RESPONSE TO THE HOME OFFICE CONSULTATION
REBALANCING THE LICENCING ACT
Poppleston Allen is the largest licensing law firm in the United Kingdom. 90% of the firm’s business relates to licensing law and it has made applications in every single licensing authority in England and Wales. Some applications have also been made in Scotland. Poppleston Allen acts as a licensing law advisor to the BBPA and advises the BII and NOCTIS. In addition Senior Partner, Jeremy Allen, was involved in all the discussions with the DCMS over the implementation of the Licensing Act 2003. He has since been involved in every working party set up by the DCMS to consider various amendments and improvements to the Act.
The Ministerial foreword acknowledges that the majority of licensed premises are “well run businesses, which provide a valuable service to their local community and the Government recognises the important role which pubs can play as part of the fabric of neighbourhoods and villages. Whilst tackling the alcohol related crime is a priority for the Government, it will not be addressed at the expense of these responsible businesses”. The foreword goes on to state that the Government believes that the Licensing Act is due for an overhaul.
The executive survey points out that the industry as a whole contributes around £8.5bn to the Exchequer through excise duty alone and over 200,000 premises have a licence to sell alcohol. The document goes on to cite with approval the fact that there are “numerous instances of local businesses working with the Police and others to reduce alcohol related harm whilst promoting their interests”. It mentions:-
1) business improvement districts and national Best Bar None award schemes;
2) Birmingham’s Broad Street bid has resulted in a 60% reduction in general crime and a 28% reduction in alcohol related crime in Doncaster town centre;
3) the Doncaster BBN Scheme, which resulted in a notable reduction in alcohol related crime in Doncaster town centre;
4) large reductions in violent offences being recorded in the majority of BBN premises.
5) the Government will encourage and support these schemes rather than interfere with them. It is unfortunate that these are almost the only times that these schemes are mentioned in spite of the dramatic figures attributed to them.
The consultation is seeking our views on the implications of implementing the proposals rather than inviting views on the commitments themselves. For the reasons stated below, we consider the Government should look again at the commitments and not solely concentrate on implementation.
We also believe that the Government is wholly wrong to propose to implement the proposals this autumn, following a 6 week consultation; the majority of which took place during August which is traditionally a holiday month. The current Code of Practice points out that dealing with Government consultations should last for a minimum of 12 weeks. It adds that allowing these 12 weeks will enhance the quality of the responses pointing out that many organisations would want to consult the people that they represent or work with before drafting a response to the Government. This takes time. It adds that if a consultation exercise is to take place over a period when consultees are less able to respond, eg over the summer, or the policy under consideration is particularly complex, consideration should be given to the feasibility of allowing a longer period for consultation. The Government’s proposals are far reaching and complex. It is arguable that they are at least as complex as the Licensing Act 2003 which followed 2 or 3 years of detailed consultation. The proposals should be set out in a new Licensing Act after proper consultation over a longer period of time, not including August.
One further matter, although the Home Office has huge experience in dealing with complex issues, it has limited experience in dealing with the licensed trade and licensing legislation. This is evidenced by the two matters with which they have recently been involved. The first of these was Alcohol Disorder Zones. The fact that no ADZs have been created since their formation in 2008 suggests a lack of understanding of the problems they were meant to deal with. Similar difficulties arose over the preparation of the Statutory Instrument creating Mandatory Conditions. Without going into details, it is unfortunate that the Home Office official responsible felt that he had insufficient time to consult upon a draft. This resulted in it being passed in a questionable format. It will not surprisingly take a little time for the Home Office to become familiar with licensing law. This is another good reason for taking a longer period of time over the consultation and having a more considered approach to revising the Licensing Act.
Consultation Question 1: What do you think the impact would be of making relevant licensing authorities responsible authorities?
The law has only recently been amended to allow any Councillor to become an interested party under the Licensing Act. Councillors can now make individual representations regardless of whether there had been a representation from other Responsible Authorities or interested parties. As this is the sole reason given in the consultation document for this change, it is unnecessary. The Government should give this recent change involving Councillors time to work to see what impact this has upon procedures.
