This week has been a busy one for society lotteries, with the publication by the Gambling Commission (“GC”) of its finalised proposals for new Licence Conditions and Codes of Practice (“LCCP”) and a major debate in the House of Lords surrounding proceeds and prizes limits.

The GC consulted between 20 July and 30 September this year on introducing three amendments to the LCCP applying to society lotteries, centring around improving fairness and transparency for players. This is in line with its current stated priority of putting the consumer at the heart of everything operators, and the GC itself, do. This is also strongly reflected in its 3 year Strategy published in the autumn.

The proposed amendments were designed new requirements for so-called “umbrella”, or branded, lottery schemes to make plain to consumers precisely which society lottery they are signing up for, for the percentage of lottery proceeds applied directly to the good cause to be disclosed, and clearly to define for the first time each of “instant win”, “high frequency” and “low frequency” lotteries.

The GC received 27 responses to its Consultation, including 11 from charities and 11 from industry bodies. As a result of those responses it will introduce a new Social Responsibility Code provision (equivalent to a licence condition) requiring societies to disclose the percentage of lottery proceeds in the previous calendar year applied directly to the good cause – this will need to be done on the lottery page of their website, in their Annual Report or via “any other means appropriate to the size and scale of the organisation”. In addition it will introduce a new Social Responsibility Code provision to translate what has hitherto merely been contained in Guidance requiring operators promoting lotteries under a brand or “umbrella” to make it abundantly clear to players which particular society lottery they are being asked to sign up to.

The one proposed amendment that is not be pursued in full is the definition of the three categories of lottery. As a result of the Consultation the GC has reached the conclusion that defining “high frequency” and “instant win” lotteries will not achieve any additional clarity and hence the only amendment that it proposes to introduce to current social Responsibility Code provision (which currently defines “low frequency” lotteries as those where consecutive draws are at least two days apart) to make it clear that these include lotteries promoted by Local Authorities. The relevance of all of this, of course, is that “low frequency” lotteries are subject to less onerous requirements surrounding age verification and the GC’s Remote Technical Standards.

The other important event this week from society lotteries’ perspective was a major debate in the House of Lords on Tuesday surrounding an increase to proceeds and prizes limits, something which has been before Ministers for 5 years, which, as the Lords expressed, is far too long. This delay is the cause of considerable frustration and has led a significant number of my society lottery clients to seek my advice about obtaining multiple operating licences.

The problem is that, currently, society lotteries may only raise £10m in proceeds (aggregate ticket sales) per calendar year and £4m per single draw. Because the top prize is limited to £25,000 or, if greater, 10% of proceeds, this means that players of society lotteries can only stand to win £400,000 as an absolute maximum.

Those lobbying on behalf of the sector, particularly on behalf of the Lotteries Council and its members, would like to see the top prize increased to £1m, the annual proceeds limit raised to £100m and the single draw proceeds limit to £10m.

It was extremely heartening to read the Hansard transcript of the Lords debate where there was (almost) unanimous support for these reforms, together with a real appreciation of the work society lotteries do to fund good causes. They have raised over £38b for charity, the figure for 2011 of £100m rising to over £250m in the latest year for which records exist. The percentage of total proceeds applied directly to good causes rose from 43% to 43.6% last year. This is impressive when set against the statutory minimum of 20%.

As the Lords observed during the course of this debate, the total ticket sales last year in society lotteries last year of £586.66m amounts to less than 10% of the National Lottery ticket sales over the same period of £6.92b. There is no evidence to suggest that society lotteries pose any threat to the National Lottery – indeed, all the evidence points the other way – the two complement each other and there is certainly room for both of them.

As someone heavily involved in advising the society lottery sector and a passionate advocate of the good that they do in our communities, I am encouraged by the debate this week and fervently hope that this signals a possibility that these long-awaited reforms will be implemented, sooner rather than later.

I will of course keep you updated in further editions.

 

As I write, I have just finished at Court dealing with some problem premises, acting for the London Borough of Newham, and the process has been quite tortuous. The premises licence was reviewed by Newham’s Environmental Protection Team in February 2017, after a series of complaints from local residents. In addition, a noise abatement notice had been served under section 80 of the Environmental Protection Act. The abatement notice had been breached and, by the time the review was launched by the Local Authority, there had been in excess of 30 complaints of public nuisance at the premises. 47 residents made representations in support of the review, together with the Ward Councillor, and many attended the review hearing.

The premises licence holder was unable to give any good account of himself during the review hearing and the premises licence was revoked. The licensing sub-committee gave detailed reasons as to why they had come to the conclusion they had in revoking the licence.

The premises licence holder appealed that decision, which obviously “stayed” the revocation of the licence and allowed him to continue trading. Due to issues with listing and Court admin, the Appeal did not proceed to a re-hearing until 12 December 2017.

By the time we got to the Appeal there had been a further 60 complaints of public nuisance and 2 instances of statutory nuisance attributable to the premises. This led the Local Authority to seek my advice prior to the Appeal taking place on all of the powers given to the Local Authority under the Anti-Social Behaviour, Crime and Policing Act 2014. After having a detailed discussion and review of the evidence, the Authority determined to issue a closure notice under section 79 of that legislation.

