Police Reform and Social Responsibility Bill

Memorandum submitted by British Beer and Pub Association (PR 20)

1. While we are pleased that a number of the proposals contained within the consultation which would have undermined the legal framework of the licensing system have not been brought forward, the British Beer & Pub Association (BBPA) has a number of concerns about the licensing proposals in the Bill.

2. The Licensing Act 2003 which came into effect in July 2005 has undergone a number of changes, principally through the Violent Crime Reduction Act 2006 and the Policing & Crime Act 2009 along with other secondary legislation. The 2003 Act was the result of a thorough examination of the previous licensing system and a need to modernise it. There is a real danger that further changes to an Act that is only five years old through the introduction of further, contradictory, changes will undermine the integrity of the Act itself.

3. The Act did fundamentally change the mechanisms and approach to licensing, removing much of the unnecessary and ineffective bureaucracy associated with it, introducing checks and balances, and giving much greater local input and accountability than ever before. The trade has responded positively to the changes and despite the severe economic conditions prevailing in many of the country’s public houses, attention to the law and responsible retailing has never been higher.

4. We are disappointed that despite the pledges made by this Government, and the previous Government, that any new legislation should be evidenced-based, very little evidence has been provided in support of these latest changes. We do not understand why Government considers that local authorities are constrained from acting against problem premises when they already have the powers to do so, with many Councils using these to good effect. Businesses that do not operate responsibility should be tackled and should either be compelled to behave in a responsible manner or they should be closed. If existing powers are not being used effectively, then this is a matter for the enforcement authorities themselves, but the introduction of yet more powers and bureaucracy is unlikely to improve enforcement overall.

5. The BBPA would also like to see much more being done to tackle the perpetrators of alcohol misuse. We are very disappointed that despite the Coalition Government’s stated intention to ‘encourage individuals to take responsibility for their own actions’ there is nothing in the Bill that gives any effect to that intention.

6. Government policy on licensing continues to be driven by what happens, or is perceived to happen, in town and city centres across the UK primarily at weekends, to the detriment of the vast majority of pubs and other licensed premises which are not based in these locations. We have long maintained that the key challenge for town and city centres is the management of often very large numbers of people in public spaces once they have left licensed premises. Licensed premises cannot solve all the issues that arise in the night-time economy, because they are not responsible for all of them. Challenges also arise a result of local infrastructures, transport and social issues. We would like to see more public recognition for the efforts of all those involved in local partnership working to create a better environment in town and city centres. The licensed trade plays an important role in such partnerships, but its involvement is becoming increasingly undermined by the increasing number of alcohol and licensing related legislative sanctions that continue to be introduced and which, in some areas, are more preferable to the enforcement authorities than proper dialogue.

7. Despite the impression often conveyed in the media and elsewhere alcohol consumption, particularly beer sales in pubs, is falling (Annex 1) and the amount of alcohol related violent crime is also falling - down by 22% between 2003 and 2009 (Annex 2). These figures are amply illustrated by a number of town centres where industry backed initiatives have made large inroads into the crime statistics for those areas and alcohol related crime figures clearly show a downward trend in other places (Annex 3). The report from the British Crime Survey, referred to by the Home Office [1] , that the proportion of alcohol related crime has remained the same is not relevant when you consider that violent crime overall is falling, including that related to alcohol.

8. The disappearance of so many pubs in recent years is now a matter of national concern. There are still 30 pubs closing each week. James Brokenshire’s foreword to the Government response to the consultation states that the aim of the changes to the Licensing Act "have been designed to avoid penalising the majority of premises who sell alcohol responsibly". Unfortunately, a number of the proposals that remain contradict the Government’s stated objectives in that they are highly likely to impinge upon, and impose burdens on, the vast majority of well-run businesses.


Key Concerns

Clause 109: Reducing the burden: premises licences (‘necessary’ to ‘appropriate’)

9. The BBPA is very concerned that the Government is seeking to reduce the evidence test for the attachment of licence conditions, so that these are ‘appropriate’ rather than ‘necessary’. The rationale for this is that the evidential burden associated with the imposition of ‘necessary’ conditions is too high, but there is no evidence presented to demonstrate that this is the case. Since breaching a licence condition can put operators at risk of losing their licence and/or criminal sanctions, the evidence test for conditions needs to be robust and objective.

