House of Commons - Explanatory Note
Licensing Bill [HL] - continued          House of Commons

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ECHR considerations

54.     Articles 6 and 10 of the ECHR and Article 1 of Protocol 1 to the ECHR appear to be engaged with respect to certain clauses in this Part of the Bill.

55.     Clauses 19, 31, 35 and 52 deal with the determination of applications for the grant, variation and review of a premises licence, and for a provisional statement. In each case, the licensing authority must make a determination which may result in the application being rejected, and this could have a detrimental effect on the economic benefits which can derive from the licence or statement. It is considered that this would engage rights under Article 1 of Protocol 1 to the ECHR (protection of property). However, a licensing authority will not have a wide discretion but must act so as to fulfil its function of promoting the licensing objectives, and it must have regard to guidance issued by the Secretary of State. It is considered that this control of licensable activities represents a legitimate aim since it is in the public interest for the licensing objectives to be promoted, and that the control exercised by licensing authorities represents a proportionate response to achieve that aim.

56.     The clauses mentioned in the previous paragraph also engage rights under Article 6 (determination of civil rights and obligations), since the licensing authority will be acting as a regulatory authority when it decides whether or not to accede to an application. However, the clauses provide that a hearing must be held (unless all agree that that would be unnecessary), that a licensing authority must give reasons for its decision and that a disappointed party can appeal to a magistrates' court against a decision of the licensing authority. It is therefore considered that these clauses are compatible with Article 6.

57.     A licensing authority could impose a condition on a premises licence which had the indirect effect of restricting a person's ability to carry on an artistic or musical performance at the premises to which the licence relates, and it therefore appears that Article 10 (freedom of expression) could be engaged. However, given that a licensing authority may act only so far as is necessary to promote any of the licensable objectives, it is considered that any such restriction will be justified under Article 10(2) as necessary in a democratic society in the interests of public safety, for the prevention of disorder or crime, or for the protection of health and morals or for the protection of the rights of others.

58.     Clause 59 makes provision for a right of entry to premises by a constable or an authorised person following an application for the grant of a premises licence to assess the effect of the grant on the promotion of the licensing objectives. It is possible that this may engage rights under Article 1 of Protocol 1 to the ECHR since it may interfere with the peaceful enjoyment of possessions. However, this provision can be justified as necessary to ensure that the premises are suitable for use for carrying on the licensable activities in a way that promotes the licensing objectives. This is a legitimate aim and the provision is proportionate to achieve that aim.

Clause 12 - Premises licence

59.     For the purposes of the Bill, a premises licence is defined as a licence which authorises the use of specified premises for the carrying on of one or more licensable activities (see clauses 1 and 2).

Clause 13 - The relevant licensing authority

60.     This clause provides that for the purposes of premises licences, the relevant licensing authority for any premises is the authority in whose area the premises are situated (or mainly situated). If premises straddle two or more areas equally, applicants can nominate one of the licensing authorities in question to act as the relevant licensing authority. The effect of this clause is to identify the authority which will carry out licensing functions in relation to premises licences.

Clause 14 - Authorised persons, interested parties and responsible authorities

61.     This clause defines the terms 'authorised persons', 'interested parties' and 'responsible authorities' The significance of designation as an 'authorised person' is that it confers a role in the inspection of premises in connection with their use for licensable activities (see in particular clauses 57 and 59). An interested party or responsible authority may make representations to a licensing authority in relation to the application for the grant, variation or review of a premises licence.

Clause 15 - Meaning of 'supply of alcohol'

62.     This clause defines for the purposes of Part 3 the 'supply of alcohol' as sale by retail or the supply by or on behalf of a club to its members (see paragraph 28 above).

Clause 16 - Meaning of 'designated premises supervisor'

63.     This clause defines the term 'designated premises supervisor' as the individual who is specified in a premises licence as fulfilling the role of 'premises supervisor' for those premises. A 'designated premises supervisor' is required in every case where the premises licence authorises the supply of alcohol, and no supply of alcohol may be made on the premises unless there is a designated premises supervisor in possession of a personal licence (see clause 20).

