JEFFREY
GREEN
RUSSELL
How to Make an Early Morning Alcohol Restriction Order
by
GARETH HUGHES
Director/Barrister
(mob) 07808775835
(dd) 020 7339 7012
(email) [email protected]
1. Brief background
2. Starting the process
3. Commencing the procedures
4. Advertising the proposed order
5. Consultation
6. The hearing
7. The Decision
8. Exemptions
9. Appeal
This paper is prepared for an Institute of Licensing Seminar on the 15th October 2012
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1. Brief Background
I have specifically highlighted the word ‘alcohol’ in the title above as these orders
have more commonly become known as early morning restriction orders. The actual
title is the early morning alcohol restriction order and it is useful to emphasize that
word because the provisions are concerned with the restriction only of the sale of
alcohol between those hours set out in the revised statutory provisions. In other
words, between midnight at 06:00 hours. The provisions do not seek to curtail or
control any other form of licensable activity and are merely concerned with restriction
on the sale of alcohol. Accordingly, and by way of example, if a restriction order was
introduced in an area that curtailed hours for the sale of alcohol back to 01:00 hours
and there was a nightclub in the proposed area providing music and dancing until
04:00 hours, the latter activities would not be curtailed in the same way as the sale of
alcohol.
The statutory genesis of the provisions lies in a piece of legislation passed in the
dying days of the last Labour government, which was the Crime and Security Act
2010. In that earlier provision the hours upon which a restriction order could have
effect were those between 03:00 and 06:00. However, these statutory provisions
were never commenced before that parliament was dissolved. In passing it is a sad
fact to have to note that a provision which relates to licensing law and sought to
revise the Licensing Act 2003 ended up in a piece of legislation which sought to
make provision with regard to fingerprinting, domestic violence, gang violence, prison
security and terrorism related issues. It is a sad sign of the times that governments of
both political persuasions now seek to bundle up licensing laws into major pieces of
legislation concerning crime and violence. This, I think, can only seek to colour the
law-makers judgements about licensing matters in the future.
With the coming into office of the coalition government in May 2010, a broad
framework for the future of licensing laws in this country was agreed in the coalition
agreement, but this merely made reference to giving local licensing authorities more
powers to review licenses. It did not make reference to extending the ambit of early
morning alcohol restriction orders, but nevertheless the Police Reform and Social
Responsibility Act 2011 amended the earlier provisions in the 2010 Act to allow for
an order to cover those hours between midnight at 06:00.
At the time, Theresa May, the new Home Secretary, trumpeted these provisions as
giving further powers to local elected officials to deal with problem drinking in their
area. Yet again the provisions were incorporated into an Act which dealt primarily
with the issue of police reform and the elections to the new office of Police
Commissioner and various police authorities in England and Wales. It also dealt with
misuse of drugs and once again the sale and supply of alcohol was bolted on to
these provisions relating to crime.
Earlier in 2012, the prime minister, David Cameron, led the introduction of the ‘The
Government’s Alcohol Strategy’ and he further trumpets the policy of giving more
power to local licensing authorities to deal with opening hours of licensed premises.
We have, leading on from this, seen the provision of a further tool in the bag for local
licensing authorities to deal with problems of excessive consumption of alcohol
leading to what was perceived as significant trouble in the streets and towns up and
down the country.
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There was a further consultation exercise in the summer of 2012 and replies were
received in July.
At the very last hour we have been presented with regulations 1under section 172A
just a matter of days before the introduction of the provisions on 31st October. This,
of course, is not an unfamiliar story in the context of the history of licensing reform
over the last few years and it seems that both civil servants and politicians take great
delight in leaving us all to guess what the provisions are going to include until the
very last minute. The regulations are brief but I will make reference to them as I
proceed.
