Memorandum submitted by Tony Bartlett, Licensing Manager, Dover District Council

As the author of this submission I am Licensing Manager with Dover District Council and have been pivotal in the implementation and regulation of licensed premises since March 2005. Prior to this I served with Kent Police for 33 years as a uniformed officer completing my career as Chief Inspector (Operations) and Deputy Area Commander of the Swale Police Area. I therefore have some experience of both side of the regulatory paradigm.

 

1. Impact of the Licensing Act 2003 on levels of public nuisance, night time offence or perceptions of public safety since the Licensing Act 2003 came into force.

 

In suggesting that the Licensing Act 2003 would make any impact on levels of crimes of violence the government has failed to realise that in dealing with the so-called "drink culture" in the UK they are dealing only with a symptom of a far deeper problem that has gone unchallenged by successive governments and civil service departments. A failure to impose any framework of family discipline or, more importantly responsibility for an individual's action is the root cause of the problems that are manifest at this time. As a society we have, since the 1960s, found every way to avoid making an individual take responsibility for their actions and this lack of ownership of the consequences of actions has resulted in individuals having no internal benchmark of the acceptability of their actions. It is, quite simply, always somebody

else's fault. Even as children there is a drive to the rights of the individual without imposing the

 

counterbalance of the responsibility of the individual to themselves and others.

Those in authority in any level are challenged over the most minor imposition of structure and receive little or no support from the parent organisation. Proportionality of discipline, both self discipline and imposed by society, has been lost in a tide of litigation and a failure of government to back up those whose role it is to socialise our children and young people most significantly those who work in schools and colleges. The multitude of short term initiatives directed at sound bites and image making exacerbates these failures.

This notwithstanding the Licensing Act 2003 has had some positive outcomes in relation to nuisance and the nighttime economy. The public have gained unprecedented access to the licensing system. This access is often confused and needs to be focused by the Licensing Authority however they do, for the first time since alcohol has been licensed, have the opportunity to effectively influence the outcome of hearings whether for grant, variation, or review of premises licences.

1.1 Public Nuisance

The powers granted to Environmental Protection Officers requires a high level of evidence to prove statutory nuisance however the level of proof with regard to public nuisance in respect of the Licensing Act 2003 is much lower and therefore resolution is much more immediate. The ability of members of the public to call for a review under the provisions of Section 51 of the Act is paramount to the public's involvement, and more importantly, perception of being empowered in the combating of antisocial behaviour and achieves.

The inability of the Licensing Authority to call for the review of a premises licence in its own right is counter productive and hampers effective intervention in combating nuisance and antisocial behaviour. The public are not skilled in evidence gathering. Whilst operations with the police take place the licensing authority are reliant on others to call for reviews where no specific offences have been committed but a premises is not promoting the licensing objectives. These lessons have been included in the Gambling Act 2005 and must now be included in an amendment to the Licensing Act 2003. Often the Licensing Authority's intervention will be quicker and more focused than relying on the public or a responsible authority to call for a review.

 

1.2 Levels of Crime

 

One of the primary drivers of the Licensing Act 2003 was that the common terminal hour for public houses and nightclubs resulted in a mass of revellers being disgorged onto the street all at the same time to the detriment of police resources and the maintenance of public order. The extending of terminal hours to those applied for by the premises licence holder has not had the desired impact. The concept of migration from one premise to another was not sufficiently considered. This provides a potential for problems throughout the evening rather than at terminal hours of operation with an impact on police resources. Statistics from ACPO suggest that the levels of crime have remained the same but have shifted to later in the early morning. This suggests that revellers are following the experience of young continental drinkers and involve themselves in drinking at home prior to going out for the evening. This has an adverse effect of licensed premises as drinkers are less controlled on arrival at the premises and tend to drink less whilst they are out. This would seem to be, on first examination, to be beneficial in that drinkers are consuming less. The reality is however that drinkers are becoming less inhibited earlier in their night out and so disorder levels remain unaffected. Income to public houses drop whilst off licence trade, particularly supermarket, income grows.

