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Morning Briefing for pub, restaurant and food wervice operators

Wed 13th Dec 2023 - Legal Briefing

Anticipating and reflecting by Tim Shield

As I got to work crafting this month’s Legal Briefing, I took a moment to revisit the one I composed a year ago, just before Christmas 2022. My goal was to assess the developments over the past 12 months and potentially offer insights or expectations regarding changes in licensing and associated matters for the upcoming year. So, here I am again doing the same for 2024, as a gift to you for the festive season. 
 
This time last year, we were eagerly waiting to hear back about an update on the Night & Day Café Club case, which is a long-standing music venue in Manchester that has been in operation since 1991. It currently faces a noise abatement notice, which became the subject of an appeal. The Night & Day Café Club holds a significant place in music history, having hosted renowned bands such as Arctic Monkeys, Wet Leg and Kasabian, with many artists staging pivotal performances at the venue. It was originally expected to proceed to a hearing in January of this year, but the matter seems to remain unresolved even as we head into 2024. 
 
The Manchester Evening News reported that district judge Margaret McCormack adjourned the case for a second time in March because both sides were “going round in circles”. Talks between the involved parties broke down in July, but it was agreed that extra noise testing would be carried out by 3 September before the case returned to court, but nothing has been heard since. It will be intriguing to observe the case’s evolution in the ensuing weeks and months.
 
Noise abatement notices continue to be a common issue, and we have been regularly advising on how to appropriately appeal these and working towards resolving the issues raised on behalf of our clients.
 
Last year, I also highlighted that the team at John Gaunt & Partners observed a surge in other enforcement activities. I don’t feel that has changed or decreased in recent months unfortunately. In fact, there has been a notable uptick in the issuance of closure notices and closure orders, along with reviews of premises licences. We hope to see a reduction in 2024 so that the industry can take a well-deserved breath of relief. 
 
In the review of the news items that we’ve shared on our website in recent months and beyond, we can get some insight into what has evolved and what we aspire to see change in the future. Some of these developments are outlined below.
 
The first topic to highlight is the continued uncertainty around online licensing applications through gov.uk. Those intimately involved in lodging licensing applications will know that gov.uk currently provide an online portal that is available to licensing authorities and assist applicants in licensing applications through the central portal. The future of this has been under scrutiny, and there was a suggestion that this would continue only until March 2022. That was later extended until March 2025. 
 
It is to be hoped that this can be further reviewed with either a continuation of this service, or a national replacement to give certainty for applicants and licensing authorities alike. The system is certainly not perfect, and I think this is recognised by many parties, but is better than no system at all or a system that relies on individual licensing authorities. If this goes ahead, it could mean they are of the order of 370-plus different formats for applications around England and Wales – which would be a nightmare for larger chains with venues scattered across jurisdictions.
 
Next up is an emerging aspect in the realm of licensing that holds potential benefits for the industry, electronic identification. Everyone will be aware of Challenge 21 or Challenge 25, but at present, the requirements for proof of identification require a physical proof of ID, more often than not either a passport or driving licence. This does carry certain concerns though for customers and operators alike due to the potential risk of theft or loss of these very important documents. 
 
A proposal that has been discussed is around an adjustment of the law to allow electronic identification, and even the possibility of identification through other forms of digital technology, such as artificial intelligence facial recognition, to try and assess a customer’s age. It is to be hoped that this can be advanced, but with the general election on the horizon in the next 18 months, it does seem rather unlikely. 
 
In October this year, the policing minister chaired a meeting with senior police leaders and 13 of the UK’s biggest retailers to launch “Pegasus”, a new crime action plan designed to tackle the rise in shoplifting, which many will have seen widely reported in the press. It was reported that the government will contribute £30,000, while retail partners are to provide £800,000 of funding over the next two years, to try and tackle the issue. It will be interesting to see what impact this will have and how it will affect police attendance in these types of matters to help operators.
 
In Scotland, the government published its review of the operation and effectiveness of Minimum Unit Pricing (MUP) during the last five years. A price of 50p MUP came into force on 1 May 2018. Unusually, the legislation has a sunset clause, meaning it will expire after being in place for six years (30 April 2024) unless Scottish ministers bring forward new legislation.
 
As a result of the covid pandemic, two concessions were introduced concerning the use of external areas. One involved a simplified application process for obtaining a “pavement licence”, and the other allowed an extension of off-sales provisions in cases where they were not covered by a premises licence, with some exceptions. This allowed venues to continue selling their takeaway pints that we so valued during the lockdown restrictions. 
 
On 10 August, the pavement licensing regime was granted an additional 12-month extension, now valid until 30 September 2024. As we approach this deadline, it will be intriguing to see if a more permanent solution will be established, if the regime will be discontinued, or if there will be another extension. Similarly, the extension of off-sales provisions will be a point of interest, to see whether it will be prolonged or not.
 
It is also important to note ongoing consultation regarding the potential extension of the maximum number of temporary event notices (TENs) permitted in a calendar year, maintaining the elevated limit of 20 TENs over 26 days. Undoubtedly, all of these considerations could provide valuable support to the industry during challenging periods – so fingers crossed.
 
On a positive note, the government has recently initiated a consultation on extending hours during the latter stages of The UEFA Euro 2024 Men’s Football Championships, specifically if one of the Home Nations (England, Wales or Scotland) qualifies. As a general piece of advice to clients on such matters, is a reminder that responding to consultations is crucial. The more individuals who participate, the greater the likelihood that these issues will be given the due consideration.
 
I’d like to conclude by addressing TENs for Christmas and new year – and highlighting that there is still the chance to make your venue’s festive plans a reality. As of the publication of this article, there is still a narrow window to apply for a “late” TEN for Christmas Eve and a TEN for New Year’s Eve – particularly as these fall on a Sunday this year, and therefore, depending on your premises licence, may have more restrictive hours of trading. Time is of the essence, so get those applications in.
 
The entire team at John Gaunt & Partners extends our warm wishes for a successful Christmas and new year to everyone in the industry.
Tim Shield is a partner at John Gaunt & Partners

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