By Gareth Hughes – Barrister and Licensing and Planning Consultant

The first time I heard the phrase “Agent of Change many moons ago, it brought to mind the sort of mysterious operative who appears in a John le Carré novel – an unseen hand rearranging the pieces of a complex puzzle. But in truth, the Agent of Change principle  – though newer to the statute books – has nothing to do with espionage, and everything to do with a more quotidian, yet equally fraught, battleground: the meeting point between culture and commerce, between music and sleep, between an audience’s applause and a neighbour’s complaint.

It is a principle with noble aims, born from a desire to protect our cultural institutions – music venues, theatres, pubs, nightclubs – from the slow suffocation of encroaching development. And yet, it is not a panacea. Too often, operators – having heard the term – assume it grants immunity from the trials and tribulations of noise complaints, licensing reviews, or civil actions. It does not. My purpose here is to offer a realistic, practitioner-level account of what the principle does, what it cannot do, and – most importantly – how to wield it to best effect.

The firing gun which initiated my further and  latest thinking on this one was the proposal contained in the recent Government’s sprint on licensing policy contained here – Licensing policy sprint: joint industry and HM government taskforce report – GOV.UK  – and particularly in this instant the following heading  – “Recommendation 10: make the agent of change principle a factor that must be considered when making licensing decisions”.   Hoorah! – at long last thought I – after all these years of hammering on about this. However, after the initial excitement has worn off, one begins to burrow down into the practicalities of it all and the thoughts I have set out below start edging there way to the forefront of one’s thinking. Its an excellent recommendation of course but its not a panacea and will require practitioners and operators to remain firmly on the ball as much as they should be now.  My thoughts run as follows and are by no means exclusive:

I. Origins and Nature of the Principle

The Agent of Change principle is deceptively simple: the party responsible for introducing a change into the environment should bear the cost of managing its impact. Thus, if a developer builds flats next to an established live-music venue, it is the developer’s responsibility – not the venue’s – to ensure residents are protected from noise.

In planning terms, this is now embedded in the National Planning Policy Framework (NPPF) and various local development plans. It is a recognition of what had, for too long, been a Kafkaesque absurdity: a theatre or club, having operated lawfully for decades, suddenly faced with enforcement because newcomers  – drawn, ironically, by the vibrancy that such venues bring – found the very sound of that vibrancy intolerable. I am often take back to an oft quoted example of my own and a case in which I was involved  –  that of the Ministry of Sound which operated its iconic venue for the best part of 25 years just around the corner from the Elephant and Castle, before a developer determined on the site right opposite the MOS entrance to construct a tower block for several hundred residents. No agent of change principle in planning in those days and lead to extreme concerns on the part of the MOS team who had run the premises without complaint for quarter of a century. We could have done with it them in both planning and licensing.

The principle is therefore one of fairness. But fairness in planning does not always equate to safety in law. For the practitioner, the phrase Agent of Change is not a shield of invincibility; it is, at best, a well-wrought breastplate, capable of turning some arrows but by no means all.

II. The Silo Problem

One of the most common misconceptions is that protection in planning equates to protection in licensing – or in civil law. It does not. Planning, licensing, and nuisance law are separate silos. Success in one does not guarantee sanctuary in another.

Consider: a planning condition may require a developer to install high-spec acoustic insulation. That condition may be discharged, signed off, and archived. Yet if, post-occupation, residents complain of noise, Environmental Health can investigate, and a licensing review can still be triggered. A civil claimant, alleging private nuisance, is not bound by the planning decision. The Agent of Change principle may inform the argument – it may even persuade – but it does not compel a licensing sub-committee or court to your side.

III. Vigilance: The Operator’s Best Defence

If the principle offers no automatic salvation, what then is the practical value? The answer lies in proactivity. Those who operate venues must not only understand the principle, but also act early, document thoroughly, and maintain relationships astutely.

1. Engage Early with Planning Applications

The seeds of most disputes are sown long before the first complaint is made. By the time a residential block has been completed, occupied, and the first letter of complaint sent, the die is largely cast.

