Free The Night begin legal challenge on licensing decision
Free The Night has begun a legal challenge to the Minister for Communities’ response to Northern Ireland’s independent licensing review.
This challenge is being brought by DJ Holly Lester (co-founder of Free The Night) and Free The Night. Phoenix Law, acting for Holly and Free The Night, have issued a pre-action protocol letter to the Department for Communities and the Minister. The letter is the first step in a judicial review of the decision to reject the key recommendations of the University of Stirling’s Independent Review of Liquor Licensing in Northern Ireland, including the Surrender Principle, and to retain the current system.
Phoenix Law solicitor Darragh Mackin, who has successfully represented Bob Vylan and Kneecap in recent high-profile cases against the BBC, the British Government, and RTÉ, has outlined the clear challenges below.
The Minister and Department have:
1. Wrongfully received evidence from a third party outside the Independent Review.
2. Placed undue weight on the evidence from a third party, in comparison to the conclusions of the Independent Review who were by law commissioned to review the legislation.
3. Maintains a process that is fundamentally anticompetitive and continues to impact local artists, breweries, business owners and would-be business owners.
4. Failed to refer the matter to the Executive despite the fact the Department of Economy had conducted its own costings in respect of the licensing system.
The Stirling review, which cost nearly £500,000 in public money, found that the “surrender principle” - which prevents new pubs, nightclubs and other licensed third spaces from opening, unless an existing licence is bought and extinguished - artificially restricts the number of licensed premises, inflates licence values, makes it extremely difficult for new, independent and community-led venues to open, and encourages licences to move into large off-sales rather than community spaces. It recommended fundamental reform, or abolition, of the surrender principle, new licence categories for cultural and live-music venues, and a fairer occasional licence regime.
In contrast, the Department’s Section 23 plan and the Minister’s statement to the Assembly reject those core recommendations. They criticise the Stirling review for not being “costed” or “impact assessed”, and instead rely on what is described as “extensive evidence” from Hospitality Ulster, including an estimated £313.7 million loss in “trading value” if reforms proceed. The Department has confirmed it produced no detailed internal costings of its own and adopted Hospitality Ulster’s figures, which have not been published.
The legal challenge also raises questions about whether the Department failed to take proper account of work already carried out by the Department for the Economy on the cost of the surrender principle, whether it should have treated the issue as “cross-cutting” under the Northern Ireland Act, and whether it has met its Section 75 duty to properly consider the equality and good relations impacts of its decisions before acting.
If successful, the case would ask the court to quash the current response and require the Minister and Department to reconsider the Stirling review lawfully, transparently, and on the basis of proper, independent evidence.
The pre-action letter asks the Department to provide a detailed response and to disclose key documents. These include any costings and reports on the surrender principle prepared by the Department for the Economy, correspondence with Hospitality Ulster and the Belfast Business Improvement Districts about the Stirling review and surrender principle, and any equality assessments linked to the Section 23 plan and the Minister’s statement.
The Department has been asked to respond within 14 days. If the response is not satisfactory, Holly Lester, co-founder of Free The Night, intends to apply to the High Court for permission to proceed with a judicial review.
Holly said:
“This was a real opportunity to transform nightlife in Northern Ireland, and it’s been wasted. An independent review was commissioned, a huge amount of public money was spent, and in the end the Minister has chosen to maintain the status quo.
That decision affects so many aspects of nightlife, including how many venues and nightclubs we have, whether pop-ups and festivals are viable, even down to the price of a pint. This has been building for decades, and it’s become impossible to ignore. Creatives and entrepreneurs have been leaving in their droves, opportunities are shrinking, and our talent is draining away because the system makes it too hard to stay.
After five years of working on Free The Night and nearly 20 years experience in the local music scene, I’m not willing to let this opportunity slide. There is a real demand for change now across society, whether that’s from creatives, would-be or current business owners and the general public themselves. We’re not backing down.”
Boyd Sleator, co-founder of Free the Night, adds:
“The current system isn’t fair. If you want to open a new venue or build a cultural space, you’re forced to buy an existing licence, which can cost hundreds of thousands of pounds, and even then, you’re not guaranteed anything. You can still be stalled or blocked by objections from the people already in the market. So it’s not just one-in, one-out. It’s one-in, then fight your way through a process where incumbents have the time, resources and incentives to keep new entrants out.
That’s not a level playing field, and it’s why independents and community-led spaces struggle to get off the ground here. The Stirling review offered an evidence-based route to reform. Rejecting that in favour of unpublished material from those who benefit from the status quo is a decision we believe has to be tested in court.”
Solicitor Darragh Mackin (Phoenix Law) said:
"This case seeks to unlock and unshackle the prehistoric laws and practice intertwining with licensing and the night time economy in this jurisdiction. The Stirling review produced a chance for change. This chance was however contaminated through the injection of irrelevant factors to which are now at the epicentre of this judicial review. "