Clause 17 - Applicant for premises licence

64.     This clause lists the categories of persons who may apply for a premises licence in respect of any premises. The principal category is anyone who carries on or proposes to carry on a business involving licensable activities on the premises. This will cover any individual (aged at least 18) or business which wishes to carry on, on a commercial basis, the sale of alcohol, the supply of alcohol by a club, or the provision of regulated entertainment (see Schedule 1) or of late night refreshment (see Schedule 2).

65.     The clause also provides that the following may apply for a premises licence: a person exercising a statutory function (for example, a local authority); a person exercising any function by virtue of the Royal prerogative (for example, a body exercising functions by virtue of a royal charter); recognised clubs (see note on Part 4); charities; educational institutions; health bodies in the public and private sector; the armed forces; the police; and any other category of person prescribed in regulations made by the Secretary of State.

Clause 18 - Application for a premises licence

66.     Subsections (1) to (3) provide that applications for a premises licence should be made, in the form prescribed in regulations made by the Secretary of State, to the relevant licensing authority, and must be accompanied by an operating schedule, a plan of the premises and (if the application proposes that the licence will authorise the supply of alcohol) a form containing the consent of the individual whom it is proposed will be specified in the licence as the designated premises supervisor.

67.     Subsection (4) provides that the operating schedule must set out various details relating to the operation of the premises when carrying on licensable activities, including the licensable activities to be carried out, the proposed hours of opening etc, the duration of the licence (if it is to have a fixed term), details about the individual (if any) who is to act as the designated premises supervisor, details of whether alcohol is to be supplied (if at all) for on-sales, off-sales or both, and a statement of how the applicant intends to promote the licensing objectives (for instance, the arrangements to be put in place to prevent crime and disorder, such as door security). The significance of the operating schedule is that if the application for the premises licence is approved, it will be incorporated into the licence itself and will set out the permitted activities and the limitations on them. As a consequence, it is the applicant who will decide, subject to the determination of applications by the authority, the nature and the extent of the activities and the conditions relating to the carrying on of the activities.

68.     Subsection (5) requires that the Secretary of State make regulations setting out how applications must be advertised, and specifying when interested parties and responsible authorities can make representations to the authority.

Clause 19 - Determination of application for premises licence

69.     Subsections (1) and (2) provide that unless relevant representations are made in respect of an application for a premises licence, a licensing authority will be required to grant a licence in accordance with any such application which is duly made. That licence will be subject to conditions consistent with those listed by the applicant in the operating schedule, and subject to the mandatory conditions set out in clauses 20 and 21.

70.     Subsection (3), together with subsections (6) to (8), provides that where relevant representations are made, licensing authorities are required to hold a hearing. In order for representations to be 'relevant' they must have been made by an interested party or a responsible authority (see the definitions in clause 14, paragraph 61 above) and they must relate to the likely effect of the grant of the licence on the licensing objectives. Representations relating to the identity of the premises supervisor may only be made by the police (see subsections (6)(b) and (9)) and must meet the requirements of subsection (9)(b). If the representations are made by an interested party there is a further requirement that the licensing authority does not consider them to be frivolous or vexatious. If it does, the authority is to explain its decision to the person who made the representations.

71.     The need for a hearing can be dispensed with by agreement of the authority, the applicant for the licence and all of the parties who have made relevant representations.

72.     Subsection (4) provides that when a hearing is held (or dispensed with as indicated above), the licensing authority must, if it considers it necessary for the promotion of the licensing objectives, attach conditions to any licence granted, rule out any of the licensable activities applied for, refuse to specify a premises supervisor, or reject the application. For example, a licensing authority may remove the performance of amplified music after 11pm from the scope of the licence applied for by a tenant of a pub in the middle of a quiet residential area, or it may prohibit the admittance of under-18s to premises where adult entertainment is provided. If the authority takes the view that none of the foregoing steps is required to promote the licensing objectives it must grant the licence in the terms sought by the applicant.

