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The new Fundraising Regulator will commence its work in regulating charity campaigns this month.

The precise date is yet to be confirmed, but when it is, the Regulator will take over complaints about charities’ fundraising tactics from the Fundraising Standards Board (FRSB). It will also take control of the Code of Fundraising Practice, currently administered by the Institute of Fundraising (IoF), and the Fundraising Rule Books, which at the moment are the responsibility of the Public Fundraising Regulatory Association (PFRA); those two bodies are also due to merge this summer.

Unsurprisingly, charities are keeping an eye on these changes, and there is some concern about what their implications might be, for, amongst other aspects of donations, charitable, or society, lottery campaigns. But what has brought them about?

You will no doubt be aware of the media firestorm in recent years – particularly the last year – surrounding the methods charities use to elicit donations. Some of you will remember the case of Olive Cooke, the elderly poppy seller who tragically died in May last year, amidst allegations that she had been “hounded” by charities asking for donations. Whilst her family did not believe that charities were directly responsible for her death, they told the subsequent FRSB investigation, which reported in January this year:

“We are very grateful that there has been an investigation into charity fundraising practice and are pleased that there have been changes to the Code of Practice as to how charities fundraise, as well as changes to the law to prevent elderly and vulnerable people feeling pressurised to give when they can’t. We want Olive to be remembered for her incredibly kind, generous and charitable nature. Far from being a victim, she was a strong believer in the importance of charities in UK society and local communities. At the same time, she was concerned about the amount of letters and contact that she was receiving from charities and we are sure she would have been very upset to know that her details were being shared or sold by some charities who she had agreed to support.”

Olive’s death led to the Government commissioning the review by Sir Stuart Etherington, Chief Executive of the National Council for Voluntary Organisations, into the self-regulation of charity fundraising. That review took evidence from stakeholders in order to identify what changes were required to rebuild public trust in fundraising by charities. It was closely followed by the FRSB’s investigation, which looked specifically at Olive’s case, and by a report of the House of Commons Public Administration and Constitutional Affairs Committee, which was also published this January.

The Etherington Report and other investigations all identified shortcomings in fundraising practices, lessons to be learned and the need for more effective regulation. In Olive Cooke’s case, it emerged that she had received 466 charity mailings in the year leading up to her death, that some 99 charities had her details, and that approximately a quarter of those had passed them on to others, the overwhelming majority either without her consent or with only “assumed consent”. The default position of most charities was that the onus was on the donor to initiate an opt-out of data sharing, without clear guidance on how to do it. In addition, charities were failing to provide adequate opportunities for donors to opt out of future mailings.

The Government accepted Etherington’s recommendations in full. These included:

The abolition of the FRSB and the establishment of the new Fundraising Regulator which will no longer have a membership structure, but instead a universal remit to adjudicate all fundraising complaints and stronger sanctions for non-compliance;

• The speedy merger of the IoF and the PFRA;
• More focus on best practice and compliance by the merged IoF-PFRA body;
• The move of the Code of Fundraising Practice into the new Fundraising Regulator;
• A new Code of Practice, clearly aligned with the Charity Commission’s guidelines on charities and fundraising;
• A move by fundraising organisations towards adopting a system of “opt-in” only, in their communications with donors;
• The creation of a registration “badge” which organisations can display as a sign of their commitment to regulation and high standards; and
• The creation of a “Fundraising Preference Service” (FPS) which will enable members of the public to prevent the receipt of unsolicited contact by charities and other fundraising organisations.

The changes this month, then, will bring these recommendations to fruition. The new Fundraising Regulator will assume responsibility for handling all complaints from members of the public and it will also start work, in collaboration with the newly-merged IoF-PFRA body, on drafting the new Code of Practice, although that process represents a significant piece of work and is expected to take some time. It will also develop the FPS and be responsible for operating it.

The FPS will complement the existing Telephone Preference Service (TPS), which is statutory, and the Mail Preference Service, which is not. It will enable those who are identified as vulnerable, and their families, as well as those who are aggrieved by being approached by charities, to opt out of being contacted. In future, charities will need to check the FPS as well as the TPS before contacting a potential donor.

The idea is to move towards a position where positive consent to being solicited will be required – this approach will be brought into force in any event in 2018 by the European Data Protection Regulation. Even if Britain were to leave the EU, positive opt-in is a concept favoured by the current Government, so it is likely to remain the ultimate objective in any event. In the interim, though, quite how negative opt-out will evolve into positive opt-in is something which the new Regulator will have to work out.

