Clause 1 [Drinking banning orders]:
Page 1, line 10, leave out “or disorderly”
The noble Lord said: My Lords, to the select few who remain, I hope to be forgiven if I remind your Lordships of something of the background to drinking banning orders and the basic objection in principle we have to them in the way they are expressed in the Bill.
We recognise that there is a problem with excessive drinking in this country, particularly among young people. However, the drinking banning orders use the machinery of the ASBO. The ASBO is something we have objected to throughout. The drinking banning order is an application to the court—either a magistrates’ court or a county court—by the police or a local authority to obtain an order against an individual whose conduct is disapproved of.
The order imposes,
“any prohibition on the subject which is necessary for the purpose of protecting other persons”.
A civil order is being obtained and therefore the rules that appertain to civil proceedings, in particular the procedures of the court, are not as stringent as they are where criminal charges are concerned. It is possible to obtain such an order entirely on hearsay evidence—the tittle-tattle of the neighbourhood, as it were. It is also possible to obtain that order not because the offensive behaviour is proved beyond reasonable doubt—the ordinary standard in a criminal case—but simply on a balance of probabilities that the behaviour complained of has been established more rather than less. If it is breached in any way, the drinking banning order can be followed by criminal proceedings in the ordinary sense. A breach of a banning order will result in a fine. If that fine is not paid, as sometimes will be the case with people with a drink problem, it can be followed by imprisonment.
The amendment to which I speak seeks to put at least some curb upon the making of these orders. At the moment the orders can be made,
“for the purpose of protecting other persons from criminal or disorderly conduct”.
We are all familiar—some may be more familiar than others—with the normal criminal charge of being drunk and disorderly, but this is “criminal or disorderly”; in other words, disorderly conduct which does not amount to a criminal offence can still provide the foundation for a drinking banning order. We therefore have a combination of things. It is not necessary for the police or the local authority seeking such an order to prove that the person against whom the order is to be made has committed a criminal offence but merely that he has been “disorderly”, whatever that means.
As I indicated earlier, the making of the order is just a step forward to the creation of a fresh criminal offence. If on a balance of probabilities and on hearsay evidence a person, because of his disorderly behaviour, which is not a criminal offence, is made subject to a drinking banning order, he can end up being charged with a crime of breaching the order. He gains a criminal record for conduct that is not criminal at all. By definition within the Bill as it is currently drafted, he is guilty of a criminal offence for breaching an order relating to simply disorderly but non-criminal conduct. That is the point that I make in Amendment No. 1. The same point is made in relation to Amendments Nos. 5, 7 and 15, where the same disjunctive concepts of criminal or disorderly conduct appear.
We think that it is entirely wrong in principle ‘first’ to use such a vague term as “disorderly” and, secondly, since it is almost by definition not criminal conduct, to enter into a procedure which can result in a criminal conviction. I hope that is a sufficient explanation. I beg to move.
My Lords, this Bill is of such moment to the Government that it began a year ago last summer in another place and is now staggering towards its conclusion.
We support measures to give the courts more effective powers to ban individuals from licensed premises if that will materially improve public order. We remain concerned that the measures in the Bill hit headlines in newspapers but do not hit at the underlying causes of public disorder. We do not wish to weaken the impact of drinking banning orders. In Committee, we had a full debate on this, and I tabled amendments at that stage. I approach the debate in a rather different manner to that just espoused by the noble Lord, Lord Thomas of Gresford. Certainly, we do not wish to see the curbs imposed on DBOs that would follow on from the amendment that he has proposed today. We made that clear in Committee too.
It might be for the convenience of the House if I remark here more generally about matters today. We used the Summer Recess and last week to have a series of meetings and discussions with the bodies that will be affected by the variety of measures in the Bill. We have also met the Bill team and Ministers. As a result of those meetings, many of our concerns have either been allayed or, I hope, will be addressed by government amendments and commitments which we anticipate, if all goes well, will be put on the record at the Dispatch Box by Ministers today. On that basis—that is the reason for my silence later—I will be very sparing with some of my comments as we go through our proceedings this afternoon. I give notice that I will not move Amendment No. 6. I hope that Members will not take my silence for the fact that I have nodded off; I hope not, far from it. I shall leap into action when we come to my amendments later. I do not wish to detain the House unduly.
My Lords, I am most grateful to the noble Baroness for her very constructive introduction to business this afternoon. Her use of the word “staggering” towards a conclusion on this Bill was probably an inadvertent pun relating to the matters in hand. We like to think that we are moving to a clinical finish on effective legislation; but descriptions can get lost in translation. I am grateful to her also for her kind comments about the work that has been undertaken during the Recess. I trust that we can make good progress this afternoon on Report. I apologise in advance if some of my explanations are lengthier than they might otherwise have been but that will be because we want to try to address the issues to which the noble Baroness has alluded.
I shall now address the amendment proposed by the noble Lord, Lord Thomas of Gresford. The noble Lord will not be surprised to hear that these amendments do not find great favour with the Government. I hope that he will not take offence at that, but clearly we have a difference of view—a carefully and well understood difference of view. The group of amendments would together have the effect of restricting the circumstances in which an individual can be given a drinking banning order to engagement in criminal but not disorderly behaviour. The House will be aware that amendments on similar lines were proposed in Committee. We have now debated this matter at some length in the other place and in this House.
It is worth emphasising that the latest British Crime Survey tells us that some 24 per cent of people say that people being drunk or rowdy in public places is a “very” or “fairly” big problem in their area. The behaviour of those who misuse alcohol can intimidate members of the public and cause disorder and general nuisance, and we cannot ignore that fact. In Committee, I referred to some examples of what might constitute disorderly conduct but might not necessarily be caught by the criminal law. I mentioned noise nuisance and disturbance, the kicking of dustbins late at night, or shouting or swearing in the street as examples of disorderly conduct. I am sure that many of us come across that sort of thing from time to time.
It is however not the case that any sort of conduct that could be described as someone causing a noise or making a nuisance of themselves could lay that person open to a drinking banning order. The conditions for an order are clearly set out in the Bill: the individual must have engaged in criminal or disorderly conduct while under the influence of alcohol; and as such an order must be necessary to protect other persons from further conduct by him of that kind while under the influence of alcohol.
The Government have sought to explain to both Houses that numerous recent statutes refer to both crime and disorder, including the Serious Organised Crime and Police Act 2005, the Licensing Act 2003 and the Anti-social Behaviour Act 2003. The Crime and Disorder Act 1998 refers to both crime and disorder as distinct concepts. The courts have demonstrated that they are perfectly capable of deciding what does, and what does not, constitute “disorderly behaviour”.
It is important that we do not remove the word “disorderly” from the Bill. We should not lose sight of the aim of this new measure, which is to help achieve a culture change in binge drinking, to discourage unacceptable alcohol-fuelled behaviour, to deal appropriately with such behaviour when it occurs and to protect people from harm caused by alcohol-related disorderly behaviour.
We understand that there is a difference between us. We do not accept the noble Lord’s argument. We think that we have the balance about right on this offence. We know that similar anti-social behaviour measures work well and that there is widespread public support for them. I therefore suggest that the noble Lord withdraw the amendment.
