Licensing and Safety Committee Procedure Rules

1. The Council will have a Licensing and Safety Committee as referred to in Article 8 of the Constitution, plus a Licensing Sub-Committee.

2. Composition

The Licensing and Safety Committee shall comprise twelve members appointed by the Council.

The Licensing Sub-Committee shall comprise three members who do not have a prejudicial interest in the subject matter and who are not representing one of the parties, from the membership of the Licensing and Safety Committee, appointed by the Assistant Council Manager/Monitoring Officer, to determine applications (referred to in the Council’s Scheme of Delegation) under the Licensing Act 2003 and the Gambling Act 2005.

3. Number of Meetings

The Licensing and Safety Committee will normally meet once every four weeks in accordance with the programme of meetings determined by the Council at its Annual Meeting. The date and time of any other meeting shall be determined by the Chairman or, in his/her absence, by the Vice-Chairman. The Committee or the Chairman may vary the programme if it is in the interest of the Council.

The Licensing Sub-Committee will meet as and when necessary.

4. Quorum

The Quorum for the Licensing and Safety Committee shall be as set out for committees in the Council’s procedure Rules in Part 4 of this Constitution, namely ¼ of its membership subject to a minimum of three.

The Quorum for the Licensing Sub-Committee shall be three.

5. Role and Function

The Licensing and Safety Committee will be responsible for considering all of those functions conferred on the Council in relation to licensing, registration and health and safety set out in Part 3 of the Constitution.

The Licensing Sub-Committee will be responsible for considering all of those functions conferred on the Council in relation to the Licensing Act 2003 and the Gambling Act 2005.

6. Speaking at Meetings of the Committee

Subject to the normal rules regarding the conduct of meetings, all members of the Licensing and Safety Committee may speak at its meetings.

Members of the public and of Council staff will be entitled to speak at meetings of the Licensing Sub-Committee in accordance with the procedure rules for the Sub-Committee as shown in annex A.

Members of the Council who are not appointed members of the Licensing and Safety Committee will have no inherent right to speak. Upon the invitation of the Chairman such members may be called upon to address the Committee on specific and relevant items of business.

7. Bias and Predetermination

Bias is an attitude of mind which prevents the decision maker from making an objective determination of the issues that he/she has to resolve. There is no need for proof of actual potential bias for there to be a "procedural impropriety". It is sufficient that there is an appearance of bias. The test for bias is "whether a fair-minded informed observer, having considered the facts would conclude that there was a real possibility of bias".

Where the decision to be made is quasi-judicial, as at the Licensing and Safety Committee or the Licensing Sub-Committee, the key issue to ensure the legality of the decision is the "public perception of a probability of unconscious bias". Members should therefore avoid participating as a member of the Licensing and Safety Committee and the Licensing Sub-Committee where previous voting or statements of belief may alter that objective impression conveyed.

A member should not reach a final conclusion before he/she comes to take a decision on an issue. A member’s statements and activities should not create the impression that his/her views on a matter are fixed, and that he/she will not fairly consider the evidence or arguments presented to him/her, when he/she is making a decision.

‘Bias’ also includes the situation where it is felt that the decision maker has predetermined the case based on his/her own prejudices. An obvious example is where the impression is clearly given to e.g. members of the public or a lobbyist, beyond conveying a mere disposition, that "the member or authority will approach the matter with a closed mind and without impartial consideration of all relevant issues".

To help avoid accusations of pre-determination and ensure that ward members are free to represent their constituents as "interested parties", ward members will not sit on the Licensing Sub-Committee where that Sub-Committee is considering an application in that member’s ward.

A member must make a disclosure of his/her position regarding the possibility of political or structural bias, in advance, to the Licensing Sub-Committee which will consult with its Legal Advisor to decide if the member can participate in the decision-making.

8. Applications Submitted by the Council

The Council may apply for its own Premises Licenses so as to licence areas of public space. Such applications must be seen to be dealt with fairly. During such an application process it is therefore important to be aware of any potential appearance of bias.

