The Licensing Act 2003: post-legislative scrutiny Contents

Chapter 1: Introduction

Constitution and Terms of Reference of the Committee

1.The Vagabonds and Beggars Act 1494, an Act of the 5th Parliament of Henry VII, created the right of Justices of the Peace to control the sale of alcohol.1 This practice lasted over 500 years, until the Licensing Act 2003 transferred this duty to local authorities, acting through licensing committees. The Act2 made many other seminal changes. Among the most important, it changed the criteria against which licences would be granted to the four licensing objectives; it created the dual system of personal and premises licences; it liberalised the hours during which alcohol could be sold; and it did away with the need for the temporary licensing of occasional events.

2.This change did not happen overnight. As we explain in more detail in the following chapter, it took seven and a half years from the first announcement of a wholesale reform of licensing law before the Act came fully into force on 24 November 2005.

3.It was suggested to the House of Lords Liaison Committee that the Act, which had been in force 10 years, would make a fruitful topic for post-legislative scrutiny, and in March 2016 the Committee agreed.3 On 25 May 2016 the House appointed us as a Committee “to consider and report on the Licensing Act 2003”.4

4.The timing is important. When the House of Lords Constitution Committee recommended in 20045 that Government departments should carry out post-legislative scrutiny of all significant primary legislation, other than Finance Acts, they suggested that this should take place three years after the entry into force of the Act. In their response (in March 2008, some four years later) the Government undertook to provide a memorandum between three and five years after Royal Assent.6 Also in March 2008 the Department for Culture, Media and Sport7 provided an evaluation of the Act8 which formed the basis for scrutiny by the Commons Culture, Media and Sport Committee. Their brief report was published in May 2009,9 but based on evidence taken in October and November 2008 when the Act had been in force for less than three years. However no Committee of this House has carried out post-legislative scrutiny of an Act which has been in force for less than five years; most have been in force longer, and for an Act which made such major changes, we think that the 10 years which had elapsed since its entry into force provide a basis for a fuller and more rational examination.

5.The task of a post-legislative scrutiny Committee is not confined to the Act which is the subject of the scrutiny. Such a Committee invariably also considers related legislation (both primary and secondary), and the implementation of the legislation. In the case of the Licensing Act there is also a great deal of important guidance involved, both statutory and non-statutory.

6.The Liaison Committee suggested that policy aspects which this Committee could consider might include:

As will be clear from this report, we have seen it as our task to consider all these matters, and many more.

The devolved administrations

7.The Act applies only to England and Wales. Under the Government of Wales Act 2006,10 local government is a devolved matter, but “Licensing of sale and supply of alcohol, provision of entertainment and late night refreshment” is an exception to this. The Wales Act 2017 proceeds, as in Scotland, on the basis that all is devolved unless expressly reserved; and one matter to be reserved is “the sale and supply of alcohol”11—not just licensing.12 It seems that the words “licensing of” have been deliberately omitted, since they have been retained in the reserved matter “Licensing of (a) the provision of entertainment, and (b) late night refreshment”.13 It follows that in Wales, as in England, licensing of the sale and supply of alcohol, of the provision of entertainment and of late night refreshment, are, and will continue to be, matters for the Westminster Government and Parliament.

8.In Scotland licensing is a devolved matter, governed by the Licensing (Scotland) Act 2005, as amended in particular by the Criminal Justice and Licensing (Scotland) Act 2010, the Alcohol etc. (Scotland) Act 2010, and the Alcohol (Minimum Pricing) (Scotland) Act 2012. Applications for licences are made to licensing boards of each council (or of each licensing division of the council). In Northern Ireland the current licensing law is the Licensing (Northern Ireland) Order 199614 under which applications for licences are made to a county court. Although our recommendations relate only to England and Wales, we hope that Scottish and Northern Irish Ministers may nevertheless find them useful.

Our working methods

9.We began by inviting the Home Office to prepare a formal memorandum for post-legislative scrutiny of the Act, which they published in June 2016.15 Paragraph 2 states that the memorandum “is intended to provide Parliament with: an update on developments since the LA2003 was introduced [sic] in 2005; and the most recent assessment of how the LA2003 has operated since commencement, relative to objectives and benchmarks”.

10.We issued a call for evidence on 30 June 2016,16 and in response we received and accepted as evidence 175 submissions. They are published on our website. We heard oral evidence from 65 witnesses, and from some of them we received supplementary written evidence. Some who had already sent us written evidence would have liked to expand on their views in oral evidence; we were sorry that the constraints of time did not always allow this. The witnesses are listed in Appendix 2. To all of them we are most grateful. Their evidence was invaluable, and forms the basis of our work.

