The three-year itch

This is the time when every local council in England and Wales should be consulting with the licensed trade on changes they propose to make to their licensing policies.

It is a requirement of the Licensing Act that the policy is reviewed at least every three years, and the anniversary arrives at the beginning of January 2008. So the next three months will see licensing authorities making changes to the document in the light of their experiences during the first period of the new legislation.

Consultation is obligatory. However, the actual level of consultation is not laid down, except that it must be done before the new policy is determined. So there may be both wide and narrow levels of consultation, and in many cases the production of a draft document on which comments are invited.

The licensed trade must be involved in this, but here is the first point of confusion. The Act does not in fact require trade organisations to be consulted: it says that the council must consult "such persons as the licensing authority considers to be representative of holders of premises licences (and personal licences) issued by that authority."

A representative sample? That's what it actually says, not representative organisations. Clearly, most authorities would turn to trade associations where appropriate, but they do not have to. It appears sufficient to consult with perhaps half a dozen licensees on what the council proposes.

How much weight will the responses have? That will depend on the attitude taken by the authority. In the current climate, unfortunately, that is likely to reflect departmental and Government fears of binge drinking and street problems associated with late-night opening. But it is unlikely to concentrate on technical matters such as periods of notice, hearings and inappropriate conditions, which have been the main problem areas for the trade and its advisers.

What concerns me at the moment is the "three-year itch". That is when councils gain some confidence that they now control licensing and seek to push those controls a little further - almost to the extent of laying down the principles on which pubs should be run and conducted.

This was always a danger. Given, as it were, a blank piece of paper on which to write their policies, it is not surprising that some authorities want to cover all aspects of running a pub, including many which are, strictly speaking, outside the four licensing objectives.

This happened to some extent with the licensing justices. I have mentioned before that the Birmingham bench was notorious for meddling with the actual mechanics of running a pub, rather than confining itself to licensing principles.

I do not believe that the Birmingham Council takes the same line - but some other licensing authorities certainly do.

Until the arrival of the Good Practice Guide, the licensing justices had a free hand. Some would indeed act as licensing planning authorities, controlling the number of outlets in their area, or produce strict policies on applications, extensions and the conduct of premises, with which all licensees were expected to comply.

This time round, there is a danger that some local authority licensing policies will move more to the old Birmingham model, on the basis that the proper running of licensed premises will prevent disorder and risks to public safety. However, setting strict rules for licensees was not envisaged by the Act and not encouraged by the statutory Guidance, which says that conditions must be "tailored to the specific premises, proportionate, necessary and capable of being met."

I do hope that councils bear those words in mind over the next three months.