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The Home Office has released its consultation on ‘Rebalancing the Licensing Act - a consultation on empowering individuals, families and local communities to shape and determine local licensing.’ The proposals in the document would radically change how licensing works and include: 

Giving Local Authority/ Police More Powers

  • Make licensing authorities ‘responsible authorities’- they will not need to have a representation to revoke, review a licence
  • Reduce burden of evidence- currently LA have to prove recommendations are ‘necessary’ for licensing objectives. They will no longer be asked to prove this.
  • Make applicants responsible for demonstrating impact of licence in area and how they will mitigate negative factor- move burden from LA onto applicant
  • Alter legislation so LA have to accept and adopt all recommendations made by the Police unless clearly not relevant

Appeals

  • Government want to overhaul the appeals process so that fewer cases are challenged and that in some instances they are not referred in court. It is proposed that the regulations around what circumstances an appeal can be made are tightened.
  • They want the findings of review process to come into force from when the holder of the premises licence receives the determination of the decision from the licensing authority, and that the sanctions should remain unless and until an appeal to the magistrates’ court is successful. This means that any appeal decision will not be delayed until the outcome of an appeal, but will come into effect immediately.
  • They also want first course of an appeal to be reheard by the licensing authority in the first instance. They recognise the need to ensure a balance is struck so that courts are used when necessary and applicants will have a fair trial and seek views on how to achieve this

Communities

  • Currently individuals can only object or make a representation if they live in the vicinity of the premises. Government is proposing to remove ‘in the vicinity’ so anyone will be able to intervene
  • Considering whether to make ‘community groups’ interesting parties under the act (i.e school governors, housing associations and registered social landlords) and if so, what groups should be included.
  • LA must consult more widely on draft licensing policy statements (although there will not be a prescribed list

Public Health

  • Proposal to make public health bodies relevant parties meaning they will be able to make representations about local licensing policy
  • The consultation seeks views on whether to make ‘protection of public health’ a fifth licensing objective

Cumulative Impact Policies

  • Policies which allow LA to reject new licensing applications in the area due to saturation
  • Currently these can only be introduced in LA receive a representation and if they have a strong evidence base that granting additional licences would cause harm in the area. Guidance also states should not apply to the off trade.
  • The consultation suggests that the process of creating a cumulative impact policy is simplified and that the evidence requirement is removed, allowing LA to create more Cumulative Impact Policies.
  • ACS will investigate if it is intended that off licences are also included in these simplified policies

Licensing Hours

  • Current Guidance to the Licensing Act states that LA cannot presume against longer opening hours, and that action can only be taken to restrict an individual premises opening hour based on representation and evidence it will undermine a licensing objective
  • Proposing to allow LA greater autonomy and to chose what licensing hour policy works best for their area, fixed, flexible or zonal. This is rowing back on the fundamental principle of the Licensing Act 2003 that every premises would be judged on its merits.

Early Morning Restrictions Order

  • This is an uncommenced power from the Crime and Security Act 2010, where LA can blanket ban sale alcohol between 3-6am if necessary for licensing objectives
  • Proposing to alter scope of these orders, so local authorities can decide which hours they can ban the sale of alcohol- the consultation gives an example of after midnight. Clearly this degree of flexibility could cause significant problems.
  • Also LA will have to demonstrate that such an order ‘beneficial’ to the licensing objectives rather than ‘necessary’- much lower burden of evidence

Late Night Levy

  • Government will table legislation to allow LA to impose a late night levy on businesses
  • Will only apply to premises who have a licence to open past a specified time (ie midnight)- this suggests that the time will be set by national Government, which is something ACS has called for
  • LA will be able to use the revenue to cover the cost of Policing
  • May allow LA discretion over fees
  • Consultations asks if there should be reductions for businesses involved in best practice schemes such as Best Bar None
  • It also asks if additional costs such as street cleaning and taxi marshalling should be included

