The Licensing Act 2003: post-legislative scrutiny Contents

Chapter 5: Immediate Changes

Introduction

207.A trial of integration of licensing committees with planning committees will need primary legislation, as will changing the appeal system so that appeals lie to planning inspectors rather than magistrates’ courts. We accept that those recommendations can only be implemented in a matter of years rather than months. There are many features of the existing system that can and must be put right and that cannot wait so long. Fortunately they can all be remedied by amendments to secondary legislation or to the Guidance, or simply by changes of practice. In this chapter we deal with those issues.

Licensing committees

208.Licensing committees will continue to decide licensing applications and all the other issues they currently deal with for a considerable time. There is much that can be done immediately to improve the quality of those sitting on those committees.

The Councillors sitting on a sub-committee

209.The responsibility for a sub-committee is ultimately that of the local authority, and thereafter of the councillor appointed as chair of the licensing committee. It is for that councillor to ensure that the sorts of matters we have described in earlier chapters do not occur. It should never be possible for a councillor to chair a sub-committee when the only representation is from his wife. If, as Mr Gouriet told us,197 there are councillors who reach a decision knowing it to be wrong because they could not face certain people if they decided otherwise, the chair will know who those councillors are, and should not be afraid to refuse to let them sit. Councillors should always put first the interests of those they serve.

210.The White Paper issued in April 2000 which led to the creation of licensing committees stated:198 “It will be important to establish in statute which councillors would be automatically disqualified from participating.” We agree, but the Act contains no provision of this kind.199 The White Paper continues: “In addition, we think it right that any councillor representing the ward in which premises that are the subject of proceedings are situated should also not participate. This will avoid the possibility of particular individuals coming under unreasonable pressure, for example, close to elections.” Again we agree. However not only does no provision seem to have been made for this in the Act or in secondary legislation, plainly councillors do sometimes participate in proceedings affecting premises in their own wards. John Miley, the Chair of the National Association of Licensing and Enforcement Officers (NALEO), told us:

“We try very hard to ensure that the panel members, and particularly the ward members, are not unduly influenced in the process. It is a very difficult balancing act, because that is sometimes difficult to get … We pick the panel carefully. We only have a pool of 15 members to choose from to hear the case, so we find out who is available first and try to avoid any clashes with the borders of the wards. Sometimes it cannot be helped, unfortunately.”200

211.There is nothing in the Act, or in the Licensing Act 2003 (Hearings) Regulations 2005201 (the Hearings Regulations), or in the section 182 Guidance giving any indication of the circumstances in which councillors should decline to sit on a sub-committee when they have too close an interest in the outcome of the hearing, either personally or as representatives of particular wards; nor is the conduct of members of sub-committees during hearings mentioned. Plainly ministers assumed that councillors could be relied on to disqualify themselves from sitting when necessary, and to conduct themselves appropriately; and plainly ministers were not always correct in that assumption. We believe the authority of the chair of the licensing committee would be reinforced if the Guidance were amended to make it clear that oversight of the conduct of sub-committee hearings is the responsibility of the chair of each licensing committee, and that where necessary the chair can give rulings on this generally or to individual councillors. The statutory authority of the Guidance should reinforce the importance of this.

212.Parties appealing against a sub-committee’s ruling do not usually raise procedural defects in support of their appeals, but they are entitled to do so, and may do so if costs are an issue, as they may be if, for example, the appeal was made necessary by poor reasoning of the sub-committee. We believe the Guidance should spell this out. No one should have to spend money on an appeal made necessary solely by defects at the sub-committee stage.

213.The section 182 Guidance should be amended to make clear the responsibility of the chair of a licensing committee for enforcing standards of conduct of members of sub-committees, including deciding where necessary whether individual councillors should be disqualified from sitting, either in particular cases or at all.

