Report (5th Day)
244A: After Clause 96, insert the following new Clause—
“Exemption from civil proceedings for trespass brought by offender
(1) Section 329 of the Criminal Justice Act 2003 (civil proceedings for trespass to the person brought by offender) is amended as follows.
(2) In subsection (1)(b) at the end insert “, and”.
(3) After subsection (1)(b) insert—
“(c) at the material time, the defendant was not a constable acting in the course of his duty.””
My Lords, the purpose of my amendment is to amend Section 329 of the Criminal Justice Act 2003 to exclude civil proceedings against the police for trespass against the person occasioned during an arrest. Section 329 was designed to cover a situation where an individual harms another while that other is attempting to commit a crime against the individual. It was enacted in response to the case of Tony Martin, who shot two intruders to his home who he thought were attempting a burglary. Section 329 provides that the court must give permission for an offender to bring a civil suit for an assault committed at the time and in the circumstances that the offender committed the act for which he was convicted. There was a great deal of public disquiet that a person engaged in burglary should be able to sue the householder who had injured him.
Under Section 329 of the Criminal Justice Act 2003, the defendant has a defence to proceedings brought by the injured offender if he believed that the offender was about to commit an offence, was in the course of committing an offence or had committed an offence and that the defendant’s actions were necessary to defend himself or another person, protect or recover property, prevent or stop the offence or catch or secure the conviction of the offender, but only if his action was not grossly disproportionate. In other words, it was designed to protect the householder who reacted instinctively against an intruder into his home and injured that person, so that no suit could lie in the civil courts unless the force used was completely disproportionate. Unfortunately, it appears that only the police have taken advantage of Section 329 when they injure an individual in the course of arresting him.
To cite the judgment in Anthony Adorian v Commissioner of Police of the Metropolis—2009, EWCA Civ 18, paragraph 7—the standard historically set for police action and
“painstakingly established in the course of two centuries and more, and fundamental to the civil rights enjoyed by the people of this country”,
“an arrest must be objectively justified and that no more force may be used in effecting it than is reasonably necessary”.
When a police officer arrests an individual, he may, in the historic development of the common law, use no more force than is reasonable. That was replaced by Section 329 which requires only that the police do not use “grossly disproportionate” force in arresting and that arrests are not in bad faith, even though they may be entirely unreasonable. In the Adorian case, Anthony Adorian suffered injuries in being arrested which were so severe that the force medical examiner concluded that he was unfit to be detained. His class of injury is associated with head-on car crashes or falls from a significant height, but the claimant, Adorian, had been walking at the moment of arrest and, as the judge said in his decision,
“there is at present no evidence suggesting either that he has brittle bones or that anything happened following his arrest which is capable of explaining the injuries”.
When Section 329 was debated in the course of the passage of the 2003 Act, the noble and learned Baroness, Lady Scotland of Asthal, introducing it, said that it,
“would strengthen the civil law to improve protection for victims of crime against civil claims for damages by offenders”,
and that it,
“benefits third parties who are not the direct victim of the offence, but who may have intervened to protect the victim or deter the criminal”.—[Official Report, 11/11/03; cols. 1307-8.].
There was no mention during the introduction of Section 329 in 2003 of the police. Nothing was said about the police.
Lord Justice Sedley, giving the judgment in the Adorian case to which I referred, said:
“Conscious of art. IX of the Bill of Rights 1689, we say only that there is no indication that Parliament was aware, much less intended, that what it was enacting would have this effect”.
Nobody thought that Section 329 would be used by police who had used unreasonable force in effecting the arrest of an individual. So there is a mismatch between criminal and civil proceedings as far as the police are concerned. It is a defence to a criminal charge of assaulting a police officer to show that you are protecting yourself against unreasonable force on the part of the police. In that situation, the police cannot argue that although the force was unreasonable, it was not grossly excessive. That is on the criminal side. But if the same person who had been arrested unreasonably by the police tried to sue them for civil trespass to the person, the police could and do rely on Section 329 and will succeed unless the claimant shows not that their actions were unreasonable—that an unreasonable amount of force had been used—but that that their actions were grossly disproportionate. In other words, a test to be applied for the householder defending himself against intruders has only been utilised, as far as research can pinpoint it, by the police to defend themselves against civil cases.
Ordinary people may be given some leeway for honest and instinctive overreaction when they are protecting or defending themselves or another from a crime, but a police officer, who is trained in the use of force, must be required to justify his or her actions objectively and to use no more force in effecting an arrest than is reasonably necessary. It should be a different standard. I was involved in a case in Trinidad, where a police officer who had produced a gun and shot two individuals at a riot at a fête argued provocation. The prosecution in that case said, “Well, of course, you are a trained police officer. You should not react to unarmed civilians, even if they are threatening you, by producing a gun and shooting them”.
Amendment 244A would amend Section 329 to remedy a classic example of unintended consequences and to restore the position that a trespass against the person occurring in the course of an arrest by a police officer must be objectively justified, and that no more force must be used than reasonably necessary. Otherwise, as has happened for centuries, the arrested person should be able to bring a claim for damages. The amendment would add a new paragraph (c) to Section 329(1) that would effectively exclude a constable acting in the course of his duty from relying on the test intended for the householder. I beg to move.
My Lords, I can be very brief and start by saying how grateful the House should be to the noble Lord, Lord Thomas of Gresford, for explaining this amendment so clearly. We support the amendment. It seems sensible; and it seems equally sensible for the Government, when a sensible amendment is put before them, to react favourably. It would cost them nothing to accept the amendment and would put right something that has been slightly wrong in this section of the 2003 Act. As the noble Lord said, this is a classic example of unintended consequences. His analysis of the law seems to us to be correct and it would be sensible for the Government to accept the amendment.
I am grateful to the noble Baroness, Lady Browning, for having sent a letter to all interested parties on 24 June, included in which is a part that addresses this particular issue. She argued that no formal consultation had taken place between the police and the Government although there had been some informal consultation. She suggested that the Government would not give way on this amendment but we will wait for the noble Lord, Lord Wallace, to answer for the Government. If the noble Lord, Lord Thomas of Gresford, were minded to push this extremely sensible amendment to a vote, we would support it.
My Lords, this amendment is near identical to one tabled by the noble Lord, Lord Lester, during Committee stage of this Bill, and to which we gave a fairly full response at the time, so I will be brief. We promised the noble Lord in my response at the time that we would give the matter further consideration. Having done so, I am afraid that the advice we have received is that we remain unconvinced that we want to make an amendment that would make it easier for a convicted offender to sue the police for damages until we hear good answers to the questions and issues that I mentioned in Committee and which I will not repeat here.
We have looked at this again and take the view that the previous Government also took when the issue was raised in 2009. The House should be very clear that Section 329 does not give the police carte blanche to use disproportionate force. They are still subject to the criminal law which permits only reasonable force. All that Section 329 does is raise the bar by making it more difficult for criminals to get financial benefit from situations where they were the ones committing an imprisonable offence. It is reasonable and fair to treat a person who holds the office of constable in the same way for these purposes as any other member of the public. We should not rush to the assumption that it is an unintended consequence for the police to enjoy the protection of Section 329. As I have suggested, the police will inevitably be the people most likely to be able to invoke Section 329, given that their job involves confronting people who are in the course of committing imprisonable offences. The text of Section 329 supports this since subsection (5) specifically extends the protection to people who believe their act was necessary to
“apprehend, or secure the conviction, of the claimant after he had committed an offence”.
I therefore remain unconvinced that an amendment to Section 329 of the 2003 Act in the way proposed by the noble Lord is the right way forward. I hope that after the reassurance that we have again considered this issue the noble Lord will feel able to withdraw his amendment.
I note that my noble friend Lord Lester raised this matter in the Policing and Crime Bill 2009, and that at that stage undertakings were given by the noble Lord, Lord Brett, on behalf of the then Government to consult the police on the unintended consequences. That was reiterated on Report, and in February of last year, the noble Lord, Lord Bach, said that consultation had not yet taken place, and it still has not taken place. I do not think that it is appropriate that this matter should be put on the shelf until we have another Bill into which it can be inserted. It is very important that the police should not be able to shelter behind a provision that clearly was not designed for them, as the noble Lord, Lord Bach, has just acknowledged. Consequently, I propose to test the opinion of the House.
Schedule 14 : Police: complaints
245: Schedule 14, page 154, line 40, leave out “this paragraph” and insert “sub-paragraphs (2) to (5)”
My Lords, the government amendments to Schedule 14 correct a number of drafting errors that have come to light during the passage of the Bill. The changes are necessary in order to ensure that the changes to the existing police complaints legislation work properly. I assure noble Lords that in the main they are technical, drafting points that, for example, correct incorrect numbering and add consequential amendments that were missed. I realise that there are other amendments for debate in this group. I beg to move.
My Lords, I will speak to Amendment 256 in this group. Before doing so, I apologise to the House that I may be unable to stay until the end of the debate. I have to attend a special meeting of the Metropolitan Police Authority where the commissioner is coming to answer questions about the events surrounding the various police investigations into the News of the World.
The amendment relates to the handling of complaints against senior police officers in London.