My Lords, I think it was the late, lamented Linda Smith who said that you can’t take ASBOs away from people—it’s the only qualification some of them are going to get. I can see that the DBO comes into that category. It is poor in principle that the Government confuse civil and criminal procedures in relation to both ASBOs and these new drinking banning orders. It is important that criminal behaviour, which carries a public stigma, should be clearly distinguished from other behaviour which—although it may not appeal to everyone and may appear disorderly to some; if it is not criminal—should not be punished as if it were a crime.
I have made my point twice, and made it extensively. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Page 2, line 2, after “considers” insert “appropriate and”
The noble Lord said: My Lords, Clause 1(3) states:
“The prohibitions imposed by such an order must include such prohibition as the court making it considers necessary, for that purpose, on the subject’s entering…premises in respect of which there is a premises licence”
or a club premises licence. The purpose of this small amendment is to provide a check to the magistrates or to the county court where the order is made, not to impose excessive restrictions upon an individual. The use of the word appropriate in the amendment is intended as guidance to the decision taker that it is not enough to impose a simple ban and that it must be considered in all the surrounding circumstances. I beg to move.
My Lords, the amendment seeks to tighten the prohibitions that can be imposed by a drinking banning order. The same amendment was proposed in Committee. Clause 1(3) states that prohibitions by such an order must include such prohibition as the court making it considers necessary on the subject entering licensed premises.
I recognise from our discussion of the amendment in Committee that the noble Lord was seeking to provide guidance to magistrates or the county court on the appropriateness of an order. His intention is to require the court to consider whether the terms of the order are appropriate.
Such a test before a prohibition could be included in an order is unnecessary, because if a prohibition were inappropriate it could not be necessary. I would expect the courts to consider in every case the appropriateness of an order and any proposed prohibition. The drinking banning order guidance that will be published to accompany the measure will make clear the circumstances in which certain prohibitions would be inappropriate. Some of the areas where prohibitions should not be proposed are already provided for in the Bill. I have also given a commitment to this House to include others in guidance—for example, prohibitions should not be imposed if they would prevent an individual taking his child to a place where he may receive medical treatment. Some of those issues were discussed along those lines at an earlier stage. Therefore, I believe that the amendment is unnecessary and I hope that the noble Lord will withdraw it.
My Lords, I am glad to hear that guidance is to be given to magistrates and the county courts on the circumstances in which an order such as this would be made. In the light of that assurance, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Page 2, line 20, at end insert-
“(4A) Before making a drinking banning order, a court must receive a report from an appropriate officer about the proposed subject of the order, which contains information about the subject and, in particular, about whether there is any reason to suspect that he may be-
(a) suffering from substance addiction (including alcohol dependence); (b) a person falling within section 1 of the Mental Health Act 1983 (c. 20) (application of Act: “mental disorder”); or (c) suffering from any other recognised physical or mental illness or condition which could either- (i) affect his ability to restrict his intake of alcohol; (ii) cause him to engage in criminal conduct while under the influence of alcohol; or (iii) affect his ability to comply with a drinking banning order. (4B) In subsection (4A) above “an appropriate officer” means-
(a) where the proposed subject is aged 18 or over, an officer of the National Offender Management Service or a social worker of a local authority social services department; (b) where the proposed subject is aged under 18, a social worker of a local authority social services department or a member of a youth offending team. (4C) If the court determines that the proposed subject of a drinking banning order may be a person falling within subsection (4A)(a) to (c), the court shall not make a drinking banning order unless satisfied, on receipt of medical evidence, that-
(a) his ability to understand and comply with the order will not be significantly restricted by reason of his being a person falling within subsection (4A)(a) to (c); and (b) compliance with the order, either alone or in combination with any other order or sentence to which he is subject, would not have a deleterious effect upon his mental or physical health.”
The noble Lord said: My Lords, this amendment was put forward in Committee. At that time, I understood that the Minister was somewhat favourable to the idea that, before making a drinking banning order, reports should be made to the decision-maker, whether the magistrates or the county court judge. I have repeated it in the hope that I might hear a little more from the Minister on this subject. Again, I look for an assurance that the need for reports will be contained in guidance. If I get that assurance, I shall not pursue this matter further. I beg to move.
My Lords, I hope that I can reassure the noble Lord and I shall take a little time dealing with his amendment for that very purpose.
The amendment would introduce further safeguards to the process of making a drinking banning order. It would mean that any court considering making an order must first receive a report from an appropriate person on the subject’s mental and physical health and on whether he or she has any substance addictions. As the noble Lord said, we have discussed this amendment before, and I assure the House that the Government understand the terms in which it has been tabled. We have also considered the matter further, as I said we would and as the noble Lord alluded to, but we concluded that an amendment was unnecessary, and I shall expand on why we believe that to be the case.
There are two main routes for seeking a drinking banning order. The first is on application to the magistrates’ court. Prior to making such an application, there is a statutory consultation phase. The police would need to consult the local authority, or vice versa, depending on which authority was intending to seek a drinking banning order.
It should be at that stage that an individual’s vulnerability is considered—that is, before an application is made. If the individual is considered to be vulnerable, such as suffering from alcohol addiction or mental health problems, an assessment can be made of his or her circumstances. I have previously mentioned to the House that local authorities have a duty to do that under the National Health Service and Community Care Act 1990. Where appropriate, the necessary alternative support should therefore be provided under the duty of that Act.
Therefore, for drinking banning orders made on application, it is unlikely that an order will be sought for someone suffering from alcohol addiction or mental health problems. In our view, such issues should be identified at an early stage prior to making any application. Where the court has concerns that a drinking banning order may not be appropriate due to an individual’s vulnerability, it can of course decide against an order or seek a report of its own volition.
The second main route where an individual could be subject to an order is on conviction in criminal proceedings. In such cases, the individual is before the court for a criminal offence. The individual’s vulnerability—if the court needs to consider that as an issue—is likely to have been considered in relation to the main offence. It is open to the court to seek a report on its own volition in that respect. In that case, such a report could be a factor in the consideration of a drinking banning order, which would be post-conviction. Therefore, again in this respect, the amendment is unnecessary.
The noble Lord, Lord Thomas of Gresford, asked in Committee, on 26 April at col. 165 of the Official Report, whether it is intended that drinking banning orders will be applied to rough sleepers who are alcohol dependent or drug dependent. I think my earlier points cover that issue. However, with respect to individuals who are dependent on drugs, I can tell noble Lords that drugs do not come within the conditions that have to be reached to apply for a drinking banning order. Those conditions, as set out in the Bill, are that the individual has engaged in criminal or disorderly conduct while under the influence of alcohol and that an order is necessary to protect others from further conduct by him of that kind while he is under the influence of drink. So we do not foresee an application being made for a drinking banning order where the individual is solely under the influence of drugs.
With regard to rough sleepers who are alcohol dependent, drinking banning orders are unlikely to be suitable for someone who has an alcohol addiction problem and this should be identified at an early stage, as I made clear earlier. However, with regard to rough sleepers, noble Lords will want to be aware that in 2003 local authorities were required to develop and put in place homelessness strategies. Under those, they were obliged to take into consideration the needs of rough sleepers within their area. That involved ensuring that appropriate provision is available and encouraging strategic partnership working with other statutory agencies such as healthcare providers, drug treatment agencies, social services and the police, as well as voluntary agencies that work within the sector. Moreover, the increasing involvement of the police in town centre management and rough-sleeping programmes has led to closer co-operation between them and homelessness agencies.
