The 21st Century Right of Refusal

ON THE AGES OLD RIGHT OF LICENCE HOLDERS TO REFUSE SERVICE, HOW THIS FITS WITH EQUALITIES LEGISLATION, AND PUBWATCH “BLANKET” BANS

It is a well worn badge of honour amongst the trade that a licensee has the legal right to refuse service to whom he chooses. You won’t find a statement of this in the Licensing (Scotland) Act 2005, or even the Licensing Act 2003, but this right has been enshrined in common law for centuries. Although generally well known in the trade, it is not common knowledge with the general public.

In R v Armagh Justices (1897) 2 Ir 57, Holmes J stated that a licence holder could pick and choose his customers. In an even earlier case, R v Rymer (1877) 2 QBD 136, it was held that a member of the public could not insist on being served in a public house. I see from my attempt at a witty footnote on discussion of this in my book “Licensing and Gambling Law in Scotland” (2009: Pg 113, fn 44) that “in this case [Rymer] a patron enterting a public house had brought with him a “large and undesirable” dog. It is not clear if the publican had refused to serve the dog or his owner“.

There is numerous other jurisprudence which confirms this “right”. A “public house” is not a “public place” in as much as it is not true to say that a member of the public can insist on being there. He is there at the invitation of the licensee and under his permission only, and that invitation can be withdrawn at his whim.  My request for a pint is an offer to buy said pint; it can therefore be refused. I cannot insist on being served.

Being refused actual entry to a premises is a simple extension of the right of refusal to serve. A door steward is acting on behalf of, or under instructions by, the licence holder and therefore can exercise the right of refusal on the licence holder’s behalf. This is why the unhappy clubber has no comeback when a steward simply says “not tonight”. No reason need be given.

Of course, the law of the land has shifted somewhat since the days or R v Rymer and it is sometimes argued that the right of refusal has been eroded by the adaptation of the ECHR under the Human Rights Act 1998; but that is a red herring. The 1998 Act imposes obligations on public authorities; not private businesses like pubs. It is not a “human right” for you to be allowed entry to a pub.

What is correct is that the right of refusal does not permit the licence holder to act illegally: a licence holder could not refuse service because of the customers’ race, creed, or sexual orientation for example. There have been a handful of cases in recent years concerning hoteliers refusing to let a room to a gay couple. One case from 2011, involving the Chymorvah Hotel, near Penzance, resulted in damages of £3600 to the couple who had been turned away. A more recent example comes from a decision in October 2012 when the operator of the Swiss Bed and Breakfast in Berkshire refused entry to a couple after she learned they were gay men. In that case damages of £3600 were also awarded and the matter attracted considerable media interest. In 2007 an Oxford pub paid £4500 in compensation to a man after refusing to serve him because he was a traveller.

There are numerous examples in the media of premises refusing service to soldiers in uniform. In some cases operators claim they are acting on advice from local armed forces bases who advise them that the soldiers based there are prohibited from entering local licensed premises. Owing to the media response to such scenarios, I would recommend that publicans ask for that request in writing.

Of course, discrimination law is now encapsulated in the Equalities Act 2010. The Act covers a variety of issues but for the purposes of this blog it criminalises discrimination against you when you use services, which of course includes those services offered by the licensing trade. It protects a number of “characteristics” such as:

  • age
  • disability
  • gender identity and gender reassignment
  • pregnancy and maternity
  • race
  • religion or belief
  • sex
  • sexual orientation

It also creates protections where you are discriminated against because a family member has one of these characteristics. One of the examples given in Citizens Advice literature is refusal to a club premises bceause your partner is a transsexual. Licence holders need to be aware of the impact of the 2010 Act on the common law right of refusal and remember that although the right exists it is not an invitation to exercise prejudice and does not cure illegality by way of discrimination.

Complementing the right to refuse entry is the specific offence under s.116 of the Licensing (Scotland) Act 2005 which states that a person on a licensed premises who behaves in a disorderly manner and refuses or fails to leave on being asked to do so commits an offence which can lead to a fine of up to £1000.

