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WHAT WILL THE GOVERNMENT'S 'RED TAPE CHALLENGE' MEAN FOR LICENSEES?

In a bid to reduce unnecessary regulation, the Government has launched the Red Tape Challenge; a consultation website that allows the public to express their opinion on current regulatory law and asks what improvements they think should be made.  The website covers a wide range of regulations; from pensions and employment, to dangerous goods and the environment. Once the consultation closes the Government will have three months to establish which regulations they will keep and which they will amend or scrap altogether.  

The challenge is currently consulting on food, drink and hospitality (deadline for responses is Thursday 2nd June), and licensing will be a focus of this consultation.  In the below, Gerald Gouriet QC, Juan Lopez and Jeremy Phillips, three of FTB's leading licensing team, give their opinions on the regulations that are most likely to come under scrutiny and to explain the implications of such upon licensees;

Licensing Act 2003 - s15, s37-41 incl, 46 (Designated Premises Supervisors)

We believe that (as was originally intended) a dual licence system of Premises and Personal licences (to replace the original single ‘Justices' licence') can easily be devised which would both simplify matters and considerably reduce costs - The very name is redolent of an overly bureaucratic and regulatory approach. The creation of a DPS in addition to the Premises Licence holder and (one or more) Personal Licence holders (as regards sales of alcohol - which is where the major issues arise in relation to this Act) was and is, in our view, over-regulation. It results in an unnecessary degree of complication, not to say confusion on the part of both the enforcing authorities and licensees. It also generates a significant number of licence variations seeking to change the name of the DPS on the licence.

Licensing Act 2003 - s18(2) (Conditions)

The provisions concerning conditions are overly vague. There could be a positive obligation not to impose, or retain, conditions upon a licence which duplicate other legislation (as confirmed in the Bristol Justices case). Many licences have dozens (some a hundred or more) of conditions. The mandatory conditions recently should be reviewed against these criteria. Are they really necessary (and was their imposition actually supported by cogent evidence? - Not only does this represent chronic over-regulation, but it also significantly decreases the likelihood of effective enforcement because staff cannot be aware of the multiple effects of numerous (and often irrelevant & ill-drafted) conditions.

Licensing Act 2003 - s27 (Death, incapacity, insolvency Etc.)

They frequently create needless wasted time and expense, for no purpose (as they are covered to the extent necessary by other regimes - e.g. Insolvency Act 1986) and should be repealed - Many aspects of the ‘new regime' (i.e. Licensing Act 2003) represent a distinct improvement upon the ancién regime: dual licences, abolition of rigid trading hours, ‘light touch' upon grant & flexibility in enforcement etc.. The unnecessarily strict and inflexible provisions which apply in the event of death, incapacity, insolvency etc hold no such benefits.

Licensing Act 2003 - s51-53C (Reviews)

s53C should be amended so as to make it clear that there is no necessity to hold a further review (as normally occurs following the summary review) in the (admittedly rare, but occurring nonetheless) case where the summary review has followed an ordinary review which is subject to appeal, often some months away. In the absence of such an amendment one can (and do) find that one faces a completely unnecessary 2nd ordinary review hearing when an appeal against an earlier one has already been listed before magistrates - It is not uncommon for parties to a review to arrive at an agreement concerning its outcome either before the initial sub-committee hearing, or prior to the full trial upon appeal. It would be helpful if the Act were amended so as to recognise such agreements (so avoiding the possibility - not sought by either party - that the licensing authority takes the matter into its own hands without any evidential support).

 Would simplify process and enable both the operator and the responsible authority to achieve an agreed outcome without a further unnecessary and costly hearing, which might (and occasionally does) lead to an unintended and unsought consequence (which in turn is likely to lead to an unnecessary (and, again costly, appeal).

Licensing Act 2003 - s2(2), 14(b), 60 - 97 incl (Clubs)

These provisions very largely duplicate those relating to premises licences. Nowadays most bars in members clubs operate along commercial lines not unlike their public counterparts. These 40 sections could be repealed and replaced with a new s19B containing a limited number of mandatory conditions where premises supply alcohol to members. Other consequential amendments would need to be made to the Act to implement this fundamental change and simplification - Considerable simplification of the Act and 20% reduction in its measures.

