Alcohol and entertainment licensing

Summary

The sale of alcohol is governed by the Licensing (Jersey) Law 1974. This provides for seven categories of licence. The law sets out opening hours, providing, for example, that pubs must close at 11:00pm. Applications for licences are decided by the Licensing Assembly comprising the Bailiff and jurats. Authority to grant extensions rests with the Bailiff.

The Attorney General has issued guidance saying he will refer a pub licensee to the Licensing Assembly if the licensee is pursuing advertising practices or promotions that are intended to increase the consumption of alcohol. The practices include promotions such as happy hours and two for one offers. There are no such restrictions on off licences.

At the request of the Attorney General, the JCRA reviewed the guidance. It noted that Jersey’s on-licence pricing restrictions are unique. Its conclusions included that “stakeholder feedback, economic theory and market outcomes all suggest they restrict competition” and that “high prices in the on-licence sector are likely to lead to a shift away from on-licence to off-licence consumption”.

Responsibility for giving permission for public entertainments rests with the Bailiff.

Discussions on reform began in 2009 and have included a number of policy papers, strategies and reviews, but no changes have been made.

The Strategy for the Visitor Economy, published in December 2023, identified as priorities reviewing the licensing law and developing an event strategy and appropriate legislation. However, it seems unlikely that any changes will be introduced before 2027.

It is generally accepted that the regulatory regime is out of date and needs significant revision. The key points raised within the industry are –

• The Attorney General’s guidance which bans promotions such as happy hours and two for one offers by pubs but not off-licence.
• Closing times of 11:00pm for pubs and 2:00am for clubs.
• Restrictions on the ability of retailers to compete on price.
• The arrangements for obtaining permission to hold an event.

There is also the important public policy issue that some decisions are not taken by or under the authority of elected politicians but rather by the Licensing Assembly consisting of the Bailiff and jurats, and by the Bailiff on his own in respect of entertainment.

A related concern is the inability to take action to change the legislation. There have been numerous reviews, consultations and committees but with the conclusion that the matter is very complex and needs further consideration.

While there is general agreement that a comprehensive new law is needed, given that this seems virtually impossible to achieve in the short term, one option would be to deal with some of the issues by a mixture of administrative measures (for example abolishing the Attorney General’s guidance on drinks promotions and streamlining the arrangements in respect of events) and amendments to the existing law (for example on hours of opening).

The legal position on selling alcohol

The law governing alcohol is the Licensing (Jersey) Law 1974.

Section 2 provides for seven categories of licence (the short descriptions are taken from the Voisin’s Law website) -

First Category (Taverners) Licence: usually held by public houses and permits alcohol sales to members of the public, but also allows off-sales until 9 pm.

Second Category (Residential) Licence: held only by hotels and restricts alcohol sales to hotel residents and their bona fide guests.

Third Category (Restaurant) Licence: permits alcohol sales with meals (or to non-diners if seated at a table and meals are available).

Fourth Category (Comprehensive) Licence: usually held by large hotels, this is a composite of the First, Second, Third and Seventh categories.

Fifth Category (Club) Licence: held by private members clubs and restricts alcohol sales to members and their bona fide guests.

Sixth Category (Off) Licence: permits alcohol sales for consumption off the premises and is generally held by shops. This is the only licence which can be held for different premises by the same person.

Seventh Category (Entertainment) Licence: holders include theatres and cinemas as well as nightclubs.

The law stipulates permitted opening times. For the taverners licence these are 9:00am to 11:00pm on weekdays and 11:00am to 11:00pm on Sundays, Good Friday and Christmas Day.

Applications are considered by the Licensing Assembly which is defined in the law as “the Assembly of the Governor, Bailiff and Jurats”. In practice the Governor is not involved.

Section 5.1 of the Law provides that -

Every application for the grant of a licence shall, before being submitted to the Licensing Assembly, be considered by the Parish Assembly of the parish concerned, and the Parish Assembly shall recommend to the Licensing Assembly whether or not the application should be granted.

