Untangling a mandatory mess
This week the House of Lords finally got around to examining the new mandatory conditions for licensed premises, says Peter Coulson.
In my opinion, the drafting of the condition on promotions is poor and has resulted in a good deal of speculation about what sort of activity would be caught out.
I think there has been some irresponsible scare-mongering as well on this issue, with the suggestion that staff parties and wedding receptions would be under scrutiny.
The whole object of the new clause is to ban or inhibit promotions in relation to the premises, and it is the responsible person and staff who are in the firing line.
Where one individual or company pays for drinks on behalf of the employees or guests, this is not a promotion and it is not organised in order to encourage further sales of alcohol. Nor is the proprietor involved directly in organising the party — instead, he or she is merely providing facilities for the event to take place.
There will be certain staff parties where the alcohol is purchased by the company or boss and which take place with no charge on unlicensed premises, such as the office. In such circumstances there will be no offence and no prospect of the mandatory condition applying.
Similarly, if a company sets up a tab with a licensee in order to provide alcohol for guests, the condition will not come into effect, because there is no provision of "free or discounted alcohol" by the supplier, who is charging the company direct. It is only free to the guests, not to the customer.
Clearly, the licensee is still under an obligation to maintain order and not to supply alcohol to anyone who is drunk.
If matters get out of hand, the obligation is on the party organiser to comply with any instructions the licensee gives, and the licensee or his staff can refuse service to anyone who might render them liable to an offence. This is an overriding obligation, no matter who is paying.
There is no doubt that the promotion condition is not the best drafting, and I am sure the licensed trade would like to see the back of it, given that there are plenty of sanctions already available against individual premises that are conducted in a disorderly way. But let us keep a sense of perspective.
Q&A
You must see documents
Q. We are thinking of hiring some kids' equipment including a bouncy castle for a charity fund-raising day. The supplier has said that it is fully insured, but what is my position? Other places put up a notice saying that they do not accept any liability and items are used at your own risk.
A. Following a number of court cases on this subject, you have to be very careful about any possibility of a claim being made against you. But I am afraid that a simple disclaimer notice just will not do.
The notice itself will not absolve you from liability for personal injury, as legislation has outlawed the effect of such notices. So the real necessity is to ensure that liability rests elsewhere.
You should first ask the supplier about liability insurance, which used to come bundled with the hire fee. Some less reputable renters of equipment may not put a high priority on this, but you should. Ask specifically about insurance before you sign any contract, and make sure you see details of the cover given. It is not good enough to accept their word any more. You must see the cover.
Also, check with the provider of your own public liability insurance to see if it is possible to extend it for this event. Buying one-off cover is expensive, but your own insurer may be able to offer an adjustment.
You are entitled to rely on people to look after themselves and they cannot claim against you if an accident was no fault of yours. But unfortunately, the solicitors and others who pursue accident claims go for obvious targets, and they will try to find some small way in which you were at fault. Good insurance is definitely the answer.
Must the bar be closed?
Q. We have been told that we can open other parts of the premises before the start time in the morning, but not the bar, even if no alcoholic drinks are being served. Is this true?
A. No, it is not, and I am surprised that you were advised of this. The fact that any part of the premises is used as a bar makes no difference in terms of the new licensing laws. The prohibition for licensed premises is on selling alcohol or providing regulated entertainment outside the agreed hours, not on opening all or any part of the premises, unless you have a specific restriction.
Several pubs use areas of the bar for other activities, such as serving breakfasts to residents and non-residents. You should be sure that you have not inadvertently prevented this by a variation that has cut "the hours the premises are open to the public". This is a misleading box on the application form, which has caused problems for a number of licensees. Until the change in the law, those hours were 24/7 for all premises. A straight conversion should have preserved this right, but a number of authorities sought to include a "closing time" even on conversion. This should not have been allowed.
Drinks and gambling
Q. I have been told that any gambling, including on machines, has to stop when I call time. But some customers say it is legal to continue during drinking-up time, if the game is still going on.
A. It depends entirely on the terms of your licence. If you are calling time at the terminal hour agreed for your premises licence, then the Gambling Act says that gambling is not permitted beyond this time. It can only take place "at a time when alcohol may be supplied in reliance on the alcohol licence."
However, if you are calling time within the overall hours, there will not be an offence. But the decision is entirely yours and your customers should stop if you tell them to do so. Certainly, they have no legal right to continue into drinking-up time, if the terms of the Act are to be complied with.
