First draft of the Licensing Bill guidance examined

by David Clifton of thePublican.com's legal team of experts from London solicitors Joelson Wilson​

The government has now issued the first draft of guidance ­ a document that will instruct licensing authorities on how to tackle the new Licensing Bill.

The very hurried preparation of what the government is calling "an early rough draft" of the guidance follows severe criticism from a number of quarters. Some ministers have said that serious debate on the content of the bill could not be possible until the guidance was available for public scrutiny.

Culture secretary Tessa Jowell described the guidance as 'a crucial mechanism for enabling the government to promote consistency and best practice and to respond to developments which may arise from time to time in connection with the sale of alcohol or the provision of regulated entertainment and late night refreshment'.

'Crucial' it may be, but how good is it?

On reading the draft guidance for the first time, I passed through feelings of "actually this is quite good" through to "is this really adding anything of value?" to "this has every sign of being a very hastily prepared document".

Perhaps it is too early to pass judgement. The first draft of the guidance will be changed following consultation and it is designed to be a document that will be kept under constant review once the new legislation is in force.

I am not going to be able to condense the 104 pages of the guidance into one article, so I will comment on aspects that leapt out from the pages at me.

Proper decisions​

One of my major concerns is that councillors sitting as licensing authorities will "steer the middle line" and reach too many "compromise" decisions. They will need to bear in mind guidance that "the views of vocal minorities should not be allowed to predominate over the general interests of the community that the committee represents".

Guidance v licensing policy​

All licensing authorities must follow the guidance when carrying out their functions, including making their own licensing policy. However, the guidance makes it clear that they may depart from it provided that they give good and full reasons for doing so.

Indeed the government appears to indicate that it anticipates some conflict arising. The guidance says that it is important that licensing authorities should guard against the possibility of driving a wedge between the hospitality and leisure industries.

Positive stuff​

On a more positive note, the guidance states that licensing policies should make it clear that licensing law cannot be used to control anti-social behaviour by individuals once they are beyond the direct control of licensed premises. It encourages delegation of functions to licensing officers and discourages the culture of annual inspections "regardless of whether such inspections are necessary". All good stuff!

Anti-noise and disorder measures​

Sensible comments are also made about the merits of flexible licensing hours to reduce the number of customers leaving premises simultaneously.

It says that fixed and artificially early closing times promote binge-drinking and excessive pressure at places where fast food is sold or transport provided. The guidance says that "above all, licensing authorities should not fix predetermined closing times for particular areas".

In a similar vein, police and licensing enforcement officers are encouraged to report to local authority transport committees to assist in dispersing people swiftly and safely from town and city centres at night. Dedicated text or pager links between management teams and local police stations are rcommended and discouraging discounting of drinks prices.

Need​

Contrary to the hopes of some, need in the sense of the commercial demand for another pub­ is not to be a matter for a licensing authority. The guidance describes need as "a matter for planning committees and for the market".

Nevertheless, the guidance envisages authorities adopting a special policy of refusing new licences because an area is already saturated with licensed premises. More room for argument, particularly as the guidance makes it clear that each new application should be considered properly!

Conditions​

The guidance says that standardised conditions should be avoided and that conditions should not be attached unless they are really necessary.

This includes safe capacity conditions, which the guidance says should only be imposed where necessary for public safety. Some sectors of the industry will be disappointed that the guidance makes it clear that no conditions relating to the qualification of designated premises supervisors should be attached to any premises licence.

Music to one's ears​

Following hot on the heels of the draft guidance was the package of licensing measures announced by licensing minister Kim Howells on February 18, apparently designed to allay fears about the Licensing Bill¹s impact on live music. More about that next week, but it is interesting that the government sought inspiration from the Beatles in announcing this particular package under the banner heading "We can work it out".