Mandatory Conditions Explained
In principle the new mandatory conditions are sensible (if not cumbersome) and the principles are straightforward, but as with so much legislation by this Government, when you look at it carefully the meaning is far from clear.
Schedule 4 of the Policing and Crime Act 2009 amends the Licensing Act 2003 [LA 03] to give the Secretary of State the power to impose up to nine mandatory licensing conditions in relation to the supply of alcohol under the licence. With a Government which wants to be seen as tough on alcohol abuse the temptation to make headline grabbing new rules was just too tough to resist. The result was “The Licensing Act 2003 (Mandatory Licensing Conditions) Order 2010”. It is only a couple of pages long and you can read it for yourself by clicking on this hyperlink. http://www.opsi.gov.uk/si/si2010/uksi_20100860_en_1. The explanation takes a lot longer.
These new mandatory licensing conditions apply to all existing and future premises licenses which authorise the supply of alcohol, and will come into force from the 6th April 2010 (with two further conditions coming into force on 1st October 2010) and apply irrespective of whether they are endorsed on the licence or not.
These conditions override any conditions already included in a premises licence or club premises certificate, so far as they are identical to the existing conditions or inconsistent with, and more onerous than, the existing conditions. The new conditions will apply to every licence and certificate authorising the sale and supply of alcohol from the date they come into force, it is not necessary for there to be any change to the licence for them to apply.
As the new conditions are mandatory licensing conditions, any breaches will be treated in the same way as breaches of existing conditions. Failure to comply with any conditions attached to a licence or certificate is a criminal offence, which on conviction would be punishable by a fine of up to £20,000 or up to six months imprisonment or both (s.136 LA 03).
However as mentioned later, the conditions are so badly drafted that I do not anticipate any prosecution for breach of the “irresponsible promotions” condition. What I do anticipate is that the authorities will apply for a Review of the licence which means that your whole business is at risk as the Licensing Authority can revoke your licence, whereas the maximum penalty for the breach of the condition is £20k and/or 6 months in prison.
The new conditions impose a duty on “the responsible person” as defined in s.154 (a) and (b) Licensing Act 2003 (LA 03) to stop certain behaviour. I deal with the definition later but for the moment I will refer to the responsible person as being the Premises Licence Holder (PLH) and the Designated Premises Supervisor (DPS). The PLH & DPS are required to take all reasonable steps to ensure:-
(i) That staff do not carry out, arrange, or participate in irresponsible promotions (as defined).
(ii) That nobody is allowed to pour alcohol directly into somebody else’s mouth.
(iii) They must ensure that free tap water is provided.
(iv) If beer or cider is sold on the premises it must be available in
half-pint measures; gin, rum, vodka and whisky must be available in
25ml or 35ml measures and still wine in 125mls. Further, the PLH and
DPS must ensure that customers are made aware that drinks are available
in those measures.
(v) The premises has an age verification policy.
Unlike the first four, the last of the 5 mandatory conditions requires the PLH (and not the DPS) to ensure that there is an age verification policy in relation to the sales of supply of alcohol. I cannot for the life of me understand why this mandatory condition only applies to PLH’s. Many PLH’s are limited companies and have nothing to do with the day to day operation of the premises and so it would seem more appropriate to apply to the DPS. A High Court decision last year made this same point and quashed a conviction against the PLH because they had no knowledge of what was happening at the premises. Hall and Woodhouse Ltd and Poole BC. 3rd April 2009.
The new mandatory conditions are going to be introduced in two parts, the first three conditions will come into force on the 6th April 2010 and the age verification and alcohol measures will come into operation on the 1st October 2010.