The new Regulator’s stated aims are to:

• Be more accessible, providing a single point of contact for members of the public to register any concerns they may have about fundraising activities;
• Put the public in control by making it easier for them to manage fundraising communications with charities;
• Be more independent, ensuring that a wide range of views are reflected in the new Code of Practice and Rule Books;
• Be collaborative, by working with the IoF and other sector stakeholders to share issues and trends in fundraising practice and identify areas where sector support on regulatory issues is needed; and
• Strengthen regulatory partnerships, by working with the Charity Commission and other UK regulators such as the Gambling Commission, to share information and refer cases where wider governance issues arise.

The Regulator will be able to name and shame organisations that transgress, prevent them from carrying out certain types of fundraising for a period, and apply other sanctions, such as ordering compulsory training. It is expected to cost between £2 and £2.5 million a year to run, and these costs will be covered by charities themselves, via a levy that will depend on their fundraising spend – those that spend over £100,000 a year on fundraising will pay the highest rate.

Some charities have voluntarily changed their means of soliciting donations in recent times, in response to the various investigations and media criticism. Oxfam have stopped doorstep recruitment altogether, the RNLI and Cancer Research UK now only use a positive opt-in across all channels, and the Red Cross and Age Concern have signed up to renewing supporters’ consent every two years. This notwithstanding, there is widespread concern in the sector about the impact the changes will have, with some taking the view that they represent “a sledgehammer to crack a nut” by, effectively, punishing everybody to tackle the methods of a few.

Of course, lotteries represent an important fundraising stream for charities, and more and more are entering into the lottery market. The new Regulator’s Head of Policy, Gerard Oppenheim, was invited to speak at the recent Lotteries Council Annual Conference, and he fielded a series of anxious questions from the floor. He made it clear that, where lottery tickets are “primarily sold to raise money”, they will be treated as a donation, and thus will be subject to the scrutiny of the Regulator surrounding the way in which they are sold. It is difficult to see why lottery tickets would be sold for any other reason, and thus society lotteries will be subject to the new regime across the board, should a member of the public choose to complain about the way in which they are promoted.

Mr Oppenheim did recognise that society lotteries are already highly regulated, whether by the Gambling Commission or local authorities, and pledged to avoid “double regulation”. However, the new system will inevitably lead to an additional layer of control and further compliance issues for charities to worry about. Once the IoF and PFRA are merged, the intention is to produce fresh training and support in order to assist charities in coping with the new requirements. Quite how effective this is, and how it is disseminated, remains to be seen.

As matters stand, the Fundraising Regulator will have no jurisdiction in Scotland, and will only operate in relation to England, Wales and Northern Ireland. A decision in Scotland is expected in the summer, and Mr Oppenheim made it clear that the Regulator’s preference is for a UK-wide scheme to apply. This would certainly make sense in the interests of consistency and would assist those larger charities that operate nationwide, meaning that their obligations on both sides of the border would be the same.

Some say that the new rules will cost charities £20 billion in donations, and predict that some 30 million people will sign up to the FPS. Mr Oppenheim dismissed these estimates as “wild” and expressed the view that the FPS system would “fall over”, were this to be the case – it would simply not be able to cope. He also made the point that the FPS will enable members of the public to choose not to be contacted by certain charities, whilst remaining accessible to others.

The fact remains that the new scheme will undoubtedly have an impact on charities – representing, at the very least, an additional cost – and society lotteries look likely to be affected. As some delegates at Conference pointed out, they are already subject to a high degree of regulation, are competing with commercial entities, and are not eligible for Gift Aid. The precise effect of the changes remains to be seen and the devil will be in the detail of the new Code of Practice, complaints that are made to the Fundraising Regulator, its adjudications, and sanctions applied.

Worse may yet be to come – the Government has, in the Charities (Protection and Social Investment) Act 2016 which received Royal Assent in March, reserved various powers to the Minister, Rob Wilson, to impose levies and new regulation on charities if they don’t toe the line. The new Fundraising Regulator represents, Government says, the last chance for the self-regulation of the charity sector.

We will continue to monitor the situation and will update you when the new system comes into effect.

Speakers now confirmed for Woods Whur Gambling Seminar and Networking Event

Andy and I are delighted with the take up for our Gambling Seminar and Networking Event which will take place on Monday 6 June 2016 from 10:00 – 13:00. Sheila Roberts, the Chief Licensing Officer in Newham and Kerry Simpkin from Westminster Council have accepted an invitation to speak at the seminar along with Rob Burkitt from the Gambling Commission. We are delighted that we will have an all round perspective on the important topics to be discussed which will lead to this being an informative and interactive day.