10. The impact assessment only picks out one possible consequence of the change from ‘necessary’ to ‘appropriate’ that being an increase in door staff provision costed at between £0.3 - £0.6 million/yr. However, the ability to add many other ‘appropriate’ conditions could add many more million pounds of cost as those measures that are aimed primarily at town centre venues are spread across community pubs where they are clearly unnecessary. The discretionary conditions originally proposed as part of the draft "mandatory code", for example, were not progressed on the basis that they could already be applied, and that members of licensing authorities were made ‘interested parties’ and were therefore able to bring individual premises to review in their own right. The independent report analysis commissioned by the Home Office after the 2008 consultation Safe, Sensible, Social; Selling Alcohol Responsibly - A Consultation on the New Code of Practice for Alcohol Retailers also commented that "people from all audiences believe that many of the proposed discretionary local conditions are already common practice and, if need be, can be enforced through the use of existing legislation".

11. The BBPA has experience of the police, local authorities and other agencies seeking to impose what amount to ‘blanket conditions’ with little or no regard to whether such conditions are appropriate to the particular premises. These include measures such as CCTV cameras, plastic glasses, and membership of pubwatches among others. While conditions such as CCTV and plastic glasses may, in certain circumstances be necessary for some premises, they are could be regarded as appropriate and applied where they are not necessary in the vast majority of cases, adding cost burdens and damaging businesses that are forced to change their operating style for no good purpose.

12. In our view, with the licensing authority now becoming a responsible authority it is even better placed to tackle issues arising from particular premises and attach conditions. The 2008 consultation was extremely thorough, spanning a period of twelve weeks and including twenty focus groups across ten regions of the country. At no point was it suggested that the "necessary" test was too stringent, and it is clear that the discretionary conditions were not progressed on the basis that they could already be applied through the licensing legislation. The Licensing Act, 2003 only requires that the licensing authority impose conditions "as it considers necessary for the promotion of the licensing objectives". The Home Office policy paper extends this to being "absolutely essential" which implies a higher burden than is actually imposed by the Act.

13. The removal of the requirement to prove that actions are ‘necessary’ will undermine the key principles of better regulation and has the potential to result in a range of blanket conditions and burdens on businesses which are not evidence based, and are likely to be challenged by businesses in the courts. The replacement of ‘necessary’ by ‘appropriate’ greatly diminishes the objective test, and creates a far more imprecise and vague term which will introduce an unhelpful level of uncertainty and distrust into the system, undermining the credibility of the Act itself for both applicants and enforcers. There can surely be little merit in placing conditions on licences that are not proven to be necessary to meet the licensing objectives. The experience of our members is that they already have conditions that are not strictly ‘necessary’ and that the authorities currently have sufficient ability to negotiate or impose those conditions that they believe are required.

Clause 118: Under-age Sales

14. The BBPA fully understands and supports the Government’s desire to ensure that alcohol is not sold to the under aged as evidenced by its successful ‘Challenge 21’ campaign and its active support for the Proof of Age Standards Scheme (PASS). While we might argue that the penalties are already more than a sufficient deterrent we do believe that the offence should include the intent to sell to the underage rather than the absolute offence that it is. Offences that are committed by staff as a matter of mistake or omission can be laid at the door of an unsuspecting licensee who despite his best efforts has had the offence committed twice on his premises within 3 months.

15. We have consistently argued that a further alternative to fines and or closures would be one that seeks to address the problem, namely training orders that would require a business to train the staff, perhaps while the business is closed to protect against the recurrence of the offence.

16. Upholding the law on underage sales is a difficult task. A recent study of BBPA members indicated that more than one million young people a month are being refused service in pubs for being under 18 or failing to have acceptable proof of age. The penalties for persistent selling [2] to underage customers are severe, ranging from £80 on the spot fixed penalty notices for bar staff, to fines of up to £10,000 for pub managers and licensees liable (£20,000 where proof of age is a condition of the licence) and finally closure of the pub for persistent selling to under 18s, which is defined in law as two occasions within three months (reduced from three occasions by the Policing & Crime Act 2009). The offence is absolute, with no margin for human error. While we agree that in the circumstance where the businesses is deliberately setting out to break the law or is so neglectful that it will be broken the full force of the law should be applied. Where there is no intent the chief victims are the staff, who, in the event of a closure order, will for the most part not collect any wages while the business is shut.

