Legal Review of the Year: So much for a light touch...

There are not many positives to report, following a year that saw the introduction of yet more red tape. Over the past 12 months the tide has well and truly turned against the concept of 'light touch bureaucracy' and 'flexible opening hours'.

This change of approach was first adopted by the previous Labour government with its mandatory code, introducing a number of new conditions which apply to all existing and new premises licences.

These include requirements to prevent irresponsible promotions and underage sales, and the introduction of smaller measures.

Like many licensing changes that have been introduced in recent years, when the fanfare and hype subsided, there was little real impact on the ground.

Codifying existing practice

Some of the new conditions simply codify existing good practice. For example, given the test purchasing threat, the majority of operators already had age verification policies in place and you would have been hard pressed to find alcohol being 'dispensed directly by one person into the mouth of another' - the so-called 'dentist's chair'.

There does not seem to have been much take-up for 125ml glasses of wine and new glassware has not been required, leading many to serve the new measure in a 175ml glass - in some cases, at the same price.

Much confusion surrounded the definition of an 'irresponsible promotion' and this was made worse by two sets of contradictory "guidance" published by the Department of Culture, Media and Sport and the Home Office.

This, however, became academic in many areas, as licensing authorities elected not to enforce the mandatory code, believing that the coalition government would repeal it when it published its proposals for the overhaul of the Licensing Act.

These proposals, when they emerged as part two of the Police Reform and Social Responsibility Bill on December 1, failed to include the repeal of the code. It seems that the government may, for now, have overlooked its pre-election "one in, one out" pledge in relation to the enactment of new regulation.

Of the proposals for reform of licensing mooted during the summer's consultation, some have been dropped - notably those relating to the reform of the appeals system. Others have been watered down.

However, the Bill continues to present a significant risk to all operators, despite the fact that the measures it introduces are designed to tackle a small minority.

Main feature proposals

The Bill is, without doubt, the most important event of the year in licensing terms.

The main features of what is currently being proposed include:

• Licensing authorities will be required to do what is "beneficial" in terms of the licensing objectives rather than what is "necessary" to promote them - a significant shift;

• All representations and recommendations by the police must be accepted and adopted, unless "clearly not relevant";

• The licensing authority will become a responsible authority and will be able to refuse and review licences of its own motion;

• Primary care trusts and health boards are to become a new responsible authority although, in the absence of a new licensing objective of "the prevention of health harm" it seems that they will have to shoe-horn any representations they make into the public safety objective;

• Residents will no longer need to prove that they live "in the vicinity" in order to be able to object to applications or instigate reviews;

• The applicant's obligations to advertise applications will remain. However, in addition the licensing authority will be under a new duty to bring applications to the attention of residents and businesses in the area;

• Councils will have the power to charge premises staying open after midnight a "late-night levy", currently predicted to range from £299 to £4,440 annually, depending on the rateable value of the premises. Seventy per cent of the revenue is proposed to be spent on "policing the night-time economy";

• Early morning restriction orders will be able to be applied to any time between midnight and 6am, instead of 3am and 6am, as is currently the case;

• Councils will no longer need to collect statistical evidence and consult separately before introducing a cumulative impact zone - provided they are satisfied that it is "appropriate" to do so in the interests of promoting the licensing objectives, they will be able to do so as part of the process of amending their Statement of Licensing Policy;

• The fine for persistent under-age sales will be doubled to £20,000 and a voluntary closure will be able to last up to two weeks;

• Licences will be suspended if annual fees are not paid;

• Councils will be encouraged to use fixed and staggered closing times and zoning; and

• Applicants for licences and variations will be expected to include matters such as "the local area's social-demographic characteristics, specific local crime and

disorder issues and an awareness of the local environment" in their operating schedules.

The off-trade issue

Despite repeated ministerial assurances, there is no mention in the Bill of banning below-cost sales: the coalition still seems unsure about how to tackle the supermarkets.

Lap-dancing clubs were also in the headlines this year. On April 6, the previous government took the populist step of introducing a new system for regulating them, enabling councils to require venues to apply for a new licence for a sexual entertainment venue.

Before then, it was possible to show that an application for a Licensing Act premises licence for a lap-dancing club would not have a negative impact on the licensing objectives, despite some applications receiving hundreds of representations from angry residents, fearful of moral corruption and falling house prices.

Applications for sexual entertainment licences can be refused on broader grounds than those under the Licensing Act licensing objectives, including the fact that a fixed 'quota' for such premises has been exceeded in the locality, or on the basis of the character of the area.

Regular readers of this yearly review must be getting sick of the tales of doom and gloom. With that in mind, here is some good news, but whisper it quietly: some councils might attempt to curb the activities of off-licences when updating their licensing policies in January, by restricting their proliferation in stress areas or cumulative impact zones.

While we wait and see, on this mildly positive note hold your head up high, stock the chillers with WKD and remember the advice of Bertie Wooster: 'Life can be delish with a sunny disposish'! Happy Christmas to you, one and all!

http://www.joelsonwilson.com/