Home Office Response to the Consultation: Rebalancing the Licensing Act

The government’s promise to ‘Overhaul the Licensing Act’ has now been published by the Home Office. Many of the changes we warned about in our last news-blog entry on this subject (Rebalancing the licensing act) now look like they are going to be implemented through the Police Reform and Social Responsibility Bill.

At this stage I just want to summarise the proposed changes so that our clients can be aware of the changes likely to be on the way; we will examine the detail as and when further guidance is published by the Home Office.

Sections of the consultation being taken forward

Giving more local powers to refuse and revoke licences - The licensing authorities will in effect become a ‘responsible authority’, meaning that they have will have the authority to make representations (objections) against applications and initiate reviews of a premises licence.
The evidential burden for licensing authorities making representations will be lowered from ‘necessary’ to ‘appropriate’ for the promotion of the licensing objectives.
Representations will no longer be required to demonstrate ‘vicinity’. This means there will no longer be a requirement for responsible authorities and interested parties to be within close geographic proximity in order to allow them to make representations; providing they are not irrelevant, frivolous or vexatious. They have promised to provide greater guidance on what should be considered irrelevant, frivolous or vexatious to try and reduce the number of unwarranted representations, but equally they are making it mandatory for licensing authorities to publish all licence applications online…
All reasonable recommendations from the police should be accepted unless there is clear evidence to the contrary; effectively placing less of a burden of evidence on police representations.
Premises licence applicants will be required to provide further information on their proposed plans for promoting the licensing objectives, including contextual evidence to demonstrate the positive role their premises will have in the local community.
Dealing with the problems of late-night drinking - Local authorities will be able to apply an annual late-night levy on licensed premises which open beyond midnight and / or before 6am. Local authorities will have flexibility on the size of the levy within a national frame-work based on existing rateable values and the hours to which they choose to apply it. There will be the opportunity for local authorities to offer discounted rates for those premises demonstrating good practice or involved in local / national strategies which are designed to reduce the impact of licensed premises on local communities; such as Best Bar None, Pubwatch, Challenge 21 / 25, Purple Flag, etc. The late-night levy will not apply to TEN’s or premises which are allowed to operate beyond midnight on a limited number of events such as New Year, but rather to those who are routinely open beyond midnight.
The flexibility for local authorities to use Early Morning Restriction Orders (EMRO’s) will be extended to allow them to impose closing times throughout the designated area, either through fixed, staggered or zoned closing times, as appropriate.
The legislation allowing the creation of Alcohol Disorder Zones (of which none were ever created) will be repealed.
The guidance in relation to Cumulative Impact Policies will be revised to ensure they are used more fairly.
Temporary Event Notices (TENs) – The ability to object to TENs will be extended to include the Environmental Health Office (EHO) and both the Police and EHO will be able to object based on all the Licensing Objectives, not just Crime & Disorder; this will lead to more objections being lodged based on the noise generated by TENs. The time allowed by the Police and EHO to object to a TEN will be extended from 2 to 3.
The maximum duration of a TEN will be extended from 96 hours to 168 hours (7 days) and the total cumulative period which a premises can use TENs over one year will be increased from 15 days to 21 days.
Licensing authorities will be given the discretion to allow existing conditions on a premises licence to be applied to a TENs.
A system for ‘Late TENs’ will be introduced. Where it can be demonstrated that there are legitimate reasons why the normal 10 days notice can not be given, there will be an opportunity to give a Late TEN providing this is done at least 5 days before the event. However there are some drawbacks and restrictions to this process; if there is any objection by the police or EHO to a Late TEN, then where no appeal hearing can be held the TEN will not be permitted to proceed. These Late TENS will also be limited to 10 per year per Personal Licence Holder and 2 per year per Non Personal Licence Holder.
Protecting Children from Harm – The maximum fine for ‘persistently selling alcohol to a person under the age of 18’ (where ‘persistently’ means twice in a 3 month period) will be doubled to £20,000 and the current maximum period of suspension of the premises licence of 3 months will be extended to revocation of the premises licence. The alternate fixed penalty voluntary closure period will be extended from a maximum of 48 hours, to a minimum of 48 hours and a maximum of 2 weeks.
A very clear message has been given that persistently selling alcohol to a person under the age of 18 should be treated as a serious infringement of the licensing act. The government intends to consult further on this matter and issue strong guidance that although a review for the offence will not be mandatory, where a review is initiated the maximum penalty for a licence revocation should be a presumption unless there is clear and significant evidence presented in the defence of the Premises Licence.
There is an indication that the government would like to see the implementation of Challenge 21 and Challenge 25 being the norm and that premises should clearly publicise their policy and consider the implementation of a voluntary test-purchasing scheme rather than relying on weights and measures officers (trading standards) and the police to carry out such activities; evidence of voluntary and independent test-purchasing schemes will also be an excellent way of demonstrating due diligence, in the case of prosecutions affecting continued operations.
Reducing the burden & bureaucracy & covering costs – Licensing authorities will have the ability to suspend premises licences where fees are not paid.
Licensing authorities will need to publish a licensing policy statement every five years rather than every three, unless they choose to issue one in the interim period.
The mandatory conditions will not be repealed; this means that all 7 mandatory conditions remain in force and because these were generally expected to be repealed and had therefore not been strongly enforced, it can now be assumed that licensing authorities will start to enforce them. The mandatory conditions will be reviewed in 12 months time to assess their impact.
‘Relevant offences’ will include the offence of; attempting to commit a relevant offence, conspiracy to commit a relevant offence and failure by a driver to co-operate with a preliminary test in relation to alcohol, drugs or impairment.

