Coulson: The problem with councils
Credit where it is due. This week's observations on the legal process come from a colleague who is a local authority licensing officer and whose wry observations on local and central government practices have caused me a great deal of entertainment, not to say enlightenment.
His view is that the Government has not properly thought through the process involved in 'being your own boss' in licensing. Home Secretary Theresa May's idea that local councils should be responsible authorities themselves — rather like those strange sea creatures that have both male and female bits — presents extreme practical difficulties in the town hall, where delegation and the pecking order is very important.
The difficulty is that many outsiders see 'the council' as one amorphous whole, moving around and doing things for the local community. In fact, of course, it is nothing of the sort. It is made up of distinct and separate units or individuals, who can only act as the legislation or regulations provide, coupled with the established regime in that particular authority.
Licensing, regrettably, does not have a niche of its own in this format. It can be handled by any number of departments and there is no set pattern. In some authorities it is part of environmental health, in others it is planning, or leisure, or building control. In quite a few it is in the borough solicitor's or chief executive's office. There is no fixed position.
Which brings us to the main problem: how do you initiate a representation or a review when you are the body responsible for taking a decision on it? Many lawyers think that this is a contradiction in terms, but given the coalition's insistence that it is possible, we will have to live with it from some time in the future.
The problem in the town hall is: who actually starts the ball rolling? It cannot be just anyone, because it has to be someone, or a group of people, who actually represent the local authority. Could it be the licensing officer, or must it be a committee or sub-committee of councillors? Can you have an officer, who is a paid employee, taking a decision to object to a licence without consulting with the elected members who are essentially 'the authority'? And if it must be them, how do you get them together to take the relevant decision in the time available?
Of course these are not problems for the trade as such, but we should be more than interested in what goes on in the council chamber.
It is sometimes forgotten that the council represents traders as well as residents, that representations can be made for — as well as against — an application and that whatever 'rebalancing' the Home Secretary wants, the council must still act fairly and follow due process.
The problem at present is that the due process is far from clear. Nothing will happen in the immediate future to answer any of these procedural questions, or to clarify who comes where in the pecking order. If we follow past practice, central government will probably suggest that the decisions are left to the procedural choices of each individual authority.
With the demise of LACORS, the local government advisors, there may be no one centrally to give a steer on this. So we may find entirely different approaches adopted, with a possibility of the same committee both starting an objection and ruling on it itself — this is fertile territory for judicial review.
The idea that the new licensing changes are bad for the licensed trade is a narrow view. They could be equally bad for councils as well.