As a result of the closure notice being served on the premises, an application for a closure order fell to be considered by a District Judge at Stratford Magistrates’ Court on the 20 November. I appeared on behalf of the London Borough of Newham and a closure order was issued for 3 months under section 80 of the legislation. The District Judge felt we had made our case that there had been:

  • a regular and continuing nuisance
  • 2 breaches of the abatement order
  • a warrant for seizure of music amplification equipment executed at the premises

This allowed for the premises to be secured and the operator prohibited from entering the premises, let alone operating from them.

At this stage, the land owner of the building evicted the tenant premises licence holder and further secured the property. We attended in front of District Judge McIvor at Stratford Magistrates’ Court on 12 December when the premises licence holder, notwithstanding being the subject of a closure order and banned from entering the premises until late February 2018, and also evicted from the premises by the land owner, sought to persuade the District Judge that the decision given by the Licensing Authority was wrong in that it was disproportionate and not appropriate to promote the licensing objectives.

After a day of evidence and submissions, which included local residents saying that they had been scared and had their lives blighted by the style of operation, the District Judge agreed with my submissions and dismissed the Appeal. She could find no fault in the decision-making process of the Licensing Sub-Committee at the original review hearing in February and said she understood why the Licensing Authority could have no faith in the operator of the premises. She thought that the situation had got worse since the revocation and the premises licence holder had shown total disregard for the licensing objectives and the neighbourhood.

This is a good example of the amount of work which had to be undertaken by the Licensing Authority and, in particular, by the Environmental Protection team. They had 94 complaints from 10 addresses, of which 19 complaints of nuisance arose from the premises operating outside the permission of the premises licence. The amount of resource used was significant but necessary to support the local residents and Ward Councillor who complained and who gave evidence at the review and the Appeal. The Local Authority were awarded costs in full for the Licensing Act Appeal, however the difficulty in circumstances like this is whether the company which holds the premises licence, and had the award of costs against it, will exist long enough to enable enforcement of that costs order.

It can be seen from this example that, whilst there are tools available for dealing with truly problem premises, it took nearly a year and significant resource to go down the review, appeal, noise abatement notice and closure order route in order for the premises to be finally closed and prevented from causing a nuisance to a wide section of the local community.

As the Festive Season approaches and all manner of services rearrange their routines over the Christmas and New Year period, this on some occasions can spell trouble for you, particularly in the area of waste management.

I am currently dealing with a number of investigations and prosecutions by Local Authorities of operators who, in the main, have just been too keen when putting waste out for collection.

Local Authority Officers, like Police Officers are perhaps always there when you don’t want them!

There have been a number of occasions where Local Authority Officers have spotted waste being put out too early for collection or left too long and this either results in hefty fixed penalty notice fines or prosecutions in the courts.

This can also result in the business in question receiving a Notice under the Environmental Protection Act, which formally stipulates when waste can be left out and how it is stored and managed at a business premises. These are particularly onerous and sometimes, unless checked carefully, are virtually impossible to comply with, depending on where you operate and who your waste carrier is.

Over the Festive Period, make sure all of your staff know when and where waste should be left out for collection and ensure that no third parties add to the waste if it is left at the kerbside or in a public place awaiting collection. Unfortunately, many operators are prosecuted due to events unknown to them, by someone else leaving their waste outside their premises and them “carrying the can” for it.

Waste management is such an easy thing to get right when you know and abide by the arrangements you have for your particular premises but it also is very easy to get it wrong, with some significant penalties and inconvenience when this happens.

Make sure during this Festive Season that everyone knows what they should and shouldn’t be doing, check whether your operators have told you of any revised collection times and reflect this in your procedures. If a collection is missed, take the waste back off the street or other point until you are sure it can be collected again within the timescales permitted.

As I say, it is so easy to get right but also so easy to get wrong. At £400 for a Fixed Penalty Notice and fines running into many thousands of pounds in the case a prosecution, it is something that you could well do without!

There is no doubt that 2017 has been an amazing year for Woods Whur in many ways. We have taken on 5 new members of staff who have all settled in very well and proved to be a great addition to the Firm, and a further solicitor (our seventh) will be joining us in March 2017. We have seen the business continue to grow, with major new clients and smaller independent clients instructing us and, by retaining our core values, we have continued to be extremely successful throughout the UK.

The admin team has been strengthened by the addition of Emma Holmes in January, Sarah Griffiths in May and Sara Price in November. Emma and Sarah deal with general administration matters whereas Sara has joined us to take over the Accounts Department. Sara has also brought a new twist to the rugby league banter as she would appear to be a committed Castleford fan / WAG. This should make for some interesting discussions on Monday mornings as we already have a great Hull rivalry with Paddy and Carole (Hull FC) competing with my team (the mighty Hull Kingston Rovers). We all have a certain amount of sympathy for Amy who is a big Bradford Bulls fan. Her team is not going through the best of times at the moment (I can sympathise with Amy!).

In May 2017, James Thompson joined us. James is a vastly experienced regulatory lawyer with a good following of clients and James joining us has extended the scope of the work that we can carry out for the leisure market. James is based in the North East and has been flat out since he has joined us and is a great addition to the Senior Lawyer team.

We were also joined in May by Vinnie Schumacher who, although qualified in New Zealand, is just completing his qualifications in the UK and we are all keeping our fingers crossed for January 2018 when Vinnie gets his exam results. Vinnie must be the only person who can join a firm based in Leeds and be of the opinion that it doesn’t rain much in Leeds. This is because, as Vinnie explained during his introductory talk, Vinnie comes from Wellington in New Zealand, where apparently it always rains.

