FURTHER SUBMISSION FROM THE ENTERTAINMENT, LEISURE AND HOSPITALITY SECTOR ON THE COALITION 

PROGRAMME FOR GOVERNMENT AND THE SUBSEQUENT CONSULTATION ON RE‐BALANCING THE LICENSING ACT 

 

 

 

 

 

 

 

 

   

 

 

 

 

 

 

 

7th September 2010

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Introduction

In July of this year the Entertainment, Leisure and Hospitality sector (the ‘hospitality sector’) as represented by the organisations listed as signatories to this submission, responded to the Government’s invitation to engage in the debate on the policy objectives for the future reform of alcohol taxation and licensing policy. Those organisations, namely the Association of Multiple Licensed Retailers (ALMR), British Hospitality Association (BHA), British Beer & Pub Association (BBPA), British Institute of Innkeeping (BII), Business In Sport & Leisure (BISL), Federation of Licensed Victuallers (FLVA), and NOCTIS, have been joined in this submission by the British Holiday & Home Parks Association (BHHPA) and the Tourism Alliance. The hospitality sector responded to the broad thrust of the Coalition’s proposals, seeking positive engagement with the Government to meet our common objectives. The paper put forward a number of recommendations and suggestions arising from the understanding we had gained of the Coalition’s proposals and from discussions with Government officials on them. Our recommendations in summary were as follows:

• We support the introduction of a prohibition of below-cost selling as a mechanism for promoting “fair competition” which would promote responsible retailing. The cost price in question should represent as closely as possible the real cost incurred by a retailer to sell for the goods;

• We welcome a Government review of alcohol taxation and pricing which would re-dress the imbalance between prices paid by customers for alcoholic drinks in hospitality venues and shops. We suggest a more radical look at taxation to include amongst other things a VAT differential; a rebalancing of duty between higher alcoholic strength drinks and lower strength drinks, such as beer; and duty refunds for hospitality venues;

• That the Government introduce a level-playing field between leisure and hospitality

businesses and shops and supermarkets by either:

The introduction of agreed and Government backed voluntary Codes of Practice for both the on and off-trades, removing the mandatory conditions currently imposed on the on-trade

or The introduction of mandatory conditions for the sale and promotion of

alcohol in the off-trade

• There should be more effective and consistent use of the powers that already exist to revoke and refuse licenses;

• Emphasis should rest on the development of local partnerships and local solutions in the management of public spaces;

• Increased support the development of improved compliance on the prevention of under-aged sales through the Local Better Regulation Office (LBRO);

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• We would welcome recognition that the hospitality trade is at the front line of

enforcement against under-aged sales with a greater use of training orders where transgression is without intent;

• We would welcome an in-depth examination of policing and enforcement in the late-night economy building on proven success and tackling individual anti-social behaviour vigorously taking a wholly inclusive approach to the management of town centres;

• Regulations under licensing that have not yet been implemented should be reviewed, in particular those relating to the introduction of the Mandatory Code which should be revisited in the light of the Coalition policy objectives;

• Any review of the legislation should be carried out under the Licensing Act itself rather than piecemeal through other Parliamentary Bills.

Having made these observations we were therefore disappointed by the tone and direction of the consultation proposals. These go beyond what we would consider proportionate to problems they purport to resolve, are short on natural justice and impose potential costs on hospitality businesses that rely on their existence by meeting the needs of the local community they serve. We are particularly concerned that given the nature of the measures that are now proposed the request that there should be a deeper review of the Licensing Act has been denied. This request is more relevant given that the Government has chosen to over-ride the usual 12 weeks consultation period and over the summer holiday period which exacerbates the problem of obtaining information, discussion and consultation with the members of our organisations. In responding to the consultation the signatories, in making their own responses have repeated some of the above comments while adding what we believe are practical and effective proposals that will deliver better engagement and compliance without imposing undue hardship on legitimate businesses. These include:

• licensing officers are nominated as responsible authorities. This would enable councils to speed up the process without prejudicing the licensing authority in its decision making role.

• the removal of the requirement for a triennial review to encourage local engagement in policy making which would benefit from reviews with a purpose rather than a mechanical exercise.

• adopting the approach taken in the Gambling Act which defines who can make representations rather than restricting such representations through the use and definition of vicinity.

• health authorities should be encouraged to participate in licensing decisions as an interested party.

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• that Training Orders be applied where there are transgressions on underage sales, where a remedy to an inadvertent sale would provide a better solution where closure and revocation are reserved for those who deliberately flout the law.

