No substitute for proper legislation
The revised statutory Guidance for local authorities issued under section 182 of the Licensing Act 2003 last week, appears to have been one of the last acts of the outgoing minister at the Department for Culture, Media & Sport (DCMS), Tessa Jowell. It will be for James Purnell, who already knows the ins and outs of licensing, to carry forward the promised reforms to the legislation and supporting regulations that we still badly need.
Any hope that the Guidance would put right what is still wrong with the Act is, of course, vain. It cannot do that. Guidance does not take the place of proper legislation and as one senior judge pointed out recently, it can be no more for the courts than a persuasive authority on matters of interpretation. It is also capable of being wrong or misleading.
The new revised Guidance has had the benefit of input from a consultative group, but is still very tentative in some areas, although far better and more rationally laid out as a document. If only the designers could get their hands on the application forms!
I have not yet had time for a detailed trawl through every section, but there is now a very helpful index at the back and the DCMS has provided what is called a "Summary of Substantive Changes" to show where the main alterations have been made. Some of these, however, do not appear to move very far. For example, although there is mention of electronic applications being acceptable, what the Guidance does not mention is that the licensing authority will not treat an application as made until the paperwork and the fee is in their hands, which means that a faxed or emailed application cannot beat a deadline unless there is some form of instant payment system in place. This needs to be corrected by primary or secondary legislation.
The claimed revision of the opening hours section is not as reactionary as some had suggested. It is still made clear that arbitrary restrictions on opening hours should be avoided and each case considered on its merits.
However, later in the Guidance comes the statement that "there is no general presumption in favour of lengthening licensing hours and that the licensing objectives should be paramount." It is hoped that licensing committees will still act on the facts and not on nervous assumptions of potential disorder.
One major change that might have implications in terms of applications is the new Fire Safety Order, which effectively torpedoes fire authority involvement in the licensing process. In fact, in some areas of the country the fire service is simply not responding as a responsible authority, because no fire conditions can now be attached to licences. Licensees will deal direct with the service in future if there are fire safety issues.
Those who were hoping for some form of fast-track or simplified scheme for minor variations, so as to avoid the heavy application and advertising fees for moving a door, will be disappointed. This would need parliamentary approval. There is also a rather ambiguous comment on smoking shelters and plans which makes it entirely unclear what the DCMS view is on whether a variation would be required. They have, once again, tossed it back to local authorities to take a view.
There is some additional clarification on the complex relationship between the Licensing Act and Security Industry Authority (SIA) licensing for door supervisors, which has been widely misunderstood by local authorities.
In summary after a first look, the Guidance is more clearly laid out and easier to use, for which the Department takes credit. But what we now badly need is some sensible reconstruction work on the terms of the Act itself.
