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Local Authorities often bullied by the licenced trade, but scope for greater health focus within licensing

A new report out today has found that the 2003 Licensing Act is commonly interpreted to the advantage of the licenced trade, and that many local authorities regard the Act as having caused them significant problems, particularly in regard to the off-trade.

Significant support for a health objective within licensing was found, although some local authorities stated that they already addressed health issues with some success despite not having a specific health objective. 

The report from the Institute of Alcohol Studies, The Licensing Act (2003): its uses and abuses 10 years on, found that:

  • Many councils do not use licensing to its full potential, firstly because they rely on non-expert in house legal advice, and secondly because many are scared of being taken to expensive legal appeals.
  • While health concerns can be addressed within licensing, these are more likely to be health issues related to social health and wellbeing (e.g. street drinking, domestic violence, deprivation).
  • This may provide a proxy route to chronic long term public health issues, but in themselves these issues are too distant from the point of sale for licensing to have a significant impact, with price probably a more effective measure.
  • It is arguable that many social health and wellbeing issues could be addressed under the current licensing objectives, but the legally contested nature of licensing means this is unlikely to ever happen. Adding a health objective would allow for the more even application of the current licensing objectives.

Local Authorities and more effective licensing

This report identifies a number of common myths and misconceptions around the 2003 Licensing Act that help to advance the interests of the licenced trade while causing problems for local authorities. These misconceptions include:

  • The incorrect idea that the Act is overly permissive, when it actually offers local authorities far more discretion than many realize.
  • The ‘premises by premises’ approach, a widespread idea within licensing that premises must be looked at in isolation from their local environment. This idea does not have a proper basis within the Act, Guidance or case law, and there is actually significant scope to consider dynamic interactions between premises and their locality.
  • The notion that lots of factual evidence is needed to make a decision, when the Act actually allows for a wide range of evidence, with decisions taken on the balance of probabilities, not to a criminal level of certainty. 

By paying closer attention to the Act, Guidance and case law there are significant opportunities for local authorities to use licensing in a more proactive and assertive manner, with far greater discretion in the licences they grant.

The report’s recommendations include:

  1. The introduction of a health objective and an economic objective to the 2003 Licensing Act;
  2. Encouraging local authorities to use the Act in a more assertive manner in order to create safer and more sustainable night time economies;
  3. Introducing set opening hours for the off-trade, such as 10am till 10pm;
  4. Locally set licensing fees so that all councils can properly recover their costs from the licenced trade – at the moment many areas subsidize the licenced trade to considerable amounts.

Jon Foster, lead author of the report said:

"Over the last 10 years business interests have too often won out over local communities. Very late closing times suck in police resources and mean that there are less officers available to do community police work during the rest of the week.

"Local councils could help themselves more by paying closer attention to the Act and case law in order use licensing more assertively, but there is also a need for the Government to better support councils against challenge from the licenced trade.

"Funding is also a key issue for many councils, because of the fact that the fee system within the Act does not always enable councils to recoup their costs properly. Over the last 10 years the licenced trade has been subsidised to the tune of £183 million because of this, and many areas which struggle to use the Act well are also areas with funding problems. Introducing locally set fees would help to address this issue."

Tony Hogg, Police and Crime Commissioner for Cornwall and chair of the Police and Crime Commissioner Alcohol Group, said:

"The relaxation of licensing hours 10 years ago has contributed to a seismic shift in drinking behaviours. Alongside the later opening of venues we have seen the growth of the phenomenon of pre-loading. People are increasingly entering our town centres much later at night and often having already consumed large amounts of alcohol at home. This can make them particularly vulnerable and places significant pressures on policing and on wider support networks like street pastors.

"The licensing framework is a critical tool in managing alcohol related harm and I welcome this comprehensive work by the Institute of Alcohol Studies which shines a light on some of the real challenges we face with the current licensing regime. It is important that we all work together to deliver key improvements to the system.

"We must ensure that the licensing system enables public bodies to act early when necessary to keep people safe and communities secure. We must also ensure that local authorities have the right skills, support and resources to take action where they need to and that we encourage all public bodies to use the existing laws to their full potential.

"I am particularly pleased to see the Institute of Alcohol Studies support the introduction of additional licensing objectives to better balance the system – I have long campaigned for a new Public Health Licensing Objective."

The report was launched at the chambers of Frances Taylor Building on the 17th March.

The Licensing Act (2003): its uses and abuses 10 years on can be found here, and is based upon detailed interviews and workshops with over 70 licensing professionals. The executive summary can be found here.