It is appreciated that the Gambling Act allows licensing authorities to be Responsible Authorities but there is a significant difference between liquor, entertainment licensing and gambling. There are also very few applications in respect of gambling. The system in Scotland, whilst different, also provides for Licensing authorities to be Responsible Authorities but there doesn’t appear to have been any assessment by the Government as to whether that works on not.
Consultation Question 2: What impact do you think reducing the burden of proof on licensing authorities will have?
Licensing authorities currently have to demonstrate that their actions are “necessary” for the promotion of licensing objectives in their local area. Changing this to “beneficial” is unnecessary and could lead to problems unconnected with the premises. It may, for example, be seen to be beneficial to impose blanket conditions on all premises within the licensing authority’s area but it may not be necessary to do so for the majority. The introduction of unnecessary conditions causes confusion for the licensee and their staff in complying with the licence and also for others in seeking to enforce it. The Government is seeking to remove excessive regulation but it seems to us that this will enhance it.
Consultation Question 3: Do you have any suggestions about how the licence application process could be amended to ensure that applicants consider the impact of their licence application on the local area?
It should be remembered that the licensing application is not the only matter that the local authority has to consider. In many cases there would have to be a separate application for planning permission. The local planning authority is also a responsible authority. It seems to us that applicants will be obliged to consider the impact of their licensing applications on the local area and no amendments of the law are necessary to achieve this.
Consultation Question 4: What would the effect be of requiring Licensing authorities to accept all representations, notices and recommendations from the Police unless there is clear evidence that these are not relevant?
Implementation of this provision would effectively replace the licensing authority with the Police. If the licensing authority is obliged, through the Police, to accept any recommendation unless it is irrelevant, there is little point in the licensing authority sitting at all except to resolve conflicts. What would the position be if, for example, all local residents were in favour of a particular application but the Police were against it? The Police could cite crime and disorder, which would clearly be relevant. They might decline to produce any figures in support of their argument but presumably the licensing authority would have to accept the representation that the premises would increase the amount of crime and disorder. Police representations on licensing matters vary hugely throughout the different Licensing Authorities around the country. In some areas licensing maybe dealt with by a very junior police officer or a civilian. Why should the council be obliged to accept all representations made on behalf of the Police when they may be without merit?
The Police have concerns about overtime working. The Chief Constable might take the view that if all licensed premises closed at a particular time then he could reduce the expenditure on overtime regardless of the benefit to the public as a whole. If representations were made that the premises should close earlier in these circumstances, then the licensing authority would be obliged to accept the recommendation thus giving the Police total power.
There have been many occasions when detailed examination of Police evidence has shown it to be faulty. Statistical evidence has been produced showing that a number of offences are connected with a particular premises on days when they have not been trading. When the Police records have been examined it has been possible to prove that the premises have simply been used as a convenient reference point as they have, for example, a taxi rank outside them. These “offences” had no connection with the premises other than a geographical one. Similarly there have been many reports in respect of premises where disturbance or offences have taken place where people have been endeavouring to gain entry. In other words the incident took place entirely on the street and was caused when door staff and management properly refused entry to somebody who was the worse for wear through drink.
In many cases Police records produced to us to support their representations have consisted of the first few words of a longer incident. Detailed examination of the evidence behind it has been able to show that on this occasion the premises have operated perfectly properly and this has been accepted by the licensing officer. If the Government’s current proposal is accepted it may not be possible to see information of this nature and premises could be closed due simply to the use of ineffective data.
Consultation Question 5: How can licensing authorities encourage greater community and local resident involvement?
Consultation Question 6: What would be the effect of removing the requirement for interested parties to show vicinity when making relevant representations?
Most Licensing authorities consult widely on their licensing policies. It is arguable that the requirement for licensing authorities to review their policies is unnecessary and amendments could simply be made as and when they are necessary. Consultation should always include the trade.
One of the most significant changes in licensing occurred when the law changed in 2005. Resident associations and other bodies of a similar nature wield a considerable influence over licensed premises. A number of councils now write to local residents to alert them to an individual application. No assessment into these matters appears to have been carried out by the Government.