The prudent operator therefore keeps a watching brief on local planning portals. It is astonishing how many do not. New residential developments – particularly those within the acoustic reach of your premises – should trigger immediate scrutiny. Representations to the planning authority should be made early, robustly, and with evidence. It was uplifting to see that one of the proposals in the “sprint” is that a music venue should be able to register itself on the planning register and that this would  automatically produce a flag as a planning constraint on the register. A further proposal is that the venue should be automatically notified of planning applications within a set radius should it be registered. Nevertheless even this is not an excuse for not remaining vigilant.

This is the moment to press for explicit planning conditions: measurable acoustic performance standards, post-completion testing, and -critically -recognition of your venue’s established use.

2. Insist on Precision in Conditions

Loose planning conditions are the developer’s friend. A vague requirement to ‘install adequate soundproofing’ is, in practice, almost unenforceable. In contrast, a condition specifying ‘sound insulation to achieve a minimum of 45 dB DnT,w + Ctr’ is a yardstick against which compliance can be tested.

Moreover, it is wise to request a planning condition that your venue be consulted during the construction and sign-off process. This not only keeps you informed but allows you to raise concerns before problems become entrenched.

3. Maintain and Improve Your Own House

The Agent of Change principle is no excuse for complacency. Venues should continue to invest in sound management: upgrading insulation, optimizing speaker placement, and – where necessary – installing limiters.

Equally, relations with neighbours, old and new, should be nurtured. A quarterly meeting with local residents, a mobile number for direct contact, a visible willingness to resolve concerns – these do not merely mollify; they create a narrative of reasonableness. In a licensing review, that narrative is invaluable.

IV. When the Knock Comes: Licensing Reviews

Even the most meticulous operator may face a licensing review. Perhaps a new residential block has been occupied and the first wave of complaints has begun. Here, Agent of Change can be deployed as part of a carefully constructed argument:

1. Documented History – Evidence of your existing use, trading hours, and noise mitigation.
2. Planning Background – The fact that conditions were imposed on the developer specifically to address noise.
3. Policy References – Local plan policies and national guidance embedding the Agent of Change principle.
4. Compliance Record – Correspondence with Environmental Health showing past co-operation.

But a note of caution: licensing committees are not bound to follow planning logic. Their remit is the promotion of the licensing objectives, and noise nuisance falls squarely within ‘prevention of public nuisance.’ Your task is to demonstrate that the nuisance alleged is either unfounded, already mitigated, or one the developer was obliged to prevent.

V. The Civil Law Dimension: Private Nuisance

Private nuisance claims – whether brought by a resident or a body corporate – are notoriously unpredictable. Courts are tasked with balancing the claimant’s right to quiet enjoyment against your right to carry on a lawful business.

An Agent of Change defence may be persuasive but will not be determinative. Courts will examine whether you have taken reasonable steps to mitigate noise. Expert acoustic evidence is essential – ideally showing that your venue operates within agreed or industry norms, and that any residual noise is within tolerable limits for the area.

Before litigation, consider negotiation. Courts expect it. Mediation or structured compromise -adjusting hours, altering bass frequencies, contributing to window upgrades -may save both sides from the cost and uncertainty of trial.

VI. The Role of Local Authority Relationships

In my experience, the venues that survive – indeed, thrive – under the new planning-licensing landscape are those with cultivated relationships within their local authority.

Environmental Health officers, licensing teams, and even planning officers can be allies if treated as such. Share your noise management plans, invite them for site visits, keep them informed of upcoming events likely to raise noise levels. Such courtesies often pay dividends when tensions arise. I cannot emphasize this point enough!

VII. Monitoring the Legal Landscape

The Agent of Change principle is still bedding in. Case law is sparse but growing. Operators should monitor both national developments and local policy reviews. Engage with consultations – both governmental and local authority. This is not mere civic duty; it is self-interest of the most practical kind. Policies are shaped by those who speak up.

VIII. Insurance: An Overlooked Safety Net

A handful of specialist insurers now offer cover for legal costs arising from noise disputes or licensing reviews. For venues at heightened risk – those in densely populated areas, or with a history of complaints – such cover can be the difference between survival and closure. As with all insurance, the devil is in the detail; ensure cover extends to both regulatory proceedings and civil claims.

IX. Record-Keeping: The Unheralded Hero

Finally, record-keeping. The operator who can produce contemporaneous notes of noise checks, resident communications, and meetings with council officers is already halfway to a persuasive defence. These records transform anecdote into evidence. Don’t leave your incident books gathering dust on your offices shelves –  keep them as living documents.

