After years of lobbying and debate, the Department for Digital, Culture, Media and Sport finally issued its much-anticipated Consultation on society lotteries and their financial limits on 29 June, via Tracey Crouch MP, the Minister for Sport and Civil Society.

The sector has long been campaigning for an increase in the financial limits which apply to society lotteries, which currently stand at annual total proceeds (ticket monies) of £10m, proceeds per draw of £4m and a maximum top prize of £25,000 or, if more, no more thank 10% of the proceeds. This effectively means that, at present no-one can ever win more than £400,000 as a top prize in a society lottery.

Of course, this is all designed to protect the position of the National Lottery as being the only lottery product where one might hope to win a life-changing sum. However the society lottery sector has argued that the current financial limits hamper its ability legitimately to raise money for good causes and the Government is now re-evaluating the position, recognising that society lotteries are “a fundamental part of the giving landscape” and acknowledging the views of many charities who say that money from society lotteries and the National Lottery are “complementary sources of funding that enable us, in different ways, to carry out our vital work.”

The Gambling Commission’s (“GC”) advice to Government is that the recent growth of the society lottery sector has not been to the detriment of National Lottery sales. The pervading view currently seems to be that the two can peacefully co-exist and that, indeed, the society lottery market might even encourage participation in the National Lottery.

This Consultation, then, seeks to enable the society sector to grow in a sustainable manner and in a way that is complementary with the National Lottery. The Government’s “preferred options” are to:

  • increase the per draw sales limit to £5m;
  • increase the annual sales limit to £100m; and
  • increase the per draw prize limit to £500,000.

Whilst the annual limit is perhaps what the sector was after, many will be disappointed with the proposed modest increases for individual draws. The prospect of an increase to a £10m individual draw limit remains on the table, though – but so does cutting it to £2.5m, or leaving it as it is. Government is also looking at leaving the annual proceeds limit in place, or raising it only to £50m rather than £100m.

All of this only applies to large society lotteries, licensed with the GC. For small society lotteries registered with Local Authorities, the Government has no preferred view; instead, the Consultation suggests leaving matters as they stand (ticket sales of £20,000 per draw and £250,000 per year) or raising them to £30,000 or £40,000 and £400,000 or £500,000, respectively.

There is no doubt in my mind that this constitutes a pivotal point for the society lotteries sector and that what emerges as a result of this Consultation will shape its future for many, many years to come.

It is therefore essential that all in the sector and anyone with an interest in using lotteries (or raffles, which are the same thing in law) have their say before this Consultation closes at noon on 7 September. A link enabling you to do so is here:

https://dcms.eu.qualtrics.com/jfe/form/SV_6lieJGckYiFSrM9

We will, of course, report on the outcome in a future edition of our Newsletter.

The Gambling Commission (“GC”) has just released its “Raising Standards for Consumers” Enforcement Report 2017 – 2018, which includes a clear message from the new Chief Executive, Neil McArthur, as well as a number of exposes of anti-money laundering (“AML”) cases which have been brought by the GC.

I made it clear at our conference at the Hippodrome on 8 May 2018 that poor practice would not be tolerated and that the industry as a whole needed fully to ensure that its AML policies and procedures were fit for purpose.  There have been a number of review cases brought by GC between 2016 and 2018 and there is no doubt at all that there will be further cases brought by the GC, if the industry does not keep pace with AML requirements.

A failure to comply with the AML Regulations could in all likelihood lead to a licence review, significant penalties and potentially revocation of the operating licence.

The GC document includes sections on AML, customer interaction, self-exclusion, unfair terms and practices, marketing and advertising, together with its final section on illegal gambling.

Neil McArthur introduces the document and confirms that the aim of any enforcement work is to “raise standards” in the industry.  The fact that standards need to be raised should set a clear message for all to understand.  The GC is still finding many examples of leading operators who do not have the requisite AML policies and procedures in place and, even when the requisite policies and procedures are in place, they are often not implemented by staff.  In my experience, this is one of the key issues that the industry is now having to deal with.  It may be that an operating company has very good policies and procedures and it may be that technically those procedures have been written to comply with the AML Regulations.  However, if staff dealing with customers do not fully understand these policies and procedures and do not implement them, then the policies and procedures are not worth the paper they are written on.

Neil McArthur continues by confirming that the GC will seek to raise standards through targeted action (that drives a culture where operators act in a way that:

  • minimises the risk to the licensing objectives and reduces gambling-related harm;
  • puts the interests of consumers first by treating them fairly and communicating with them in a clear way that allows them to make properly informed decisions; and
  • is open and co-operative with the GC as the regulator.

