Introduction
CPL Training is the largest provider of training leading to the National Certificate for Personal Licence Holders (NCPLH), and Scottish Certificate for Personal Licence Holders (SCPLH) qualifications in the UK. Approximately 15,000 learners a year sit this training with us. In addition we are a major provider of personal and premises licence application services to individuals and to corporate customers.
CPL Training’s customer base spans corporate customers right across the spectrum, from Asda and Tesco in the off-trade to Marston’s, Admiral Taverns, Inventive Leisure and Living Ventures in the on-trade, and many thousands of individual pub tenants and their staff working in SME licensed premises across the UK (see our website www.cpltraining.co.uk). However, the opinions contained herein are CPL Training’s opinions.
We consider that we are well placed to judge and comment on the impact of the government’s reform proposals on the licensed retail sector and on the wider community.
Consultation Question 1: What do you think the impact would be of making relevant licensing authorities responsible authorities?
Consultation Question 2: What impact do you think that reducing the burden of proof on licensing authorities will have?
CPL’s response:
In response to Consultation question 1: Licensing authorities play a quasi-judicial role when considering representations to contested applications for new premises licences, applications for major variations of existing licences and at premise licence reviews. Applicants, and those whose licences are subject to review rely upon the fact that the licensing authority is impartial, and will make reasoned judgements based upon their local knowledge and the evidence provided by both sides in a contested application or review.
The impartiality of the body responsible at local level for licensing precedes the implementation of the Licensing Act 2003; licensing justices operating under the Licensing Act 1964, and all previous licensing regimes from the 18th century onwards, have always been impartial, and that impartiality was a major reason why all parties to the licensing process had respect for, and confidence in the licensing system.
One major consequence of enabling licensing authorities to be judge and jury in respect of their own representations is that impartiality goes, and licence holders will lose confidence in the system.
In response to Consultation Question 2: Reducing the ‘burden of proof’, the requirement to prove that conditions placed on a licence are ‘necessary’ to promote the licensing objectives, and replacing it with some vague notion of what is ‘appropriate’, further dilutes due process, fairness and objectivity. Licensees lose confidence in a licensing system which deliberately promotes bias over impartiality and subjectivity over objectivity.
Consultation Question 3: Do you have any suggestions about how the licence application process could be amended to ensure that applicants consider the impact of their licence application on the local area?
Consultation Question 4: What would be the effect of requiring licensing authorities to accept all representations, notices and recommendations from the police unless there is clear evidence that these are not relevant?
CPL’s response:
In response to Consultation Question 3: The short answer is no. Licence applicants are already required, in their operating schedules, to address how they intend to operate their premises in such a way as to promote the four licensing objectives.
In response to Consultation Question 4: The proposal that licensing authorities ‘must accept all representations, notices and recommendations from the police unless there is clear evidence that these are not relevant’ effectively makes the licensing authority a creature of the police; merely a rubber stamp. Formally the local authority will constitute the licensing authority, but for all practical purposes it’s the police. Combined with the proposal to limit rights of appeal, this proposal effectively gives a police area commander the right to determine commercial life or death for any premises whose licence is being reviewed. As for ‘clear evidence that these are not relevant’: Relevant to what - the promotion of the licensing objectives? Local concerns? Operation of the premises?
The rationale for taking licensing away from magistrates and giving it to local councils was to increase democratic accountability. How is democratic accountability increased when democratically elected councillors will be required to accept police recommendations, even if they don’t agree with them?
Consultation Question 5: How can licensing authorities encourage greater community and local resident involvement?
Consultation Question 6: What would be the effect of removing the requirement for interested parties to show vicinity when making relevant representations?
CPL’s response:
In response to Consultation Question 5: The question presumes that it is necessary to encourage greater community or resident involvement. Residents, local businesses and bodies representing them, have ample opportunity to make relevant representations at the moment. Unlike magistrates, local councillors hold surgeries at which they are accessible to the views and influence of local residents and businesses. Councillors are able not only to take up such issues with local people, but to raise awareness and concerns on their own initiative about licensed premises and applications.
The concern we have about ‘encouraging greater community and local resident involvement’ is that this is a thinly disguised way of increasing local objections to new licence applications and grants. Westminster Council already pays for a solicitor to represent any local resident who wishes to make representations against a licence application. Would they, or other councils, be prepared to pay for a solicitor to represent residents who want to make representations in support of an application – in the name of ‘encouraging greater community involvement’? It is often forgotten that representations can be made either way. Clearly the intention of Westminster Council is to galvanise local objections, not support. This sort of practice, if it becomes more widespread, can only confirm licence holders concerns that the licensing authority is biased not impartial, and that ‘the system’ is deliberately loaded against them.
