The Licensing Bill – state of play

The Licensing Bill continues to be mired in controversy after its severe mauling in the House of Lords, where it was subjected to a wide range of amendments. Its proposed measures have been challenged by the Association of Chief Police Officers (ACPO) on the grounds that more alcohol means more crime. The Office of the Deputy Prime Minister (ODPM) Housing, Planning, Local Government and the Regions Committee has been deluged with representations on the way in which urban centres are already being ruined by the late-night alcohol and entertainment industry. Publications from the Home Office, designed to give academic weight to the Government's proposals, in fact prove the opposite case. The Network of Residents' Associations continues the fight to protect the amenity of our towns and cities and has launched an attack on the Secretary of State, Tessa Jowell, over what is sees as her wilful failure to understand the implications of the Bill for which her department has responsibility.

During the debate on the second reading of the Licensing Bill in the House of Commons, Ms Jowell said: "The big difference under the Bill is that local residents – the constituents of right honourable and honourable members on both sides of the House – will for the first time be able to have their voices heard when licensing decision are made."

In an Open Letter to Ms Jowell, Dr Sarah Webb, the Secretary of the Network of Residents' Associations, points out that this statement is simply incorrect. "The truth is that residents can be heard very effectively at present." As things stand, it is possible to make representations about any application for a liquor licence to the Licensing Magistrates which have to be taken into consideration. There are no limitations on who may make these representations any more than there are in planning matters. The same is the case for Public Entertainment Licences, when any objections can be addressed to the Local Authority and form part of the papers on the application presented to the relevant committee.

Dr Webb brings to the Secretary of State's attention the number of ways in which "your Bill will actually impose new restrictions on residentsby granting late night hours in a single combined premises licence applicationby limiting the category of 'interested parties'by disallowing objections that are deemed "repetitious"by granting and issuing a licence 'forthwith'by abolishing routine Premises Licence reviewsby denying Local Authorities the power to set closing times for zonesby transferring licensing to Councils where there are time constraints.

"There is a risk that Councils will restrict the time available to objectors. Some authorities already apply a time limit of twenty minutes for Public Entertainment Licence hearings and only allow one speaker. In Magistrates Courts objectors are always allowed adequate time to present their case. Two or three days can be set aside when there are many objectors, and everyone is heard "These points," says Dr Webb, "exemplify the reduction in objectors' rights that would result from this Bill in its present form, and these restrictions may prove to breach the Human Rights Act."

The Licensing Bill comes to the Commons after a rough ride in the House of Lords during which the Government was forced to make concessions on what had previously been proclaimed to be fundamental principles, most notably in the matter of cumulative impact. Cumulative impact refers to the situation which arises from a large number of licensed premises in a particular area. Research has shown that this is the greatest contributor to problems of disorder and nuisance in urban centres. Despite the fact that a great deal of the thinking behind the Licensing Bill has been based on impressions of how things are done in other countries, it has escaped the Government's notice, or it has chosen to ignore the fact, that there are strict restrictions to prevent the ill effects of cumulative impact in many other countries. In Paris, for example, no licensed premises are allowed to be sited within 75 metres of the next and there are quotas to restrict the overall number of licensed venues. Indeed, not a single new licence has been granted in the French capital since 1915. The concession on cumulative impact, which seems to allow for local authorities to take this issue into account when considering applications for licences, has been hard won in the face of bitter opposition from the drink industry and from certain quarters within the Department of Fun, as Andrew Cunningham, the civil servant responsible for the Bill, refers to his area of government.

The Ministerial Guidance makes a statement that cumulative impact is very rare and implies that Soho is just about the only place in the country where it applies. It is, in fact, the norm. Anyone familiar with city centres such as Newcastle, Manchester, and Nottingham, to take just a few examples, will know that this is not the case. Cumulative impact is not the same as commercial saturation; it is the situation where the concentration of licensed outlets causes the proliferation of incidents of disorder and nuisance. Furthermore, campaigners saw it as essential that the threat posed by the Bill of allowing the unchecked growth in the number of outlets should be countered by giving the local authority power to prevent this. The strange suggestion that cumulative impact is a rare phenomenon has no bearing on the fact that any Bill should seek to prevent adverse effects arising from its measures. The fact is that the Licensing Bill is designed, ineffectively as has been constantly argued, to prevent problems which already exist and has no intention of preventing any which have not occurred.

