Memorandum from Councillor Audrey Lewis,
Cabinet Member for Community Protection and Licensing, Westminster
City Council (RL 17)
1. INTRODUCTION
1.1 Westminster City Council is probably
the largest licensing authority in the country.
1.2 "Re-licensing" is not in common
parlance in the licensing world—I take it to refer primarily
to the process of converting liquor licences, public entertainment
licences and night café licences in existence on 6 February
2005, into premises licences for the purposes of the new legislation
and the associated variations.
1.3 This submission concentrates on the
way in which the legislation has been implemented in practice,
rather than upon the philosophy underlying the legislation. We
cannot however deal with the practical problems that have arisen
during the transition process without making some comments about
aspects of the 2003 Act, and the Regulations made under the Act
by the Secretary of State. It was the Act and the Regulations
which set the ground rules for licensees, licensing authorities,
and other stakeholders, and which contributed to many of the problems
that have arisen.
2. SUMMARY
2.1 Westminster, like other licensing authorities,
was given an impossible job to do, without assurance of the resources
necessary. The transition period of six months would have been
far too short even if it had been properly planned. It was not
properly planned. Regulations governing the application process
were published far too late. The Regulations when published were
unnecessarily prescriptive, too complicated for licensees, and
badly thought out with respect to the post-application process.
2.2 There was little or no publicity given
to the application process by government. Guidance issued by government
to licensing authorities and licensees was confused, contradictory
and unhelpful. Simple and obvious measures to simplify the process
were resisted by government. Licensing authorities were not sufficiently
involved in government decision making, or their views were ignored.
2.3 As a result of the late publication
of the Regulations and other information, it was impossible for
licensing authorities to plan properly. Westminster's plans for
a "phased" receipt of applications were disrupted and
had to be abandoned because of the late publication of Regulations.
2.4 In Westminster only about 85% of the
premises entitled to "re-license" themselves did so.
This was not a result of inaction, or a lack of guidance, from
Westminster as licensing authority. It was a result of the problems
referred to above. Westminster's experience is replicated in other
licensing authorities.
2.5 Westminster was not able to determine
all the applications for variation it received. Approximately
140 could not be determined within the period of two months allowed
by the Act and accordingly were deemed to be refused. The volume
of applications was such that it was necessary to devise a system
of prioritising applications to be dealt with.
2.6 The tsunami of applications we received
towards the end of the six month transition period would have
overwhelmed any authority. In the event, and with the introduction
of new staff, new processes, new IT, and new procedures, Westminster
made the very best of the impossible situation in which it was
placed. By the end of the transition period and thereafter, we
were holding nine or 10 Licensing Sub-Committees a week, each
dealing with up to 15 or 20 applications.
2.7 Because not all licensees submitted
conversion applications in time, the "re-licensing"
process is not yet over. There are now large numbers of new applications
to deal with, as explained below. Moreover, the Council will be
continuing to deal with appeals against Licensing Sub-Committee
decisions for at least a further year. The ability of the Magistrates
Court to deal with the volume of appeals efficiently, and the
cost of those appeals are both matters of serious concern to us.
2.7.1 Both responsible authorities and interested
parties have been adversely affected by predicted practical concerns
governing the advertising of applications, the time allowed for
representations or the hearing of the application where representations
had been made.
3. THE ROLE
OF DCMS
3.1 The introduction of the new licensing
regime has been overseen by the Department for Culture Media and
Sport. In this section we set out some of the criticisms we have
to make of the way in which the transition process was over seen
by that Department.
3.2 It should be said in fairness however
that two of the most fundamental problems faced by licensing authorities
(and by licensees) in the transition period arose from the terms
of the primary legislation itself. The two provisions referred
to are the provision contained in paragraph 2(2) of Schedule 8
to the Act, under which the period for making conversion applications
was set as a period of six months and the provisions contained
at paragraphs 4(4) and 7(3) of Schedule 8, under which conversion
and variation applications were deemed to be granted or refused
respectively if not determined within two months from receipt.
3.3 The six month period was an unnecessarily
short period in our opinion. The effect of the deemed refusal
provision in the case of variation applications, coupled with
the obligation contained in regulations made by the Secretary
of State not to adjourn any hearing beyond that date, was to impose
a period for determination which was simply unnecessarily truncated.
These provisions in combination severely limited the time available
to Licensing Sub-Committees to consider and determine applications
which were the subject of representations. That cannot have been
in the interests of licensees or objectors.
3.4 We are critical of the regulations produced
by DCMS, both with respect to the timing of their publication
and their content. As to timing, the regulations were published
in mid January 2005, only a few weeks before the commencement
of the six month period on the 7 February 2005.
3.5 In consequence, for licensing authorities
it meant that the procedures and processes which had to be put
in to place could not be finalised before then. For licensees
it meant that applications could not begin to be prepared before
then.