• the hospitality supports proposals to introduce measures to combat below cost selling and agrees that this could be achieved through a licensing condition.

• We give our support for rescinding licences where fees are not paid, providing due notice and re-instatement can be instituted if payment is subsequently made in time. Councils should be encouraged to collect through direct debits to aid collection.

• Constructive partnership working and strong targeted enforcement, together with a greater emphasis on dealing with individual irresponsible behaviour are the key to making improvements.

• Support the removal of the mandatory conditions that have been introduced on the grounds that they will do little to improve the behaviour of individuals or businesses while adding to the burdens of business.

In the course of examining the consultation proposals the organisations representing the hospitality sector has become increasingly alarmed at the undermining of the basis of licensing and the operation of the legislative framework. So much so that the BBPA undertook on behalf of all the organisations to obtain a legal opinion as to the efficacy and legality of what is being proposed. Gerald Gouriet is a well respected QC in the field of licensing and the opinion he has come to is based on his extensive knowledge of the Act and his experience, alongside that of his colleagues in chambers, of how the Act has worked and is working in practice.

We are keen to share this eminent opinion with the Government, copy attached, not least because we believe the Government should be aware of the serious legal issues raised by the consultation document , which have to be addressed.

Mr Gouriet makes a number of points as regards the consultation process itself not least about the lack of clarity of what is being proposed. The consultation has far too many open questions to respondents to reflect adequately on proposals that could very shortly be translated into legislation. He questions the “false and misleading assertions on which consultation questions are predicated” and we can only agree that much of what is contained in the consultation and the Impact Assessment do not bear any comparison to our knowledge and experience of the Act.

The Act is quite clear that local people can object to the grant of licences and frequently do yet the consultation seeks to imply that this not so by seeking to empower local communities. Similarly, Gerald challenges the assumption that “more flexibility is needed in determining closing times”. Such flexibility already exists as evidenced by the range of opening times utilised by businesses and the constraints that are put upon those either at the time of application or on review. The consultation also ignores the very pertinent point that applications for licences are made in the knowledge of local licensing policies and local knowledge are lodged to achieve success, so that such matters as hours and the conditions offered are made to increase the chances of that success.

The ambiguities and contradictions contained in the section relating to police evidence are highlighted in Gerald’s opinion which as he says would “break new ground in English legislation”. He goes on to advise that such a proposal would be at risk of incompatibility

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with Article 6 and Article 1 of the First Protocol to the European Convention on Human Rights, thereby rendering the Government vulnerable to legal proceedings.

Similarly, he challenges the proposal in relation to the right to appeal, which would greatly diminish the current system. The hospitality industry understands the current system which grants leave to appeal on the basis that the licensing authority is not a court of law and could not, in our view, be described as independent and impartial by its very nature. While many if not most licensing authority do act in such a way they are constituted in such a way and hence the need for proper appeals process. The harm is compounded here is other matters in consultation are taken forward, such that bodies such as the police can simply impose their will and the licensing authority become functionary in carry out that will.

Mr Gouriet shares our view that conditions should and must be ‘necessary’ and that should licensing authorities become responsible authorities under the Act then a number of legal difficulties might arise.

Most importantly Mr Gouriet indicates that the unintended consequences of limiting the powers of magistrates on appeal will be to give rise to the number of judicial reviews pursued through the courts. This in turn will lead to a significant increase in costs. This will be equally true of the proposal to make the licensing authority a responsible authority under the Act.

The previously shortened synopsis of Mr Gouriet’s opinion provides merely a flavour of his opinion which needs to be read in full and in the context of the consultation to fully understand and appreciate its relevance to that consultation and to the position of the hospitality sector and other businesses which are regulated under the Act.

We have emphasised the importance of the hospitality sector to the economy, its prominent place in the tourism offer of this country an its potential for sustaining and growing job opportunities in the difficult economic climate we all face. It is then all the more important that in seeking to solve some of the pressing social problems associated with alcohol misuse that those in the tourism, hospitality and leisure sector who are reliant on the possession of a licence under the Act to operate their business are not saddled with a new licensing regime that not only imposes unnecessary cost burdens but one that is blatantly unfair and unjust. Business must treated fairly while being encouraged to play its part in tacking those abuses and the organisations that have signed up to this paper, do so willing and already participate in and seek to evolve new approaches and initiatives to make our towns, cities and communities better and safer.

We therefore urge the Government to think again, to take forward those matters that are un-controversial but to take note of the views expressed by this submission and the legal opinion that supports it. The proper operation of an effective and fair licensing regime is fundamental to the success of these businesses and to the tourism strategy of the Government.

