Fourth Standing Committee on Delegated Legislation
Wednesday 26 May 2004
Mr. Bill Olner
Draft Guidance issued under Section 182 of the Licensing Act 2003
2.30 pm
The Minister for Sport and Tourism (
Mr. Richard Caborn)
I beg to move,
That the Committee has considered the draft guidance issued under section 182 of the Licensing Act 2003.
I will start by giving some background, which I hope will answer some of Opposition Members' questions.
Under section 182(2) of the Licensing Act 2003, the Secretary of State may not issue licensing guidance unless a draft of it has been laid before and approved by both Houses of Parliament. The draft guidance cannot be amended, so it must either be approved or rejected. I emphasise that the guidance cannot change the primary legislation, which was thoroughly scrutinised by both Houses. If the draft guidance were rejected by either House, we would consider the views expressed and return to Parliament with another version. Inevitably, the whole process would then have to be repeated, and the implementation of the Act would be delayed. Therefore, I hope to persuade the Committee that the draft is acceptable.
Since we laid the draft guidance on 23 March, two Select Committees have reported on it: the House of Lords Select Committee on the Merits of Statutory Instruments and the Joint Committee on Statutory Instruments. The former raised no points of substance, but the latter raised two issues of concern.
The Committee's first point was about the inclusion of chapter 11, which is not subject to the approval of this House. It contains guidance for police use of closure powers under part 8 of the Act. We included it in the draft because we believe that the police and licensing authorities must work well together, and because the use of the closure powers will often lead to a review of a premises' licence by the licensing authority, thereby creating a close link between the functions of the licensing authority and the actions of the police. It is important, therefore, that the licensing authorities should understand the guidance that we have given to chief police officers, with the agreement of the Association of Chief Police Officers, on a matter that is so central to the licensing regime.
The second point raised by the Joint Committee concerns paragraphs 3.61 to 3.63. The Committee considered that the use of the expression ''in appropriate cases'' in paragraph 3.61 requires elucidation, as it is too vague. With respect, we do not think that that is a fair criticism. The relevant sentence reads:
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''The licensing committee may delegate these functions to sub-committees or in appropriate cases, to officials supporting the licensing committee.''
That sentence cannot be read in isolation. We have set out a table, at 3.63, of our recommendations for the delegation of certain functions to officers by committees and sub-committees. The table was developed with the full agreement of the Local Government Association. There is, therefore, supporting elucidation for the phrase ''in appropriate cases''.
We do not want to be overly prescriptive, which is why the words
''Although essentially a matter for licensing authorities to determine themselves,''
appear at lines 7 and 8 of paragraph 3.62. Licensing authorities are accountable to the local electorate, and it is for them to decide whether certain matters should be primarily for elected representatives or officials. The table at 3.63 is merely a nudge in the direction that we, and the LGA, think appropriate, and which we believe will promote efficiency and good practice. In addition, section 10(4) of the Act clearly lists functions that cannot be discharged by officials. For those reasons, we do not believe that either of the Joint Committee's concerns should cause this Committee any difficulty.
If the draft guidance is approved by both Houses, licensing authorities will be required, under section 4(3) of the 2003 Act, to have regard to it when carrying out any licensing function. The first licensing function to be carried out by any licensing authority will be to make a local statement of licensing policy. That process cannot begin formally until Parliament has made its decision about the guidance. All statements of licensing policy must have regard to the guidance approved by Parliament.
The phrase ''have regard to'' does not mean that licensing authorities must therefore slavishly follow the terms of the guidance to the letter. In effect, the guidance will set a national policy framework, which we expect local statements of licensing policy to complement and reflect. When carrying out its licensing functions, a licensing authority may depart from the guidance when it is justified by individual or local circumstances. However, the authority will need to set out good reasons for doing so.
The purpose of the guidance is to promote consistency and good practice, but not at the cost of eroding local discretion. The Act creates a local system under the control of locally elected representatives for the benefit of their communities. Our concern has been to achieve a balance between providing sufficient detail and not being over-prescriptive.
The draft is primarily directed at the professional and technical advisers of licensing authorities to enable them to assist licensing authorities and their committees in carrying out their role as Parliament intended. It is therefore complex and technical in parts. As a valuable by-product, we hope that it will also assist applicants, the police, other responsible authorities, performers and the general public better to understand the processes involved. However, I must
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stress that it is not a substitute for a proper understanding of the Act and that it must always be read in conjunction with the primary legislation.
A draft of the guidance was first made available during the parliamentary stages of the then Licensing Bill, to inform debate in both Houses. Following Royal Assent in July last year, a further draft was prepared which reflects amendments made to the legislation and many of the points made in Parliament. It was published for consultation in August 2003.