Let’s look at those two last conditions first because they may require forward planning. You will not only have to have the smaller measures available but you will have to make sure that customers are made aware of the availability of smaller measures and therefore I suggest that when planning your wine lists etc. and your menus, you put a little note to the effect that beer and cider are available in half-pint measures, gin, rum, vodka & whisky in 25ml or 35ml measure and still wine in 125mls: still wine. Why still wine? still wine is of course not sparkling wine – why the Government made the distinction I don’t know, maybe they have some hush-hush secret research which debunks the myth that women get drunk quicker on bubbly, or is it just that the champagne lobby is stronger than the still wine lobby or am I just being cynical. Not only is bubbly excluded but so are drinks that are made up in advance ready for sale or supply in a securely closed container.
There is no need to buy new glasses provided you have certified measures or optics to pour into glasses. However when ordering any new glassware and/or new measures, depending on the sort of premises you have, you might like to consider toughened glass and/or polyurethane “glass”. I have always personally been against plastic glasses but there are some now which are really very good and I have a list of suppliers which I can let you have upon request. The industry has fought Governments for many years about having plastic glasses but I think they will be mandatory in the near future. Many brewers, distillers and vintners are making their products available in plastic bottles. I’ve even come across plastic champagne bottles! Once again policies are being reduced to the lowest common denominator so establishments which have never had, or have never been likely to have, a “glassing” or a “bottling” are required to take measures to avoid “glassings” or “bottlings”.
In relation to age verification policies, it is slightly bizarre to create a new condition which requires you to have a policy in place. I can’t think of a simple outlet that doesn’t already have a policy; if they didn’t they would probably have had the licence revoked already. Secondly the new condition requires you to have a policy, there is no penalty if you don’t comply with it!
The Government is going to issue some exemplar (their words) policies for those that do not already have them. The minimum required by the new mandatory condition is an over 18’s policy, however many establishments sensibly have an over 21 policy and I have clients with an over 40 policy (you have to be very careful how you apply that!).
The regulations require that the policy that you have is one that requires a photograph, date of birth and a holographic mark. This is specified in mandatory terms. The holographic mark in particular may cause problems, because not even all passports have holographic marks. For those using biometric testing you will need to ensure that the original data in the software used the three prerequisites.
Perhaps that is where the apparent loophole may have been intentional, (not) that you have a policy of requiring a holographic mark but you just do not comply with that policy in particular circumstances; but it is a little early to start looking for ways around the provisions and I don’t recommend it.
One of the reasons why I particularly object to these new mandatory conditions is the way it has been brought into the law. I see no reason why, if the practices are so bad, that the Government didn’t make an offence of it in the same way that it is an offence to sell intoxicating liquor to a person under the age of 18. Looking at another one of the conditions, I ask if it is such a problem why don’t we make it an offence for anyone to pour alcohol into anyone else’s mouth. The cynic in me suggests that to make it an offence would require primary legislation which would have come under the full scrutiny of the Bill procedure. These mandatory conditions are new laws by a back door because they apply to everyone’s licence which, in the vast majority of cases, is totally inappropriate and is akin to having a condition that you are not allowed to commit murder on the premises! A hallmark of the 2003 Act is that the Licensing Authority can only impose a condition if it is necessary. How can it be necessary to have a condition banning something when there was never an intention to do it! How can it be necessary to impose a condition that you have an age verification policy when you already have one!
I said above that it applies to all licenses authorising the provision of alcohol however if you are a distance seller (warehouse deliveries etc.) you are exempt from these provisions. Nor does it apply to Temporary Event Notices. As you don’t need to ever have had a licence or any training before applying for a TEN it is a little surprising that holders of TENs are not covered by these otherwise mandatory conditions.
To recap the fifth new mandatory condition requires you to have smaller measures available and to advertise that fact. I guess that if you are trying “to be good” and reduce your personal alcohol consumption it is just that bit harder if the establishment only sells “large” measures.
The fourth mandatory condition is, perhaps, just a formalisation of present policies. In the unlikely event that you need a new policy, you can find the “challenge 21” policy by clicking on the hyperlink www.beerandpub.com/industry/Article.aspx?articleld=85, Challenge 25 www.wsta.co.uk/Challenge-25.html and Pass www.pass-scheme.org.uk/.