What happens if the refusal is not implemented by a single operator but is a “blanket” refusal by an organisation such as a pubwatch? This was exactly the case in R (on the application of Boyle) v Haverhill Pub Watch [2009] All ER (D) 105 (Oct). Here Mr Boyle was barred from all premises under the Haverhill Pub Watch scheme. He sought judicial review of this decision. The pubwatch scheme was run by the operators although it had input from the local council and police. There was a question as to whether the pubwtach was an “arm” of one or other but the court held that those authorities were merely “interested parties”; not part of the decision making process and that the pubwatch was not a “sock puppet” organisation (to use a modern aphorism).

Importantly, the court held that the blanket decision of all publicans’ in the pubwatch to bar Mr Boyle was an extension of their individual right as licensees to refuse service. In other words, that the pubwatch blanket ban was simply a more organised and efficient demonstration of the individual right of refusal and perfectly legal.

This case is also a warning shot to police and licensing authorities not to get too involved in a pubwatch type of operation otherwise the banning decisions made by them could be subject to judicial review. This could, for example, arise if a licensing board is in the habit of attaching a condition to a premises licence requiring the holder to join the local pubwatch. By compelling membership, there could be an argument that the authority is going beyond a sort of “advisory” relationship with the pubwatch and this may undermine the decisions the pubwatch makes. It is important that such organisations remain independent.

Watch out for a future blog on the notion of “reasonable force” in ejecting patrons.

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About Stephen McGowan

Leading Scottish licensing solicitor at TLT. Chairman of BII Scotland.
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38 Responses to The 21st Century Right of Refusal

  1. Richard says:

    This article describes perfectly what I needed to know. Blanket bans an efficient imposition of individual refusal of service. Perfect.

    • Feedback appreciated!

      • Cliff says:

        What about article 8 ECHR?

      • Cliff

        I’m no expert on ECHR law but I don’t think Article 8 is relevant in this debate. Article 8 relates to interference by a public authortity, not a private business like a pub. Even at that, the “right” can be superceded where necessary for certain matters which include public safety, prevention of crime, protection of health, and of others. All of which may be potentially be relevant to a decision to refuse service or entry.

        regards

        Stephen

  2. DFTP says:

    ok – but as a person entering a bar where they refuse to serve you and give no reason – where it is clearly down to a whim as to who they want to be seen in that put that day – is there nothing in law that defends your right to have information on the reason why you will not be served?

    • Thank you for the comment. There is no “right” for a customer to be given an explanation. The discretion is entirely in the hands of the licensee and he/she is not obliged to give reasons. There is also no requirement that the reason be justifiable in some way. It is akin to you refusing to let a member of the public enter your home. It is your home, and therefore the decision is yours. It is the licensees premises, and therefore the decision is his/hers. The common misconception is that the pub is a public place: it is not. The customer may have a remedy if he/she has been discriminated against on the grounds I mention in the article.

      That being said, there is a totally separate point to be made about responsible and even-handed operation, managing such situations appropriately, and avoiding conflict; all of which one might reasonably expect as a matter of “best practice” even if there is no legal requirement.

      • BJohnD says:

        OK, that’s fine, but if you are refused entry & no reason given, it is possible that you are being discriminated against. How can a landlord be justified in not providing a reason? If am white, straight it may be because of another reason I am not aware of, for all I know all the other patrons may be gay, that would be discrimination against sexual orientation.
        Therefore, if I am refused with no reason & I cannot think of a possible reason, it is fair to assume I am being discriminated against & I should have the right to redress.

      • Thanks for your comment. The point here is that the landlord is not legally bound to give an explanation for refusal and that is the basis for his justification. It may not be good customer relations not to do so but they have broken no law, unless the decision IS discriminatory. It is for the person refused to prove that he has been discriminated against. You do have the right of redress. You can challenge the landlord to provide an explanation but it may be unwise to do so at the point of rejection because being asked to leave a licensed premises and refusing to do so is a criminal offence. The safest option for the aggrieved person is to seek clarification at a later date. Ultimately if you believe you have been discriminated against then you can seek remedy in the civil courts.

