Jeremy Allen: The Licensing Act, one year on

There are positives about the Licensing Act ­ and that¹s not something we would have expected to hear from anyone this time last year.

Despite all the upheaval, leading licensing lawyer Jeremy Allen thinks that overall the experience has been positive for operators, despite the problems related to its implementation.

He says: "I think a number of companies would say that one of the huge irritants of the old system was having to send managers to court at the time the licence changed hands. That¹s all gone and that¹s a positive. The absence of having to do renewals is going to be a positive as well."

Despite his optimism he predicts a flood of court cases now the Act has bedded in ­ and he believes the government should seriously consider amending the Act. Issues such as whether the designated premises supervisor (DPS) has to remain on site at all times and conditions on licences will need landmark court cases to clarify them, he says.

The issue of the DPS threw up controversy earlier this year when a Yorkshire licensee was forced to fly back from a holiday as the police closed her pub.

Despite a letter from Culture Secretary Tessa Jowell confirming that licensees should not have to remain on the premises, he thinks this could happen again.

"Everybody is waiting for a case," he says. "Let¹s say you fired a DPS on a Friday afternoon. Technically, if he went to the police and said ŒI am no longer the DPS for these premises¹, then you couldn¹t sell alcohol. Even though you have done entirely the right thing and sacked the guy straight away.

"We are sometimes advising companies to suspend people rather than sack them so that you can get over this and then sack them later." He said he had dealt with a case where the DPS was dismissed and came to the manager and said that unless he was paid thousands of pounds he would go to the police, which would have forced the pub to close over a busy bank holiday.

Meanwhile, there has been controversy over the rate of fees, although one issue he thinks will be high on the agenda is the fee multiplier. Many local authorities decided to introduce a multiplier system for certain premises, with some having to pay double or even three times the standard fee.

Allen adds: "Throughout the country we had to pay multipliers because a lot of councils said they didn¹t accept that these premises weren¹t primarily for the sale of alcohol. I think this year is a good time to challenge local authorities that insisted on the multiplier ­ the local authority now can¹t actually refuse to renew the licence, because the licence is automatically renewed.² He is critical of the implementation of the Act by the government, claiming it should have ensured a provision to deal with the multiplier.

"What the government should have done is set up a system whereby if you were challenging the amount of the fee there could be an argument over the amount of the fee, but in the meantime the application is processed.

"But it¹s like a lot of what was done with this Act ­ I don¹t think it was thought through in advance properly and it was very hard to get changes in. I think sometimes the ministers can see the headline rather than the detail."

Another major issue affecting operators is premises alterations, which are causing a major bureaucratic nightmare. Under the terms of the Act, any changes, even as minor as moving a fire extinguisher, require a new application.

"Technically, under the Act, if you move a fire extinguisher you have to make an application, which means submitting eight copies of the forms, as well as advertising, which is hugely expensive. Who cares if somebody moves a fire extinguisher?" Allen says.

"The irony is you can move the bar but the position of the bar is not in the legislation, the fire extinguisher is."

He argues there needs to be a more efficient system for transferring a premises licence and the premises plans. In fact, he has been advising some of his clients to apply for a second premises licence on the venue during the refurbishment. With the impending smoking ban, this could be a potential minefield for operators.

On the issue of the premises licence, he says there are still many pubs waiting for their copy from the local authority.

He has also been forced to return around 75 per cent of premises licences to local authorities because of the high number of errors.

The knock-on effect for licensees could be major, especially if it involves selling the premises ­ a pub with stringent conditions placed on its licence could be one that no-one wants to buy. He would like the government to give operators an amnesty to sort out licence problems, although he feels this is unlikely to happen.

And what would he like to see for the future?

"I would like to see Parliament debate a bill that amended the Licensing Act. It¹s a major piece of legislation that affects just about everybody and they didn¹t get it right the first time.

"A lot of it is right, but a lot of the detail has not been thought through properly."