We would expect rough sleepers to be assisted under existing arrangements rather than being given a drinking banning order unless it was appropriate to do so. Although I cannot give an assurance, as the noble Lord requested in Committee, that guidance will provide that a judge must consider whether a report is necessary and call for it, I can give an assurance, as I have done to date, that these issues will be very carefully mapped out and covered in guidance on drinking banning orders. Those issues will be dealt with very clearly and carefully in guidance so that the courts are well aware of what they need to do when considering such issues. I hope that, having heard that assurance, the noble Lord will be encouraged to withdraw the amendment.
My Lords, I am grateful for the very full reply which the Minister has put forward to meet our concerns about the vulnerability of people who might be subjected to drinking banning orders. He has rightly covered the position of drug users and rough sleepers. It seems to me that rough sleepers in particular are inappropriate people to be made subject to such orders because they would be incapable of keeping them and would very quickly end up committing the criminal offences which I have discussed with your Lordships. I am sorry that the wise words of the Minister will not be official guidance, but I hope that much of what he says will find its way—and I see that he nods—into the instructions given to chief police officers and to local authorities when such orders are being contemplated. I hope that no circumstance will arise when inappropriate drinking banning orders are made. On that basis, I am happy to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 3 [Orders on an application to magistrates' court]:
Page 3, line 29, leave out “16” and insert “18”
The noble Lord said: My Lords, I apologise to your Lordships for rising to my feet so much on this matter. We are concerned that applications can be made for individuals who are aged 16 or over. Ever since 1933, the courts have drawn a distinction between adults and juveniles under the age of 18—at first it was under the age of 17 but that age has been raised. It is regrettable that again a route to a criminal conviction is opened up to juveniles in this age group. I will no doubt be unable to convince the Government of that, but I put it forward again as a matter of principle. Although I appreciate that, unfortunately, a lot of binge drinking is done by young people in that age bracket, I do not think that drinking banning orders leading to conviction are the proper way of dealing with their problems. I beg to move.
My Lords, if a court has to consider, some guidance ought to be given about how it should consider. I think that this is necessary. I would have supported the first amendments but I was engaged by the noble Lord, Lord Bach, outside the Chamber.
My Lords, perhaps I should talk to the noble Lord, Lord Bach, about that, or a drinking banning order—but no!
The noble Lord, Lord Thomas of Gresford, is right that he will not be able to persuade me, and for good reason. Noble Lords will have heard similar arguments put before and, as I have explained before, our consultation paper Drinking Responsibly proposed that drinking banning orders should apply to those aged 16 years or older. That basically reflects published evidence from the Prime Minister’s Strategy Unit, in the alcohol harm reduction strategy’s Interim Analytical Report, that those aged 16 to 24 are more likely than all other age groups to binge drink. The British Crime Survey tells us that, in alcohol-related assaults, offenders generally tended to be aged 16 or older. The noble Lord, Lord Thomas, generously accepted that that is an important point.
Findings on underage drinking in the 2004 Offending Crime and Justice Survey, published on2 June 2006, provide further evidence in support of setting the age at 16 and above. The survey looked at the prevalence and patterns of underage drinking and the link between underage drinking and offending and disorderly behaviour. It found that 59 per cent of 16 to 17 year-olds reported having tried to buy alcohol from pubs and bars and just under half—47 per cent—from shops in the past 12 months, and most had been successful on at least one occasion. The survey also reported that those who drank alcohol once a week or more committed a disproportionate volume of crime.
The Government believe that raising the age at which an order can apply to 18 does not address the real problem of underage drinking and would enable young people to escape the consequences of their actions. Indeed, the amendment fails to recognise that an order may be appropriate to protect other persons from this type of conduct. I would therefore not want to undermine the use of drinking banning orders by restricting them to those aged over 18.
Amendment No. 11 would limit fines for breach of a drinking banning order to those aged 18 and over. As I explained in Committee, I cannot see the benefit of the proposed amendment. It would mean that those aged under 18 would not be punished for breaching an order, and I do not think that that is a desirable position. I do not want to see anything that undermines the effectiveness of drinking banning orders. These amendments would do that, and I urge the noble Lord not to press them this afternoon.
My Lords, this is another issue on which we will not agree. The policy of my party is to protect young people, and that is what has led to the next amendments that I will move. I am sorry that there is a breach of that principle by these clauses. However, I appreciate that it would be fruitless to take the matter any further. I therefore beg leave to withdraw the amendment.
[Amendment No. 5 not moved.]
Clause 4 [Orders in county court proceedings]:
[Amendments Nos. 6 and 7 not moved.]
Clause 7 [Supplementary provision about orders on conviction]:
Page 6, line 17, leave out subsections (8) and (9).
The noble Lord said: My Lords, at this stage the House might have expected to have heard from the noble Baroness, Lady Anelay, but since she has not moved Amendment No. 6, it is me again.
This is the “name and shame” part of the Bill. The idea is not simply to make an order, but to publicise it in the press and, I presume, by photographs and posters, if necessary. That may be appropriate for an adult, but we do not think it is appropriate for juveniles.
I have already referred to the Children and Young Persons Act 1933. In that Act, significant restrictions were placed on the report of proceedings in which children and young people were concerned. Your Lordships will be aware that even in the most serious cases, the identity of young people was protected both at charge and after conviction. Only with charges such as murder or rape does the judge permit the identity of a person under 18 to be disclosed to the press. That being the case, why do we have the change in the Bill?
I was looking to see what was said about publicity in 1932, when the Children and Young Persons Act passed through the House. I could not find the precise passage where it was discussed, but to give your Lordships some idea of the position at the time, the Act abolished the whipping of young people. That received a certain amount of opposition in your Lordships' House. My noble friend the Earl of Glasgow’s forebear, the then Earl of Glasgow, said:
“whipping would be a better thing for a boy than being sent to prison. I am quite sure that the noble Viscount”—
that is Philip Snowden, for the benefit of Members opposite—
“himself would never have reached the high position he has reached in the estimation of his countrymen if it had not been for castigation in his youth. What is there against whipping? They say that it has a hardening effect, but when I look round your Lordships' House—and I doubt that there is any one of your Lordships who has not been whipped at some time of his life—I see no sign of that hardening process among your Lordships”.—[Official Report, 26/5/32; col. 486.]
I think I can say the same thing today.
That was the climate in 1932 and in that climate it was decided that it was inappropriate for young people to be subject to publicity and to have their names and identities known. In discussion of that Bill, their Lordships were concerned to reform young people rather than to punish them. Juvenile courts came into being and the procedures were altered to deal with them. The lack of publicity was an important part of it all.
This is really red-top newspaper stuff—to publicise young people who are perhaps guilty of disorderly conduct; having their photographs put up in the local pubs or published in the newspaper. Will that reform them? Will it make them better people? Will they be less likely to offend in future? I very much doubt it. I think that the effect of publicity of that sort could be twofold. It could be seen as turning the individual into a local media personality, so that he can bask in the glow of the publicity. Alternatively, it could be seen to be something that damages his future education and career. Whichever it may be, it is wholly undesirable. I respectfully urge on your Lordships that it is appropriate to remove the naming and shaming provisions from the Bill, both on the making of the order—or rather, on conviction following criminal proceedings—and in any other respect. I beg to move.
My Lords, we had a similar debate only last week in your Lordships’ House when we discussed the Police and Justice Bill. We did not have the benefit of the historical discourse given by the noble Lord, Lord Thomas of Gresford, which I am sure we all found enlivening and, in its way, entertaining. I am tempted to talk about whipping, although perhaps it is inappropriate. In any case, I got the message from the noble Lord’s story to us all.