        Stephen

  3. Stewart Tuckwood says:

    I have recently been refused at the pub where I work. Due to a stock take discrepancy (suspected theft) all members of staff are no longer allowed to drink in the pub after a shift, or during social hours. All our non- worker friends frequent the pub and it feels wrong/illegal to not be able to socialize with them. your thoughts please!

    • Stewart

      Asking staff not to drink on the premises is, in my view, legal and whilst annoying to you is a proportionate management decision which they are entitled to make. The licensee has ultimate right of refusal and this includes his staff.

      I am not sure if you are based in Scotland or elsewhere but there are certainly potential offences under the Scottish licensing laws about staff being drunk on the premises. This could, it is argued, apply even if not on shift.

      Stephen

  4. Pingback: Age Verification and Acceptable ID | Stephen McGowan's Licensing Blawg

  5. catherine says:

    As a bar managers working in a members club under a committee, do I have the power to refuse to serve certain individuals who are causing unrest on the said premises even if the committee say I have to serve them ?

    • You maybe committing an offence if you allow someone to stay on a premises who is drunk and disorderly. A club committee cannot override underlying offences that you personally may be liable for. Each committee member may also liable for these offences even if they are not physically present.

  6. Guzzie says:

    This is the part that foxes me:
    “It is for the person refused to prove that he has been discriminated against”.
    No publican is going to say ‘I’m not serving you because you are black/gay/a traveller’. When the publican gives their reason after being challenged via the right of redress, it remains a matter of speculation as to whether or not it is true. The customer could claim in court that the real reason was that she/he was wearing something that expressed a belief that was at odds with the beliefs of the publican. (Incidentally, the term ‘religion or belief’, as given above, confuses me because ‘belief’ may be subject to a very broad interpretation). And presumably, in the eyes of the law, a bar on the basis that the customer is, say, eccentric constitutes a valid reason?

    • Thanks for your comment. Ultimately it is a matter for the courts. The burden of proof remains on the accuser, and the burden is that of a ‘balance of probabilities’. Each case of alleged discrimination is on it’s own merits/demerits. It remains a matter of speculation unless there is crystal clear CCTV with excellent sound or some other first class proof. And in the end it is up to the court to decide who to believe. Ultimately however refusal of service is most often not a discrimination issue but a customer service issue. If bar staff are obnoxious, take it up with the owner/management. But remember that the law gives a wide blanket of protection to licensees in refusing service; so an aggrieved customer is unlikely to gain traction by saying the law is broken if they do not get served. There is no human right to insist on being served a controlled product where the supply of that product is at the discretion of those licensed so to do; and a public house or bar is not a public place. A customer has no right to be there other than at the invitation or consent of the operator.

  7. Guzzie says:

    Thankyou for your reply. The whole area seems replete with legal difficulties. If the customer gets told by the publican that they were barred for being a kind of character that the publican dislikes (with no suggestion that this implies trouble-making), then on the grounds that one acts according to one’s beliefs, the customer could claim discrimination against them for their beliefs, could they not? And if the publican is not more specific, then should they not be required to be as much by the court?

  8. paulneades says:

    I once had to give evidence in court after we had refused and individual who proceeded to kick the front doors in. The Judge asked why I had refused entry to the individual, I replied “with all due respect I did not give a reason for his refusal and I can’t give a reason now” the judge wanted to hold me in contempt of court and said I had to give a reason, I said it was my right as a licensee not to give a reason to the individual or explain why we refused entry. The frustrated judge had words with his Clarke who agreed I was correct. The judge was not happy.