If you have an interest in attending this event then please email Tanya@www.woodswhur.co.uk who will confirm your attendance. Alternatively if you would like to find out more about this event you can view our leaflet by clicking this link.

On the 6^th June 2016 we will be holding a seminar at the Hippodrome Casino Leicester Square from 10am to 1pm which will cover a wide range of topics for land based gambling operators. The main theme of the seminar will relate to the fact that 2015 was a pivotal year for the industry in terms of regulation and enforcement action and there is no suggestion that anything is going to change in 2016.

On the 11^th of April 2016 we saw the publication of a new strategy aimed at tackling gambling related harm over the next three years with the National Responsible Gambling Strategy setting the basis that all operators and regulators will need to follow. The Gambling Commission have reported the publication of this strategy on their website and referred to the comments made by Sir Christopher Kelly who is Chairman of the Responsible Gambling Strategy Board: “the overarching aim is to minimise gambling related harm. Gambling related harm goes wider than the harm experienced by those identified as problem gamblers by existing screening tools – it can also effect the families of gamblers, their employers, their communities and society more widely.”

This strategy is on the back of the local based risk assessments that were introduced in April 2016 and followed some detailed investigations into casinos and betting offices during 2015/2016. If you have not already undertaken a risk assessment then you should do so immediately and you should ensure that you include on the risk assessment any local factors which may be relevant to the licensing objectives. Rob Burkitt from the Gambling Commission is quoted on their website as confirming this: “if there is a gambling premises adjacent to a bus stop which is used by college or school students between, say 3/5pm, the premises should ensure that staffing levels are adequate to mitigate the risk of underage access. If there is a gambling premises close to a homelessness hostel, the operator would ensure that they have staff awareness training to ensure that homeless customers are not putting themselves at risk of harm.” Rob has very kindly agreed to speak at our seminar on the 6^th June.

I will be watching closely during the next twelve months to see where the focus of the Gambling Commission moves following its investigations in London and in particular in the casino sector in the last 48 months. I suspect that their focus will move on to other sectors of the industry such as bookmakers and bingo operators and I would also like to see the Gambling Commission producing some guidance in particular relating to anti money laundering policies during the next year or so. This may or may not coincide with the LCCP Prime Consultation Review although it is unlikely to coincide with the Money Laundering Regulations 2017 which I suspect will be pushed back to Autumn 2017. The fourth Anti Money Laundering Directive took effect on the 26^th of June 2015 and EU countries will have two years from that date to implement the rules contained in the Directive International Laws. This will apply to a whole range of businesses including financial institutions and the rules will have to be complied with by businesses involved in making or receiving cash payments of a certain amount. The member states will have to prove that they have taken appropriate steps to identify, assess and mitigate anti money laundering risk.

I’m hoping that by the time our seminar takes place on the 6^th of June we will have more information on the above. If you have not already signed up or would like to come please contact me at andrew@www.woodswhur.co.uk.

 

 

It may be stating the obvious but the last thing any gambling operator I have ever been involved in would want on their books is bad debts. Nobody sets out to create a bad debt and it would never be part of any operation nor policy to incur bad debts. One accountant who I know very well would in fact take issue with me describing “outstanding monies” as “bed debts” but it seems generally accepted that a cheque which has been dishonoured is defined as a bad debt until full recovery is made. My accountant friend would say that it is ‘ monies due’ not a ‘ bad debt’!

Is a bad debt a breach of the Money Laundering Regulations 2007 and in particular the requirements set out in Regulation 7 which require operators to undertake customer due diligence measures as defined in Regulation 5. These regulations broadly speaking require an operator to identify and verify customers identity on the basis of documents, data or information obtained from reliable sources on a risk sensitive basis when establishing a business relationship with the customer. Regulation 8 requires operators to conduct ongoing monitoring of their business relationships with customers which in practice means that compliance with Regulations 5 & 7 are not one off events but should be checks which are continually undertaken. Regulation 14 requires operators to look closely at transactions undertaken by customers (including the source of funds) in circumstances which present a risk of money laundering.

This is all a risk based approach and there will be a different attitude and approach to a customer in a betting shop placing a five pound bet on a horse to win a race and a “high roller” customer in a casino who is signing cheques for several million pounds.

