|Licensing Bill [HL] - continued||House of Commons|
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Clause 105 - Counter notice where permitted limits exceeded
185. Subsection (1) requires a licensing authority to issue a counter-notice on receipt of a temporary event notice where
The effect of giving such a counter notice is that the proposed event is not a permitted temporary activity and is not authorised to proceed.
Clause 106 - Right of entry where temporary event notice given and
Clause 107 - Duty to keep and produce temporary event notice
186. Constables and officers of a licensing authority will be able to enter premises to assess the likely impact of a temporary event notice on the promotion of the crime prevention objective. The officer of a licensing authority must, if requested, produce evidence of his authority. It is an offence to obstruct such an officer exercising his powers under this clause. It is already an offence to obstruct a constable in the exercise of his duty (see Police Act 1996).
187. The premises user must ensure that the notice is displayed at the premises or is kept there under his control or the control of a person nominated by him. In the latter case, a notice to that effect must be displayed at the premises. It is an offence for the premises user to fail to comply with this requirement. It is also an offence for a person who holds the premises licence under such arrangements to fail to produce it to a constable or an officer of a licensing authority when requested to do so.
Clause 108 - Theft, loss etc. of temporary event notice
188. This clause provides that premises users may apply to the licensing authority that acknowledged the temporary event notice for a copy of that notice if the notice has been lost, stolen, damaged or destroyed. If lost or stolen, the premises user is obliged to notify the police before a copy will be issued. There may be a fee prescribed for the issue of replacement documents. By virtue of subsection (2) an application for a copy of the notice cannot be made later than one month after the event. Subsection (6) provides that the copy of the notice will have effect as if it is the original.
PART 6: Personal Licences
189. Part 6 establishes a regime for the supply of alcohol to be regulated by the granting of personal licences to individuals. The licensing of individuals separately from the licensing of premises permits the movement of personal licence holders from one set of premises to another. The Bill also provides the police and licensing authorities with powers to deal with errant personal licence holders.
190. The personal licence is to relate only to the supply of alcohol (as defined in clause 109(2)) and not to other activities covered by the Bill such as regulated entertainment or the provision of late night refreshment, for which no personal licence will be required. A personal licence does not authorise its holder to supply alcohol anywhere, but only from premises with a premises licence.
191. Where premises have a premises licence authorising the supply of alcohol, a personal licence must be held by the nominated individual responsible for the day-to-day running of the licensed premises, known as the designated premises supervisor. More than one individual at the licensed premises may hold a personal licence, although it will not be necessary for all staff to be licensed. But, all supplies of alcohol under a premises licence must be made by or under the authority of a personal licence holder.
192. A personal licence is issued for ten years in the first instance and there will be a presumption in favour of renewal if the licence holder has not been convicted of any offence.
193. The initial grant of a personal licence will additionally be subject to the possession of an accredited qualification. However, during the transitional period, existing holders of justices' licences for the sale of alcohol, will not be required to obtain an accredited qualification (see paragraph 23 of Schedule 8). Rather, there will be a general presumption that a personal licence will be granted automatically, except in limited circumstance (for example following representations by the police that to do so would undermine the crime prevention objective).
194. Convictions for offences which are relevant for the purposes of the determination of applications for the grant or renewal of a personal licence include:
195. Convention rights may be engaged by clauses 118 and 119 which provide for applications for the grant and renewal of a personal licence to be determined by a licensing authority. If, which is debatable, a personal licence is properly to be regarded as property, then the power of the Central Licensing Authority to prevent such grant or renewal may constitute an interference with a person's enjoyment of his possessions and engage rights under Article 1 of Protocol 1 to the Convention (protection of property). However the grounds on which an application may be rejected can all be justified as being in accordance with the general interest, and as a proportionate measure to ensure that people with a personal licence are properly qualified and responsible individuals.
196. Where the Central Licensing Authority holds a hearing to consider a police objection notice made in relation to the grant or renewal of a personal licence, it will act in a regulatory role, possibly engaging rights under Article 6 (determination of civil rights and obligations). Decisions made at such hearings are appealable to a magistrates' court, and are therefore compliant with Article 6.
197. Clause 127 allows a court to order the forfeiture or suspension of a personal licence when the licence holder is convicted of an offence specified in Schedule 4. This provision is compatible with Article 6 since such an order will be made as part of the criminal sentence following a court hearing which is itself Article 6 compliant, and the order may be suspended pending appeal against the conviction or sentence, at the discretion of either the sentencing or the appellate court. The clause is also compatible with Article 1 of Protocol 1, because it is proportionate and in the public interest as being a measure helping to prevent crime, to allow the forfeiture or suspension of a personal licence in appropriate circumstances.
