Improving the legislation?
It was not going to be long before the first problems emerged with the new minor variations procedure, and so it has proved. I have received an email from a reader who wanted to convert a small kitchen in the pub to provide a servery for the outside patio area.
The object was not to provide space for more customers, but to improve the serving and take pressure off the main bar. It was refused, on the grounds that it could be construed as increasing the capacity for drinking, "which is outside the terms of the new minor variation procedure". Frustrating for the licensee and also for his existing customers. I did warn some time ago that licensing officers were likely to be conservative in their views on what they could do.
This is not helped, as usual, by the wording of the revised statutory Guidance, which some officers are taking not as a discretionary tool, but as a form of Biblical interpretation. In fact, the relevant paragraph in the Guidance from which this decision appears to have been taken talks of something which "could potentially have an adverse impact on the licensing objectives" and then goes on to say "for example by increasing the capacity for drinking on the premises". So in fact the Guidance does not say that any increase in the capacity is not permitted, but only one that could have an adverse impact on the licensing objectives.
This proposal is clearly not one of those. It is an improvement to the premises, providing a better and more relaxed drinking environment, with more space for existing customers. In any case, where is the contention that increased capacity for drinking is in itself harmful to the licensing objectives. Numerous police officers have stated that over-crowding and confined spaces are triggers for violence and disorder. Yet here we have a licensing officer, faced with a clear attempt to make the pub a better place, mis-quoting the Guidance and sticking to a rigid policy because certain words appear.
If you put decision-making in the hands of unqualified and inexperienced staff, you risk this kind of result, yet the Department for Culture Media & Sport, knowing this, are prepared to have licensing laws mishandled in this way.
This is because they do not care very much whether or not the licensed trade suffers miscarriages of justice as long as the basic principles of "local democracy" shine through. There is no appeal against this decision. The licensee has to fork out for a full variation, to which there will be no objection, of course, in order to make a small cosmetic change to his premises. So for the rest of us, this poor interpretation will never be legally challenged or clarified. There is no route to the higher courts, and no chance of judicial review.
There will doubtless be others of a similar nature, but nothing will be done by the Government to improve the situation, and the hard-pressed licensee will be further out of pocket and looking at a procedure which will take a month to six weeks to sort out. May I point out to our DCMS readers, who I am sure get a chance to read this column, that to make a similar change with the justices would have cost £16 and could have been achieved in a couple of hours turning up at a licensing sessions with a revised plan. That was the 'inefficient and inconsistent' system which we overturned with this new law. For £16, now read £300 and a month's wait. What an improvement!