There has been a great deal of publicity recently with regard to these regulations and “customer due diligence” checks and “enhanced due diligence” checks and I think that gambling industry as a whole is coming to terms with the additional requirements now expected within the industry. I will be looking closely at these requirements in later articles and at our seminar on the 6^th of June 2016 but I do think the issue of the so called “bad debt” is an interesting one and one that needs resolving. If you are satisfied that a customer has the means to pay and you can evidence the fact that the customer has the means to pay and you have carried out all anti money laundering checks then is the fact that the customer fails to pay a breach of the regulations? To put this another way “if you carry out customer due diligence and enhanced due diligence properly would you incur debts that are not paid?”

All clients and land based operators should ensure that CDD and EDD are properly undertaken and regularly undertaken in respect of those customers who present a higher risk but I am still not convinced that there is an argument that you are not complying with the regulations (subject to all of the above being complied with) just because some debts/cheques are not paid.

There have of course been a number of high profile cases recently with regard to whether or not a casino operator owes a duty of care to a customer (whether or not there is compliance with the regulations). In the case of “The Ritz Hotel Casino v Gaebury” Mr Al Gaebury lost two million pounds at The Ritz and a cheque he had given to The Ritz for that amount was dishonoured. The Ritz sued him and the issue of “duty of care” was raised but Mr Al Gaebury lost. This was similar to an earlier Ritz Hotel Casino case involving Noora Al Daher.

There was a complicated background to the Gaebury case which involved Mr Gaebury self excluding himself from the casino and then trying to get those self exclusions revoked. The Ritz ultimately let Mr Al Gaebury back in as a customer subject to him signing a waiver with regard to the “end of self exclusion” and Mr Gaebury returned to gamble at The Ritz and subsequently wrote the cheques which were not honoured. The Judge in this case agreed that there was no general duty of care owed by The Ritz to Mr Al Gaebury. The Judge repeated the words of the Judge in the Al Daher case “ gambling is an activity which has been legalised by parliament… the choice of parliament has been to commit casino’s to be licensed and gamblers to gamble in them as a matter of their own autonomy”.

Gambling operators will have to be aware that whilst the courts may be very reluctant to move away from an individuals right to gamble, the Gambling Commission may be more open to the argument that incurring bad debts/unpaid cheques can mean non compliance with Anti Money Laundering Regulations.

In early 2015 the Lotteries Council of Great Britain commissioned Decaid Consulting to carry out a benchmarking exercise among its members, to identify attrition levels in lottery campaigns. The aim was to permit members better to plan, manage and advocate for their lottery product within their own organisation, and also to enable the Lotteries Council to strengthen its advocacy of charitable lotteries at a national level.

The study broke lottery entrants down by payment method – cash, direct debit, cheque, standing order and credit card. Anonymised data was provided by Lotteries Council members for the period 2010 – 2014. The measurement used was based on weekly draws, this being the most easily measured and accurate data recorded by charities. The results were weighted to take into account the vastly differing numbers of players participating in individual campaigns. Players who did not make their first payment were removed from the calculation, and recorded as “no-shows”: thus the attrition results were based only on players who paid for their first draw.

The results need to be considered in light of the fact that the respondent pool was relatively small: in total, 25 charities responded to the call to participate; however 4 did not submit any data ultimately, and 3 submitted data that was unusable. This left a pool of 18 participants. Of the total usable campaigns, 49% of entries were by direct debit, 39% by standing order, 7% by credit card and cheque and 5% by cash.

The study was keen to monitor the “no-show” rate for direct debit and standing order players, largely because a further contact with the player is often enough to prompt restoration of their instruction to their bank. The results, perhaps unsurprisingly, showed that standing orders perform rather better than direct debits in terms of player retention, with an overall decrease of 3.5% between 2010 and 2014, compared to an increase of 5% for direct debits.

Cash campaigns showed a relatively high attrition rate, but this is closely related to the success of the particular campaign. For example, of 8 campaigns, one showed an attrition level of 25% over 2 years, with another experiencing 45%. This has served to demonstrate the importance of charitable lotteries’ strategy, advertising and “message”, when seeking to attract cash players.

The results of the research demonstrate a completely different pattern for credit card and cheque players, by comparison with those who pay cash. Attrition rates for credit card and cheque appear to relate to quarters, 6 monthly periods and annual periods. Decaid conclude that this could be attributable to the fact that these players commit to a certain number of draws and then do not renew, or are not asked to renew. This finding clearly highlights an opportunity that is currently being missed by some charities, since by diarising the expiry of fixed periods and contacting the supporter again at the relevant time, support could be significantly enhanced. One charity lost 56% of lottery revenue between 2013 and 2014 as a result of the expiry of fixed periods. Hopefully the results of the research will focus minds in this respect.