A simple diary – paper or digital – recording the date, time, and nature of checks, complaints, and remedial actions can, in a hearing, be worth more than the most eloquent submission.

X. A Word on Perspective

In Dickens’s Bleak House, the interminable case of Jarndyce v Jarndyce serves as a cautionary tale about the law’s ability to devour its own. The Agent of Change principle, while well-intentioned, has the potential – if misunderstood – to become another such arena of attrition. The wise operator will not rely on it as a solitary bulwark, but as part of a layered defence: planning vigilance, operational excellence, neighbourly diplomacy, and legal preparedness.

Conclusion

The Agent of Change principle is a welcome development for the protection of established venues. It restores a measure of fairness to a process that had, for too long, favoured the newcomer over the incumbent. But it is not a magic spell. It will not prevent all complaints, nor will it immunise you from regulatory or civil sanction.

Its real power lies in the hands of those who understand its limits, act before problems arise, and present themselves as reasonable custodians of their trade. In that sense, the true ‘agent of change’ is not the policy itself, but the operator who adapts, anticipates, and engages.

August 2025

By Gareth Hughes – Barrister – Keystone Law

I. Introduction

It is a truth — not quite universally acknowledged, but murmured in the corridors of every licensing practitioner’s offices— that government intervention seldom stops where it says it will. 

The Tobacco and Vapes Bill, currently winding its way through Parliament, is no exception. Presented under the banner of “protecting the next generation,” this ambitious piece of legislation promises nothing less than the total transformation of how tobacco and vape products are sold in England and Wales.

What begins as public health concern ends — as such matters often do — in a licensing regime. And for those in the business of hospitality, retail, or the regulation thereof, the implications are considerable.

The Bill does three main things and each of them are seismic (there are other parts of the Bill relating to notices and advertising (which I do not proposes to deal with in this short article)

1. It establishes a licensing scheme for tobacco and vape retailers and wholesalers.

2. It prohibits the sale of tobacco to anyone born on or after 1 January 2009 — not just until they come of age, but forever.

3. It arms local authorities and trading standards officers with sweeping powers of inspection, enforcement, and prohibition.

As with the Licensing Act 2003, what began as an effort to civilise a market may well encumber it — with bureaucracy, inconsistency, and legal uncertainty. And so we turn to the Bill with a lawyer’s eye and a citizen’s suspicion, to ask not only what it says, but what it means for the real world of retail tills, vape shops, late-night venues, and licensed premises.

II. The Licensing Regime: A New Architecture of Control

It is, perhaps, an irony worthy of Sir Humphrey Appleby that while one part of the government declares an intent to “free up” business from bureaucratic tangles, another quietly knits a new net. The licensing regime proposed by the Tobacco and Vapes Bill marks the most substantial intervention in the sale of tobacco products since the early 2000s.

At the heart of  the proposal lies a simple idea: only licensed persons may sell tobacco or vape products, whether retail or wholesale, and any such licence may be granted, suspended or revoked by a yet-to-be-named authority, most likely a local licensing authority or a magistrates court.

Although the detail has been largely deferred to secondary legislation of which no draft as yet appeared — a legislative habit that would make even Dickens’s Mr. Bumble grumble — we are told to expect:

– Eligibility criteria, likely to include background checks and tax compliance;

– Ongoing obligations, including record-keeping and staff training;

– Fees, not insignificant, and potentially scaled by turnover or sales volume;

– And crucially, enforcement mechanisms, including criminal sanctions for breach.

This is a licensing regime in the full sense of the Licensing Act 2003 — with all the attendant compliance risk and liability. One imagines a day not too far distant when Westminster’s model conditions will include, alongside door staff and CCTV, a requirement that “no sale of tobacco or nicotine product shall take place save by or under the authority of a person holding a valid retail licence.”

III. The Generational Ban: A Ratcheting Prohibition

The so-called “generational ban” on tobacco sales to those born on or after 1 January 2009 — a date whose surreal specificity feels almost satirical — is another bold stroke. If enacted, it would make the UK the first country in the world to legislate a permanent, incrementally expanding cohort of adults who may never legally buy tobacco.

To be plain: an 18-year-old in 2026 could lawfully purchase cigarettes. A 17-year-old born a few months later could not — not in 2027, not in 2037, not ever.