Let’s turn now to the first of the three mandatory conditions which are coming into force on the 6th April. Again, dealing with them in reverse order, the third condition is that you have to provide free tap water and carries the proviso that you only have to do so “where it is reasonably available” it is difficult to conceive of a licensed premises where tap water is not reasonably available. Of course there could be some, but perhaps they shouldn’t have been licensed to sell alcohol in the first place. Perhaps it is meant to mean that your water has not been cut off but you could always have pleaded “force majeure”.
All of the conditions state that the “responsible person” shall ensure… “Ensure” is a very tall order; it is not just “use their best endeavours to avoid” or “have policies to avoid” etc. Ensure means that the individual must “make sure that something happens or doesn’t happen”.
Who is the person upon whom such a weighty responsibility is placed. Well, as this is the LA 03 it must be the poor old Designated Premises Supervisor and yes (s)he is roped in. Some of you will recall that we call the DPS “Ms Washing”. “Ms” because we don’t really know what it is, is it a Miss or a Mrs, and “Washing”, because her sole purpose in life is to be “hung out to dry”.
The DPS is joined in this definition by the Premises Licence Holder but the definition adds another person falling into the category of “responsible person” as defined by s.153(4)(a)(iii) LA 03 which is “any individual aged 18 or over who is authorised for the purposes of this section by such a holder or supervisor”.
S.153 LA 03 is concerned with the “prohibition of unsupervised sales by children”. An example would be a 17 year old supermarket cashier who has to be authorised by the supervisor before he or she could put the purchase through the till. So, the responsible person has to be over 18 and specifically authorised to authorise sales by a person under 18. The on-licence equivalent might be the bar manager but it is highly unlikely that there would be a bar person under the age of 18 to be authorised so he/she would not fall within the definition because they are not authorised in that capacity!
Let’s now return to what the individual must “ensure” doesn’t happen because of the new second mandatory condition. He or she must ensure that no alcohol is dispensed directly by one person into another person’s mouth (unless disabled as defined).
The drink pourer doesn’t have to be a member of staff or similar, it doesn’t have to be a game organised by the licensee, it is simply a blanket prohibition on one person pouring alcohol directly into the mouth of another unless they are disabled and can’t do it for themselves. Clearly the responsible person cannot ensure that doesn’t happen; he has to take all reasonable steps to “ensure” and so there must be clear instruction to all staff to stop it if it should ever happen. In this age of due diligence you should document those instructions and preferably get the staff to countersign them.
It is worthy of note that it has to be poured directly into the mouth. Perhaps because of the rushed nature of these provisions thought was not given to such practices as ice sculptures where alcohol is poured in at one end of the ice sculpture, cools as it’s running through the sculpture and comes out the other end - can that be said to be directly? I think not. I well remember a Ministry of Sound birthday celebration where the alcohol was poured into the mouth of a human ice sculpture, you can guess where it came out, it was very popular! What if one uses a funnel? We lawyers love to live in this grey area and pontificate on what is or is not “direct”. However the real answer is that you can be as inventive as you like and whilst you might not offend the condition so that you can be prosecuted, you may well face an application for review of your licence.
The headline grabber of the new conditions concerns “irresponsible drinks promotions”. In the press release the Government has referred to campaigns such as “all you can drink for £10” and the like. This is not a new phenomenon that suddenly requires action. I can remember such a drinks promotion in Croydon in the late 80’s (and it was for a tenner!). Even then most people thought of it as being irresponsible and under the existing legislation it would have been perfectly possible for the Licensing Authorities to review the licence and revoke it or impose a condition on the licence where such irresponsible promotions take place. They can still do that, this is in additional power if it should be needed!