The pattern for standing orders and direct debits is different, again, to cash, credit card and cheque, in that it reveals a very clear step-up in attrition after every 4 draws. Decaid explain this as representing players considering whether or not to renew every month. Again, the results should prompt charities to maintain regular contact with players, whilst all the time remaining aware of the current negative publicity surrounding overt “pushiness” and respecting the Institute of Fundraising Code of Practice.

The research also broke the results down by cause: air ambulances, hospices, other health initiatives and sporting bodies. Credit card and cheque payments markedly provided the most reliable source of income for air ambulances in terms of attrition. Across the board, standing order and direct debit players were observed as requiring less hands-on management, however.

The study also looked at payment methods by location. Here, the striking finding was that credit card and cheque payments work well in semi-rural areas, but appear to fail after 4 months in urban areas.

There is much to be learned from the detail of the report, but the gist is equally important: lotteries are undoubtedly an excellent stream of income for charities, and increasingly so, with a lot of new charities, particularly the larger national ones, entering the market. This report demonstrates the widely differing performance of various charitable lotteries and highlights opportunities for those encountering significant attrition rates to improve, including a better acquisition strategy and more attentive ongoing player stewardship.

Regardless of the performance of individual charitable lotteries, the report is clear on one thing: direct debit lotteries perform much better in terms of fundraising and attrition than door to door and face to face campaigns, run at the same time. Clive Mollett, Chair of the Lotteries Council, told me: “one of the benefits of this research is that it demonstrates the value of lotteries in fundraising for charities. It provides hard evidence that lotteries perform vastly better than other fundraising methods, in terms of attrition. For example, on-street canvassing, which some call “chugging”, has an attrition rate of 95% over 5 years – and it can take that time to recover the associated costs. There are still massive unexplored fundraising opportunities for charities in the lottery market.”

Should you have any queries on the research, or on raising funds for good causes via a lottery-type product, please contact me at anna@www.woodswhur.co.uk.

Colin Manchester looks at some amendments that are needed to temporary event notices and the new Part 5A notice which has not yet come into effect.

Temporary event notices (TENs) have been subject to various amendments in recent years. There were several introduced by the Police Reform and Social Responsibility Act 2011 (PRSRA 2011) e.g. extending the right to object, originally confined to the police on the crime prevention objective ground, so that either the police or environmental health could object on any licensing objective ground (s 112), and extending the number of days in any calendar year on which a single premises can be used to carry on licensable activities from 15 to 21 days (s 115(3)). More recently, a further change has been made by s 67 of the Deregulation Act 2015, which has increased the maximum number of TENs that can be given under s 107(4) of the Licensing Act 2003 (2003 Act) for any one premises within the same year from 12 to 15. This recent amendment has led to a new TENs form being introduced by The Licensing Act 2003 (Permitted Temporary Activities) (Notices) (Amendment) Regulations 2016, SI 2016/20, to reflect the change. The new form duly reflects this change but a drafting error has been highlighted in a report of the Joint Committee on Statutory Instruments to Parliament. Section 9 of the new TENs form contains a declaration to be signed by the person giving the notice acknowledging that it is an offence to knowingly or recklessly make a false statement in connection with the TEN and that permitting an unauthorised licensable activity to be carried on at any place is an offence, but references in the form to the fine for these offences are incorrect. The form states that the fine for the former offence is one not exceeding level 5 on the standard scale and for the latter offence is a fine not exceeding £20,000 but these fines have been changed to unlimited fines by s 85 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 and para 33(2) of Sched 4 to the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Fines on Summary Conviction) Regulations 2015, SI 2015/664. References in the new TENs form should simply be to a fine and this has been recognised by the Home Office: ‘The error was an oversight which the Department will seek to correct at the earliest opportunity, which is expected to arise later this year’ (para 1.4 of the Joint Committee Report).

This is not, however, the only oversight which needs correcting in the area of TENs, as will be seen below. The power of entry in s 108(1) of the 2003 Act of a constable or an authorised officer of the licensing authority to premises to which a TEN relates is ‘to assess the likely effect of the notice on the promotion of the crime prevention objective’. This was the only purpose for which entry would have been relevant prior to the amendments to the TENs regime introduced by the PRSRA 2011, as only the police could give an objection notice on crime prevention objective grounds, but this is no longer the case. Under s 104(2) of the 2003 Act, as amended by s 112(5) of the PRSRA 2011, the police or environmental health can object on any licensing objective ground. If the power of entry in s 108(1) is to complement the amended provision in s 104(2), it should be available to assess the likely effect of the TEN on the promotion of any licensing objective and not just the crime prevention objective. It is difficult to resist the conclusion that s 108(1) remaining in its original unamended form was an oversight but, unless and until it is amended, it seems that the power will only lawfully be exercised if entry can be justified to assess the likely effect on promotion of the crime prevention objective.