In March 2018, Leigh Schelvis will join us to add further strength to our team.

We continue to advise clients up and down the UK and maintain a leading presence in London.  Anna Mathias continues to cement her position as one of the leading advisors to the Gambling Industry in the UK with a level of expertise in the Casino and lotteries areas which, without a doubt is unmatched by any other solicitor in the UK. It has been a great pleasure for Paddy and me to see Anna develop her client base and she was rewarded with the inaugural Poppy welsh terrier mug at our annual Christmas Party.

We also managed, during the end of year presentation, to find a picture of Carole’s desk without Carole actually sitting there. Carole has put in a phenomenal stint this year, shouldering much of the new business that we have brought in and working hours far greater than we could ever have expected. We all hope that with the new additions to the team and a new structure in place in 2018, Carole will be able to find a bit more time for the garden!

A big thanks to Carole goes from everybody in the Firm.

Paddy and I are often swapping messages as to exactly where we are in the UK. In the last week of November, Paddy was representing clients in Braintree, whilst I was in Leek. The following day, Paddy went to Cardiff and I went to Westminster where we were delighted to obtain a new licence for Novus Leisure on Regent Street. Zig-zagging up the country has been part of our lives for the past 25 years and long may it continue!

We have at all times throughout this growth, maintained our core values of providing the best service possible to clients, with down to earth and pro-active advice. We are always seen as part of the client’s team as opposed to external advisors, and if we advise against one particular course of action we will always look for other opportunities for our clients. We always advise the client with their interests at heart, whether or not this is what the client wants to hear, and we maintain strong relationships with the responsible authorities with straightforward and clear negotiations and discussions with them. If we agree a compromise, it will be implemented, and if there are issues that we need to deal with, then they will be dealt with.

We fully expect that 2018 will continue in the same way and one of the great things for Paddy and me is to see the individuals within the Firm develop their own strengths and abilities. I think 2018 and onwards will be an interesting time for Licensing in the UK. The Mayor of London has repeatedly stated his desire for London to be more of a 24/7 City in terms of its appeal to the leisure market, and yet this is completely against Westminster’s own policy and the cumulative impact areas which create the presumption that no more licences will be granted.

Other areas of London, such as South Bank, Southwark and Shoreditch have seen wonderfully innovative licensed premises open up and there are some within Westminster who will be looking at these developments and perhaps hoping that some of these developments can come into Westminster. That will be extremely difficult given the current policy and of course, this principle applies not just to Westminster but to other major cities with cumulative impact areas.   A great deal of my work is in Westminster and around the Leicester Square areas and we have seen a large number of late night clubs close down in the last 10 years, which have not been replaced by similar venues. I wonder if now is the time to look at the principle of cumulative impact/stress areas and have a rethink. This is not to say that it should be an open page for all new licences to be granted. The Licensing Act 2003 maintains the principle that all applications should promote the licensing objectives and even in areas in which there is no cumulative impact policy, applications can be refused if relevant negative evidence is brought to the attention of the Licensing Committee.

The lack of a cumulative impact area gives the Licensing Committee more discretion but does not in my view necessarily create a free for all. I have also long been of the view that, if cumulative impact areas were introduced in November 2005 due to the number of licensed premises in an area, then surely it is appropriate to now look at the number of licensed premises currently in place and to see how that compares to 2005. If the UK is to continue to be a major player in the European leisure market, then maybe it is time for a reassessment. How can these new concepts and ideas open up if there is a policy of no more licences except in exceptional circumstances?

I would like to wish everybody, on behalf of Woods Whur, a very happy Christmas and New Year and we hope that 2018 is a happy and successful time for everyone..

Since the introduction of the Immigration Act 2016 into the Licensing Act 2003, and the additional changes to the section 182 guidance document, the use of illegal workers in licensed premises has become a thorny issue.

We have now had considerable success in defending premises who have been caught with illegal workers. The first of these was the Red Lion Truck Stop on the M1 some 18 months ago.

More recently I was instructed earlier this year to look after the operator of two convenience stores near Braintree, both of which had the benefit of premises licences to sell alcohol. The premises licences had been reviewed in March 2017 and a different legal team represented the operator. Unfortunately they were revoked as a result of the review proceedings and the reasons for the revocation centred around the premises licence holder admitting that he had made mistakes in employing illegal workers at the premises.

The Sub-Committee, both prior to the hearing and during the hearing, had not received any documents to evidence that he had put new processes in place to prevent this from happening in the future. The licences were therefore revoked as they were not persuaded that robust procedures/systems had been or were about to be introduced to ensure that immigration and right to work checks would be carried out appropriately. They formed the view that the premises licence holder’s approach to compliance with legal requirements was at best limited, which in turn raised concerns about actions the premises licence holder may take in future to ensure promotion of the licensing objectives in respect of the prevention of crime and disorder.

I was instructed to take over representation of the premises licence holder’s interests shortly after the review proceedings had revoked the two premises licences.

We lodged a notice of appeal to the Magistrates’ Court, which of course stayed the decision to revoke and allowed the premises licence holder to continue trading.

