JUSTICES' CLERKS' SOCIETY
Response to the Home Office White Paper:
Time For Reform Proposals for the Modernisation of Our Licensing
The Justices' Clerks' Society is pleased to
respond to the White Paper on the reform of Licensing laws.
The Society welcomes the Government's initiative
in taking forward the debate on the future of liquor licensing.
The Society has long called for the reform of the current legislation
which is both dated and cumbersome. Piecemeal changes over the
years have resulted in far too many categories of licence and
certificate. It is confusing and complicated. The legislation
is badly in need of consolidation and reform.
The government's proposals to remove liquor
licensing from the Magistrates' courts however are fundamentally
flawed. They show little understanding of modern magisterial licensing
practices and the part the courts play in giving assistance to
practitioners and residents alike. They also pay scant regard
to the effect of the Human Rights legislation which was a major
plank in the Government's programme of reform.
The White Paper's stated aims are to:
Balance the rights and responsibilities
of individuals, families and communities and
Reduce unnecessary regulation.
The Society supports those aims. The reform
and simplification of the legislation itself should reduce unnecessary
regulation. It will provide a national framework in which local
discretion can be exercised.
Balancing rights and responsibilities is the
stock in trade of judicial tribunals, which are able to meet the
challenges of Human Rights implementation. Tribunals will apply
the law in a proper way, having regard to any guidance which is
issued. The grant of a licence is a "determination of an
individual's civil rights and obligations". The determining
body must therefore be an independent and impartial tribunal ie
a magisterial licensing committee supported by a professionally
qualified lawyer who can deal with quasi-judicial/administrative
matters as appropriate.
Although local authorities currently license
many aspects of life, such as hackney carriages and public entertainment,
the control of the sale of alcohol is different in that abuse
can often lead to criminal activity, whether by means of public
disorder or violence.
A local authority committee is by its very nature
a political body making political decisions. It is accountable
to its electorate and as such can be properly lobbied by the voterslocal
residents. It is not accountable to the trade or the wider public
yet it may wish to have regard to the finance provided by trade
interests for certain local authority schemes which may on occasion
override the concerns of its electors as individuals.
The White Paper is inconsistent in its approach
to residents. It appears to want to make it easier for them to
influence the process yet "the three Councillors" will
be drawn from wards other than those in which the premises are
situated and objections will be allowed on relevant licensing
considerations only, whatever that may mean.
Practically, local authorities will need to
prepare for a substantial increase in workload. The Society doubts
whether they will be able to cope unless many decisions are made
"on the papers". This may transgress the transparency
rule contained in Human Rights legislation. The transfer of the
jurisdiction will also be a costly and complicated process.
Magistrates' courts have the necessary infrastructure
in place. They are speedy and accessible. Their practices and
procedures, having been much improved by the publication of the
Good Practice Guide, are familiar, well understood and importantly
comply with the open and judicial requirements of the Human Rights
The Society asks Government to think again.
If a unified licensing authority is needed then the smaller jurisdiction,
that of Public Entertainments, should be returned to the Magistrates'
courts to link with the larger jurisdiction.
The Society's specific comments are as follows:
The Society would argue that the control of
late night eating should not require as much rigour as the control
of premises which sell alcohol.
Under Age Sales
The proposed powers are to be applauded. A national
proof of age scheme is essential in order that those who work
in off-licences are given the necessary protection and that any
prosecutions brought are effective. We are aware that such proof
is compulsory in other jurisdictions prior to any sale taking
place (eg certain States in USA) and believe that if the civil
liberties arguments can be overcome such a scheme would provide
the best guarantees to prevent under-age sales.
The Society has concerns over the standard of
training provided by licence holders to casual staff who may be
employed during busy periods and would like to see conditions
on any premises licences that all staff who sell alcohol must
have an approved qualification. We note that the British Institute
of Inn keeping is shortly to introduce a bar staff qualification
and this initiative is welcomed and should not be forgotten under
any new regime.