Before I get to the actual process of introducing and EMRO it is worth sparing a
thought for our late lamented and departed friend – the alcohol disorder zone. When
this creature was given life several years ago many of us speculated whether it would
possibly be the case that not a single licensing authority in the land would introduced
an ADZ. When I posited this in a meeting with the home office in the run up to the
introduction of these wonderful little things I was told that this was a nonsense and
that they expected at least 40 local authorities to adopt in England and Wales. Of
course, we all knew then and all sensible licensing officers and local elected
politicians knew then that not a single order would be introduced and indeed that was
the case. You will be pleased to know that the alcohol disorder zone finally died the
death with the introduction of these provisions. I remember my friend Pat Crawley at
Kensington and Chelsea council making the point at one meeting with the home
office that if his local authority designated an area as an alcohol disorder zone it
would tend rather to encourage young people to come to the area in the hope of
having an even better time than those outside the area.
But here we are again with the proposed new early morning alcohol restriction order,
and it is interesting to note once again, that the government’s own impact
assessment points out that there are 349 licensing authorities in England and Wales
each of which might potentially adopt one of the orders. They go on to state that
responses to the consultations did not provide an estimate of the number of licensing
authorities which would end up so doing so they go on to make a few calculations of
their own, based upon figures produced by (P Allan) arising from a survey which they
carried out. They go on to point out that ‘fewer than 5 percent’ (or 16 licensing
authorities) is consistent with response to the consultation in that very few authorities
made it clear that they were likely to impose EMROs and will form the best estimate.
They go on to say as follows
‘We consider that is extremely unlikely that anything approaching 192
authorities will impose an EMRO in any single year as there is no evidence
that it will be appropriate in so many areas (not entirely consistent with the
government view of booze Britain and images of Dante’s Inferno in every town
centre in the land) and because the strengthened powers under the Licensing
Act 2003 to, for example, impose conditions on and review individual premises
are likely to be sufficient in the great majority of licensing authorities areas. For
the upper estimate, therefore, we will assume that the ‘undecided’ will adopt
EMROs in the same proportion as those who give a firmer view making a total
of 40 authorities. For the lower range, we will assume that only half of the
1
The Licensing Act 2003 (Early Morning Alcohol Restriction Orders) Regulations 2012
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authorities who reported they were ‘likely’ to impose an EMRO in fact do so (8
authorities) with a best estimate of 16.
We estimate that 16 licensing authorities is the best estimate and that the
likely range is between 8 and 40.’
So, ladies and gentlemen, after the unmitigated disaster of the late lamented and
dearly departed alcohol disorder zone, which not a single authority adopted, we are
now told by the home office that the best estimate of adoptions of EMROs under the
Act will be a miserable 16. 16 out of 349 licensing authorities in England and Wales.
Maybe one of those 16 licensing authorities is here today and can enlighten us as to
why they are considering the introduction of an EMRO in their area, particularly with
a plethora of other voluntary schemes which work so well, and I am thinking here of
Best Bar None, pub watch schemes, Purple Flag and in particular Business
Improvement Districts, which have been so successful in those areas where they
have been implemented.
2. Starting the process
It is highly likely that the request for the implementation of an order will come in the
first instance from the chief constable or police commissioner for the particular area
concerned or from environmental health departments of local authorities concerned
in particular about anti-social behaviour and noise nuisance in the high streets. There
is an outside possibility of an initiative being commenced by the National Health
Service, who are clearly now responsible authorities under the Act, and finally from
residents perhaps following a local campaign and the gathering in of several hundred
or even thousands of signatures on a petition in support.
The submissions by, for example, the police, would need to be accompanied by
evidence and data which might tend to show that because of the operation of several
premises licenses in an area going beyond midnight there is crime and disorder on
the streets and there is, perhaps, the likelihood of greater crime and disorder
occurring in the future. It seems to me that because the end result of an EMRO will
result in the cutting back of the terminal hour for the sale of alcohol in licensed
premises there will be a significant economic and financial impact upon all of those
businesses affected in the area with the possibilities of closure and the laying off of
staff in very difficult general economic times. That, therefore, necessarily implies that
any policy to be introduced which curtails those hours must be based on something
more than a police officer’s ‘feeling’ that the late drinking hours are leading to the
troubles that they have identified. In other words, a clear link needs to be established
between the hours during which people are purchasing alcohol and the crime and
disorder which it is alleged occurs.
It is no good, it seems to me, for a senior police officer simply to present a sheet of
A4 to the licensing authority with some general figures and percentages on it and the
‘gut feeling’ of the senior police officer that the problems set out arise because of late
drinking.