The industry is urged to look at this document, to learn lessons from the examples set out in it and to collaborate to achieve best practice.

This is the first time that the GC has published a review of its enforcement work over the past year and the document focuses on enforcement work under the Gambling Act 2005 and does not cover the Gambling Commission Regulation of the National Lottery.

The message is very clear.  Licensees are on notice that a failure to adhere to the guidance in both this document and within the GC’s public decision notices may see the regulator bringing enforcement action more swiftly and with higher penalties, if the GC is of the view that lessons are not being learned or if the issue in question has been uncovered by the GC or another authority.

Similarly, operators can expect lesser penalties if they report the matter to the GC promptly, co-operate during the investigation and proactively look to rectify matters.

I would urge the industry to read this document and pay careful attention to it.

I have seen a recent increase in concerns over “bottomless brunches” or “bottomless prosecco” promotions at a number of licensed premises. This resulted in a recent case where the Police were threatening to prosecute an operator client of mine for breach of a mandatory condition. However, these were quality premises, offering food with the promotion, with no suggestion of any negative impact from what had become a popular attraction. The premises were well managed, the promotion was well supervised and there had been no reports of drunkenness as a result of the promotion. We entered into a long series of discussions with the Police who were very uncomfortable about the bottomless brunch. We helped the operator draft a guidance document for all staff to be trained on how to manage the promotion and finally the Police accepted that this was not an irresponsible promotion.

Where are we then with how irresponsible promotions are defined and should be avoided by operators? The principle of an irresponsible promotion was introduced into licensing legislation through the mandatory conditions attached to all premises licences which authorise the sale of alcohol.

The Licensing Act 2003 (Mandatory Licensing Conditions) Order 2010 (“the 2010 Order”) set out five new conditions that apply to all premises in England and Wales authorised to supply alcohol under a premises licence or club premises certificate. The first three of these conditions came into force on 6 April 2010. This included the condition dealing with irresponsible promotions.

The Home Office issued a specific Guidance document in 2014 which helps with understanding the reasoning behind these conditions and this can be found at the link below:

https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/350507/2014-08-29_MC_Guidance_v1_0.pdf

The relevant sections of the Guidance document state as follows:

The 2014 Order states that the responsible person must ensure that staff on relevant premises do not carry out, arrange or participate in any irresponsible promotion, as listed below, where that promotion is carried on for the purpose of encouraging the sale of alcohol on the premises.

Drinking games

This includes any game or activity that requires or encourages (or is designed to require or encourage) individuals to drink a quantity of alcohol within a time limit, or to drink as much as possible. This does not include “drinking up time”, shortly before the end of licensed hours.

The application of this prohibition is not subject to a judgement of risk, and so any game or activity that falls within it would be in breach of the condition.

Examples of this type of activity include drinking relay races and drinking challenges based on quantity.

Provision of alcohol free or for a fixed or discounted fee. This prohibits the provision of an unlimited or unspecified quantity of alcohol for free or for a fixed or discounted fee if there is a significant risk that such provision would undermine a licensing objective.

Rewards for consumption of alcohol

The new conditions ban the provision of free or discounted alcohol or any other thing as a prize to encourage or reward the consumption of alcohol over a period of 24 hours or less if there is a significant risk that such provision would undermine a licensing objective.

‘Significant risk’

The application of these prohibitions is subject to an assessment in any case about whether the activity in question would give rise to a significant risk of breaching one or more of the four licensing objectives:

  • The prevention of crime and disorder;
  • Public safety;
  • The prevention of public nuisance; and
  • The protection of children from harm.

Factors that may be considered when deciding if a promotion is irresponsible may include:

  • Type of promotion:

o How big is the discount?

o For how long does the discount apply?

  • Potential customers:

o Is there likely to be a significant increase in the number of customers?

o What is the profile of the customer base?

  • Type of premises:

o Is it a high-volume vertical drinking establishment or a community pub?

  • History of premises:

o Have previous promotions been handled responsibly?

o Has the licence been reviewed recently?

o Have sufficient security measures been taken for any potential increase in the number of customers?

If there is any doubt as to whether the promotion the operator is planning to run falls foul of this new mandatory condition, The Home Office strongly recommends that the operator discusses its proposals with its local licensing authority and/or police before running the promotion.

So the Guidance is pretty helpful in setting out what the Home Office believes are factors which will indicate whether the promotions are irresponsible. This is a judgement call. It does not mean that, per se, a bottomless brunch or prosecco hour is automatically irresponsible. The criteria above, if followed, can ensure there is not a “significant risk” to the licensing objectives being compromised and therefore the promotion would be legitimate and permissible.