73.     Subsection (9) provides that a licensing authority may, within the same licence, impose different conditions on different parts of the premises, or impose different conditions in relation to different licensable activities.

Clause 20 - Mandatory conditions where licence authorises supply of alcohol

74.     By virtue of this clause some conditions are mandatory in respect of premises licences. The licensing authority will be required to attach to any premises licence relating to the sale of alcohol by retail the conditions that at any time when such sales are made ?     there must be a 'designated premises supervisor' who is the holder of a valid personal licence, and

  • every sale of alcohol must be made by a personal licence holder (although not necessarily by the designated premises supervisor) or an individual authorised by a personal licence holder.

Clause 21 - Mandatory condition: door supervision

75.     The other mandatory condition applies where premises are required by the licence to provide door supervision. Anyone carrying out such a security function must be licensed by the Security Industry Authority established under the Private Security Industry Act 2001. Subsection (2) specifies some exceptions to this requirement (e.g. theatres). The provisions of the Private Security Industry Act 2001 are amended by paragraph 117 of Schedule 6 to the Bill.

Clause 22 - Prohibited conditions: plays

76.     Under this clause, in the case of any premises licence authorising the performance of a play (see Schedule 1), licensing authorities will not be able to attach conditions relating to the nature of the play performed or the manner of its performance, unless they are justified as a matter of public safety. This clause reproduces for England and Wales the effect of section 1(2) of the Theatres Act 1968.

Clause 23 - Grant or rejection of application

77.     A licensing authority which grants or refuses a premises licence is required through this clause to notify its decision to the applicant, to any person who made relevant representations and to the chief officer of police for the relevant area. If the application is granted, the licensing authority must also notify those parties of any steps it took in response to relevant representations and its reasons for taking or not taking the steps available. It must issue the licence and a summary of that licence to the applicant. If the application is rejected, the licensing authority must notify those parties of the reasons for its decision.

Clause 24- Form of licence and summary

78.     This clause makes provision for a premises licence and the summary of that licence to be in a form prescribed in regulations made by the Secretary of State. Subsection (2) lists the basic requirements which those regulations must include as to the information to be included in a premises licence. Under clause 57, the summary must be displayed prominently at the relevant premises.

Clause 25 - Theft, loss, etc. of premises licence or summary

79.     Subsection (1) provides that the premises licence holders may apply to the licensing authority for a copy of the premises licence if that licence has been lost, stolen, damaged or destroyed. Subsection (3) provides that if the licensing authority is satisfied of the veracity of such an application, it must then issue a certified copy of that licence. Where a licence has been lost or stolen, there is an additional requirement that the licence holder has reported this to the police before a copy is issued. A fee may be prescribed for the issue of replacement documents. Subsection (5) provides that the provisions in the Bill will apply to the issued copy of the premises licence as they applied to the original licence. This clause applies in relation to the summary of the licence as it applies to the licence.

Clause 26 - Period of validity of premises licence

80.     This clause makes provision that, unless it has been granted only for a limited period, the premises licence will last until it is surrendered or revoked. Subsection (2) provides that if a premises licence is suspended, it will not have effect during periods of suspension.

Clause 27 - Death, incapacity, insolvency etc of licence holder

81.     This clause provides that a premises licence will lapse if the holder dies, becomes mentally incapable or insolvent, in the case of a company is dissolved, or in the case of a club ceases to be a recognised club. Insolvency, for the purposes of this section, can apply to either an individual or a company and is widely defined to include, among other things, voluntary arrangements, bankruptcy, administration and administrative receivership. However, subsection (2) provides that the lapse of a licence is subject to the possibility of it being reinstated under clause 47 or 50.

