On 5th June, the Institute of Licensing held a workshop in Nottingham presented by Barrister Sarah Clover. Sarah is one of the leading barristers in the country in Licensing, acting for a wide range of clients. She has been involved in some of the most important cases in the last decade, and is a pioneer in this modern licensing regime. Sarah was the Specialist Adviser to the House of Lords Select Committee on the Licensing Act 2003 and so was able to give some insight into the recently published report and some of the considerations behind it.
Planning and Licensing
Possibly the most controversial aspect of the report is the suggested linking of the planning and licensing functions of local government. Historically the two processes have been completely independent. The thinking behind this is due to the fact that the two elements involve processes behind the uses of land and buildings. For example, a restaurant requires the correct licence as well as the correct planning permission. An interesting analogy was used – if the tools for developing our towns and land use are visualised, planning process would be the mallet, shaping and giving structure. In comparison the licensing would be the chisel, providing more definition. Both are necessary – so we will have to watch this space as to how the two work together in the future.
Temporary Event Notices
Temporary Event Notices (TEN’s) were scrutinised by the select committee. The original thinking behind TEN’s was that they would be used mainly for events such as one-off events in the community, for example, allowing private member’s clubs to open their doors for certain occasions such as weddings. The reality of the situation is that they are often used for commercial ventures, and for extending existing licensing hours. After hearing evidence the committee recommended that the TEN’s system should largely be left as it is, however the power to object to a Notice should be extended to the Licensing Authority, as currently only the Police and Environmental Health officers can object.
The relatively low fee for TEN’s was also discussed, and whether this should be increased for commercial operators. The main problem with a two tiered system is in the definition of what is commercial and what is not. They have also to be commercially viable and it was recognised that there should be some commercial reality around the level of fees, particularly bearing in mind small events. The conclusion was that Temporary Event Notices are used for a wide range of purposes, and the impact of a particular event on local residents cannot be reliably determined by whether they fall into broad ‘community’ and ‘commercial’ categories. As such the committee did not recommend the division of the current TENs system into ‘community’ and ‘commercial’.
Personal Licence Holders
During the bill stage of the Licensing Act 2003, a national register of personal licence holders was mooted. This never materialised at the time. The recommendation from the select committee was that enforcement of the Licensing Act 2003 (particularly with regard to suspension or forfeiture of a personal licence) on conviction of a relevant offence would be facilitated by a national database of personal licence holders. This could be used by courts and licensing authorities, and linked to the Police National Database.
Better training across the board nationally was a hot topic. The 2003 Act established new licensing committees for each of the 350 local authorities. The councillors sitting on these new committees, and the staff assisting them, had no experience of the complex new law they were administering. The evidence heard by the committee showed that there was an inconsistency in approach, and that despite best efforts to apply the law properly, mistakes were being made frequently. This resulted in a haphazard decision-making process. The select committee were very thorough, even going to observe licensing committees in action. The conclusion was that many councillors have insufficient training and that all should now undertake compulsory training, more than the three hours training which appeared to be the benchmark for many authorities.
It is important to note that whilst the report is not binding on the Government, it will be carefully considered, and reasons must be given for following, or indeed not following, the recommendations within it. We will of course keep you informed of any further developments