The most recent version of the S182 Guidance also deals with the issue.

Para 10.39 states:

Under this condition, the “responsible person” (defined in the 2003 Act as the holder of a premises licence, designated premises supervisor, a person aged 18 or over who is authorised to allow the sale or supply of alcohol by an under 18 or a member or officer of a club present on the club premises who can oversee the supply of alcohol) should be able to demonstrate that they have ensured that staff do not carry out, arrange or participate in any irresponsible promotions. An irresponsible promotion is one that fits one of the descriptions below (or is substantially similar), is carried on for the purpose of encouraging the sale or supply of alcohol for consumption on the premises. The aim of the condition is to prohibit or restrict promotions which encourage people to drink more than they might ordinarily do and in a manner which undermines the licensing objectives.

Drinking games

10.40 Drinking games which require or encourage individuals to drink a quantity of alcohol within a time limit, or drink as much alcohol as possible within a time limit or otherwise, are prohibited. For example, this may include organised ‘drink downing’ competitions. This would not prevent the responsible person from requiring all drinks to be consumed or abandoned at, or before, the closing time of the premises. Nor does it necessarily prohibit ‘happy hours’ as long as these are not designed to encourage individuals to drink excessively or rapidly.

Large quantities of alcohol for free or a fixed price

10.41 Irresponsible promotions can include the provision of unlimited or unspecified quantities of alcohol free or for a fixed or discounted price, where there is a significant risk that such a promotion would undermine one or more of the licensing objectives. This includes alcohol provided to the public or to a group defined by a particular characteristic, for example, a promotion which offers women free drinks before a certain time or “all you can drink for £10”. Promotions can be designed with a particular group in mind (for example, over 65s). A common sense approach is encouraged, which may include specifying the quantity of alcohol included in it or not targeting a group which could become more vulnerable or present a greater risk of crime and disorder as a result of excessive alcohol consumption.

Prizes and rewards

10.42 The sale, supply or provision of free or discounted alcohol or any other item as a prize to encourage or reward the purchase and consumption of alcohol can be within the definition of an irresponsible promotion, where there is a significant risk that such a promotion would undermine one or more of the licensing objectives. This may include promotions under which free or discounted alcohol is offered as a part of the sale of alcohol, for example, “Buy one and get two free” and “Buy one cocktail and get a second cocktail for 25p”. This includes promotions which involve the provision of free or discounted alcohol within the same 24 hour period.

So the original Guidance and the most recent Statutory Guidance is particularly helpful. If properly managed and supervised, then these are nor irresponsible promotions. The key phrase from the Guidance is perhaps, “A common sense approach is encouraged, which may include specifying the quantity of alcohol included in it or not targeting a group which could become more vulnerable or present a greater risk of crime and disorder as a result of excessive alcohol consumption.”

So, think it through. Plan ahead. Advertise carefully. Have a training and supervision plan prepared. Make sure what you are doing does not pose a significant risk to the licensing objectives and everything should be fine. Should you encounter any difficulties as an operator or an enforcement agency, then do not hesitate to contact me to discuss the issues that have arisen.

Tracey Crouch’s announcement on 17 May regarding Fixed Odds Betting Terminals (“FOBTs”) will not have escaped your notice.

The Minister for Sport and Civil Society set out the Government’s proposed move to cut the maximum permitted stake on FOBTs (Category B2 machines) from £100 to £2. No definite date for the implementation of the change has been set, but it is expected to take effect within a year. The new limit can be introduced via secondary legislation, thus avoiding the need for the proposal to go through the protracted Parliamentary process which would be associated with amending the Gambling Act 2005 (“the Act”).

This is, without doubt, one of the greatest shake-ups for the gambling industry since the Act came into force in 2007, and it has left bookmakers examining which of their shops might cease to be profitable when stakes on FOBTs are slashed. Some operators estimate that as many as 40% of their shops will become loss-making as a result of the change, with “a proportion” being at risk of closure. There is talk of some 21,000 job losses, and of a reduction in the payments to support British horseracing of £290m, by 2020.

The move has also left the Treasury scratching its head as to how to cover the loss of revenue that will be felt between now and 2020. Machine Games Duty stands at 25% and estimates place the deficit at £1.1bn. The Government has said that it will increase Remote Gaming Duty (which is currently set at 15% of profits) to stop the gap, although the free-market think-tank, the Institute of Economic Affairs, has warned of “unintended consequences” of the reforms and predicted that taxpayers may have to make up the shortfall in Treasury income.

