On the 8th of August 2020, the Local Government Association (“LGA”) called for a new temporary public health or COVID-19 licensing objective to be inserted into the Licensing Act (“LA”) 2003.

The LGA voiced its concerns that, “Licensing laws currently do not allow councils to take action on public health grounds, such as where COVID-19 guidelines are not being followed. They would need to use general health and safety legislation, which is less specific and makes it harder to intervene.” The LGA also called for the current guidance issued by HM Government for implementing social distancing and recording customers’ details in licensed premises to be made mandatory.

Current Powers

Existing powers in England created under the Health Protection (Coronavirus, Restrictions) (England) (No. 3) Regulations 2020/ 750 allow Local Authorities in England to give a direction imposing prohibitions, requirements or restrictions on licensed premises in their area. That includes a direction for the closure of those premises. A local authority must be satisfied that the following conditions are met before giving a direction:

  1. giving such a direction responds to a serious and imminent threat to public health,
  2. the direction is necessary for the purpose of preventing, protecting against, controlling or providing a public health response to the incidence or spread of infection by coronavirus in the local authority’s area, and
  3. the prohibitions, requirements or restrictions imposed by the direction are a proportionate means of achieving that purpose.

There is a right of appeal against a direction to a magistrates’ court. It is a criminal offence punishable only by a fine for a person to breach a direction and HM Government has issued guidance to local authorities on the use of these powers.

Local authorities also have powers to issue improvement and prohibition notices under the Health and Safety at Work etc. Act (“HSWA”) 1974 and closure notices under section 76 of the Anti-social Behaviour, Crime and Policing Act (“ABCPA”) 2014. However, neither of those existing powers are specifically aimed towards dealing with the particular types of risk presented by COVID-19. A prohibition notice under section 22 HSWA 1974 can only be issued where a local authority officer is of the opinion that activities involve (or will involve) “… a risk of serious personal injury.” A section 76 ABCPA 2014 closure notice can only be served where a local authority officer is satisfied on reasonable grounds (a) that the use of the premises has resulted or (if the notice is not issued) is likely soon to result in nuisance to members of the public or (b) that there has been or (if the notice is not issued) is likely soon to be, associated disorder near those premises, and the notice is necessary.

The LGA argues that, notwithstanding the above, there is a need for local authorities to have new powers so they can “… act quickly and proactively in cracking down on places that flout the guidance.”

Benefits of the Proposed LGA Approach

Current guidance issued under section 182 of the LA 2003 provides (see paragraph 2.7) that the existing public safety licensing objective, “… concerns the safety of people using the relevant premises rather than public health … Conditions should not be imposed on a premises licence … which relate to cleanliness or hygiene.”

Adding a new public health or COVID-19 licensing objective as the LGA suggests would potentially allow a local authority to review a premises licence in circumstances where guidance for keeping workers and customers safe from COVID-19 was not being followed. Such reviews may result in the local authority taking action against the licence ranging from modifying the conditions (including by adding new conditions on the licence holder to operate safely) right up to revoking the licence altogether. There is already provision made within the LA 2003 for fast track or summary licence reviews in circumstances where the police consider the premises to be associated with serious crime or disorder (or both). This quicker process could be replicated for COVID-19 reviews given the need to act swiftly to protect public health but that would be reliant upon the capacity of individual licensing committees to facilitate such fast track hearings (interim steps including suspension of the licence are available under the existing summary review process).

Another Way? The Welsh Approach

One alternative might be to adopt in England the approach currently being followed in Wales. Since coming into force on the 10th of August 2020, the Health Protection (Coronavirus Restrictions) (No.2) (Wales) Regulations 2020/ 725 have placed a duty on those responsible for “open” premises including restaurants, cafes, bars and pubs for the purposes of preventing the risk of exposure to coronavirus to take all reasonable measures to ensure that a distance of 2 metres is maintained between any persons both on the premises and whilst waiting to enter (exceptions apply). Those responsible must also take any other reasonable measures for example to limit close face to face interaction and maintain hygiene by, for instance, changing the layout of the premises. A local authority officer can enforce the regulations by serving either a premises improvement notice or a premises closure notice. An immediate closure notice can be served in circumstances where the following two conditions apply:

(a)  the person is not complying with the obligations imposed, and

(b)  the closure of the premises, or part of the premises, (without a premises improvement notice being issued first) is necessary and proportionate for the purpose of minimising the risk of exposure to coronavirus.

There is a right of appeal against an order to a magistrates’ court. It is a criminal offence to breach a closure notice punishable by imprisonment for up to 6 months and/ or a fine.

The necessary and proportionate test adopted in Wales is clearly less onerous for local authorities to satisfy than those which apply under current legislation in England. Adopting similar regulations in England would provide an answer to the LGA’s call for more specific powers so they can act quickly and proactively to enforce compliance and keep both workers and customers in licensed premises safe.

(This article was completed on the 13/8/2020)