House of Commons - Office of the Deputy Prime Minister: Housing, Planning, Local Government and the Regions

Select Committee on Office of the Deputy Prime Minister: Housing, Planning, Local Government and the Regions Second Report

4 Guidance

Guidance for local authorities

Statutory guidance

31. Local authorities, applicants and residents all relied on guidance from Government during the transition process. Statutory guidance was issued in July 2004, almost a year after the Act was passed and only five months before authorities had to publish their licensing policies. Moreover, as we set out in paragraph seven, the Regulations which determined fees payable were only passed in February 2005, after licensing policies had to be written and just as the transition period began. The Institute of Licensing told us that this "led to nearly a year of uncertainty and confusion amongst licensing authorities".[39] It further commented that:

The Institute also said that many authorities had tried to include the 12-week consultation period recommended by Cabinet Office guidelines, making their job even harder.

32. The statutory guidance was not considered to be of high quality. Peter Wright, of Gateshead Council, commented "The drafting of the Act and Guidance is, at times, 'vague', inconsistent and naïve. Much of it reads as 'policy' rather than legislation".[41] He added "Substantial parts of the guidance appear to be written to give greater weight to the freedom and flexibility aspects than to the protection of local residents. Such lack of consistency has given the media free rein to criticise".[42] Andrew Fisher, of Bolton Metropolitan Borough Council, said "The published guidance from the DCMS was significantly different from the draft guidance and the changes were not highlighted".[43]

AMENDMENTS TO THE STATUTORY GUIDANCE

33. Councillor Lewis also raised a problem that local authorities had encountered with one specific issue, describing the DCMS guidance as "bizarre and unhelpful".[44] She explained

The dilatory approach on the part of the DCMS was completely unacceptable, and left local authorities open to challenges based on guidance produced after they had already been obliged to make decisions.

34. At the end of September 2005, between the First and Second Appointed Days, a letter from Ministers was sent to local authorities. This letter appeared to be further additional guidance about the implementation of the Act issued in light of some of the problems already presented to DCMS. The letter seemed to shift the principle of the new licensing system, on which local authorities should lean when granting or rejecting applications, away from the presumption that longer hours were desirable, and towards placating residents. It also congratulated some local authorities on their 'pragmatic' approach to decisions, which did not tally well with the previous insistence on abiding by strict statutory requirements.

35. The Institute of Licensing said

Other witnesses pointed out that the letter seemed to contradict the statutory guidance. Mr Kolvin, of the Institute of Licensing, said

Mr Crowley, adviser to LACORS, agreed with this assessment, adding "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".[48]

36. We put these issues to James Purnell MP, Minister for Media and Tourism. In response to a question about the time taken to produce initial guidance, he said

We recognise that the legislation and guidance were both complex pieces of work, but the Government had years to prepare for the implementation of this legislation. The Government took an unacceptable time to produce statutory guidance. No adequate reason has been given for the late production of such important paperwork. The DCMS should have foreseen both the need for timely production of the guidance and regulations, and the amount of work needed to produce the guidance within the right timeframe. The short timescale also meant that it was not possible to try out the guidance, which could have eliminated many of the problems experienced by local authorities in the transition period.

37. When we asked about the changes made to the guidance, Mr Purnell replied:

He rejected the idea that the September letter reflected a shift in Government thinking: "that came out of the LGA in particular coming to us and saying that they had some local councils who had concerns that there was a presumption for longer hours over people's objections and we made it absolutely clear to them that there was no such presumption where people had objected".[51]

38. The Cinema Exhibitors' Association, which is otherwise broadly content with the Government's efforts, made the important point: "A major lesson that we can learn is that when there are tight deadlines the underlying legislation must be settled before preparatory work is undertaken".[52]

39. The timing of the delivery of the statutory guidance, which did not appear until nearly two years after the Act was passed, caused expense, inconvenience and stress for local authorities, already faced with implementing a massive licensing change. The Government failed in its duty to support implementation of its legislation by providing local authorities with the appropriate guidance in a timely fashion. Next time a major piece of legislation is passed requiring significant work on the part of local authorities, for example, the forthcoming Gambling Act, consistent guidance must be published before local authorities are required to act.

GUIDANCE ON IMPLEMENTATION

40. Those local authorities who submitted evidence to us were clearly very involved in the process and we were impressed by their efforts. However, as we mentioned above, the Federation of Small Businesses revealed that, in areas where local authorities were not active in publicity campaigns, rates of timely applications were significantly lower than in areas with pro-active local authorities.

