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Licensing news England and Wales - April 2017

This month in summary

Licensing News


New forms released by Home Office

From the 6 April 2017, the sections of the Immigration Act 2016 relating to licensed premises have come into force. The changes come following the laying before Parliament of the Licensing Act 2003 (Miscellaneous Amendments) Regulations 2017 in March this year.

We have detailed the new obligations under the Immigration Act in previous newsletters, but as part of the provisions, new licensing forms have been released by the Home Office for a large number of different licence applications, including personal licences, changes to DPS , new licence applications and TENs. The new forms need to be used immediately to ensure applications are not rejected for being technically incorrect.

The changes relate in the main to the personal information required to to prove an applicant's right to work in England and Wales. In a number of cases, the forms contain new declarations to be signed confirming that the applicant is entitled to work in the UK and is not subject to any condition restricting such right. False declarations can lead to unlimited fines on successful prosecution.

The forms are on the Gov.uk website

House of Lords Licensing Select Committee Reports

The House of Lords Select Committee has reported following its in-depth and lengthy investigation into the Licensing Act, some 12 years after it came into full force.

TLT actively took part in the process and comments made in the TLT response relating to the Late Night Levy were quoted directly in the report by suggesting that the LNL 're-framed the discussion in terms of who is responsible for causing the problems in the night time economy'.

The report is over 160 pages in length and goes into significant detail in terms of both the evidence presented and the Committee's recommendations.

Overview

The Committee has been scathing in its criticism of the legislation, the framework established by it, and the committees enforcing it.

Legislation

The criticisms are directed at the raft of changes made to the Act before it had a chance to bed in, including major changes made by six separate pieces of legislation relating to policing and crime that came from the same department responsible for Act itself. Piecemeal amendments by nine Acts of Parliament and various other pieces of secondary legislation, along with the regular changes to Guidance are all held accountable for what the committee deem to be an 'unfortunate' birth for the legislation.

Ad hoc attempts to 'fix' perceived problems such as the Late Night Levy and Early Morning Restriction Orders come under attack for their obvious flaws and failings, all of which, they suggest, should have been avoided.

They also raise concerns that the Policing and Crime Act 2017 will remove proper consultation as well as Parliamentary scrutiny from on-going changes to the Guidance.

Framework

The Licensing Act, in the Committee's opinion, was misconceived from the very start. Having a separate local authority licensing committee was a waste of time and resource, when the planning system already in place had enough similarity and overlap with licensing to manage the process. The Committee saw the requirement for separate licensing legislation, but not the need for a separate process.

The Committee did say, however, that they saw no good reason to change the four licensing objectives. In particular whilst the Committee recognised health and wellbeing as necessary and desirable objectives in alcohol strategy, they accepted that it is not appropriate as a licensing objective.  

Licensing committees

The Committee concluded that 'The evidence received about the poor operation of licensing committees was convincing and the Committee was extremely concerned by what it heard.'  This criticism relates to the consistency of decision making and the fact that witnesses from all sides felt that even the right results often were achieved by luck rather than a committee's good judgement. The conclusion reached by the Committee was that the system for determining licensing applications is in need of significant reform.

Recommendations that may see the light of day

A number of the recommendations made by the Committee could be implemented relatively easily, or have already been the subject of consultation. The most important are:

