Police Reform and Social Responsibility Bill

MEMORANDUM SUBMITTED BY THE ROYAL BOROUGH OF KENSINGTON AND CHELSEA (PR 72)

1. INTRODUCTION

1.1 The Royal Borough of Kensington and Chelsea responded to the Home Office consultation document "Rebalancing the Licensing Act" on the 8 September 2010. We have been following the progress of the Home Office’s proposals to reform the Licensing Act 2003 closely and now wish to comment on some of the proposals contained in the Police Reform and Social Responsibility Bill currently before Parliament.

1.2 The Royal Borough welcomes the proposal that Licensing Authorities and Primary Care Trusts/Local Health Boards will become Responsible Authorities. We also welcome many of the other proposals contained in the Bill but we do have concerns regarding the practical effect some of them will have if accepted by Parliament.

1.3 We also note that one of the proposals in the Home Office consultation paper was that any appeal lodged against a decision of a Licensing Committee following a hearing of a review application would not suspend the implementation of the Committee’s decision, pending the outcome of the appeal. The Committee’s decision would come into effect immediately and could only be altered following a hearing of an appeal by the Magistrates Court. We are extremely surprised and disappointed that this provision is not contained within the Bill.

2. EFFECTIVE DATE OF COMMITTEE DECISION FOLLOWING A REVIEW HEARING

2.1 An application under section 52 of the Licensing Act 2003 to review a licence is designed to be a key protection for the community when problems associated with crime and disorder, public safety, public nuisance and the protection of children from harm are occurring. Reviews are often used as a last resort and only made when other attempts to resolve significant problems with licensed premises have failed. Responsible Authorities and Interested Persons have often tried to work with licence holders before they finally apply for a review. The purpose of the review hearing is to take all necessary steps in order to rectify the problems which are occurring, such as where residents are being disturbed by constant noise and nuisance emanating from licensed premises, or being created by the customers of the licensed premises.

2.2 Adding conditions, reducing operating hours or licensable activities, suspending the licence, removing the Designated Premises Supervisor or revoking the licence, can ensure that all the Objectives are being promoted and the lives of individuals are not continuing to be affected by the licensed premises.

2.3 Experience has shown that a large number of operators automatically lodge appeals with the Magistrates Courts against the decision of Licensing Committees following the review. This means that the decision of the Committee, which has considered the representations of all parties in depth, is suspended pending a court hearing. This allows the premises to continue to operate as they did before the review hearing. This often results in those residents and other persons affected as a result of the licensable activities being carried on at the premises, continuing to suffer for between 5 to 12 months pending the outcome of the appeal. During this time licensed premises are able to continue to profit from their commercial operation, despite the recognised problems being suffered by residents. Secondly, there is no need for licensed premises to clean up their act until immediately before the hearing of the appeal. The fact that a review decision, once appealed, does not take effect until the outcome of the appeal flies in the face of the overriding four Licensing Objectives which underpin the basis upon which the Licensing Act 2003 is built, and undermines the decision made by the Licensing Committee. The Royal Borough has had one recent case at a Review Hearing where a suspension of the licence was proposed and agreed by both the Police and the Premises operators as a step which should be taken. However, despite consenting to this the Operators have subsequently lodged an appeal which may result in the suspension never taking effect. This is but one clear example of Premises operators using the Appeal mechanism as a device to escape the Review decision.

2.4 For operators of licensed premises the loop hole of lodging appeals against review decisions has been enormously beneficial. It is unsurprising that responses from the licensed trade to the consultation document included opposition to the original proposal to ensure Committee decisions became effective immediately.

2.5 The Royal Borough strongly recommends that the original proposal to make Licensing Committee decisions effective immediately following a review hearing, regardless of whether an appeal is lodged or not, is reinstated into the Bill currently being considered by Parliament.

2.6 A point to note is that under section 132(7) of the Licensing (Scotland) Act 2005, decisions of their "Licensing Boards" have immediate effect regardless of whether or not an appeal against a decision is lodged. Section 132(8) of that Act does allow the appellant to apply to the "Sheriff Principal" to recall any suspension or revocation of a licence pending the appeal hearing if it is thought appropriate to do so but the default position is that the "Boards" decisions are effective immediately. The relevant section is attached below:

132 Appeals: supplementary provision S

(7) A decision of a Licensing Board which is appealed under section 131 continues to have effect despite the appeal, subject to subsection (8).

(8) Where an appeal is taken against a decision of a Licensing Board to suspend or revoke a premises licence, the sheriff principal may-

(a)on the application of the appellant, and

(b)if satisfied on the balance of convenience that it is appropriate to do so,

recall the suspension or revocation pending determination of the appeal.

We urge that these Scottish provisions are applied to England.


3. VICINITY

3.1 Clause 105 of the Bill proposes that the terms "vicinity" and "interested parties", in relation to representations against/for a licence application, are removed. The Royal Borough has concerns regarding this proposal. Within our own Statement of Licensing Policy we have given guidance as to what could be considered "within the vicinity" of an applicant premises for the assistance of both applicants and "Interested Parties". As a result we have had little, or no, dispute throughout the past 5 years over whether a representation has been made by a "party" within the vicinity of an applicant premises, or whether a representation is valid or not.