9. Lobbying

The Licensing Act 2003 sets out the grounds for making representations on licence applications and limits the parties which may make such representations. Local Councillors can either sit as part of the Licensing and Safety Committee or can represent the interests of their constituents by acting as "interested parties" as long as they do not have any prejudicial interest in the matter.

To avoid an appearance of bias:

• No member sitting on the Licensing Sub-Committee can represent one of the interested parties of the applicant. If she/he wishes to do so she/he must excuse him/herself from the membership of the Sub-Committee which is considering the application and address the Sub-Committee as an ‘interested party’.

• If a member who sits on the Licensing Sub-Committee is approached by persons wishing to lobby him/her as regards the licence application then that member must politely explain that the cannot discuss the matter and refer the lobbyist to his/her Ward member or the Licensing Offices who can explain the process of decision making. If a member wishes to represent one of the parties as their ward councillor, they will not be selected to serve on the Licensing Sub-Committee for that application.

• Members who are part of the Licensing Sub-Committee must avoid expressing personal opinions prior to Licensing Sub-Committee decision. To do so will indicate that the member had made up his/her mind before hearing all the evidence and that their decision ma not be based upon the Licensing Objectives not the Licensing Authority’s Statement of Licensing Policy.

• Political group meetings should never be used to decide how any members on the Licensing Sub-Committee should vote. The view of the Ombudsman is that using political whips in this manner may well amount to findings of maladministration.

• Councillors must not be members of the Licensing Sub-Committee if they are involved in campaigning on the particular application

• Other members (i.e. those which do not sit on the Licensing Sub-Committee) need to be careful when discussing issues relating to matters which may come before the Licensing Sub-Committee members as this can easily be viewed as bias/pressure and may well open that Sub-Committee Member to accusations of such. A full prohibition upon discussing such issues with Committee members by other members may be impractical and undemocratic.

• Members must NOT pressurise Licensing Officers to make any particular decisions or recommendations as regards applications (such as the ability to decide whether an application is frivolous or vexatious).

It should be noted that a member for a ward, which would be directly affected by the applications, is most at risk of being accused of bias. Members whose ward includes the application, or whose ward is likely to be affected by the application, should not sit on the Licensing Sub-Committee considering the application but he/she may wish to act as/or represent an "interested party".

All of the above guidance also applies where an application is to be considered by the Licensing and Safety Committee.

10. Pre-Application/Pre-Decision Discussions

Whilst discussions between the licence applicant and the Licensing Officer prior to the submission of an application, or prior to a decision being made are often helpful to both parties, the Licensing Authority must ensure it is not open to accusations or appearance of bias. It must therefore ensure that such advice and assistance is clearly identified as being such and is not any type of "predetermination".

Licensing and Safety Committee members and members of the Licensing Sub-Committee should ensure that they DO NOT take part in any pre-application/pre-decision discussions and that applicants are referred to the Licensing Officer.

11. Who can put Items on the Committee Agenda

The Chairman of the Committee (or the Vice-Chairman in his/her absence) and/or the Council Manager and/or the Monitoring Officer and/or the Chief Financial Officer and/or the Licensing Officer may include items for consideration on the agenda for a Licensing & Safety Committee meeting.

12. Role of the Licensing Officer

The Licensing Officer will not generally make recommendations to the Licensing Sub-Committee. A summary report of the application, the representations and the Officer’s comments as to how these relate to the Licensing Act 2003, the Guidance and the local Licensing Policy Statement may be useful.

13. Decision Making

Reasons for decisions made must be clearly documented so that any subsequent accusations of bias etc. can be defended. Decisions must be made according to the licensing objectives of the Licensing Act 2003 as well as the Licensing Authority’s Policy Statement..

14. Site Inspection

Site inspections by Licensing Sub-Committee members are generally unnecessary and can put the members and the Licensing Authority at risk of accusations of bias. If a site inspection is required then the reasons will need to be set out to justify the visit.