I am thinking of a case decided recently in Newquay which involved a sexual
entertainment venue where the local police inspector objected to the granting of a
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licence in this respect on the basis that it was no more than his own intuition that the
existence of a lap-dancing venue would lead to serious sexual crimes perpetrated
upon the vulnerable in the town centre. He was not able to present the committee on
that occasion with a single piece of evidence that linked the operation of the lapdancing venue with any single case involving a sexual attack or molestation in the
town centre. What he had done was to take the lap-dancing venue as the centre of a
large circle and invited the committee to conclude that because there had been
sexual offences occurring within that circle and the lap-dancing club was at the
centre of it then it must be the lap-dancing venue causing those problems. This was
without a shred of evidence linking the club to those problems.
It is a fine example of the well-known Latin phrase ‘post hoc, ergo proctor hoc’. This
broadly means ‘after this, therefore because of this’. In other words, because there
was a lap dancing venue in the town centre and because there were a number of
sexually related offences occurring in the same town centre the conclusion must be
that it is the venue’s activities which are in some way contributing to the offences!!
In my submission the ‘post hoc, ergo proctor hoc’ approach to the gathering of
evidence and the making of submissions needs to be far more refined than this
particularly when so many people’s jobs and livelihoods depend upon the existence
of the premises in question.
I understand from a barrister colleague recently that some police authorities are now
asking those who are inebriated and taken into custody on any particular evening,
where they have been drinking that night, in order to establish a case against a
particular premises, and one wonders whether we are likely to see more of this in
terms of evidence gathering going forward. Question also the reliability of such
evidence gathered from people who are intoxicated at the time.
In Lambeth recently, when I was acting on behalf of residents who were in opposition
to the introduction of a cumulative impact policy in Clapham High Street, I was told by
the Cabinet member concerned during the course of the meeting that rapes had
occurred in Clapham High Street and this was therefore one of the reasons why
there would be a significant reduction in license hours in that street with no further
licenses being granted in respect of later hours. When I challenged the Cabinet
member in the few brief seconds allowed to address the Committee I was told that
this was anecdotal, and so in the end, the cumulative impact policy in that part of
Lambeth was introduced on the basis of a sheet of A4 containing rather dodgy
figures from the Police Inspector and anecdotal evidence, which nobody could
challenge.
We are going to have to demand a higher standard of evidence than this before
orders are introduced.
The initial discussions, therefore, will probably take place between senior police
officers and leading politicians within the council, who will meet on a regular basis
and the desire to have implemented an EMRO will emanate from those meetings and
result in orders being passed down from the relevant senior police inspector and
elected politicians to their officers.
If licensing officers in the licensing authority are convinced that going down this road
would be beneficial, then I would suggest that maximum publicity is given to the
proposals before official consultation in order to gage the views of both members of
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the public and those operating businesses within any proposed area. This could be
done by way of newsletters through local letterboxes and information on the website,
as well as disseminating views down through local Pub Watch and business
improvement district meetings, so that a wide cross section of feedback is taken on
board even before the proposed order is considered.
Such preliminary consultation, I am sure, will help local licensing authorities gauge a
better view of the proposals and assist in determining where any line should be
drawn relating to the outer limits or periphery of the zone and whether lines of
exclusion should be drawn around particular premises. More of which later.
3. Commencing procedures
Having taken local soundings and gathered in comments from residents and the
trade about any proposed early morning restriction order and having considered the
initiating letter or statement from the police or other authority it is then incumbent
upon the licensing authority to determine whether it considers it ‘appropriate for the
promotion of the licensing objectives’ to ‘make an order under this section.’
(Licensing Act 2003 s172A)
The effect of any order if implemented is that premises licences, club premises
certificates and temporary event notices do not have effect to the extent that they
authorise the sale of alcohol within the hours specified and during the periods set out
in that order.
One of the key tests at the outset, therefore, is the licensing authority’s determination
that it is ‘appropriate’ to make such an order in all the circumstance. Do not forget
that the old requirement of necessity, which was included in the predecessor of this
section, has now been swept away. This was on the basis that the Coalition
proposals sought to lower the evidential bar for local licensing authorities, prior to
them making a decision on any matter under the Act. The test is therefore now a very
wide one and released from the so-called shackles of the necessity test, it allows
licensing authorities greater scope to consider not only the impact on the licensing
objective but wider issues also.
