Memorandum by the British Beer and Pub
Association (BBPA) (RL 16)
The British Beer and Pub Association (BBPA)
represents brewing companies and their pub interests, and pub
owning companies, accounting for 98% of beer production and just
over half of the 60,000 pubs in the UK.
SUMMARY
1. The following short paper refers to delays
in the system and lack of information provided in time. We believe
solutions to the problems experienced are transparency and testing
of the Regulations before their introduction. Given the problems
experienced we would recommend that any future measures are fully
tested, preferably using real-time exercises. We believe that
a one to two day workshop session would have ironed out many of
the problems that have been experienced.
2. Meetings of the DCMS Advisory Group should
have been minuted to ensure the Committee's recommendations to
Ministers were transparent and were seen to be dealt with accordingly.
Whilst recognising the need for Chatham House discussions these
could have been conducted in working groups.
3. More detailed observations are provided
below:
IMPLEMENTATION OF
THE LICENSING
ACT 2003
4. The progress of the Act from July 2003
was dogged by periods of delay and sterility, accompanied by a
refusal to re-visit the timetable when it was glaringly obvious
that the necessary infrastructure was not in place early enough
to move forward to the next stage.
5. It took a whole year for the Government
to finalise the Guidance to the Act, which was acknowledged by
both Houses of Parliament as being fundamental to an understanding
of the Act, yet it was only published on 7 July 2004 when Councils
were obliged to draft, consult and finalise their licensing policies
in time for the 6 January deadline. (DCMS has since announced
an urgent review of the guidance to be conducted only three months
after the second appointed day.)
6. An Act of 201 clauses and Guidance of
178 pages takes some understanding. Add to this the fact that
none of the secondary regulations had even been drafted never
mind approved and there was a recipe for confusion right from
the start.
7. As a consequence preparation time for
local councils was limited as in many cases was the consultation
time allowed. In many cases the lack of information meant that
Councils could not release draft policies until September or October,
thereby truncating the consultation process and time for consideration.
LICENSING POLICIES
8. Councils were obliged to publish their
licensing policies by 7 January 2005, before either the licensing
regulations or the level of fees had been laid before Parliament.
It is hardly surprising that some of these policies were, and
still are, inaccurate and misleading. These problems are still
working their way through the system.
9. Just as difficult for the trade was the
task of reading and evaluating local policies. Lawyers were also
engaged throughout the country on this task.
10. We found the level of knowledge of those
preparing the policies to be extremely variable and stance and
style even more so. Some policies were only a few pages long where
others in excess of 100 pages were not uncommon.
APPLICATION PROCESS
11. The application process in the transition
phase ran to over 245 pages with copies of a 27 page form to be
sent to the eight "responsible authorities" plus the
Licensing Authority (nine in total). The number of pages is the
same whether or not you want to change the licence in any way.
12. As a result of the Government's refusal
to grant "grandfather rights" for the provision of live
music under the "two-in-a-bar" rule and the loss of
bank holiday extensions, many businesses had to fill in the 18
pages of the 27 page form that relates to "varying the licence".
13. The form is complicated and the process
is complicated. Applications had to be delivered separately to
eight different "responsible authorities" five of which
are housed within the Council itself. How much easier it would
have been, and how the Government were advised, to have a single
drop-off point. Proof of delivery was also an issue. Just one
recipient claiming not to have received a copy sent the whole
process back to the beginning.
14. The Regulations were finally laid on
13 January to come into force on 7 February (the First Appointed
Day), when the application process was to begin. Even at this
stage the forms released on the DCMS website were incorrect and
did not conform to the Regulations. Corrections were finally made
to the forms which were re-issued on 7 February.
15. Without the forms, without the regulations
relating to the plans required, without the advertising requirements
and other similar details, it proved very difficult for businesses,
or indeed Councils, to plan ahead. Those businesses that did try
to do work in advance, particularly by preparing plans of premises,
had to revise them to ensure that the 11 different requirements
were met.
16. Despite guidance finally being given
some Councils believed that all outside areas must be shown and
at a scale of 1:100. What was the point of sheets of paper
showing the golf course, the hotel gardens or the race-track?
The confusion over plans was probably the single biggest issue
holding up applications.
