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 He is there at the invitation of the licensee and under his permission only, and that invitation can be withdrawn at his whim.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:
- gender identity and gender reassignment
- pregnancy and maternity
- religion or belief
- 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  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.