The amendment seeks to reimpose automatic reporting restrictions, in the terms set out by the noble Lord, in proceedings for an order on conviction involving young people and where there is a breach of an order by a young person. As I said, we debated this last week and on several other occasions, and we on the government Benches take a very different view. In the past, I sought to explain that we are not creating a situation in which all cases would be automatically reported. Although we are reversing the presumption, we are not preventing the courts imposing reporting restrictions where appropriate. It is for the courts to make that judgment. The important point here is that communities that become involved in laying the ground for a form of social action, of which drinking banning orders are part, need to be able to see and to understand that action is being taken on their behalf against behaviour that can blight whole neighbourhoods. In addition, we argue that the effectiveness of a drinking banning order and the ability to enforce it will frequently depend on people knowing about the order and its terms.
The noble Lord talked about individuals becoming local anti-heroes and media personalities in their neighbourhood. I doubt that that is likely; it has certainly not occurred greatly where I live as a result of anti-social behaviour orders. The publicity surrounding those orders has, in most instances that I can judge, been beneficial, because people have felt that at last the courts are doing something that represents their side of the argument. Of course it is possible that the knowledge distributed about someone’s behaviour may make them reflect more on that behaviour, which in itself is no bad thing. It may well make young people think of the possible longer-term consequences for their employability and for their set of friendships and social relations.
Anti-social behaviour orders have certainly had some value. A test case in the London borough of Brent—R (on application of Stanley, Marshall and Kelly) v the Metropolitan Police Commissioner—upheld the principle that publicity is necessary to help to enforce an order. It recognised that, by informing local people of the prohibitions imposed by the order, they could identify and report breaches to the police. We recognise, however, that any publicity must be necessary and proportionate to the identified aims and impact of the order. In some circumstances, particularly where publicans and local people need to know and understand to whom an order applies, there will be value in publicity.
I come back to the point that we do not want to undermine the effectiveness of drinking banning orders by accepting the amendments. Accepting them would have an adverse impact on our policy objectives. The noble Lord takes a different view, to which he is entitled, but I urge him to reconsider his position for the sake of the effectiveness and completeness of the policy that we are working through in the legislation and to withdraw his amendment. I cannot see that those amendments have merit. Where courts think that it would be inappropriate, they are of course entitled to take the view that publicity given to drinking banning orders for young people is wrong, inappropriate or unnecessary, and are at liberty to follow their own judgments.
My Lords, perhaps the Minister will help me with a matter of interpretation. Under Clause 4(4), as regards,
“an individual who is not a party…engaged in criminal or disorderly conduct”,
disorderly conduct cannot be criminal, as a matter of interpretation. Therefore, you are concerned with a person who has been engaged in conduct which isnot criminal, as a matter of interpretation. Under Clause 7(7), a drinking banning order takes effect on the day on which it is made. But what about the appellate process from a decision of the county court? In my day, it was in the Green Book, or something like that. Has that all gone? Is there no procedure for appeal from the county court? If it takes effect on the day that it is made, does that mean you prescribe the procedure for appeal? I do not know: perhaps the noble Lord will help me.
My Lords, as ever, I am very grateful for support from the noble Lord, Lord Campbell of Alloway, on this point. He emphasises the point that I made on Amendment No. 1. Unhappily, he was unable to make it in relation to that amendment. It is a question of balance. The Government have a favourite phrase, “We think we have got it just about right”. I recall once speaking to Lord Williams of Mostyn, for whom this was a very favourite phrase. He reminded me of a man riding a bicycle on a tightrope in spangled tights—I must say, he was not very impressed with that analogy.
I do not think that the Government have got the balance right in this instance. For 70 years we have had a principle that, except in exceptional cases, there should not be publicity—naming and shaming—of people under the age of 18, as it now is. I do not object to publicity for those over the age of 18 who are made subject to drinking banning orders. I do not suggest for a moment that, if necessary, their photographs should not be put up in public houses as being subject to such an order and that the prohibitions which apply to them are known tothe public. That is not my point. My point is that the balance can be properly struck only if some protection remains for juveniles. I feel very strongly on this and I am not able to withdraw the amendment. I propose to test the opinion of the House.
Clause 9 [Interim orders]:
Page 8, line 1, leave out “clerk” and insert “proper officer”
The noble Lord said: My Lords, these minor and technical changes clarify aspects of the Bill. Amendment No. 13 deletes Clause 11(11); the subsection provides that an order made by the Secretary of State under Clause 11 specifying persons who may bring proceedings for breach of a drinking banning order is subject to the negative resolution procedure. It has been deleted because it was considered to be neater for the procedure to be governed by the general order- and regulation-making provisions under Clause 14. Amendment No. 16 to Clause 14 ensures that this is the case. These amendments ensure that an order made under Clause 11 will continue to be subject to the negative resolution procedure.
Amendment No. 9 amends Clause 9(5) to replace “clerk” with “proper officer”. Permission of the proper officer is therefore required if an application for an interim drinking banning order against an individual is to be made without notice being given to that individual and heard in the absence of that individual. Under Clause 14, “proper officer” means the justices’ clerk in relation to a magistrates’ court, and the clerk of the court in relation to any other court.
Amendment No. 14 seeks to clarify when a course provider must issue a certificate or notice on being asked to by the individual. The course provider must give a certificate unless the individual who undertakes the course fails to pay the course fees, attend the course as instructed or comply with any other reasonable requirement of the course provider. If the course provider does not issue a certificate, they must give the individual written notice of that decision and their reasons. The amendment makes it clear that the course provider must issue a certificate or notice before the end of the 14th day beginning with the day on which any request to do so is made by the individual.
Under Clause 13(6), the Bill already provides that where an individual is given a notice or his request for a notice or certificate has not been complied with, he may apply within a certain period to the court for a declaration that a certificate has been incorrectly withheld in contravention of Clause 13(3). Ifthat is found to be the case, the court can, under Clause 13(7), decide that the individual has satisfactorily completed the approved course and may therefore receive a reduction to the length of the drinking banning order. I beg to move.
On Question, amendment agreed to.
Page 8, line 19, at end insert-
“( ) The Secretary of State must issue guidance setting out factors that the court should have regard to in determining whether applications for the renewal of orders under this section should be granted.”
The noble Baroness said: My Lords, it is open to the court to continue to renew interim drinking banning orders without a final hearing ever taking place. When we debated this in Committee on26 April, at col. 197—a long while ago—the Minister agreed that if this were to occur, it would be an abuse of process and a cloak for inefficiency. He said that getting this matter addressed through guidance would be on his “to do” list. It is now October, and I have moved this amendment to ask the Government what progress they have made in producing draft guidance on this matter and whether the House will be able to see it before Third Reading.
In an idle moment in August, I went through Hansard trying to add up the number of times the Minister told the House that guidance would be produced. There were not enough idle moments, even in August, for me to list all the occasions on which he said that. However, we should be given an indication of the guidance with regard to interim drinking banning orders, and I hope that we will be able to see it before the Bill finally leaves this House. I beg to move.
My Lords, I am glad that the noble Baroness found plenty of other things to do in August; she probably had a much happier time not using all her downtime to seek out all the references to guidance that have been made during the Bill’s proceedings.