In reaching its decision, the Government pledged that it would “take a stand”. Culture Secretary, Matt Hancock, said: “When faced with the choice of halfway measures or doing everything we can to protect vulnerable people we have chosen to take a stand. These machines are a social blight.”

FOBTs currently enable players to gamble up to £100 every 20 seconds and, with 33,000 machines in betting shops and over 230,000 individual sessions in 2015-16 during which the player lost more than £1,000, they have commonly come to be referred to as the “crack cocaine of gambling”.

The Gambling Commission’s (“GC”) response to this FOBT announcement has been coloured by its formal advice to Government (provided under s26 of the Act), which was published on 19 March. The GC broadly recommended a reduction in maximum stakes (including those for Electronic Roulette) to £30 for games that have the potential for players to lose large amounts of money in a short space of time, with a reduction in slots stakes to £2.

The Government’s proposal therefore appears to go further than the GC’s suggestion. However, the GC also proposed other measures, such as limit-setting and tracked play across all machines. Much of the GC’s input has been accepted by Government, and this led the new GC Chief Executive, Neil McArthur, to say: “We’re pleased Government has supported a comprehensive package of measures to protect consumers, and that this includes a substantial stake cut. Whilst we welcome the reduced stake, that alone will not be enough to address the risks of harm that can come from all forms of gambling.”

So, in addition to the stake cut, Government is heavily engaging with the GC in improving player protection on Category B machines generally and, more importantly, online. This initiative specifically surrounds age verification, terms and conditions, identifying risks to players and customer interaction. In the absence of voluntary action, the Government has declared its intention, in collaboration with the GC, to force through legislation to ensure that operators comply.

Government also intends to crack down on gambling advertising and expects regulators, broadcasters and the industry to be compliant. A package will be rolled out this year, designed at protecting the most vulnerable, and will include a major responsible gambling advertising campaign.

Government has also commissioned a study to be carried out by Public Health England, to improve the available evidence on treatment for problem gambling – and it seems that the GC is likely to “strengthen” the current voluntary contributions system towards research into, education on, and treatment of problem gambling. I would not be surprised to see contributions soon becoming mandatory, and set as a percentage of turnover.

Finally, and this will be of interest to readers operating in the lotteries sector, the Government intends, as part of the next National Lottery competition, to assess whether the age limit for participation should be changed from 16 years old. One can only assume that the intention is to increase this to 18 years old. Whether this change will translate into the society lottery market remains to be seen.

We will, of course, keep a close eye on all developments and keep you informed in future editions of our Newsletter.

 

There are two certainties in life as a licensing lawyer. The first, enquiries for Temporary Event Notices for Christmas extensions are generally received on the 15 December. The second is the sun comes out in June and clients then enquire about using outside areas.

I find it particularly frustrating that a lot of operators do not give any forward planning in relation to using outside areas. We have had a significant number of enquiries from operators in the last few weeks relating to using outside areas as the weather has improved.

The process can be torturous, lengthy and needs forward planning. I was pleased to see that in the recent April 2018 version of the Section 182 Guidance document, issued by the Home Office, that the issue of outside areas has been covered, for the first time.

Beer gardens or other outdoor spaces

 8.35 Applicants will want to consider whether they might want to use a garden or other outdoor space as a location from which alcohol will be consumed. The sale of alcohol is to be treated as taking place where the alcohol is appropriated to the contract. In scenarios where drink orders are taken by a member of staff in the garden or outdoor space and the member of staff then collects the drinks from the licensed premises and returns to deliver them to the customer this would be treated as an off-sale and any conditions that relate to off-sales would apply.

8.36 In such cases it will be not necessary to include the garden or other outdoor space on the plan as part of the area covered by the premises licence. However, it will be necessary for the applicant to include the garden or other outdoor space on the plan as part of the area covered by the premises licence if the intention is to provide a service whereby drinks are available for sale and consumption directly from that area (i.e. the provision of on-sales). This would apply in the case of an outdoor bar or a service whereby a member of staff who is in the garden or outdoor space carries with them drinks that are available for sale (without the need for the staff member to return to the licensed premises to collect them).

8.37 If the beer garden or other outdoor area is to be used for the consumption of off-sales only, there is no requirement to show it on the plan of the premises, but the prescribed Revised Guidance issued under section 182 of the Licensing Act 2003 I 55 application form requires the applicant to provide a description of where the place is and its proximity to the premises.

