, speak to the licence holder and see if they are on board. If they are not we can then serve a notice.
1353. If you do serve a notice, do you deem that as being something that it is better to do in advance, before a problem arises, or better to wait until, as it were, local residents have complained?
(Mr Greeno) If we were to do it afterwards, essentially closing the stable door after the horse has bolted, the activity is going on and the process of trying to stop the activity or to impose specific conditions which mean there will not necessarily be a problem of protecting children from harm, is a much more time-intensive matter.
1354. Say you are the owner of a pub and you find yourself subject to a review under section 23, are there rights of appeal?
(Mr Greeno) There would be a right of appeal but because we are actually really arguing only a very narrow issue it would mean that any appeal hearing would be substantially shorter than the appeal hearing on the review, and because it is only really one hearing as opposed to a hearing before a licensing sub-committee it is likely that is going to keep down costs as well for a premises licence holder.
1355. Finally, to cover the point I touched on in opening, the Minister in his report to this Committee said that the Government was consulting on the issue nationally, possibly with a view to reclassifying lap-dancing clubs as sex encounter establishments. In your view, should clause 23 be parked until that national review has been undertaken?
(Mr Greeno) No. I think, first, as counsel indicated at the beginning, clause 23 is very much time-limited anyhow. So once it comes into force, essentially, in six months we will review those premises. We are, also, not looking at this being a ban on striptease - far from it. What we are actually saying to the licensed premises is: "Look, if you do intend to have striptease, you need to make sure that everybody is aware so that we can impose appropriate conditions on the licence, to make sure that the licensing objectives are fulfilled, specifically for the protection of children from harm". The other problem, of course, is that currently the Government is consulting on this and that does not mean that it will ever come into fruition. It may well be that somewhere down the line they decide that they will, but that could be 18 months, two years or three years down the line. We would rather be dealing with the problem that we have now as opposed to waiting for a potential change in legislation in years to come.
1356. CHAIRMAN: When did you discover that you had this problem?
(Mr Greeno) I think it was, essentially, last year. When we had the application mentioned for the Trotsky (?) where they were looking at having the equivalent of the pornographic awards, we suddenly realise there is nothing that we can actually do. When they made the application they did not actually state they intended to have adult entertainment. What we could have done, of course, is if we had imposed a no nudity condition we would not have had this problem. They would be coming to us. As it was, we had the problem, thankfully we were aware of it in advance, and we could deal with the premises. We were looking at a large premises for what was an advertised event. A local pub we just do not know; there may be local pubs operating, we do not know, unless we get feedback from residents or other people.
1357. LORD BEW: You have answered the question about what pushed this into your minds as a problem in the past. You have already given some indication of how you would assume in future the concern about creating a more difficult situation close to a residential area, and so on. Could you just very specifically outline the fear, or what you said was the worse-case scenario, that might develop while we were waiting for government to consult?
(Mr Greeno) The worse-case scenario. Three or four years ago under the old regime I had a prosecution. The premises decided to start having adult entertainment and quite clearly crossed the line. There were issues of public safety because, occasionally, when the events were taking place they locked all the customers in and if there was a fire there would be a problem. The nature of the performances were such that they got progressively worse and the performers were essentially being manhandled by the customers.
1358. CHAIRMAN: "Worse" is a pejorative term. I think you mean "more explicit".
(Mr Greeno) More explicit, yes.
1359. LORD ACTON: Obviously, there is no administrative way of dealing with this and there is no other Act in which you can deal with it. You have got to deal with it by way of this legislation.
(Mr Greeno) The only other way the local authority can deal with it is in terms of reviewing the premises' licence, which is not really feasible for us because the local authority itself, as a licensing authority, cannot seek a review of the licence.
1360. In one sense, Tower Hamlets has made a muddle and would like to put it right.
(Mr Greeno) Yes. From what I understand, we are not the only local authority ----
1361. But it stems from Tower Hamlets.
(Mr Greeno) Tower Hamlets has recognised when it made its initial statement on licensing policy that it did not do what it should have done.
1362. CHAIRMAN: Lord Action has asked the question that I was probing when I said: "When did you discover what the problem was?" Let me ask the same question in a slightly different way. Was this, therefore, the first piece of legislation, in your opinion, on to which you could tack what you wanted?
(Mr Greeno) Essentially, yes.
1363. I want to be very clear on this six months, which is clause 23, sub-para 2. I am not quite sure that I am asking you the question or counsel the question, quite honestly, but I will ask both of you. Can you run through that again? You said the clause is time-limited.
1364. MS LIEVEN: It is a legal question. Shall I have a go? My Lords: "No later than the date on which expires the period of 6 months beginning with the appointed day, a borough council may serve a notice under subsection (6) on the holder of the premises licence in respect of premises to which this section applies." So after the appointed day, which is the day the provision is brought into force in a particular authority, there is then a period of six months in which that authority can serve notice under subsection (5) (actually, I think that may be one of the amendments that should have been picked up) - it is subsection (4), I am sorry. So serve a notice under subsection (4).
