Government rejects call from peers for licensing committees to be abolished

November 8, 2017

The Government has ruled out implementing “at this time” a controversial recommendation from a House of Lords committee that licensing committees should be abolished and their functions transferred to planning committees.

In its formal response to a report published in April 2017 by a House of Lords committee set up to scrutinise the Licensing Act 2003, the Government said it would focus instead on improving training and providing stronger guidance on how licensing hearings should be conducted.

In their report the peers had said that the evidence they had received against licensing committees was “damning” and they were "extremely concerned by what [they had] heard”.

The Government's response, which can be viewed here, also rejected calls from the Local Government Association for public health to be made a licensing objective, and licensing fees to be set locally.

The Government acknowledged that the committee’s recommendations about the relationship between licensing and planning were “the start of a debate”.

However, it said: “It is up to local authorities to determine how they organise committees to deliver their statutory functions and we do not intend to take the approach recommended by the Committee at this time. Section 7 (5) of the 2003 Act already allows that where a matter relates to a licensing function and to another function of the local authority (for example, planning), the matter may be referred to either committee.

“This allows for the licensing committee to discharge functions other than licensing matters, and vice-versa, for a planning committee to discharge a licensing function.”

The Government acknowledged that the House of Lords committee had raised important points in its report on the effectiveness and consistency of implementation of licensing processes and decision making.

“We accept that improvements could be made in some local areas and that the synergies between planning and licensing should be part of an ongoing discussion about how we can support local improvements. Instead of transferring the functions of licensing committees to planning committees, we are focusing on improving training and providing stronger guidance on how licensing hearings should be conducted,” it said.

“The basic structures of the planning and licensing system are similar and our focus will be on improving how the two regimes communicate and interact at local level. There is good practice in many local areas that we will disseminate and build on, for example whether there is additional support that local residents could be given to frame and present their concerns about a licensing application to the committee effectively. The local planning authority is already listed in the Act as a responsible authority and therefore has a statutory role in considering applications for the grant, variation or review of a premises licence.”

Other significant elements of the Government’s formal response included:

