Chapter 13: Other Matters of Importance
Application systems
584.We have heard from many councils, businesses and the solicitors who support them that there is a pressing need for more modern and efficient licence application systems in many parts of the country. Many respondents noted that some councils only allow paper applications, some only accept electronic applications, and some accept electronic applications but cannot or will not accept electronic payments.
585.The Association of Licensed Multiple Retailers said they would like to see local authorities:
“… adopt a common platform to accept electronic applications. Some use their own system and portals, others use GOV.UK’s, some use their own forms and others use the standard forms. We note that some still will not accept electronic applications, and a number of them, whilst accepting electronic applications, will not accept (or cannot accept) electronic payment by credit or debit card.”555
586.Kurnia Licensing Consultants also thought that the GOV.UK platform was the best approach for submitting and receiving applications, and believed that while “most authorities administer electronic applications quickly and efficiently … some do not”. The lack of clear guidance on electronic applications also meant that “some licensing authorities are still insisting that original documents are sent in the post and that until such time the original documents have been received they will not start to process an application”.556
587.The LGA also pointed out that when a form is completed using the GOV.UK platform, it will be sent to the relevant council, but if the GOV.UK system is not interoperable with the council’s computer system, “the council must re-enter every bit of data that is sent to it”, which is a “needless duplication and inefficiency given today’s technologies”.557 They further informed us that they had:
“… engaged with the Government Digital Service (GDS) to develop [IT integration proposals] further, with the support of Regulatory Delivery in BEIS [the Department for Business, Energy and Industrial Strategy], but GDS has not yet committed resources to take this forward. Doing so would dramatically improve the experience for business and community groups, free up council officers to do other tasks, and save money. The government should commit to investing in this area”.558
588.On a more minor, but still potentially significant point, Wolverhampton City Council noted that “the online application forms provided on GOV.UK were still not compliant with the forms prescribed by regulations made under the Licensing Act 2003”.559
589.Most businesses want a unified online portal or system, like the GOV.UK platform. We believe that the introduction of a consistent, national online system for licensing applications could introduce considerable efficiencies for both local councils and businesses, and would also improve the quality and consistency of data on licensed premises across the country. It would also create opportunities for greater transparency, as applications collected in this way could more easily be presented to the public through local council websites, and data could automatically be generated, allowing residents to see more clearly licensing developments in their local areas.
590.We recommend further development of the GOV.UK platform for licensing applications, to ensure that it is working with local authority computer systems, and fully compatible with the provisions of the Licensing Act 2003. In due course, its uniform adoption by all local authorities in England and Wales should be encouraged by the Government and the section 182 Guidance updated accordingly.
National Database of Personal Licence Holders
591.As we previously mentioned,560 under the Licensing Act 2003 it is no longer a requirement that an applicant demonstrate that they are a “fit and proper person” to hold a personal licence. However, section 129 of the Act gives courts the power to order the suspension or forfeiture of a personal licence on conviction of a relevant offence. This power is rarely used, largely because licence-holders, when charged with a relevant offence, seldom comply with their duty under section 128 of the Act to inform the court that they hold a personal licence.561 Unless the licence-holder informs the licensing authority of his conviction, as required by section 132, that authority will, in turn, be unable to exercise its existing powers, or its new powers under section 132A (inserted by section 138 of the Policing and Crime Act 2017)562 to suspend or revoke the licence without a request from the courts.
592.We received considerable evidence that, as a consequence, some personal licence holders are retaining their personal licences after they should have been revoked, and in some cases are successfully obtaining new premises licences in other parts of the country, where local authority databases are not able to keep track of them. Cornwall Council Licensing Authority represented the views of many local authorities when they explained that “we are not able to adequately check on the status of personal licence holders and if a personal licence was revoked by a Magistrates Court in a different local authority, we would not be aware and could still be named as a DPS on a premises licence in our area.”563 The LGA further noted that “while neighbouring councils may share information about prosecution, this is not practical across all 350 licensing authorities and needs central coordination.” 564
593.Most respondents who highlighted this issue wanted the establishment of a national database of personal licence holders, which would allow them to check whether an individual had previously had a licence revoked.565 Central England Trading Standards suggested this should be linked to the Police National Database, which would also allow users to check for relevant criminal convictions which may disbar an individual from holding a personal licence.566
594.We believe the enforcement of section 128 and 132A of the Licensing Act 2003 would be facilitated by a national database of personal licence holders, against which to check those who are convicted of relevant offences. We recommend the creation of a national database of personal licence holders for use by courts and licensing authorities, linked to the Police National Database.
