Letter to the House of Commons Deregulation
committee from the Royal Borough of Kensington and Chelsea|
Thank you for your letter of 16th February 2000.
The Committee, quite understandably, has asked why the Council
has not found the provisions contained in Schedule 12 to the London
Government Act 1963 adequate to provide sufficient safeguards
I will explain.
The provisions of the London Government Act 1963
were administered by the Greater London Council until its abolition
in 1986. In order to be permitted to serve alcohol after 11.00pm
an application had to be made either to the Licensing Justices
for a supper hour certificate or an extended hour order, or to
the Greater London Council for a music and dancing licence followed
by an application to the Licensing Justices for a special hours
certificate. The provisions in relation to special hours certificates
are contained in Sections 76 - 83 of the Licensing Act 1964.
Under these provisions a special hours certificate
allows a licensee to serve alcohol up to 2.00am weekdays and Saturdays,
with an area running along the borough boundary with the City
of Westminster having a permitted hour up to 3.00am. In both cases
special hours certificates allow for half an hour's drinking up
The majority of music and dancing licences now existing
in The Royal Borough were originally granted by the Greater London
Council. It is fair to say that until the late 1980s and the early
1990s licensing was not a particularly contentious subject. Premises
generally divided themselves into three categories:-
- public houses with closing times of 11.00pm
- restaurants with closing times of 12.00pm (supper
hours certificates) or 1.00am (extended hours orders)
- night-clubs with closing times of 2.00am or 3.00am
(music and dancing licences and special hours certificates).
The GLC Licensing Committee was seen as somewhat
remote and residents rarely objected. The licensing functions
were exercised more administratively and the Committee was not
seen to act in a quasi judicial capacity. At that time many applications
were granted on request with a minimum of restrictive conditions.
In those circumstances the provisions of the London Government
Act 1963 were suitable for the purpose.
To secure maximum flexibility, operators who needed
to obtain a music and dancing licence would in any event apply
for a licence up to 2.00am or 3.00am. They would then close earlier
if there was no commercial imperative to stay open. Nevertheless,
having the maximum permitted hours under a special hours certificate
was seen as valuable in the event of the premises being sold.
When The Royal Borough took over the licensing function
from the GLC in 1986 the number of licences for music and dancing
that existed was only slightly less than now. The Licensing Committee's
function was chiefly to do with renewals of existing licences
that were in the main, unopposed.
The Present PositionThe Law
The law governing licensing has in all material respects
remained the same since 1963-4. The only difference is that public
houses can stay open during the afternoon. There has been no
change in night time closing. Under the previous government the
Home Office undertook a series of consultation exercises designed
to deregulate public entertainment licensing generally, to extend
permitted hours for public houses on Fridays and Saturday nights
and to extend permitted hours on Sundays making them no different
than weekdays and Saturdays. None of these measures were pursued
The Present PositionThe Practice
This Council's Licensing Committee, though, has seen
significant changes in the nature of the proceedings that it conducts.
Activity after 11.00pm has intensified considerably with restaurants
opening basements underneath premises for later entertainment
and with operators using the approved licences to the full as
the leisure industry saw the need to cater for a market especially
those who wanted to consume alcohol later at night and early in
The increase in such activity saw a corresponding
increase in complaints. Residents began to object to renewals.
There were objections to new applications on the basis that certain
areas reached saturation point. The Council's Licensing Committee
strove to exercise a balance. In particular the Committee attempted
to reduce tensions between residents who did not want to be disturbed
by intrusive late night activity and business which wanted to
meet a perceived demand. It has been one of the most contentious
issues in this Council during the 1990s. In exercising that function
properly, residents did not see the Council as operating in their
The Present PositionAppeals
A Licensing Committee's decision is not final. If
it had been then Schedule 12 of the London Government Act 1963
may have been sufficient. However, any decision can be subject
to an appeal to the Magistrates Court and then to the Crown Court,
the appeal process being open only to the applicant.
The Committee was advised correctly that it could
not simply adopt a policy of imposing closing times for all premises
earlier than that allowed by the Licensing Act 1964. Each case
had to be decided on its merits and supported by evidence presented
to the Committee. Hearings during the 1990s changed from being
administrative to quasi judicial. In contested applications, lawyers
representing applicants would cross-examine residents when they
came forward to give evidence. Given the rights of appeal, the
Council had to take into account the need for those residents
to give evidence in front of the Magistrates Courts. Furthermore,
in these deliberations the Committee always had been aware of
the costs involved if their decision would not be upheld on appeal.
