Sobering thoughts, by Philip Johnston

15 Dec 05
Well, the Licensing Act has finally come into effect, and half the nation is still waiting in fear for the other half to go on a drunken rampage. Philip Johnston considers the consequences of the law in the cold light of day

16 December 2005

Well, the Licensing Act has finally come into effect, and half the nation is still waiting in fear for the other half to go on a drunken rampage. Philip Johnston considers the consequences of the law in the cold light of day

Christmas is coming and we can now go a-wassailing for as long as we like, thanks to the Licensing Act, which arrived in our midst after a gestation period of elephantine proportions. Throughout its long and troublesome confinement, we were told to tremble at the prospect of its birth. Yet the world has proved remarkably resilient to the shock. On November 24, the 'second appointed day' for the enactment of the measure, reporters were despatched across the land for evidence that the extra hour or two of boozing had turned the nation's youngsters into drink-crazed yobs, or more so than usual. In fact, little had changed. The dark, dank days of November were a good time to introduce the Act because nothing much happens that could be blamed on the new laws.

If the post-Christmas crime figures show a sharp upward rise then the government can, and will, attribute any increase in drink-related disorder to a surfeit of festive spirit and to greater diligence on the part of the police. Pubs tended to open later in any case over Christmas and the New Year holiday period after obtaining special extensions, so the new Act should make little difference.

Suddenly, we will be into January and only the most hardened boozer will stay out drinking until 3am when the attraction of a late pint is offset by the thought of a walk home in sub-zero temperatures. Before we know it, April will be upon us and, as promised, the government will undertake a review of the first few months' operation of the Act, judging it to have been a success.

Then next summer will arrive and, with it, the World Cup. There will be mayhem as pubs stay open late after showing England's matches on big TV screens. Football fans, the worse for wear, will stalk the streets into the small hours, their mood determined by the team's performance.

This is not crystal-ball gazing, merely an observation based on what happened when the Euro 2004 soccer championships were played in Portugal. That marked the first widespread use of big-screen broadcasting of an international football tournament played in normal pub opening time, as the World Cup will be in Germany next July. Most of the matches will be in the evening, starting at around 8pm. It will be summer, the weather will be balmy and there will be trouble. Rightly or wrongly, the Licensing Act will be blamed. When the government introduced the Act, partly in the hope of introducing a continental-style café culture to England, ministers and officials must have failed to realise that its first proper test would coincide with the world's biggest soccer tournament. If they did, then their decision was courageous, bordering on the foolhardy.

The verdict of history on the Act will depend a good deal on how well it copes with the World Cup. If it ameliorates the inevitable alcohol-fuelled shenanigans, then it will overcome any criticism. In any case, longer opening is now here to stay and it would be a brave government to revert to where we were before November 24.

But there are lessons to be learned from the way the Act was brought in, not least in the way the government responded (mostly badly) to the unintended consequences of the new regime. To begin with, the link between the Act and rowdiness was not made at all. Although Labour made no specific pledge in their 1997 manifesto, the party did commit to a 'review of licensing laws to reflect the business and consumer environment' if they won power.

Ministers became convinced that the licensing regime, dating back some 80 years, was archaic and cumbersome and needed an overhaul. The experience over the millennium, when some pubs opened for 36 hours at a stretch, encouraged the belief that people could safely be given the latitude to drink over a long period without laying waste to the country.

At that time, the responsibility for licensing lay with the Home Office and, before the 2001 election, ministers made much of the deregulatory thrust of the proposed reforms. Famously, and fatuously, the Labour Party sent out a text message to young voters during the 2001 general election saying: 'If you don't give a XXXX for closing time, vote Labour.' But, in reality, nobody much believed anything was going to happen. After all, the Home Office had reheated the same announcement at least half a dozen times and everyone was justifiably sceptical that the reforms would ever see the light of day. The tensions then taking shape in the Home Office, between those who wanted deregulation and those who feared that it would conflict with the department's crackdown on antisocial behaviour, were too powerful to make formulation of a coherent policy possible.

However, after Labour's victory in 2001, licensing was taken away from the Home Office and handed over to the Department for Culture, Media and Sport. This was the key move that ensured the reforms were carried through. It was now possible to look at licensing principally from a regulatory point of view, unencumbered by concerns about crime. The aim of the exercise became one of cutting down on the bureaucracy that goes with seeking an extension of licensing hours.

The philosophy behind the reform was laudable: it assumed that adults were entitled to have a drink late at night if they chose to and, if there was greater flexibility in the system, the trouble associated with a common chucking-out time of 11pm might be averted. It would mean that some pubs and clubs could, if they wished and permission was granted, open for 24 hours, seven days a week.