I apologise to my noble friend Lady Doocey and I am most grateful to her for allowing me to intervene. This is the first time that I have heard a Member move their amendment and say that they might not be here at the end of the debate. Clearly, the Minister has to be in a position to respond to my noble friend. Perhaps she will consider her position and either continue and undertake to remain until the end of the debate on the amendment, or perhaps ask one of her very able colleagues to move the amendment on her behalf. I am concerned that we should not deviate from the normal practices of the House. I think that the noble Baroness, Lady Hamwee, may be about to offer her assistance.
I hope that I can reassure the House. In discussions with my noble friend, neither of us realised that we would reach this group quite so soon. My noble friend should be able to be here until well after we have got through this group—unless she is going to take an hour and a half, in which case there will be other problems.
I apologise to the House if I have got it wrong yet again and I thank my noble friend Lady Hamwee. My amendment relates to the handling of complaints against senior police officers in London. The Bill proposes that responsibility for complaints against senior ACPO officers—that is, officers below the rank of deputy commissioner—should be moved from the Metropolitan Police Authority to the Metropolitan Police Commissioner. My concern is not that this would make the commissioner responsible for employing, promoting and disciplining officers—I do not have a major problem with that—but that it would also make him responsible for sackings and, crucially, for hearing appeals against his own rulings. It would remove all the elements of independence and transparency that the Metropolitan Police Authority currently provides and would in effect make the commissioner judge, jury and executioner.
The proposals are deeply flawed because they concentrate too much power in the hands of the commissioner without any proper checks and balances. There is also no effective framework to safeguard impartiality. I am aware of the Government's response to the argument. They argue that it is commonplace for complaints to be decided within an organisation rather than by an external arbiter. However, this fails to appreciate that police officers are in a unique position. They are officers of the Crown who have the power to detain members of the public and to take away their freedom through arrest. Consequently, there is no valid analogy with how other organisations—even the Armed Forces—deal with complaints, conduct, dismissals and appeals. It is in the interest of the police that they should be able to demonstrate an independent element in the assessment of the seriousness and reputational risks of allegations made against their most senior ranks. The Bill envisages allowing appeals to the IPCC, but only at the end of the process. That is no substitute for an independent review of whether standards of conduct may have fallen below those that the outside world would recognise as proper.
Lack of independence also creates another problem. A very likely consequence of the new system is an increase in the number of complaints against the commissioner for failing properly to investigate complaints against ACPO officers under his command. If those making complaints against a senior officer feel that the issue has not been properly or sufficiently well dealt with in the first instance, they will almost certainly lodge a complaint against the chief officer. The whole rigmarole in turn creates an increased possibility of legal challenge.
I believe there is a more fundamental problem. In any closed institution, such as the police, it is common for custom and practice to become entrenched. An independent element is vital to provide a counterbalance and to ensure due process. It is worth considering the virtues of the current system for handling complaints. At present the Metropolitan Police Authority hears complaints through its professional standards cases sub-committee and there is a right of appeal to the Police Appeals Tribunal. This current system is not an accident of history. It evolved to address concerns about the perceived lack of independence and accountability in how complaints and conduct matters had been handled previously. Are we really confident that policing has matured sufficiently to deal with these concerns? The Government seem to be ignoring the lessons of the past and are therefore likely to repeat the errors of the past.
Since the Bill abolishes the Metropolitan Police Authority, the purpose of my amendment is to restore equivalent safeguards to the new arrangements. The amendment would, within London, make the Mayor’s Office for Policing and Crime the relevant appeals body. It is also essential that the Mayor’s Office for Policing and Crime has statutory access to all information and systems where complaints are recorded. Without this, the Mayor’s Office for Policing and Crime will be totally reliant on the commissioner advising it of complaint or conduct matters. It would also be unable to discharge the functions proposed in the Bill to ensure that chief constables have fulfilled their duty in the handling of such complaints. The Government’s proposals do no favours to the PCC. They expose him or her to accusations—unjustified, one would hope—of conflict of interest, bias and favouritism. This amendment would avoid these pitfalls without in any way affecting the proper authority of the PCC and the correct limits to his or her discretion. I therefore commend this amendment as a means of preserving the necessary elements of independence, transparency and impartiality. I beg to move.
I understand the thrust of the noble Baroness’s argument, but it is interesting that in her amendment she seems to be proposing that outside the Metropolitan Police area the chief constable still carries out that function. I wonder why she has not amended the situation outside London. The logic of what she is saying is that if it is the MOPC in relation to the Metropolitan Police area, it would presumably be the police and crime commissioner who would do the same thing in other areas. I should be grateful if she would clarify that point for me.
I can only plead ignorance and apologise. My amendment was meant specifically to deal with London and I do not think I was sufficiently good at checking that the final version of the amendment dealt just with London. I crave your Lordships’ indulgence.
I am very grateful to the noble Baroness for that. She has raised an important matter of principle and it will be interesting to see what response the Minister gives. If it were a sympathetic response, in which we had an opportunity at Third Reading to discuss this again, she might wish to look at the wording of the amendment. That depends on the Minister.
The principle that the noble Baroness has enunciated must be right. I hope she will pursue this. As for the government amendments, we, of course, welcome them.
My Lords, I have a query in relation to Amendment 245. A number of years ago, I was a member of the complaints committee of Northumbria Police Authority. I well remember being advised that every complaint that was written down was provided to the committee to see, whether or not it was regarded as spurious and whether or not action had been taken or was going to be taken. We were given all the original correspondence and a summary of the action that had been or would be taken. That system seemed to work well.
However, I would appreciate the Minister’s clarification on a point in the Bill. Paragraph 8(2) of Schedule 14 to the Bill substitutes paragraph 2(1) of Schedule 3 to the Police Reform Act 2002 with a new sub-paragraph which states:
“Where a complaint is made to the Commission, it shall give notification of the complaint to the appropriate authority”.
So far, so good, but it then states:
“But the Commission need not give that notification if the Commission considers that there are exceptional circumstances that justify its not being given”.
It is not clear to me, but it may be made clear by regulations or other means, what the definition of “exceptional circumstances” is. Years ago, I was in a position where every complaint was written down and was provided to the complaints committee. We need to be reassured that a structure is not being created whereby complaints made are simply not acted upon because there are deemed to be exceptional circumstances that justify there being no further progress on them.
My noble friend’s amendment would mean that the responsibility for dealing with appeals in relation to low-level complaints against the Metropolitan Police would be handled by the Mayor's Office for Policing and Crime rather than the responsibility resting with the Commissioner of the Metropolitan Police. While the Government recognise that giving the Mayor's Office for Policing and Crime responsibility for dealing with appeals against the handling of low-level complaints is one way of providing some independent scrutiny of such matters, we are not persuaded that the duty to consider individual appeals should rest with the Mayor's Office for Policing and Crime.
It is commonplace for complaints to be decided—as the noble Baroness said, because I think she has heard me say this before—within an organisation rather than by an external arbiter. In practice, the chief officer will not be hearing an appeal against his own decision. The duties will be delegated so that, for example, the initial decision is taken by the line manager of the officer complained against and the appeal is conducted by the professional standards directorate. A complainant who feels that an appeal has not been properly considered will have further routes of redress, first to the Mayor's Office for Policing and Crime, which can direct the chief officer to look again at the matter, and secondly to the courts if the decision is irrational or unfair.
The Government consider that these safeguards are sufficient and achieve the same effect as this amendment suggests. Further, we are concerned that giving the Mayor's Office for Policing and Crime responsibility for hearing all low-level complaints against the Metropolitan Police would place a significant burden on the office and distract it from its core duties of securing the maintenance of an efficient and effective force and holding the commissioner to account for the exercise of his or her functions.
As a final point, the amendment would mean, as the noble Lord, Lord Hunt, has already identified to my noble friend, that the police complaints regime would operate differently in London from the rest of England and Wales where low-level appeals would remain the responsibility of the chief constable.
With regard to the interpretation of “exceptional circumstances” raised by my noble friend Lord Shipley, rather than giving a detailed explanation off the top of my head, I will take advice and write to him about it. I hope that will be of help to the House. On this basis, I hope that my noble friend will not press her amendment.
Amendment 245 agreed.
Amendments 246 to 255
246: Schedule 14, page 155, line 16, at end insert—
“(6) In consequence of the amendments made by sub-paragraphs (2) to (5)—
(a) in section 12(2) (complaints, matters and persons to which Part 2 applies), omit “, paragraph 2(4) of Schedule 3”;(b) in section 29(1) (interpretation of Part 2), omit paragraph (b) of the definition of “recordable conduct matter”.”
247: Schedule 14, page 156, line 13, leave out “paragraph 7(6)(a)” and insert “paragraphs 7(6)(a) and 16(1)(a)”
248: Schedule 14, page 156, line 14, at end insert—
“(3) In section 22 (power of the Commission to issue guidance), in subsection (5)(c), omit sub-paragraph (ii) (and the word “and” at the end of sub-paragraph (i)).”.”
