Clause 38 - Circumstances in which section 37 application given interim effect

94.     An application to vary a premises licence so as to name a different premises supervisor may be given immediate effect (that is, from the time that the application is received by the licensing authority) if the premises licence holder requests it at the time he makes an application under clause 37. This clause enables the holder of a premises licence to continue the supply of alcohol if for example the existing premises supervisor is suddenly indisposed or unable to work. If the application is rejected, the licence reverts to the form it took before the application was made.

Clause 39 - Determination of section 37 application

95.     By virtue of this clause the relevant licensing authority must grant the application to vary the designated premises supervisor except where the chief officer of police for the area gives notice that to do so would undermine the crime prevention objective, in which case a hearing must be held. The need for a hearing can be dispensed with by agreement of the authority, the applicant for the variation and the police.

96.     In any case where the police have given notice of objection under clause 37(5), the licensing authority must, if it considers it necessary for the promotion of the licensing objectives (see clause 5), reject the application for this variation. In any other case the variation must be granted.

97.     The authority must notify its decision to the applicant, the police and the proposed new designated premises supervisor, and must give reasons for its decision.

Clause 40 - Duty of applicant following determination under section 39

98.     If an application to vary the designated premises supervisor is granted, by virtue of this clause the premises licence holder must notify the person (if any) who is being replaced as such supervisor. Failure to do so will be an offence.

Clause 41 - Request to be removed as designated premises supervisor

99.     A person who wishes to cease acting as designated premises supervisor may give notice under this clause. If this person is also the premises licence holder, his notice must be accompanied by the premises licence (unless that is impracticable when he must give a statement of reason as to why this is the case). If he is not the premises licence holder, he must provide the licence holder with a copy of the notice and notify the licence holder that he must send the premises licence to the relevant authority. Failure by the licence holder to submit the licence will be an offence. An effect of this clause is that whenever a person stops acting as a designated premises supervisor, the licensing authority will be informed of it and can make the appropriate change in the licensing register. By virtue of subsections (7) and (8) the designated premises supervisor will cease to be such either at the time the licensing authority receives an application or the time specified in the notice if that is later.

Clause 42 - Application for transfer of premises licence

100.     Subsections (1) and (2) set out those people or bodies who may apply for the transfer of a premises licence. These are the same as the people and bodies who may apply to be granted a premises licence under clause 17. 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 the premises licence (unless that is impracticable and then the applicant must state the reasons why this is the case). Subsection (5) provides that the applicant must notify the application to the chief officer of police for the area. The police can object to the transfer if they believe there are exceptional circumstances whereby the grant of the application would undermine the crime prevention objective, and if so they must notify the licensing authority and provide reasons for the objection within 14 days.

Clause 43 - Circumstances in which transfer application given interim effect

101.     By virtue of this clause a person applying for the transfer of a premises licence may request that it be given immediate effect (that is, that it takes effect from the time that the application is received by the licensing authority). Such an application generally requires the consent of the holder of the premises licence. But no consent is required if the applicant can show that he has taken all reasonable steps to obtain that consent and that he is in a position to use the premises straightaway for the licensable activities authorised by the licence. An authority must provide reasons for any decision to refuse to exempt an applicant from the requirement for consent. The effect of this clause is to allow licensable activities to be carried on, at the premises, without interruption, pending the determination of an application for a transfer. The clause allows for the possibility of a transfer being given interim effect even where the transferor has not given consent because in some circumstances he may be indisposed or unable to give consent, or a conflict may exist between the existing licence holder and others which does not concern the carrying on of the licensable activities for the purposes of the Bill. If the application is rejected, the applicant ceases to be treated as the holder of the licence under this section and the licence reverts to the person who held it before the application was made.

Clause 44 - Determination of transfer application

102.     Where a person applies for a premises licence to be transferred to him, this clause provides that the licensing authority may not consider the application unless

• the transfer application has been given immediate effect under clause 43,

• the existing licence holder has agreed to the transfer, or

the applicant has been exempted from the need to obtain that consent. An applicant will be so exempted if he can show that he has taken all reasonable steps to obtain that consent and that he is in a position to use the premises straightaway for the licensable activities authorised by the licence. An authority must provide reasons for any decision to refuse to exempt an applicant.

103.     Subsection (5) provides that if the police have notified the licensing authority of objections under clause 42, the authority must hold a hearing to consider the application for transfer, and, if it considers it necessary for the promotion of the crime prevention objective (see clause 5), must reject the application. The need for a hearing can be dispensed with by agreement of the authority, the applicant for the transfer and the police. The clause provides, in subsection (2), that in all other cases the authority must grant the application for transfer.

