The facts will no doubt be fresh in your minds; England Women’s World Cup team had reached the Sunday final. Millions of people wanted to watch the match live, many of those down at the pub. Kick off was at 11am which meant, as pubgoers would want a good settling down period to have their drinks (including alcoholic ones if so desired) a pub hosting the World Cup game would want to be able to sell alcohol from say 10am.
Many pubs do indeed have hours for the sale of alcohol authorised from 10am on Sundays. Many don’t. The Government’s conundrum as England qualified for the final and excitement and support for the women’s team multiplied was that, at relatively short notice there were really only two ways to formally and legally extend pubs’ hours for licensable activities.
The first was by way of a Temporary Event Notice (TEN) and the absolute latest time that a TEN could be submitted was Friday 11 August, which was before England had even qualified for the Final. The second route was by what is called a “Licensing Hours Order”, which is a nationwide relaxation of the licensing laws for special occasions, for example, the Platinum Jubilee, royal weddings and such like. The problem here was this particular type of statutory procedure requires parliament being recalled and parliament was in recess.
Perhaps someone in Government should have anticipated England might get to the final and, while parliament was still sitting, put in place the draft statutory instrument ready to relax the licensing laws were England to indeed make it to the final. For whatever reason this did not happen. Equally, many operators who could have submitted TENs in time did not.
These things happen. What worries me is the letter from Michael Gove, Secretary of State for the Department for Levelling Up, Housing and Communities of 17 August, three days before the final. His department was no doubt under a lot of pressure to do what they could to support the pub industry at a moment of national importance.
The Government wanted to help – and did - but as a lawyer I cannot escape the fact that nothing in that letter could or did change the legal position. It is an offence under Section 136 of the Licensing Act 2003 to carry out unauthorised licensable activities, including selling alcohol outside your permitted hours.
There is a so-called ‘due diligence defence’ to this offence, and you could say that the letter could constitute such a defence. Equally, the letter could constitute very strong mitigation were an offence considered to have been committed. But the letter did not state either of these things – it simply welcomed any support councils could give in ‘rapidly considering’ a ‘short extension to licensing hours…to enable that to happen’. Whatever that means.
Some councils and police forces decided to permit licensees to open early and sell alcohol outside their hours, and indicated this position to their licensees. Those councils no doubt read the intended message of the letter and translated it into something meaningful to the licensees on their patch.
I don’t criticise the intention or the effect of the letter but it might have been better if the Government had faced the issue of Section 136 head on. Transparency and consistency are key elements of a tightly regulated sector like alcohol licensing and I wonder what precedent this sets.
This can all be fixed. While I am no legislation expert, Section 197 of the Licensing Act, which requires that parliament approve a Licensing Hours Order before it can come into effect, could be amended by way of a Legislative Reform Order to allow the Secretary of State to make such Licensing Hours Orders immediately, subject to subsequent annulment if Parliament doesn’t agree. This relatively minor amendment would, in those rare unforeseen moments when the country wants to open for business at unusual hours, allow the Government to do the right thing in the right way, and not expect Local Authorities or licensees to operate in a legal fog.
I am delighted that hopefully every pub that wanted to open early for the final was able to do so, but the way that we got there was legally awkward.