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Wed 10th Aug 2022 - Legal Briefing

To me, to you – The House of Lords and the government by Luke Elford

There are many ways the Licensing Act 2003 could be improved, but it is unfortunate the sector is currently watching an endless and depressing game of ping pong between the House of Lords and the government, who are batting key issues the industry is facing back and forth. The House of Lords is particularly vocal about its frustrations, and its latest post-legislative scrutiny follow-up report explains how disappointed it is in the lack of progress.

Here is a quick timeline of how we got to this point:
• May 2016 – The House of Lords select committee on the Licensing Act 2003 is appointed
• April 2017 – The select committee produces its report
• November 2017 – The government responds to the select committee’s report
• January 2019 – The liaison committee (effectively the select committee’s successor) writes to the government for an update
• November 2019 – The government responds to the requested update
• April 2020 – The former chair of the select committee contacts the chair of the liaison committee to request a follow-up inquiry
• March 2022 – Three evidence sessions are held
• July 2022 – The liaison committee publishes “The Licensing Act 2003: a post-legislative scrutiny follow-up report”

In the original report from April 2017, the select committee put forward several recommendations about how licensing could be improved. The recent follow-up reports suggest there has been limited progress on the points raised, if any at all. Let’s take a look at some of those suggestions in more detail:

Stronger co-ordination and communication between the licensing and planning systems
Local authority planning and licensing committees both deal with similar issues that intertwine and crossover, yet we generally see poor communication between the two functions despite them sitting on the same council. This often means we witness planning permissions and licensing conditions clashing because of this lack of co-ordination. For example, a licence may state a venue can run until midnight, but if the planning permission for that same business only allows it to operate until 10pm, those extra hours become obsolete. 

The original select committee report concluded “co-ordination between the licensing and planning systems should begin immediately in all local authorities”, and the committee was “disappointed no practical progress has been made to address the lack of co-ordination between the licensing and planning systems”. The committee also highlights that despite these issues there has been “no initiative from government to take forward the work undertaken to explore solutions”.

Why is this the case if the answers are so simple? We believe some good old-fashioned communication at a local and national level would make a real difference. 

Adding Agent of Change to the Section 182 guidance
Agent of Change is a principle that looks to protect incumbents from issues arising out of development. A person or business introducing something new is responsible for managing the impact of that change. This means if you decide to build new residential housing next to a licensed premises then you become responsible for ensuring the people living there are not disturbed by the noise – whether this is by insulating your building or paying for the premises next door to modify their licence. 

The select committee report from 2017 requested Agent of Change to be added to the Section 182 guidance, which was last updated in April 2018. However, the suggested change was not made. The latest follow-up report doubles down on this and is still requesting an amendment to the Section 182 guidance. It also suggests that Agent of Change should be incorporated into planning reforms as part of the levelling-up and regeneration Bill. Unfortunately, it is hard to see that happening given the minimal progress on aligning the licensing and planning regimes, but you never know.

Improving councillor training
The select committee report used a quite stark tone when suggesting councillors sitting on licensing sub-committees should be trained to a nationally accepted standard before being set loose on applicants and responsible authorities. The follow-up report states “there is no clear sense that training has resulted in improvements in the licensing system” despite the very best efforts of organisations like the Local Government Association and the Institute of Licensing. 

In our experiences with licensing sub-committees up and down the country, we would agree there has not been an overwhelming improvement in the standards of decision-making. One of the main problems is councillors come and go during local elections. The excellent chair you were previously dealing with on a day-to-day basis might be gone after the next election and replaced with someone who just does not hold that same understanding of licensing. Local democracy isn’t going to change, but perhaps training could be intensified and an obtainable “councillor qualification” established. We suggest this could be something that resembles a personal licence and it could be that a councillor must acquire this qualification before they are allowed to sit on a licensing sub-committee. This is a slightly more onerous idea than the Lords has put forward. However, it is not unfair to say if we expect certain standards from licensees, are we not entitled to demand the same of local authority decision makers?

Improving accessibility in licensed venues
In 2017, the select committee found there were real hurdles for disabled people when accessing licensed premises, particularly within the night-time economy. The recommendation put forward by the select committee was premises licence applications should be required to be accompanied by a disabled access statement, just as it is in Scotland. Despite this, it does not appear the government has any desire to introduce such a measure and it would unfortunately also require some significant legislative tinkering to achieve it. 

In its follow-up, The Lords have said the “lack of progress in improving access to licensed premises [for disabled users] is unacceptable”. This lack of adjustment has led to the committee making an alternate suggestion, which is for the government to amend the Equality Act 2010 to ensure sites are always accessible for those with disabilities. From our perspective, it is difficult to understand why government would go from not amending one piece of primary legislation to deciding it should adjust another. Ensuring hospitality venues are easily accessible for all is of great importance.

Scrapping the late night levy
The late night levy allows local authorities to charge premises that operate late at night an additional fee. The money generated from these funds is used to contribute to the costs of policing a thriving late-night economy. One of the recommendations of the 2017 report was the late night levy should be scrapped. The government responded in profound disagreement with this, but the follow-up report has highlighted the suggestion again, now recommending “if there is not a demonstrable improvement of the impact and uptake of the levy… that it be abolished”. This would ensure this money must be used to measurably benefit an area rather than acting as a tax on venues.

The introduction of airside licensing
Currently, the Licensing Act doesn't extend beyond security in an airport, meaning an airside bar can operate round the clock, which makes sense considering the location. The issue is you always have the odd passenger who decides to get a little too tipsy before boarding a flight, which causes endless problems for airport staff and those "boozy Brits on tour" headlines that we see year in, year out. The introduction of airside licensing is another pitch the government has flatly refused to introduce to the Licensing Act 2003, a decision the committee was both “surprised” and “disappointed” by. The committee has recommended the government review its position on this within three years. How likely is it the government is suddenly going to do a U-turn and introduce it? 

When you sit back and look at the full picture, it is clear there has been no real progress whatsoever. Of course, we understand the backlash of covid has made things very turbulent in recent times, but seven years is a long time to wait for progress. We make no criticism of those trade and other organisations outside central government who have been trying to desperately pin down civil servants and spring them into action. However, there must come a point where all the back and forth needs to stop, decisions must be made, and tangible progress achieved. 
Luke Elford is a partner at John Gaunt & Partners

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