Examination of Witnesses (Questions 45-59)
COUNCILLOR CHLOE
LAMBERT, MR
PATRICK CROWLEY,
MR PHILIP
KOLVIN AND
MR JEFFREY
LEIB
31 OCTOBER 2005
Q45 Chair: Would each of you just say
who you are?
Mr Crowley: I am Patrick Crowley.
I am the Licensing Manager at the Royal Borough of Kensington
and Chelsea. I also represent the Association of London Government
on the DCMS Advisory Committee and am a member of the LACORS national
licensing policy forum.
Councillor Lambert: Good afternoon,
I am Councillor Mrs Chloe Lambert. I am here today as Deputy Chairman
and independent group leader of the Local Government Association.
I am also a member of Aylesbury Vale District Council in Buckinghamshire.
I sit on that council's licensing committee. I also serve on that
council's development control committee. I also have to tell you
that I am a serving magistrate on the central Buckinghamshire
bench, that is in the Thames Valley Commission and I used to sit
on that bench's licensing committee panel circa 1995.
Mr Kolvin: Philip Kolvin. My day
time job is as a licensing barrister, but I am here as the Chairman
of the Institute of Licensing.
Mr Leib: My name is Jeffrey Leib.
I am one of the vice-chairs of the Institute of Licensing and
I am also the Licensing Manager at Watford Borough Council.
Q46 Chair: May I ask the first question
then which is about the LACORS guidance not being legally binding?
We have been told by some witnesses that, as a result, local authorities
have cherry-picked from it to suit them. Do you think the guidance
should be legally binding and do you think that authorities have
been cherry-picking?
Mr Crowley: It is in fact advice
rather than guidance—I do not know whether there is a difference.
LACORS receives queries and they have a number of policy advisers
around the country. The policy advisers, who are people like me,
licensing officers, give their view and LACORS creates the advice.
As such, I think it would be very difficult to make it legally
binding.
Mr Kolvin: My take is that there
is too much guidance out there. The national guidance, the Secretary
of State's guidance, is 200 pages long. There is a great deal
of confusion out there as to what the proper procedures are and
there has been a lack of clarity.
Q47 Chair: To amplify on that, would
you think that the guidance that the Government have put out has
been too prescriptive or not prescriptive enough? We have had
particular complaints about the requirements for advertising and
also the rules about the hearings and procedures.
Mr Kolvin: There are two different
things there. The advertising requirements are too restrictive.
Some questioners asked before about latitude. I am a lawyer and
I get asked a lot of questions by the trade and local authorities
about latitude. The problem is that in the way the Act is drafted
and the regulations are drafted all these points are jurisdictional.
So if the advertising notice is not on light blue paper in Times
16 point Roman font, then the application is not duly made. As
an institute, we asked the Government to write in a slip rule
and discretion, so that something which was basically compliant
was allowed through. Unfortunately, the Act and the regulations
are drafted in exactly the contrary sense, so unless it complies
to the letter, there is no jurisdiction to determine the application.
So far as the guidance is concerned, this is the Secretary of
State's guidance, the two big problems are on stress areas and
hours. The perception out there is that the Government are blowing
hot and cold in initially saying that in order to reduce the problems
of people emerging from premises en masse longer hours
are needed; the more lately by letter of 13 September saying that
really the views of residents are paramount. No-one is quite sure
what the rules are and that is going to be a very big problem
when it gets to the magistrates' court. So far as nuisance in
the public domain is concerned, the guidance was that in essence
licensing is only relevant when it is something to do with stress
areas. There are endless arguments about what a stress area is
and whether that bit of guidance is complied with or not, whereas
the previous position was simply that if premises impacted environmentally
on their surroundings, then it was a relevant matter for licensing
authorities. It seems that by drawing up the guidance in that
particular way discretion has been removed from local authorities
to deal with things in their wisdom on a discretionary basis.
Councillor Lambert: From a member
of a licensing committee's point of view who also sits in a magistrates'
court, I would say that the guidance, both to local authority
members and to magistrates, has been confusing. The LACORS guidance
has been very, very helpful, but it is specific guidance to the
local member that needs to be expanded on.
Mr Crowley: I would echo what
Mr Kolvin said about the Secretary of State's guidance, specifically
in relation to longer licensing hours, where licensing committees
have now sat through the transitional period to a large degree
and have had regard to what the guidance says, which is to go
for longer hours. Then we get a letter from the Secretary of State
in mid-September saying, "We didn't really mean that; we
meant listen carefully to what residents say", which is a
big conflict. Perhaps, if that is the way the Government view
it, it is a bit late to say it.
