Late Night Levy and Early Morning Restriction Orders - Home
Office consultation response
The Home Office have now issued their response
to the consultation on secondary legislation for the implementation
of the Late Night Levy scheme ("Levy") and Early Morning
Restriction Orders (EMRO's) which form part of the Police Reform
and Social Responsibility Act 2011.
The new provisions will come into force in
October 2012. However, the implementation of
any Levy approved by a licensing authority will not be effective
until June 2013 at the earliest in view of the
consultation required with the police; agencies and operators of
licensed premises. In the case of EMRO's, a licensing
authority will need to consider any representations by premises
likely to be affected and the earliest implementation date will be
March 2013.
This bulletin will summarise the key points of
the levy and EMRO provisions which will now be brought into effect
through secondary legislation.
Late Night Levy
key provisions
- A licensing authority may decide that a late
night levy should be applied to licensed premises in its area with
the aim of contributing towards the policing costs for any crime
and disorder arising from alcohol supply between 12
midnight and 6 am.
- A licensing authority may not limit the late night levy to only
part of its area, although it will have discretion
on the time period to be applied between 12 midnight and 6am and
the days of the week.
- The levy will not apply to TEN's and a licensing authority will
have discretion as to whether an exemption will apply for New
Year's Eve.
- Premises will be able to apply for a free minor
variation if they wish to reduce their hours so they are
not affected by a levy.
- A licensing authority will have discretion
to exempt a limited category of premises from the
levy: hotels (residents only); theatres; cinemas; bingo halls;
community premises and sports clubs; country village pubs and
premises in Business Improvement Districts. [NOTE: No exemption
will apply to restaurants; off-sales premises; live music venues;
casinos; club premises certificates]
- A licensing authority will have discretion to offer a
discount up to a maximum of 30% for premises that
are part of or members of best practice schemes (for example,
Pubwatch or Best Bar None) subject to specific criteria.
Discretionary reductions may also be applied to premises receiving
small business rate relief with a rateable value below £12,000
The initial Consultation set out a 'Process
Map' for when and how licensing authorities should consult on the
need for a levy; its design including the exemptions and discounts
that should apply and further details will be provided in guidance
to licensing authorities. The proportion of net levy revenue
to be retained by licensing authorities will be set at a maximum of
30% which can be used to fund services connected to the management
or control of the night-time economy, including street
cleaning.
The implementation of a levy is an
optional power and the Home Office expect that
many authorities will not find it an appropriate means for raising
revenue. The Impact Assessment to the Consultation proposes
the following bands for the standard levy charge, based on the NDRV
of the premises:
|
Licence fee band
|
A
|
B
|
C
|
D
|
Dx*
|
E
|
Ex*
|
|
Proposed Levy charge
|
£299
|
£768
|
£1,259
|
£1,365
|
£2,730
|
£1,493
|
£4,440
|
|
*(Dx and Ex) Multiplier applies to premises in
category D and E that primarily or exclusively sell alcohol
|
The Levy scheme is certainly controversial and
will undoubtedly lead to inequities for individual premises where
authorities eventually decide to implement a scheme. Although
the initial indications were that only a limited number of
licensing authorities appeared to be interested in implementing a
levy, this number is likely to increase as the details in the
regulations and guidance become clear and licensing authorities
start their consultation and consider the revenue benefits.
EMRO's
EMRO's were initially introduced by the last
Government as a means of enabling licensing authorities to restrict
the sale of alcohol in the whole or part of their areas between 3am
and 6am but the provision was never implemented. The new
Government has amended the hours so that authorities can apply the
EMRO for any specified period between 12 midnight and 6
am and this will obviously capture far more premises.
Although the Consultation proposed possible
exemptions for certain premises, the Government have now decided
that the only exemption will be for hotel
residents using mini-bars or room service. All licensed
premises and club premises certificates that fall within the
designated EMRO area will therefore be subject to the restriction
on alcohol sales for the specified times under the Order and this
will also apply to any TEN's. The only exemption that will
apply will be for New Year's Eve.
Licensing authorities will be required to
consult with operators of licensed premises and local residents
likely to be affected and advertise their intentions to introduce
an EMRO. Respondents will be able to make representations for
and against the proposed EMRO within a 42 day
period. It appears the matter will then be determined at a
hearing although regulations will set out the procedures that will
apply and guidance will be issued to licensing authorities.
The Government envisage that EMRO's are likely
to target "relatively small problem areas of perhaps 15-30
premises." However, the discretion on a proposed EMRO
will rest solely with the licensing authority which will be able to
make its decision based on what it considers is "appropriate" to
promote the licensing objectives. In our view, the provision
is too draconian and will capture perfectly good operators of
licensed premises that happen to fall within the area of an EMRO
where an authority decides to make an Order. Licensing
controls should be targeted at specific problem premises on the
basis of reliable evidence and there are adequate powers available
under existing legislation.