3.6 Long before February 2005, Westminster
anticipated that one danger it might face was that there would
be a huge in rush at the beginning of the six month period. Therefore,
Westminster engaged in an extensive and costly publicity campaign
designed to make licensees aware of the provisions of the new
legislation and to encourage them to submit applications in geographical
"phases".
3.7 Instead of a deluge, no applications
at all were submitted on 7 February 2005, because applicants were
not in a position to provide the information which, they now knew,
the regulations required. Applications began to come in, in a
trickle some weeks after 7 February 2005 and the deluge was received
at the end of the six month period. All this could have been avoided
by proper planning from the Government.
3.8 There is not space in this submission
to deal with all the criticisms we have of the way the regulations
were drafted (in particular the regulations regarding the content
and advertising of applications, and the regulations regarding
the conduct of Licensing Sub-Committee hearings). We are happy
to make available to the Committee the representations we made
with respect to the regulations when they were in draft form.
All our representations were apparently ignored. The consequences
that we predicted duly occurred. In particular, many applications
had to be invalidated because the requirements as to the content
of an application are extremely prescriptive and cannot be waived.
And the procedure for conducting a hearing before a Licensing
Sub-Committee is simply unworkable in any major case where facts
are in dispute. The short and detailed prescription of the periods
during which representation had to be made by interested parties,
such as residents, and responsible authorities, has seriously
impeded the ability for mediation to take place which might have
ironed out problems which will now lead to unnecessary appeals.
3.9 The prescriptive regulations covering
the unspecific advertising of the application wholly in the hands
of the applicant, supplemented by an A4 notice on the premises,
has certainly led to insufficient notice being given to interested
parties. Despite voluntarily supplementing this by writing to
nearby residents and businesses and by notices on lampposts, the
many initially invalid applications have led inevitably to occasions
when the advice given has been wrong or misleading.
3.10 There is not space in this submission
to set out all the steps taken by Westminster to publicise the
new legislation and its implications for licensees and others.
Central Government on the other hand appeared to take little or
no action to prepare the trade for the transition period. I will
give one example only to illustrate the point. DCMS announced
that it intended to publish a newsletter, to raise the profile
of the Act, help ensure a smooth transition to the new regime,
and provide clarity on areas of concern. It was initially announced
that the newsletter would be published monthly. Throughout the
period of transition, when licensees, licensing authorities, responsible
authorities and the public were desperate for information and
guidance only two issues of the newsletter were published, in
February and in May. Both were anodyne in the extreme and addressed
none of the issues on which guidance was required.
3.11 When DCMS did issue Guidance, it was
often bizarre and unhelpful. For example, when preparing for the
transition period, all licensing authorities were extremely anxious
to receive advice about so called "embedded conditions"—that
is, the conditions that would need to be attached to new premises
licences to reflect restrictions on their use imposed by previous
legislation. DCMS refused to issue any such Guidance until May
2005, by which time many licences had already been issued. The
Guidance issued in May expressly contradicted advice contained
in the statutory Guidance (to which licensing authorities are
required as a matter of law to have regard) issued by the Secretary
of State in July 2004. Secondly, the Secretary of State has
by letter dated 30 September 2005 now issued non statutory Guidance
to licensing authorities which contradicts one of the main principles
(that longer hours are inherently desirable) set out at length
in the statutory Guidance. We welcome the latter, but it is not
helpful for licensing authorities to have Guidance which is contradictory
and the urgent resolution of this is necessary before Appeals
are heard.
3.12 Furthermore, DCMS has been less than
helpful in resolving practical problems licensing authorities
have been confronted with. One has been the statutory restriction
in Section 6 of the Act under which a Licensing Committee may
not have more than fifteen members. This restricted the number
of Licensing Sub-Committees Westminster could hold. Westminster
is rated as an "excellent" authority by the audit commission,
and as such we applied (initially to ODPM) for the lifting of
this statutory restriction as part of the "freedoms and flexibilities"
supposedly allowed to excellent authorities.
3.13 Our application was submitted to ODPM
in November 2004. It was passed by ODPM to DCMS. We were informed
by DCMS in January 2005 that it was being considered "urgently".
The application remains undetermined one year after its submission.
3.14 Our view is that DCMS failed to properly
involve individual licensing authorities in its consultation and
decision making processes. Firstly, bodies representing the trade
and trade interests were over represented on DCMS advisory bodies
compared to bodies representing local government. Secondly, DCMS
appeared to take little advice from those practitioners actually
dealing with licence applications (at any rate, until the end
of the transition period). The inevitable result was that problems
which could and should have been foreseen, and which were foreseen
by licensing authorities did not appear to be taken into account.
