Licensing: The Negative Side of “Positive Partnerships”

Article for the NLJ written in June 2017

Introduction – and apology

I wrote this article for the NLJ back in June. But the cant words – ‘partnership-working’, ‘stakeholders’ , ‘strategies’, etc. – seem never out of vogue. The fallout from the recent Uber  licensing decision is replete with them. So I thought it fitting to re-publish the article here on my website.

Positive Partnerships

It will have come and gone by the time this article is published – but as I sit down to write, the Institute of Licensing is promoting the first day of its “National Licensing Week”. Day 1 has been given the title: “Positive Partnerships”. (It is my devout hope that we do not have alliterative titles for each of the remaining days.)

The IOL enthuses: “…the best results are achieved when regulators and businesses work together because ultimately both parties aim for the same outcome – safe and well managed premises, places and environments.” But is that right? It is not unknown for businesses to aim for maximum profit; and many regulators have not the resources to work effectively by themselves, let alone in partnership with the licensed trade – some regulators have even been suspected by uncharitable minds of opting for compromise and an easy life.

Licensing bodies

The good done by various bodies such as National Pub Watch, Best Bar None or Purple Flag, should not be minimised: but neither should it be exaggerated. ‘Working in partnership’ should not be an end in itself, or held out to be the solution to all ills. When things go wrong with licensed premises – drunk and rowdy customers late at night and in the early hours of the morning, doorways used as public toilets, serious disorder, the permitted/encouraged culture of drugs misuse, etc., etc. – the complete remedy is unlikely to be found in ‘strengthening the partnership between licensee and regulator’.

Evidence to House of Lords Select Committee

The current fixation on partnership-working seems to assume that every consequence of it is desirable. Some consequences are not. When I gave evidence to the House of Lords Select Committee on the Licensing Act 2003, I voiced a concern that was reflected in the ensuing Report. I said –

“I am concerned at the growing extent to which decisions are influenced (if not effectively taken) by the result of discussions taking place behind closed doors, at which not all interested persons are present … there should be much greater transparency regarding these behind-closed-doors meetings. In particular, it is essential that reasons are given (by the relevant responsible authorities) for not making representations if there is an otherwise contested application … pre-hearing consultation can sail too close to the equivalent of a hearing.”

I gave the Select Committee an example, which may be taken as descriptive of a number of cases in which I have recently been involved:

• An application is made in a cumulative impact area.
• There is residential objection, as well as initial objection from the police and other licensing authorities.
• Meetings take place between the responsible authorities and the applicant and his legal team. (‘Partnerships’ in action.) As a result of those meetings the responsible authorities withdraw their representations.
• What is said at those meetings is not made public. All that a licensing committee (or magistrates’ court on appeal) hears is that “the police do not object”, or “the responsible authorities have no concerns”. The police and responsible authorities frequently do not attend the licensing hearing. The basis upon which they have decided not to object is never known, and therefore never examined critically.
• The objecting resident or association is left high and dry, often being asked “have all the responsible authorities got it wrong?” – when in fact no one knows if they have got it wrong or right: all we know is that they have made no representation, we do not know upon what basis.
• The application is granted, undue weight being given to the fact (but not the reasons behind) absence of police objection, and little scrutiny being given to the application itself.

Meetings behind closed doors – positive partnerships?

Sometimes (rarely) one gets to hear what has been said at the private meetings between the authorities and an applicant. At other times it may reasonably be inferred that the authorities have been told a similar story to the one told to the residents in trying to persuade them not to object. An applicant may say (and increasingly does so – there is almost a ‘cut and paste’ of the popular phrases, from application to application): “we have similar premises elsewhere – there is only background music; our customers are mature (not the 18-25s); there is no dancing; we serve food throughout opening hours; we are more a restaurant than a bar.”

The truth (for anyone that has the opportunity and inclination to look for themselves) may be that there is music and dancing – in a recent case it was found that there was a DJ playing loud dance music, where the applicant had told the police there would only be background music – and that there is an availability of food, rather than the service of it (as promised to the police), and that similar operations run by the applicant elsewhere are bars after all, not restaurants, and frequented by students, not “discerning patrons”. In one case in which I was involved, investigation by local residents found that student discounts were offered – where assurances had been given to the police that the franchise was not aimed at the student market.

Meetings with the Police – proper partnerships?

I have been told by police officers that they have neither the resources nor the time to investigate the truthfulness or otherwise of the various assurances and assertions made. Their lack of objection to a licensing application is no better than: “If what we have been told is true, then there is no ground for objection” – but it is held out by applicants (and accepted by committees) as being support.

In a recent hearing in which I acted for a residents’ association that had put in an adverse representation, the applicant had had private discussions with the police, and had persuaded them to withdraw their objection: no one knew exactly what the police had been told. What the licensing committee did know, however, perhaps because the residents drew attention to it, was that there was a private entrance/exit from a number of ‘VIP Rooms’, (in what had been described in the operating schedule simply as a ‘restaurant’), that led down to a subterranean car park. The licensing committee were understandably concerned as to the security issues arising, and for that reason, amongst others, dismissed the application in its entirety. It is unlikely that the police were fully aware of the ‘VIP’ entrance/exit: if they had been, it is difficult to understand the basis upon which they withdrew their representation.

Home office guidance is that “The police should be the licensing authority’s main source of advice on matters relating to the prevention of crime and disorder licensing objective… The licensing authority should accept all reasonable and proportionate representations made by the police unless the authority has evidence that to do so would not be appropriate for the promotion of the licensing objectives.” That guidance is wrongly interpreted by licensing authorities: absence of police (and other) objection is too frequently equated to a representation in favour, and taken as determinative of a decision to grant the application. The House of Lords Select Committee recommended that that part of the Guidance be removed: and I wholly agree.

Conclusion

Of course regulator/business partnerships are desirable. The Licensing Act 2003 encourages them, as does the Guidance to the Gambling Act 2005: but no one there suggests they are a cure-all. What a perfect world it would be! – something out of Voltaire’s ‘Candide’ – if all that were needed is the coming-together in partnership of like-minded ‘stakeholders’, for the common good of the community.

It would be a great pity if the current preoccupation with partnerships, and the sometimes wishful benefits attributed to them, allowed our eyes to be taken off the need to address real problems, occurring and reoccurring week after week, and the need to take effective action to deal with them.