16. Memorandum submitted by the Institute
of Licensing
SUMMARY
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.
— 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.
"MUST GRANT"
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.
LICENCE REVIEWS
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.
FEES STRUCTURE
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.
REGULATIONS
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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