Not surprisingly, residents find giving evidence
daunting and awkward, having to take time off from work. Being
cross-examined by lawyers in the witness box is not a pleasant
experience. Many residents, while willing to appear in front of
the Licensing Committee and democratically accountable Councillors,
were more reticent when it came to the Magistrates Courts. They
simply could not understand why their involvement was so critical
to the process. However, experience showed that when residents
were prepared to give evidence in court proceedings the Council
stood a good chance of winning. Equally, when they decided not
to appear in court the Council either lost or would have to compromise
Contested hearings in the Magistrates Court often
takes two to three days with costs becoming considerable. Accordingly,
the Licensing Committee has to balance the requirements of the
applicant with the prospects of costs being awarded against the
Those fetters on the Council's discretion in practice
became so significant that the Council suggested that the appeal
system should be changed. The Council proposed that only decisions
that were unreasonable based on Wednesbury principles should be
challenged in the courts. This measure was not pursued vigorously
because it stood little prospect of success, but it does demonstrate
a loss of confidence in the processes afforded by Schedule 12.
The Present PositionThe Evidence
It may be helpful to expand a little on why residents
are reticent about appearing in court.
With regard to dealing with noise emanating from
premises, the Council through its officers are capable of addressing
problems through the environmental protection legislation and
by imposing conditions on a licence. In practice, sound-proofing
can deal with most problems.
A much more difficult and complex issue for the Council
is the disturbing noise that occurs when patrons leave the premises.
In areas such as Kings Road, Fulham Road, Kensington High Street,
Brompton Road it is difficult to identify which patrons from which
premises are causing nuisance. Even well run operations have problems
in that respect and can only, in reality, take measures to reduce
intrusive noise and behaviour. They cannot eradicate it.
Residents, when complaining about premises need to
be specific if the evidence is to withstand scrutiny in the Courts.
Sometimes they even keep diaries of complaints. But facing cross-examination
in relation to the reliability of their evidence is worrying and
can sometimes be humiliating. Too often they cannot say with any
certainty which premises are causing problems after midnight.
Local residents know but cannot prove it, hence the frustration
with the process.
The Present PositionClosing Times
The Committee's attention is drawn to the fact that
Schedule 12 does not have any closing times. It is only the Licensing
Act 1964 which contains closing times by way of permitted hours.
These finite restrictions are seen by the Council and by residents
as the one safeguard that guarantees some peace and quiet late
at night and early in the morning. That is why they feel so strongly
that any relaxation of closing times must be resisted. The Council
in exercising its licensing functions agrees with that view.
The Council has striven to protect and safeguard
residents' interests. The reality is that with the resources available
to the leisure industry, the arguments deployed by their legal
representatives, the cross-examination of essentially unwilling
residents and the occasional perceived failure of the Magistrates
to understand the tensions of the area, leave the residents and
the Council feeling that it is an uphill struggle simply to maintain
quality of life. This Council and its residents have repeatedly
told the Home Office in every consultation exercise there is simply
no substitute to retaining closing times. This is clearly the
case on Sundays and Sunday evenings as closing times provide some
respite at least from late-night activity during the week and
on Saturdays. Schedule 12 on its own has not and will not provide
In making these representations I would hope that
the Committee will understand that the Council is keen on promoting
responsible business and has no wish to restrict their activity
unnecessarily. In fairness, the Council does understand that with
a change in public expectations the question of licensing needs
to be reviewed. There are many balances that have to be made.
However, the Council feels very strongly that the piecemeal approach
adopted by the Home Office under the Deregulation and Contracting
Out Act 1994, (an Act designed to deal with the removal of unnecessary
red tape) does not present a proper focus for such a debate. This
is especially the case with a White Paper being issued in the
next four to five weeks on licensing generally.
I hope this letter does justice to the very real
concerns held by residents here and elsewhere. Should the Committee
wish to ask further questions or seek clarification I, together
with the Council's Director of Environmental Health will be more
than willing to attend at a time convenient for the Committee.
Finally, I would mention that as Leader of the Council,
the Baroness Hanham, has seen the development of licensing as
an issue of considerable importance and is aware of the major
frailties of Schedule 12 in providing the protection residents
expect. I have been asked by her to let you know that she is more
than prepared to deal with any issues on the subject the Deregulation
Committee considers needs further examination.
Alun Phillips LLB
Director of Legal Services
22 February 2000