Legal advice: An open letter to the DCMS

Open letter to the Alcohol and Entertainment Team,Department for Culture Media & Sport,London.

Dear Sir/ Madam,

We write regarding the draft premises licence conversion/variation forms that were released recently by your department as part of the consultation process on the draft regulations under the Licensing Act 2003.

Notwithstanding the deadline for representations having passed, we felt that there were serious concerns that needed to be brought not only to your attention but also to a wider audience.

The licensing team at Joelson Wilson & Co has undertaken the exercise of completing these forms, in order to be in a better position to explain to our clients, which range from major PLCs to individual operators, how to complete the forms which are likely to be used under the new regime. We note with disappointment that despite the close proximity of the first appointed day, the forms remain in draft. Is there any appreciation of how time-consuming the completion of the forms will be and how busy licensees are during the Christmas and New Year period? This was expected to be a relatively straightforward task, particularly in light of the purported reduction in red tape as stated by the government and the proposed "light touch bureaucracy" which heralded the new Act. However, our experience proved this is certainly not the case in reality.

At first sight the conversion form appears to resemble applications that may have been completed by parts of the industry that own or manage venues with public entertainment licences. Simply completing boxes with the name of the applicant and premises details should not cause problems in the vast majority of cases, however, as one proceeds through the document, it becomes clear that this is not something that licensees would be able to complete in that rare few minutes of spare time that they may have during the course of the working day, particularly once the section entitled "Operating Schedule" is reached.

Here applicants or their agents are confronted with the need to describe their premises in "general" terms, apparently without an indication of how much detail is sufficient, coupled with a series of boxes which are used to indicate, under specific titles, exactly what "licensable" activities are currently carried on at the premises. Surely the aim of this section is not an attempt to limit the activities of the individual premises to the letter of their description or solely to the boxes ticked? We cannot imagine that your department would want licensees to be penalised by the omission from their converted premises licence of one element of the operation of their premises that they may have inadvertently forgotten to describe or acknowledge.

The next section, as you will know, requires applicants to review the conditions currently imposed on all of their existing licences and to place each of them into one of five boxes. The first of these boxes is entitled "general" with the following four boxes having titles that represent the four licensing objectives of the Licensing Act 2003 which, by way of reminder, are:

• prevention of crime and disorder
• public safety
• prevention of public nuisance
• the protection of children from harm.

The first thing that came to each of our minds when seeing this was the fact that conversion is something that can essentially be viewed as a right for all except a handful of premises. Licensees are already required to produce originals or certified copies of their licences in the knowledge that their existing conditions will carry over to the converted premises licence. Why then are they expected to trawl through what may be a long list of conditions that could have been granted many years ago? Are licensees expected to turn back the clock and put themselves back in the court room or council chamber at the time when the conditions were granted and ask those that imposed them which licensing objectives - which did not exist then - they were trying to promote with the imposition of each condition?

Of course the ability to travel through time has not yet been invented so each member of our team of four undertook the task using only their own wits. We quickly realised that the placing of conditions was so subjective that four completed forms, using the same licences, provided four varying responses along with a team member more than willing to argue why they had made the choice that they had. Our sympathy goes out to the licensees faced with this section!

In addition, what is expected of the licensing authorities, who are already facing a massively increased workload? Is this section intended to be read critically by them, with the result that applications can be delayed or worse, rejected if the authority disagrees with the placement of certain conditions? We would find it staggering if the government would want to place such a burden on the authorities, but we also fail to understand the merits of such an onerous section of the form, if this is not the intention.

Having almost entirely lost the will to live while completing the conversion element of the form, we then moved on to the part designed to allow licensees to vary parts of the operation, to take effect on the second appointed day. We would invite you to provide licensees that remain in the industry after attempting to convert their licence, an explanation as to why they are required to repeat much of the information that has already been provided.

Most within the industry would expect the variation element of any application to require more detailed information and we accept that this part of the process is the more challenging. However, the theme of ambiguity and poor drafting continues throughout and could potentially give rise to incorrect interpretation by those assessing the form and licensees not being granted the variation they thought they had applied for.

At the end of what the team had assumed would be a relatively straightforward procedure, we each commented that it felt more like the end of a school exam!

We therefore hope that, in reviewing the countless representations that will have been made to you regarding the forms, you provide those in the industry with a far simpler and more coherent set of forms as the final version as soon as possible.

Yours faithfully,

Licensing Team, Joelson Wilson & Co