This is a helpful starting point. We have had to argue with some Licensing Authorities on the issue of outside areas but the change in the introduction of paragraphs 8.35 to 8.37 clarifies the position.

For the avoidance of doubt:

  • The sale of alcohol is to be treated as taking place where the alcohol is appropriated to the contract;
  • If drink orders are taken by a member of staff in the garden or outdoor space and collects them from the licensed premises, this is an off-sale;
  • In these cases it is not necessary to include the garden or outdoor space in the licence plan; and
  • If there is an intention to have a service position where drinks are available for sale and consumption from that area then the space would need to be included on the plan as there would be a licensable activity.

That clarifies the position in relation to plans and what needs to be submitted with an application.

However, if premises are already licensed and the operator wishes to look at using an outside area there are a number of issues that need to be considered. These are:

  • Does the licence authorise the sale of alcohol for consumption off the premises? If not, a variation will need to take place and this will be a full variation (28 days’ notice period);
  • Are there any conditions on the premises licence dealing with how off-sales are to be allowed? It may well be that these would need to be varied by way of a full variation (28 days’ notice period);
  • Is the area that you intend to use for consumption in the ownership of the operator? If it is there would need to be a further application made; and
  • If the area isn’t within your demise and, instead, is on Local Authority highway land, there would need to be an application for a pavement licence (in some places called a tables and chairs licence).

Pavement licence/tables and chairs licence

This is where the process can slow down significantly. If you have an aspiration to use an outside area which is on Local Authority land then you need to be thinking of making your application well before the weather improves. Most Authorities now have particularly prescriptive application processes which can take a considerable amount of time (up to two months). Often, applications have to go before a Panel of the Local Authority. The application process will no doubt be prescriptive, in that it will ask for artists’ impressions of the area, showing where any provision of seating and screening will be situated. More importantly, there will be a requirement to provide proof of public liability insurance and ensure that the furniture/screening complies with any requirements that the Local Authority may impose.

It is at this stage that significant delays might arise in reaching agreement with the Local Authority and ensuring that all of their relevant policies are complied with.

Most Authorities have now cottoned on to how much they can charge for pavement licences and we have seen a significant increase in the cost of these licences in areas where the Local Authority know that they will be profitable.

I would urge all operators to consider consulting a licensing lawyer in good time to ensure that permissions are not delayed until the nights are drawing in.

I would be delighted to answer any specific questions on outside areas should you have any.

The maximum stake on fixed-odds betting terminals (FOBTs) will be reduced to £2 under new rules unveiled by the government this morning. Currently, people can bet up to £100 every 20 seconds on electronic casino games such as roulette. This change is focused on the impact it has on problem gamblers but it will have a dramatic effect on betting companies, and will reduce Government revenue from taxation by a significant amount too. The Gambling Commission recommended a medium ground of reducing the maximum stake to £30 and stated at the Woods Whur Gambling Conference that this was an evidence-based figure. However, the Government have ignored their experts and gone with the headline grabbing change.

Minister Tracey Crouch said reducing the stake to £2 “will reduce harm for the most vulnerable”. We will have to wait and see what impact this will actually have with problem gamblers/gambling and whether online gambling ends up being the winner for multi-platform operators.

High Street bookmakers have warned it could lead to thousands of betting shops closing. William Hill, which generates just over half its retail revenues from FOBTs, described the Government’s decision as “unprecedented” and warned that 900 of its shops could become loss-making, potentially leading to job losses. It said it’s full-year operating profit could fall by between £70million and £100million. Provision for this will have been made as the industry had expected this cut but hoped the Gambling Commission suggestion of £30 stake could save shops and jobs.

Tom Watson, Labour’s deputy leader and Shadow Secretary of State for Digital, Culture, Media and Sport, told the BBC’s Today programme: “The great tragedy of this is [that] for five years now pretty much everyone in Westminster, Whitehall and in the country has known that these machines have had a very detrimental effect in communities up and down the land. The bookmakers have chosen to take a defiant approach, trying to face down Parliament, really, with a very aggressive campaign.”

The Government’s consultation into gambling machines found consistently high rates of problem gamblers among players of FOBTs “and a high proportion of those seeking treatment for gambling addiction identify these machines as their main form of gambling”.

Ms Crouch said FOBTs were “an outlier in the world of high-street gambling because of the speed with which it is possible to lose large amounts of money” .She said the £2 limit would “substantially” reduce harm and protect the most vulnerable players. “Even cutting to £10 would leave problem gamblers, and those most vulnerable, exposed to losses that would cause them and their families significant harm.”

