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Wed 9th Jun 2021 - Legal Briefing

Mid-year reflections of a licensing lawyer by Tim Shield

Every day for the past 15 months, I have looked over a large shared car park from my office window. This has proven to be a useful barometer into how the latest relaxations on the covid roadmap have affected our society at a ground level. From the beginning of the pandemic in March 2020, the car park was completely deserted until 12 April this year, when it suddenly appeared to be overflowing. At this point, hospitality was still significantly restricted in comparison to other industries and continues to be, subject to provisions that other sectors are not. It is difficult to not feel a little sour about this but we look forward to the future and what it has in store.

We are now moving towards the latest relaxation scheduled for 21 June when nightclubs and bars may finally get a taste of this freedom. However, I suspect that, along with many others, we will be uncertain how this is exactly going to happen or even if it will go ahead until very close to the set date. There are currently many complex and conflicting arguments surrounding this next step but, once again, hospitality feels ignored regarding its significant efforts and investments in covid-protective measures. The sector has always been one of the most regulated industries in the country and has met these changes in the most professional and versatile of manners.

I have been a licensing lawyer for more than 30 years now and I believe the covid restrictions imposed during this period have been the biggest upheaval for the industry since the Licensing Act 2003 came into force in 2005 in England and Wales, as well as the subsequent Licensing Act 2005 in Scotland, which commenced in 2009. Almost overnight, regulation began being issued to the industry followed by an onslaught of additions and amendments. I find the continuous adaptability of hospitality admirable.

Licensing has also seen changes and implications because of the covid measures, and these currently continue to be a prominent part of our day-to-day work. The future of these adjustments is unclear but, over time, I have had the chance to reflect on their influence. I have highlighted three areas that are most prominent to me:

Applications and training: Most routine applications moved online such as those regarding designated premises supervisors’ and personal licence holders. Thankfully, the website already had a system in place that allowed the change of licence holder (designated premises supervisor) to continue electronically. There was a suggestion this may be withdrawn in March of this year, but it was delayed. It will be interesting to see whether this will remain in place because this has simplified the process and been of great convenience for many clients and local authority officers working remotely who could not access the offices, which were closed. Licensing training courses also made this switch, meaning this important tuition could be done from anywhere in the country without the need to travel or time away from the venue.

Remote hearings: Many clients will have had a development programme in place that will have been significantly disrupted by covid but would not necessarily have come to a halt. Applications for new premises licences or variations to existing ones have occurred remotely during this time. We are now all-too-familiar with Teams, Zoom and other platforms, and most licensing authorities adapted fairly quickly to remote hearings from March 2020. It was a completely different way of working but this was only ever designed to be temporary. However, several authorities are continuing with this method although some areas are now returning to hearings in person. I have had the experience of attending many proceedings remotely over this period and after recently returning to some live hearings, I have had the chance to reflect on both experiences. There are, of course, pros and cons to each; the convenience for both client and solicitor is useful but video calls often lack the personalisation that is often needed to properly engage with these hearings. My preference remains to be attending in person but I can see how the option for remote proceedings could remain going forward in the future, but there is no certainty about this currently.

Enforcement: Most operators adapted very quickly to the enhanced requirements on reopening to ensure compliance with the ever-altering regulations. It will be interesting to see if the variety of enforcement approaches we have dealt with during the pandemic will continue to be used and whether this will have a permanent impact on licensing enforcement in years to come.

The vast majority of authorities have been practical in assisting operators in what is appreciated by all as an extremely difficult time. Examples of this include the developments of external zones as well as the expedited process to allow authorised pre-existing outdoor areas to be used so venues can make the best of the options available within the means of the guidance measures. It is extremely positive to see that balance has been struck between the needs of the operators, the regulators and residents.

Unfortunately, not all locations have received the same co-operative approach. We have come across authorities that have acted without consultation. More recently, we have received instructions for reviews that are being issued against premises licences for allegations regarding covid safety breaches that occurred before Christmas. It feels disproportionate to instigate proceedings so late. Venues have learnt from each lockdown and these types of proceedings seem to be an additional punishment.

There are many uncertainties in the near future but let us not leave everything that we have learnt during covid behind and at least consider the feasibilities of these new-found approaches. We are all hoping the further relaxation on 21 June takes place in England and Wales, and that 2021 will have a brilliant summer in store for hospitality.
Tim Shield is a partner at John Gaunt & Partners
John Gaunt & Partners is a Propel BeatTheVirus campaign member

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