The Licensing Act 2003: post-legislative scrutiny Contents

Chapter 6: The Licensing Objectives

247.The Licensing Act 1964 continued the requirement that an applicant for a licence must show that he was a “fit and proper person” to hold a licence. By contrast, under the 2003 Act the default position is that any person may hold a personal licence for any premises. In the case of a premises licence, section 18 of the Act provides that the licensing authority “must grant the licence in accordance with the application …”.228 There are mandatory conditions imposed and other matters to be taken into consideration, but otherwise it is only if representations are made “about the likely effect of the grant of the premises licence on the promotion of the licensing objectives” that the licensing authority, after hearing those representations, may impose further conditions on the grant of the licence, may exclude from its scope some licensing activities, may refuse to specify a person as the designated premises supervisor, or may reject the application altogether.

248.Section 4(1) and (2) of the Act reads:

General duties of licensing authorities

(1) A licensing authority must carry out its functions under this Act (“licensing functions”) with a view to promoting the licensing objectives.

(2) The licensing objectives are—

(a) the prevention of crime and disorder;

(b) public safety;

(c) the prevention of public nuisance; and

(d) the protection of children from harm.”229

249.A comparison with the Scottish Act is instructive. Section 4 of the Licensing (Scotland) Act 2005 has no equivalent to section 4(1) of the 2003 Act, and no reference to “promotion” of the objectives. Section 4(1) of the Scottish Act begins: “For the purposes of this Act the licensing objectives are” followed by a list of the objectives. Section 23 of the Scottish Act provides an exhaustive list of the grounds on which a premises licence may be refused, the most important of which is that “the Licensing Board considers that the granting of the application would be inconsistent with one or more of the licensing objectives”. “Promotion” of the objectives is not mentioned.230 In our view the words “promoting the licensing objectives” are misleading. They suggest that a licensee must take positive steps to achieve the objectives, whereas the intention is simply that the granting of a licence will not (to use the Scottish wording) be “inconsistent with” the prevention of crime and disorder etc.

250.We have received submissions in both written and oral evidence that three further objectives should be added to the four already listed. Our consideration of them is based on our view that the objectives are not a list of matters which it would be desirable to achieve, but simply an exhaustive list of the grounds for refusing an application or imposing conditions. There is therefore no point in including as an objective something which cannot be related back to particular premises.

Health and well-being

251.Another important difference between section 4(1) of the Scottish Act and section 4(2) of the 2003 Act is that the Scottish Act has an additional objective: “protecting and improving public health”. In our call for evidence we asked whether the existing four licensing objectives were the right ones, and we specifically sought views on whether “the protection of health and wellbeing” should be an additional objective.

252.During the passage of the Policing and Crime Bill through the House, Lord Brooke of Alverthorpe, a member of this Committee, tabled an amendment to insert into section 4(2) of the Act an objective “to promote the health and wellbeing of the locality and local area”.231 The Government argued against the amendment, as indeed it had against a similar amendment when the Bill was in Committee in the House of Commons.232 The amendment was withdrawn, and the Bill was therefore not amended.

Evidence in support of a public health objective

253.The suggestion that there should be a public health objective, however phrased, generated a large volume of evidence from a wide variety of sources. The British Medical Association thought this was “vital given that the main drivers of alcohol consumption are affordability and availability: the cheaper alcohol is to buy, and the easier it is to access, the more likely consumers are to purchase and drink it to excess.”233 Alcohol Focus Scotland contended that “without the inclusion of a health objective, [the four existing objectives] do not go nearly far enough to ensure that licensing decisions promote the best interests of local people and communities, or that they are informed by evidence of the impact of alcohol on the health of those communities.”234

254.Alcohol Concern wrote that “the [Local Government Association] has found that 9 out of 10 Directors of Public Health report that there is demand for a health objective.”235 This figure is misleading. The LGA themselves referred us to the research they carried out, on which Alcohol Concern rely. Although the LGA sought the views of all 130 Directors of Public Health in England, only 80 of them (62%) replied. It is 89% of these who said that, within their local councils, there was support for a public health objective. The LGA report states:

“Respondents identified that—without this objective—objections were often unenforceable and evidence and insight from public health was not heard (despite local health data being used effectively by Public Health). Respondents highlighted that, given the existing evidence-base around impacts on health and alcohol availability, there is a clear argument for increasing Health’s involvement in licensing decisions and making health a fifth objective of the Act.”236

255.Dr Jeanelle de Gruchy, Vice-President, Association of Directors of Public Health, thought that a fifth health objective was “hugely important”, and added: “At the moment, directors of public health as responsible authorities have to use the other objectives, and try to weave arguments on meeting the other objectives, whether it is crime, nuisance or harm to children, when actually what we are very concerned about is harm to health, yet we do not have that objective to argue the case.” But asked how it would work in practice, she replied: “It will enable us to gather data to look at how we can argue the point that granting licences may impact negatively on the health of residents.”237 This might be a side-effect, but she did not suggest how it might relate to an individual licence application.