It will be very interesting to see how the betting industry reacts to these changes. FOBTs were originally introduced into betting shops before the Gambling Act 2005 was introduced. They successfully argued that these new machines were not bound by the stakes and prize limits of the time. They persuaded those who opposed them that they were not gaming machines but were a fixed bet due to the status of the determination of winners. A High Court challenge was fended off by a voluntary agreement as to the number allowed in each shop and a maximum stake and prize. This heightened status was preserved when they were categorised as B2 machines under the Gambling Act 2005.

The Betting Industry has proved itself to be innovative and prepared to fight for its position on the High Street. It will be interesting to be involved in the next stages of this story, which doesn’t seem to be over just yet.

To read the full review of gaming machines and social responsibility measures click on the link below.

http://www.gamblingcommission.gov.uk/news-action-and-statistics/news/2018/Government-review-of-gaming-machines-and-social-responsibility-measures-published.aspx

We would like to pass on our thanks to Simon Thomas for letting us use the auditorium in the Hippodrome Casino and also to our external speakers, Philip Kolvin QC, Ben Haden from the Gambling Commission and Kerry Simpkin from Westminster Council.

We had a fantastic mixed audience from all parts of the gambling industry – online, traditional land based betting and casino operators, bingo operators, the Lotteries sector – a broad spectrum of clients and also representatives of a number of licensing authorities.

Philip Kolvin opened up our conference and gave a fantastic presentation on risk.  A significant number of delegates commented during the break how thought-provoking this was. Philip was followed by Andy who dealt with review of recent cases and issues. There are some significant cases of note in Gambling Law as the Regulator has definitely sharpened its focus of dealing with problem operators.

James Thompson, the Head of our Regulatory team then looked at the significant issues of the sentencing guidelines changing on prosecutions for regulatory breaches, and also some very topical issues in relation to data protection and the changes in legislation. Big thanks to James who had to leave home in Newcastle at 3.30 in the morning so as to get to London to deliver his presentation.

Anna Mathias gave the audience her lotteries update which came with perfect timing, as she has just been appointed to the Board of the Lotteries Commission for Great Britain.  The lotteries operators in the audience found her update particularly interesting and pertinent to their sector.  We are very proud that she now sits on the Board of such an important and worthwhile organisation.

In the second half of the conference we had Ben Haden from the Gambling Commission who gave a very interesting insight into the national policy being promoted by the Gambling Commission in 2018. Some interesting changes of focus can be seen in his presentation as the direction of travel for the GC starts to change.

After Ben gave us the national picture, Kerry Simpkin highlighted the Gambling perspective from Westminster Council, explaining what their Licensing Authority expects to see in terms of risk assessment and how their new statement of licensing policy is going from 60 to 353 pages.

Andy and Anna brought the conference to a close with a compliance, regulation and challenges presentation.  This gave the audience a good understanding of some of the regulatory impacts that are challenging  and will further challenge the gambling sector.

We thoroughly enjoyed the day and in particular, the questions and issues raised by delegates in my wrap up session.

If you would like a copy of any of the materials used at the conference, please email sarah@woodswhur.co.uk, who will be happy to assist.

If there are any questions from those who attended the seminar or those who unfortunately could not attend, then Andy, Anna, James and myself would be delighted to deal with those direct enquiries.

Paddy Whur

As readers will recall from my previous articles, the Government has knocked back most of the changes which were recommended after the House of Lords’ review of the Licensing Act 2003.  However, the Government did suggest that a number of changes could be introduced via the section 182 Guidance which now seems to be reviewed annually by the Home Office. On close reading of the new Guidance, only a small number of the proposed changes has been incorporated in this revision, but they are important changes, nonetheless.

The first change in the revised section 182 Guidance document is that the Regulators’ Code under the Legislative and Regulatory Reform Act 2006 is included as a document for all parties to give consideration to.

The first new section in the guidance is at paragraph 8.3.8 – 8.40, headed “Entitlement to work in the UK”.  Three additional paragraphs have been added to the Guidance document, which give clear advice as to the evidence that needs to be adduced to satisfy Licensing Authorities that individuals applying for premises licences for the sale of alcohol or late night refreshment are entitled to work in the UK.

One area where we have had inconsistency across the country is what needs to happen with outdoor areas when applying for a new premises licence. Hopefully the new additional paragraphs below will now remove this inconsistency.