249: Schedule 14, page 156, line 34, leave out sub-paragraph (6) and insert—
“(6) For sub-paragraph (2) substitute—
“(2) The appropriate authority shall notify the complainant —
(a) that the appropriate authority has decided to handle the complaint as permitted by sub-paragraph (1) (in a case where the appropriate authority is not required to apply for permission under sub-paragraph (1A) to so handle the complaint); or(b) about the making of the application under sub-paragraph (1A) (in a case where the appropriate authority makes such an application).”.”
250: Schedule 14, page 157, line 5, leave out “this paragraph” and insert “sub-paragraphs (2) to (4)”
251: Schedule 14, page 157, line 30, at end insert—
“(5) In paragraph 16(2)(a) of Schedule 3, for “10(4)(b)” substitute “10(4D)”.”
252: Schedule 14, page 157, line 34, leave out “this paragraph” and insert “sub-paragraphs (2) to (4)”
253: Schedule 14, page 158, line 21, at end insert—
“(5) In paragraph 16(2)(a) of Schedule 3, for “11(3)(b)” substitute “11(3E)”.”
254: Schedule 14, page 163, line 44, leave out sub-paragraph (9) and insert—
“(9) In sub-paragraph (9)—
(a) for “Commission” (in the first three places) substitute “relevant appeal body”;(b) for “considers appropriate, the Commission shall” substitute “considers appropriate—(a) sub-paragraph (9ZA) applies if the Commission is the relevant appeal body; or(b) sub-paragraph (9ZB) applies if the chief officer of police is the relevant appeal body.(9ZA) The Commission shall—”(9A) Before sub-paragraph (9A) insert—
“(9ZB) The chief officer of police shall take such action as the chief officer thinks appropriate in relation to the bringing of disciplinary proceedings in respect of the matters dealt with in the report.
(9ZC) If disciplinary proceedings are brought by virtue of sub-paragraph (9ZB), it shall be the duty of the appropriate authority to ensure that they are proceeded with to a proper conclusion.”.”
255: Schedule 14, page 164, line 8, leave out “the”
Amendments 246 to 255 agreed.
Amendment 256 not moved.
Schedule 15 : Police reform: transitional provision
Amendments 256A to 256G
256A: Schedule 15, page 165, line 26, leave out from beginning to end of line 3 on page 166 and insert—
“Chief officers of policeCurrent chief officers to remain in post1 (1) At the relevant commencement time a person who, immediately before that time, is in post as the existing chief officer of the police force for a police area becomes the new chief officer of that police force.
(2) Where a person has, prior to the relevant commencement time, accepted an appointment as the existing chief officer of the police force for a police area which is to come into effect at a time (the “effective time“) which falls at or after the relevant commencement time, that appointment is to take effect at the effective time as an appointment as the new chief officer of that police force.
(3) Sub-paragraph (2) is without prejudice to any right of the person appointed not to take up the appointment.
Transfer of rights and liabilities2 At the relevant commencement time, all rights and liabilities which immediately before that time were rights and liabilities of the existing chief officer of the police force for a police area are to transfer to the new chief officer of that police force.
Relevant legislative provisions”
256B: Schedule 15, page 166, line 5, leave out “day” and insert “time”
256C: Schedule 15, page 166, line 6, after “apply” insert “after that time”
256D: Schedule 15, page 166, line 10, leave out “day” and insert “time”
256E: Schedule 15, page 166, line 11, after “apply” insert “after that time”
256F: Schedule 15, page 166, line 20, leave out from beginning to end of line 24
256G: Schedule 15, page 166, line 34, leave out from beginning to end of line 37 and insert—
“Interpretation3A In this Part “relevant commencement time” means—
(a) in relation to a police area listed in Schedule 1 to the Police Act 1996, the time when section 3 comes into force in relation to that area;(b) in relation to the metropolitan police district, the time when section 5 comes into force.Part 1AInitial transfer from police authoritiesTransfer of property, rights and liabilities3B (1) At the relevant commencement time, all property, rights and liabilities which immediately before that time were property, rights and liabilities of the existing police authority for a police area are to transfer to, and by virtue of this paragraph vest in, the new policing body for that police area.
(2) This paragraph does not apply to any rights or liabilities under a contract of employment (which are dealt with in paragraph 3C).
Transfer of staff3C (1) Subject to sub-paragraphs (5) and (6), this paragraph applies to any person who immediately before the relevant commencement time is a member of the staff of the existing police authority for a police area (the “existing employer”).
(2) A contract of employment between a person to whom this paragraph applies and the existing employer is to have effect from the relevant commencement time as if originally made between that person and the new policing body for the police area in relation to which the existing employer was established (the “new employer”).
(3) Sub-paragraph (2) does not break the continuity of a person’s employment and accordingly such a person’s period of employment with the existing employer counts as a period of employment with the new employer for the purposes of the Employment Rights Act 1996
(4) Without prejudice to subsection (2)—
(a) all the existing employer’s rights, powers, duties and liabilities under or in connection with a contract to which that sub-paragraph applies are by virtue of this paragraph transferred to the new employer at the relevant commencement time; and(b) anything done before that date by or in relation to the existing employer in respect of that contract or the employee shall be deemed from that date to have been done by or in relation to the new employer.(5) Sub-paragraphs (2) to (4) are without prejudice to any right of a member of staff to terminate the contract of employment if a substantial change is made to the person’s detriment in the person’s working conditions; but no such right arises by reason only of the change in employer effected by this paragraph.
(6) Where a person—
(a) has, prior to the relevant commencement time, entered into a contract of employment with an existing police authority which is to come into effect at or after that time; and(b) would, if the contract had come into effect before that date, have been a person to whom this paragraph applies,that person is to be treated as a person to whom this paragraph applies.(7) A person who would (but for this sub-paragraph) be treated as being dismissed by the operation of this paragraph (whether by an enactment or otherwise) is to be treated as not being so dismissed.
(8) Sub-paragraph (7) does not apply to a person who, by virtue of sub-paragraph (5), does not become an employee of a new policing body.
(9) This paragraph is subject to paragraph 3D.
Police civilians3D (1) The new policing body for a police area—
(a) is to have, for the purpose mentioned in sub-paragraph (2), relevant powers to arrange for the new chief officer of the police force for that area to discharge functions of that body; and(b) must exercise those powers for the purpose mentioned in sub-paragraph (2).(2) That purpose is securing that the police civilian members of staff of that new policing body are under the direction and control of that chief officer.
(3) Any arrangements made in compliance with section 15(2) of the Police Act 1996 between the existing police authority for a police area and the existing chief officer of the police force for that area which are in force immediately before the relevant time are to have effect at and after that time as if made under this paragraph between the new policing body for that area and the new chief officer of that police force.
(4) Sub-paragraph (2) applies to a person who—
(a) immediately before the relevant commencement time, is a police civilian member of the staff of an existing police authority, and(b) at that time becomes a member of the staff of the new policing body for a police area by virtue of paragraph 3C.(5) For as long as the person continues to be a member of the staff of that body, the person is to be—
(a) employed as a police civilian member of that staff, and(b) under the direction and control of the new chief officer of the police for that area.(6) Sub-paragraph (5) does not prevent the new policing body from making arrangements with the person for the person to cease to be a police civilian member of staff of that body (whether or not the person remains a member of the staff of that body).
(7) After the relevant commencement time, a new policing body may, for either of the purposes set out in sub-paragraph (8), make arrangements—
(a) with any member of the staff the body who is not a police civilian member of staff to become a police civilian member of that staff, or(b) with a person who is not a member of that body’s staff to become a police civilian member of that staff.(8) In relation to the new policing body for a police area those purposes are—
(a) replacing police civilian members of staff of the existing police authority for that area who did not become members of the staff of the new policing body in accordance with paragraph 3C;(b) replacing police civilian members of staff of the new policing body who have ceased to be police civilian members of staff of that body otherwise than by virtue of a transfer scheme under Part 2 of this Schedule; or(c) to supplement the police civilian members of staff of the new policing body.(9) Sub-paragraphs (1) to (5) are subject to—
(a) any provision included in a collaboration agreement under section 22A of the Police Act 1996, and(b) section 24(3A) of that Act (aid of one police force by another).(10) In this paragraph—
(a) “relevant powers” means powers corresponding to those conferred by sections 101 and 107 of the Local Government Act 1972 on police authorities established under section 3 of the Police Act 1996; (b) references to a police civilian member of staff of an existing police authority or a new policing body are references to a member of the staff of that authority or body who is employed solely to assist the police force maintained by that authority or body;(c) the chief officers’ powers of direction and control referred to include powers of engagement and dismissal.Seconded staff3E In the case of a person who, immediately before the relevant commencement time, is seconded to the existing police authority for a police area, the secondment is to have effect, after that time, as a secondment to the new policing body for that police area.
Interpretation3F In this Part “relevant commencement time” means—
(a) in relation to a police area listed in Schedule 1 to the Police Act 1996, the time when section 1 comes into force in relation to that area;(b) in relation to the metropolitan police district, the time when section 4 comes into force.Part 2Subsequent transfer by new policing bodyPower to direct new policing body to make transfer scheme4 (1) The Secretary of State may direct a new policing body—”
Amendments 256A to 256G agreed.