An additional form of authorisation, which as in the case of a TEN does not require permission from the licensing authority but simply the giving of a notice, is the Part 5A Notice. This is a new form of authorisation in Part 5A of the 2003 Act which has been added by s 67(2) of and Sched 17 to the Deregulation Act 2015, although these provisions have not yet come into force. When they do, the Part 5A Notice will enable the licensable activity of the retail sale of alcohol to be carried out over a period of time by community organisations or small businesses that sell alcohol as an ancillary part of a wider service without the need for a premises licence, club premises certificate or the use of multiple TENs. The Part 5A Notice, the relevant provisions for which are contained in ss 110A-110L of the 2003 Act, is closely modelled on the TENs regime. Thus the notice is given to the licensing authority (s 110D), police and environmental health have an opportunity to give an objection notice based on any licensing objective ground (s 110I), and a counter-notice can be given by the licensing authority (s 100J). There is a power of entry in s 110L for a constable or an authorised officer of the licensing authority to premises to which a Part 5A Notice relates. You can guess what is coming next. Yes, this is closely modelled on the power of entry in s 108(1) for TENs, with s 110L(1) providing: ‘A constable or an authorised officer may, at any reasonable time, enter premises to which a Part 5A notice relates to assess the likely effect of the notice on the promotion of the crime prevention objective’. So, as in the case of a TEN, the power of entry is expressed to be to assess the likely effect of the notice on the promotion of the crime prevention objective, although an objection notice and a counter-notice can be given if considered appropriate for the promotion of any of the licensing objectives. If the position remains unchanged, this is what I plan to say on s 110L(1) in the 4th edition of Manchester on Alcohol and Entertainment Licensing Law when it is published next year:

The position here is the same as it is for the power of entry for TENs in s 108(1). That section was not amended following changes introduced for TENs by the PRSRA 2011 under which an objection notice and a counter-notice could be given if considered appropriate for the promotion of any licensing objective and the view was expressed that the failure to amend s 108(1) was an oversight. This view is reiterated here in respect of s 110L(1), which is expressed in comparable terms to s 108(1) and which compounds the failure.

If the failure to amend s 108(1) and s 110L(1) was an oversight, the Home Office may (if it is aware of this … ) seek to correct these provisions at the earliest opportunity, although it will not be as easy to do so as with amending the new TENs form to correct the oversight in respect of the level of fines. This is because the TENs form is contained in regulations i.e. secondary legislation but the provisions in ss 108(1) and 110L(1) are contained in an Act of Parliament i.e. primary legislation. Amendments to secondary legislation can be made by Government departments with the legislation laid before Parliament for a period of time for approval before it takes effect. This is a relatively straightforward process. Amendments to primary legislation, on the other hand, need to be made in an Act of Parliament, the passage of which will take a much longer period and the provisions of which are subject to detailed debate and scrutiny during the course of the legislation’s passage. Unlike the TENs form oversight, there is no ‘quick fix’ for the ss 108(1) and 110L(1) oversight(s). A good starting point, however, would be an acknowledgement of these oversight(s) and the need for these provisions to be amended, even if it may take some time before effect can be given to their correction.

© Colin Manchester

Woods Whur solicitors advise the London Borough of Newham as the Olympic Stadium looks to a new premises licence for the sale of alcohol and provision of entertainment.

I am delighted that the London Borough of Newham has instructed me to offer legal advice as they consider a new application for a premises licence to allow the sale of alcohol and provide entertainment at the Olympic Stadium.

This is truly an iconic venue and it is hard to believe that it is already four years since those amazing golden Olympic moments in the stadium.

I was first instructed five years ago by the Mayor of Newham, Sir Robin Wales, to conduct a review of policies and procedures in Newham for licensing applications and procedures. Since then, I have gone on to deliver my report, conduct training to elected members and officers and advise the sub-committee on Licensing Act 2003 applications and Gambling Act 2005 applications. In addition, I have represented the Borough on appeals at Thames, Stratford and Waltham Forest Magistrates’ Court and also in the High Court on two occasions.