Amendment No. 10 seeks to ensure that guidance will be issued to set out the factors that the court should have regard to in respect of whether applications for renewal of an interim order should be granted. I understand that the concern arises that courts could continue to renew interim drinking banning orders without a final hearing ever taking place. The noble Baroness has rightly encapsulated my own concerns about this matter at an earlier stage.
The maximum duration of an interim drinking banning order is limited to four weeks. An interim drinking banning order may be renewed once or more but not for longer than four weeks from the time when it would otherwise have expired. It must in any event cease to have effect on the court’s decision on whether to make a drinking banning order. While it is technically possible for an interim drinking banning order to continue to be renewed, this should not happen in practice. It hardly seems the best use of the courts’ time—or, indeed, the police or a local authority’s time—and it seems extremely unlikely that the courts would continue to renew interim drinking banning orders.
It is right that the interim process should be exactly that and that authorities are obliged fully to satisfy the court by making a proper application for a permanent drinking banning order. Drinking banning order guidance will make this very clear. We have already given a commitment to issue such guidance. This is why an amendment which seeks to ensure the Secretary of State issues guidance is unnecessary. I do not see any need for a reference to guidance in the Bill. I should also add that the Government have given a commitment to the Lord Chief Justice that we will consult the judiciary on the draft drinking banning order guidance.
There are also several safeguards in place. An interim order will not take effect until it is served personally on the subject. Court rules will make this clear. Applications can be made to vary or discharge an interim drinking banning order if an individual believes that it has been wrongly imposed, at which point the court would have to hold a hearing to consider whether to vary or discharge the interim drinking banning order. As I sought to explain in Committee, the detail for such orders will be set out in the magistrates’ courts rules and in guidance, so coverage of this issue is very much on our “to do” list.
I can understand the noble Baroness’s irritation but I hope that she does not feel the need to press the amendment this afternoon.
My Lords, the “to do” list keeps getting longer but with this Bill it never actually gets done—that is the difficulty. The only crumb of comfort—a very small one—is that the Minister says that a commitment has been given to the Lord Chief Justice that the judiciary will be consulted on the draft drinking banning order guidance.
The Minister says that it would be bad practice and wrong to take up the court’s time continually to repeat the process and to have the four-week drinking banning order renewed. My problem is that inertia could be built in. I would not wish to see court time wasted in that way. As the Minister knows, my concern with several unconnected measures in this Bill is that there could be inertia when penalties simply get built into the system and continue without the proper review, and that the final hearing is the right way to deal with those matters. But this is not a matter that I would press further. I hope that the “to do” list does not grow but gets done. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 11 [Breach of drinking banning orders]:
[Amendments Nos. 11 and 12 not moved.]
Page 9, line 36, leave out subsection (11).
On Question, amendment agreed to.
Clause 13 [Certificates of completion of approved courses]:
Page 11, line 17, leave out from “discharged” to end of line 18 and insert “before the end of 14 days beginning with the day on which any request to do so is made by that subject”
On Question, amendment agreed to.
Clause 14 [Interpretation of Chapter 1]:
[Amendment No. 15 not moved.]
Page 12, line 47, after “under” insert “section 11 or”
On Question, amendment agreed to.
Clause 15 [Power to impose charges on licence holders etc. in zones]:
Page 13, line 20, at end insert “, provided that no charges shall be payable by any persons or clubs unless the local authority is satisfied on the basis of evidence that it is reasonable to impose charges on those particular persons or clubs”
The noble Baroness said: My Lords, I shall speak also to Amendments Nos. 19, 20, 21 and 28.
Amendment No. 17 would add a test of reasonableness into the provisions that would empower local authorities to impose extra charges on licensed businesses that fall within an alcohol disorder zone. The drafting in Clause 12 regarding alcohol disorder zones contains a fundamental flaw, as there is nothing in the scheme in its current form to prevent a local authority imposing blanket charges on licensed premises and clubs in an alcohol disorder zone regardless of the degree to which the premises contribute to the disorder. In our view, that is far too arbitrary, and is potentially extremely unfair to those businesses that, for example, close well before the usual times when alcohol-fuelled disorder may take place. The amendment we propose would impose a requirement on the local authority that it must be satisfied it is reasonable to impose charges on particular clubs or people. This provides a safeguard for individual businesses that are entirely innocent of contributing to or causing alcohol-related crime.
In Committee the Minister objected to this on the basis that we would be placing an undue burden on the local authority. We disagree. Although of course we acknowledge that establishing a causative link between individuals misbehaving due to excessive drink and specific licensed premises might not be straightforward, it is not unduly problematic, and we have sought to reduce the burden on the local authority by setting the test as one of reasonableness. A test is entirely straightforward and sensible.
The issue is essentially one of fairness. Why should a corner shop or convenience store that closes at six o’clock in the evening pay for the late-night problems caused by a few irresponsible licence holders? We on these Benches acknowledge that some licensed premises encourage irresponsible drinking; for example, by free-drink promotions and so-called happy hours, and by serving individuals who are already drunk. There are a few—not many, one hopes, and reducing in numbers. It is entirely reasonable that such irresponsible establishments should be penalised. The main concern of the bodies representing the licensed trade is that there should be a link between paying any charge and being responsible for the alcohol-fuelled trouble, and that is what my amendment seeks to address.
The Minister’s response to the debate in Committee gave more cause for concern. He stated that he thought it would be,
“reasonable to assume that all premises inside an alcohol disorder zone must be contributing in some way to the problem”.—[Official Report, 26/4/06; col. 232.]
We simply cannot agree to that broad assumption. It means that even those premises that conduct themselves impeccably could be caught by the penalty of a charge, and that would be a disproportionate way for the Government to behave.
I noticed that later, on a different day in Committee, the Minister appeared to take a different tack. I tabled an amendment to probe how the Government would expect the boundaries of ADZs to be drawn and clearly identified. In response, the Minister gave an example that looked similar to the one he had given on 26 April, but which could lead to a significant and far more helpful interpretation of the way charges would be imposed. He said:
“We want to see an ADZ drawn very tightly around the area where it is reasonable to assume that the licensed premises within that designated area have a definite and proven link to the levels of crime and disorder within the locality”.—[Official Report, 17/5/06; cols. 299-300.]
If that second reply is the correct interpretation of the Government’s intention in bringing forward these measures, we would certainly be on the same wavelength. The problem is that the Bill does not make that causal link clear in its terminology.
I shall move on to what is effectively the second set of amendments in the group; I proposed that I should take this large group together, because, as I said in opening this afternoon, it is one of the areas where significant progress has been made in discussions with the Government over the summer. It was therefore very much the wish of the British Retail Consortium and the Wine and Spirit Trade Association that I should put on record in full our concerns, and then enable the Government to give what we hope may be a satisfactory response.
The effect of the remainder of the amendments in this group would be to ensure that the two types of licensed premises set out in Clause 15(6)(a) and (b) would be exempt from any charges imposed by virtue of the clause. The first type would be those premises whose principal use did not involve the sale of alcohol, and the second would be those premises where the availability of alcohol is not the main purpose for which individuals enter them. The Minister gave an assurance in Committee, at col. 236 on 26 April, that the exemptions in Clause 15(6) would be included in regulations. I said that I would consult the British Retail Consortium and the Wine and Spirit Trade Association to see whether that was sufficient to satisfy them. I met them during the Summer Recess. They reported that they remained concerned that the Government had not put clearly on record their intentions regarding, first, exemptions; secondly, how the charges would be applied to businesses of different sizes, hours of opening and management practice; and thirdly, discounts, and whether in any circumstances a business might receive a 100 per cent discount where it had behaved appropriately.