17. The definition of persistent selling introduced by the Violent Crime Reduction Act 2006 should be reviewed. To the best of our knowledge, there was no evidence to warrant the recent amendment from "three strikes" to "two strikes", particularly as it was only implemented in June 2007. The Tackling Under-age Sales of Alcohol Campaign, (TUSAC), which took place in October 2006 focused on a number of on and off licensed premises identified as problematic by sixteen police forces across 27 BCUs. Given that there were in the region of 150,000 on-licensed premises in the UK at that time, the targeted sample represented just over 3% of premises (approximately 5,000 premises), with the remaining 97% (145,000 premises) being non-problematic. While the headline results of the Campaign were that 40% of licensed premises (both on and off trade) failed test purchases, in reality this represented just 1.4% of the total number of licensed premises in the UK. The headline figure of 40% has been misused on a number of occasions to suggest that 40% of the industry as a whole had failed test purchases, when this is simply not the case. The reality is that very small numbers of premises in the context of the industry as a whole, and it should be possible for enforcement agencies to target them as necessary. The extent of the problem has been over exaggerated.

18. The pub sector has taken great strides in the last four years through the introduction of ‘Challenge 21’ to ensure compliance as illustrated in Annex 4. Since October 2010 an age verification policy is now a mandatory condition on all licences.

19. We recognise the need to remain vigilant, but believe the number of premises deliberately and persistently selling to under 18s remains extremely small. Indeed the Minister acknowledges that there are a "small minority of licensed premises" which need to be tackled, "such as those who continue to sell alcohol to children" in his foreword to the Government Response to the consultation on Rebalancing the Licensing Act.

20. We appreciate the difficulties that under-age drinking can cause for communities where it is an issue, and do not hesitate to condemn those premises which knowingly sell to young people under the legal drinking age on a regular basis. However, we believe that the law in this area is becoming increasingly disproportionate, and requires review.

Clause 119: Early Morning Restriction Orders

21. The impact of introducing and extending the flexibility of EMROs will be to undermine one of the key pillars of the Licensing Act, namely that each application is dealt with on its own merits. Premises will not be taken to review, and will have no opportunity to defend their right to trade later. Those businesses which applied for their hours legitimately and were granted those hours in good faith and who have traded responsibly on accordance with the Act will be penalised through no fault of their own. This flies in the face of a legitimate right freely given and upon which livelihood and employment rely.

22. Where there are businesses that do not trade responsibly in the early hours procedures and processes exist which can deal with those businesses, measures that are fully supported by the trade where they are justified.

23. There is also the distinct possibility that such restrictions, while notionally attractive, have unintended consequences which would result in the antithesis of the problem it might be used to address. The re-introduction of local terminal hours on licensed premises would almost certainly result in migration from one area to another for those seeking late night entertainment. It might also result in the exacerbation of late-night drinking in streets and parks and other places due to the unavailability of venues previously frequented.

24. EMROs imposed from 12 midnight would also have a direct effect on New Year’s Day celebrations since we assume EMROs could not be over-ridden by use of a Temporary Event Notice and would similarly negate previous permissions granted.

Clause 124: Late Night Levy Requirement

25. The proposal for a late night levy suffers the same disadvantage as Early Morning Restriction Orders in that the levy is untargeted in that "a licensing authority may not decide that the late night levy requirement is to apply in part only of its area". The consequence of such an instruction is that in seeking to address problems in a town centre the levy will have to applied to out of town venues such as pubs or restaurants that trade later in the night albeit that there are no circumstances where they are the cause of a problem. It is simply not fair that they should pay or restrict their hours because of the application of an unfair and untargeted charge.

26. Many pubs already have permission through their licence, often ‘grandfathered’ in the transition to the new Licensing Act in 2005, to open for 36 hours over the New Year period. Under these provisions, such premises will become liable for any late night levy charged in the local authority area, even if this is the only night of the year when they remain open beyond midnight. Such premises will be unfairly disadvantaged compared to those premises who apply for TENs to increase their hours at New Year, which will not have to pay the levy.


Clause 103: Licensing authorities as responsible authorities

27. The Association has suggested that rather than making licensing authorities themselves responsible authorities under the Act, the Government introduce an amendment to the Act nominating licensing officers as responsible authorities. This would enable councils to speed up the process without prejudicing the licensing authority in its decision making role.

