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National Pubwatch - Legal Round-up 2017

National Pubwatch - Legal Round-up 2017. Gary Grant Barrister FRANCIS TAYLOR BUILDING www.ftbchambers.co.uk www.licensingbarrister.com. Recent & Proposed reforms. Modern Crime Prevention Strategy 2016 Policing and Crime Act 2017 Immigration Act 2016 Psychoactive Substances Act 2016

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National Pubwatch - Legal Round-up 2017

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  1. National Pubwatch - Legal Round-up 2017 • Gary Grant • Barrister • FRANCIS TAYLOR BUILDING • www.ftbchambers.co.uk • www.licensingbarrister.com

  2. Recent & Proposed reforms Modern Crime Prevention Strategy 2016 Policing and Crime Act 2017 Immigration Act 2016 Psychoactive Substances Act 2016 House of Lords Select Committee on LA2003 Brexit – fees, alcohol pricing and jobs

  3. IMPACT OF BREXIT 40% of workers in leisure and hospitality sector from EU. 60% of workers international. Kate Nicholls (ALMR): “The impact of the vote is already huge and it is crucial that we hit the ground running to ensure continued support for businesses. We want to be on the front lines ensuring that confidence and investment is not unduly undermined by any future instability, and that the sector knows where it stands...

  4. IMPACT OF BREXIT …Licensed hospitality is crucial to the UK’s economy, generating 1 in 8 of all new jobs over the past two years. Crucially, around 60% of our sizeable workforce comes from abroad and 40% from EU states. The Government needs to establish a clear and concise roadmap to provide reassurances for businesses and employees and the ALMR stands ready to assist.

  5. IMPACT OF BREXIT “…The Government must also act to safeguard against businesses costs spiralling out of control and to protect investment. We need a strong and unambiguous message from the Government that it stands ready to act to in the best interests of UK businesses. The ALMR is working hard to provide its members with a sense of clarity and we are eager to work closely with Government to provide support for licensed hospitality.”

  6. BREXIT - LICENSING FEES R (Hemming t/a Simply Pleasure) v Westminster City Council[2015] UKSC 25 -v-

  7. BREXIT - LICENSING FEES Locally set fees/full cost recovery – new s. 197A & B already inserted into LA2003 Uncommenced pending Local Government Association evidence to HMG.

  8. BREXIT - MINIMUM UNIT PRICING The Scotch Whisky Association (& Others) -v- The Lord Advocate & The Advocate General for Scotland ECJ (2nd Ch), C-333/14 (23.12.15)

  9. BREXIT - MINIMUM UNIT PRICING Alcohol (Minimum Pricing) (Scotland) Act 2012 Alcohol (Minimum Price per Unit) (Scotland) Order 2013 – sets MUP at 50p Treaty on the Functioning of the European Union (“TFEU”) – Articles 34 & 36 – proportionality test? Scottish Crt of Session Ruling, 21.10.16: [2016] CSIH 77 Now heading to UK Supreme Court

  10. BREXIT - IMPACT Deemed grants of licences if delay – article 19 TFEU Alcohol sales at petrol station – s176 LA2003, article 14 TFEU

  11. Modern Crime Prevention Strategy 2016 Home Office, March 2016

  12. Modern Crime Prevention Strategy 2016 Foreword by Theresa May (as Home Secretary)

  13. Modern Crime Prevention Strategy 2016 6 key drivers of crime: Opportunity Character Effectiveness of Criminal Justice System Profit Drugs Alcohol

  14. Modern Crime Prevention Strategy 2016 “More powers for local authorities & police” Improve late-night levy by making it “more flexible for local areas, fairer to business and more transparent”. Greater role for Police & Crime Commissioners - give them right to request that local authorities consult on introducing a late-night levy. Put Cumulative Impact Policies on statutory footing

  15. Modern Crime Prevention Strategy 2016

  16. POLICING & CRIME ACT 2017

  17. POLICING & CRIME ACT 2017 Royal Assent : 31 January 2017 Part 7 impacts on Licensing Act 2003 Home Office – most provisions into force 6 April 2017 Save for Cumulative Impact Assessments and Late Night Levy reforms – await Lord Select Committee Report

  18. Cumulative Impact Assessments CIP’s in s.182 Guidance (Ch.13, March 2015) Judicial approval of CIP’s: Pre-LA2003: Westminster CC v Chorion Plc [2002] EWHC 1104 (Scott Baker J, Admin Crt) Post-LA2003: R (JD Wetherspoon Plc) v Guildford BC[2006] EWHC 815 (Beatson J, Admin Crt)

  19. Cumulative Impact Assessments Section 141 of Policing and Crime Act 2017 Amends s 5 LA03 (“Statement of Licensing Policy”) Inserts new s5A (“Cumulative Impact Assessments”) into LA2003

  20. Cumulative Impact Assessment (“CIA”) s.5A(1): A licensing authority may publish a document (“a cumulative impact assessment”) stating that the licensing authority considers that the number of relevant authorisations in respect of premises in one or more parts of its area described in the assessment is such that it is likely that it would be inconsistent with the authority’s duty [to promote the licensing objectives] to grant any further relevant authorisations [i.e. premises licences or club premises certificates] in respect of premises in that part or those parts.

  21. Cumulative Impact Assessments A cumulative impact assessment must set out the evidence for the authority’s opinion as set out in the assessment. In determining or revising its statement of licensing policy, a licensing authority must have regard to any cumulative impact assessments.

  22. Cumulative Impact Assessments A CIA may relate to all relevant authorisations or only to relevant authorisations of a kind described in the assessment (e.g. only alcohol, or LNR or after certain time etc) Before publishing a CIA the licensing authority must consult.

