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IAS response to Government Licensing proposals

Local Authorities and Alcohol Concern unhappy with the plans - If the Government expected a chorus of praise for its White Paper on Licensing Reform (see Alert, no.2, 2000), then it must be very disappointed. Criticism has come from a wide variety of sources, not simply from expert organisations such as the Institute of Alcohol Studies (IAS) and Alcohol Concern, but from local authorities of all political persuasions, such as Camden, Islington, and Westminster. Perhaps rather more unexpectedly, the Government's proposals have also been attacked by the body representing the nightclub industry.

What emerges is that the White Paper is ill-prepared and full of inconsistencies. This is made clear from the response given to the Home Office by the IAS. Whilst accepting that the present licensing laws are far too complex and in need of modernisation, the response says that "on a number of key issues, the White Paper is so confused and ambiguous that it is impossible to determine what the Government actually intends. It is disturbing that the Government has clearly not thought through a number of its own proposals." The IAS is especially concerned "by proposals in the White Paper which go beyond the requirement of modernisation, and which are likely to undermine rather than protect the public welfare." Similarly, in a joint letter to the Home Secretary the leaders of Camden, Westminster, Islington, and Hammersmith and Fulham Councils said: "The proposals grossly underestimate the complexity of the role that local authorities in London need to undertake in order to achieve a reasonable balance between the demand for increased flexibility by the entertainment industry and the protection of our residents from disturbance."

According to the IAS the "principal benefit of the proposals for the public as distinct from the alcohol and hospitality industries, is claimed to be in regard to crime and disorder, in particular, a reduction in the street crime and disorder occurring around the closing times of pubs and clubs." However, there is a problem here in that, important though they are, crime and disorder are not the only relevant considerations. "There is alsothe question of public health. It is not self-evident that these other considerations should necessarily be regarded as less important than street crime. This is especially so since the benefits of the White Paper's proposals in regard to street crime are in fact extremely doubtful." Alcohol Concern believes that "it is crucialthat the key principles of the Licensing White Paper should include improving public health as well as reducing crime and disorder."

The IAS points out that for years there has been a vigorous lobby urging the abolition of closing time. "Those with a vested interested in selling alcohol, journalists and other self-appointed experts, have insisted that if only closing time were abolished, the English would become like the French and the Italians, the culture of drunken yobbishness that afflicts town and city centres at night and at weekends would disappear, and peace would reign on the streets." It now appears, says the IAS, that the Government has now joined the ranks of those promoting this highly simplistic solution to a complex problem.

The response does not start from the position that the present licensing laws are written in stone, but "on the basis of the available evidence, we believe the Government's proposals are a reckless gamble with the remnants of what was once justly celebrated as the English tradition of social peace and civility. We object particularly strongly to the way in which the Government promotes the case for the de-regulation of closing times by either ignoring or misrepresenting the available evidence.

"We regard it as highly regrettablethat the Government has scorned the opportunityto devise a licensing regime based on a wide-ranging social consensus and which, serving the interests of society as a whole, would be likely to last. Instead, the Government has preferred to propose a regime that will serve the interests of parts of the licensed trade and a minority of drinkers at the expense of the wider community."

The IAS believes that the proposed reforms conflict "not only with public opinion but potentially also with the Government's own policies on health and crime" and that some of them "will actually reduce the protection available to local communities". The proposals, says the response, are likely to create more problems than they solve.

The Home Secretary's passing reference to the national alcohol strategy in his Foreword to the White Paper serves only to emphasise how disconnected the Government's licensing proposals are from these wider considerations. "There is no discussion in the White Paper of the possible long-term consequences of the proposals for the problem of alcohol misuse," says the IAS and, after the Home Secretary's reference, there is virtually no further mention of health in the document. "Nowhere in the White Paper is there any recognition that liquor licensing may have a role to play in protecting public health. Presumably, it is not without significance that the White Paper lacks an endorsement from the Secretary of State for Health," the response's author pointedly remarks.

"The Government is not able to justify its disregard of these issues on the grounds that its overriding responsibility is to meet the public demand for wholesale liberalisation of the licensing law, for the bulk of the population are opposed to it," says the IAS, referring to the NOP poll which it commissioned earlier this year (see Alert, no.1, 2000).