During this period, we reached out to the Licensing Authority and asked if we could have a meeting to discuss where we were in regards to potential settlement of any appeal. Braintree District Council were amenable to meet me as I had not been instructed in the review proceedings. At this meeting I highlighted the deficiencies that I had seen in the preparation and delivery of the defence of the review proceedings and how I would be looking to change this for any appeal. Rather than going down the root of a full contested appeal hearing, I asked them whether in the light of the new evidence that I could produce they would be amenable to settling the appeal by way of the addition of conditions to the premises licence. Having considered their position, they felt that the members should make a decision rather than the officers and therefore the appeal at the Magistrates’ Court was settled with the appeals being remitted back to the Licensing Authority for a fresh determination.

We disclosed additional evidence on the Authority and Essex Police, having instructed People Force International to conduct an audit of the procedures in place for right to work checks for all of their staff at the two premises. We offered the Authority the following conditions to be attached to the premises licence:-

  1. The premises licence holder will operate a full HR management system where all relevant documents are stored for each individual member of staff.
  2. All copies of relevant documents for members of staff will be retained for a period of 24 months post termination of employment and will be made available to Police, Immigration or Licensing Officers on request.
  3. The premises licence holder will work with People Force International (or any other similar agency) to carry out checks on the Home Office website and verify identification documents such as right to work documents to ensure that all new members of staff can be legally employed.
  4. No new member of staff will be able to work at the premises unless they have provided satisfactory proof of identification and right to work.

Essex Police determined not to accept these conditions and attempted to rely on the case of East Lindsey District Council v Abu Hanif (t/a Zara’s Restaurant and Takeaway) [2016] EWHC 1265 (Admin).

We attended the remitted review hearings for the two premises licences before Braintree District Council Licensing Sub-Committee on the 28 November 2017. The Police were represented by Counsel and also brought a senior immigration officer in their request to maintain the revocation of the two licences.

I was delighted that I was able to persuade the Licensing Sub-Committee to allow for the reinstatement of the licences by way of the additional conditions being attached to the premises licences and by way of one further condition which was offered during the hearing in that an unannounced periodical audit would take place whereby a consultant would come in to check that all of the relevant documents were being maintained.

A critical point of difference between the two sets of review proceedings was the introduction of People Force International, who I have worked with successfully on a number of occasions. They provided an HR package after an audit and ensured that all of the correct right to work documents were retained for each members of staff. Some of these documents run out of time and therefore it is clearly critical that a forward diary entry is put in place to ensure that the continued right to work documents are available.

One of my arguments in the case, which the Licensing Sub-Committee accepted, was that the facts of the East Lindsey District Council case were significantly different to mine. In my case we had a member of staff who had proved to us his ability to be legally employed through right to work documents. These had lapsed but his wife was applying for full residency status in the UK and he had produced letters to my client from his then solicitors explaining that this gave him a right to continue his employment. It was a moot point whether this was the case but on a belt and braces approach we should have had up to date verification of his ability to work rather than relying on a letter from a firm of solicitors. Interestingly, my client did not receive a civil penalty for the employment of this person and by the time we got to this week’s hearing, his wife had won his appeal and he was legally in the UK. My client, believing that he was legally employable, had paid for him to go on the BII course to get his qualification to become a personal licence holder and was actually the Designated Premises Supervisor for both venues. He was on the payroll and was being paid net of tax with PAYE being fully complied with and the revenue receiving the correct amount. This was all audited and he was paid a good living wage. In addition, he was renting accommodation from my client. Certainly nothing was been hidden about his employment. The case of East Lindsey District Council was strikingly different in that the premises licence holder in that case had:

  • Employed the illegal worker without paperwork showing a right to work in the United Kingdom.
  • Paid him cash in hand.
  • Paid less than the minimum wage.
  • Did not keep or maintain PAYE records.
  • Reported to deduct tax from the employee.
  • Did not account to HMRC for the tax deducted but kept it himself.

In that case there were serious criminal offences being committed by the premises licence holder and the Licensing Sub-Committee in Braintree found that the case law provided significant points of difference from my client’s position. In addition, they were impressed with the evidence given by People Force International’s representative about the way the systems would be robust and audited moving forward. The Police, in their attempts for revocation jumped straight to paragraphs in the section 182 guidance that deal with the “reviews arising in connection with crime” suggesting in this case that as the premises licence holder had employed a person who was disqualified from work by reason of their immigration status, the jump should be straight to revocation.

However, the Committee was impressed with our argument citing paragraph 11.20 of the guidance which states “in deciding which of these powers to invoke, it is expected that Licensing Authorities should so far as possible seek to establish the cause or causes of the concerns that the representations identifies. The remedial action taken should generally be directed at the causes and should always be no more than appropriate and proportionate response to address the causes of concerns that instigated the review.”

The other section of the guidance document which is of critical importance in cases such as this, paragraph 2.6, was introduced in the April 2017 version of the guidance and states “the prevention of crime includes the prevention of immigration crime including the prevention of illegal working in licensed premises. Licensing Authorities should work with Home Office Immigration Enforcement, as well as the Police, in respect of these matters. Licence conditions are considered appropriate for the prevention of illegal working in licensed premises might include requiring a premises licence holder to undertake right to work checks on all staff employed at the licensed premises or requiring that a copy of any document checked as part of the right to work check are retained at the licensed premises.”