The hospitality sector would very much welcome a discussion of the points raised by this submission and Mr Gouriet’s opinion before any legislation on the matters addressed here is drafted. We fear otherwise that there will no recourse left to the operators of these businesses but to seek a legal remedy through the offices of the trade bodies party to this submission.

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In the matter of a Government Consultation on proposed changes to

licensing legislation

______________________

OPINION ______________________

Introduction

1. We have been asked to advise the British Beer and Pub Association (―BBPA‖) as to

the legal and practical implications of changes which, according to a Consultation

Document1, the Government is proposing to make to existing licensing legislation.

2. The consultation period is short. What follows is necessarily a time-constrained

selection of our many concerns, which may be summarised under four headings:

(i) Flawed consultation:

(a) consultation questions predicated on a false or misleading premise;

(b) lack of clarity.

(ii) Apparent unlawfulness of proposals.

(iii) Undesirable and/or unintended consequences of proposals.

(iv) Unnecessary regulation: increase rather than decrease of bureaucracy.

Flawed Consultation

3. It is well established that, insofar as consultation papers materially mislead, the

consultation process may be considered unfair and invalid.2 It is, furthermore, a

requirement of the Government‘s Code of Practice on Consultation (July 2008) - in

accordance with which the Consultation purports to have been issued - that

―Consultation documents should be clear about …what is being proposed‖ (see

Criterion 3). In our view, a number of questions in the Consultation are predicated on

a false, misleading or unclear premise which could be said to vitiate the

Consultation‘s validity.

1 “Rebalancing the Licensing Act”: a consultation on empowering individuals, families and local communities

to shape and determine local licensing.” 2 R v Sec.of State for Transport, ex p Richmond Upon Thames Borough Council [1995] Env LR 390 at 405.

2

False or misleading assertions on which Consultation questions are predicated

4. Amongst the more serious misstatements are -

(i) “Currently under the Licensing Act a licensing authority can only

refuse or remove a licence, or impose conditions on the licence

upon review, if it can be proved that this „is necessary‟ for the

promotion of the licensing objectives and if a relevant

representation has been made by a responsible authority.”3

5. This is wrong: a licensing authority may act on the representations of local people

individually, or of residents associations, or of any local councillor: a responsible

authority need not be involved. More importantly than mere error, the false statement

(which appears more than once in the Consultation) misleads the reader on a central

issue of the Consultation, echoed in its title, namely whether there is a need to

empower ―individuals, families and local communities to shape and determine local

licensing‖. It implies that a relevant representation from a neighbouring resident or

business would not, on its own, empower a licensing authority to refuse to grant a

licence, or remove a licence or impose conditions on a review. This encouraged

misconception greatly diminishes the value of consultation answers in support of local

residents and businesses being ‗empowered‘ to shape and determine local licensing.

(ii) “There is a fundamental presumption in favour of granting an

application for a licence to sell alcohol, which makes it difficult

for local authorities to turn down applications.”4

6. Section 4 of the Licensing Act requires a licensing authority at all times to ―carry out

its functions with a view to promoting the licensing objectives‖ – the prevention of

crime and disorder, public safety, the prevention of public nuisance and the protection

of children from harm. Section 18 requires a licensing authority to grant a licence

where there are no representations made by local people or ‗responsible authorities‘

about the likely effect of a grant on the promotion of the licensing objectives. Section

18 also provides, however, that even when there are no representations from any

source, the authority may impose such conditions, consistent with the operating

schedule, as it thinks necessary for the promotion of the licensing objectives.

7. Whether the regime outlined in the preceding paragraph has been fairly characterised

as a ―fundamental presumption in favour of granting an application for a licence‖, or

tends to mislead, we are unaware of any evidential basis in support of the final

assertion that it ―makes it difficult for local authorities to turn down applications.‖

Our experience is wholly the opposite. If any such difficulty truly exists, it has been

easily overcome by the majority (if not all) of the licensing authorities in front of

whom we have appeared.

3 Paragraph 5.02

4 Paragraph 5.01

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(iii) Refusals of licences on the ground that it is necessary to do so

in order to promote the licensing objectives “are rare partly

because the licensing authority is not a responsible authority

under the Act.”5

8. The assertion that refusals of licences are ―rare‖ again runs contrary to counsel‘s

experience. The blanket assertion that ―the licensing authority is not a responsible

authority‖ needs to be looked at more carefully.