Clause 109 - Personal licence
198. For the purposes of the Bill, this clause defines a personal licence as a licence granted by a licensing authority and permitting an individual to sell alcohol by retail or to supply alcohol by or on behalf of a club (in the latter case this would relate only to a supply authorised under a premises licence).
Clause 110 - The relevant licensing authority
199. This clause sets out that for the purposes of Part 6 of the Bill, the relevant licensing authority is the Central Licensing Authority established under clause 4 of the Bill.
Clause 111 - Meaning of "relevant offence" and "foreign offence"
200. For the purposes of Part 6 of the Bill, relevant offences are defined as offences listed in Schedule 4. In subsection (2) the Secretary of State is given a power (subject to the negative resolution procedure) to amend that list. Subsection (3) provides that for the purposes of Part 6 of the Bill, a 'foreign offence' is defined as an offence (other than a relevant offence) under the law of anywhere outside England and Wales. The significance of designation as a 'relevant offence' is that a conviction for such an offence (or a comparable foreign offence), unless spent, must be taken into account by the Central Licensing Authority in its consideration of an application for the grant or renewal of a personal licence (see clauses 118 and 119). If an existing personal licence holder is convicted of a relevant offence, his licence may be forfeited or suspended (see clause 127).
Clause 112 - Spent Convictions
201. This clause provides that convictions for relevant or foreign offences must be disregarded when spent under the Rehabilitation of Offenders Act 1974 for the purposes of Part 6 of the Bill.
Clause 113 - Period of validity of personal licence and
Clause 114 - Surrender of personal licence
202. Clause 113 provides that a personal licence is valid for 10 years unless before then it is surrendered by the holder, revoked by the licensing authority, forfeited or suspended by the court. At the end of that period, the holder may apply for renewal to the Central Licensing Authority, and the authority can renew the licence for a further ten years or refuse the application for renewal. Licences do not have effect during periods of suspension. In some circumstances, a licence may extend beyond 10 years, pending a renewal or disposal of an appeal; for example, where an application for renewal of a personal licence has not been determined prior to the expiry of the 10-year validity period (see clause 117). Clause 114 provides that a personal licence holder may surrender his licence and sets out the procedural requirements of such a surrender.
Clause 115 - Application for grant or renewal of personal licence
Clause 116 - Individual permitted to hold only one personal licence
Clause 117 - Licence continued pending renewal
203. These clauses set out the steps an individual must take to apply for the grant or renewal of a personal licence. An application for the grant or renewal of a personal licence must be made to the Central Licensing Authority.
204. All applications must be made in the prescribed form and accompanied by the prescribed fee, information and documents. Applications for renewal can only be lodged within a two-month period beginning three months before the licence's expiry. If the licence expires before the application for renewal has been determined by the licensing authority, the licence remains in effect until a decision is made.
205. Only one licence can be held by a single individual at any one time.
Clause 118 - Determination of application for grant
206. This clause prescribes the manner in which the Central Licensing Authority must determine an application for a personal licence. The criteria for the grant of a licence are that:
207. Subsections (3) to (6) provide that the Central Licensing Authority must reject the application for a personal licence if the applicant fails to meet one of the first three eligibility criteria. If these are met but the applicant has been convicted of a relevant offence or a foreign offence, the Central Licensing Authority may grant the personal licence only after consulting the police. The chief officer of police must have regard to the conviction for any relevant offence, or for any foreign offence which he considers comparable to a relevant offence. Within 14 days of being notified, the chief officer must give to the Central Licensing Authority notice of objection to the grant of a licence if he is satisfied that granting the licence would undermine the prevention of crime and disorder (referred to here as "the crime prevention objective"). In the absence of such an objection, the Central Licensing Authority must grant the application.
208. When an objection is lodged by the police, the Central Licensing Authority must hold a hearing to decide whether to reject or grant the licence, and must give reasons for its decision. The need for a hearing may be dispensed with by agreement of the authority, the applicant and the police.
209. For the purpose of this clause, the 'licensing qualification' must be recognised by the Secretary of State (by administrative action) or must be an equivalent qualification obtained in Scotland, Northern Ireland or an EEA state other than the UK.
Clause 119 - Determination of application for renewal
210. The Central Licensing Authority must renew a personal licence except where the applicant has been convicted of one or more relevant offences since the original grant of the licence or its last renewal. If such a conviction has occurred, the Central Licensing Authority must consult with the police and give them the opportunity to object to the renewal of the personal licence where they are satisfied that to do so would undermine the crime prevention objective. Where there is no objection the renewal must be granted. If the police object, a hearing must be held (unless the licence holder, the police and the Central Licensing Authority agree that this is unnecessary) and the authority must give the reasons for its decision.