4. SOME STATISTICS
4.1 There are some 3,100 licensed premises
in the City of Westminster. 2,317 of them submitted a valid conversion
application (with or without an accompanying variation application)
on or before 6 August 2005, the final day of the six month period
allowed by the legislation for a conversion application to be
made. 40% of those applications were made in the final week of
the six month period.
4.2 No application at all was received from
783 premises. We believe that approximately 185 of those are no
longer trading. There were accordingly about 600 premises in Westminster
which did not exercise the right to make a conversion application.
4.3 Those premises must make a new application,
and that application must be granted, if they wish to trade lawfully
from the Second Appointed Day, 24 November. As of today, 344 premises
have still not made any application. Even if all those premises
were to submit an application tomorrow, they could not be granted
before 24 November. Many of those premises which have now submitted
new applications did so too late for the application to be granted
before 24 November.
4.4 Accordingly it is inevitable that hundreds
of licensed premises in Westminster will either be forced to close
on 24 November, or will operate unlawfully.
4.5 It is Westminster's view that this state
of affairs is a direct and foreseeable consequence of decisions
taken by government as to the implementation of the Act. It could
and should have been avoided. It brings the licensing regime into
disrepute.
4.6 Guidance from government as to the enforcement
responsibilities of licensing authorities and the police with
respect to premises unlicensed at 24 November has been promised
but not yet delivered. Serious problems will arise on and after
24 November for unlicensed premises, because without a valid licence
they may be no longer covered by their insurance policy. That
in turn gives rise to serious risk for the public. Westminster
is urgently considering, with the assistance of the police and
the Association of British Insurers, what guidance it can itself
give to licensees in this position, and to visitors to licensed
premises.
4.7 The West End is already suffering commercially,
from the introduction of the congestion charge and from the events
of 7/7. If doubts arise in the public mind about whether it
is safe to visit licensed premises, it will come, before Christmas,
at the worst possible time.
5. APPEALS
5.1 The "re-licensing process"
will not be concluded until appeals against licensing authority
decisions are determined. For Westminster this is a serious issue.
Approximately 30% of the applications for conversion we received
during the transition period were accompanied by an application
for variation. Some of these applications, as may have been predicted,
involved a request for longer opening hours. But as was less widely
predicted a number of other applications, often of a complicated
and technical nature and designed to achieve the removal of existing
statutory restrictions, were also made.
5.2 Many applications were granted in whole
or in part. But more were refused. The majority of licensees whose
applications have been refused have appealed, or are likely to
appeal. We have already been notified of 150 appeals, and the
total number of appeals that is likely to be made may amount to
600.
5.3 The first appeals were made in May and
June 2005, and in late October only one appeal has been listed
for hearing. None of the other appeals have even yet reached the
stage of being offered a hearing date. We are concerned that the
process of dealing with these appeals may drag on for up to a
year or more. This is not a criticism of the Court, which does
not appear to have been given additional resources to deal with
this workload.
5.4 We are concerned about the potential
cost to the Council as licensing authority of these appeals. The
delay in their determination must be a matter of concern for licensees,
who are unable to operate as they desire unless and until their
appeal is heard and granted. The present position is therefore
one which is extremely unsatisfactory.
6. FEES
6.1 We cannot discuss the transition period
without commenting on the funding made available to us as licensing
authority to deal with the responsibilities imposed on us under
the new regime. The fees set by Government are manifestly insufficient
to meet the costs of administering and in due course enforcing
the new regime. We have been given an undertaking that fees will
be reviewed. It is now clear that there will not even be any recommendations
as to revised fee levels from the independent fees review panel
until autumn 2006. There appear to be no proposals to compensate
authorities for set up costs already incurred as a result the
Council Tax payer is expected to subsidise a regime which exists
for the advantage of the licensed trade.
7. CONCLUSION
7.1 In our view, there are a large number
of lessons to be learned from the way in which the 2003 Act has
been introduced. However, there are positive advantages to aspects
of the Act such as the recognition of public nuisance as a matter
which must be satisfactorily resolved and the introduction of
Reviews which can allow the terms of a licence to be modified
to resolve problems which are identified.
7.2 It is too late now to deal with the
problems that occurred in converting licences between February
and August 2005. At this stage, delaying the Second Appointed
Day beyond 24 November would cause a new set of problems to arise.
7.3 It is not too late to address some
of the problems that still exist, including those that arise from
the terms of the regulations made under the Act.
7.4 The contradictions arising from the
Guidance which have been addressed in the recent Ministerial letter
need to be urgently addressed.
7.5 The proper funding of the regime still
needs to be addressed.
7.6 Urgent attention needs to be given to
the problem of premises which are unlicensed on 24 November 2005
and to the problems faced by the Magistrates in dealing with appeals.
7.7 Government should ensure that the same
mistakes are not made in the course of the implementation of the
Gambling Act 2005.
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