Police Reform and Social Responsibility Bill

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.