Free tap water — at a price

I have had several communications from readers and their representatives on the third of the three mandatory licensing conditions that were introduced one month ago.

This is the requirement to ensure "that free tap water is provided on request to customers where it is reasonably available".

As it is hard to envisage a pub in England and Wales that does not have a tap, it is safe to assume that the vast majority of pubs are in a position to offer this service anyway.

But to whom? That's the burning question of the moment, and there are a number of pubs that find this issue very important. Congregating in a pub is a convenient solution if you are in a large group. It is warm and welcoming, you can get on with reading or chatting, and if you do not have much money then you can order a glass of water. The licensee is obliged to serve you. It's the law.

There are even unconfirmed reports of a requirement to advertise free water on the premises as part of this condition. I would be most surprised if this were true, but there clearly is no such obligation and it would be open to challenge if such an extra condition was placed upon any licence by a licensing authority as a result of this change in the law.

In any case, the availability of drinking water has been part and parcel of the licensing system for some time, certainly in the late-night sector, where clubs and other venues have had a drinking-water condition as part of their wind-down procedures. Of course it is free, but — and this is the big point — it is available to existing customers who are already on the premises and have paid their entrance fee or other charges.

'Customers'​

It seems to me, especially when you look at the purpose of this condition, that the same considerations will apply. This is confirmed by the second set of guidance issued by the Home Office (and currently withdrawn until after the election). The explanation is that "this helps people to space out their drinks and not become intoxicated quickly, which reduces the risk of crime and disorder occurring".

So the Home Office is assuming that the free tap water is provided to customers in addition to their normal purchases of alcohol. It is, therefore, reading the word "customers" as meaning those who have already traded with the host in some way, not people coming in off the street and demanding tap water as of right.

We have all seen examples in this area where people try and exercise what they see as a right, on principle. Certainly in the early days of discrimination and disability laws, while most traders complied, there were one or two headline-grabbing examples of what appeared to be unreasonable behaviour. I am sure that once news gets around that "pubs must give you a free glass of water on demand" there will be several examples of "test purchasing" by student groups and others to see if there is compliance.

However, I should also point out that the common law right of a licensee to accept or reject whoever he chooses as his customers (subject, of course, to the above discrimination rules) continues to apply. An unreasonable demand for one coffee and 11 glasses of water for a party of 12 young people could certainly be resisted, if only on the grounds that 11 of them are not actually customers at the time the demand is made.

Unfortunately, I do not make the law, so it may well have to go before a High Court judge — drinking tap water, of course!