In response to Consultation Question 6: The main consequence of removing the requirement to ‘show vicinity’, when making relevant representations, would be to open the door to vexatious representations from cause-oriented activists with an ideological objection to alcohol. If the requirement to ‘show vicinity’ is removed it will create a free-for-all in which people remote from the consequences of a licensed premises opening would nevertheless be able to object.
Consultation Question 7: Are there any unintended consequences of designating health bodies as a responsible authority?
Consultation Question 8: What are the implications in including the prevention of health harm as a licensing objective?
CPL’s response:
In response to Consultation Question 7: We sincerely hope not. The intended consequences of designating health authorities as responsible authorities are bad enough. Just take time out to consider: if it is so obviously logical to encourage health authorities to make representations about the opening of a new pub or supermarket, because it may have implications for scarce health resources, by the same logic should we also encourage them to make representations about the opening of a new plant for the manufacture of knives, or cars or anything else that may be misused by consumers to the detriment of public health? It is only in relation to alcohol that we have this mindset.
Consultation Question 8: What are the implications in including the prevention of health harm as a licensing objective?
Consultation Question 9: What would be the effect of making community groups interested parties under the Licensing Act, and which groups should be included?
CPL’s response:
In response to Consultation Question 8: This is already a licensing objective in Scotland and is the cause of much mischief. Already Glasgow licensing authority have opposed applications from supermarkets to increase the size of their alcohol sales area - on the entirely spurious basis that it would increase availability of alcohol and therefore be detrimental to public health. They were forced to withdraw their refusal to grant these variations at the door of the court. Their latest proposal is to have a ‘winding down hour’ in pubs and bars, whereby only soft drinks could be sold during the final hour of a licensing session. Including prevention of health harm opens the door to this sort of risible nonsense. Medical Temperance has come together with Moral Temperance, in the form of the Alcohol Health Alliance (AHA) and this proposal seems designed to appease an increasingly vocal ‘health lobby’ bent on a strategy of medicalising morals.
In response to Consultation Question 9: Combined with removing the requirement to ‘show vicinity’ this opens the door to vexatious representations not only from cause-oriented individual activists, but from organisations representing them. The International Order of Good Templars, which trades as IOGT International (which is funded by the activities of the Institute for Alcohol Studies) already has a website called ‘Open All Hours? Licensing Aid’ which brings together a network of civic societies and community organisations interested in opposing licence applications. This proposal can only encourage vocal minorities with little real public support to run interference.
Consultation Question 10: What would be the effect of making the default position for the magistrates’ court to remit the appeal back to the licensing authority to hear?
Consultation Question 11: What would be the effect of amending the legislation so that the decision of the licensing authority applies as soon as the premises licence holder receives the determination?
CPL’s response:
In response to Consultation Question 10: The effect of this provision, when combined with other provisions, would be to remove any meaningful right of appeal by applicants, or those having their licences reviewed. Consider the following scenario: at review, the local police recommend a reduction in licensing hours, with the premises closing earlier - from 12 midnight to 10 p.m. for every day of the week. The licensing authority, despite the reservations of some councillors, is required to accept this. The premises licence holder appeals this determination to the magistrates’ court. The court remits the appeal back to the licensing authority, where, presumably, a different set of councillors will hear it. At appeal the police maintain their view that the premises must close at 10 p.m., the committee is, once again, required to accept this recommendation. Everyone has run round in a circle to get back to the same place. This doesn’t keep the determination of licensing decisions with the licensing authority; it keeps it with the police.
In response to Consultation Question 11: Making the original determination apply immediately further undermines the right to due process and an effective right of appeal. In the example given above, the reduction in hours will probably close the business. If the premises licence holder seeks redress for what he or she regards as an unjust determination by appealing to magistrates, that appeal is sent back to the committee and even if the appeal is allowed it is too late, the premises has closed. You’ve been sentenced to the commercial equivalent of the death penalty; you have a right of appeal, but only after the hanging.
