Posted: Friday, 29 July 2011 @ 15:06
The Police Reform and Social Responsibility Bill is nearing the end of it’s passage through Parliament and will probably be given the Royal Assent before the Autumn is out and come into force some time early next year.
So what is all the fuss about and what will it mean to the licensed trade?
You may recall that when the consultation process was bounced through with the elegance of a kangaroo late last summer, the Government’s strap line was that it was conducting a “re-balancing” exercise. Not many thought such an exercise was necessary given the multitude of powers already at the disposal of the police and licensing authorities, but you know politicians. They love a soundbite and the effects of smoke and mirrors.
First the good news. A controversial proposal to require the licensing authorities to accept police representations evidence and recommendations has been dropped. Also dropped is the proposal to make the prevention of health harm a licensing objective. Finally the proposed restrictions on the rights of appeal have been dropped. Common sense has prevailed. Perhaps it was sabre rattling after all.
So what are we left with? A number of significant changes, which will have far reaching effects on the trade, mostly for the worst. I will first of all mention the main ones.
• more power to licensing authorities and those who may wish to object to applications or take a Premises Licence to a formal Review.
• a significant increase in the maximum fine for sale of alcohol to under age persons.
• a far reaching power for licensing authorities to introduce Early Morning Alcohol Restriction Orders.
• the introduction of the Late Night Levy which will impact those premises selling alcohol after 12 midnight.
• power is to be given to licensing authorities to set their own fees, subject to some restrictions.
• good news of sorts for Temporary Event Notices, with a new procedure for those (late notices) served no earlier than 9 working days and no later than 5 working days before an event, the current cut off being 10 working days for all Notices. The down side is that not only the police but environmental health may also object, and that for the first time conditions may be imposed on Notices.
I will now explain in a little more detail:
1. Responsible authorities, objections and evidence
This is where the so-called “re-balancing” takes place. Firstly licensing authorities will themselves become “responsible authorities”. This means that for the first time they will themselves be able to object to applications and can also initiate a Review of a Premises Licence. So they will become judge and jury! It is a good job the government dropped the restrictions on appeals!
Secondly, the licensing authority will no longer have to show that any decision it takes is “necessary” for the promotion of the licensing objectives. The standard in future will be “appropriate”, which does not have the same degree of certainty as “necessary”. It appears to be exchanging an objective test for a subjective one, and this in itself may mean that an appeal is more difficult.
Thirdly, there has been a significant change in those who may object to an application and who may apply for a Review of a Premises Licence. The “vicinity” test has been removed. In future anyone may object or apply for a Review, wherever they live or are situated.
Another change is that in future licensing authorities will themselves be required to advertise an application for a Premises Licence or variation. It is not clear whether this will replace the need for the applicant to advertise and display. We shall have to wait for the appropriate regulations. Leaving it to the licensing athorities could delay significantly the progress of an application, unless short time limits are imposed on them.
Fourthly, health authorities will become responsible authorities, but at least the government dropped the proposal to add prevention of health harm as a licensing objective. That could have been the death knell for the trade. But it begs the question as to what role the health bodies will play in the licensing process, and there will be an obvious increase in red tape.
2. Under age sales
The maximum fine for persistently selling alcohol will be increased from £10,000 to £20,000
Police will be able to issue closure notices for persistent selling to children with a minimum of 48 hours and a maximum of 336 hours closure. At present there is a maximum of 48 hours. You will remember that the licensee will have a choice whether to accept the Notice with the Police demands-which may be the maximum 336 hours, or face being taken to court with the possibility of a criminal conviction and massive fine. The price for avoiding court action is therefore going to rise significantly.
3. Early Morning Alcohol Restriction Orders (EMARO)
A licensing authority may make an EMARO if it considers it “appropriate for the promotion of the licensing objectives”, and may specify any time between 12 midnight and 6am when the order will apply. This will prevent the sale or supply of alcohol by anyone, including clubs, and even under a Temporary Event Notice, during the times specified. The EMARO may be limited to a certain area, or certain days and times. The licensing authority has complete flexibility.
Before an EMARO can be ordered, the proposal has to be advertised and a hearing held if any one objects.
This is a powerful weapon for licensing authorities which could have a huge impact on the late night economy.
4. Late Night Levy
Every licensing authority will be able to decide whether to introduce a late night levy in its area. In making the decision they must consider the costs of policing and other arrangements for the reduction of crime and disorder relating to the supply of alcohol between midnight and 6am.
A specified proportion will have to be made to the local policing body, so it is to be expected that they will put maximum pressure on the authority to introduce the levy! But on the plus side the police will no longer be able to complain that they do not have the resources to police the late night economy.
Unfortunately there is a one size fits all proviso, that it is all or nothing. All the licensing area or none of it. It is to be expected that licensing authorities will rush to introduce this to raise extra revenue, and the effect will be that many premises with no problems for example in rural areas will have to pay the levy if they sell alcohol between midnight and 6am. There is the provision for regulations to allow exemptions, but at the moment we must fear the worst.
Regulations will also be made to cover the finer detail.
The government currently sets the fees. In future licensing authorities may themselves be given power to set their own fees to recover costs involved in discharging their licensing functions as well as a reasonable share of their general costs. Quite clearly the fear is that licensing fees will rise significantly and unchecked. We shall have to wait to see the regulations setting out the proposals in detail. Hopefully they will provide some sort of cap on fees.
Another change is the introduction of a power for licensing authorities to suspend a licence for non payment of annual fees after a 21 day grace period.
6. Temporary Event Notices
As I have already mentioned, some good and some bad. There will be 2 types of TENs. A standard notice and a late notice. A standard notice is one given with a minimum 10 clear working days before the event. A late notice is one given not earlier than 9 clear working days and not later than 5 clear working days before the event.
For a personal licence holder the maximum number of standard notices per calendar year remains at 50, but there is a new maximum of 10 late notices per calendar year. For anyone else the maximums are 5 for a standard notice and 2 for a late notice. It is a pity that the maximum number for any one premises of 12 per calendar year has not been extended.
What will be extended is the number of hours an event may last, increased from 96 hours to 168 hours, with events covering a maximum of 21 days per calendar year rather than the present 15.
There are 2 stings in the tail. Firstly not only the Police but now the environmental health officer must be served with the application, and may object. Secondly the licensing authority in the case of any objections will be able to impose conditions on the TEN “appropriate” for the promotion of the licensing objectives where such conditions are already on a Premises Licence where the event is to take place.
There are a few other changes brought in. There are some additions to offences relevant to an application for a Personal Licence, and the relaxation of the requirement for licensing authorities to review their licensing policy. In future they need only do so every 5 years rather than every 3 at present.
And finally, the infamous Alcohol Disorder Zone laws are being scrapped. What a waste of time and money. No one wanted them and no one used them. What we have in the introduction of the Late Night Levy and the possibility of Early Morning Restriction Orders is another set of tools available to licensing authorities to exert control over their problem areas.
My Advice is that if you are considering applying for a new licence or varying an existing licence or giving a Temporary Event Notice, you do so before these new laws come into effect.
Licensing Law Specialist
Tel: 0845 003 5639
Blog by Nigel Musgrove
Nigel has been providing dispute resolution advice as a solicitor for over 35 years. As well as advising SMEs and business owners on disputes he also offers a specialist licensing law service. View profile
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