  23. Cumulative Impact Assessments If LA publishes a CIA it must, following consultation, consider whether it remains of the opinion stated in the assessment - before end of 3 year period following publication or revision of CIA . If no longer of opinion CIA required – must publish statement to that effect and not consider CIA If CIA still required – must set out evidence to justify

  24. Cumulative Impact Assessments Brigid Simmonds of BBPA (26.9.16): “The changes to Cumulative Impact Policies to put them on a Statutory footing should only be justified by evidence, and it is important that each application for a new licence, or variation of a licence, is considered on its own merit… We welcome the frequent review of policies based on evidence, and particularly where crime and disorder are decreasing, but it is important to note that CIPs were originally devised as a temporary policy whilst the underlying causes of any local issues were addressed – and they should be considered in this context.”

  25. Late night levy s.142, Policing and Crime Act 2017 Amends LNL legislation under Police Reform and Social Responsibility Act 2011 Aims to give local authorities more flexibility in imposing LNL.

  26. Late night levy Levy can apply to particular geographic area(s) (rather than the whole authority). LNL can apply to late night refreshment premises (in addition to, not instead of, late night alcohol licences) Different LNL hours may pertain to LNR and alcohol premises.

  27. Late night levy Police and Crime Commissioners may request LNL consultation – LA must publish response and reasons LA’s must publish information as to how it spends its levy amount.

  28. Late night levy ALMR Chief Executive Kate Nicholls : “These amendments shift the legislation further away from the Government’s stance in its original guidance; that the late-night levy should only be a last-resort, when other options have been exhausted. These new measures would introduce a degree of transparency, but this sort of punitive measure could quickly become the first port of call for local authorities… Allowing the levy to be restricted geographically and giving PCCs the power to request a consultation could potentially make it much easier for a council to introduce a levy. The ALMR has consistently opposed the introduction of a blanket tax on businesses and we continue to urge councils to explore partnership schemes before considering the levy.”

  29. Summary Reviews • 113 valid police applications for summary review • Interim steps taken in 91% (103) of cases: • 62% (64) –suspension of premises licence • 38% (39) - conditions added/modified • 21% (22) – operating hours changed • 17% (18) – DPS removed • 14% (14) - licensable activity restricted/excluded • Home Office (year to 31.3.16)

  30. Summary Reviews Procedures to be significantly amended by s.137, Policing and Crime Act 2017 Ambiguity on longevity of interim steps pending appeal to be put beyond doubt. At full review hearing licensing authority can withdraw or modify interim steps to have effect pending appeal.

  31. Summary Reviews Licence holder and police have new right to appeal interim steps (made at full review hearing) to magistrates’ court within 28 days. Repeated challenges to original interim steps only permitted if “material change of circumstances”. What if no extant interim steps at time of full review?

  32. PERSONAL LICENCES

  33. PERSONAL LICENCES Currently personal licence may be suspended for up to 6 months or forfeited only by a court on conviction of a “relevant offence” (i.e. listed in Schedule 4 of LA03). Policing and Crime Act 2017, s138 to give similar powers to licensing authoritythat granted personal licence

  34. DEFINITION OF ALCOHOL

  35. DEFINITION OF ALCOHOL S.191 of the Licensing Act 2003 to define alcohol as: “spirits, wine, beer, cider or any other fermented, distilled or spirituous liquor (in any state)” To make it clear that powdered alcohol and vaporised alcohol are to be regulated in same way as liquid alcohol. See, s.135Policing and Crime Act 2017

  36. S.182 Guidance & Parliament

  37. S.182 Guidance & Parliament Every revision to s.182 must be laid before Parliament – subject to “negative resolution” procedure. Home Office: “Costly and burdensome process” No debates in Parliament on any of amendments to Guidance over 10 years.

  38. S.182 Guidance & Parliament Proposal to remove need for Parliamentary approval See, Policing and Crime Act 2017, s.140 Next update to reflect amendments in Immigration Act 2016, Policing and Crime Act and incorporate guidance on summary reviews.

  39. RELEVANT OFFENCES Schedule 4 of LA03 (personal licences) updated See Policing and Crime Act 2017, s.139

  40. Modern Crime Prevention Strategy 2016 To follow (?): “GRIP” - consultation on group review intervention power - enabling LA’s to consider licensing conditions of a group of premises to address problems in specific location. Police civilian staff - to have powers of entry to enter and inspect licensed premises. (see also Policing and Crime Bill, Ch.1, Part 3)

  41. Modern Crime Prevention Strategy 2016 Introducing “sobriety” as a court imposed community order to reduce alcohol-related offending (e.g. alcohol monitoring tag).

  42. ALCOHOL WHOLESALER REGISTRATION SCHEME

  43. ALCOHOL WHOLESALER REGISTRATION SCHEME The Wholesaling of Controlled Liquor Regulations 2015 Scheme introduced to tackle alcohol fraud – “white van man”

  44. ALCOHOL WHOLESALER REGISTRATION SCHEME If you sell alcohol to another business – need to register for the AWRS (between 1.1.16 – 31.3.16) From 1 April 2017 - if you buy alcohol from a UK wholesaler – need to check the seller has registered with HMRC and has an AWRS Unique Reference Number (online register)

  45. ILLEGAL WORKERS & LICENSED PREMISES

  46. ILLEGAL WORKERS Reviews of Premises Licence under Licensing Act 2003 S.182 Guidance (para 11.27): “There is certain criminal activity that may arise in connection with licensed premises which should be treated particularly seriously… [These include:] knowingly employing a person who is unlawfully in the UK or who cannot lawfully be employed as a result of a condition on that person’s leave to enter”

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