Clause 28 - Surrender of premises licence

82.     This clause provides that a licence holder may voluntarily surrender a premises licence by returning it to the licensing authority (or, if that is impractical, with a statement explaining why the licence cannot be returned, for example because it has been lost) accompanied by a notice of surrender. The licence holder must also give notice of surrender to each person with a registered interest in the premises and obtain their consent to the surrender. A premises licence ceases to have effect when the authority receives that notice of surrender. Subsection (4) makes reference to the fact that, in certain circumstances, surrendered licences can be reinstated (see clause 50).

Clause 29 - Application for a provisional statement where premises being built, etc.

83.     Subsections (1) and (2) provide that in relation to premises which are being or are about to be constructed, extended or altered for use for licensable activities a person interested in the premises (in the case of an individual there is the requirement that the person is 18 or over) may apply to the licensing authority for a 'provisional statement'. A provisional statement is a statement issued by the authority in accordance with clause 31 (see paragraph 85 below). Subsection (4) provides that any such application may be required to be in a form prescribed by the Secretary of State and to be accompanied by a fee. Subsection (6) provides that the application must also be accompanied by a schedule of works, which sets out details of the premises concerned, of the licensable activities intended to be carried on there and of the planned construction or alteration works (with plans). The effect of the clause is to establish a mechanism whereby those engaged in or about to engage in construction or development work at premises to be used for licensable activities, or already used for those activities, can obtain a certain degree of assurance about their potential trading conditions. By obtaining a provisional statement they can receive, at an early stage, a statement describing the likely effect of the intended licensable activities on the licensing objectives and an indication of the prospects of any future application for a premises licence.

Clause 30 - Advertisement of application for provisional statement

84.     This clause provides that regulations will require applications for provisional statements to be advertised in the prescribed manner to give responsible authorities and interested parties, including local residents, the opportunity to make representations about the application. Those regulations may also require any such advertisement to contain a statement, in wording set by the regulations, to make it clear that people will be precluded from subsequently objecting to the grant of a premises licence for the premises concerned if they could have made the same objection when the provisional statement was sought.

Clause 31 - Determination of application for provisional statement

85.     Subsections (1) and (2) provide that unless relevant representations are made in respect of an application for a provisional statement, a licensing authority will be required to issue a provisional statement in accordance with any such application which is duly made stating that no relevant representations have been made.

86.     Subsection (3), together with subsections (6) and (7), provide that where relevant representations are made, licensing authorities are required to hold a hearing. In order for representations to be 'relevant' they must have been made by an interested party or a responsible authority (see the definitions in clause 14) and they must relate to the likely effect on the licensing objectives if a premises licence were to be granted in the form sought if the premises were constructed or altered in the way proposed in the schedule of works (see clause 29). If the representations are made by an interested party there is a further requirement that the licensing authority does not consider them to be frivolous or vexatious. If it does, the authority is to explain its decision to the person who made the representations. The need for a hearing can be dispensed with by agreement of the authority, the applicant for the provisional statement and all of the parties who have made relevant representations.

87.     When a hearing is held (or dispensed with as indicated above), the licensing authority must decide whether, if the premises were constructed or altered in the way proposed in the schedule of works and if a premises licence was sought for those premises, it would consider it necessary for the promotion of the licensing objectives to attach conditions to the licence, to rule out any of the licensable activities applied for, to refuse to accept the person specified as premises supervisor, or to reject the application. The licensing authority must then notify its decision (together with its reasons for considering that it would be necessary to impose any condition or restriction in respect of a premises licence or reject an application for a premises licence) to the applicant, the police and any person who has made relevant representations about the application.