It is one of my most prized client relationships and has provided me with one of the best working environments over the past 25 years during which I have specialised in Licensing Law … and sometimes the most challenging.

It is fair to say that the Borough has its own challenges and was one of the first in the country to include off-licences in its Cumulative Impact Policy, due to problems surrounding street drinking and the sale of high ABV alcohol.

I am looking forward to the panel hearing in May of this year and it is fantastic that the regeneration continues the Olympic legacy in Stratford and the wider Borough.

London Borough of Newham Enforcement Manager Sheila Roberts said, “Paddy and Woods Whur have been our lead licensing solicitors for the last five years. Paddy has advised panels as legal advisor, represented us in appeals before the Magistrates Court and successfully defended our robust licensing stance in the High Court on two occasions. In addition, he has provided regular member and officer training which is always well received. He has provided a free telephone advice and support service to our officers whenever required which is hugely beneficial when dealing with urgent enquiries. A key value of the professional relationship is that he is very quick to respond to our queries and has contributed greatly to the confidence and expertise that officers now have when dealing with and identifying solutions to complex and challenging licensing issues. We have had a significant run of success in Magistrates Courts appeals, winning costs; and have accepted advice from Paddy to compromise certain appeals with a contribution to our costs by appellants. The most important feature is it feels like he is one of the team and we value his balanced judgement and advice.”

Here’s hoping that the Borough continues to flourish, along with its strategic relationship with Woods Whur.

 

 

We are delighted that Colin Manchester has committed to a new edition of Manchester on Alcohol and Entertainment Licensing Law, which will be the 4th edition, and will be published by Woods Whur Publishing in 2017.

Colin told us, “There continue to be changes to the primary and ancillary legislation, as well as development in the law through High Court and Court of Appeal decisions, all of which means that licensing law continues to be a fertile area for litigation. I am pleased that 2017 will see me release the 4th edition of my text. It is also great news that Woods Whur Publishing are reducing the cost of the current 3rd Edition to £40 per copy as a mid-publication discount.”

To place an order please email info@www.woodswhur.co.uk

As of 1 April, some 1.8 million workers in the UK are set to be better off as a result of the introduction of the new National Living Wage. Announced in the summer 2015 Budget as part of the “higher-wage, lower-benefit economy” initiative, it is set at £7.20 per hour and is compulsorily payable to all workers aged 25 and over. This is 50p higher than the National Minimum Wage payable to 21-24 year olds, meaning that a full-time, previous NMW worker aged 25 plus will earn £940 more over the course of the coming year. In addition to 1.3 million of those workers, approximately 500,000 workers who, up until now, earnt an hourly rate somewhere between the two figures will benefit.

The NLW is still somewhat lower than the voluntary Living Wage, which continues to exist, set by the Living Wage Foundation at £9.40 for London and £8.25 elsewhere. Some 2,300 entities are currently signed up to pay those rates, including Barclays and Aviva and large local authorities like Cardiff, Birmingham and Newcastle. They benefit from the Living Wage Employer Mark and Service Provider Recognition Scheme in return for doing so, and report the benefits of voluntarily participating: 80% say that the quality of their employees’ work is enhanced and figures show a 25% reduction in absenteeism for those taking part. Two thirds have noted a significant positive impact in terms of the recruitment and retention of staff.

The LWF’s rates are based on the actual cost of living, whereas the NLW is based on median earnings nationwide. The Government has asked the Low Pay Commission, which has fixed the current rate and will recommend new rates going forward, to aim for a NLW that attains 60% of that median by 2020. By that stage the NLW will stand at over £9 per hour, and the Independent Office for Budget Responsibility has estimated that a full-time NMW worker will have earnt £4,400 more in cash terms as a result. Despite this, the LWF has said that “the job has not been done” in relation to low pay, and has urged employers to continue to participate in the voluntary scheme, which has traditionally received cross-party support.

The IOBR has also warned, however, that by 2020 60,000 jobs could be lost, due to employers seeking to cut back their workforce as they struggle to pay the new rate. The Institute for Fiscal Studies has predicted that the NLW will have a “huge effect”. These warnings have been dismissed by the LPC – but it seems to be on its own. The Federation of Small Businesses has pointed to anecdotal evidence from its members that they will be cutting back on staff, and the Recruitment and Employment Federation has reported a drop in companies having recruitment ambitions for the next three months, from 74% in January to 62% in February.

Figures released by the Association of Licensed Multiple Retailers suggest that the NLW will hit the licensed hospitality sector particularly hard. It estimates that it will result in 4 million fewer hours a week being worked in the UK, with a colossal drop of hours worked in the trade of 11%.