The government could be forgiven for thinking it had a fair wind for its reforms. The Conservatives said: 'We are in favour of the principles although we have some reservations about the mechanics of allowing local councils rather than magistrates to police the licensing.' The police were also sanguine, indicating support for the idea that flexible opening would ease closing time problems and welcoming new powers to deal with problem landlords and impose fixed penalties on rowdy drinkers. While the Bill was going through Parliament, this was not a particularly contentious piece of legislation. So what turned it into one?

Although the government likes to point a finger at some sections of the press for hyping up fears about the Act, it has no-one but itself to blame. At a time when ministers were making a huge fuss about antisocial behaviour and binge drinking, and had launched their 'respect' crusade, it was hardly a surprise when some newspapers began to suggest a disconnection between the two policies. On the other hand, the media were guilty of allowing the impression to develop that all pubs would be open all the time. In the event, fewer than a third of licensed premises applied for longer hours, and of those that did, about 40% have sought one extra hour (not necessarily on every night of the week) and around 35% a further hour. Fewer than 400 pubs or clubs have acquired the right to open all hours (less than 0.5% of the total) and the majority will not do so all the time. It is hardly a free-for-all.

The way the Act was brought in, however, has left a legacy of bad feeling among a wide range of people who will not easily forgive or forget the inconvenience and irritation it has engendered. They were left fuming with frustration at its complexity, and out of pocket because of its expense. From live musicians to village hall managers, and from sports clubs to small wine merchants – who have all had to wade through mountains of paperwork to obtain their alcohol or entertainment licences – screams of anguish have gone largely unheeded.

On top of that, the Local Government Association estimates that the additional cost to local authorities of taking on the new licensing responsibilities from magistrates is about £70m, although the government has now promised that this will be paid for out of fees.

The Federation of Small Businesses said the costs to small businesses requiring a licence to sell alcohol had increased sharply because 'the system has not been properly thought through and has not taken account of small business needs'.

Apart from all the unnecessary grief caused to those seeking licences, there remains a host of anomalies and idiocies. All those Christmas carollers now singing in shopping centres, railway stations or other public places had to obtain an entertainment licence at least ten days before their 'performance', something that was never needed before but will now be required every year.

The government has picked out ten councils where all aspects of the law will be reviewed. James Purnell, the licensing minister, said the Act would be the most scrutinised piece of legislation of recent years, which is something of a first – and no bad thing – since governments hardly ever review the impact of new laws. Among the issues still to be resolved are the way temporary event notices can be obtained by village halls, schools and other non-threatening institutions. The simplest way would be to exempt them from the Act altogether but this would require more legislation.

Another problematic area that will need to be sorted out is the evident imbalance between local authorities and residents on the one hand and the pubs and brewers on the other. The former feel they are at a disadvantage when it comes to stopping rowdy premises getting extensions and there have been high-profile cases of initial decisions being overturned on appeal.

The level of the licence fee, which is meant to cover the administration costs, is also a point of continuing friction and is to be examined over the next 12 months by Sir Les Elton and his independent review panel. One of the anomalies he needs to address is the unfair burden on some small traders, because they are charged on the rateable value of the whole building where they store alcohol, even if only a small part of the building is used for that purpose.

Many problems, some foreseen, others not, will develop as the Act takes root. Perhaps this should not be a surprise when dealing with about 190,000 licensees in a sector previously regulated by up to 50 pieces of legislation. But the law of unintended consequences often bites hardest on those who never needed regulating in the first place, because their premises would never be associated with bad behaviour or, if they were, could easily be dealt with. From circuses to village halls, folk singers to cricket clubs, the experience of this Act's implementation has not been a happy one, even if they are now promised a hassle-free future because they do not need to renew their licences other than by sending off a cheque each year to the local authority.

There are hundreds of thousands of people who have been inconvenienced, or worse, by the new licensing requirements and they will not look kindly upon the government if, in addition, all the predictions about worsening drink-related violence come true. This Christmas will be little different from last, although, inevitably, any town centre punch-up will now be blamed on the new laws even if they happened under the previous regime. One thing is certain: the quiet, easy-paced drinking culture of continental Europe will not have been adopted in time to stop this year's 'season of goodwill' being any less booze-drenched than in the past.

But the real test of the Act will come with the World Cup. Next June, it is the government's fervent hope that we can cheer on our team happy in the knowledge that the new, flexible opening hours will have ushered in a more relaxed and responsible approach to the enjoyment of alcohol. That is about as likely as England winning the trophy.

Philip Johnston is home affairs editor of the Daily Telegraph