Section 6 gives the Assembly considerable discretion -

(11) The Licensing Assembly, in deciding whether or not an application should be granted or whether a licence of a category different from that for which application is made should be granted, shall have regard to but shall not be bound by, the recommendation of the Parish Assembly.

(12) The Licensing Assembly may attach to any licence such conditions as, having regard to all the circumstances of the case may seem desirable, including, in particular, the designation of any bar as a public bar.

(13) Notwithstanding any other provision of this Law on the grant of a licence in respect of premises which comprise, or include, an area of land to which a chose publique permit relates, the Licensing Assembly may, in relation to that area of land –

(a) restrict the permitted hours specified in this Law in relation to the category of licence;

(b) vary any of the general conditions relating to on-licences specified in Article 12; or

(c) attach such further conditions as, having regard to all the circumstances of the case, seem desirable.

Section 23 provides for the inspection of premises –

(1) Where application is made for the grant of a licence, the Connétable of the parish concerned shall request the Chief Fire Officer, the Chief Public Health Inspector and any other competent person of the Connétable’s choice to inspect the premises to which the application relates and to furnish the Connétable with a report in writing on the state and condition of the premises, particular mention being made of sanitary conveniences and precautions against fire and for the safety of persons in the case of fire, in sufficient time for the report to be submitted to the Parish Assembly at which the application will be considered.

Section 89 gives the Bailiff discretion to grant extensions to normal licensing hours –

(1) The Bailiff may, if in his or her discretion the Bailiff thinks fit –

(a) grant to the holder of an on-licence a special permit authorizing the holder of the on-licence, on any special occasion, to sell intoxicating liquor by retail for consumption on the licensed premises and to keep the premises open to the public during the hours (being hours outside the hours authorized by the licence) specified in the permit;

(b) grant to the holder of an on-licence a special permit authorizing the holder of the on-licence, on the occasion of any race meeting, public fête, sporting event, agricultural, horticultural or commercial exhibition or social meeting, to sell intoxicating liquor by retail during the hours and at the place specified in the permit for consumption during those hours and at that place.

The Attorney General’s guidance on promotions

An unusual feature of the licensing regime in Jersey is the Attorney General's Guidance on Drinks Pricing and Promotions, the current version of which is dated December 2019. Article 9(1) of the Licensing Law provides that –

Whenever the Attorney General is of the opinion that any matter relating to a licence should be referred to the Licensing Assembly, the Attorney General may submit such matter to the Assembly and in any such case the Assembly shall consider the matter and, having regard to all the circumstances of the case, may suspend or revoke the licence in relation to which the submission is made or may attach thereto such conditions as may seem desirable.

The guidance explains what criteria the Attorney General uses in deciding to refer a matter to the Licensing Assembly. It is guidance but is taken to have the force of law. The guidance states that the Attorney General “will have no hesitation in referring a licensee to the Licensing Assembly if presented with evidence that a licensee has or is pursuing advertising practices or drinks promotions which are intended to or may have the effect of encouraging consumers to increase their consumption of alcohol.” The guidance applies only to on-licences. The practices referred to include –

• Any promotion that results in one or more alcoholic drinks being offered for sale at a price below the relevant stated price on the displayed tariff, for example buy one get one free, lower prices at certain times of the day or week and loyalty card schemes.
• If the stated prices on the tariff are significantly below those generally charged in other premises, the starting point being that a difference of 10% or more is likely to be considered significant.
• Any advertisements by 7th category licence holders which concentrate exclusively or substantially on the sale of alcohol and which make no mention or little mention of the provisions of entertainment.

In respect of off-licences a referral to the licensing assembly is likely if the sale price of any alcoholic drink is below £0.50 per unit of alcohol. The requirements on promotions do not apply to off-licences, so supermarkets and other retailers are free to make promotional offers.