During the information gathering exercise, and prior to consultation, a licensing
authority will certainly have been made aware of perhaps the police view that later
hours drinking is directly leading to an increase in crime and disorder and anti-social
behaviour in their area and there will be figures to back this up.
However, the licensing authority will also be in receipt of a large number of
submissions from individual licensed premises, whether they be nightclubs,
restaurants, bars, cinemas, community centres or private members clubs, of the
severe impact financially that such an order would have on those premises. They will
also no doubt be presented with evidence from local trade organisations which set
out the substantial economic impact that the making of an order might have on the
area in question. There is, in my view, no doubt that an order made would lead to a
diminution in economic activity in the area concerned with consequential loss of jobs
and trade with suppliers and so on.
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In my submission, whilst the licensing authority is obliged to have regard to the four
licensing objectives, it may certainly also have regard to the wide-ranging economic
issues beyond those licensing objectives on the impact of the making of an order on
that area. It must be right and proper that a responsible licensing authority with clear
interest in the economic wellbeing of its area during very hard times of recession
must be able to weigh in the balance the severe financial consequences of the
making of an order before it goes down that particular route. Such a decision in my
respectful submission could never be made in isolation and if it were then it would
bring into stark relief the law of unintended consequences!
Having decided that it is appropriate to make such an order the licensing authority
must then deal with the specifics within the proposed order which will go out to
consultation. Those specifics include the following matters:
I.
The area
II.
The days of operation
III.
The hours of operation
IV.
The period
V.
The commencement
I. The area
This is likely to be one of the most contentious elements of the whole process as
the licensing authority agonise over where to draw the lines on the map of their
area. They will clearly have regard to the police generated figures, crime hot
spots and where drink related offences primarily occur in the street and it will be
sensible, in my view, for them to produce a full colour map which is legible and
easy to understand so that both residents and licence holders are fully aware of
the boundaries of operation.
II. The days
I am sure that it will often be the case as in many local authority areas that there
are busy nights and not-so-busy nights. It may very well be the case, therefore,
that the authority determines that a proposed order relate perhaps to activities
only on Thursday, Friday and Saturday evenings and that the proposal to reduce
the hours for the sale of alcohol relate only to those days. Again, the evidence
produced in support of a proposed order should assist the decision making on this
point.
III. The hours
Again, this will be another highly contentious issue to be determined and there will
need to be further evidence to indicate to the licensing authority when the greater
problem arises which is associated with the sale of alcohol. For example, if on the
police figures there is a significant spike in instances of rowdiness and violent
behaviour at 02:00 hours then it may be that an order prohibiting the sale of
alcohol at midnight might address that issue. This would clearly be on the basis
that if there is a lot of trouble occurring at a particular hour it would have taken
some time for people to consume alcohol in the lead up to that particular hour and
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licensing authorities will be looking to therefore terminate the sale of alcohol much
earlier.
My concern here is that many licensing authorities will be presented with exactly
the kind of evidence that indicates that most of the problems in an area are
occurring in that window between 01:00 and 03:00 hours and will take the view
that the best way to deal with those issues is to utilise the maximum scope of their
powers and terminate the sales of alcohol at midnight.
With regard to many late bars and certainly nightclubs that order would be the
death knell and tantamount to a revocation of the licence.
IV. The period
This is likely to relate to perhaps seasonal activities maybe in coastal resorts,
when perhaps more trouble is encountered during the summer months and an
influx of a significant number of tourists to an area. Accordingly, in such
circumstances we might see early morning restriction orders imposed with regard
to the period during June, July and August.
V. The commencement
This is an exceedingly important provision which means that if an order is to be
adopted then local businessmen can begin their preparations for the day when it
is to commence and hours are reduced.
In the case perhaps of a large nightclub faced with a reduction of hours of say
04:00 to midnight, they may wish to decide whether the operation continues at all.
Business preparations will need to be made.