Beer gardens or other outdoor spaces

8.35 Applicants will want to consider whether they might want to use a garden or other outdoor space as a location from which alcohol will be consumed. The sale of alcohol is to be treated as taking place where the alcohol is appropriated to the contract. In scenarios where drink orders are taken by a member of staff in the garden or outdoor space and the member of staff then collects the drinks from the licensed premises and returns to deliver them to the customer this would be treated as an off-sale and any conditions that relate to off-sales would apply.

8.36 In such cases it will be not necessary to include the garden or other outdoor space on the plan as part of the area covered by the premises licence. However, it will be necessary for the applicant to include the garden or other outdoor space on the plan as part of the area covered by the premises licence if the intention is to provide a service whereby drinks are available for sale and consumption directly from that area (i.e. the provision of on-sales). This would apply in the case of an outdoor bar or a service whereby a member of staff who is in the garden or outdoor space carries with them drinks that are available for sale (without the need for the staff member to return to the licensed premises to collect them).

8.37 If the beer garden or other outdoor area is to be used for the consumption of off-sales only, there is no requirement to show it on the plan of the premises, but the prescribed application form requires the applicant to provide a description of where the place is and its proximity to the premises.

The first really significant change is at paragraph 9.12 of the Guidance.  In the previous version of the Guidance, issued in April 2017, the Police had retained their position as having heightened status in making representations under the crime and disorder licensing objective.

The heading “representations from Police” has now been incorporated into the section “the role of responsible authorities”.  This new paragraph 9.12 has now been re-written to read as follows:

Each responsible authority will be an expert in their respective field, and in some cases, it is likely that a particular responsible authority will be the licensing authority’s main source of advice in relation to a particular licensing objective.  For example, the Police have a key role in managing the night time economy and should have good working relationships with those operating in their local area.  The Police should usually therefore be the licensing authority’s main source of advice on matters relating to the promotion of the crime and disorder licensing objective.  However, any responsible authority under the 2003 Act may make representations with regard to any of the licensing objectives, if they have evidence to support such representations.  The Licensing Authority must therefore consider all relevant representations from responsible authorities carefully, even where the reason for a particular responsible authority’s interest or expertise in the promotion of a particular objective may not be immediately apparent.  However, it remains incumbent on all responsible authorities to ensure that their representations can withstand the scrutiny to which they would be subject at a hearing”.

This marks a significant departure from the previous position, whereby only the Police were given a heightened status in relation to their representations.

It appears from the rewording of paragraph 9.12 that representations made by the Police have been downgraded from the heightened position that they enjoyed previously, and that now all responsible authority representations fall to be considered in a similar light.

The next additional paragraph in the document is at paragraph 13.11 in the appeals section to the guidance.  This states:

It is important that licensing authorities also provide all parties who were party to the original hearing, but not involved directly in the appeal, with clear reasons for any subsequent decisions where appeals are settled out of court.  Local residents in particular, who have attended a hearing where the decision was subject to an appeal, are likely to expect the final determination to be made by a court”.

It is my experience that there has been a distinct lack of voluntary compliance in this regard, and it is interesting that this has now been set out in the section 182 Guidance.

We have been involved in many cases where appeals have been settled without the original objecting residents being involved in the process.  In all of my appeals where I have represented the London Borough of Newham, we have always looked at any compromised position in an inclusive manner with residential objectors, to see whether they agree to the compromised position being resolved by a consent order, thus avoiding the need for court time of an effective appeal.

There has been a considerable redrafting of the section of the Guidance dealing with cumulative impact polices.  It is worth reading this whole new section.  In particular, paragraphs 14.24 to 14.28 have seen significant change.  Paragraph 14.34 of the new Guidance replaces paragraph 14.29 and is more prescriptive in the guidance given in relation to the steps to be taken in publishing a cumulative impact assessment.

A new section has been introduced, entitled “reviewing the CIA”.  Paragraphs 14.35 to 14.38 detail the steps that a Licensing Authority should take when reviewing the cumulative impact policy applying to a particular area.  A number of changes have also been highlighted within the section “effect of cumulative impact assessments”.  This replaces the section “effect of special policies”.  The two sets of paragraphs need to be read side by side in order to understand the Guidance properly.

We were promised changes after the House of Lords’ review and a careful assessment of the current section 182 Guidance is advisable before making any applications in cumulative impact policy areas.

So, all in all, there have been fairly modest changes to the latest iteration of the section 182 Guidance document.  Nonetheless, some of these changes do have an impact on the licensing process and are worthy of careful attention. To view the full revised Guidance click on the link below, and feel free to email me to help with any specific enquiries:

https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/702660/Revised_guidance_issued_under_section_182_of_the_Licensing_Act_2003__April_2018_.pdf

In this article, Andy Woods looks at the new version of the Licence Conditions and Codes of Practice (“LCCP”) and, in particular, highlights some of the key changes.