Suspension of licences for non-payment of business rates
595.A number of witnesses, including various local councils, the Institute of Licensing and the Local Government Association, have reported that some licensed premises are drawing substantially on local authority services, yet are not paying business rates. They argue that local authorities should be given the power to suspend or revoke premises licences in these situations, as is now the case with non-payment of annual licence fees.
596.Cardiff City Council, who were in favour of this idea, observed that currently, “there is no connection with the issue of a licence and payment of business rates. Licensing and business rates are governed by two separate pieces of legislation, and providing the licensee complies with the licensing regulations, the Council is unable to do anything, other than grant a license, regardless of any outstanding business rates”.567
597.The Institute of Licensing told us that before licensing officers were permitted to suspend premises licences for non-payment of annual fees, they “often found it was the same individuals that were not paying their business rates that were not paying their annual fees”. They believed it would “assist local authorities if premises licences could be suspended for non-payment of business rates in addition to the annual licence fee, and if there was also an option for revocation of the licence in persistent cases”.568 The LGA agreed with this argument, noting that unpaid business taxes sometimes amounted to “many thousands of pounds”, and that “no other supplier would indefinitely permit a debtor to continue using their services in this way”.569 They were keen to emphasise, however, that councils “would not seek to exercise revocation until all other options had been exhausted, as it would render future payment even less likely”, but they nevertheless believed the option should be available as a last resort.
598.However, using the Licensing Act 2003 to enforce the collection of other municipal taxes, an area not strictly related to licensing, might encourage its use for many other functions even less connected with licensing, which should be discouraged. As we concluded in Chapter 6, in relation to the laws governing disabled access, the Licensing Act 2003 should not become a mechanism for general enforcement of the law.
599.We do not recommend that licensing committees be given the power to suspend or revoke a premises licence for non-payment of business rates.
Clubs
600.As outlined in Chapter 2, alongside conventional premises licences, the Licensing Act 2003 also created club premises certificates which permit qualifying clubs to serve alcohol to their members and members’ guests without a full premises licence.
601.The Act describes qualifying clubs as “organisations where members have joined together for particular social, sporting or political purposes. They may then combine to buy alcohol in bulk as members of the organisation to supply in the club”. Such clubs technically only sell alcohol by retail to guests. As members are considered to own part of the alcohol stock, when a member purchases alcohol, there is no sale, and the money passing across the bar is merely a mechanism to preserve equity between members where one may consume more than another.
602.Under normal circumstances these clubs are only permitted to serve members and their guests, although they may also issue Temporary Event Notices (see Chapter 8). They must also meet five other qualifying conditions (specified in section 62 of the Act—see Box 11). In return for adhering to these restrictions, clubs are entitled to certain benefits, including an exemption for all members from requirements to hold a personal licence, and more limited rights of entry for the police and other authorities. They are also exempt from police powers of instant closure on the grounds of disorder and noise nuisance.