1365. If you go to subsection (4): "A notice under this subsection is a notice stating that as from the date specified in it the premises licence will be subject to a condition reproducing or having similar effect to a condition set out in subsection (5) specifying the terms of the condition." The condition in subsection (5) is what I call colloquially a no nudity condition. So we have got six months after the appointed day to serve a notice which itself specifies a date in which the no nudity condition should apply.
1366. CHAIRMAN: Could you remind the Committee of the definition of "appointed day"?
1367. MS LIEVEN: I was worried you were going to ask that. It is the day the borough council, the local authority ----
(Mr Greeno) Do you want me to answer this? Basically, the local authority have to adopt provisions. There is a mechanism by which local authorities have to adopt provisions. It has to serve a public notice and it has to, after the council has, by resolution, adopted clause 23, it serves a public notice which ostensibly says: "From this date clause 23 takes effect", and it is from that date the six months will run.
1368. CHAIRMAN: I want to get this quite clear. The sequence of events, therefore, is that in whatever form it may finally be passed, this Bill becomes an Act.
1369. MS LIEVEN: Yes.
1370. CHAIRMAN: Then the councils, one by one, have to approve?
1371. MS LIEVEN: It is clause 3, my Lord. Yes. Individual councils bring it into effect for their borough. The public provision system is you get Royal Assent and then you have commencement orders which can be in respect of different provisions with different dates. The equivalent here is that clause 3(2) of the Bill. "Different days may be fixed under this section for the purpose of the application of different provisions of this Act to a borough". So each borough decides whether it is going to bring the provision into force and on what day.
1372. CHAIRMAN: So Tower Hamlets make a decision as to when they want to bring clause 23 into effect.
(Mr Greeno) Yes.
1373. CHAIRMAN: And that is the appointed day.
1374. MS LIEVEN: Yes.
1375. CHAIRMAN: Then clause 23(2) will kick in as relevant.
(Mr Greeno) Yes.
(Mr Greeno) We should not fail on six months.
1377. LORD ACTON: I would not dream of thinking it would happen in Tower Hamlets!
1378. MS LIEVEN: If we fail on six months it is what I would describe as a Lady Bracknell problem - we might get away with it once but not twice.
1379. LORD ACTON: Point made.
(Mr Greeno) We know which premises the problem exists in, we know which premises we need to serve notice on. Six months is sufficient time to allow us to do that.
1380. CHAIRMAN: You brought up a very important point. You said that there were 200 premises in Tower Hamlets to which this could apply.
(Mr Greeno) There are 200 premises to which clause 23 could apply.
1381. You then went further to say that you would not anything like (my words, not yours) go after all 200; there were just those that are close to schools, playgrounds, heavy residential and so on.
(Mr Greeno) What clause 23 provides is that in order for a local authority to serve a notice it must be serving notice having regard to the promotion of one or more of the four licensing objectives If you have a premises that is in the middle of nowhere, there are no schools within a particular radius, and no youth clubs or families, we probably would not want to take action or need to take action.
1382. How many of those 200 do you expect to take action on?
(Mr Greeno) My suspicion would be probably around about half, but I would not like to say ----
1383. CHAIRMAN: That gives us an idea. Thank you. You are looking for 100.
1384. LORD ACTON: I am slightly puzzled. I understand about the schools, the playgrounds and the residential areas; I understand about fire hazards, but you then said that there were some members of the audience who might interfere with the performers. Surely you need to license for all 200. I do not understand.
(Mr Greeno) We probably would. The problem with that is that if they wish to have adult entertainment we have to look at it from the point of view of one of the four licensing objectives, and the only licensing objective that that could really come within would probably be public safety. It would be that the layout of the premises would have to be considered as well. One of the things that we looked at is in terms of separate changing rooms - are there separate changing facilities. They are the things that can only be dealt with if we know how the premises is going to be operated. What I cannot say to you is what decision Tower Hamlets would make. I know that there are approximately 100 that would fall within the category of near schools, children's playgrounds, youth clubs, etc, and there may be others that would need to be looked at in terms of that, but what we want to do, in the first instance, is concentrate on those that would fall within schools, children's playgrounds and that type of thing.
1385. Quite rightly. May I ask one final question? We have said that it was a guess but you said it was, perhaps, 100. What is the legal position of the other 100? Are they still in the position that if they switch entertainment they can do that?
(Mr Greeno) Yes.
1386. So will not all this happen again?
(Mr Greeno) Yes, it could happen again with regard to those. I think all Tower Hamlets could do is look at the premises that we consider are high risk. We will just risk assess the premises. So where is the risk highest - they are the premises we will deal with first. Yes, we could serve a notice in respect of all 200 premises but what I would not particularly wish to do is necessarily have 200 appeals. Dealing with a premises where there is no issue with regard to it being next to a school, next to a children's playground, next to a youth club, next to a religious establishment or anything else like that, all we are concentrating on is whether or not there is an issue with regard to the safety of the performer. They are going to be the very last ones we are going to be looking at. I am not too sure, if there is an issue with regard to the safety of the performer, there are not other avenues for potentially dealing with that as well. If there is an assault on a performer, then, of course, the police can be involved.