VI. The costs of making an order
Bearing in mind the government’s latest enormous debacle in properly estimating
and analysing figures on the granting of the rail franchises, it bears no great
surprise for me that the estimates given by the home office for the cost to the
licensing authority of introducing an EMRO are way off the mark.
Amazingly, the home office has the brass neck to suggest that the setting up of
an EMRO in its area will cost that licensing authority a mere £5,500 which is quite
frankly a ludicrous suggestion.
They only allow, amazingly, for 35 hours of time at £28 per hour for the licensing
authority to develop the proposed EMRO. This is including all initial meetings;
meetings with relevant representatives; discussions with councillors and
colleagues; the drafting of documentation including the proposed order and the
necessary adverts and the consultation process. In other words, if as a licensing
officer working on this on my own (which is the case in many licensing authority
areas) I should be able in theory to start the exercise at 9am on a Monday
morning and by working through, have everything in place by 8pm the following
evening, or on a standard 7 hour day the matter could be dealt with and
completed in one working week. That is assuming that the licensing officer in
question is working solely on this matter and does not have a vast array of work
already on his desk.
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The cost of a licensing hearing is set at a mere £1,860 which, given the potential
length of such hearings, could be considerably more than that. This is assuming
that there will be many representations and that, almost inevitably at such
hearings, there is attendance by the authority’s legal advisors, licensing policy
advisors, environmental health officers and licensing officers as well as committee
clerks and the councillors own attendance allowances.
4. Advertising the proposed order
The regulations which have just been produced do not make any reference to the
form of advertisement that the licensing authority should adopt.
However, it is certainly clear from the Act that the advertisement setting out the
proposed order must be accurate and specific and deal with all the matters I have set
out in the chapter above. There can be no deviation from these proposals once the
licensing authority reaches its decision certainly to extend their ambit, and so it is
advisable that those matters set out in the proposed order contain the settled view of
the licensing authority.
I would also suggest that the consultation document explains to the public the
arguments for and against the making of such an order. In my submission, it is simply
not good enough for the licensing authority to adumbrate the reasons why an order
should be made and the benefits to the area. It should also set out the disadvantages
and the economic impact that could arise from the making of such an order and
perhaps then set out why it has chosen to disregard those latter matters in favour of
proceeding. The public needs to be given a balanced view because not only do they
have an interest in the reduction in anti-social behaviour during early morning hours,
but they also have an interest in retaining a vibrant community and many of them
may actually also be employed by the business directly affected by such an order.
During the government’s own consultation paper on the EMROs, it came through
loud and clear from most licensing authorities that they did not feel that they should
extend the consultation to their whole local authority area but should confine that to
only those licence holders affected by the order. The government has listened to
those comments and has decided that this should actually be the case but, again, in
my submission, it excludes from the process some licensed premises who may lie
just outside the area and who may be detrimentally affected by a migration from that
area to their own establishments.
However, given the abolition of the vicinity test, it would be open to anyone in the
country to make their representations known to the local authority during the
consultation period and premises licence holders lying just outside the proposed area
would come in to this category.
I have included in my slide presentation the quote from the Home Office consultation
which states as follows:
“Some local authorities argue that a requirement to notify all licensed premises
holders in their area place a disproportionate burden upon them. We will
therefore remove the proposed requirement for licensing authorities to
notify all holders of club premises certificates and holders of premises
licences in the authority area. Licensing authorities will instead be required
to notify directly only those premises included in the proposed EMRO. To
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ensure that other interested parties are aware, a proposal to introduce an
EMRO should also be published on the licensing authority’s website and in
their local newspaper…”
Looking again at that last point which refers to advertisements in local newspapers, I
wonder how many licensing authorities here today and out in the country consider
this a reliable form of notification to their local populations. For as long as I can
remember, local authorities have been complaining that these notices published in
local chronicles and gazettes are read by a mere handful of people and it is very rare
that anyone responds to any application as a result of reading it in a local gazette
when the print is miniscule and it is often not clear what such notices relate to.
A recent report from the Local Government Information Unit threw considerable
doubt on to the efficacy of such notices and that there is hardly any response to such
notices but that it does involve expense to that authority which can be avoided by a
simple requirement to display on the website.
However, yet again, the new regulations require the advertisement of the draft
proposed order in the local newspapers.