Box 11: The Five Qualifying Conditions for Clubs
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Under section 62 of the Act qualifying clubs must meet five qualifying conditions. These are that: (1)Under the rules of the club persons may not— (a) be admitted to membership, or (b) be admitted, as candidates for membership, to any of the privileges of membership, without an interval of at least two days between their nomination or application for membership and their admission. (2)Under the rules of the club persons becoming members without prior nomination or application may not be admitted to the privileges of membership without an interval of at least two days between their becoming members and their admission. (3)The club is established and conducted in good faith as a club. (4)The club has at least 25 members. (5)Alcohol is not supplied, or intended to be supplied, to members on the premises otherwise than by or on behalf of the club. |
603.During our inquiry we took evidence from representatives of several different kinds of members’ clubs and their representatives, including the Working Men’s Club and Institute Union (WMCIU), and the Association of London Clubs. The overall picture we received was that while the Licensing Act 2003 was serving members’ clubs well, many clubs across the country were struggling, with 3,500 clubs having closed in the previous five years alone. The only exception to this trend was in London, where private members’ clubs at the higher end of the market had seen a resurgence in recent years.570
604.Representatives of the WMCIU and the Association of London Clubs shared some concerns with conventional premises licensees relating to the diminishing flexibility within the system, high costs and inconsistent enforcement practices on the part of local authorities, but they believed the Act served clubs well.571 Peter Adkins, who provides legal support to many members’ clubs across the country, believed it was “certainly an improvement on the old system”, and while there remained some “strange licensing officers and police who interpret the law in different ways, generally across the country we have a fairly pragmatic and consistent approach to the law”.572
605.Most of the evidence we took on members’ clubs noted the considerable decline in the number of clubs across the country, and a corresponding decline in club membership. However, none believe this to be a result of the legislation, and Councillor Mason, of Rushcliffe, represented the views of most when he told us that “it is the way of life that is passing by rather than the Act. People do not go to members’ clubs; they want more freedom to meet their friends in different premises”.573 George Dawson, President of the WMCIU, similarly emphasised a decline in the culture of club membership and attendance. However, he also emphasised that members’ clubs:
“… are still a significant part of the on-trade. There is £21 billion in the on-trade in beer. CIU probably accounts for 5% of that by itself, but the ACC has 900 clubs. There are also British Legion clubs. We are still a significant player in the on-trade. The on-trade has shrunk tremendously, but it is not all depression and everybody closing down.”574
606.One aspect of the Licensing Act 2003 which could be unhelpful to clubs is the requirement that all clubs stipulate at least a two-day waiting period between the nomination or application of a new member, and that individual becoming a full member.575 This was also a requirement for private casinos until the Gambling Act 2005 removed it, allowing individuals to become members at the time of application.
607.When we asked witnesses about this, we received a mixed response. Paul Varney, of the Association of London Clubs, believed it “should remain very much in force”, as it “differentiates us from casinos and profit-making clubs”, and “gives other members a chance to see who is being elected”.576 Peter Adkins suggested that most clubs generally required a minimum of 14 days, to allow for approval by the club’s governing committee.577
608.Mr Dawson, while agreeing with Mr Varney that most club rulebooks stipulate much longer waiting periods than two days, questioned “from the point of view of equality or standardisation, if casinos have the two-day requirement removed, why can we not have it removed?”578 He also pointed out that many clubs have some provision for temporary membership or affiliation, often to allow members of affiliate clubs to use facilities on holiday, so this would not be a radical change to what is currently allowed.
609.The evidence we received on the application of the Act specifically to clubs suggests that they have adapted to it well.
610.Given the decline in most forms of members’ clubs, and the social value they hold in many communities, we believe that even minor adjustments which may help them should be made. We therefore recommend the removal of Conditions 1 and 2 by the repeal of section 62 (2) and (3) of the Licensing Act 2003, abolishing the two-day waiting period required of new members. We acknowledge that at least some clubs will want to keep this waiting period in their club rules, and they will still be entitled to do so.
Sales of alcohol airside and portside
611.No one travelling on an international flight can fail to notice that, once they have gone through customs, control of the sale of alcohol seems to be relaxed, and the permitted hours even more so. This is because the Licensing Act 2003 is expressly disapplied from such areas.