Evidence against a public health objective

256.Opposition to the addition of a public health objective has come from those who do not see how it could operate in practice. They emphasised the difficulty of associating public health considerations with individual premises and local decision-making. The Association of Convenience Stores submitted that “It would be incredibly challenging for the licensing authority to identify whether an individual premises’ licence or their licensing conditions promote health as a licensing objective. Using local, relevant evidence to consider an individual premises’ licence application or licensing conditions is fundamental to the Licensing Act 2003, and it is not possible to do this in relation to health and wellbeing.”238

257.The Mayor of London, again through Philip Kolvin QC, his Night Time Commissioner, wrote:

“While the health effects of alcohol are a matter of concern for society as whole, its incorporation as a licensing objective would give rise to practical difficulties in local decision-making. In what is a mature and highly evolved licensed economy, it would be extremely difficult to demonstrate that one further licensed premises, or the earlier or later opening of one venue, would have an identifiable, let alone measurable, effect on the health of the local population. The pursuit of important health objectives should therefore lie in other policy measures.”239

258.A number of witnesses commented on the difficulties the public health objective was causing in Scotland. CAMRA quoted from the report of the Scottish Centre for Social Research in 2013 which found that “one of the most consistent findings throughout the three years of the evaluation was that the public health objective was viewed as being especially problematical.” Pinsent Masons, solicitors, said: “The experience of our licensing specialists in Scotland is that it is very difficult to achieve on a premises by premises basis. For example, it results in general objections from NHS representatives which do not relate (indeed cannot) relate to the premises which are the subject of the application.”240

259.In supplementary evidence John Gaunt and Partners, who operate on both sides of the border, gave us a lengthy analysis of how the health objective operates in Scotland, and explained: “Health data is usually broken down from Intermediate Data Zones (IDZs) and at a national level … This evidence when presented is not easily referenced by Board to the application before them; evidence in respect of the other licensing objectives can be much more premises centric.”241

Our conclusion

260.All Governments should adopt policies attempting to reduce the harmful consumption of alcohol. The Government has done so for England and Wales, the Scottish Government for Scotland, and in later chapters we note steps which could be taken within the licensing system to take forward this policy. But putting ourselves in the position of a licensing authority having to decide whether to refuse an application, or to impose conditions, we do not believe that the promotion of public health is capable of relating to specific premises and particular licensing applications.

261.Promotion of health and well-being is a necessary and desirable objective for an alcohol strategy, but we accept that it is not appropriate as a licensing objective.

Enjoyment of licensable activities

262.Another suggestion in our call for evidence was: “Should the policies of licensing authorities do more to facilitate the enjoyment by the public of all licensable activities? Should access to and enjoyment of licensable activities by the public, including community activities, be an additional licensing objective?” We inserted this question because it was a point already raised, and not because we expected to receive much evidence in support. Nor did we. A few witnesses thought Statements of Licensing Policy should recognise the importance of this, and some do.242 But many argued against the addition of an objective on these lines, and virtually none favoured it.

263.The Mayor of London stated:

“The Mayor would support a system that allowed social and cultural benefit to be considered when councillors are making a licensing decision. However, the inclusion of such a licensing objective risks damaging the fundamental structure of the Act and causing practical difficulties in individual cases. In particular, the licensing objectives do not currently require an evaluation to be made of cultural value. A business is currently entitled to a licence providing it will not cause harm, regardless of its cultural value. If, however, cultural value is added as a licensing objective, the lack of cultural value may become a reason to refuse a licence.”243 Westminster City Council pointed out in their written evidence that the addition of positive objectives for the “promotion of economic or cultural activities” would risk leading to “more legal challenges and increased cost of decision making to the taxpayer, as a result of tension between newly competing objectives.”244

264.During the Committee stage of the Policing and Crime Bill an amendment was moved by Lord Clement-Jones to insert “the promotion of cultural activity and inclusion” as a new licensing objective.245 The Government opposed the amendment and he withdrew it, but on Report he moved to insert as an objective “the provision of social or cultural activities”. Again, the Government opposed the amendment and it was withdrawn.246

265.We see no way in which a failure to promote enjoyment or culture could be measured, let alone ascribed to particular premises for which a licence was being sought. We do not recommend that “enjoyment of licensable activities”, “the provision of social or cultural activities”, or anything similar, should be added as a licensing objective.