1387. MS LIEVEN: Those are all my questions to Mr Greeno.
Cross-examined by MR BISH
1388. MR BISH: Your last questions have covered some of mine, but could I just cover the point about the worst case scenario which was raised earlier. The circumstances there were definitely unsatisfactory, but were they not able to be dealt with under other legislation, so this would not fall under within the compass of clause 23 here or even the Licensing Act, it would have been under the Sex Encounter Regulations and even more stringent acts of Parliament?
(Mr Greeno) The prosecution was undertaken as they did not have a public entertainment licence at the time and it was also taken for a sex encounter establishment, so it was dealt with as an alternative charge.
1389. Could we just cover again, and I know we have covered it, but this point about the 200 establishments. To remind the Committee, these are establishments with regulated entertainment now, that is the sort of entertainment permission, my Lord, but have not filled in that box 'N' after the transitional period, so these are the exposed premises and they could include restaurants as well, could they not?
(Mr Greeno) It could include a restaurant, providing the restaurant has indicated he intends to have regulated entertainment, ie recorded music and dance.
1390. There will be perhaps some restaurants in that category?
(Mr Greeno) There would be a handful in that category but not that many.
1391. When you are risk assessing in this six-month window, are you going to look at their geographical positioning, as in near the school or near the church, or in their likelihood to, in your judgment, want to put on adult entertainment of some sort?
(Mr Greeno) The difficulty the local authority had with regards to likelihood is that we do not know if the premises itself will change. We may have a premises that has a licence which allows it to have late night refreshments, music, dance and the retail sale of alcohol. There is no reason why that premises cannot take a decision or the premises licence holder, "We no longer intend to sell food, we intend to just have the other three areas the entertainment", there is nothing to stop them doing that. A licence just gives them permission to have a regulated entertainment to sell alcohol or sell hot food after , it is not a requirement that they have to do so.
1392. You talked about this premises that had announced this competition, a sort of reward, but you managed to address it and I think your expression was you worked with the premises. Was it actually a review? Did you introduce a review? Was the review triggered?
(Mr Greeno) It was not a review because the licensing authority could not trigger a review.
1393. No, I said was it triggered because obviously there are responsible authorities that could do that, not least the police?
(Mr Greeno) No, because the police were happy that the local authority actually were working with the organisers of that particular event.
1394. So, it was not a review, but it could have been a review situation?
(Mr Greeno) I doubt it because it was a one-off event, it was not something that would be happening on a regular occasion.
1395. If the situation - staying with reviews - is that what clause 23 is designed to deal with are real now, the only recourse you have is review, is review being used at the moment?
(Mr Greeno) I am not aware that there is a review underway at the moment.
1396. The implication would be that there are not any circumstances arising now that perhaps even clause 23 would remedy.
(Mr Greeno) I would not agree with that. My experience is that quite often local residents are not aware of what powers they have. On a number of instances they have contacted local authorities to make complaints about premises, this is premises that may be causing a noise nuisance, and they were surprised to hear they could seek a review of the premises licence.
1397. MR BISH: Thank you, my Lord.
1398. CHAIRMAN: Ms Lieven.
Re-examined by MS LIEVEN
1399. MS LIEVEN: There is just one point which we should have dealt with earlier. Mr Greeno, are there any particular aspects of the demographics of Tower Hamlets, the nature of the local population which perhaps lead the council to be particularly concerned that local residents may not be very good at seeking reviews?
(Mr Greeno) I think Tower Hamlets has, on the one hand, quite abject poverty
and, on the other hand, it has some quite affluent people. Around
1400. MS LIEVEN: Thank you very much, Mr Greeno, that was my only additional question.
1401. CHAIRMAN: Any there any further questions from Members of the Committee?
1402. LORD BEW: Are you prepared to say that if you do not have the assistance you are looking for, that you could have a significant deterioration of the environment in Tower Hamlets?
(Mr Greeno) Yes, we could have.
1403. It is as simple as that.
(Mr Greeno) Yes.
1404. CHAIRMAN: Let me ask you a corollary to that. If you did not have the facilities of clause 23, would you still be able, albeit you have already said it would be a much more onerous task, to investigate and go after first of all the 100 and then the remaining 100 of your 200?
(Mr Greeno) Yes, the local authority could look at taking action as a licensing authority. The issue there is, of course, it would be a criminal prosecution. If we do prosecute, it will be a criminal prosecution against a premises licence holder who may as well be a designated premises supervisor. In addition to getting a criminal record, that could actually affect their ability to be a personal licence holder, which you need to be a designated premises supervisor to sell alcohol and, therefore, could have much more serious ramifications on their ability to run their own business.
1405. CHAIRMAN: That is a very interesting point. Would you not think that that point, very valid, would be a strong incentive to the licence holder to adjust his modus operandi to fit in with your desires?
(Mr Greeno) No. The reason for that is we have a specific problem within one particular street involving another issue, specifically touting. We have been working with the premises licence holders for the last two years. We have taken a number of prosecutions against premises licence holders and designated premises supervisors and the problem still exists because they are willing to run the risk. There is a lot of competition for customers and anything that gives them the edge, they are willing to run the risk.
