Police Reform and Social Responsibility Bill

Memorandum submitted by Business In Sport and Leisure (BISL) (PR 54)

Business In Sport and Leisure represents over 70 private sector companies and organisations in the sport leisure and hospitality industry, the majority of whom operate a licensed bar even if it is not their primary business.

While BISL is reassured that some of those proposals contained in the consultation which would have undermined the legal framework of the licensing system have not been brought forward it remains very concerned that the present proposals significantly increase and shift the burden of proof on to the premises license holder rather than promote the more consistent application of existing legislation against irresponsible operators and members of the community who fail to take responsibility for their own actions.

The Human Rights Act requires that only proportionate measures are taken and this is what the current test of "necessary for the promotion of the licensing objective" aims to achieve.

The shorter notice times and longer duration for Temporary Event Notices is welcomed but provided the police believe there are no crime and disorder issues they should granted.

The introduction of terminal hours through the proposed EMRO are not only another blanket ban but experience suggests that it can encourage migration and exacerbates tension and social disorder in public areas.

The proposal for the late night levy fail to deal with individual cases on merit and reinforces the blanket approach by requiring application "across the whole of the licensing authority area" Further there is nothing on the face of the Bill to limit the amount of the levy, the expenses incurred in its implementation and BISL would urge that the already successful BIDs are a more constructive solution

Overall BISL is disappointed that Government has not recognised that the vast majority of those operating licensed premises have responded responsibly to the 2003 Licensing Act and subsequent legislation but has continued to press for more restrictive blanket legislation

Business in Sport and Leisure comments: Police Reform and Social Responsibility Bill

1. Business In Sport and Leisure represents over seventy private sector companies and organisations in the important sport, leisure and hospitality industry. Its membership is comprised of a mixture of leisure operators, the large majority of whom operate a licensed bar or other licensable activity even where it is not their primary business and a raft of professional services that support the sector and in particular a substantial number of leading licensing lawyers. BISL was an active member of the DCMS Advisory Group on licensing during the passage and after the implementation of the Licensing Act 2003 and BISL has continued that dialogue with DCMS ministers and civil servants through to July 2010 and more recently with BIS and the Home Office.

2. BISL develops policy through Working Groups and these comments are a result of deliberations by the Licensing Working Group but have also been shared with the membership as a whole. BISL welcomes the opportunity to submit further views to the Committee to follow up the comments made on Rebalancing the Licensing Act.

3. Overall, whilst BISL welcomes the Government’s decision not to proceed with those proposals around licensing procedure contained in the consultation that were fundamentally contradictory to the legal framework of the licensing system, BISL believes that the powers within the 2003 Licensing Act and its subsequent amendments when properly administered and enforced, are already adequate for the licensing authority and the community to ensure premises operate within the licensing objectives.

Clause 103

4. This proposal makes the licensing authority a responsible authority in respect of all applications concerning premises with Premises Licences, and licensed clubs i.e. it not only covers applications but variations, transfers, reviews etc. It makes the licensing authority into a party in the same case that the licensing authority is actually the tribunal that will hear and decide the issue. For example a licensing authority may initiate a review where it is also the tribunal that has to decide that review. Inevitably once the decision to initiate the review is made in the first place by the licensing authority there will be firm views held by it as the responsible authority, and there is therefore a very real danger of actual as well as perceived bias. In all cases where the licensing authority takes an active part as a responsible authority in an application, there is going to be perceived bias.

5. This is likely to lead to breach of Article 6 of the Human Rights Act whereby applicants are entitled to a fair trial by an independent and impartial tribunal. In these circumstances it is hard if not impossible to see how the licensing authority could be an impartial tribunal and/or could be seen to be so

Clause 104

6. Making Primary Care Trusts and Local Health Boards responsible authorities places an unfair burden on them and does not assist in the proper administration of licensing under the Licensing Act 2003. When dealing with specific premises, PCTs and Health Boards are highly unlikely to have the specific detailed and relevant information to be able to contribute constructively to any application. Any information they may contribute is likely to be very broad brush and will merely lead to longer hearings, greater costs and more appeals without adding anything of value to the process.