Clause 104: Primary Care Trusts and Local Health Boards as responsible authorities

28. The Association recognises that health authorities have an interest and role to play in licensing, but that this should be as an interested party rather than as a responsible authority. The latter would impose a duty and a burden on health authorities which would be neither productive nor efficient regarding the numerous duties they already have to undertake. As an interested party, health authorities can intervene when they have a particular knowledge or interest to impart.

Clause 105: Premises Licences: who may make relevant representations

29. We recognise the argument for broadening the scope to include those who might not be directly affected by a particular licence, but an extension to the ability to raise representations should be limited to those who are impacted in some way rather than to those who either as a point of principle or mischievously might want to raise objections.

30. We have suggested that the solution to this particular difficulty lies in the approach taken under the Gambling Act, 2005, Section 158, which defines an interested party as someone who, in the opinion of the licensing authority which issues the licence, or to which the application is made, is a person who:

a. lives sufficiently close to the premises to be likely to be affected by the authorised activities;

b. has a business interest that might be affected by the authorised activities;

c. represents persons who satisfy a) or b).

31. This approach obviates the need to define vicinity in favour of a test of relevance which it would be for the licensing authority to determine. The provisions in the Bill however make no reference to ‘being affected’ but constrain representations to those living in the local authority area. This will produce anomalies where residents or businesses are located close by but are in an adjoining local authority.

Clause 112 -117: Temporary Event Notices

32. The Licensing Act, 2003 was intended to bring flexibility to the licensing system with Temporary Event Notices (TENs) dealing with different an exceptional circumstances. The less flexibility there is in the system the more TENs have been bought into play and the more complex their use has become. We understand the desire to add Environmental Health to the scrutiny process but also understand that local councils will find the new regime difficult and expensive to operate given that they are getting closer to ‘mini-licences’ through the complexities introduced through the clauses in this Bill. The requirement on licensing authorities to provide a statement of conditions is a case in point, and we see no need for this when it would make more sense to include the applicants usual licensing conditions as part of the TEN with the exception of those aspects being varied by the TEN itself.

33. There is an assumption in the Government response to the Consultation on Rebalancing the Licensing Act that premises use TENs to increase their hours during the New Year celebrations. Further to our previous comments (above), this is not the case. In the event that those with existing licence permissions for New Year find themselves caught by the late night levy, it is likely that they will seek to remove these permissions from their licenses and rely on TENs, which will place further demand and cost on the TENs system for businesses and councils.

Clause 120: Suspension for failure to pay annual fees

34. We have no issue with a suspension in the event of failure to pay the premise licence annual fee.

35. We do not see the need for the issue of a receipt by the local authority. This will only introduce unnecessary bureaucracy and cost into the system, which will ultimately be borne by industry.

Clause 121: Licensing policy statements

36. We are disappointed that the Government has not seized the opportunity to remove the requirement for local authorities to review their licensing policy statements, seeking merely to extend the period from 3 years to five.

37. Given that local authorities have the ability within the Act to review the policy at any time this seems an unnecessary burden to place on them and those that they are obliged to consult. Surely, policies should be reviewed when necessary rather than forcing a review when there might be no significant issues to address.

Clause 123: Review of effect of amendments on licensing scheme

38. We welcome the intention to review the changes made under the Bill but should be carried out sooner and we would suggest that two years should be sufficient time in which to assess the effects of any changes made. We would also urge that the same review should be applied to the changes made through the previous Home Office Bills.


Police Evidence

39. The BBPA welcomes the decision not to pursue through the Bill that would require ‘licensing authorities to accept all representations, notices and recommendations from the police unless there is clear evidence that these are not relevant’ but remain concerned that such an instruction or something similar is to be included in the Guidance to the Act. We fail to see how the Guidance to the Act can address matters that are not in the Act and would consider this an abuse of the Statutory Guidance.

Cumulative Impact

40. Similarly, the Government intends to change the guidance on Cumulative Impact a concept that equally has no basis in the Act itself. The Consultation paper acknowledged that there are currently 134 Cumulative Impact Areas in place. This does not indicate that Councils have had any particular difficulty in putting them in place.