The licensing framework was now "well established" and the Government therefore considered the requirement to lay revised s.182 guidance before Parliament to be unnecessary.
Minimum unit pricing for alcohol remained under review. “Subject to the outcome of the legal case between the Scottish Government and the Scotch Whisky Association and any subsequent decision of the Scottish Government to introduce a minimum unit price for alcohol, the Government will consider the evidence of its impact once it is available.”
The section 182 guidance stating that “It is important that a licensing authority should give comprehensive reasons for its decision in anticipation of any appeals. Reasons should be promulgated to all the parties of any process which might give rise to an appeal under the terms of the 2003 Act”, would be amended to extend this principle to decisions made after a hearing.
The Government did not intend to change the system so that licensing appeals no longer went to magistrates’ courts but lay to the Planning Inspectorate. “However, we accept the Committee’s findings that the licensing appeals system could be improved and we are aware that some local areas find the system unwieldy and prone to delay. We will explore with partners whether there is good practice within the existing regime and from similar regimes that may offer some ideas for consideration.”
The Government accepted that it was reasonable for a licensing sub-committee to provide reasons why a hearing should nonetheless be held even where there were no longer any matters of dispute between the parties. “This will be included in the section 182 guidance and in the LGA licensing handbook when it is produced. The guidance will also be amended to clarify the powers of delegation to dispense with a hearing.”
The Government did not intend to revoke regulations 21 and 23 of the Hearings Regulations, a move that had been recommended by the House of Lords committee. The response said allowing cross-examination would result in licensing hearings taking significantly longer than they did currently and make the process overly adversarial.
It was important to preserve the flexibility for licensing authorities to determine their own procedures for holding hearings. “However, we will consult partners about what changes should be made, if any, to the section 182 guidance to improve the consistency of process where this is needed, for example that parties should be allowed sufficient time to make their representations.”
The Government could not implement the House of Lords committee’s recommendation that where on a summary review a licence is revoked and the livelihood of the licensee is at stake, magistrates’ courts should list appeals for hearing as soon as they are ready. This was because listing was a judicial responsibility and function. The recommendation would be discussed with HM Courts and Tribunals Service who would bring the select committee’s recommendation to the attention of the judiciary.
The Government had no plans to revisit the requirement for an applicant to publish a notice in a local newspaper.
The Government would revisit how the issue of coordination between the licensing and planning systems was presented in the section 182 guidance with a view to strengthening the call for consistency wherever possible, in the assessment and approach of those matters that were considered by both regimes to support local authorities to make effective decisions.
In agreement with the House of Lords committee, the Government said there were no plans to add to the licensing objectives, whether for example in relation to public health or compliance with the Equality Act 2010. In terms of public health the Government said it believed there was much that could be done within the existing licensing framework. It added that it was determined to support an increased focus on public health engagement with licensing.
Local authorities would not be granted powers to ban super-strength alcohol across many premises. Instead the Government would tackle alcohol pricing through taxation, particularly the issue of high strength products.
Before proceeding with a consultation on the introduction of a group review intervention power, the Government would explore whether similar measures could be achieved within the existing system.
In relation to Temporary Event Notices, the Government agreed with the House of Lords committee’s view that changing the current system or introducing different systems for community and commercial events would be undesirable and the Government did not intend to introduce this division. The Government had no plans to hand licensing authorities a power to object to TENs. It did propose that the s.182 guidance should recommend that licensing authorities consider how to bring TENs to the attention of residents who might be particularly affected.
The Government was giving further consideration to the impact of introducing the Community and Ancillary Sales Notice in the future.
Paragraph 9.12 of the s.182 guidance would be amended to remove the emphasis on licensing committees taking police evidence seriously.
The Government would commence “at the next available opportunity” measures to put cumulative impact policies on a statutory footing. Commencement was put on hold while the Government awaited any recommendations from the House of Lords Committee, which supported the move.
The Government did not agree that an alternative solution proposed by the House of Lords committee in relation to interim steps would be preferable.
Although no licensing authorities had implemented an Early Morning Restriction Order, the Government believed it was important to keep this tool available.
The Government would now commence provisions in the Policing and Crime Act 2007 aimed at making the late night levy more flexible for local areas, fairer to business and more transparent. These changes would: allow licensing authorities to target the levy in geographical areas where the night time economy places demands on policing; give licensing authorities the power to charge premises licensed to sell late night refreshment the levy; give Police and Crime Commissioners the right to formally request that a licensing authority propose a levy triggering a consultation on whether to introduce a levy; and require licensing authorities to publish information about how the revenue raised from the levy is spent. The Government would consult on the level of charge appropriate for late night refreshment premises, given that many were small businesses.
The 70:30 split of late night levy funds between the police and local authorities was appropriate and the Government had no plans to change it. The Government would also ensure before taking any further action in relation to the late night levy that it complies with the EU Services Directive.
The Government would ensure the section 182 guidance remained consistent with the National Planning Policy Framework, if changes were made (after the consultation on the Housing White Paper) to emphasise the ‘Agent of Change’ principles in planning policies and decisions. The DCLG was analysing responses to that consultation.
It was clear from the LGA/CIPFA survey on the costs of administering the 2003 Act that the costs of licensing varied significantly and allowing fees to be set locally was not a simple answer to this issue. The Government intended to make no change to the existing fees in the immediate future, “now is not the time to make changes to licensing fees”. The policy would be re-considered in due course, however.
The Government considered it would be “disproportionately complex, resource intensive and expensive” for the Government, local authorities and magistrates’ courts to create and administer a database of all personal licences (there were over 650,000 in existence at 31 March 2016) linked to the Police National Database as recommended by the House of Lords committee.
The Government did not consider conditions in the 2003 Act in relation to members’ clubs to be a significant burden on them and therefore has no intention to alter or remove these provisions.

The LGA criticised the Government’s refusal to make public health a licensing objective.

Commenting as the latest statistics on alcohol-related deaths (7,367 in 2016) were published, the chairman of the Association’s Wellbeing Board, Cllr Izzi Seccombe, said: “It is disappointing that government has not acted on our call for a public health objective to be included within the Licensing Act.

“This would give councils the power to limit the opening of late-night premises in areas where there are particular concerns about the cumulative impact of alcohol on public health."

British Beer & Pub Association Chief Executive Brigid Simmonds said: “I welcome the Government’s sensible, overall focus in making the existing legislation work better. In particular, there are no plans to increase licensing fees, or to take up the proposal that fees should be set locally, which was a concern.

“There will be further consultation on how the Act applies to airports, and the response recognises the very specific issues involved.”

Simmonds added: “One disappointment is that the Government has not taken up the call to abolish the late-night levy or EMROs. I hope they will keep this under review, as partnership working, through the establishment of Business Improvement Districts as the Lords Committee recommended, is a much better approach.”