 

From experience a problem that further exacerbated disorder is the presence of late night refreshment houses (kebab shops, burger vans etc.) that were previously unlicensed and are

flashpoints for disorder whilst revellers waited to be served. Despite licensing these premises this problem of disorder in connection with late night refreshment houses has not effectively been resolved. The inability of Licensing Authorities to impose a blanket policy that late night refreshment houses will close before a certain time (predominantly before the majority of alcohol outlets close) has led to reviews being called and allegations of racial bias as the majority of these establishments are operated by members of the visible ethnic minorities. Members of the public living close to such establishments consistently report nuisance and antisocial behaviour occurring once the majority of public houses and nightclubs close. Whilst the review process has assisted the access of the public to the licensing system they often have to endure 6 to 12 months of disturbance whilst evidence is gathered sufficient for an application to be made.

 

1.3 Fear of Crime

The Licensing Act 2003 has never been a panacea to problems of the public perception of public safety. Whilst the media actively promote the view of drunken men and women on the street following their nights out the fear of crime issue will not be resolved. Prior to implementation of the Licensing Act certain parts of the media forecast the end of civilisation, as we know it with all premises seeking 24 hour drinking. This is still a common phrase when reports involving alcohol are broadcast. The reality is that very few premises have actually applied for such licences. Those that have very rarely utilise the full range of their licences. In my own area only 2 public houses applied for the full 24-hour period for alcohol. To date neither has used this facility.

Various studies have shown that the major influences on the fear of crime are environmental factors (graffiti, litter, abandoned vehicles etc) and the media. This was referred to in the Nottinghamshire Police study as "background noise." It is essential that licensing authorities be given greater powers in relation to the attaching of conditions to licences that will allow them to

 

better control such elements that lead to "background noise" and can be directly attributed to licensed premises. Currently conditions must be attached either as a result of the operating schedule submitted with the application or as a result of representations by responsible authorities or interested parties. In order to minimise the effects on the workload of the criminal justice system a regime of fixed penalty notices could be introduced allowing licensing authorities to delegate enforcement action to authorised officers. Such a system should not be adoptive in nature as this leads to confusion in respect of members and officers. Implementation should be basically on a "you have the powers if you want to use it" basis.

 

Placing the blame for an erosion of public perceptions of safety on the Licensing Act 2003 is a fundamental error. The conditions for such a problem have been in existence for many years. As stated previously these are influenced by a lack of self control and lack of imposed control by those in a position to best influence the perceptions of society in general and young people in particular. The continued erosion of police powers and lack of resources on patrol compound the issue as effective real time intervention is rare and the threat of an 80 fixed penalty issued by the police denigrates the effect of interventions. We have slipped into a ethos of simplest way out rather than best solution in the circumstances.

2. The Impact Of The Licensing Act 2003 On The Performance Of Live Music

The recent Live Music Forum report highlights the problems experienced by the music industry since the implementation of the Act and is to be commended. The poor drafting of the Act is as a result of a failure to fully understand the activities sought to be licensed and, perversely, a failure to understand those activities that are sought to be exempted. The result of this is that pragmatic approaches are sometimes not available to the licensing authority to resolve issues that have a direct effect on the trade and community at large. The exemption in relation

 

To the performance of regulated entertainment on moving vehicles is a prime example. Clearly this exemption was targeted towards such community events as carnivals. The problem arises in that entertainment on carnival floats falls within the exemption however marching bands that are not either regimental of territorial army in origin, majorettes, and similar fall outside of any exemption. Licensing authorities have been forced into either regarding such entertainment as incidental music or requiring a licence for the whole carnival route. Whilst most have reached some accommodation this has been as a result of flexible interpretation that places either the licensing authority or carnival organisers at some element of risk. Clearly an amendment to the wording of the Act to make such events an exemption would be advantageous to promoting community events.

 

The Live Music Forum is correct in its assertion that some events are being stifled by the legislation. Many towns have events were performers move from place to place over the period of the event and perform in rotation similar to street entertainer in the Royal Mile in Edinburgh during Festival. Each location must be either licensed or subject of a Temporary Events Notice and the cost of these even at 21 per event for a Temporary Event Notice can be prohibitive.

 

The "two in a bar" rule under the Local Government (Miscellaneous Provisions) Act 1982 allowed small venues to be exempt the need for a public entertainments licence and promoted the smaller venues of the entertainments industry. Now that conversion has taken place most venues that would have taken advantage of such an exemption have included regulated entertainment in their premises licences on conversion. The small venue exemption is complex a very rare utilised as it places onerous requirements on the premises operators to prove they are complying with the exemption. Perhaps reintroducing an exemption for two or less performers would be of benefit to the industry. The licensing objectives would remain in place and thus the ability to call for a review if not actively promoted.

