IMPACT OF LICENSING REFORMS GARY GRANT BARRISTER FRANCIS

IMPACT OF LICENSING REFORMS GARY GRANT BARRISTER, FRANCIS TAYLOR BUILDING VICE-CHAIRMAN - INSTITUTE OF LICENSING www. ftb. eu. com 5 PACK+1 (December 2012)

GOVERNMENT’S AIMS Home Office Consultation: “Rebalancing the Licensing Act – empowering individuals, families and local communities to shape and determine local licensing”

THE FINER THINGS IN LIFE • A social drink - a fine wine • Music • Dance • Theatre • Films

SHORTER OXFORD ENGLISH DICTIONARY • “Licence” (also “license”) : 1. liberty to do something; 2. to permit (a thing) to be done; 3. to allow liberty or scope to.

SHORTER OXFORD ENGLISH DICTIONARY • “Licentious” : 1. Unrestrained by law, decorum or morality 2. Disregarding accepted rules 3. Libertine, lascivious, lewd

GOVERNMENT’S AIMS Home Office Minister, James Brokenshire MP: “… The majority of licensed premises are well run businesses, which provide a valuable service to their local communities and the Government recognises the important role which pubs can play as part of the fabric of neighbourhoods and villages. Whilst tackling alcohol-related crime is a priority for the Government, it will not be addressed at the expense of these responsible businesses. Instead the Government’s approach is to deal with the small minority of irresponsible premises that do not contribute to the well-being of local areas. ”

SLEDGEHAMMER OF CHANGE • Lowering evidential threshold • Licensing authorities as RA’s • EMRO’s and Late Night Levy • Tabloid frenzy over “binge drinking” • Home Office – change of tone

PERSPECTIVES “Every form of addiction is bad, no matter whether the narcotic be alcohol or morphine or idealism” – Carl Jung

PERSPECTIVES “For me, a zero tolerance policy in [alcohol licensing] is good: ‘You’ve had your warning, that’s it, you haven’t got a licence’ is for me, one of the best drivers for improving performance around licensing, where you actually keep the pressure on the licensee. ” -Bernard Hogan-Howe Commissioner of Metropolitan Police (October 2012)

BINGE DRINKING – THE NEW CURSE?

NHS STATISTICS (2012) • “Long-term downward trend” in the proportion of adults drinking. • 2010 (1998) – 68% (75%) of men and 54% (59%) of women reported drinking in week prior. • 2010 (2001) - 13% (26%) of 11 -15 year olds drank alcohol in week prior

NHS STATISTICS (2012) • 2001 – 2010 – 44% decrease in overall volume of alcoholic drink purchased for consumption outside the home • 1992 – 2010 – 45% increase in purchase of alcohol for consumption within the home

NHS STATISTICS (2012) • Alcohol 45% more affordable in 2011 than in 1980. • Married/cohabiting men and women most likely to report drinking on 5 or more days in previous week (16%) compared to single adults (7%)

NOT ALL BAD … • Alcohol industry contributes £ 29 billion to UK economy • Over 1. 8 million jobs in UK supported by alcohol industry • The greatest happiness of the greatest number

NOT ALL BAD … • Over 200, 000 premises licensed to sell alcohol: “Most make a positive and valuable contribution to their local communities” - Government’s Alcohol Strategy 2012

NOT ALL BAD … “[I]n moderation, alcohol can have a positive impact on adults’ wellbeing, especially where this encourages sociability. Well-run community pubs and other businesses form a key part of the fabric of neighbourhoods, providing employment and social venues in our local communities. ” -Government’s Alcohol Strategy

PERSPECTIVES “Beer is proof that God loves us and wants us to be happy. " - Benjamin Franklin

PERSPECTIVES “My rule of life prescribed as an absolutely sacred rite smoking cigars and also the drinking of alcohol before, after and if need be during all meals and in the intervals between them. ” - Winston S Churchill

PERSPECTIVES “Alcohol is the anaesthesia by which we endure the operation of life”. - George Bernard Shaw

COMMENCEMENT • Police and Social Responsibility Act – Royal Assent on 15 September 2011 • Majority of reforms commenced - 25 April 2012 (apply to applications made following commencement) • EMRO’s and Late Night Levy – 31 October 2012 • Locally set fees - April 2013?