The implications of the provisions in Questions 10 and 11 go far beyond an attack on the rights of licensees. The denial of due process and an effective right of appeal is an attack on the principle of liberty itself. It is also, arguably, contrary to Article 6 ECHR rights to a fair trial. When such a considerable power is placed in the hands of a local police chief, but wielded in practice by a local licensing sergeant, with no meaningful right of appeal for the applicant/reviewee, then it will be experienced and felt by applicants/reviewees in a very personal way. The comment made by a number of licence holders to whom we have spoken is that such a proposal makes them feel as if they no longer live in a free country. Democratic politicians should think long and hard before introducing a measure that is so manifestly unjust that it is difficult to see how it could command public support in the long term.
Consultation Question 12: What is the likely impact of extending the flexibility of Early Morning Restriction Orders to reflect the needs of local areas?
Consultation Question 13: Do you have any concerns about repealing Alcohol Disorder Zones?
CPL’s response:
In response to Consultation Question 12: Contrary to the assertion made in 6.01 of the consultation document, local residents do have a say in how late licensed premises in their vicinity stay open. They can make relevant representations when a new licence is applied for or in the event that a variation to hours is applied for. This also applies to local businesses and to the organisations that represent them. Section 6.01 repeats the tired, false mantra about the ‘culture of 24 hour licensing’. Everyone knows that we don’t have a 24 hour drinking culture – apart from the Daily Mail and now, apparently, the government.
We can see no justification for extending the power of restricting licensing hours earlier than 3 a.m. The timescale 3 a.m. to 6 a.m. was chosen precisely because there was some evidence that there had been displacement of alcohol-related disorder from earlier to between 3 a.m. and 6 a.m.
Changing the evidential requirements is entirely consistent with the whole thrust of these reform proposals to deny due process and give arbitrary power to authority.
In response to Consultation Question 13: No reservations whatsoever.
Consultation Question 14: What are the consequences of removing the evidential requirements for cumulative impact policies?
CPL’s response:
In response to Consultation question 14: The main consequence is that there will be more areas subject to them, but without evidential justification. This is simply a device to restrict the number of premises getting licences, and is entirely consistent with the theme of these reform proposals which is to restrict and reduce the size of the licensed retail sector on the basis of the false belief that availability determines consumption – a long-held temperance view.
This proposal represents a return to ‘proof of need’ under the Licensing Act 1964.
Consultation Question 15: Do you agree that the late night levy should be limited to recovery of these additional costs (associated with policing, cleaning etc of ‘late night’ areas)? Do you think that the local authority should be given some discretion on how much they can charge under the levy?
Consultation Question 16: Do you think it would be advantageous to offer such reductions for the late night levy (to premises that join pubwatch, BBN etc)?
Consultation Question 17: Do you agree that the additional costs of these services should be funded by a late night levy?
CPL’s response:
In response to Consultation question 15: A late night levy will be perceived by licence holders as an act of collective punishment that doesn’t distinguish between well-run and badly-run premises. If it is to be introduced then it must be on a cost-redemption basis only.
In response to Consultation Question 16: How would you achieve cost-redemption if you did offer such reductions? By charging even more to those who refused to be press-ganged into joining ‘approved’ organisations? Declining to join an organisation shouldn’t be penalised in this way, neither does such a refusal indicate a badly-run premises.
In response to Consultation question 17: No we don’t. Licensed premises already pay the same taxes as any other business plus alcohol duty. A better proposal would be to hypothecate a percentage of alcohol duty revenue for this purpose.
Consultation Question 18: do you believe that giving more autonomy to local authorities regarding closing times would be advantageous to cutting alcohol-related crime?
CPL’s response:
In response to Consultation question 18: This fundamentally turns the Licensing Act 2003 on its head. One of the few advantages of the LA2003 is that it enables applicants to determine their trading hours – subject to the consideration of representations from Responsible Authorities or Interested Parties. Local authorities determining licensing hours, or engaging in a process of zoning, takes away this fundamental right and arbitrarily creates new commercial winners and losers without reference to the market. Such a policy would inevitably end up being dictated by the police, which, like most of these proposals, seems to be the whole point.
Consultation Questions 19 and 20, relating to TENs
CPL’s response
There has been little or no controversy over the operation of TENs. These proposals seem to have no justification other than the general belief that the problems of our drinking culture can only be addressed by reducing availability of alcohol in any and every way possible. Availability does not determine levels of alcohol consumption; it’s the other way round.
Consultation Question 21: Do you think 168 hours (7 days) is a suitable minimum for the period of voluntary closure that can be flexibly applied by police for persistent underage selling?
