This month in summary
The Government has responded to the House of Lords report of licensing, which was published in spring this year. A number of the responses reject recommendations from the House of Lords, whereas others are useful markers as to what we can expect to change around licensing in the near future.
We have concentrated on the points that are likely to have the most effect, although the full response can be found at:
Changes to Guidance
Some of the changes most likely to be fairly quickly implemented relate to changes proposed through the Guidance issued under the Licensing Act. Of slight concern is how the Guidance is being used to make significant changes to how the licensing legislation is interpreted, but at the same time, powers of scrutiny for changes is being eroded.
One such significant change is that councils will be made to publish reasons for compromising appeals so that parties involved in the original hearing understand what has changed since the original hearing. This will effectively force council's to take into account any party who made representations to an application that is then appeal when determining whether to compromise on the appeal. Where some councils already do this as a matter of policy, the effect is often to delay the resolution of appeals and thus add costs to proceedings.
On a more positive note, the guidance is to be amended to require licensing committees to give reasons for deciding to hear matters where all parties agree it's not necessary. Hopefully, this will cut down on unnecessary hearings.
Again, on a positive note, the guidance is to be updated to clarify that S19 closure notices do not require premises to close immediately, nor do they entitle the police to require closure, or permit the arrest of a person on the sole ground of non-compliance of an order
One of the recommendations of the House of Lords was for appeals where licences remain suspended following an expedited review, to be expedited. This has been rejected. Instead, the Government are going to remind HMCTS that livelihoods are at stake and this should be taken into account on appeals.
Another recommendation for the end of having to advertise applications in newspapers has been rejected. Adverts, unfortunately, are to stay.
Super Strength Alcohol and off licences
The Government has iterated that is has no intention of permitting councils to introduce an outright ban on super-strength alcohol across premises in their areas.
Also, the Government has declined to introduce the House of Lords recommendation to regulate the off-trade in terms of multi-buy promotions, and other forms of price promotions. The rationale is that where this has been introduced in Scotland, the regulations were not effective and easily circumvented.
The Government has proposed that the guidance should recommend that licensing authorities consider how to bring TENs to the attention of residents who may be particularly affected, for example if there have been previous complaints about a premises (licensed or not). However, there will not be an extension to the current regulations in terms of who can object to TENs.
There will be no change in law to allow for TENs to be amended by the licensing committee at hearings. As such, they are to remain either accepted or not, which has proven on occasion to be inflexible and has led to objections where otherwise there would be none.
Cumulative Impact Policies
As expected, CIP's to be placed on a statutory footing at the next available opportunity.
Late Night Levy
The government will introduce the amended provisions in the Policing and Crime Act 2017 relating to LNL as originally intended. Government has committed in the Modern Crime Prevention Strategy to improve the LNL by making it more flexible for local areas, fairer to business and more transparent. Amendments will:
Government will consult on the level of charge appropriate for late night refreshment premises and will not commence the measure to allow licensing authorities to charge the levy to late night refreshment premises until this is completed.
There will be no immediate changes to licensing fees, although the policy will be considered 'in due course'.
Strangely, given the confusion and difficulty caused by no coherent personal licence registration system, there is no intention to implement a national personal licence database.
Other proposals have been made, but these are likely to have the most effect, or may be of some surprise given the House of Lords recommendations.
It is worth checking licences to see whether the local licensing authority carried over the old restrictions on New Year's Eve trading from the previous licensing legislation. Look out for a section, usually with the conditions, headed 'embedded restrictions'. In there, you may find a nasty surprise in relation to trading on New Year's Eve where it falls in a Sunday, as it does this year. If you have such a condition on your licence, we would recommend obtaining a TEN for New Year's Eve to ensure that you are covered. Whilst most council's may be unaware of the restriction, some are, and have notified premises that they will enforce the restricted hours. Remember to apply early to avoid having the TEN refused if applied for under the late TENs procedure.
This should only apply if you have not already extended your hours by way of variation to have later hours on New Year's eve as a seasonal variation. In which case, the seasonal variation should apply as this superseded the earlier embedded restriction.
Gambling Minister Tracey Crouch has announced the Government will review the maximum stakes on Fixed Odds Betting Terminals (FOBTs) with a view to reducing them. As Gambling is reserved to Westminster the effect of a reduction would be UK wide.
The Government Consultation is looking at cutting maximum stakes of B2 gaming machines, otherwise known as FOBTs, from £100 to between £50 and £2.
Pressure has been mounting on regulators with headlines like "crack-cocaine of gambling" being attributed to the machines. The Government has also asked the Gambling Commission for more information on monitoring player and also if spin speed (on games such as roulette) should be modified.
Find the full consultation here.
October was a month of regional and national conferences. Members of the team attended the ALMR autumn conference, the Festival and Events Outdoor Show, the National Licensing Forum, the Bar and Nightclub Conference, SIBA's Southwest meeting, the IOL Welsh meeting, the NTIA conference in London and the AIF conference in Cardiff. In addition there were various hearings and meetings to squeeze in. One matter that we think will become increasingly important in hearings is the overreach of councillors, often prompted by the police, in relation to CCTV conditions on premises licences. Despite the guidance issued by the Information Commissioner's Office to the contrary, there is still a view prevalent amongst councillors hearting licensing matters that CCTV is a panacea and conditions, no matter how draconian and likely to breach data protection laws, need to be imposed. Changes to data protection legislation due to come into force in April next year will only exacerbate matters. Worth thinking about now if you are being required to install CCTV or are being asked to add conditions in relation to CCTV to your licence.
This publication is intended for general guidance and represents our understanding of the relevant law and practice as at November 2017. Specific advice should be sought for specific cases. For more information see our terms & conditions.