The Home Office has finally published its consultation paper on the much-heralded code of practice for alcohol retailers, to be brought into force by the Policing and Crime Bill which is currently making its way through the House of Lords.
The Department is seeking views on six national mandatory conditions that will be imposed on every premises licence under the 2003 Act by the Secretary of State. A brief summary of what is currently proposed appears in the table opposite.
The government wants to curb what it sees as "irresponsible promotions". The proposals would impose a ban on any activity encouraging drinking a quantity of alcohol against a time limit, drinking as much as possible
or drinking irresponsibly, providing alcohol free to specific groups such as women, or providing unlimited quantities of alcohol for a fixed fee.
Questionable?
There are some who might argue that eradicating irresponsible promotions, which are run by only a very small minority of the trade in any case, is no bad thing.
However, other proposed mandatory conditions look set to outlaw the dispensing of alcohol directly into the mouth of the customer and to require licensees to make free tap water available. Certainly the need for conditions to be attached to all licences in the country to cover these points is questionable at best.
As far as the much-hyped 'smaller measures' argument goes, the proposed mandatory conditions will require smaller measures (including 125ml glasses of wine) to be made available at all venues. The government is inviting views on whether to abolish publicans' right to choose between 25ml and 35ml measures for spirits. Although the consultation paper makes it clear that the government "does not expect licensees to be required to purchase new glassware", respondents may not share that view!
The government also proposes to enact measures under the Food Safety Act requiring all licensed premises to display unit information at the point of sale for "a representative sample" of drinks on offer.
Thankfully, the proposals currently on the table go less far than those published in draft in January, which would have required unit information to be listed for each and every alcoholic drink on sale.
The other area upon which the consultation paper invites comments is a whole raft of local discretionary conditions that licensing authorities will be able to impose equally on groups of "at least two" premises in their area, provided that they are satisfied that a "four-point test" is met. This test will broadly involve the authority concluding that there is alcohol-related nuisance or disorder at or near premises and that the imposition of conditions is appropriate to mitigate or prevent any repetition. Again, all the proposed conditions are summarised in the table (right).
The local discretionary conditions could cover matters as diverse as glass collections, use of glassware, CCTV, toilet checks, searches, dispersal policy and mandatory use of Challenge 21. In addition, the paper "seeks views" on further discretionary conditions covering minimum standards of staff training, minimum percentages of floor areas to be given over to seating and minimum requirements for doorstaff.
Unjustified encroachment
Many will see the local conditions as a wholly disproportionate and unjustified encroachment by the government into matters of reasonable commercial practice, customer choice and trading style. The potential cost of several of the proposed measures could be significant and could mean the end of the road for some pubs affected. While there is to be a right of appeal to the magistrates' court against the imposition of local conditions - which is to be welcomed - government protestations that none of this should affect well-run premises are likely to fall on deaf ears.
The initial reaction from some licensing authorities is that the new system of local conditions is likely to prove costly, to put them at a risk of litigation and be unworkable from the point of view of gathering evidence, and that it will therefore be consigned to the same white elephant's graveyard as alcohol disorder zones, while matters continue to be progressed via the traditional route of individual reviews of premises licences. However, the inescapable fact remains that these proposals do provide a brand new opportunity for the licensing authority to impose conditions on groups of premises of its own motion. Some authorities may not be able to resist the temptation to do so blanket fashion, something which the 2003 Act expressly forbade. To that extent, this appears to be an attempt to rewrite the legislation.
All in all, the current proposals do represent a significant toning down of the January draft - but don't be fooled. The Bill allows for a maximum of nine mandatory conditions to be imposed on all licences nationwide - rather than the six put forward at present. Perhaps more worryingly, the consultation paper "invites views" on returning to many of the most controversial areas of that January draft - training, doorstaff and percentage of floor space to be given over to seating. It is clear that the government's ambition to control those areas has not gone away.
• Trade organisations are expected to respond robustly to the consultation. To have your say, you can obtain a copy of the consultation paper via the link Consultation on how alcohol is sold and supplied Responses must be in by August 5. It seems that the earliest that the mandatory code could come into force will be late spring or early summer 2010.