  • Fees for licence applications to be set locally. The Government has already consulted extensively and has held off changing the fees structure in anticipation of this report. It is likely, given the committee conclusion that S.121 of the Police Reform and Social Responsibility Act 2011be brought into force, allowing secondary legislation to be introduced requiring local authorities to set their own fees - this will be back on the agenda.
  • Legislation/Guidance relating to the Late Night Levy and Early Morning Restriction Orders either needs fundamentally addressing or repealing. This has been on the agenda in any event. Change rather than repeal is what we would expect to see, albeit the committee recommended repeal, not reform.
  • Minimum Unit Pricing or a similar mechanism to be carefully considered if it is ruled to be legal in Scotland and can be shown to be effective. The Government to the Act has already dipped a tentative toe into these waters in terms of the mandatory condition setting a minimum unit price based on taxation. We expect further measures to be taken if and when MUP is implemented in Scotland.
  • Disabled Access statements in new licence applications. Again, this is taken from Scotland and the Committee recommend something similar in England and Wales. This could be introduced through the Guidance.
  • Amendments to the hearing regulations. Following the Committee's scathing criticism of the inconsistencies in licensing decisions, it is not unfeasible to think that this would be addressed in secondary legislation, such as an amendment to the Hearings Regulations. At the very least this will include setting a minimum of 3 councillors hearing licensing matters and a revocation of regulations 21 and 23 which allow the committee to determine procedure and 'lead' the discussions with no cross-examination. Both actions were singled out for change by the Committee.
  • A minimum training standard introduced for councillors sitting on licensing committees, along with refresher training. Such training requirement to be set out in the Guidance with councillors not being permitted to sit until such time as the training is completed.
  • Magistrates' Court directions to state that where a licence is revoked on summary review and the premises is closed until the appeal is heard, the matter is to be listed for hearing as soon as possible thereafter.
  • The removal of the requirement to place a notice in the local paper. The Committee found virtually no support for a continuation of the requirement.
  • The Guidance to be amended 'to make it clear that a licensing committee, far from ignoring any relevant decision already taken by a planning committee, should take it into account and where appropriate follow it and vice-versa.'
  • The guidance to be revised to remove the section requiring committees to put more weight on police evidence, simply because of the source.
  • The creation of a national database of personal licence holders. Given the focus on personal licences in recent legislation and the accepted difficulties presented by the current lack of a database, this is likely to be moved up the agenda.
  • Enforcement officers and local authorities to be instructed to re-focus efforts on enforcement of the law relating to the service of alcohol to intoxicated persons.

This is not to suggest that all of the above will be implemented, only that some of them are likely to be revisited and could potentially lead to changes.

The full report can be found here

Recommendations unlikely to be implemented

The Committee made the following recommendations based on their finding that that Licensing Committees were unnecessary and complicated matters. These are unlikely to result in any changes in the short to medium term as they would require a fundamental re-drafting of the Act:

  • The transfer of the functions of local authority licensing committees and sub-committees to the planning committee (whilst maintaining a separate licensing regime)
  • Licensing appeals be determined by the planning inspectorate using the same process as planning appeals
  • There is likely to be more devil in the detail, but it will be down to the Home Office to determine what changes, if any, they choose to introduce.  

Gambling News


Invitation to comment on the Gambling Commission business plan for 2017/18

The Gambling Commission has published its business plan for 2017/2018 outlining its focus and priorities in key areas for the next financial year. 

The Commission will focus on five key areas:

  • empowering and protecting consumers;
  • raising standards across all gambling sectors;
  • building partnerships and understanding;
  • ensuring fair play on the National Lottery; and
  • improving regulation.

The Commission is also seeking the views of key stakeholders on their future strategy. Given the likely changes in the way the Gambling Commission enforces against operators, in particular in relation to protecting the young and vulnerable from gambling, it is a good time for the industry to ensure its voice is heard. 

The commission have stated that they are looking for suggestions on how to:

"improve how we deliver our core responsibilities. There is also a need to build and maintain consumer trust against the back drop of changing consumer behaviour. To do this, we wish to encourage the industry to be increasingly innovative to continue to keep gambling safe, fair and crime free."

Further information can be found here 

Out and About

The start of spring has seen us taking to road and rail on behalf of clients up and down the country. Hearings in Bradford, Milton Keynes, Cardiff, Richmond Upon Thames and Epping Forest to name a few- saw us appearing for clients in relation summary reviews, variations and new licence applications. In addition, it was a busy month for meetings and training, including giving a full days training to London Fire Brigade in relation to large scale outdoor events, attending safeguarding in licensing training and BIL and ALMR licensing meetings. Add to that a trip to Beer X and it all adds up to a busy month. 

This publication is intended for general guidance and represents our understanding of the relevant law and practice as at April 2017. Specific advice should be sought for specific cases. For more information see our terms & conditions



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