Consultation question 22: What do you think would be an appropriate upper limit for the period of voluntary closure that can flexibly be applied by police for persistent underage selling?
Consultation question 23: What do you think the impact will be of making licence reviews automatic for those found to be persistently selling to children?
CPL’s response:
Consultation Questions 21, 22 and 23: Contrary to the assertions made in 8.01 the NHS Health and Information Centre statistics show that in England alcohol consumption amongst 11-15 year olds is down. Given that ‘persistent selling to children’ is now defined at a ridiculously low level – 2 failed test purchases in 3 months – the draconian nature of these new proposals is apparent.
The consequence of automatic licence reviews will be more licences lost because of an obsession with offences that are almost always only detected by trading standards, or police on fishing expeditions.
Consultation Question 24: Expert views on (a) Simple and effective ways to define the ‘cost’ of alcohol. (b) Effective ways to enforce a ban on below cost selling and their costs. (c) The feasibility of using the Mandatory Code of Practice to set a licence condition that no sale can be below cost, without defining cost.
CPL’s response:
(a) A simple definition of cost would be the price the retailer pays the supplier for each alcohol drinks product, plus VAT and alcohol duty.
(b) In order to enforce the below cost selling ban local trading standards would need a power to access a retailer’s invoices and to be able to compare invoiced price to retail price. It would be impractical to do this for every alcohol product sold, so it would have to be done on a sampling basis. Trading standards might, for example, visit a retailer, select a product that was currently being sold cheaply, and then require the retailer to produce an audit trail in respect of that product in order to prove that it was not sold for less than cost plus VAT and alcohol duty (as defined above).
(c) To create a licensing offence of selling below cost without defining cost is self-evidently absurd. How would you ever prove the offence?
CPL does not support the introduction of minimum pricing. A ban on below-cost selling is, in our view, the lesser of two evils. It is questionable whether the effort that would need to be put into the policing of such a ban would be justified by any conceivable benefit in terms of reducing alcohol-related harms.
Consultation Question 25: Would you be in favour of increasing licence fees based on full cost recovery, and what impact would this have?
Consultation Question 26: Are you in favour of automatically revoking the premises licence if the annual fees have not been paid?
CPL’s response:
In response to Consultation Question 25: CPL supports the principle of a self-financing licensing system. However, to introduce a policy of ‘full cost recovery’ and a late night levy at the same time, and in the context of government proposals to radically reform licensing, with considerable cost implications, has obvious difficulties. The actual cost of enforcement will vary from one licensing authority to another, depending, at least in part, on how ‘activist’ a licensing authority decides to be.
Given that the whole thrust of this reform package seems intended to enable, or to make it easier, for licensing authorities themselves, and a range of other individuals and groups without limit to make representations – in effect to object to licences – it seems perverse to expect premise licence holders to pay for their own persecution.
We would prefer to see licence fees set centrally for all licensing authorities and would oppose any attempt to allow these fees to be set locally.
In response to Consultation Question 26: Revoking a licence is a serious matter. However, licensing authorities spend a lot of time chasing recalcitrant non-payers. We would support this measure, provided there was a ‘slippage clause’ perhaps expressed in the following way: ‘a premises licence will be automatically revoked if, without reasonable excuse, payment of the annual fee is not received by the due date.’ And then a list of what would constitute ‘reasonable excuse’ – illness, death of licence holder etc.
Consultation Question 27: Have the first set of mandatory conditions that came into force in April 2010 had a positive impact on preventing alcohol related crime?
Consultation question 28: Would you support the repeal of any or all of the mandatory conditions?
CPL’s response:
In response to Consultation Question 27: We are not aware of any evidence that these conditions have had a positive impact on preventing alcohol related crime. Most of these provisions were already regarded in the trade as good practice and common practice, and insofar as a minority of operators offended against such practices our view is that this is best dealt with at local level - by imposing conditions at licence reviews on premises where there is evidence that irresponsible promotions etc were actually causing detriment to the licensing objectives.
In response to Consultation Question 28: These provisions should be repealed with the exception of a mandatory age-verification policy which is consistent with the strict view the previous administration and this government takes in relation to underage sales.
Consultation Question 29: Would you support measures to de-regulate the Licensing Act, and what sections of the Act in your view could be removed or simplified?