Licensing Act 2003 - s98-110 (TENs)

Repeal and replace with equivalent of the Occasional Licence under the 1964 Act - Current regime for TENs unduly complicated. Also arbitrary in it's fixing of max number per year.  Occasional Licenses worked perfectly. Application to magistrates, who sat every day, knew the area, the licensees, and usually the proposed event.

Licensing Act 2003 - s147A - 47B (Persistently selling alcohol to children)

Repeal and extend the range of punishments for selling to children under s146 - These provisions are draconian (triggered by only 2 sales) and give insufficient flexibility to deal with the circumstances of sale appropriately.  The sale of alcohol to children is already an offence. The range of punishments can be extended so as to provide the opportunity to deal with bad cases appropriately.

Licensing Act 2003 - s148 (sale of liqueur confectionary to children under 16)

Repeal - As good an example of over-regulation as you could hope to find. This section trivialises (and makes a laughing stock out of) the serious problems re under-age sales.

Licensing Act 2003 - s152 (Sending a child to obtain alcohol)

Repeal - Is this micro-regulation really necessary? It is an offence to sell to an under-age person.

Licensing Act 2003 - s153-168

No comment - See comments under s 147A.

Licensing Act 2003 - s169A (closure order for persistently selling alcohol to children)

Repeal - There are ample powers for a review in a serious case; in which the licence may be suspended or revoked. This is unnecessary and over-complicated regulation.

Licensing Act 2003  - s169B

Repeal - This is over-complicated and unnecessary micro-regulation at its worst.  I fail to see how any normal member of the public will begin to understand what this section means.

Licensing Act 2003 - s177 (Dancing and live music in small premises)

Repeal and re-draft - Over-complicated.  The ‘2 musicians' exemption under the 1964 Act seemed to work perfectly well.

Licensing Act 2003 - s189 (Vessels and moveable structures)

Repeal and re-draft - Why shouldn't the existing definition of premises (s. 193) namely  "any place and includes a vehicle, vessel or moveable structure" be amended so as to include a moving structure? This recommendation  might  be thought an easier way of licensing moveable/moving structures. The various ancillary considerations (including duration of licence) could be dealt with by conditions.

Licensing Act 2003 - s191 (definition of ‘alcohol')

No action recommended  - note that s191 (1) (i) excludes from the definition of ‘alcohol' alcohol contained in liqueur confectionary.   This fortifies the nonsense of section 148.

Licensing Act 2003 - s192 (Meaning of ‘sale by retail')

See above - The suggested abolition of special provisions relating to clubs would necessitate the amendment of s192 (2)(b)

Licensing Act 2003 - s197 (power to make regulations etc.)

Repeal - The root of the whole over-regulation problem.  Any recommended change, however, is in reality a recommendation to reconsider the entire structure of the licensing regime under the 2003 Act.

Licensing Act 2003 - Sch 1, para 1(1)(b) and 3 (The provision of regulated entertainment)

Review extent evidence demonstrates that it is actually necessary to regulate provision of entertainment facilities in addition to the entertainment itself - Removal of illogical provisions

Licensing Act 2003 - Para 11

Review extent to which Morris Dancing (supported during the passage of the Bill by certain elements of the present Coalition) actually merit special attention rather than, say, Clog Dancing - Improve practical effect of system

Licensing Act 2003 - Sch 4 (Personal licences)

Review designated offences under Schedule 4 to remove anomalies (further to Police Reform and Social Responsibility Bill). Devise improved system for ensuring that courts convicting individuals of these offences are made aware if they are holders of Personal licences (rarely occurs at present - onus on the licencee (s.128)) - ‘Joined up thinking'

Licensing Act 2003 - Sch 5 (Appeals)

Review designation of respondents to various appeals - In particular, specify entitlement of those bringing applications for the review of Premises licences (e.g. residents, EHOs, police etc..), to become parties to any appeal brought against a decision of the licensing authority, so formalising the uncertain state of the law following R. (on the application of Chief Constable of Nottinghamshire) v Nottingham Magistrates' Court [2009] EWHC 3182 (Admin) - Empowering local communities and enforcement authorities, whilst reducing the costs to all parties arising from applications by those parties to be joined to those proceedings.

Licensing Act 2003 - Part 2 (Clubs)

Repeal - See above in relation to the needless duplication of legislation in relation to clubs.

The Food Hygiene (England) Regulations 2006 - No. 14

No comment - There is no substantial overlay between these Regulations and other secondary food legislation which is fairly well compartmentalised, hence no obviously redundant provisions.