Amendment 257 not moved.
257A: Schedule 15, page 167, line 3, leave out “existing police authority” and insert “new policing body”
Amendment 257A agreed.
Amendment 258 not moved.
258A: Schedule 15, page 167, line 8, leave out “existing police authority” and insert “new policing body”
Amendment 258A agreed.
Amendment 259 not moved.
259A: Schedule 15, page 167, line 17, leave out “existing police authority” and insert “new policing body”
Amendment 259A agreed.
Amendment 260 not moved.
260A: Schedule 15, page 167, line 18, leave out “authority” and insert “body”
Amendment 260A agreed.
Amendment 261 not moved.
261A: Schedule 15, page 167, line 21, leave out “authority” and insert “body”
Amendment 261A agreed.
Amendment 262 not moved.
262A: Schedule 15, page 167, line 23, leave out “existing police authority” and insert “new policing body”
Amendment 262A agreed.
Amendment 263 not moved.
Amendments 263A and 263B
263A: Schedule 15, page 167, line 23, at end insert—
“5A (1) The Secretary of State may direct a new policing body—
(a) to modify a transfer scheme made by that body, and(b) to submit such a scheme to the Secretary of State for approval.(2) Sub-paragraphs (2) to (5) of paragraph 4 apply to a direction under sub-paragraph (1) of this paragraph as they apply to a direction under sub-paragraph (1) of paragraph 4.
(3) In the application of paragraph 4(2) to (5) by virtue of sub-paragraph (2)—
(a) references to paragraph 4(1)(b) have effect as references to sub-paragraph (1)(b) of this paragraph;(b) references to the making of a scheme have effect as references to the modification of a scheme;(c) references to a scheme have effect as references to a scheme as modified.(4) The Secretary of State may modify a transfer scheme made by a new policing body if—
(a) the authority does not comply with a direction given to it under sub-paragraph (1), or(b) the Secretary of State decides not to approve the modified scheme submitted by the body.(5) A scheme modified by the Secretary of State under sub-paragraph (4) is to be treated as if modified (and made) by the new policing body.
(6) A scheme modified in accordance with this paragraph is to be deemed for all purposes to have come into force with those modifications.”
263B: Schedule 15, page 167, line 25, leave out from “the” to “to” in line 26 and insert “new policing body”
Amendments 263A and 263B agreed.
Amendment 264 not moved.
264ZA: Schedule 15, page 167, line 27, leave out paragraph (a)
Amendment 264ZA agreed.
Amendment 264A not moved.
Amendments 264B and 264C
264B: Schedule 15, page 167, line 30, leave out sub-paragraph (2)
264C: Schedule 15, page 167, line 43, leave out “existing police authority” and insert “new policing body”
Amendments 264B and 264C agreed.
Amendment 265 not moved.
Amendments 265A to 265E
265A: Schedule 15, page 167, line 45, leave out paragraph (a)
265B: Schedule 15, page 168, line 1, leave out “a member of staff of”
265C: Schedule 15, page 168, line 4, leave out sub-paragraph (1)
265D: Schedule 15, page 168, line 16, leave out sub-paragraph (4)
265E: Schedule 15, page 168, line 41, leave out from first “the” to “and” in line 42 and insert “new policing body,”
Amendments 265A to 265E agreed.
Amendment 266 not moved.
Amendments 266A and 266B
266A: Schedule 15, page 168, line 44, leave out sub-paragraph (i)
266B: Schedule 15, page 169, line 8, leave out from “the” to end of line 9 and insert “new policing body”
Amendments 266A and 266B agreed.
Amendment 267 not moved.
Amendments 267A to 267Q
267A: Schedule 15, page 169, line 12, after “rights” insert “or interests”
267B: Schedule 15, page 169, line 13, after “scheme” insert “or retained by the transferor under the scheme or create rights or liabilities as between the transferor and transferee under the scheme”
267C: Schedule 15, page 169, line 16, leave out sub-paragraphs (3) and (4)
267D: Schedule 15, page 169, line 24, leave out paragraph 11
267E: Schedule 15, page 169, line 33, at end insert—
“(3) A transfer scheme may confer functions on any person (including the Secretary of State).”
267F: Schedule 15, page 170, line 5, leave out from “person” to end of line 14 and insert “who—
(a) ceases to be a member of the staff of an existing police authority, and(b) becomes a member of the staff of a new policing body.(4) Section 1 of the Local Government and Housing Act 1989 (politically restricted posts) does not apply to the person for as long as the person—
(a) continues to be a member of the staff of the new policing body, and(b) carries out duties which are the same, or substantially the same, as the duties the person carried out as a member of the staff of the existing police authority.”
267G: Schedule 15, page 170, line 18, at end insert—
“(1A) The replacement of an existing chief officer, the transfer or abolition of the functions of an existing chief officer, and the transfer of the rights and liabilities of an existing chief officer, do not affect anything done before the replacement, transfer or abolition.
(1B) The transfer of the property, rights and liabilities of a new policing body do not affect anything done before the transfer.”
267H: Schedule 15, page 170, line 20, leave out “an existing police authority” and insert “a person”
267J: Schedule 15, page 171, line 2, after first “to” insert “Part 1A of this Schedule and”
267K: Schedule 15, page 171, line 3, after “of” insert “Part 1A of this Schedule and”
267L: Schedule 15, page 171, line 4, leave out “of an existing police authority”
267M: Schedule 15, page 171, line 6, at end insert—
“Foreign property etc: perfection of vesting15A (1) Subsections (2) to (8) of section 414 of the Greater London Authority Act 1999 (foreign property, rights and liabilities: perfection of vesting) apply in any case where a transfer by or under this Act provides for the transfer of foreign property, rights or liabilities.
(2) In the application of those provisions by virtue of sub-paragraph (1)—
(a) references to a transfer or pension instrument have effect as references to the transfer by or under this Act; and(b) references to the transferor and the transferee are to be construed accordingly.Transfers: supplementary provision15B (1) All property, rights and liabilities to which a statutory transfer applies are to be transferred by that transfer, notwithstanding that they may be or include—
(a) property, rights and liabilities that would not otherwise be capable of being transferred, or(b) rights and liabilities under enactments.(2) The property, rights and liabilities which may be transferred by a transfer scheme include—
(a) property, rights and liabilities that would not otherwise be capable of being transferred, or(b) rights and liabilities under enactments.(3) No right of reverter, right of pre-emption, right of forfeiture, right of re-entry, right to compensation, option or similar right affecting any land or other property shall operate or become exercisable as a result of any transfer of land or other property by virtue of a statutory transfer or a transfer scheme (whether or not any consent required to the transfer has been obtained).
(4) No right to terminate or vary a contract or instrument shall operate or become exercisable, and no provision of a contract or relevant document, shall operate or become exercisable or be contravened, by reason of any transfer by virtue of a statutory transfer or a transfer scheme.
(5) Sub-paragraphs (2) to (4) above have effect in relation to—
(a) the grant or creation of an estate or interest in, or right over, any land or other property, or(b) the doing of any other thing in relation to land or other property,as they have effect in relation to a transfer of land or other property.(6) A transfer scheme may make provision for the apportionment or division of any property, rights or liabilities.
(7) Where a transfer scheme makes provision for the apportionment or division between two or more persons of any rights or liabilities under a contract, the contract shall have effect, as from the coming into force of the provision, as if it constituted two or more separate contracts separately enforceable by and against each of those persons respectively as respects the part of the rights or liabilities which falls to that person as a result of the apportionment or division.
(8) The provision that may be made by a transfer scheme includes provision for—
(a) any transfer of land or other property by virtue of the instrument,(b) the grant or creation of any estate or interest in, or right over, any land or other property by virtue of the instrument, or(c) the doing of any other thing in relation to land or other property by virtue of the instrument,to be on such terms, including financial terms, as the person making the scheme thinks fit.(9) The Secretary of State may by order confer on any body or person to whom property, rights or liabilities are transferred by a statutory transfer or transfer scheme any statutory functions which were previously exercisable in relation to that property, or those rights or liabilities, by the transferor.
(10) It shall be the duty—
(a) of existing police authorities, new policing bodies, existing chief officers, new chief officers and local authorities, and(b) of the trustees or managers, or administrators, of any pension scheme,to provide the Secretary of State with such information or assistance as the Secretary of State may reasonably require for the purposes of, or in connection with, the exercise of any powers exercisable by the Secretary of State in relation to a statutory transfer or a transfer scheme.(11) Where any person is entitled, in consequence of any transfer made by virtue of a statutory transfer or transfer scheme, to possession of a document relating in part to the title to, or to the management of, any land or other property in England and Wales—
(a) the instrument may contain provision for treating that person as having given another person an acknowledgment in writing of the right of that other person to the production of the document and to delivery of copies thereof; and(b) section 64 of the Law of Property Act 1925 (production and safe custody of documents) shall have effect accordingly, and on the basis that the acknowledgment did not contain any such expression of contrary intention as is mentioned in that section.(12) In this paragraph—
“relevant document” means—
(a) any enactment, other than an enactment contained in this Act;(b) any subordinate legislation made otherwise than under this Act; or(c) any deed or other instrument;“statutory transfer” means a transfer under Part 1 or 1A of this Schedule;
“transfer scheme” means a transfer scheme under Part 2.”