The enforcement of this policy becomes a practical labyrinth. Underage sales enforcement is familiar territory — but now, age itself is no longer the determinant. Instead, staff must check year of birth. No longer is it enough to train to “Challenge 25”; businesses must now train to challenge 2009!

The government has floated the idea of a digital age-verification tool or mandatory signage, but these are band-aids on a wound of legislative complexity. One wonders — as Coward might have said — whether the well-intentioned bureaucrat who proposed this ever actually tried to run a till on a Friday night in a convenience store in Hackney.

IV. Implications for Retail and Hospitality

For the hospitality and retail sectors, the Bill’s consequences are multifaceted:

– Hospitality venues that stock cigars or allow smoking in outdoor areas may be drawn into the licensing regime although the government has now made it relatively clear that beer gardens will not be subject to the smoke free places provisions

– Retailers will face licensing costs, compliance burdens, and enforcement risk, especially across boroughs with divergent interpretations.

– Staff training and internal policies will need updating, especially around ID checks and signage.

What matters most is certainty — and at present, the Bill gives us precious little of it.

V. Enforcement and Local Authority Powers

Trading standards officers are to be given enhanced powers — including entry, inspection, seizure and the right to issue prohibition notices and fixed penalties. These are quasi-criminal powers, often wielded with scant oversight.

The appeal mechanisms, though hinted at, are undefined. And the lack of judicial oversight or independent review is troubling. In effect, we are empowering borough officers to make decisions with criminal and commercial consequences, in real time, with little  accountability.

VI. Concluding Observations

If the Licensing Act 2003 marked the domestication of alcohol through regulation, the Tobacco and Vapes Bill may herald the beginning of the end for commercial tobacco sales in England and Wales.

And yet, for all its ambition, it raises more questions than it answers. What is the long-term intent? A smoke-free generation, or the slow suffocation of the sector? Will enforcement be fair, or fragmented? And will the courts — when they are finally invited in — find these provisions proportionate, rational, and lawful?

The prudent operator will prepare now. The prudent adviser will read every clause. And the prudent government, if there is such a thing, will remember that in regulating markets, it also regulates lives.

As lawyers, we do not pass judgment on policy. But as practitioners, we must ensure that those caught in the tangle of its language are not — like Kafka’s Josef K — punished without knowing the charge.

A very long day in front of the Westminster licensing committee two weeks ago defending some great clients faced with a review of their premises licence at the best Persian restaurant in London – Naroon of Marylebone one of the most fashionable areas of the city. We put together a crack team featuring Reza Rezamalekzadeh and Mohammad Malekzadeh the owners, Dave Nevitt as our wise expert and the magnificent James Anderson of Poppleston Allen and of course yours truly !!!

It was a very long hearing and we took this selfie at the end of the day. The review was heard fairly by the committee and despite the best efforts of some local residents to close the restaurant down we came away with a stronger premises licence than what we had when we went in and outdoors dining until 22:00 with all other hours untouched. Thanks to all the team and I highly recommend you visit this fine establishment for the most delicious Persian food around. Family run for local families as well with my clients living in Marylebone. A splendid result!

This is the text of a letter I have sent this week – 31st March 2025 to the House of Lords setting our my difficulties with regard to the Employment Rights Bill and the proposed amendments to the Equality Acy 2010 and the impact this will have on premises  licence holders under the Licensing Act 2003. Do give me a call if you require further advice on how these provisions will affect your premises if they become law.

Dear Lord Offord of Garvel

Say No to Banter Bouncers

I’m writing to express my grave misgivings about clause 20 of the Employment Rights Bill.

Clause 20 amends section 40 of the Equality Act 2010 to impose a legal duty on employers to “take all reasonable steps” to prevent their employees being “harassed” by third parties, meaning they could be sued by their employees in the Employment Tribunal if they don’t do enough.

That may sound reasonable, but the Worker Protection Act 2024 already extends employers’ liability under the Equality Act for third party sexual harassment and of course any form of physical assault is a crime, so the ‘harassment’ we’re talking about here is verbal. Among other things, it will include conversations between customers or members of the public that are overheard by employees – not directed at them – and which they find offensive in virtue of one or more ‘protected’ characteristic. Not just their own, mind you. Under this new law, employees will be able to take offence on behalf of one of their colleagues. Given that we live in an age in which some are hyper-sensitive, the implications for the hospitality sector of turbo-charging the Equality Act in this way are mind-boggling.