  9. Guzzie says:

    The final issue for me, other than what I have already said about the ambiguity of the word belief (and I remain interested in hearing views on this matter), resides in Section 5 of the Public Order Act of 1986, which has it that “A person is guilty of an offence if he … uses … insulting words or behaviour … or displays any … visible representation which is … insulting.”. I consider that, unless the relevant publican definitively knows things about the barred individual that would cause any reasonably minded publican to impose a bar, the act of barring a person from a pub without giving any reason constitutes insulting behaviour since it implies some prejudicial aversion to an apparent charactistic. On the face of it, the defence – if such is given – that the pub is part of a dwelling does not seem tenable because the space allocated to the operating of the pub does not fulfil any functional role in regard to day-to-day living in the other living spaces on the ambient premises. Do I have a point?

  10. Guzzie

    The Public Order Act 1986 does not apply in Scotland (at least, the part you refer does not) so I cannot comment on that aspect with authority. Going back to the use of the word “belief” in the original article, perhaps a line can be drawn under this by referring you to the Equalities Act 2010 as this is now the primary peice of legislation dealing with discrimination in the UK. The Act contains protected characteristics which are: Age; disability; gender reassignment; marriage and civil partnership; pregnancy and maternity; race; religion or belief; sex; sexual orientation. This throws up some interesting anomalies! Consider a publican refusing to serve a women who is 8 months pregnant; but in doing so may have discriminated against her. But then consider discrimination on the grounds of age: would a court uphold an action by a 17 year old because he has been refused service? It is all a matter of competing rights and legal powers and obligations.

    The common law right or refusal is based on the idea that the public do not have a right to be in a licensed premises and access is entirely at the discretion of the landlord. A person enjoying the hospitality of a pub or bar is present on a form of “licence” from the proprietor, and that permission can be removed. I refer to some very old case law above – R v Rymer 1897. This was also followed in Sealey v Tandy [1902] 1 KB 296 where an English magistrate had at first upheld that the publican had erred in ejecting someone based on “previous behaviour”. On appeal, however the court, followed R v Rymer and the kernel of the Sealey case is: “The occupier and licensee of licensed premises has a right to request any person to leave whom he does not wish to remain upon his premises; his right is not limited to the case of persons who are drunken, violent, quarrelsome, or disorderly” (For the avoidance of doubt I have redacted reference to “an inn” which is no longer in point). These common laws, whilst old, still apply in both England and in Scotland. Ultimately if a member of the public feels aggreived that he/she has been refused entry to a licensed premises (or refused service) then he/she has a right to attempt legal redress. It will turn on the facts of the case.

  11. Guzzie says:

    Many thanks indeed, but unless there are nuances here that I haven’t quite picked up on, I don’t think you have addressed any of my questions sufficiently as to convince me that, as the law(s) stand(s) there are any definitive answers specifically as to the hypotheticals I have given (well, perhaps that’s your point!).

    The phrase ‘religion or belief’ seems to imply some nebulous philosophical tagging of belief to religion but I see no reason why this relation need be considered either valid or typical. However, I *do* see reasons why an individual’s actions, demeanour and so on – basically, the kind of criteria that might stir prejudice among people – should be the product of belief, and that a refusal of service might, in this context, suggest that there has been prejudice against the believer. Surely, with a well-crafted argument, anyone who is refused service without being given a reason – more specifically, a reason that would be sufficient for any reasonable publican to refuse service – could successfully prosecute on the grounds of discrimination against belief and/or, in England (sorry if I am beyond the scope of your blog here, but I truly appreciate your views nonetheless), of insulting behaviour? Sorry if I sound legally naive in all this.

  12. David Smith says:

    Hi, I was under the impression that the licensing act 2005 basically stated that and very basically put, if your open invitation was withdrawn, and you refused to leave you then became a trespasser and as such could be ejected from the premises. thanks

  13. The Argus in Brighton has picked up on a sign outside a gay pub that gives the impression that heterosexual strangers are not welcome. Here is the link: http://www.theargus.co.uk/news/11402294.___Gay_venue____sign_at_pub_causes_controversy/?cmpid=cmt

    One commenter has queried the legality of this sign.

