The only constant is change

The debate centred on whether a condition-making power given by a statute could be exercised as widely as the committee liked, or had to be confined to what was relevant in the circumstances.

Plus ça change! We now have a similar debate about the conditions being imposed on premises licences which are based on general crime prevention initiatives. These may have no direct relevance to the business of selling alcohol or refreshment, but would be applicable to everyone, whatever trade they were carrying on.

I have commented before that the licensing system, and its scheme of representations made by responsible authorities, should not be used as a repository for a range of ideas on ‘best practice’ or preventative measures beyond the immediate remit of the licensing system itself.

The first question which must always be asked is: is it relevant to the business of selling alcohol or providing entertainment or refreshment? The licensing objectives are in existence to give a guide to licensing authorities on the areas which they may consider.

But that does not mean that ALL health and safety, crime and disorder proposals — which may well be covered by other legislation or regulations — can be included in a raft of conditions on the licence.

It is encouraging that in two recent cases, judges in England and in Scotland have endorsed this view and have removed conditions which are felt to be outside the scope of the licensing scheme. How long this view will hold — particularly in England — is yet another question.
The reason for imposing conditions, it seems to me, is two-fold: to shape the nature of the licence itself (so that it fits into the type of activity proposed in the application) and secondly, to control the activity so that it conforms with the licensing objectives.

Up until now, conditions have been imposed, in the main, because the authority has been convinced — either by representations or their own observations on the situation — that they were required on this or that particular licence.

At the outset, the statutory Guidance advised that general-purpose or blanket conditions should be avoided and that conditions should be tailored in this way to the requirements of individual licences.

This has to some extent been eroded, sometimes because responsible authorities have themselves put up blanket conditions which have been accepted, whether or not they are actually relevant.

But now, the whole situation (and the value of these recent judgements) may change, when the Police Reform and Social Responsibility Bill becomes law. That requirement that conditions should be seen to be necessary to meet the licensing objectives is to be swept away and replaced by a provision that they should be ‘appropriate’.

This ill-thought out change is clearly intended to allow a freer rein to licensing committees in imposing ‘good ideas’ on licences, rather than having to consider properly what a condition is for.

There will, as a result, be a great debate about the meaning of the word ‘appropriate’ and its context, so lawyers will undoubtedly have a field day in trying to set the limits on what committees can do — and some committees who have very strong ideas on what constitutes social responsibility will attempt to broaden their horizons even more.

For the individual licensee, it is to be hoped that the change is of little effect until a variation application is made, when they may find a few more costly requirements come on to the agenda.