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Wed 8th Apr 2020 - Legal Briefing

Partnership working will help get us through this together by Michelle Hazlewood 

The current coronavirus crisis has led us into extraordinary times with operators and authorities all having to move at great pace to try to adapt. We’ve seen the government respond proactively through its business funding schemes (although they are not without flaws), a support package for both employees and the self-employed, a lease forfeiture moratorium, a tweak to insolvency laws and relaxation of planning legislation to allow pubs to continue to trade. This is all very welcome and will hopefully mean sector businesses can survive until we get through this.

The police have a very difficult role during this crisis in terms of enforcing new laws that have been drawn up quickly and not subject to the usual scrutiny. However, sometimes there seems to be a fundamental lack of understanding as to what is permitted or appropriate under the new government guidelines.

Current licensing legislation allows police to intervene through licence reviews and potential venue closures when there are incidents of serious criminal activity or anti-social behaviour on or near the premises. This legislation doesn’t necessarily work well for the current times, so the government has introduced new measures and additional powers. However, there has been a lack of clarity as to how these powers should be used and there have been differences in their application across the country. Perhaps the most high-profile and, some might argue, aggressive approach, came from Derbyshire Police. Readers might recall the force was strongly criticised from various quarters for its use of drones to film walkers in the Peak District and subsequently shame them on social media.

Indeed, former supreme court justice Lord Sumption warned such behaviour risks plunging Britain into a “police state” and had turned police into “glorified school prefects”.

No doubt many forces are still finding their way in dealing with these times and interpreting the new measures. We are also aware of false information being circulated, with text messages sent to licensees in one particular area stating although they can offer takeaway food to customers, they were warned they must not sell alcohol to accompany it. This is incorrect.
 
We have also been made aware of an incident that saw police visit a pub after seeing the lights on and observing people playing pool in the bar area. It was the licensee’s family, who are living on site and using the bar area as an extension to their living space – not unusual circumstances. In this case, police found a member of the family present who did not live in the household and felt this justified further investigation, despite no licensable activity taking place. How different is this to the police walking into our homes to see who is there?

While these might be isolated incidences, in the longer term, my worry is how, taken as a whole, they might impact the relationship between the trade and the police – founded on partnership working and trust. Will police expectations of the licensed trade change and will confidence and trust between the two be eroded? Crucially, will the police feel empowered to enforce more aggressively? I hope not.

With the enormous financial pressures placed on the licensed hospitality sector, even small changes may well help businesses stay afloat, particularly with many still waiting for the government funding support to flow. 

It was heartening to see Manchester City Council taking a pragmatic and proactive approach to slightly ease the burden by deferring the requirement to make payments for annual premises licence fees until later in the year. We would hope other local authorities around the country would put in place similar policies.

In a previous Propel opinion piece on late night levies, you may recall our view that either the government needed to speed through reforms, or look to abolish them altogether. Clearly, the former is not going to happen anytime soon, so with the extra financial burden they place on licensed premises perhaps the latter should be reviewed – particularly as the negative economic effects of the pandemic will be far-reaching for some time to come. At the very least, local authorities shouldn’t wait for government intervention on this issue to take action – each could urgently review the need for its levy and consider cancelling it. The London Borough of Redbridge has seemingly indefinitely deferred the proposal to adopt a levy – it’s difficult to believe the current economic crisis is not a factor. Hopefully others will look closely at the situation going forward.

Then we have the welcome news that both PPL and PRS will not charge customers for their music usage during the period they are closed (temporarily or permanently) due to covid-19. Good to see common sense prevailing with an organisation that historically has not had the best reputation among licensees.

So how long will this “emergency period” last? The secretary of state must review the need for restrictions and requirements imposed by these regulations at least once every 21 days, with the first review required by 16 April. Until we are through this, we hope all parts of the sector – operators, authorities and the police – can work together in the best and most constructive way possible.  
Michelle Hazlewood is a partner at John Gaunt & Partners

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