Hotel Proprietors Act 1956 - c. 62

Repeal Act (ss.1-3 & Sch.1) - Claims for the loss of or damage to the property of a guest of a hotel (i.e. a person deemed to have ‘engaged sleeping accommodation') is more effectively covered under a multiplicity of torts, which do not incorporate the arbitrary, dated and unjustifiably modest recovery capping of £50 per article of property lost or damaged and £100 per guest.  Similarly, the power of imposing a lien on property duplicates unnecessarily the civil law jurisdiction.  The (bizarre) exclusion of "vehicles" and "animals" from the scope of an "article" in respect of which liability may be established requires the claimant to resort to a tortuous claim in any event.    

Violent Crime Reduction Act 2006 - s1-14 (Drinking banning orders)

Repeal - These provisions are good examples of over-complicated micro-regulation. The existing offences of selling to drunk persons, being drunk and disorderly (as well as the miscellany of criminal offences committed by persons who are drunk) are more than adequate to deal with the perceived problem.

See, however, comments on s 12-13.

Violent Crime Reduction Act 2006 - s12-13 (Approved courses)

Repeal - Insofar as these courses are genuinely thought to be of some use, they could apapt sentencing options in relation to the various offences committed by drunk persons.

The Licensing Act 2003 (Permitted Temporary Activities) (Notices) Regulations 2005 - The entirety

Repeal - there is a wholly unnecessary complication in the requirements as to;

  • the number of times (50) that a person may give a temporary event notice in a year.
  • The number of times (12) a temporary event notice may be given in respect of particular premises.
  • The length (96 hours) which a TEN may last
  • The maximum aggregate duration (15 days per calendar year) covered by TENs at any particular premises.
  • The maximum of 499 persons who may attend.

Much of the above seems arbitrary. The issue should be whether the licensing objectives are promoted: not that TENs last for more than 96 hours

The Licensing Act 2003 (Fees) Regulations 2005 - The Entirety

A newly drafted fee-structure is required -

  • These Regulations are so complicated and over-prescriptive; it is difficult to believe that they are not a satirical parody of bad legislation. I thought that I was reading lines out of "Yes Minister".
  • If the distinction between Club Premises Certificates and Premises licences goes (as it should) then there will not be a separate fee structure.
  • Ditto TENs
  • I have no quarrel with the ‘educational institution' exemptions.

The Licensing Act 2003 (Premises licences and club premises certificates) Regulations 2005 - DPS

Repeal reg 13, 24(1) and Sch 5 - See comments in relation to LA 2003 - Simplification of legislation

The Licensing Act 2003 (Premises licences and club premises certificates) Regulations 2005 - Clubs

Repeal reg 5 and Part 3 (regs 17-20) - See comments in relation to LA 2003 - Simplification of legislation

The Licensing Act 2003 (Personal licences) Regulations 2005 - No. 41

No comment

The Licensing Act 2003 (Hearings) Regulations 2005 - No. 44

Repeal in part;

  • s.2: The definition of a "party" to the hearing should not be limited in the way defined - it is unfairly narrow insofar as a "party" is limited to a person to whom the notice of hearing is to be given - what of particular third parties who are nevertheless "interested"?
  •  s.8: There is no obvious point (or sanction applying to any breach) of the duty of a party giving formal notice of attendance?
  • s.10(a) and (b): Self-contradicting and pointless.
  • s.18: repeal of (harmful, and unjust) requirement to obtain consent of all attending parties in order to rely on documentary or other information produced to Committee after commencement of the hearing proper.  Harmful and unfair insofar as an objection is invariably made by an ‘opposing' party such that the decision on admissibility is removed from the licensing authority and the scope of the ‘discussion' to be held improperly fettered.  Pointless insofar as production at any moment (a minute) before the commencement of a hearing technically circumvents the prohibition (where there is objection) in any event.  Any value in the prohibition is inevitably undermined.
  • s.21: Pointless to require a notice of proceeding and unnecessarily bureaucratic
  • s.24: There should be no stipulated equality of timing for all party representations.  This should be left to the Licensing Authority, on a case-by-case basis.

The Licensing Act 2003 (Summary Review of Premises Licences) Regulations 2007 - No. 2502

See above comments relating to s.53C LA 2003