I got this off our lawyer today and as a festival we will be providing our own response as well as one being issued via AIF. I have copied and pasted the email as basically it all holds some relevence. Flounder has set up a facebook group http://www.facebook.com/group.php?gid=146545168694910&ref=mf Please join it and I am sure it will get updated but if this affects you send a specific response.
I am sure you are aware of the above, but I attach a copy of my colleague Jeremy Allen’s recent eNews on proposed changes to Licensing which I recommend that you read in full. The consultation ends on 8th September 2010 – a very short period for such fundamental proposals – and Poppleston Allen will be contributing to Responses to the Home Office proposals in association with certain trade bodies.
However, the proposals are so sweeping and important to the licensed trade it is worth filing a specific Response.
I also attach for your information the Consultation document.
If you wish to forward this to anyone at the Association please feel free.
Enews 28 July 2010.
The Home Office has published a consultation entitled "Rebalancing the Licensing Act". It talks about empowering individuals' families and local communities to shape and determine local licensing. Whilst it starts by praising licensed premises working with the police to reduce alcohol related harm, mentioning BIDs and BBNs, it then goes on to make suggestions for improving the licensing system, which will make most licensees' hair stand on end. The changes suggested could have a bigger impact than those made when the Licensing Act 2003 came into force. That was consulted upon and took around five years to come into force. Here the response is required by the 8th September and the intention appears to be to legislate as soon as possible using the Police Reform & Social Responsibility Bill, which will be produced later this year.
In this eNews, I will attempt to highlight the Government's proposed measures for change with a few of my own initial comments. In future eNews, I hope to deal in more detail with some of the proposals:
• Give licensing authorities the power to refuse licensing applications or call for a licensing review without requiring relevant representations from a responsible authority - A major change with licensing authorities being able to rule on their own representations. It is additionally proposed that the authority will have to accept all representations from the police, and adopt all their recommendations, unless there is clear evidence that they are not relevant.
• Remove the need for licensing authorities to demonstrate their decisions on licences "are necessary" for (rather than of benefit to) the promotion of the licensing objectives. - The Government is consulting on shifting the onus onto applicants to show how their licensing application will impact on the local area.
• Reduce the evidential burden of proof required by licensing authorities in making decisions on licence applications and reviews - Making it much easier to take decisions which may impact adversely on the licensed trade. There are a number of proposals which would give the licensing authority much greater powers to make decisions that would be difficult to challenge. There are proposals to affect the appeal process to reduce the number of appeals that go to Magistrates. In addition, and very surprisingly, there is a proposal that the licensing authority's decision should take immediate effect pending any appeal. If the licence was therefore revoked, no trading could take place prior to the appeal being heard.
• Increase the weight licensing authorities will have to give to relevant representations and objection notices from the Police.
• Simplify Cumulative Impact Policies to allow licensing authorities to have more control over outlet density - The Government feels that there are too few CIPs - only 129 in March 2009 - it believes that the evidential requirement is too high and should be reduced. It is worth remembering that Cumulative Impact Policies weren't even included in the Licensing Act 2003 but were introduced by local authorities. There legitimacy has never properly been challenged.
• Increase the opportunities for local residents or their representative groups to be involved in licensing decisions without regard to their immediate proximity to premises - They will remove any need for residents to be within the vicinity. This could raise the possibility of an organisation objecting to licences all over the Country. The government also proposes to increase the definition of interested parties to include school governors, housing associations and registered social landlords.
• Enable more involvement of local health bodies in licensing decisions by designating health bodies as a responsible authority and seeking views on making health a licensing objective - It is difficult to see what representations health bodies could make unless health is a licensing objective. This would follow Scotland.
• Amend the process of appeal to avoid the costly practice of rehearing licensing decisions - This would give licensing authorities almost complete control over the whole process of licensing without it being capable of being challenged. It is difficult to see how this proposal will be compliant with Human Rights' Legislation and European Community Law.
• Enable licensing authorities to have flexibility in restricting or extending opening hours to reflect community concerns or preferences - The Crime & Security Act 2010 - if it comes into force - would enable local authorities to restrict the sale of alcohol between 3am and 6am. The suggestion is to amend this to enable local councillors to decide between which hours (e.g. from midnight to 6am) they would like to prevent premises from opening. If the Crime & Security Act is used, this would mean all premises having to close between those hours rather than allowing, say, night clubs to operate later than pubs.
• Repeal the unpopular power to establish Alcohol Disorder Zones and allowing licensing authorities to use a simple adjustment to the existing fee system to pay for any additional policing needed during late night opening - ADZs were always difficult, so the new proposal will make it easier to cover all premises selling alcohol and will also pay for the police and possibly taxi marshals and street cleaning etc.
• Substantial overhaul of the system of Temporary Event Notices to give the police more time to object, enable all responsible authorities to object, increase the notification period and reduce the number that can be applied for by personal licence holders - Bang goes the power to reduce the application period for a Temporary Event Notice, in fact longer periods of notice are proposed, e.g. pub/ off licence, one month instead of the current ten working days. It suggests the police period of objection could be extended to five working days and allow other responsible authorities to object using the licensing objectives.
• Introduce tougher sentences for persistent underage sales.
• Trigger automatic licensing reviews following persistent underage sales - In other words, there will be an automatic licensing review regardless of whether the police think it necessary. There is also a suggestion that the 48 hour closure notice should be increased to 168 hours or seven days.
• Enable local authorities to increase licensing costs so that they are based on full cost recovery - No surprise here. Mention made of the Elton Report proposing increases in licensing fees but surprisingly no mention of the Government contributing some ?£50 million to the shortfall! No surprises that the increase in fees should be based on full cost recovery so, if you are in an area where the local authority takes greater action, you could be paying more.
• Enable licensing authorities to revoke licences due to non payment of fees - This goes back to the old system of automatic revocation of a licence if the fee wasn't paid on time so, if you don't pay the fee for whatever reason, then you lose the licence.
• Consult on the impact of the Mandatory Licensing Conditions Order and whether the current conditions should be removed - They will probably still come into force but could be scrapped later.
I make no apologies for the fact that this eNews is much longer than most. The proposals would, if implemented, signal the most radical change to licensing laws ever attempted in the shortest possible time.
The Home Office consultation that I reported on in my eNews earlier today also deals with the whole issue of banning below cost sales. It points out that there has been growing concern over the last few years about how cheaply some alcoholic drinks are being sold. Over a quarter of local residents perceived drunken, rowdy behaviour to be a problem in their area and it states that the Government is committed to ensuring that local people are able to enjoy all parts of their community without feeling intimidated by those who have drunk too much alcohol. It also wants to reduce the burden on frontline services of dealing with drunken behaviour. The Government is carrying out a review of alcohol pricing and taxation. It is considering with this a ban on the sale of alcohol below cost. It points out this consultation will inform the review.
The consultation points out that the definition of "cost" of an alcoholic product significantly differs. All retail businesses negotiate their own prices with suppliers. There may well be differences between the off trade and the on trade in the definition of "below cost". The Government is also concerned about EU trade and competition laws and points out that most EU countries with similar policies have banned selling below "net invoice price". It points out that one option might be to specifically define an "average cost". It points out that this might be easier to enforce than determining the true cost of each product but it could also be a barrier to trade. As an alternative, the Government is considering a mandatory licensing condition. This would make it a breach of the licence to sell alcohol below what it costs. In other words, no sale could be below the cost of purchase.
The Government is clearly being careful in respect of this proposal and we shall have to wait and see how it is finally resolved.