House of Lords to Report on Licensing Act 2003

On 25th May 2016 it was announced that an ad-hoc House of Lords Committee has been established to “consider and report on the Licensing Act 2003”. The exact purpose of the Committee is uncertain but it will be calling for evidence over the next few months with a view to reporting in March 2017.

I hope these noble Lords know what they are letting themselves in for. For a start, the “Licensing Act 2003” is not a single statute but a host of primary and secondary legislation, statutory and other guidance at central and local Government level together with innumerable reports and other analytical documents along the way.

If I was to say one thing to this rather elevated “Licensing Committee” it would be this – alcohol and entertainment licensing is essentially a people business. The vast majority of us enjoy alcohol in a positive and responsible way, with only a small minority using it harmfully, be that through tanking up and lamping an innocent victim after a night’s drinking, underage drinking or indeed street drinking. The desire to eliminate or at least reduce the effects of harmful drinking are as noble as the Upper House itself, but as we have said innumerable times in this column it is critical not to penalise responsible licensees at the same time and throw the baby out with the bathwater.

The people who go to pubs and bars and the people who run them are not computers – they drink for a variety of reasons and where problems occur there can be an even greater number of reasons why, alcohol being only one of those possibilities. Too often pubs are simply used as a geographical marker in Police statistics for incidents which have started elsewhere and only finish on the pub’s doorstep, quite often because a competent team of door staff has intervened. Too often positives or irrelevancies end up as negatives on Police figures, be it refusals of drunks at the door, seizures of drugs or even A-boards falling over in the wind. When the Police produce their list of incident reports relating to a particular premises these are compiled on a computer but the inputting of this data is (or at least should be) done by a human. Such matters should be deleted or at least put into a “positive” column at that stage giving a rather more balanced picture.

Before the House of Lords Committee begins its task it may be worth their while asking what is the purpose of the Licensing Act 2003? To my mind, it is to promote the four licensing objectives. These licensing objectives, as we have said many times before are aspirational as no licensed premises (indeed no premises, licensed or otherwise) can promise to prevent crime and disorder or public nuisance. Immediately, we go back to licensing being a people business. Based upon the strict wording of the four licensing objectives a black letter lawyer could conceivably mount an argument that there should not be a single licensed premises in existence in the country, but instead the Police and Environmental Health, the Licensing Authority and the Councillors on its sub-committees and licensees and their customers have to interpret the licensing law in the best way they can.

This leads to interesting dilemmas for a lawyer who has drafted hundreds of conditions on premises licences. If I want to offer a condition stating that my festival client will not allow heavy metal music because of the intrusive effects of bass frequencies on nearby residents, do I carefully draft a host of clauses detailing specific decibel levels, monitoring locations and definitions of “heavy metal” or do I simply put on the licence “There will be no heavy metal bands”? The people that I am dealing with at the moment (the EHO, the residents, the Licensing Authority) may be happy with the latter, but what about the people who succeed them? It all comes down to trust.

This quality of trust, of the human nature of the Licensing Act is evident in the Act itself and the Statutory Guidance – words like “appropriate”, “proportionate”, “balanced” are all essentially subjective terms. Fuzzy though they are, they can often be a licensee’s best hope in saving his licence from an ill-thought out licence Review or of obtaining an extra hour in an otherwise strict Cumulative Impact Policy Area.

Before the House of Lords Committee starts taking evidence I hope it will recognise the essential human quality that runs like a seam throughout all of licensing law and make its findings in that light.