IMPACT OF LICENSING REFORMS

1. IMPACT OF LICENSING REFORMS GARY GRANT BARRISTER, FRANCIS TAYLOR BUILDING VICE-CHAIRMAN - INSTITUTE OF LICENSING www.ftb.eu.com 5 PACK+1 (December 2012)

2. GOVERNMENT’S AIMS Home Office Consultation: “Rebalancing the Licensing Act – empowering individuals, families and local communities to shape and determine local licensing”

3. the finer things in life A social drink - a fine wine Music Dance Theatre Films

4. Shorter Oxford English Dictionary “Licence” (also “license”) : liberty to do something; to permit (a thing) to be done; to allow liberty or scope to.

5. Shorter Oxford English Dictionary “Licentious” : Unrestrained by law, decorum or morality Disregarding accepted rules Libertine, lascivious, lewd

6. GOVERNMENT’S AIMS Home Office Minister, James Brokenshire MP: “… The majority of licensed premises are well run businesses, which provide a valuable service to their local communities and the Government recognises the important role which pubs can play as part of the fabric of neighbourhoods and villages. Whilst tackling alcohol-related crime is a priority for the Government, it will not be addressed at the expense of these responsible businesses. Instead the Government’s approach is to deal with the small minority of irresponsible premises that do not contribute to the well-being of local areas.”

7. Sledgehammer of change Lowering evidential threshold Licensing authorities as RA’s EMRO’s and Late Night Levy Tabloid frenzy over “binge drinking” Home Office – change of tone

8. perspectives “Every form of addiction is bad, no matter whether the narcotic be alcohol or morphine or idealism” – Carl Jung

9. “For me, a zero tolerance policy in [alcohol licensing] is good: ‘You’ve had your warning, that’s it, you haven’t got a licence’ is for me, one of the best drivers for improving performance around licensing, where you actually keep the pressure on the licensee.” -Bernard Hogan-Howe Commissioner of Metropolitan Police (October 2012) perspectives

10. Binge drinking – the new curse?

11. NHS statistics (2012) “Long-term downward trend” in the proportion of adults drinking. 2010 (1998) – 68% (75%) of men and 54% (59%) of women reported drinking in week prior. 2010 (2001) - 13% (26%) of 11-15 year olds drank alcohol in week prior

12. NHS statistics (2012) 2001 – 2010 – 44% decrease in overall volume of alcoholic drink purchased for consumption outside the home 1992 – 2010 – 45% increase in purchase of alcohol for consumption within the home

13. NHS statistics (2012) Alcohol 45% more affordable in 2011 than in 1980. Married/cohabiting men and women most likely to report drinking on 5 or more days in previous week (16%) compared to single adults (7%)

14. Not all bad … Alcohol industry contributes £29 billion to UK economy Over 1.8million jobs in UK supported by alcohol industry The greatest happiness of the greatest number

15. Not all bad … Over 200,000 premises licensed to sell alcohol: “Most make a positive and valuable contribution to their local communities” - Government’s Alcohol Strategy 2012

16. “[I]n moderation, alcohol can have a positive impact on adults’ wellbeing, especially where this encourages sociability. Well-run community pubs and other businesses form a key part of the fabric of neighbourhoods, providing employment and social venues in our local communities.” -Government’s Alcohol Strategy Not all bad …

17. perspectives “Beer is proof that God loves us and wants us to be happy." - Benjamin Franklin

18. perspectives “My rule of life prescribed as an absolutely sacred rite smoking cigars and also the drinking of alcohol before, after and if need be during all meals and in the intervals between them.” - Winston S Churchill

19. perspectives “Alcohol is the anaesthesia by which we endure the operation of life”. - George Bernard Shaw

20. COMMENCEMENT Police and Social Responsibility Act – Royal Assent on 15 September 2011 Majority of reforms commenced - 25 April 2012 (apply to applications made following commencement) EMRO’s and Late Night Levy – 31 October 2012 Locally set fees - April 2013?

21. LICENSING AUTHORITIES AS RESPONSIBLE AUTHORITY Pro-active regulators – not just administrators. Able to make representations to applications, launch a review or support another party’s reviews

22. LICENSING AUTHORITIES AS R.A Fairness and Article 6 ECHR (emphasis added): “In the determination of his civil rights and obligations … everyone is entitled to a fair and public hearing … by an independent and impartial tribunal established by law. …”

23. LICENSING AUTHORITIES AS R.A Guidance (paras 9.13-9.19): Licensing Authorities not expected to act as responsible authorities on behalf of other parties (but may if they fail to take required action) Protect policy Stand up for residents Chinese Walls

24. HEALTH BODIES AS RESPONSIBLE AUTHORITY Primary Care Trusts “Public Safety” – logic (from Rebalancing the Licensing Act, Home Office Consultation): “Designating health bodies as a responsible authority under the Act would enable them to make representations about the impact of new or existing licensed premises on the local NHS (primarily A&E departments and ambulance services) or more generally the safety of the public within the night-time economy. The expectation is that such representations would be based on analysis of the types of data already used to identify problematic premises and local violence hot-spots …”

25. HEALTH BODIES AS R.A. • Guidance, 2.17: “Public Safety” : • “…This concerns the safety of people using the relevant premises rather than public health which is addressed in other legislation. Physical safety includes the prevention of accidents and injuries and other immediate harms that can result from alcohol consumption such as unconsciousness or alcohol poisoning…”

26. HEALTH BODIES AS R.A. Evidence from hospitals of drink related admissions (College of Emergency Medicine guidelines on information sharing) But no public health objective (unlike Scotland) Limited resources Health objective for cumulative impact policies?

