Rebalancing the Licensing Act – Home Office Consultation

The Home Office has announced the biggest reform to alcohol licensing since the 2003 Act came into force; possibly the biggest reform in a generation.

They carried out a consultation process in relation to their proposals, however the period during which people had the opportunity to respond to this was relatively short considering the complex nature of the consultation. I think it could also be argued that the consultation document was not designed in a way which made it particularly easy for individuals within the licensed retail sector to respond; it would be interesting to see the balance of opinion they receive, I would guess that a significant proportion of responses will come from the public sector.

The consultation document and an outline of the proposed changes can be read on the Home office website or Click Here.

I responded to the consultation from the point of view of Managing Director of Beyond The Blue Training and Consultancy and as an individual in my role as an assessor for the Purple Flag Award scheme on behalf of the Association of Town Centre Managers (ATCM).

As a training company we often feel we sit squarely on the middle ground between the local authorities / government and the business interests of our private sector clients. We find a balanced position between the interests of both parties and encourage closer working relationships between them.

For the purpose of this news blog entry, I have provided a selection of the responses we gave to the consultation document, rather than the full response; for the purpose of clarity I have copied all the questions in the consultation document below.

 

6th September 2010

Dear Sir,

Please find below my response to your consultation document ‘Rebalancing the Licensing Act’.

I write my responses in an individual capacity as Managing Director of Beyond The Blue Training & Consultancy and as an independent assessor for the Association of Town Centre Managers Purple Flag Scheme.

Beyond The Blue is a training company providing training and consultancy in a number of different areas including the Licensed Retail Sector, Hospitality Industry, Conflict Management & Resolution (providing solution to workplace violence) and in the Private Security Industry.

As a long, detailed and important consultation document we believe that the period of time made available for responses to be insufficient, especially considering the time of year. I have not had the opportunity to discuss the issues raised with colleagues as I would have liked.

We were disappointed to see that no mention is made in the consultation in regard to training provision, as one of the solutions to alcohol related disorder would undoubtedly be the standardisation of training throughout the industry and more emphasis being placed on effective training and CPD.

We have already noticed a trend for the training for such qualifications as the National Certificate for Personal Licence Holders (fundamental to the success of the Licensing Act) deteriorate the way that Security Industry training has. The effect of more stringent training requirements in Scotland has certainly had a positive effect on those employed in the sector.

In England and Wales obtaining the qualification for a Personal Licence can now be done by sitting in front of a screen without any training being given and answering multiple-choice questions. If the candidate fails the exam, without any additional cost (and hence incentive to learn) candidates can re-sit; this process can be carried out repeatedly until the exam is passed. Probability means that eventually anyone can pass the associated exam. They can then apply for a personal licence without having any understanding of the Licensing Act, let alone their responsibilities in retailing alcohol.

On the CPD front there would be a great advantage in making sure that those tasked with selling alcohol and maintaining order in licensed premises be encouraged to receive additional training.

Under the current system a Personal Licence Holder is not required to undertake any training, but merely pass a multiple-choice exam. They are expected to keep up-to-date with legislative changes proactively, but in reality this is very difficult to achieve, especially for smaller operators.

With changes in the Licensing Act and associated legislation occurring on a regular basis, those people who took their qualification in 2005 are already very out of date; this means that a significant number of licensed premises across the country are being run under false assumption.

This situation is made much worse by the tens of thousands of personal licence holders out there who received their personal licences through the ‘grandfathering’ system in 2005. A significant number of these people have no clear understanding of the 2003 Licensing Act let alone the amendments.

Our experience shows that it is these people who actually struggle most when they sit new exams, as their assumption regarding the old 1964 Act are now completely invalid. That they will be eligible to renew their Personal Licences without any further training in 2015, when the sweeping changes being proposed may once again change the dynamics of the Act, seems counterintuitive.

When we are providing Personal Licence training, we always explain that the Personal Licence is effectively allows them to sell a licensed drug. We try and instil this in them using the comparative that, much like a pharmacist who is licensed to sell prescribed drugs, they are licensed to sell the controlled drug alcohol; pharmacists have to dispense prescribed drugs responsibly. Where the pharmacist tells the customer the safe dosage, the safe method of taking the prescribed drug, what they can and can’t do when taking the drug and ensures that the person obtaining the drug is the appointed person; the Personal Licence holder must advise of safe dosage, the safe ways of consuming alcohol, provides a safety net against behaviour under the influence, ensure the person is old enough to drink and that they are capable of making an informed judgement (ie. not drunk).