ADZs

  • It is proposed that ADZs are repealed

Fees

  • The consultation wants views on whether licensing fees should be increased to allow LA to completely recover their costs. This is clearly a worrying development. ACS will be making the case that local shops were disproportionately affected by the introduction of the new regime and the impact any rises will have on businesses. We will be seeking information on this issue from members
  • It also wants powers to revoke the licence of those who do not pay fees

Underage Sales

Increasing the penalties under the offence of Persistently Selling Alcohol to Children (power under Violent Crime Reduction Act 2006, selling two occasions in three months)

  • Increasing fine from £10,000-£20,000
  • Increasing the minimum period of a closure notice issued for persistently selling alcohol to children from 48 hours to 168 hours (7 days)
  • The consultation wants feedback on a upper limit for closure notices
  • Guidance will be issued to Police on how to use these new powers
  • If a premises if found to be persistently selling alcohol there will be an automatic licence review

Below Cost Selling

The consultation seeks 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.

Deregulations

  • The consultation wants views on whether to repeal the five mandatory conditions. This includes the requirement for all licences to have an age verification policy which was due to come into force October 2011.
  • It also wants views on other areas of the licensing act which could be open to de-simplification- ACS would appreciate members’ suggestions in this area.

TENS

  • Tightening up rules for temporary licences by limiting the number of Temporary Event Notices that can be applied for in any one year - these are often used to get around the restrictions of applying for a permanent licence


The consultation will run for 6 weeks until 8 September and the responses from the consultation will be used to inform the measures to be introduced into the Police Reform and Social Responsibility Bill that will start progress in the Commons in the Autumn. If you have any questions of comments regarding the response please contact Jenny Brown.

The Treasury is also running a consultation on changes to alcohol taxation which can be found here: http://www.hm-treasury.gov.uk/alcohol_taxation.htm
 

Policing and Crime Act

The Policing and Crime Act was passed by Parliament in November 2009. The Bill introduces new powers to tackle problem drinking including a range of powers to tackle underage sales. This included:

Reducing the number of ‘strikes’ for the offence of persistent sale of alcohol to children from “three strikes to two strikes”. This means that is a retailers is caught selling alcohol on two occasions in three months can face up to £10,000 fine, three months suspension of alcohol licence (if selling was premises licence holder) or a 48 hours closure notice.

New powers relating to the confiscation of alcohol from under 18’s
New offence of persistently possessing alcohol in a public place by under 18’s
Extending Directions to Leave to cover those aged 10 or over
These measures came into force on 29 January 2010.

The Act also gave the Secretary of State power to impose up to nine mandatory licensing conditions on all alcohol licenses. Currently five conditions have been proposals and are currently tabled before Parliament in the form of regulations. The conditions are:

For the on trade

  • Banning irresponsible promotions such as "all you can drink for £10" offers, women drink free deals and speed drinking competitions. 
  • Banning "dentist's chairs" where drink is poured directly into the mouths of customers making 
  • Ensuring free tap water is available for customers 
  • Ensuring that all on trade premises make available small measures of beers, wine and spirits to customers so customers have the choice between a single or double measure of spirits and a large or small glass of wine.

For all the alcohol trade

Ensuring all those who sell alcohol have an age verification policy in place requiring them to check the ID of anyone who looks under 18 to prevent underage drinking which can lead to anti-social behaviour and put young people at risk of harm.

If the regulations are passed the code will be introduced in two stages. The first three conditions covering irresponsible promotions, the "dentist's chair" and ensuring free tap water is available will come into effect on 6 April 2010. The remaining conditions on age verification policies and ensuring smaller measures are available will come into effect in 1 October 2010 to give retailers time to prepare.


Mandatory Code of Practice

The Act also contained provisions to allow the Home Secretary to impose up to nine mandatory licensing conditions on all alcohol license. There is still discussions on going between the various Government Departments and ACS will continue to lobby to ensure these conditions are proportionate and do not unnecessarily burden local shops.

The Home Office released a consultation in 2009 on possible conditions to be included in the code. Download ACS response to ‘Safe Sensible Social – Selling Alcohol Responsibly:   Safe, Sensible, Social ACS Response


ACS offers a licensing helpline for its members. For more information click here.