Agenda item

To recommend to full Council that it should continue the operation of the existing Licensing Committee until the Annual Meeting in order to ensure that the Council’s statutory duties to hear Licensing applications are discharged and to continue in operation the Licensing sub-committees for the same purpose.

(Agenda Item 6):

The Chair invited the Legal Adviser, Terence Mitchison to present his Report to the Committee. Mr Mitchison explained to the Committee that the purpose of the Report was to recommend to full Council that it should continue the operation of the existing Licensing Committee until the Annual Meeting in order to ensure that the Council’s statutory duties to hear licensing applications are discharged and to continue in operation the Licensing sub-committees for the same purpose. Mr Mitchison outlined the background to the need to agree to the recommended measures highlighting that there was a particular problem in connection with licensing decisions under the Licensing Act 2003 in relation to the period of purdah. In practice, it was highlighted that applications being made in late March or early April that result in objections, there could be a legal obligation to hold hearings between the Local Government Elections ( 4 May 2006) and the Annual Council (22 May 2006), to be referred to as the “interim period”. Mr Mitchison pointed out that no provision is made in the Licensing Act 2003 to enable hearings to be deferred until after this period. Furthermore, it was raised to Members’ attention that a Licensing Committee must have a membership of at least 10 but not more than 15 councillors during the interim period. With this in mind, Mr Mitchison recommended that the Committee should resolve to extend the appointments of its Licensing sub-committees (or at least those that had three Members) from the Local Government Elections until the Annual Meeting subject to the Members in question being re-elected on 4 may 2006. It would also be subject to the Licensing Committee only having power to act for the purposes of determining any applications that the Council was legally bound to have determined during the interim period. Mr Mitchison suggested a final recommendation as a safeguard against the possibility that none of the Licensing sub-committees still have three Members after the Elections, and that the Licensing Committee itself has less than 10 Members, it is was recommended that a special delegation be granted to the Chief Executive. This would be a delegated power to appoint any additional councillors needed to make up the membership of the Licensing Committee to 10. This delegation could only be exercised in the interim period. It must be granted by full Council. Accordingly, the Licensing Committee is asked to recommend such a delegation to the meeting of full Council on 20 March 2006. the General Purposes Committee will be invited to make a similar recommendation when it meets on 2 March 2006.

The Committee discussed the recommendations of Mr Mitchison as length. Councillor Rice asked if the recommendation would have an impact on the life of the incoming Council in terms of changes to the articles of its Constitution. Mr Mitchison responded that the Local Government Act limited the Council from continuing provisions of a committee into another municipal year unless there was an express request of the current Council.

Councillor Dobbie raised his concern that only the Mayor could designate powers to a committee during the interim period and requested that the recommendations be looked over by Counsel and agreed in writing before they were ratified by this Committee. Cllr Dobbie also asked if any other London local authorities had arrangements in place to cover the interim period. Finally, Cllr Dobbie highlighted that any Members appointed under the special delegations proposed, would have to be fully trained under the provisions of the Licensing Act 2003. Mr Mitchison explained that delegated powers to the Mayor were not enough for the situation relating to the interim period and that delegation to the Chief Executive would be legally more sound than delegating to any other Member or officer. Mr Mitchison indicated that he had looked at what other local authorities were doing but not been convinced that the various provisions were legally as tight as the recommendation before this Committee. With reference to Member training, Mr Mitchison stated that it would be necessary to choose well experienced and trained Members and that it was hoped that there would at least be three experienced members available after the Local Government Election.

Councillor Beacham asked Mr Mitchison if there had been any advice issued from the Association of Local Government (ALG) or any other agency. The response was that the problem had been created by the legislation and that there had been no guidance from the government (through the Department of Culture, Media and Sport (DCMS) or any other government departments. The feeling was that government anticipate the probability would be that applications will not come through during the “interim period”. Mr Mitchison accepted that the delegation of powers to the Chief Executive was unusual, but re-emphasised that the course of action was completely legally sound. In response to a request of clarification from Councillor Rice, Mr Mitchison stated that appointments by the Chief Executive would be unconstitutional at the sub-committee level. However, powers of delegation at the parent body level would be permissible – that body having powers to appoint sub-committees as necessary.

The Chair, in summing up the discussions, called for more work to be completed in ensuring that the recommendations were robust. This would mean seeking guidance from the ALG; finding out what other London Borough were doing to cover the interim period; and obtaining the go-ahead from Counsel on the legal robustness of the recommendations. The Chair proposed to bring the item back to a licensing committee to reconsider after this additional work had been completed.

RESOLVED

Defer the decision on whether to accept the recommendations to a special meeting of the Licensing Committee before submitting the decision for ratification by the General Purposes Committee.