Clause 45 - Notification of determination under section 44

104.     By virtue of this clause the licensing authority must notify its decision to the applicant and to the police, and in any case where the police gave notice under clause 42 the authority must give reasons for its decision to grant or reject the application. The authority must also notify its decision to the person who was the licence holder before the application for transfer was made or, where applicable, before it was given interim effect.

Clause 46 - Duty to notify designated premises supervisor of transfer

105.     An applicant for the transfer of a premises licence pursuant to clauses 42 and 43 must under this clause notify the designated premises supervisor (if any) specified in that licence of his application and, if the application is successful, of the transfer of the premises licence to him. Failure to do so is an offence.

Clause 47 - Interim authority notice following death etc of licence holder

106.     In the initial seven days after the lapse of a premises licence due to the death, mental incapacity or insolvency of a premises licence holder, those with a prescribed interest in the relevant premises or connected to the licence holder (by virtue of being the licence holder's personal representative, having an enduring power of attorney in respect of the individual, acting as insolvency practitioner or having registered an interest in the premises), under this clause can give an interim authority notice to the relevant licensing authority. But no notice can be given if application for a transfer of the premises licence under clause 50 has already been made (see paragraph 109 below). Any such notice may be required to be in a form prescribed by the Secretary of State and to be accompanied by a fee. Subsection (7) provides that a copy of the interim authority notice must also be given to the chief officer of police by the end of the initial seven day period. By virtue of subsection (6) the effect of such a notice will be to reinstate the lapsed premises licence, and for the person who gave that notice to become the licence holder, from the time the authority receives the notice for two months, or until terminated by the person who gave notice, unless a successful transfer application is made to the relevant authority within that time. The reinstated licence will also lapse if the police are not notified of the giving of the notice within the initial seven day period. A person who gives an interim authority notice becomes the holder of the licence for the interim authority period. Subsection (8) makes it clear that, notwithstanding this, he may apply for the licence to be transferred to him permanently.

Clause 48 - Cancellation of interim authority notice following police objections

107.     Subsections (1) and (2) provide that the police can object within 48 hours of being notified of an interim authority notice, but they can do so only where they believe that exceptional circumstances mean that a failure to cancel the notice would undermine the crime prevention objective. Subsections (3) to (6) provide that in such cases, the authority must hold a hearing to decide whether or not to cancel the notice. The need for a hearing can be dispensed with by agreement of the authority, the police and the person who has given the interim authority notice. If the authority considers it necessary for the promotion of the crime prevention objective (see clause 4), it must cancel the interim authority notice. If it does so the licence will again lapse. A cancellation must be notified to the police and to the person who gave the interim authority notice, together with the authority's reasons for its decision. Subsection (6) (the lapse of the licence) is expressed to be subject to reinstatement in the case of an appeal. Subsection (7) provides that the authority cannot cancel an interim authority notice after a time when a transfer application has been made which provides for the transfer to have interim effect (clauses 42 and 43).

Clause 49 - Supplementary provision about interim authority notice

108.     Subsections (1) to (3) provide that when a licensing authority receives an interim authority notice, it must send the person who sent that notice a copy of the premises licence (and summary) in the form it was in immediately prior to the licence lapsing, save that it will specify that person as the licence holder. Subsections (4) to (6) provide that anyone who became the licence holder under clause 47 must notify the designated premises supervisor specified in the licence (if any) of the interim authority notice. It will be an offence to fail to do so, without reasonable excuse.

Clause 50 - Reinstatement of licence on transfer following death etc. of holder

109.     Where a premises licence lapses under clause 27 (death, incapacity or insolvency of the holder etc.) or by its surrender, but no interim authority notice has effect (as defined by subsection (2)), a person who may apply for the grant of a premises licence under clause 17(1) may apply within seven days of the lapse for the transfer of the licence to him. This will cause the licence to be reinstated from the point at which the transfer application is received by the licensing authority. Subsection (3) provides that a reinstatement will only occur if the transfer application is one which is to have immediate effect under clause 43. If the application is rejected or withdrawn, however, the licence lapses again.