The IAS response calls the Government's attention to the social context of liquor licensing reform:

  • adult consumption in 1998/9 was probably higher than at any time since the First World War.

  • between 1990 and 1996, the average amount drunk by 11-15 year olds doubled.

  • more than a quarter of men (27%), and 14% of women exceed the old `sensible limits' of 21 and 14 units of alcohol per week and among 16-24 year olds, 35% of men and 22% of women exceed these limits.

  • a notable feature of recent years has been a growth in young people of drinking to intoxication, with all its associated problems.

In the context of the last point IAS says that it is argued "by some, apparently seriously, that this trend too is yet another evil attributable to the present licensing system. This would be a remarkable feat indeed, as the trend is evident in those too young to drink in pubs and thus be constrained by the licensing law, and is also reported across most of Europe, including France and Spain – countries whose more relaxed licensing regimes are claimed to prevent these very problems."

When discussing the Government's actual proposals, the IAS expresses support for the intention to transfer responsibility for some licensing matters to local authorities, "although we think that the Government's proposals go too far in excluding magistrates from the licensing processWe support the transfer of responsibility to local authorities on the grounds of public responsiveness and accountability. However, we are concerned that local authorities may well have a potential conflict of interest in regard to the granting and revocation of licences.

Local authorities will expect to obtain direct and indirect benefits from licensed premises in connection, for example, with the commercial development of town centres, and there is a clear danger that the interests of local residents will be sacrificed to these ends."

On Personal and Premises Licences: "We do not object on principle to the concept of a split system of licensing but we question whether the Government's proposals contain sufficient safeguards for the system to work satisfactorily in the public interestIt is difficult to tell from the White Paper where the responsibilities of the personal licence holder end and those of the premises licence holder begin, especially of course when they are different people." If the holder of the premises licence is "a corporate bodyit will be necessaryto define the legal liabilities of [those] bodies

"The Government proposes making the award of a personal licence automatic in cases where the applicant has gained an accredited qualification and has no criminal convictions."

The IAS argues that merely having a qualification and being free of criminal convictions are "not normally taken as an assurance of suitability for a job, especially in the absence of relevant experienceWe fully support the requirement of training for licensees. However, especially given the varied demands placed on them in the wide range of licensed outlets that now exists, the possession of an accredited qualification does not of itself indicate that a person's suitability for a post can simply be taken for granted."

The IAS believes that it will be necessary for an assessment to be made of the character and suitability of applicants for licences and of licensees and that experienced magistrates should perform this duty. Alcohol Concern opposes "a statutory presumption in favour of renewing a personal licence after ten years for a further ten years, and believe that licence holders should be required to undergo an additional period of training."

The response points to the "vagueness of the White Paper in regard to the day to day management of licensed premises is also apparent in connection with the question of the skills and qualifications of staff other than the licence holderAs far as the premises licence is concerned, the operating plan is another area in which the White Paper's lack of clarity is evident."

The IAS believes "that what is actually called for here is that the new licensing authority seeks ways of entering into a constructive dialogue with licensees, facilitating the effective monitoring of premises and early warning of significant changes of trading policy." Although the suggestion is obvious, it is not one made in the White Paper.

There is agreement between the Government and the IAS that a single unified on-licence, such as is envisaged in the White Paper, would have the great advantage of simplicity. There are, however, "dangers attached and we do not believe that the Government's proposals maintain an adequate degree of social protection".

Referring again to the NOP poll, the response says that "very large majorities are opposed to licensed restaurants becoming pubs in the way the Government proposes and of giving children unlimited access to barsAn even larger majority is opposed to the prospect of fast food restaurants like MacDonald's becoming a kind of pub"

Objections to Licences and Conditions

The London council leaders in their letter to Jack Straw say: "We are concerned that the proposals undermine the current definition of nuisance and place the emphasis on the objector to 'prove their case' [sic]We feel that the presumption should be that the applicant must demonstrate that minimal nuisance will be caused, whether or not there are any formal objections."