9. Paragraph 5.03 of the Consultation proposes that ‗relevant licensing authorities‘ be

made ‗responsible authorities‘ under the Licensing Act ―(or be given equivalent

powers)‖. The Government believes that ―this would empower them to refuse, remove

or review licences themselves without having had to have received a representation

from one of the other responsible authorities‖.

10. Insofar as the proposal assumes that a licensing authority may not already ―refuse,

remove or review licences without having … to have received a representation from

one of the other responsible authorities‖, it over-simplifies and misrepresents the

present law. In a number of instances the ‗relevant licensing authority‘ and the

‗responsible authority‘ will be the same legal entity. In most of England, as s.3 makes

clear, the licensing authority will be the District Council for the area in which the

premises are situated. But the District Council may also be the local planning authority

under the Town and Country Planning Act 1990 for the same area and therefore, by

virtue of s.13(4)(d), entitled to act in the capacity of ‗responsible authority‘ as well as

‗relevant licensing authority‘ in respect of the same premises. By way of further

example, the same District Council might also be the ‗local authority‘ under

s.13(4)(e), and by that route a ‗responsible authority‘ for the purposes of making a

representation on a licensing application.

11. Furthermore, the Consultation seems to be unaware of section 53 of the Licensing Act.

“53 Supplementary provision about review

(1) This section applies where a local authority is both—

(a) the relevant licensing authority, and

(b) a responsible authority,

in respect of any premises.

(2) The authority may, in its capacity as a responsible authority, apply

under section 51 for a review of any premises licence in respect of the

premises.

(3) The authority may, in its capacity as licensing authority, determine

that application‖.

5 Paragraph 5.02

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12. It is clear from the provisions mentioned above (and particularly reinforced by s.53 in

relation to reviews), that local authorities (typically District Councils) may both make

relevant representations (in relation to first applications, applications for variation, and

reviews) as well as initiate reviews (under s.51) and determine first applications,

applications for variation, and reviews. Local authorities are in many instances already

empowered to do that which the proposal seeks to allow them to do.

(iv) “More local flexibility is needed in determining closing times.”6

13. There is absolute flexibility to determine closing times under the 2003 Act, guided

predominantly by local considerations. Licensing hours are no longer fixed by statute.

(v) “The Government is also exploring possible changes to the

licence application process, to shift the onus onto applicants to

consider and demonstrate to the licensing authority how their

licence application will impact on the local area, and how they

will mitigate any potential impacts.”7

14. The implication of these words is that under the current application process applicants

do not need to consider the impact of their application on the local area. This is

misleading. An applicant is asked to set out in the Operating Schedule accompanying

his application what steps he proposes to take to promote the licensing objectives.

15. The errors discussed above are not matters merely of detail or emphasis. The consultee

is being steered towards answers in support of proposals to increase licensing

authorities‘ powers, on the back of erroneous, incomplete or misleading information

the effect of which is to understate, substantially, what those powers already are.

Flawed Consultation due to lack of clarity

16. Because it is often difficult to arrive at a clear or accurate understanding of the

Government‘s proposals, we do not think that it is possible for consultees to give an

informed answer to many of the Consultation Questions. We will deal with the main

problems in the order they appear in the Consultation –

(i) “We propose to strengthen the weight that licensing authorities

must give to police representations”8

17. It is not clear from the text preceding Consultation Question 4 which of two distinct

approaches is being championed. On the one hand the proposal appears to require

licensing authorities to accept the substance of police evidence (where it has crossed

the ―relevance‖ threshold), and on the other merely to compel authorities to give that

evidence increased weight. These are wholly different things. Evidence can attract

great weight but still not tell in favour of a particular result.

6 Paragraph 6.01

7 Paragraph 5.04

8 Paragraph 5.05

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18. If it is proposed that greater weight should be attached to evidence from the police

than from any other source, then the amendment will be breaking new ground in

English legislation.9 It is not clear, however, whether this is or is not the proposal.

19. If, on the other hand it is proposed that a licensing authority will be directed to attach

‗great‘ or ‗significant‘ weight to the police evidence, the statute could not prevent the

licensing authority from attaching such weight as it thought fit to other (possibly

countervailing) considerations and evidence, because on general public law principles

the weight to be attached to particular considerations is a matter for the decision maker

and a licensing authority would be entitled to reach its own view on the evidence

unless it was irrational .

20. If the proposed statutory amendment mandated (as is the natural reading of its

concluding words) that ‗decisive‘ weight be given to the police evidence, that would

be tantamount to requiring the licensing authority fully to accept the substance of that

evidence. On a proper analysis, this would not be a matter of ―weight‖ at all.

