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Licensing – a statutory function which cannot be ignored Published Date: 26/08/2020

Local authority licensing is a statutory function, its purpose rooted in public safety (or animal welfare in some cases).  The majority of licensing in local government is not optional although some areas remain ‘adoptive’ requiring the local authority to fulfil a statutory process which then enshrines the licensing function within its remit and responsibilities.   The licensing function is essential to enable businesses and individuals to work within the law.  Local authorities must continue to operate the licensing function in all areas.  Failure to do so is an abrogation of statutory duties with far reaching consequences for individuals and businesses.

The COVID-19 pandemic forced a rapid rethink on all areas of life in this country and the rest of the world.  Regulators, businesses and individuals had to adapt quickly and decisively to new rules and restrictions necessary during lockdown.  At the time of writing, the UK is moving cautiously out of lockdown, but already there are local clusters and as a result local lockdowns, bringing back severe restrictions on lives and businesses. 

We don’t yet know the full extent of the impact COVID-19 will have on the UK.  What is clear though is that we will all have to continue to adapt to be able function with or without legal restrictions on movement, socialisation and business operations in a fast paced and everchanging legal landscape. 

The COVID-19 pandemic and lockdown at the end of March presented immediate and exceptional challenges to everyone with lives and businesses changed overnight.  Businesses, venues and offices were closed when lockdown was announced with Boris Johnson telling the country ‘you must stay at home’ on 23 March 2020.

Despite the lockdown, there was an imperative to conduct business where possible, and local authorities in particular were urged to find ways to do so, including the use of technology to conduct remote hearings and to continue their statutory duties including, of course, the licensing function.  This is essential for many businesses across the country and the economy of the country overall – now more so than ever.  A little over 1 week after the PM announced full lockdown on 23 March 2020, the IoL published the first version of its Protocol.  The Protocol stated: 

“It is recognised that during this emergency period local authorities and police, in particular, will be burdened with exceptional duties that go outside the usual realms of licensing. However, that is not a reason to bring the licensing system to a complete halt for the undoubtedly long period ahead of us until the pandemic is over. The backlog of applications and hearings that would arise if that course is taken would soon become unmanageable in the long-term and further damage the public interest.

“There is a significant public interest in ensuring that licensing processes can continue and enable new and current applications to be processed - and hearings convened - where necessary. Many operators in the licensed sector face an existential threat to their businesses. The resulting job losses will cause considerable damage to our national and local economies and to the lives of workers in the public and private sectors. To some degree, the continuation of the licensing processes may assist in mitigating some of this damage by ensuring that the necessary licences are able to be issued, or modified, where required.”

In his letter to the Chairs of Licensing Committees on 8 April 2020, Kit Malthouse, the Minister of State for Crime and Policing, asked licensing authorities “to consider a pragmatic and more flexible approach during this (coronavirus) outbreak”. He concluded his letter by saying “These are extremely challenging times. With the right spirit of collaboration, communication and pragmatism, I believe that we can get through them with minimum damage to businesses”.

The COVID-19 pandemic has forced a rethink by local authorities on how to manage the licensing system, and most have risen to the challenge, enabling online applications and remote hearings in a short space of time, and proving their ability and willingness to adapt and adapt quickly to fulfil their statutory responsibility which is undoubtedly in the public interest.

Not all local authorities have done so, and in stark contrast, we hear from Andy Mahoney, Director of 24x7 Ltd, about the impact on businesses when local authorities cannot or will not adapt.  Andy’s perspective focuses on the impact of private hire businesses, and the knock on effect in relation to school contracts (in this case special needs contracts), but it is evident even from a swift online search, that there are other areas of licensing where some councils are refusing to accept new applications.    

Refusing to accept an application is not a concept within licensing law – rejection of an application which doesn’t meet statutory requirements is one thing, but simply closing the door and refusing to accept new licence applications puts the licensing authority on a very dubious footing, vulnerable to judicial review and reputational damage from the outset.

The case study provided by Andy Mahoney, Director of  24x7 Ltd, starkly illustrates the impact on the industry and the wider community when licensing authorities refuse to accept new applications.  We have redacted the identities of the local authorities listed as blocking the licensing function.  Our intention as the professional body for licensing is to contact each authority in turn to offer advice and support and examples of authorities where COVID challenges have been overcome in an effort to assist them in correcting the position.

A further case study looks at the position in Cheltenham where the challenges presented by the virus have been overcome and a ‘new normal’  recently established with a fully functioning licensing system.  We hope to provide additional case studies from other councils where the licensing function pre-COVID became impossible with lockdown, but where those hurdles have been overcome (and the methods used) to ensure that the licensing function can continue, with temporary relaxations or changes necessary to enable this, while ensuring that public safety is not compromised.