Similarly, the IAS believes that the proposals for objecting to licences place unreasonable burdens on local residents and will prove strong disincentives to their pursuing such a course. "Sometimes, local residents will have legitimate cause for complaint arising from the characteristics of specific, badly managed premises. In these cases, the proposed new police power to close disorderly premises will be helpful. However, we are concerned that the White Paper appears to deny local residents any means of appealing against a decision of the licensing authority to refuse to review a licence. We accept that it is necessary to discourage flippant or malicious objections, but to deny local residents any means of redress at all is surely going too far

"Where applications for a new licence or late trading are concerned, we consider it an unjustifiably onerous burden on local residents that they should be expected to prove in advance that their lives will be `unreasonably' disrupted. Natural justice surely dictates that it should be incumbent on the party whose action might inflict damage on others to establish the acceptability of the proposals

"On the basis of the Government's proposals, not only must the unfortunate local residents find a way of fighting and funding this unequal contest, they must do so in the knowledge that if they lose the case on appeal, they could have all the costs awarded against them

"As the defining criteria of 'reasonable objections' to new applications laid down in the White Paper are patently too restrictive, it follows that there should not be presumption in favour of granting a licence without a hearing in the absence of objections. In our view, the licensing authority should not be able to abdicate its responsibilities in this way: all applications should be examined to ensure that they are compatible with the public interest and the process of examination should always be conducted in public."

Fair Procedures and Appeals

"The most conspicuous feature of the Government's proposals regarding appeals," says the IAS, "is their lack of clarity. The relevant paragraphsconsist of self-contradictory statements which assert both that the appeal courts will be able to re-consider the merits of the case and also that they will not be able to do so, as they will be restricted to legal and procedural matters."

Children and young people

The IAS welcomes the conclusion "that the time is not right to lower the current age limit to 16 or 17. We are, however, concerned by the clear implication that the Government could yet be persuaded to change its mind, an impression reinforced by this being one of the few issues on which the White Paper explicitly seeks views.

" There is minimal [public] support – less than 10 per cent - for any lowering of the legal age. Over three-quarters of the population favour retaining the present law.

There is more support for raising the legal age than for lowering it."

The response supports in principle all the proposals to tighten "the law on sales of alcohol to under 18's. As usual, however, there are some aspects requiring clarification." On the subject of access to licensed premises, the IAS says: "We accept that the necessity and applicability of children's certificates is reduced by the blurring of the old distinctions between different kinds of outlet. We fear, however, that the vagueness of the White Paper in relation to the alternative safeguards proposed by the Government suggests that they are unlikely to be adequate." In a jointly-signed submission to the Home Office, Chairman of Camden's Environment Sub-Committee and the local police commander say that they too are concerned about the powers likely to be available to the licensing authorities to control children's access to licensed premises. "This should not be left to the discretion of the licensee particularly in areas where there are many vulnerable young rough sleepers or where entertainment venues are aimed at young people."

On this subject, the IAS continues: "In the first place, the White Paper gives no indication of what criteria will be employed by the licensing authorities to determine which premises are unsuitable for unaccompanied children, and whether licensing authorities will be free to select their own criteria or whether they will be nationally laid down.

"Secondly, in relation to premises deemed to be unsuitable for unaccompanied children, the White Paper refers to the children having to be "supervised by an accompanying adult". Unfortunately, neither of these terms is defined. Presumably, "supervision" refers to something more than the mere fact of being "accompanied", or the White Paper would have referred simply to children having to be accompanied by an adult, but what is that extra something? And what indeed is the meaning of "accompanied"? Presumably, the term implies at least being immediately available if needed, but would this require being in the same room, or merely arriving and departing from the building together?

"Thirdly, whatever criteria are chosen in regard to the (un)suitability of premises for unaccompanied children, these features are not necessarily permanent and unalterable. Licensed premises can change their clientele and hence their character quite markedly over time, even regularly during different times of the day and the week. The same pub can provide a very different environment at lunchtimes compared with late at night or at weekends. Is it the Government's intention that even young children (normally unaccompanied) should have free access to licensed premises all the time they are open, irrespective of any changes in the environment they provide? Alternatively, if children's unaccompanied access to licensed premises is to be restricted to times considered suitable, how is this to be managed?