612.The incidents occurring on flights are notorious, sometimes requiring flights to be diverted, and more often than not such incidents are the consequence of alcohol consumed airside before the flight. Jet2.com wrote to tell us that they “have dealt with 536 such disruptive incidents this summer [2016] alone, over half are reported to have been fuelled by alcohol. Many also had the opportunity to drink heavily at the airport before they get on the flight. The Civil Aviation Authority report a 36% increase in disruptive passenger incidents in the UK between 2014 and 2015”.579 This is a large number of incidents for a relatively small airline. Alcohol Concern told us of a survey of holidaymakers which found that nearly 1 in 5 passengers said they began their holiday drinking at the airport.580
613.Sarah Newton MP did not deny the importance of the issue: “We have all seen pretty horrific images of what happens on some flights—even some flights having to be diverted and landed. There is harm to other passengers and to staff at the airport and on the aircraft. It is a really important point”.581 But she explained that, although the Licensing Act may not apply, there is an Aviation Industry Code of Practice on Disruptive Passengers which, she told us, was not just adequate, but “a better way of dealing with the problems that you have identified. We think the comprehensive code is a more effective way of dealing with them. We absolutely recognise the problem that you describe, but we think this is the best way of dealing with it.”
614.The first question therefore is whether the Code is indeed effective and, as the Minister added, “very much supported and backed up by police.” This was certainly not the view of the Sussex Police:
“Gatwick Airport sits within the Sussex Police boundary and there have been a number of alcohol test purchases conducted airside at the Airport. Whilst improvements have now been made, during the first round of testing, all but one of the premises selling alcohol sold alcohol to our under 18 year old test purchasers. No sanctions were possible due to none of the Licensing Act 2003 offences being relevant for airside premises, and because of this engagement with the owners of the licensed premises, including very large well known providers, was very difficult.”582
We are not surprised that the Sussex Police detected so many underage sales; the Code says nothing about them and, since the Act does not apply, the sale of alcohol to children under 18 is not an offence.
615.With her supplementary evidence the Minister sent us a copy of the Code which, she told us, was launched in summer 2016 and operates in 22 airports.583 She explained that the ALMR, among others, had worked to create the Code, the implication being that they were satisfied with it. This is not what they told us in their written evidence:
“The ALMR believes that sales of alcohol airside at international airports should no longer be exempt from the application of the Act. The original exemption was only introduced because of practicalities relating to enforcement airside rather than any regulatory or policy concerns relating to its sale … with no licence for alcohol sales, other operators who do not have the experience and training in alcohol retailing eg. coffee shops and quick service restaurants are unregulated.”584
616.The “practicalities relating to enforcement airside” to which the ALMR refer constitute the reason for the exemption given by the Home Office in their written evidence: “The exemption of premises serving alcohol airside from the licensing system is one of practicality. Airside access is tightly controlled. In order for the licensing system to be upheld, licences awarded to airside bars or restaurants must be capable of being inspected, if necessary through spot-checks as local authorities and the police consider appropriate.”585 This was a view endorsed by the Minister. We put to her the point that airside access, though tightly controlled, can allow the access of large numbers of other staff, including the staff who sell the alcohol unregulated; and we challenged her repeatedly to explain why the Act should not apply airside. She could only reply that the Code was “effective” and “a better way of dealing with the problems”.586
617.We are not for one moment persuaded by this view. We believe, like the British Beer & Pub Association, that “those licensed to serve alcohol airside should abide by the principles of the Licensing Act 2003”.587 However, unlike them, we believe that the best way of ensuring this is to make the Act apply, and not just its principles. We accept that access airside must be controlled, but see no reason whatever why some of the licensing enforcement officers from each relevant local authority should not receive security clearance so that they can carry out their enforcement duties.