I am sure that these days most people who are interested in these local issues obtain
their knowledge from notices displayed in the street and perhaps from the council’s
website. I am, as a vice chairman of my local resident’s association, one of those sad
people who actually scrutinises notices in my street on lamp posts and in windows
when I see them with a view to making comment upon the particular application.
5. The Consultation
The period for consultation has now been extended to 42 days by the new
regulations. It was originally 28 days when it was contained within the governments
earlier proposals. However, after consultation, they took on board the fact that the
application for an EMRO involves the gathering in of much information on the part of
all parties and requires a longer time in which to make submissions. Accordingly, an
extra two weeks has been granted to allow everyone to have their say.
Who can make a representation?
There is another exhaustive list of those who are able to make representations set
out in section 172B Licensing Act 2003 and you will also be familiar with who those
persons and bodies are. The net is now spread far and wide with the abolition of the
“vicinity test” and so it would be open to anybody anywhere within the country to
make representations to the authority. This might include temperance societies who
once used to be quite vociferous in some licensing hearings and residents and
businesses who are not within the proposed geographical ambit of the EMRO.
However, in all the circumstances, and as with normal applications, the
representation must be “relevant” and the test for relevance is again helpfully set out
in the provisions and on the slides.
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“Relevant Representations” are those:
•
That address the likely effect of the making of the proposed order on the
promotion of the licensing objectives;
•
That by an affected person, a responsible authority or any other person;
•
Are in a prescribed form and manner and within a prescribed period;
•
Are not withdrawn;
•
Are not vexatious and frivolous;
With regard to the first element of the definition, I think that we can safely expect that
many of the “affected persons” namely the premises licence holders and trade
organisations as well as perhaps local purple flag champions and business
improvement district boards may make representations about the considerable
economic impact that a proposal will have on the area. Now, it seems to me, that in
so far as each representation addresses the issue of the effect of the proposal on the
promotion of the licensing objectives, it can be regarded as relevant but there is
nothing to stop affected parties going on to deal with the economic financial
consequences of such an order and as I have indicated above, I believe that it is
within the power of a local licensing authority to consider those issues when arriving
at its decision.
Further question has arisen in recent times over whether late representations can be
classified as relevant representations in the context of individual premises licence
applications.
By analogy, those arguments will be used in the context of
consultations on EMROs.
There appears to be two schools of thought on whether a late representation might
be included and the weight that a licensing authority attaches to such a
representation if it is indeed submitted after the 42 day period.
Many of you will be aware of the recent case involving the Royal Albert Hall and
Westminster City Council2 which was in the context of an application to vary a
premises licence so as to include boxing and wrestling within that licence. Upon
conversion of the premises licence following the introduction of the Licensing Act
2003, those acting for the Royal Albert Hall (this was not my firm I hasten to add)
omitted the licensable activity of boxing, notwithstanding the fact that the Albert Hall
had been host to some of the great boxing matches of the last century. My firm then
picked up the matter and made the application which was done entirely in
accordance with the regulations and no representations were made during that
period apart from the environmental health team. They subsequently agreed with
proposals put forward by our client and withdrew their representation thus avoiding
the necessity for a hearing. The application was granted by way of delegated
authority from an officer.
2
R (Albert Court Residents Association) –v- Westminster City Council [2010] EW8C393 (Admin Court)
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However, the council also ran, what I can only describe as, an extra statutory
consultation procedure whereby they would notify local residents of any incoming
application and they did this by reference to their own computer package which
identified premises near to the applicant premises in question. In this particular case
the Albert Court Residents Association whose building was yards away from the
Albert Hall were not notified of the application because, to use a phrase from “Little
Britain”, the computer says “no.” The computer did however say “yes” to the
inclusion of a bus stop as an extra statutory consultee and I am not quite sure how
that bus stop received the notification from the council or who was standing in it on
the day it was delivered.
The outraged residents of Albert Court Mansions then insisted that the late
representations they had put in once they had finally been notified should be taken
into account and the council should hold a hearing. The council correctly submitted
that a hearing was not necessary given the compliance with the regulations and the
Albert Court residents subsequently judicially reviewed that decision to the High
Court and subsequently on to the Court of Appeal where they lost. The judges in the
superior court held that no extra statutory consultation could trump the consultation
laid down in the regulations and neither could any legitimate expectation of
consultation be presumed in a case where there was a clear statutory framework for
the submission of objections.
