Late Night Levy and Early Morning Restriction Orders - Home Office consultation response

Posted by Jon Wallsgrove on
The Home Office have now issued their response to the consultation on secondary legislation for the implementation of the Late Night Levy scheme ("Levy") and Early Morning Restriction Orders (EMRO's) which form part of the Police Reform and Social Responsibility Act 2011.

The new provisions will come into force in October 2012.  However, the implementation of any Levy approved by a licensing authority will not be effective until June 2013 at the earliest in view of the consultation required with the police; agencies and operators of licensed premises.  In the case of EMRO's, a licensing authority will need to consider any representations by premises likely to be affected and the earliest implementation date will be March 2013

This bulletin will summarise the key points of the levy and EMRO provisions which will now be brought into effect through secondary legislation.

Late Night Levy

Key provisions

  • A licensing authority may decide that a late night levy should be applied to licensed premises in its area with the aim of contributing towards the policing costs for any crime and disorder arising from alcohol supply between 12 midnight and 6 am.
  • A licensing authority may not limit the late night levy to only part of its area, although it will have discretion on the time period to be applied between 12 midnight and 6am and the days of the week.
  • The levy will not apply to TEN's and a licensing authority will have discretion as to whether an exemption will apply for New Year's Eve.
  • Premises will be able to apply for a free minor variation if they wish to reduce their hours so they are not affected by a levy.
  • A licensing authority will have discretion to exempt a limited category of premises from the levy: hotels (residents only); theatres; cinemas; bingo halls; community premises and sports clubs; country village pubs and premises in Business Improvement Districts. [NOTE: No exemption will apply to restaurants; off-sales premises; live music venues; casinos; club premises certificates]
  • A licensing authority will have discretion to offer a discount up to a maximum of 30% for premises that are part of or members of best practice schemes (for example, Pubwatch or Best Bar None) subject to specific criteria.  Discretionary reductions may also be applied to premises receiving small business rate relief with a rateable value below £12,000

The initial Consultation set out a 'Process Map' for when and how licensing authorities should consult on the need for a levy; its design including the exemptions and discounts that should apply and further details will be provided in guidance to licensing authorities. 

The proportion of net levy revenue to be retained by licensing authorities will be set at a maximum of 30% which can be used to fund services connected to the management or control of the night-time economy, including street cleaning. 

The implementation of a levy is an optional power and the Home Office expect that many authorities will not find it an appropriate means for raising revenue.  The Impact Assessment to the Consultation proposes the following bands for the standard levy charge, based on the NDRV of the premises:

Licence fee band








Proposed Levy charge








*(Dx and Ex) Multiplier applies to premises in category D and E that primarily or exclusively sell alcohol

The Levy scheme is certainly controversial and will undoubtedly lead to inequities for individual premises where authorities eventually decide to implement a scheme.  Although the initial indications were that only a limited number of licensing authorities appeared to be interested in implementing a levy, this number is likely to increase as the details in the regulations and guidance become clear and licensing authorities start their consultation and consider the revenue benefits.


EMRO's were initially introduced by the last Government as a means of enabling licensing authorities to restrict the sale of alcohol in the whole or part of their areas between 3am and 6am but the provision was never implemented.  The new Government has amended the hours so that authorities can apply the EMRO for any specified period between 12 midnight and 6 am and this will obviously capture far more premises.

Although the Consultation proposed possible exemptions for certain premises, the Government have now decided that the only exemption will be for hotel residents using mini-bars or room service. 

All licensed premises and club premises certificates that fall within the designated EMRO area will therefore be subject to the restriction on alcohol sales for the specified times under the Order and this will also apply to any TEN's.  The only exemption that will apply will be for New Year's Eve.

Licensing authorities will be required to consult with operators of licensed premises and local residents likely to be affected and advertise their intentions to introduce an EMRO.  Respondents will be able to make representations for and against the proposed EMRO within a 42 day period.  It appears the matter will then be determined at a hearing although regulations will set out the procedures that will apply and guidance will be issued to licensing authorities.

The Government envisage that EMRO's are likely to target "relatively small problem areas of perhaps 15-30 premises."   However, the discretion on a proposed EMRO will rest solely with the licensing authority which will be able to make its decision based on what it considers is "appropriate" to promote the licensing objectives. 

In our view, the provision is too draconian and will capture perfectly good operators of licensed premises that happen to fall within the area of an EMRO where an authority decides to make an Order.  Licensing controls should be targeted at specific problem premises on the basis of reliable evidence and there are adequate powers available under existing legislation.

About the Authors

Jon acts for licensed premises across the UK. His unique experience includes working for HM Court service, in local government, as in-house Counsel with two pub companies and in private practice.

Jon Wallsgrove
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023 8085 7224

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Tim is a leading Criminal and Regulatory lawyer, who defends businesses and individuals under investigation by the police and regulatory bodies and when accused of criminal offences.

Tim Williamson
Email Tim
023 8085 7372

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