New guidance - Licensing Act 2003 (Mandatory Licensing Conditions) (Amendment) Order 2014

You will hopefully be aware of the changes to the mandatory premises licence conditions made under the Licensing Act 2003 (Mandatory Licensing Conditions) (Amendment) Order 2014 ('the Order'), which come into effect 1 October 2014.

The Order effectively amends the current mandatory conditions created in 2010. Our previous summary of the changes can be found here and a commentary by John Gaunt here.

The Home Office has confirmed that the statutory guidance issued under section 182 of the Licensing Act 2003 will be updated and published in October. However, in the meantime the Government has today issued specific guidance relating to the Order. This has been published in advance of the 1 October 2014 commencement date in order to offer clarification on the conditions.

The guidance is split into sections dealing with each of the conditions, with the most notable points being summarised below.

1. Irresponsible promotions

   'Drinking games'

   These include games or activities that require or encourage individuals to drink a quantity of alcohol within a time limit, or to drink as much as possible. The guidance states that "The application of this prohibition is not subject to a judgment of risk, and so any game or

   activity that falls within it would be in breach of the condition", providing examples of this type of activity as "drinking relay races and drinking challenges based on quantity".

   'Provision of alcohol free or for a fixed or discounted fee' and 'Rewards for consumption of alcohol'

   Both the above will only breach the conditions in question if there is a "significant risk" created that would undermine a licensing objective. The guidance suggests a number of factors that may be considered when deciding if a promotion is irresponsible, including:

   • "Type of promotion:
     • How big is the discount?
     • For how long does the discount apply?
   • Potential customers:
     • Is there likely to be a significant increase in the number of customers?
     • What is the profile of the customer base?
   • Type of premises:
     • Is it a high-volume vertical drinking establishment or a community pub?
   • History of premises:
     • Have previous promotions been handled responsibly?
     • Has the licence been reviewed recently?
     • Have sufficient security measures been taken for any potential increase in the number of customers?"

2. Potable water

   It will be an offence to sell alcohol and not have free potable  water available on request for customers where reasonably available, which is materially the same as the current condition.

   The guidance confirms that the water does not have to be tap water and specifically mentions that the condition "helps people to space out their drinks and not become intoxicated quickly, which reduces the risk of crime and disorder occurring."

   The guidance further clarifies that what is meant by "reasonably available" is a question of fact and "customer" has its plain English definition. 

3. Age verification

   This condition is materially unchanged from its current incarnation except that acceptable IDs can now carry either a hologram or ultraviolet feature.

   The guidance makes a specific point about remote sales of alcohol in that "The condition does apply to companies that sell alcohol remotely (for example, online or by mail order). Since the condition requires that identification is produced on request, before alcohol is served, photo ID should be shown at or before the point of service".

   A model age verification policy is also provided within the guidance.

4. Small measures

   The small measures mandatory condition is unchanged in respect of the size of measures that must be available. However, changes have been made to the requirement of making customers aware of the availability of these measures. On this point, the guidance states:

   "As well as making the drinks available in the above measures, the responsible person must also make their availability clear on menus, price lists or other printed material, and ensure that these are available to customers on the premises (for example, at the bar).

   Where a customer orders a drink listed above but does not specify the alcohol measure, the customer should be made aware of the range of measures available. This can be either verbally or by ensuring they have seen the printed materials on which their availability is listed. If the responsible person is satisfied that the customer has been made, and continues to be, aware of the range of measures available, the responsible person does not need to repeat that information in relation to each sale."

This should hopefully provide some small measure of clarity (pun intended) to how far it is expected that the premises must go in bringing this matter to a customer's attention. No doubt reprinting of materials and retraining of staff need to be high on your agenda prior to the 1 October 2014 implementation date.

A copy of the new guidance can be found here: 'Guidance on Mandatory Licensing Conditions: For suppliers of alcohol and enforcement authorities in England and Wales'.

If you have any doubt as to whether a promotion you are running will be lawful under the amended condition or whether you need to take action in relation to the other conditions (particularly relating to small measures), please contact us.