Possible reforms to the Licensing Act 2003
Following on from the publication of the Governments alcohol strategy a new consultation was published on the 28.11.2012 by the Home Office allowing anyone to make representations within the 10 week period set.
Here we summarise the key changes proposed with additional comment where appropriate:
A proposal to fix a minimum price for a unit of alcohol at 45p index linked to inflation or otherwise reviewed on a regular basis.
BM note: it is highly likely the Government will await the outcome of the challenge in Scotland on the issue of free trade in the EU before introducing any such measure, even if it did receive significant support during the consultation
To impose a ban on multi-buy promotions in the off trade only. Examples given of promotions that will not be permitted include, though not exclusively, two for one, buy 6 get 20% off, selling 24 cans for less than the price of 24 x price of a single can. Promotions permitted would for example include 20% off a single bottle of wine.
BM note: surely this would be unnecessary if a minimum unit price were introduced. It is likely to be introduced as a measure pending the implementation of a minimum unit price which could be many months if not years away from being resolved
Review of mandatory conditions
To consider whether the current mandatory conditions on premises licences are fit for purpose in promoting the licensing objectives and targeting irresponsible promotions in the on trade. In addition whether further mandatory conditions are required to tackle other issues.
BM note: there are no examples given of other mandatory conditions under consideration. The inclusion of this issue in this consultation is to fulfil the promise the Government made in 2010 to review the impact of the current mandatory licensing conditions.
Health as a licensing objective in Cumulative Impact Areas
Introducing Health as a licensing objective where it is specifically linked to cumulative impact. The Government have already ruled out Health as a fifth licensing objective per se. This will allow Local Authorities to take account of evidence of alcohol-related health harm in deciding whether to introduce a cumulative impact policy and the extent of that policy.
BM note: This will no doubt be through an amendment to the section 182 Guidance issued by the Secretary of State and accordingly could be the first proposal to be introduced following the consultation.
Freeing up responsible businesses
Under this heading a number of proposals are being considered:
a) Ancillary Sales Consideration as to whether a premises where alcohol is an "ancillary sale" will need a premises licence or alternatively whether if a premises licence is still required whether there is a need to have a DPS and/or personal licence holder. An example of an ancillary sale is given as a hairdressers giving a customer a glass of wine, or a florists selling alcohol with bouquets. Care will need to be given on the definition of "ancillary sale" which might be defined by the specific type of business and method of sales or defined by a qualification criteria for any business to be exempt. It is further proposed that the alcohol would have to be sold as "a small part of a sales transaction for something else or small part of a contract for wider services" AND "the amount of alcohol cannot exceed a prescribed limit."
An alternative proposal is for such businesses to give an "ancillary sales notice" (ASN) rather than apply for a premises licence and that the ASN will follow the same procedure as a TEN, though will be in force until revoked.
BM note: a radical though sensible proposal from the Government though the definition of ancillary sale is certainly going to prove extremely problematic.
b) Relaxing of provision relating to Temporary Event Notices (TENs) The proposal is to consider whether allowing Local Authorities to adopt their own processes in relation to TEN applications. Additionally to consider allow those who hold community events to simply notify the Council rather than seek a TEN. Finally to consider increasing the number of TENs permitted for licensed premises from 12 to 15 or 18.
BM note: We hope that if Local Authorities are allowed to provide for their own process they make it as flexible as possible in terms of the period required to give notice. It seems very odd to us that the Government mentions increasing the number of TENs that can be given but does not mention any increase in the number of days permitted per annum. Unless that is done we see very little benefit to the trade.
c) Late night refreshment The first proposal is to allow the Local Authority to implement local policies around premises offering late night refreshment and no other licensable activities, to remove the need to apply for a premises licence in certain parts of their area and/or exempt certain types of businesses from applying for a premises licence in any part of their area. The second is to add an exemption in schedule 2 of the Licensing Act for motorway service stations
BM note: We think it unlikely that a Local Authority will want to de-regulate late night refreshment premises save in the most exceptional cases.
d) Newspaper advertisements The proposal is to remove the requirement to advertise licensing applications in a local newspaper.
BM note: Everyone has pressed for this since the Act was introduced. There has been a previous consultation which resulted in no change taking place. We hope this time that common sense prevails.
e) Motorway service stations (MSS) To remove MSS as being "excluded premises" under section 176 Licensing Act and thus allow Local Authorities to determine whether to grant a premises licence based on local factors. This is intended to allow licences to be granted for the sale of alcohol for consumption on and off the premises. There is a caveat to the proposal that perhaps it may only extend to MSS which provides accommodation and is licensed for on sales only in that accommodation.
BM note: One suspects this will be as much of a hot potato as minimum pricing as the Government will not want any adverse publicity from anti-drink drive campaigners, even though a high majority of people drive to pubs, restaurants, and shops and purchase alcohol in just the same way.
f) Personal licence renewals The proposal under consideration is to removed the need to renew the personal licence at all and leave it continuing until forfeited under the existing provisions in the Act. Alternatively to implement a more simple process than currently exists to remove the administrative burden and cost for individuals.
It is crucial that everyone responds to this consultation as fully as they can. Click here to read the full consultation plans from the Home Office.
Blake Morgan will submit their own response to this consultation with respect to the potential legal implications of each proposal. We can of course assist any organisation or individual to prepare their own response.