Since we debated this matter in Committee, I have also been contacted by the public affairs manager of Boots plc. He states that Boots is very concerned that the decision on ADZs will be left to regulation. He makes the understandable point that companies such as Boots need clarification that they will be exempt. Will the Minister say today whether the Government’s view is that Boots, and companies that operate in a like manner, will be exempt from charges?
Like me, noble Lords may be a little surprised that Boots considered that it might come within the rules governing ADZs. But it was pointed out to me that there is some sale of alcoholic beverages as part of gift sets, particularly in the five months running up to Christmas. We are in that period now and I saw such sets on the shelves in my local Boots last week. For the rest of the year Boots does not sell alcohol. Alcohol sales equate to just 0.1 per cent of Boots’s turnover per annum, but it already pays more for licences than purely alcohol-based retailers, such as small off-licences, due to the fact that the cost of the licence is based not on how much alcohol you sell but on the size of the licensed area. As Mr Sheppard, representing Boots, points out, that is taken to be the whole of the Boots store. I understand that Boots has about 400 stores with licences. Obviously, it is important to know whether the Government intend that businesses such as Boots should be caught up in the ADZ charging system.
I have covered the matter in detail as I hope that the Minister’s response will be such that we may not need to return to the matter at Third Reading. I await that response with anticipation. I beg to move.
My Lords, I am pleased at the length and depth with which the noble Baroness put forward her case and at her account of the history of the matter. I declare an interest as the president of the all-party group on the retail trade. No doubt I have received the same brief as the noble Baroness from the BRC.
It is not just a question of a burden on industry but the unfairness of being tarred with the same brush. On all sides of the House there is general acceptance that something must be done about the matter. Whether this weapon, which is to be used by local and national government, is the appropriate one remains to be seen. However, the briefing that I received indicates that the relevant people are smarting at the unfairness of legislation not differentiating clearly between responsible and irresponsible retailers.
I discussed the subject of this debate with some people over lunch and we mentioned Enfield. The situation that this Bill is meant to deal with occurs from time to time in Enfield. But how do you demarcate the area within which premises will be subject to charges? It is not easy. The Minister referred to the difficulty of placing the burden on local authorities to define those areas more precisely, but that is a burden on local authorities. The retail trade has an honourable place in the economy. It is entitled to try to ensure that imposts placed on it are proper and reasonable.
The noble Baroness referred to the discussions that have taken place. I took particular note that a lot of the trouble was caused by the Minister’s remarks on 26 April:
“I think that it would be reasonable to assume that all premises inside an alcohol disorder zone must be contributing in some way to the problem”.—[Official Report, 26/4/06; col. 232.]
That is a questionable assumption. How can that be? This is the stage when better counsels and experience prevail. The people who have pleaded their case with the Minister are sensible, responsible retailers, who obviously want the best that they can get, but they are not shirking their problems. There are a number of ways in which the Government rely on retailers to police actions that the Government bring forward and which they commend. It will not help relationships between the retail industry and the Government if what is manifestly unfair treatment is let to go ahead without alteration. I am very grateful indeed that the noble Baroness has set the scene.
My Lords, I follow the noble Lord, Lord Graham of Edmonton, in referring to unfairness. That is, critically, at the base of the problem that the noble Baroness, Lady Anelay, has outlined. The purpose of the alcohol disorder zones is to spread any increased charge for policing a particular area among the licensed premises in that area. That is not right. It may be that a particular set of premises does not contribute in any way to the disorder that is taking place. As the noble Lord, Lord Graham, said, very responsible retailers may be called on to pay for the sins of others. That is fundamentally unjust and contrary to the spirit of the common law of this country. We on these Benches will wholly support the noble Baroness in whatever decision she makes on the amendment.
My Lords, I am, as ever, grateful to the noble Baroness, Lady Anelay, for giving me an opportunity to clarify some of my comments from an earlier stage in the Bill, which have been interpreted in a way that suggests that we want to put in place a scheme that would operate unfairly; clearly we do not. We want something that is workable and which everyone feels comfortable and confident in supporting. I hope that what I say on the amendments can offer some reassurance, and I am sure that it will.
Amendment No. 17 would oblige local authorities to determine whether individual pubs and clubs had directly contributed to alcohol-related crime and disorder before including them in the scope of the alcohol disorder zone charge. That would, in effect, mean that the local authority would have to establish a clear link to the particular pubs, clubs and off-licences that inebriated offenders had patronised. When the amendment was debated in Committee, I said that I believed that it was, in general terms, unworkable, and I remain of that view.
As we recognised in Committee, there is a tension with alcohol disorder zones. They will inevitably include some responsible operators. That has been the theme of much of our discussion with the trade associations representing both the off-licence and on-licence operators. I concede willingly that their concern is understandable, particularly at a time when the trade is taking big steps to raise operating standards, which we welcome. We welcome the expressions of concern by the trade associations, which have helpfully been given full voice on all sides of the Chamber this afternoon.
I offer the House assurances about the way in which the provision will be used. First, as I made clear, ADZs will be there as a last resort, to secure collective responsibility for alcohol-related crime and disorder in a locality when all other measures have failed. That action must include using the full force of the provisions in the Licensing Act 2003. Where evidence reveals a few clearly identifiable problem premises, local authorities and the police should not reach for an ADZ; the Licensing Act should be used. Alcohol disorder zones become an option where this and other interventions have been tried and there is still a more general problem. ADZs cannot and will not become a routine intervention. I believe that our work on alcohol disorder zones with representatives from local authorities and the police bears this out. As ADZs will not become a routine intervention, I can inform the House that we will review their operation two years following their implementation. The review will be undertaken earlier, if necessary—for example, if we find that their use escalates out of control, which we will take action to rectify.
In relation to charging premises, we recognise that not all premises should pay the same. We propose a national charging framework that will be structured and calibrated so that account will be taken of the risk that individual premises pose. This will be linked to the level of service that they receive and the amount that they pay. For example, a small pub on the corner closing at 11 pm will pay much less than a large bar closing at 3 am. I accept that that does not precisely address what the noble Lords are seeking in their amendment, but constructing the charge in this way will allow us to gear both the charge and the service received to reflect the different nature of licensed premises. There will not be a flat-rate charge for all.
Opposition Amendments Nos. 19, 20, 21 and 28 deal with exemptions. Clause 15(6) provides for the only exemptions from the ADZ charge that can be granted. Premises must pass both a principal use test and a patronage test to qualify for an exemption. The amendments would provide for more exemptions through regulations, and premises might not necessarily have to pass more than one test to claim the exemption. Alcohol disorder zones are intended to encourage licensees within the designated locality to work together to reduce alcohol-related crimeand disorder. We recognise that there should be exemptions from the charge. The intention ofClause 15(6) is to provide a sensible basis for decisions to be made around both use of the premises and their patronage. We need to go no further than that.
