Get ahead of the game when it comes to EMROs and the late-night levy

23-Oct-2012 - Last updated on 30-Oct-2012 at 16:13 GMT

Late-night pubs and bars could be hit by an EMRO or levy

It has been more than two years since the Government announced plans to ‘rebalance the Licensing Act’. I sometimes wonder whether the continual drip feed of consultation papers, draft regulations and partial enactments is deliberate Government policy to confuse even us lawyers who have time to read the small print.

However, as further regulations relating to the late-night levy and early morning restriction orders (EMROs) were published in mid-October and are due to take effect on 31 October 2012, this is the perfect time to summarise how the changes will affect the on-trade.

First the basics — both the levy and EMROs are discretionary powers granted to licensing authorities by Parliament. Our Late-night Licensing Survey (carried out between April and July 2012) suggested that 6% of authorities were likely to consider implementing a levy and 9% EMROs. Undoubtedly these figures will have fluctuated since then, but it does show that these measures are not universally popular with licensing authorities.

It may well be, therefore, that you never have the misfortune to come across either. If you do, then remember that the levy is an additional tax on premises authorised to sell alcohol between midnight and 6am, although the licensing authority can choose a different period within that window, for example 1am to 5am.

Almost every type of pub and bar authorised for those hours, even on one night a year (excluding New Year’s Eve, which is a discretionary exemption) is likely to be liable to pay. The only exemption for pubs is those that are entitled to rural rate relief.

The levy is payable on top of the annual licence fee, and will range from £299 to £4,440. Failure to pay could result in the suspension of the licence (as indeed can failure to pay the annual fee). It will be possible to make a free minor variation to remove the ‘offending’ hours from your licence, but there is talk of being able to simply add a condition suspending your later hours during any levy scheme, so you don’t lose them permanently — although we’ve not seen it in writing yet. The levy applies to the whole of the licensing authority’s area (not just the late-night ‘hot spots’).

If you are a member of a local pubwatch, Best Bar None or Business Improvement District, you may be entitled to a 30% reduction in the levy. The new regulations make it clear that this is a fixed 30%, so the licensing authority can’t award 15% for pubwatch and 15% for Best Bar None, neither do you receive a 60% reduction for being a member of two qualifying schemes. Let us hope that you find yourself in a scheme that finds favour with your licensing authority.

As far as EMROs are concerned, let’s be clear — if your real profits lie in the late-night economy, and an EMRO is proposed, it could kill off your business. Don’t wait to read about the proposals when a letter comes through your door — it may be too late by then to argue that your business or street should not be part of it. Telephone your licensing officer and ask now if they are considering one.

Neither measure can come into effect immediately — the consultation timescales suggest an earliest start date of March 2013 for an EMRO and June 2013 for a levy. But that shouldn’t stop you making yourself heard now.