LICENSING AUTHORITIES AS RESPONSIBLE AUTHORITY • Pro-active regulators – not just administrators. • Able to make representations to applications, launch a review or support another party’s reviews

LICENSING AUTHORITIES AS R. A • Fairness and Article 6 ECHR (emphasis added): “In the determination of his civil rights and obligations … everyone is entitled to a fair and public hearing … by an independent and impartial tribunal established by law. …”

LICENSING AUTHORITIES AS R. A • Guidance (paras 9. 13 -9. 19): • Licensing Authorities not expected to act as responsible authorities on behalf of other parties (but may if they fail to take required action) • Protect policy • Stand up for residents • Chinese Walls

HEALTH BODIES AS RESPONSIBLE AUTHORITY • Primary Care Trusts • “Public Safety” – logic (from Rebalancing the Licensing Act, Home Office Consultation): “Designating health bodies as a responsible authority under the Act would enable them to make representations about the impact of new or existing licensed premises on the local NHS (primarily A&E departments and ambulance services) or more generally the safety of the public within the night-time economy. The expectation is that such representations would be based on analysis of the types of data already used to identify problematic premises and local violence hot-spots …”

HEALTH BODIES AS R. A. • Guidance, 2. 17: “Public Safety” : “…This concerns the safety of people using the relevant premises rather than public health which is addressed in other legislation. Physical safety includes the prevention of accidents and injuries and other immediate harms that can result from alcohol consumption such as unconsciousness or alcohol poisoning…”

HEALTH BODIES AS R. A. • Evidence from hospitals of drink related admissions (College of Emergency Medicine guidelines on information sharing) • But no public health objective (unlike Scotland) • Limited resources • Health objective for cumulative impact policies?

LOWER EVIDENTIAL TEST • Necessary to appropriate

LOWER EVIDENTIAL TEST • “Necessary test” posed a “significant evidential burden” leading to a “defensive attitude” by LA’s. (Government White Paper). • Lower evidential test – “appropriate”

Section 182 GUIDANCE 9. 38 - Licensing authorities are best placed to determine what actions are appropriate for the promotion of the licensing objectives in their areas. All licensing determinations should be considered on a case-by-case basis. They should take into account any representations or objections that have been received from responsible authorities or other persons, and representations made by the applicant or premises user as the case may be.

GUIDANCE 9. 39 - The authority’s determination should be evidence-based, justified as being appropriate for the promotion of the licensing objectives and proportionate to what it is intended to achieve.

GUIDANCE 9. 40 - Determination of whether an action or step is appropriate for the promotion of the licensing objectives requires an assessment of what action or step would be suitable to achieve that end. Whilst this does not therefore require a licensing authority to decide that no lesser step will achieve the aim, the authority should aim to consider the potential burden that the condition would impose on the premises licence holder (such as the financial burden due to restrictions on licensable activities) as well as the potential benefit in terms of the promotion of the licensing objectives. However, it is imperative that the authority ensures that the factors which form the basis of its determination are limited to consideration of the promotion of the objectives and nothing outside those parameters…

GUIDANCE 9. 40 …The licensing authority is expected to come to its determination based on an assessment of the evidence on both the risks and benefits either for or against making the determination.

HUMAN RIGHTS & EUROPEAN LAW • European Law - principle of “proportionality” • Lord Bingham LCJ: “…the lawfulness of the prohibition of an economic activity is subject to the condition that the prohibitory measures are appropriate and necessary in order to achieve the objectives legitimately pursued by the legislation in question…

HUMAN RIGHTS & EUROPEAN LAW “…when there is a choice between several appropriate measures recourse must be had to the least onerous, and the disadvantages caused must not be disproportionate to the aims pursued. ” -R v Minister of Agriculture, Fisheries and Food and Another, [1991] 1 C. M. L. R. 507, cited in R v Secretary of State for Health ex p Eastside Cheese [1999] 3 CMLR 123 per Bingham LCJ

LEGISLATIVE AND REGULATORY REFORM ACT 2006 s. 21 Principles (1)Any person exercising a regulatory function to which this section applies must have regard to the principles in subsection (2) in the exercise of the function. (2)Those principles are that— (a) regulatory activities should be carried out in a way which is transparent, accountable, proportionate and consistent; (b) regulatory activities should be targeted only at cases in which action is needed. (3)The duty in subsection (1) is subject to any other requirement affecting the exercise of the regulatory function

CAN IT EVER BE APPROPRIATE TO TAKE A STEP THAT IS UNNECESSARY ?

THE WAY FORWARD? • “Appropriate” – confused, arbitrary and clumsy term. • Licensing authorities should ensure decisions are both “appropriate, necessary and proportionate” ?

REMOVING THE VICINITY TEST • An interested party was a person living, or involved in a business, in the vicinity of the premises (or representative bodies or councillors) • Abolition of “interested party” and replacement with “other persons”.