Perhaps I may give an illustration of how we expect the exemptions to work in practice. We have made it clear that our policy intention is for restaurants and hotels to be exempt from the charge and we have assured the British Hospitality Association on that count. The Bill also provides for discounts to be granted on the charge. I can inform the House that when we ask Parliament toconsider regulations, we will propose discounts of up to 100 per cent of the charge in certain circumstances. Local authorities will have to establish a time for ADZ services to commence, which would need to be evidence-based in relation to when crime and disorder occurred. Premises that closed before that would receive a 100 per cent discount. I believe that that addresses the points raised by stakeholders, including the Wine and Spirit Trade Association, which was concerned that premises might pay for services that were delivered after they closed and for which no direct benefit was received.
That also addresses some of the points made by the noble Lord, Lord Thomas of Gresford, in Committee and by the noble Lord, Lord Graham of Edmonton. No doubt there could be an interesting debate on whether a 100 per cent discount is an exemption, but I am sure that noble Lords will not be too disappointed if I fail to enter that semantic discussion.
Through the discounting arrangements, we will be seeking to deliver on some of the issues that lie behind the amendments. I am sure that the noble Baroness will recognise much of what I have said from discussions that she has had with Tony McNulty, the Minister of State at the Home Office. He also wrote to her on 11 October detailing these and other matters. I have placed a copy of that letter in the Library of the House so that all noble Lords can have sight of it.
The noble Baroness also raised a point about Boots the chemist, which I understand perfectly well. In fact, I have a horrible feeling that at some stage some years ago I may even have purchased one of those glorious packs to which she referred. I probably bought it as a present that no one wanted to receive.
In the context of exemptions, it was mentioned that the noble Baroness had been approached by Boots the chemist, which was concerned that it might be subject to charging in an ADZ. As she explained, Boots sells alcoholic gifts at Christmas. As the correspondence points out, the noble Baroness can be assured that local authorities will make decisions on exemptions on a case-by-case basis. I place on record our view that it is extremely unlikely that Boots will be caught by the charge simply because it sells seasonal gifts. On the basis of its business model, I cannot see that the sale of alcohol is the principal use to which its premises are put or that its patronage is focused mostly on the sale of alcohol. That assurance is given in correspondence and it is one that I am happy to repeat from the Dispatch Box because I think that it might help our deliberations and assist noble Lords who may be contemplating pushing the amendment to a vote. I hope that the amendment will be withdrawn.
My Lords, I suppose that that question could be posed in relation to any new power that any Government ever took at any time. The commitment makes very clear, and I have put it clearly on the record this afternoon, that we would be very surprised if we thought that local authorities and the police working together werenot using the ADZ regime appropriately and proportionately in the circumstances and not using it as an instrument of last resort, all else having failed. In those circumstances, not only would a review be brought forward but it would have to be conducted at some speed. That is not the intention of the legislation and I want to make that absolutely clear. I hope that that reassures the noble Lord, Lord Waddington.
My Lords, my noble friend Lord Waddington went to the heart of my concerns when I first tabled these amendments. As the Minister knows, I was worried that we were coming forward with a package of provisions that local authorities in some areas might be tempted to see as a way of obtaining extra income and that therefore they might go through this procedure. The British Retail Consortium and the licensed trade had similar concerns.
I appreciate that over the past months the Government have been trying to say that the process by which an ADZ may be designated and maintained is so carefully drawn and convoluted that it would not be an easy option for a local authority to take. The Government are trying to get the balance right and to assure me that the review will take place after two years. The fact that they have recognised that it may have to take place before two years shows that, even in government, it is recognised that some areas might adopt ADZs too easily. I hope that that is not the case, because we all want some kind of provision that assists local authorities to obtain better policing for their communities on these matters, particularly in the middle of the night. Although I accept the Minister's assurances today, overall I still have niggling concerns about whether ADZs will be used more frequently than they should be, and I am grateful to my noble friend Lord Waddington for raising that issue.
I am grateful for the support from the noble Lords, Lord Graham of Edmonton and Lord Thomas of Gresford, who again spoke on the core issue of fairness. We were all trying to address that. As the noble Lord, Lord Graham of Edmonton, said, the retail trade has an honourable place in our economy—I thought that that was a very appropriate quotation from him.
After I received the letter from the Government last Thursday, I ensured that the licensed traders were able to see that letter—the Government forwarded it to them by e-mail. They were able to consider it and their view was that, if the Minister fairly put on the record those assurances, that would be sufficient for them. The Minister says that the letter is in the Library, and it is always helpful for the public to know that, but an assurance at the Dispatch Box gives the retail trade that added assurance and provides a guarantee that things may happen in the way it hopes.
On whether there is an exemption or a discount, I do not believe that the retail trade is concerned under which head it falls, as long as responsible traders are not caned by having extra taxes for events to which they have made no contribution. The commitments given by the Minister today make it possible for me not to press this group of amendments and I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Page 13, line 36, at end insert-
“(c) must require a local authority to ensure that the level of charges which they impose acts as an encouragement to local action and not as a hindrance to the viability of local businesses.”
The noble Lord said: My Lords, the noble Baroness, Lady Anelay, referred to her fears, which we share, that the ADZ scheme would be seen as a way of raising extra revenue. When the noble Lord, Lord Bassam, replied to a similar amendment on26 April he said:
“The charge needs to be set at a meaningful level which is sufficient to recoup local agencies’ costs in mounting effective enforcement interventions based on what is required to properly reduce crime and disorder in any given locality”.
In other words, local businesses would pay for the security firms and for extra policemen possibly—although that is unlikely—to patrol the particular area. That was a matter which concerned us. I tabled an amendment in Committee, suggesting that there should be a cap on the compulsory charge which would be the equivalent of 3 per cent of the premises’ annual rateable value. That was a fairly arbitrary figure but it provided a mechanism which could differentiate between different sizes of businesses. However, things have moved on and the Minister has given us foresight of the regulations, but not the regulations themselves, of course. I understand that there will be a national charging scheme with differential charges—there will not be a flat rate—and there will, of course, be discounts, to which the noble Baroness, Lady Anelay, referred a moment ago.
In Amendment No. 18, all I am now seeking is that the regulations that we are promised should not impose an artificial cap, but should take into account the words of the Minister in Committee when he said:
“The important thing is that we get the principles right, that it does not act as a disincentive, and that it acts as an encouragement to get collective action at work”.—[Official Report, 26/4/06; col. 207.]
I have used those words in my amendment, which, as your Lordships will see, suggests that the regulations,
“must require a local authority to ensure that the level of charges which they impose acts as an encouragement to local action and not as a hindrance to the viability of local businesses”.
I recognise that that is a great deal vaguer than the3 per cent which I proposed in Committee. I believe that the local authority must have in mind at all times that this is not a revenue-raising situation which can continue indefinitely, but that it is designed to deal with a specific problem, over a specific period—another matter to which we shall turn shortly—and that there should be a time limit on the imposition of these zones. I am not asking for a great deal and I hope to achieve some success on this occasion. I beg to move.
My Lords, as the noble Lord, Lord Thomas of Gresford, said, the amendment would require the Secretary of State, when laying regulations on charging, to qualify the level of the charge paid locally. In particular, the regulations would require a local authority to ensure that the level of charges that it imposes acts as an encouragement to local action and not as a hindrance to the viability of local businesses. I am sure that the amendment has been moved for good reason.
I understand where the noble Lord is coming from and that we are going back to putting a cap on the compulsory charge within an ADZ. I recognise that the amendment bears some relation to our earlier debates. Yes, the charge needs to reflect the last-resort nature of ADZs and help incentivise local action. We are not about setting charges at a level that forces people to stop trading—that would be completely outwith our expectations of the legislation and it is not what we are trying to do. At the same time, however, we hold that the charge needs to be set at a meaningful level that is sufficient to recoup local agencies’ costs in mounting effective enforcement interventions based on what is required to reduce crime and disorder locally—so the charge must be realistic.
