More room for error

One of the key policy elements of the Government in moving licensing over to local

authorities was to remove the "inconsistencies" that they claimed were rampant in the decisions of licensing justices.

Since then, we have seen at least the same level of inconsistency from licensing departments, given the rather woolly nature of the statutory Guidance issued by the Department for Culture, Media & Sport. Now, with the advent of a new procedure on

minor variations, which takes effect next Wednesday, we are likely to see even more.

The Guidance that accompanies this new measure is no more specific than previous versions, because it never really succeeds in defining what a minor variation actually is. We know what it isn't: it is anything that will "not impact adversely" on the licensing objectives. So we start with a negative idea, and go on from there.

This means that cautious licensing officers, or their colleagues in environmental

health, will see danger in any attempt by licensees to improve their position or their premises. Certainly in Westminster, which dislikes the new procedure and has made its feelings clear to the DCMS, environmental health officers begin every comment on almost anything with the opinion that it will adversely impact on the licensing objectives, thus putting the onus back on the applicant to prove that it will not.

The problem with this measure is that it is a double-edged sword. You can be refused on an opinion, or a fear, and have no redress. If the minor variation application is refused, which can happen at any time within a 15-day period, you lose your money (£89 as it happens) and have to start from scratch with a full variation application, which will take at least 28 days and in most cases longer, especially if there needs to be a hearing.

Here, I have to express some hope that those enlightened licensing officers whom I know will have the common sense to use this measure as it was intended. It will take some confidence to do so, because they need to make a value judgment, they need to decide whether or not to consult other responsible authorities (that decision is theirs alone), which would probably include the police and environmental health, for starters. They then need to assess whether any objections or concerns by them are valid enough to warrant refusal, or whether they can compromise with the applicant, or seek a volunteered condition — all within 15 days.

In some cases, interestingly enough, there may be a clash with these authorities. The Guidance notes that "The licensing (officer) should be alive to any attempts to pressure licensees into agreeing to new conditions where there is no evidence of any problem at the premises…" In other words, if the police start to use the minor variations procedure as an "opportunity" to impose standard conditions, such as CCTV or plastic glasses, when there is no evidence of need, then the licensing officer should stand against it.

Whew! That puts them squarely in the firing line, doesn't it? How many licensing officers are going to be prepared to stick their necks out? Would they not rather refer the matter to the committee and get themselves off the hook? After all, they only need to say that there may be some adverse impact on the licensing objectives,

and no-one can disagree.

I hope, however, that my fears are not realised and that the minor variations procedure will be effectively used to "clean up" licences, especially those wretched embedded

conditions culled from the 1964 Act, and may even be employed to add certain kinds of live music as the Government desires, though on this point I have considerable doubts.