6 Conclusions
18. The Government has recommended that the draft
Order be proceeded with under the negative resolution procedure.
Given the draft Order's subject matter, we believe that it
should be subject to formal approval by the House, rather than
non-objection as would occur under the negative resolution procedure,
and we therefore propose that the draft Order be dealt with under
the affirmative procedure. Nevertheless, we recommend that the
draft Order be approved and proceeded with in accordance with
section 17(2) of the Legislative and Regulatory Reform Act 2006.
19. Article 4 of the draft Order inserts a new section
41D into the Licensing Act 2003 after section 41C. Sections 41A
to 41C would be inserted by the Legislative Reform (Minor Variations
to Premises Licences and Club Premises Certificates) Order 2009.
We have recommended that the draft of that Order should be subject
to the super-affirmative resolution procedure. If the Government
goes ahead with the Order considered here before the one dealing
with minor variations, it will be necessary to make a minor change
to the draft to reflect the absence of sections 41A to 41C.
Annex: Responses from DCMS to Inquiry Manager
of the Committee requesting information
1. Currently, qualified designated premises supervisors
have to undergo training, but the LRO would mean that premises
could sell alcohol without any trained individual being present
to supervise. Why was the presence of a trained individual at
certain events - especially those involving large numbers of people
- not deemed necessary?
At the outset, we think it is important to note that
there is no existing mandatory requirement for a designated premises
supervisor (DPS) or personal licence holder to supervise every
alcohol sale, or for such a person to be present on every occasion
when alcohol is being sold. An alcohol sale must, at a minimum,
be authorised by a personal licence holder (who may or may not
be the DPS). But authorisation is a sufficiently flexible concept
to allow for, e.g. a personal licence holder to give permission
in general for alcohol sales by certain persons even when the
personal licence holder cannot always be present at the premises.
It would be possible for licence conditions to be imposed requiring
a personal licence holder to be present at all or at certain times
when alcohol is being sold if this was needed to promote the licensing
objectives. But such conditions are not currently mandatory.
In answer to the Committee's question, the Department
considers that the process for applying the alternative mandatory
conditions in the draft LRO, and the conditions themselves, provide
adequate safeguards for the supervision of alcohol sales for the
types of premises which may apply for them.
Under the draft LRO, on an initial application for
a premises licence or an application to vary an existing licence
to include the alternative licence condition, the licensing authority
(LA) must be satisfied that (a) management arrangements for the
premises are sufficient to ensure adequate supervision of the
supply of alcohol, and (b) the inclusion of the usual mandatory
conditions is not necessary for the promotion of the crime prevention
objective. If the LA is not so satisfied, the conditions requiring
a DPS (who is a personal licence holder) in respect of the premises
and the authorisation of alcohol sales by a personal licence holder
will continue to apply. Where the LA is so satisfied, the alternative
licence condition will apply.
The police may object to the inclusion of the alternative
condition on the grounds of crime prevention. This includes the
prevention of criminal offences related to the sale of alcohol,
such as the sale to underage persons, to persons who are drunk,
etc. Both the police and the LA therefore have substantial scope
for assessing the adequacy of the arrangements proposed for the
supervision and authorisation of alcohol sales in the event that
the alternative mandatory conditions were to be applied. The final
decision rests with the LA, which in reaching its decision will
be bound by its duty in section 4 of the Act to carry out its
functions with a view to promoting the licensing objectives (which
include the prevention of crime such as unlawful alcohol sales,
and the protection of children from harm).
The alternative condition itself provides that every
sale of alcohol made pursuant to the licence must be made or authorised
by the management committee. A breach of this condition is a very
serious criminal offence under s136 of the Act, attracting a maximum
penalty of a £20,000 fine, six months' imprisonment, or both.
In cases where the alternative condition has been
applied, interested parties or responsible authorities may apply
for a review of the licence on grounds related to any of the licensing
objectives. Such a review could result in the reinstatement of
the usual mandatory conditions, or the inclusion of additional
conditions relating to the supervision of alcohol sales.
In devising the current proposal in consultation
with stakeholders, the Department has sought to achieve a balance
between the need to remove the cost burden of personal licence
training from community premises and the need to uphold the licensing
objectives by ensuring that alcohol sales are properly supervised.
Given the safeguards outlined above, as applied to premises where
the nature of the activities generally poses little threat to
the objectives, the Department believes it has got the balance
right.
2. Will police have sight of the individual identities
of management committee members and be able to object on the basis
of their knowledge of the personal history of an individual?
The Department considers that this issue (and the
issue of changes in the composition of the management committee)
would best be dealt with by reference to the prescribed application
form and the prescribed form of licence under sections 24 and
54 of the Act. We are currently reviewing the matter in light
of responses to the consultation on the draft LRO.
In the Department's view any conclusion on this matter
will need to take account of the already existing safeguards in
the draft LRO, particularly the role of the LA in scrutinising
the adequacy of the proposed supervision arrangements for alcohol
sales.
3. What procedure will apply upon change of circumstances?
For instance, if the membership of the management committee changes,
will the police have an opportunity to object other than by way
of general review?
See the answer to Question 2 above.
4. It might be the case that certain premises
licensed for alcohol sales could cope with, for example, as many
as 100 or 200 attendees without the need for a designated premises
supervisor, while other premises might require more careful control
and the presence of trained supervision. Would it be possible
to make the approval of certain applications conditional e.g.
on maximum numbers of attendees?
It would be possible to attach such conditions in
individual cases, provided the usual criteria in the Act (as interpreted
taking into account the statutory Guidance) were met. In cases
where the only issue before the LA is the inclusion or otherwise
of the alternative licence condition (namely, where an existing
licence-holder applies to vary the licence so as to include that
condition), the scope of the exercise will necessarily be limited
by the matters set out in section 41D of the Act. However, in
these cases additional conditions could be included through amendment
of the application following consultation with the police, who
have substantial scope to object to an application if they are
not satisfied with the proposed supervision arrangements (see
the answer to Question 1 above).
5. What division of civil and criminal liability
will apply for non-observance of premises licence terms in situations
where premises are hired out?
The draft LRO will not affect the availability of
criminal sanctions (e.g. for sales to underage persons or persons
who are drunk) or civil remedies (e.g. under occupiers' liability
or contract) in respect of hired-out premises (or otherwise).
The legal criteria will remain the same in each case, with the
one exception mentioned in the response to Question 1 above; namely
that it will be the alternative licence condition rather than
the ordinary conditions in section 19(2) and (3) that will potentially
attract the serious penalties in s136 of the Act. In other words,
sales of alcohol that are not made or authorised by the management
committee will amount to criminal conduct in the same way as sales
not made or authorised by a personal licence-holder. This could
involve criminal liability on the part of the person making the
sale, and also on the part of the members of the committee who
are responsible under the licence for authorising sales. (For
example, the committee members could be liable for knowingly allowing
licensable activities to be carried on otherwise than in accordance
with an authorisation (s136(1)(b)), subject to the defence of
due diligence provided in s139).
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