Posted by Woods Whur | Licensing Law

Regulations were laid before Parliament on 13 March setting the date for the commencement of important changes to the Licensing Act 2003 brought about by the Policing and Crime Act 2017, which received Royal Assent on 31 January: http://www.legislation.gov.uk/uksi/2017/399/made

The principal changes, which will come into force on the 6 April, surround the operation of interim steps under the summary licence review procedure. They will potentially have a significant impact.

These changes have been afoot for some time, following a study on the summary review procedure by the Regulatory Policy Committee, which reported on 3 February last year. The Report outlined the lack of absolute clarity at present as to whether interim steps cease to have effect after a full review of the premises licence has been determined, in cases where the premises licence holder appeals against that review decision. It also set out the detrimental effect and losses to businesses that are currently being caused where interim steps continue to have effect following the full review of the licence and pending the determination of an appeal.

The changes aim to give access to an expedited appeal process against interim steps, to clarify Licensing Authorities’ ability to review and amend interim steps and to provide clearer legal certainty that interim steps do remain in place, unless removed or amended by the Licensing Authority, until the final determination of review, following an appeal where applicable, takes effect.

The Regulatory Policy Committee’s Report noted that interim steps had been imposed in 106 cases in 2014, the most common of which being restricting the operating hours, suspending the licence or removing the DPS.

The Committee relied upon evidence provided by the Association of Licensed Multiple Retailers which showed that an inability to remove interim steps with the effect that they remained in place after full review proceedings pending an appeal and the lack of any expedited appeal process against interim steps was costing businesses £2.3m per year. It anticipates that these proposed changes will save businesses £0.4m per year in lost profit.

The Committee said:

The Department’s assessment is that costs arising from interim steps that go beyond the review outcomes inappropriately impose costs that are not directly correlated to the offence. Therefore, the Department’s assessment is that removing these costs is a benefit associated with enabling the businesses’ legally compliant activity. The RPC accepts that this is a reasonable approach to differentiating between the impacts on compliant and non-compliant business.”

From 6 April there will be only one chance for the premises licence holder to make representations against any interim steps imposed, on 48 hours’ notice, unless there has been a material chance in circumstances. “Material change” is not defined in the Act, but one might suppose that making voluntary changes to the nature of the operation, such as installing additional CCTV, engaging additional security or voluntarily changing the DPS, might qualify as a “material change”.

The Licensing Authority will now be obliged to review any interim steps imposed when it comes to hear the full review application, and consider whether to withdraw or modify them. The changes to the legislation oblige the sub-committee to consider the status of the interim steps as part of the final review decision and consider what should happen to them as part of their decision-making process. It must listen to representations made by all parties so, for example, if one of the interim steps was suspension of the licence, it would be possible for the operator to make an argument at the full review hearing that this should be lifted. If successful, this would have the effect that, were that to be an appeal against the final review decision, for example, against the imposition of certain conditions, the suspension of the licence would not kick in again pending the determination of the appeal, as is the case at present.

The Act makes it clear once and for all that any interim steps, as modified where applicable, will apply until the period for appealing the final review decision or the determination of any appeal has occurred. However, the Licensing Authority will be at liberty to prescribe a shorter period during which interim steps will remain in place. This at least gives absolute legal certainty, which must be welcomed, that interim steps do remain until the full review decision takes effect, whether or not following an appeal or the expiry of the appeal period.

Importantly, the Act also gives licence holders a new right of expedited appeal against interim steps: such an appeal must be heard by the Magistrates (albeit not necessarily determined!) within 28 days of commencing the appeal.

The other change brought about by the Act which will come into force on the 6 April is the power for a Licensing Authority to revoke or suspend for up to 6 months a personal licence where it becomes aware, by any means, that the personal licence holder has been convicted of a relevant offence or required to pay an immigration penalty. It will not be able to do so before the time for appeal against any conviction has expired, or, in the case where an appeal is lodged, before that appeal is determined. In addition, it will have to give notice to the personal licence holder in order that he or she can make representations within 28 days. There is no right to a hearing, so it appears that the matter will be decided on the papers and behind closed doors. If the Licensing Authority does not intend, following deliberation, to revoke or suspend the licence, it must inform police accordingly and police will then have 14 days to make their own representations. Again, there is no provision for any hearing but the Licensing Authority must then consider the matter further, reach a decision and notify the parties.

The personal licence holder will have the right to appeal against any suspension or revocation of the personal licence, following the standard appeals procedure, that is to say, within 21 days of being notified of the decision.

The Act also makes various minor updating amendments to the list of relevant offences under the Licensing Act.

There are other planned changes to the Licensing Act brought about by the 2017 Act, for which these recent Regulations do not yet set a commencement date. These surround placing Cumulative Impact Policies on a statutory footing by prescribing various requirements for the Licensing Authority to publish their assessment of Cumulative Impact, together with the evidence for it, to consult on the policy and to publish their decision whether or not to implement a policy, together with their reasons. Further changes to come also include introducing greater flexibility in relation to Late Night Levies, in that the Licensing Authority will be able to apply the Levy to part of their area only, to decide whether to include or exclude late night refreshment premises, and will be free to impose different Levy requirements on different parts of their area. We will update you on these further changes as and when we have a date for their implementation.