In 2021 the Attorney General asked the Jersey Competition Regulatory Authority (JCRA) to undertake a market study of the impact of the guidance “on drinks pricing and promotions on the Alcohol market on Jersey.” The terms of reference stated that the study “will consider the economic impact of the Guidance and how it may affect competition and consumers.”

The JCRA published Alcohol Pricing and Promotions Market Study Findings and recommendations in March 2022. This was accompanied by a report by the consultants Frontier Economics.

The JCRA recommendations are set out below –

The findings of the market study with respect to the on-licence trade restrictions included in the Guidance are as follows:

• Jersey’s on-licence pricing restrictions are unique. Stakeholder feedback, economic theory and market outcomes all suggest they restrict competition.
• High prices in the on-licence sector are likely to lead to a shift away from on-licence to off-licence consumption. This is a trend identified by stakeholders and is consistent with economic theory, and the weight of econometric evidence from other countries.
• There are relatively higher on-licence prices on Jersey. This suggests the removal of pricing restrictions and responsible use of promotions could encourage competition and benefit consumers.
• There are other features of the on-licence trade that might also have an impact on competition. This includes tied relationships and exclusive wholesale supply deals.
• Inconsistencies in the way the Guidance is applied could impact the level playing field in the on-licence market.

The recommendations in the Frontier Economics Report are set out below.

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Notwithstanding the JCRA report the guidance remains in force. It is guidance and does not have the force of law but in effect has that status.

Entertainment licensing

Public entertainments are governed by the Unlawful Public Entertainments (Jersey) Regulations 2024, regulations that are made not under Jersey law but rather an Order in Council dated 14 April 1884. This makes it an offence to provide public entertainment without the permission of the Bailiff who may grant permission subject to the conditions that he thinks fit. A page on the government website sets out the procedures that need to be followed.

At least three months’ notice should be given of event and six months for “complicated events”. Depending on the type of event, applications may be considered by a panel which meets each month. The purpose of the panel is to advise the Bailiff on community safety matters that may arise from any public events. The Panel comprises representatives of the Police, Fire and Rescue Service, Ambulance Service, Health and Safety Inspectorate and Public Health Department.

History of reform proposals

For many years several aspects of the current arrangements have been subject to criticism on three main grounds –

1. They are unduly restrictive.

2. The procedures are bureaucratic.

3. Powers in respect of licensing rests with the Bailiff and jurats rather than elected politicians.

A timeline of proposals for reform was published in the Bailiwick Express on 23 April 2024.

2009 – The first licensing law consultation took place

2012 – Shadow Alcohol Licensing Policy Group (SALPG) formed

January 2014– Alcohol and Licensing Strategy for Jersey launched

September 2014 – Report on the Alcohol and Licensing Strategy published, including the draft of a new law with six licensing objectives

February 2016 – New Liquor Licensing Law consultation launched.

June 2017 – Assistant Economic Development Minister Constable Steve Pallett lodged a proposition for a new law in which the current Licensing Bench is replaced by monthly hearings from a Licensing Authority composed of a committee of seven States Members and three lay people (similar to a Planning Committee).

March 2018 – the Draft Liquor Licensing (Jersey) Law, "a decade in the making", is withdrawn over concerns not enough work had been done to scrutinise the legislation and stakeholders were "less than unanimous".

November 2018 – now Senator Steve Pallett says there is "no progress" on a new law and no resources to continue the work

October 2020 – still Senator Pallett sets up a task and finish group to develop... another new draft law which he insists is "not a return to square one"

October 2020 – States Members approve Deputy Lindsay Ash’s proposition to allow ‘happy hour’ and ‘buy one get one free’ promotions on drinks for a period of 15 months to stimulate the post COVID-19 economy. However, this progressed no further

September 2021– Jersey’s competition watchdog was asked to review the rules banning drink promotions like 'happy hours' at the request of the Attorney General

March 2021 – The Jersey Competition Regulatory Authority published a report into the impact of alcohol pricing and drinks promotions on pubs, bars and nightclubs, as well as off-licenses on the island. It said that restrictions on alcohol prices should be scrapped, and introducing responsible drinking promotions could help attract more customers. However, two local nightclub owners said that scrapping minimum alcohol prices and introducing ‘happy hour’ drinks promotions may do more harm than good for some businesses.

