On 1 October 2015, the Home Office issued Guidance on the licensing of late night refreshment. This confirms my gripe in my previous article about not really knowing where to look for changes that are being made to the Licensing Act through tinkering with it via other pieces of legislation.
People may have missed the introduction of this Guidance, which announces de-regulation in this area. It will allow Licensing Authorities to exempt the supplies of late night refreshment:
• on or from premises which are wholly situated in designated area;
• on or from premises which are of a designated description; or
• during a designated period (beginning no later than or earlier than 23:00 hours and ending no later than 05:00 hours).
The Home Office Guidance is not currently part of the Section 182 Guidance to the Licensing Act. However, the Home Office has made it plain that this will be included in the Section 182 Guidance when there is a new Edition. The covering note accompanying the new Guidance states that “the provisions in the De-Regulation Act 2015 that this Guidance covers came into force on 1 October 2015; However the changes will not come into effect in full until November 2015 when the regulations prescribing premises types come into force”.
I really don’t know why this couldn’t be done in one move, rather than in the “bits and pieces” approach being taken by Government.
If we study the non-statutory Guidance, which will become statutory Guidance once it is incorporated in the section 182 Guidance, we can see the detail.
The full Guidance can be seen at https://www.gov.uk/government/publications/guidance-on-the-licensing-of-late-night-refreshment. Some critical elements are as follows:-
Paragraph 3.5 states: “When choosing to designate particular categories of premises exempt, a Licensing Authority can only exempt types of premises set out in the regulations. These are:
• Motorway service areas;
• Petrol stations;
• Local authority premises (except domestic premises) unless there is an event taking place at which more than 500 people are present;
• Schools (except domestic premises) unless there is an event taking place at which more than 500 people are present;
• Hospitals (except domestic premises);
• Community premises (church, chapel, village, parish, community hall or other similar building) unless there is an event taking place at which more than 500 people are present;
• Licensed premises authorised to sell by retail of alcohol for consumption on the premises between the hours of 23:00 and 05:00.
Paragraph 3.11 gives guidance on the circumstances in which licensing authorities may look to bring about the exemption: “When deciding which exemption to use, if any, the relevant Licensing Authority should always first consider what the risks are in terms of the promotion of the licensing objectives. Decision to make an exemption is a licensing function that Licensing Authorities should include within their statement of licensing policy. It would then therefore be subject to the statutory consultation process with other responsible authorities and relevant parties set out in Section 5 of the 2003 Act.”
There is a duty, set out in paragraph 3.12, to publicise any changes that are being made, and to update the statement of licensing policy as soon as is practicable.”
However there is no requirement for the Licensing Authority to tell premises individually. Instead, they should “publicise the exemption in a way that ensures that those who are likely to be affected may benefit from it.” It will be interesting to see to what extent Licensing Authorities make use of these exemptions (bearing in mind that doing so will have the effect of reducing their fee income!) and we will of course keep you appraised of any developments.