Access to licensed premises for disabled people

266.In the 2015–16 Session of Parliament this House set up a Committee to carry out post-legislative scrutiny of the impact of the Equality Act 2010 on disabled people. Premises to which the public have access are required to make “reasonable adjustments” to enable disabled people to access the premises and, once they have accessed them, to enjoy them as fully as anyone, which might for example entail the installation of disabled toilets. A recurrent theme before that Committee was that when disabled people have difficulty accessing premises, or have problems within the premises, which could be cured by reasonable adjustments but are not, it is left to the disabled person to take action and ultimately to bring proceedings to obtain from the county court an order requiring the reasonable adjustments to be made.

267.This remedy is adequate in theory, but in practice disabled people are often less well placed than others to bring such proceedings which, for any private individual, are daunting and can be costly. Disabled litigants like Doug Paulley, who has successfully won his appeal to the Supreme Court in his action against First Group about access to a bus, are an exception.247 The Select Committee on the Equality Act 2010 and Disability therefore looked for other ways in which a failure to carry out reasonable adjustments might be rectified without putting the burden on the disabled person.

268.One way suggested to them by Marie-Claire Frankie, a licensing solicitor at Sheffield, speaking on behalf of the National Association of Licensing and Enforcement Officers, was that: “If there was an additional objective relating to equality, there would be a mechanism to get it [disabled access] before a [licensing] committee.”248 A failure to carry out reasonable adjustments is a failure to comply with the Equality Act, and the insertion of this objective would enable a licensing authority to refuse a premises licence until the adjustments were carried out, or to grant it subject to the condition that they should be carried out. The Committee accepted this suggestion, and recommended that the Government should add to the Act a licensing objective to this effect.249 They did not anticipate that it would often be necessary for a licensing committee to rely on this provision; just the threat that this could be done would usually encourage the applicant to carry out the adjustments.

269.Unlike the two other proposed objectives we have considered, there would be no difficulty about relating this objective to particular premises, so that there could be no objection to it on that ground. We did not ask in our call for evidence whether there should be an additional objective relating to disability, but in oral evidence we sought the views of some of our witnesses. Many seemed to find it difficult to understand the reason for what was proposed. They thought that the insertion of this objective would duplicate the Equality Act 2010 which, they pointed out, already applied to such licensees.250 The addition of such an objective, far from duplicating the Equality Act, would be a way of compelling licensees to comply with it.

270.At the Committee stage of the Policing and Crime Bill Baroness Deech, the Chairman of the Select Committee on the Equality Act 2010 and Disability, together with other members of that Committee, moved an amendment to add as a licensing objective “compliance with the Equality Act 2010”. In the debate it was pointed out that logically it would be equally appropriate to use the Licensing Act to ensure compliance with other legislation.251 Accordingly Baroness Deech withdrew her amendment, and tabled on Report the addition of the narrower objective “securing accessibility for disabled persons”. This too was opposed by the Government on the ground that:

“this amendment is seeking to skew the regulatory regime in the 2003 Act and use it for a purpose for which it was never intended. The amendment potentially puts us on to a slippery slope. If we can use the 2003 Act to enforce the obligations placed on businesses by other enactments, where does this stop? Are licensing authorities then to be charged with, for example, ensuring that pubs and restaurants are paying the minimum wage or complying with other aspects of employment law?”

Baroness Deech put this to a vote, but the amendment was lost by 177 votes to 135.252

271.We wholly support the purpose of this amendment. Anything which can be done to make it easier for disabled people to enjoy fully the amenities most of us take for granted is to be welcomed. But we reluctantly accept the force of the Government’s argument. It would stretch the Act too far to allow it to be used as a mechanism for general enforcement of legislation which applies to licensed premises.

272.We do not recommend adding as a licensing objective “compliance with the Equality Act 2010” or “securing accessibility for disabled persons”.

Disabled access: an alternative

273.For an alternative way of helping disabled people to access licensed premises, we turn again to Scottish law. Section 20(2) of the Licensing (Scotland) Act 2005 sets out a list of the documents which must accompany an application for a premises licence. Section 179 of the Criminal Justice and Licensing (Scotland) Act 2010 adds to that list “a disabled access and facilities statement.” This is a statement which must contain information about:

“(a) provision made for access to the subject premises by disabled persons,

(b) facilities provided on the subject premises for use by disabled persons, and

(c) any other provision made on or in connection with the subject premises for disabled persons.”

274.Without a disabled access and facilities statement an application would be incomplete and so rejected. There is no express provision as to what the position would be if the statement was included but unsatisfactory, but presumably it would be possible at least to attach conditions to the licence. Section 179 of the 2010 Act has not however been brought into force253 so these provisions do not yet apply.

