Rebalancing The Licensing Act
BACKGROUND
The Licensing Act 2003 came into force in England and Wales in November 2005.
The Act was intended to simplify, rationalise and deregulate, but the intervening five years have seen various attempts to do the reverse. This has been achieved by amending the Guidance issued by the Secretary of State, and by changes to the Act itself.
These include changes to the prosecution of those who sell the alcohol to underage customers, new measures to control the night-time economy and a range of measures intended to control the way in which licensed premises operate.
There have also been requests for simplification and clarification of various grey areas under the Act and its associated procedures and applications, though so far few of these requests have been implemented.
THE COALITION GOVERNMENT
The new Government has brought forward a series of proposals to change the way in which the Act operates. The consultation paper is worth reading. http://www.homeoffice.gov.uk/publications/consultations/cons-2010-licensing-act/alcohol-consultation?view=Binary
The Government would welcome responses from anyone with an interest in the proposed changes especially anyone whose business is part of or is affected by the licensed trade and such representations must be made by the 8th September 2010.
Kitsons LLP will be responding to the consultation. If you have views or concerns about the paper then please respond - either direct or through us by e-mailing us at rob.newman@kitsons-solicitors.co.uk Kitsons LLP specialise in all aspects of the food, drink & leisure industries in the south west of England. Should you need advice for any area of food, drink & leisure please contact advice@kitsons-solicitors.co.uk or 01803 202020 and one of our specialists will be pleased to help.
THE PROPOSALS
In summary - and following the numbering adopted in the consultation paper itself - here are some of the more significant questions posed.
1. Licensing authorities should be entitled to take action even where no complaint has been raised by any of the statutory Responsible Authorities (police etc) or by local residents. Would this make local authorities more responsive? Or would it confuse matters by turning licensing authorities into both prosecutor and judge? How would authorities be aware of an issue if no representation was received?
2. It is suggested that licensing authorities could take steps even where there was no evidence of any need for such steps. What are the circumstances in which such action would be taken? How would an authority be expected to approach such a situation? Is there a risk of maverick local authorities heading off on an agenda of their own? What safeguards might be appropriate?
4. It is suggested that licensing authorities must accept all representations made by the police and adopt all their recommendations (unless there was clear evidence that these were not relevant). Is this desirable? Are the police in a position to make such recommendations? Might this inhibit the powers of licensing authorities?
6. At present residents and businesses based "in the vicinity" of the licensed premises are allowed to make representations about applications in respect of the premises. It is suggested that the Act be amended so as to remove the requirement to prove "vicinity" and so allow any individual or group of individuals to make representations about any premises anywhere. Is this something that will lead to a more healthy and comprehensive debate or could it undermine businesses and perhaps local communities and democracy as well?
7. Health trusts should be allowed to make representations with regard to new licensing applications. This would help for example A&E departments and ambulance services to have input into situations which could impact on their own provision of services. Is this a sensible move? What are the risks? Will it lead to a better understanding by licensing authorities of the consequences of applications? Or will it put an unnecessary additional layer of bureaucracy on health trusts and on licensing committees?
8. The Government is considering making the prevention of health harm a licensing objective to be taken into account by licensing committees when considering all new applications. Is this a helpful and sensible move, reflecting the known effect on health of excessive alcohol consumption? Or is it yet more bureaucracy?
9. It is intended to redefine Interested Parties under the Act so as to include community groups such as school governors and housing associations etc. Would this complicate licensing applications unnecessarily? Or allow a fuller and more informed debate?
10. The Government is considering reforming the appeal procedure. Licensing appeals are heard by the magistrates court. This can be an expensive and lengthy procedure. It also takes away the final decision from the Licensing Authority. It is suggested that magistrates might be required to send most appeals back to the original licensing committee. The intention is to make matters simpler and cheaper. Is this correct? Might it in fact complicate and delay matters? Is there a danger in allowing licensing authorities to determine their own appeals?
12. There is already a power (not yet in force) to restrict licensing hours by allowing licensing authorities to compel licensed premises to cease the sale of alcohol between 3am and 6am. The Government proposes to implement this power but to extend it and allow the prohibited period to start much earlier, possibly from as early as midnight, and to continue through the night. In doing this it is envisaged that licensing authorities would be given the freedom to respond to the needs of their local community. The Government is seeking feedback on the possible implications of such a move. Is this a return to permitted hours as we knew them under the 1964 Act? Would that be a bad thing?
13. It is suggested that late night premises might be compelled to contribute to the cost of dealing with alcohol related nuisance crime and disorder. Powers have already been brought in under the Violent Crime Reduction Act 2006, the so called Alcohol Disorder Zones. The procedures involved are complex and expensive and although the regulations have been in place for more than 2 years, no local authorities anywhere have yet chosen to establish such a system in their area. Is there a demand for this? Would such a scheme be workable?
14. The Government would like to make it easier for local authorities to introduce what are known as Cumulative Impact Policies: in other words policies which allow them to restrict the number of licensed premises in any given area where this appears to be necessary in order to restrict crime and nuisance occurring, and where relevant representations are received. It is suggested that applications for premises in these areas could be refused even if no representations were received. The courts have always held that decisions of licensing committees must be based on evidence. Is there a risk in departing from this principle? Or is it justified by the need to control excessive alcohol consumption?
18. The Government wishes to authorise licensing authorities to introduce restrictions on opening hours where necessary to protect local residents and businesses. This would include fixed closing times, staggered closing times and "zoning" - something currently prohibited by the Act. Would this lead to better compliance with the law - or would it be another nail in the coffin of the late night economy? Would it reduce crime? And what are the consequences for a holiday area such as Torbay where residents and businesses often have to co-exist in close proximity?
20. The Government has in mind a number of measures to change procedures relating to so called TENs (Temporary Event Notices) so as to simplify the way in which they are applied for, easier for them to be objected to and to reduce the number of such events to be held in any one year. Sensible changes? Or more red tape in what was intended to be a "light touch" procedure?
23. There are a number of proposals for dealing with the problems of underage alcohol consumption. Children today drink more than ever before - with consequences for health, crime and public order. Although the powers already available are arguably more draconian than any that have existed previously, and although the Act has been tightened up on two separate occasions since it was brought into force, there is a feeling that more should be done. Do we still have an ambiguous attitude to underage consumption of alcohol? And what proposals are there for penalising not just the seller of the alcohol but also the buyer?
24. The Government proposes to ban what are described as "below cost sales" of alcohol. This is intended to reduce drinking and drunkenness. Would such a restriction be in conflict with competition laws? How would legislation define the "cost" of alcohol?
25/26. The Government proposes to increase the level of licence fees and would also like to change the rules so that a Premises Licence could be revoked if the annual fee was not paid. A simple and practical measure- or more red tape?
27. The review suggests that the mandatory conditions being introduced on to all licences this year represent unnecessary bureaucracy. Have such measures had a positive impact in preventing alcohol related crime? Is there evidence that for example the ban on irresponsible promotions or on the dispensing of alcohol directly into the mouths of customers are a genuine and proportionate response to a real problem? Or is this overkill?
29. A suggestion that some of the application forms under the Act could be simplified and shortened; furthermore a suggestion that more might be done to deregulate the provisions of the Licensing Act? An interesting and very open ended question!