I was very impressed with the way that Braintree District Council approached this case and that the Licensing Sub-Committee grasped the points of difference between our instant cases and that of the East Lindsey decision. They determined that it was appropriate and proportionate to promote the licensing objectives to impose additional conditions on the licences which allows the premises to continue to trade. I should also point out that the two premises were significantly invested in. The quality of the fit out and interior of the two shops was exceptional. The CCTV system was all encompassing digital and covered internal and external positions. Importantly, the Committee commented on the fact that there had been no suggestion of any other crime and disorder issues at the premises, nor any intelligence to suggest that illegal workers had been employed since the original raid of the premises in November 2016.

The legal battle between the Scotch Whisky Association (“SWA”) and the Scottish Government over minimum unit pricing (“MUP”) of alcohol has been rumbling on for over five years, but the Supreme Court finally “scotched” the SWA challenge on Wednesday, the case having already made its way through the highest court in Scotland and the European Court of Justice.

Following a hearing in July, the seven Supreme Court Justices unanimously dismissed the SWA challenge to the Alcohol (Minimum Pricing) (Scotland) Act 2012 and the resultant draft Order proposing a minimum unit price of 50 pence, neither of which have been implemented pending the outcome of this case. In so doing they rejected the SWA’s argument that this minimum pricing proposal is disproportionate and a restraint of trade, therefore illegal under European law.

In what has been described by Edinburgh minsters as an “historic and far-reaching judgment”, the Court decided that minimum pricing “is a proportionate means of achieving a legitimate aim”. The SWA had argued that there were better ways of achieving that aim, but the Court disagreed.

According to the Institute for Alcohol Studies, a small number of countries, including Russia and Canada, and some US States, have some form of minimum pricing, but nevertheless this ruling paves the way for Scotland to be the first nation in the world to introduce MUP.

Needless to say, the decision was welcomed by Scottish ministers. Health Secretary Shona Robison said it was “ a landmark moment in our ambition to turn around Scotland’s troubled relationship with alcohol.” She referred to statistics that demonstrate that, in the period since the legislation was originally passed, the rates of alcohol-related deaths in Scotland have increased. She vowed that the Scottish Government would now press on with implementation of the policy “as quickly as possible” and said that she will shortly make a statement to Holyrood on next steps, including the timetable for introducing the new measure.

It’s estimated that alcohol misuse in Scotland results in 670 hospital admissions and 24 deaths a week, death rates being one and a half times what they were in the early 1980s. This is borne out by the 2016 figure for alcohol-related deaths of 1,265, 10% up on the previous year. Alcohol misuse is also calculated as costing Scotland £3.6 billion a year, which equates to a surprisingly high figure of £900 for every adult. Figures for 2016 show that 17% more alcohol was sold per adult in Scotland than in England and Wales.

Of course, to quote Mark Twain, “there are three kinds of lies: lies, damned lies and statistics” and figures can always be called upon in support of a particular narrative. The questions that spring to mind are: what will the minimum unit price of 50p achieve, and what will it mean in practice?

Research conducted by Sheffield University calculates that the 50 pence minimum unit price will result in 121 fewer deaths a year after 20 years. At first sight, this appears a small achievement after such a prolonged period of time, but the same study points to a drop in hospital admissions related to alcohol by over 2,000 per year in two decades’ time.

As far as the impacts on the trade are concerned, the measure seems much more likely to affect off-licences and supermarkets than the on-trade. Similarly, it will have a widely differing impact on various drinks types and products, depending on the quantities in which they are sold and, obviously, their alcohol by volume (“ABV”). By way of example, a three litre bottle of super-strength cider, at an ABV of 7.5% and containing 22.5 units of alcohol, will leap in price from £3.99 to £11.25, on the basis of research conducted by the Dundee Evening Telegraph. By contrast, a bottle of Cabernet Sauvignon red wine would only see a modest price increase – typically from £4.39 in a supermarket to £4.90 – once MUP comes in. More expensive wines and premium spirits, which are already priced above the minimum requirement per unit, will be unaffected. The price of mainstream lager brands in small amounts (typically, 4 packs) will remain broadly the same but purchasers in bulk (of packs of 12, say) will find themselves paying up to 20% more.

What of the whisky trade, who were the challengers to this proposal, bringing about the 5 year delay in it getting the green light? Calculations suggest that consumers will be unable to get their hands on a bottle for less than £14, which is markedly higher than the price currently offered on some brands by some supermarket promotions.

MUP should not trouble the on-trade, where drinks are currently priced above the minimum threshold anyway. Nevertheless, it will be interesting to see whether England and Wales follow the Scottish example. A UK Government spokeswoman said that the decision of the Supreme Court had been noted and that “minimum pricing will continue to remain under review pending the impact of its implementation in Scotland”. It is clear that the UK administration as a whole plans to continue to seek to control what it perceives as excessive alcohol consumption via taxation and pricing.

In the meantime, the SWA has said that it accepts the ruling of the Supreme Court, and that it will continue to work with the Scottish Government and others to promote responsible drinking and prevent alcohol-related harm, while at the same time looking “to the Scottish and UK Governments to support the [whisky] industry against the negative effects of trade barriers being raised in overseas markets that discriminate against Scottish whisky as a consequence of minimum pricing, and to argue for fair competition on our behalf”.

We will of course update you if we get any hint of the adoption of a minimum unit pricing policy elsewhere in the UK.

