Guiding hand

In the first of two articles Roy Light examines the Home Office’s amended Guidance under the Licensing Act 2003 Part 1.

The latest amended guidance issued under s.182 of the Licensing Act 2003 was laid before Parliament on 25 April 2012. It replaces the October 2010 Guidance. The accompanying Home Office Explanatory Memorandum refers to the amendments made to the Licensing Act 2003 by the Police & Social Responsibility Act 2011, the regulations made under the 2003 Act to give effect to those amendments and “The corresponding revision to the guidance [as] a package of measures to rebalance the Licensing Act 2003 in favour of local communities and give licensing authorities greater flexibility to shape and determine local licensing”. (para.7.1)

Date in force

The 2010 Guidance provided for "these Guidance Amendments [to] come into force immediately upon laying" (page 5). But was the amended Guidance to be applied retrospectively? While the 2010 revisions were not such as to raise significant issues in this regard that is not the case with the 2012 revisions which contain substantial changes designed to assist with ‘rebalancing the Licensing Act’.

The 2012 Guidance contains no commencement date but came into effect on the day it was laid before Parliament. Does it have retrospective effect? The better view is that the 2010 Guidance will continue to apply to applications made prior to the laying of the 2012 Guidance. This view is shared in an email from the Home Office contact on the amended Guidance (Helen Brewis, Alcohol Policy, Drugs and Alcohol Unit) in an email response to a recent enquiry:

“Regarding the case you mentioned where the licence application was made and in process prior to the laying of the revised statutory guidance issued on 25th April 2012, this should be processed in accordance with the previous statutory guidance (laid in Parliament in October 2010) as the revised guidance does not apply retrospectively.

“However, all applications received by the licensing authority on or after 25th April 2012 must be processed in accordance with the revised statutory guidance issued on 25th April 2012.”

General revisions

This is the second Guidance document to be drafted by the Home Office and the opportunity has been taken to give it a general tidying up in addition to the specific amendments required by the rebalancing exercise. References to websites and external materials are now Home Office rather than DCMS based and there is a boost for the Welsh language in the specification of bilingual requirements in various places (for example, personal licences (4.13-4.14)). Some general tidying up and simplification has been undertaken by way of rewording, deletion of unnecessary examples, breaking up of long paragraphs and the adoption here and there of a generally tighter and more formal style (more Home Office than Department of Tourism).

The 2012 Guidance runs to 121 pages, compared to 161 in the 2010 Guidance. But 41 pages of the latter are made up of an index and a number of annexes (covering Schedules 1, 2 and 4 of the 2003 Act, a ‘Pool of conditions’ and a list of ‘useful information and contacts’). These have not been included in the 2012 Guidance.

Introduction

The 2012 introduction is briefer and omits a large number of sections from the previous Guidance, including those on ‘Related Legislation and Strategies’ (covering various pieces of legislation, alcohol harm reduction strategy, LACORS guidance and the EU Services Directive) most of which were unnecessary. Two significant sections which have been omitted are those relating to ‘partnership working’ and ‘hours of opening’. It is hoped that parties in licensing applications will continue to work together and attempt to achieve mutually acceptable mediated resolutions to disputes or difficulties. This has been a strong feature of the way in which the system has operated and no doubt the parties will continue to work together in this way. The omission of the sections on ‘staggered closing times’ will not be missed as the notion that longer, flexible opening times would reduce alcohol-related problems was based on a single piece of flawed research and was more or less unworkable on practical and economic grounds.

Licensing objectives/licensable activities

Throughout these chapters and the rest of the Guidance the word ‘appropriate’ replaces ‘necessary’ in the text and the word ‘vicinity’ is expunged from the document. (It seems the only ‘vicinity’ to survive is at 13.12.) We wait to see what interpretation and effect these simple changes of wording generate. ‘Text and radio pagers’ becomes ‘Radio links and ring round phone systems’ and a couple of paragraphs on the use of these devices are omitted. Apart from that, and some rewording, the crime and disorder section of the licensing objectives chapter remains unchanged. The public safety section has benefited from some pruning, rewriting and general presentational improvement but substantively remains largely as before; although rather than "licensing authorities should not seek to impose fire safety conditions where the [Fire Safety] Order applies" it now reads "a licence issued by the authority cannot impose any term, condition or restriction relating to fire safety" (2.23) (perhaps following the Bristol City Council v Somerfield decision).

