The Licensing Act and You
Two years on – what’s the effect of the new Licensing Act?
It’s worth remembering that the trade bodies got together in 1999 and produced the skeleton of a new Licensing Act. This was taken up by the Government and the Bill was passed in 2003.
It was a relatively liberal Act, in particular removing the restrictions on opening hours. It was hardly discussed in the Commons, although the House of Lords considered certain aspects in detail. The Bill bounced between the House of Lords and the House of Commons yet nearly failed only because Morris Dancers weren’t exempt from the need to obtain a licence!
Three years ago nearly 400 local authorities were busy writing their licensing policies. These were read by the various trade associations and three were challenged.
Of these, one stayed in until the final High Court hearing. They lost and, as a result, amendments were made to policies so that they didn’t depart too much from the main thrust of the Act, the purpose of which was to remove closing time restrictions and generally free up the world of licensing.
The Act is badly worded. In the first instance, the National Guidance was also badly worded. For example, how to deal with applications for variations of the licence. Even minor changes still require a full application, which has to be advertised and sent to seven different authorities. So, for example, if all you want to do is move a fire extinguisher, it will be a very costly exercise both in terms of time and money. The original Guidance was vague, so many councils decided that variations had a very limited use and that most changes required an application for a new premises licence.
One of the major changes in the new Guidance makes it clear that the majority of applications can be dealt with by way of variation.
Now that the Guidance has been reworded, it is a much more sensible document to read. If you haven’t seen it yet, take a look at the DCMS website (www.culture.gov.uk). The Government will, hopefully, soon allow you to make minor amendments to your plans without the need for a formal application. This will significantly reduce the cost of compliance with the law, which is one of the main problems with the current Licensing Act.
This is not an academic exercise. There are still a number of potential problems. If you are acquiring new premises, you may find yourself in the difficult position of wanting to buy them, but finding that the premises look very different upon the plans held at the local authority. This leaves you with a difficult dilemma because it means that applications for variation have not been made. In these circumstances, think carefully before proceeding with the acquisition as, further down the line, authorities could stop you trading. Furthermore, your application could be successfully objected to, which could leave you with significant expense in putting the premises back to how they were before you even knew of their existence.
It’s not just the Licensing Act that’s causing problems for the on-trade. Legislation has been passed that gives the police power to close licensed premises. This can be a real worry, particularly when the police make a mistake. Needless to say, such a closure can have a bad effect upon your reputation.
The police have also clamped down on under 18 year olds buying drinks, which has been well documented. The police take in a 16 year old who attempts to buy a drink. If the arrest is “successful”, it’s an £80 fixed penalty for the member of staff who sold the youth the alcoholic beverage. This can also lead to a review of the premises licence. If you have three failed test purchases within three months, the police can offer you a two-day closure or alternatively take you to the Magistrates Court where you could be facing three months without the ability to sell alcohol. It’s a real change in Government thinking.
I once asked a room full of senior police officers whether anybody there had not purchased a drink in a pub prior to their 18th birthday. One hundred and thirty honest police officers kept their hands firmly down!
The latest initiative is in respect of drunks. If you sell alcohol to somebody who, in the opinion of the police, has had too much to drink then the member of staff could face an £80 fine and you could face a review of the licence. When I think of the number of times that I have behaved perfectly properly in licensed premises but staggered a little when I’ve hit the street, I think this is a very worrying development. Perhaps the police should be encouraged to check on Members of Parliament when they leave the House of Commons’ bar facilities! Maybe then MPs would make the definition of drunkenness much tighter or, better still, forget about enforcing this particular piece of legislation.
Poppleston Allen is the largest firm of specialist licensing solicitors in the UK that deals exclusively with licensing law and procedures, planning, regulatory crime and training. The company’s activities are local, national and international with a client base ranging from small companies and independent licensees to some of the most important names in the leisure industry. T: 0115 953 8500 www.popall.co.uk