Text of an
article published in Licensing Review July/August 2008
by
Lionel Starling local authority
Licensing Officer
1) Where the Licensing Act 2003 is concerned,
the project phase is now history; we have passed through the 'becoming routine'
phase and are now firmly in the "What can this thing do?" phase. In our
imagination, we can now embark on a spot of summer pruning. Along the way, we
can look at some wayward motivations.
2) A conspiracy theorist might be looking at
share-holdings in paper manufacturing companies, to try to understand how in
these eco-conscious times the Act drives such a wasteful and pointless
consumption of plain white paper. I doubt they will find an answer there.
3) The obsessive extravagance of the statutory
forms has been mentioned before. A page for theatre. For theatrical
performances in off-licences? A page for indoor sport. In wine bars?
4) Not only thisbut a
spreadsheet for every day of the week and two different types of exception!
5) We live in an age when home insurance is
arranged by telephone and they ask "How many bedrooms do you have?" and "Have
you made a claim in the past five years". After that, you are in.
6) At this point, I can divulge a State secret.
When someone applies for an off-licence, having ensured that they want nothing
else, I offer them a form with all of the entertainment option pages missing.
We deal with customers on a day by day basis. We care about them and we want to
ease their burden of paperwork. Shocking isn't it?
7) Proposed
departures
8) A sane model would be a form that presents a
standard package for the general business type and then invites proposed
departures from that on a summary page. The lazy importation of the phrase 'of
a like kind' achieves nothing. I patiently explain to customers that whilst nobody
has any idea what that particular section means, one day the High Court may
enlighten us all and at that point those who failed to tick the necessary boxes
will find themselves without - erm - whatever it is.
9) Rectifying that would of course cost. Better
by far to ask for it now. The 'facilities for' section is quite fun. A 13Amp
socket is a facility for plugging in a bass guitar. It is, ergo, a facility.
The perplexing element is the notion that a 13Amp socket can be present at
certain hours of the day but be absent at other times.
10) Going back a time, the swimming baths in
Stepney (dangerous territory here, as a historian will no doubt jump in, as it
were, and correct me) could be converted so that the pool was covered over in
the evening for ballroom dancing to take place. Maybe I am thinking of Hollywood.
11) In any event, the dance-floor 'facility' was
not there on a twenty-four hour basis. Could that explain the hours and days
grid on those pages of the form ? Perhaps. Although since the switch-over could
happen at any time, much the safest thing would be to ask for twenty-four
hours, just to be on the safe side...
12) The "capacity in which you sign this form" is a
gem. A test both of logic and of memory. As well as pruning, we could maybe do
a bit of transplanting and insert this question about capacity into the section
which deals with capacity.
13) That would be good.
14) Four
little boxes
15) All that remains is the Operating Schedule. The
words have the resonance of something one would weigh on a pair of scales, with
a half brick on the other side to balance it. Just four little boxes though -
and a fifth for "all of these". It is the ultimate exam nightmare. Can it
possibly be that the right answer is to put 'none' in every box ? Only the
brightest and most confident student is going to have the panache to assert
that their restaurant is already regulated within an inch of its life and
frankly needs no more red tape.
16) Some clues for the hapless customer would be
nice but alas 'consultants' may well have an eye to the potential of offering
'monitoring' services and advise a shed-load of conditions. Saying "leave that
blank" may not convey the right air of professional mystique. Those who offer
training courses may also lean towards recommending an extensive catalogue.
17) Swedish
case law
18) To digress for a moment, there is a splendid
statement of the obvious in the Thwaites case. The magistrates demonstrably
allowed their personal prejudices to get in the way. They took it absolutely as
read that the licence they were being asked to dispense was to be viewed as a
privilege.
19) The applicant was plainly trying to "take
advantage". It seems that nobody assisted them with the nugget of Swedish case
law which might have helped. Had they been familiar with the writings of Thomas
Paine (or even the history of cremation), they might have comprehended the
notion that an individual has inherent freedoms, which can be qualified and
constrained only with just cause, for the general good.
20) Premises licences are the embodiment of a set of
restrictions or qualifications of various freedoms. They are handcuffs clamped
on in the expectation of preventing nuisances and harms. Emphatically they are
not sweeties doled out in a grand manner to lesser mortals who must therefore
come bearing justifications.