41. We note that the Government says that it intends to enable licensing authorities to set licensing fees based on full cost recovery, but nothing has been included in the Bill to put this into effect. We remain in favour of a centrally-based system which allows Councils sufficient funds to operate the system. The Elton Report found that this was broadly the case and this report should be the starting point for any consideration of fees, since a great deal of evidence was gathered and considered by the fees panel. Few Councils, to our knowledge, are not able to fund sufficiently.

42. Were local authorities to be given powers to set their own fees, there must be a national cap on such fees, much as is there is under the Gambling Act, 2005.

43. The pub trade is not keen to incur additional cost burdens, particularly in the current economic climate when pubs are still failing and closing and customers are reining in their spending. Councils and the Government both have an over-riding interest in maintaining and promoting the tourism industry and those businesses, including pubs that form part of this infrastructure. Care must be taken when seeking to provide councils with sufficient income to operate the licensing regime that every effort is made to operate the regime as efficiently as possible so as not to damage those businesses that contribute to the tourism economy.


44. We would like to refer you to the Report prepared for the Home Office which provides an overview of the consultation on the ‘New Code of Practice for Alcohol Retailers’ undertaken by the previous Government. The concluding paragraph of this report is as follows:

‘A question that looms in responses across strands and across audiences is whether the regulation of the on-trade needs as much tightening as the Consultation Document suggests. It is stressed that most premises are not hubs of crime and disorder. Where problems may arise, many feel that the enforcement of existing legislation as well as voluntary local partnerships can go a long way in addressing them. Many measures are already considered good practice and it is questioned whether further legislation is therefore needed.’ [3]

45. The tenor of the  whole report is reflected in this last section and could be repeated in respect of the outcome of the latest consultation. There is a real danger that in legislating for the few, while imposing burdens and costs are imposed on the vast majority of businesses, restricting these businesses unnecessarily, damaging job creation and undermining the hospitality and leisure infrastructure that lies at the heart of our tourist industry.

46. The BBPA is grateful for your attention to this short briefing ahead of Monday’s debate and would welcome any enquiries to the Association on further questions or clarity and would be pleased to meet and discuss as the Bill progresses through Parliament.

Annex 1 – On-Trade Beer Sales

Source: BBPA

Annex 2 – Alcohol Related Crime: national level

Total number of defendants proceeded against at magistrates courts for alcohol-related offences England down 15.5% between 2000 and 2009 (peak 2003)

Source: Ministry of Justice

Annex 3 – Alcohol Related Crime: Local Level


Over the five years of the BID's first term (it is now in its second five-year period) there was a reduction of 56% in general crime. The Birmingham Broad Street BID is The latest figures from the BID 2010 Annual Report are shown below:


Walsall Council reported latest statistics that show anti-social behaviour in Walsall is continuing to fall due to partnership working such as Best Bar None.

Figures released by Safer Walsall Partnership show the total number of anti-social behaviour (ASB) incidents fell from 17,503 between September 2008 and September 2009 to 14,069 between September 2009 and September 2010. This is a drop of 19.6 per cent equating to 3,434 fewer victims.


Nottingham has had a successful BID since 2006. Latest figures show that crime in Nottingham has been halved in the last seven years with 37,500 fewer crimes committed. The below graph indicates the number of public order offences recorded between the months of January and July in Nottingham city centre since 2006 when the BID began:


The total number of defendants proceeded against for alcohol related offences at magistrates courts between 2000 and 2009 shows a similar trend to the picture across England and Wales in this period.

Source: Ministry of Justice

Annex 4 – Underage Sales

Source: Ministry of Justice

Underage sales prosecutions have been in decline since the introduction of the voluntary BBPA Challenge 21 scheme in 2006 (now made mandatory by Government legislation). A YouGov poll commissioned by BBPA in 2008 showed a 90% recognition rate of the scheme by the key target group of 18 – 24 year olds.

January 2011

[1] Responses to Consultation: Rebalancing the Licensing Act, Home Office November 2010 (Para 1, Page 4)

[2] It is a lready an offence under S.146 of the Licensing Act 2003 (Part 7 – Offences) to sell alcohol to children, and S146(7) of the Act makes it clear that “a person guilty of an offence under this section is liable on summary conviction to a fine not exceeding Level 5 on the standard scale”.


[3] ‘Selling Alcohol Responsibly: A Consultation on the New Code of Practice for Alcohol Retailers Overview Report’ Prepared for the Home Office by Dialogue by Design Ltd (November 2009)