The “responsible person” has to take “all reasonable steps” to ensure that staff do not carry out, arrange or participate in the irresponsible promotions as then defined. It doesn’t ban the game itself, it just bans the staff from doing it, or arranging it. So customers can still drink a yard of ale, do a “boat race” etc. but the “management” cannot be involved in organising it etc.
In sub-paragraph 2 the “irresponsible promotion” is defined as meaning “any one or more of the following activities or substantially similar activities, carried on for the purpose of encouraging the sale or supply of alcohol for consumption on the premises in a manner which carries a significant risk of leading or contributing to crime and disorder, prejudice to public safety, public nuisance or harm to children”. It then refers to games and targeted promotions.
This makes any prosecution for breach of this condition highly unlikely because each and every one of the “elements” of the previous paragraph must be proved, so for instance the promotion must encourage the sale of alcohol, and, it has to be for consumption on the premises, and, it has to be in a manner which carries a significant risk to offending the crime and disorder objective, public safety, public nuisance or harm to children, then they have to show that it is a “game” or other activity which encourages an individual to drink a quantity of alcohol in a short time etc. I anticipate that the enforcing agencies will not bother trying to prove all those elements, but apply for a Review of the licence.
Just pausing there for a moment one of the biggest challenges to the industry is the problem of “pre-loading” where people buy cheap alcohol from the off-licence and are drunk before they get to your premises. It is an irony in the extreme that these new mandatory licensing conditions do not apply to off-licenses, it is only where alcohol is consumed on the premises. Surely selling alcohol at prices which are less than bottled water is irresponsible, but the new condition does not cover that.
The games are defined as “games or other activities which require or encourage or are designed to require or encourage individuals to drink a quantity of alcohol within a time limit". The statutory instrument then excludes drink or alcohol sold or supplied before the “end of permitted hours for the sale of alcohol”, what they meant was pressurising people to drink up is excluded in what would have been called drinking up time. Once again Government hasn’t thought this through. If the time limit is only for the end of permitted hours for the sale of alcohol that is excluded, the imposition of a drinking up time will offend this condition. This is because under the 2003 Act drinking up time (wherever it exists) is not a licensable activity and is not part of the permitted hours for the sale of alcohol, it is post the permitted hours for the sale of alcohol. To put it another way, as the exemption only applies if there is a condition requiring all drinks to be consumed within the time for purchase of alcohol there must come a time when sale and consumption must be simultaneous which is not physically possible. The reason for this paradox is that the draughtsman did not understand the law; what he should have exempted was specific conditions imposing a drinking up time or when asking people to go home at closing time.
The other drink promotion that your staff are not allowed to engage in is a game which encourages individuals to “drink as much alcohol as possible” (whether within a time limit or otherwise). I certainly cannot think of any licensee running such a promotion in real life, but your licence now has a condition that you can’t do it!
The next promotion that you are not allowed to have is where you provide unlimited or unspecified quantities of alcohol free (yes really), or for a fixed or discounted price to the public or to a group defined by a particular characteristic. This would seem to catch such things as a two-for-one promotion unless there is a maximum number of purchases. It certainly covers a “women drink free” promotion and I regret to say that any promotion which discounts alcohol to solicitors would equally fall foul.
After reading the above you may think what on earth is all the fuss about and that I think that the model conditions are ineffectual; in a lot of ways they are. However, and there is a big however, this is part of the sustained attack on the licensed industry which seems to lump all purveyors of alcohol into the same category and makes no differentiation between good operators and bad operators. In a similar way in which the new mandatory conditions were introduced, they will be used in what I would refer to as, a back door method. They will be used in Reviews, where having to prove all the contributing elements of the offence is not even contemplated, there is no rule of law and evidence is not given on oath. Anyone defending a review is not entitled to cross-examine and they are often limited in the amount of time they are allowed to defend the licence. Just reading the new irresponsible promotion condition would fall foul of many time limits imposed!