Colin Manchester gives a preview of the 4th edition of Manchester on Alcohol and Entertainment Licensing Law, which is currently with the printers and is due for publication soon.

This preview is in a Frequently Asked Questions format, even though some of the questions may not be frequently asked and some may not be asked at all!

When will the book be published?

This is a frequently asked question and it is one to which it is hard to give a definitive answer, as matters are largely outside our control after the manuscript has been completed. But we are at the last stage now of having the book printed, so hopefully it will be available sometime around the middle of next month.

What’s new in the book?

Quite a lot and the book should cover everything of importance that has occurred since the last edition in 2012 and the cut-off date for this edition, which is 1 May 2017. There have been many legislative changes over this period – secondary legislation making provision on early morning alcohol restriction orders, a late night levy, regulated entertainment, mandatory conditions and late night refreshment, coupled with changes in primary legislation made by the Anti-Social Behaviour, Crime Policing Act 2014, the Deregulation Act 2015, the Immigration Act 2016 and the Policing and Crime Act 2017. A fair amount of additional text has been needed to explain the changes. So, for example, the closure powers in ss 161-166 of the Licensing Act 2003 were dealt with in the 3rd edition in 12 pages (pp 650-661) but these have now been repealed and replaced by the closure powers in the Anti-Social Behaviour, Crime Policing Act 2014. In the 4th edition it has taken 30 pages to cover these new closure powers (pp 752-781). Even when there has been deregulation, as there has been for regulated entertainment, there is no saving of text as it is necessary to explain when deregulation applies and when it does not. So several extra pages are needed to explain the additional conditions for entertainment to constitute regulated entertainment and exemptions continue to grow exponentially. Covering exemptions required only a modest 11 pages when the book was first published (2005), this had increased to 16 pages (pp 197-213) by the 3rd edition and in the 4th edition it is now 33 pages (pp 219-252)!

So, the book has got even fatter and we are likely to get a hernia carrying it round?

No. We have taken steps to avoid this. The book, at 976 pages, will be slimmer than the 3rd edition which is 1183 pages, so it will be easier to carry around. There is no reduction in paper thickness or in font/text size, which remain the same. This has been achieved by publishing the book so that it includes the Prelims (Table of Cases etc) at the beginning, the text of the 12 chapters and the Index at the end, as usual, but with no appendices. The appendices, which are 400 pages, are instead published separately as a companion volume. The rationale for this is explained in the book’s Preface as follows:

There has been one significant change to the format of the book, which is that the appendices have been published in a separately bound volume from the text of the book. This is due to the increased length of the book (over 200 extra pages) compared to the previous edition. This makes the book more portable and gives users the option of either having with them the appendices as a hard copy volume or accessing the material in the appendices electronically, since virtually all of this is available on the internet. In order to make it easier to access the appendices electronically, it will be possible to download them from the Woods Whur website.

Binding the book with appendices as a single volume would be on the margin of what is possible. It would require wafer thin paper (think Paterson …) and a spine thickness within half a millimetre of the 57mm maximum. The thicker the spine, the more likely it is to come apart at the binding after heavy use … as we know only too well.

The Book and the Appendices will be numbered separately. Thus the Book will be numbered from page 1 to page 976 and the Appendices will be numbered from page 1 to page 400. The Contents page in the Prelims in the Book will include both the Book’s Contents and the Appendices’ Contents and their page numbers. There will also be a separate page at the beginning of the Appendices which lists the various Appendices and their page numbers.

Have the Appendices changed much?

A couple have been deleted. One is Appendix 12 DCMS Guidance on Police Powers to Close Premises under the Licensing Act 2003, following the repeal of ss 161-166 of the 2003 Act, and the other is Appendix 13 DCMS Guidance on Expedited/Summary Licence Reviews, as this has now been incorporated into the s 182 Guidance. These two appendices have been replaced by the Licensing Act 2003 (Mandatory Licence Conditions) Order 2014 and the Licensing Act 2003 (Late Night Refreshment) Regulations 2015, so the number of appendices remains unchanged at 14. Three schedules (Schedules 6-8) in the 2003 Act in Appendix 1, which are largely of historical significance have also been excluded, in the main because they take up a disproportionate amount of space relative to their importance (or, rather, their lack of importance).

What are the covers of the Book and the Appendices like?

The Book has the same style of cover as the 3rd edition but with a different main colour. Instead of blue and gold, it is maroon and gold or, if you prefer, claret and gold. It is more likely to be described as claret and gold if you are a red wine drinker and/or a supporter of Huddersfield’s rugby league team (I declare an interest here on both counts) and claret seems an entirely appropriate colour to have for a book which includes the licensing of alcohol! The Appendices has the same style of cover as the Book and has 4th Edition Appendices on both the front cover and the spine, whereas the Book just has 4th Edition on the front cover and spine. So, they come as a matching pair.

Might I pick up the wrong one, as they are both the same colour, as I rush out of the office?

I hope not. The spine of the Appendices is much slimmer than the Book (which is almost two and half times thicker) and the word “Appendices” is written on both the front cover and on the spine of the Appendices. If you do find that you keep picking up the wrong one, perhaps a visit to Specsavers would be in order …

Should I buy a copy?

Yes, definitely.

I have now had the opportunity to skim read the government’s response to the detailed call for evidence taken by the House of Lords Select Committee on the Licensing Act 2003.