The use of the term “vicinity” is interpreted differently in a large number of licensing authorities. It is a difficult concept because people within a certain distance might be unaffected by the grant of the licence, whereas others beyond that locality might be affected when, for example, customers leave the premises. The difficulty with removing “vicinity” entirely would be that Licensing authorities could receive representations from national organisations with no particular objection to the individual licensed premises but a general objection to all licensed premises.
Section 158 of the Gambling Act 2005 defines an interested party as someone who, in the opinion of the Licensing Authority which issues the licence, or to which the application is made, is a person who:
- lives sufficiently close to the premises to be likely to be affected by the authorised activities;
- has a business interest that might be affected by the authorised activities;
- represents persons who satisfy a) or b).
This seems to us to catch those who have a genuine interest in commenting upon the licence or proposed licence. The definition does not create the same difficulties with distances and area as the current understanding of vicinity does. It allows authorities to consider the size of the premises, the nature of the premises, the distance of the premises from the person making the representation, the potential impact of the premises (number of customers, routes likely to be taken by those visiting the establishment, etc and the circumstances of the complainant, the size of the premises is obviously relevant as a large nightclub would have a different footprint from a small off licence).
Authorities should require written evidence that a person “represents” someone who would be an interested party.
Consultation Question 7: Are there any unintended consequences of designating health bodies as a responsible authority?
Consultation Question 8: What are the implications in including the prevention of health harm as a licensing objective?
These two proposals are in reality connected. There is little point in designating health bodies as a Responsible Authority unless there is also a prevention of health harm licensing objective. We understand the experience of this in Scotland has not been particularly favourable. We also believe that the creation of a new licensing objective now would make life very difficult for the 200,000 or so premises that have already got a licence based upon the existing four licensing objectives.
Will the condition be retrospectively applied to every single licensed premises? In our view that would be unfair. If it only applied to new licences or when a variation is applied for, this would be unfair to the new applicant and would restrict applications by existing licensees leading to a lack of improvement within the sector.
If the health authority has a particular concern in general terms based upon one of the existing licensing objectives then it can put that information in the public area and it can be taken up by other authorities or interested parties. If a local heath authority has a particular concern based upon their own proximity to the premises then they are entitled to raise this in any event.
Consultation Question 9: What would be the effect of making community groups interested parties under the Licensing Act, and which groups should be included?
We have no particular views on community groups and believe that they can generally be involved in the licensing process at present. It seems to us that any community group should be allowed to participate provided they have a legitimate interest. Licensing authorities where appropriate could inform them of the application. The problem with prescribing them is that some might be excluded for no reason other than the fact that they do not appear on the Government’s list.
Consultation Question 10: What would be the effect of making the default position for the magistrates’ court to remit the appeal back to the licensing authority to hear?
There seems little point in restricting the appeal process in this way. Has the government carried out any assessment of the number of appeals there have been since the fee was increased?
We are concerned with the statement at 5.18 that the Government is considering options to tighten the appeals process so that fewer appeals are heard in court, ensuring that where possible the power for determining licensing decisions remains with the licensing authority throughout. This is stated as the reason for the default position of remitting the case back to the licensing authority. The Government is therefore proposing (and consulting only) on the implementation of the proposals rather than inviting views on the commitments themselves. One cannot therefore consider this question alone.
If all the Government’s proposals were implemented then the licensing authority could have easily brought, for example, the review itself. It could determine it by removing the licence and not having to show that their actions in doing so were “necessary”. Alternatively the Police could recommend a reduction in the hours of the licensed premises with no opportunity to examine the evidence they would produce. In these circumstances is it seriously suggested that the reasons for the refusal to renew, or to cut back the hours, should not be properly considered in any other tribunal? This would clearly be open to abuse.
Counsellors could be elected upon the basis that they will promote a particular scheme on the high street. The only problem is that two licensed premises have been there for centuries and because of their position they render the scheme difficult to complete. In those circumstances the Counsellors could be elected to the Licensing Committee, review the licences and remove them from the premises. If the proposal at question 11 was then implemented the premises would then be unable to trade in the period before the appeal was heard. In those circumstances economic factors could force them to sell their premises. It would clearly be possible to challenge such a decision in the courts. On the other hand, owners of the licence of particular premises may not be able to afford to take this action.