  14. Stephen

    As a licensing solicitor I am not sure if you will be able to answer this question for me or not. I am currently looking into a story where a cafe owner refused service to a disabled person in a wheelchair (citing the reason lack of space within the cafe). They have previously refused service to customers with pushchairs. I am waiting for the ECHR to come back to me on how this sits with them but wondered if the premise you have stated below with regards to public houses would in theory apply to other businesses such as cafes?

    “A “public house” is not a “public place” in as much as it is not true to say that a member of the public can insist on being there. He is there at the invitation of the licensee and under his permission only, and that invitation can be withdrawn at his whim. My request for a pint is an offer to buy said pint; it can therefore be refused. I cannot insist on being served.”

    I am struggling to find any information in general about a businesses right to refuse service so any help you could give me on this would be much appreciated.

    Thanks

    • Emma

      First of all apologies for delayed response. It is my understanding that a commercial property such as a retail shop has a similar right to refuse or eject albeit not holding an alcohol licence. It is private property albeit the public can access it; they are still accessing by invitation and that invitation can be withdrawn. The Equalities Act 2010 would still apply and if the store operator discriminates against a protected characteristic then there could be a claim. I am not an expert on general retail law on equalities law and I imagine someone experienced in those areas may be able to offer further wisdom. I would be interested to hear what the ECHR response to your query was.

      regards

      Stephen

  15. Liam says:

    Dear Stephen
    I was refused entry to a bar last night in London. When I asked why, the door supervisor informed me he had the right to refuse entry to whoever he wanted and that included groups of males. Surely because of this reason of my sex I have been discriminated against. Furthermore he refused to identify himself with his SIA badge number or name.
    Your thoughts would be most helpful. Please quote me any Acts or Laws if you have a chance to reply.
    Many Thanks

    • Dear Liam

      If you feel you have been discriminated against then you have a right to reply and raise this with the operator or the SIA licensed provider in the first instance. The onus is on you to prove discrimination.

      Regards

      Stephen

  16. mikelister66 says:

    Hi Stephen, I stumbled across this post when researching into a new initiative in Torbay where under Police recommendation, bars and clubs are breathalysing patrons on the door to determine ‘drunkeness’. Whilst I acknowledge the right to refuse entry on grounds, using a generic breath alcohol limit (as low as 0.8mg/l in some places) isn’t this a completely arbitrary way of assessing how drunk someone is. Even the government’s own advice on drink driving states how it’s not possible to assign amount of alcohol to how drunk you are. None of it seems particularly illegal, just ill conceived and I wondered what your opinions on the matter were.

    Here is a link to the latest news article on it – http://www.torquayheraldexpress.co.uk/Hundreds-breathalysed-Torquay-harbourside/story-25751455-detail/story.html

    • Dear Mike

      Thanks for this. I was aware of the use of breathalysers in certain parts of England. My view is that it is arbitrary. “Failing” a breathalyser test might not necessarily mean the person is “drunk”. I tend to the view that the legal test for establishing “drunkenness” in licensing law terms is a higher level of drunkenness than having 80mg of alcohol in your breath; or indeed 50 as it is now is in Scotland. I would argue that the consumption of one alcohol beverage with no other environmental factors does not make someone drunk for the purpose of licensing law.

      There is no illegality in asking customers to take a breathalyser at the point of entry to a licensed premises. I do not necessarily agree with the concept however although note I am not familiar with this locality or project. My first thought was that it sends the wrong signals and could result in staff becoming lazy in terms of training and spotting the true signs of drunkenness in terms of licensing law. We need propertly trained and responsible staff and properly managed premises, not gimmicks.

      Regards

      Stephen

  17. Neil Pender says:

    I have a situation that is unusual, that I hope you might be able to shed some light on.
    I am a trustee of a charitable trust, that is also a venue with a licensee. I was refused entry recenty due to a political dispute with the chairman of the trust. He was not the licensee but got the security to ask me to leave (although, I suspect that the licensee of the premises would have leant his support and had me removed).
    So as a trustee of a charity that manages the building, can I be ejected from the premises for no attributable reason – even if it is a licensed premises?