We have ensured that the charge will be applied fairly. There will be a charging formula which takes account of a premises’ size, hours of opening and management practice. The clear aim is to have charges that are proportionate, reflecting the level of risk proposed by licensed premises and the level of enforcement activity required. And, as I explained earlier, we have provided for discounts. Outlets that close before ADZ enforcement activity commences will receive a 100 per cent discount. Local authorities will be able to grant discounts of up to 100 per cent to recognise compliance with the action plan—again in our view, making the charge fair and proportionate. But can we impose a one-size-fits-all upper level of charge? I think not. While I applaud the intentions of the noble Lord, I do not think that the amendment takes us any further.
However, I am prepared to undertake that we put something along these lines in guidance. We will reinforce the key point, which is that the charge should incentivise local voluntary action, and should do nothing which undermines local businesses, drives them towards bankruptcy, or acts as a backdoor means for the local authority to raise additional revenue. We are prepared to undertake to include in guidance something that deals with the noble Lord’s point so that the issues he has raised are properly understood by local authorities when they come to consider their charges. I hope that with that undertaking, he will withdraw his amendment.
My Lords, I am encouraged by the Minister’s words. I hope that local authorities can be made accountable for these charges and that they will be able to demonstrate a relationship between the level of the charge and the costs that are incurred by additional safeguards within alcohol disorder zones. I hope that that is included in guidance. I wish that we could see these regulations and I certainly wish that we could see the 2,000 pages of guidance that will result from this Bill. A huge amount will be attached to almost every clause. I am content and I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 19 to 21 not moved.]
Clause 16 [Designation of alcohol disorder zones]:
Page 14, line 29, after “been” insert “persistent and repeated”
The noble Lord said: My Lords, Amendments Nos. 22 to 25 deal with Clause 16, dealing with the designation of alcohol disorder zones. I am anxious that the local authority should not make such orders without an appreciation of a persistent and repeated problem. As the Bill stands, the local authority could designate an alcohol disorder zone if there has been a single instance of nuisance or annoyance. That is why I seek to include the words “persistent and repeated”.
On Amendment No. 23, for reasons I explained in relation to Amendment No. 1 and subsequent amendments, we would leave out the words “or disorder”.
Amendment No. 24 raises an important principle because an alcohol disorder zone can be imposed even though the nuisance, annoyance or disorder does not occur within the zone itself. The clause permits the imposition of an alcohol disorder zone if the nuisance or annoyance takes place near that locality. I find it difficult to understand why one would impose such a zone simply because of a disorder down the road. In Committee, the Minister said that there might be a problem at the taxi rank or the bus station, but that does not give any strength to the argument that an area containing licensed premises should have statutory charges imposed upon it to pay for policing not of that zone, but of the bus station, the taxi rank or somewhere adjacent to the zone, but not necessarily in it. I do not see why public houses and licensed premises should carry such a burden. If the boundaries of the zone are not defined, but rely on areas outside that zone, the charges imposed on the licensed premises are even more unfair, so I hope your Lordships will consider this amendment to remove the words “or near”.
Amendment No. 25 ensures that the provisions of the Licensing Act 2003 have been fully used. It does so in order to prevent a local authority declaring an alcohol disorder zone, getting a charge and raising the money for the local police force and so on without using the existing provisions in the Licensing Act 2003.
These amendments tighten the circumstances in which alcohol disorder zones are designated. I beg to move.
My Lords, Clause 16(1) sets out the criteria for the designation of an alcohol disorder zone: first, a general test based around nuisance, annoyance and disorder in or near the locality; secondly, a link to the consumption of alcohol; and thirdly, a likelihood of repetition.
The noble Lord’s amendments focus around the first criterion and seek to add a further restrictive limb. They add a qualification that the public nuisance would have to be “persistent and repeated”, remove the terms “disorder” and “or near” from the first limb of the test and add a further limb placing an explicit requirement that full use of the Licensing Act 2003 had been made.
In response to the noble Lord’s point about “persistent and repeated”, I have made clear that alcohol disorder zones are an intervention of last resort, and we want to signal that. On the other hand, we want to ensure that the power can be used with a degree of flexibility. The Bill provides the overall framework. Clause 19 provides for guidance to be issued on the administration of ADZs, Clause 19(2) places a duty on the Secretary of State to ensure that the guidance sets out what alternative steps should be considered prior to proposing an ADZ and Clause 19(4) places a duty on local authorities to have regard to the guidance. The guidance will set out clearly the alternative interventions to deal with alcohol-related crime and disorder, including tackling incidents that are not persistent.
So we do not need the reference to “persistent and repeated” that the amendment would provide. I can also give an assurance that the guidance will emphasise that and specifically refer to full use of the Licensing Act 2003 before designating an alcohol disorder zone. That takes account of the concern at the heart of one of the noble Lord’s amendments.
On the removal of the term “disorder”, it would not be wise to lose the link between disorder and anti-social behaviour and alcohol. We need to tackle those behaviours, which have a significant impact on our communities. We want that in the Bill.
Finally, turning to the removal of the term “or near” from the criteria, I certainly understand what the noble Lord says. As I recall, we had an interesting debate on that point in Committee. As I understand it, the noble Lord is concerned that problems occurring away from the immediate vicinity of licensed premises should be attributed to them and that they end up having to pay for services to tackle that problem.
It is important to draw a distinction between local authorities making the case for an ADZ, how the ADZ will be drawn and what services the compulsory charge will cover. On making the case, it is important that some account is taken of the impact of alcohol-related crime and disorder in the area near the concentration of licensed premises. To give an example, residents in a nearby street may be disturbed by rowdy drunks leaving the premises, or there may be pinch points at a nearby taxi rank. All of that is alcohol-related and associated with patronage of the premises.
Of course, the voluntary action plan may include preventive steps to tackle those problems—perhaps contributions towards a taxi marshal. On designation of the ADZ, the zone will be tightly drawn around the premises concerned and the compulsory charge will cover enforcement activity directly affecting the premises. The charge will not cover supervision of a taxi rank or the patrolling of streets outside what we envisage as being a tightly drawn area.
I hope that as I have given those assurances, the noble Lord will feel able to withdraw his amendment.
I have to say that I am not satisfied with that assurance. It is very important that the alcohol disorder zone should be a solution of last resort, as the Minister has said on many occasions. It is also strange that, although an order can be made because of disturbance near the locality of the zone, if the Minister is correct, the charge cannot be used for the payment of means of suppressing the disorder elsewhere. That is totally illogical. So it would not be used to police the taxi rank or the quiet neighbourhood street where the problem is impacting on local people.
I could understand if the noble Lord were putting that forward as an explanation for the word “near” the locality, but that is not the case. The people who live in the next street, the quiet residential area, who have drunks rolling down there from the alcohol disorder zone, will have no better policing or security than they have now—at least, it will not be paid for by the licensed premises, which has to pay on the rationale that it is causing the problem in that locality.
I have to say that the clause as drafted and the designation of the zones is far too loose. If it is to be a matter of last resort, it should be drafted much more tightly, in the way that we have suggested. I propose to test the opinion of the House.