Power to Adjourn Summary Reviews

In an ideal world, statutory tribunals with the responsibility of deciding applications made to them would have discretion to “do the right thing” when procedural issues arise, on a case-by-case basis. In the far-from ideal world of licensing regulation they do not have that luxury – a realisation driven home to me in a couple of summary reviews I was involved in shortly before and after Christmas 2022, where the absence of a broad discretion to adjourn was keenly felt.

Section 53A(2) of the Licensing Act 2003

Section 53A(2) of the Licensing Act 2003 provides that on receipt of an application for summary review of a premises licence, the relevant authority is required (a) within 48 hours of receiving the application to consider whether it is necessary to impose  interim steps ; and (b) within 28 days to review the licence under section 53C. The clear parliamentary intent is that if alcohol-licensed premises are associated with serious crime and/or disorder, then a review of the premises licence should take place without undue delay. But what if the rigid limit of 28 days does injustice to either or both parties to the review? What if the last-minute service of evidence leaves insufficient opportunity for a considered response? What if the very haste of getting everything together in 28 days undermines the licensing objectives? There should be power in the licensing authority to adjourn the section 53C hearing when it is in the public interest to do so – but there is not. Even if the police, the licensee, and all interested parties want an adjournment, the licensing authority has no power to give them one.

That, to my mind, is deeply regrettable.

General Power to Adjourn: The Licensing Act 2003 (Hearings) Regulations 2005 –

The general power to adjourn a licensing hearing is given by regulation 12 of The Licensing Act 2003 (Hearings) Regulations 2005 –

12 (1) Subject to regulation 13, an authority may—

(a) adjourn a hearing to a specified date, or

(b) arrange for a hearing to be held on specified additional dates,

where it considers this to be necessary for its consideration of any representations or notice made by a party.

As originally drafted, regulation 13 provides that a licensing authority may not adjourn a hearing in two situations, neither of which is relevant to summary review proceedings. But on 27 August 2007 The Secretary of State laid The Licensing Act (Summary Review of Premises Licences) Regulations 2007 before Parliament. The Regulations came into force on 1 October 2007. My search of Hansard indicates that the Regulations were not debated. Regulation 3(6) amends regulation 13 of the Hearings Regulations by the addition of a third situation in which an adjournment of a hearing is prohibited: The amended regulation 13 reads (so far as material) –

13. An authority may not exercise its power [to adjourn] in such a way that the effect will be that –

(a)…

(b)…

(c) it would fail to reach a determination on a review under section 53A (summary reviews on application of senior police officer) within the period specified in subsection (2)(b) of that section.” – i.e. 28 days.

An Explanatory Memorandum to the 2007 Regulations explains that the amended regulation 13 aims “to strike a balance between the need to ensure the expedited procedure works efficiently, and to ensure that the rights of the parties to the procedure are protected.” That is a legitimate, and wholly understandable, aim. But the failure to build-in a slip rule of some kind, dependant on the usual factors – that no one is prejudiced, that the interests of justice so require, or imply that that the parties agree – is unfortunate.

Public Interest

The issues in the two summary reviews I have mentioned are ongoing, so I will say no more about them than this: the public interest would have been better served if there had been authority in the licensing sub-committees to adjourn the section 53C reviews – in one of those cases a few days would have sufficed; in the other, there was universal agreement that a much longer period was required. The need for adjournment of a section 53C review may arise infrequently, but I have no doubt that readers of this article will have experienced their own frustration at the inflexibility of the 28-day period.

I have written to the Home Secretary raising the matter summarised above. I have yet to receive a reply or an acknowledgement of receipt.

Postscript

I should add, by way of a postscript, that the regrettable restriction of a licensing authority’s power to adjourn is symptomatic of a more widespread legislative malaise – over-regulation: the misguided thinking that every eventuality can be predicted, and a rule invented to address it. Over the years I have been in practice, I have witnessed the relentless erosion of the areas in which licensing judgment can be exercised – judgement being the touchstone of decision-making! – and in its place, inflexible rules, not always thought-through, and frequently a barrier to a sensible outcome.

Even the general power to adjourn licensing hearings is unnecessarily micro-managed: regulation 12(1) gives a power to adjourn only when the licensing authority considers it is “necessary for its consideration of any representations or notice made by a party”. Why not “when it is in the interest of justice”? As worded, regulation 12 has provoked discussions with many a licensing officer as to whether a sub-committee has the power to grant an adjournment, in circumstance in which the desirability of an adjournment is agreed by all, and the public interest shouted from the rooftops!

Gerald Gouriet KC

Francis Taylor Building

Inner Temple

 

(First published by Institute of Licensing: “Link Magazine”, Issue #16 February 2023)