Even the lawyers are baffled by the Licensing Act

Fear of legal repercussions is delaying new applications, says Peter Coulson, co-founder of M&C Report I am meeting a great many nervous solicitors these days – something I am not used to. Confidence is the name of the game in the legal profession, but the sideways glances are coming thick and fast as the transition process for licen-sing hits the crunch period. It is a time for coming badly unstuck if you do not get the applications right. Every business in England and Wales is in the same boat, but they do not all have the same oars, or a competent helmsman. Already, I have had senior licensing practitioners bemoaning the fact that their first set of applications have been rejected for some trifling reason, based on the interpretation of a council officer who has had minimal training in the finer points of licensing law. the situation is compounded by the fact that virtually nobody knows what is right. There are no black and white rules, or carefully-planned procedures. Even highly-experienced lawyers are treading in unknown territory, fearful lest they put a foot wrong. The first hurdle is the licensing authority itself. What has surprised many is the nitpicking over actual forms, resulting in them being sent back with a refusal on technical grounds. While the authority has no right to object to a variation itself, it can do the next best thing by blocking the form and compelling a change in the wording, to satisfy its own interpretation of the Act. It is a nerve-jangling time for lawyers, who have spent most of their licensing careers with a degree of certainty about how the application procedures actually work. They were assisted in this by a handy volume called the Good Practice Guide, which gave consistent advice to the courts on a range of issues. But the Guidance issued by the DCMS does not fulfil the same role. It was issued before the application forms and regulations were even finalised, There is simply no advice or instruction on such complex issues as the conditions under which existing licences were granted (the so-called "embedded conditions") or how to remove restrictions that are in place. There is no scope for listing one-off future events such as the World Cup, and there are minefield sections where the applicant is asked to state what additional steps he proposes to take to fulfil the licensing objectives. Scope for inventive writing or, as one licensing officer wryly remarked to me, "write your own conditions". Some standard wordings will evolve, but not fast enough for lawyers who are struggling with transition applications. There is scope for professional negligence claims if they do not get it right, or are found to have prejudiced the continuing success of an outlet by omitting some vital concession that they should have noticed. This has not, in fairness, been a feature of the licensed trade and its advisers in the past. They have rubbed along, taking the rough with the smooth. But this is an entirely new challenge, and the high-street high-rollers do not want to give away a smidgen of advantage. The level of knowledge and attitude among councils varies from expert to incompetent, from flexible to completely stubborn. What emerges is a patchwork picture of new rules and interpretations that will take months, if not years, to resolve. Much of this will be at the expense of operating companies, who will have to turn to higher courts to resolve some of the drafting errors and inconsistencies. Meanwhile, getting the licensing package right will have as much commercial significance as legal. Although future variations will be possible, it seems that most want to get it right first time around, and are seeking to vary their existing licences to provide greater flexibility. Only a few have elected for a simple conversion first and waiting until the chaos has subsided before deciding what they really need (or, more likely, stand a chance of obtaining). Be that as it may, it is unlikely that most operators will want to miss out on the transition. However, they could well be affected by the miserable take-up in applications elsewhere, which could either result in a licensing moratorium, or a delay in the second appointed day, and thereby a change in revenue expectations or release from limited trading. So the lack of confidence of the licensing lawyer is not surprising. The new Act presents a variety of problems which can snare even the top practitioners – and it is a very public humiliation if you get it wrong. There is no doubt that much of the reluctance to put applications in front of local authorities until the last moment is as much to do with the lawyers’ wish to have as long as possible to get the law right as to see what other people are doing. But someone has to be the Aunt Sally in this process and time is running out.