The Licensing Act 2003: Liberal Constraint?
| DOI | http://doi.org/10.1111/j.1468-2230.2005.00537.x |
| Author | Roy Light |
| Date | 01 March 2005 |
| Published date | 01 March 2005 |
LEGISLATION
The Licensing Act 2003: Liberal Constraint?
Roy Light
n
INTRODUCTION
Based broadly on the White Paper
1
published in April 2000 and introduced into
the Lords on14 November 2002, the Licensing Bill received the Royal Assent on
10 July 2003.
2
Originally intended to become fully operational in July 2004, this
date has been putback to November 2005.
3
The Act aims,procedurally, to update,
simplify and codif yalcohol a nd entertainment licen sing lawa nd, substantively, to
allow ‘the responsible majority of people more freedom and choice about how
they spend their leisure time. It replaces an out-of-date, mishmash of legislation
with a modern accessible regime, responsive to the society it serves. It balances
liberalisation and deregulation with new levels of protection for local residents
and communities’.
4
This ‘radically new system’
5
will a¡ect thousands of premises
used by millions of people;
6
as well as countless others who may be troubled by
the operation of those premises or the behaviour of their customers.
Central government has long sought to regulate the supply of alcohol.
7
This
regulatory history is characterised by successive moves between the tightening
and relaxation of controls. Simply put, alcohol-related problems have prompted
stricter controls on availability, while social and commercial pressures have pro-
duced relaxation of controls. Historical examples ofthe former can be seen in the
1780s (led by a campaign against vice and immorality) and of the latter in the
n
Faculty of Law, UWE, Bristol.
1Timefor Reform: proposals for the modernisation ofour licensinglaws,Cm 4696 (2000)
2 The Act emerged largely unscathed from the Parliamentary process, despite co nsiderable chal-
lenge to some of its provisions.For example, although by no means all substantive,467 amend-
ments weremoved in Committee on 5 February 2003.
3 Due to delays in the publication of government guidance (eventually published July 2004) and
secondary legislation (some 200 pages of which were published ‘forconsultation’ in September
2004) and the adoption of a morerealistic transitional period to allow local authorities more time
to prepare for their new responsibilities u nder the Act. (Each local authority must publish its
statement of licensing policy by 7 January 2005.)
4 Department for Culture, Media and Sport Press Release,‘Major Reformof the Licensing Laws
Completed’, 9 July 20 03.
5 Jack Straw, HomeSecretary, n1above,5.
6 Based on the latestavailable ¢gures for 30 June 2004 it can be estimated that thereare some 180,000
licensed premises a nd registered clubs in England and Wales, with considerably more justices’
licence/club registration certi¢cate holders (DCMS Statistical Bulletin, Liquor Licensing England
andWalesJuly 2003^June2004 (27 October 2004)).
7 The ¢rst ‘licensi ng’Actseems to be 11Henry V11c.2 (1494).
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seventeenth century (with the expansion of the gin trade).
8
Most recently, the
restrictive regime that held sway during theVictorian period and the ¢rst half of
the twentieth century started to loosen its grip as the post-war austerity of the
¢fties gave wayto the ‘never had it sogood’politics of the next decade. A consen-
sus emerged in favour of a liberalisation of liquor licensing, whichwas losing its
moraldimension and coming to be seen more as a matterof ‘social convenience’.
9
The debates that ensued throughout the sixties mirrored closely those preceding
the 2003 Act.
10
In 1970 a review of licensing law was announced. The Report,
published in 1972,
11
fully embraced the impetus for liberal reform; but its recom-
mendations were not well received and its proposalswere not adopted.While the
Report was self-critical of its own lack of research and the possible adverse social
implications of increased consumption,
12
it was strong opposition from the med-
ical lobby and emerging public health pressure groups that e¡ectively ensured that
the report was not translated intopractice. Yet mostof the Report’s recommenda-
tions subsequently have been implemented. A piecemeal process of deregulation
has seen the introduction of a number of reformsgo largely unnoticed and unop-
posed. Among these was the scrapping ofthe concept of need which operatedas a
majorl imiting factor on the number of licences granted.
13
When considering an
application for a new licence the justices could refuse a grant if they considered
that there were already enough licensed premises in the area and no ‘need’ for
another.
14
In 1996, a government working party on licence transfers recom-
mended that the concept should no longer be relevant whenconsidering applica-
tions for newlicences.
15
The GoodPractice Guide
16
introduced in 1999 providedth at
need should no longer be considered by the justices when looking at applications
for new licences. The arti¢cial limiting of the number of licensed premises
through the mechanism of need was seen as outdated and restrictive. The way
was open for virtually unlimited expansion in the number of licensed premises:
market forces would be allowed to prevail and the limiting factor would now be
commercial competition. If there was not e nough business, premises would close.
The liberalisation of liquor licensing was gathering pace.The desire to introduce
continental style availability of alcohol in the interests of tourism and freedom of
8 See further S.Webband B.Webb, Historyof the LiquorLicensing Lawsin England;Principallyfrom1700
to 1830 (London: Frank Cass,1963, ¢rst published 1903), G.P.Williams and G. T. Brake,Drink in
GreatBritain 1900to 1979(Lo ndon:Edsal l,1980).
9 J. M.Lee, ‘ThePolitical Signi¢cance of Licensing Legislation’ (1985) 14 ParliamentaryA¡airs 211.
10 For example, for R. A. Butler the aim of licensing law was ‘to strike a balance between the
restraints which are still necessary to prevent abuse or social mischief a nd the legitimate demand
for individual freedom of choice and behaviour in an adult society.’ Licensing Bill 1960, Second
Reading,HC Deb col 33, 28 November1960.
11 Reportof the DepartmentalCommittee onLiquor Licensing,Cmnd 5154 (1972).
12 As a member of the committee, Sheila Black, writing in the FinancialTimes (6 December1972)put
it:‘Weal l knew that whatwe wanted basically was freedom forall, to drink when and where they
liked’,quoted in Williams & Braken 8 above,169.
13 ‘Need’was a central concept in the licensing process and its proposed abandonment was one of the
most contentious recommendations of the1972 report.
14 See further R. Light and S. Heenan, ControllingSupply:the concept of needin liquor licensing(Bristol:
UWE,1999).
15 Home O⁄ce, NoteWGLT95(11), A Division,March 1996,item 15.
16 Justices’Clerks’ Society,Good Practice Guide (Liverpool: Justices’ Clerks’Society,1999).
Roy Li ght
269rThe Modern LawReview Limited 2005
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