How are these conditions going to be inserted on your licence? They don’t have to be. There is no requirement for you to send in your licence for amendment. There are no provisions to compel or even allow licensing authorities to add the conditions to the licence, which seems to fly in the face of the equitable principles of fairness; not all licensees are going to be aware of these conditions, not having the condition on the licence flies in the face of the Act which requires the display of the licence on the premises so that customers, and staff for that matter, know what the licence permits or doesn’t permit.
Even in the Guidance issued by the Government they accept that the provisions are complicated and so it tells you that if you are in doubt about your promotion you should ring up the local licensing officer or the Police to discuss it with them! They are civil servants they are not going to stick their neck out and it is all too easy just to say “no”.
We have dealt with the theory, perhaps it would be helpful if I gave some examples. The ingenuity of man in making up drinking games knows no limit but let me take you back to my rugby playing days when we used to do the boat race. We would all sit in two lines on the floor as if we were the Oxford or Cambridge team but instead of having an oar in our hands we had a pint of bitter. The person at the back of the boat would drink his pint and then put his beer mug on his head to show that he had finished. When the glass touched the head the second oarsman would do the same and so on. This is clearly a speed drinking game and would fall foul of the new Mandatory Condition if the landlord or any of his team “carried out, arranged or participated in” any irresponsible promotion of the game. So it is alright if the rugby teams organise the games themselves but it would not be alright for the landlord, for instance to advertise the fact that boat races of this nature took place at the premises. Nor would it be acceptable if he arranged or participated in the game. It would be irresponsible for the landlord to agree to award the winning team with a round of drinks. However the Government’s advice is that it does not stop the landlord from buying a round of drinks for a winning darts team! The distinction appears to be that you are not actually running a promotion but just decided to give them a drink for winning. However the Government advice continues that you will no longer be able to run a promotion on things happening during a sporting event i.e. free drinks if your team wins. So the difference is that in the first case you merely rewarded them for winning, in the second case you were promoting the prize of drinks.
The Guidance also refers to people drinking a yard of ale and it very carefully says “this would not, for example prevent customers from choosing to drink a yard of ale, but it would prevent licensed premises from organising a yard of ale competition.
In their advice the Government suggests that a promotion targeted at the weak and the vulnerable will be an irresponsible one, but the same promotion targeted at a more robust section of the public is acceptable. Therefore it sites that half price drinks for under 25’s is bad so one assumes that the Government is saying that if it is half price drinks for people over the age of 25 that’s okay. It is very difficult when the Licensee has to apply this “moral” judgement, so for instance you are specifically advised by the Government that you can’t have discount nights for students but if your prices on a Tuesday were less than on a Saturday and therefore you were overrun by students on a Tuesday that would be okay because you hadn’t specifically targeted students. It’s madness.
The advice continues that the condition therefore precludes promotions such as “10 pints for £10”. Again the advice is not clear because if you were in a group of 10 it does not encourage you to drink vast quantities, nor is it a speed drinking game etc. So again you have to look at this advice more carefully. 10 pints for £10 for 10 people is okay. 10 pints for £10 for one person would not be.
I haven’t dealt with this before in this article but the ban on promotions does not affect promotions to customers whilst they are having a table meal as defined under s. 159 of the Licensing Act. S. 159 defines a table meal as “a meal eaten by a person seated at a table, or a counter or other structure which serves the purpose of a table and is not used for service of refreshments for consumption by persons not seated at a table or structure serving the purpose of a table”! So mercifully the new Condition does not ban a promotion that you can have a free bottle of wine with your meal. Another area that perhaps requires some explanation is posters or flyers on or near your premises if the promotion “condone, encourage or glamorise anti-social behaviour or refer to getting drunk in any positive way”.
I hope that the above has been of some advice to you. I fear that it may ask more questions than it answers but that is probably as a result of the appalling drafting of this legislation.
This is a wholly bad piece of legislation that has been hurried through with unseemly haste by a Government that wants to look tough on crime and our industry and is intent on grabbing the headlines in the Daily Mail.
