Joint Committee On Human Rights Minutes of Evidence

Annex E


Response to the Home Office White Paper: Time For Reform Proposals for the Modernisation of Our Licensing Laws

  The Justices' Clerks' Society is pleased to respond to the White Paper on the reform of Licensing laws.

  The Society welcomes the Government's initiative in taking forward the debate on the future of liquor licensing. The Society has long called for the reform of the current legislation which is both dated and cumbersome. Piecemeal changes over the years have resulted in far too many categories of licence and certificate. It is confusing and complicated. The legislation is badly in need of consolidation and reform.

  The government's proposals to remove liquor licensing from the Magistrates' courts however are fundamentally flawed. They show little understanding of modern magisterial licensing practices and the part the courts play in giving assistance to practitioners and residents alike. They also pay scant regard to the effect of the Human Rights legislation which was a major plank in the Government's programme of reform.

  The White Paper's stated aims are to:

    —  Balance the rights and responsibilities of individuals, families and communities and

    —  Reduce unnecessary regulation.

  The Society supports those aims. The reform and simplification of the legislation itself should reduce unnecessary regulation. It will provide a national framework in which local discretion can be exercised.

  Balancing rights and responsibilities is the stock in trade of judicial tribunals, which are able to meet the challenges of Human Rights implementation. Tribunals will apply the law in a proper way, having regard to any guidance which is issued. The grant of a licence is a "determination of an individual's civil rights and obligations". The determining body must therefore be an independent and impartial tribunal ie a magisterial licensing committee supported by a professionally qualified lawyer who can deal with quasi-judicial/administrative matters as appropriate.

  Although local authorities currently license many aspects of life, such as hackney carriages and public entertainment, the control of the sale of alcohol is different in that abuse can often lead to criminal activity, whether by means of public disorder or violence.

  A local authority committee is by its very nature a political body making political decisions. It is accountable to its electorate and as such can be properly lobbied by the voters—local residents. It is not accountable to the trade or the wider public yet it may wish to have regard to the finance provided by trade interests for certain local authority schemes which may on occasion override the concerns of its electors as individuals.

  The White Paper is inconsistent in its approach to residents. It appears to want to make it easier for them to influence the process yet "the three Councillors" will be drawn from wards other than those in which the premises are situated and objections will be allowed on relevant licensing considerations only, whatever that may mean.

  Practically, local authorities will need to prepare for a substantial increase in workload. The Society doubts whether they will be able to cope unless many decisions are made "on the papers". This may transgress the transparency rule contained in Human Rights legislation. The transfer of the jurisdiction will also be a costly and complicated process.

  Magistrates' courts have the necessary infrastructure in place. They are speedy and accessible. Their practices and procedures, having been much improved by the publication of the Good Practice Guide, are familiar, well understood and importantly comply with the open and judicial requirements of the Human Rights legislation.

  The Society asks Government to think again. If a unified licensing authority is needed then the smaller jurisdiction, that of Public Entertainments, should be returned to the Magistrates' courts to link with the larger jurisdiction.

  The Society's specific comments are as follows:


  The Society would argue that the control of late night eating should not require as much rigour as the control of premises which sell alcohol.


Under Age Sales

  The proposed powers are to be applauded. A national proof of age scheme is essential in order that those who work in off-licences are given the necessary protection and that any prosecutions brought are effective. We are aware that such proof is compulsory in other jurisdictions prior to any sale taking place (eg certain States in USA) and believe that if the civil liberties arguments can be overcome such a scheme would provide the best guarantees to prevent under-age sales.

  The Society has concerns over the standard of training provided by licence holders to casual staff who may be employed during busy periods and would like to see conditions on any premises licences that all staff who sell alcohol must have an approved qualification. We note that the British Institute of Inn keeping is shortly to introduce a bar staff qualification and this initiative is welcomed and should not be forgotten under any new regime.