Training

214.We have already set out in Chapter 3 the concerns of some of our witnesses about the inadequacy of training of councillors who sit on licensing committees.202 The Association of Licensed Multiple Retailers (ALMR) told us: “It would help if there was national training for councillors sitting on licensing committees some of whom are more keen to use the decision making process to simply make political points.”203

215.Councillor Peter Richards told us: “While we have compulsory training, I am sometimes concerned that it is not sufficient. We have three hours of compulsory training per year for our licensing members. As the regulatory chairman, I encourage all our members to undertake further training so that they are fully informed and can make sound decisions, which they do, but I find that sometimes we may be lacking or the councillors may be lacking. It is important that a minimum requirement for training is introduced.”204

216.It seems to us that three hours of compulsory training each year might be just about adequate to enable a councillor with experience of licensing matters who habitually sits on licensing committees to keep up with the frequent developments in licensing law. Plainly much longer than three hours of training is essential before an inexperienced councillor can be allowed to sit on a sub-committee for the first time. How much training would be adequate, and what form it should take, are not matters on which we have received any evidence or on which we are well qualified to advise.

217.One problem with laying down strict rules for minimum training is the great variation in the numbers of hearings. In the year to 31 March 2016, 51 of the 350 local authorities had no premises licence/club premises certificate applications that went to a committee hearing, and 310 local authorities had no personal licence applications that went to a committee hearing. In 154 local authorities no review was completed.205 Where a significant proportion of licensing committees hold no hearings at all from one end of the year to the next, it is scarcely surprising that the expertise among councillors on those committees is lacking. But it would also be a waste of resources to require all councillors who might potentially have to sit on a sub-committee to be fully trained despite the fact that only a few of them might have to sit. This is a matter which must be looked at in detail by those concerned.

218.We recommend that the Home Office discuss with the Local Government Association, licensing solicitors and other stakeholders the length and form of the minimum training a councillor should receive before first being allowed to sit as a member of a sub-committee, and the length, form and frequency of refresher training.

219.We agree with Professor Light that “appropriate training for those involved in the process—councillors, officers, legal advisors—is essential and should be compulsory before members of the licensing committee sit on a hearing.”206 The Greater Manchester Combined Authority told us that: “In Scotland, a councillor who is a member of a Licensing Board must not take part in any proceedings of the Board until the member has produced the evidence required that they have received approved mandatory training.” 207 They suggested that this requirement should be considered in England and Wales. We agree that this would be sensible.

220.The section 182 Guidance should be amended to introduce a requirement that a councillor who is a member of a licensing committee must not take part in any proceedings of the committee or a sub-committee until they have received training to the standard set out in the Guidance.

Licensing hearings

221.Regulation 9 of the Hearings Regulations allows committees to dispense with hearings where all parties have reached agreement following mediation. If, despite the agreement of the parties, the sub-committee still insist on holding a hearing, it is for them to justify the need for this.

222.We recommend that where there are no longer any matters in dispute between the parties, a sub-committee which believes that a hearing should nevertheless be held should provide the parties with reasons in writing.

223.When sub-committees do need to meet, the first issue is the quorum. Section 9(1) of the Act allows licensing committees to establish sub-committees “consisting of three members of the committee”, which suggests that three is the quorum. However section 9(2) goes on to say that Regulations may make provision about the quorum for sub-committee meetings, suggesting the possibility of a figure other than three. On this the Hearings Regulations are silent. Professor Light wrote: “Yet two members sometimes sit (if they disagree the chair’s casting vote effectively means the decision is made by one person). At a recent hearing there were five members sitting on the sub-committee.”208 This seems remarkable, given that the Act states that sub-committees consist of three members.

224.The only statutory guidance on the conduct of hearings is brief, and is contained in regulations 21–24 of the Hearings Regulations, set out in Box 4.

Box 4: Extract from the Licensing Act 2003 (Hearings) Regulations 2005, SI 2005/44

21. Subject to the provisions of these Regulations, the authority shall determine the procedure to be followed at the hearing.

22. At the beginning of the hearing, the authority shall explain to the parties the procedure which it proposes to follow at the hearing and shall consider any request made by a party under regulation 8(2) for permission for another person to appear at the hearing, such permission shall not be unreasonably withheld.

23. A hearing shall take the form of a discussion led by the authority and cross-examination shall not be permitted unless the authority considers that cross-examination is required for it to consider the representations, application or notice as the case may require.