Clause 120 - Notification of determinations
211. This clause requires the Central Licensing Authority to notify the applicant and relevant chief officer of police of any decision to grant an application, explaining the decision in cases where an objection notice was given by the police. Notice of decisions to reject applications and the reasons for the decision must be given to applicants and the police.
Clause 121 - Duty to notify licensing authority of convictions during application period
212. Applicants convicted of a relevant offence or foreign offence (see clause 111) in the period between an application being made and its determination (or withdrawal) must notify the Central Licensing Authority of the conviction as soon as possible. Failure to do so is an offence.
Clause 122 - Convictions coming to light after grant or renewal
213. This clause applies where an applicant for the grant or renewal of a personal licence is convicted of a relevant offence in the period between the application being made and its determination but knowledge of the conviction emerges only after the licence has been granted or renewed. The Central Licensing Authority may revoke a personal licence, after consultation with the police.
214. The clause requires the Central Licensing Authority to consult the police on becoming aware of such a conviction. The police will then have the opportunity to give the licensing authority notice that they object to the continuation of a licence where they believe that that would undermine the crime prevention objective. If the police object, a hearing must be held by the Central Licensing Authority (unless the licence holder, the police and the Central Licensing Authority agrees that this is unnecessary). The Central Licensing Authority must give the reasons for its decision to the offender and to the police. A decision under this clause does not have effect pending an appeal.
Clause 123 - Form of personal licence
215. This clause makes provision for a personal licence to be in a prescribed form and lists the basic requirements as to the content of a licence, including a record of any convictions for relevant or foreign offences.
Clause 124 - Theft, loss, etc. of personal licence
216. Personal licence holders will be able to apply to the Central Licensing Authority for a copy if the licence has been lost, stolen, damaged or destroyed. If lost or stolen, this should be reported to the police before a copy will be issued. There may be a fee prescribed for the issue of replacement documents. The Bill applies to a copy in the same way as it applies to the original.
Clause 125 - Duty to notify change of name or address
217. This clause provides that the holder of a personal licence must notify the Central Licensing Authority of any change of name or address. Failure to do so is an offence.
Clause 126 - Duty to notify court of personal licence
Clause 127 - Forfeiture or suspension of licence on conviction for relevant offence
218. Where the holder of a personal licence is charged with a relevant offence, he must produce the licence to the court before the case against him is first heard in court (or if that is not possible, he must explain why). If an individual is granted a personal licence after being charged, he must produce the licence to the court (or explain why he cannot). A licence holder must also notify the court if, after having first produced his licence, the licence is renewed, surrendered or revoked. Failure to comply with any of these requirements is an offence.
219. Upon conviction of a personal licence holder of a relevant offence, the court may forfeit the personal licence or suspend it for up to 6 months. An order to forfeit or suspend the licence may itself be suspended by the convicting court allowing the licence to continue in force pending an appeal.
Clause 128 - Powers of appellate court to suspend order under section 127
220.Orders made under clause 127 may be suspended by the court on an appeal or an application for leave to appeal or an application for a quashing order by a defendant, allowing him to continue trading, if appropriate, while the appeal is being considered. If the court suspends the order it must notify the Central Licensing Authority of that fact.
Clause 129 - Court's duty to notify licensing authority of convictions
221. This clause sets out the obligations of the court to the Central Licensing Authority where a personal licence holder is convicted of a relevant offence. An appropriate officer of the court (defined in subsection (5)) must notify the Central Licensing Authority of:
222. Where a conviction is quashed or a sentence altered on appeal, or where the Court of Appeal takes action in relation to a sentence it regards as unduly lenient, the court concerned must notify the Central Licensing Authority.
Clause 130 - Licence holder's duty to notify licensing authority of convictions
223. This clause requires that, where the holder of a licence is convicted of a relevant offence or foreign offence, and the courts are not aware of the existence of the licence, the holder must notify the Central Licensing Authority as soon as possible about the conviction and the outcome of any appeal against a conviction. Failure to comply with this clause is an offence.
Clause 131 -Form etc. of applications and notices under Part 6
224. This clause allows for the detail of the form, manner and content of applications, and any accompanying documents or fees, to be set out in regulations.
Clause 132 - Licensing authority's duty to update licence document
225. Where certain changes have been made to the terms or effect of a personal licence, (for example, where it has been renewed, or a change of details has been notified), the Central Licensing Authority must make the necessary amendments to the licence.