1406. CHAIRMAN: Thank you very much.
1407. MS LIEVEN: Thank you, my Lords. That completes my case.
The witness withdraw
1408. CHAIRMAN: Mr Bish?
MR BISH: My Lords, I am not calling witnesses, but just to remind
the Committee, I am Nick Bish, I am
Chief Executive of my trade association, that is the Association of Licensed
Multiple Retailers, which was an organisation set up to promote and represent
the interests of small independent companies within licensed retailing. There
are 92 companies in the membership, between them owning or operating in the
region of 15,000 premises in
1410. The Association was and is part of the Advisory Group in DCMS, that is the Department of Culture Media and Sport, that helped draft the clauses of the then Licensing Bill and the subsequent guidance and regulations. We believe we have a good understanding of the intentions and construction of the Licensing Act and were particularly glad to see that many disparate regulation from earlier legislative instruments assembled as far as possible under a single piece of legislation that improved clarity and coherence for operators and stakeholders under the licensing regime.
1411. Schedule 7 of the Licensing Act, just anecdotally, my Lord, lists no fewer than 40 Acts of Parliament from which bits and pieces of legislation and regulation were extracted and amended and plumped into the Licensing Act.
1412. The Association and its member fully support the four licensing objectives that are the pillars of the Act we heard about earlier and are committed to operating their businesses in a responsible manner according to the letter and the spirit of the law. Nevertheless, we submit that clause 23 in this Bill is not necessary of itself, that it contradicts the guidance of the 2003 Act and that approval of it will set a precedent for introducing licensing regulations under other legislation.
1413. Starting with the last: the ALMR's opposition to clause 23 is not only about the specific circumstances of entertainment involving nudity, it is more about the principle of introducing legislation on matters concerning the conduct of licensed premises, other than under the Licensing Act. As I have said, the industry broadly welcome the assemblage of the various rules and regulations into a single Act with its supporting guidance and regulations. We believe it is a retrograde and unwelcome development to introduce new and standardised conditions under separate legislation, which in this case, not even applicable nationwide but only for a specific, however significant, part of the country.
1414. If this clause were to be approved, we do, for example, foresee circumstances where local authorities or government departments would seek, for the best of intentions, no doubt, to introduce blanket conditions on such licensed retailing issues as 'children in bars' the use of polycarbonate drinks holders, plastic glasses, the requirements to enforce certain age restrictions on entry - 'Challenge 21' is the popular current one - or the requirement for premises to be a member of the local 'Pubwatch', all of these thoughts are current.
1415. For the reasons stated above, the ALMR would deplore a precedent that opened the way to a succession of licence-related conditions being part of other legislation. In the matter of the guidance of the Licensing Act, paragraph 1.15, which I think we have been to, my Lord, there is not need look at it again, states that: "Each application must be considered on its own merits and any conditions attached to licences and certificates must be tailored to the individual style and characteristics of the premises and events concerned". In the same paragraph it concludes with - and this is a part of a sentence - "Standardised conditions should be avoided..." The ALMR believes that operators will understand that if they intend to introduce adult entertainment involving nudity, that they should apply for a variation to their premises licence and be bound by the conditions that can easily be tailored to the individual circumstances of the location and of the entertainment to be offered. There is a box on the application for a new premises licence or a various to one which needs to be ticked if the operating schedule of that business in any way involves the 4th licensing objective, which is the protection of children from harm. We submit that this is the proper way to address the matter, and especially in the light of the unquantified risk, which I will come to in a moment. Guidance to the Licensing Act can and should be amended to make it clear that a decision to offer adult entertainment at a later date than the point of grant should therefore require a variation.
1416. The London Borough Tower Hamlets has proposed clause 23 because according to its notes, which is what I circulated earlier, my Lord, there is a large number of premises not covered by conditions under a transferred or varied licence, that have not indicated they intend to have 'adult' entertainment. We have now learned that this is actually 200, but we did not know that at the time. We certainly do not know the number of premises in that category involving Greater London. What we really do not know is what the number of premises are that could seek to take advantage of what Tower Hamlets describe as the 'loophole'. We suggest that the number of premises defined in this category is very small and these are the ones that do not have a public entertainment licence under the old regime and those with permission for entertainment under the new one did not tick the relevant box. Every other premises either has no nudity conditions attached or may have them imposed if ever they were to seek to have regulated entertainment. In other words, the balance of risk cannot be established because it is only an assumption that any in this category, let alone many, would seek to introduce entertainment involving nudity and we suggest that the case is not made to introduce legislation in the London Bill that should, if anywhere, be an amendment to the Licensing Act or at least part of the revised guidance.
1417. The ability for responsible authorities and interested parties is to seek a review of the licences enshrined in the Licensing Act, so the licensing authority is able to impose conditions on the premises licensed to bring the conduct of any entertainment into line with its published policy. We accept and applaud the fact that the licensing authority cannot itself initiate a review, but Tower Hamlets seems concerned that responsible authorities and interested parties cannot or will not by themselves trigger a review, and we do not understand why the borough should think so. As we have heard, there may be first-language issues that are relevant but this problem applies throughout the legislation, and is no doubt being addressed on a wide front. I know where I live and work in Ealing Council, it makes advice on licensing available in a number of languages and certainly it is not a reason by itself to justify this clause in this Bill. There seems to be a presumption that the review of the premises licence would lead to the revocation or suspension of a licence, we are talking about the prosecution, and this may be true but the licensing authority may equally take the discretion to apply conditions to bring the conduct of premises into line with the requirements of the licensing policy and this is the flexibility we believe the Licensing Act intended in its spirit.