Clause 51 - Application for review of premises licence

110.     Subsections (1) to (3) make provision for an interested party or responsible authority to apply, in the prescribed manner and form and subject to any regulations that may be made about requirements as to notification and advertisements, to a relevant licensing authority for a review of the premises licence. For example, a local resident may consider that the measures taken by the licensee to protect children from harm are insufficient and request that they be reviewed. Similarly, the police may consider that the measures put in place to prevent crime and disorder are not being effective and need to be reviewed. Subsections (4) to (7) provide that the authority must reject an application unless it is relevant to at least one of the licensing objectives, or (if the application is made by an interested party) if it is frivolous, vexatious or repetitious (namely, identical or substantially similar to a ground for review already considered by the authority in a previous review, or in the determination of the application for grant of the licence, and a reasonable period has not passed since that time.) Under subsection (6) if a licensing authority rejects a ground for a review on the basis that it is frivolous or vexatious it must notify the applicant of its reasons.

Clause 52- Determination of application for review

111.     By virtue of this clause, the authority must hold a hearing to consider and determine any application for review and any relevant representations made in respect of it. In order for representations to be 'relevant' they must have been made by the holder of the premises licence, an interested party or a responsible authority (see the definitions in clause 14) and they must relate to the licensing objectives. 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 clause provides that as a result of this review the authority must, if it considers it necessary for the promotion of the licensing objectives, either modify the conditions of the licence, exclude a licensable activity which the premises licence covers, remove the designated supervisor, suspend the licence for a period not exceeding 3 months or revoke the licence. The licensing authority may decide to take none of these steps and leave the licence untouched.

112.     Subsection (10) requires the licensing authority to notify the outcome of a review and its reasons for so deciding to the licence holder, the applicant, the police and any person who has made relevant representations. Subsection (11) provides that the determination of an application for review will not take effect until any appeal has been disposed of, or if there is no appeal at the end of the period within which an appeal may be brought (see Schedule 5).

Clause 53 - Supplementary provision about review

113.     A local authority that is both the relevant licensing authority and a responsible authority - for example, where it carries out the functions of the local environmental health authority - may apply for a review in its capacity as a responsible authority and determine that application in its capacity as licensing authority.

Clause 54- Form etc. of applications and notices under Part 3

114.     This clause provides that, in relation to any application or notice in Part 3, regulations made by the Secretary of State may prescribe its form, the manner in which it should be made or given, and any information and documents that must accompany the notice or application.

Clause 55 - Fees

115.     By virtue of the exercise of the power under this clause, premises licence holders may be required by regulations to pay an annual fee to the licensing authority, the amount and due date of which may be set by the Secretary of State. In addition, regulations may prescribe a fee in relation to any applications under Part 3 or interim authority notices.

Clause 56 - Licensing authority's duty to update licence document

116.     Subsection (1) provides that the relevant licensing authority will be required to make appropriate amendments to the licence, following a determination by the authority in relation to a premises licence, the lapsing of the licence or the disposal of an appeal, to record the appropriate changes. This ensures that there is always an accurate record of the licence.

117.     In most cases the licensing authority will have sent the appropriate licence (or part of a licence), but subsections (2) to (4) provide that the licensing authority may require holders to produce licences or the appropriate parts of licences for this purpose. Failure to do so without reasonable excuse will be an offence.

Clause 57 - Duty to keep and produce licence

118.     Under this clause a premises licence holder must ensure that the licence or a certified copy is held on the premises to which it relates either by the licence holder or by an individual nominated for this purpose by the licence holder. A summary of the licence and notice of the individual responsible for the custody of the licence on the premises, if not the licence holder, must be displayed prominently on the premises. It will be an offence to fail to comply with these requirements or to fail to produce the licence or a certified copy to a constable or an authorised person (see clause 14) on request. Subsection (9) provides that the requirements relate to the most up to date summary of the licence issued under clause 23 or 56.

Clause 58 - Provision supplementary to section 57

119.     By virtue of this clause, a copy of a premises licence or summary is to be certified as a true copy by either the relevant licensing authority, a solicitor or notary, or any other person the Secretary of State may prescribe. Subsection (3) provides that a certified copy will be presumed to be a true copy of the original unless the contrary is shown.

Clause 59 - Inspection of premises before grant of licence, etc.

120.     This clause provides that a constable or an authorised person (see the definition in clause 14) may enter the premises to which an application relates, before that application has been determined, in order to assess the likely effect on the promotion of the licensing objectives of the grant of the application, or as the case may be, the effect of the activities authorised by a licence which is the subject of an application for review. In the case of an authorised person, evidence of authorisation to enter must be produced if requested. Where entry is sought in connection with an application for review both constables and authorised persons may use reasonable force to gain entry to premises if necessary. It is an offence under this clause to obstruct an authorised person exercising these powers. It is already an offence under the Police Act 1996 to obstruct a constable in the course of his duties.