 

3. Financial Impact of the Act on Sporting and Social Clubs

3.1 Sports Clubs

The banding of licence fees against non-domestic rateable values has caused some confusion in relation to sporting clubs. The District Valuer's Office does not split these premises into those parts that relate to the provision of sport (changing rooms, showers etc) and those parts of the building that relate to the social aspects of a sporting club. This often moves a club with a small bar area from a band A property incurring a 70 annual fee into a band B property incurring a 180 annual fee. Again those authorities with a pragmatic outlook have endeavoured to work on a percentage of overall rates based on floor area. Others have been strict and relied wholly on the rate laid down by the District Valuer. This obviously leads to inequity across the country. Clearer guidance as to how such apportionment is to be made, if at all, would be most helpful. Clearly lower fee rates for small clubs must be of advantage to the community and can make the difference between a club continuing to exist or no longer being viable.

 

3.2 Social Clubs

Social Clubs are generally in a stronger position than community sporting clubs. Consideration must be given however to the effect of legislation such as the Health Act on the income generated in working men's clubs and similar venues. Due to the demographics of those attending such venues evidence would suggest that there has been a downturn in trade as patrons stay at home due to the ability to smoke and drink cheaper, often discounted, supermarket products. Tied venues are often disadvantaged by higher prices demanded by pub companies.

It would be wrong to place such ills at the feet of the Licensing Act 2003

 

4. Has the Licensing Act 2003 Reduced Bureaucracy?

 

The very rigid structure of the Licensing Act 2003 was not been replicated in the Gambling Act 2005 and it appears that whilst lessons have been learned and implemented in the Gambling Act 2005. Regretfully these have not been introduced into the Licensing Act 2003.

 

The Gambling Act 2005 allows a licensing authority to deal with minor errors in an application or procedure by use of "slippage". This results in an application being deemed to start once an minor error has been rectified and the effects of those errors become neutralised. Thus if an advertisement does not appear on the correct date the application is not deemed to have been correctly submitted until the matter is resolved. In the Licensing Act 2003 this does not apply and if an error is made, notwithstanding that it does not disadvantage anybody, the application must commence again including the requirement for newspaper advertising. This imposes an additional cost of the applicant particularly as the fee is an application fee and not a licence fee. Some licensing authorities will demand a new fee for the application whilst others will hold the fee over to the new application. The flexibility of the Gambling Act allows the licensing authority to use common sense rather than rigid bureaucracy.

 

As stated previously a change to licensing authority powers to allow the attachment of agreed conditions by a delegated power rather than taking the matter to a hearing under Section 35 of the Act would smooth the process and reduce costs to both the industry and the licensing authority.

 

Currently the licensing authority has no powers to instigate a review if the licensing objectives are not being actively promoted. The result of this is that the authority has to wait or encourage

 

a responsible authority or an interested party to call for a review. This is clearly not acceptable as it brings about a lack of transparency and opens up the field for long and complicated legal proceedings. Again referring to the Gambling Act 2005 the lessons appears to have been learned but not transferred into the Licensing Act 2003. To try to regulate without proper powers to do so is counter productive for both the industry and regulators.

 

4.1 Temporary Events Notices

Temporary Events Notices replaced the occasional permissions applied for under the 1964 Act.

The person wishing to hold an event gives notice to the licensing authority of the intention to hold the event and only the police can make representation on crime and disorder grounds. Environmental Protection are unable to make representations on grounds of nuisance. Given that the majority of representations made in respect of the Act relate to nuisance and not crime and disorder it would seem sensible if Environmental Protection also had powers to make representations in respect of temporary events notices.

 

4.2 Annual Fees

The ability of the licensing authority to take action against licence holders who fail to pay their annual fee is severely restricted by the Licensing Act. The majority of premises fall into bands

A or B incurring costs of 70 or 180 respectively. It is generally accepted that litigation is not cost effective if the debt to be recovered is less than 200. Licence holders who fail to pay their annual fee have therefore 12 to 24 months before cost effective action can be taken against them as the Licensing Act 2003 makes failure to pay a civil debt. Again this is a lesson that appears to have be taken into account in the Gambling Act 2005 as a failure to pay an annual fee within 30 days of becoming due will make the licence revocable unless the failure is due to an administrative error. This gives the authority power to contact the licence holder and give notice that unless the fee is paid within a given period the licence will be revoked. Such a power within the Licensing Act 2003 will reduce overall bureaucracy and provide an incentive for licence holders to make arrangement for regular fee payment.

