Guidance must not be secondary legislation - Peter Coulson

Recently, I have been reading a very good response to the Government's consultation on the Guidance to local authorities in respect of gaming.

Basically, it is saying that Guidance should guide, rather than be full of vague generalisations that simply put the Act into different words.

What the writer is suggesting is that, if it is to have any meaning at all, it should be clear and specific. But that is the problem: there is a fear among civil servants of seeking to embellish the Act itself. You cannot turn the Guidance into secondary legislation. You must leave it up to the local authorities to do the best they can, and then the courts to sort it out.

Criticism of the Guidance under the Licensing Act 2003 has not come only from the licensed trade. A number of local-government colleagues have been openly critical of its style and its woolliness in several areas. They cite the lack of clarity as one of the principal reasons why there has been such a marked difference between the approaches of different councils on the same issues.

I do not think that is entirely true, but there is no doubt that the decisions and procedures that have been adopted owe much to lack of central effective guidance on basic administrative matters. Licensing was meant to be a straightforward permission-granting exercise -

a rubber-stamp, if you like.

That was the policy, in the early days. It has not turned out like that at all.

I said I would write about the new supplementary Guidance issued towards the end of last month. There is relatively little to write about. For a full review we shall have to wait until much later in the year. But the changes that have been made reflect the same problems of drafting that already exist.

There was much comment last week on the question of the presence of a personal licence holder not being required when sales of alcohol are made. But the re-write once again says the issue is one for the courts to decide, based on the evidence. That is not guidance: it is buck-passing. The way the suggested delegation of responsibility is introduced suggests again that

it is not guidance, merely opinion.

Then why is this Guidance statutory? What is the purpose of its legal status, if it is not to guide, and to be read in conjunction with the Act? It is said to be "approved by Parliament" which in one sense is true. This latest Guidance revision sits on the table for 40 days, and if no-one objects to it, it is simply approved by default. But that hardly makes it rank up there with the Act itself.

Apart from the additions on personal licence holders, there is little else to get excited about. Lobbying from the musicians, who were always worried about the Act's effect, has led to a number of conciliatory amendments, asking councils to look to support live music and not put stumbling blocks in the way, or ask for onerous and expensive conditions. Lobbying from the club trade has meant an attempt to water down the "members and guests only" law for members' clubs, so that they can now entertain another category known as "guests of the club". This will presumably range from golfers turning up unannounced at the 19th hole to charabancs full of day trippers being allowed to use the bar. Once again, it will "depend on the circumstances", so no guidance there.

One interesting change is that temporary event notices have been subtly extended, so that "part" of a building can stand alone as a 12-a-year venue, not the whole building. This will allow certain premises with multiple rooms to have a considerably larger number of temporary events, as long as the 12-event maximum is not breached in any of them.

Oh, and you can be a DPS for more than one set of premises. We knew this to be the case, but it has been spelled out in the Guidance. At last - a nugget of information!