3.2 By restricting representations to persons who live in or are involved in business in the relevant licensing area a disturbing situation arises in London, and possibly other built up areas, where local authority boundaries drive through local areas sometimes down the middle of one street. As drafted it appears that representations would be allowed from persons living say 2-3 miles away, but not by all neighbours who live immediately opposite a premises, or perhaps 20 yards away and are most affected, if they are outside the borough. There are several examples which can be given in the Royal Borough of such a situation and it is clearly wrong and contrary to involving the local community. This clearly should be amended as it could reduce and not increase the opportunities for local residents to be involved in licensing decisions. This would be contrary to one of the new policy aims.

3.3 As the proposal currently stands an operator could organise a petition amongst his/her customers supporting an application for longer hours, additional licensable activities or against a licence review application, even though they may live miles from the venue and have no idea of, or concern about, the effect the operation of the premises has on people living close by. This could result in the representations of residents who are directly affected by the problems associated with licensed premises, being outweighed by persons on the edge of the borough or even outside the Borough. By amending the legislation to delete any reference to vicinity and interested parties we believe that this will not assist in promoting the licensing objectives. It will also significantly increase arguments regarding the validity of representations from individuals and other parties based relatively long distances from applicant premises. We believe that the deletion of "vicinity" and "interested parties" from the Act is unnecessary and will in all probability lead to an increase in the workload of both Licensing Committees and the Courts, and more importantly will not achieve the promotion of the licensing objectives.

4. TEMPORARY EVENT NOTICES ("TEN")

4.1 We welcome the proposal that objections can refer to all four licensing objectives and not just to "crime and disorder".

4.2 Our concerns relate in summary to :-

a) Conditions attached to the Premises licence should automatically attach to a TEN at the same premises;

b) the ability to attach additional conditions to TENS;

c) increasing the number of TENs to 21 from 15 and the hours.

Conditions

4.3 Clause 113 of the Bill concerns itself with placing conditions on a Temporary Event Notice (TEN). The current proposal states that where a "relevant person" (the Police and/or the Environmental Health Department) has given an objection notice the Licensing Authority may impose one or more conditions on the notice if;

1) it considers it appropriate for the promotion of the licensing objectives

2) the conditions are also imposed on the premises licence or club premises certificate

3) the conditions would not be inconsistent with the carrying out of the licensable activities under the TEN.

4.4 A prevailing problem throughout the history of the Licensing Act 2003 has been that some operators of existing licensed premises have used Temporary Event Notices to extend hours and override the conditions which have often been placed on the licence to overcome problems which have occurred. These conditions are specific to individual premises and are placed on licences in order to ensure that the four licensing objectives are promoted. Where the hours or activities are extended, there is even more reason why the existing remaining conditions should be attached to the licence to promote the licensing objectives. This review of the Licensing Act 2003 is welcome and the Royal Borough feels strongly that this opportunity should be taken now to ensure that all existing conditions are automatically attached to any TEN used in premises already licensed under the Act. Additionally, where it is felt appropriate, the Licensing Authority should have the ability to add any other conditions to satisfy the justified concerns of the "relevant person".

4.5 For example, a pub with a closing hour of 11pm licensed only to sell alcohol and with basic conditions on its licence, submits a TEN to extend its hours until 3am and to provide recorded music, via a DJ, and dancing. Such an event has the potential to create significant public nuisance on many residents living in the locality, and an increased risk of crime and/or disorder to take place. The existing conditions on the licence, designed for a traditional pub with no extended hours, music or dancing, would not be sufficient to protect residents and to minimise the risk of crime and/or disorder. In such circumstances it seems logical that the Licensing Authority should have the discretion to apply further, relevant, conditions to cover the TEN in order to allow the event to go ahead should an objection from a "relevant person" be lodged.

4.6 We also feel that if the proposal to include conditions on TENs linked to licensed premises is accepted then there should also be a capability for relevant conditions to be placed on TENs linked to unlicensed premises. As the Bill currently stands if a "relevant person" has concerns with a TEN linked to unlicensed premises an objection can be lodged with the Licensing Authority. The Authority could then only allow the event to go ahead or refuse the TEN. By allowing the Authority to impose conditions the event could continue and the concerns of the "relevant person" could be appeased. There is a need for some flexibility here.

Extending the number of TENS

4.7 Clause 115 proposes to extend both the number of hours allowed for each TEN from 96 hours to 168 hours and the total number of days per year for which TENs can be used from 15 days to 21 days. While we agree that there may be good reason for these extensions to cater for community festivals and similar events in unlicensed premises, we are concerned that they will also allow operators of licensed premises to extend their operating hours and licensable activities to an even greater extent that what is currently allowed. This proposal is of even more concern if the conditions attached to their licences are not automatically attached to any TEN. Currently, TENs extending operating hours in licensed premises have caused numerous instances of disturbance to neighbours. We believe that the current limits of 96 hours and 15 days are adequate for licensed premises but, if this proposal is accepted, there will be even more need for conditions on licences to be carried over to any TEN in operation in licensed premises.  

5. Guidance Changes

5.1 It is said that changes to the Secretary of State’s Guidance will not be part of the statutory provisions in the Bill. We hope that any such changes will be open to consultation with local authorities and responsible authorities before implementation.

6. Awareness of the local community

6.1 We welcome giving greater opportunity to the local community to be part of the licensing process. Some of our residents’ associations feel that the law as it stands is heavily weighted against them. However we would like to see stronger provision in the Bill for applicants to demonstrate an awareness of the local community. This is a statement of good intent but we are unclear as to what this may mean in practice.

January 2011