11.On 15 September 2016 five members of the Committee visited Southwark Borough Council. We attended a meeting of the licensing sub-committee and observed the proceedings, and subsequently met Councillor Renata Hamvas, the Chair of the Licensing Committee, and licensing officers for discussion of the licensing process as operated by Southwark Borough Council. We are most grateful to them for their time. A note of the visit is at Appendix 4.

Acknowledgements

12.During the course of our inquiry we have been fortunate to have as our specialist adviser Sarah Clover. She is a barrister whose encyclopaedic knowledge of licensing, planning and regulatory law has been invaluable to us.17 We are most grateful to her for her exceptional contribution to our work.

The next steps

13.While our inquiry was progressing, the Bill for the Policing and Crime Act 2017, which makes substantial amendments to the Licensing Act, was passing through Parliament. Some of these amendments related to matters we were considering. Ministers have undertaken not to bring these provisions into force until they have considered this report and responded to it.18

14.Sessional committees, whose appointment continues from one session to the next, can follow up their reports with subsequent reports analysing the Government’s response, and can summon ministers to give evidence to explain their action or inaction. Committees like ours, set up to report to the House on a single issue, cease to exist when they have agreed their report, and in the past have been able to rely only on debates and questions in the House to follow up their reports. However the Liaison Committee now follows up the recommendations of ad hoc committees; we hope that they will follow up our recommendations where necessary.


1 “And that it be laufull to ij of the Justices of the peas whereof oon shalbe of the Quo[rum] w’in their auctorite to rejecte and put awey comen ale selling in Tounes and places where they shall thinke convenyent, and to take suertie of the keps of ale houses of their gode behayving by the discrecion of the seid Justices, and in the same to be avysed and aggreed at the tyme of their Sessions.” (11 Henry VII c.2; Statutes of the Realm, vol II, p.569) Although the date of the Act is always given as 1494, it was enacted by the 5th Parliament of Henry VII which did not meet until 14 October 1495.

2 In this report, references to the “Licensing Act”, “the 2003 Act”, or simply “the Act” are references to the Licensing Act 2003, unless the context otherwise requires. Home Office documents frequently refer to “LA2003”.

3 Liaison Committee, New investigative committee activity (3rd Report, Session 2015–16, HL Paper 113) paragraphs 15-19

4 The membership of the Committee is set out in Appendix 1.

5 Constitution Committee, Parliament and the Legislative Process (14th Report, Session 2003–04, HL Paper 173-I)

6 Office of the Leader of the House of Commons, Post-legislative scrutiny: The Government’s Approach, Cm 7320, March 2008, Appendix, paragraph 16: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/228516/7320.pdf [accessed 10 March 2017]

7 Although the Home Office is now the responsible department, and was when the original decision was made in 1998 and the White Paper was issued in 2000, between 2001 and 2010 the responsibility was that of DCMS. DCMS remains responsible for entertainment licensing.

8 DCMS, Evaluation of the impact of the Licensing Act 2003 (March 2008): http://webarchive.nationalarchives.gov.uk/20100512144753/http:/www.culture.gov.uk/images/publications/Licensingevaluation.pdf [accessed 10 March 2017] This was in fact the product of an undertaking given by the Secretary of State when the first Guidance under section 182 of the Act was issued, and pre-dated the practice of issuing formal post-legislative memoranda.

9 Culture, Media and Sport Committee, The Licensing Act 2003 (Sixth Report, Session 2008–09, HC 492)

10 Section 107 and Schedule 7, exception to matter 12.

11 Paragraph 56 of Schedule 7A to the Government of Wales Act 2006, to be inserted in the 2006 Act by the Wales Act 2017, Schedule 1, in substitution for Schedule 7 to the 2006 Act.

12 So that, for example, the setting of a minimum unit price for alcohol in Wales, which under the current legislation is arguably for the devolved administration (as indeed it has argued), will unarguably be a matter for the United Kingdom Government. See further paragraphs 68–87.

13 Paragraph 55 of Schedule 7A to the Government of Wales Act 2006, to be inserted in the 2006 Act by the Wales Act 2017, Schedule 1, in substitution for Schedule 7 to the 2006 Act.

14 Licensing (Northern Ireland) Order 1996 (SI 1996/3158) (N.I. 22)

15 Home Office, Memorandum to the House of Lords Select Committee: Post-legislative Scrutiny of the Licensing Act 2003, Cm 9278, June 2016: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/530664/Cm_9278_-_Post-Legislative_Scrutiny_-_Licensing_Act_2003.pdf [accessed 10 March 2017]

16 See Appendix 3.

17 As a barrister practising in these fields, she has acted as Counsel in a number of the cases to which we refer in this report. Her interests are listed in Appendix 1.

18 See further paragraphs 500–501.




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