The Pharmacist and the Personal Licence Holders role are not significantly different in many ways; the Pharmacist obviously needs a lot more education because of the complicated nature of their subject. This approach is effective in making candidates on our courses pay attention to their responsibilities. Where the pharmacist is required to complete regular CPD every year, the Personal Licence Holder is allowed to carry out their activities ad infinitum without any form of training.

I have provided responses to those questions which I feel most qualified to respond to. Some of my points will naturally be pertinent to more than one of your consultation questions.

Kind regards

Peter Mayhew - Managing Director

 

Consultation Question 1

What do you think the impact would be of making licensing authorities responsible authorities?

This seems to be an unnecessary addition and has the potential to add a conflict of interest. If a responsible authority makes a representation this is heard by the licensing committee in the first instance. If the licensing authority is a responsible authority and thus hearing their own representation, even if this in practice does not cause conflict, it will alienate licence holders who already often have the impression of being smothered by legislators and legislations.

 

Consultation Question 2

What impact do you think reducing the burden of proof on licensing authorities will have?

Changing the burden of proof from ‘necessary’ to ‘beneficial’ would in my opinion be a change which would make life potentially very difficult. The understanding of ‘beneficial’ could be very loosely interpreted, it sets no boundaries as to how little ‘benefit’ may be required to deserve a change, adoption of policy or conditions set for licensed premises.

The burden of proof being ‘necessary’ is well understood and provides a balance between the industry, authority and local community. The partnership which the Licensing Act and local authorities talk so much about has to engage with the trade in order to ensure success. It would be very difficult for anyone to defend themselves against a claim that it would be ‘beneficial’ for a significant change to promote the licensing objectives and as such the balance would be distorted further away from the licence holders.

 

Consultation Question 3

Do you have any suggestions about how the licence application process could be amended to ensure applicants consider the impact of their licence application on the local area?

 

Consultation Question 4

What would the effect be of requiring licensing authorities to accept all representations, notices and recommendations from the police unless there is clear evidence that these are not relevant?

I don’t feel this is the role of the police, it makes them ‘judge a jury’ over licensing matters and effectively removes much of the role of the licensing authority and potentially the local community as well.

The police should, as they currently do, have every opportunity to raise concerns and deal with immediate problems and concerns, but the elected representative should be making the determination on the evidence they provide.

This change would also remove the requirement for the police to truly consider the burden of evidence they require and we have learnt from previous experience that this is not a positive step and that the approach to licensing varies considerably from force to force.

 

Consultation Question 5

How can licensing authorities encourage greater community and local resident involvement?

 

Consultation Question 6

What would be the effect of removing the requirement for interested parties to show vicinity when making relevant representations?

There has to be some demonstration of ‘vicinity’ when representations are made. There can be no benefit in allowing representations from people, organisations or responsible authorities where there is no direct correlation between their representation and the effect it has on them.

This would open the prospect of organisations or people with a particular ‘interests’ making representations which affect premises which local communities value without the need to provide any local interest being required.

Possibly ‘vicinity’ should be removed and replaced with a definition of ‘affected’ parties as the vicinity which a representation can be made from denotes that somehow there should be a measured distance. Depending on the nature of the licence involved and the geographic areas there can be significant variation on what might be considered ‘vicinity’

 

Consultation Question 7

Are there any unintended consequences of designating health bodies as a responsible authority?

Designating health bodies as a responsible authority open the flood gates to potential representation being made against licensed premises over which they have little or no control. Please see also the answer to question 8 below.

 

Consultation Question 8

What are the implications in including the prevention of health harm as a licensing objective?

I am not convinced that including a ‘health harm’ objective is a workable objective. Some very credible medical research demonstrates that any level of alcohol consumption causes harm; this is not news.

Adding a ‘harm to health’ licensing objective raises the possibility that every application could potentially face representation based on this simple fact.

I also see it as a very difficult objective to promote for operators of licensed premises, presumably they would need to determine the harm which the alcohol they were selling was causing; I’m not sure how many of them would be suitably qualified to do this.

