Memorandum by The Institute of Licensing
(RL 10)
1. The Institute of Licensing is pleased
to make a submission to the Committee on the Office of the Deputy
Prime Minister's enquiry into the "re-licensing" under
the Licensing Act 2003. The Institute would have wished to have
made a more lengthy submission but have been constrained by the
time available to do so.
2. The Institute is a company registered
by guarantee, whose Board of Directors have approved the contents
of this paper. The Institute represents over 500 professionals
involved in licensing in England and Wales, within the public
and private sectors. It is organized on a regional basis, and
the chairs of each region are also Board Directors.
3. We feel that it is important to say what
we understand the nature of the enquiry by the Committee to be.
We understand that the Committee wishes to understand the mechanics
of the implementation of the Licensing Act 2003, and not its merits,
although in some areas the two issues are difficult to separate.
4. Pre-Legislative Consultation
We were pleased to see that the Department for
Culture, Media and Sport arranged various working parties to advise
on the-then Licensing Bill's progress through Parliament.
5. Many of our Members felt that their organisations
were however excluded from this rather opaque process, which we
feel was dominated by the pub industry. Local authorities in particular
were represented by the Local Government Association/Association
of London Government, and the Local Authorities' Co-Ordinators'
of Regulatory Services. Whilst we value their representative role,
we feel that more transparency would have greater aided preparation
for such major reforms.
6. Post-Royal Assent
The Act received Royal Assent in July 2003.
Licensing authorities are required under the Act to produce statements
of licensing policy, which must be written with regard to statutory
guidance issued by the Secretary of State for Culture, Media and
Sport and approved by Parliament under section 182 of the Act.
7. The final guidance was not published
until July 2004, which led to a nearly a year of uncertainty and
confusion amongst licensing authorities. As the policies had to
be approved by meetings of the full licensing authorities by December
2004, this only gave five months in which to draft, consult upon,
and publish the policies—and which many authorities endeavoured
to include the 12-week consultation period recommended by Cabinet
Office guidelines.
8. The time between publication of the policies
and acceptance of the first "re-licensing" applications
on 7 February 2005 was only a few short weeks which also included
the Christmas and New Year period.
9. This delay had an impact on drafting
policies, which in any event mostly replicate provisions of the
Act or of the statutory guidance and certainly restrains licensing
authorities from acting strategically, as we explain below.
10. Application forms
We feel that the application process, both for
existing and for new licence-holders, was unnecessarily complex
and burdensome for what was purportedly an exercise in deregulation.
11. Applications to convert extant licences
had to negotiate a 26-page form (plus associated forms and public
notices). We say the word "negotiate", because in many
instances many pages were required to be left blank but a signature
was required on the very last page.
12. We think the lack of a "slip rule"
in the statutory instruments accompanying the Act led to the system
being more complex and burdensome than it ought to have been.
Although the Minister of State wrote to licensing authorities
in August 2005 congratulating authorities on their pragmatic approach,
the process would have been smoother from the outset if this facility
had been available.
13. Specific examples of where this would
have been beneficial have included:
— where an applicant might have delayed
placing the public notice of their application for some reason.
Rather than rejecting the application, the licensing authority
could have allowed the consultation period to have started running
from the time of the application
— where an applicant has not, for some
reason, served copies of the application on each of the "responsible
authorities" under the Act, the time for making representations
could have started from the date the responsible authority received
the application
— interested parties whose representations
on the applications were made after the statutory 28-day period
could have been accommodated for good cause—for example,
if they had been on holiday, or the application had been wrongly
advertised.
14. We note that the statutory instruments
containing the detailed application forms and other mechanics
of the Act were only available on the DCMS website at 7 pm on
6 February 2005, the day before licensing authorities could accept
applications.
15. Even at this point, the application
forms contained a number of typographical and other difficulties
(including not being available for electronic completion) and
these were not rectified for some time.
16. This led to very, very few applications
being made during the first few weeks of the transitional period,
and an avalanche of applications near to the 6 August deadline.
It led to both late and rejected applications. We are confident
that this owed more to the logistical difficulties caused by the
very late publication of the statutory instruments than for any
other reason.
