Licensing (Northern Ireland) Order 1996 - Registration of Clubs (Northern Ireland) Order 1996 - codes of practice

Background

The Licensing and Registration of Clubs (Amendment) Act (Northern Ireland) 2021 added Article 76F to the Licensing (Northern Ireland) Order 1996 and Article 41K to the Registration of Clubs (Northern Ireland) Order 1996. These Articles provide the Department for Communities with the power to approve a relevant code of practice produced by a person or group who have a relevant interest in matters surrounding alcoholic drinks.

A code of practice will provide guidance to licence holders and registered clubs’ officials on best practice and the basic standards expected in the industry regarding the display, sale, supply or promotion of alcoholic drinks on their respective premises.

Relevant interested persons or groups could represent businesses involving the sale, supply, production, or wholesale dealing in alcoholic drinks, or they could be researching the effects of the consumption of alcoholic drinks on public health or public order.

Submission

Draft codes of practice can be submitted to the Department via email. The subject field of the email should include ‘Draft code of practice’.

Alternatively, a draft code may be submitted by post.

Social Policy Unit contact details are available.

The closing date for submissions is up to and including 29 February 2024.

Further details relating to a code of practice (for the display, sale, or promotion of intoxicating liquor in licensed premises, and for the display, supply, or promotion of intoxicating liquor in registered clubs), things to consider when drafting a code and how to submit a draft code for approval can be found below.

Draft codes of practice

Who can produce a relevant code?

Under the new provisions any person or group of persons considered by the Department to have a relevant interest in matters surrounding intoxicating liquor, may produce a relevant code of practice in relation to the above activities. A person or group has a “relevant interest” if, under Article 76F of the Licensing Order or Article 41K of the Clubs Order, the person or group:

• is representative of persons whose business involves the sale of intoxicating liquor under a licence, or
• is representative of registered clubs, or
• is representative of persons whose business involves the production of intoxicating liquor, or
• is representative of persons whose business involves dealing wholesale in intoxicating liquor, or
• is engaged in research into, or otherwise has an interest in, the effects of the consumption of intoxicating liquor on personal or public health or on public order.

What is a relevant code?

A code of practice is relevant if it relates to:

• the display or sale of intoxicating liquor in licensed premises, or
• activities designed to promote the sale of intoxicating liquor in licensed premises whether for consumption in or off such premises, or
• the display or supply, or activities designed to promote the supply or consumption, of intoxicating liquor in registered clubs.

The purpose of a code

The purpose of a code of practice is to provide guidance to licensees and registered club officials on best practice and basic standards expected in the industry regarding the display, sale/supply and promotion of intoxicating liquor in their respective premises. It is intended that compliance with a code will assist in the reduction of alcohol related harm. A code should not simply be a replication of the law on these issues but rather it should complement the existing legislation.

A code of practice is more flexible and therefore more able to respond quickly to new and changing circumstances in society. A code of practice produced by those with a relevant interest has the added advantage that it was created by those with a vested interest in its success.

Things to consider when drafting a code

In addition to the provision of guidance on best practice in the industry, the author(s)/operator(s) of the code should consider the following:

• what consultation took place on the draft code;
• application of the code – who the code will apply to, [for a licensed premises code, all categories of licence must be accounted for in any code(s)];
• a court must be satisfied that any prospective licence holder/club is aware of the code and any licence holder/registered club on renewal is both aware of, and complying with a code i.e. there is no option for those licensed premises/registered clubs to which the code applies, to opt out from compliance with the code;
• purpose of the code;
• scope – what specifically the code will cover;
• how the code will be operated and its effectiveness monitored and, in particular, what administrative or other support or assistance will be in place to ensure these functions are carried out;
• what arrangements will be in place to ensure that the code will be easily accessible by those who will use it, and will be maintained and updated as necessary into the future;
• a complaints handling process which will investigate allegations of non-compliance with the code and record and report on those instances where premises are found to be in breach of the codes requirements;
• information on what action the operator of the code will take and the potential penalty of failing to comply with an approved code;
• insurance, should a licence holder/registered club take legal action over a court decision based on the notification of a breach;
• that a code includes the necessary assurances that a code operator will fully comply with all the personal data processing obligations contained within current data protection legislation;
• how the code will be publicised and made available across the industry and to any other interested parties.

What a code should not include

There are a number of matters which cannot and should not be included in a code:

• provisions already provided for in legislation;
• provisions relating specifically to pricing*

*Pricing is regulated in the UK under the Competition Act 1998.

Department’s approval of a code

Before approving a code of practice, the Department is legally required to consult with the police but may also consult with such other persons as it considers appropriate. Once a decision is made to approve a code, the Department will notify all relevant stakeholders, providing a copy of the draft code and the date it intends to approve. On the date of approval, a notice to that effect will be placed in the Belfast Gazette. Once approved, any amendments made to that code of practice will also have to be approved by the Department. It should be noted that the Department may withdraw approval from a code or any amendment to that code at any time.

The process for obtaining the Department’s approval of a relevant code of practice is shown below.

On submission of a code, a code operator should advise the Department how long it will take to become fully operational.

Steps for obtaining approval

1. The author of a relevant code of practice should provide a copy, in electronic format, to Department for Communities, Social Policy Unit before the closing date for submissions. Please quote “Draft code of practice” in the subject heading. Alternatively, a draft code may be submitted by post.
2. The Department may ask for more specific information about a code and how, in the author’s view, the code meets the criteria set out below.
3. The Department will consult with the police as required by law and may also consult with such other persons as it considers appropriate.
4. When satisfied, the Department will approve a code of practice and give notice of the approval in the Belfast Gazette, including the date on which compliance with the code comes into effect.
5. Any subsequent amendment to an approved code by its author must also be submitted for approval by the Department in line with the steps set out above.
6. The Department may withdraw its approval of a relevant code or of an amendment to it and steps (3) and (4) will apply in relation to withdrawing approval of a code or amendment as they apply in relation to approving it.

Department’s criteria for approval

The Department will apply the following criteria relating to requirements and aims of a code in determining whether to approve a relevant code of practice.

A code must:

• focus on industry activities and issues that aren’t already covered by legislation;
• represent an effort to define, set or raise standards (taking into account the views of relevant stakeholders during its development);
• have been subject to scrutiny that has allowed alternative views to those of the authors to be expressed and taken into consideration - this may include local councils, public health authorities and consumer groups, as appropriate;
• be publicly available and easily accessible.

A code should aim to:

• be widely supported and provide clear, practical and unambiguous statements of the proper standard of industry practice, covering significant conduct issues that a reader would expect to see;
• set standards that are broadly comparable in substance or intended outcomes with those that exist in other comparable retail markets;
• encapsulate what would be considered proper and reasonable standards of conduct among knowledgeable, experienced and industry representatives.

A code of practice will only have effect for the purposes of the Licensing Order and the Clubs Order if it has been approved by the Department for Communities.

Approved codes of practice and the Courts

Under the new provisions, before granting or transferring a liquor licence or granting a registration to a club, courts must be satisfied that applicants are aware of their responsibilities under any approved code. Where the application before the court is for the renewal of a liquor licence or a club registration the court must be satisfied that the applicant/each club official has been complying with an approved code of practice.