Q48 Anne Main: The premise behind
it is staggered opening hours or staggered coming out times. Can
you see anything in the Act that would deliver that because it
does seem a bit contradictory? Do you think things could have
been made clearer on how local authorities could have delivered
this staggering?
Mr Kolvin: There is a very serious
problem at the heart of the legislation and we are very short
of time, so may I speak bluntly. Parliament effectively was told
that a zoning experiment in Scotland had not worked and we needed
to get away from zoning, in other words, fixed hours. It was not
quite right, that was not how it had been in Scotland. The experiment
which had failed in Scotland was a different experiment of street
designation orders, where different streets were designated in
a different way. The Act will not deliver staggering: it will
deliver the opposite of staggering. By encouraging longer hours,
what is going to happen is one commercially-driven later hour
and it is going to be worse than the current system because it
is not going to be an hour which is clear. Whereas previously
the police at least knew that chucking out time was 11 o' clock,
now it could be any time according to how business is going on
that night.
Q49 Anne Main: Australia and Canada
have backed a full study on exactly what you have just said.
Mr Kolvin: Exactly. The way to
handle this is to allow local authorities to treat matters strategically,
but the Act prevents local authorities treating matters strategically
because they have no discretion in the absence of relevant representation,
so they have no means of taking an overview and intervening in
the system to ensure that there is a sensitive removal of people
from premises according to some pre-ordained time. I have to say
that my own view, as a lawyer dealing with these, is that the
Act is likely to be counter-productive; I hope I am wrong.
Q50 Chair: The evidence we have had
from the Government, ODPM, is that licensing authorities report
there is genuine variation in licensing hours rather than a shift
to a single later terminal hour. Is what you have just said based
on your supposition or actual evidence?
Mr Kolvin: It is based on talking
to an enormous number of people in the industry: lawyers, industry
people and local authorities.
Q51 Chair: Based on reality or based
on what you think will happen.
Mr Kolvin: Based on reality. The
position is that one can apply for longer hours. The guidance
has been to give the longer hours, the longer hours are, on the
whole, being awarded, except to some extent in the metropolitan
areas where councils such as Kensington and Chelsea and Westminster
have stress policies. So there is a move towards longer hours,
but what is effectively going to drive the terminal hour is business.
You are not going to leave your bar open when there is nobody
sitting in there: it is business which will determine when the
premises actually close.
Mr Leib: To add on to that as
well is the fact that certainly a lot of the larger organisations
have put in blanket applications. Although there may be a desire
for different opening and different closing hours, within one
town where there may be a number of operations from one business,
they are actually all applying for the same hours.
Q52 Alison Seabeck: I have a couple
of areas to ask you questions on: the first is the regulatory
burden. The Act was intended to be a deregulating measure bringing
six regimes into one. Is your view that this has been successful
in that particular capacity? Do you think that once we get through
this transition period things will bed down and it will actually
work better than what was there before?
Councillor Lambert: I think things
will take a long time to bed down and speaking of the guidance
which has been issued from the DCMS, it has not really been sufficient
to help local authority licensing committee members.
Mr Crowley: The experience we
have had as well is that the licensing committee have had its
hands tied to a certain extent by the Secretary of State's guidance
and because they have had to have regard to that have given decisions
which residents are not happy with. The review process, which
cannot start until 24 November, is going to have a significant
impact.
Q53 Alison Seabeck: Councillor Lambert
said "a long time". What do you mean by "a long
time"? Months? Years?
Councillor Lambert: I have people
saying to me "Chloe, why can't you go along and speak about
your local pub". I have local publicans saying to me "I
want to do X, Y and Z". That is where the blanket licensing
hours change, with karaoke, live music, 2.30am. Most people in
my area do not want that, but licensing applicants are being encouraged
to do that by the Act, which is setting up a tremendous amount
of work for local authorities who have over-stretched resources.
Mr Leib: The point I want to make
very briefly is that the actual principle of consolidating six
separate regimes is in itself sensible and putting it all within
one house. There are obviously difficulties about the mechanics
and how that has been achieved.
Mr Kolvin: I should like to agree
with Jeff and add that I do see a difficulty in future, that there
is something of a void in the local authority structure at the
heart of the legislation. It is a marvellous idea to give the
power to local authorities, but a lot of protagonists who are
within this system are going to have their own roles diminished.
