Coulson: contracting out in Bexley

By Peter Coulson

- Last updated on GMT

Related tags: Licensing act, Law

Coulson: contracting out in Bexley
MA legal editor Peter Coulson says there is no legal basis for Bexley's acceptable behaviour contract

Licensees in the London Borough of Bexley receiving an official letter and an "Acceptable Behaviour Contract" might well assume that there is some legal basis for this document.

It is couched in legal language, the covering letter is signed by the licensing manager and the contract itself is already signed and dated by the head of public protection and the chief inspector of Bexley police.

So what form of contract is it? What is the "valuable consideration" that the licence holder receives if they sign it? What obligation does it place upon the two signatories who have already entered into it?

The short answer is: nothing. It is not a contract. It is an attempt to extract a binding undertaking from all the licensees in Bexley to follow a particular course of action, under the thinly-veiled threat that if they do not do so, their licence might be up for review.

There is nothing wrong with Challenge 21. It is endorsed and supported by trade bodies as a way of ensuring compliance with the law in respect of underage sales.

But it is not part of the law of the land and it is not contained in the Licensing Act.

The majority of the licensees in Bexley do not have it inserted as a condition on their licence, simply because there has been no reason to do so, because they are law-abiding and do not sell to those under 18.

The statutory Guidance on the Licensing Act has already made it clear to licensing authorities that standard or blanket conditions should be avoided. This appears to me to be an attempt to impose not only a standard condition on Challenge 21 but also a series of additional obligations on the licence-holder, to which they may well be held.

The so-called "contract" obliges the licensee to keep records of challenges and of training of staff, such records to be available to the police and council officers "on demand".

Did the people who put this contract together take legal advice before doing so? Did they look at the terms of the Licensing Act and the Guidance about proportionality and accountability? Or did they think it was a "good idea" to place all licensees in this invidious position, signing up to a purported contract on pain of further police action?

Step too far

No, this is a step too far. Undertakings were outlawed by the new licensing laws. That much was made clear from the start.

The only obligation on licence-holders is to follow the law of the land and the conditions on their licence. There is absolutely no obligation on the licensees of Bexley to sign this ill-conceived and thoughtless document.

It is, of course, a marvellous way of getting round the law as well. There are certain licences and permissions where the licensing authority is not empowered to impose conditions at all.

Why not present those who apply with this type of document, so that the authorities can extract undertakings which might bind them? Who needs the law when you have a contract?

The debate on this will also cover the fact that the borough's licensing manager was the person who signed the covering letter which arrived with this pre-signed document. What does that say about impartiality and proper management of licensing?

There has been much debate about the role of licensing officers, but one thing is clear — they should not be partisan and certainly not involved in something that threatens a licence review for non-compliance. That is not their function at all.

All this presents a thoroughly unsatisfactory state of affairs. I think it is time for a "Challenge Bexley" policy.

I will personally volunteer to run a training course for officers and police on the proper working of the Licensing Act and impartiality in licensing administration.

Oh, and they will have to sign a contract at the end of it.

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