A recipe for confusion
We are now just over a week away from the first critical day in the transition process from the old licensing regime to the new. It is a good time to see if the theory has translated into practice.
Clearly, the first thing that has gone wrong is that, unlike Noah and the Ark, the animals have not gone in two by two, in orderly procession, over the six months they were allowed. In fact, the animals will be fighting to get on board up to the last possible moment.
By 6 August, which is Saturday week, when the majority of town halls will not be open for business, applications for no less than 177,000 premises licences and club premises certificates should be lodged. They will not. That much is clear.
No-one has a sure idea what the shortfall will be. But it may be as high as 40% of the existing licensed and club trade. Purnell's Pied Piper will have played, but a great many will not have been listening.
The main problem, as I pointed out four years ago, is that it is not a great idea to change both the licensing authority and the rules of the game at the same time. It requires both sides to learn new tricks too quickly and without proper guidance. It is a recipe for confusion.
Those politicians who attempt to blame the licensed trade for the mess we are now likely to find are entirely missing the point.
The licensed trade did not ask for a complicated and convoluted transitional process; nor did the trade need a system which has allowed nit-picking, niggling, small-minded bureaucrats to exercise unwarranted control over its existing rights.
The Government's original idea, so forcibly rammed down my throat even before the White Paper was issued, was that local authorities would not have any discretion on licensing matters: they would take decisions based on the evidence and opinions placed before them by local people and local organisations. Most licensing processes would be a question of ticking boxes.
So much for that idea. In spite of the sterling efforts of the licensed trade bodies in the Canterbury case, local authorities are still ruling the roost, unable of course to resist telling licensees what they want to see in operating plans, what they expect in terms of hours and how they would require pubs and other premises to be operated.
The problem that the Government did not see is that legislation is one thing, but ingrained practices cannot be legislated out. Local authorities have 'authority: they tell people what to do. Canterbury's policy was exactly what you would expect: scores of others, both in theory and in practice, do the same.
Lawyers with whom I have worked for many years know that local government operates on its own agenda and is unable to differentiate between discretion and obligation to any meaningful degree. Given the concept of licensing objectives in the new legislation, they will inevitably see these as their own, to be pursued unilaterally, whatever the legislation may decree.
So they will tell licensees what they expect, and they will expect licensees to do what they say. Already, I am aware of many applicants who have been instructed on what they will or will not be allowed, even before they have submitted the actual application forms.
Of course the policies pay lip-service to the idea that 'representations must precede the engagement of the local authority's discretion. But who is kidding whom? Most ordinary licensees, told that something 'will not be allowed by an official, will accept this as an instruction. It is true that the operating schedule is to be written by the applicant. But reality knows otherwise.
