The Licensing Act 2003: post-legislative scrutiny Contents

Summary

The Licensing Act 2003 revolutionised the law governing the sale of alcohol. It came into force in November 2005 and has therefore been in force for 11 years. In that time hardly a year has gone by without major amendments to the Act, and it is therefore ripe for post-legislative scrutiny.

Alcohol, in moderation, can enhance community cohesion. In excess, it is harmful to the health of the consumer and can damage the community. The state has a duty to ensure that alcohol is sold only at appropriate premises, by those who are alive to their responsibilities to customers and the community alike. For five hundred years the licensing of persons and premises was the task of justices of the peace. Those who devised the new policy in 2000 thought, rightly, that this was not a task for the judiciary but for local administration. If they had looked to see how local authorities regulate the responsible use of land in other situations, they would have seen that the planning system, already well established and usually working efficiently, was well placed to take on this additional task.

Instead the legislation established new licensing committees for each of 350 local authorities. The councillors sitting on these new committees, and the staff assisting them, had no experience of the complex new law they were administering. Our evidence shows that, while most members of licensing committees no doubt attempt to apply the law justly and fairly, too often standards fall short. Many councillors have insufficient training; all should undertake compulsory training. We were told of cases of clear inadequacies in fulfilling their functions, resulting in a haphazard decision-making process.

The planning system has its detractors, but planning committees are well established, with better support from experienced staff. Our main recommendation is that there should be a trial merger of licensing committees with planning committees. To be clear, we are not recommending a merger of licensing law and planning law; we are suggesting that the councillors who sit on planning committees, using the same procedure and practice and with the same support as they already have, should deal with proceedings under the Licensing Act in the same way that they already deal with planning legislation.

Appeals from decisions of licensing committees now go to the same magistrates who, until 2005, dealt with the applications. This not only defies logic; it leads to unsatisfactory results, as many of our witnesses have testified. Planning appeals go to inspectors who have the training for this, and for whom this is a full time job. We recommend that they should hear licensing appeals as well.

Since 2005 there has been a gradual but significant decrease in crime committed by persons under the influence of alcohol. It has been accompanied by amending legislation greatly increasing the powers of police: among them closure powers, and powers of summary and expedited review. We do not dispute that in some cases police will need those powers, but they must be accompanied by appropriate safeguards when the livelihood of the licensee is at risk. There is already case law showing that the police powers are not as far-reaching as they think. The police should not exceed their powers, and magistrates must be given better supervision of the exercise of those powers.

Another major change has been in the proportion of sales by the off-trade. In 1994, 58% of alcohol was sold by the on-trade and 42% by the off-trade. By 2005, when the Act came into force, the position was reversed, and today 70% of alcohol is sold through off-licences and supermarkets. Their lower overheads, and the volumes that they sell, mean that supermarkets can sell high strength alcohol at very low prices, and this is seen as one of the causes of the worst anti-social behaviour and disorder. We believe that voluntary responsibility deals and local schemes do not do enough to tackle the problem, but the introduction of blanket bans across a whole local authority area is not the answer. Scotland has introduced a range of more sophisticated measures aimed at how the off-trade sells alcohol, and we believe these should be followed in England and Wales.

The later opening hours introduced by the Act, including the possibility of 24-hour opening, have led to a thriving night-time economy in many cities, and we do not doubt the importance of this. A number of powers have been offered to local authorities to deal with the associated problems. Early Morning Restriction Orders were only the latest initiative, but they are seen as complex and draconian. No local authorities have introduced them, and they should be repealed. Only nine local authorities have introduced Late Night Levies, about which most of our witnesses were equally dismissive. These too should be repealed unless changes which have been made but have yet to be brought into force show that they could be made effective.

The Act still needs to be enforced, and police and local authorities need resources for this. Currently those resources come from an element of the licence fee and from fee multipliers. They impose on the licensee costs greatly in excess of what is needed to process an application, and recent case law throws doubt on whether any such additional costs are lawful under the EU Services Directive. The future of these elements of the fees must be in doubt.

The Act deals with many other important matters, including Temporary Event Notices, live music, and airside and portside sales. On all of these we have made recommendations.

Previous committees of this House conducting scrutiny of statutes have found that the Act in question is basically satisfactory, but that its implementation is not. In the case of the Licensing Act our conclusion is that, while the implementation of the Act leaves a great deal to be desired, to a large extent this is caused by an inadequate statutory framework whose basic flaws have, if anything, been compounded by subsequent piecemeal amendments. A radical comprehensive overhaul is needed, and this is what our recommendations seek to achieve.





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