A prolonged and detailed consultation then followed. I want to express my gratitude and thanks to the expert bodies and organisations listed on page 12 of the draft, who provided an enormous amount of advice that enabled us to produce the draft being considered today. In addition to those who formed our advisory group, many other organisations provided comments and views, including residents' associations, individual local authorities, trade unions, industry trade bodies, individuals and members of the legal profession. In addition, we have consulted musicians and performers' groups to ensure that the draft guidance properly reflects their concerns, which were much debated during the passage of the Bill and were particularly reflected in the press, as many members of the Committee will be aware.
Importantly, we also turned to a specialist group involving children's organisations, such as the Children's Society and the National Society for the Prevention of Cruelty to Children, and to the police for advice about the sections of the draft that deal with the protection of children from harm. Of course, because of the range of issues with which the guidance deals, we have also closely consulted a range of other Departments, agencies and public bodies.
Inevitably, across such a great range of issues and given the breadth of the consultation, there has been conflict between some of the views expressed and between the opposing partners in the consultation. Where there has been conflict, we have sought to find a balanced position that represents best practice and the broadest possible consensus in the areas concerned.
It has been asserted that the 2003 Act and the draft guidance are incompatible with the alcohol harm reduction strategy and its focus on binge drinking and irresponsible trading. However, there is nothing contradictory between the two documents. The documents were developed together and we deliberately delayed the finalisation of the draft guidance until the terms of the strategy were agreed. When that took place in March of this year, both documents were then published.
Our policies, which are reflected in both documents, do not seek to stigmatise drinking alcohol—an activity which most of the adult population enjoy and undertake sensibly. However, both documents look to help curb irresponsible trading, alcohol-related violent crime and public nuisance, and also to protect children from harm.
The 2003 Act provides expanded, more flexible, tougher powers to deal with premises that engage in trading that damages our communities and provokes drunkenness and disorder. However, that will not be
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done at the cost of penalising those businesses that enhance the community by providing greatly valued leisure facilities for local people and for tourists—and that contribute enormously to the country's economic well-being.
Although we need to reduce binge drinking and alcohol-related violence, the development of a night-time economy could help regenerate many of our constituencies through investment and the opening-up of employment opportunities. For example, the city of Liverpool, the European culture capital—
Mr. Don Foster
(Bath) (LD): Lib Dem.
Mr. Caborn
: It may be Lib Dem, but that shows how objective the Labour Government can be.
The city of Liverpool expects the 2003 Act to assist in generating 14,000 new jobs in its leisure and hospitality industries by 2008.
I must make it clear that there is no dispute between the Government and the police—it seems to have been orchestrated by the newspapers and the media—about the value of the changes to be implemented under the Licensing Act. On 29 April 2004, Rick Naylor of the Police Superintendents Association told Radio 4's ''PM'' programme:
''The Superintendents Association have always been in favour of relaxing licensing laws and bringing them into the twenty-first century, and it is slightly disappointing we can't get this piece of legislation enacted sooner, because I think it will have an effect on violence in the streets.''
Chris Fox, President of the Association of Chief Police Officers, on the ''Today'' programme on 11 May 2004, said:
''However, for the vast majority of people the licensing laws will bring a welcome and civilised sort of approach to the world. They can get a drink and they can go and relax and socialise when they want.''
The police have been constantly and closely involved in the development of the draft guidance.
During the parliamentary stages of the Licensing Act, there was much discussion of the need to address the cumulative impact of concentrations of licensed premises on crime and disorder. In paragraphs 3.13 and 3.28 of the draft guidance, we therefore set out detailed advice for licensing authorities about how those issues should be addressed. The Act provides the power necessary to assist local communities to deal with such matters. However, it is sensibly recognised in the draft guidance that it can be only one part of the solution: it requires a holistic and partnership approach.
It has been suggested that the guidance should not be approved by either House until the regulations have been made by the Secretary of State. That matter was raised also in another place. The question focused on regulations to deal with fee levels, forms, time limits and hearings. There are several reasons why that is not necessary, sensible or desirable.
First, we have never presumed that both Houses will approve the guidance; indeed, we recognise that some changes might be insisted upon, either here or in another place. For example, changes to the guidance could affect who is consulted about licensing matters and time limits, and various processes such as how
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licence applications are to be advertised to the general public. Accordingly, changes to the guidance could require the inclusion of certain time limits in the regulations and the prescribing of additional bodies as, for example, responsible authorities; and, following such changes, a reassessment would have to be made of the potential costs that needed to be recovered by licensing authorities, which would therefore affect the level of fees.
Secondly, the regulations have nothing whatever to do with the formation of local licensing policy statements, which will be the first task of the licensing authority. Guidance and regulations are separate matters. Regulations are a matter of law and are mandatory. They are not matters of policy.
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