Blurring the law on promos
It was only a matter of time before local authorities got their hands on the anti-promotion material produced by the Home Office and turned it into a set of rules. That is clearly what has happened in Colchester.
The letter I have seen from the licensing manager to all licensees wastes no time on the sort of carefully-crafted suggestions that the "official" guidance from the Department for Culture, Media & Sport (DCMS) uses. It states clearly that a whole raft of promotions are illegal, by virtue of the Home Office guidance, and must be stopped at once.
However, I am not alone in finding that yet another Government department has jumped the gun. A promotion is only contrary to the mandatory conditions if it is clearly irresponsible, not if the Home Office back-room boys think so. Some of the suggestions that have been made are not actually outlawed by the wording of the conditions themselves.
As an example, both the DCMS and the Home Office mention "large" quantities of alcohol as being banned in promotions. That is not what the condition says. It refers to "unlimited or unspecified" quantities of alcohol, free or for a discount.
Ten pints for £10, for example, is not either unlimited or unspecified and could conceivably be perfectly responsible if conducted among a group of people. An entry fee giving a specific number of drinks free is also not banned by this provision, so that a straightforward promotion based on a combined entry and drink price does not breach the condition.
I am also interested in the fact that it is suggested in the letter that breach of any of the "definitely illegal" provisions will lead to a review of the licence. Breach of a condition is, of course, an offence against section 136 of the Licensing Act 2003, which can be prosecuted directly in the magistrates' court. A review is available on any substantial grounds that a responsible authority feels undermines the four licensing objectives and this has been available even without the mandatory conditions.
Minimum pricing
The second part of the letter deals directly with what appears to be a minimum pricing agreement. I assume that this letter has been sent out for information to all licensees directly by the local authority, and is copied to the chief officer of police, so it has official status.
If it merely reports on a voluntary agreement by licensees this would be in order. But it does not: it suggests any pub that breaches the agreed minimum limit would be subject to greater scrutiny and may be reviewed as a result.
This is a form of coercion that suggests a more proactive stance by the licensing authority than is reasonable. It also technically involves a breach of the competition rules in setting and seeking to enforce an arbitrary minimum pricing policy in the district. The fact that the letter and the warning have been sent out to everyone also reinforces this assumption.
Returning to the conditions, the problem in all of this is that to clarify the law someone has to mount a legal challenge, which can only realistically be done if a licensee is directly prosecuted for breach of a condition. Reviewing the licence heads this off in a way, because the review will be for breaching the licensing objectives, not breaching the condition!
This may sound like hair-splitting, but from a legal perspective it is quite important that the law is made by Parliament, not by departmental officials and certainly not by local licensing officers. These mandatory conditions are something of a watershed for the licensed trade.