226. The Central Licensing Authority may require the personal licence holder to present the licence for amendment. Failure by the licence holder to comply with this obligation, without reasonable excuse, is an offence.
Clause 133 - Licence holder's duty to produce licence
227. This clause applies where the holder of a personal licence is on premises to sell, or authorise the sale of, alcohol by virtue of a premises licence or temporary event notice. A constable or officer of a licensing authority may require the holder to produce his personal licence. Failure to produce it is an offence.
PART 7: Offences
228. This Part contains a number of criminal offences and in each case Article 6 (determination of civil rights and obligations) and Article 1 of Protocol 1 (protection of property) will be engaged. Convictions for such offences can be imposed only following a court hearing, and defendants are treated as having committed no offence until sufficient evidence has been adduced for the prosecution to satisfy the court that the defendant is guilty beyond reasonable doubt of the offence charged. The provisions are therefore compatible with Article 6(2).
229. These criminal offences also engage Article 1 of Protocol 1 since they have the effect of restricting what an owner of alcohol may lawfully do with his property, and otherwise impose limitations on a person who derives economic benefit from the running of a business involving a licensable activity. However it is established case law under the ECHR that the controlling of the use of alcohol can be a legitimate aim in the general interest, and this argument has particular strength in relation to the control of the sale to and consumption by minors. The creation of all of the offences relating to minors is a proportionate response to the importance of the social need to prevent consumption by minors when balanced with the interests of individuals to dispose of their property in the way they choose.
230. The offence in clause 134 of carrying out licensable activities without due authorisation may amount to an interference with rights under Article 10 (freedom of expression) since it could indirectly have the effect of imposing restrictions on performances by artists and musicians. However any such interference would be justified under Article 10(2) as being necessary in a democratic society on grounds of public safety, the prevention of crime and disorder and the protection of the rights of others, since it is central to the regime for the regulation of licensable activities that the activities may be carried out only under an authorisation.
Clause 134 - Unauthorised licensable activities
231. This clause makes it an offence to carry on or attempt to carry on a licensable activity without the authorisation provided by, as appropriate, a premises licence, a club premises certificate or a temporary event notice. It is also an offence knowingly to allow such an activity to be carried on. Certain activities which would otherwise fall within the definition of "licensable activities" in clause 1(1) are excluded from that definition by clauses 172 to 174. Subsection (2) provides that an offence is not committed under the clause if the only involvement of a person in the provision of regulated entertainment is his performance and so forth. This provision is central to the enforcement of the licensing regime introduced by the Bill.
Clause 135 - Exposing alcohol for unauthorised sale
232. This clause makes it an offence to expose alcohol for sale by retail (see the definition in clause 189) in circumstances where the sale would not be under and in accordance with a premises licence, club premises certificate or temporary event notice. The effect of this provision is that an offence can be committed in a case where no sale or attempted sale is in fact made. Subsection (4) provides that a court which convicts a person of this offence may order the confiscation of the alcohol in question and its containers, which may then be either destroyed or dealt with as the court orders.
Clause 136 - Keeping alcohol on premises for unauthorised sale
233. This clause makes it an offence to keep alcohol on premises with the intention of selling it by retail (see the definition in clause 189) or supplying it (by or on behalf of a club or to the order of a member of the club) unless that sale or supply would be under and in accordance with an authorisation. Subsection (5) provides that a court which convicts a person of this offence may order the confiscation of the alcohol in question and its containers, which may then be either destroyed or dealt with as the court orders.
Clause 137 - Defence of due diligence
234. This clause provides that a person who is charged with the offence of carrying on an unauthorised licensable activity, exposing alcohol for unauthorised sale or keeping alcohol in premises for unauthorised sale or supply has a defence if his act or omission was mistaken, was due to his relying on information given to him, was the fault of another person or was due to some cause beyond his control, and he took all reasonable precautions and exercised all due diligence to avoid committing the offence.
Clause 138 - Allowing disorderly conduct on licensed premises etc.
235. This clause makes it an offence knowingly to allow disorderly conduct on licensed premises and thus re-enacts part of the existing offences in sections 172(1) and 172A(1) of the Licensing Act 1964. Subsection (2) of this clause sets out the categories of person who may commit the offence. These include any person who works at the premises in a capacity that gives him the authority to prevent the conduct, a premises licence holder or designated premises supervisor, an officer or member of a club who is present at the time of the disorder and who has authority to prevent it, and a premises user (see the definition in clause 98(2)) who has given a temporary event notice in respect of those premises.
|© Parliamentary copyright 2003||Prepared: 17 March 2003|