Detailed reflections on the new mandatory conditions

• Date: 01/03/2010
• Author/Solicitor: Jeremy Allen

 

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Over the next two days, Parliament will debate in Committee the Licensing Act 2003 (Mandatory Licensing Conditions) Order 2010. They have been worded by the Home Office rather than DCMS, who are more used to the Licensing Act, so they lack clarity and create confusion. They were also produced in a hurry with no opportunity to consult.

Why do I say this? In the first instance these mandatory conditions throw a duty of compliance on specified persons. In one instance, this is the premises licence holder and in all the others it is the premises licence holder, DPS and anyone else authorised to supply alcohol. Why does this matter? Well, the existing mandatory conditions within the Licensing Act do not specify the individual who was responsible. That makes life a lot easier as you will see below.

The second problem is that the conditions are worded so as to allow for a number of alternative interpretations which could lead to expensive difficulties in the future. Once again, it’s unfortunate that there was no opportunity to view the draft conditions and to make suggestions for improvement.

Thirdly, the first condition carries what could be an unhelpful restriction. This provides that an “irresponsible promotion” must carry “a significant risk of leading or contributing to crime and disorder, prejudice to public safety, public nuisance or harm to children”. This is important because the activities which are classed as irresponsible promotions are very widely drawn and could catch promotions that are perfectly proper and do not cause any difficulties. By way of example, one of the paragraphs forbids the provision of unlimited or unspecified quantities of alcohol free or for a fixed or discounted fee to the public or a defined group. On its own, this could catch a number of activities such as charitable events, corporate receptions or book/ film launches on licensed premises upon payment of a fixed fee for the ticket. Hopefully the preliminary words will mean that few of these get caught.

There is one further difficulty with this condition. There is a requirement that the responsible person (the holder of the premises licence, DPS or someone authorised for this purpose) must “take all reasonable steps to ensure that staff on relevant premises do not carry out, arrange or participate in any irresponsible promotions in relation to the premises”. Who are “staff”? This could include people who are not employed but are operating in a voluntary capacity. They might not be the answerable to the responsible person.

The remaining four conditions all create problems of their own. Perhaps the most worrying facet is that there is no requirement for there to be a risk of crime and disorder, prejudice to public safety etc. Condition 2 states that the responsible person must ensure that no alcohol is dispensed directly by one person into the mouth of another other than where that other person is unable to drink without assistance by reason of a disability. Disability has the meaning given to it in s.1 of the Disability Discrimination Act 1995. It would not cover, for example, somebody who had two broken arms and is unable to lift the glass to their mouth. Perhaps more significantly, it would entirely prohibit somebody holding a glass for somebody else to taste, e.g. “what do you think of this wine?”. It also prohibits the age old practise of the publican providing a yard of ale and turning it whilst the customer drinks from it.

The third condition provides that free tap water must be provided on request to customers where it is reasonably available. What is a “customer” for this purpose? If somebody walks in off the street and demands free tap water, are they a customer? If the publican thinks that the individual concerned has had too much to drink and wishes them to leave straight away, can they still demand free tap water? Can a charge be made for providing the glass and washing it up rather than for the water?

Condition 5 imposes a duty to ensure that alcoholic drinks are available in certain specified measures and states that customers must be made aware of their availability. Because of the way this is worded, it appears to be a matter of strict liability. There is no simple requirement to take reasonable steps to ensure that they are aware of the sizes available. It is specified as a requirement.

I have left until last the condition that I think causes the biggest difficulty. The premises licence holder must ensure that an age verification policy applies to the premises in relation to the sale or supply of alcohol. The policy must require individuals who appear to the responsible person to be under 18 years of age (or such older age as may be specified in the policy) to produce formal identification bearing a photograph, date of birth and a holographic mark. Firstly, what do the words that I’ve highlighted mean? I think that they mean that if you have an under 21 or under 25 policy, then anybody who appears under that age must be challenged by the responsible person to produce photographic proof of age. Many supermarkets have adopted an over 25 policy. They are not required to do so but they’ve done so voluntarily. If the words in brackets remain then I have no doubt that the condition will be breached if they fail to challenge under 21s or under 25s dependent upon the policy adopted. The Government can simply take out the words in brackets and it ceases to be a problem. Leaving these words in raises the risk that a review of the licence could follow if the police or local authority take 22 or 23 year olds into the premises and find that they are not challenged. In those circumstances, it doesn’t matter if the Guidance says something different, the judge will only look at the wording of the condition and the condition appears to me to be perfectly clear.

This condition also puts the burden upon the premises licence holder. This raises considerable problems for tenanted estates.

Inevitably in this eNews I have skated over some of the problems. It is also much longer than is usual in the hope that someone may be able to persuade the Government that it has got it wrong and avoid the possibility of expensive litigation in the future. I have not included the fact that this applies equally to clubs, nor have I pointed out that it applies to every single premises licence in the country. Admittedly only one of the conditions relates to off licences but all five conditions will be added to every single premises licence regardless of whether there is ever likely to be any problem given the nature of the operations being carried out. And remember, we have another four to go before the Government uses the nine that it has legislated for!

For more information please contact Jeremy Allen .