Closure for Public Order

  The Society supports the proposal that an application should be made to a Magistrate who will be versed in Human Rights issues which might apply.


  These changes are supported.

Mail Order

  As the Internet is the fastest growing sales medium, the opportunity should not be lost for regulation now. The Government could consider legislation governing the tax situation arising from the electronic point of origin of the sale.

Garages and Motorway Service Areas

  The Society believes that the proposals neither reflect the current situation nor the demands of the public for off sales at garages. Current legislation allows for sales from garages in limited circumstances and this has been supported by recent case law such as R v Liverpool Crown Court ex parte Goodwin. Artificial divides are created where supermarkets can sell liquor in their main store but not in their neighbouring petrol station. To the general public this seems an artificial distinction, just as it is with the rural petrol station which doubles as the local convenience store. A more liberal and realistic approach is needed here.

  There are equally problems with service stations on Motorways. Why should a passenger in a vehicle, or the 50 passengers in a coach, be deprived of the freedom of choice to buy alcohol? If one of the arguments for the new legislation is to remove confusion for foreign tourists, it must be remembered that there are no such controls on main land Europe.


  The Society generally supports the concept of a personal licence. There are issues however, which need to be addressed.

    —  The rigour of the courses currently on offer and lack of national standards.

    —  The fact that a qualification alone without any experience will lead automatically to a grant.

    —  The lack of a grading structure so that a licence holder is deemed capable of running a very different types of premises eg a small rural inn and a large metropolitan night-club.

    —  The fact that there is no right of a member of the public to challenge the grant or right to renew where the licensee's behaviour may be unacceptable but falls short of the specific list of matters which debar.

    —  The fact that relevant conviction do not include public order offences; any, not just serious violence; possession of class A drugs.

    —  The lack of refresher training.

    —  Absense from trade—three years should trigger re-qualification.

    —  The lack of a transparent hearing for endorsements and the possible infringement of Human Rights legislation especially when a person's livelihood is involved.

    —  The notification of taking up premises where "normally" in our view is too vague and where we are surprised that notice after the event is acceptable even if it is not an emergency situation.


  The broad principles are supported. Issues to be addressed are:

    —  Operating plans may lead to greater inconsistency across licensing authorities.

    —  Notice and objection procedures appear more burdensome than at present.

    —  Local residents are not intimidated by magisterial hearings. Clerks assist unrepresented objectors in presenting their cases. Representatives of local resident groups are often members of the court's licensing forum.

    —  The status of the local ward councillor speaking for the residents in a hearing before fellow committees—bias?

    —  Breaches—fair trial concerns. Who should decide whether an objection has merit? It is only if the decision is made in the affirmative that a hearing will take place. Similarly the arrangements for a review hearing. Can a licensing authority bring proceedings before itself. Should all breaches be heard by an independent tribunal?

    —  Whether late night refreshment premises not supplying alcohol should be included in this regime.

    —  The inconsistency in closure powers expressed here and in relation to off licences. If temporary measures are Human Rights compliant, the power to extend or review such orders may need a fair hearing.

    —  Absolute protection—does this mean indemnity?

    —  The propriety of vesting all powers for temporary and occasional licences in the Police. Timescales are short and there is no mention of appeal. Public Safety merits notice to the Fire Authority.


  The relaxation of permitted hours seems sensible as is the proposal in relation to access to children. The Society points out however that staggered leaving times may not be achievable with rival premises in city centres competing for the same trade. Human Rights legislation means that the licensing authority should not be discriminatory in its approval of operating conditions including hours. In any event there may still be a tendency for the public to migrate from differing premises as they close and Police resources may be inadequate to cope.


  The Society believes that a system of graduated sanctions and penalties is sensible. The proper venue for dealing with sanctions affecting someone's livelihood however, is the Magistrates' court and would obviate the need for a two-tier system. Further, the powers given to the Police for extension of the powers to close without appeal is quite draconian. Clear rules and guidance will be necessary.


