Licensing: an attack on natural justice

The government’s honeymoon period is certainly over for the pub industry. Licensing laws set to be included in a new government bill have been described by leading figures as an attack on natural justice and a nuclear time-bomb. For anyone not close to what is being proposed, the gory detail can be poured over in the latest issue of M&C Report, in an article penned by Jeremy Allen, the founding partner from licensing legal firm Poppleston Allen, which is also included here at the bottom of this column. To read in full scroll down, but for a flavour, here are just two excerpts: “Let’s say that, totally wrongly, a licence is taken away from a popular town centre premises. At the moment, the premises could continue to trade until the Magistrates’ Court hears the appeal. The government proposes that the premises should not be able to trade pending the appeal. In other words, the moment that the decision is made by the licensing authority it bites. This is probably a breach of human rights’ legislation and certainly needs to be challenged in the Courts. It could mean the kiss of death for any premises. And: “There are other proposals, including giving more powers to local health bodies, abolishing mandatory licensing conditions, enabling licensing authorities to revoke licences where the annual fee isn’t paid, increasing the licence fee and simplifying cumulative impact policies. Oh, and they are proposing to remove the necessity for residents and others to be in the vicinity of the premises before they object. This would enable national organisation to object – significantly increasing the burden on licensing authorities.” So far, so scary. As Toby Smith of Town & City Pub Company said at last week’s UK Pub Retail Summit – where Allen was presenting the problem – the idea that someone in Berwick Upon Tweed could rightfully object to a license application in Cardiff is just wrong. He told delegates: “The licensing legislation that is coming our way is terrifying. If that does go through unchecked it will do more damage than the smoking ban.” Steve Richards of Novus Leisure said: “It’s so surreal. There is this term called natural justice, which is broadly about people being allowed to do normal business. This [legislation] is so against this principle. It’s very strange.” The thing is, what to do? This legislation surely has to be stopped. If it isn’t, the government will have to re-visit it, once it realises what it has done. And by then it could have closed scores of well-run businesses. Tim Martin, the founder of JD Wetherspoon, was also at the pub summit last week – organised by M&C Report and the Morning Advertiser – and was in his usual combative form, criticising various companies (Diageo, Molson Coors, Greene King) for their recent stance on issues around taxation and minimum pricing laws. Despite the grenades he did concede that it was time the pub industry came together to campaign on issues where it could agree common ground, and surely, the ill advised and hastily-compiled legislation on licensing is an issue that can unite the whole industry – that’s individual operators, multiple-site companies, regional brewers, suppliers, trade bodies, interest groups et al. Martin said: “There needs to be a single voice making clear and persistent arguments.” One of the best ideas I heard at the conference was that the industry should seek to work in concert with the Camra, the real ale consumer group led by Mike Benner, who would surely want to raise an issue that could irreparably damage a significant number of pubs up and down the country. A campaign by Camra highlighting the issue would be far more effective than a bunch of people who earn their livings making drinks and running boozers. The issue desperately needs national press coverage (imagine the delicious irony if the Daily Mail comes riding to the industry’s rescue?) and the industry needs to get consumers involved in big numbers. The main trade bodies – the BBPA, the ALMR, the BII and probably the BHA too – all need to get round a table and work together. Whatever they’ve been doing to date clearly isn’t working. Below is Jeremy Allen’s article, which was written in August when the government’s consultation was underway (it ended last week, on 15 September): Licensing to kill? The trade is used to receiving dire warnings from solicitors. The latest government consultation – Rebalancing the Licensing Act – is however different. The consultation is taking place over a six-week period, the majority of which was in August when a lot of people take holidays and that includes most government ministers. It is perhaps not surprising that the government’s own Code of Practice states “if a consultation exercise is to take place ..... when consultees are less able to respond, eg over the summer ...........consideration should be given to the feasibility of allowing a longer period for the consultation”. The normal recommended consultation period is a minimum of 12 weeks. The Code points out that this allows consultees to consult before drafting a response. You have only until the 8th September to respond. The Home Office did not take over the responsibility for licensing until July and it doesn’t have a great record on licensing. They have created provisions for councils to create Alcohol Disorder Zones but did it so badly that no council has yet availed themselves of this opportunity. In addition, they were responsible for the mandatory conditions to be added to every single licence in the country. It is a badly worded piece of legislation that needs a court to decide its meaning. That perhaps explains why I have a heavy heart looking at this consultation. If the government were to bring in one or two minor changes, using the planned Police Bill, the rest could be left to be brought in, if necessary, after a proper consultation. Unfortunately, the Home Office states that the Government is already committed to introducing a number of proposals. It points out that this consultation is primarily seeking views on the