Ultimately the enforcement of the Licensing Act should be balanced against the requirements for the nation’s health. Those senior advisors to the government on health issues should continue their good work and the central government should continue to address this through the Licensing Act and associated legislation as they and the electorate deem appropriate.

 

Consultation Question 9

What would be the effect of making community groups interested parties under the Licensing Act, and which groups should be included?

I see no reason for this additional legislation. Community groups already have the right to representation through the right that every individual has; that they use this right as an individual to represent their organisation is their prerogative.

In regard to applications and the notification there of, many licensing authorities already consult with representative groups and notify local residents, businesses and services. Through the existing notice in the local paper and the notices placed outside the premises, there is ample (possibly expensive and excessive) opportunity for interested parties to be made aware of applications.

 

Consultation Question 10

What would be the effect of making the default position for the magistrates’ court to remit the appeal back to the licensing authority to hear?

 

Consultation Question 11

What would be the effect of amending the legislation so that the decision of the licensing authority applies as soon as the premises licence holder receives the determination?

I do not agree with this change. Unfortunately I have run out of time to provide a detailed explanation of my reasons, but this would I believe prejudice the process and knowing the often ‘delicate’ financial balance which alcohol related businesses find themselves in. I believe there would be a significant number of businesses which would not be able survive financially and would therefore effectively be forfeited the right of appeal.

 

Consultation Question 12

What is the likely impact of extending the flexibility of Early Morning Restriction Orders to reflect the needs of the local areas?

I am very much against changes which restrict the opportunity to all based on the behaviour of some.

The determination on what time licensed premises can operate to should be linked to their performance. Rather than simply closing all premises in a local area at a specified time, we would like to see a more comprehensive scheme where the opportunity is afforded to licensed premises when they demonstrate good practice.

Much like the current licensing officers risk rating systems, a scheme where premises are awarded ‘points’ based on the good practice they can demonstrate could be implemented and then linked to the opening hours they are awarded; training, BBN, purple flag areas, results of test purchase, a premises history and other such criteria could all then be included into this process.

The problem with proposals such as EMRO’s is that they ‘punish’ good operators as well as bad. Those good operators need to be offered a ‘carrot’ rather than just the ‘stick’, otherwise there is no encouragement for them to continue. If the playing field is levelled without consideration of those demonstrating excellence, then everyone ends up cutting corners to compete.

 

Consultation Question 13

Do you have any concerns about repealing Alcohol Disorder Zones?

No, this is a complicated unenforceable piece of legislation which should be committed to the history books at the earliest opportunity.

 

Consultation Question 14

What are the consequences of removing the evidential requirement for Cumulative Impact Policies?

 

Consultation Question 15

Do you agree that the late night levy should be limited to recovery of these additional costs? Do you think that the local authority should be given some discretion on how much they can charge under the levy?

 

Consultation Question 16

Do you think it would be advantageous to offer such reductions for the late night levy?

Please see my response to question 12

 

Consultation Question 17

Do you agree that additional costs of these services should be funded by the late night levy? 

 

Consultation Question 18

Do you believe that giving more autonomy to local authorities regarding closing times would be advantageous to cutting alcohol-related crime?

 

Consultation Question 19

What would be the consequences of amending the legislation relating to TENs so that:

a.    All the responsible authorities can object to a TEN on all of the licensing objectives?

This seems contrary to the objective of removing unnecessary legislation and simplifying the Licensing Act.

b.   The Police (and other responsible authorities) have five working days to object to a TEN?

Increasing the time frame (from the two working days) will only reduce the opportunity to use the appeal process to the Magistrates Court. Premises licence holders need to be able to react to opportunity and community requirements as they arise and significantly increasing the notice times is going to reduce the opportunities.

c.    The notification period for a TEN is increased, and is longer for those venues already holding a premises licence?

If anything the reverse should be the case. How can it be right that a premises licence where they already have all the systems and training in place (incl. Personal Licence Holders) to retail alcohol responsibly, provide regulated entertainment and late night refreshment have to give more notification. They potentially have less work to do in reducing risk and promoting the licensing objectives in relation to the TEN then an individual running an event with no training on a ‘premises’ which is not designed for licensable activities where often everything has to be done from scratch.