1418. To sum up, the ALMR's contention is that this clause will add no safeguards not already in place for the protection of children and, indeed, will confuse the operation of the Licensing Act by introducing legislation on licensing matters in a separate act.
1419. That is my submission, my Lord.
1420. CHAIRMAN: A couple of questions. I am sure the members of the Committee will have some. One of your reasons, Mr Bish, as I understand it, is that you do not think that variations on a licensing matter should be dealt with other than with an amendment to the Licensing Act? Would that be fair?
1421. MR BISH: It is possible to introduce into guidance. For example, I think I suggested that if a premises wanted subsequently to amend its way of doing things to extend its regulated entertainment permissions into adult entertainment and that entertainment involved nudity, then they should go back for a variation. We believe that guidance is the proper way to address this matter rather than the one-off clause in a time constraint window in a separate act.
1422. CHAIRMAN: Yes, be it guidance or whatever you want, this whole subject to be dealt with, as I understand, under the licensing laws rather than this particular Bill?
1423. MR BISH: Yes, this is the essence of our petition.
1424. CHAIRMAN: Thank you. The second question is you said it was up to premises to tick the box, renew, put something different in the box. Maybe it is a question for counsel. With what frequency are licences renewed approved?
1425. MS LIEVEN: There is no requirement to renew, my Lord. They are indefinite, that is the problem.
1426. CHAIRMAN: They are indefinite?
1427. MS LIEVEN: They are indefinite.
1428. LORD ACTON: If they missed the box?
1429. MS LIEVEN: If they did not tick the box, that is it.
1430. MR BISH: Until they want to change the nature of their business, my Lord.
1431. CHAIRMAN: Yes, and this is the grey area.
1432. MR BISH: There is a part of what they proposed which is described as "the operating schedule" which sets out in broad terms whether this premises is an entertainment or cocktail bar, gastropub or restaurant. If they suddenly wanted to become a discothèque, having been a restaurant, they would then go for a variation and if new conditions were appropriate they would be applied.
1433. CHAIRMAN: I think that is well understood.
1434. LORD ACTON: You quoted some very large figure of pubs.
1435. MR BISH: Yes, my Lord.
1436. LORD ACTON: And then you related it to Tower Hamlets, as I understood it, or have I misunderstood?
1437. MR BISH: No. Those were introductory remarks and I am not saying there were 5,000 of our members in Tower Hamlets.
1438. LORD ACTON: Let me ask you. We have heard there are 200 places in Tower Hamlets that might be affected and we have heard 100 of them might be told they have to have a new licence with boxes to tick and all the rest of it. If there are 100 or 50 or ten of them that are near children do you not think that is pretty important?
1439. MR BISH: It is what they do, my Lord, not where they are physically located. There might be a restaurant.
1440. LORD ACTON: If they are asked to do it because the local authority is of the opinion that they may influence the children, that is pretty worrying.
1441. MR BISH: Yes, my Lord. Our contention is that the Licensing Act and the provisions of Licensing Act with a review and everything like that addresses that problem quite well. Our concern was that we are introducing - I am probably on the side of Tower Hamlets in the matter of nudity and certainly in the protection of children from harm - new clauses and ways of doing things, just having gone through the torrid process of assembling those 40 licensing regulations into a new act, which we played our small part in and then suddenly we are disappearing off down into a new act to try and plug the gaps. Why do we not stay with the Act that exists for that purpose? I would go to the point that you might have a restaurant next to the church but is that going to be top of Tower Hamlet's list or someway down it? I think it must be the intention of those premises to put on adult entertainment, they should first address it. What the witness spoke of was a particular street which was a hot bed of whatever.
1442. MR BISH: I think that is it, my Lord. This is administrative. It is the principle of the thing I referred to earlier just as much as this particular risk and, in fact, we are reassured by the fact this six-month window will settle the matter, though I was interested in your own question to the witness, which seemed to startle him, that the 100 to the 200 jump was going to be necessary but that is for him and you, as it were. Thank you, my Lord.
1443. LORD BROUGHAM AND VAUX: Am I not right in saying the Government were already changing the licensing law by introducing 24-hour licensing?
1444. MR BISH: No, my Lord. Every premises has to have permission to do what it wants to do under the Act and I think our figures show the total effect of the Licensing Act, which was introducing an average of an extra 21 minutes of opening time and we have to distinguish between 24-hour licensing and 24-hour opening. What the papers would have us believe sometimes is 24-hour drinking, which is where we do not want to get.
1445. CHAIRMAN: Thank you, Mr Bish, and apologies again for not recognising your right to read your statement. Perhaps now we can move to the Government representative.
