Police Reform and Social Responsibility Bill

Memorandum submitted by Scarborough Borough Council (PR 44)

LICENSING ACT REFORM - POINTS TO CONSIDER

1. Clause 103: Do you agree that Licensing Authorities should be Responsible Authorities?

A: Yes agreed subject to below.

Comment: Assurance would be required that decisions made would not be open to legal challenge on the grounds of predetermination or bias.

2. Clause 104: Do you agree that PCTs should become Responsible Authorities?

A: Yes agreed.

Comment: Has this been requested by the PCTs?

3. Clause 105: (Grant/Variation/Minor Variation/Community premises licences) Do you agree that the ‘vicinity’ test should be removed to allow anyone to object to a licence application albeit they must still have evidence of non compliance of the 4 Licensing Objectives?

A: Perhaps but see below

Comment: Provided that the interested party can show that they are affected by the licensable activity.

4. Clause 105 sub section (3): Do you agree that the applicant and licensing authority must advertise the application in a way which ensures that it comes to the attention of persons in the licensing authority’s area who it may affect? If so, do you have any suggestions as to how this can be done?

A: We have serious concerns about this proposal.

Comment: These proposals are not practical. There is an unnecessary duplication of work in requiring both the applicant and the licensing authority to advertise the same application. The requirement that such advertising must ensure that it comes to the attention of all persons who may be affected is both vague and unreasonable. There could be a serious cost implication for both parties. Advertising requirements should be clearly prescribed in law so that all parties know when they have complied with them.

5. Clause 106: (Reviews) Do you agree that a review application must be advertised in a way which ensures that it comes to the attention of persons in the licensing authority’s area who it may affect? If so, do you have any suggestions as to how this can be done?

A: See above

Comment: See above.

6. Clauses 107 and 108: (Club Premises Certificates and Reviews) as for paragraphs 3. 4. and 5 above relating to removal of vicinity test and advertising requirements.

A: See above.

Comment: See above.

7. Clauses 109/110/111: Do you agree with reducing the burden Licensing Authorities must meet to achieve the promotion of the licensing objectives by amending the guidance which states "taking steps which are necessary for the promotion of the licensing objectives" to "taking steps which are appropriate for the promotion …."?

A: Yes agreed

Comment: None

8. Clause 112: Do you agree that Environmental Health Authority (Noise Pollution and H & S) should be able to object to a TEN?

A: Yes.

Comment: None.

Do you agree that the Police and Environmental Health Authority should be able to object to a TEN on all four licensing objectives, not just prevention of crime and disorder?

A: Yes

Comment: None.

9. Clause 113: Do you agree that a Licensing Authority should be able to impose conditions if an objection is made on a TEN to ensure promotion of the four licensing objectives?

A: Yes

Comment: None.

Do you agree that a TEN submitted by a current licence holder should be carried out in accordance with existing conditions imposed on the licence and/or any conditions imposed by the Licensing Authority?

A: Although we support this in principle, we see practical problems with this – see below.

Comment: For a licensed premises an application for a TEN is effectively a request to override at least some of the conditions on the licence. Such a request cannot therefore be reasonably expected to also have to comply with the premises licence conditions in full. A possible solution would be the inclusion of a section on the TENS form in which the applicant had to clarify which of their current licence conditions they wish to be suspended for the period of the TEN.

10. Clause 114: Do you agree that a premises user should be able to give a limited number of TENs in a shorter timeframe than currently (i.e. a ‘late’ TEN)?

A: Yes provided that any objection creates an automatic refusal with no appeal.

Comment: None.

Do you agree that an objection from a relevant authority to the late TEN would render the TEN ineffective with no right of a hearing or onward appeal?

A: Yes.

Comment: None.

Do you agree the limit of ‘late’ TENS to be submitted should be 10 for personal licence holders and 2 for non personal licence holders?

A: The limit should apply to TENS in general regardless of whether or not they are ‘late’. The Licensing Authority does not seek a lower limit on the number of late TENS that have been applied for.

Comment: The number of TENS that can be applied for is currently too high and should be significantly reduced.

11. Clause 115: Do you agree with increasing the period for which licensable activities at any single event can be carried on from 96 hours to 168 hours and the aggregate increased from 15 days to 21 days?

A: Yes provided that objections can be raised on all four licensing objectives.

Comment: None.

12. Clause 116: Do you agree with removing the requirement on a licensing authority to acknowledge receipt of a TEN by sending one notice to the premises user replacing this with the requirement to given written acknowledgement?

A: We cannot see the difference this would make to anybody.

Comment: None.

13. Clause 117: Do you agree to the extension of the period in which a relevant authority can object to a TEN from two to three working days?

A: Yes in principle.

