I have acted for Authorities wanting conditions on premises licences precluding the sale of beers and ciders above 5% or 6%, operators who are happy to accept the condition and operators who are keen to fight the condition. All of these cases have concerned off sales premises licences and have been directed towards the impact that street drinkers have in a particular locality when they consume high ABV alcohol in the street and then cause antisocial behaviour and/or crime and disorder.
Are these valid conditions to attach to premises licences?
It is a much debated point. I have seen authorities and Magistrates’ Courts rule in different directions. Some imposing the conditions and others not, in my view this is consistent with the need to be case/premises specific and what we should expect to see.
Para 1.16 and Chapter 10 of the S182 Guidance are good starting points to look at this issue.
Licence conditions – general principles
1.16 Conditions on a premises licence or club premises certificate are important in setting the parameters within which premises can lawfully operate. The use of wording such as “must”, “shall” and “will” is encouraged.
- must be appropriate for the promotion of the licensing objectives;
- must be precise and enforceable;
- must be unambiguous and clear in what they intend to achieve;
- should not duplicate other statutory requirements or other duties or responsibilities placed on the employer by other legislation;
- must be tailored to the individual type, location and characteristics of the premises and events concerned;
- should not be standardised and may be unlawful when it cannot be demonstrated that they are appropriate for the promotion of the licensing objectives in an individual case;
- should not replicate offences set out in the 2003 Act or other legislation;
- should be proportionate, justifiable and be capable of being met;
- cannot seek to manage the behaviour of customers once they are beyond the direct management of the licence holder and their staff, but may impact on the behaviour of customers in the immediate vicinity of the premises or as they enter or leave; and
- should be written in a prescriptive format.
I have highlighted the relevant sections of this paragraph, if the condition is imposed in breach of this guidance/with lack of evidence for it being appropriate; the likelihood is it would be unlawful.
Chapter 10 then covers other areas which are relevant to whether this is a valid condition to attach to a premises licence and the following paragraphs are relevant and the following paragraph is most important:
10.10 The 2003 Act requires that licensing conditions should be tailored to the size, type, location and characteristics and activities taking place at the premises concerned. Conditions should be determined on a case-by-case basis and standardised conditions which ignore these individual aspects should be avoided. For example, conditions should not be used to implement a general policy in a given area such as the use of CCTV, polycarbonate drinking vessels or identity scanners where they would not be appropriate to the specific premises. Licensing authorities and other responsible authorities should be alive to the indirect costs that can arise because of conditions. These could be a deterrent to holding events that are valuable to the community or for the funding of good and important causes. Licensing authorities should, therefore, ensure that any conditions they impose are only those which are appropriate for the promotion of the licensing objectives.
So, my view has always been that we may see the condition on the premises licence for off sales in the following circumstances:
- Where the operator has offered this as a condition in their operating schedule, maybe because of discussions with the police and/or licensing officer prior to application.
- After a review the condition may be imposed if there is evidence to show that the sale of high ABV beers and ciders is causing an adverse impact on the licensing objectives in the immediate vicinity of the premises.
- The condition should not be imposed as a “standard condition” on all new licences in an area or the whole of the Licensing Authority area, there must be specific evidence for each premises licence as to why it is appropriate to attach this as a condition.
However, the picture is now a much bigger one as the on trade are fearful that this could grow into pubs bars and clubs.
SIBA, the Society of Independent Brewers, which represents over 820 British brewers, has thrown its weight behind a campaign calling for the European Commission to force the UK Competition and Markets Authority to act against “collective boycott schemes” run by licensing authorities, which prevent the sale of higher-strength beers and ciders. They estimated that around 95 authorities covering up to 18,000 licensed premises are running schemes of one kind or another. This certainly is not my view of the scale of the imposition of conditions of this nature, and certainly not so much concerning the on trade.
SIBA has written to the European Commission and encouraged its members to submit examples in support of its submission. SIBA is concerned that retailers who agree to participate in the schemes run a serious risk of infringing competition law by engaging in a coordinated boycott. While the schemes are typically aimed at low-price, high-strength beers and ciders and not ‘craft’ or ‘artisan’ beers; the Society is seriously concerned that this is not the case in reality and that consumers risk losing access to thousands of high quality crafted beers.
Mike Benner, Managing Director, said ‘Our members take great pride in the excellence and range of their beers. They make beers for everyday drinking, beers to accompany food, and beers for connoisseurs to savour and sip. They brew a huge range of different beers, both regularly and occasionally, and many of these are fabulous, complex brews of higher strength and great repute. They make beer, they sell beer, and they take the utmost pride in beer.’
‘As a responsible organisation we absolutely support proportionate, effective measures to reduce alcohol misuse, but we do not support any intervention which is not within the law. We have significant concerns about the proportionality and legality of these schemes. It is our understanding that licensed retailers who agree to participate in these schemes run a serious risk of infringing competition law by engaging in a coordinated boycott of certain products.’
‘It is essential that British beer drinkers are not unnecessarily and unreasonably denied access to the thousands of fantastic beers available across the country and the Commission should take action to ensure competition law is upheld.’
I would not be advising an Authority to seek to impose this as a condition on the premises licence, nor advise an operator to accept the condition, unless there was a clear risk that the licensing objectives were to be put at risk without the condition being attached.
We will continue to monitor the imposition of conditions of this nature and see if the issue becomes a live issue for the on trade.