Closure for Public Order
The Society supports the proposal that an application
should be made to a Magistrate who will be versed in Human Rights
issues which might apply.
These changes are supported.
As the Internet is the fastest growing sales
medium, the opportunity should not be lost for regulation now.
The Government could consider legislation governing the tax situation
arising from the electronic point of origin of the sale.
Garages and Motorway Service Areas
The Society believes that the proposals neither
reflect the current situation nor the demands of the public for
off sales at garages. Current legislation allows for sales from
garages in limited circumstances and this has been supported by
recent case law such as R v Liverpool Crown Court ex parte Goodwin.
Artificial divides are created where supermarkets can sell liquor
in their main store but not in their neighbouring petrol station.
To the general public this seems an artificial distinction, just
as it is with the rural petrol station which doubles as the local
convenience store. A more liberal and realistic approach is needed
There are equally problems with service stations
on Motorways. Why should a passenger in a vehicle, or the 50 passengers
in a coach, be deprived of the freedom of choice to buy alcohol?
If one of the arguments for the new legislation is to remove confusion
for foreign tourists, it must be remembered that there are no
such controls on main land Europe.
The Society generally supports the concept of
a personal licence. There are issues however, which need to be
The rigour of the courses currently
on offer and lack of national standards.
The fact that a qualification alone
without any experience will lead automatically to a grant.
The lack of a grading structure so
that a licence holder is deemed capable of running a very different
types of premises eg a small rural inn and a large metropolitan
The fact that there is no right of
a member of the public to challenge the grant or right to renew
where the licensee's behaviour may be unacceptable but falls short
of the specific list of matters which debar.
The fact that relevant conviction
do not include public order offences; any, not just serious violence;
possession of class A drugs.
The lack of refresher training.
Absense from tradethree years
should trigger re-qualification.
The lack of a transparent hearing
for endorsements and the possible infringement of Human Rights
legislation especially when a person's livelihood is involved.
The notification of taking up premises
where "normally" in our view is too vague and where
we are surprised that notice after the event is acceptable even
if it is not an emergency situation.
The broad principles are supported. Issues to
be addressed are:
Operating plans may lead to greater
inconsistency across licensing authorities.
Notice and objection procedures appear
more burdensome than at present.
Local residents are not intimidated
by magisterial hearings. Clerks assist unrepresented objectors
in presenting their cases. Representatives of local resident groups
are often members of the court's licensing forum.
The status of the local ward councillor
speaking for the residents in a hearing before fellow committeesbias?
Breachesfair trial concerns.
Who should decide whether an objection has merit? It is only if
the decision is made in the affirmative that a hearing will take
place. Similarly the arrangements for a review hearing. Can a
licensing authority bring proceedings before itself. Should all
breaches be heard by an independent tribunal?
Whether late night refreshment premises
not supplying alcohol should be included in this regime.
The inconsistency in closure powers
expressed here and in relation to off licences. If temporary measures
are Human Rights compliant, the power to extend or review such
orders may need a fair hearing.
Absolute protectiondoes this
The propriety of vesting all powers
for temporary and occasional licences in the Police. Timescales
are short and there is no mention of appeal. Public Safety merits
notice to the Fire Authority.
The relaxation of permitted hours seems sensible
as is the proposal in relation to access to children. The Society
points out however that staggered leaving times may not be achievable
with rival premises in city centres competing for the same trade.
Human Rights legislation means that the licensing authority should
not be discriminatory in its approval of operating conditions
including hours. In any event there may still be a tendency for
the public to migrate from differing premises as they close and
Police resources may be inadequate to cope.
The Society believes that a system of graduated
sanctions and penalties is sensible. The proper venue for dealing
with sanctions affecting someone's livelihood however, is the
Magistrates' court and would obviate the need for a two-tier system.
Further, the powers given to the Police for extension of the powers
to close without appeal is quite draconian. Clear rules and guidance
will be necessary.
The Society supports the proposals.
