Licensing decisions under scrutiny: avoiding procedural fragility

Most licensing decisions that come apart do not come apart on the merits. They come apart on the process, and usually on a part of the process nobody thought was contentious at the time.

Where the fragility sits

A licensing sub-committee can reach an entirely sensible conclusion and still find itself in difficulty, because the route to that conclusion was not properly constructed. Appeals to the magistrates' court under the Licensing Act 2003 proceed by way of rehearing, so a weak process is not always fatal there. Judicial review, ombudsman complaints and the reputational consequences of a decision that cannot be explained are another matter entirely.

Four areas account for most of the trouble.

One. Relevance

Sub-committees are required to have regard to representations that are relevant, and to disregard those that are not. In practice the discipline slips. Representations about competition between businesses, about the character of an applicant in general terms, or about matters comfortably outside the licensing objectives find their way into the bundle and then into the discussion.

The remedy is procedural rather than legal. The report should identify what is relevant and why, the chair should be prepared to intervene, and the decision should record which representations were taken into account. A committee that has visibly considered an irrelevant matter has handed the other side its first ground.

Two. Reasons

Reasons remain the most common weakness. A determination which recites the objectives, notes that representations were received, and then states the outcome does not tell the reader why the committee decided as it did.

Adequate reasons deal with the substantial points raised, and let the parties understand why they won or lost.

That does not require length. It requires the committee to say what it found on the disputed issues, which evidence it preferred, and how the conclusion follows. Where conditions are imposed, the reasons should explain what each condition is for. Where a committee departs from its own policy, it must say so and explain the departure, because an unexplained departure is very difficult to defend.

Reasons drafted days after the hearing, by someone reconstructing what the members probably meant, are noticeably worse than reasons drafted with the committee while the deliberation is fresh. Legal support in the room pays for itself here.

Three. Procedural fairness at the hearing

The Licensing Act 2003 (Hearings) Regulations 2005 set the framework, but fairness demands more than the regulations spell out. Parties should know the case they have to meet, which means late evidence needs to be handled openly rather than absorbed quietly. Time allocations should be even. Questions from members should be put to both sides. Anything the committee is shown, the parties should have seen.

Site visits deserve particular care. A visit is a means of understanding the evidence, not a means of gathering it privately. Where members visit, the parties should be told, the purpose should be recorded, and anything observed which might influence the decision should be put to the parties for comment.

Deliberation and the role of officers

Where members retire to deliberate, the position of the licensing officer who presented the report needs thought. Advice from the legal adviser is proper and often necessary. The presence of a party's advocate, or of the officer who effectively made the case, is a different matter. If legal advice is given in private, the substance should be reported back in open session so both sides can respond to it.

Four. Policy that is doing no work

A statement of licensing policy which is out of date, or drafted so generally that it points in no particular direction, provides no anchor for decisions. Committees then decide each case on instinct, consistency drifts, and the authority loses the ability to explain why two similar applications were treated differently.

Policies should be reviewed on schedule, grounded in evidence, and specific enough to guide a decision without fettering it. Cumulative impact assessments in particular need to be supported by the evidence the Act requires, and revisited when that evidence changes.

A short checklist for committee support

• Does the report separate relevant representations from irrelevant ones, and say why?
• Have all parties seen everything the committee will see?
• Is there a template that prompts findings on each disputed issue, not merely an outcome?
• Are conditions drafted to be precise, enforceable and linked to a specific objective?
• If the committee departs from policy, is the departure identified and explained?
• Are reasons settled while the deliberation is fresh, with legal support available?

None of these are difficult. They are simply easier to build into the process in advance than to reconstruct once a decision is being challenged.