The whole idea of the new licensing system, according to those who put it together, was that it would encourage local democracy.
The people would decide what sort of licensed premises they wanted, and the local council would listen to their views.
But that concept, in my view, does not allow for the idea of a "kangaroo court" or, as I understand it, certain authorities actively touting for, and encouraging, objections to licences in order to substantiate a review.
In one area it is reported that the environmental health department called a meeting, attended by the licensing officer, which spelled out ways in which residents could
object to specific licences, even giving guidance on the subject matter and the phrasing of objections, so that they would fall within the licensing objectives.
Under the new Licensing Act, the licensing authority cannot review licences of their own accord. They have to wait until someone else comes along and raises the issue. If local residents are themselves unhappy about the way a pub is being run, they have every right to start a review themselves. So do the police and environmental health departments.
So it is a slightly worrying trend when licensing officials become directly involved in "generating" objections. I have always been unhappy with the way Westminster goes about this, because it is clear from their published literature that they want to encourage people to object so that they can say "no". That is basically their policy.
But the new licensing laws suggest that the licensing authority should remain uninvolved, so that they can weigh up the evidence presented to them fairly between the parties. If they are seen actively to support one side, it hardly represents a proper, quasi-judicial function, which they are charged with carrying out.
Although there are recommendations both from the Government and Lacors — the local authority regulatory watchdog — on this very point, it seems to me that they are often ignored. When local councillors also become involved, the dice are stacked heavily against the pub operator from the start.
This is clearly the second phase of the new licensing system's development, which is to move even more power to the local council. The Home Office idea of discretionary conditions, for example, gives councils their first opportunity for unilateral action against pubs. Will it be long before the actual discretion on granting and varying licences is placed firmly in the council's hands, egged on by their own officials?
Q&A
Music licence confusion
Q. Someone told me that your paper is claiming that a music licence is needed if you play music to customers. Isn't this part of the premises licence?
A. There is a confusion here, which is understandable. One copyright organisation is using the phrase "music licence" to mean their own copyright charge for pubs.
This has nothing to do with the entertainment element of the statutory premises licence. Certain types of live and recorded musical entertainment will require appropriate permissions to be included within the premises licence, as I pointed out in the recent live-music supplement published with the MA.
But in terms of copyright, organisations such as PRS (Performing Right Society) for Music and Phonographic Performance Limited work on a tariff system with pubs, covering copyright payments for the actual music or the sound recordings. Sometimes they call this a "music licence", which really means a copyright licence. If you do not have it, and you play music, they will pursue you and even take you to court if you do not pay up. They can, in extreme circumstances, prevent you from playing music at all.
Even if you have a PRS or PPL licence, you may still need the correct premises licence from the local authority to cover the musical entertainment you are providing.
No under-16s in the bar
Q. I have seen a notice in a long-established local pub near here that says "No under-16s in the bar area". I did not think this was the law. Is it a special condition?
A. It is likely to be either a
choice by the licensee or a misunderstanding of the new law, possibly based on the fact that the pub licensee has never received any training on the 2003 Licensing Act.
There were, as you know, a number of changes from the 1964 Act in respect of running the bar, and not all of these have filtered through yet. As far as young people are concerned, the law, as I mentioned last week, is that youngsters under 16 must be accompanied by an adult when using bar areas. They are not banned entirely, so the notice does not reflect the legal position.
This is not likely to be a special condition. Where the "no under-14s" rule has survived, it may have been placed on the licence and is being followed by some pubs. But the simple truth is that youngsters are no longer barred from bars, unless the licence holder wishes it.
Smoking breaks for staff during shifts
Q. I have recently taken over a pub where some of the staff have smoking breaks during shifts. They say it was agreed. What is the legal position?
A. Nothing in the Health Act actually prevents smoking, as long as it takes place in an area that is not "smoke-free". This applies equally to staff as it does to customers.
So if you have a smoking shelter, or private residential accommodation for members of staff, they can smoke there. But they cannot smoke in the enclosed areas to which customers have access.
The question of smoking breaks is a separate issue, more to do with employment rights and obligations. If it has been customary to allow smoking members of staff a break for a cigarette, removing this allowance could be considered a variation of the employment conditions, albeit a very minor one. Non-smoking staff could, of course, claim that they receive no similar dispensation and that it is unfair.
However, it would be inadvisable to cancel smoking breaks entirely without consultation and discussion. Depending on the length of shift, it might be unreasonable to insist that no smoking takes place anywhere during employment and this might lead to a claim for constructive dismissal. Allowing smoking breaks is a matter for the employer to determine, after hearing the views of employees.