What “reasonable steps” will a publican be expected to take to protect his or her staff from overhearing conversations between customers that might upset them? Will it be sufficient to include a notice on the wall warning customers to keep their opinions to themselves on issues like trans rights, mass immigration and the Israel-Palestine conflict? Or will publicans need to go further and employ ‘banter bouncers’ to eavesdrop on customers and eject anyone for saying something ‘inappropriate’ or ‘problematic’, such as telling a dirty joke?

It seems extraordinary that this government, which claims to be ‘pro-growth’, is about to impose additional compliance costs on a sector that’s already on its knees. According to the Campaign for Real Ale, 37 pubs close every week in Britain. There’s little doubt that this new law will accelerate that rate of closure – and those that remain will be sanitized ‘safe spaces’ in which no one dares express a controversial opinion or tell a joke.

But it isn’t just pubs. In football stadiums, it’s not unusual for fans to shout “Are you blind?” at the linesman for failing to rule a goal offside or spot a handball. Once this new law is on the books, a partially sighted steward who overhears this could sue the club for not taking “all reasonable steps” to protect him from being ‘harassed’ in this way. That, in turn, means that clubs will have to clamp down on any expostulations or chants that might cause offence. After that, it won’t just be Sir Keir Starmer’s beloved Arsenal stadium that’s a library!

The same goes for bars, restaurants and hotels. If a feminist walks into a hotel lobby wearing a t-shirt saying “Woman = Adult Human Female”, chances are she’ll be shown the door lest the slogan offends a trans or non-binary member of the hotel’s staff.

Expecting employers to police the speech of their customers in this way will have a hugely chilling effect on free speech. The same fearful atmosphere that prevails in so many workplaces since the passing of the Equality Act, with people looking over their shoulders before whispering what they really think about a controversial issue, will be extended to the venues people go to in their leisure time. The era when people could relax in the speakeasy atmosphere of their local will be at an end.

Clause 20 will also have a chilling effect on free speech on campus. At present, external speakers cannot be no-platformed by universities on the grounds that their mere presence will upset a member of staff with one or more protected characteristics because employers aren’t liable for third-party harassment. Once this new law is on the books, that will be a legitimate reason to no-platform a speaker like Kathleen Stock or Helen Joyce – and woke activists will have a field day.

In the Commons, the Opposition tabled an amendment to the Employment Rights Bill disapplying clause 20 in its entirety and another excluding pubs, sports and hospitality venues from its impact, but not a single Labour or Lib Dem MP voted for either. Amending the Bill in the House of Lords is our last chance to stop this attempt to ramp up the policing of speech outside the workplace.

Even if you don’t share my free speech concerns, please consider the cost of complying with this new layer of red tape. The government has estimated the compliance cost for large/medium business will be £30 and for small businesses £19 – a ludicrous under-estimate. Just think about what clause 20 will mean for struggling hospitality businesses:

• They will be forced to navigate the deeply challenging terrain of balancing competing rights under the Equality Act, deciding where to draw the line between allowing a customer to express a ‘protected’ philosophical or religious belief and protecting their employees from being offended or upset.

• They will be forced to take legal advice on avoiding liability under clause 20 and what new mechanisms to put in place to police third-party conversations.

• In the course of taking “all reasonable steps” to protect their employees from third party ‘harassment’, employers will have to take on additional employees to monitor customer conversations and implement a ‘woke’ code of conduct.

How can a government that claims to be ‘pro-growth’ be contemplating such a measure? The businesses effected are already on their knees as a result of Covid, the energy crisis, the rise in the cost of living, Business Rate hikes, changes in business property relief, increases in employer National Insurance Contributions (NICs) and the upping of the National Living Wage. Turbo-charging the Equality Act in this way – and expecting employers to comply with it – will be the final straw for many struggling businesses, further devastating our high streets and swelling the ranks of the unemployed.

One final point: when the Equality Act was originally passed, it included a clause making employers liable for the harassment of employees by third parties, but it was repealed in 2013 because it proved to be so costly and difficult for employers to comply with. We mustn’t make the same mistake again.