It seems to us that it is important that Magistrates should be encouraged to deal with the appeal fairly and to hear the evidence in support of the council’s decision. They can then come to a decision of their own based upon the evidence. Only in this way will there be any independent ruling on the evidence. It should not be forgotten that the council also has a significant number of premises themselves and for this reason cannot be wholly impartial.
It is also important to recognise the fact that the Magistrates are generally lay people who are ruling upon the facts, rather than law.
This proposal, together with a number of others, also appears to be contrary to the current legislation on human rights. This is particularly true when the impact of the various proposals is taken together.
Consultation Question 11: What would be the effect of amending the legislation so that the decision of the licensing authority applies as soon as the premise licence holder receives the determination?
We have already dealt with some of our concerns in respect of this proposal. Any closure of licensed premises, for however short a period of time, can cause considerable problems for the business and the staff involved. Huge losses may occur and prove irrecoverable. This is particularly true if publicity from a licensing hearing has been adverse and the premises are subsequently allowed to reopen. Premises must be permitted to continue to trade in these circumstances. This period also gives an opportunity for any new measures that have been put in place to be monitored.
If the premises have been conducted particularly badly then existing powers of closure can be used to deal with these problems. If there is, or is likely to be, disorder or noise nuisance then the premises can be closed under s161 of the Licensing Act 2003. If conditions are being breached then s19 & 20 of the Criminal Justice & Police Act 2001 can be used to close the premises. If there is a drugs problem then there are powers of closure under the Criminal Justice & Immigration Act 2008. There is also the power for an expedited review in the event that problems of crime at the premises are particularly serious.
The period between the licensing authority hearing the case and the eventual appeal is a useful time for negotiations to take place. During this period agreements are frequently reached which enables the licence to remain in existence, either with additional conditions or with changes to the personnel or company owning it.
If the licensing authority had imposed a 3 month closure, it is unlikely that the appeal would be listed prior to the end of this period. This would remove any possibility of an effective appeal against the decision.
Consultation Question 12: What is the likely impact of extending the flexibility of Early Morning Restriction Orders to reflect the needs of the local areas?
There was little or no discussion or consultation over the previous Government’s decision to enable local authorities to restrict the sale of alcohol between 3am and 6am. Examination of the Crime and Security Act 2010 shows the effects of rushing through this particular amendment. It is not clear, within the Act, what distinction a local authority could implement when fixing upon a restrictive time. In other words would it be possible to distinguish discotheques from bars? The debate indicated that hotels could be considered separately. We are not convinced that the legal provisions enable this to be done. It does seem clear that the licensing authority will not be able to distinguish between premises which trade properly causing no difficulties at all and others which have problems. The proposal therefore is effectively a sledgehammer approach without allowing the licensing authority any particular discretion. We do not therefore feel that the Crime and Security Act should be amended to allow this power to be used. This is particularly so when an Early Morning Restriction Order (EMRO) is created on the basis that it is “beneficial” rather than “necessary”.
The use of EMRO’s could also result in significant differences between premises in adjacent communities. If one licensing authority adopted a tough line and imposed 12 midnight restrictions on all bars and nightclubs, this could lead to a significant proportion of people travelling to a neighbouring licensing authority that had not made the same restrictions. Implementation of the proposal could also lead to a considerable amount of unlicensed drinking based upon products bought from supermarkets and consumed in people’s houses.
Consultation Question 13: Do you have any concerns about repealing Alcohol Disorder Zones again?
No local authority has sought to implement an ADZ since June 2008 and on that basis this piece of legislation should be repealed.
Consultation Question 14: What are the consequences of removing the evidential requirement of Cumulative Impact Policies?
We do not consider 129 Cumulative Impact Policies a particularly low number. In Nottingham, for example, there would be no need to make a fresh CIP as the whole of the city centre licensed area is covered by the existing one.
It should be remembered that CIPs are not specifically dealt with in the Licensing Act. They are a creature of the Guidance. It seems to us that there must be a link to the licensing objectives. If there wasn’t such a link, then a Cumulative Impact Policy could simply be set up in an area where there were very few licensed premises. It has not been our experience that licensing authorities need to receive representations from a Responsible Authority as suggested in the consultation paper. The Guidance simply states that this is a matter that licensing authorities can consider when developing their licensing policy statements.