21. Consultation Question 4 itself is expressed in tolerably unambiguous language. But

the explanatory text that goes before it is contradictory of the Question, and causes

real uncertainty as to the Government‘s intention.

(ii) “The Government considers that there is a case to be made for

including additional bodies as interested parties under the

Licensing Act”.10

22. Paragraph 5.13 of the Consultation begins: ―The Government considers that there is a

case to be made for including additional bodies as interested parties under the

Licensing Act.‖ Earlier, however, (paragraph 5.08), the proposal is made that ―any

person, body or business will be able to make a relevant representation on any

premises, regardless of their geographic proximity.‖

23. It is not clear to us what the Government is trying to achieve in drawing up a list of

‗interested parties‘ – least still expanding it – if ‗any person‘ may make a

representation.

(iii) “Overhauling the Appeals process”11

24. Three proposals are mentioned: (a) that ―the power for determining licensing

decisions remains with the licensing authority throughout‖; (b) that ―remitting the

case back to the licensing authority should become the default position‖; and (c) that

the appeal court should ―retain the power to dismiss the appeal or re-hear it if it is

seen to be necessary‖.

9 The only instance we can find of a statute requiring greater weight to be given to one source of evidence over

another is in the Vulnerable Witnesses (Scotland) Act 2004. 10

Paragraph 5.13 11 Paragraphs 5.14-5.18

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25. We cannot reconcile these proposals. Proposal (a), as well as rendering the appeals

process nugatory, is inconsistent with proposal (c). The circumstances in which an

appeal court would be entitled to hear the case are not explained: the words ―if it is

seen to be necessary‖ beg the question – necessary measured against what criteria? In

the circumstances, it is far from clear what is meant by ―the default position‖ in

proposal (b), or how that proposal is intended to work alongside proposal (c).

(iv) “Removing the evidential requirement for Cumulative Impact

Policies.”12

26. It is not clear what is meant by ―the evidential requirement‖. Little is given by way of

explanation; and what is given is misleading and/or wrong.

27. The Consultation asserts (paragraph 6.08) – ―…the link to the licensing objectives

means that there is a high (sic) evidential burden on responsible authorities (sic)

before [a cumulative impact policy] can be introduced.‖

28. Cumulative impact policies are not creatures of statute. A licensing authority (not a

responsible authority) may adopt such a policy if it is rational to do so. The Guidance

under section 182 is: ―There should be an evidential basis for the decision to include a

[cumulative impact] policy within the statement of licensing policy‖ – which we take

to be saying no more than that it would not be rational to introduce such a policy in

the absence of any evidence that it was required. Nor would it be proportionate.

29. The Consultation continues (paragraph 6.09): ―[The Government] intends to remove

the evidential requirement in order to reduce the burden on licensing authorities and

encourage greater use of [cumulative impact policies]. This will give greater weight to

the views of local people as the licensing authority will not be constrained by the

requirement to provide detailed additional evidence where such is unavailable.‖

30. We cannot understand how ―greater weight‖ will be given to ―the views of local

people‖ as a result of provisions being enacted that permit licensing authorities to

adopt cumulative impact policies when there is no evidential justification for so doing.

31. Contrary to what is implied, there is no current requirement to provide ―detailed‖

evidence before a cumulative impact policy may be adopted. We do not know what is

being referred to by ―the requirement to provide detailed additional evidence‖.

32. Less still do we understand what is meant by ―detailed additional evidence‖.

Additional to what?

Apparent unlawfulness of proposals

33. It is necessary to revisit a proposal already discussed under ‗lack of clarity‘.

12 Paragraphs 6.06-6.09

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(i) Requiring licensing authorities to accept all representations

and notices, etc. from the police.13

34. We have considered whether or not the expression ―require licensing authorities to

accept all representations and notices‖ might mean something other than ‗fully accept

their substance‘. We cannot see how that could be so. It is clear to us that the proposal

is concerned with more than just the validity of representations or objection notices,

not least because it proposes that licensing authorities should ―adopt all

recommendations‖ of the police. The police could, of course, ‗recommend‘ that an

application be refused. It would be most odd if the proposal would require licensing

authorities to follow such a recommendation, which would be dispositive of the result

of an application, but still allow authorities to attach such weight as it thought fit to

police evidence and representations.

35. On the assumption that the proposal would require licensing authorities fully to accept

the substance of police representations (and objection notices) and evidence, this

would mean, as we understand it, that an applicant would have no opportunity (or only

a redundant opportunity) to challenge the representations or evidence of the police

(which might indeed constitute the only objection to his application) before the

licensing committee. The applicant would have no, or no useful, opportunity to put his

own case forward. A licence could be taken away from an applicant on review without

the licensing authority even being empowered to prevent it.