Yours sincerely,

Gareth Hughes

The importance of regularly reviewing and refreshing operational procedures cannot be overstated, especially in the realm of licensing reviews. Over my three decades of experience as a barrister in licensing and also dealing with many reviews under the Licensing Act 2003, a common issue emerges where long-standing and indeed very experienced license holders tend to rely on past successes, assuming all is well due to years of incident-free operation.

I’m afraid the – “we’ve always done it this way” defence – cuts no ice with licensing committees.

Recently, in a police review I handled for residents, it became evident that a license holder had neglected to review their premises’ license conditions since its grant in 2005. While superficial compliance was maintained, the actual implementation fell short. Routine had overtaken vigilance, leading to a lack of preparedness when faced with a serious incident. Many staff had stopped thinking and were rather mindlessly operating out of habit. The absence of practice drills and clear procedures resulted in chaos during critical moments, compromising the preservation of crime scenes – a grave concern for police.

In such instances, the argument of mere technical compliance holds no sway with elected members. This case underscores the critical necessity for license holders to regularly revisit all license conditions with their staff, ensuring a thorough comprehension of each requirement and how best to fulfil them.

Recently, I was invited by a client to participate in a training session at a prominent London establishment, engaging a large staff cohort in dissecting and debating all 72 licence conditions. This exercise not only sparked innovative ideas but also revitalized operational approaches, fostering a culture of continuous improvement and vigilance. Now that kind of initiative has an infinitely better chance of ensuring a premises licence can be preserved on an application for review!!

Recent reviews at iconic venues such as Heaven, Groucho Club and Drumshed suggest that procedures had perhaps become somewhat tired and needed to be augmented by the addition of further new conditions which happened on review allowing each premises to remain open.

Photograph: Kate Busz for Time Out

In licensing committee hearings when applying for a premises licence under the Licensing Act 2003 you never get a second chance to make a first impression

In the hospitality industry, understanding your business concept is paramount for success, particularly when dealing with licensing committees and legal processes. Businesses that have a clear vision tend to thrive, while those lacking a defined concept may encounter challenges such as licensing issues, planning obstacles, or even rejection.

During a recent licensing committee session in central London, I observed an applicant struggling to articulate their business concept, leading to an unfavourable outcome amidst opposition. Witnessing their investments in time and money go unrewarded was disheartening.

Drawing from my experience representing successful businesses in legal settings, I’ve learned the significance of a well-defined business identity. Firms that grasp their identity can effectively present their case, inspiring confidence in decision-makers to grant the required licenses. This clarity is instrumental in obtaining a license that aligns with the business’s goals, ensuring a seamless operational journey.

Notable examples include Inception Group’s Mr Fogg’s venues, ETM, and Maven Leisure’s sports and rooftop premises, along with competitive socializing venues like Flight Club and Ping Pong. A distinctive image that appeals to officials and committee members simplifies the license application process and enhances the chances of securing a valuable trading premises license. Vague applications often face rejection by committees.

Give me a call so that we can start assisting you through all of this and give guidance on how to present the best case to committees of elected politicians and to magistrates

What is the effect on premises licensed under the Licensing Act 2003?

As I have previously posted setting out my concerns about the new proposals, pubs and other customer-facing businesses could feel obliged to restrict discussions on sensitive topics like transgender rights to mitigate legal risks under Labour government’s Employment Rights Bill. This would in my view having a chilling effect on custom at a time when things are hard enough for our hard pressed hospitality sector.

Now – the Equality and Human Rights Commission (EHRC) has cautioned that the proposed rules safeguarding employees from harassment by customers might overly limit freedom of expression, especially in instances of overheard conversations.

Clause 16 of the Employment Rights Bill aims to make employers accountable for third-party harassment of their staff, defining harassment as unwanted behavior related to a protected characteristic that undermines an individual’s dignity. The EHRC expressed concerns to MPs about the challenges in determining harassment in cases of overheard remarks, particularly if the expressed opinion qualifies as a philosophical belief under the Equality Act 2010, thus warranting anti-discrimination protection.

The EHRC highlighted the complexity of defining “philosophical belief,” encompassing perspectives on religion and transgender rights. The Commission noted the legal intricacies around this definition, which might lead businesses to proactively restrict discussions to avoid legal repercussions.

