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Wed 11th May 2022 - Legal Briefing

Navigating ever-changing enforcement action by Tim Shield

Ever since the Licensing Act 2003 came into force in 2005, the industry has seen enforcement action take a much more prominent role in day-to-day operations. Over the years, successive governments have given additional powers to licensing authorities and the police. The sector has had to adapt to this new legislation in order to keep their businesses running smoothly. Enforcement action has always been a changing force, but we have never seen it adjust as drastically as it did throughout the pandemic.

During lockdown and the gradual reopening of the hospitality industry, enforcement action was almost exclusively focused on operators’ compliance with covid-related legislation. Firstly, surrounding the full closure of premises, followed by the use of external areas, and then the introduction of the 10pm curfew. I am not even going to mention the heated debate around scotch eggs!

Many of our clients faced additional considerations, such as the separate set of covid licensing enforcement that existed over England, Scotland and Wales. We saw that each of these countries often took a different approach to rules and restrictions. This could prove to be a challenge for operators with venues across the three jurisdictions, who had to manage and understand the variety of ever-changing regulations.

The enforcement visits and action which were not related to covid rules tended to drop off. Of course, this is not surprising, considering the factors at play. During this time, many enforcement authorities had shifted to home-working and were not visiting sites in the same way that they did before lockdown. With premises remaining closed or heavily restricted for such a significant period of time, these kind of standard enforcement visits were not necessary.

As the restrictions eased and have drawn to a close, we have seen an expected return to standard enforcement-related activity. Our clients have shared their experiences and enquiries about the kind of challenges they are facing following this move to normality, but is it what it was before?

One of the most prominent forms of enforcement we have been informed about is test purchases. The police and trading standard authorities undertake this activity to ensure the prevention of alcohol sales to those that are underage. Customers who appear to be under 21 or 25 should have appropriate ID checked, and refusals should be recorded in order to uphold due diligence. 

Over recent months, we have seen an increase in this test purchasing across the country. In Lancashire, several premises failed these compliance checks. Therefore, it is perhaps not surprising that this action has been recommenced. It is important to keep in mind the licensing objective – the protection of children from harm.

As the sector’s venues reopened and licensing authorities return to their offices, there has been a reintroduction of the various types of licensing visits. These range from general checks to more targeted operations. We are also aware of a pilot project put forward by one licensing authority which introduces a “inspection form for licensed premises”. Businesses are selected to take part in the trial and are requested to fill out a form for assessment. I have seen some of the questions and consider them to be quite intriguing.

This is perhaps a new form of licensing check which could be more widely adopted in the future. Undoubtedly, we will also see the return of live visits, but this kind of approach might be an attractive tool for licensing authorities going forward. It may save time, but what if there are later found to be errors or omissions? What are the consequences to this, and could enforcement action follow?

Most importantly, we are witnessing an increase in licensing reviews. These have been typically centred around covid regulations and alleged breaches during the restrictions. At a conference I recently attended, it was said that there were more reviews ongoing than ever before. Legal teams are finding that it is not only the police putting forward licensing reviews, but there is also an increased element of action by “interested parties”. Locals who have experienced an extended period of premises closures have, in time, become more sensitive to the typical noise that comes with a well-run premises. One of the options available to them is to commence a review alleging the venues causing public nuisance.

On the flip side of the enforcement action, some areas are actually reviewing the need for cumulative impact policies and late-night levies. The press has reported on these consultations, particularly those that have resulted in the removal of cumulative impact policies. Recently, we have heard that Nottingham has been thinking about scrapping its late-night levy, which is an extra enforcement cost on businesses that supply alcohol later into the night.

Unfortunately, there are also other local authorities that are contemplating imposing new late-night levies upon venues. In March, it was reported that Woking Borough Council had been asked to consider implementing these extra fees. It is currently unclear whether this will be approved, as in 2013 it was proposed and subsequently rejected. Operators are facing times of severe financial strain due to the aftermath of covid and the current cost of living crisis, so it is strongly hoped that there will not be an emergence of more late-night levies.

It is difficult to keep track of the way that enforcement matters are being actioned, but there is no doubt we will see different approaches taken by councils across the country. What hospitality must do, as it always does with great triumph, is adapt to the new circumstances. We would recommend reviewing staff training for both those that have worked at your venues a short while, and those who have become part of the furniture.

Operators should consider the way that the landscape has now changed and decide whether they need to review their day-to-day operations. Let me leave you with the reminder that there is always the option to try and alter a premises license in order to remove redundant or outdated restrictions. Help and guidance are always available for those businesses looking for ways to manage enforcement action.
Tim Shield is a partner at John Gaunt & Partners

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