267N: Schedule 15, page 171, line 10, leave out “the abolition of the existing police authorities” and insert “Part 1 of this Act (including provision that supplements or varies the provision made by this Schedule).
(2) An order under this paragraph may, in particular—
(a) amend, or otherwise modify, any enactment;(b) make any provision that may be made by a transfer scheme under Part 2 of this Schedule (whether the provision in the order relates to that Part or Part 1A of this Schedule);(c) provide for the new policing body for a police area to make any payment which—(i) before a day specified in the order could have been made out of the police fund of the existing police authority for that area, but(ii) is not a liability which is transferred to the new policing body by virtue of Part 1A of this Schedule;(d) provide for a new chief officer or a local authority to which property, rights or liabilities of a new policing body are, or are to be, transferred by virtue of a transfer scheme under Part 1A of this Schedule to make any payment which—(i) before a day specified in the order could have been made out of the police fund of that new policing body, but(ii) is not a liability which could be transferred by virtue of such a transfer scheme;(e) make provision in relation to the accounts and audit of—(i) existing police authorities, and(ii) new policing bodies.(3) Provision of the kind referred to in sub-paragraph (2)(e) may, in particular—
(a) amend, or otherwise modify, any enactment relating to the accounts and audit of public bodies in its application to—(i) an existing police authority and the financial year in which that authority is abolished, or(ii) a new policing body and the financial year in which that body is established;(b) provide for the Secretary of State to give directions as to action to be taken in relation to the accounts and audit of—(i) an existing police authority in relation to the financial year in which that authority is abolished, or(ii) a new policing body in relation to the financial year in which that body is established;(c) provide for a person who, in acting in accordance with such a direction, fails to comply with a code of practice or other document relating to proper accounting practice to be taken not to have so failed to comply.”
267P: Schedule 15, page 171, line 14, leave out from beginning to end of line 20 and insert—
““existing chief officer” means—(a) in relation to a police area listed in Schedule 1 to the Police Act 1996, the chief constable of the police force for that area before the coming into force of section 3 of this Act in relation to that area;(b) in relation to the metropolitan police district, the Commissioner of Police of the Metropolis immediately before the coming into force of section 5;”
267Q: Schedule 15, page 171, line 30, at end insert—
““new chief officer” means— (a) in relation to a police area listed in Schedule 1 to the Police Act 1996, the chief constable established for that police area under section 3 of this Act;(b) in relation to the metropolitan police district, the Commissioner of Police of the Metropolis established under section 5;”
Amendments 267A to 267Q agreed.
Schedule 16 : Police reform: minor and consequential amendments
Amendments 268 and 269 not moved.
270: Schedule 16, page 176, line 33, leave out paragraph 30
Amendment 270 agreed.
Amendments 271 and 272 not moved.
273: Schedule 16, page 191, line 2, leave out paragraph 134
Amendment 273 agreed.
Amendments 274 to 290 not moved.
Amendments 291 to 293
291: Schedule 16, page 200, line 7, after “Act),” insert “by a member of the civilian staff of a police force (within the meaning of that Part of that Act), by a member of the civilian staff of the metropolitan police force (within the meaning of that Part of that Act),”
292: Schedule 16, page 200, line 23, leave out “Mayor’s Office for Policing and Crime” and insert “metropolitan police force”
293: Schedule 16, page 200, line 34, after “body” insert “, except for a deputy police and crime commissioner”
Amendments 291 to 293 agreed.
Amendments 294 and 295 not moved.
Amendments 296 to 302
296: Schedule 16, page 208, line 26, leave out from “for” to end of line 27 and insert ““person employed by a police authority” substitute “relevant employee”;”
297: Schedule 16, page 211, line 15, leave out sub-paragraphs (i) and (ii) and insert—
“(i) in paragraph (a)(i), for “a senior officer, the police authority” substitute “the chief officer or a person exercising or performing functions of the chief officer in accordance with section 42 of the Police Reform and Social Responsibility Act 2011, the local policing body”; (ii) in paragraph (a)(ii), for “a senior officer” substitute “the chief officer or a person so exercising or performing functions of the chief officer”;(iii) in paragraph (b)(i), for “a senior officer, the police authority” substitute “the chief officer or a person exercising or performing functions of the chief officer in accordance with section 42 of the Police Reform and Social Responsibility Act 2011, the local policing body”;(iv) in paragraph (b)(ii), for “a senior officer” substitute “the chief officer or a person so exercising or performing functions of the chief officer”;”
298: Schedule 16, page 213, line 39, leave out from “sub-paragraph” to end of line 41 and insert “(6)(a)—
(i) for “police authority” substitute “local policing body”;(ii) for “the authority” substitute “the body”;(c) in sub-paragraph (6)(c), for “police authority” substitute “local policing body”;(d) in sub-paragraph (6), in the words after sub-paragraph (c), for “the authority” substitute “the body”.”
299: Schedule 16, page 214, line 3, leave out ““that authority” substitute “that” and insert ““the authority” substitute “the”
300: Schedule 16, page 214, line 10, leave out ““the authority” substitute “the” and insert ““that authority” substitute “that”
301: Schedule 16, page 214, line 16, leave out ““the authority” substitute “the” and insert ““that authority” substitute “that”
302: Schedule 16, page 224, line 24, leave out from “Part 1,” to “, substitute” in line 25 and insert “under the heading “Police”, for “The Metropolitan” to “section 3 of that Act”
Amendments 296 to 302 agreed.
Clause 104 : Interpretation of Part 1
303: Clause 104, page 65, line 28, at end insert—
“and to the person (if any) appointed as the deputy police and crime commissioner under section 19.”
Amendment 303 agreed.
Clause 105 : Licensing authorities as responsible authorities
Amendment 304 not moved.
Clause 111 : Reducing the burden: premises licences
304A: Clause 111, leave out Clause 111
My Lords, what a marathon. I wish to move Amendment 304A and speak to Amendments 304B and 304C. I return without apology to the subject of “appropriate” versus “necessary”. The Bill reduces the evidence test for the attachment of licence conditions so that these are “appropriate” rather than “necessary”. These amendments would delete these provisions from the Bill and retain the “necessary” test. In Committee, the noble Viscount, Lord Astor, set out extremely well the need for these amendments and the significance of the change from “necessary” to “appropriate”. I am sorry that he is unable to be with us today.
Review proceedings are quasi-judicial and designed to deal with infringements of the licensing regime, and have a wide range of penalties that are available to be deployed against the premises in question, from the imposition of new conditions restricting the operation of the premises to the suspension or even withdrawal of a licence. Licensing authorities are already able to impose conditions that they and other responsible bodies need in order to promote the licensing objectives without difficulty. In Committee, my noble friend the Minister claimed that “necessary” places a significant evidential burden on licensing authorities.
There is no evidence to suggest that local authorities find the evidential burden too restrictive and plenty of evidence from across the country to suggest that it is not a barrier to imposing tough trading conditions. For those that have experienced difficulties with a lack of representations being made by responsible authorities about problem premises, the Bill makes local authorities responsible authorities. This means that they will be able to tackle problem premises in their own right, not just rely on evidence supplied by other responsible authorities. The licensed trade asserts that the current “necessary” test has worked well and has ensured that conditions attached to licences are fair and address specific concerns, as opposed to being unfair and disproportionate. Where is the evidence to the contrary?
I understand from the Home Office that the plain English meaning of “appropriate” is “suitable”. That seems far too subjective. How about “convenient” on that basis? In these circumstances, the substitution of “necessary” for “appropriate” would allow decisions to be taken on the grounds of, for example, political expediency or subjective judgment. My noble friend the Minister may say I am wrong and that this will not be the case, but how equipped will licensing authorities be to adopt the correct interpretation of “appropriate”? It has been confirmed that the Local Government Association has concerns in this respect. The fact that “appropriate” is not clearly defined in law, unlike “necessary”, on which there is considerable case law, increases the likelihood of legal challenge and appeal.
“Necessary” is also a key component of the test of proportionality under the European Convention on Human Rights. I have given the Minister and her colleagues a copy of the analysis done by the licensed trade into the impact of the convention, and your Lordships will be glad to hear that I will not go into enormous detail at this stage. Article 1 of Protocol 1 of the ECHR provides for the “peaceful enjoyment” of possessions and states clearly that:
“No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law”.
The state can enforce such law,
“as it deems necessary to control the use of property”,
for the public interest.
The Explanatory Memorandum to the Bill makes clear the importance of the “necessary” test to ECHR compliance in respect of licensing. It acknowledges that an alcohol licence is a possession and is protected under the convention. The imposition of a restriction on a pre-existing permission or the removal of it without clear evidence of harm or irresponsible practice will in some cases amount to interference in the right to peaceful enjoyment of possessions. There is no analysis in the Explanatory Notes of what the reduction in this evidence burden would mean for compliance. The existing “necessary” test clearly helps to ensure a fair balance between public and rights-holder interests. How will the “appropriate” test do that?
