Licensing Guidance: not worth the paper it is written on

Westminster City Council has told the government that its Guidance on how its new Licensing Act will work is not worth the paper it’s written on.

Commenting on an earlier draft of the Guidance, Councillor Audrey Lewis, the Council’s Cabinet Member for Licensing, condemned the document as “contradictory, full of holes, legally suspect and a virtually useless collection of bland statements that have no practical application.”

Councillor Lewis continued: "If the government and all its advisers do not know how this legislation is going to work then what hope do council licensing officers have? Councils will have to decide what conditions should be attached to premises licences with no help from this so-called Guidance while dealing with a huge volume of applications during the transition period. There needs to be a road map of how this legislation is going to work. Unfortunately what we have at the moment may as well be a blank page.”

The City Council’s concerns were conveyed to the Government in a letter to Richard Caborn, Minister of State at the Department of Culture, Media and Sport.

Cllr Lewis wrote: "Even issues that the government has attempted to address, such as the cumulative impact of licensed premises in a particular area, are addressed in an incoherent way."

‘Cumulative impact’ – the cumulative problems that arise from concentrations of alcohol and entertainment premises in particular areas – was one of the major issues that arose during the passage of the new Act through Parliament. Originally, DCMS planned to deny the new licensing authorities any specific powers to deal with cumulative impact, and conceded on the point only very reluctantly and as a result of strong representations. On this issue, the DCMS view was and presumably remains the exact opposite of the Home Secretary’s, and the grudging nature of its concession perhaps explains why, in Councillor Lewis’s judgement, what the Guidance says about “cumulative impact” is confused, and demonstrates that the issue has not been understood. Councillor Lewis’s letter reads:

“There are many problems with (this section of the Guidance), but to take three by way of example:

(i) It is clear that the Secretary of State thinks that cumulative impact is only an issue for premises selling alcohol (paragraph 3.15). That is not the case in Westminster, which has areas where the number of late night cafes causes problems, and also the West End, where late night cafes add to and exacerbate the problems caused by drink- led premises. The incidence of disorder around late night cafes has been of great concern to the Police.

(ii) The Guidance appears to permit policies to address cumulative impact only in relation to applications for new premises licences, not in relation to applications to increase the trading hours or capacity of existing premises by variation of the licence (paragraphs 3.16 and 3.26); and

(iii) The Guidance does not permit a special policy relating to cumulative impact to address the terminal hour. The combination of points (ii) and (iii) leads to the absurd position that where it is late night premises which are the problem that problem cannot be dealt with by the adoption of a policy preventing more premises from opening late at night, and an application from premises proposing to open until twelve midnight must be regarded as just as objectionable as one from premises proposing 24 hour opening. It is dishonest of the Guidance not to recognise anywhere, even in the chapter on Hours of Trading and even in the Annex dealing with conditions relating to public nuisance, that nuisance is worse at times when people are trying to sleep than it is at ordinary times of the day. This simple fact could surely be acknowledged without compromising the commitment to the principle of flexible opening hours, and the fact that it has not been does seem to indicate the very narrow, "applicant-focused" perspective from which the Guidance has been drafted.

Westminster’s anxieties related to a whole range of issues that it believed the Government had neglected or failed to understand. These included the transition period; the absence of guidance on conditions to be attached to licences; the form applications for licences will take, and a lack of clarity about the role of Councils as objectors to licence applications.

DCMS clearly felt it unnecessary to pay Westminster the courtesy of a reply, despite its being the premier licensing authority in the country.