Select Committee on Home Affairs Written Evidence

16. Memorandum submitted by the Institute of Licensing


  The Institute of Licensing is the professional body for anyone with an interest in licensing in England and Wales. Whilst its membership is largely drawn from local authority licensing officers and councillors, an increasing number are also drawn from the private sector. It exists for the advancement of education by increasing public awareness and knowledge in all matters relating to licensing laws.

  The Institute welcomes the aims of the Licensing Act 2003 to provide a modern, unified system for the sale and supply of alcohol, for the provision of public entertainment and late night refreshment, as well as reducing the burden of unnecessary regulation.

  The Act has four licensing objectives:

    —  The prevention of crime and disorder.

    —  Public safety.

    —  The prevention of public nuisance.

    —  The protection of children from harm.

  These have unanimous support from the Institute.

  The new legislation includes other measures, such as the introduction of a review provision and a system of personal licences, that are equally welcomed.

  The Institute also identifies significant risks that the purpose of the new legislation will not be fulfilled in certain respects as its current provisions are laid out.

  This paper will focus on concerns about:

    —  The impact of section 18 of the Act on the prevention of crime and disorder and prevention of public nuisance objectives. This section removes the licensing authority's discretion to consider licence applications at a hearing in circumstances where no representations are received, and introduces a "must grant" provision.

    —  The risk that the fees structure presently being consulted upon will not enable full cost recovery. It is the view of many in the Institute that inadequate funding of the inspection and enforcement function has the potential to put at risk the Act's public safety objective which in turn can impact on anti-social behaviour.

    —  The absence of secondary legislation only seven weeks before the first appointed day is affecting the ability of licensing authorities to prepare for the challenge of transition to the new legislation.

  Both individually and collectively, these factors are in danger of undermining the purpose for which the legislation was enacted.


  The Government's decision to place the responsibility for licensing alcohol, public entertainment and late night refreshment with local authorities was made in part to enable locally elected members to make decisions that have an impact on the communities they represent.

  The Act's intention is for local decision making to be guided by a statement of licensing policy. The statement will be reviewed every three years and, as section 5 requires, will be consulted upon with local police and fire authorities, business and resident's groups and representatives of the licensed trade.

  The Institute is concerned that local decision making is undermined by s.18 of the Act. When an application is made and representations are not forthcoming from either local residents or any of the responsible authorities, the licensing authority "must grant" the licence. Furthermore, as set out in the explanatory notes accompanying the Act, "that licence will be subject to conditions consistent with those listed by the applicant in the operating schedule. . . ".

  This being the case, the Institute feels that Councillors will be hamstrung in their ability to reflect the opinions of the communities they represent.

  The effect of section 18 is to place an undue expectation upon local communities to become aware of, and investigate, every single application that might affect them, so that they can avail themselves of their opportunity to mount an objection.

  Their alternative is to rely on Police or other statutory "responsible authorities" to make such representations, in order to engage the licensing authority, and avoid the "must grant" provision.

  There is concern in the Institute that local communities and responsible authority's lack the capacity for constant vigilance of all licence applications, that the Act seems to expect of them, and that it is right and proper that the licensing authority should carry out this role.

  Licensed premises—especially those licensed to sell alcohol—clearly have an impact on anti-social behaviour resulting in noise complaints (leading to increased work for environmental health departments); litter (resulting in increased costs for town cleaning services); the police and hospitals (resulting in increased resource implications); and transport operators—as well of course as the impact on local residents and other businesses that may suffer as a result.

  Local authorities have had a long track record under existing legislation—which will be repealed—relating to public entertainments, theatres, cinemas and other activities in exercising its discretion to refuse applications or frame appropriate conditions where necessary to reduce the impact of crime, disorder and anti-social behaviour from licensed premises.

  Under existing legislation, for example, premises providing public entertainment can be required at the licensing authority's own volition to employ registered door supervisors or to use an age-accreditation scheme for alcohol sales; under the 2003 Act, the authority's discretion must first be engaged by a responsible authority or interested party before this can occur. Although licensing authorities may have been criticised in the past for being over-zealous in their decision-making, they are of course subject to the supervising jurisdiction of the courts.