15. Application of Council Procedure Rules

Council Procedure Rule 24 (application to Cabinet, Committees and Sub-Committees) shall take effect subject to these Procedure Rules.

16. The procedure for the holding of hearings in respect of licensing matters is attached at Annex A.

ANNEX A

1. These rules apply to hearings before the Licensing and Safety Committee and references to the Committee shall be construed accordingly. References to the Committee also include any of its sub-committees.

2. Every applicant and any other person making representations, will be given a minimum of ten calendar days notice of a meeting of the Committee, unless he/she indicated that a shorter period is acceptable.

3. At the time notice is given of a Committee meeting, the applicant will be informed of all representations received by the Council. The applicant will also be informed of the Council’s case and any observations received from the police, parish councils and/or other consultees, so as to enable him/her to adequately prepare for the hearing of his/her application.

4. Any person objecting to the grant of a licence or consent shall be invited to attend and address the Committee when the application is heard. Where a number of similar representations or a petition have been received the objectors will normally be invited in advance of the hearing to appoint a spokesperson to address the Committee.

5. All committee members will be sent a copy of every document received from the applicant and any third party.

6. At the beginning of every hearing the Chairman will first identify all Councillors and Officers in attendance and will then explain the procedure to be followed.

The Committee may change the order in which any stage of the hearing takes place but must allow the applicant an opportunity to sum up after all other parties have been heard.

7. The Chairman will invite the applicant to introduce him/herself and his/her representatives, if any, and any witnesses. If the applicant is not represented, the Chairman will ask him/her if they knew this was permissible and invited him/her to make clear whether or not he/she wishes to be represented at the hearing.

8. The Committee shall hold its hearings in public but may exclude the public from all or part of a hearing where it considers that:

1. In the case of a hearing under the Licensing Act 2003 the public interest in so doing outweighs the public interest in the hearing, or that part of the hearing, taking place in public; or
2. In the case of any other hearing, confidential or exempt information within the meaning of Section 100A Local Government Act 1972 is likely to be revealed.

For the purposes of paragraph 8(i), a party and any person assisting or representing a party may be treated as a member of the public.

9. The hearing will take the form of a discussion, led by the authority and all representatives and questions shall be put through the Chairman.

10. It is essential that all members of the Committee remain present throughout the hearing. They should confine themselves to asking questions about the application. Whilst hearsay evidence is acceptable, the Committee must not take into consideration any gossip, speculation or unsubstantiated innuendo.

11. Where all parties agree in writing then the Committee may determine an application without following stages 12 to 33 below provided it has notified all parties that a hearing has been dispensed with.

12. Where a party fails to attend a hearing then the Committee may either adjourn the hearing or hold it in the party’s absence. Where it holds a hearing in the absence of a party it will consider any representations or notice given by that party.

13. Before the hearing takes place all parties must submit any written evidence upon which they wish to rely. If all parties agree the Committee may (at its discretion) consider any written evidence produced at the hearing.

14. Where a party wishes to call witnesses, question another party or witness or address the authority then the Committee may impose a maximum period of time within which any or all of these must be completed. Any such maximum time period must be the same for each party.

15. The Committee will consider whether to allow witnesses of the parties to be heard, of which notification must have been given in accordance with the regulations at the start of the hearing.

16. The applicant or advocate will state the applicant’s case, and may call witnesses.

17. The representative of the local authority may ask questions of the applicant or advocate, or any witness.

18. Other interested parties may ask questions of the applicant or advocate or any witness.

19. The members of the Committee and the officer appointed as legal advisor to the Committee may then ask questions of the applicant or advocate, or any witness.

20. The representative of the local authority will state the authority’s case and may call witnesses (which may include officers such as police or fire officers or other such witnesses).