Some organisations have pointed to an element of unfairness underlying the NLW – after all, a 24 year old will potentially earn 50p less an hour than a 25 year old for doing the same work. In addition, the new measure will undoubtedly have a greater impact in the North, North East and South West of the country than it will in London.

There are also various ways that employers can effectively get out of paying the NLW – quite apart from only employing those aged under 25. For example, if a business offers accommodation to its employees, it can deduct a charge (up to £37.45) a week from salaries – and this is not included in the calculation. Employers might decide to axe overtime and other perks, such as Sunday pay, bonuses and London weighting, in order to compensate. The retailer B&Q has already come under fire for cutting other employee benefits to enable it to pay the new rate, and there are doubtless others, whose employees might be too afraid to speak out.

Perhaps inevitably, the issue has been dragged into the Brexit debate, with some in the “out” campaign claiming that the draw of Britain’s new NLW – the fourth highest in the EU after only Luxembourg, France and Ireland – will outweigh any advantage that the “emergency brake” on migrant benefits, renegotiated by the Prime Minister, might achieve. Whilst it’s true to say that the minimum wage in Spain is just over €5 an hour, and in Greece and Portugal it is less than €3.50, while Romania and Bulgaria have minimum wages below €1.50, whether an extra 50p an hour will make any difference at all to immigration remains to be seen.

 

Remember, remember the 6^th of April 2016 does not quite have the same ring about it as “remember, remember the 5^th of November, gunpowder, treason and plot”. Just as the 5^th of November 1605 will be a date that King James will never forget, so the 6^th of April 2016 has to be a date that gambling operators should not forget.

The Gambling Commission’s recently published information (24 March 2016) about more independent gambling operators being prosecuted and having conditions attached to their licences relating to non-compliance with legislation. Paul Hope, the Gambling Commission Consumer Policy Program Director said that “the actions that Licensing Authorities have taken against gambling premises show that operators cannot afford to be complacent. They need to remember that where weaknesses persist, regulators will also consider other sanctions such as licence suspension or revocation”.

These sanctions could equally apply to the new measures which came into force on 6 April 2016, which include the requirement for Premises Licence holders to conduct a local risk assessment for their premises and for all non-remote operators who are Premises Licence holders in the arcade, betting, bingo and casino sectors to participate in multi-operator self exclusion schemes.

We have been aware for months that operators would soon be required to have in place a written local risk assessment for each of their current premises, and as from 6 April 2016, this is now a requirement. In addition, Ordinary Code 10.1.2 states that licensees should share their risk assessment with Licensing Authorities upon request, as best practice.

The local risk assessment must be unique to each premises and cannot be generic. It must specifically refer to local matters identified in the Licensing Authority’s Statement of Licensing Policy and by the operator itself and it must offer assurance that the premises have suitable controls and procedures in place which reflect the level of risk within the area.

It is necessary therefore to carry out a review of the risks presented locally, in particular relating to groups which are perceived as being vulnerable, and it may be helpful to attach a map to the risk assessment showing the position of local schools, churches, doctors’ surgeries, hospitals, homeless shelters, and so on. The aim of the requirement is described by the Gambling Commission as “to enable operators and Local Authorities to engage in constructive dialogue at an early stage, to reduce the likelihood of costly enforcement action at a later date”.

There is also a new Social Responsibility Code (3.5.6) in the Licence Conditions and Codes of Practice which also came into force on 6 April 2016, requiring operators to be involved in a multi-operator self-exclusion scheme which would allow an individual to make a single request to self-exclude from that type of gambling within their area. Operators who have not done so should register with the relevant scheme as soon as possible. The details of the relevant trade bodies are as follows:

Arcades/BACTA – Phil Silver, Head of Compliance, 29/30 Ely Place, London, EC1N 6TD. Telephone number: 0207 730 6444 & email: bacta@globalnet.co.uk

Betting – info@selfexclusion.co.uk

Bingo – Bingo Association, Cherry Hoskin, Lexham House, 75 High Street, North Dunstable, Bedfordshire, LU6 1JF. Telephone number: 01582 860921 & email: cherry@bingo-association.co.uk

Casino – National Casino Forum, Tracey Damestani, Carlyle House, 235/237 Vauxhall Bridge Road, Victoria. Telephone number: 0207 828 5410

If anyone needs help on any of these points please contact me at andrew@www.woodswhur.co.uk or on 07738 170138.