Posted: Friday, 13 August 2010 @ 15:25
Police to take over Licensing?
Perhaps it is going too far to suggest that the Police are taking over licensing, but the trade would be forgiven for thinking that the pendulum is about too swing too far in favour of the Police.
Here I am referring to the Home Office consultation on revamping the licensing laws to put more power in the hands of local Police and communities. A few weeks back I blogged about the Derby Police call for a freeze on new licences in the city. I said that under the existing law that was not possible, but watch this space. The Superintendant knew what was coming. The changes now proposed would allow just such a scenario.
So what is the consultation all about? For a start the consultation period is only 2 months and over the holiday period, from 6 July to 8 September. And the Home Office has made it clear that as the reforms are in the Coalition Agreement they will only be talking about the detail of implementing the proposals. The proposals themselves seem to be set in stone.
So what are we in for? Basically, we are looking at a massive shift in licensing philosophy, which will put all the power in the hands of the Police, local communities, and licensing authorities. Such are the measures that the trade will have little scope for argument against any attack from these bodies.
The main proposals are:
1. Licensing authorities will become “responsibe authorities” and will therefore have the power themselves to refuse an application or call for a Review of a Premises Licence.
2. Licensing authorities will no longer need to justify their decisions as “necessary” for the promotion of the licensing objectives. The standard will be “appropriate”.
3. Licensing authorities will have to accept all the representations and notices from the Police, unless there is clear evidence that they are not relevant. This is the most worrying proposal in my view.
4. The appeals process will be limited, and this will make the licensing authorities and Police more difficult to challenge.
5. Applicants will have to demonstrate how granting an application will impact on the local area and how they will deal with any negative impact.
6. Any person or body in England and Wales can object to an application wherever it is made.
7. Health bodies will become “responsible authorities”, and so can object to applications, and the prevention of health harm will become a licensing objective (as it now is in Scotland). Perhaps this is the thin edge of the wedge as far as the future of alcohol sales is concerned. Is booze going the same way as tobacco?
8. The new power which allows licensing authorities to make “Early Morning Restriction Orders” to prohibit the sale of alcohol between 3 am and 6 am will be extended to allow any hours to be prohibited if considered “beneficial” for the promotion of the licensing objectives.
9. The whole idea of avoiding set hours will be abandoned, so staggered hours, zoning, or fixed closing hours will be possible, giving licensing authorities the “power to make decisions appropriate for their area based on local knowledge”.
10. It will be much easier for licensing authorities to introduce Cumulative Impact Policies. These restrict new applications and variations in a given cumulative impact zone. Alcohol Disorder Zones will be abolished. Not one licensing authority has introduced one due to the cost and doubtful benefit.
11. There will be a huge change for Temporary Event Notices. I am not aware of any abuses to the system but certain police authorities in the largest cities have never liked them. Already in the pipeline is a change coming into force in October increasing the time for Police objections from 48 hours to 2 working days. The proposal is to:
a. increase the time for objections to 5 working days,
b. to require notices for premises with an existing Premises Licence to give a minimum of one month’s notice, and other notices 15 working days,
c. to allow any “responsible authority” to object (not just the Police as at present),
d. to allow existing licensing conditions to be attached if the premises concerned already has a Premises Licence,
e. to allow objections on any of the 4 licensing objectives (not just crime and disorder as at present),
f. to restrict a Personal Licence holder to just 12 in a calendar year (currently 50), (this could impact on event traders)
g. Restrict the number of notices for a single vicinity to just one. This could have huge implications for fairgrounds and other outside venues which may in future require a Premises Licence.
12. For the persistent sale of alcohol to children (twice in any 3 month period) the maximum fine will be increased fro £10K to £20K, and the voluntary closure provisions will be increased from up to 48 hours to a minimum of 168 hours (7 days), with a new upper limit to be decided!!! This is what they were hinting at when saying they were giving the Police new powers to close licensed premises. In the current economic climate this would be a death sentence for many. And even then there will be an automatic Review of the Premises Licence in every case.
13. A ban on “below cost sale” of alcohol. This is aimed at the supermarket promotions which are seen as fuelling binge drinking through the pre-loading culture. What this will mean in practice is difficult to say. There is a danger that any scheme would be in breach of EC trade and competition laws. They are looking at “net invoice price”, or “average cost”, or making it a licensing condition not to sell it below cost.
14. Allowing licensing authorities to set fees on a local level to allow “full cost recovery”. This could herald a massive rise in fees in large cities with aggressive licensing authorities. Given the expected significant increase in work as a result of the proposals mentioned above, this must be very worrying for a hard hit trade. And to add further misery, licensing authorities will have the power to impose a late night levy on all premises open after a specified time.
15. The only good news for the trade is that the recent additional 5 mandatory conditions (the last 2 coming into force in October) may be axed after consultation, and the application forms for a Premises Licence and the Temporary Event Notice will be simplified. But this will be little comfort given the draconian powers given to the Police in particular.
The biggest fear for the trade is that local Police are rarely impartial. They are constrained by a tight budget and are being asked to make significant cuts. They see policing town centres late at night as being a huge drain on their resources. They are not concerned with a vibrant economy or other social and economic drivers. Their budget restrictions will motivate them to do everything possible to limit opening hours of licensed premises. It is also clear that the Police are not always the best when it comes to knowledge of licensing law and how to run a licensed business. The tales of recent World Cup Police intervention in certain areas are a good example.
It is clear that the trade is in for a very rough ride and even the best run establishment will have plenty to be worried about. Outside agencies will be interfering more and more in their business, and the cost to businesses is set to rise significantly. I see little evidence of removing red tape as far as the trade is concerned.
We will have to wait until the Police Reform and Social Responsibility Bill is published in the autumn before we know how much the government has listened (probably not at all) and what lies ahead. What we know already is bad enough but the devil will be in the detail.
Licensing law Specialist
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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