The matter is, however, not straightforward. Ms Jowell's reply to a question from Don Foster, the Member for Bath, during the Second Reading implies that the Government has no intention of allowing local authorities, with their newly acquired responsibilities for licensing matters, the right to have an effective licensing policy.

By the concession on cumulative impact, it should have been possible for a council to make a decision that there should be a limit on the number of licensed premises in a particular area. This may well still be the case, but if licensing decisions must not be "taken by the local authority without receipt of representations", as Mr Foster was told, then a potentially dangerous element of confusion has been added. Does a licensing policy which takes cumulative impact into consideration constitute decisions being taken "without receipt of representations"?

These "representations", as envisaged by the Bill, can only be made by people living or owning a business within the vicinity of any proposed licensed premises.

We are left with the situation where, say, an elderly lady, driven to distraction by the noise and disturbance caused by a particular pub or club, has to collect data on the incidence of lawbreaking and present it to the licensing authority in a legally convincing form before any action can be taken. The position, of course, will be the same before any licence is granted, except that our hypothetical old lady will be obliged to prove the likelihood of nuisance and disorder before the fact.

Commentators agree that, during the passage of the Bill through the Lords, the Opposition acquitted itself much better than did the Government. Baroness Blackstone, who introduced the Bill, had a particularly difficult time and was shown on two occasions to have provided the House with incorrect information. Lord Avebury, the former Liberal MP Eric Lubbock, wrong-footed her on a number of occasions, illustrating not only her less than firm grasp of her brief but also fundamental weaknesses of the Bill.

The Conservative Opposition, led by Baroness Buscombe, defeated the Government on a number of issues, Some of the amendments have been removed in the Commons. But it is clear that the Bill will emerge as an Act of Parliament in a different form than was originally intended.

One intention of the Bill was to allow children free access to pubs and bars on their own, a measure which was by no means welcomed by all licensees. Baroness Buscombe's amendment removed this part of the Bill on a number of grounds, including the danger into which such unaccompanied children might well be put. One of the Government's aims was to make pubs more family friendly – although it seemed an absurdity to argue that children in pubs without their families promoted this laudable end.

#Reports differ on how the Government intends to proceed on this particular amendment but there is a suggestion that it intends to reverse it, a move which would seem certain to spark further controversy. This particular issue highlights the unsatisfactory nature of the whole process in that the Bill pre-empts many crucial aspects, of the National Alcohol Strategy which is still being formulated. These aspects include how we look at the problem of alcohol harm in relation to young people and children. At the moment all the Government is proposing are liberalising measures in a Bill which itself has been shaped at the behest of the drink industry.

Just as Baroness Blackstone misled the Lords, Tessa Jowell provided the House of Commons with dubious information on the subject of another amendment under which "protection of amenity" would be added as an objective of the Bill. The Secretary of State intends to overturn this amendment on the grounds that it would "constrain the ability to addressthe problem of public nuisance". Ms Jowell told the Commons that "the term 'amenity'has a different connotation in planning terms, focusing much more on the aesthetic and visual appearance of a place, rather than the activities that go on there".

Planning experts insist that in fact it is the term 'public nuisance' itself which may constrain because it is a term which has been given a very precise and relatively narrow definition by the courts in the context of environmental protection. The term 'amenity' does not have this disadvantage and it is simply not true that in planning terms the word relates omly to aesthetic and visual appearance. 'Amenity' has been given a wide meaning by the courts and has been interpreted as meaning "pleasant circumstances or features, advantages", one of which, of course, could be tranquillity. It will be interesting to see whether Ms Jowell acknowledges her error and provides the Commons with an accurate statement.

In March ministers defended the Licensing Bill before the Office of the Deputy Prime Minister Committee: Housing, Planning, Local Government, and the Regions.

