Legal advice: Is the Licensing Act friend or foe?

The jury is still out on the effects of changes to licensing and whether legislators have grasped the industry's concerns.

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

The statutory guidance of the Licensing Act 2003 was hotly debated when it came before the House of Lords on June 8.

So who is one to believe? In the government's favour, Lord McIntosh described it as "important legislation" that will provide:

• Radical reform of an essentially 19th century system
• Greater freedom and flexibility for responsible parts of the industry
• Greater choice for consumers
• Opportunities for regeneration, increased investment and new employment
• A more democratically accountable system
• Tougher and more comprehensive powers to deal with irresponsible licensed traders who cause problems within our communities.

"Not so," says Baroness Buscombe for the Tories. She said that the Act was so "seriously ill-thought through" that "the government is concerned with damage limitation". She was supported by Lord Hodgson, who said: "The government has got itself into a terrible muddle. It has failed to understand the practical applications of its legislation."

So who will be the winners in all of this? According to a number of the noble lords, the licensing lawyers will have a field day. At least, so thought Lord Watson (and others), who placed far too much reliance on the now-notorious, and in my view, overly selective and one-sided Panorama programme aired a few weeks ago.

However, there is one definite winner already. Lord McIntosh is apparently a hero among morris men. Yes, the good old morris men made yet another appearance in a parliamentary debate on the Act, as too did circuses and golf clubs. One wonders whether those responsible for our legislation have fully grasped the industry's arguments.

So what about pubs? What was said about how it will affect them?

• Licensing policy​

Local authorities should be getting on with preparation of their licensing policies. I have expressed concern before about the potential for clashes between local policy and national guidance. Lord McIntosh has made the government's position clear.

He said: "The guidance will set a national policy framework which we expect local statements of local licensing policy to complement and reflect.

"When carrying out its licensing functions, a licensing authority may depart from the guidance where it is justified by individual or local circumstances, but the authority will need to set out good reasons for doing so."

The police​

If we are to believe the government, the police are fully in support of "the value of the changes to be implemented through the 2003 Act" and any dissenting views any of us hear (whether on Panorama or on your local high street) do not represent "the consensus". So that's clear, then. I look forward to mentioning this to the next disgruntled police licensing officer I encounter in court!

The cost of the new system​

Quite properly, a great deal of the House of Lords debate concerned fees. The government line is that fees could not be set until the guidance had been approved. Opposition criticism centres on the fact that councils are in the dark as to the fee structure and increased cost will be passed on to council tax payers.

Major concerns were expressed that the government has "vastly underestimated the cost of administering the system" and that this will lead to inadequate enforcement and consultation.

Let's hope that Richard Caborn, licensing minister at the Department for Culture, Media & Sport (DCMS), is good at maths, because he stuck his neck out on June 7 when he said: "Fee levels under the Licensing Act 2003 will be set centrally at a level that allows full recovery of the costs of administration, inspection and enforcement associated with the new system."

Perhaps greater weight should be placed on the words of Lord McIntosh who, the following day, commented about fee levels: "If necessary, and at whatever interval, they will be reviewed." Just remember that this Act was supposed to save you money.

The timetable​

There was plenty of debate about how long the entire process is taking. It is funny how a criticism of "inordinate delay" can be turned by "government-speak" into "prolonging the period of consultation to allow everybody time to build their case" - Lord McIntosh's words, not mine.

Enough was said to lead me to put my money firmly on the first appointed day (ie the beginning of the transitional period) not occurring until January, or even February next year.

Hopefully, we will be told for sure next month. In fact, by the time you read this, we may have a better idea as the parliamentary debate on implementation of the Act, called by Mark Field MP - no doubt with great support from the City of Westminster Council - will have taken place on June 23.

The DCMS is now indicating that the draft secondary legislation (dealing with such matters as procedures and fees) will be published in the latter part of July, to be followed by a period of full consultation. So it could easily be November before it is absolutely finalised.

Perhaps Lord Avebury was correct when he said: "At least part of the dawdling was intended to see that the second appointed day would not be until after the next General Election. Any ill effects of the Act would not be felt until after the government was safely back in office, as they would see it."