Legal: Effects of the late-night levy on pubs

Related tags Late-night levy License

Casinos: on the original list to be exempt from early morning restriction orders, but not after the consultation

I’m not sure the Government entirely trusts licensing authorities. Or perhaps it’s the lawyers that the Home Office is wary of. Either way, its recently published ‘response to consultation’ on early morning restriction orders (EMROs) and the late-night levy leaves little room for manoeuvre.

These discretionary powers, due to come into force on 31 October 2012, allow licensing authorities to prohibit the sale of alcohol (EMROs) and/or charge a fee (levy) for premises selling alcohol between the hours of midnight and 6.00am (or any time within that period the authority chooses).

The original consultation mooted certain exemptions from an EMRO, in recognition of the fact that, even in the Government’s view, not all late-night premises contributed to issues of crime and disorder.

However, of the original list of suggested exemptions — which included premises with overnight accommodation, cinemas, theatres and casinos — the only ones to survive the consultation are New Year’s Eve and premises with overnight accommodation, and only then when alcohol is supplied through mini bars or room service.

In justifying this approach the Government raises concerns about the difficulty in defining some of these categories, fears that this could introduce loopholes and worries that a long list of exemptions would “dilute the impact of an EMRO”.

It seems, therefore, that a bona fide hotel in the middle of an EMRO area with a genuine residents-only bar might have to send its customers scurrying up to bed after midnight partly because the lawyers in Whitehall can’t come up with an appropriate definition.

So far as the late-night levy is concerned, there is a little more leeway. Liability for the levy ranges from £299 to £4,440 per year (payable on top of the annual fee). Restaurants, casinos and premises operating with club premises certificates are no longer proposed to be exempted from paying the levy if it applies in their area.

However, local licensing authorities will have discretion to exempt premises with overnight accommodation, theatres and cinemas, bingo halls, community amateur sports clubs, country village pubs (in England, premises within designated rural settlements with a population of less than 3,000), premises within business improvement districts (BIDs) with a “satisfactory crime and disorder focus”, and premises only trading late on New Year’s Eve.

Note that while the Government seems incapable of drawing up suitable definitions of theatres, hotels and cinemas in respect of EMROs, it plans to define those same categories so far as discretionary exemptions under the late-night levy are concerned.

Perhaps more helpful for licensees are the potential local reductions in the levy amount available for best-practice schemes, for example, Best Bar None, National Pubwatch, a ‘club watch’ or ‘shop watch’, community alcohol partnerships and business improvement districts that meet relevant criteria.

In order to qualify for a reduction, the scheme will have to justify how its activities will result in a reduction of alcohol-related disorder, have a requirement of active participation by members and a mechanism to remove members who do not participate “appropriately”.

Given that active participation could result in a maximum 30% discount from the levy, you might see more bums on seats at your local pubwatch in future.

So far as the draft Late Night Levy (Application and Administration) Regulations go, these put more meat on the bones as to how the levy will work.

There appear to be no reductions if you become liable to pay the levy half way through the year, for example, by increasing your hours to fall within the levy hours, and similarly no reduction if you vary your licence to reduce your hours and therefore opt out of the levy hours during any given levy year.

In short, in future, if a levy exists in your area and you want to increase your hours thereby falling liable to pay it, it might be advisable to do so at the start of the levy year to gain the most benefit from your outlay.

There are reductions if the licence lapses due to insolvency, mental incapacity or death during a levy year, but I suspect this will be the last thing on the licence holder’s mind in that event.

Interestingly, it appears that the licensing authority is liable to pay the police’s portion (no less than 70%) of the levy irrespective of whether it has obtained the money from the licensees — and given that they will be able to suspend your licence for non-payment of the levy (as well as the annual fee), if you are liable to pay it would be best to do so on time.

It’s a lot to take in. We’ll keep you posted on further developments.