The Guidance refers to areas where the number, type and identity of premises selling alcohol are unusual and serious problems of nuisance and disorder may be arising. The evidential basis described at paragraph 13.26 talks about crime and disorder reduction partnerships having collated information which demonstrates cumulative impact as part of their general role on anti‑social behaviour; crime prevention strategies may have identified cumulative impact as a local problem; or Environmental Health Officers may be able to demonstrate concentration of valid complaints relating to noise disturbance. Reference is then made to open meetings where local residents and business people can discuss the licensing objectives. It is fair to say that the Guidance does require the licensing authority to consult widely but it is difficult to see how a policy of this nature could be justified in any other way. It is difficult to understand the point being made in 6.09 of the consultation as the licensing authority is not constrained as suggested.
It is also important to remember that paragraph 13.31 of the current Guidance states that a special policy should be reviewed regularly to assess whether it is needed any longer or needs expanding.
Consultation Question 15: Do you agree that the late night levy should be limited to recovery of these additional costs? Do you think that local authorities should be given some discretion as to how much they can charge under the levy?
If a Late Night Levy is to be imposed then we do believe that the amount should be determined by the Local Authority concerned. We also firmly believe that the money should be paid to that Local Authority who should be accountable for the use to which it is put. It is vitally important that the levy is used for the purpose for which it has been introduced and does not simply fall into the general pot for use by Local Government. For this reason, it is important to allow the Local Authority some discretion upon the amount although there should be an upper limit on what they can charge.
Consultation Question 16: Do you think it would be advantageous to offer such reductions for the late night levy?
It is vital that the Local Authority reduces the amount being paid by premises that are involved in Best Bar None schemes, Purple Flag Areas or Business Improvement Districts. This gives an additional incentive for premises to trade responsibly. As the Consultation points out at 2.07, et seq, huge reductions in crime have been observed in places where these schemes are in operation.
Consultation Question 17: Do you agree that the additional costs of these services should be funded from the late night levy?
It seems to us that if a Late Night Levy is imposed, it should be spent in partnership with the authorities and with the trade. Decisions on the way it is expended should be kept very much in the open. One can envisage, for example, that most businesses might be content with the levy paying for taxi marshalling but unhappy with it being used for street cleaning. Arguably taxi marshalling is a special feature for late premises whereas street cleaning is something that should be dealt with by the Local Authority out of its normal expenditure.
Consultation Question 18: Do you believe that giving more autonomy to local authorities regarding closing times would be advantageous to cutting alcohol related crime?
There are significant difficulties involved in introducing any of the measures proposed. Staggered closing times and zoning can be particularly unfair for the premises obliged to close at the earlier hour. The commercial effect may be that these premises will lose a significant proportion of their trade. It should be remembered that investments were made in premises of this nature under the current Licensing Law and reductions in hours can obviously cause significant commercial problems. It must also be remembered that there are well over 250 different Local Authority areas in England and Wales. Many of these are in close proximity to one another. If one town fixes earlier closing times people who live there may move to the neighbouring town to enjoy later hours. Their subsequent return to their own homes may cause the very problems that the local Licensing Authority is claiming to prevent.
It is also essential to consider the off trade. Whilst they may also suffer similar restrictions upon their sale of intoxicating liquor, there is little doubt that people consume significant quantities of alcohol purchased earlier in their or other people’s homes. They could cause considerable problems with drinking in town centres in an unsupervised environment.
Consultation Question 19: What would be the consequences of amending the legislation relating to TEN so that:
a. all the Responsible Authorities can object to a TEN on all of the Licensing Objectives?
b. the Police (and other Responsible Authorities) have five working days to a TEN?
c. the notification period for a TEN is increased and is longer for those venues already holding a Premises Licence?
d. Licensing Authorities have the discretion to apply existing licensing conditions applied to a TEN?