21. The applicant or advocate may ask questions of the representative of the local authority or any witness.

22. Other interested parties may ask questions of the representatives of the local authority or any witness.

23. The members of the Committee and the officer appointed as legal advisor to the Committee may then ask questions of the representative of the local authority or any witness.

24. Other interested persons will be given the opportunity to speak on the application of the representative of the local authority or any witness.

25. The representative of the Council may ask questions of those listed at (19) above, or any witness.

26. Members of the Committee and the officer appointed as legal advisor to the Committee may ask questions of the other interested persons, or any witness.

27. The applicant or advocate may ask questions of the other interested persons, or any witness.

28. The representative of the local authority will then be invited to sum up; no new material may be introduced at this stage.

29. Other interested parties will then be invited to sum up; no new material may be introduced at this stage.

30. The applicant or advocate will then be invited to sum up; no new material may be introduced at this stage.

31. The Committee with the officer appointed as legal advisor to the Committee and the Committee Officer will deliberate in private on the issues.

32. Should the Committee feel that it requires some additional information before reaching a decision the Chairman may invite all parties to return while the points at issue are settled.

33. The Committee, will announce the decision to the parties at the end of the hearing where possible; the decision being confirmed in writing within seven calendar days. In the event that the Committee indicates that the decision will not be announced at the hearing, the determination will be made within five working days beginning with the day, or the last day on which the hearing was held unless a shorter time is specified by regulations.

The Committee may do anything it considers necessary during a hearing under the Licensing Act 2003 or the Gambling Act 2005 to cure any prejudice caused to a party by a failure to follow these procedure rules and/or the Licensing Hearings Regulations.

1. Introduction

1.1 This protocol relates to the conduct of Members and officers regarding both licensing and gambling, including Members of the Licensing Committee and the Licensing Sub-Committee.

1.2 This protocol supplements the Members’ Code of Conduct, and the Officers’ code of Conduct and Members and officers are required to comply with the guidance and requirements therein.

1.3 The Licensing Committee and/or Licensing Sub-Committee determines applications under the Licensing Act 2003 and applications under the Gambling Act 2005. The Licensing Act 2003 regulates ‘licensable activities’ which are defined in the Act as the sale of alcohol, regulated entertainment and late night refreshment. The Gambling Act 2005 regulates the licensing of gambling premises and certain permissions.

2. Guiding principles for Licensing and Safety Committee Members and Licensing Sub-Committee Members

2.1 Licensing Sub-Committee Members must avoid expressing personal opinions prior to the hearing. To do so would indicate that the Member has made up his/her mind before hearing all the evidence.

2.2 Licensing Sub-Committee Members must not take nor declare a view on the merits of the application nor organise support or opposition in advance of the hearing, and must keep an open mind until after they have considered all the evidence and arguments presented.

2.3 Licensing Sub-Committee Members should not form or show bias against or in favour of any particular person, company or group or any particular site or locality nor give the impression that they have done so.

2.4 Any Licensing Sub-Committee Member who has been involved in a licence application should withdraw from the Sub-Committee hearing at which the licence application is to be determined.

2.5 Decisions of the Licensing Sub-Committee shall not be taken in accordance with a political party direction given at a previous party group meeting or otherwise.

2.6 If a Member wishes to represent one of the parties as his/her ward Councillor, he/she will not be selected to serve on the Licensing Sub-Committee for that application.

2.7 (i) For applications heard under the Licensing Act 2003, the Sub-Committee must make their determinations based on the Licensing Objectives only, having regard to the Guidance and Licensing Policy.

(ii) For applications heard under the Gambling Act 2005, the Sub-Committee should aim to permit the use of premises for gambling in so far as they think it:

1. in accordance with any relevant Code of Practice
2. in accordance with any relevant Guidance
3. reasonably consistent with the Licensing Objectives (subject to (a) and (b) above); and
4. in accordance with the authority’s statement of Gambling Policy (subject to paragraphs (a) and (c) above.

