Pub licensee's right to reject custom
The news from the High Court concerning Haverhill Pubwatch is welcome because it does indeed clarify the legal position on imposing a concerted ban on troublemakers.
But it does not affect the basic right of individual licensees to exclude people from their premises.
That, in my mind, has never been in issue. This "common law" right, which I have written about many times on these pages, means that a pub landlord is not obliged to serve anyone who comes in and is willing to pay — a popular myth brought about by a wrong interpretation of the descriptions "public house" and "public bar".
A public house is still a private place, operated by the licensee to a certain extent in line with Al Murray's maxim: "My gaff, my rules." What happen when someone enters is that they are given a form of licence to be there, which can effectively be brought to an end at any time if their conduct justifies exclusion.
Similarly, when someone comes up to the bar and orders a drink, they are in fact offering to buy.
It is the licensee who accepts or rejects that offer, so on a refusal a contract is not made and the person has no legal redress.
That fundamental right is not in itself overturned by discrimination laws, which simply say that in picking and choosing his customers, a licensee must not make a judgement based on prejudice, but on fact. A person's race, sex, religion or age should not govern the decision, but their behaviour or actions, either at the time or previously.
The power of rejection can also be delegated, as can other actions in a pub. If the licensee gives authority to a bar worker to sell alcohol, they also give them the authority to refuse service to certain people (which they must do by law) and also people who would be unacceptable to the licensee.
So it is not right to say that only the licensee can ban a person — a barman can do exactly the same, if he has the authority at the time.
This right exists without any obligation on the licensee to give a reason, although in cases where there might be some doubt it is best to say exactly why the person is refused or barred. In the case of a Pubwatch ban, for example, where the individual licensee is reacting to a decision over an incident that took place elsewhere, it is essential that the reason is clearly stated.
