Legal advice: The final draft guidance for the Licensing Act

The final draft guidance for the Licensing Act might please the Home Office more than the licensee.

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

Your starter for 10. What is an HVVD? No, it's got nothing to do with heavy goods vehicles or sexually transmitted diseases. Give up? I'll tell you. It's a "high volume vertical drinking" establishment. At least that's what the final draft of the statutory guidance under the Licensing Act 2003 says it is.

Too little information? I'll go on. HDDVs are defined in the guidance as "premises with exceptionally high capacities, used primarily or exclusively for the sale and consumption of alcohol" with "little or no seating for patrons".

The government does not appear to like them, or, at least, in new additions to the draft guidance, it is suggesting that "where necessary and appropriate" conditions might be attached to premises licences for HDDVs with a view to preventing crime and disorder. The conditions would require adherence to:

• a prescribed capacity
• a minimum number of tables and chairs
• the presence of "SIA-registered security teams".

Changes introduced into the long-awaited final draft of the guidance appear to me, in the main, to favour those who have been arguing that the new act will inevitably result in greater crime and disorder and inability of local services to cope.

If rumours of a power struggle between the Department for Culture, Media & Sport (the department responsible for licensing) and the Home Office (responsible for issues relating to crime and disorder) are true, I think that David Blunkett's team at the Home Office should be slapping each other on the back. I say this because changes introduced at the last minute also include:

• references throughout the guidance to the dangers of alcohol misuse, with some pretty selective quotation of statistics for example "One in five violent incidents occur in or around a pub or club" and "a quarter of the population consider drunk and rowdy behaviour a 'very' or 'fairly' big problem in their local area". (I can see these passages being seized on by licensing authorities keen to refuse or restrict an otherwise perfectly good premises licence application).
• a strong suggestion that operating schedules should contain details of the amount of seating proposed "because research has shown that the amount of seating can be relevant to the prevention of crime and disorder".
• an encouragement to licensing authorities to hold regular open meetings with the local community before reviewing local licensing policy in the light of feedback from those meetings.
• advice that capacity limits (by implication lower than those recommended for public safety purposes) might be set "to prevent overcrowding which can lead to disorder and violence".
• a recommendation that licensing authorities consider, in certain circumstances, whether it would be appropriate to impose a new condition "prohibiting irresponsible sales promotions or the discounting of alcoholic drinks prices".
• expanded reference to conditions imposing bottle bans with no mention being made of the "public safety" reasons why many people, particularly women, now prefer to drink direct from a bottle.

The final form of the guidance also reminds local authorities that they now have extensive powers under the Anti-Social Behaviour Act 2003 to close licensed premises which are causing a nuisance or which have a Class A drug problem.

The point is made that the government will be monitoring the impact of the new act on crime and disorder and each of the other licensing objectives and that, if necessary, further legislation will be introduced to strengthen or alter the act.

One of the key provisions of the new legislation will be the abolition of the present permitted hours regime. Everyone must hope that the 2003 act will achieve its clear aim to get rid of the ancient British tradition of binge-drinking.

Another of the new additions states: "At present, permitted hours for ordinary public houses are set at times that research suggests are artificially early, causing a high proportion of customers to remain until the fixed closing time. The benefit of later closing times, even if many are similar, is that customers will leave for a variety of reasons at a variety of times. For example, if all the public houses in a single street could open until 3am, this would allow customers a far longer period than now to leave and disperse from that area."

My experience from appearances in licensing courts and before public entertainment licensing committees around the country is that this is one aspect of the guidance that a number of licensing authorities and police officers will find difficult to swallow.

There will still be a delay before the redrafted act can be implemented and there are still a number of questions left unanswered by the latest draft. I shall examine these next week.

Transitional period timetable​

As I understand it, parliamentary time will not allow for the final draft guidance to be approved by both Houses of Parliament until May at the earliest.

Of course, it may not even be approved then, in which case a wholly fresh version will have to be laid before Parliament, meaning further delay in commencement of the transitional period and full implementation of the Act.

There are those, I suspect, who would welcome this, from local authorities concerned that otherwise the initial part of the transitional period will be disrupted by Christmas and New Year holidays, to pub operators who would prefer the existing regime to remain in place for as long as possible, and indeed anyone who feels that the guidance should not be approved before publication of the draft regulations dealing with forms, fees, processes and hearings etc.