  The Society supports the proposals.


  The extension of these powers is welcomed, although it is the successful enforcement of these orders which needs clarity if convictions are to be secured.

  The 1980 Act however, should be repealed in order to strengthen the powers available to the court. Limitations currently can only be linked to a conviction on the premises and only relate to violence. The case of R v Grady (1990) Crim LR 608 has greatly restricted the use of these orders and any new statute must remove these restrictions whilst also removing the administrative difficulties created by these orders.


  The Society does not believe that the reasons in favour of giving all licensing responsibilities to local authorities are as compellable as the White Paper makes out.

Accountability to local residents

  A high sounding ideal but one which a local authority will fail to meet in practice. In order to be a fair tribunal the ward Councillors will have to be seen to be independent, balancing the rights of those who work in the industry and those applicants who bring employment into the area as against the rights of the residents of the other wards in the area. Councillors cannot be seen to have a policy favourable to residents. That would be prejudging the application. The question must also be asked of how the council will deal with the licensing of its own premises, or those which neighbour its premises?


  The fundamental question here is of lobbying not of being intimidated by court proceedings. Magistrates sit in licensing committees, which although normally held in a courtroom are largely informal sessions. Resident objectors are assisted by the lawyer clerking the Magistrates that day and are also assisted by office staff in making their application. Residents (or anyone else for that matter) cannot lobby the Magistrates because of their judicial independence. If the government thinks it right and proper for councillors to be lobbied why is it then necessary for the Councillor representing the ward in which the premises is situated to refrain from taking part in the decision? That is not accountability.

Crime and Disorder

  Local authorities may have a statutory role in crime prevention but it is the Magistrates who day after day, see the effects of crime and disorder and alcohol crime in particular.

  The White Paper is also concerned with the consistency of decision-making in Magistrates' Courts. It is always difficult to reconcile National guidance with local discretion. Government guidance, even when account must be taken of it by statute, is not a panacea. Lawyers will be able to find exceptions to the rule.

  The idea that licensing is not a judicial function does not bear scrutiny. Balancing competing interests necessitates the hearing of evidence or representation, judging the merits and making a decision which will stand up to appeal. It is most definitely a judicial function. Magistrates are trained to perform this function and are advised by skilled lawyers with many years of Licensing experience. It is interesting to note that the Lord Chancellor's Department has just published guidance that a local authority Councillor who is also a Justice of the Peace should not sit on a liquor licensing committee because of the issues which may be raised under the Human Rights legislation on bias.

  It is our view that the effect of Human Rights legislation has been seriously underestimated.

  It is assumed that applications without notification of objection would be dealt with by office staff without public transparency. Contentious matters would be dealt with in committees which would have to organise themselves to meet frequently and allow for ward councillors removal where objections were raised with regard to promises in their area. We assume that the ward Councillor could not then speak for local residents, as is sometimes the case in Magistrates' Courts. We also query how Councillors will deal with applications from those in competition with council leisure facilities and civic centres.


  This section mentions nothing about fair procedures at the initial hearing expressed in paragraph 128. Regulations will be brought into effect but the local authority culture may be more difficult to change. There is much evidence of a poor track record so far as fair proceedings are concerned.

  There is no reason to include lay justices experienced in local knowledge in a tribunal which is going to deal with questions of law only. Having said that, there must be a system of appeal on the merits of the case. Points of law arising therefrom can be dealt with by means of case stated or judicial review.

  If licensing remains with the Magistrates' Courts, appeals should lie to the Crown Court. If Licensing is transferred to the local authority, appeals should be to the Magistrates' Court.


  The Society agrees that fees are not currently set at proper levels. It must be noted that apart from an increase in fees, there will be the huge cost of transfer of a large jurisdiction to a smaller one. The effects of the TUPE provisions also need to be addressed.


  The Society is of the opinion that it would be more just and cost effective to retain Liquor Licensing in the Magistrates' Courts.

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