MR DUNWORTH: I do
apologise for lateness. I am John
Dunworth. I am part of the Interpersonal
Violence Team, which is part of the Violent Crime Unit which controls some of
the issues around prostitution and domestic and sexual violence. I think you might have had a conflicting
message from Government, one was that we were objecting or wanting 53 deleted
and then changed our mind on that. The
reason we objected to it was twofold.
There is currently a consultation going on at a national level issued by
DCMS which is asking all local authorities about the issues that have been
addressed by Tower Hamlets and that consultation has not finished yet; it
finishes on 10 August. Therefore, we
felt it was an idea that before any legislative changes were brought it, it
should be after that consultation and not part of a local authority bill but something much
wider. I think that was our key
objection, also recognising that some of the issues that Tower Hamlets have
raised are also of concern to ministers and that is why they initiated the
consultation in the first place. We did
not think it was right to introduce in this Bill so you change practice for
1447. CHAIRMAN: Questions to Mr Dunworth?
1448. LORD BROUGHAM AND VAUX: Under the guidance issued by Culture, Media and Sport it is printed as "may" but the Department's considering it as "shall". Why is that?
1449. CHAIRMAN: I think we are referring to 7(5), are we? Is this conditions attached to premises licence? Is that the one to which "the licensing authority may not therefore impose any conditions"? Is that the one you are after? It is in our black bundle under tab C 1.
1450. LORD BROUGHAM AND VAUX: 7(5).5 "The Department may not therefore impose", and on the next page it says "may" you interpreted as "shall". As you are representing the Government, you may be able to put some light on that.
1451. MR DUNWORTH: I am not sure I can because I am from the Home Office and the Licensing Act is a DCMS issue. What is the suggestion? That the "may" is interpreted as a "shall"?
1452. LORD BROUGHAM AND VAUX: Yes.
1453. MR DUNWORTH: I am not sure that was the intention.
1454. CHAIRMAN: Mr Dunworth, your comments were admirably brief and succinct. Is it the Government's wish to finish the consultative process, come to a conclusion and wrap this particular problem into national legislation?
1455. MR DUNWORTH: Depending on the evidence we get back. There are two things. If it means an amendment to the Licensing Act, then the Licensing Act stands as it is. If it is a change, and I think some of the changes we are after or Tower Hamlets seem to be looking for, what the legislation might mean, it would change the Alcohol Licensing Act into those premises where there are sexual encounters and that is slightly different in legislation. It is whether an amendment to the Licensing Act would be enough or they start to control the lap dancing club under a different form of legislation. That is what the consultation is about, how wide is the problem with local authorities, how do they see that and do they feel they have enough powers or enough powers to control clubs like this in the way they would like to. That is what the consultation is asking.
1456. CHAIRMAN: A difficult one for you to answer, given the position you hold. The consultation finishes on 10 August. Can you give the Committee any thoughts as to how long thereafter it might take for the Government to come up with a conclusion which presumably would be a recommendation of some sort as to what should happen thereafter?
1457. MR DUNWORTH: I would stick my neck out here and say certainly I would have thought by late September/October there should be some publication of the consultation with a view to a direction forward and whether ministers want to take it forward.
1458. CHAIRMAN: If I could finish then; I know Lord Bew wants to come in. I think what you are saying - and I am trying awfully hard not to put words into your mouth because that is not my job - is you have considerable sympathy with the views expressed specifically by Tower Hamlets, but you rather wait and to see whether this could be dealt with on a national basis and you are talking of a relatively short space of time. Here we are on 9 July and you are talking of September, October or at your guesstimate, I take it this is not cast in stone, that you would hope, anticipate, the Government would come out with some statement?
1459. MR DUNWORTH: Yes, there are two things. They are sympathetic and they are mindful of the views of Tower Hamlets but also recognise that that is not the view of everybody. I think that this has got to be a much wider thing. I recognise that there are some local councils that will have problems in this area and they have said that they felt slightly thwarted by the legislative powers they had to either regulate or change important conditions. Other than that we need to know that they are much wider because we are not sure whether legislation is the way to go forward and where that legislation will lie. You are right in saying that there is simply a mindfulness of this in Tower Hamlets but that is not necessarily the Government's position. We need to hear from a lot more local authorities. Certainly I would hope that by the end of September/October there will be a statement about the consultation on what we have found.
1460. LORD BEW: The petitioners argued that there is something inherently unwise about precedent about even a licensing matter outside specifically the Licensing Act in this context. Does the Government have a view on that question?
1461. MR DUNWORTH: I think this is part of the consultation process that we want to take forward, because if it is a licensing issue it is a licensing issue and it can be dealt with by the Licensing Act, but the other views put forward around the nature of maybe a lap dancing club is that it falls out of that jurisdiction and into sexual encounter legislation, which is slightly different. It is a view about where does this best fit because if you look at the Licensing Act and then at a lap dancing club, what a lap dancing club does and what it is meant to do fits in with licensing. It is not sexual encounter. That is not what it is licensed to do and if they do that they are breaking their licence. There is a slight dilemma there about how the Licensing Act is operating and how it is enforced. That seems to be the big issue, how it is enforced and what powers they have and how do you regulate some places over time. I think there is a view that we just want to see where it fits and what local authorities are saying about their practice, about what they are doing, and take some guidance on that.