24. The authority must allow the parties an equal maximum period of time in which to exercise their rights provided for in regulation 16.

Source: Licensing Act 2003 (Hearings) Regulations 2005 (SI 2005/44)

225.These Regulations appear to leave a great deal to the discretion of the sub-committee—perhaps too much. But it seems that in practice hearings seldom take this course. Gerald Gouriet QC explained:

“Home Office Guidance advises that licence hearings should take the form of ‘a discussion led by the chair’. I have never attended a single licensing hearing whose procedure was remotely similar to that description. Licensing committees tend to follow the somewhat ritualistic procedures of a local authority meeting—minutes read and approved, nomination for chair, declarations of interest, etc. A rigid adherence to the printed Agenda, for example, strongly militates against “discussion”. I have found that any attempt to correct a fundamental mistake, because of which a hearing will proceed tangentially off-course, can be silenced until the precise moment in the agenda arrives for that party to be permitted to speak. I have seen 1½ to 2 hours of a hearing unnecessarily proceed late into the night, because neither I nor the applicant nor the barrister appearing for the police were allowed, despite several attempts on our part, to point out that the 30 conditions under detailed discussion between committee members and their legal officer were agreed and in any event not relevant to the review in hand.”209

226.A great deal plainly depends on the quality of the chairmanship. There needs to be an appropriate degree of formality, and consistency about basic matters such as which party should address the Committee first; but there also needs to be flexibility to avoid the results of rigid adherence to self-imposed rules, as described by Mr Gouriet. Some latitude must be allowed to those who are unused to appearing at hearings.

227.The setting of time limits was a particular bone of contention for Professor Light, who gave us an example: “at a recent hearing parties were allowed 15 minutes to give evidence and two minutes for a closing statement—for the four objectors this time to be divided between them”.210 Mr Gouriet said, “A committee drumming its fingers on the table and constantly looking up at the clock is not exactly receptive, even to just five minutes of submissions.”211

228.Professor Light thought that:

“The legal advisor is crucial not only to advise the committee on the law but also to steer the committee procedurally and to ensure that matters progress fairly and impartially. For example, a person making representations is required to confine their evidence to matters raised in their written representation (they can of course expand on these issues). It is good practice, often not followed by committees, for the committee chair to refer the hearing to the written representation to ensure that the oral evidence is based on the written representation. Further, it is essential that the chair or legal advisor intervenes if new issues are introduced outside of that contained in the written representation. This should not be left to the applicant/respondent to raise.”212

229.The Hearings Regulations must be amended to state that the quorum of a sub-committee is three.

230.Regulations 21 and 23 of the Hearings Regulations leave everything to the discretion of the committee. They regulate nothing. They should be revoked.

231.The section 182 Guidance should indicate the degree of formality required, the structure of hearings, and the order in which the parties should normally speak. It should make clear that parties must be allowed sufficient time to make their representations.

Licensing appeals

Delay

232.Delay before appeals come to a hearing is a perennial problem, as the London Borough of Hounslow explained:

“An appeal is a de novo hearing and when over a year has elapsed from the date of the committee hearing to the date of appeal, this poses serious problems for licensing authorities. If a decision was taken on review to impose restrictions on a licence and then a full year has elapsed, how could it possibly be appropriate and proportionate for the court to impose the same conditions based on something that happened so long ago? We find ourselves in situations where the decision made by the committee was right at the time of the committee hearing but wrong at the time of the appeal. The local authority could then have costs awarded against them for the sole reason that the court system is so slow.”213

233.The Mayor of London was also concerned about delay:

“… the Act sets out no timescales for appeal, no statutory procedures to follow and no rules about costs (save the general rule that costs are in the discretion of the magistrates’ court). The upshot of that in London is that appeals can take up to 9 months to get on and up to 10 days to decide, creating costs for appellants and authorities alike which are unsustainable. What should be a check and balance in the Act, available for applicants, licensees, residents or responsible authorities, has become the preserve of those with the resource to see it through. The Act and/or subordinate legislation ought to be amended/created to provide set timescales for appeal processes, and to provide procedures for their expeditious and economic disposal.”214

234.We appreciate the problem; delay is a concern not just in the case of licensing appeals, but generally in the court system. A timetable set in subordinate legislation might prioritise licensing appeals, but only at the expense of delays in other magistrates’ court proceedings. Decisions on the order of court hearings must ultimately remain for the court to decide. We hope that sending appeals to planning inspectors may in due course cut down on delays, but in the meantime we see little that can be done.

