Recent decisions made by two licensing authorities have called into doubt the viability of the Early Morning Restriction Order (“EMRO”) as an appropriate tool to deal with problems associated with the supply of alcohol late at night.  As has been widely reported in the trade press, last month Blackpool City Council’s licensing sub-committee was the first to reject the imposition of an Early Morning Restriction Order (“EMRO”) which would have prevented the supply of alcohol between 3am and 6am within an area covering 260 square metres and directly affecting 22 premises. As the dust has settled on this decision what learnings can there be for both licensing authorities, the police and the operators?

Blackpool has suffered from recurring significant levels of violent crime within the town centre and an EMRO was proposed to try and combat alleged related problems.  It was acknowledged that overall, there was limited criticism of the two main operators who opened beyond 3am. The sub-committee concluded that the imposition of the EMRO would not promote the licensing objectives and there was an increased likelihood of crime and disorder due to everyone spilling out of pubs and clubs at the same time or alternatively “hoarding” alcohol before the 3am cut off.  The fact that investment had been put on hold and that in actual fact it was the behaviour of a small minority which led to the problems was also taken into account.

More recently, Lambeth Council has also rejected plans for an EMRO banning the sale of alcohol between midnight and 6am in an area affecting four premises from the corner of Wandsworth Road to North Street, Clapham.  The licensing sub-committee voiced similar concerns to Blackpool in relation to the dispersal of patrons all at the same time and stockpiling drinks.  In addition the economic impact of the proposal had not been properly analysed.  The four premises in question had signed up a list of further measures including ScanNet, bag checks, increased cooperation between door staff, a common last entry of midnight, fortnightly meetings between venues and quarterly minuted meetings between the four venues, Council and residents.  The sub-committee endorsed and welcomed this partnership approach and also recommended that the Council investigate alternative methods for residents to record complaints (e.g. lovecleanstreets smartphone app) and for all four premises to engage with Clapham Business Community.  It is evident from the sub-committee’s decision that the commitment of the premises to ameliorate the situation meant that the sub-committee was unable to justify the imposition of an EMRO at this particular time but did make the point that it did not rule out recommending one in future if the recommendations and proposals by the venues did not lead to significant improvement.

Whilst the proposals for the first two EMROs have been rejected, this has not been the case with the contentious Late Night Levy (“LNL”) which enables licensing authorities to raise a contribution from late opening alcohol suppliers towards policing the night time economy.  The amount of the levy is set by the Government (ranging between £299 and £4,400 with multipliers applicable for certain premises) and is payable annually. The first LNL was recently introduced by Newcastle City Council in November 2013 with Cheltenham Borough Council due to follow suit in a few months at the start of April.  Several other authorities such as Leeds, Colchester, Islington, York and Tameside are consulting on proposals to introduce a LNL.

The concept of a LNL has generally not been welcomed by the licensed trade who feel they already have excessive outgoings in terms of business overheads, fees and rates without having an additional tax to pay.  There is also the feeling that the off-trade should have some accountability due to many patrons “pre-loading” on cheap alcohol before going out.  It is questionable how much practical effect the government’s imminent ban on selling alcohol “below cost” (the amount of duty plus VAT) will have on pre-loading.  For example a pack of four 440ml tins of “value” lager at 2% currently retails at £1.00 at a major British supermarket retailer.  From 6th April, the minimum price will be the amount of duty plus VAT meaning the minimum price for the four tins will be 39p – less than half the current retail price.

Undoubtedly the LNL will help raise short term revenue but arguably blanket approaches such as the levy and the EMRO do not encourage individual operator accountability and frustrates those who do act responsibly.  There is also a lack of transparency on how the revenue generated from the levy will be spent.

Newcastle City Council is currently working on the development of a bespoke Best Practice Scheme to encourage partnership working.  Premises that sign up to and meet the standards of the scheme will be eligible for a 30% discount off the levy.

Interestingly, in delivering its decision to reject the EMRO, the Blackpool sub-committee said that it hoped that the hearing would help to “rebuild relationships” and recommended that the Council support partnerships and a multi-agency approach with the formation of a Night Time Economy Working Group.  Lambeth’s sub-committee also placed a great deal of emphasis on voluntary partnership working between the venues and interested parties.   The decision to reject both EMROs has been welcomed by the licensed trade with the BBPA acknowledging that “making partnerships work, to tackle any late night problems, has got to be the way forward”.

The collaborative approach is also being strengthened by the recent naming of 20 Local Alcohol Action Areas (LAAAs) which aim to tackle areas with elevated levels of alcohol related problems.  The 20 areas, including Blackpool, will receive support from the Home Office, the Department of Health and Public Health England.  LAAAs will be linked with mentor areas that have successfully tackled similar problems and will see licensing authorities, health bodies, the police and other stakeholders working in partnership with business to proactively address the problems caused by excessive alcohol consumption.

What is clear from the recent EMRO decisions is that proactive engagement with licensing and other responsible authorities to help tackle alleged alcohol related crime may help to avoid a LNL or EMRO being adopted in the first place. Dealing with the root cause of the problem by working with all relevant stakeholders rather than reactive remedial measures is potentially a better approach than heavy handed blanket restrictions.