PAPER B3

Purpose: For Decision

Committee: LICENSING COMMITTEE

Date: 1 FEBRUARY 2005

Title: TO ADOPT THE ENVIRONMENTAL HEALTH LICENSING ENFORCEMENT POLICY STATEMENT.

REPORT OF THE HEAD OF CONSUMER PROTECTION

PURPOSE/REASON

1. To consider and, if appropriate, adopt the Environmental Health Licensing Enforcement Policy Statement (Appendix 1 and Appendix 2). The Statement will be used to assist officers decisions engaged in enforcement activities. The licensing specific guidance will also clarify the delegated authority to officers.

DETAILS

2. In order to assist best practice in enforcement decisions, compliance with law and best value performance enforcement policy statements are required.

3. Failure to possess a formally adopted Enforcement Policy could lead to inconsistent, untargeted enforcement action resulting potentially in unjustified costs to businesses, justified complaints of maladministration and unsatisfactory audits by Best Value Inspectors.

RELEVANT HISTORY

4. Environmental Health’s General Enforcement Policy statement was approved by members in 2001. The Licensing Section was not specifically included and accordingly this revised version seeks to clarify the position and scheme of delegated authority to officers as respects licensing matters.

COUNCIL POLICY

5. The Environmental Health Licensing Enforcement Policy Statement has to have due regard to enforcement concordat and Crown Prosecutors Service guidance.

FORMAL CONSULTATION

6. The Enforcement Policy Statement was considered by the citizens panel in September 2004 and additionally by those consulted about the Liquor Licensing Policy Statement.

7. No adverse comments were received in relation to the policy and 63% of respondents indicated that the aims of the policy were either very easy or easy to understand.

FINANCIAL IMPLICATIONS

8. Expenditure on licensing matters where fees are regulated by the Council, in most instances, balances the income. Failure to possess a formally adopted Enforcement Policy could lead to inappropriate, inconsistent, untargeted enforcement action resulting potentially in unjustified costs to businesses, justified complaints of maladministration or successful appeals to Courts of Law with awards of costs against the Council.

LEGAL IMPLICATIONS

9. The lack of an adopted enforcement policy could impact upon Human Rights legislation as detailed below.

IMPLICATIONS UNDER THE CRIME AND DISORDER ACT 1998

10. Many of the functions performed by licensing officers have an impact upon crime and disorder. In order to assist the targeting of resources and enforcement decision making an adopted enforcement policy statement is desirable.

IMPLICATIONS UNDER THE HUMAN RIGHTS ACT

11. Members are advised that this Policy must be considered against a background of the implications of the Human Rights Act 1998.

There are three convention rights which need to be considered in this context:

a) Article 6 - Right to a fair trial

In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.

It has been held that the fact that there is a right of appeal to the magistrates’ court from any decision of the Committee is sufficient to make the Council’s licensing system compliant with the convention rights.

b) Article 8 - Right to respect for private and family life.

Everyone has the right to respect for his private and family life, his home and his correspondence. In the case of article 8 there shall be no interference by a public authority with the exercise of this right except as such in accordance with the law and is necessary on a democratic society in the interests of national security, public safety or the economic wellbeing of the country, for the prevention of disorder and crime, for the protection of health or morals or for the protection of the rights and freedoms of others.

c) Article 1 of the first protocol – protection of property.

Every natural or legal person is entitled to the peaceful enjoyment of his possessions. In the case of Article 1 of the first protocol it states that “no one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and the general principles of international law. The preceding provisions (of which articles 6 and 8 are but two) shall not however in any way impair the right of the state to enforce such laws as it deems necessary to control the use of the property in accordance with general interest or to secure the payment of taxes or other contributions or penalties”.

Officers believe these rights have been considered in the Policy and in accordance with the Licensing Authority’s legitimate aims.

OPTIONS

12. To approve the Licensing Enforcing Policy Statement and adopt it.

13. To approve the Licensing Enforcing Policy Statement after any agreed amendments and adopt it.

EVALUATIONS/RISK MANAGEMENT

14. The Committee will be aware that Officers have taken into consideration the legal, financial and best practice requirements to have an adopted enforcement policy to guide officer decisions.

RECOMMENDATIONS

15. To approve the Licensing Enforcing Policy Statement and adopt it.

APPENDICIES ATTACHED

16. Appendix 1: Environmental Health Licensing Enforcement Policy Statement

Appendix 2: Licensing Specific guidance

Contact Point: Warren Haynes, 823151

ROB OWEN

Head of Consumer Protection