October 2022 – Deputy Kirsten Morel publishes his Ministerial Plan which announces another review to ensure the law is ‘fit for purpose’ and enable new and existing businesses, entrepreneurs and social enterprises to operate efficiently within the sector

April 2023 –Deputy Kirsten Morel promises The Licensing Law review will follow the conclusion of the Visitor Economy Strategy and the Barriers to Business Review.

December 2023– Publication of the Visitor Economy Strategy and the Barriers to Business review.

April 2024 – Deputy Kirsten Morel reaffirms his commitment to updating the licensing law as part of our ongoing work to lower barriers to business.

The 2014 Licensing law policy paper analysed the major issues, but it was discursive in nature and made few recommendations. Among the issues considered were -

• Revisions to the categories of licences.
• The composition of the Licensing Assembly with the suggestion that it should sit only with a presiding judge and two jurats.
• A possible limitation of licence numbers, which was not supported.
• The easing of restrictions on when young people could be on licensed premises.
• The need for a policy on extension of licences.
• Policy on drinks promotion and minimum pricing.
• Special events.

In September 2014 the Council of Ministers published the Alcohol and licensing strategy for Jersey . The objectives section is set out below -

The prime purpose of this strategy is therefore to reduce the harm caused by alcohol misuse; a purpose that recognises that many people who drink alcohol do not misuse alcohol.

Our six key objectives, which are the same as those set out in the Licensing Law (Section 2), are:

• the reduction of alcohol related crime and disorder
• the protection of public safety
• the prevention of public nuisance
• the improvement and protection of public health
• the protection of children from alcohol related harm
• supporting the local economy

We want our strategy to:

1. reduce the high levels of alcohol consumed in Jersey

2. reduce young people’s drinking and their access to alcohol

3. help those who want to drink less

4. reduce the rates of alcohol related offences and protect those at risk of those offences including: domestic violence, assault, public disorder and drink driving.

And in doing so, we want to

5. support business through an equitable and transparent licensing system

6. ensure any mechanism for controlling the consumption and availability of alcohol are evidence based, proportionate and do not unnecessarily penalise businesses or sensible drinkers.

The paper set out a two phase approach for a new licensing law -

Phase 1: A draft Framework Licensing Law has been completed and will be lodged for debate by the States following consideration by the new Minister for Economic Development. It will provide for:

• six licensing objectives
• amended licensing categories
• the introduction of personal licences
• conditions of licences
• licence renewal period
• the roles and responsibilities of statutory consultees
• the responsibility of the Alcohol and Licensing Policy Group who will provide direction, in the form of statement of licensing policy, to the Licensing Assembly
• appeals process for the Licensing Assembly

Phase 2: Once the draft Framework Licensing Law has been adopted, subordinate legislation will be brought before the States for debate. This subordinate legislation will:

• establish restrictions associated with each of the amended licensing categories (e.g.: operating hours)
• set out transitional arrangements from the old categories to the new categories
• set out a fee structure
• establish transitional arrangement from the old to the new licensing scheme.

The section concluded with the following comment –

The Council of Ministers are very aware that the development of the draft licensing law has been subject to significant delay. This two phased approach will minimise any further delays. At the same time it will ensure that the licensing trade, and other interested parties, have more time to consider and comment on the operating details, and associated restrictions, of each of the licensing categories.

The paper included a draft law.

In the event no progress was made and the draft law was eventually withdrawn.

In October 2020, States Members approved Deputy Lindsay Ash’s proposition to allow “happy hour” and “buy one get one free” promotions on drinks for a period of 15 months to stimulate the post COVID-19 economy. However, this progressed no further.