17. There was a severe lack of awareness
of the new law among existing licence holders, particularly small
independent businesses, largely due to a severe lack of information
and publicity.
18. The regulations covering the fees only
appeared just before applications could begin. These were complicated
by the late entry of a fees escalator for larger premises that
had the sale of alcohol as the primary purpose. By this definition
night-clubs were excluded since the sale of alcohol was deemed
not to be their primary purpose. By such a definition any venue
with a late night Public Entertainment Licence could consider
itself outside the escalator. Arguments have continued.
19. The due date for annual fees, which
are required to be paid on the anniversary of the grant of the
licence, provided no incentive for early applications.
20. The need for multiple copies of applications
to the various responsible authorities under the Act greatly complicated
the exercise. From our information little or no objections were
received from Trading Standards (who were added by regulation
at the insistence of Councils); Planning Departments or Child
Protection Agencies. None of these were contained in the original
draft of the Act and none of them have added value to the process.
21. The introduction of a "slip rule"
in the Regulations would have allowed the correction of minor
errors rather than applications being rejected. The rejection
of applications obviously had significant cost implications for
applicants who had to re-advertise;[5]
22. The presence of a slip rule would also
have enabled Councils to exercise sensible discretion on a sound
basis across all applications where administrative errors occurred.
Such errors were inevitable given the complexity of the process
and provision should have been made to deal with them. Many Councils
handled these problems sympathetically but in the end were bound
by the lack of flexibility in the regulations.
23. Alterations to licences after the first
appointed day, particularly changes to the licensee and the implications
for "grandfather rights", caused innumerable problems
early in the process which were not resolved until guidance from
DCMS was issued.
24. Lack of clarity around aspects of the
existing law which were carried forward under the new Act (ie.
embedded rights and restrictions) have caused much debate and
confusion.
25. The large number of appeals that are
going through the Courts are a result either of licensing authorities
allowing conditions duplicating existing regulations (specifically
provided against in the Guidance to the Act) or the imposition
of unreasonable and unnecessary conditions.
26. The BBPA estimates that the cost of
obtaining a licence during this transitional phase at £1,830
per pub (£95 million across the pub sector), with a further
£33 million to be expended in hearings and appeals).[6]
27. Concern in the trade is now growing
that licences are not being issued by Councils even though granted.
There is a very large back-log to be cleared with the implantation
date only a few weeks away. It is very likely that a number of
businesses will not have physically received their licences by
24 November.
28. Those licences that are being issued
are often incorrect. Companies report that over 50% contain errors.
Correcting these will add further cost burdens as well jeopardising
commercial viability if enforcement is carried to the letter before
these errors can be corrected.
29. Could these problems and delays have
been avoided? Can lessons be learnt?
TIMETABLE
30. We firmly believe that the Government
could have and should have relaxed its timetable once it was apparent
that it had slipped on its own timetable. The delay in the production
of the Guidance was unacceptable. It should not have taken a whole
year to pass Guidance on an Act. It appears that the delays were
largely the responsibility of other Government Departments seeking
to influence an Act of Parliament through the back door in the
form of Guidance. This was a dis-service to all concerned.
31. Similarly, once the Government could
see that the Regulations to the Act were not going to be released
in sufficient time, the 1st Appointed Day should have been delayed.
This was the recommendation from the Advisory Group and specifically
supported by the LGA and ourselves and other trade bodies. Delaying
the 1st Appointed Day would have had no discernable disadvantages
and would most definitely have avoided many of the problems faced
both by the trade and local authorities.
5 The DCMS Advisory Group set up to advise the Government
on the development of the Bill recommended that advertisements
should be by way of large A3 notices on the sides of premises.
This was at the express advice of the local government representatives
who agreed that newspaper adverts did not reach local people.
In the interests of transparency industry agreed that more local
people and therefore more potential objectors would be reached.
The Government, however, decided to reduce the A3 notice (as described
in the guidance) to a smaller A4 notice, every 50 metres with
the addition of newspaper advertising. At a conservative estimate
this has cost the industry an additional £10-£20 million
given the cost of an advert between £100-£200. Advertising
costs have now risen where £300 and up to £500 are not
uncommon. Back
6
Evidence presented to the DCMS Fees Panel 12 September 2005. Back
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