Legal advice: Any ideas, anyone?
Do you know what an embedded restriction is?
By Niall McCann of thePublican.com's team of legal experts from London solicitors Joelson Wilson.
With August 6 rapidly approaching I am well aware that many of you have yet to apply to convert or vary your licence to take advantage of your "grandfather rights". If you have yet to make your application, you should be aware of the embedded restrictions on your licence.
What on earth is an embedded restriction? Well, on conversion of your current licence, the relevant council is under a duty to replicate those conditions on your new premises licence. Easy peasy, you might think. Wrong!
Remember, this is the new and improved Licensing Act 2003. Conditions on a licence are not just those stated in writing - there are also numerous statutory conditions which automatically apply but are not recorded on the face of your licence, such as drinking up time (arguably). These are known as embedded restrictions.
So, I hear you ask, how do you know what is and what is not an embedded restriction? Cue lots of looking down at shoelaces and incoherent muttering. Nobody has a clue.
To make matters even more confusing, some aspects of the 1964 legislation, which are arguably embedded restrictions, are perceived to be embedded rights i.e. the right to play recorded music without the need for a public entertainment licence, and are therefore not conditions.
To assist you, a non-exhaustive list of the key activities which are embedded restrictions is as follows:
- Restriction orders
- Supper hour certificates
- Credit sales
- Recorded music
- No children in a bar
- Off sales being in sealed containers.
Please remember that some commentators are likely to query whether some or all of the above should be considered embedded restrictions, whereas others will argue that some significant restrictions have not been included.
Indeed, leading barrister Philip Kolvin, who published a list of embedded restrictions, has since amended on several occasions what he perceives the extent of embedded restrictions to be. It has been documented that he and fellow barrister Rory Clarke are in conflict with the views held by the Department for Culture, Media & Sport.
The sensible reader will have treated this article like any good Jeffrey Archer novel and skipped at once to this, the final paragraph. To reward such initiative, I will attempt to answer the big question: how do embedded restrictions affect you? Don't tell the councils I told you so, but when completing your conversion/variation form, cherry-pick when deciding which embedded restrictions to refer to. You like a restriction currently imposed on your licence courtesy of the 1964 Act? Stick it down on your form and ask for your new certificate to be granted with it as a condition. Not so keen? Ignore it and see what happens.