This seems to make no sense and if anyone were to require an increase in the notification time it should be those events where more attention is required in order to ensure that the plans include measures to promote the licensing objectives.

d.   Licensing authorities have the discretion to apply existing license conditions to a TEN?

Again the emphasis on TEN seems exaggerated in comparison to the degree of problems relating to them.

I don’t believe that existing conditions need to be apply to the TEN. It does not seem to be in the spirit of removing unnecessary legislation. 

If this were to be implemented it could be balanced with the TEN providing the opportunity for the holder to use it not only to carry on licensable activities where they are not covered by an existing premises licence, but also to allow them to remove conditions for the specific TEN. For example a premises which has a condition not allowing under 18’s onto the premises which wants to run a ‘private party’ for an 18th Birthday (where there may naturally be under 18’s invited) could give a TEN and include the specific condition be removed based on the additional measures the TEN holder would be imposing on the day in question, to ‘protect children from harm’.

 

Consultation Question 20

What would be the consequences of:

a.    Reducing the number of TENs that can be applied for by a personal licence holder to 12 per year?

I don’t believe there is any need to reduce the number of TENs which can be applied for by a personal licence holder. It does not strike me as a particular concern which undermines the licensing objective or requires any change.

b.   Restricting the number of TENs that could be applied for in the same vicinity (e.g. a field)

As above

 

Consultation Question 21

Do you think 168 hours (7 days) is a suitable minimum for the period of voluntary closure that can be flexibly applied by police for persistent underage selling?

I believe that if this were to be implemented, the key would be to ensure that there was an element of flexibility in the length of any closure. Suggesting that the 7 days minimum closure would add flexibility makes no sense; making the maximum closure 7 days gives the police the flexibility that this change would require.

However there are two key areas I think which should be considered before any such change is implemented. The first and most important is that some semblance of consistency be brought to the test-purchasing process.

Currently Trading Standards and the Police in different area carry out this process in different ways, which means that premises licence operators are sceptical of the motivation rather than embracing the purpose.

Test purchasing should be a proactive process to inform premises licence holders of any problems, but also to encourage responsible alcohol retailing. Some of the changes we would recommend:

  • Standardisation of Process – Children involved in test purchasing should not be encouraged to try and ‘succeed’ but rather be encouraged to behave in a ‘normal’ way. If when they are asked their age they ‘lie’ and claim to be over 18, if they are subsequently asked to provide a proof of age, the document they present should be real or they should claim not to have an identity document. If this process is followed those premises with an effective under age sales policy will pass and those without will struggle.
  • Notification of Failure – If a test purchase is successful (in other words if an underage sale is successful by the child involved in the Test Purchase) the Designated Premises Supervisor (or their nominated representative on duty) should be approached at the time of the test purchase by the police or trading standards officers carrying out the test purchase and notified. This will allow them more opportunity to identify the deficiency in their system and rectify it. The failure must also be documented in writing and sent to the DPS / premises Licence Holder.
  • Notification of Success– When a test purchase fails the DPS / Premises Licence Holder should be notified of their success. This provides a strong motivational tool for staff and if this was accompanied by a certificate which could be displayed it would also send a strong message to other potential under-age customers. Previous success of test purchases could then also feature in any future licensing inspections and form part of any due diligence defence should it ever be required. These could also become part of a wider points scheme to demonstrate good practice or be part of BBN type schemes.
  • Training – We would like to see some lateral thinking coming into the test purchasing process. Training has proven to be a strong element of the success in other areas such as drink driving and other driving related offences, where offenders can reduce the length of a ban by undergoing training on the subject. A short course similar to the BIIAB Award in Responsible Alcohol Retailing (possibly with a little more emphasis on under age sales) may be a good way to deliver a positive slant to the ‘punishment’ for persistently selling to young persons.

We do not feel that any extension in the current voluntary closure should be considered without standardisation of the process so everyone knows where they stand and can work towards test purchasing becoming a positive process. With a proactive approach to test purchasing there would be a stronger argument for longer closures for failure.

 

Consultation Question 22

What do you think would be an appropriate upper limit for the period of voluntary closure that can be flexibly applied for persistent underage selling?

Please see our answer to question 21. I think until the discrepancies surrounding the test purchasing process are addressed these should not be changed.