The current position – licensing law and promotions

On 3 April 2023 the Minister for Sustainable Economic Development, in a letter to a Scrutiny Panel chair, indicated that -

• He was generally supportive of the JCRA’s recommendations on pricing and promotions “and will work with the sector through development of the visitor economy strategy to determine which recommendations we should move ahead with as part of the policy development and law drafting process.”
• He expected to be in a position by the end of 2023 or early 2024, to make a decision on whether the Licensing (Jersey) Law requires amendments or even whether a new law needs to be drafted.
• “The review will be partly informed by the Visitor Economy Strategy which is itself being developed in close collaboration with stakeholders. Any amendments to the law will of course involve extensive consultation with stakeholders including the industry, Bailiff’s Chambers, Comité des Connétables and Scrutiny.”
• “At this stage it is not possible to give a definitive date on legislative changes, this will be contingent on the scale of amendments and updates to the law and on the resources available from the legislative drafting office.”

The Strategy for the Visitor Economy, published in December 2023, commented on the Licensing Law -

It is also recognised that the Licensing (Jersey) Law 1974 requires review, and the Unlawful Public Entertainment (Jersey) Regulations are no longer fit for purpose. Successive governments have been unsuccessful in their attempts to update these despite extensive consultation, leading to frustration within industry. There is also a need to ensure these reflect new and emerging business models and enable them to trade in keeping with changing customer expectations (e.g. for pop-up businesses, off-site trade and events).

Two policy priorities were identified -

41. Reviewing the Tourism (Jersey) Law 1948 and Licensing (Jersey) Law 1974 and amending or creating new legislation, as appropriate. In 2024, we will progress recommendations resulting from the Tourism Law Review that has been conducted in the latter part of 2023. Subject to the outcome of that, we will progress with the development of proposed amendments, conduct consultation and lodge if relevant in 2024. Will also review, consult on and if appropriate lodge proposed amendments to the Licensing Law, beginning with a review in 2024.

42. Developing an events strategy and appropriate legislation. We will develop, consult upon and lodge new legislation to establish an effective, proportionate and accessible event and public entertainment licensing regime and to replace the existing Unlawful Public Entertainments (Jersey) Regulations 2007.

The most recent indication of developments in respects of drinks promotions was the response given by the Minister for Sustainable Economic Development to a question in the Assembly on 11 June 2024 -

the current moratorium on drinks promotions is included within the scope of forthcoming amendments planned to the Licensing Law. As the prohibition is not explicitly contained within the Primary Law, this change will be achieved by updating the terms of on-licenced premises and by moving the responsibility for alcohol policy guidance to the Minister, and by extension the States Assembly, rather than the Royal Court.

The current position – entertainment licensing

The Minister for Sustainable Economic Development set out the current plan to reform the regulations in a debate on 11 June 2024 following which the Assembly agreed to extend the current regulations for a period of three years –

The regulations were first introduced in 1992 and they have been renewed by successive Governments 10 times. Although these regulations are straightforward in that they simply serve to clarify the Bailiff’s responsibilities on the customary law, the current system of management for events is complex. These Unlawful Public Entertainments Regulations overlap with parts of the Road Works and Events Law, and both sit alongside special arrangements for public places in the Licensing Law and in the various regulations for the policing of beaches, parks and roads. As a result, I am not satisfied with this current system and am committed to changing it. In 2023 I agreed to take on responsibility for these regulations from the Minister for Justice and Home Affairs as we both recognised the synergies between the future regulatory regime and the department for the Economy’s ongoing work in events promotion and the hospitality sector. The Bailiff may recall that I wrote to him and the Economic and International Affairs Scrutiny Panel in September 2023 to give advance notice of my intention to lodge these regulations for a final period of 3 years. This extension will give time for a new primary law to be drafted, debated and receive Royal Assent. For a regulatory framework to be drawn up - likely in the form of secondary legislation - for policy guidance to be issued, and for the transition to a new regime to take place. Three years may sound like a long time but I want to see the new primary law brought before the Assembly before the end of this term. The new Government will then be able to finalise secondary legislation in 2026 and set up the new regulatory regime in time for the expiration of the triennial regulations in July 2027. This is an ambitious timeline but work is underway and my department is working with events organisers to design a modern and proportionate events licensing regime.