235.The Mayor was particularly concerned about the consequences of delay where revocation decisions are made on a summary review. There, he told us, the position is that, where suspension has been imposed as an interim step, the premises have to remain closed pending an appeal. “The lapse of time before the appeal is apt to put the licensee wishing to challenge the decision out of business, rendering the appeal futile. In such cases, there ought to be an opportunity for a rapid re-appraisal of the decision at appellate level. This is not currently happening.”215

236.We recommend that where on a summary review a licence is revoked and the livelihood of the licensee is at stake, magistrates’ courts should list appeals for hearing as soon as they are ready.

Stay of decision pending appeal

237.A stay of a decision pending appeal can also cause problems. Where on an application for review a licensing authority orders the revocation of a licence, an appeal will stay the revocation until the appeal is disposed of.216 This process can be abused. Councillor Richards gave us an example where “the review happened just before the festive period, and they appealed so that they could maintain their licence through the festive period and then proceeded to close their premises”.217 Bath City Centre Action Group told us of “an example in Bath of a premises which used the appeal process to resist decisions of the licensing authority, and the planning authority, for 10 years. … None of the substantive appeal issues was upheld and the premises could legally trade in defiance of the local authority’s decisions.”218

238.The Home Office told us that “discussions were held between the Home Office, representatives of the licensed trade, licensing solicitors and local government to look at … whether the Licensing Act 2003 should be amended to bring into effect licensing review decisions immediately. Presently, these do not come into effect until at least 21 days, during which time a person subject to that review decision can make an appeal to a magistrates’ court. While licensing authorities and trade representatives were critical of the length of time appeals can take, there was no appetite to allow such decisions to take effect immediately.”219

Notification of applications

239.The section 182 Guidance requires licensees to display a statutory notice in local newspapers when they apply for an alcohol licence or significant variations to their existing licence. Our question in the call for evidence asking for suggestions for the simplification of procedure produced a number of requests for the abolition of this rule. Poppleston Allen, a large firm of licensing solicitors, wrote:

“The costs are on average between £200–£400 and anecdotally, out of thousands of applications that we have issued since 2005 we only know of one where a representation was made by a resident as a result of seeing the newspaper advertisement rather than word of mouth or the notice affixed in the premises’ window, or on a nearby lamp-post.”220

240.Advertisements in Leeds seem to be even more expensive, as Leeds City Council told us:

“The cost of a newspaper advert has become prohibitively expensive. In Leeds it can cost around £1,000 for an advert in the local newspaper. In order to assist the local businesses, we have found the national daily newspapers to be more affordable and are advising people to obtain quotes from a number of newspapers before placing their order. Removing the requirement to place a newspaper advert would reduce the financial burden on the business, reduce the potential for error and simplify the application process.”

241.In oral evidence Sarah Newton MP said that “the last time that the Home Office consulted on the advertising regime for licences, there was strong support for adverts in local newspapers. I know that applicants for licences consider that a costly burden, but it enables the community to understand what is going on.”221 Subsequently she explained that this consultation was under the previous Government, and that the numbers for and against the requirement to advertise in a local paper were about equal.222

242.Times have changed; our evidence showed virtually no support for newspaper advertisements. We see no need for continuing with this requirement. We recommend that notice of an application should not need to be given by an advertisement in a local paper. Notices should be given predominantly by online notification systems run by the local authority.

243.However the Minister made the valid point that the system must always be accessible to people who prefer not to go online. Local authorities should ensure that blue licensing notices, as for planning applications, should continue to be placed in shop windows and on street lights in prominent positions near the venue which is the subject of the application.