For public nuisance "vicinity of the premises" is replaced by "the area around the premises" (2.33). Attempts to distinguish the new wording from the old will no doubt be made but there is little or no difference in their meaning. Similarly, use of the words "noise immediately surrounding the premises" (2.37) seems to have the same meaning as "noise in the immediate vicinity of the premises". A new requirement placed on operators is that where appropriate "adequate dispersal policies" should exist "to ensure that customers leave the premises promptly and with minimum disruption to those in the surrounding area" (2.39). Omitted from the latest Guidance is the paragraph dealing with the "cumulative effects of litter" and the provision of litter bins in the area by LNR take away establishments. Presumably as such businesses generally have no right to place bins on land beyond their own premises.

The protection of children section omits some previous material on gambling but signals yet again a tougher approach on alcohol by adding: "The Government believes it is completely unacceptable to sell alcohol to children" (2.42) and "licensing authorities should give considerable weight to representations about child protection matters" (2.48).

There are some new and reworded sections on the wholesale of alcohol (3.6-3.7) and internet and delivery sales (3.8-3.10). In particular, it is stated that "alcohol delivery services" should be mentioned in operating schedules and existing premises licence holders who wish to add delivery services should "apply to vary their licence to add this activity to their existing licensable activities" (3.10). Can this be right? Is the Guidance effectively seeking to add a new licensable activity to sales on and/or off the premises by introducing "alcohol delivery services"?

The Home Office accepts that there is some ambiguity in the wording and very helpfully states that: “… the list of licensable activities in the Licensing Act 2003 could only be changed by amending the Act itself and this cannot therefore be achieved in the guidance. This guidance was written on the basis that a premises which has a licence, but not to serve alcohol, would need to apply for a variation to add the sale of alcohol as a licensable activity if they were intending to additionally operate an alcohol delivery service. Moreover, a premises may already have an existing licence to serve alcohol (for example, a pub or off licence) but if they intend additionally to begin operating an alcohol delivery service, they should make the licensing authority aware of this to ensure appropriate conditions are added to the licence with regards to this additional activity to ensure the promotion of the licensing objectives. We expect to lay revised statutory guidance in October this year to support the expected commencement of Early Morning Alcohol Restriction Orders and based on the issues you have raised will consider whether the guidance could be made clearer in the October revision.” (Personal communication, Helen Brewis as above.)

This seems to suggest that premises with alcohol sales as a licensable activity, which deliver alcohol but did not mention this when applying for a licence, must apply for a variation (in order to add "appropriate conditions"). While the Guidance applies to new applications, premises that have run a delivery service for some years without including it specifically in their initial application, without any problems, may enquire on what basis they are being required to do this. Could it be argued that such conditions are ‘appropriate’ although they were not necessary? It seems not as this would entail applying the amended Guidance retrospectively. However, applications made on or post 25 April 2012 for premises that will deliver alcohol should mention this and the conditions considered appropriate to support the activity.

Regulated entertainment, although still the preserve of the DCMS, is included in the Home Office Guidance but moved to a chapter at the end of the document (chapter 15). The section on late night refreshment is unchanged and, aside from some quite extensive rewriting, so too is the chapter on personal licences. The chapter on premises licences is largely unchanged, although a number of examples and references to external material are omitted and there are a couple of changes in wording on garages to take account of the Murco v Bristol City Council decision where it is noted that a licensing authority "may be able to use its case management powers to enable further evidence [on primary use] to be obtained" (5.24). The club premises certificate chapter is also largely unchanged aside from the deletion of a few unnecessary paragraphs.

Substantial changes have been made to other parts of the Guidance and these will be dealt with in the second part of this article which will appear next week.

Prof Roy Light is a licensing barrister practising from St John's Chambers, Bristol (This email address is being protected from spambots. You need JavaScript enabled to view it.).