It should be recognised that licence conditions impose additional costs and restrictions on business. The breach of a licence condition is a serious offence and carries a fine of £20,000. Surely such a penalty is too great in respect of conditions that are simply deemed “appropriate”, yet the only right of appeal is judicial review, which is a long and expensive process. As I said in Committee, many different types of conditions could be considered appropriate for most if not all licensed premises, but would certainly not be necessary for the vast majority of them, which are well managed, responsible businesses.
Can the Minister give examples of conditions that could not be imposed as “necessary” but that could be imposed as “appropriate” and are important or vital to the welfare of residents and local neighbourhoods? By contrast, I can give many examples of a string of conditions, many of which might not be considered necessary but perhaps appropriate, having already been imposed by licensing authorities. I have with me a number of different licences, one of which is for a pub in Westminster; it has 24 conditions. I have a licence for a school in Norfolk that is not for the sale of alcohol but that has 48 conditions, while the winner of this particular prize is a licence for a take-away in Lichfield that has 64 conditions attached. So there is no shortage of powers to impose conditions of many kinds on these premises.
However, on the basis that the Government will nevertheless proceed with the change of test, the Minister promised in Committee revised statutory guidance on the interpretation of “appropriate”. Will there be consultation on the contents of that guidance? If we are to change completely the basis on which conditions are assessed, that is absolutely crucial. There is still great uncertainty surrounding the changes sought by the Government, and I look forward to the Minister’s reply. I beg to move.
My Lords, I joined in the debate on these two terms at the previous stage, and on rereading Hansard I wonder now even more than I did at the time how assessing whether something is appropriate could be evidence-based. If I were still a councillor having to decide whether a condition is appropriate, I do not think I could avoid it being a subjective judgment. My noble friend has referred to this. I also asked at the last stage whether the assessment had to be reasonable. If it is “appropriate” rather than “necessary”, I assume that it would have to be, but the Minister very elegantly sidestepped that question. I do not blame her because I had not given her notice of it.
My final point refers to the statutory guidance, again just mentioned by my noble friend. We are not talking about a particular application, but licensing in general is a quasi-judicial activity. Perhaps this is not strictly quasi-judicial, but it comes quite close to it. I am concerned about the need to rely on guidance as distinct from primary legislation in the way this is approached.
My Lords, my noble friend Lord Clement-Jones and the Minister will recall that I spoke on this matter in Committee. I have no intention of running the risk of prolonging the debate by repeating what I said on that occasion, but nothing that has happened since the previous stage alters in any way the views I then expressed. The only thing I would say in a wholly friendly manner to my noble friend Lord Clement-Jones is that I used the human rights argument on a series of occasions during our debates on the Licensing Bill in 2003. I have to say, in a manner which I hope he will not find too discouraging, that on every single occasion the Front Bench of the then Government shut me up and told me that I did not actually have a case to argue.
My Lords, I am a bit intimidated by the thought that I might have to defend not only the point that we are talking about today but the whole panoply of human rights law, but perhaps we can duck that for now. As has been mentioned already, we had a good discussion on these points in Committee and we do not need to go over them. What is disappointing is that, as has been said, we do not seem to have moved on since then. We felt that the Minister’s responses to the original discussion were a bit lacking in the sort of detail required to be convincing, but it would have helped if we had been able to have sight of the guidance she promised. The guidance has not appeared, and therefore we are not much further forward. I hope that the Minister will be able to help us today, but if the noble Lord, Lord Clement-Jones, wishes to seek further support from this Bench, we would certainly be there behind him in the Lobbies.
My Lords, for some reason we seem to be in a “vote early and vote often” mode today. These amendments seek to remove three clauses from the Bill that lower the evidential threshold that applies to decision-making by licensing authorities. The clauses replace the requirement that licensing authorities should take actions that are “necessary” with the requirement that their actions are “appropriate”. I do not want to engage the House too long on this debate because we would end up rehearsing all that was said in Committee, but I should say that I do not think that the word “convenient” is a substitute for “appropriate”, although I suspect that he was being rather tongue-in-cheek when he said that.
Lowering the threshold will make it less onerous for licensing authorities to refuse or revoke licences if it is appropriate for the promotion of licensing objectives. The four licensing objectives will still apply. My noble friend Lady Hamwee suggested that I was not clear enough about this in Committee, so I reiterate that the four statutory licensing objectives still apply. However, lowering the threshold will make it less onerous for licensing authorities to refuse or revoke licences if it is appropriate for the promotion of the licensing objectives.
I am most grateful to my noble friend Lord Clement-Jones for advising me in advance of his concerns. On the “necessary” test and the importance of it being compliant with human rights law, the statutory test of what is appropriate as the basis on which licensing authorities must make decisions—alongside clear guidance to those authorities as to what is meant by this threshold, and the availability of statutory rights of appeal for licensing applicants and others affected by licensing decisions—ensures that the ECHR rights of those affected by licensing decisions are safeguarded. My noble friend prayed in aid his experience of previous legislation in this area. The requirement that an interference with ECHR rights must be “necessary” is a concept that has been developed in the context of human rights law and is not directly comparable with the meaning of “necessary” as it currently appears in the Licensing Act 2003.
My noble friend suggested that the only right of appeal against licensing decisions, including the imposition of conditions, is judicial review. That is not correct. Section 181 of the Licensing Act 2003 already provides for a statutory right of appeal to the magistrates’ court against most decisions by licensing authorities, including decisions on the granting or revocation of a licence and the conditions attached.
I must also inform the House that although it has been suggested that the Local Government Association is against these proposed changes, that is not the Government’s understanding. Indeed, in response to our consultation on rebalancing the Licensing Act, the LG Group said that it “broadly welcomes this proposal”.
My Lords, I am grateful to the noble Baroness. I think I am more sympathetic to the Government’s word “appropriate” than to the suggested use of the word “necessary”. In the context of the Bill, both these words are actually subjective in terms of what is being looked at. I assume that the Government prefers “appropriate” because I would have thought that it would be easier to argue either for or against in court than “necessary” would be, because that word is rather different. Is that not the thinking behind the Government’s proposal? I understand the arguments, but the central issue seems to be that of appeal. It would be easier for a court to reach a decision on what is “appropriate” than on what is “necessary”. However, please tell me if I am wrong.
My Lords, I am not in a position to try to second-guess how a court would determine that, because we are talking hypothetically and not about a specific example. I will come on to an example which might be helpful to the House. The lower evidence threshold would apply to most conditions, but to show that the imposition of conditions such as the use of plastic glassware or closure of windows after a late hour or the use of CCTV in or outside bars is “necessary” for the promotion of licensing objectives, including the prevention of nuisance or crime and disorder, is an onerous test. It would be less onerous for local authorities to show that such conditions were “appropriate” for the promotion of the licensing objectives. I hope that that is helpful to the House, because when we debated the equivalent amendment in Committee, I was unable to give an example such as that. I hope that that gives the House a feel for the thinking behind the Government’s change to the wording.
I can assure my noble friend that these decisions will still need to be evidence-based. We will include statutory guidance on the new tests, as I have suggested. I am not in a position to say that the guidance will be available at this stage of the Bill, but it will be made available. It will be consulted to ensure correct interpretation once the legislation is applied. On that basis, I ask my noble friend to withdraw the amendment.
My Lords, I thank my noble friend the Minister for her response. I thank also my noble friend Lady Hamwee and the noble Lord, Lord Stevenson, for their support. The Minister’s reply to the noble Lord, Lord Brooke of Sutton Mandeville, illustrated only too well how cunning government departments are in answering questions about the ECHR. The response was fascinating, being essentially that there is “necessary” and “necessary”, and that, for the purposes of the ECHR, “appropriate” equals “necessary”. That seemed to be what the Minister was saying. It is clearly highly dangerous to quote the ECHR in these circumstances, because you get an Alice in Wonderland type of response.
However, I was very grateful for the remainder of the Minister’s response. Her undertaking to consult on the statutory guidance will, I think, be welcomed by all concerned. Some of the examples that she gave might not be considered “necessary”, although, as I said in my opening contribution, if licensing authorities are able to impose 64 conditions on a takeaway, they do not lack powers. I am not going to push this. We have had a good debate over two stages of the Bill. I have tried to express the concerns of the trade on this matter. I hope that that dialogue will continue in the statutory consultation so that “appropriate” is confined —so that it is not equivalent to “suitable”, and certainly not equivalent to “convenient”. In the mean time, I beg leave to withdraw the amendment.
Amendment 304A withdrawn.
Amendments 304B to 305 not moved.
Clause 121 : Early morning alcohol restriction orders
305ZA: Clause 121, page 82, line 1, leave out “may” and insert “shall”
My Lords, the amendment is designed to probe whether the Government have firm plans to introduce exemptions for the EMRO regime. I have a later, similar amendment, on which I shall not speak at great length, designed to probe whether there are plans to introduce exemptions from the late night levy and, if so, what those might be. As such, it represents at least a first attempt at defining some of those exemptions.
