One of the main planks of the government's policy on "one size fits all" licensing was that the operating schedule would indicate exactly
what sort of premises were in operation.
It is true that the application form - all 23 pages of it - might well indicate the type of premises for which it is intended, because applicants were asked to give a brief description of the premises and its operation (although this was not very clearly indicated). But the premises licence, when issued, does not carry any of this information.
In order to find out exactly what licensable activity is allowed, it is necessary to look at the conditions. And this is where some significant problems have occurred.
Although the statutory Guidance gives a number of indications and warnings about the way conditions ought to be worded and imposed, not all of that information seems to have percolated down to the responsible authorities and the licensing departments. From what I have seen so far, there are a great many conditions floating around that would be difficult to justify, if the matter ever came before a higher court.
The problem is, of course, that only a few conditions ever will be examined by senior judges, so that we can get some definitive points. Most bad conditions are reluctantly accepted by licensees, because they do not want to get involved in costly appeals - and also, alas, because they don't want to "rub the authorities up the wrong way". This fear of
retribution is more widespread than you might think. How many landlords simply accept that the police desire to impose a curfew in a
particular area must be obeyed?
I once went to a trade meeting in Essex, just prior to the transition period, where the police and a justices' clerk were, in fact, "laying down the law" according to their own lights. They were attempting, it seemed to me, to pre-judge the applications and ensure that everyone conformed to their own formula. I am sure similar events occurred elsewhere.
The actual wording of conditions is so important, because the only time that they will be put to the test is when something goes wrong. This is why licensing lawyers have been accused by some authorities of "nit-
picking" over the details of premises licences.
The lawyers are absolutely right, because they know the problems that will occur if a condition is badly or unfairly worded. They also know that reassurances from responsible authorities that such-and-such a condition is "only a safeguard" or "it will never be acted on" is so much baloney! Once it's in, it sticks. You try and remove it later!
I am concerned with any condition that seeks a generalised "good practice" activity. These usually begin with a phrase like "The holder will use his best endeavours to ensure that..."
How is that a condition? Apart from being technically unenforceable, it suggests that the licensee may be responsible for the actions of a third party, probably entirely outside his control - which the Divisional Court has already said is unfair.
Other conditions seem to me to stray rather a long way from the licensing objectives. It may be socially important to control litter, but to seek to link that to the "public nuisance" objective in licensing terms seems to be a mite too far.
Apart from the Guidance itself, which so pussy-foots around that it hardly guides at all on some elements, no-one else has addressed the importance of proper conditions. Some are appealed to the magistrates, but their decisions are not binding anyway. Another
little job for the regulatory body, perhaps?