The new mandatory conditions took effect on Tuesday last week, so it is perfectly possible for the first licensee to be charged with a breach of the Licensing Act while the experts are still arguing as to what they actually mean, particularly with regard to the so-called "irresponsible promotions", which form the cornerstone of the first batch.
To assist us, however, we have not one, but two sets of guidance, both of which were published last week by the Department for Culture Media & Sport (DCMS) and the Home Office.
They have clearly been written by different civil servants with a different approach to the subject, and it would be amazing if they had not compared notes at some stage — but, totally in keeping with this Government, if they had not.
The problem is, as I pointed out earlier, that the wording of the mandatory condition on irresponsible promotions is so convoluted and involves so many factors that interpretation at this stage is a matter of guesswork rather than logic.
What those who run pubs need to know is what will be allowed and what will not in terms of promotions. Although we have made an attempt here, that overall question is far from being answered, and will probably vary as different local authorities and police put different rules or interpretations in place. Indeed they are actively encouraged to do so by the DCMS guidance, which sees the enforcing authorities in an area as the ones to "set the rules" when it comes to promotions in general.
However, the Home Office is not so shy. In its new document, which is entirely devoted to the new conditions, rather than the 12 paragraphs that have been added to the guidance by the DCMS, it has given examples of what it considers to be the most irresponsible and what it says are prohibited under the new legislation. Some of them run perilously close to practices that have been carried out in any number of pubs (eg, yard of ale contests) but will be outlawed from now on.
As with other aspects of licensing, there will also be threats rather than action. This is probably the most potent effect of the new conditions — a visit or a phone call saying that what is planned is likely to contravene the new legislation, so do not do it. What are you to say? That you have had legal advice that it is on the borderline, but does not technically involve a breach?
As expected, neither document fully covers the yes/no perspective, relying on certain examples rather than a table of what would be allowed and what would be prohibited.
Above all, the promotion has to carry a "significant risk of leading to or contributing to" crime and disorder or any one of the other licensing objectives.
How this vague concept is to be determined has exercised the minds of many people for the past few weeks. Some impromptu events, or simple promotions, can have a bad effect on individuals, but for the majority they pass off without incident. If no risk is perceived, how can the "promoter" be in breach of the condition?
Unclear
The problem is that in the first instance the actual legal arguments over the drafting are likely to be of little importance when it comes to enforcement.
Bearing in mind that the police in Oldham considered that a minor cut-price offer for two bottles of lager was "irresponsible", the judgement on this term is going to be in the hands of those who have a vested interest in shackling the licensed trade generally.
It would not take much effort to use the muddled wording of the first condition to rule that all promotion of alcohol other than at fixed, relatively high, prices was in breach of the law, as it could conceivably encourage a person to drink more than they would otherwise.
Regrettably, neither of the two sets of guidance gives any additional information on pre-existing conditions being over-ridden if the new rules are "inconsistent with and more onerous than" those already on the licence.
It will probably be necessary for licensees with a set of control provisions on promotions, for example, to discuss this with their local licensing officer, as the mandatory conditions will not appear on the licence, and not all authorities are going to issue their own guidelines on what is acceptable.
But having two sets of guidance on the meaning of one statutory instrument, with the potential for giving a different emphasis and even a different meaning, is in many ways a first for any administration.
It only underlines the fact, which I voiced some time ago, that the Home Office would like licensing back — permanently.
What the Home Office says is banned
• Drinking games or activities that require a customer to drink an amount of alcohol within a time limit, or as much as possible (speed drinking), except at closing time
• Offers encouraging specified groups to drink for free or at a discount, eg:
— women
— half price for under-25s
— discount nights for students
— cheap drinks for team supporters
• Fixed entry and unlimited or discounted drinks, such as:
— all you can drink for £10
— pay £5 and then up to 12 shots free
— 10 pints for £10
— entry fee and free drinks before 10pm
• Prizes for drinking alcohol, such as:
— buy four, get the fifth drink free
• Drinks promotions based on televised sport, such as:
— half-price drinks when England score a goal
— free drinks if home team wins
• Posters near the premises advertising your promotions, which are positive about getting drunk or encourage or glamorise antisocial behaviour
• Dentist's chair activities, either organised by you or customers where alcohol is poured directly into the mouth.
However — a yard of ale is okay if the customer orders it, but not okay if you organises a yard of ale contest in your pub!
What's not banned
• Happy hours, pub-crawls or general discounting of alcohol, as long as this is done responsibly
• Prizes or free drinks for buying alcohol over a period longer than 24 hours (eg, visit collection cards)
• Licensees giving free drinks to a winning darts team
• Any promotions or discounts available for persons taking table meals on the premises
• Any promotions, discounts or free drinks under a temporary event notice (TEN).