Police Reform and Social Responsibility Bill

Memorandum submitted by JD Wetherspoon PLC (PR 46)

1.JD Wetherspoon PLC is one of the leading operators of managed pubs in the UK. Established in 1979, the Company owns and operates 785 licensed premises throughout the UK and employs over 22,000 people.

2. We share the Government’s objectives of encouraging both the responsible sale and consumption of alcohol and a continued fall in alcohol related crime and disorder and associated health harms. We see the continued existence of the pub as a thriving institution, both socially and economically, as central to achieving those objectives.

3. By its nature the pub is a highly regulated environment. For centuries governments have recognised the need for the consumption of alcohol to be subject to legislative restriction and control. Increasingly in recent years, those who operate pubs have voluntarily seen the need to create an environment which is both convivial and safe in order to attract and retain a wide range of customers. CCTV is now almost standard in all pubs. Effective staff training to recognise signs of drunkenness is increasingly the norm as are proof of age policies to prevent under age sales of alcohol. The pub industry has also embraced the need to reduce the health harms associated with over consumption of alcohol. The Drinkaware Trust receives £5 million of funding from the alcohol industry each year to encourage responsible consumption through sensible drinking messages delivered in the pub itself through posters, beer mats and labelling, on the Internet and in the wider media. Initiatives such as Best Bar None and Pubwatch are industry led and along with Business Improvement Districts (BIDs) play a key role in creating a safer night time economy.

4. Any solution to the problems associated with the excessive consumption of alcohol by a minority of individuals has to recognise the crucial role the pub has to play and not overburden it with regulations which, though ostensibly aimed at bringing into line irresponsible operators, will affect good and bad alike. This submission is made in this context.

5. As a company we are extremely concerned that some of the proposals contained in the Bill will make the survival of the pub more difficult and rather than achieve a rebalancing of the Licensing Act as the government intend, will actually create an imbalance with serious consequences for those who operate pubs and indeed licensed premises of all kinds and the communities they serve.

S103 Licensing Authorities as Responsible Authorities

6. We consider the impact of this fundamental change to the role of licensing authorities proposed by the Bill to be negative in several regards.

7. The primary role of the licensing authority in the current process is as the decision making body assessing applications which come before its licensing committee and carrying out a number of delegated functions via its licensing officers. During this process it has to balance the often conflicting interests of the operators of licensed premises and those who may be affected by such premises, whether they are responsible authorities, local residents or businesses. It is difficult to envisage how a licensing authority can fulfil that role in a measured and balanced way if it is in the position of having to decide applications which have been brought before it by itself. The principle that one cannot be a judge in one’s own court is a long established legal principal in English law which appears to be breached by the proposal and would render any decision made by the licensing authority in such circumstances susceptible to challenge under the provisions of Article 6 of the Human Rights Act 1998. Confidence by all stakeholders in any administrative process is crucial and it is difficult to see how the aggrieved applicant will consider that they have had a fair hearing if a licensing authority is forced into a position where it has to determine applications brought before it by its own officers.

8. The ability of licensing authorities to play a neutral role in the application process is also of benefit beyond maintaining both the reality and the perception of impartiality when a decision has to be made by them. Our experience in applications made across England and Wales is that the licensing officer, as the representative of the licensing authority, plays an important role in encouraging a partnership approach to address licensing issues which may arise in respect of a particular premises. His or her neutrality in the wider licensing process allows conflicting interests to be balanced, often avoiding the need for costly enforcement. There is a risk that this "honest broker" role will be jeopardised should licensing authorities become responsible authorities in their own right.

9. A question also arises in respect of who is to arbitrate in a scenario where a licensing officer’s views differ from those of a responsible authority or an interested party. Are the views of the licensing officer on behalf of a licensing authority to take precedence? If a final decision on the point has to be made by the licensing committee, again the presumption of bias is an inevitable consequence.

10. The perception of a fair and impartial system is crucial in the exercise of any administrative function by a public body and we believe this would be fundamentally undermined if this proposal was carried forward.

S105 to s108 – Removing the Vicinity Test

11. The removal of the vicinity requirement has the potential for allowing representations or reviews to be lodged that have no relation to the impact of a particular premise on the interested party concerned. For example an anti-alcohol lobby group or a trade competitor might take it upon themselves to object to any application that an operator may lodge irrespective of where a particular premises may be. This will lead to an increased number of licensing hearings creating delay and cost in the process for all parties and potentially undermining local influence.