In light of these complexities, the EHRC recommended further scrutiny of clause 16 to ensure clarity and fairness in implementing the proposed regulations under the Bill. This proposal is not going away – the Conservative government last year rightly focused on sexual harassment and amended the law accordingly and dropped these proposals. Now they are back and the EHRC is expressing its concerns.

The Bill as it is currently drafted in February 2025 means that for example, a group of people having a debate about transgender rights may have to be told to be silent on this issue banter bouncers as it could possibly offend a member of staff who may take exception. Gender critical beliefs are a protected characteristic under the Act  This can only have a chilling effect om free speech in our pubs and bars which have over centuries been the for a forums for debate about the issues of the day.

In another example, a group of people watching a football match on a TV in the bar might shout out that the referee is blind ( a common refrain) and thus offend a partially sighted barman or waitress. There is no end to it!

Contact me if you need further advice on what promises to be a very tricky area of the law to navigate for licence holders.

“One of the great features of working alongside and acting for some of our great friends and clients in the hospitality sector is that you get to do wonderful things like walking the stage at the iconic Koko – the old Camden Palace. The boards have been trodden by Charlie Chaplin, The Rolling Stones, Madonna, Amy Winehouse and only a few weeks ago Dua Lipa plus countless other legendary performers over the last 100 years. We secured an 08:00 hour premises licence and doubled the capacity in a stress area to 1500 in an application under the Licensing Act 2003 which took two days in hearing.

The operators have done a simply magnificent job spending millions on refurbishing this wonderful venue including the celebration of the life of Dame Ellen Terry (pictured below) who played here in the 19th century and was I believe an aunt of Sir John Gielgud. What fun and very proud to be working with these guys. “

The current scenario is one on which many of us in the legal profession have pondered for many years and highlights a pressing issue in licensing hearings, particularly when reviews are initiated by residents. The absence of parties at these crucial hearings can have severe implications, as seen in a recent case I handled for a reputable client. Despite proactive measures taken by our client, including engaging with residents and presenting a robust defence supported by expert reports, the review proceeded without the residents’ presence. They just didn’t bother to turn up!

The lack of attendance resulted in the collapse of the case against our client, leaving them burdened with substantial costs incurred in preparing for the hearing. The case melted away like the current snows in the rising sun. There is a glaring gap in the system under the Licensing Act 2003 as licensing subcommittees lack the power to allocate costs, even when justified. This leaves businesses like those in our great hospitality sector grappling with financial setbacks, especially during critical periods such as the festive season. Owners and management also have their focus taken off the success of the business during such crucial periods.

Considering the significant impact of no-shows on the involved parties, it raises a pertinent question: Should licensing committees be empowered to order costs in situations where parties fail to attend hearings without prior notice, compelling others to bear the financial brunt of defending against unsubstantiated claims? This vital consideration aims to ensure fairness and accountability in licensing proceedings, preventing undue financial strain on businesses navigating already challenging operational landscapes.

Your thoughts on this matter are invaluable as we strive to advocate for a more equitable and efficient licensing framework that safeguards the interests of all stakeholders involved.

Is the tip for the waiter in the bar/restaurant going into a pot for his/her benefit? What should employers do with tips when they have control over them?

These questions and many more were answered last year in the Employment (Allocation of Tips) Act 2023 which amended the Employment Rights Act 1996.

Two million employees across our great hospitality sector are affected by this new legislation and this is now so important given that 80% of bills in bars and restaurants are now paid on debit cards with many establishments moving to cashless systems.

Very briefly the new 2023 Act provides the following:
(i) all tips gratuities over which the employer has control must be paid by the end of the following month without deductions
(ii) obligation to ensure fairness of arrangements for distribution among workers either via employer or independent tronc
(iii) a new code of practice from Secretary of State ensuring a fair distribution

It also ensures that employers have a written policy on the distribution of tips.

Along comes the new Bill and directs employers to consult with representatives of an independent trade union recognised by the employer in respect of workers who are likely to be affected by the policy, or representatives appointed or elected by those workers and having authority to receive information and to be consulted about the policy on behalf of those workers.

It appears that guidance issued by central government was not enough for this new government and now employers must involve the trades unions in crafting and commenting on their policies. There will also be a duty to make known to the employees any comments contained in the consultation on the policy.

I am getting a lot of calls from clients on many aspects of the new Bill affecting our sector so do let me know if you need any more detailed guidance.