In many ways the LCCP should be the heartbeat of any gambling business and should form the basis of policies and procedures implemented by all gambling operators.  The Gambling Commission (“GC”) defines the LCCP as setting out “the requirements you must meet in order to hold your operating licence and your personal licence.  It is a very important part of running your business…”

It is a general requirement of the LCCP that all operators keep themselves up to date with any changes to legislation and to the LCCP and it is extremely important that operators understand that the LCCP is a changing document and updates and that amendments are made regularly, to take into account developments and innovations in the industry and to set out the most effective way of promoting the licensing objectives, in particular, promoting social responsible gambling.

The LCCP is not a “one size fits all” document, as there are sector specific sections and, if at all possible, the GC will make it clear what it expects operators to achieve in certain policies and procedures but allows them to write their own policies and procedures to deal with its requirements.  What is relevant to a Mayfair Casino dealing with high stake customers may not be relevant to an operator who only trades one betting shop.  However, the general principles that both will have to abide by remain the same.

The latest LCCP came into effect on 4 April 2018 and there are particular changes relating to Society Lotteries and the regulatory data that is to be provided to the Gambling Commission.  These were the two matters that the Gambling Commission consulted on in 2017.  There have also been minor changes to the social responsibility code provisions 3.5.3 and 3.5.4 and an update to the reference for the online portal for information at 15.3.1.

  1. The requirement to report the number of Suspicious Activity Reports (“SARs”) on regulatory returns has been removed and the information on discounted relationships will be collected through the key events reporting mechanism (via the eService Portal on the GC website). This change to the LCCP requires discounted relationships to be reported alongside information on SARs as key events.
  2. Information about game faults which result in over- or under-payment to customers needs to be reported as a key event.
  3. The existing requirement to report group advertising to a new jurisdiction has been widened to include a new requirement to report where there has been sustained/meaningful generation of the 3%/10% threshold being passed for the wider group.
  4. The definition of “low frequency lottery” has been updated to include those lotteries offered by local authorities.
  5. A new social responsibility code provision has been added to require operators to publish the proportion of lottery proceeds returned to the purposes of the society or local authority.

I am sure that some of the above points will come up at our seminar at The Hippodrome Casino on 8 May 2018.  There are still a few places available and if you would like to come please contact sarah@woodswhur.co.uk.

If you have any questions in the meantime on the above, please do not hesitate to contact me.

This article looks at the Government’s decision to extend licensing hours to mark the wedding of Prince Harry and Meghan Markle on 19 May 2018 but notes that the extension only applies to the sale of alcohol.

Earlier this year, the Government consulted as to whether or not to extend licensing hours for the Royal Wedding of Prince Harry and Meghan Markle on 19 May 2018 and after the consultation period ended, the Government decided to make an Order to extend licensing hours on the following dates and times:

  • 11:00pm on Friday 18 May to 01:00am on Saturday 19 May
  • 11:00pm on Saturday 19 May to 01:00am on Sunday 20 May.

It is to be noted however, that the effect of this Order allows licensed premises to remain open until 01:00am for the sale of alcohol but it does not apply to the sale of hot food or provision of regulated entertainment.

Any restaurant, therefore, that wishes to stay open later and use the extended hours  may have to apply for a Temporary Event Notice if it wishes to sell hot food and similarly, advice will have to be taken as to whether any exemptions under the Live Music Act 2012 apply, or whether an application for a Temporary Event Notice is required for entertainment.

In announcing the decision, Amber Rudd said: “The Royal Wedding is a chance for communities across the Country to join together and celebrate this momentously happy occasion for our Royal Family and for our nation.  As shown by the support for the proposal to extend licensing hours, it is clear that the public back the idea of having more time to raise a glass to Prince Harry and Meghan Markle on a day of national celebration”.

The Home Secretary has special powers to allow licensing hours to be extended for a celebration period to mark an occasion of exceptional international, or local, significance and since the power was introduced in 2003, it has been used a number of times, including on the occasion ofthe Duke and Duchess of Cambridge’s wedding in 2011, the Queen’s Diamond Jubilee in July 2012 and the Queen’s 90th birthday celebrations in 2016.

If anyone requires advice as to whether or not a Temporary Event Notice is required on this occasion for the sale of hot food or provision of regulated entertainment, please contact me at andrew@woodswhur.co.uk.