3. Natural Justice

3.1 Members of the Licensing Sub-Committee must comply with the rules of natural justice, ensuring that parties have an opportunity to be heard, whilst acting fairly and impartially. When the Sub-Committee is making its determinations, the following principles must be considered:

1. Free from the appearance of bias

Sub-Committee Members must make an objective and impartial determination of the issues based on the evidence and should not make, or give the appearance of making, a biased decision. Members of the Licensing Committee should not make any public statements which may give the impression to the public that they may not be objective when sitting on any Licensing Sub-Committee. Bias may include pre-judged ideas based on his/her own prejudices or party political influences

2. Fair hearing

For a hearing to be ‘fair’ a number of conditions must be satisfied, including the right for the individual to know the opposing case; generally the right to call witnesses; the ability to question witnesses; the right to legal representation; and generally the right to be given reasons for any decisions made

4. Members’ Interests – Licensing and gambling applications

4.1 Members must comply with Part 2 of the Members’ Code of Conduct which deals with interests.

4.2 Members must always declare any personal interest or personal and prejudicial interest, as defined by the Members’ Code of Conduct. The existence and nature of an interest must be declared regardless of whether Members are sitting on the Sub-Committee or appearing before the Sub-Committee. This should include interests where Members have some doubt whether or not it is declarable and such an interest should be notified in advance of the hearing to the Assistant Council Manager/Monitoring Officer or Licensing Officer so that he/she can provide advice.

4.3 Members with a personal and prejudicial interest must not sit on the Licensing Sub-Committee and determine the application. Such members with a personal and prejudicial interest should not be present at the hearing (except in accordance with Paragraph 12 (2) of the Members Code of Conduct) and should not make written representations in their official capacity.

4.4 It is accepted that Members of the Licensing Sub-Committee may have visited the licensed premises in their personal lives. Members should declare where this amounts to a personal interest, or a personal and prejudicial interest.

4.5 Members involved in Council meetings which approved the Licensing Policy and the Gambling Policy are not excluded from the Licensing Sub-Committee because of such involvement.

5. Gifts and Hospitality

5.1 Members must comply with Part 3 of the Members’ Code of Conduct and Paragraph 3 of the Protocol of Member Involvement in Commercial Transactions concerning gifts and hospitality. Officers must comply with Paragraph 12 of the Officers’ Code of Conduct in respect of gifts and hospitality.

5.2 Members should have particular regard to public perception when accepting any gift of hospitality from licensed premises (being premises licensed under the Licensing Act 2003 or Gambling Act 2005) and should act with extreme caution when accepting any gift whatsoever, regardless of the monetary value.

5.3 It is generally acceptable for Members of the Licensing Committee to accept light non-alcoholic refreshments (such as tea, coffee, soft drink, juice, biscuits, light snacks) whilst attending a meeting in an official capacity.

6. Applications submitted by the Local Authority

6.1 Where the Borough Council applies for a premises licence under the Licensing Act 2003 for open spaces or buildings which it owns, or where there is a variation application or review in respect of such open spaces or buildings and relevant representations are received, the Licensing Sub-Committee must hear and determine this application/review in exactly the same manner as other applications/reviews. The Licensing Sub-Committee must give no regard to the interests of the Council itself, aside from receiving relevant representations on this issue.

6.2 A dispensation to hear such applications will not usually be necessary, as a Member will not have a personal and prejudicial interest solely through being a Councillor.

6.3 Members who are part of the authority’s decision to apply for the licence, or who express a view in respect of such an application, should not also be part of the Licensing-Committee.

6.4 Members of the Licensing Sub-Committee must be aware of any potential appearance of bias and must endeavour to avoid giving any potential appearance of bias even though none exists.

7. Lobbying

Of Licensing Committee Members

This table should be used as an aide-memoire only for members who do not sit on the Licensing Sub-Committee regarding applications under the Licensing Act 2003 and Gambling Act 2005. For full guidance, please refer to the Local Protocol for Councillors and Officers dealing with Licensing Matters.