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Licensing news England and Wales - November 2016

This month in summary:

Alcohol licensing news

Gambling news

Late Night Levy news

Cheltenham's consultation on removing the Late Night Levy ended on 7 November.  It is expected that the levy will be cancelled on 31 March 2017.

Gloucester City Council are consulting on the introduction of a LNL in 2017. Their consultation closes on 7 December 2016. The proposal is for premises selling alcohol after midnight, with exemptions for New Year's Eve and a reduction in fees for best practice (Best Bar None) accredited premises. The consultation documents can be found on Gloucester City Council’s website

House of Lords Licensing Select Committee hears from industry on Licensing Act

As part of their investigation into the success of the Licensing Act, ten years on from itsintroduction, the House of Lords Licensing Select Committee has been hearing evidence from various parties interested in the industry. We attended on the day they heard from a major pub operator and a number of associations involved in the pub and beer industry. The questions and some of the comments from their Lordships gave a fascinating insight into their thinking and perhaps some of the findings that might make their report in January.

  • Resident views

Their Lordships   invited resident associations to give evidence. Clearly, these associations still feel that the Licensing Act is unfairly tipped in favour of the operators, and view them as large and faceless companies that simply want to make money and have no sense of civic responsibility. Additionally, there appears to be a growing concern about the competing interests of residents living in ever larger numbers in city and town centres and the effects that late night bars and clubs have on their quality of life. 

  • 'Agent of Change’ principle

Their Lordships spent some time questioning parties on the 'agent of change' principle, and whether it needs to be used to save licensed premises from encroaching residential development. The principle effectively reverses the burden on developers, making them responsible for ensuring that new residential premises built next to, or close to, licensed premises are properly soundproofed and residents warned that they are living next to licensed premises. The idea of the principle being used in licensing was, unsurprisingly, welcomed by all parties representing the pub and club sector.

  • Change to the licensing objectives

This was perhaps the most controversial proposal that drew the most diverse views. A number of parties responded that there should be no change to the current four licensing objectives, whereas others considered that an objective of 'promoting culture, community and wellbeing' would re-balance the objectives which currently are all 'negative'. Unanimously, however, the parties representing the industry felt that a 'health objective' should not be introduced.

We will report further as more news comes from the Select Committee.

Minimum unit pricing (MUP) draws a step closer

The Scottish Court of session has determined that the Scottish Parliament could be justified on introducing MUP as a means of protecting public health. The case had been brought by the Scottish Whisky Association (SWA) to seek to have MUP declared illegal.

This could mean a step closer to MUP being implemented across the rest of the UK.

Previously, the Scottish Court of Session referred the case to the European Court of Justice (ECJ) who agreed that minimum unit pricing may breach EU rules on free trade. But the Act could be justified on health grounds where minimum unit pricing would be a more proportionate and effective solution than taxation.  The ECJ stated, that the decision was one which ultimately needed to be made in Scotland.

The Court of Session dismissed the SWA’s appeal and stated that: “The fact that the legislation would affect moderate drinkers in some way does not detract from the legitimacy of the aim as a measure designed for the general protection of public health and life.”

The SWA is currently considering whether to make a further appeal, taking the matter to the UK Supreme Court.

What does this mean for the rest of the UK?

The UK government has supported Scotland in its aim to introduce MUP, arguing that it is compatible with EU law, with the other UK countries showing interest in implementing similar schemes. 

In 2012, David Cameron pledged to introduce MUPin England and Wales.  This is currently under review and may be implemented at a later date. The House of Lords Select Committee on the Licensing Act 2003 which is currently in session is considering whether MUP should be introduced in England and Wales and have invited responses regarding its implementation. They are expected to deliver their recommendations by 31 March 2017, by which time the SWA will need to have decided whether they are taking the matter before the UK Supreme Court.

Last year the Welsh government looked into introducing a MUP of 50p per unit. This followed research that indicated they could save £900 million over a 20 year period as a direct result of the costs required to care for, and Police, the effects of alcohol consumption, and reduce alcohol related deaths by approximately 50 people per year.

Former Northern Ireland Health Minister Jim Wells also made it clear that they too were looking to implement minimum unit pricing.

So, with the question of MUP back on the agenda, what key dates are coming up?

  • A decision as to whether the SWA will make an appeal to the UK Supreme Court by the end of November 2016.
  • The House of Lords report will set out its recommendations regarding minimum unit pricing in March 2017.

Whether Northern Ireland and Wales look at early implementation of MUP, although this is likely to be dependant on whether the SWA decide to appeal. Watch this space.

Gambling News

Gambling Commission supports probe into unfair treatment of customers by operators

The Gambling Commission is supporting a Competition and Markets Authority (CMA) investigation into whether gambling operators are treating customers fairly. 

The CMA has contacted a range of gambling operators, looking for evidence of unfair terms and misleading practices. This follows concerns from consumers into activities such as cancelling bets, altering odds after bets have been accepted, and offering misleading sign-up promotions. 

One of the concerns raised is that terms and conditions are misleading and confusing for consumers.

Whilst this is not strictly an investigation into the licensing of gambling, it is likely that the results of the CMA investigation will inform future changes to conditions and codes of practice licence holders must adhere to.

Department of Culture Media and Sport (DCMS) announces call for evidence in relation to the use and regulation of gaming machines

The DCMS are reviewing the use and regulation of gaming machines, with the aim of striking the right balance between enabling socially responsible growth across the industry and the protection of consumers and communities, including those who are would be considered problem gamblers.

Through this call for evidence, the government is seeking views on:

  • maximum stakes and prizes for all categories of gaming machines permitted under the Gambling Act 2005;
  • allocations of gaming machines permitted in all licensed premises under the Gambling Act 2005; and
  • for the industry as a whole, including but not limited to gaming machines, social responsibility measures to minimise the risk of gambling related harm. This includes looking at gambling advertising to understand whether the right measures are in place to ensure that the young and vulnerable are protected.

This call for evidence will close on 4th December 2016, following which the government will consider proposals. The consultation can be found on the gov.uk website

Out and About

The House of Lords Licensing Select Committee has been sitting throughout September and October. Members of TLT's Licensing team were on hand to attend sessions with the Lords who were talking to pub companies and industry bodies.

In other news, we have been busy with hearings and meetings around the country. The most enjoyable was a visit to London for the opening night for a client's new restaurant in the West End. A very enjoyable evening in a fantastic new setting. We wish them all the best with their venture. 

This publication is intended for general guidance and represents our understanding of the relevant law and practice as at November 2016. Specific advice should be sought for specific cases. For more information see our terms & conditions.

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