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Licensing Act review committee calls for 'radical comprehensive overhaul'

Out-Law News | 04 Apr 2017 | 3:28 pm | 3 min. read

Licensing laws in England and Wales should be changed to give local planning authorities responsibility for determining the rights of businesses to sell alcohol on their premises, according to a House of Lords committee.

In a new report, the committee set up to scrutinise the operation of the 2003 Licensing Act in England and Wales said that a "radical comprehensive overhaul" of the Act is needed. The overhaul should see an end being put to the practice of special licensing committees within local authorities ruling on licensing issues, and also include reforms to the appeals process, it said.

The committee said it had received evidence criticising the current system, including in relation to "haphazard decision-making" by some councillors who sit on licensing committees.

Licensing law expert Christopher Rees-Gay of Pinsent Masons, the law firm behind Out-Law.com, said: "The report is long and detailed and makes a great many recommendations. The most far-reaching changes relate to the abolition of ‘licensing sub-committees’ and instead for ‘planning committees’ to take on licensing hearings. Also, that licensing appeals be heard by the planning inspectorate, rather than the Magistrates’ courts, as they currently are."

The committee recommended that the transfer of the functions of local authority licensing committees and sub-committees to the planning committees should only happen after the move is piloted "over a small but representative sample of local authorities over perhaps two years".

"It will obviously be for the government to determine which measures that it adopts, but these would be fundamental changes to the current system and will by their very nature mean that planning will play a far greater role in future activities," Rees-Gay said. "It is too early to comment on what ramifications this will have for applicants or local residents alike and when these changes, if adopted, may be implemented. In terms of timescales, the Lords committee accept that these ‘recommendations can only be implemented in a matter of years rather than months’."

Other reforms recommended by the committee include the potential abolishment of the 'Late Night Levy' that licensing authorities in England and Wales have had the power to impose on local businesses since 2011.

The policy is designed to enable licensing authorities to collect a contribution towards policing the night time economy from late-opening businesses that sell alcohol. However, the committee said that the government should have the chance to amend the system over the next two years to address concerns expressed by businesses the levy is only used as a means for raising additional taxation. The committee also said that 'Early Morning Restriction Orders' should be abolished after finding that they had not been implemented by local licensing authorities.

The committee's report also called on the government to make sales of alcohol at UK airports subject to licensing restrictions under the Licensing Act.

It also backed plans for minimum unit pricing (MUP) for alcohol to be introduced across England and Wales, "assuming" the measure is introduced in Scotland first and is assessed as being successful.

Legislation to introduce a MUP was passed by the Scottish Parliament in May 2012. The Alcohol (Minimum Pricing) (Scotland) Act prohibits the sale of alcohol below a minimum price, calculated on the basis of the drink's alcoholic content. Scottish ministers drafted regulations setting a £0.50 MUP in 2013. However, introduction of the MUP in Scotland has been delayed as a result of an ongoing legal challenge led by the Scotch Whisky Association (SWA).

The legal challenge went all the way to the EU's highest court, which issued a ruling in December 2015. The Court of Justice of the EU (CJEU) said the MUP is potentially in breach of EU law as it is "liable to undermine competition by preventing some producers or importers from taking advantage of lower cost prices so as to offer more attractive retail selling prices". However, it said the policy may be permitted on public health grounds provided that it is proportionate. The CJEU referred the case back to the Scottish courts.

In October last year, the planned introduction of MUP in Scotland received the backing of the Inner House of the Court of Session. The Edinburgh court ruled that the measures proposed by the Scottish Government were proportionate and that simply increasing tax, which had been proposed by the SWA as an alternative measure, would not have the same effect. However, the SWA has submitted an appeal against that ruling before the UK's Supreme Court.

The committee said that, if MUP is introduced in Scotland, the measure should then be introduced in England and Wales after "Scottish ministers have published their statutory assessment of the working of MUP, if that assessment demonstrates that the policy is successful". The statutory assessment of the MUP in Scotland will not happen until 2023 at the earliest, according to the committee's report.

The UK government should also "look at other ways in which taxation and pricing can be used to control excessive consumption", the committee said.

The government is expected to issue its response to the committee's report within two months.