36. We have no hesitation in advising that such a proposal, if enacted in legislation, would

be at risk of incompatibility with Article 6 of and Article 1 of the First Protocol to the

European Convention on Human Rights (―the ECHR‖), and therefore render the

Government vulnerable in proceedings seeking a declaration of incompatibility under

s.4 of the Human Rights Act 1998 (―the HRA‖). We are of that opinion for the

following reasons:

37. As to Article 6:

(a) So far as material, Article 6(1) of the ECHR provides that

―In the determination of his civil rights and obligations … everyone is

entitled to a fair and public hearing within a reasonable time by an

independent and impartial tribunal established by law …‖.

(b) The determination of the licence applications affected by the Consultation

proposal would in our view constitute determinations of a ―civil right‖ within

the meaning of Article 6(1). The European Court of Human Rights (―ECtHR‖)

held in Tre Traktörer Aktiebolag v Sweden (1989) 13 EHRR 309 that two

Swedish administrative boards (at first instance and on appeal), charged with

deciding whether to revoke or limit licences to serve alcohol, determined, in so

doing, the ―civil rights‖ of the licence holders (ibid. para [44]). It also held, in

13 Paragraph 5.05

8

Benthem v Netherlands (1985) 8 EHRR 1, that proceedings determining a first

application for a liquid petroleum gas installation licence fell within the scope

of Article 6(1) (ibid. paras [33] and [36]). We are confident that article 6(1)

would similarly be held to apply to proceedings under (inter alia) ss.18, 35, 52,

120 and 121 of the 2003 Act.

(c) Our view is strengthened by R (Chief Constable of Lancashire) v Preston

Crown Court [2002] 1 WLR 1332 it which it was conceded by the Chief

Constable, and accepted by Laws LJ (at para 17) that the right to apply for an

on-licence under the Licensing Act 1964 fell within the scope of ―civil rights

and obligations‖ in Article 6(1) because it related to the applicant‘s right to

make a living and pursue a commercial activity. We agree with the authors of

Patterson‟s Licensing Acts (2010) that ―there is no basis to distinguish the new

forms of licence created by the Licensing Act 2003 which concern economic

activity [from on-licences under the 1964 Act]‖ (ibid. Vol 1, p.2167).

(d) That being so, Article 6(1) guarantees that there be a fair hearing in respect of

determinations under those sections of the 2003 Act. The jurisprudence of the

ECtHR has made clear that those party to proceedings determining ―civil rights

and obligations‖ must have a reasonable opportunity of presenting their case

under conditions which do not place them at a substantial disadvantage vis-à-

vis their opponent(s); there must be ―equality of arms‖ (see e.g. Dombo Beheer

v Netherlands (1993) 18 EHRR 213 at para [33]; De Haes and Gijsels v

Belgium (1997) 25 EHRR 1). We have difficulty in seeing how legislation

which renders nugatory or impermissible an applicant‘s ability to challenge

what might be the decisive evidence leading to (for instance) the revocation of

his licence could be said to comply with that principle.

(e) Since the effect of the proposal would be that an applicant would at no stage

have any or any effective opportunity to make his case in the determination of

his right to a licence in circumstances where police representations have been

made, or a police objection notice given, and he wished to contest such

representations or such a notice, we consider that it would risk breaching the

UK‘s Article 6 obligations.

38. As to Article 1 of the First Protocol (“A1P1”) –

(a) A1P1 provides:

―Every natural or legal person is entitled to the peaceful enjoyment of

his possessions. No one shall be deprived of his possessions except in

the public interest and subject to the conditions provided for by law and by the general principles of international law.

The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control

the use of property in accordance with the general interest or to secure

the payment of taxes or other contributions or penalties‖.

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(b) It was established in Tre Traktorer v Sweden (1989) 13 EHRR 309 (―Tre‖) that

the economic interests connected with the running of premises are

―possessions‖ for the purposes of A1P1 (Tre para 53), and it is clear, by

analogy with that case, that decisions as to first applications, applications for

variation and reviews may constitute a measure of control of the use of

property, the proportionality of which falls to be considered under the second

paragraph of the Article (Tre para 55).

(c) Tre also reiterated, in the specific context of licensing, that measures of

interference with the right under A1P1 must strike a ―fair balance‖ between the

demands of the general interest of the community and the requirements of the

protection of the right. There must be a reasonable relationship of

proportionality between the means employed and the aim sought to be realised

(Tre para 59).