In some cases premises licence holders are not informed about failed test purchases and have then not been able to rectify the problems which led to the failure. When they then subsequently failed another test purchase within 3 months they then commit the offence of ‘persistently selling to a person under the age of 18’. This makes a bit of a mockery of the process and undermines trust in all the relevant authorities.

We preach about one of the principles of licensing during our training, that being that the concept behind the Licensing Act is that it should be a ‘partnership approach’ rather than an ‘us against them situation’; this is difficult to justify when premises licence holders feel that they are being spied upon and not part of the partnership.

 

Consultation Question 23

What do you think the impact will be of making licence reviews automatic for those found to be persistently selling alcohol to children?

I refer you to the points I made in my responses to questions 21 & 22.

I don’t believe there is an additional requirement to make provision for automatic review for persistently selling alcohol to children, the current measures and proposed increase in voluntary closure should be sufficient.

If there is to be an additional sanction of automatic review associated with persistently selling alcohol to young people, I think this should be linked to a standardised test purchasing process as mentioned above as well as being linked to a staggered process of sanctions.

If the current definition of ‘persistently selling’ means twice in three months for which one of the sanctions available in the voluntary closure, then if an automatic review is to be an alternative sanction it should be linked to a greater number of failed test purchases in the prescribed time frame.

The desired outcome would therefore be that on being informed of the first failure premises licence holders would be able to address the problems, if they didn’t there is the sanction of voluntary closure and after additional failed test purchases there would be the option to go to review.

 

Consultation Question 24

For the purpose of this consultation we are interested in expert views on the following:

a.    Simple and effective ways to define the ‘cost’ of alcohol

b.   Effective ways to enforce a ban on below cost selling and their costs

c.    The feasibility of using the Mandatory Code of Practice to set a licence condition that no sale can be below cost, without defining cost.

 

Consultation Question 25

Would you be in favour of increasing licence fees based on full cost recovery and what impact would this have?

 

Consultation Question 26

Are you in favour of automatically revoking the premises licence if the annual fees have not been paid?

This would seem a sensible implementation, although we would urge that any such introduction be counter-balanced by implementation of a system to ensure each and every premises licence holder be notified of the payment date.

We would also suggest that this be done other than just in writing to the premises itself as in many such premises the premises licence holder correspondence address is different and direct mail to the premises is not secure. 

There should also be a system for genuine errors not to be penalised by automatic revocation but be given the opportunity to correct an error. It may even be a consideration that prior to revocation a period of suspension of the premises licence be included.

 

Consultation Question 27

Have the first set of mandatory conditions that came into force in April 2010 had a positive impact on preventing alcohol-related crime?

The requirement for free drinking water would seem to be a positive step, many operators already felt they had an obligation to do this. We have heard of one or two premises who are not following the spirit of this condition and provide warm water when requested, which seems rather senseless and short-sighted.

The condition of not pouring alcohol into the mouth of another is again relatively straight forward to adopt. However the apparent paranoia surrounding the ‘dentist chair’ phenomenon which presumably led to this condition was over-hyped and as such it is a big solution for a very minor problem. I would not think it has had a particular impact on alcohol-related crime. 

It is the last of the new conditions which focuses on irresponsible promotions which is so ill defined as to be generally very badly understood. The guidance is badly worded and vague, so although it gives specific examples of what promotions are no longer allowed these examples are not representative of the industry as a whole. This condition because of the misunderstandings is not having a positive effect on alcohol related crime, it may have eradicated the ‘£10 on the door / all you can drink’ promotions, but what should corporate events companies make of this; can they no longer offer clients an ‘all-in’ price for corporate events?

 

Consultation Question 28

Would you support the repeal of any or all the mandatory conditions?

Please see the response to question 27 for further guidance.

The irresponsible promotions condition should be repealed or reviewed to make it manageable and a positive contribution to the act.

Consideration should be given to the upcoming condition of enforcing an age verification policy as this is already covered within existing legislation and does not look like it will add any positive benefit to the act. Specific conditions can already be added to licences where a specific risk is identified. 

 

Consultation Question 29

Would you support measures to deregulate the Licensing Act, and what sections of the Act in your view could be removed or simplified?

 

End

 

At Beyond The Blue we deliver a number of different courses, which include;

For more information on any of our services, please call us on 0845 602 55 95 or Contact Us.

 

Source – Beyond The Blue 

Date – 6th September 2010

Submitted by – Peter Mayhew