So that is a case that effectively says that late representations cannot be received.
On the other hand, the Miss Behavin case3 in Northern Ireland which was one
decided under the statutory provisions relating to what we would call sexual
entertainment venues, the House of Lords determined that it was within the discretion
of the licensing authority and presumably the committee deciding to accept a late
representation and the question of whether late representation should be permitted
should be determined on the grounds of fairness as set out in the body of public law.
The Albert Hall case was within, as I have said, the context of an individual
application but it is clear that the proposal to introduce an EMRO is of a more general
nature and wider in its implications and I would submit that the wider view end the
Miss Behavin case ought to prevail here.
Reverting back to the consultation itself, I would advise that licensing authorities
suggest to those who wish to make submissions that they do so in written form
making those submissions as detailed as possible so that they can be read by the
councillors before the hearing and to avoid repetition of those points at the hearing.
Scope should then be allowed for elaboration points at the hearing.
6. The Hearing
A rather interesting conundrum arises here in terms of whether the hearing and
determination is taken by the full council or by the appointed licensing committee.
Licensing Act 2003 section 7(1) indicates that:
3
Miss Behavin Limited –v- Belfast City Council [2007] 1WLR1420(HL)
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“All matters relating to the discharge by a licensing authority of its licensing
functions are by virtue of this subsection referred to its licensing committee
and accordingly, that committee must discharge those functions on behalf of
the authority.”
That is a clear statutory indication that authority is delegated down to a full licensing
committee.
However, section 7(2)(aa) indicates that this prior subsection does not apply to the
function of the making of an EMRO and so, accordingly, it appears that the final
decision on such an order is reserved only to the full council.
However, that statutory provision only relates to the “making of the order” and not to
the deliberations which lead to the making of that order. It seems to me, therefore,
that it is open to the licensing committee of the council to have a hearing with all
parties present and then to make a recommendation based upon their views to the
full council. It would be entirely impractical to have a full hearing with all parties
present and the right to ask each other questions in cross examination before a
meeting of the full council. This would be extremely unwieldy.
Accordingly, any report from the licensing committee, having had a full hearing,
should set out all the arguments for and against so that the councillors at full council
are able to arrive at a reasoned decision based upon the evidence before them.
The new regulations prescribe that the hearing should be held within 30 working days
following the end of the consultation period.
Format of the hearing
Licensing committees vested with the deliberations on these matters should set down
clear guidance for the manner in which that committee will be conducted allowing all
parties present an equal period of time in which to present their case and to allow for
cross examination by parties who may wish directly to challenge controversial
evidence put forward by an opponent. For example, whilst the police may have
submitted a substantial body of evidence to justify the making of an EMRO and whilst
those opposing may have made submissions to the council challenging that
information, I see no reason why the police should not be open to questioning within
the context of a hearing in order to establish the validity of the statements made.
If only Richard Branson or his lawyers had had the opportunity to challenge the
evidence and figure work put forward by the Department of Transport in any open
hearing then the grave errors made in awarding the franchise and the subsequent
vast cost of the judicial review in the High Court may all have been avoided.
In a recent case that I attended at Lambeth London Borough Council’s cabinet
meeting when they were considering the introduction of a cumulative impact policy in
Clapham High Street, I was allowed no opportunity to challenge the police on the
evidence which they had submitted on one side of a sheet of A4. The councillors
themselves did not ask any searching questions of the police officer apart from
merely agreeing with him at every turn. This was not exactly the balanced approach
that I would have expected upon consideration of the introduction of the cumulative
impact policy.
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Time will also have to be allowed following the hearing for the deliberation process
and members will require some time in the privacy of their own room to go through all
of the issues and have an informed debate about the proper course to adopt.
Potential submissions from affected parties
The premises licence holders both individually and through trade organisations will
seek to make submissions not only addressing the licensing objectives but also the
economic impact upon the area.
