Licence holder need not always be present

Much play is being made of the recent letter by Tessa Jowell, Secretary of State for the Department for Culture, Media & Sport (DCMS) to South Yorkshire MP Eric Illsley about the police insisting on a personal licence-holder always being on the premises.

The main part of that letter more or less repeats the same views that the senior DCMS licensing official gave to trade bodies last April, but which appears to have fallen on deaf ears. It has now been repeated by the Secretary of State and in the revised Guidance, issued last week.

Opportunities have again been missed with this revision. But at least this particular point has been underscored again - that the Government's view is that it is not necessary for a personal licence-holder always to be physically present when a sale of alcohol is made.

This follows an appalling incident when a South Yorkshire licensee was hauled back from a Spanish holiday because the police took the view that she could not be absent abroad if the pub was to open.

This flies in the face both of logic and of the custom and practice in the licensed trade for many years. I am glad to see it scotched. The doctrine of delegated responsibility, which I have written about many times, was intended to be preserved under the new legislation.

What may have confused a number of people - judging from recent website comments I have seen on the subject - is the role of a Designated Premises Supervisor (DPS) as opposed to a personal licence holder.

There are three "mandatory conditions" which apply to all alcohol premises licences and must be included in writing on the licence. There are:

1. There must be a DPS for the premises, or no sales of alcohol can be made;

2. Ditto if the DPS does not hold a personal licence, or it is suspended;

3. All sales of alcohol must be made or authorised by the holder of a personal licence (not necessarily the DPS).

So it has never been the case that all sales must be authorised by the DPS. It is a separate issue. Of course, in pubs where the DPS is the only holder of a personal licence, there is no alternative. But in situations where there is more than one personal licence-holder involved with the premises, any one of them can make the authorisation, even without the DPS being around.

It is also true that personal licence holders are able to move around the estate or take up a new management role without any requirement for formal notification. The only formality comes when the DPS is changed.

So, had our holiday-making licensee been canny, she would have got a friend with a licence to cover for her, once the boys in blue started getting stroppy. She didn't really have to drop the beach ball and get on the next plane home.

Now, the Guidance lays down certain ground rules for ensuring that the proper delegation is given before you get on the flight. My advice has always been that a written note is the best idea, reminding the person you have put in charge about the laws on serving minors and drunks and keeping an orderly house, together with contact details. Please phone home to check. Remember that if anything does go wrong, you can be prosecuted as well.

But how - and why - did it get this far? The police claimed that the Act was ambiguous. Tessa says it isn't, but as with much else, it wasn't cleverly drafted.

It seems to take so long to sort all these manifest problems out. The revised Guidance has missed several tricks, alas, and we are still left with "embedded conditions". Not much chance of a holiday for me!