21) The onus of justification rests entirely on the
issuer, to explain why they are interfering. Lots of sage nodding at this
point. Looking around though, were these magistrates just an aberration, an
unusual cluster of heretics? In effect, the High Court denounced them as such.
The judgment was pretty withering.
22) In a licensing context however we must
acknowledge that they represent the mainstream. Institutions tend naturally in
their direction. It is an ugly thing to say but he (or she) who casts down
indulgences from on high will tend to derive a sense of importance from that
arrangement. Their discretion to give or not to give affords them status. Which
they like.
23) So the failure of an applicant to set out a
decent weight of volunteered constraints, preferably at a heavy financial cost,
is perceived as disrespectful. Applicants are drawn into flattery and barter;
they are considered upstart radicals if they assert simply that they plan to
run their business in an effective and professional manner and are more than
capable of doing so without offering up any conditions at all.
24) If the sentiment of the High Court was really
taken to heart, that would of course be the norm.
25) Going back to the form, we have done enough
work on it I think. It now comprises two sides of A4, set out in plain English.
We have saved nine sheetsof A4. Ten sets of each (the applicant keeps a copy!);
that is ninety sheets per application; multiplied 180,000 times. In real terms,
81 metric tonnes of paper. Quite a lot.
26) This brings us nicely on to the question of the
ten separate sets. Sadly, the really interesting statistics are not kept. We
can make an intelligent guess though. Four of the responsible authorities
combined submit a thousand times more representations than do the remaining
four combined. I may be wrong. It could be ten thousand times more.
27) This is because the selection of four of them
was fundamentally misconceived. The Fire Brigade have their own toolbox of
regulatory controls and have no need to raid ours. About all they could
possibly do is make some general noises at a review hearing, to the effect that
the premises are badly managed, in their experience.
28) (Against that background, it is scandalous and
irrational that licensing plans have to show fire safety features. The
information is no more relevant to the Licensing Act than whether or not they
have paid for their television licence.)
29) Planners have their say through the planning
process. They are perplexed as to why they are consulted, when any comment relevant
to their discipline would of necessity be ultra vires. Health and Safety have
the same problem. If it is broken they can mend it themselves. After the
duplication of effort, what is there left for them?
30) That just leaves Child Protection and this is where
the greatest irony of all is to be found. Out of the blue someone came up with
the suggestion that they be included in the list and the rest is history. It
must have seemed logical, at a very superficial level. As a result they are now
besieged with mountains of paper.
31) Their task is to comment on premises - about
which they know nothing. When people are being evaluated (an area where they
are qualified to comment) they have no role at all.
32) In a climate in which when anything goes wrong,
they always get the blame, they have been burdened with a flood of application
forms which just might, one day, contain something which they should have
noticed and acted upon. Do they therefore mind their backs and employ someone
to sift through it all and tick a box? If they do, they divert precious
resources away from safeguarding children.
33) Happily, they are sensible people with a
conscience. So they buy a dedicated In tray with a built-in shredder.
34) As the observant among you will have noticed,
scrubbing the superfluous four from the list has now bumped our paper saving up
to 113 metric tonnes since the Act was introduced. Without counting envelopes.
Imagine the postage costs on that.
35) Another thought to end with. Perhaps one out of
a thousand temporary event notices is worthy of note. The authorisation is as
of right, except in the very rare case that crime is in prospect.
36) The police have only forty-eight hours to
comment but nevertheless applicants are compelled to give ten working days
notice, even for events so banal in their consequences that it would be
scandalous for the police to divert the least energy in their direction.
37) The idea that the ten days are there to give
the police time to 'prepare' is laughable. The sky has not fallen in since
temporary event notices were introduced, despite vast numbers of them having
been sought. They represent an exemption from normal requirements and the
exemption is simply acknowledged.
38) They are a polite informative, not a request.
Why then are they not a simple over the counter or down-loadable ticket, like a
stamp or a fishing permit ?
39) The case for rationing is clear enough but that
is just a matter of counting. Given that the police have only forty-eight hours
in which to comment, it must make sense for the full ten days notice to be
waived, in any case where the police have nothing to say in the time available
to them.
40) In an age when practically every process is
e-enabled (and is required by statute to be so in local government) temporary
event notices are a prime candidate for seamless online service.
41) For something conceived of as 'light touch',
the full life history application form is way over the top. Are the police
really going to run PNC checks on the Women's Institute
September 2008
