Detail on the Government response to the House of Lords Select Committee on the Licensing Act 2003

08 Nov

On 4 April 2017, the House of Lords Select Committee on the Licensing Act 2003 published its post-legislative scrutiny report some 11 years after the Act came into force.

A summary of the Committee’s conclusions and recommendations (over 70 in total) can be found in our previous article here.

The Govemernment has now set out its response, which contains little in the way of appetite to overhaul certain aspects of the Act as suggested by the Select Committee. In the Government’s words:

The Government does not intend to be hasty in instigating such an overhaul of the Act. However, there are a significant number of recommendations that the Government agrees will help improve the operation of the Act, for example clarifying points of practice for licensing committees by amending the statutory guidance and looking at the provision of good quality training to licensing committee members.

While the Government rejects some recommendations and conclusions, there are several recommendations which are a spur to further work, particularly in respect to how the system of licensing can be made to function more effectively and the lessons that can be learned from the planning system. The Government is committed to working with partners, including the Local Government Association, the Institute of Licensing, the licensed trade, and licensing solicitors and barristers, to ensure that the system operates as effectively as possible.”

The response as a whole is not surprising given other distractions such as Brexit. Where change is identified by the Government their proposed action is often indicated to be under changes to the Guidance and not any changes to primary or secondary legislation.

What follows is a summary of the responses to the headline points raised by the Select Committee.

Minimum unit pricing (MUP)

The Government confirmed this “remains under review” and that in relation to the Scottish Government’s intention to introduce MUP for alcohol that “the Government will consider the evidence of its impact once it is available”. A possible watch this space.

The outcome of the Scotch Whisky Associations’ challenge to the Scottish Government’s proposed MUP is still awaited having been considered by the Supreme Court earlier this year.

Licensing and planning

As for the Select Committee’s eyebrow raising proposal of transferring of the functions of licensing committees to planning committees and testing this under pilot areas, the Government has acknowledged the “start of a debate” but that “we do not intend to take the approach recommended by the Committee at this time”.

Instead they confirm “we are focusing on improving training and providing stronger guidance on how licensing hearings should be conducted.”

In addition and in relation to appeals, the Government does “not intend to change the system so that licensing appeals no longer go to magistrates’ courts but lie to the planning inspectorate”.

Finally, the Select Committee proposed a change to the Guidance so licensing committees have to take into account a decision already taken by their planning committee and where appropriate follow it.

The Government’s response is not to go as far as the Select Committee wishes, stating “The local planning authority is a responsible authority under the Act and therefore has a statutory role in considering applications for the grant, variation or review of a premises licence. However, we recognise that coordination between systems is inconsistent and could be improved in many areas.

We will revisit how this issue is presented in the section 182 guidance with a view to strengthening the call for consistency, wherever possible, in the assessment and approach of those matters that are considered by both regimes to support local authorities to make effective decisions.”

The current relationship between planning and licensing is therefore likely to remain the same for a while yet, however, the door is not entirely closed.

Training for licensing committee members and Police

What many stakeholders have and still agree on is the need and importance of training for the members of licensing committees (a thought echoed by many planning practitioners and officers about planning committees as well).

The Government’s comments are “The Government recognises the importance of councillors undergoing training before being allowed to sit as a member of a sub-committee. Good quality training is critical to ensuring that councillors are able to effectively carry out their licensing role….. We will consider the training needs for councillors with the partners suggested by the Committee.”

For the Police, the Government stated: “The Government agrees that comprehensive training should be available to all officers required to undertake licensing duties. All probationary police officers currently undergo training in licensing issues as part of the basic training provided to all those joining the police force.”

Legislating on these therefore appears unlikely but at least dialogue should now occur particularly about training needs for licensing committee members.

Licensing Objectives

The Select Committee’s view was not to create a new public health licensing objective and the Government did not contradict that view stating:

“We believe there is much that can be done within the existing licensing framework. The Government’s interest in this area has helped spark a range of work to provide better access to health data and improve public health’s engagement, as a responsible authority, with licensing. This has brought many benefits, including better decision making, improved partnership working, better informed commissioning of services, service delivery and design…. We are determined to continue to support an increased focus on public health engagement with licensing…”

The Government also confirmed it has no intention to introduce a new licensing objective relating to the ‘provision of social or cultural activities or anything similar’ or requiring ‘compliance with the Equality Act 2010’ or ‘securing accessibility for disabled persons’.

It therefore appears that the current four licensing objectives will be the status quo for the foreseeable future.

Group Review Intervention Power (GRIP)

The Select Committee recommended that the new GRIP should not be introduced.

The Government’s response was “…the group review intervention power would not itself result in the closure of premises. Before proceeding with a consultation on the introduction of a GRIP, the Government will explore whether similar measures could be achieved within the existing system.”

By no means the death knell for GRIP but any introduction of such powers is likely to be some way off at the least.

Cumulative Impact Policies (CIPs)

The Select Committee agreed with the Government’s proposal to put CIPs on a statutory footing as per the Police and Crime Act 2017.

Those measures were on hold pending any recommendations made by the Committee but “will now be commenced at the next available opportunity” and that “detailed statutory guidance on the process and what the changes mean for all parties will be published as part of the main s182 guidance document”.

Further detail on this is therefore awaited and again proposed changes to the Guidance will be integral to the process going forward.