CPL’s response:
A good start would be to decide not to introduce most of the measures contained in the government’s reform package. Our view is that the Licensing Act 2003 works well and that only two major mistakes were made when it was originally framed. Those mistakes consisted of:
- Not having a presumption against 24 hour opening. The only reason we regard this as a mistake is that it opened the door to a neo-temperance campaign, in parliament and in sections of the media, which enabled the Act’s opponents to label it the “24 hour drinking Act”. The one thing that the Licensing (Scotland) Act 2005 got right was a presumption against 24 hour opening, and thus media distortion of the whole reform was avoided.
- Taking licensing away from magistrates and giving it to local councils was a mistake. The result was that a huge amount of experience of dealing with licensing issues was thrown away; licensing became much more controversial as a result, because it became a local political football.
CPL would support licensing being repatriated to the magistrates’ court, a move that would be entirely consistent with licensing being transferred from DCMS to the Home Office.
Conclusion
It appears to us that the Coalition Government’s reform proposals represent a wholesale acceptance of the neo-temperance health lobby’s arguments, proposals and world view. The argument that a ‘whole population’ approach to alcohol misuse, rather than a targeted approach, is the way to tackle the perceived problems of our alcohol culture reflects the views of eminent health lobbyists such as Professor Sir Ian Gilmour, the BMA and the Alcohol Health Alliance. These views are themselves based upon, and reflective of, American prohibitionist ideology. It is an open question whether that is self-consciously or unconsciously so.
The neo-temperance health lobby believes:
- The substance of alcohol is, in and of itself, the cause of all drinking problems
- The availability of alcohol causes people to drink
- That ‘alcohol-related problems’ equates to ‘problems caused by alcohol’
- The ‘problem’ is the amount of alcohol consumed per head of population (rather than the speed of its consumption, the environment in which it is consumed, the linking of consumption to other risk-taking behaviours, problem drinking groups)
These beliefs lead neo-temperance campaigners to call for such measures as:
- Increased alcohol taxes
- Minimum pricing (same thing)
- Limiting or reducing the number of alcohol sales outlets
- Limiting the alcohol content of certain drinks
- Prohibiting or censoring alcohol advertising
- Strictly controlling alcohol advertising and marketing
- Limiting the hours of availability
- Increasing server liability for problems that occur after alcohol is consumed
- Lobbying for any reform that makes alcohol less available or less affordable
The Coalition Government’s reform proposals
The ‘whole population’ approach is implicit to the government’s reform proposals and the end game is clear: put power over licensing into the hands of the police; enable as many people as possible to object to licence applications; remove the right of appeal; make licensing authorities a creature of the police; reduce the number of outlets; reduce hours of opening. Reduce affordability by a variety of measures including tax and duty increases.
The Coalition Government has largely accepted the neo-temperance view described above.
It seems to us that these reform proposals are designed to give the government a ‘quick win’. They are not designed to solve real problems, but to appease those reactionary forces that stand behind the lurid headlines of newspapers and tabloid television, that build their audiences by appealing to a false constituency of shock and horror about ‘booze Britain’. The government appears determined to see the whole of the licensed retail sector through a tabloid TV lens of the city centre night-time economy, but its proposals will affect every part of the sector.
The consultation exercise
The consultation exercise appears to many to be a sham. The government has already decided what it is going to do. The Coalition Government is nevertheless abrogating its own consultation criteria, Criterion 2 states: ‘Duration of consultation exercises – consultations should normally last 12 weeks with consideration given to longer timescales where feasible and sensible.’ Why has the government decided to run this consultation for only 6 weeks? These reform proposals are not mere tinkering; not a ‘rebalancing of the Licensing Act’, but a radical and fundamental change to licensing that has major implications. It is shameful to put this out to consultation when parliament is in recess and to bulldoze it through in just 6 weeks. This merits a full and thorough consultation and consideration should be given to extending the consultation period beyond 6, and indeed beyond 12 weeks. Instead of trying to rush this through by incorporating most of the changes into a Bill that comes before parliament in the autumn, the government should consult properly and consider bringing its reform proposals forward in a separate Licensing Reform Bill.
With a few minor exceptions this package of reforms is a baleful attack on the licensed retail sector that is calculated to appease the bigotry of a resurgent temperance movement in, and outside of parliament. Curiously, for a coalition government of Conservatives and Liberal Democrats, the reforms are both anti-business and illiberal. CPL urges the government to consult more widely and reconsider this lamentable package of measures before it inflicts even more harm on a vibrant, employment creating sector that has been unjustifiably pilloried for a variety of intractable social ills that are outside of its control.
Paul Chase, Director and Head of UK Compliance, CPL Training Limited
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