Storm Warning for Licensed Premises
We have long seen the signs of stormy weather for the
licensed trade. The smoking ban was just a taster, and the credit crunch a further wind of ill fortune. And it is all down to the hands of government and, more particularly, which hand.
The Department for Culture Media and Sport were given responsibility for the leisure industry, introducing the new licensing laws which went live in 2005. There is a licensing minister. The current incumbent is Gerry Sutcliffe. The message from Tessa Jowell, Secretary of State, back in 2005, was that a light touch would be the hallmark of licensing, with intervention only with the problem premises, and only when necessary. But the problem is that the Department have lost their voice. They have been banished to the bike sheds by the bully boys and girls from the Home Office. The light touch has been kicked into the shadows.
The one size fits all mentality of the Home Office is set to over regulate a trade it is hell bent on beating into submission. For the sake of a few town centre trouble spots which grab the tabloid headlines, the whole trade is going to be overwhelmed by red tape. Let us not forget that the Home Office was responsible for the ill conceived and so far little used Alcohol Disorder Zones, which even Parliament condemned as being unnecessarily bureaucratic.
So what does lie ahead for the
licensed trade? The Home Office takeover started back in 2007 with the Safe Sensible Social report for a new National Alcohol Policy, commissioned jointly by the Department for Health, the Home Office, and the Department for Culture Media and Sport. The Home Office grabbed the reigns with their Practical Guide to Dealing with Alcohol Related Problems in February 2008, and followed this up with a report in March 2008 on the impact of the Licensing Act on levels of crime and disorder. In the same month the Department for Culture Media and Sport issued their own evaluation of the Licensing Act 2003 which was, on the whole, positive, but the Home Office were now in charge.
A report was published in July 2008 on the joint alcohol industry and government backed voluntary code for retailing of alcohol. This report claimed that the voluntary code was not working, but it was criticised by many as too focused on the small minority of premises causing problems. But the Home Office were not to be deterred.
We now know the constraints about to be inflicted. In May 2009 the Home Office issued its consultation on the code of practice for alcohol retailers entitled “Safe, Sensible, Social: Selling Alcohol Responsibly”. Jacqui Smith has indeed declared that the joint voluntary code between the government and the trade is not working. She claims that the new powers will not affect the majority of businesses, but given the strong role of the police behind these new laws, and given the somewhat blunt instrument of
licensing authorities, I suspect that very few believe that. I expect that what is proposed in the consultation will become law soon after the end of the consultation period on 5 August, unless, of course, there is an early election.
The main proposals are:
1. Up to 9 mandatory conditions including:
- a ban on irresponsible promotions such as “all you can drink for £10”
- a ban on alcohol being dispensed directly into the mouth
- a requirement for smaller measures (not glass sizes) of alcohol are available
- a requirement for free tap water to be available
- a requirement for on-line and mail order retailers to have robust age verification systems in place
- point of sale information visible to customers on the alcohol unit content of drinks and in the off trade additional health related information
2. Discretionary local conditions that can be applied to groups of 2 or more licensed premises in any local area that have been linked to alcohol-related nuisance and disorder. Examples are:
- the provision of a direct telephone line to local taxi services
- banning of glass containers during evenings and at weekends
- a proof of age scheme
- restrictions on happy hours
- an effective dispersal policy
- regular checks of toilets
And for the off-trade a ban on specific bulk discounts in the evenings and at weekends, such as discounts on volumes greater than 12 litres of beer, lager and cider, 9 litres of wine, and 2 litres of spirits. So anyone planning a party will have to buy at specific times when such discounts will be allowed.
It is also significant that for the first time a licensing authority may itself resolve to impose one or more discretionary conditions. It does not have to wait for another authority to make a request. It must however consider a resolution if requested by a responsible authority such as the police.
3. An extension of the Statutory Guidance to include these measures as well as a good practice guidance.
There is very little evidence that there are any problems caused by clubs run under Club Premises Certificates, which are private members’ clubs, and yet the Home Office insist that they too will be subject to the mandatory and discretionary conditions and a code of practice. A clear case of over regulation. Clubs are struggling enough as it is without more red tape.
The new Home Office sponsored Policing and Crime Bill is currently being debated in Parliament. Once in force it will allow the Home Secretary, note not the Licensing Minister, to implement the measures outlined above by imposing up to 9 mandatory licensing conditions on any new or existing licensed premises selling or supplying alcohol, and will allow the licensing authorities to impose the discretionary conditions. Let us hope that this is the end of interference, but I very much doubt it.
If you want advice on how best to avoid the discretionary conditions, and how best to avoid a review of your premises licence, contact Nigel Musgrove Licensing Law Specialist at Cousins Business Law.
Article added: 26 May 2009 © Cousins Business Law
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