Clause 32 - Restriction on making representations following provisional statement

88.     By virtue of this clause, in cases where a premises licence is later sought for premises in relation to which a provisional statement has been issued, interested parties and responsible authorities will not be able to make representations on such applications in respect of matters upon which representations could have been made by them when the provisional statement was applied for. Subsection (3) provides that this restriction will not apply if a person who wishes to make those representations has a reasonable excuse for not having made those representations at the time of the application for the provisional statement, or if there has been a material change in the circumstances relating to those premises or the vicinity of those premises since that time. For example, a person may have been confined to hospital during the period in which representations could have been made in circumstances where arrangements could not have been put in place for representations to be made.

Clause 33 - Notification of change of name or address.

89.     This clause places a duty on the holder of a premises licence to notify the licensing authority of any change of name or address of the premises licence holder or of the designated premises supervisor (unless the designated premises supervisor has already done so in accordance with subsection (4)). Such notification of a change of the licence holder's name or address or that of the designated premises supervisor must be accompanied by the licence (unless that is impracticable, when a statement must be provided) and any fee that may have been prescribed. Notification of a change of the designated premises supervisor's name or address may be made by the designated premises supervisor under subsection (4) (in which case he must notify the licence holder). Failure to provide the required notifications is an offence.

Clauses 34 - Application to vary premises licence

Clause 35 - Determination of application under section 34 and

Clause 36 - Supplementary provision about determinations under section 35

90.     Under these clauses a premises licence holder can apply, in the prescribed form and manner, to vary that licence in any way, other than to change the designated premises supervisor (for which there is a separate procedure (see clause 37)), to extend the time for which the licence has effect (if it is time limited) or to vary substantially the premises to which it relates. In general the ability to apply for a variation of a premises licence under these clauses will concern variation of the conditions attaching to the licence or to the permitted licensable activities. Any such application may be subject to a fee and is subject to regulations under clause 18 relating to advertising requirements. The application must also be accompanied by the premises licence (unless that is impracticable when a statement must be provided).

91.     By virtue of clause 35, the authority must make the variation as applied for unless relevant representations are made, in which case a hearing must be held. In order for representations to be 'relevant' they must have been made by an interested party or a responsible authority (see the definitions in clause 14) and they must relate to the likely effect on the licensing objectives if the application were to be granted. If the representations are made by an interested party there is a further requirement that the licensing authority does not consider them to be frivolous or vexatious. If it thinks they are, it must explain its decision to the person who made the representations. The need for a hearing can be dispensed with by agreement of the authority, the applicant for the variation and all of the parties who have made relevant representations.

92.     In any case where relevant representations have been made, subsection (3) of clause 35 provides that the licensing authority must, if it considers it necessary for the promotion of the licensing objectives (see clause5), modify the conditions of the licence or reject the application for variation (in whole or in part). If the licensing authority does not consider it necessary to modify the licence or reject the application it will grant the variation in the terms sought. The authority must notify its decision to the applicant, the police and any person who has made relevant representations, and must give reasons for its decision. A variation of a premises licence may impose different conditions on different parts of the premises, or impose different conditions in relation to different licensable activities. The provisions in these clauses follow closely the procedure to apply in respect of an original application for a premises licence (see paragraph 66 above).

Clause 37 - Application to vary licence to specify individual as premises supervisor

93.     Subsections (1) to (3) provide that a premises licence holder can apply to name a person in the licence as the premises supervisor or substitute a different person for the person currently named. Any such application may be required to be in a form prescribed by the Secretary of State and to be accompanied by a fee. The application must also be accompanied by a form of consent given by the proposed new premises supervisor, and by the premises licence or the relevant part of the licence or a statement as to why the licence or part cannot be submitted. Subsection (4) provides that the applicant must notify the police and the existing designated premises supervisor, if there is one, of the application. Subsections (5) and (6) provide that the chief officer of police can object to the variation if he believes there are exceptional circumstances whereby the grant of the application to specify a new premises supervisor would undermine the crime prevention objective, and if so he must provide reasons for his decision within 14 days.

 
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Prepared: 17 March 2003