Licensing Act 2003 hearings during the Covid-19 pandemic

The 4 April 2020 saw the coming into force of The Local Authorities and Police and Crime Panels (Coronavirus) (Flexibility of Local Authority and Police and Crime Panel Meetings) (England and Wales) Regulations 2020.

The Regulations apply to local authority meetings and police and crime panel meetings that are required to be held, or are held, before 7 May 2021 and provide for the remote access of, and remote attendance at, local authority meetings.  A “local authority meeting” is defined in the Regulations as a meeting of a local authority, an executive of a local authority, a joint committee of two or more authorities or a committee or sub-committee of any of the aforementioned.  

“Remote access” is to be construed in accordance with the provision for “remote access of public and press to a local authority meeting to enable them to attend or participate in that meeting by electronic means, including by telephone conference, video conference, live webcasts and live interactive streaming”. 

The “remote attendance” of members is to be construed with their attendance at a meeting when they are able to hear and see, and where practicable be heard and be seen by the other members and members of the public entitled to attend the meeting to exercise their right to speak, and those members of the public attending the meeting.  The Regulations provide for a local authority to make standing rules and orders as to remote attendance as regards voting, access to documents and the attendance of the press and public. Importantly, the Regulations also make it clear that any reference to a “place” where a meeting is held or to be held includes a reference to more than one place. 

The Regulations also make further provisions for modifications to Schedule 12 of the Local Government Act 1972 but make no explicit reference to the Licensing Act 2003 – the local authority functions and obligations under which have not been suspended due to the Covid-19 pandemic.  So, can a local authority in its capacity as a licensing authority, hold a hearing required under the 2003 Act remotely?  

We consider the answer to be “yes”.  Firstly, we consider that given the 2020 Regulations’ definition of a “local authority meeting” they apply to licensing hearings and secondly, even if the contrary were successfully argued, we consider that such hearings may be conducted remotely by virtue of the 2003 Act and the Licensing Act 2003 (Hearing) Regulations 2005.

While we would advise that the parties concerned redouble their efforts to avoid the need for a hearing, at times it will not be possible to reach a compromise on contested applications, and unless all parties consent to dispense with a hearing,  a hearing must be heard within the specified time limits and in accordance with the requirements as regards notices and publication; access to information and papers; the right to speak and be heard and the right of the press and public access (subject to the power to exclude in certain circumstances) provided for under the 2003 Act and the 2005 Regulations.

However, subject to its requirements, the licensing legislation affords a licensing authority considerable autonomy to regulate its own procedures and those of its sub-committees hearing applications brought under the 2003 Act. While the 2005 Regulations use terms such as “attendance” and “appearance” they do not specify that such attendance or appearance requires a physical presence.  

As such, and notwithstanding the 2020 Regulations, we consider there is nothing in the 2003 Act or the 2005 Regulations that prohibit the remote conduct of licensing hearings.  Notification and publications, the submission of, and access to, papers pertaining to a licensing hearing can be facilitated online (with appropriate safeguards to data protection), and with some forethought, planning and liaison with the parties as to the use of remote technology, the hearings and the sub-committee’s deliberations can be conducted remotely with the rights of the parties, the press and the public upheld. 

In conjunction with a thorough consideration of the requirements of the licensing legislation, compliance with the 2020 Regulations as regards the conditions that must be fulfilled “remote access” and “remote attendance” should ensure that a remote licensing hearing is effective.  It is also worth remembering that R (D&D Bar Services Ltd) v Romford Magistrates’ Court [2014] EWHC 213 (Admin) is authority that licensing decisions will not be automatically invalid for a procedural defect if there has otherwise been substantial compliance with the licensing legislation, and in his recent directions to the courts and tribunals, the Lord Chief Justice has made it clear that everyone must do their best to get hearings dealt with virtually, and we do not consider that a contrary view would be taken in the case of administrative committees.

Further information

Please contact Matt Marsh if you have any question about the content of this e-briefing. 

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