Sections of the consultation which have been removed:

The proposal to make ‘harm of alcohol to health’ a licensing objective and to make health bodies a responsible authority are not currently going to be implemented, but the home office have demonstrated their intent to review this in the future.
The proposal to make the outcome of a review hearing apply immediately, even when an appeal is pending, has been withdrawn.
The proposal to allow all the responsible authorities to object to TENs, to extend the period of notification from the current ten days, to reduce the number of TENs which a personal Licence Holder can apply for in any one year period and to reduction of the number of TENs which can be held in the same vicinity are not being taken forward or have been compromised as described above.
Below cost sales – The proposal to ban below cost sales (minimum pricing) have been withdrawn at this time, but a commitment to revisit the issue was made.

The full report can be viewed at: Responses to Consultation – Rebalancing the Licensing Act

The report repeatedly acknowledges that most licensed premises are managed responsibly and that it is a minority that cause many of the problems. It is for this reason that they have proposed some concessions to premises which take an active role in local and national schemes designed to reduce the negative impact of alcohol on the licensing objectives and local communities.

The Conservative party’s ‘big society’ ambition is clearly visible in the response to the consultation, the stated intention being to empower local communities and thus the licensing authorities. This approach means it is even more important for licensed premises work in partnership with the local community and responsible authorities. Premises licence holders need to demonstrate the positive impact they can have, rather than defending the negative image the sector can have.

Being proactive is something we discuss in a number of our courses and through our consultancy services with clients. Just one example of this is the new measures proposed to deal with harm to children. There is really no merit in waiting to see what happens when a test purchase is carried out, because failure of just two test purchases in a three month period, will potentially lead to the revocation of your premises licence. Being proactive is going to mean effective training of staff and strict implementation of age restricted products sales policies, as well as voluntary test-purchase campaigns.

Beyond the Blue is developing a comprehensive package for business which will put effective measures into place and to test those measures, to deliver results based on evidential materials which can be used to demonstrate good practice. If you are interested in this package please Contact Us.

More discussion on these proposals will follow in subsequent News-Blog entries and as more detail is published by the government.

At Beyond the Blue Training & Consultancy we deliver a number of different courses and services including;