It is likely that individual premises, for example, a cinema, may make submissions
that they ought to be excluded from the ambit of the EMRO and that a line ought to
be drawn around their premises on the map. Other premises may also argue that
they have been extremely well run over many years without any issues relating to
crime and disorder or public nuisance and disturbance and that it would be
thoroughly unjust for them now to be required to terminate the hours for the sale of
alcohol to midnight which would have dire impact upon their operations when no
such problems have been encountered in the past. They may also ask for a circle to
be drawn around their premises excluding them from the EMRO zone. This will
inevitably lead to the Swiss cheese effect. In other words, we might find the large
zone marked on a map covering many streets and blocks of buildings but within
individual circles around other premises who argue for exclusion.
My conclusion on this point is that it would be perfectly permissible for licensing
authorities to carve up the proposed zone in this manner.
There are no exemptions set out in the provisions (save for minibars in hotel rooms
and room service) and in these circumstances, it is extremely probable that we will
see many arguments before committees on the basis that periphery of the zone
should be altered or holes could be punched in the middle.
Another argument which may be put by individual premises and the trade in general,
is that a proposal to terminate the sale of alcohol at premises to one specific hour, for
example midnight, would be a retrograde step and return us to the days of the
Licensing Act 1964 with bars pubs and clubs all expelling their customers at one and
the same time causing even greater problems on the streets outside and in
consequence, further difficulties for the police in controlling such situations. In fact,
the very situation which the police sought to avoid by the introduction of an EMRO
would arise with a standard terminal hour for the sale of alcohol across the area.
Potential submissions from residents
Such submissions could also take two forms.
Firstly, residents in many cases will seek to support the implementation of EMRO
where they live perhaps directly on the streets concerned or on the streets
immediately off the main high street where the zone is to be located. However, as in
Lambeth recently, some residents may very well argue that the imposition of a zone
would result in a migration of problems across to those areas where they live and not
purely in respect of other licensed premises but also in respect of a move to house
parties in the area. Figures in Lambeth showed recently that over a four year period,
the numbers of callouts by angry local residents in respect of noisy and drunken
house parties in their area was almost four times the number of those callouts to
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licensed premises in their very midst. Again, the law of unintended consequences
could result here in extreme hardship for local residents by the increase in
uncontrolled and unconfined noisy house parties in contrast with licensed premises
subject to conditions and drinking in a controlled environment.
There is also the risk perhaps of a fall in the value of their own property if potential
buyers note that the residents is in a EMRO zone.
The prescribed form of representation is in my submission rather limited in that it only
allows those making the representations to address their arguments to the four
licensing objectives. I do not think that this will stop those who wish to make
submissions from making substantial comment about the economic impact of the
imposition of an EMRO on their area, their businesses and their residential
properties.
7. The Decision
The decision must be made within 10 working days following the last day of the
hearing.
Once the licensing authority has finally made its decision on the adoption of the
EMRO then it is required to publicise this within 7 days of making that order.
Note however that the Act is quite clear that the final order as agreed cannot relate to
an area not specified in the proposed order which went out to consultation and
further that it cannot relate to either a day or a period not specified in that earlier
proposed order.
In other words, the licensing authority cannot increase the ambit of the order beyond
that which was put to the public during the consultation period and this must be right.
It would be wholly unjustified for a licensing authority to suddenly extend the ambit of
an EMRO geographically to include perhaps premises which have not been included
in the first place and upon which no proper consultation had taken place.
8. Exemptions
During the consultation period run by the government in the summer months, various
categories of premises were considered for exemption but having taken into account
the submissions made to it by licensing authorities and operators, it has determined
not to allow for any exemptions save for the one limited example of minibars and
room service in hotel rooms. This would still mean that bars inside hotels were
covered by the EMRO.
This is now set out in the new regulations which also provide for exemption on New
Year’s Day.
9. The Appeal
There is no right of appeal to a Magistrates Court in these circumstances and
accordingly, the only route of challenge lies in an appeal by way of a judicial review
to the High Court on the basis that the licensing authority took into consideration
matters which it ought not to have done or that it failed to take into consideration
matters to which it ought to have regard. A decision could also be challenged on the
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basis that no reasonable authority properly directing itself could have come to such a
conclusion as the licensing authority did in the particular case.
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