"There is of course a significant and growing problem of under-age drinking, but there is no justification for implying, as the White Paper does, that the problem of alcohol misuse and the problem of underage drinking are one and the same. It is probable that more serious damage is done to young people as a result of adult drinking than their own, the very adult drinking that the Government's proposals are likely to increase.

"We share the Government's wish to improve public knowledge and understanding of underage drinking. We are, however, curious as to why the only organisation whose work in this area is recognised in the White Paper is the Portman Group. There are in fact a number of organisations which have been doing good work in this area for rather longer, and for less self-interested reasons than the Portman Group. Presumably, the Government has its reasons for ignoring them."

Alcohol Concern, who might well see themselves as falling into the category adumbrated in the IAS's response, echo the concerns of Camden Council and Police about under-age drinking and access to licensed premises.

The Criterion of Need

The IAS notes the failure of the White Paper to offer any justification for what has clearly become the Government's view that the market alone, and not the licensing authorities, should decide how many licensed outlets there are in any locality:

"The White Paper states that decisions on whether to grant a new licence should be confined to considerations regarding impact on crime and disorder, public safety and 'unreasonable public nuisance'. It accepts uncritically the current view of the Brewers and Licensed Retailers that the licensing authorities should not be able to take into account 'commercial matters such as the economic demand for a new venue'.

"We agree that assessing the commercial viability of a new venture is not a proper function of the licensing authority, but protecting the public interest is. In our view, that requires having a adequate means of controlling the number of licensed outlets in a locality.

"There is good evidence that some alcohol related problems stem less from individually identifiable, badly managed premises than from the density of licensed outlets in a locality. These problems include drunkenness convictions, drink driving and admissions to hospital accident and emergency departments.

"Some may consider it strange, therefore, that a Government about to launch a strategy for tackling alcohol related problems should propose a new system preventing licensing authorities from taking into account these very considerations. At the very least, the research findings in regard to the density of outlets surely provide further reason for ensuring that the impact of the new licensing system is carefully monitored and assessed so that corrective actions can be taken if necessary.

"We are not convinced that the powers granted to local authorities under the planning procedures enable them to exercise sufficient control of the number of outlets

"Nor does the White Paper offer any justification for abolishing the `criterion of need' in licensing law, or for rejecting the Scottish model which allows licensing authorities to reject applications for new licences on grounds of `over-provision'. These issues are not discussed at all in the White Paper.

"We believe it is in the public interest that such a power be retained in some form. Proposing to abolish it is one of the features of the White Paper that gives the lie to the Government's claim that it seeks to empower local communities. There is overwhelming public support for residents to have the right to object if they think an excessive number of pubs and clubs are being opened in a locality. In our view, the criterion of need or over-provision is essential if that right is to be meaningfully exercised

"In the UK, a former Home Secretary (David Waddington) urged Magistrates to use the power that the present Government seeks to abolish in order to prevent what he called `alcohol flashpoints' - an over-concentration of licensed outlets in a locality, in order to reduce public order problems. More recently, Superintendent Brian Wroe of Greater Manchester Police referred to the problem caused by the continuing explosion of new bars in the city centre, where in the last ten years the number of bars has doubled from 220 to 500, and where between 1998 and 1999, the number of recorded assaults outside bars and clubs rose by 30 per cent.

"This view is shared by some in the licensed trade. In Scotland, the then president of the Licensed Trade Association identified over-provision of outlets as one of the main problems facing the industry and as a significant cause of alcohol abuse. He said that too many outlets were chasing insufficient trade by means of sales promotion and corner cutting, accepting lower profits so that there was less money available for reinvestment and staff training."

Licensing Hours

The IAS makes it clear that it does "not object on principle to any extension of licensing hours. In our view, the priority should be to make the licensing system democratic, more accessible and responsive to local communities. It follows that those who wish to extend licensing hours should have the right to do so. Equally, longer hours should not be imposed on localities that do not want them. The evidence suggests that most will not. We assume that there is greater demand for extended hours in town and city centres than in residential areas.

