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Is the law working? |
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The government's view... |
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The flexible hours policy has in many places created and not resolved problems. |
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The government's view... |
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The government's view was that flexible hours, that is, longer in respect of the old fixed hours, would lead to a decrease in alcohol fuelled crime and disorder, and public nuisance. It was argued that the old 11pm "last orders" caused both the rush to consume drinks, and the problems when people left all the pubs at the same time. Flexible hours, it was claimed, would allow people to drink-up at their leisure and drift away without causing problems. |
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The claims were disputed at the time. It is sufficient to say here that the government's argument was based on a research paper, "Drinking and Public Disorder", by Peter Marsh and Kate Fox, 1992, commissioned by The Portman Group. Arguments against were that other research had different conclusions, the Portman Group belonged to the drinks industry and that the government's view was based entirely on the research paper. It was reported that Marsh had partially distanced himself from the conclusions. |
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Importantly, at the time, the research was a decade old and predated the formation of the large pub companies and the pressures they brought to increase revenue from pubs. |
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The government, however, stuck rigidly to its view, having cited the research in the white paper "Time for Reform", which was the basis for the Licensing Act. The white paper was originally from the Home Office but responsibility for the Act was moved to the Department for Culture, Media and Sports. |
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...becomes policy |
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There were other valid justifications for relaxing drinking hours. The error, however, was the government making it policy that flexible hours would reduce disorder and nuisance. Furthermore, through the guidance it gave to local authorities, they were made to accept this policy as well. Dutifully, the local authorities trotted out the flexible hours policy in their own statements of licensing policy. |
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A purpose of the Licensing Act was to devolve powers, duties and responsibilities to local authorities, but on the important question of hours the policy was imposed on them. Some local authorities saw a clear conflict between having to apply the flexible hours policy and the duty placed on them to uphold the licensing objectives, but felt that their hands had been tied. |
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...a catch-22... |
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The flexible hours policy is a trump card. Where a pub had no problems at the old 11pm closing time there were no grounds for not allowing the longer hours requested by the publican. Where there were problems around closing time, and residents used this to oppose longer hours, then the pub was granted longer hours on the grounds that flexible hours were just what the residents needed to smooth out the problems. |
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Residents may well have preferred the existing disturbance that they knew would end by 11:30pm instead of having frequent later interruptions to their sleep, but they were not given the choice. |
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An error of the flexible hours policy was to assume that people drifting away would do so quietly. The policy only admits to problems caused by people being forced to leave at a particular time, therefore, when such problems exist at new later hours, the logical answer is to allow the pubs to stay open even longer. |
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The flexible hours policy cuts as a hot knife through butter through any objections, or purported right to influence, that residents have. |
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...so who implements the policy... |
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The problem with this policy - clutched by the government and most commonly applied by the local authorities - is that it is not binding on the people it most relies on, the licensees. The licensed trade set their hours according to their own needs and business plans, and not because of a government policy such as this one. Some licensees might not want to open well into the night and an extra hour or so is enough for them but not necessarily for their customers. Licensees who want to serve customers' needs will only remain open while it is economically viable to do so, they will decide how late to remain open before enough of their customers have left. |
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If the flexible hours policy was sound, then licensing sub-committees should have respected the judgements of licensees when residents opposed longer hours. These sub-committees did cut back requests for longer hours, say from 1pm to midnight, or 2pm to 1pm, but by doing so are saying that a pub will shut while the licensee expects a number of customers to want to stay longer. |
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Residents would also wonder at the logic of licensing sub-committees who made such decisions; it was alright to be disturbed until 1pm but not 2pm? |
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...and are terminal hours now just later? |
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Altogether, the effect was to move the old closing time to later in the night, maybe with not the same volumes of people leaving together but enough. |