The extension of these powers is welcomed, although
it is the successful enforcement of these orders which needs clarity
if convictions are to be secured.
The 1980 Act however, should be repealed in
order to strengthen the powers available to the court. Limitations
currently can only be linked to a conviction on the premises and
only relate to violence. The case of R v Grady (1990) Crim LR
608 has greatly restricted the use of these orders and any new
statute must remove these restrictions whilst also removing the
administrative difficulties created by these orders.
The Society does not believe that the reasons
in favour of giving all licensing responsibilities to local authorities
are as compellable as the White Paper makes out.
Accountability to local residents
A high sounding ideal but one which a local
authority will fail to meet in practice. In order to be a fair
tribunal the ward Councillors will have to be seen to be independent,
balancing the rights of those who work in the industry and those
applicants who bring employment into the area as against the rights
of the residents of the other wards in the area. Councillors cannot
be seen to have a policy favourable to residents. That would be
prejudging the application. The question must also be asked of
how the council will deal with the licensing of its own premises,
or those which neighbour its premises?
The fundamental question here is of lobbying
not of being intimidated by court proceedings. Magistrates sit
in licensing committees, which although normally held in a courtroom
are largely informal sessions. Resident objectors are assisted
by the lawyer clerking the Magistrates that day and are also assisted
by office staff in making their application. Residents (or anyone
else for that matter) cannot lobby the Magistrates because of
their judicial independence. If the government thinks it right
and proper for councillors to be lobbied why is it then necessary
for the Councillor representing the ward in which the premises
is situated to refrain from taking part in the decision? That
is not accountability.
Crime and Disorder
Local authorities may have a statutory role
in crime prevention but it is the Magistrates who day after day,
see the effects of crime and disorder and alcohol crime in particular.
The White Paper is also concerned with the consistency
of decision-making in Magistrates' Courts. It is always difficult
to reconcile National guidance with local discretion. Government
guidance, even when account must be taken of it by statute, is
not a panacea. Lawyers will be able to find exceptions to the
The idea that licensing is not a judicial function
does not bear scrutiny. Balancing competing interests necessitates
the hearing of evidence or representation, judging the merits
and making a decision which will stand up to appeal. It is most
definitely a judicial function. Magistrates are trained to perform
this function and are advised by skilled lawyers with many years
of Licensing experience. It is interesting to note that the Lord
Chancellor's Department has just published guidance that a local
authority Councillor who is also a Justice of the Peace should
not sit on a liquor licensing committee because of the issues
which may be raised under the Human Rights legislation on bias.
It is our view that the effect of Human Rights
legislation has been seriously underestimated.
It is assumed that applications without notification
of objection would be dealt with by office staff without public
transparency. Contentious matters would be dealt with in committees
which would have to organise themselves to meet frequently and
allow for ward councillors removal where objections were raised
with regard to promises in their area. We assume that the ward
Councillor could not then speak for local residents, as is sometimes
the case in Magistrates' Courts. We also query how Councillors
will deal with applications from those in competition with council
leisure facilities and civic centres.
This section mentions nothing about fair procedures
at the initial hearing expressed in paragraph 128. Regulations
will be brought into effect but the local authority culture may
be more difficult to change. There is much evidence of a poor
track record so far as fair proceedings are concerned.
There is no reason to include lay justices experienced
in local knowledge in a tribunal which is going to deal with questions
of law only. Having said that, there must be a system of appeal
on the merits of the case. Points of law arising therefrom can
be dealt with by means of case stated or judicial review.
If licensing remains with the Magistrates' Courts,
appeals should lie to the Crown Court. If Licensing is transferred
to the local authority, appeals should be to the Magistrates'
The Society agrees that fees are not currently
set at proper levels. It must be noted that apart from an increase
in fees, there will be the huge cost of transfer of a large jurisdiction
to a smaller one. The effects of the TUPE provisions also need
to be addressed.
The Society is of the opinion that it would
be more just and cost effective to retain Liquor Licensing in
the Magistrates' Courts.