The Minister promised in Committee that there would be wide consultation on the exemptions to be introduced. It is important for the House to know what the Government are minded to introduce. For instance, will they introduce exemptions for private members' clubs which do not sell to members of the public but are membership-based? They are not, as I explained in Committee, generally positioned on the high street or close to centres of the night-time economy. Rather than basing the regime solely on premises type, can individual well run premises be exempted? Will exemptions recognise best practice and social responsibility initiatives such as those that we debated in Committee—for example Best Bar None, business improvement districts, Purple Flag, Pubwatch and so on?
I hope that the Minister can give us more detail and say that these exemptions will also be consulted on. I beg to move.
My Lords, my noble friend’s Amendment 305ZA would make it a requirement that regulations containing the cases or circumstances which may be exempt from an early morning alcohol restriction order include exempt cases that are defined by reference to particular kinds of premises or particular days. He was good enough to say that it was a probing amendment. I hope that I can give him the reassurance that he seeks when I say that the Government will ensure that exceptions to early morning restriction orders will define cases by reference to particular kinds of premises or particular days. Officials have already had useful discussions, including with representatives of the drinks industry and licensing authorities. As my noble friend acknowledged, we will carry out a full public consultation on the secondary legislation on EMROs later this summer. He asked specifically about private clubs. We will consider whether to include not-for-profit clubs and sports clubs as a separate class, and include that in consultation, before bringing forward the regulations. I therefore ask my noble friend to withdraw his amendment.
I thank my noble friend the Minister. What he has said will be very useful standing on the record for those who want certain exemptions. He has given a useful taste of the kind of exemptions that will be consulted on and indication that the whole EMRO regime will be consulted on later this summer. I beg leave to withdraw the amendment.
Amendment 305ZA withdrawn.
Clause 123 : Power for licensing authorities to set fees
305ZB: Clause 123, page 85, line 17, at end insert “, and
( ) the costs of social services and trading standards when discharging their functions as responsible authorities under this Act”
My Lords, we discussed this matter in Committee and we want to probe further whether the Government have moved in their thinking. We welcome the Government’s move through Clause 123 to allow licensing authorities the ability to set fees locally on the basis of full cost recovery. Operating the licence system since 2005 has cost council tax payers over £100 million more than they anticipated due to the current, centrally set fee structure, which does not allow licensing authorities to set cost-neutral local charges. Given the economic climate, there is a real imperative to allow cost-neutral fees to be set as soon as possible. However, as we discussed last time, there is a drafting error within Clause 123, which would mean two-tier authorities not being able fully to recover all the costs associated with licensing. This was debated in Committee. When the Minister replied, he acknowledged that, as drafted, the Bill would exclude the relevant costs of trading standards and social services departments and that, even though they were discharging duties under the Licensing Act, they would not be able to recover them. He concluded by saying:
“I see sense in the intention of [the amendment] and, if I may, I shall reflect on it further”.—[Official Report, 16/6/11; col. 911.]
The purpose of the amendment is to press the Government for their response on this issue. I hope that they have some good news for us.
My Lords, as the noble Lord, Lord Stevenson, has explained, Amendment 305ZB seeks to ensure that the costs of social services and trading standards, in their role as “responsible authorities” only, can be covered by fees when they are located outside the licensing authority as well as within it. I certainly acknowledge that I said in Committee that I would reflect further on the proposal. I have done so very carefully and taken legal advice. Having examined it, I have found that the practical difficulties unfortunately outweigh the benefits.
The role of responsible authority involves, for example, considering applications and, in rare cases, applying for review. The costs arising will be very marginal—I am sorry that my noble friend Lady Hamwee objects to the use of that wording—in the context of overall fee income and the wider functions of these bodies. To set fees locally, each licensing authority will be required to calculate its own costs. We would not wish to require it to calculate the costs of another body without very good reason. The amendment would also imply a duty on county councils to report fractional costs and on the licensing authority to pass the funds to the county. The cost of this would then be passed on to fee payers even if the net gain to local government was very little or even nothing. The current fees regime makes no provision for district councils to pass funding to county councils in respect of these functions and we understand that no money has been transferred.
As I said, I have considered this matter carefully. In a nutshell, I am asking noble Lords to accept that the amendment would result in substantial extra bureaucracy and costs which would be passed on to licence holders for very little benefit. I ask the noble Lord to withdraw the amendment.
There was, I think, a hint of menace in what the noble Baroness was saying. She was leaning forward slightly, and it was well judged to deliver that blow.
The LGA has indeed been concerned about this issue and has circulated documents widely which address the issue and make the main points that I repeated in the discussions earlier. It has also made it clear that it is very concerned about this matter. Although the Minister said that it was a marginal cost, every pound is important to local government. It is unfortunate that the Government have said that the cost of the bureaucracy of this might outweigh its benefits when those who are responsible for delivering it say that they want it to happen.
The Government are hiding under the question of bureaucracy. They promised a very important principle—that there would be a full cost recovery basis for licensing. They have gone so far down the line but they are not prepared to go the further stage. This is a disappointing result and we would like to test the opinion of the House.
305A: After Clause 126, insert the following new Clause—
“Limits on temporary event notices
In section 107(4) of the Licensing Act 2003 (counter notice where permitted limits exceed) for “12” substitute “15”.”
My Lords, it gives me great pleasure to move Amendment 305A, in my name and that of other noble friends in many parts of the House. The purpose of the amendment is to extend the limits on temporary event notices under Section 107(4) of the Licensing Act 2003 from 12 to 15 events per annum.
I readily concede that, within a Bill as controversial and weighty as this police reform and social responsibility legislation, our amendment is both simple and harmless. Yet it carries with it the hopes and aspirations of many thousands of clubs throughout the UK—working men’s clubs, Conservative, Labour and Liberal clubs, British Legion, miners’ and Armed Forces’ clubs, all of which play a vitally important part in the lives of their communities in every part of this green and pleasant land. The proposal to extend that by three occasions a year gives these non-profit-making clubs the opportunity to play a greater part in contributing to fundraising and community events and supporting good causes, which are the essence of good community life.
The All-Party Group on Non-Profit-Making Members’ Clubs—of which I declare that I am currently the secretary and was chairman for many years when I was in the House of Commons—fully backs this modest extension of the temporary events for clubs, as also does the Minister for pubs and clubs, Mr Bob Neill. The Culture, Media and Sport Committee in reporting on the operation of the Licensing Act 2003 also recommended an increase to 15, as proposed in this amendment.
Non-profit-making clubs up and down the land have carried a heavy burden in the past few years. The negative effects on trading by the introduction of the smoking ban, the greater expansion of cheap alcohol in supermarkets and the perpetual increases in the cost of beer and beer duties, together with the disastrous effects of the bankers-induced recession, have all conspired to place many clubs in the greatest danger to their survival that they have ever experienced. Support for this amendment would demonstrate in a small but practical way our appreciation for the value and service that these institutions offer to their communities. I beg to move.
My Lords, my name is on this amendment. I fully support all the points raised by my noble friend Lord Bilston. If the Government feel unable to agree to this change today in the Bill, I hope that I could have some information and assurance that the matter will be raised through other channels. How soon could we revisit the issue if it cannot be done in this way?
My Lords, I will certainly be brief. I do not think anybody seriously believes that non-profit-making clubs are the cause of some of the problems sometimes associated with other clubs. They do much good work in the community and for charities, as has been said. They are not now always financially strong, as my noble friend Lord Bilston explained. We hope that the Government will be able to look sympathetically on the amendment.
My Lords, with even greater brevity, I just intervene to say that, having listened to the noble Lord, Lord Bilston, the noble Baroness, Lady Farrington, and the noble Lord on the opposition Front Bench, I want to appeal to the sympathy of my noble friends on the Front Bench. It sounds like a good worthy cause for people who have been having a bit of a struggle. I know a number of them in my own former constituency area, so I hope we shall get a sympathetic ear.
My Lords, I add my support. Like my noble friend Lord Newton, I had many such clubs in my former constituency. I thought that the noble Lord, Lord Bilston, moved the amendment very moderately and sensibly and made a completely unanswerable case. I hope that we have a very sympathetic response from my noble friend who will be replying to this brief debate and that, at the very least, he will be able to follow the injunction of the noble Baroness, Lady Farrington, and give us some encouragement, because it really is a truly worthy cause.
My Lords, Amendment 35A would increase the number of temporary event notices that may be given in relation to single premises in any one calendar year from 12 to 15. I am well aware of the noble Lord’s tireless work for these centres of our communities and thank him for that. This proposal is very much in line with the direction in which we are travelling. We are legislating to allow for greater flexibility and a more relaxed and liberal system, particularly for small, voluntary and community groups that make use of the temporary events notices to carry out licensable activities. I am very grateful to the noble Lord, Lord Bilston, and the noble Baroness, Lady Farrington, for not only agreeing with us in this general direction of travel but also taking the time to discuss this with me.
