2016 Response to Lords Questionnaire on Licensing Act (September)

RESPONSE to QUESTIONNAIRE

Licensing objectives

Question 1

Are the existing four licensing objectives the right ones for licensing authorities to promote? Should the protection of health and wellbeing be an additional objective?

No.

In terms of protecting the amenities of residents, the third licensing objective - the prevention of public nuisance - has proved inadequate. Licensing Authorities have taken the legal view that evidence in support of likely damage has to be hard. This means that, unless the public nuisance already exists, any concerns about future likely loss of amenity and breach of the prevention of public nuisance are rejected. Accordingly new premises licences and extensions of hours are almost invariably granted against the wishes of fearful residents. The recourse to mitigate damage is to use the process of seeking a review; residents have to suffer the noise-nuisance and anti-social behaviour in order collect evidence, a process that can take a year or more. A third of all reviews are about public nuisance.

We do not see how the members of Licensing Committees can ensure that a premises licence has a positive effect on 'health and well-being' either of the customers or the community. The Act controls the sale of alcohol and has no control over the consumption of alcohol other than prohibiting the sale of alcohol to those who are inebriated or underage.

The key fault in the legislation in the 2003 Licensing Act is the conflict between planning legislation, which is concerned with the protection of the amenity of the environment, and the licensing legislation, which is governed by the licensing objective of preventing public nuisance, a much narrower criterion.

It is our view that the third licensing objective should be changed to 'the prevention of loss of amenity of the environment'.

Question 2

Should the policies of licensing authorities do more to facilitate the enjoyment by the public of all licensable activities? Should access to and enjoyment of licensable activities by the public, including community activities, be an additional licensing objective? Should there be any other additional objectives?

No.

The 2003 Licensing Act already provides too much facility for the public enjoyment of licensable activities. The noise-nuisance, the anti-social behaviour, the disturbance to sleep due to late night activities and the damage to property from drunken behaviour that blight so many UK town and city centres and some countryside areas are entirely attributable to the 2003 Act's freedom to providers of licensable activities. The Act has not led to the expansion of a café society but has instead led to the expansion of an alcoholic society.

The balance between rights and responsibilities

Question 3

Has the Live Music Act 2012 done enough to relax the provisions of the Licensing Act 2003 where they imposed unnecessarily strict requirements? Are the introductions of late night levies and Early Morning Restriction Orders effective, and if not, what alternatives are there? Does the Licensing Act now achieve the right balance between the rights of those who wish to sell alcohol and provide entertainment and the rights of those who wish to object?

Yes, but it has done too much.

The Live Music Act has added to the noise pollution of many town and city centres to the detriment of residents anywhere near where live music is played without the need for a licence. It also is disturbing to many pedestrians passing by live music both in the street and within retail premises. Buskers can now play their tin whistles with accompanying amplified backing music without a licence.

The legislation considers 2300 hours is a reasonable hour for non-licensable live music to stop, whereas a substantial proportion of the community expect to be asleep by that time including children, the elderly and most workers. The 1967 Licensing Act closed licensed premises at 2300 hours, so any noise-nuisance was limited to the time customers left the premises. Noise-nuisance from the built licensed premises was unusual prior to the 2003 Act. Whereas prior to the 2003 Licensing Act most street noise ceased before midnight, it is now common place for street noise-nuisance to continue into the early hours on nights when licensed venues take advantage of their extended hours of opening.

The number of Late Night Levies is so low and there are no EMROs in force, that their effect is virtually nil.

Residents involved in the licensing regime have concluded that the 2003 Licensing Act favours the licensees and discriminates against residents.

Question 4

Do all the responsible authorities (such as Planning, and Health & Safety), who all have other regulatory powers, engage effectively in the licensing regime, and if not, what could be done? Do other stakeholders, including local communities, engage effectively in the licensing regime, and if not, what could be done?

No.

Planning and licensing authorities on the whole ignore each other. They may exchange data, but planners rarely engage in the licensing regime. Although planning legislation is paramount, premises licences often grant longer opening hours and impose fewer conditions on the use of premises in terms of noise control than those imposed in planning conditions. The use of pavement seating is often left to Highway Authorities, whose concern is primarily with public safety and with no concern for public nuisance or loss of amenity of residents. As a result noise-nuisance is a frequent problem late at night and in the early morning from the use of pavement seating.

Local communities can be relied upon to engage in the licensing regime, but their involvement is rarely effective in preventing late night opening or the noise-nuisance emanating from licensed premises and pavement seating. The regime is clearly biased in favour of licensees.

A key measure would be to ensure that licensing conditions do not conflict with relevant planning conditions.

Licensing and local strategy

Question 5

Licensing is only one part of the strategy that local government has to shape its communities. The Government states that the Act 'is being used effectively in conjunction with other interventions as part of a coherent national and local strategy.' Do you agree?

No.

The appearance of numerous entertainment centres selling alcohol all day and into the early hours of the night in our town and city centres has produced a blot on their landscape. That has been the 'effect' of the 2003 Licensing Act. There may be a thriving Cafe Society during the day but after 1800 hours many town and city centres become an Alcohol Society to the detriment of the environment. It may be commercially profitable for the entrepreneurs but it ruins the environment.

Sadly many members of licensing committees take the view that town and city residents should accept the noise-nuisance from late-night licensed venues, because it is part of living in the centre. They ignore the fact that most urban centre noise-nuisance used to cease before midnight, and its extension into the early hours of the night has only developed in the last ten years since the 2003 Licensing Act was implemented.