PART 4: Clubs

General

121.     This Part provides for arrangements for qualifying clubs (as defined in clause 61), (such as the British Legion, working men's or cricket or rugby clubs) which meet specified criteria to carry on certain licensable activities at their premises. In this Act such activities are called "qualifying club activities". Such clubs are treated differently from other venues because they carry on activities from private premises (to which access is accordingly restricted) and because alcohol and regulated entertainment are provided otherwise than for profit.

122.     This Part establishes a system of club premises certificates, issued by the relevant licensing authority, which authorise a qualifying club to carry on qualifying club activities. Qualifying clubs will have a special status under licensing law; clubs holding certificates will be exempted from the requirement for any member or employee to hold a personal licence to supply or sell alcohol to members or guests. The general offence of supplying alcohol to people under 18 will apply in clubs as it does elsewhere (see commentary on Part 7 below).

123.     Applications for club premises certificates, like those for premises certificates, will be made by submitting the required documents to the licensing authority (namely, the operating schedule, a plan of the premises and a copy of the club's rules). The operating schedule sets out the activities proposed to be undertaken, the planned hours of opening, and the arrangements the club proposes taking to promote the licensing objectives (see clause 5).

124.     An application for a club premises certificate is subject to provision about advertisement and representations, similar to that for an application for a premises licence (see paragraph 66 above).

ECHR considerations

125.     No additional Convention rights are engaged by this Part of the Bill beyond those already considered in relation to Part 3 (see paragraphs 54 to 58 above).

Clause 60 - Club premises certificate

126.     This clause defines "club premises certificate" for the purposes of the Bill.

Clause 61 - Qualifying clubs

127.     This clause provides that a club is a qualifying club, in relation to a qualifying club activity, if it satisfies the general conditions (see clause 62) and if, in relation to the supply of alcohol to its members, it also satisfies the additional conditions (see clause 64).

Clause 62 - The general conditions

128.     This clause sets out 5 general conditions for a club to be a qualifying club. They are that:

• nobody can be admitted as a member without an interval of at least two days after their nomination or application for membership;

• a person who is admitted as a member other than by prior nomination or application must wait at least two days before enjoying the privileges of membership;

• the club is established and conducted in good faith as a club (as to which, see clause 63);

• the club has at least 25 members;

• no alcohol is supplied, or intended to be supplied, on the club premises except by or on behalf of the club.

Clause 63 - Determining whether a club is established and conducted in good faith

129.     This clause sets out the matters that must be taken into account in determining whether a club satisfies the condition of being established and conducted in good faith. These matters include restrictions on

• the club's freedom to purchase alcohol;

• how money or property belonging to the club is used;

• giving members information about the club's finances;

• the club's accounts; and

• the nature of its premises.

130.     If a licensing authority determines that a club does not satisfy this condition, it must notify the club accordingly and give reasons for its decision.

Clause 64 - The additional conditions for the supply of alcohol

131.     This clause sets out the three additional conditions that a club must satisfy if it is to be a qualifying club in relation to the supply of alcohol to members. These conditions are that the purchase and supply of alcohol should be managed by a committee, that nobody should receive at the expense of the club a commission or percentage deriving from purchase of alcohol, and that nobody should receive a pecuniary benefit from the supply of alcohol by the club to its guests.

Clause 65 - Industrial and provident societies, friendly societies, etc.

Clause 66 - Miners' welfare institutes

132.     These clauses provide that, for the purposes of the Bill, registered industrial and provident societies, registered and incorporated friendly societies and miners' welfare institutes will be treated as satisfying certain of the general conditions and additional conditions for being a qualifying club if certain requirements relating to their constitution and management are met. The effect of the provisions of these clauses is that such bodies may apply for a club premises certificate.

Clause 67- Associate members and their guests

133.     This clause provides that references to club members' guests are to be taken to include associate members of the club, and associate members' guests. So such persons can have the benefit of licensable activities or qualifying club activities provided on club premises.

Clause 68 - The relevant licensing authority

134.     For the purposes of this Part, the "relevant licensing authority" is the authority in whose area a club's premises are situated (or mainly situated). (If the premises straddle two or more areas equally, applicants can nominate one of the authorities in question to act as the relevant licensing authority.) The effect of this clause is to determine the authority to which an application for a club premises certificate may be made by a qualifying club.

Clause 69 - Authorised persons, interested parties and responsible authorities

135.This clause defines the terms 'authorised persons', 'interested party' and 'responsible authority'. 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. An interested party or responsible authority may make representations to a licensing authority in relation to the grant, variation or review of a club premises certificate.

136.     This Part also provides that applicants for club premises certificates must give notice to responsible authorities and advertise applications in a manner likely to bring them to the attention of the interested parties.