12. In our experience licensing authorities, as encouraged by the s182 Guidance, tend to take a flexible and pragmatic view of vicinity based on their local knowledge and not solely on geographical proximity but also on whether that person or body is or are likely to be impacted upon by the application. If the Government wishes to formalise this approach by a statutory definition, it should consider the test for what constitutes an interested party in Section 158 of the Gambling Act 2005 which provides, inter alia, that an interested party is someone who lives"sufficiently close to the premises to be likely to be affected by it" or has business interests that are likely to be affected"

S109 to s111 - Reducing the Evidential Burden on Licensing Authorities

13. Undoubtedly the interpretation of what is "appropriate" will be subject to considerable deliberation in the higher courts before a satisfactory definition is achieved. It is certainly a harder test to interpret than "necessity" which has a much more settled legal meaning and will lead to considerable difficulties in practice for all involved in the licensing process.

14. Having submitted may hundreds of licensing applications under the provisions of the Licensing Act 2003 we have seen few, if any, examples where the application of the necessity test has resulted in decisions contrary to the guiding principle of the Act namely the promotion of the 4 licensing objectives. By altering the evidential burden for no apparent reason, the risk is that there will be unnecessary operational and regulatory burdens placed on all operators by way of conditions or restrictions on hours.

S112 to s117 – Temporary Event Notices

15. We welcome the proposals for the giving of a limited number of late TENs, the extension of the event period and the increase in the cumulative total of days which can be covered by a TEN.

16. The addition of Environmental Heath officers as a relevant person able to issue a counter notice to a TEN does however risk undermining the purpose of the TEN system as a means of allowing speedily and easily applied for licensing permissions where the regulatory scrutiny is less because the duration of the event is only temporary. TENs are often used for the provision of live music in venues where that provsion is not provided on the premises licence. The ability of EHOs to intervene and to impose conditions risks therefore further undermining the opportunity for live music performance which was much reduced by the removal of the exemption for 2 person un-amplified live performances in the previous licensing system from any consent at all.

S118 – Underage Sales

17. We welcome the retention of 48 hours as the minimum period of voluntary closure instead of the 168 hours originally proposed. We still have some concern that the availability of a 168 hours closure period will see that as the default position for responsible authorities which will reduce the number of operators accepting the closure and increase those willing to face prosecution for the offence.

18. The voluntary closure is supposed to be an alternative to the necessity of a prosecution under the Act, presumably on the basis that it is a quick and effective sanction without the necessity for time consuming and costly legal proceedings for both the premises licence holder and the authorities. To that extent the closure period has to have some degree of proportionality against the consequences of being convicted of the offence itself. Otherwise premises licence holders will opt for prosecution in that at least it offers some slim chance of avoiding such consequences. A voluntary closure that no one feels able to opt for seems contradictory.

19. We would also question how effective increasing the penalty provisions for the offence, whether through longer voluntary closures or increased fines, actually would be. As a company, we have invested considerable resources in ensuring that alcohol is not inadvertently sold to under 18s.We were one of the first operators to introduce a Challenge 21 age verification scheme on a voluntary basis in all premises. Considerable investment has been provided for training. All new staff receive full induction training on the issue before being allowed behind the bar. Refresher training is provided to current staff on a regular basis and we are developing an e-learning module which staff can access at all times. Other operators have put in place similar measures and, as such, compliance with the law regulating under age sales is extremely high and increasing.

20. We would maintain that there are sufficient enforcement powers available already. Selling alcohol to an under 18 is already an offence under s146 of the Licensing Act 2003 with a maximum fine of £5,000 for the seller. Persistent sales under s147a attract a fine of £10,000 although this is rarely if ever imposed in full. Courts can also rescind the personal licence of the offender. Licensing committees have the power on review to revoke or suspend the premises licences of premises where selling to under 18s occurs. In addition they can remove the designated premises supervisor. These are powers that licensing committees regularly use. An amendment to the Licensing Act introduced the offence of persistently selling alcohol to children, the so-called 3 "strikes’ rule. A "strike" being an under age sale, usually via a test purchase. The Policing and Crime Act 2009 tightened the definition of persistently selling to just 2 "strikes’ within 3 months.

21. Offences under this section of the Act are rarely, if ever, evidenced by actual sales to under 18s during the course of normal trade, but through a failed test purchase where the sale does not reveal any element of intent by the premises licence holder, but more often an error of judgement from a particular individual who may well have undergone all the necessary training. Any revised guidance should give a clear indication that only those offences where an element of intent to sell is established should attract the new increased sanctions.