Comment: However, this may produce practical difficulties for the authority in organising a hearing whilst still leaving a 5 clear day appeal period. We would prefer the appeal period to be reduced by a day if the objection period is to be extended in this way.

14. Clause 118: Do you agree with the increased maximum fine level for persistently selling alcohol to children being increased from £10,000 to £20,000?

A: Yes

Comment: None.

Clause 118: Do you agree with the amendment that increases the Police/Trading Standards closure notice period from a maximum of 48 hours to a period of between 48 hours and 336 hours?

A: Yes.

Comment: None.

15. Clause 119: The Licensing Act extends the Council’s uncommenced power to make Early Morning Restriction Orders (EMROs) which prohibit the supply of alcohol from premises between 3am – 6am (this includes TENs) in the whole or part of the Borough. Do you agree with the hours being amended to 12 midnight – 6am in the whole or part of the Borough? (the decision to make an EMRO must be made by full Council)

A: See below.

Comment: Whilst we feel it is unlikely that we would ever wish to take such a step we can see the benefit of making this power available. However, such a power should be able to be applied to only part of the local authority area not just the whole borough. The wording in the Act and the Guidance from the Home Office conflicts in this regard. By bringing the hours forward to midnight gives the authority more flexibility in dealing with severe problems.

16. Clause 120: Do you agree with the proposal to enable Licensing Authorities to suspend a licence (or certificate) for non payment of the annual fee?

A: Yes.

Comment: None.

17. Clause 121: Do you agree with the proposal to amend the requirement for the Licensing Authority to review its Licensing Policy (and conduct a major consultation exercise) every 3 years, extending this to every 5 years instead with the licensing authority continuing to keep it under review?

A: Yes

Comment: It reduces an unnecessary burden on the authority. We have hardly put the policy into place when we need to consider the next policy consultations under the current regime.

18. Clause 122: Do you agree with the proposal to increase the number of Personal Licence Relevant Offences to include: an offence of attempt to commit a relevant offence or conspiracy to commit a relevant offence; an offence of failing to co-operate with a preliminary test under section 6(6) of the Road Traffic Act 1988 and conspiracy to defraud.

A: Yes.

Comment: None.

19. Clause 123: Do you agree with the proposal that the Secretary of State must review (to be carried out as soon as practicable after the expiry of a 5 year period from the last date these amendments come into force) the regulatory impact of these amendments in relation to those that may introduce a regulatory burden?

A: No.

Comment: We believe 3 years is sufficient for this.

20. Clause 124: Do you agree with the proposal that a late night levy payable by premises supplying alcohol between midnight and 6am is introduced and also that Licensing Authorities shall be required to determine that this is an appropriate means of raising revenue in relation to costs (police costs and the costs of other measures) before deciding to introduce this measure?

A: See below.

Comment: We have some concerns about this proposal as follows:

(a) The local authority may be pressurised by the Police to apply a levy in order to boost police funds particularly given such a high percentage the Police will have from this levy;

(b) A requirement that a levy had to be charged over the entire borough would be insufficiently flexible. Within our own borough we have areas of intense night time activity with associated problems but we also have many rural areas who have no such problems and make no demands on police resources. Levying premises in such areas in order to pay for policing in the towns would be unfair. The ability to offer discounts and exemptions should exist for geographical areas not just categories of premises;

(c) We operate a cumulative impact policy in two areas of the borough in which new premises licences have had to evidence to the satisfaction of the police that they will not add to crime and disorder already experienced. In many cases this has been the result of onerous and costly conditions on those licences. For such premises to then have to pay an additional levy to effectively deal with the same problem could be seen as disproportionate;

(d) The local authority could end up out of pocket if its administration costs (including debt recovery and legal fees) exceed 30% of the amount collected. This could particularly be the case if the police proportions are calculated on amounts due rather than amounts actually received.

Clause 124: Do you agree that there should be exemptions and discounts for categories of premises that do not contribute to crime and disorder in the night time economy?

A: Yes.

Comment: We need the flexibility to levy in specific areas rather than the whole borough or by categories of premises.

Clause 124: Do you agree that the fees should be based on the Non Domestic Rateable Value of a premises?

A: Yes

Comment: This seems a reasonable enough basis.

Clause 124: Do you agree with the proposal that any person with a potential liability to pay a levy may apply to vary the relevant licence or certificate with the effect that the person ceases to be liable, without incurring the fee which ordinarily must accompany such applications?

A: See below.

Comment: Whilst we accept the principle that nobody should be liable to pay the levy who does not wish to take advantage of it simply because of a council change in policy, creating the opportunity to amend the licence without cost will be a costly administrative burden to this council. It also creates the possibility of a premises seeking to avoid the levy by reducing its licensable hours and applying for TENS instead.

12 January 2011