Legal advice: Order of the day

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After all the trouble with licensing applications, will everything else run smoothly up to November 24?By Anna Mathias of thePublican.com's team of...

After all the trouble with licensing applications, will everything else run smoothly up to November 24?

By Anna Mathias of thePublican.com's team of legal experts from London solicitors Joelson Wilson.

Considerable unease and uncertainty has prevailed among many licensees following the recent and much-publicised rumblings of dissent from opposition MPs surrounding the 2003 Licensing Act. What exactly is going on in the Palace of Westminster and could these shenanigans jeopardise the passage into force of the Act altogether?

Enquiries of the House of Commons information service into the somewhat obscure world of Parliamentary procedure have revealed that the position may not be as bad as certain elements of the press would have us believe.

Two Orders made at the beginning of August give effect to the Act in various ways. One designates the Second Appointed Day upon which old-style justices' licences will fall away and the new premises licences will take over. The second brought several important provisions of the Act into force from August 7, not least the ability for licensees who have already converted their licences to make a separate application for a variation if, for example, the requirements of their business have changed or staff have moved on so that the designated premises supervisor needs to change.

The worry was that any opposition-led challenge would prevent licensees availing themselves of these provisions until a debate had sorted things out. Advice from Parliament itself is that this particular order cannot be challenged and thus the relevant provisions of the Act have been in force since August 7 and will remain so.

What of the Second Appointed Day? What if, after all this trouble and expense, the whole thing fails to go through?

It is hard to see licensing authorities refunding the fees already paid over, given the resources that they have expended so far.

It seems that the need for them to do so is unlikely to arise. While a challenge to the order naming November 24 as the day is possible and has been threatened, it may well not even get off the ground.

If the procedure (which goes by the quaint old name of "praying") is invoked within a timescale of 40 sitting days from the resumption of Parliamentary activity on October 10, it would result in an "early day motion" (EDM) being laid for debate before both Houses of Parliament. Defeat for the government in either House could scupper November 24 altogether.

But - and it is a big but - no Parliamentary time is ever set aside in advance for EDMs so the matter will not get Parliamentary "airtime" unless it is backed by some very important figures in the official opposition, or by a very large number of MPs.

The numerate among you will have noticed that 40 sitting days takes us past November 24! Opponents of the legislation will have to act before then, though, because once the date is upon us it will be too late to do anything about it.

In the unlikely event that the debates do take place, it would take 38 MPs to defect to the other bench to defeat the government in the Commons. Furthermore, the Lords traditionally (a few exceptions such as Lord Dobson aside) have been loath to interfere with matters of this sort.

For the time being I, for one, would keep my new licence (assuming I have been fortunate enough to have been issued with it, that is) polished and ready to make its debut on November 24.

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