Dr Kim Howells, the Parliamentary Under-Secretary of State at the Department of Culture, Media and Sport, and Ms Jowell's deputy directly responsible for the passage of the Licensing Bill through Parliament, pointed out that since the leisure industry was often used to regenerate derelict areas "it was important to take a relaxed attitude on the matter". Lord Rooker, who has responsibility for Housing and Planning at the ODPM, had already told the Committee that the Government wanted town centres developed for mixed-use at all times of the day. Dr Howell's remark seemed to ignore the fact that some uses might be mutually contradictory, especially in light of the Government's other avowed aim of encouraging the further redevelopment of city and town centres as residential areas.

Dr Howells also made the comment that a "holistic approach" was needed to tackle the prevailing drinking culture and went on to suggest that any problems here "would not evaporate immediately, but could take a number of years". This remark stands in stark contrast to assertions made by a number of ministers that binge drinking and its consequent problems of nuisance and disorder were the direct result of fixed closing times and would disappear overnight with the passage of the Bill. It has been pointed out again and again by experts in the field that abusive drinking and what is now known as binge drinking long antedated any legislation which regulated opening hours. Whilst it may be a step in the right direction for ministers to be taking reality into consideration, the fact remains that no fall back position has been put in place to deal with the possibility that the Licensing Bill, in its present form, will never solve the binge drinking culture, let alone cure it in "a number of years". There is no Plan B.

During the same hearing of the committee, Dr Howells made the comment, "We have got to look at how we make sure that, say, the Portman Group Code is adhered to so that bar staff do not sell alcohol to people who are already drunk" Perhaps someone needs to tell Dr Howell that, however much he might admire the drink industry's Portman Group, this requirement is laid on licensees by the law - a fact with which the responsible minister might be expected to be familiar.

Appearing before the same Committee, the Institute of Alcohol Studies' Andrew McNeill refuted claims made by Tessa Jowell that lead to a reduction in anti-social behaviour, pointing out that no evidence existed to support that claim. He drew the Committee's attention to examples in Australia and New Zealand which demonstrated that extended drinking hours pushed problems later back into the night.

In its report on its proceedings, the ODPM Committee says that "if the Bill is enacted in its current form there will be no mechanism to deal with the problems that arise from the concentration of entertainment premises either in licensing or in planning. We believe that this creates unacceptable risksWe recommend that licensing authorities are given powers to accept residents' sworn evidence of nuisance, and we further recommend that (as in certain European cities) licensing authorities are given powers to set an overall terminal hour in particular defined local areas as part of licensing policy".

The Committee in its report goes on to "recommend that all local authorities are required within their licensing strategies to define upper capacity limits in terms of the number of people with which particular areas, identified by their economic role within the district can reasonably cope at given times of day. Overall capacity could be identified in relation to the fire regulation standards of individual premises, which may also give one potential means of enforcement".

In both their written and oral evidence to the ODPM Committee, the Association of Chief Police Officers (ACPO) also throws doubt upon a number of the basic assumptions made by the Government in the Licensing Bill. ACPO said that extending hours would not automatically stagger closing hours and has the potential to lead to increased anti-social behaviour and costs for the Police and Local Authorities. Giving oral evidence to the Committee, Frank Whitely, Deputy Chief Constable of Northamptonshire, said, "My own particular fear is that market forces will dictate and, frankly, if it is worth one pub staying open until three in the morning, it is worth all the others staying open until three." Deputy Assistant Commissioner Andrew Trotter of the Metropolitan Police put the matter succinctly to the same committee: "I would say that the problem is alcohol, which gives us crime and disordermore alcohol gives us more crime and disorder."

ACPO's position is that Local Authorities and the Police must have the final say on opening hours of licensed premises in their area and that is particularly the case where there is a saturation of licensed premises or where there is a lack of mixed venues. This undermines a fundamental assumption of the Bill as envisaged by the drink industry and the Government.

Nowhere in the Bill are there any means to ensure that staggered opening hours occur as a result of its coming into force. This is an assumption made by the Government without the benefit of evidence. As has been pointed out before in Alert, it is highly unlikely that Landlord A will decide to close at midnight in order to allow his customers to transfer their trade to Landlord B whose premises remain open until one o'clock.

ACPO further pointed out that "the Department of Health who will be producing the Government's Alcohol Strategy must be engaged more in addressing the problem locally. There are also many other social issues associated with alcohol, i.e. domestic violence, drink driving, and these must also be taken into consideration."

