Not an appealing prospect

One of the major differences I have noticed between the workings of the old 1964 Licensing Act and the current 2003 version is the lack of clarity about what the law actually means.

Whatever the rights and wrongs of the changes, this is an increasingly important issue. The year 2009 seems destined to bring even more rules and regulations into the licensed trade, including the power for local councils to introduce their own conditions on licences, which could be both costly and unpredictable.

My regular contact with licensing lawyers indicates they are still unsure of the true legal position on a number of issues, as indeed I am. This is because we appear to have lost the certainty of the old law and for some reason have not had sufficient appeal cases to allow the higher courts to clarify these questions.

Whether or not this was the policy intention of the architects of the 2003 Act remains unclear. Certainly, there was an often-expressed view that lawyers should be given less work to do under the new regime, this by the device of ensuring that many of the renewal and hearing processes would be dispensed with.

But licensing lawyers are still getting involved in negotiations on licence conditions and licence reviews, where their expertise is invaluable. Then, after an appearance in the magistrates' court — the first round of the appeals procedure — we appear to hit something of a brick wall.

Very few cases make their way up to what is now known as the Administrative Court these days — the High Court, as we used to call it. There, a senior judge, often with considerable expertise in the subject of licensing, would examine the legal framework and pronounce on an issue of extreme importance to the licensed trade and to the administrators. That judgment, faithfully reported in the journals and textbooks, would then form part of the whole body of licensing law.

But such decisions have become rarer. One of the reasons is very simple — money. Ordinary licensees certainly do not have the funds to take a minor issue of interpretation up to the judges, and if they lose in the magistrates' court they will call a halt. This does not just apply to sole traders: I have heard of several larger operating companies simply shrugging their shoulders and saying it is not worth pursuing the matter.

Periodically an organisation such as the British Beer & Pub Association will take an issue of importance up to the High Court, as it did with certain licensing policies in the early days. But in general there is a lack of willingness to use the higher legal processes to challenge the view or behaviour of one licensing authority.

From my own point of view, this is a shame, because I like to be able to write with clarity on all issues affecting licensing. As readers know, I detest the use of the phrase "grey area", which usually means the lawyer in question does not know the answer. When readers write to me, it is far more satisfying to be able to give a straightforward answer, not beat about the bush!

But that has become more difficult with the new Act. There are still major problems over the statutory Guidance that forms part of the new licensing system, and a number of instances where there have been clear departures from its guiding principles without adherence to the warning that such departures should be fully justified. Regrettably, in one recent case, that was endorsed by an appeal judge.

Perhaps the answer lies in more co-operative effort, with companies and regions joining together to fund appeals on matters of vital importance to the licensed trade.