“Rained off” at Lords?

Jonathan Hyldon reviews the progress of the Police Reform and Social Responsiblity Bill, which had its final reading earlier this month.

Throughout the summer the Police Reform & Social Responsibility Bill (“PRSR” Bill) has passed through all of the relevant stages in the House of Lords having had its final reading on 20 July, with licensing until one week ago having about as much impact on the debate as Andy Murray in a Wimbledon semi final….next to nothing! Until that point peers had predominantly addressed matters such as the replacement of Police Authorities with directly elected Police and Crime Commissioners and the regulation of protests around Parliament Square.

In relation to licensing the key area of the Bill was that it would “amend and supplement the Licensing Act 2003 with the intention of ‘rebalancing’ it in favour of local authorities, the police and local communities”.

So what were the main areas debated during its passage through the Lords and what is the current position?

Necessary or appropriate? – Reducing the burden on licensed premises

The debate in the Lords’ Committee on 6 June saw Clause 110: Reducing the burden: premises licences, come under scrutiny. The Government is seeking to amend the evidence test when attaching conditions to a licence by using 'appropriate' rather than 'necessary'. It was argued that the word 'appropriate' would allow decisions to be taken on the grounds of subjective judgment as opposed to the actual facts of a case. Further it was stated that 'appropriate' is not clearly defined in law whereas 'necessary', although not defined in statute, has been defined by various judgments in the past. This is a matter which has been a consistent cause for concern to us since the proposal was originally suggested.

The result of the amendment, it was argued, would be that this would lead to conditions being challenged more than is currently the case, resulting in an increased burden on Licensing Committees, the Courts and licensed premises. Further, it was argued that if a responsible operator receives a Review of his premises under a totally different set of decisions based on an arbitrary view rather than on anything that is evidence-based or is required for the benefit of the local community, the operator might either have to review how he operates his premises or lose his licence and suffer a substantial loss not only of earnings but of all the capital that he has invested in the business.

At the Third Report stage on 14 July it was stated by Baroness Browning that "these decisions will still need to be evidence-based."

It has been confirmed that statutory guidance on the new tests will be included albeit at the present time no one was in a position to say when the guidance will be available – only that it will be made available. It was also confirmed that this will be consulted upon to ensure correct interpretation once the legislation is applied.

The potential differences in interpretation between what is ‘appropriate' and what is ‘necessary' is difficult to judge, but could be significant hence the apprehension about its implementation. As an example of this difficulty, consider whether the actual proposed amendment to this bit of the law is firstly ‘appropriate' and secondly ‘necessary'. We would say that the amendment is certainly not ‘necessary'. However, whether it is ‘appropriate' is a lot more open to debate!

Exemptions for the Late Night Levy and the Introduction of Early Morning Restriction Orders (EMROs)

At the Third Report stage Lord Clement-Jones probed whether there are plans to introduce exemptions from the late night levy and, if so, what those might be. For instance, would there be exemptions for private members' clubs which do not sell to members of the public but are membership-based or would there be exemptions which recognise best practice and social responsibility initiatives such as Best Bar None, Business Improvement Districts, Purple Flag and Pubwatch etc?

Lord De Mauley confirmed that there will be a full public consultation on the secondary legislation on EMROs later this summer. In relation to private clubs it will be considered in the consultation whether to include not-for-profit clubs and sports clubs as a separate class before bringing forward the Regulations.

In respect of licence fees, the Government had previously confirmed that ‘there is no intention that locally set licensing fees will fund the general costs of local government in the everyday sense of the phrase’, which means that they could raise money from fee payers for something unrelated, such as to help build a new swimming pool or, as was suggested in the debate, to collect refuse. The Government also confirmed that they intend to make each fee subject to a nationally set cap, and will consult on the level of that cap.

For those of us concerned about the remit and extent of these reforms, there remains an anxiety that any guidance and the responses to such further consultation will not address what we perceive as significant shortcomings in the current proposals.  

Licensing Authorities as Responsible Authorities

It appears Licensing Authorities will be Responsible Authorities if the Bill is passed in its current format.

Powers for Licensing Authorities to set fees

The Lords voted against a proposal to allow Licensing Authorities to include licensing-related costs incurred by social services and trading standards when discharging their functions as Responsible Authorities under the Act.

The amendment was disagreed, and so will not include these costs. As Lord De Mauley, speaking for the Government, said “the practical difficulties outweigh the benefits” because Licensing Authorities would be forced to calculate the costs of the other bodies — creating “substantial extra bureaucracy”. He also said costs generated for Councils would be “marginal” albeit Lord Stevenson replied: “Although the minister said that it was a marginal cost, every pound is important to local government”. No doubt this is especially the case where Councils decided to invest in Icelandic banks!

Limits on Temporary Event Notices

A further amendment sought to extend the limits on Temporary Event Notices from 12 to 15 events per annum. This being on the basis that thousands of clubs throughout the UK, including working men's clubs, Conservative, Labour and Liberal clubs, British Legion, miners' and Armed Forces' clubs, play a vitally important part in the lives of their members. No doubt the rest of the on-licensed trade would have been happy with this amendment as well.

However, this proposed amendment has been affected by the fact the Government has recently announced that they will shortly be carrying out a public consultation, led by the Department for Culture, Media and Sport, on the reform of Regulated Entertainment under the Licensing Act 2003.

Late night levy requirement

Amendments at the Final Report stage were put forward to extend the ability of Licensing Authorities to determine the extent of the geographical spread of the late-night levy area so that it need not apply to the whole local authority area.

On its current terms, the proposals prohibit a Licensing Authority from applying the levy to specific parts of its area. Inserting the words of the proposed amendment has the effect of allowing Licensing Authorities to designate a particular town or city centre within its control as being liable for the late-night levy.

A further amendment was inserted to probe the Government's reasons for giving discretion to Licensing Authorities as to whether to grant exemptions or discounts for the late-night levy, but not for the Early Morning Alcohol Restriction Orders.

Lord De Mauley responded by stating that "we are confident that we have provided tools such as Early Morning Alcohol Restriction Orders to allow Licensing Authorities to target specific areas with alcohol problems. Businesses profit from supplying alcohol in a safe, late-night environment, so they should contribute to the very substantial Police costs incurred. If we gave a Licensing Authority the power to target the levy, fewer businesses would contribute."

A Consultation is still due to take place on this issue and even more so in the case of the late-night levy than in the case of Early Morning Alcohol Restriction Orders. It was also added by Lord De Mauley that "we wish to use the levy to promote participation in best practice schemes, and we will explore that further in consultation".

As such, neither amendment was made.

Youth rehabilitation orders: alcohol monitoring requirement

Amendments to allow Magistrates an additional sentencing arm, that of an alcohol monitoring requirement, so that offenders whose crime had been alcohol-fuelled could be referred to a compulsory alcohol sobriety scheme was rejected.

Considerations of the amendments will now be made before the Bill finally receives Royal Assent.  In the meantime, we await further information on the Guidance and Consultation documents already referred to.

Jonathan Hyldon is a solicitor at law firm John Gaunt & Partners.  He can be contacted on 0114 266 8664 or by email.