618.One way of achieving the application of the Licensing Act 2003 airside would be to repeal the relevant provisions of section 173, but this would require primary legislation. There is a quicker way. Under the Licensing Act 1964, the prohibition on the sale of alcohol outside permitted hours did not apply airside at international airports designated as such by an Order under section 87 of that Act. Orders were made over the years designating increasing numbers of airports as international airports. The last Order made under the 1964 Act was the Airports Licensing (Liquor) Order 2005588 designating 23 airports in England and Wales as international airports.589
619.Section 173(1) of the 2003 Act repeats the provision that, in effect, disapplies the Act from activities airside at a “designated airport”, and subsection (4) provides that any airport where section 87 of the 1964 Act applied before the commencement of the 2003 Act will continue to be designated for the purposes of the 2003 Act. The airports designated under the 1964 Act by the Airports Licensing (Liquor) Order 2005 therefore continue to be exempt under the 2003 Act. But section 173(5) of the 2003 Act states that “provision may by order be made for subsection (4) to cease to have effect in relation to any port, airport or hoverport.” All the Minister therefore needs to do is make an Order under section 173(5) of the 2003 Act revoking the Airports Licensing (Liquor) Order 2005 and any other subsequent comparable Orders.590 She will of course wish to give those selling alcohol airside notice of this so that they can apply for licences under the Act. We hope to see the Act applying airside by the end of this year.591
620.The designations of airports as international airports for the purposes of section 173 of the Licensing Act 2003 should be revoked, so that the Act applies fully airside at airports, as it does in other parts of airports.
621.The 1964 and 2003 Acts both refer to ports and hoverports as well as to airports, so that the same arrangements can be made portside. Our discussion has centred on airports. Any similar designations made for ports and hoverports should also be revoked.
622.The sale of alcohol on a railway journey does not need to be licensed. We accept that the Act cannot sensibly apply to a moving train, and the railway companies have their own applicable bylaws. They also have the power where necessary to ban the sale and consumption of alcohol altogether, for example on train journeys to football matches. These powers seem to us adequate.
Sale of alcohol to a person who is drunk
623.We heard many complaints concerning a widespread lack of enforcement of parts of the Licensing Act 2003. In particular, we were told that section 141, which makes it an offence to sell or attempt to sell alcohol to a person who is drunk, or to allow alcohol to be sold to such a person on relevant premises, was being routinely flouted. Stricter enforcement, it was suggested to us, would help reduce pre-loading behaviour, as individuals who had already got drunk on cheaper off-trade-purchased alcohol could not then continue to drink at on-trade premises.592
624.This is reflected in the number of prosecutions for the offence—in 2015 there were only six, with no convictions, and indeed, there have only ever been 92 prosecutions, and 44 convictions, since the Act came into force in 2005. The offence has more commonly been dealt with by the issuing of a Penalty Notice for Disorder (a form of fixed penalty notice), which requires no formal court proceedings, and no admission of guilt from those accepting it, and carries a £90 fine. Between March 2005 and March 2016, 723 cases of sale of alcohol to a person who is drunk were dealt with in this way (averaging 66 cases per year).593 For a similar class of offence, the sale of alcohol to a person aged under 18, there were 89 prosecutions and 73 convictions in 2015. This followed much high rates of prosecution in the late 2000s, which means that a total of 2,487 have been convicted of this offence.594 Penalty Notices have also been used far more frequently for selling alcohol to a person under 18, with 22,014 issued between March 2005 and March 2016 (averaging 2001 cases per year).595
625.Indeed, while witnesses generally told us that they believed underage sales to be adequately policed, (although Berkshire Licensing Liaison Group warned that in this area “resources are becoming more scarce”596), there was much criticism of the lack of action and weak strategies deployed in the area of sales to drunk people. A number of witnesses pointed out that a significant hindrance was the lack of a clear definition for ‘being drunk’ in the Act. Kurnia Licensing Consultants pointed out that while it was “clear when someone has not had a drink and equally clear when someone has had too much to drink”, the problem is how to determine the point at which someone becomes drunk:
“This point is down to interpretation. Someone who might appear to be drunk to one person may not appear to be drunk to another. Medical conditions may also make someone think a person is drunk when in fact they are not … Some people can consume alcohol and the effects may not show for some time … The person may not have been drunk, or may not appeared to have been drunk, at the time of service but may become drunk sometime after.”597
626.There was also no clear sense among respondents as to how the offence of selling to a drunk person might be prosecuted in anything like a systematic manner. In order to prosecute the offence of selling alcohol to a person under the age of alcohol, officers may use underage individuals to conduct test purchases. The equivalent option, for obvious ethical reasons, cannot be pursued in the case of sales to a drunk person. John Miley, of the NALEO, told us that little work had been done in this field by the police or licensing authorities.