Clause 105

7. This issue has been considered at great length by BISL’s Licensing Group that believes the removal of the vicinity test may well reduce local democracy as it opens up a potential floodgate of representation by regional and national bodies. Any objections must be to the impact of the premises on a local community and must be relevant and not vexatious; to achieve that there must be an element of proximity.

8. In this context, the use of the "vicinity" test essentially means that only those premises that are likely to be affected by an application can join in the hearing and the process. It is up to the licensing authority how far a particular vicinity extends. Licensing authorities, experience has shown, are generally pragmatic and sensible about deciding on the area of any particular vicinity, both in including within the vicinity those premises likely to be affected by an application, and in excluding premises that are unlikely to be so. Experience has also shown that the licensing authorities are prepared to extend a vicinity where there is cogent evidence before them that premises are likely to be affected by an application. Therefore abolishing the vicinity test will achieve very little except for longer and more costly hearings and more appeals and will not improve the resolution of licensing concerns. An alternative might be to consider the Gambling Act vicinity test.

Clause 109

9. The consultation paper suggested a shift in evidential burden with little or no evidence of support. Undermining the burden of proof on licensing authorities, by the removal of the requirement to prove actions are necessary, undermines the principle behind better regulation and will bring the risk of blanket conditions that will subsequently be challenged by operators in court.

10. Under the Human Rights Act only proportionate measures should be taken and this is what the current test of "necessary for the promotion of the licensing objective" aims to achieve as only those measures which are requisite for the promotion of the objective are permissible and anything wider than that is unlikely to be proportionate and therefore will be in breach of the Human Rights Act.

Clauses 112-113

11. BISL welcomes the shorter notice times and the longer periods for the duration of Temporary Event Notices. However, there is real concern about Environmental Health Officers becoming "relevant persons" and giving the relevant licensing authority power to impose conditions as to noise on Temporary Event Notices. The whole purpose behind TENs is that they are of short duration and therefore, provided there are no crime and disorder issues that the police are concerned with, the TEN should be granted. Environment Health Officers do have other powers and other legislation to prevent noise which are adequate for these purposes and they do not need the extra powers which are likely to become a great burden to the licence holders.

Clause 118

12. BISL’s members across the board from pubs and bars to bingo clubs, casinos and sports organisations recognise and support Government policy to ensure alcohol is not sold to those underage.

13. The penalties for persistent sales to the underage i.e. the penalties arising after underage sales on two occasions in three months, are already severe. Consequently, the operators have put in place rigorous programmes to avoid such sales and so it is rarely a case of wilful intent to sell but poor judgement by counter staff and not the licence holder. The penalties have only recently been increased. Already we are seeing some premises taking extreme measures to the irritation of the public, such as demanding ID from all customers, regardless of age, in order to protect themselves.

14. In such circumstances the existing 48 hour closure period is a reinforced warning and allows for further training for staff. Any greater period is likely to deter operators from the "voluntary" closure and lead to more work for the magistrates. The longer closure period of 336 hours is likely to destroy businesses. The legislation already provides for fines (up to £10,000) well in excess the average applied to date - £1,713. BISL questions the need for doubling the maximum to £20,000.

Clause 119

15. BISL has welcomed the Government’s overall policy to move away from blanket conditions to a more risk based assessment and to continue to deal with every application on merit. However, the proposals for an extension of Early Morning Restriction Orders and the Late Night Levy ignore this principle and follow the route of the now totally discredited and to be rescinded Alcohol Disorder Zones. Furthermore, this would be to repeat the policy under the Licensing Act 1964 of permitted hours, on which there was extensive evidence that it led to serious disorder at closing time both within and outside premises.

