UK: Rebalancing The Licensing Act

The coalition government's enthusiasm for change is now focussed on the licensed retail trade and the speed of its reforms have surprised many.

After only a 6 week consultation period last summer we saw the publication of Rebalancing the Licensing Act - a consultation on empowering individuals, families and local communities to shape and determine local licensing.  This was followed by the Police Reform and Social Responsibility Bill.

Some of the proposed changes, aimed at reversing the perceived bias against local communities in favour of pubs, bars and takeaways were:

Changes to applications

The changes are clearly aimed at making it more difficult to:

• obtain new premises licences,
• vary existing ones and
• defend review applications.

The local licensing authority sub-committees will no longer have to show that their decisions are "necessary" for the promotion of the licensing objectives but only that they have "considered more widely what actions are appropriate to promote the licensing objectives in their area".

This will mean that licensing authorities can base their decisions on wider, more speculative reasons rather than the facts presented to them, leading to decisions being made for political reasons.

Licensing authorities will also become interested parties themselves and be able to unilaterally call for a review of a premises license.  It will be interesting to debate how the same party can object to an application and then consider it without giving rise to a conflict of interest.

Licensing authorities will be obliged to accept police recommendations. This is particularly sensitive since, if the police have initiated a review their opening position is that the licence should be revoked with a compromise being reached with the trader. But if police evidence is to be automatically accepted, there will be no incentive to compromise.

Devolving power

School governors, housing associations, registered social landlords will all be able to object to applications and residents will no longer have to live in the vicinity of a premises in order to object to an application.  A fifth licensing objective is proposed – "the prevention of health harm" - leaving licensing applications to become a farce.

All licensed premises can harm health in some way. What is to stop some organisations making blanket objections throughout England and Wales?

Reducing appeals

Government now wants fewer appeals in the first place, and any appeals there are, to be heard by the licensing authority. What then would be the point of appealing?

When appeals are lodged it will no longer have the effect of suspending the licensing authority's decision.  So if a licence is revoked a premises will not be able to trade until it wins an appeal. How can a trader afford to appeal while its income is stopped?

Late night levy

Licensing authorities will be able to raise the annual charges and premises open late at night will be targeted with a levy to cover the additional cost of policing, street cleaning and taxi marshalling.  There is no indication as to what these costs will be but a figure of just under £5,000 for large nightclubs was proposed in the recent Bill.

Restricting licensed hours

Remember Labour's dream of a British café culture? This has now been dropped in favour of fixed closing times and zoning.

Cumulative impact zones – areas with a high concentration of licensed premises – will be designated without any evidential basis, making it more difficult to obtain permission to trade into the early hours.  Local authorities will be able to use early morning restriction orders and place a blanket restriction on when alcohol may be sold. This will drastically alter the late night economy as more premises close earlier.

Controlling temporary events

Environmental health officers will now be able to object to applications. Combined with lengthening of the required notice period and a reduction in the annual number of permitted applications, pubs will find it harder to get extended hours for an occasional event.

Under age and below-cost sales

Fines for repeated under age sales are set to double to £20,000.  Below-cost selling is also a hot topic and the government is committed to banning it although no mention was made in the recent Bill – possibly because legislation could fall foul of EU and competition laws - so expert views are urgently being sought by the coalition.

An unsurprising reaction

The trade reaction has been unanimously negative.  Numerous checks and balances are already in place to curtail irresponsible traders. Let's hope the trade lobby is effective but given the speed at which the paper was produced and the coalition's zeal for reform, it is likely that most of these changes will make the statute books and confusion will reign thereby alienating the trade, the statutory authorities and the general public – arguably the one body who should be benefitting from such laws.