Legal advice: Parliament debates draft guidance

The Licensing Act has entered the final stages of parliamentary debate.

By David Clifton of thePublican.com's team of legal experts.​

By the time you read this, the House of Lords Committee will be about to debate the statutory guidance published under section 182 of the Licensing Act 2003 - scheduled for June 8. Time will tell whether the government will experience a rougher ride than it did in the Commons on May 26.

By a vote of eight to four, the House of Commons Committee on Delegated Legislation approved the draft guidance, which had been laid before Parliament on March 23. There was never any real room for amendment of any aspect of the draft, as rejection of any part would have necessitated production of a completely fresh version and a repeat of the whole parliamentary approval process.

Nevertheless, the draft guidance came in for some fairly damning criticism and many will question whether a proper debate could ever have taken place within the mere hour and a half allotted. This was certainly the view of Conservative MP Malcolm Moss, who described the Act as having "real problems" and being in "complete chaos".

Ignoring the disproportionate time spent by the committee debating the effect of the Act and the guidance on golf clubs and circuses, you might be interested in the following aspects of the House of Commons debate:

The players:​

• Guidance v Policy:​ All local authorities, when formulating their new licensing policies in the six months following the "first appointed day", must "have regard to" the guidance approved by Parliament. Licensing minister Richard Caborn told the committee that this "does not mean that licensing authorities must therefore slavishly follow the terms of the guidance to the letter".

Regulations:​ The government does not consider that it would have been "necessary, sensible or desirable" for the draft regulations dealing with such matters as fees, application procedures, time limits and hearings to have been made - or even apparently published in draft - before approval of the guidance.

Fees:​ The question of fees occupied a good portion of the debate, with concerns being expressed that council tax may have to increase in order to cover the cost to local authorities not met by licensing fees. Nevertheless, Richard Caborn stuck to the government's guns, saying that they were "not moving at all on fees." However, we still await details of his "fair formula for deciding the fees", which he has described as "cost-neutral and price-reflective".

Local Government Association:​ Serious criticism was made of the dissension on the part of the Local Government Association, described by Malcolm Moss as being "very unhappy about the draft guidance". He drew attention to the fact that the LGA's lawyers have described parts of the guidance as containing omissions, inaccuracies and incorrect statements. The LGA represents local government bodies throughout the country - the very people who will be administering the new licensing system. Richard Caborn's response was to the effect that if they were unhappy, the LGA would have to challenge the guidance in the courts. Malcolm Moss's response: "If the DCMS continues to set its face against those with whom it is supposed to be working, it should not be surprised if it hits the buffers."

First appointed day:​ Criticism was also voiced in relation to a possible commencement of the transitional period in November. The example was given of Westminster Council possibly receiving 1,814 conversion and 1,234 variation applications in the first four weeks of the transitional period. With an estimated 56 per cent receiving objections, this would mean that by week eight, Westminster would be facing 346 cases in sub-committee, ie 69 hearings per day, equivalent to 10 hearings an hour for seven hours a day with six minutes per hearing! And all of this in the Christmas/New Year holiday period. Richard Caborn did at least concede that he saw no reason why commencement of the transitional period could not be moved to January 2005 and that the government would consider this "if a case was made for it".

Red tape:​ A final comment: Richard Caborn believes that the 2003 Act (and its accompanying guidance) is a "shining example" of the government having reduced both red tape and bureaucracy. If you disagree, you might want to send him a postcard - I hope the postman has a strong mailbag.