New Act's quite simply a ticking time-bomb
There has, quite understandably, been some consternation in the licensed trade over the suggestion that licences which were transferred after the first appointed day would lose "grandfather rights".
It resulted in a flurry of claim and counter-claim as to the correct interpretation of the current Licensing Act, and the wording of the transitional arrangements. But it should never have been allowed to happen at this late stage.
My own view is that a transferred licence is merely a continuation of the existingpermission, changing only the personnel involved and not the actual authority which attaches to the premises.
As such, it continues the licence that was in effect on the first appointed day, without a break.
The alternative view that a transfer creates an entirely new licence, which only started life when it was granted simply does not fit in with the licensing system as we know it, or the presumed intentions of the transitional arrangements.
After all, the same could be said of renewal it creates a new three-year licence, even though in the majority of cases it is granted to the same people who held the previous one. But it is not a new licence, it is a continuation.
If it was an old on-licence, for example, it continues to be an old on-licence. If it had conditions, those will continue. It is a replacement for something that already existed.
The object of transition, as I understood it, was to convert all existing permissions into two new types of licence: one for the premises and one for the individuals who wished to be in a position to sell alcohol. Because it also involves two other activities the provision of regulated entertainment and late-night refreshment it is a little more complicated than a straight swap. But as far as the majority of premises are concerned, what is required is a conversion of their existing licence into a premises licence.
Transition does not even require the same person who holds the licence to apply for the conversion. As long as permission is given, the owner can apply in his own right. So the actual conversion is not connected directly with who holds the licence at the present time.
What concerns me most about this is how a basic point, which must have been carefully considered during the drafting stages of the new Act, can have been allowed to cause such confusion, one month after the transition period started.
Once again, I have to point the finger at the Department for Culture, Media & Sport (DCMS) who were charged with putting this new legislation together. The lack of specific guidance on the transition process and the forms has already been noted. But their response on this issue has been at best woolly and at worst downright unhelpful.
They must have formed a view on transferred licences, which they ought to have conveyed to the Parliamentary draftsmen. As such, they must be able to give an interpretation of the new Act. But apparently they want to leave it to the courts, which at this early stage is an admission that the legislation is either flawed or ambiguous.
Will this be the last such problem? I very much doubt it. Those of us who sleep with the new Act under our pillow know that there are several other potential areas for confusion. But we were so strongly told in the early stages that this was not going to be an Act for lawyers and thatit was a simple administrative matter merely a question of ticking boxes
It has turned out to be a ticking time-bomb.