Consultation Question 20: What would be the consequences of:
a. reducing the number of TENs that can be applied for by a Personal Licence Holder to 12 per year?
b. restricting the number of TENs that can be applied for in the same vicinity (eg a field)?
The proposals in Chapter 7 do not appear to have been properly thought through and are confusing. With regard to the 48 hour period the Police have to object to a TEN, we believe that this is too short and we supported the previous Government’s proposals to extend this to two working days. We do not believe that this period of time would cause the Police any particular problems. As this comes into force in October, it seems to us that the Government would be well advised to await the outcome of this change to see whether there are any problems.
The previous Government’s Consultation on this also proposed that a shorter application period could be allowed for a TEN provided that the Police were happy. This has happened on an informal basis in a number of areas but quite properly a number of Licensing Authorities felt that this was not in compliance with the law.
Prior to the Licensing Act 2003, notice periods for extensions were very much shorter and did not appear to cause any problems. The current proposals do cause significant problems. If, for example, a TEN has been obtained well in advance for alcohol or entertainment at an outdoor festival, it is impossible at short notice to change the date. A fresh application would have to be made and there may not be time to have it granted. Sometimes organisations simply forget to apply for a TEN or one party assumes that the other is doing so. There have been no objections and the events has always been properly run in the past. Why in those circumstances, provided that the Police are happy, can’t the TEN be granted?
The Government’s proposal to apply existing licensing conditions is unnecessary. In many cases a TEN is used by premises to get round the restrictions imposed on the licence. If the Police are quite content then why should this be a problem? On the Government’s proposal it would be necessary to make an application for a new licence to cover this type of event.
Why should the Responsible Authorities have a right to object under the licensing law objectives. We are not aware that TENs generally have caused problems. On the same basis we are not aware of problems with occasional licences or special order of exemptions under the old law. These latter extensions were unrestricted in terms of the number that could be applied for. If a problem does occur then there are significant powers that the Licensing Authority has to deal with on review. It is worth remembering that reviews can be applied for by just about everybody and if they can make out their case then it is unlikely that further problems are going to occur with TENs.
For all these reasons, it seems totally unnecessary to increase the total time needed for a TEN. To suggest that premises such as a pub would have to provide longer periods of notice than a village community event seems utterly ridiculous. The pub will be run by one or more personal licence holders and there will be a Designated Premises Supervisor. If anything they should be required to give a shorter period of notice than some individual applying for a community event with no experience or knowledge of selling alcohol.
There also seems no justification in restricting the number of TENs that a personal licence holder can apply for. It must be remembered that prior to this Act, there were no restrictions at all and no harm was caused. We would suggest that the Government leaves TENs alone beyond changing the law to allow them to be granted on shorter notice where the Police are content that this is appropriate.
Consultation Question 21: Do you think 168 hours (7 days) is a suitable minimum for the period of voluntary closure that can be flexibly applied by police for persistently selling?
The voluntary closure for 48 hours under the current legislation appears to be working fairly well. It is difficult to see why this needs extending to a minimum period of 7 days. The Government has already cut down the number of sales to under 18 year olds within 3 months from 3 to 2. 48 hour closure at a time suggested by the police is a significant penalty upon a business and doesn’t need to be increased. In addition the proposal makes no mention of the size of the premises. There is clearly a difference between a small bar or off licence and a large supermarket or nightclub. Many more people attend the latter premises and there is a greater possibility for staff to make the occasional mistake.
Although the Government cites at 8.04 that a survey of children showed that about half of pupils that had ever drunk say that they do buy alcohol, it may be less than that as they may be protecting the adults who passed it to them.
There is a significant problem with underage people drinking alcohol and very little is done to prevent it. A client of ours reported to the Police that he had a 13 year girl at the door of his premises, who was clearly very much under the influence of drink and was holding a vodka bottle in her hand. He was advised that the Police could not do anything as they had had numerous other reports of similar matters that night. Simply penalising licensed premises in this way will not solve the problem of children drinking.
We believe that where licensed premises are found to be selling to underage people, then the most important step would be to provide proper training for all staff and a system set up to record where sales have been refused to those who are underage. It would be relatively simply to devise a straightforward and short training course for staff. Scotland insists that staff selling alcohol should have this training prior to doing so. Once the Police are satisfied that the training has been carried out the premises can be permitted to reopen. We believe this would be much better than determining a lower and upper limit for a period of voluntary closure.