17. Two examples of deficiencies in the
application forms to convert and vary premises licences were:
— a failure to request full details
of the designated premises supervisor's personal licence when
the premises are authorised to sell alcohol. The licensing authority
is required to state on the premises licence which other licensing
authority has issued the personal licence, and the licence number;
however, this does not have to be provided on the premises licence
application form. Consequently, licensing authorities have to
make further enquiries of applicants in many cases to verify this
information; and
— the premises licences and club premises
certificates have to be issued with a plan of the relevant premises
attached. Applicants have to only submit one copy of the plan
with their application, but licensing authorities are also required
to retain a copy of the plan as part of their statutory licensing
register. This has led to a need for plans to be copied at the
licensing authority's expense.
18. We feel that the process would have
been handled more effectively if applications for personal licences
had been handled first, followed by those for premises. The successful
staged introduction of private hire vehicle licensing in London
by Transport for London/Public Carriage Office shows that such
an approach can work.
19. Embedded restrictions
Schedule 8 of the Act requires extant licences
that have been converted to new permissions under the Act to be
subject to the same rights and restrictions as those they replace.
Whilst the schedule specifies four further Acts[4]
where these so-called "embedded" rights and restrictions
should be drawn, the specific rights and restrictions are not
listed.
20. Repeated calls were made by Members
of the Institute and many others for DCMS to provide clarity as
to which rights and restrictions would continue to apply to new
permissions following "re-licensing". In December 2004,
the Chairman of the institute, Mr Kolvin, of counsel, produced
advice as to the nature of these embedded restrictions. These
had been consulted upon before publication, and were widely distributed.
In May 2005—some six months later, and three months before
the end of the transitional period—DCMS published their
guidance which was at variance with that of Mr Kolvin. We were
disappointed that DCMS had failed to take the opportunity to provide
clarification on restrictions other than under the Licensing Act
1964. This has led to an enormous amount of confusion as to the
nature of these restrictions, which are, crucially, conditions
on the new authorisations now being issued.
21. We are also concerned that the advice
published by DCMS may indeed be at variance with the Secretary
of State's statutory guidance, which is a further example of an
issue we have highlighted above.
22. Licensing Committee Hearings
We feel there are a number of difficulties posed
with the over-prescriptive regulations governing hearings before
the licensing authority. In particular, the 28-day rule for receiving
representations we referred to above is too inflexible.
23. Representations can only be rejected
on specific grounds. This has led to very many hearings being
held where there have only been one or two representations from
interested parties. We feel that the licensing authority should
be given more flexibility in which to deal with representations
in these circumstances.
24. We also feel that the system for setting
up a hearing is driven too much by paperwork:
(a) the licensing authority must send copies
of representations to the applicant;
(b) the licensing authority must send written
notice of the hearing to all parties to the hearing;
(c) all parties must reply in writing indicating
their intention to attend the hearing, be represented at the hearing,
or not to attend; and
(d) the licensing authority must give notice
in writing if a hearing is cancelled.
25. Strict time-limits apply to each stage,
including the period within which the licensing authority must
hold a hearing.
26. Given the late confirmation of the relevant
statutory instruments (around 17 months after Royal Assent and
just a short time before the First Appointed Day), inadequate
time was given to licensing authorities to put robust procedures
in place from the start.
27. The time for a licensing authority to
determine applications starts to run from the time it receives
the application. We feel that this caused its own difficulties,
with many licensing authorities unable to arrange hearings within
the required time. Far better, in our view, would have been a
requirement for licensing authorities to have published a set
of hearing dates a year in advance, and for applicants to ensure
their applications reached the licensing authority in time to
be considered on the pre-published date.
28. We accept that the regulation for public
hearings needs some form of framework, but we find that all of
the timetables (and indeed the regulations themselves) are highly
prescriptive. No leeway, discretion or room for manoeuvre is possible
even for example when all the parties to an application are in
agreement. This truncated timescale, particularly for holding
hearings, severely limits the possibility of holding meaningful
negotiation and mediation between applicants and objectors—which
is one of the key features that the Act was designed to introduce.
29. Licence Fees
The Government argued that start-up funding
for licensing authorities was unnecessary under the Licensing
Act 2003, because there would be no inspection or enforcement
costs during the transition period, and fees would still be received
from the other licensing regimes which still had to be administered.
