Following its consultation in the summer, the Government has announced its final proposals to overhaul licensing law in England and Wales.  The Police Reform and Social Responsibility Bill which includes most of these proposals, received its First Reading in the House of Commons on 30 November 2010. We take an in-depth look at what’s in it. Today, we consider the proposals which may lead to more representations about applications.

opening up applications to more representations

The Bill proposes to abolish the test of “vicinity” of local businesses and residents to the premises when considering whether their representations about an application were relevant. This came to mean that businesses and residents would have to be directly affected by the activities at the premises in order to be relevant to the application. The Bill will allow any business or resident in the Licensing Authority’s area to make representations about an application, whether or not they are directly affected or not.

The Government is also suggesting Licensing Authorities be responsible for advertising the application in addition to the applicant. This advertising will have to be in the prescribed form. Presumably, this will take the form of a public notice perhaps advertised at the town hall. Anything over and above that would be an unwelcome burden on Licensing Authorities.

It is of course essential the views of residents and business in the vicinity of a licensed premises and the impact those premises might have on them are taken into account during the licensing process. But what is the justification for allowing someone from, say, the other side of town a say in a licensing application? The current test that representations must not be “frivolous or vexatious” will remain, but this proposal will lead to more arguments about this with very little benefit.

responsible authorities

The Government is pressing ahead with its plans to make both Licensing Authorities themselves and public health bodies Responsible Authorities under the Licensing Act 2003.

licensing authorities

Licensing Authorities will now be able to object (make representations against) all applications relating to Premises Licences or Club Premises Certificates. They will also be able to make representations supporting Reviews automatically held after Closure Orders are made. Interestingly, the Bill does not prevent Licensing Authorities from providing positive representations in respect of applications made on behalf of the Council itself. Licensing Authorities will be able to refuse applications and remove or review licences themselves, without waiting for representations or reviews from Responsible Authorities or Interested Parties.

politicised decision-making?

We reported our concerns about the political nature of licensing hearings and decisions in the summer. We have attended many licensing hearings where the Licensing Committee believe it is their job to represent local residents. The danger in giving Licensing Authorities more powers to refuse applications and review / remove licences is that these decisions will become more politicised. Whatever the problems with the current system there is – at least in most cases – some semblance of independence and objectivity from the Responsible Authorities when making representations against applications or applying for reviews.

no evidence required

As suggested, the Bill removes the requirement for steps taken by the Licensing Authority when determining a licensing application to be “necessary” to promote the licensing objectives, and reduces that requirement to anything which is “appropriate” to promote the licensing objectives. The Consultation Document stated:

Licensing authorities are currently required under the Licensing Act to demonstrate that these actions are “necessary” for the promotion of the licensing objectives in their local area. This places a significant evidential burden on the licensing authority. The Government is considering amending the Act to reduce the burden on licensing authorities from the requirement to prove that their actions are “necessary”, to empowering them to consider more widely what actions are most appropriate to promote the licensing objectives in their area.

Licensing Authorities will receive new powers to refuse applications and remove / review licences and will not have to prove that doing so is necessary to promote the licensing objectives! We remain concerned this will lead to more applications being decided on purely political grounds.

public health bodies

The Government has given Primary Care Trusts (PCTs) and Local Health Boards the power to make representations against applications related to Premises Licences and Club Premises Certificates and to Review those types of licences. PC Ts provide primary and community health services such as hospitals and community health centres. Local Health Boards oversee these services. In our view, making representations will prove difficult in respect of licence applications. Applications will continue to be determined on their individual merit. It is unlikely a local health body will be able to state, in any certainty, that a particular premises will be a drain on NHS resources. In theory, it is much easier to make this case out for existing premises. The consultation document envisaged data being available from A&E Departments and ambulance services which will pinpoint which premises are “problematic premises and local violence hot-spots”.

a question of evidence

We continue to be concerned as to how the evidence will be collected. It may be that the victim will be asked where they had been drinking when the violence or disorder took place, or perhaps the ambulance crew will record which premises they attended. This will not be an accurate record in many cases. We have been involved in cases where incidents have been recorded against premises simply because they took place outside of those premises, with no evidence that those involved were customers. It is also flimsy evidence on which to take away someone’s livelihood. The consultation document did not suggest such records should be collated with, for example, witness statements or CCTV footage from the premises themselves. This makes it difficult to justify the evidence when a representation is made at a later date, and for the licensee to defend themselves at a hearing which will be well after the event.

no new licensing objective

Fortunately, the Government has decided not to make “preventing harm to public health” a fifth licensing objective. This is welcome. However, it does mean that public health bodies will be restricted to the current licensing objectives. Our view is that most of them will be competent only to speak in respect of the public safety and protection of children from harm objectives.

What do you think? Will these proposals lead to more representations? Please leave your comments below.

If you have any queries relating to this article, please contact either Lisa Croft, Michael Parrott or Rob Westwood-Payne on 01242 285855 or email us.

As this information has been prepared by Maitland Walker LLP as a general guide, we recommend you seek specific professional advice before acting on any information contained within it. No liability can be accepted by Maitland Walker LLP for any action taken or not taken as a result of this information.

Maitland Walker LLP is regulated by the Solicitors Regulation Authority.