"None of tis, however, implies agreement with the Government's proposal for complete de-regulation of closing times, a proposal to which the great majority of the public, especially women, are opposed and which, if implemented, is likely to impose considerable burdens on local communities and, ultimately, the wider society.

"We are particularly concerned that the effect of the Government's proposals will be to prevent the licensing authority from operating a coherent policy on licensing hours for its districtThis proposal in particular reveals the Government's claim that it seeks to empower local communities as mere pretence."

The Argument

"The principal claim," says the IAS, "is the ludicrous one that the sole reason for drunken disorder on our streets is the restrictions introduced during the First World War 'to keep the munitions workers sober'. The clear implication of this story is that both licensing controls and drunkenness are inventions of the early C20th, an eccentric reading of British history but one to which both the White Paper and the Home Secretary in his statement to the House of Commons appear to subscribe.

"According to the mythology that has been so assiduously constructed, these restrictions are the cause of all the problems. Only get rid of them, we are assured, and there will be no bingeing and drunkenness: we shall become like the French and the Spanish, who, apparently, are entirely free of alcohol problems."

The response highlights the absurdity of the chart, published in the White Paper and drawn to the attention of Members by the Home Secretary in the House of Commons. Alert (Issue no.2, 2000) has already pointed out that, so far from indicating that public disorder is caused by "the eleven o'clock swill", the chart shows clearly that pub closing time is irrelevant: the same number of incidents of public disorder occur at four and five o'clock in the afternoon as at eleven o'clock at night.

If the Home Secretary seriously believes the 11pm pub closing to be the cause of so much public disorder, "it is worth noting the irony that the effects of this restriction must now be exactly the opposite of what they were when first introduced.

'A transformation of the night scenes of London has followed the closing of the public house at 11 o'clock .. The police instead of having to move on numbers of people who have been dislodged from bars at 12.30 at night, found very little intoxication to deal with, the last hour and a half being responsible for much of the excess of which complaint is made.'

"This comment was not made by any individual or organisation with 'anti-alcohol' views: it was contained in an editorial in the Brewers' Gazette. Testimony to the beneficial effects of 11pm closing was also given by Sir Edgar Saunders, then director of the Brewers' Society, in evidence to the Royal Commission on Liquor Licensing in 1931."

Who will make use of the extra hours?

The White Paper implies that present closing times are a considerable inconvenience to the bulk of the population, who are very keen to have the opportunity of drinking late through the night. "None of this," says the IAS, "is true.

"Only a relatively small minority - around 20 per cent - say that they will make use of extended drinking hours at all frequently. This minority is made up disproportionately of people who, presumably, the Government and the alcohol industry would describe as 'alcohol abusers'. Those who exceed the recommended 'sensible limits' promoted by the Government and the industry are twice as likely as those who do not to say that will make use of the extra hours. This is the same pattern that has already been found in relation to previous extensions of drinking hours in the UK and elsewhere. Evaluation of the 1988 Licensing Act showed that the more heavily people drank, the more likely they were to make use of the later drinking hours: 60%-88% of men exceeding the 'sensible limits' reported later drinking in pubs, compared with just 22% of 'sensible drinkers'. In one Australian study, two thirds of those drinking in bars late at night were found to show signs of alcohol dependence.

"A conspicuous irony of the Government's proposals, therefore, is that the economic viability of extended drinking hours is clearly going to depend to a large extent on the custom of the very groups of people whose drinking the national alcohol strategy will presumably seek to reduce.

"The White Paper contains a list of improvements that 'research shows' de-regulation will bring about. Unfortunately, the source of this 'research' is not an authentic academic publication, but a book published eight years ago on behalf of the Portman Group, an association comprised of some of the very brewing companies which have campaigned most vigorously for extended drinking hours.

When this book first appeared, it was condemned by a reviewer as being of such poor quality that, had it been submitted for peer review, it would have been rejected for publication.

"The White Paper ignores completely the authentic scientific literature on the subject. Generally, this finds that while increased hours of trading may not increase the overall level of alcohol consumption (at least where alcohol is already widely available), they do increase the problems associated with consumption. A recent publication summarised the international research evidence as follows:

  • Increases in hours of sale are consistently related to increases in alcohol-related harm, including traffic injury, street disorder and violence.