(d) We have difficulty in seeing how legislation which would preclude a decision-

maker from even considering whether a decision to refuse or revoke a licence

was proportionate in any case in which the representation against the licence

came from the police could be safe from challenge under A1P1. What is

proposed would appear to be a matter of blanket application in such cases

affording a decision-maker no opportunity to consider the proportionality of

the result. A rule of such inflexibility would in our view risk putting the UK in

breach of its ECHR obligations.

(ii) “The Government considers that the sanctions imposed by a

licensing authority should come into force when the holder of

the premises licence receives the determination of the decision

from the licensing authority, and should remain unless and until

an appeal to the magistrates‟ court is successful.”14

39. This proposal does not sit easily with the proposals for the overhaul of the appeals

system. The awkward marriage of the two merits a reference back to ‗lack of clarity‘

as well as a mention under the current heading. Would having the matter remitted back

to the licensing authority be regarded as success in the appeal? Bearing in mind the

proposed limited powers of the magistrates, it could hardly be regarded as failure.

40. The unlawfulness is to be found in the absence of any discretion, in a suitable case, to

allow the continuance of a licence, or of its conditions as they were before the decision

of the licensing authority, pending the outcome of an appeal. In our opinion, the

blanket suspension proposed - with no discretion to do right in a suitable case - would

be at risk of incompatibility with Article 6 of and Article 1 of the First Protocol to the

ECHR, and therefore render the Government vulnerable in proceedings seeking a

declaration of incompatibility under s.4 of the HRA.

14 Paragraph 5.19

10

(iii) The abandonment of “necessary for the promotion of the

licensing objectives” as the criterion for the imposition of

conditions, in favour of “of benefit to” their promotion.15

41. The word ―necessary‖ in the existing legislation was not picked arbitrarily. The

criterion of ‗necessity‘ ensures that the imposition of conditions is proportionate. Its

replacement by ‗benefit‘ introduces a real risk of disproportionate conditions being

imposed. Much that would indubitably be of benefit to the promotion of the licensing

objectives will just as certainly be wholly lacking in proportionality.

(iv) „Relevant licensing authorities‟ to be made „responsible

authorities‟.16

42. In our view, were relevant licensing authorities automatically to be afforded the status

(or powers) of responsible bodies within the existing framework of the 2003 Act, a

number of legal difficulties might arise.

43. In the case of first applications and applications for variation, ‗relevant

representations‘, if they are to qualify as such, must be (inter alia) ―about the likely

effect of the premises licence [or application for variation] on the promotion of the

licensing objectives‖ (see respectively ss. 18(6)(a) and 35(5)(a)).17

It follows that if a

representation received by a relevant licensing authority is not addressed at one of

more of those objectives, it cannot constitute a ‗relevant representation‘. It is plain that

the list of ‗responsible authorities‘ which Parliament drew up in s.13(4) of the 2003

Act was intended to comprise those bodies which it considered were well suited to

provide evidence to the relevant licensing authority as to the effect which the grant (or

variation) of a premises licence would have on the four objectives. Thus, for instance,

the ―chief officer of police for any police area in which the premises are situated‖

(s.13(4)(a)) was considered well suited to give evidence as to issues of crime and

disorder, the fire and rescue authority (s.13(4)(b)) and Health and Safety enforcing

authority (s.13(4)(c)) well suited to give evidence in respect of public safety, the local

authority in s.13(4)(e) well suited to give evidence as to public nuisance, the body in

s.13(4)(f) as to the protection of children from harm, and so on.

44. Were ‗relevant licensing authorities‘ to be made (or given equivalent powers to)

‗responsible authorities‘ within the existing framework of the 2003 Act, the ‗relevant

representations‘ which they made would still have to be directed at one or more of the

licensing objectives in order to trigger a hearing to determine first applications and

applications for variation. An authority (acting in its capacity as ‗relevant licensing

15 Paragraph 5.04 16 Paragraph 5.03 17 The same rule applies to ―relevant representations‖ considered in determining applications for minor variation

made under s.41A. ―Relevant representations‖ for that purpose are defined in s.41B(10) as meaning

―representations which are about the likely effect of the grant of the application on the promotion of the licensing

objectives‖.

11

authority‘) would be precluded from treating representations which it had made (in its

capacity as ‗responsible authority‘) as ‗relevant representations‘ unless that were so.

Thus, insofar as the Consultation proposal suggests that, by making ‗relevant licensing

authorities‘ ‗responsible authorities‘ (or giving them the same powers), hearings for

first applications and applications for variation could be triggered simply on the ‗say

so‘ of ‗relevant licensing authorities‘, it appears to us to be misconceived.