The Minister set out the timetable in detail in a letter to the Scrutiny Chair on 3 September 2024.

I can confirm that I remain committed to delivering the Primary Law during this term of office, likely to be in early 2026, and will be pushing for the Regulations to be lodged, or at least provided to the Panel in a mature format, at the same time. I have set out below a timeline for this work, and at this stage this is only indicative since timings will be contingent on law drafting time amongst other factors.

• Q3/Q4 2024 identify, secure and appoint project management resources
• Initial scope of works for the delivery of the Events Framework, including proposed drafting instructions for a new draft events law, and other affected legislation.
• Q4 2024, Formation of Events Project Board who will oversee the development and delivery of the Events Framework

i. Form Project Board and Appoint Project Board Members

ii. Prepare/Agree Strategic Plan

iii. Appoint Working Group Leads

iv. Appoint Working Group Members

v. Agree Working Groups Terms of Reference and Objectives

• Q4 2024, Ongoing engagement with stakeholders including events organisers, Parishes, Scrutiny and emergency services, amongst others. This will build on the events workshop held in April 2024.
• Q4 2024, identification of preferred events regulator model – for example consider whether the future regime would be better managed from within Government, via an established regulator etc.
• Q1 2025, initial law drafting instructions issued to LDO and shared with EIA Panel.
• 2025 Law drafting process for legislation in coordination with the LDO and LOD. This process will also include drafting on the secondary legislation (Regulations) albeit this may need further time. The time needed for this process will determine the remaining indicative dates in this timeline.
• Q3 2025, public consultation on draft legislation with subsequent updates to the draft legislation. This consultation is also likely to include reference to the Regulations (albeit the latter will not be in their final form).
• Q4 2025, Final draft legislation prepared and taken to the Council of Ministers – if possible, this should also include a final draft of the Regulations.
• Q1 2026, Primary (and if possible secondary) legislation lodged and debated by the States Assembly,
• Q2 2026

o Primary legislation sent to Privy Council for Royal Sanction

o Events Law registered in Royal Court

o If not already complete, Secondary legislation (Regulations) brought before the States Assembly by the end of 2026.

o Q4 2026 onwards, following adoption of secondary legislation, we anticipate a brief

“hand-over” period to allow for events organisers to move over to the new regime with minimal disruption.

▪ If it is decided that a new regulator should be established, then this period would need to include the establishment of this body.

Issues

It is generally accepted that the regulatory regime is out of date and needs significant revision. The key points raised within the industry are –

• The Attorney General’s guidance which bans promotions such as happy hours and two for one offers by pubs but not off-licence.
• Closing times of 11:00pm for pubs and 2:00am for clubs.
• Restrictions on the ability of retailers to compete on price.
• Prohibition on nightclubs from playing music or allowing people to dance on Good Friday, which although not greatly significant in itself is indicative of the state of the legislation.
• The arrangements for obtaining permission to hold an event.

There is also the important public policy issue that some decisions are not taken by or under the authority of elected politicians but rather by the Licensing Assembly consisting of the Bailiff and jurats and by the Bailiff on his own in respect of entertainment.

A related concern is the inability to take the necessary action to change the legislation. The issue has now been on the agenda for 15 years and there have been numerous reviews, consultations and committees but with the conclusion that the matter is very complex and needs further consideration. It now seems unlikely that any changes will be made before 2027.

While there is general agreement that a comprehensive new law is needed, given that this seems virtually impossible to achieve in the short term, one option would be to deal with some of the issues by a mixture of administrative measures (for example abolishing the Attorney General’s guidance on drinks promotions and streamlining the arrangements in respect of events) and amendments to the existing law (for example on hours of opening).

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