Through the Bill, we are already taking substantial steps to relax some of the requirements of TENs. For example, we propose to increase the total number of days in any calendar year on which a single premises can be used to carry on licensable activities under a temporary event notice from 15 to 21 days. We are also relaxing the provisions to allow licensing authorities to accept late temporary event notices. Furthermore, we are also using the Bill to increase the maximum period for a single event that may be authorised by one temporary event notice from 96 hours or four days to 168 hours, or seven days, to help festivals and other forms of entertainment that run over several days. I hope that noble Lords will agree that these are positive moves in the same direction as their amendment.
TENs are supposed to be a light-touch measure, outside the norm of the licensing regime for one-off, exceptional or occasional events. Just to give some balance, we have also considered carefully the views of many residents who responded to our consultation and who complained about noise nuisance from temporary events. We ask noble Lords to agree with us that allowing for an average of one such event a month, or 12 a year, achieves the right balance. However, the Government are committed to reducing the overall burden of regulation across the piece and have been consulting the public on this wider work, including alcohol licensing via its red tape challenge. So for example the Government have announced that they will shortly be carrying out a public consultation, led by the Department for Culture, Media and Sport, on the reform of regulated entertainment under the Licensing Act 2003. In the circumstances, I ask the noble Lord to accept that our direction of travel is very much in line with his own and to consider withdrawing his amendment.
I thank the Minister for that reply, which is very positive. I naturally hoped that he might allow the amendment today, but on the basis of what he has said and the very helpful discussions that we had yesterday, I am very happy to withdraw the amendment.
Amendment 305A withdrawn.
Clause 127 : Late night levy requirement
305B: Clause 127, page 88, line 13, after “in” insert “the whole or part of”
I will speak also to Amendments 305C, 306ZA and 306ZB. Amendments 305B and 305C are designed to extend the ability of licensing authorities to determine the extent of the geographical spread of the late-night levy area so that it need not apply to the whole local authority area. As we discussed in Committee when, I believe, the Minister expressed some sympathy, this is one of the weaknesses of the provision for a late-night levy. It is a very blunt instrument to deal with the whole of a local authority area.
Clause 127(4) currently prohibits the licensing authority from applying the levy as it is currently stated in only parts of its area. Removing that provision and inserting the words of the amendment into subsection (2) would allow licensing authorities to designate a particular town or city centre within its control as being liable for the late-night levy rather than being totally broad brush in its approach.
A large number of trade organisations are particularly concerned about the untargeted nature of the proposed late-night levy. Community pubs in particular will be affected by a requirement which is really designed to address the cost of policing in towns and city centres. The power can be applied across a licensing authority district only as a whole, rather than to a specific area. As my noble friend Lady Hamwee said in Committee,
“local authority areas are not homogenous. If this new power is to be brought in it would be sensible for it to be focused and directed”.
That was a very succinct statement. The noble Lord, Lord Stevenson of Balmacara, agreed, saying:
“There is a problem about the scale and extent to which in any authority it would be sufficiently worth while for the licensing authority to introduce a local levy of this type … Is it really fair for a village shopkeeper to pay for reducing disorder that they could not possibly have caused?”.—[Official Report, 16/6/11; col. 940-1.]
The Government justify this measure on the basis that the easiest and most effective way in which to deal with the issue is to go for the whole council route, because it is viewed as less bureaucratic, and the levy must not only raise sufficient amounts but must be attractive to the licensing authority by being simple to introduce. I disagree. Unless amended in the way I suggest, the levy will be seen as manifestly unfair by those licensees who are not trading in city centres. I hope that the Government will reconsider.
As for the exemptions to the late-night levy, I dealt with this to some degree in the discussion on exemptions to early morning alcohol restriction orders. I seek very similar assurances from the Government so that well-run businesses can qualify for an exemption according to premises type and are not penalised by the provisions of the late-night levy. I recall that the noble Lord, Lord Stevenson of Balmacara, mentioned the example of a small jazz club that could be unduly penalised in these circumstances. I would not wish to see other venues, particularly those that host live music, being penalised in the same way. I hope that the Minister can give me similar assurances about the nature of the consultation, the types of exemption that will be available from the late-night levy and the premises that will be eligible for discounts under it.
Amendment 306ZB is really designed to probe the Government’s reasons for giving discretion to licensing authorities under Clause 127 as to whether to grant exemptions or discounts for the late-night levy, but not for the early morning alcohol restriction orders. Why are the Government making a distinction between the two? I beg to move.
My Lords, I intervene extremely briefly. On the strength of my own experience in the two cities, where there is of course an enormous amount of late-night activity and in other parts of the constituency there is absolutely nothing happening at all, I would like my noble friend, to whom I was not very helpful on the last occasion, to know that on this occasion I am sympathetic to what he is saying.
My Lords, I have Amendment 306ZZA in this group. On the issue of the division of the levy between the police and the local authority, at the previous stage I attempted to reverse the proportions, as provided by the Bill. This time I am suggesting a 50-50 split. I am sure that my noble friend will understand how completely reasonable that must be.
At that stage, my noble friend told me as reassurance that the levy had,
“been designed to raise money for the police, who bear the brunt of late night enforcement costs”.—[Official Report, 16/6/11; col. 943.]
I do not doubt the costs borne by the police, but to some extent they are already taken into account in the way that their funding operates. I am concerned that the costs to local authorities, particularly as regards environmental health and some of the organisation involved in dealing with late-night activity, are not acknowledged.
I have brought this back not only to change the proportion but because of a thought that occurred to me after the previous stage. If an authority is to receive little financial benefit from the levy, it may take a decision not to impose it at all. I wonder whether the Government have considered that risk, if I may put it that way.
I will be brief. The noble Lord, Lord Clement-Jones, referred to what my noble friend Lord Stevenson of Balmacara said in Committee in respect of the amendments that the noble Lord has moved, in particular the support that we on these Benches gave for a more targeted application of the late-night levy. That continues to be our position.
My Lords, there continues to be concern about the levy’s geographic coverage emanating from a belief that the levy should be a targeted tool. We are confident that we have provided tools such as early morning alcohol restriction orders to allow licensing authorities to target specific areas with alcohol problems. Businesses profit from supplying alcohol in a safe, late-night environment, so they should contribute to the very substantial police costs incurred. If we gave a licensing authority the power to target the levy, fewer businesses would contribute.
My noble friend Lord Clement-Jones’s Amendment 305B and my noble friend Lady Hamwee’s Amendment 305C risk the levy failing in its objective of raising a meaningful contribution towards policing. To retain the focus on policing, I must also resist my noble friend Lady Hamwee’s Amendment 306ZZA, which would reduce the proportion of the levy money after administrative expenses are deducted that goes to the police.
I hope that my noble friend Lord Clement-Jones will also agree not to press his Amendment 306ZA, with my firm reassurance that we will make regulations on exemptions and reductions. He asked specifically about rural pubs and also jazz clubs. We are currently considering the categories ahead of the consultation. Let me also reassure my noble friend that we wish to use the levy to promote participation in best practice schemes, and we will explore that further in consultation.
As regards Amendment 306ZB, we still wish to retain elements of local discretion, so we cannot accept an amendment that constrains this element of localism. Authorities should be trusted to select the right categories for their area. Many schemes are actively encouraged by licensing authorities. They are best placed to grant exemptions or reductions to those schemes that they feel are effective. On that basis, I ask that the amendment is not pressed.
I thank the Minister for that reply. I also thank the noble Lord, Lord Brooke of Sutton Mandeville, for his support. It is interesting that even in a borough such as Westminster there are cold and hot spots. By analogy, therefore, that is true of most boroughs in the country. I am also grateful to the noble Lord, Lord Rosser, for his support on this matter.
I understand the rationale behind the measure—that it is essentially fundraising designed to defray the costs to the police—but the exemptions will be extremely important in these circumstances. If there is no geographical exemption, there must be a category exemption in many cases so that country pubs can be exempted and not have to pay. If this measure is going to get acceptance, it manifestly must be fairly applied. This is essentially a local tax designed to pay for policing in relation to those establishments that are open late at night. I welcome the Minister’s comments about the consultation, but I hope that he and his colleagues will be in no doubt about the central importance of the consultation, even more so in the case of the late-night levy than in the case of early morning alcohol restriction orders.
Finally, the question that the Minister did not quite address was: why is the regime different for early morning alcohol restriction orders? It seems that while local authorities will not have so much discretion over them, they will have discretion about the late-night levy. I assume the answer to be that each is designed to achieve a particular balance in the circumstances. I take from the Minister’s nods that that is indeed the essence of the matter. I also take it that as the restriction orders are more discretionary, you need less discretion about the imposition of exemptions, and that as the late-night levy is for the local authority, those exemptions will not necessarily be applied so rigorously in those circumstances. However, there is considerable concern about the imposition of the late-night levy and I very much hope that there will be strong guidance to local authorities to exempt in appropriate circumstances—we shall return to the word “appropriate” at the end of Part 2—where the merits of the case demand it. I beg leave to withdraw the amendment.
Amendment 305B withdrawn.
Amendment 305C not moved.
Clause 133 : Application of net amount of levy payments
Amendments 306 and 306ZZA not moved.
Clause 137 : Permitted exemption and reduction categories
Amendments 306ZA and 306ZB not moved.
Consideration on Report adjourned until not before 2.27 pm.