Incremental changes to alcohol licensing guidance take effect

Out-Law News | 10 May 2018 | 10:42 am | 2 min. read

Updated guidance setting out how licensing authorities in England and Wales should carry out their duties under the 2003 Licensing Act is now in force, following publication by the Home Office.

Section 182 of the Act requires the Home Office to issue this guidance, and to update it when necessary. The latest version of the guidance (155-page / 990KB PDF) took effect on 6 April 2018 and makes some notable changes, including moves to put local authorities on similar footing to the police in ensuring compliance with the crime and disorder licensing objective.

Licensing law expert Christopher Rees-Gay of Pinsent Masons, the law firm behind, said that licensing authorities should scrutinise the newly-updated guidance carefully. However, he noted that fewer changes had been made than had been expected, following the government's response to a House of Lords select committee which, last year, recommended substantial changes to the underlying legislation.

"The government's response set out that it would be looking to implement changes to the section 182 guidance in light of the select committee report," he said. "The changes made to the revised guidance under section 182 were far less than I was expecting."

In its report of April 2017, a House of Lords committee set up to scrutinise the legislation called for a "radical comprehensive overhaul" of the system, which it described as "fundamentally flawed". Among its more high profile recommendations were doing away with separate committees with responsibility for making licensing decisions; doing away with late night levies (LNLs) and early morning restriction orders (EMROs); and reforms to the appeals process.

In its November 2017 response, the government ruled out an overhaul of the legislation to the extent sought by the committee. Instead, it said that it would use the committee's recommendations as a "spur to further work", particularly in respect to how the system can be made to function more effectively and the lessons that can be learned from the planning system".

The updated guidance makes no reference to the select committee report. However, it does incorporate some of the committee's recommendations. For example, in relation to appeals, the guidance states that all parties who were party to the original hearing but not involved in any appeal should be provided with clear reasons for any subsequent decisions if the appeal is settled out of court. The guidance states that this is particularly important in relation to local residents, who "are likely to expect the final determination to be made by a court".

Rees-Gay said, "This change can be seen as a positive step and a means of ensuring transparency in the licensing system."

The new paragraph 9.12, on the respective roles of responsible authorities, would be of particular importance to operators and sub-committees, Rees-Gay said. This paragraph notes that while it is likely that a particular responsible authority will be the licensing authority's main source of advice in relation to a particular licensing objective, "any" responsible authority is entitled to make representations with regard to any of the licensing objectives "if they have evidence to support such representations".

"This seems to have watered down the police's position and has moved to put all responsible authorities on a more equal footing," Rees-Gay said.

The expert also welcomed the "clarity" provided by the revised guidance on beer gardens and outside areas and how they should be licensed. The guidance states that sales of alcoholic drinks should be treated as off-sales where they are collected from the licensed premises and delivered to customers by staff, rather than being sold directly by way of an outdoor bar or service.

The guidance states that 'off-sale' outdoor areas need not be included on a premises plan as part of an application for a premises license, only described in the application. Different licensing authorities have traditionally dealt with these areas in many different ways, Rees-Gay said.