Update: licensing

Aside from a handful of higher court cases on licensing procedure, the main development this quarter for licensing practitioners is the Police Reform and Social Responsibility Act, which received Royal Assent on 15 September. The Act contains a number of provisions that continue the retreat from the liberal agenda of the Licensing Act 2003. Taken with the expected changes to the statutory guidance - which will among other things increase the weight given to police evidence and encourage further cumulative impact areas - the Act represents a significant tightening of the regime for granting, controlling and reviewing permissions for alcohol and entertainment licensed premises. Licensing authorities are given substantial revenue generating opportunities; the trade is subjected to increased regulatory control; and licensing practitioners can expect increased workloads as more representations are made, hearings held and reviews and prosecutions instigated.

Focus on police reforms

Despite heavy lobbying from the licensed trade, parliamentary scrutiny of the Police Reform and Social Responsibility Act focused mainly on the clauses dealing with police reforms. The licensing provisions in the bill received comparatively little attention; making their way onto the statute book largely unaltered.

The most significant change to the bill is the amendment which allows licensing authorities, subject to ministerial approval, to set fees locally on the basis of full cost recovery (as happens under the Gambling Act 2005). This may also include the cost of acting as a responsible authority. Section 121 of the Act inserts new sections 197A and 197B into the Licensing Act 2003.

The minister has indicated that the new fee structure, to be introduced by way of regulations, is unlikely fully to take effect until 2013 and that a careful eye will be kept on the way in which the authorities set fees. The concern from the trade is that cash-strapped councils will see the new power as a method of revenue collection.

There is as yet no commencement date for the Act. Early indications were that its provisions would come into force in April 2012. But with the necessity for revised guidance and regulations this appears unrealistic, the second half of 2012 being more likely (perhaps with at least the temporary event provisions in force before the 2012 Olympics in July).

The licensing provisions are contained in sections 103-140 of the Act. Licensing authorities (section 103) and Care Trusts/Local Health Boards (section 104) are made responsible authorities with the power to make representations and instigate reviews. 'Interested parties' (subject to the 'vicinity test') are replaced by 'persons who live, or are involved in a business, in the relevant licensing authority's area' (sections 105-108) and under the rubric of 'reducing the evidential burden for licensing authorities', 'appropriate' is substituted for 'necessary' when deciding whether steps should be taken to promote one or more of the licensing objectives (sections 109-111).

Temporary event notices will be subject to objections from the local authority on the basis of 'risk of pollution of the environment or of harm to human health', conditions can be imposed on the notice if appropriate for the promotion of the licensing objectives, procedural changes are introduced in relation to notices and counter-notices and time limits are relaxed including an increase from 96 hours to 168 hours (sections 112-117). The power to introduce 'early morning restriction orders' at times between midnight to 0600 hours is introduced by section 119 (replacing the 'alcohol curfew' powers introduced but never activated under the Crime and Security Act 2010), the penalty for 'persistently selling alcohol to children' is increased from £10,000 to £20,000 with the possibility of a closure order up from 'not exceeding 48 hours' to 'at least 48 hours and not more than 336 hours' (s.118). Non-payment of the annual fee will result in suspension of the licence or certificate but exceptions apply to allow for administrative error, disputes and a 'grace period' (s.120). Licensing authority policy statements will need to be reviewed every five rather than three years (s.122) and relevant offences' in schedule 4 of the 2003 Act for personal licences will include attempts/conspiracy to commit those offences (section 123).

New late night levy

Section 140 repeals the provisions of the Violent Crime Reduction Act 2006 which introduced alcohol disorder zones' (ADZs). These are effectively replaced with the 'late night levy' (LNL). As with an ADZ, premises which supply alcohol (in the case of LNLs between midnight and 0600 hours) will be required to pay a levy in addition to their licence fee. No ADZs were introduced and this was largely attributed to their complexity. That the LNL provisions take up 15 sections of the Act (sections 125-139) does not augur well for their simplicity. This, coupled with the distribution of the income generated between licensing authorities and the police, has led some commentators to predict that LNLs will suffer a similar fate to ADZs.

The government is enjoined to monitor the new provisions. Section 124 provides that 'as soon as is reasonably practical' after a period of five years from the coming into force of the provisions the secretary of state must conduct a review of the effect of the amendments of the licensing scheme. No doubt, in light of recent experience in the ever changing world of licensing legislation, yet more legislation will have been enacted before those five years are up.