Question 6

Should licensing policy and planning policy be integrated more closely to shape local areas and address the proliferation of licensed premises? How could it be done?

Yes.

Simply ensure that planning consent must be obtained before applying for a premises licence, and that conditions on a premises licence must not conflict with relevant planning conditions where they exist, and they must consider the general effect on the environment.

Crime, disorder and public safety

Question 7

Are the subsequent amendments made by policing legislation achieving their objects? Do they give the police the powers they need to prevent crime and disorder and promote the licensing objectives generally? Are police adequately trained to use their powers effectively and appropriately?

No.

The police are primarily concerned with the crime and disorder licensing objective. They rarely consider public safety a police matter, and public nuisance is of no concern. .Some police authorities include anti-social behaviour as part of crime and disorder, but they rarely take any action.

Question 8

Should sales of alcohol airside at international airports continue to be exempt from the application of the Act? Should sales on other forms of transport continue to be exempt?

No comment.

Licensing procedure

Question 9

The Act was intended to simplify licensing procedure; instead it has become increasingly complex. What could be done to simplify the procedure?

It might be helpful to separate the licensing regime for the sale of alcohol from the licensing regime for entertainment. The first could well be restored to Licensing Magistrates leaving the entertainment licensing to local authorities. The police would not then need to be involved in entertainment licensing. This separation of roles has already taken place in the ministries with alcohol licensing now in the remit of the Home Office leaving entertainment licensing at the Department for Culture, Media and Sport.

Question 10

What could be done to improve the appeal procedure, including listing and costs? Should appeal decisions be reported to promote consistency? Is there a case for a further appeal to the Crown Court? Is there a role for formal mediation in the appeal process?

Residents are excluded as third parties when a licensee appeals a licensing decision in a Magistrate's Court. When the subject of the appeal is about conditions imposed as a result of residents' representations, residents cannot offer evidence to support the Licensing Authority unless invited by the Authority to appear as witnesses. We seek the right of those, who made representations, to be eligible as third parties at appeals.

Mediation is already an important feature of the licensing regime. Licensing officers, if asked by applicants, advise applicants on their proposals. Licensing Officers may advise applicants to mediate with those making representations, but this is optional. Police already discuss their concerns with applicants. Residents are excluded from these endeavours, so that they are unaware of the changes until the hearing. The process might be improved if those making representations were also privy to any mediation, and so could offer their advice on preventing problems with the community.

Sale of alcohol for consumption at home (the off-trade)

Question 11

Given the increase in off-trade sales, including online sales, is there a case for reform of the licensing regime applying to the off-trade? How effectively does the regime control supermarkets and large retailers, under-age sales, and delivery services? Should the law be amended to allow licensing authorities more specific control over off-trade sales of 'super-strength' alcohol?

Yes.

Off-sales need more control since patrons of licensed venues often prime themselves with cheap off-sales alcoholic drinks before starting a night out. They are not obviously inebriated so entry to venues is not banned, but they can become drunk quite quickly once inside the venue.

Prohibition of discounted and cheap alcoholic drinks is the simplest way of controlling off-sales.

Pricing

Question 12

Should alcohol pricing and taxation be used as a form of control, and if so, how? Should the Government introduce minimum unit pricing in England? Does the evidence that MUP would be effective need to be 'conclusive' before MUP could be introduced, or can the effect of MUP be gauged only after its introduction?

Yes.

Evidence from Australia and Continental Europe is surely enough to prove that taxing alcohol is the simplest and most effective way of controlling the consumption of alcohol. It is not necessary to prove the value of increasing the tax on alcoholic refreshment in the UK, when there is so much well-founded evidence from several other countries. The European Commission document, 'Binge Drinking and Europe 2008', established the benefit of taxation in reducing alcohol consumption and the undesirable effects of excessive alcohol consumption.

Minimum Unit Pricing may appear simple, but the extra price goes to the licensee, whereas increasing the tax would go to the Exchequer.

Fees and costs associated with the Licensing Act 2003

Question 13

Do licence fees need to be set at national level? Should London and the other major cities to which the Government proposes to devolve greater powers, have the power to set their own licence fees?

The fees for licensing should be sufficient to cover the cost of providing the licensing regime of the Licensing Authorities, the enforcement of the 2003 Licensing Act and the cost of policing. The costs will vary according to the number and nature of the licensed venues, so the fees should be determined locally.

International comparisons

Question 14

Is there a correlation between the strictness of the regulatory regime in other countries and the level of alcohol abuse? Are there aspects of the licensing laws of other countries, and other UK jurisdictions, that might usefully be considered for England and Wales?

This answer is given as a result of data from members and is not derived from known legislation.

Most European countries have legislation banning the consumption of alcohol by youngsters outside the home and imposing blood levels of alcohol on drivers, but most of the management is decided not by legislation but by those selling and serving the alcoholic refreshment. Accordingly the hours of the availability of alcohol are often determined by the local culture and the proximity of residential properties, which is taken seriously by those providing alcoholic refreshment.

In the bars and clubs of many European countries alcoholic refreshment is provided by a waiter/waitress service, which can ensure that alcohol is not served to those who 'have had enough'. In every licensed venue in France there are conspicuous notices 'Contre l'Ivresse', and we should have a similar campaign.

As a consequence of these policies, drunks are rarely seen on the streets in towns and cities in most continental European countries, and there is no prominent night economy. Only where holiday resorts have succumbed to the British drinking culture, this may not be true.

September 2016                                                Alan B Shrank - NORA chairman