1462. CHAIRMAN: Would you envisage, Mr Dunworth, that any changes that might be made to whichever Act it might be in whatever form it might be would be by primary or secondary legislation?
1463. MR DUNWORTH: I do not have a view as yet about which piece of legislation we would have to change or bring in. I would have thought secondary legislation because of what already exists, that it would be an amendment to that, or include lap dancing in clubs as part of the ambit of other premises which are regulated by that part of the legislation, about bringing that in, or about strengthening the other part of the Licensing Act, and I do not think there is a view on that yet.
1464. CHAIRMAN: Any further questions? (No response) Thank you very much. Ms Lieven, with considerable words of caution -----
MS LIEVEN: I know, my Lord, but there is something that
it is critical your Lordships understand, which if I tell your Lordships then
you can decide whether or not it is an appropriate question for Mr
Dunworth. Sex encounter established
licensing is a regime that only exists in
1466. CHAIRMAN: How subtly you put it!
1467. MS LIEVEN: Please?
1468. CHAIRMAN: I do not know whether you heard the question, Mr Dunworth.
1469. MR DUNWORTH: I will not answer that.
1470. CHAIRMAN: But you can answer to me.
MR DUNWORTH: Certainly I can answer. If that is the case that is the case and
there is no disputing that. If I can
pre-empt the secondary question that I know is coming, this is not just a
1472. CHAIRMAN: Are you pressing your luck, Ms Lieven?
1473. MS LIEVEN: I am going to push my luck just with one more, my Lord. If the content of clause 23 is taken up nationally in public legislation, so we have a position where the Home Office, the Government, are sympathetic to the content of clause 23 but they do not want it to happen yet because they want to take it through national legislation potentially, then it is perfectly possible for that national legislation to repeal clause (or by that stage section) 23, so by going first - and I will put the point and then you can decide whether or not it is appropriate to put and it is done with - in this London Bill we do not in any way stop the national provision, if there is one, and we do not have to run parallel to it. Our provision can be repealed if that is what the Government thinks is appropriate.
1474. CHAIRMAN: Let me ask you a question, which is very similar to the one I asked Mr Dunworth. If that were to take place do you think that would be by primary or secondary legislation, such repeal?
1475. MS LIEVEN: My Lord, the normal constitutional principle is that if you are going to repeal an Act you do it by way of primary legislation. There are things which are commonly called Henry VIII clauses where it is possible in specific circumstances to allow a power of repeal, but I think it is relatively unlikely in circumstances like this that it would be done that way, so I would assume by primary legislation but I do not think that could be a comprehensive legal answer.
1476. CHAIRMAN: Thank you.
1477. MR DUNWORTH: Could I just add one further word and that is on a point of clarification, and that is that the sympathy the Government recognises does not mean that it is agreeing that it will go down the legislative route and I think we need to be careful. This is a full consultation so an open consultation, and we need to take wide evidence on whether legislation is indeed the way forward. I think we need to be much flatter than that and suggest that this is about consultation and what comes out of that.
1478. CHAIRMAN: Thank you, Mr Dunworth. I think, in fairness to you, you had made that clear before but now you have reinforced it.
1479. MR BISH: My Lord, through you could I ask Mr Dunworth a question?
1480. CHAIRMAN: You may ask a question through me of Mr Dunworth, yes.
1481. MR BISH: Can I ask Mr Dunworth if this consultation that he has just spoken about is national or is it just selective with the local authorities or am I going to get a copy?
1482. CHAIRMAN: I heard Mr Dunworth say it was national.
1483. MR DUNWORTH: It is national but it is local authorities.
1484. CHAIRMAN: It is national but of local authorities.
1485. MR BISH: So not of associations?
1486. CHAIRMAN: Not of associations, just local authorities.
1487. MR DUNWORTH: I am only going to say that I do not think this is the first part of that. That was the point, that what are the local authorities saying in terms of what powers do you have, what problems do you have, how much of a problem is that, and if they want to move to other legislation then there will be a fuller consultation with stakeholders such as Mr Bish.
1488. CHAIRMAN: If that is so how does your date of 10 August stand?
1489. MR DUNWORTH: 10 August is the closing date for consultation with local authorities and then we report on what that says and then we open it up and then we make a statement about what happens next. We are not saying that we are moving to legislation.
1490. CHAIRMAN: All right, thank you. That is much clearer.
1491. LORD ACTON: You said you were sympathetic. I do not want to put words into your mouth but I think you said "sympathetic to Tower Hamlets". You used some such phrase.
1492. MR DUNWORTH: Yes, I did.
1493. LORD ACTON: Although you would prefer to wait for the result. If in Tower Hamlets there are in fact pubs which have a licence of a sort that does not allow them adult entertainment and if they are near a residential area with a lot of children would you say, "Oh, well, we will wait for the consultation"?