implications of implementing them, rather than inviting comments on the proposals themselves. The first proposal suggests that licensing authorities could themselves become responsible authorities. This would enable them to make their own representations upon applications and then to decide. It doesn’t require a genius to see that you are going to have to work quite hard to persuade them not to follow their own recommendations. Just to make this easier, the Government proposes to reduce the licensing authority’s burden of proof. Instead of finding that their solution is “necessary” to promote the licensing objectives, it can simply be “beneficial”. These proposals could put the application in some jeopardy but let’s suppose you have a benign local authority. Could you relax? The licensing authority should be obliged to accept all representations from the police unless there is clear evidence that these are not relevant. In other words, they could be relevant but wholly lacking in detail. Quite often there are duplications in police statistics. In addition, reference may be made to a pub in a police report simply because of its position. The fact that the premises could have been closed on a particular night or during an incident will not necessarily be noted in the officer’s report. More people are coming into a town or city centre having already consumed a significant amount of alcohol. Doormen may refuse to admit them. If they then start an argument, and it’s recorded by the police, it will be seen to be the responsibility of the premises from which they were, quite properly refused admission. This could lead to the more popular premises topping the list on statistical grounds. It is vitally important that police evidence in those circumstances can be questioned. Let’s say that, totally wrongly, a licence is taken away from a popular town centre premises. At the moment, the premises could continue to trade until the Magistrates’ Court hears the appeal. The government proposes that the premises should not be able to trade pending the appeal. In other words, the moment that the decision is made by the licensing authority it bites. This is probably a breach of human rights’ legislation and certainly needs to be challenged in the Courts. It could mean the kiss of death for any premises. I have acted for premises that have been closed for a limited period of time and they have found it very difficult to rebuild their trade once the licence has been allowed to continue. If the premises were owned by a sole trader, he might be driven out of business and unable to afford to proceed with the appeal. Councillors could be elected on a pledge to do something about the town centre licences and proceed to revoke these without any real evidence of wrongdoing. To make matters worse, the government is considering tightening the appeals’ process. In other words, magistrates will be encouraged to send it back to the licensing authority. Fine, if there have been improvements or the premises have been sold. Otherwise it is unlikely that the licensing committee is going to change its original decision. The government is also proposing to amend the Crime & Security Act 2010. This was passed in the dying days of the last Labour government and gave powers to local authorities to restrict the sale of alcohol between 3am and 6am. They are now suggesting 12 midnight until 6am. The major problem with this is that it would be impossible, using the Crime & Security Act, to allow certain premises to open whilst requiring others to close. A midnight restriction could hit all on licences, e.g. bars, nightclubs, hotels, concert halls, etc. If the government is seriously considering giving local authorities the power to restrict licence hours in this way then surely it should be better to distinguish between individual premises. The government’s proposals for Temporary Event Notices (TENs) are a complete mess. The previous government proposed increasing the time the police have to object to TENs from 48 hours to two working days to stop people putting in applications, knowing that the police licensing officer had gone home for the weekend. The government wants to increase that to five working days. It also proposes to cut the number of applications that a personal licence holder can make and consults upon the possibility of giving others the right to object. There is no mention of the proposal, accepted by the previous government, to allow short notice applications. It is worth remembering that the procedure for making this type of application was tightened up by the Licensing Act. Under the previous system, it was quite possible to ring the police and get a short notice application before the court. In other words, you could make the request on a Thursday and, if the police were happy, have it granted for the Saturday. It always appeared to work perfectly well. There is a proposal to protect children from the effects of alcohol by requiring licensed premises to be closed for a minimum of one week – it’s currently 48 hours. The government hasn’t decided on the maximum but it could be considerably longer. Why not keep the minimum period and suggest that proper training of staff takes place to ensure that they don’t make further sales of alcohol to underage persons? There are other proposals, including giving more powers to local health bodies, abolishing mandatory licensing conditions, enabling licensing authorities to revoke licences where the annual fee isn’t paid, increasing the licence fee and simplifying cumulative impact policies. Oh, and they are proposing to remove the necessity for residents and others to be in the vicinity of the premises before they object. This would enable national organisation to object – significantly increasing the burden on licensing authorities. Perhaps you can see why I feel that we need longer to consider the impact of the changes and a proper Licensing Act to deal with them. Jeremy Allen is a partner at Poppleston Allen, the firm of solicitors specialising in licensing. Email Jeremy@popall.co.uk