If I may just pick three examples: one is the ward councillors
who have basically been ruled out of this system and a lot of
them feel a great sense of grievance; they are devoted to their
areas but cannot really play a role. The second example is members
who have been left largely untrained under this new regime and
there are not a lot of resources out there to train members and
of course, they do not get a discretion unless somebody makes
a relevant representation. Our perspective in particular is that
of the licensing officer. There is genuine dispute around the
country, amongst the lawyers in the industry and in local authorities
themselves, as to whether the licensing officer is entitled to
make a representation to his own licensing committee as to what
he has seen, secondly as to whether he is entitled to recommend
to a licensing committee what to do in X, Y, Z circumstance and
thirdly, if a licensing officer sees breaches of licence conditions
actually being committed, whatever they may be, to report it,
institute a review or do anything about it. All of that is because
of the way the legislation has been written and there is a real
danger that the department which should be at the fulcrum of this
regulation and management of the night-time economy has had his
powers actually stripped away by this legislation. To me, that
is a serious structural flaw which is going to make future work
on the legislation quite difficult.
Councillor Lambert: Unfortunately,
it has also increased lack of accountability for the licensing
committee member, particularly the local member and that is where
I come back to: local members need to have their role further
clarified.
Q54 Chair: Local authorities have
always determined these things in a quasi judicial manner: hackney
carriage licences for example are quasi judicial and always have
been. To that extent it is not different.
Councillor Lambert: It is different
to us because some of us also sit on other quasi judicial committees
such as development control, where we are getting different advice
and different guidance, specifically as far as the local member
is concerned. That is what needs to be sorted out because the
public have to deal with us. We all work for the same council
in their eyes; the council is one body whoever is sitting on it.
Mr Kolvin: Very frequently there
is a triangulated position, an application which is not acceptable
would be acceptable if only conditions were applied or something
were negotiated away. If you strip the licensing officer's ability
to make representations out of that equation, it ends in conflict
when instead there should be conciliation. This argument is a
very important one for the working of the legislation.
Q55 Mr Olner: Has mediation played
any sort of role whatsoever between those seeking the licences
and the committees granting them?
Councillor Lambert: Certainly
in my authority's experience and that is the one I know most about,
we have done our utmost to involve all sides, both the licensed
trade, people who run local shops. Through the LGA I know vast
experiences, different experiences throughout the country on a
number of different councils, different sorts of authorities.
At the same time, I am supposed to be concentrating on the economic
development, which I am sure we all would support, tourist trade
and so on. You have had evidence submitted about that from previous
speakers today.
Q56 Mr Olner: So did mediation work?
Councillor Lambert: Mediation
is considered to be slightly different. Mediation to me, as a
licensing committee member means our head of licensing, who is
over-stretched and under-resourced, not an uncommon position—
Q57 Mr Olner: Is this not an historic
sort of knock back?
Councillor Lambert: No.
Q58 Mr Olner: Here you are, an ex
magistrate, sitting next to a lawyer and I would suspect that
neither of you really wants mediation because it is doing you
out of a job.
Councillor Lambert: No, no; it
is the opposite, certainly as I am still a magistrate.
Mr Kolvin: No; it is the opposite.
As an institute, when we responded to the regulations, we asked
for two things. We asked the Government to give a longer lead
time between representation and hearing, at the moment it is 28
days, to allow more time for mediation and secondly to provide
a better structure for the giving of information by both parties
so they could see where each side was coming from. However, because
that is not happening, the dispute is being taken into the council
chamber, whereas really many of these disputes are easily resolvable
if only you could get the parties talking at an earlier stage.
I know this from handling appeals on behalf of licensing authorities:
once you get parties talking, so much more can be resolved. However,
the regulations are structured so as to engender conflict rather
than conciliation.
Mr Crowley: My own experience
is that we have been under-resourced and over-burdened but where
we have had the opportunity to involve mediation, it has worked.
I see in the future, when the workload has evened out a bit, more
mediation and experience shows it has worked.
Q59 Mr Olner: Do you think then,
as we understand the mediation role more, that there will be a
role there for the local ward councillor and even the local Member
of Parliament?
Councillor Lambert: Absolutely.
I would say that was of paramount importance, the lowest local
level.
Mr Crowley: Absolutely.
Mr Kolvin: Certainly
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