27. LOWER EVIDENTIAL TEST Necessary to appropriate

28. LOWER EVIDENTIAL TEST “Necessary test” posed a “significant evidential burden” leading to a “defensive attitude” by LA’s.(Government White Paper). Lower evidential test – “appropriate”

29. Section 182 GUIDANCE 9.38- Licensing authorities are best placed to determine what actions are appropriate for the promotion of the licensing objectives in their areas. All licensing determinations should be considered on a case-by-case basis. They should take into account any representations or objections that have been received from responsible authorities or other persons, and representations made by the applicant or premises user as the case may be.

30. GUIDANCE 9.39- The authority’s determination should be evidence-based, justified as being appropriate for the promotion of the licensing objectives and proportionate to what it is intended to achieve.

31. GUIDANCE 9.40- Determination of whether an action or step is appropriate for the promotion of the licensing objectives requires an assessment of what action or step would be suitable to achieve that end. Whilst this does not therefore require a licensing authority to decide that no lesser step will achieve the aim, the authority should aim to consider the potential burden that the condition would impose on the premises licence holder (such as the financial burden due to restrictions on licensable activities) as well as the potential benefit in terms of the promotion of the licensing objectives. However, it is imperative that the authority ensures that the factors which form the basis of its determination are limited to consideration of the promotion of the objectives and nothing outside those parameters…

32. GUIDANCE 9.40 …The licensing authority is expected to come to its determination based on an assessment of the evidence on both the risks and benefits either for or against making the determination.

33. HUMAN RIGHTS & EUROPEAN LAW European Law - principle of “proportionality” Lord Bingham LCJ: “…the lawfulness of the prohibition of an economic activity is subject to the condition that the prohibitory measures are appropriate and necessary in order to achieve the objectives legitimately pursued by the legislation in question…

34. HUMAN RIGHTS & EUROPEAN LAW “…when there is a choice between several appropriate measures recourse must be had to the least onerous, and the disadvantages caused must not be disproportionate to the aims pursued.” -R v Minister of Agriculture, Fisheries and Food and Another, [1991] 1 C.M.L.R. 507, cited in R v Secretary of State for Health ex p Eastside Cheese [1999] 3 CMLR 123 per Bingham LCJ

35. Legislative and Regulatory Reform Act 2006 s. 21 Principles (1)Any person exercising a regulatory function to which this section applies must have regard to the principles in subsection (2) in the exercise of the function. (2)Those principles are that— (a) regulatory activities should be carried out in a way which is transparent, accountable, proportionate and consistent; (b) regulatory activities should be targeted only at cases in which action is needed. (3)The duty in subsection (1) is subject to any other requirement affecting the exercise of the regulatory function

36. CAN IT EVER BE APPROPRIATE TO TAKE A STEP THAT IS UNNECESSARY ?

37. The way forward? “Appropriate” – confused, arbitrary and clumsy term. Licensing authorities should ensure decisions are both “appropriate, necessary and proportionate” ?

38. REMOVING THE VICINITY TEST An interested party was a person living, or involved in a business, in the vicinity of the premises (or representative bodies or councillors) Abolition of “interested party” and replacement with “other persons”.

39. REMOVING THE VICINITY TEST Anyone can make representations in so far as they are “relevant” to the Licensing Objectives. I.e. must relate to the impact or likely effect of – for example - the grant of the application

40. REMOVING THE VICINITY TEST Guidance “Other Persons” (emphasis added): 8.12 ….Any representations made by these persons must be ‘relevant’, in that the representation relates to one or more of the licensing objectives. It must also not be considered by the licensing authority to be frivolous or vexatious. ..

41. REMOVING THE VICINITY TEST Trade and moral objections ? Irrelevant, vexatious and frivolous representations Increased role for licensing officers

42. REMOVING THE VICINITY TEST “Relevant” - relates to the likely effect of the grant of the licence on the promotion of at least one of the licensing objectives …representations should relate to the impact of licensable activities carried on from premises on the objectives. Variations - to be relevant, representations should be confined to the subject matter of the variation.

43. REMOVING THE VICINITY TEST “Frivolous” - categorised by a lack of seriousness e.g. issues which, at most, are minor and in relation to which no remedial steps would be warranted or proportionate. “Vexatious” - intended to cause aggravation or annoyance, whether to a competitor or other person, without reasonable cause or justification

44. LATE NIGHT LEVY: IN A NUTSHELL

45. LATE NIGHT LEVY: IN A NUTSHELL

46. LATE NIGHT LEVY: IN A NUTSHELL

47. LATE NIGHT LEVY: IN A NUTSHELL

48. LATE NIGHT LEVY: IN A NUTSHELL

49. LATE NIGHT LEVY Tax - on premises selling alcohol - anytime between the hours of midnight and 6am - to be charged an additional fee for policing the night time economy. Optional to adopt The fee will be split 30% - 70% between the Council and the Police.

50. LATE NIGHT LEVY How much? Based on rateable value, £299-£4,440. Total cost to business is expected to be around £18 million per annum. Non-payment – debt – suspension of licence