What reform really means for you

The Home Office's consultation paper - Rebalancing the Licensing Act - sets out the government's proposals for an overhaul of licensing. They represent a radical reform of licensing law in record time - the government intends to enact the changes by November 2011.

The proposal to make licensing authorities "responsible authorities", so they can refuse or review licences in the absence of representations from other parties, is of major concern. Some councils have been campaigning for this, but it would blur the line between interested party and decision-maker, which could cause, or give the appearance of, bias.

Shifting the burden of proof, meanwhile, will require applicants to satisfy a higher evidential test, if their applications are to succeed. Councils will no longer be required to demonstrate that their decisions are "necessary" for the promotion of the licensing objectives, but will need instead to "consider more widely what actions are most appropriate to promote the licensing objectives in their area". This departure from a necessity-based approach could mean increased speculation creeping into decision-making, with more refusals of applications and the imposition of more stringent conditions.

Forcing councils to accept any police representations and implement all their recommendations unless they are clearly not relevant will limit the licensing authority's discretion and use of local knowledge. This might lead to a slew of judicial reviews on what is, and is not, "relevant".

This becomes more worrying still when one considers recent revelations that some police forces at licensing hearings are using evidence gathered from those arrested for being drunk.

Stuff of nightmares​

The government considers that the concept of "vicinity" in the current legislation creates uncertainty - so it is proposing to scrap it. The prospect of residents up and down the land being able to object to your licence application is the stuff of nightmares. And it is easy to imagine a health authority making representations about the impact of any application on the local A&E department and ambulance service.

The government thinks that magistrates should generally send any appeal straight back to the licensing authority, only adjudicating upon it if necessary. This would remove crucial judicial supervision - apart from via the considerably more expensive judicial review route. While the consultation stresses that the right to a free trial would be preserved, it is difficult to see how this will be achieved.

If the proposals go through, lodging an appeal will no longer suspend a decision made by a licensing authority. So if your licence is revoked upon review, you will not be able to trade until you win an appeal, which rather begs the question of how the appeal will be funded.

The government is planning to abolish the unpopular alcohol disorder zones and, instead, allow councils to charge a "late-night levy" for premises that trade past midnight.

This will pay for additional policing, street cleaning and taxi marshals. It seems that the decision as to whether you are charged will depend on the hours on your licence, rather than the hours you actually use. Licensees may be tempted to apply to shrink their hours to fit. They will still be hit by the proposals for increased fees across the board, designed to enable councils to recoup their full costs.

In a complete reversal of the current legislation, the government is trying to achieve "zoning". It will publish guidance encouraging authorities down this route, reminding them of their powers to restrict licensed hours. Councils will be free to use Early Morning Restriction Orders at any time, rather than between 3am and 6am, as is now the case. These are all retrograde steps that will encourage the standardised, fixed closing times area by area, that we thought were history.

One of the coalition government's commitments was to double the maximum fine for making an under-age sale to £20,000. Alongside this, the closure notice scheme, which exists as an alternative to prosecution, looks set to change.

Currently, the maximum period of closure under such a notice is 48 hours. The government is proposing a minimum period of 168 hours (seven days) and seeks views on what the new maximum period should be. It is also suggesting that premises that persistently sell alcohol to children should automatically have their licences reviewed.

A radical shake-up of the temporary event notice (TEN) system is also proposed, which will drastically reduce its flexibility and fitness for purpose. This represents a marked departure from the "light touch bureaucracy" approach of the previous government. Suggestions include giving the police five days to object instead of two and allowing all "responsible authorities" to object under any of the licensing objectives. This government takes the view that more notice should be given of a TEN - it suggests a month, which seems a tall order.

Regrettable​

It is regrettable that the government seems intent on rushing these proposals through. They have not been adequately costed and no evidential basis in support has been published.

Surely such radical reform should be the subject of a designated Licensing Bill? To press on before the Public Health White Paper is published seems ill-conceived - particularly when one considers all the powers to tackle problem drinking that already exist.

But there is still time for you to have your say, via the Home Office website. Responses must be received by September 8.

If these proposals are adopted, life will become more difficult, so you may wish to consider bringing new licence or variation applications forward.

The main proposals at a glance

• Power for councils to refuse and review licences even where no representations received

• Residents able to make representations wherever they live in the country

• Health bodies to be new "responsible authority" and prevention of health harm new licensing objective

• New "interested parties", including school governors and housing associations

• Councils obliged to give greater weight to police representations and implement their every recommendation unless "clearly not relevant"

• Number of appeals limited - generally magistrates will have to send the case back to the council

• An appeal will no longer suspend the measures the council has imposed

• Burden of proof will shift - you will have to show that your premises will not have a negative effect on the area

• Licensing authorities will be encouraged to restrict licensing hours and use staggered and fixed closing times and zoning

• Councils will be free to decide when to use Early Morning Restriction Orders (EMROs)

• Introduction of a "late-night levy" - premises trading later will pay more for their licences

• Licence fees to be increased across the board

• Licences will be revoked automatically if the annual fee is not paid

• Maximum fine for underage sales to be doubled to £20,000 and period of closure under a closure notice to be at least seven days

• Any premises persistently making underage sales will automatically have its licence reviewed

• A crackdown on temporary events - and all "responsible authorities" to have the power to object.