Legal advice: Act now, government

The are still many issues regarding the new Licensing Act that need amendment.

by David Clifton of thePublican.com's legal team of experts from London solicitors Joelson Wilson.​

As you read this, the government may well be considering the draft statutory guidance for licensing authorities on the provisions of the Licensing Act 2003.

In my view, the following aspects of the last draft of the guidance require amendment or clarification:

Extensions​

Special orders of exemption disappear under the new act. If you want an extension of hours for a special occasion, you will be able to give a temporary event notice.

However, you will only be able to have 12 of these per site each calendar year and no such notice can be given for occasions when more than 499 people are to be allowed on your premises at the same time. What if your premises hold considerably more than 499? Additional guidance is necessary. Currently it would appear your options are:

• try to assess what extensions you will want in the future and include relevant dates and times in an operating schedule when applying for variation during the transitional period - very difficult to assess in advance and some dates of local occasions will vary each year
• apply for temporary variation of your premises licence on each occasion you want an extension - how long will this take and what objections will you be inviting?
• rely on the secretary of state relaxing opening hours for local, national and international occasions - no certainty and at least six months notice of request required.

Drinking-up time​

The concept of drinking-up time disappears under the new act. However, a lot of licensees looking to convert their existing licences without any accompanying application for variation are asking if they will still be able to allow their customers to remain on the premises to consume their drinks for 20 minutes (or 30 minutes as the case may be) after the final time permitted to sell drinks. It would be helpful if the guidance could supply a clear answer.

Variations​

The latest draft of the guidance refers to applications for "major variations" of premises licences. What are major and what are minor variations? What different practices and procedures will apply to each?

It remains unclear what procedure is to apply where it is proposed to carry out works of alteration for premises in respect of which a premises licence has been granted. Will even the smallest change in layout require a full-scale application for variation - with all the consequential possibility of delay and residential or other objections? Can the works be commenced before such an application is made?

Changes to existing licences following conversion​

What happens if, following conversion of existing licences to premises licences during the transitional period, successful application is made to the licensing justices and/or entertainment licensing committee to vary the terms of the existing licences, for example in relation to the terminal hour?

It seems to me that, in such circumstances, the licensee may be able to enjoy the benefit of that variation until the new act comes into full force and effect, but will then have to curtail his hours again while he makes a fresh application to the new licensing authority.

Provisional licences, etc​

Clarification is required of the procedures involved in applying for a premises licence where a provisional justices licence has been granted already under the Licensing Act 1964 and the works of construction/alteration have been competed during the transitional period of the new act. As matters stand, there will be less certainty of grant than under the existing legislation.

On a premises licence application, what account is to be taken of the existence of a provisional special hours certificate granted under the 1964 Act? Neither the act nor the last draft of the guidance make any reference to this.

Designated premises supervisor​

What if a designated premises supervisor leaves his employment without telling anyone other than the licensing authority he is going and ceasing to be the designated premises supervisor (DPS)? He has 48 hours from giving notice to the licensing authority within which to give notice to the holder of the premises licence (who may well be his employer).

He will then be treated as if he was not the DPS from the time he gave notice to the authority. In the meantime and until the premises licence holder gives notice of a new DPS, there will have been no DPS. Sales of alcohol in that interim period will have been in breach of the statutory condition and will have amounted to a criminal offence with a maximum penalty of six months imprisonment and a £20,000 fine! There's a "due diligence" defence, but why not deal with this explicitly in the guidance?

Can someone be a DPS for more than one premises at the same time? For example, he may own and manage two pubs very close to each other. Alternatively, he may be the nominated DPS on applications for premises licences in respect of premises still to be constructed.

Some are suggesting that there can be more than one DPS per premises. The act appears to envisage just one. What is the government's intention?

AWPs​

There are no transitional measures proposed for AWPs. When the new act comes into full force and effect, responsibility for granting section 34 permits for pubs passes from licensing justices to the new licensing authorities. Following conversion of existing licences, the holder of the premises licence will, in many cases, be a different person than the specified holder of the section 34 permit.

It seems to me that the holder of the premises licence will not be able to apply for a fresh permit until the new act comes into full force and effect. Will he have to turn off the machines in the meantime or will an existing permit (in a different name) continue to be valid until it expires by effluxion of time?

Television/videos​

You might occasionally play a music or old sports videotape in your pub. Is that going to amount to "an exhibition of a film", which is defined in the new act as "any exhibition of moving pictures". Does this definition also include broadcast television programmes? The Cinemas Act 1985 definition made it clear that it didn't but the new act makes no such distinction. If so, you will be providing entertainment that needs to be specifically licensed.

Children​

Is the ban on unaccompanied children (aged under 16) intended to extend to pub gardens or outside terraces?

What about discos held in pubs and nightclubs for teenagers - often with the encouragement of local authorities? Are under 16-year-olds now banned from attending unless their mum or dad go too? How many under 16-year-olds is one adult allowed to accompany?

Late-night refreshment​

Restaurants and many premises with special hours certificates currently offer food and hot drinks after 11pm. On applying for conversion, will they also need to apply for variation to include late-night refreshment as a licensable activity?