Consultation Question 23: What do you think the impact will be of making licence reviews automatic for those found to be persistently selling alcohol to children?
We cannot see the need for an automatic review. It seems to us that discretion should remain with the authorities particularly if, for example, the premises have taken appropriate steps since the underage sale was made.
Consultation Question 24: For the purpose of this Consultation we are interested in expert views on the following:
a. simple and effective ways of justifying the “cost” of alcohol?
b. effective ways to enforce a ban on below cost selling and their costs?
c. the feasibility of using the Mandatory Code of Practice to set a licence condition that no sale can be below cost without defining cost?
We found this an extremely difficult question to answer. A number of Licensing Authorities have expressed concern and some appear to be imposing minimum prices. It does seem true that cheap alcohol purchased from off licensed premises can cause significant problems for the on trade. On the other hand this may be a small percentage of total alcohol purchased from supermarkets and other off licences. We can see that there could be considerable difficulties in imposing a minimum price.
Consultation Number 25: Would you be in favour of increasing licensed fees based on full cost recovery, and what impact would this have?
It is worth remembering that the Elson Report in 2006 also concluded that a significant sum should be returned by the Government to Local Authorities. We presume that this slightly embarrassing proposal was the reason why there was no increase in fees for licensees. Whilst we believe that it would be reasonable to increase licence fees, we believe they should be restricted to a reasonable amount.
Consultation Question 26: Are you in favour of automatically revoking the premise licence if annual fees have not been paid?
Prior to the Licensing Act 2003 this was effectively the position. There was however a period of time when the licence could be recovered in the same format as before if the fee was paid. If the Government proceeds with the automatic revocation of a premises licence, we think it is important to build in such a period of time.
We are also concerned that there is no central system adopted by licensing authorities for reminding licensees of the fee. Many companies are unable to pay fees without an invoice. In other cases licensing authorities do not send the request for fees to the premises licence holder. Sending it to the premises maybe ineffective due to a temporary period of closure. We believe there should be a central procedure prescribed for licensing authorities to demand payment of the fee. We also believe that all licensing authorities should have to set up direct debit procedures so that premise licence holders can more easily pay the fee.
Consultation Question 27: Have the first set of mandatory conditions that came into force in April 2010 had a positive impact on preventing alcohol related crime?
As we have previously stated, we do not feel that the Mandatory Conditions are well worded and in many cases are unnecessary. For example, it seems ludicrous to us that every single premises in the country has to have a condition effectively preventing people from drinking a yard of ale where somebody else assists. It would be much better to have introduced this condition for any particular premises that were providing this service and where problems were perceived. Additionally the conditions could have been better worded and for this reason we think that they should be repealed.
Consultation Question 28: Would you support the repeal of any or all of the mandatory conditions (this includes those already in force and those remaining two conditions coming into force in October 2010)?
Consultation Question 29: Would you support measures to deregulate the Licensing Act, and what sections of the Act in your view could be removed or simplified?
1. Previous research has shown that individuals find out about licensing applications mainly through notices on the premises or being told that an application has been made. Virtually nobody sees the advertisement in the newspaper. This is an additional expense for holders of licences and achieves nothing.
2. Improving the statutory forms – These are unnecessarily complicated and could be simplified.
3. Requirement for triennial reviews of local Licensing Policies – This is an unnecessary requirement when Local Authorities have, in the intervening period, made changes. We can see the need for Licensing Authorities to keep their policies under review but not if they have already updated them.
4. Need for a slip rule – Where mistakes are made in following the correct procedure there is no mention in the Licensing Act or any of the other Statutory Instruments of a slip rule. We believe that one should be introduced so that if a mistake is made then it can be put right without having to start the application over again. The slip rule requires the discretion of the Licensing Authority. If no harm has been done then there seems to be little point in the application being commenced again. Many Local Authorities do operate under this principle but it is questionable whether it is currently lawful.
5 The previously consulted upon question of licences lapsing in seven days following death etc..