45. Furthermore, the ‗representation‘ made by the ‗responsible authority‘ which, when

made to the ‗relevant licensing authority‘, triggered a hearing to determine a first

application or application for review, would have to have a basis. To say this is to do

no more than express the trite principle that a public body must always act rationally.

If placed within the existing framework of the 2003 Act, the Consultation proposal

could not, in our view, entitle a ‗relevant licensing authority‘ to hold a hearing to

determine a first application or application for variation unless the representation it

had received from the ‗responsible authority‘ (that is to say, itself) had some evidential

basis (which furthermore, was directed at one or more of the licensing objectives).

Insofar as the Consultation proposal appears to suggest that a ‗relevant licensing

authority‘ could seek to hold a hearing to determine a first or variation application

(and therefore, inter alia, refuse the application) without some evidential basis, it

appears to us to render ‗relevant licensing authorities‘ open to judicial review

challenge on a continuous basis.

46. We have similar concerns about the effect of the proposal on the existing mechanism

for applications for review. It is true that, were ―relevant licensing authorities‖ to be

made or given equivalent powers to ‗responsible authorities‘, this would enable a local

authority (in its capacity as ‗responsible authority‘) to initiate a review under s.51, and

that that application would necessarily trigger a hearing provided that the application

was made in accordance with the procedural and other requirements of that section.

We do not think, however, that a local authority (acting in its capacity as ―responsible

authority‖) could ever lawfully seek to initiate a review unless it did so rationally and

on the basis of some evidence relevant to the licensing objectives. Insofar as the

Consultation proposal suggests that it could, it misunderstands the nature of a public

body‘s obligations.

47. We should also make clear that, in our view, it would not be enough for a local

authority acting in its capacity as ―responsible authority‖ to rely, in its representations

to itself as the ―relevant licensing authority‖ (or when seeking to initiate review), on

the evidence of another of the ―responsible authorities‖ already listed in s.13(4). The

proposal naturally requires the authority to act on its own behalf in making

representations (or initiating review). Insofar as the Government‘s proposal seeks to

allow ‗responsible authorities‘ which are also ‗relevant licensing authorities‘ to rely on

the evidence of others, the proposal is redundant within the framework of the existing

Act, because the other ‗responsible authorities‘ can already make relevant

representations and initiate reviews.

12

Unintended consequences

48. Limiting the powers of magistrates on appeal will give rise to a sharp rise in judicial

reviews. It is our experience that the many errors of law that many licensing

authorities fall into do not get aired in the superior courts for the simple reason that it

is necessary first to exhaust one‘s statutory remedies – namely, appeal to the

magistrates‘ court. Curtailing the scope of magistrates‘ court appeals will result in a

commensurate rise in (more costly) appeals to the High Court.

49. BBPA may also wish to alert the Government‘s attention to the increased risk of

judicial review challenge if ‗relevant licensing committees‘ are made ‗responsible

authorities‘. The likelihood and/or validity of challenge on the ground that a ‗relevant

licensing authority‘ (as decision-maker) had pre-determined an application, or

approached it with the appearance of bias, by itself making ‗relevant representations‘

(or initiating a review) in its capacity as ‗responsible authority‘, would, of course,

depend on the facts of each case.

Unnecessary regulation: Increase rather than decrease in bureaucracy

50. Mention has already been made of our difficulty in understanding what is the purpose

in creating a list of defined ‗interested parties‘ if any person is to be entitled to make

representations on a licence application, irrespective of geographic proximity.

Designating local health bodies as responsible authorities is questionable for that

reason alone, as well as in it own right - since it would be necessary to make ‗health‘ a

fifth licensing objective if the health body were to have anything relevant to say. It is

perhaps a matter of subjective impression, but this proposal does not seem to us to be

assisting things in the direction of deregulation.

51. A power to impose conditions on a licence (whether on first grant or review) even

though it is not necessary to do so in order to promote the licensing objectives, would,

in addition to courting disproportionality (see above), give rise to significant over-

regulation in an area that is already over-burdened. It should be remembered that

under the 1964 Licensing Act there were innumerable public houses, causing no

problems to anyone, in respect of which there were ‗justices‘ on licences‘ with no

conditions whatsoever attached to them. Those same pubs‘ new ‗premises licences‘

may now be found to have as many as 30-50 conditions upon them. The regulatory

consequences are considerable. It is difficult to discern who has benefited.

Gerald Gouriet QC

Thomas Cross

Francis Taylor Building

Inner Temple 27 August 2010