22. We would ask the committee to consider whether steps can be introduced to more fairly balance the responsibility for sales of alcohol to under 18s.We appreciate the reluctance to prematurely criminalise young people but the purchase of alcohol by under 18s is a criminal offence but one that is rarely, if ever, enforced.

S119 – Early Morning Alcohol Restriction Orders

23. We consider this to be one of the most potentially damaging proposals put forward. We note that the driver behind the proposal is to ensure that local authorities have the power to address the problems caused by extensive late night drinking and the twenty four hour licensing culture.

24 .We do not accept that the twenty four licensing culture is a reality. We note that of the 7178 premises holding premises licenses allowing sale of alcohol for 24 hours, only 845 were pubs, bars or nightclubs. We would be surprised if any of those would regularly, if at all, open for a twenty four hour period as it would be economically unviable to do so.

25. The proposal would reintroduce the reality of a single closing time, thus recreating the pressure on transport, policing and other local infrastructure that having all premises in one area close at any one time created. This was one of the main drivers for the relaxation of a fixed terminal hour within the Licensing Act 2003 and we and others consider it to have been successful. Our premises that close later than they did previously do experience a more gradual and therefore less impactive drift away of customers.

26. The proposal also raises the possibility of different closing times in different areas of a licensing authority. If an EMRO is applied to all premises in a city centre which trade beyond midnight for example, then those premises beyond the scope of the EMRO which remain able to stay open later will certainly see migration of customers to them. The police have always had understandable concerns regarding staggered opening hours for this reason as it is difficult to police large numbers of people moving from venue to venue late at night.

27. It is not clear from the Bill proposals whether or not the licensing authority could distinguish between particular types of premises, for example between nightclubs and bars. There is certainly no provision to distinguish the premises which are promoting the licensing objectives and those which do not. All must open or all must close. We would submit that the proper approach would be to target enforcement under the powers available under current provisions to ensure that those premises trading irresponsibly are brought into line, rather than a system that penalises all.

28. The retrospective nature of EMROs is concerning. Premises that have been trading without issue for a number of years face the real possibility of seeing their trading hours radically cut. Such operators may have a lease and banking commitments based on a business model through which no fault of their own, they are now unable to deliver. Businesses will fail as a result. There will be a consequential impact on the local economy in terms of lost of employment and the loss of a late night economy which may encourage customers to visit a particular town or city. Newcastle and Blackpool are two examples which spring to mind.

S124 to s135 – Late Night Levy

29. We have a concern that the proposals will create a set terminal hour for all of the licensing authority area where the levy applies as operators may simply choose to close earlier rather than be subject to the levy.

30. We welcome the fact that the licensing authority must allow for transparency in the amount collected as well as their expenses in administering the levy. No equivalent transparency is imposed on the police by the Bill however as to how their portion is spent and significantly no obligation is imposed to spend it on the late night economy.

31. The same concern applies to portion retained by the licensing authority. If late night operators are required to pay for dealing with the issues in policing late night economy, then they need certainty it is going to be applied to those problems and not simply from an additional tax falling into the police or council's general pot. We recommend that additional regulations should deal with these lacunae.


32. Operators in their consultation responses asked for exemptions for premises who participated in Pubwatch,BBNs. The Bill only gives licensing authorities discretion to do this and there appears no obligation. This should be prescribed so that there is a guarantee good practice is recognised and rewarded. Localism is the underpinning theme of the Bill and therefore local initiatives by operators such as these should be promoted otherwise the measures draw no distinction between good and bad operators.

33. There is also a risk that charging a levy for a late night licence will also reduce diversity in the late night economy. It has long been recognised that one of the best means of creating a safer and more attractive town and city centre at night is by encouraging a wide range of venues. The higher cost of being able to join in the late night economy will be disproportionately felt by smaller independent operators who may not have the required customer footfall to justify opening later. This will leave only the high volume bars and nightclubs appealing to a narrow clientele that are able to afford the more expensive licences.

34.Payment of a levy will mean that funds will no longer be available from many operators for participation and support of those voluntary partnership schemes such as Best bar None, Pubwatch etc which have proved so successful and have been recognised as such by the Government.

35. If the committee wants any further clarification in respect of any above, we would be happy to assist.

January 2011