16. BISL believes that the blanket application of amendment to the trading hours contained in premises licences awarded by due process to operators, who have traded responsibly within the terms of that licence, is unreasonable and flies in the face of the Act. Although premises that could be affected by an order are permitted to make "relevant representations", the representations that may be made are limited to "the likely effect of the making of a proposed order on the promotion of the licensing objectives", and not the effect on the individual premises of the making of the order, nor can the premises own circumstances be taken into account. Therefore premises that may be conducting their business properly, whose patrons essentially cause no difficulties in the area, that promote the licensing objectives, and whose business would be severely affected or possibly destroyed by an Early Morning Restriction Order, may not only be closed down after a certain period because of the actions of other premises, but have no right to make those points to the licensing authority. Many premises that are open late are restaurants, hotels, and casinos and hardly ever cause problems concerning the licensing objectives and are certainly unlikely to do so during the period of a possible Early Morning Restriction Order.

17. In its comments on the original proposal, BISL highlighted not only this need to deal with premises on individual merit but the huge potential, with the introduction of local terminal hours, for an increase in tension in public areas, at taxi ranks and food outlets not to mention the real likelihood of migration across local licensing authority boundaries - a practice that has certainly occurred within London and also in many town centres in the past - issues that the Licensing Act 2003 specifically sought to deal with.

Clause 120

18. BISL does not oppose the suspension of a premises licence for failing to pay the annual fee but strongly urges that failsafes should be included in the Bill. The experience of BISL members is that each year licensing authorities query a significant percentage of premises licence fee payments, alleging that the fees have not been paid when in fact they have. At present it can take some time to sort that matter out. If these provisions were enacted as they are currently drafted, it is likely that during that time the licence would, quite wrongly, be suspended until the Licensing Authority is able to find and later check its records, which experience has shown, can take some time.

Clause 124

19. The proposal for the Late Night Levy equally fails to meet the test about dealing with each case on its individual merits; in fact para 124(4) reinforces the blanket approach by requiring the levy to be applied "across the whole of the licensing authority area" of jurisdiction and, in clause 125(2), applies to "any premises or club premises certificate authorised to supply alcohol on one or more days during the late night supply period".

20. BISL notes that the procedure to be followed for the introduction of variations for the Late Night Levy are to be included in regulations and trusts that, not only could there be a consultation, but that there would be the right to make representations and, if necessary, to have a hearing to deal with those representations for holders of relevant late night authorisations.

21. The general approach is in fact compounded in paras 131 and 132 where powers are proposed for the licensing authority to determine exemption by category rather than evidence of specific premises liability. Clause 132 does make provision for cessation and amendment to the levy but it also makes provision without any guidance for variation of the payment to the police.

22. BISL is most concerned that the Bill does not contain any limitation on the amount of the levy nor on the amount or proportion of expenses that may be incurred in respect of the levy. Whilst BISL notes that regulations may be made in respect of the amounts to be taken into account in calculating the net amount of levy payments, there does not appear to be any limitation on those expenses, not even that they should be reasonable. The same is true of the Levy payments. BISL would urge that limitations on both the amount of the levy and the expenses, even if only in general terms, should be contained within the Bill rather than be left to regulations.

23. Furthermore, while BISL notes that the purpose of the levy must be for raising revenue to deal with the costs of policing and crime reduction in connection with the supply of alcohol, and that 70% at least of the amount raised net of deductions should be paid to the Police, there is no restriction on what, how or when the Police or the authority are to spend that money. Levy money net of expenses and deductions must be used specifically to deal with the local issues of crime and policing in relation to alcohol, and within a specified timeframe, whether the money is to be given to the Police or not. As presently drafted, this money could be raised specifically, for example, to deal with problems surrounding taxis in a particular town, but there is no requirement on the Police or others to use it to solve the taxi purposes in that town or any other.

Levies are notoriously expensive and there is inevitably going to be considerable and wasteful expense in raising and administering the levy. BIDS have been shown to work excellently. Whilst they may not always be the perfect vehicle for what is intended to be dealt with by means of a levy, other partnership projects along those lines are likely to be far more efficient and much more cost-effective than the proposed levy, particularly in these difficult times, for businesses and councils alike.

January 2011