Coordination between the Licensing and Planning Systems

244.We gave in Chapter 3223 an example of the absurdities that can arise when the licensing and planning systems are deliberately kept at arms length, but there were others. It is clear from the evidence we received that there is currently inadequate coordination between licensing and planning. The Bath City Centre Action Group said that “the artificial barriers created by the legislation between planning and licensing should be removed.”224 The Campaign for Real Ale (CAMRA) thought “better coordination should be encouraged between the planning and licensing regimes, including a statement of how the relationship between the two will work within each council’s Licensing Policy.”225 The City of Wolverhampton Council wrote: “Currently, the difference between planning and licensing objectives create a fragmented and confusing system racked with inconsistencies.”226 The NALEO stated: “There needs to be more coherent decision making policy linking planning conditions to licensing applications and decisions. It seems strange that a licence can be granted for more hours that planning permission allows.”

245.In her final supplementary evidence Sarah Newton MP gave examples of where there is already good collaboration between licensing and planning officers:

“Warrington Borough Council has arranged for its Licensing Enforcement Officers to work alongside Planning Enforcement colleagues to enable them to look at discrepancies between licensing and planning decisions, including those between permitted operating hours. Licensing Officers have access to the planning database that allows new licensing applications to be screened against planning information and for any arising issues to be discussed and jointly addressed with the applicants. Licensing and planning officers in the London Borough of Bexley work together to ensure consistency between licensing and planning decisions. For example, the licensing authority advises their planning colleagues of all Temporary Event Notices (TENs) they have received to enable planning officers to identify any potential breaches of existing planning conditions.”227

We welcome this, and would like to see it become the norm in all local authorities.

246.Coordination between the licensing and planning systems can and should begin immediately in all local authorities. The section 182 Guidance should be amended to make clear that a licensing committee, far from ignoring any relevant decision already taken by a planning committee, should take it into account and where appropriate follow it; and vice versa.


197 Q 150 (Gerald Gouriet QC)

198 Home Office, Time for Reform: Proposals for the Modernisation of Our Licensing Laws, Cm 4696, April 2000, paragraph 125.

199 Unlike the Licensing (Scotland) Act 2005: see Schedule 1.

200 Q 60 (John Miley, National Chair, National Association of Licensing and Enforcement Officers)

201 Licensing Act 2003 (Hearings) Regulations 2005 (SI 2005/44)

202 For example, Gill Sherratt (paragraph 106)

203 Written evidence from Association of Licensed Multiple Retailers (LIC0150)

204 Q 27 (Councillor Peter Richards, Chairman of the Licensing and Regulatory Committee, Stratford-on-Avon District Council)

206 Supplementary evidence from Professor Roy Light (LIC0168)

207 Written evidence from Greater Manchester Combined Authority (LIC0103)

208 Supplementary evidence from Professor Roy Light (LIC0168)

209 Written evidence from Gerald Gouriet QC (LIC0056)

210 Supplementary evidence from Professor Roy Light (LIC0168)

211 Written evidence from Gerald Gouriet QC (LIC0056)

212 Supplementary evidence from Professor Roy Light (LIC0168)

213 Written evidence from London Borough of Hounslow (LIC0025)

214 Written evidence from Mayor of London (LIC0173)

215 Written evidence from Mayor of London (LIC0173)

216 Licensing Act 2003, section 52(11)

217 Q 29 (Councillor Peter Richards, Chairman of the Licensing and Regulatory Committee, Stratford-on-Avon District Council)

218 Written evidence from Bath City Centre Action Group (LIC0036)

219 Written evidence from Home Office (LIC0155)

220 Written evidence from Poppleston Allen (LIC0105)

221 Q 225 (Sarah Newton MP, Parliamentary Under-Secretary of State for Vulnerability, Safeguarding and Countering Extremism, Home Office)

222 Supplementary written evidence from Home Office (LIC0175)

223 Paragraph 119

224 Written evidence from Bath City Centre Action Group (LIC0036)

225 Written evidence from CAMRA (LIC0121)

226 Written evidence from City of Wolverhampton Council (LIC0095)

227 Supplementary written evidence from Home Office (LIC0175)




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