  Of particular concern is that the "must grant" provision applies even in those towns and cities which have been designated by the local authority as subject to a special policy not to grant any further late night drink led entertainment licences because they are saturated with them.

  The Guidance to the Act allows such areas that are already under pressure because of drink fuelled crime and disorder late at night to be designated in licensing policies as places, where subject to exceptions, no further licences will be granted. This is again however solely dependent on relevant representations being made, preventing locally elected councillors sitting on licensing committees from exercising their role in community stewardship.

  The Institute is concerned that the restrictions in the Act and Guidance which remove the discretion of the licensing authorities, may defeat the objectives of preventing crime and disorder and preventing public nuisance.

  The Institute would hope that the Government exercises vigilance in the months following the introduction of the Act and that the Act is amended at the earliest opportunity if s.18 is found to be making towns and city centres unattractive places in which to live, work in and visit because of a drink orientated mono-culture that increases crime, disorder and public nuisance.

  The Institute does however welcome the extension of licensing outside of London to late-night take-away premises, that are often a focus of late-night anti-social behaviour, although we still express the reservations about the "must grant" provisions inherent in the new system.


  The Institute of Licensing welcomes the provisions in the Licensing Act 2003 whereby premises licences and club premises certificate may be reviewed by the relevant licensing authority and appropriate sanctions applied where required. However, the Institute is concerned that the licensing authority's own officers—who have a power of enforcement that may result in criminal prosecutions—do not have the power to request that a licence may be reviewed. This may only be done by a designated responsible authority or by interested parties, which may mean that some low-level anti-social behaviour issues are not dealt with.


  One way in which the Act will reduce unnecessary regulation is to unify the three licensable activities that are most strongly associated with the night time economy under the regulation of elected local government.

  The Act allows operators to apply for one "premises licence" that has the potential to permit and condition each one of those activities. The Institute has worked closely with local authorities, the Local Government Association (LGA), and the Association of London Government (ALG) to establish an appropriate fee structure for the Act, enabling full cost recovery. It is important to get fee levels correct both to ensure that operators are not burdened with unnecessary costs, and to enable licensing officers to fulfil their responsibilities for public safety to those who attend licence premises.

  An inadequately funded licensing service is likely to result in an inadequate number of licensing officers to ensure public safety through a risk based inspection regime such as that proposed by the Guidance to the Act. There are a wide range of matters that, through a lack of enforcement by licensing officers, can lead to an increase in crime and anti-social behaviour. These range from failure to comply with licence conditions relating to closing times and noise insulation, to offences under the Act relating to under-age alcohol sales or sales to those who are already drunk—as well, of course, as to the prevention and detection of unlicensed activities.

  The Institute welcomes the recent initiative of the DCMS to meet with licensing authorities and the LGA to discuss fee levels at the required level of detail.

  At the same time, there is concern that licensing authorities are unable to prepare and resource themselves adequately for the introduction of the Act on 7 February 2005 without knowledge of the funds that will be available to them for that purpose.


  The DCMS sent out the draft secondary legislation for the Act to the Institute and other interested parties in September with an eight week return date. A copy of the Institute's response is attached for the information of the Committee [not printed]. The Committee will note that the response includes constructive proposals for improvement.

  The Committee will also note that the Institute had grave concerns about the regulations both because of what was included in those drafts and what was not. The purpose of consultation is to enable correction where necessary but it has caused alarm for licensing officers that they remain unable, with only seven weeks before the first applications will be received, to understand some of the important detail about how the Act will operate in practice.

  For example, with regard to Committee procedures no framework of rules for running licensing committees was included in the draft, which also ruled out continued use of the present framework that has been used successfully over many years.

  The Institute would like to see properly drafted regulations brought forward at the earliest opportunity, because it is concerned that the delay and uncertainty will adversely affect the ability of licensing authorities to manage the transition effectively. Variation applications that are not determined within the two month time limit will automatically become subject to appeal in the Courts, adding to the cost burden for all parties, and threatening the aim of decision making by locally elected members.

13 December 2004

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