Whilst the Government accepts that some changes need to be made, they do not accept the Committee’s report findings that a “radical comprehensive overhaul of the Licensing Act is needed.”

The Government has also stressed that it does not intend to hastily instigate an overhaul of the legislation but will make some changes to the statutory guidance under section 182 of the Act and look at the provision of good quality training to licensing committee members.

The Government rejects some of the recommendations outright and also comments that there are several recommendations which are a “spur to further work, particularly in respect of how the system of licensing can be made to function more effectively and the lessons that can be learned from the planning system.”

A few of the standout recommendations and the government response are as follows:

Conclusion/recommendation 7:

We believe that the debate and the consultation on transferring the functions of licensing committees and sub-committees to the planning committees must start now, and the pilots must follow soon as possible.

Response

The basic structures of the planning and licensing system are similar and our focus will be on improving how the two regimes communicate and interact at local level. There is good practice in many local areas that we will disseminate and build on, for example whether there is additional support that local residents could be given to frame and present their concerns about a licensing application to the Committee effectively. Local planning authority is already listed in the Act as a responsible authority and therefore has a statutory role in considering applications for the grant, variation or review of a premises licence.

Recommendation 8:

Licensing authorities should publicise the reasons which have led them to settle an appeal, and should hesitate to compromise if they are effectively reserving an earlier decision which residents and others intervening may have thought they could rely on.

Response

We agree that there should be transparency around the decisions made on the licensing appeals, in particular for local residents who may have attended a hearing and expect the decision to be implemented. This is anticipated to be picked up in the section 182 guidance.

Recommendation 9:

We recommend that appeals from licensing authorities should no longer go to Magistrates’ Courts, but should lay to the planning inspectorate, following the same course as appeals from planning committees.

Response

The Government notes that Committee’s comments on the appeals process. We do not intend to change the system so that licensing appeals no longer go to the Magistrates’ Courts but lay to the planning inspectorates.

Recommendation 18:

We recommend that notice of an application should not need to be given by an advertisement in a local paper. Notices should be given predominantly by online notification systems run by the Local Authority.

Response

The Government considered that the removal of the requirement to advertise details in a newspaper would be a step backwards from the efforts the government has made to empower local people and local areas in tackling local alcohol related problems.

Recommendation 32:

We recommend that licensing authorities be given the power to object Temporary Event Notices, alongside police and environmental health officers. The Government dismissed this but suggested that section 182 guidance should recommend that licensing authorities consider how to bring TEN’s to the attention of residents who may be particularly effected, for example if there have been previous complaints about premises.

Response

Feedback from licensing authorities suggests that having the power to object to TENs would not be practical within the statutory time period allowed, due to the high volumes received and the additional scrutiny that would be required.

Recommendation 39:

We recommend that development and implementation of a comprehensive police licensing officer training programme, designed by the College of Policing. Whilst we accept that such an undertaking will require additional funds, these costs will likely be more than offset if the quality of police licensing decisions is improved, thereby reducing the number of appeals and other corrective procedures.

Response

The Government agrees that comprehensive training should be available to all officers required to undertake licensing duties.

Recommendation 42:

We support the Government’s current move to transfer cumulative impact policies from the section 182 guidance and to place them on a statutory footing as this will introduce much needed transparency and consistency in this area.

Response

Whilst this was put on hold during the consultation process, the changes will continue to be introduced by the Police & Crime Act 2017 which will amend the Licensing Act 2003 to place CIP’s on a statutory footing.

Recommendation 49:

We believe it is appropriate that no Early Morning Restriction Orders have been introduced and we recommend that, in due course, the provisions on EMROs should be repealed.

Response

Although no licensing authorities have implemented an EMRO, we believe it is important to keep this tool available should any licensing authority wish to consider whether it is suitable for use in their area.

It is interesting to note from the report that a vast majority of the most contentious recommendations are not to be pursued or at the very oust introduced into the section 182 guidance document rather than primary legislation.

The full report can be found at the following link and we will of course update as we see further progress on this report:

https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/657231/CCS207_CCS1017254842-1_Cm_9471_Govt_Response_Licensing_Act_PRINT_3_.pdf

The Gambling Commission has given clear guidance about local risk assessments. They say “premises licence holders in your area must conduct a local risk assessment for each of their current premises. This is a social responsibility code which helps them demonstrate how they aim to address the local risks to the licensing objectives”.

The Gambling Commission, in advising the Licensing Authority, goes on to stress that this applies to all categories of gambling operations requiring premises licences and highlights that operators are required to conduct and update a risk assessment when applying for a new premises licence, applying for a variation of a premises licence and when there are changes in the local environment or to the premises warranting a fresh risk assessment to be conducted.

It is my view that Licensing Authorities are not taking obligations in this area particularly seriously and that operators’ risk assessments currently tend to be generic rather than specific in their drafting. I am not convinced that Licensing Authorities or operators are giving this the attention to detail the Gambling Commission expects.

The Gambling Commission has stressed that there is power for the Licensing Authority to challenge a risk assessment, if it feels that there is evidence that local risks have not been taken into consideration.