    • Neil

      Thank you for your comment. The fact you are a trustee of the charity which manages the venue does not affect the general right of refusal. Being a trustee of a charity, or being a management figure, is not a protected characteristic under the Equalities Act 2010 so I would say the general right of refusal applies. The confusing part is that as a trustee of the charity you may be responsible for the management of the premises so there is an interesting dichotomy about “management” removing other “management”. This may depend on whether the charity holds the licence, or if it is held by an individual. If you believe this is politically motivated and is affecting your status as a trustee of the charity I suggest you take independent legal advice.

      regards

      Stephen

  18. Steve says:

    I have been barred from my local of many years for totally unjust reasons. A barman was rude and surly to me and so I said I would inform the manager about his unacceptable customer service and attitude on my next visit. On my next visit I was told at the bar that the manager in fact wanted to have words WITH ME! “That’s strange” I thought…. Instead of me getting an apology I was informed that the barman had seen him first, and had told him that I had been abusive and threatening to him (obviously he made up the story to protect himself from any disciplinary action due to my own complaint!). I had in no way been even slightly abusive or threatening. The landlord said he has a policy of backing his staff and was not even interested in my side of the story. He barred me!
    I presume from what I have read on your very informative site that even when such an injustice is involved in the barring I have no comeback or possible course of action? This does seem very wrong if correct!
    Another question if you don’t mind. If someone cannot be refused service for reasons of race, religion etc then how does this tally with a licensees “right” to refuse any body they wish at their own discretion? It seems to me that a racist landlord could bar a coloured person at his whim so long as he gives no reason? And that it would be almost impossible to have even this barring overturned? Or maybe I’m missing something here!?

    Cheers,
    Steve

    • Steve, the law tends to favour the licensee here for the reasons i explained. You cannot insist on being present. It is his pub. Whether or not you have been treated fairly or correctly is a separate issue concerning customer service. You have a right to complain to management verbally or in writing and if you wish.

      On your second question, the point is that the right exists but not as far as where it is discriminatory. But the onus is on the barred person to prove he has been discriminated against. Recent examples of where the courts have found that discrimination did exist include gay couples refused a hotel room.

  19. KBalcam says:

    Is it acceptable for a pub landlord to display a sign saying:

    “sorry, no stag parties or all male groups without prior arrangment”?

    I personally have no problem with this but others are claiming this is not acceptable and I would be interested to hear your views. The pub is not known to me but i understand it is located in a family holiday setting.

    Many thanks, Kate

  20. Luke Quinn says:

    I’m also interested on your views on this. I know of a small bar holds 250 people and they keep an equal balance of males/females inside their venue.
    they’ve stated before that they do this in the interest of their business – because its not just a bar full of customers the atmosphere is friendly and welcoming and the safety of their customers – they very rarely get trouble inside.
    they do let groups of guys in at their discretion, usually groups of guys that are regulars and are therefore less of a risk of causing trouble and they also do turn groups of women away if undesirable. they don’t let in any hen or stag do’s.

    they’ve also said they get a lot more guys trying to get in on a night than women and don’t just want a bar full of guys as this could destroy their business …. your thoughts please?

    • Luke Quinn says:

      sorry meant to say …..

      not just a bar full of males the atmosphere is friendly and welcoming and the safety of their customers – they very rarely get trouble inside.

    • Luke

      This is a difficult one. I am aware of one Scottish case where a male took a claim against a club in relation to a “ladies get in free” and this was settled out of court, although that is a slightly different scenario. I don’t think refusal of a stag do or hen do is discrimination; it is legitimate concern that the formation of that group may result in difficulties on an expectation that they be more inclined to misbehave. Using that logic, refusing a group of males on the basis that there are too many men inside already could therefore be seen as a refusal not based purely on the gender of the persons seeking entry, but on that legitimate concern that the overall management of the premises may be disadvantaged if their experience is that a mixed crowd is a better behaved crowd. That would be the reason for the refusal, not the gender. As I say, this one is difficult because that is one view and I can see how an alternative view could be argued.

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