Late Night Levy

Responding to the Select Committee’s criticisms of the Late Night Levy system, the Government reminds its commitments in the Modern Crime Prevention Strategy to improve the levy by making it more flexible for local areas, fairer to business and more transparent and that the amendments in the Policing and Crime Act 2017 will:

  • “Allow licensing authorities to target the levy in geographical areas where the night time economy places demands on policing;
  • Give licensing authorities the power to charge premises licensed to sell late night refreshment the levy;
  • Give PCCs the right to formally request that a licensing authority propose a levy triggering a consultation on whether to introduce a levy; and,
  • Require licensing authorities to publish information about how the revenue raised from the levy is spent.”

The Government confirmed that “We will commence the provisions as originally intended” and also that “Many late night refreshment premises are small businesses and the Government is mindful of not imposing unnecessary or disproportionate charges on businesses. For this reason we will consult on the level of charge appropriate for late night refreshment premises and will not commence the measure to allow licensing authorities to charge the levy to late night refreshment premises until this is completed.”

Agent of change principle

The Select Committee recommend full ‘Agent of Change’ principle be adopted in both planning and licensing guidance to help protect both licensed premises and local residents from consequences arising from any new built development in their nearby vicinity.

In its response the Government only committed to ensuring “the section 182 guidance remains consistent with the National Planning Policy Framework, if changes are made.”

This could be a very important future change to the Guidance but will depend on whether this goes forward under planning for which the response of the Department for Communities and Local Government is awaited following a White Paper consultation that closed in May 2017.

Locally set licensing fees

The Government previously passed s.121 Police Reform and Social Responsibility Act 2011 permitting licensing authorities to set licensing fees. This is not yet in force but was recommended to be brought in by the Select Committee.

The Government confirmed it “intends to make no change to the existing fees in the immediate future” but that “The policy will be re-considered in due course”.

Although this has not been ruled out we would not anticipate any consideration of bringing this is for a least a few years.

Other changes under Guidance…

Other than the proposed changes mentioned above, the Government also suggested the following changes to the Guidance.

Police evidence

The Government agreed with the Committee’s statement that licensing committees already take police evidence seriously and that the additional emphasis in paragraph 9.12 Guidance is not needed. The Government will therefore “amend paragraph 9.12 to remove this emphasis”.

This is a welcome change but really one of clarification only.

Licensing authorities publicising the reasons which have led them to settle an appeal

The Government notes the current Guidance states that: “It is important that a licensing authority should give comprehensive reasons for its decision in anticipation of any appeals. Reasons should be promulgated to all the parties of any process which might give rise to an appeal under the terms of the 2003 Act.”

The Government confirmed it “will amend the guidance to extend this principle to decisions made after a hearing.

Provision of reasons to hold hearing when matters are no longer disputed

Although in our experience rarely a matter of particular concern “The Government accepts that it is reasonable for a licensing sub-committee to provide reasons why a hearing should nonetheless be held even where there are no longer any matters of dispute between the parties. This will be included in the section 182 guidance and in the LGA licensing handbook when it is produced. The guidance will also be amended to clarify the powers of delegation to dispense with a hearing.”

Confirm quorum of sub-committee is three

It is widely accepted that a licensing sub-committee must have three members present to be quorate although there are sub-committees (naming no names) who do not do so.

The Government states that “Section 9(1) of the Licensing Act already requires sub-committees to consist of three members of the committee, no more, no fewer…. The Government will instead make this clear in the statutory guidance to ensure

that the legal requirement is complied with in future.”

Temporary Event Notices – notifying residents

Although the Government will not legislate that Councillors or residents must be notified on TENs it “proposes that the section 182 guidance should recommend that licensing authorities consider how to bring TENs to the attention of residents who may be particularly affected, for example if there have been previous complaints about a premises (licensed or not).

Temporary Event Notices – recording of information

The Government’s response to the Select Committee’s proposal in respect of collection and retention of TENs information is: “The Government believes that the systems in place are sufficient, but agrees that guidance on the requirements for storing and retaining information should be strengthened and clarified and will amend the section 182 guidance accordingly.

Closure Notice (section 19 of the Criminal Justice and Police Act 2001)

The Government has taken on board the Select Committee’s comments and “will amend the section 182 guidance to bring clarity to this issue as the Committee suggests” i.e. to make clear these closure notices do not require the premises to close or cease selling alcohol immediately; or entitle the police to require it to do so; or entitle the police to arrest a person on the sole ground of non-compliance with the notice.

Declined action

The Government confirmed that a number of the Select Committee’s proposals will not be acted upon, including:

  • removing Early Morning Restriction Orders even though none are in force;
  • revoking Regulations 21 (procedure at hearing) and 23 (discussion led forum) of the Hearings Regulations;
  • abolishing application requirements to publish notices in local newspapers. This was already considered and rejected by the Government a number of years ago and they have “no plans to revisit the requirement for an applicant to publish a notice in a local newspaper”;
  • introducing legislation legislation based on part 1 of the Alcohol etc (Scotland) Act 2010 as “Research published to date on the impact of the provisions in part 1 of the Alcohol etc (Scotland) Act 2010 suggests that these restrictions have had a limited impact on the amount of alcohol sold by the off-trade and the manner in which it is sold.” There will therefore be, for example, no mandatory challenge 25 licence condition;
  • permitting Licensing Authorities to object to Temporary Event Notices;
  • modifying s.106(2) Licensing Act 2003 to permit TENs to be modified during a hearing;
  • creating a Personal licence national database because it would be “disproportionately complex, resource intensive and expensive for the Government, local authorities and magistrates’ courts to create and administer a database of all personal licences”.

All in all it would appear that the Government will not take forward (at least anytime soon) any measures that were not already on its agenda other than some changes of more minor consequence that will generally be brought in through changes to Guidance.

A close eye will therefore be needed on the next Guidance when it is issued, likely not before April 2018.

Law correct at the date of publication.
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