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In smaller towns or other areas, which previously had no problems after midnight but where pubs in close proximity are now competing for late night trade, longer hours have created problems. After the transition in 2005 there was a realignment of hours, through licence variations, as pubs which closed earlier than others lost trade to the ones which stayed open later. Local authorities are warned not to create terminal hours but they are by the trade and even by the police. If one pub remains open later and there are problems in the area, then it is easier to arrange for a review of the licence, to pin the problems on that pub, and attempt to cut back its hours. It is in the interests of the police to be able to plan the use of their limited resources and a terminal hour say, of 1pm on a Saturday night in a small town, facilitates that. |
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Government clarification came... |
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Government guidance is statutory and has to be laid before Parliament to gain approval, albeit in a routine manner. Local authorities "must have regard to it", which means it is unlawful for them not to follow it. |
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Local authorities interpreted the flexible hours policy as meaning that pubs must be granted longer hours even where local residents opposed it, which became a cause of consternation during the transition period in 2005. Tessa Jowell, the then Secretary of State, responded in a now famous press release, 23 September, and wrote to all the local authorities in an apparent attempt to clarify the situation. |
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The letter was largely ignored, and legally rightfully so, as pointed out by the local authorities. Government licensing guidance must be laid before Parliament to have legal force, which the letter had not. What Jowell said in September was "I want to be absolutely clear; where an application for longer hours would undermine those (licensing) objectives, the public interest should win hands down". The Minister, James Purnell, added "We will write to every local authority in the country to spell out that there is no presumption in the Act for longer hours over the objections of local residents". However, the local authorities were working to Jowell's statutory guidance which said "the general principle should be to support later opening so that customers leave for natural reasons slowly over a longer period". |
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The press release was subtly worded, the presumption to grant longer hours was in the guidance and not in the Act itself. |
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Since then the guidance has been reworded, reorganised and reissued to make it clear that the licensing objectives are paramount considerations at all times. The licensed trade said that they were not bothered by this as most pubs had already got the hours they wanted. |
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...but too late... |
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The clarification amounts to the government acknowledging that longer hours could create new nuisance problems, but it did so all too late. |
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A problem with the flexible hours policy is that it only seeks to address acute behaviours, and neglects the consequential behaviours that can also cause disturbance. It will be argued whether flexible hours have smoothed out the acute problems associated with the old "chucking-out" time, however, it needs to be recognised that they have introduced problems which did not exist before. |
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Residents in previously quiet night time residential areas and villages, now have a different situation. They were used to people leaving nearby pubs, which could be noisy but no great problem and they knew that by 11:30pm it would be over and they could relax. Not any more, people leave at intervals, get into their cars and sometimes "rev" the engines, shout their good-byes, talk to each other or on mobile phones. Each event is enough to disturb sleep. |
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People in towns and cities endure this prolonged disturbance, which is not always less acute. |
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The problem exists where pub customers do not keep their voices and noise down when other people are trying to sleep, unfortunately such lack of consideration diminishes with alcohol intake and is, anyway, a social problem that has generally increased. The smoking ban has seriously added to the problem as people are outside pubs late at night. |
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Public nuisance is stressful for people who suffer it, when sleep disturbance is added then health deteriorates even more. |
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...to protect the public nuisance objective... |
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The flexible hours policy might have achieved its aims in some places, but in many others it has created and not prevented public nuisance. In this respect that objective of the Licensing Act has failed. |
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Sadly, it is not a situation that can now be resolved easily by the local authorities. Sub-committees will be reluctant to revoke extra hours granted since 2005, unless the situations are serious enough for the police to call for a review, or for them to support residents calls. Environmental health officers see their remit as restricted to statutory nuisances, and environmental nuisance laws are entirely inappropriate for tackling the problem. The licensed trade can be expected to defend their new hours, a local authority would need a strong political will to provide the resources and budget to solve the problem. |
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It can be wondered whether without the flexible hours policy, local authorities having had decisions on licensing hours devolved to them, would have been influenced more by residents concerns and in many cases restricted hours much more than they did. |
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The increased late night public nuisance is now another problem for society to accept or solve. |