275.We asked Sarah Newton MP whether a similar provision should be introduced in England and Wales. She replied:

“I understand that when this was debated in the House of Lords the approach taken was to seek a voluntary agreement with the industry. That was felt to be a more sustainable and effective way forward. I have followed it up. I have noticed that new codes have come into effect and that licensed premises have taken this very much on board as something that they want and need to do. That is the best approach …”254

We find this a remarkably complacent approach. The provision on reasonable adjustments, now in the Equality Act 2010, was introduced by the Disability Discrimination Act 1995. Any premises which have yet to comply with that provision are unlikely to be influenced by a voluntary code.

276.The minister added: “… if new measures are introduced in Scotland, we will see how those go. If there is a review of them and there is good evidence that they were useful in making progress, of course we will consider them.” This is the same approach as with minimum unit pricing: a provision is on the statute book in Scotland, it is not in force, and the Government prefers to let Scotland make the running and take the risk. But in this case there is no risk. The provision by licensees of disabled access facilities does not impose on them a new obligation or financial burden, since this is no more than what they are already required to do by law. This requirement is a simple way of enforcing the law and ensuring that licensees comply with it.255

277.We recommend that the law should be amended to require, as in Scotland, that an application for a premises licence should be accompanied by a disabled access and facilities statement.

228 See per McCombe J in R (on the application of Albert Court Residents Association and others) v Westminster City Council [2010] EWHC 393, where he said: “An applicant who makes the right judgment, so that the application gives rise to no relevant representations, is entitled to the grant of a licence without the imposition of conditions beyond those consistent with the content of the operating schedule and any mandatory conditions.”

229 These objectives have their origin in paragraph 46 of the White Paper published by the Home Office, Time for Reform: Proposals for the Modernisation of Our Licensing Laws, Cm 4696.

230 In a consultation carried out by the Scottish Government in December 2012 [accessed 10 March 2017] the Government noted that in a report “Rethinking Alcohol Licensing”, published in September 2011, Alcohol Focus Scotland (AFS) and Scottish Health Action on Alcohol Problems (SHAAP) had argued in favour of requiring Licensing Boards to promote the licensing objectives. This “would ensure that the objectives are promoted each time that the Board exercises its functions under the Act. This would be akin to the position in the Licensing Act 2003 for England and Wales.” The Scottish Government has not however acted on this suggestion.

231 HL Deb, 9 November 2016, cols 1201–1219

232 Public Bill Committee on the Policing and Crime Bill, 12 April 2016, cols 337–342

233 Written evidence from British Medical Association (LIC0041)

234 Written evidence from Alcohol Focus Scotland (LIC0127)

235 Written evidence from Alcohol Concern (LIC0085)

236 Local Government Association, LGA Survey: Public Health and the Licensing Process (January 2016): [accessed 10 March 2017]

237 QQ 103–104 (Dr Jeanelle de Gruchy, Vice-President, Association of Directors of Public Health)

238 Written evidence from Association of Convenience Stores (LIC0086)

239 Written evidence from Mayor of London (LIC0173)

240 Written evidence from Pinsent Masons LLP (LIC0074)

241 Supplementary written evidence from John Gaunt & Partners (LIC0171)

242 For example, Newham Council say in paragraph 1.4 of their Statement of Licensing Policy 2014: “The Licensing Authority recognises that the licensed entertainment business sector and community licensed facilities in Newham contribute to the local economy and social infrastructure, but that this has to be balanced with the impact of such activities on the licensing objectives. The Licensing Authority wishes to encourage licensees to provide a wide range of entertainment activities throughout their opening hours and to promote live music, dance, theatre etc. for the wider cultural benefit. They are a factor in maintaining a thriving and sustainable community, which is one of the Council’s aims.”

243 Written evidence from Mayor of London (LIC0173)

244 Written evidence from Westminster City Council (LIC0090)

245 HL Deb, 9 November 2016, cols 1201–1219

246 HL Deb, 7 December 2016, cols 780–785

247 FirstGroup Plc v Paulley (18 January 2017) UKSC 4

248 Oral evidence taken before the Select Committee on the Equality Act 2010 and Disability, 1 December 2015 (Session 2015–16), Q 154 .Ms Frankie also gave evidence to us on 6 September 2016.

249 Select Committee on the Equality Act 2010 and Disability, The Equality Act 2010: the impact on disabled people (Report of Session 2015–16, HL Paper 117), paragraphs 465–473

250 For example, Q 55 (Daniel Davies, National Chairman, Institute of Licensing and John Miley, National Chair, National Association of Licensing and Enforcement Officers)

251 HL Deb, 9 November 2016, cols 1201–1219

252 HL Deb, 7 December 2016, cols 785–795

253 A spokeswoman for the Scottish Government has said that “The expected timeframe is by the end of this Parliament”, which could be as late as 2021.

254 Q 214 (Sarah Newton MP, Parliamentary Under-Secretary of State for Vulnerability, Safeguarding and Countering Extremism, Home Office)

255 Ibid.

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