30. We are concerned, as is the Local Government
Association, that the additional costs of re-licensing will be
passed on to Council Taxpayers. At the same time, we are concerned
about the level of licence fees being levied, with the lowest
fees not being low enough for small clubs and similar organisations.
31. We are also concerned that the annual
maintenance charge will lead to licensing authorities incurring
additional expenses in recovering unpaid charges as civil debts,
which do not invalidate the currency of the licence concerned.
32. We are pleased to see that DCMS seems
to have learnt this particular lesson in the Gambling Act 2005,
under which a failure to pay the annual fee leads to the licence
lapsing.
33. We are also concerned that costs have
been incurred by other responsible authorities under the Licensing
Act, such as Trading Standards and child protection bodies, who
do not receive any funding from the licensing fee arrangements
for their work.
34. Pre-Second Appointed Day
Given the difficulties—in logistical terms—of
preparing statements of licensing policy, the Secretary of State
and the Minister of State wrote a joint letter to licensing authorities
on 30 September. Whilst we not wish to comment in general on the
contents of that letter, we do wish to comment that such ministerial
statements add to confusion and reduce clarity. Licensing authorities
may become unclear over how much weight they should give to the
letter, given they are already under a duty to have due regard
to the statutory guidance.
35. As an example, paragraph 3.9 of the
guidance gives the impression that longer licensing hours are
the Government's only approach to dealing with issues associated
with late-night premises. Paragraphs 6.5 and 6.6 push licensing
authorities towards longer and later hours, and the Secretary
of State's subsequent letter say that longer hours are not the
answer, but that concerns of local residents must be given primacy.
36. It is expected that the Act will become
fully effective from 24 November 2005. However, even before that,
the Government has announced that the statutory guidance is to
be reviewed. We view this as most unhelpful, particularly in relation
to those applications currently in preparation, before licensing
authorities, and being heard by the courts on appeal.
37. This review is likely to require a further
revision of statements of licensing policy, resulting in more
resource implications both by licensing authorities and also respondents.
We are concerned that this process may take place against the
backdrop of preparation and consultation for the Gambling Act
and the licensing policies that that legislation demands, and
preparation for the Charities Bill which will in particular affect
authorities in London.
38. Appeals
We are pleased to note that, with one exception,
there has not been a need for appeals to be made to the higher
courts.
39. We are concerned however about the number
of appeals being made to magistrates' courts, and the impact this
has both on the hearing of those and on other matters. West Hertfordshire
Magistrates' Courts, for example, have said that licensing appeals
will not be listed before criminal or family law matters, leading
to delays of four to six months for appeals to be held. Horseferry
Road magistrates' court in London currently has 100 appeals against
Westminster City Council alone.
40. Public Information
The amount of information available to applicants
in certain sectors, and to interested parties in general, on the
new licensing laws produced by DCMS was lamentable.
41. We would have expected such a fundamental
programme of reform to have been supported by regular, high-quality
information to have started before the First Appointed Day. In
practice, a telephone helpline was introduced this spring, which
we believe to have been of very limited use, and advisory leaflets
in languages other than English were published during the middle
of the summer.
42. 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.
For many licensing authorities, these were unplanned costs.
43. Further Matters
We welcome the transition process under the
Gambling Act 2005 being conducted by DCMS. We welcome the more
proactive stance on consultation that has already been started,
including publication by the Gambling Commission of a clear timetable
for reform and consultation on probable fee levels.
44. Many of the premises now licenced under
the 2003 Act have been subject to previous licensing regimes by
licensing authorities. However, the Act constrains officers of
the licensing authority—who often have first-hand knowledge
of the characteristics of premises in their area—from making
representations or applying in due course for those licences to
be reviewed in appropriate cases. We feel that this facility would
have represented an important element in terms of public protection
and public safety.
45. We are also concerned about how the
changes in the on-licenced trade have affected public perception
of their industry, particularly in relation to the tourist economy.
There is little confidence in the Institute that this perception
will be altered by the change.
4 Licensing Act 1964; Children and Young Persons Act
1933; Cinematographic (Safety) Regulations 1955; Sporting Events
(Control of Alcohol) Act 1985. Back
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