 

4.3 Administration

I believe that during conversion from the 1964 Act to the 2003 Act many licensees were daunted by the apparent complexity of application form. This has to the greater extent been overcome by assistance and advice from licensing authorities. The number of queries in respect of applications and variations has significantly reduced. Many applicants believed it was wrong to impose a requirement for them to advertise the application was wrong and this should have rested with the licensing authority. To place this burden on the authority would however increase the cost of the application significantly and so the status quo appears to be an acceptable compromise.

 

4.4 Personal Licences

Personal licences have become something of a bone of contention within the licensing community. The powers given to licensing authorities to take effective action against personal licence holders who are convicted of a relevant offence are virtually nonexistent and show a complete failure to fully understand the need to enforce against those who commit offences. Currently only the magistrates court can order a forfeiture of a personal licence. There is a requirement that the personal licence holder inform the court at the first instance that he or she holds such a licence. If this is not done then the licence holder must inform the licensing authority. The problem that arises is that the licensing authority or police have no powers to call for a review of a personal licence no matter how serious the offence and so the holder retains their licence and can continue to be employed in alcohol premises. Clearly there is a need for the licensing authority and police to be able to review the personal licence of any person who is convicted with a relevant offence. The safeguards of a committee hearing where appropriate legal advice is present will ensure the requirements of the Human Rights Act are taken into consideration.

 

5. Have Financial Savings Been Realised?

 

In respect of the licence trade I believe that the overall opinion would be ion the negative. The trade has failed to take on board that they are no longer paying for a liquor licence and public entertainments licence and that these have been combined into a single licence that in the majority of cases costs less than they were previously paying. This is particularly the case in band A premises that now pay only 70 per year.

 

In respect of regulators the saving to the criminal justice system would, I suggest, be significant as they are no longer dealing with licensing administration. The costs to local authorities however have been significant and this is exacerbated by a failure to ring fence the income from licences to the administration and enforcement of the 2003 Act. Some local authorities have not increased staffing levels to achieve effective compliance and enforcement regimes and have seen the income from licensing almost as a "cash cow". There is an urgent need for all licensing income, no matter from what source, to be retained an used for the purposes it was gleaned. To assume or take on good faith that this is the case is naive in the extreme. Only by enshrining this in law will local authorities ensure that effective resources are provided to licensing administration and enforcement teams.

 

The move by central government to move more and more licensing administration and enforcement to local authorities is logical given that local issues should be dealt with by local resolution. The problem that manifests itself however is that central government appears to see

this as an opportunity to cut the costs associated with such administration and regulation. Such apparent cost cutting will impede effective regulation to the disadvantage of local residents.

 

6. Conclusions

1. The Licensing Act 2003 cannot be the panacea to reduce antisocial behaviour associated with the so called "booze culture" of youth in this country. This requires a far deeper involvement from cradle to adulthood that socialises young people into a mindset of self-discipline and families into a structure of respect for others. This is not a short term initiative dominated by sound bites but one that will take a generation at least to achieve. The Licensing

Act 2003 deals with one set of symptoms not the whole situation

 

2. Contrary to expectations public nuisance has been the main cause of applications for review. Antisocial behaviour involvement has been by way of noise, litter and general poor behaviour. Crime does not appear to have exhibited any change other than the temporal shift into the early hours of the morning.

 

3. There has been an adverse effect on some sporting clubs but this can in my view be remedied by changes in guidance and procedures particularly in respect of the way that the District Valuer provides information to such associations and the licensing authorities.

 

4. The effect on social clubs has been impacted as a result of legislation designed to improve the nations health but that adversely effects the socio-economic norms of certain communities. These rather than the Licensing Act 2003 have caused problems for such clubs

 

5. Poor drafting of the original act and a lack of understanding of enforcement has resulted in a loss of effective measures to ensure a smooth operation of the Licensing Act 2003. Incorporating many of the changes that were included in the Gambling Act 2005 together with effective action in respect of personal licence holders would remedy the situation.

 

6. Allowing the inclusion of representations by Environmental Protection Officers when a temporary events notice is given may assist in reducing the potential for nuisance complaints

 

7. There should be the ability for licensing authorities or the police to seek a review of personal licences following a conviction for a relevant offence or a relevant foreign offence.

 

8. Income generated by licensing should be ring fenced in order to prevent it being subsumed into the main local authority coffers and allow it to be used for the intended purpose i.e. administration and regulation of the Licensing Act 2003.

 

 

August 2008