Statutory guidance: who really needs it?

The long-awaited full revision of the statutory Guidance under the Licensing Act has now appeared. I don't know whether the trade expected the Holy Grail or something, but apart from some tidying up of the contents and running order, there is little that is going to change the main elements of the legislation and nothing of major comfort to operators.

In any event, it has been my experience that the authorities turn something of Nelson's Eye to the bits they don't like, while focusing on the bits they do. Rather like the rest of us, no doubt.

It is only when the Guidance makes statements, rather than suggestions, that it has any real impact. And they are few and far between. Which is why in general the balance seems to have moved, and conditions are now imposed in an all-purpose way on licences all over the country — simply because one or other responsible authority thinks it would be "a good idea".

One of the main principles of the Guidance (and of the law, for many years) is that each application must be considered on its own merits. Indeed, this is explicitly stated in the very first part of the Guidance concerning licensing principles. It goes on to say that "any conditions attached to licences and certificates must be tailored to the individual style and characteristics of the premises... standardised conditions should be avoided and indeed may be unlawful where they cannot be shown to be necessary for the promotion of the licensing objectives in any individual case."

The problem with that, of course, is that few applicants are in a position to challenge conditions on the grounds of illegality. They are met with the response "Well, we have put that condition on all pubs and they haven't complained." The plain fact is that any precautionary condition (particularly those involving noise or entertainment) can be objectively justified on the grounds of avoiding the risk of public disturbance. But a raft of such conditions, slapped on to any new or varied application, now seems to be the norm.

I have spoken to several environmental health officers who see the licensing changes as an opportunity to impose a bank of conditions - standard conditions - on all applications which come across their desk. It is clear from conversations that they do not pay much attention to the Guidance, even if they have read it. Their job is to protect the public, and this is how they do it.

Some of the conditions will involve the licensee in considerable expense. For example, double glazing, soundproofing and noise limiters are only relevant when there has been specific evidence of noise emanating from the premises which disturbs neighbours. Where there has been no such complaint, the Guidance ought to kick in, but it doesn't. The conditions are imposed anyway.

I point the finger at environmental health, but in some places the police have acted in a similar fashion with regard to opening hours. One of the much-heralded changes was that the new Guidance would not endorse the presumption of longer opening times when set against the licensing objectives. Absolutely. But in some areas the presumption has been entirely the other way around, with a definite curfew imposed for no other reason than that the police wanted it, and claimed that manpower would be stretched if longer hours were allowed.

The evidence for flexibility and the removal of flashpoints is clear, but the curfews still exist. They are not evidence-based; they are prejudice-based. The licensed trade needs

to address with some vigour the principles that the Guidance seeks to lay down, and ensure that fairness and balance comes into the picture.