ACPO also challenged the Government's view that problems arising from the prevalent drinking culture arise from the activities of a small minority of drinkers.

This might be called The Rotten Apple Theory. ACPO points out that one of the problems of the night time economy is that is it is not so much a few yobs whose behaviour leads to disorder and nuisance but the fact that the streets of our towns and cities are filled with thousands of people who usually behave in a reasonable and peaceable way but who, when fuelled with excess alcohol, act uncharacteristically. In the case of these people, Anti-social Behaviour Orders are inappropriate. ACPO also suggests that arresting a person for drunkenness implies far greater police resources than are in fact available. Officers are involved in the bureaucratic procedures over the arrest of one drunk when they would be better employed on the streets dealing with more serious crime – often those arising from excess consumption of alcohol, such as violence. ACPO further points out what should be self-evident but needs constant reiteration in the face of the Government's reluctance to accept its obvious truth, that more alcohol means more crime not less.

On 26th March the Home office published four relevant research documents, Drunk and Disorderly: a qualitative study of binge drinking among 18-24 year olds, Alcohol, crime and disorder: a study of young adults, Reducing alcohol-related violence and disorder: an evaluation of the TASC project, and Drinking, crime and disorder. Once again, in the press release which accompanied the appearance of these documents, the claim is made that the Licensing Bill "will help prevent crime and disorder by abolishing the fixed opening hours which can create crime hotspots in town centres at closing time". Within the documents there is no supporting evidence which supports this claim.

The TASC project studied alcohol-related crime in Cardiff. It showed that some measures were successful in reducing crime and disorder, but these had nothing to do with opening hours. The report states that "revellers typically begin drinking in the early evening in pubs and then move on to the larger clubs holding extended licences, staying into the early hours." There are a considerable number of premises with late night licences in Cardiff as in virtually every other large city centre. The manager of the TASC project opposed the granting of licences in one area of Cardiff because "the city centre could not sustain such a high number of [licensed] premises in a limited space".

The Drunk and Disorderly report is illuminating on the subject of binge drinking among 18-24 year olds – the very binge drinking which, at one time, ministers claimed would be eliminated by the Licensing Bill. None of the young people questioned mentioned closing times as a factor which led them to binge drink.

They tended to confirm the findings of the TASC project, that once the pubs had closed they moved on to clubs with extended hours or to a party in someone's house.

The Home Office White paper, Respect and Responsibility – taking a Stand Against Anti-Social Behaviour, reiterates the claim made on behalf of the Licensing Bill that there "is evidence that flexible licensing hours lead to less binge drinking". None of this evidence has ever appeared. Appearing before the OPDM Inquiry on the Evening Economy, John Denham, then still a Home Office Minister, referred to evidence gathered for the National Harm Reduction Strategy and based on focus groups with young people showing "that not having the closing time will affect the speed of drinking towards the end of the evening".

The actual evidence shows nothing of the sort.

The focus groups simply elicited the opinions of 123 young binge drinkers and their opinions cannot constitute the quality of evidence required. It may be that, carefully primed, a majority said that they thought longer hours would reduce binge drinking, although a minority is reported as saying that longer hours might in fact encourage it, but the question remains as to what evidence there is that this opinion is right. In addition, these comments about closing times appear as afterthoughts in reports, the main conclusions of which are that "young binge drinkers enjoy drinking alcohol and being drunkEpisodes of risk and disorder are often viewed as part of the excitement of getting drunk with friends.Getting drunk is an integral part of the social scene for these young people"

Given that the Home Office reports describe how young binge drinkers go out with the intention of getting drunk, using various strategies such as beginning to drink at home before leaving, deliberately missing drinks and drinking quickly in order to accelerate the process, the references to the evils of closing times are patently insincere, presumably being added as a bit of political correctness designed to please the Home Office researchers. In the earlier sections of the reports examining the causes of binge drinking, closing times do not even warrant a mention. This is odd seeing that ministers have said that this is the "key mechanism" for solving the problems of alcohol-related nuisance and disorder.

It is difficult to call to mind an occasion when a Bill has faced such general and informed criticism and when its fundamental assumptions have been so completely undermined, not only by the arguments of its opponents and experts such as ACPO but by Home Office research intended to prove its case.