  • Later and longer hours for alcohol sales contribute disproportionately to heavier drinking and drunken behaviour.

These findings, of course, confound the whole premise of the White Paper."

The response then turns to the evidence for Scotland being a model of peace and sobriety as a result of de-regulated closing: "Even the Portman Group report concludes that the Scottish evidence is too ambiguous to draw definite conclusions in regard to the effects of changes in permitted hours.

"However, the only other source cited in the White Paper, the Home Office report Alcohol and Crime: Taking Stock, states: 'The Scottish experience of more liberal drinking hours appears to have worked well, changing the masculine binge drinking culture to a slower drinking, female-friendly environment.'

"No evidence in support of these claims is given." Indeed, the response quotes telling evidence to the contrary, including the views of the Chief Constable of Aberdeen who "blamed the late-night opening policy for a growing problem of disorder on the streetsA year after the chief constable's comments, the Scottish Office sent a circular to all the licensing boards which stated:

'From recent representations to the Secretary of State, it is clear that, in a number of licensing board areas, the proliferation of regular late night extensions is causing difficulty and distress to local residents, and to police in the maintenance of order in the early hours of the morning, out of all proportion to any benefit the community may derive from the grant of such extensions.'

"In Edinburgh, the Safer Edinburgh project team concluded that the liberalisation of the licensing law had gone too far, "meeting the interests of the licensed trade and a small section of the drinking public at the expense of the wider community". Part of the problem was that lack of a uniform closing time resulted in considerable numbers of people wandering homewards through the city centre throughout the night. The random incidents that occurred in consequence led to police resources being over-stretched.

"A reduction in late night drink-related violence and disorder emerged as one of the main priorities of the Safer Edinburgh Project. Statistics provided by Lothian Police show that substantial improvements resulted from the re-imposition of restrictions on late night opening and the reintroduction of zone closing, ie set closing times in a specified geographical district.

"It is particularly disturbing that the policy that proved beneficial in Edinburgh is precisely the option that the Government has rejected for England and Wales."

The IAS's response goes on to provide evidence from the Netherlands, New Zealand, and Australia that late night opening has the opposite effect from that envisaged by the Government.

Sundays

"On one particular issue," the response says, pulling no punches, "the Government threatens not so much to ignore public opinion as to treat it with utter contempt. The majority of the public are opposed to greatly extended drinking hours on any day of the week but especially on Sundays. The Government rejects the possibility of any special arrangements for Sundays on the grounds that we live 'in a multi-cultural and diverse society in which a great range of days are held by certain groups to be sacred or special'. The 'only sensible approach', therefore, is to treat each day equally in respect to licensing law.

"There is no justification for assuming that religion provides the only reasons anyone could have for objecting to extended drinking hours on Sundays. On the contrary, unless there were good secular reasons involved, it is very unlikely that the majority against extended drinking hours on Sundays would be as large as in fact it is.

"We are, however, dismayed by the arrogance of the Government in dismissing as unworthy of consideration or respect the cultural heritage shared by the vast majority of the population it is supposed to represent. This attitude is particularly objectionable in a Government that claims, obviously hypocritically, 'to love British history, Britain's cultural heritage (and) the British way of life'.

"As well as arrogance, there is dishonesty involved here. The Government recently sought to amend the Sunday Observance law on the basis of an assurance that, in order to protect local residents, before deciding whether to allow the sale of alcohol late at night, the licensing authorities would be required to consider 'the special nature of Sundays'.

Economic Considerations

The White Paper goes on to detail the cost savings to the alcohol industry as a result of the Government's proposals. The IAS makes the point, however, that it does not "address the question of what savings or, alternatively, additional costs will be experienced by the taxpayer. The implication of the White Paper is, of course, that the decreased levels of crime and disorder it promises will save taxpayers' money by reducing the costs of policing.

"Experience from abroad suggests, however, that the opposite is more likely to be case".

"In our view, there is no acceptable case for forcing the ordinary taxpayer to subsidise late night opening. We believe that the obvious sources of the money are the licensed premises themselves: there shoud be a special charge for late trading licenses, large enough to cover additonal costs".