627.One of the few campaigns we are aware of which has attempted to focus on the problem of sales to drunken individuals was Liverpool’s ‘Drink Less, Enjoy More’ campaign, conducted over 2015 and 2016. A joint initiative between Liverpool Council, Merseyside Police, CitySafe and Liverpool NHS Clinical Commissioning Group, it aimed to raise awareness of section 141, and reduce the number of occasions bar staff served those who were clearly drunk. The project was evaluated by Liverpool John Moores University using a team of ‘pseudo-intoxicated’ student actors to simulate drunken customers, and appeared to show a significant reduction in the proportion of successful alcohol test purchases by these actors (from 84% to 26%).598 However, over the same period, the expected median consumption of alcohol on a night out increased substantially from 16 to 20 units. Mr Miley, when discussing this experiment with us, described the results as “very mixed”.599
628.Alcohol Research UK argued that responsibility for tackling the issue had “largely been ‘outsourced’ to the alcohol industry through schemes such as Best Bar None and Purple Flag, few of which have undergone robust independent evaluation”.600 They recommended the introduction of a new “mandatory licensing condition requiring all outlets to produce a written policy on dealing with drunk customers”.
629.We are concerned that section 141 of the Licensing Act is not being properly enforced, and the few concerted attempts by local authorities to date have been lacklustre at best. Notwithstanding the difficulties of defining drunkenness, we believe that enforcement of section 141 needs to be taken far more seriously, and by doing so many of the problems currently associated with the Night Time Economy, in particular pre-loading and the excessive drunkenness and anti-social behaviour often linked with it, would be reduced.
560 Paragraph 247
562 Section 138 is brought into force on 6 April 2017 by the Policing and Crime Act 2017 (Commencement No. 1 and Transitional Provisions) Regulations 2017 (SI 2017/399)
565 Written evidence from Berkshire Licensing Liaison Group (LIC0122), Breckland Council (LIC0120), Hinckley & Bosworth Borough Council (LIC0049), Sefton Metropolitan Borough Council (LIC0084) and others.
571 Q 166 (George Dawson, Union President, Working Men’s Club and Institute Union); Q 166 (Paul Varney, Association of London Clubs)
575 See Box 11, paragraph 602
581 Q 222 (Sarah Newton MP, Parliamentary Under-Secretary of State for Vulnerability, Safeguarding and Countering Extremism, Home Office)
586 Q 222 (Sarah Newton MP, Parliamentary Under-Secretary of State for Vulnerability, Safeguarding and Countering Extremism, Home Office)
588 Airports Licensing (Liquor) Order 2005 (SI 2005/1733)
589 Blackpool Airport had been omitted from the list and was added by the Blackpool Airport Licensing (Liquor) Order 2005 (SI 2005/3119).
590 Section 173(3) of the 2003 Act allows the Minister to designate further airports, but we are not aware that any Orders have been made under this power.
591 There are analogous provisions in the case of ports and hoverports. These can be designated under section 86A of the 1964 Act. The designation continues under section 173(4) of the 2003 Act, and can be revoked under section 173(5).
592 For example, written evidence from Alcohol Research UK (LIC0022), (Nick Grant, Head of Legal Services, Sainsbury’s Supermarket Ltd). Q 159
593 Ministry of Justice, ‘Criminal Justice Statistics: Quarterly update to March 2016’ (18 August 2016): https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/546479/overview-tables.xlsx [accessed 10 March 2017]
594 Ibid.
595 Ibid.
598 Centre for Public Health Liverpool John Moores University, Evaluation of the Liverpool Drink Less Enjoy More intervention (March 2016): http://www.cph.org.uk/wp-content/uploads/2016/03/Liverpool-Drink-Less-Enjoy-More-intervention-evaluation-report-March-2016.pdf [accessed 10 March 2017]