REMOVING THE VICINITY TEST • Anyone can make representations in so far as they are “relevant” to the Licensing Objectives. • I. e. must relate to the impact or likely effect of – for example - the grant of the application

REMOVING THE VICINITY TEST • Guidance “Other Persons” (emphasis added): 8. 12 …. Any representations made by these persons must be ‘relevant’, in that the representation relates to one or more of the licensing objectives. It must also not be considered by the licensing authority to be frivolous or vexatious. . .

REMOVING THE VICINITY TEST • Trade and moral objections ? • Irrelevant, vexatious and frivolous representations • Increased role for licensing officers

REMOVING THE VICINITY TEST • “Relevant” - relates to the likely effect of the grant of the licence on the promotion of at least one of the licensing objectives …representations should relate to the impact of licensable activities carried on from premises on the objectives. • Variations - to be relevant, representations should be confined to the subject matter of the variation.

REMOVING THE VICINITY TEST • “Frivolous” - categorised by a lack of seriousness e. g. issues which, at most, are minor and in relation to which no remedial steps would be warranted or proportionate. • “Vexatious” - intended to cause aggravation or annoyance, whether to a competitor or other person, without reasonable cause or justification

LATE NIGHT LEVY: IN A NUTSHELL

LATE NIGHT LEVY • Tax - on premises selling alcohol - anytime between the hours of midnight and 6 am - to be charged an additional fee for policing the night time economy. • Optional to adopt • The fee will be split 30% - 70% between the Council and the Police.

LATE NIGHT LEVY • How much? Based on rateable value, £ 299 -£ 4, 440. • Total cost to business is expected to be around £ 18 million per annum. • Non-payment – debt – suspension of licence

EMRO’s: IN A NUTSHELL

EMRO’S • Early Morning Alcohol Restriction Orders • Previously in the LA 03 but never commenced for premises between 3 am and 6 am. • To restrict the sales of alcohol in certain premises and in certain areas between the hours of 12 midnight and 6 am.

EMRO’S • Applies to Premises Licences, CPC’s and TENS. • Can be different hours on different days and apply to different parts of area • No exemptions (but New Year’s Eve and mini-bars and room service in hotels will not be subject to an EMRO)

TENS • EHO’s can also object in addition to the Police. • Objections can now be based on all Licensing Objectives. • More time to object - 3 working days. • Conditions on a licence can be included on the TEN, if they already on the Premises Licence and not incompatible.

TENS • Standard TENS – 10 working days notice • System of late TENs – 5 -9 working days notice. • Maximum number of TENS per premises increased from 15 -21 days • Longer duration, up to a week (previously 4 days).

LICENSING POLICY STATEMENTS • Shelf-life extended from 3 years to 5 years • Cumulative Impact Polices (Guidance 13. 19 – 13. 38) – evidential steps to CIP, off-licences no exception. • “Staggered hours” abandoned (Guidance 13. 42)

PREMISES LICENCE APPLICATIONS • Guidance (paras 8. 34 et seq) - applications tailored to reflect expectations of licensing authority and responsible authorities. • Applicants to demonstrate knowledge of their local area ( – e. g. layout or local area, physical environment, crime and disorder hotspots, any risk posed to local area, local initiatives). • No standard conditions- steps proposed “realistic, proportionate, and within the control of the applicant and management of the premises”

FEES • Non-payment of fees must lead to suspension of premises licence. • Grace period of 21 days – if administrative error or challenge. • Locally set fees – full cost recovery (not yet in force)

CHILD PROTECTION • Maximum penalty for persistent selling of alcohol to children (twice in 3 months) increased £ 1020, 000 fine. • Increase the alternative “voluntary” suspension from 48 hrs to up to two weeks.

CONSULTATION ON ALCOHOL STRATEGY • A ban on multi-buy promotions in shops and offlicences to reduce excessive alcohol consumption • A review of the mandatory licensing conditions, to ensure that they are sufficiently targeting problems such as irresponsible promotions in pubs and clubs • Minimum unit pricing, ensuring for the first time that alcohol can only be sold at a sensible and appropriate price

CONSULTATION ON ALCOHOL STRATEGY • Health as a new alcohol licensing objective for cumulative impacts so that licensing authorities can consider alcohol-related health harms when managing the problems relating to the number of premises in their area • Cutting red tape for responsible businesses to reduce the burden of regulation while maintaining the integrity of the licensing system

CONCLUSION • Brave new world or lost balance? • Government’s Alcohol Strategy – a change of emphasis?

FURTHER INFORMATION: GARY GRANT FRANCIS TAYLOR BUILDING INNER TEMPLE LONDON EC 4 Y 7 BY gary. grant@ftb. eu. com www. ftb. eu. com