Legal advice: All clear?

David Clifton revisits aspects of the draft guidance.​

In September of last year I wrote about the draft of the statutory guidance to licensing authorities which the DCMS was then telling us would be placed before Parliament for approval that month.

In that article, I identified a number of aspects of the draft that, in my view, required amendment or clarification. So I thought that I would revisit them to find out what has changed in the latest version as eventually presented to Parliament for approval on March 23.

Extensions​

Special orders of exemption disappear under the new act to be replaced by temporary event notices (for small premises only). If you want an extension of hours for a special occasion and want to have more than 499 attending, it appears that you will have to apply for variation - as well as conversion - during the transitional period. The final draft of the guidance says that you should be able to anticipate the special occasions that will occur regularly each year and to incorporate appropriate opening hours for these in your operating schedule.

Major variations​

The draft guidance refers to applications for "major variations" of premises licences. A "major variation" will cover everything except a change in the name or address of someone named in the licence or an application to vary the licence to specify a new designated premises supervisor. So even a very small change in layout will require a full-scale application for variation. Please remember that this is the legislation that promised regulation with a lighter touch!

Designated premises supervisor​

In my article last September, I queried whether there could be more than one DPS per premises. We now have a clear answer. The final draft of the guidance states explicitly that "only one DPS may be specified in a single premises licence". However, it remains unclear whether it will be possible for someone to be a DPS for more than one premises at the same time.

Television/videos​

The final draft guidance doesn't clarify whether playing a music or old sports videotape in your pub would amount to "an exhibition of a film". Similarly it doesn't clarify whether the definition also includes broadcast television programmes. These are important questions because you may find out that you are providing entertainment that needs to be specifically licensed.

Children​

The final draft of the guidance tells us that the government "prizes the protection of children very highly". However, it still does not tell us whether the ban on unaccompanied children (aged under 16) is intended to extend also to pub gardens or outside terraces where they are included within the ambit of a premises licence, and how many under 16-year-olds one adult is allowed to accompany.

Drinking-up time​

The concept of drinking-up time disappears under the new act. The final draft guidance confirms that pubs will still be able to allow their customers to remain on the premises to consume their drinks for a period of time after the permitted terminal hour under the premises licence.

Changes to existing licences following conversion​

In September, I posed the question what would happen if, following conversion of existing licences to premises licences during the transitional period, successful application is made to the licensing justices and/or entertainment licensing committee to vary the terms of the existing licences, for example in relation to the terminal hour? The answer appears to be that, in such circumstances, the licensee will be able to enjoy the benefit of that variation until the date that the new act comes into full force. However, he will have to ensure that by then he has successfully obtained a premises licence on the same terms since otherwise he will have to curtail his hours again.

AWPs​

There are no transitional measures proposed for AWPs. As matters stand, it seems that the holder of a premises licence will not be able to apply for a fresh permit until the new act comes into full force. If, as will be the case in many instances, the premises licence holder is not the same person as the existing holder of a section 34 permit, will he have to turn off the AWP machines pending a fresh application by him to the licensing authority? Or will an existing permit (in a different name) continue to be valid until it expires in time? The guidance still does not assist in answering this question.

Late-night refreshment​

Restaurants and many premises with special hours certificates currently offer food and hot drinks after 11pm. There is nothing in the final draft of the guidance which indicates that, on applying for conversion, they will be exempted from the need to apply for variation to include late-night refreshment as a licensable activity. What is now made clear is that where a particular permission is subject to certain requirements of existing law, those restrictions will need to be reflected in the newly converted licence. Accordingly, application for variation will be required if an existing late-night operator currently trading with a special hours certificate wants no longer to be obliged to provide substantial refreshment and music and dancing.