1494. MR DUNWORTH: No. Again I will reiterate without over-stressing the sympathy that we need to look at how the Licensing Act and in these pubs and premises like this are not being adequately controlled and there is a view from local authorities that they do not have powers to control where they are and what they do, then I think that has to be part of the consultation. That would be the view.
1495. LORD ACTON: But what about the children of Tower Hamlets in the meanwhile?
1496. MR BISH: This is an issue around the country, if indeed they are coming to any harm or any ill effects by that, and I do not think it has been demonstrated fully yet that that is the case. That was mentioned earlier, that these premises exist. It is what they do, it is not that they are there. The idea is that if they are impacting on children we need to quantify what is that. Is it just because it is there, the idea of what is there, or is it because children are being quite damaged by that? I think we are going to have to tease that out.
1497. CHAIRMAN: You are not saying you have one more question?
MS LIEVEN: My Lord, I am not sure whether it is a
question or a point that I need to draw to the Committee's attention and I
think it is probably my fault that I did not pick up on this earlier. When Mr Dunworth talks about the consultation
my understanding is that he is talking about a letter from the a minister, Mr
1499. LORD BROUGHAM AND VAUX: My Lord Chairman, if you go to tab 14, number 14, that is what she is referring to, in the black folder.
1500. MS LIEVEN: Yes, I am sorry.
1501. LORD BURNETT: Tab 4 and tab 3.
1502. CHAIRMAN: Tab 4 is the letter and it is also under tab 3. It is the same letter.
MS LIEVEN: One has gone to Brighton and one has gone to
1504. CHAIRMAN: How very observant of you.
1505. MS LIEVEN: I think we may have been trying to make the point about the national consultation; I am not sure. They are the same letter.
1506. CHAIRMAN: Thank you. That is all extremely helpful. Are there any further points for Mr Dunworth? No? Thank you very much. We have 13 minutes. We could try and do a little deliberation.
MS LIEVEN: If I can shuffle back, my Lord, just to give
you some good news, the street traders' petition has been withdrawn. As far as the amendment to clause 10A is
concerned - and I am just telling the Committee this now because it may affect
the timetable - the amendment is to be sent to the petitioners and also needs
to be considered, although Mr Lewis and I and Mr Blackwell looked at it, by
1508. CHAIRMAN: We do have the great advantage of having Mr Mohan sitting on my right.
1509. MS LIEVEN: Thank you, my Lord.
1510. CHAIRMAN: If you would like to clear the room we will have a go at this one.
At Counsel and Parties are directed to withdraw
and at are again called in
CHAIRMAN: Thank you very much. I must say, congratulations to everybody on
their timekeeping throughout; this is absolutely impeccable - particularly the
good news of next week. The Committee is
of the opinion that clause 23 as drafted should stand, but we would like an
undertaking from the promoters very much along the lines, Ms Lieven, that you
said right at the end of your last statement, in fact, that should government
legislation be introduced that will cover the extremely narrow point, on which
you very ably advised us. Then I am
advised that anyway the
1512. MS LIEVEN: Yes, my Lord. The principle of what your Lordship is suggesting I am very happy to undertake. First of all, just in terms of the words used, we need to make it very clear if it is a public legislative provision which covers the very narrow point - because, obviously, as we have heard, the consultation is on much wider and different points.
1513. CHAIRMAN: Understood.
1514. MS LIEVEN: The other point Mr Lewis asks me to make is that these local authority private Bills are usually, by convention, introduced into the House in November. If the timing was such that the public Act got Royal Assent in January we would not want to promote an entirely separate private Bill to repeal this provision separate from anything else. So there might be a slight delay and we might promote the clause to repeal clause 23 six or nine months later.
1515. I am also told that these Bills are only deposited, at the moment, on average every two or three years. What I can say, unequivocally, is that the principle of what your Lordships have asked for we accept. Probably the simplest way to do it (and Mr Lewis will tell me if I have got this wrong) is that we would not have any problem but the public legislation itself could do it that way. That would be a much simpler sweep-up than us having to promote, and we would not object to doing it that way. If, for whatever reason, the public legislation did not repeal the clause then at the next available opportunity we would have the provision repealed.
1516. CHAIRMAN: Mr Mohan's advice to me was that public legislation probably would so repeal. In other words, you are both saying the same thing, but "if". I take your point.
1517. MS LIEVEN: Mr Lewis makes the point that strictly speaking I am acting for 33 local authorities and to give a formal undertaking would involve the resolution of 33 local authorities, which I think might rather scupper the timing of this Committee. (After a short pause) Yes, I can give that undertaking.
1518. CHAIRMAN: Shall we stop there?
1519. MS LIEVEN: Let us stop there.
1520. CHAIRMAN: I suggest we quit while we are up.
1521. MS LIEVEN: I think that is a very good idea, my Lords.
1522. CHAIRMAN: Thank you very much. Thank you all for speeding up the process. I must say, to get through, effectively, two weeks' work in three days is admirable.
1523. MS LIEVEN: Thank you very much, my Lords.
1524. CHAIRMAN: The meeting is adjourned until 10.30 on Wednesday, when we are going to sit in private to consider our report.
The Committee adjourned at 4.00pm until Wednesday 16 July at 10.30am (in private)