I am reminded sometimes of being out shopping with my mother who would, after seeing a particularly expensive price tag shortly after decimalisation, remark: “That’s over four shillings in old money!”
If one word sums up the difference between two regimes (other than ‘resident’) then it is surely ‘discretion’. The old regime was built around the issue of discretion and that had to be exercised in relation to every application, no matter how straightforward the issue. The magistrates were effectively sitting as a court exercising discretion created by statue (the old Licensing Act), but applying common law principles of reasonableness and fairness, which were centuries old; there was little if any delegation of their authority.
It led to the rather bizarre circumstances where an extremely experienced applicant for a licence, known to the court, with many years experience as a licensee and of good character, could in theory have his application refused.
I can still recall the busy court, the rather haughty chairman and the very experienced but incredibly nervous applicant for a licence being asked a series of questions that were really more of a test of memory under pressure than ability to operate a public house.
Administrative decisions
For all their imperfections, magistrates were experienced in exercising discretion fairly, having received extensive training, often possessing a knowledge of the area and its licensed premises and being advised as to procedure, evidence and law by a qualified lawyer in court.
Once the decision had been taken to transfer control of licensing to local authorities, inevitably the process became more administrative. Local authorities are experienced in making administrative decisions, but not in acting in a judicial or quasi-judicial capacity; there was no point in simply replacing the role of magistrates with less qualified people unless the system also changed.
Hence the Licensing Act 2003 was designed to minimise, as far as possible, the opportunity to exercise discretion by introducing a presumption of grant for both personal and premises licensing, by delegating authority to officers and leaving only disputed matters to councillors sitting as a licensing committee, and even then whose discretion would be limited by the Act, guidance and regulations.
Reasonable steps?
I propose to look at one example of discretion in this article, which is that exercised by an officer when an applicant to transfer the licence cannot provide the consent of the existing premises licence holder, but then has to “satisfy” the local authority “that he has taken all reasonable steps to obtain that consent”.
In my recent experience in relation to this, local authorities sometimes struggle with completely unfettered discretion and in assessing whether a matter is ‘reasonable’ or not. ‘Reasonable’ is a classic lawyer’s word and by its nature allows for differing interpretations as to what may be reasonable or not.
Local authorities are more comfortable with decisions that are not so ‘open ended’ and I think perhaps of planning where officers do make decisions and offer recommendations, but almost always these are policy based and so the officer is working to a guideline framework. There is no such assistance in relation to interpreting the word ‘reasonable’.
A number of local authorities will look for proof that perhaps on two occasions the proposed licence holder has written either by letter or email to the existing licence holder without receiving a reply, and on the production of these letters and a passage of time (say, for example two weeks) the test of “reasonable steps” will be regarded as satisfied and the discretion exercised in favour of the grant of the transfer.
In some local authorities licensing officers will happily make this decision, but in others the matter has to be referred ‘up the line’, either to the head of licensing or beyond, or sometimes referred to the legal department; this shows a reluctance to make a decision and can, from an operator’s point of view, unnecessarily delay the process.
In a future article, I will look at the more complex issue of when the existing licence holder actually replies to a request to consent to the transfer and declares that he or she refuses to give consent, and whether the local authority in these circumstances should exercise its discretion in relation to the transfer application.