The requirements relating to local risk assessments should be set out in clear detail in a Licensing Authority Statement of Gambling Principles. A good example of this is Liverpool’s Statement, which says:

A.4.1      The City Council is entitled to request such information from operators as it requires to make effective licensing decisions. Whilst the 2005 Act requires that an application must be accompanied by a minimum level of information, the City Council agrees with the Gambling Commission’s view that this does not preclude reasonable requests by licensing authorities for additional information to satisfy themselves that the licensing decision is reasonably consistent with the licensing objectives and the Commission’s code. That information may include, for example, a suitable business plan or the operator’s own assessment of risk to the licensing objectives locally.

A.4.2      The City Council welcomes the implementation from 6 April 2016 of the Social Responsibility Code provision 10.1.1 (which must be followed and has the force of a licence condition) which will require licensees to assess the local risks to the licensing objectives posed by the provision of gambling facilities at each of their premises, and have policies, procedures and control measures to mitigate those risks. In undertaking their risk assessments, they must take into account relevant matters identified in the licensing authority’s policy statement.

A.4.3      Licensees will be required to undertake these local risk assessments when applying for a new Premises Licence.

At paragraph A.4.4 of its Statement, Liverpool go on to quote Ordinary Code Provision 10.1.2., which encourages licensees to share their risk assessments with Licensing Authorities.

We are now seeing that similar policies are being incorporated into more Statements of Gambling Principles, as they are being revisited and revised.

However, we are also finding that a significant number of operators (particularly when operating from multiple sites) are not taking the site-specific basis for these risk assessments seriously enough.

The Gambling Commission Guidance states that these risk assessments should be “structured in a manner that offers sufficient assurance that the premises has suitable controls and procedures in place. These controls should reflect the level of risk within the particular area which will be determined by local circumstances.”

Risk assessments should therefore take into account the risks presented by the local landscape. For example, if premises are a near school, then the operator must explain how it will mitigate the risk of underage gambling.

The Gambling Commission’s advice also states that operators should have available copies of these risk assessments on each individual premises.

I think that we will see this become a key feature in Licensing Authority policies moving forward, and operators will be expected to create bespoke risk assessments for each premises, rather than a generic risk assessment which serves all of their premises, many having different local circumstances. It is clear from the Gambling Commission’s advice that the purpose of these risk assessments is to be particularly local and bespoke, and to deal with any issues arising around the individual locality of the premises, rather than being of a generic nature.

We are more than happy to look at operators’ risk assessments and to see whether, in the circumstances, they are fit for purpose when applying for any new premises licence, applying for a variation to a premises licence, or where there has been, or is proposed, any material change in the local area or in the premises’ operation.

We should all soon know the result of the long-awaited review of FOBTs, which is being carried out by the Government and which is expected to be announced very shortly.

The outcome of the review has already been delayed, allegedly following an argument between the Treasury and the Government Department responsible for the gambling industry over regulation of the machines. The Guardian also reported on 30 June 2017 that MPs in the Democratic Unionist party are in favour of cutting the stake from £100 to as low as £2. In the same article, Tracey Crouch MP, the Conservative Minister responsible for the review, confirmed that gambling advertising would be looked at as well, and that the results of the review would be not “kicked in to the long grass”.

The importance of this review cannot be understated, both for those who are looking for a significant cut to the maximum stake, and for those in the industry who are opposing any draconian measure and who hotly dispute allegations made by the anti-gambling lobby. Even Ian Rankin’s latest Rebus thriller “Rather be the Devil” has scenes in which detectives are looking into betting shops and in particular fixed odds betting terminals. “Plenty of jaunty blips and beeps and colourful lights. Not just high-tech one-armed bandits, but versions of blackjack and roulette too…”; “…a quid gone in 15 seconds”. The Detective Inspector visiting the betting office even enquires with the cashier as to whether or not he can still get a bet on horses in these premises.

The Guardian’s article reports that there are 34,388 FOBT machines in the country, which contribute around £4 million in taxes every year. The Treasury therefore must be concerned at the impact that any review may have on the amount of tax it takes from the gambling industry. Meanwhile, on the other side of the argument, Jim Shannon, MP for Strangford, has made clear his distaste for FOBT machines and accuses bookmakers of seeking to “protect their huge profit made at the expense of the vulnerable”.  

The book-making industry led by the Association of British Bookmakers has constantly urged any review of FOBT machines to base its decision on evidence and fact, instead of on scare-mongering led by the anti-gambling lobby. The Association of British Bookmakers has itself been accused of scare-mongering by arguing that a significant curb to FOBT stakes could lead to a significant number of shops closing, 20,000 jobs being lost, and the Treasury deprived of millions of pounds in taxes. It is easy to find numerous articles written on this subject, although many articles often drift into a wider moral discussion on gambling and, in particular, on online gambling and advertising.

The Campaign for Fairer Gambling has argued against FOBTs for many years and has often referred to these machines as “the crack cocaine of gambling”. Mr Zarb – Cousin of the Campaign has said: “In the early days when I used to do local radio interviews about my addiction, the radio host would say something like, “These are just fruit machines” and I would say “Well actually, no, these have been described as the crack cocaine of gambling””.

Whatever the outcome of the review, this is unlikely to be the end of the story. The bookmaking industry appears to accept that there will be some reduction in stakes, but it is unlikely that the reduction will go as far as the anti-gambling groups wish. So this debate is likely to go on for some time. It is to be hoped that the outcome of the review can be based on evidence submitted to it and not merely on speculation. It is without a doubt one of the most important issues that has surrounded the industry and its customers for many years.