Legal advice: Transfer of licences needs clarification
By David Clifton of thePublican.com's team of legal experts at London solicitors Joelson Wilson.
My piece on the Licensing Act 2003 transition fiasco a couple of weeks ago has certainly prompted comments from licensees, pub operators and licensing lawyers who have all been experiencing horrors of their own, writes David Clifton.
A particular concern has been the apparent government view that if your justices licence has been transferred to change the named licensees after February 7, it cannot be converted to a premises licence under the transitional provisions of the Licensing Act 2003.
We are still waiting to learn whether a minister from the Depart-ment of Culture, Media and Sport (DCMS) will enlighten us. But those wondering what to do with a forthcoming transfer application might want to access the joint opinion given by three leading licensing barristers from Gray's Inn, Sir Richard Beckett QC, Gerald Gouriet and Stephen Walsh, available on their chambers' website at www.3raymondbuildings.com/_aoe_pgs/areas-fr.html
They conclude that a subsequent transfer of an existing licence which had effect on the First Appointed Day (February 7, 2005) does not create a bar to granting a new premises licence to succeed it.
The joint opinion contains some complex arguments and makes reference to the following statement made on May 20, 2003, by Dr Kim Howells, then-DCMS under secretary responsible for licensing reform, to the standing committee considering the Licensing Bill:
"…the Bill will not prevent applications for justices licences or for their transfer during the transitional period. A pub company with a licensee who will not give his or her consent to an application for conversion of a licence would be free to recruit a new licensee and seek their consent to conversion".
That said, there is no guarantee that your local licensing authority will take the same view. It may yet be that the point has to be taken to the High Court (or above) for a definitive ruling. You might therefore want to check the position with your licensing solicitor and/or local licensing authority before proceeding with your transfer application.
