As the government calls time on the old liquor licensing system, it is battling with local authorities that oppose more relaxed opening hours for bars, reports Lucy Trevelyan

Last month, the Licensing Act 2003 received Royal Assent, heralding in the most significant overhaul of the liquor licensing system for more than a century.


Under the Act, those wishing to use their premises to supply alcohol, provide entertainment or late-night refreshments can apply for a single premises licence from their local authority to carry on any or all of these activities, instead of having to obtain several licences from councils and magistrates’ courts.


The Act was supposed to sweep away swathes of red tape and introduce staggered opening hours, which the government maintained would help curb the binge drinking prevalent in our cities’ bars.


All great in theory, but Jeremy Allen, a partner at specialist licensing law firm Poppleston Allen in Nottingham says lack of research and consultation, along with a hardening social attitude to licensing, has led to a poor piece of legislation, with endless implemen-tation problems on the horizon.


He says: ‘There were some good ideas behind the Act, such as having a single licence to cover everything that occurs on a premises. It’s just a shame they didn’t spend longer thinking about it and getting it right. We could have had a piece of legislation to be proud of but there are so many things totally wrong with it.’


He adds: ‘There are a number of issues which will need to go to the High Court and it is inevitable that they will have to do an amending Act. It is the first major reform of licensing for a century and yet it was rushed through.’


Mr Allen says consultation on the Act was totally inadequate. He was on the advisory committee charged with scrutinising the draft Bill, but it had not even finished going through the clauses before the government published the Bill.


‘We’re now being consulted on an alcohol harm reduction strategy by the Prime Minister’s office, no less. I always thought you think about things and then legislate but they are clearly doing it the other way round on this one.’


Julian Skeens, a partner at London firm Jeffrey Green Russell, says that when reform was first considered, the attitude to licensing was fairly relaxed with an explosion of new licensed premises opening on the UK’s high streets. It was on this basis that a liberalising Bill was drawn up.


However, he says that the pendulum has now swung the other way, with councils claiming saturation point on the licensing front and, far from being willing to relax licensing hours, many are trying to cut them down even from existing levels.


He says that although councils such as Leeds appear to be embracing the idea of 24-hour opening, others such as Westminster are publicly trying to cut back the licensing hours in certain areas.


‘The Act is designed to be liberal in nature, allowing people to write their own licences, but the councils are saying "not on your nelly". They want people in bed with their cocoa by 1am. The two attitudes are going to clash.’

Allen: poor legislation

He says many councils have rejected the government’s assertion that by staggering drinking hours, crime and disorder would be reduced as there would be ‘no influx at 11.30pm and 3.30am as people jostle for taxis and kebabs’.

Mr Allen says that as far back as the 16th century, records reveal a complaint from an Anglo-Saxon cleric to his superior, moaning that the problems of drunkenness in his diocese were greater than anywhere else in the world. Meanwhile, a century or so later, a scholar noted that drunkenness was a characteristic shared by ‘pagans and the English’.


He adds: ‘The government decided that staggering drinking hours was the answer to binge drinking but there was clearly binge drinking in England way before licensing laws were introduced. This seems to have been ignored by the government.’


Elizabeth Southorn, head of licensing at City firm Richards Butler, says councils such as those governing Westminster and Soho in London, are suffering the consequences of allowing residential areas to crop up and intersperse with retail and licensed premises.


Mr Skeens says: ‘There is going to be a lot of work for lawyers going to the High Court and saying that councils do not have a proper policy. We’re trying to negotiate but we’re gearing up for a battle royal.


‘The courts will be obliged to take the council’s policy into consideration and yet comply with the spirit of the Act. It will be a question of how much weight the courts give it. It’s a case of jobs for the boys, I’m afraid.’


Mr Skeens says that Westminster council has already lost a case seeking to refuse a new licence but adds: ‘In obiter dicta, the judge said "this is what you need to do to make your case stronger". Now what he says is being used by the council to stop new licences being granted.’


The lawyers all agree that councils’ approach to licensing will differ drastically to that of magistrates’ courts, which presently handle many licensing matters.


Mr Skeens says: ‘I represent Westminster Licensees Association and am constantly dealing with political desire. The magistrates reach decisions according to the facts but the new approach will not be so impartial. Councillors are meant to be partisan. Magistrates had got their house in order and had overcome defects in the system; it’s a shame it has to be changed.’


Local authorities are required to publish draft guidelines on how they intend to approach licensing by February 2005, which is also the date licensees can begin applying for their new licences. The councils must then process the applications within six months. Licensees are required to obtain a new licence by November 2005.


Ms Southorn says local authorities are behind and many are sceptical about whether the February 2005 deadline can be met. The industry, she adds, has not yet been told how the new regime is going to work, and there is also a gap in the figures propagated by the government and the costs of the running the new system.


‘Some local authorities are fantastic but others are way behind. As lawyers we can do very little. We can’t tell clients what the procedure is going to be or what documents they will need because the administrative side is still a complete blank. We are advising clients who want to extend their premises or put new people on their licences and so on before February.


‘Local authorities are saying the sort of figures Parliament bandied around are not sufficient to reimburse them for the new staff, systems and administration costs that will be required. I think it is likely to rebound on council tax bills.’


Mr Allen says that while the Bill was going through, ministers promised that the cost of fees paid by the licensees would not rise from the figures included in the draft Bill and that there would be no extra burden on [rates].


‘My guess is that after all the fudging, the annual charge for licence fees for premises will go up. There was a political naivety that one can believe general assurances from government. If I was a licensee, I would feel betrayed.’


Mr Skeens says: ‘The Act was meant to be deregulating but it’s exactly the opposite. Clients have to pay more for licences in relation to the amount of work that has to go into them. You will see the fees for licences going up and marginal pubs will wither.’


All the lawyers say their workload has increased in the past year. Mr Allen says 2003 was somewhat flat, since so many people were holding back on new developments until details of the new regime became clearer.


Ms Southorn agrees reform should lead to more work for specialist licensing lawyers. More generalist solicitors who, she says, ‘jumped on the bandwagon a year or so ago because they thought licensing was a good money-spinner’ are unlikely to benefit. She has seen some in court, she says, and they have ‘made a complete mess of things’, meaning repeat work is unlikely.


‘Clients want people who know what they are talking about. We rarely use counsel but clients not going to specialist solicitors find themselves paying twice because the work gets passed straight on to barristers, who also complain that they haven’t been briefed properly.’


Mr Allen says one of the most bizarre aspects of the new Act’s history is that it was only approved by Parliament after Labour agreed to make concessions on, of all things, morris dancers, exempting them from the need to obtain an entertainment licence.


‘There are apparently 14,000 morris dancers in the UK and 900 of them came down to Trafalgar Square and danced and sang in honour of the minister who saw the amendment through.


‘The Act exempts performances of morris dancing "or any dancing of a similar nature". You can just imagine a lot of girls in lapdancing clubs dancing around naked apart from a few bells on them claiming they are morris dancers.’


Lucy Trevelyan is a freelance journalist