"The council with the highest receipt of applications the week before the deadline was South Hams in Devon, receiving 77 per cent of all applications. Croydon council, which had no specific guidance on its website, received just 30 per cent of possible applications to convert in the week before the 6 August deadline".[

It is unfortunate that co-ordination of local authority activity was not encouraged more. The Wine and Spirit Trade Association was clear on this point:

Guidance for applicants

41. Applicants did not consider the guidance provided specifically for them by the Government very effective. We were concerned to learn, for example, that a telephone help line for applicants, funded by the DCMS and run by the LGA and LACORS (the bodies charged with bridging the gap between DCMS, local authorities and applicants), was only set up in mid-July, barely a fortnight before the First Appointed Day. This helpline had dealt with 850 businesses by the time LGA/LACORS sent their evidence in to us, a tiny proportion of those who had to apply for licences.[55] The Institute of Licensing was critical of this phone line and also told us that information leaflets in languages other than English were only produced in mid-summer.[56] There are many small businesses in England and Wales run by people who do not have English as a first language and we find it reprehensible that this material was only made available in other languages late in the transition period. DCMS severely let down a proportion of potential licence applicants by lack of preparation.

42. The statutory guidance was unclear about the specific requirements for applicants. Peter Wright of Gateshead Council gave one example:

Simple oversights like this adversely affect applicants, residents and local authorities. Applicants should be able to rely on the guidance they are receiving, and know that following it to the letter is possible.

TRADE ASSOCIATIONS

43. It is clear that trade associations have played a large role in informing and advising applicants, compensating in many cases for shortfalls in official information. Large companies of course had in-house expertise. Luminar plc for example, which had to apply for hundreds of new licences, told us that it produced in-house application packs for its unit managers, and provided its operators with legal advice.[58] The Institute of Licensing told us "It was left to many licensing authorities and trade associations such as the British Institute of Innkeeping to provide information and advice to their respective constituencies".[59] The Government should have been aware that those who were not part of trade associations, primarily small businesses, would require more support - relying on trade associations so heavily left them out of the loop.

44. Councillor Lewis of Westminster City Council was highly critical of the resources made available to support the implementation of the new regime:

The DCMS let licence applicants down by failing to provide a satisfactory level of support. Resources were introduced late or failed to appear as promised. Government departments should make every effort to plan and deliver all necessary resources to all parties during the implementation of legislation.

Guidance for residents

45. A selection of residents' associations wrote to us to express their concern at the new regime; they had found the guidance as baffling as applicants had. Their chief worry was an inability to work out which parts of the guidance were definitive. When making a representation against a licence application, it is vital to know whether one has grounds for complaint. We also hope that efforts will be made to ensure that guidance for residents is made available in languages other than English, where appropriate. We recommend that the DCMS include the guidance available to residents in its review to ensure clarity.

INCONSISTENT IMPLEMENTATION

46. The greatest problem residents have found with the implementation of the Act is the inconsistency with which local authorities have applied the rules. Definitions of some terms have not been provided in the legislation, which has caused uncertainty and resentment. A prime example of this is the meaning of 'vicinity' - local authorities are left to decide how strictly they will define the term. The Network of Residents' Associations explained "This freedom granted to individual Licensing Authorities and then to the several Licensing Sub-committees of each Licensing Authority has led to a variable standard of determinations not only occurring in different Licensing Authorities but also within each Licensing Authority".[61]

47. Other inconsistencies include the provision of information to residents. The Redland and Cotham Amenities Society complained that "There is wide variation in the amount and ease of access to application documentation, reflecting the will and capability of LAs [local authorities] to inform their citizens. Some are exemplary, with comprehensive web sites and full information supplied to those making representations. Others refuse to provide or even allow copies to be taken of the application".[62] Local authorities, or those organisations co-ordinating their activities, should make greater efforts to ensure good practice is established when implementing new legislation.

48. Both these points were put to the Minister for Culture and Tourism. He told us that the DCMS was happy to include matters such as these in its review of the guidance, stating:

49. We understand that local authorities will always need some room for manoeuvre in the making of decisions. The discretion to make locally appropriate decisions is necessary to implement the Act successfully. It is clear though from the concerns of those bodies that represent residents that local authorities would benefit from best practice guidance in some areas. The new representation process will clearly have the best results when there is no resentment on either side following a decision; something that could easily happen if authorities are perceived to be unfair. The DCMS should ensure that its review of the guidance looks at the issue of local authority consistency in the implementation of the Licensing Act and the need for best practice information.

Guidance Review

50. The Government has already announced a review of the guidance which began in November 2005. The Network of Residents' Associations raised concerns about the prospect of the review, pointing out that "the vast majority of premises licences have been granted, and they have been granted in perpetuity".[64] Any substantial changes following a review are likely to lead to issues arising about those licences granted under the original guidance. The Institute of Licensing and the Magistrates' Association had several worries about the implications of a change in the guidance for those cases under review.[65] The Wine and Spirit Trade Association suggested "There must also be a review of how licensing authorities interpret and implement this guidance".[66] While we are very glad that the DCMS has recognised the need to improve the current guidance, the process should be sensitive to the implications of any changes. The review will inevitably cause disruption for some; unfortunately it is necessary given the failings of the Department's original guidance.

39 Ev 35 Back

40 Ibid Back

41 Ev 33 Back

42 Ev 34 Back

43 Ev 40 Back

44 Ev 50 Back

45 Ibid Back

46 Ev 37 Back

47 Q 47 Back

48 Ibid Back

49 Q 72 Back

50 Q 72 Back