Councils' hours plans defy reform principles

It is, of course, true to suggest that the new local authority licensing committees are "taking over from the justices". I have probably written that phrase at some time myself. But it is not true that they are taking over the role of the justices in deciding licensing issues.

That is a crucial distinction. The justices, as you may also have read, have what is calledan "unfettered discretion". It is they who decide whether ornot a licence, or an extension, should be granted. They obviously listen very carefully to what is said to them. But finally they have the right to make up their own mind.

Reading some of the many draft policy statements that have come my way over the past weeks, it is beginning to become clear that in some ways, several licensing committees do think that they are taking on the role of the justices, particularly in relation to hours of operation.

To read one or two of the policy documents, the idea that permitted hours are to be a thing of the past is clearly inaccurate. Whether it is "suggested hours", "recommended hours" or "core hours", what appears in the policy is a clear indication that a framework is being set, to which the committees expect licensees to adhere when they are making their applications.

I would just point these various councils to paragraph 6.6 of the Guidance, which to be frank, they should have read. It says:

"Arbitrary restrictions that would undermine the principle of flexibility should thereforebe avoided."

Later on, in paragraph 6.9, the Guidance notes:

"Above all, licensing authorities should not fix predetermined closing times for particular areas."

Now it seems to me that while local authorities are entitled to consider the effect of operations at unsocial hours and to express a policy on how they would deal with that, stating any set of recommended hours is absolutely beyond their powers. It suggests that they are in a position to set the licensing agenda and to curb licensees' genuine wish to open for longer, which again the Guidance specifically endorses.

To set any form of curfew, therefore, however worded, is to defy the principles of the new legislation. It almost suggests that any licensee who has the temerity to ask for more, like Oliver Twist, will be sent away with a flea in his ear.

In the case of Westminster, the "core hours" are introduced as those which will "generally be granted", as if the committee is in control. Any hours outside these, says the policy document, "will be considered on their merits".

Forgive me, but I cannot find anything in the Licensing Act 2003 which provides either for core hours, or for judging applications for longer hours on their merits. What the Act says is that people can make representations, but if they do not, or if they do not object to longer hours, they must be granted. The licensing committee does not have a say in the matter.

This is where many councils have lost the plot. They do not want to see their discretion removed, so they are simply turning Nelson's Eye to the clear indications contained in the Guidance. They are also, of course, hoping that if they do lay down some ground rules on hours, other people, such as the police and neighbours, will use such policy statements as the basis for their objections. It will not be long before we hear an objection based simply on the fact that the hours requested "are outside the policy".

Time for the Local Government Association to remind members that they have no role in setting hours. I look forward to the open letter.