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What is happening to our Licensing Act…?

I spent the first half of my career appearing before the Licensing Justices in Magistrates' Courts across the country.

Courts understand the need to apply any particular law fairly, in accordance with the evidence before them and the way in which Parliament intended it to be applied.

I have to admit, I, amongst many others, thought that the transfer of the process to Local Authorities was a bad idea.  However, in the first few years of the Licensing Act 2003 I was pleasantly surprised.

Local Authorities knew that their decisions would be scrutinised by the Magistrates’ Court and, as a consequence, applications were dealt with in a judicial way so that, win or lose, parties generally felt that they had been dealt with fairly.

Sadly, over the past couple of years I and other advocates have become increasingly concerned that the process is no longer as pristine as it once was.  Increasingly, we are obliged to deal with stakeholders who appear unsure of what the law is and, occasionally, seem not to care.

A trip to Court to justify a particular point of view was a daunting prospect and nobody would volunteer for the experience without having made themselves aware of the law and process.

Whilst I understand the advantage of a less formal approach adopted by Licensing Committees, it has had an unfortunate side-effect.

For Council officials in particular, attending such meetings is just part of their working day and because cross-examination is not permitted, nobody really ends up squirming in a spotlight like they might have done under the previous regime.

This has allowed arguments based not on the law or evidence but on a whim to become more frequently deployed in proceedings.

In my opinion, this diminishes the process and applicants increasingly now wonder whether they have in fact been dealt with fairly. The law is, after all, there to preserves the fairness of the proceedings to make sure that everybody gets a decent crack of the whip.

We are also seeing more frequently Responsible Authorities objecting in support of concerns raised by others when they themselves may have no evidence upon which to sustain concern of their own.

For example, in a recent application, we were asked by the Police to apply particular conditions.  The Officer readily accepted that there was no justification for it but confided if he didn’t insist on it he would get into trouble with Public Health.  We ended up agreeing to a meaningless condition that got him off the hook which was his only interest in the proceedings.

Similarly, in another case, an opening time was objected to by a Licensing Officer.  He privately admitted that he had little cause for concern with the proposal but an influential local Councillor had also objected and he had been asked by his boss to intervene.

Whilst these might seem like trivial matters, and I have lots of other examples, it does signal a worrying trend.

Worse still, in a recent variation application for a well-established, national supermarket-owned convenience, we attracted the attention of a newly formed unit in the Local Authority.

Not only did the individual that we were obliged to deal with have little knowledge of the law but she showed no interest in having it explained to her.

Indeed, she had no response when asked how she could reconcile her approach with the leading case other than to continue insisting on the inappropriate condition that she originally demanded.

The obvious response, of course, is to not agree to conditions until the application before the Committee for a decision.  This, however, means cost and time delay.  Applicants often have to balance this against squaring up to Responsible Authorities.

Not a week goes by that we, on behalf of clients, have to argue that proposed conditions fail to meet the fundamental test of being “appropriate and proportionate”.

You might consider this to be simply a good old whinge but there is a serious point.  If the current trend continues we will drift so far from the basic principles that the process will become increasingly unfair, and that benefits no one.

So stand your ground, and insist that your application is dealt with properly and in accordance with the law.

* Richard Arnot, Partner, Licensing.

Please note that this briefing is designed to be informative, not advisory and represents our understanding of English law and practice as at the date indicated. We would always recommend that you should seek specific guidance on any particular legal issue.

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