The trade is being urged to keep an eye on ‘creeping closure powers’ amid concerns that the new Anti-Social Behaviour Bill could be used “as a weapon of first, not last resort”.
Industry bodies and legal experts issued the caution in response to the forthcoming legislation, which is designed to overhaul the existing system for dealing with anti-social behaviour.
Under proposals contained in the Bill, which is expected to become law in the spring, individuals and problem licensed premises will be targeted.
Four existing closure powers will be combined into one civil power — the community protection order (closure), enabling police and local authorities to force a pub to shut down within 24 hours for up to 48 hours, if there has been — or is likely to be — nuisance or disorder relating to the venue.
An application may then be made to the magistrates’ court to extend the closure order for up to a maximum of six months.
Community trigger
A ‘community trigger’ has also been proposed to ensure that the police or local authorities respond to persistent complaints made by residents or the community.
How this will be implemented will be decided by each area’s police and crime commissioner, but the Government has indicated that the trigger could be prompted when five individuals from different households have complained, or the same individual has complained three times and no action has been taken.
The proposals have sparked concern that the community power will be used against otherwise responsible operators.
“There is a fear that it will be used as a weapon of first, not last resort,” claims Kate Nicholls, strategic affairs director at the Association of Licensed Multiple Retailers.
“This is part of an increasing trend in licensing where controls are localised and discretionary powers can be applied by local authorities as they see fit.
“This results in a lack of transparency for operators and makes it very difficult to plan with any certainty. The problem here is that there is no definition as to what is a persistent complaint and what type of complaint can trigger action.
“We already have instances where even a single resident complaining can lead to a review and licensing restrictions, so this is a potentially worrying development — particularly when the power has the potential to be so Draconian, with total closure of the premises for up to six months.”
Safety net
Gareth Hughes, barrister at law firm Jeffrey Green Russell, says: “The risk is that some people will just make three phone calls and then the trigger kicks in. It could also be unduly burdensome for local authorities and police who will now have to act, whereas before they would not have to if it was not serious enough.”
However, crime prevention minister Norman Baker insists the community trigger is intended to be a “safety net for the public, not the first response when a problem occurs”.
He adds: “The community trigger will give victims of persistent anti-social behaviour a voice if they feel their complaints have been ignored or deemed too difficult to resolve.
“If the trigger is activated it will not automatically result in a review of a pub’s licence. In fact, any businesses that suffer from the effects of anti-social behaviour will be able to use the trigger to hold local agencies to account in exactly the same way as individual victims.”
'Woolly'
The British Beer & Pub Association, which is “monitoring the issue”, points out that, while the community trigger provisions do not exclude pubs, licensing authorities and the police would in practice already have to act on complaints from local residents about a pub under the “already extensive provisions in the Licensing Act”.
Legal expert Peter Coulson de-scribes the wording around the community protection order as “woolly”, and “very broadly phrased”.
“The powers under this particular part of the Bill are wide-ranging and presumably could be used to prevent music, use of a beer garden [noise], use of an exit or emission of kitchen fumes,” he says.
“All these issues are covered by other legislation, however, so it is unclear why such an additional measure would be needed for pubs.”
How licensees should prepare for the new legislation
Operators are advised to open channels of communication with neighbours and listen to concerns. “Just one complaining neighbour can have a huge effect. A big PR exercise is needed,” suggests Peter Coulson.
His views are echoed by Andy Grimsey, of licensing solicitors Poppleston Allen. “The legislation does give new rights to local people to demand action from local enforcement agencies, and there is always the risk for pubs that the publicity that will accompany the new Act may lead to residents using those rights.
"In my experience, however, local residents usually resort to the authorities only when the relationship with their local landlord has broken down.
“It’s even more important, therefore, to involve the community in coffee mornings or residents’ meetings in order to discover if there are any concerns about noise or antisocial behaviour that are bubbling under the surface.”