On 28 July 2010, the Coalition Government launched its controversial proposals to undertake a robust overhaul of the liquor licensing regime in England and Wales. The public consultation, with the somewhat ill-advised title of “Rebalancing the Licensing Act – A consultation on empowering individuals, families and local communities to shape and determine local licensing” ran for an abnormally short six week period, drawing to a conclusion on 8 September 2010. In this article the writer sets out how her views on how the proposals are based on misguided assumptions and rather than bringing any balance to the current regime, will instead go a long way to destabilise the good work that has been achieved since the introduction of the Licensing Act 2003.

No responsible operator would differ from the Coalition Government’s view that town centres should not be blighted by the impact of crime and disorder that is driven by the irresponsible binge drinker. However, the same operator would be right to question both the accuracy and the evidential basis for many of the assumptions which appear to underpin the Government’s proposed reforms. These misguided assumptions include that:

  • Local communities have not had a strong enough voice in licensing decisions;
  •  Local authorities have not been able to respond adequately to local concerns;
  •  There is a presumption in favour of granting licences under the Licensing Act 2003 (‘the Act’);
  • The police do not currently have sufficient powers to clamp down on ‘binge drinking’ and irresponsible retailers.

Anyone who has experienced the process of applying for, operating under and complying with the terms of their premises licence will be only too aware of the significant powers and the central role that local residents, their local authority and the enforcement agencies now have in this process. Where local communities have concerns about the grant of a new licence or the way in which a licensed premises is operating, they have ample opportunity under the current regime to raise those concerns. The licensing authorities, in our experience, have no hesitation in utilising their powers to address local residents’ concerns. Furthermore, they are regularly supported in the exercise of those powers by the responsible authorities. On the latter point, there is no evidence to suggest that at a time when the police have a greater range of powers to tackle irresponsible operators than ever before that they require more extensive powers to effectively perform their role.

There is no presumption in favour of granting a licence under the Act. The requirement on licensing authorities to grant a licence only arises on applications where no representations are received from either local residents or responsible authorities. This means that the only ‘presumption’ in favour of granting an application is in those circumstances where it is entirely appropriate to do so, that is on applications where no objections are raised or in other words, when the local community has no concerns.

In the main, the operators, local residents and enforcement agencies report that the current regime works perfectly well. It encourages operators to be respectful of their local community, to promote the licensing objectives and meet their legal responsibilities. It has undoubtedly stimulated better communication and cooperation between operators, licensing officers and the police. It has given local communities a voice when they previously were not heard. It has afforded enforcement authorities extensive powers, which they readily utilise, to tackle the irresponsible operator. It is disappointing that the significant progress and benefits that have been realised since the introduction of the Act appear to have been overlooked in the drafting of the proposed reforms.

Some of the most concerning aspects of the proposals include the Government’s plans to:

  • Allow licensing authorities to act as responsible authorities;
  •  Amend the appeals process so that the default position on all appeals would be for the
  • Magistrates’ Court to remit the appeal back to the licensing authority;
  • l Allow police evidence to licensing authorities to go unchallenged.

Under the current regime, the licensing authority adopts an administrative, advisory and decisionmaking role. The licensing authority through its licensing committees has the responsibility of determining all contested applications and all applications for review. In that context, the independence that the licensing authority maintains from all other responsible authorities and interested parties is fundamental to its ability to exercise its duties in a fair and lawful way. The proposal to tinker with the status quo by making the licensing authority a responsible authority in its own right is profoundly misguided. The practical effect of this proposal would be to allow the licensing authority to act as both judge and document we fail to see how this proposal on its current terms could be complaint with Article 6 of the European Convention on Human Rights. Furthermore, if these proposals are brought into effect, they will inevitably result in operators seeking to overturn unfavourable decisions through judicial review in the High Court rather than utilising the powers of appeal to the Magistrates’ Court. Applications to the High Court will involve increased costs for both operators and local authorities alike.

The proposal to require licensing authorities to accept all representations from the police unless there is clear evidence that such representations are not relevant is also likely to be challenged by operators in the High Court. This is yet another example of unnecessary regulation that would have the practical effect of imposing costly and disproportionate burdens on operators. One could envisage that if the proposal was to take effect, the police would use their representations to submit a ‘wish list’ of measures a business could implement to assist with their policing the night-time economy. In those circumstances, the only avenue of legal challenge available to operators to would be to challenge the public body in the High Court.

The practical effect of the proposed reforms will mean increased costs and red tape for all operators; responsible and irresponsible alike. The reforms are underpinned by fundamental misconceptions about the current liquor licensing regime and therefore cannot produce the ‘rebalancing’ that the Government has set out to achieve. It is hoped that the Government will give careful consideration to the wide-ranging concerns raised by the Trade in response to the public consultation. If it does it will inevitably see that their proposals will penalise responsible operators, undo the good work that has been achieved and do nothing to tackle the behaviour of those few individuals and irresponsible operators who create the problems, that we would all agree, need addressing.