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These notes refer to the Licensing Bill [HL] LICENSING BILL [HL]EXPLANATORY NOTESINTRODUCTION 1. These explanatory notes relate to the Licensing Bill [HL] as introduced in the House of Lords on 14th November 2002. They have been prepared by the Department for Culture, Media and Sport in order to assist the reader of the Bill and to help inform debate on it. They do not form part of the Bill and have not been endorsed by Parliament. 2. The notes need to be read in conjunction with the Bill. They are not, and are not meant to be, a comprehensive description of the Bill. So where a clause or Schedule or part of a clause or Schedule does not seem to require any explanation or comment, none is given. SUMMARY AND BACKGROUND 3. In April 2000 the Government published a White Paper on reforming alcohol and entertainment licensing (Time for Reform: Proposals for the Modernisation of Our Licensing Laws; CM 4696). This White Paper set out proposals for modernising and integrating the alcohol, public entertainment, theatre, cinema, night caf, and late night refreshment house licensing schemes in England and Wales. The White Paper outlined the key aims of the proposals—
4. The White Paper also sets out proposals for reducing the burden of unnecessary regulation. Its proposals are intended to ensure that the provision of additional opportunities for licensable activities are matched by additional measures enabling the police and licensing authorities to act promptly to maintain public order and safety. 5. Since the publication of the White Paper in 2000, responsibility for alcohol and entertainment licensing policy has been transferred from the Home Office to the Department for Culture, Media and Sport. 6. The Bill will provide for a unified system of regulation of the activities of the sale and supply of alcohol, the provision of regulated entertainment (see Schedule 1), and the provision of late night refreshment (see Schedule 2). In the Bill, these activities are referred to collectively as "the licensable activities". 7. The purpose of the system of licensing for licensable activities is to promote four fundamental objectives ("the licensing objectives"). Those objectives are—
8. The new system of licensing will be achieved through the provision of authorisations through personal licences, premises licences, club premises certificates and temporary event notices. 9. Personal licences will authorise individuals to sell or supply alcohol, or authorise the sale or supply of alcohol, for consumption on or off premises for which a premises licence is in force for the carrying on of that activity (see paragraph 10). To qualify for a personal licence an individual must be aged 18 or over, possess a recognised qualification and be in a position to show the licensing authority (see paragraph 36 below) that he has not been convicted of certain offences ("relevant offences" and "foreign offences", see paragraph 200 below). If a person has been convicted of a relevant offence or foreign offence, following notification to the chief officer of police and consideration of any objections from the police, the licensing authority must grant a personal licence unless it considers that doing so would undermine the crime prevention objective (see paragraph 7a) above). Personal licences will last for ten years and will be renewable. 10. A premises licence will authorise the holder of the licence to use the premises to which the licence relates ("the licensed premises") for licensable activities. The premises licence will detail operating conditions. The purpose of these conditions is to regulate the use of the premises for licensable activities in line with the licensing objectives. A premises licence will have effect until the licence is revoked or surrendered, but otherwise will not be time limited unless the applicant requests a licence for a limited period. Representations may be made about an application for the grant of a premises licence; for example by local residents and businesses, the police, the fire authority and public bodies with responsibility for environmental health. The representations must concern the promotion of the licensing objectives. Once the licence has been granted the same classes of persons and bodies may seek a review of the premises licence and the conditions attaching to it. 11. Club premises certificates will provide authorisation for qualifying clubs (see paragraph 126 below) to use club premises for qualifying club activities. The qualifying club activities are a subset of the licensable activities. They are the supply of alcohol by or on behalf of a club to a member for consumption on the premises, the sale by retail of alcohol by or on behalf of a club to a guest of a member for consumption on the premises and the provision of regulated entertainment by or on behalf of a club for its members and guests. As with premises licences, the right to make representations on the application for a club premises certificate is given to a range of persons and bodies. 12. In contrast to the existing law, the Bill does not prescribe the days or the opening hours when alcohol may be sold by retail for consumption on or off premises. Nor does it specify when other licensable activities may be carried on. Instead, the applicant for a premises licence or a club premises certificate will be able to choose the days and the hours during which they wish to be authorised to carry on licensable activities at the premises for which a licence is sought. The licence will be granted on those terms unless, following the making of representations to the licensing authority, the authority considers it necessary to reject the application or vary those terms for the purpose of promoting the licensing objectives. 13. Personal licences, premises licences and club premises certificates will be granted by licensing authorities under the Bill, which generally will be the local authority for the area in which the premises are situated or, in the case of personal licences, in which the individual applicant is normally resident. 14. The Bill provides procedures for regulating the discharge by the licensing authority of its functions. Authorities will be required to publish a policy framework document every three years. In producing the document a licensing authority is required to take account of the views of those representing the holders of licences and certificates, local residents and businesses, the police, and the fire authority. Licensing authorities will also be required to take into account guidance issued by the Secretary of State. 15. In addition, the Bill establishes new arrangements for the carrying on of licensable activities at occasional, temporary events. These arrangements will replace existing systems of "occasional permissions" and "occasional licences". They will apply in relation to events with less than 500 people attending. The new arrangements are based on a notification to the licensing authority of salient details of the event and an acknowledgement by that authority of the notification. To reflect the temporary nature of the events, these arrangements will not place organisers under the same obligations as will apply in relation to those who regularly wish to undertake licensable activities on or from premises. 16. The Bill provides for the setting of fees in relation to applications, notifications, licences and certificates. The fees will be set centrally and are intended to be set on the basis of full cost recovery. The Bill requires each licensing authority to establish a register relating to the grant of licences and certificates and the giving of temporary event notices and associated matters. The Bill includes a power for the Secretary of State to provide for the establishment of a central database to maintain matters a licensing authority is obliged to register. 17. The Bill provides licensing authorities with the power, on review of a premises licence, to suspend or revoke the licence, to exclude specific licensable activities from the licence, or to modify operating conditions attaching to the licence. These powers must be exercised with a view to promoting the licensing objectives. These same powers attach to club premises certificates. 18. In addition, the Bill confers powers on the police to close licensed premises to deal expeditiously with disorderly behaviour and excessive noise; these powers are both anticipatory and reactive. 19. The new regime will be supported by a range of offences, inspection powers and enforcement provisions. THE BILL 20. The Bill has nine parts, as follows—
21. The Bill will replace the existing licensing provisions in respect of alcohol sales and supplies, public entertainment and late night refreshment. These are currently regulated principally by the following statutes—
22. The theatres with letters patent from the Crown, which are currently exempted from the requirement for a licence under the Theatres Act 1968, are brought within the licensing regime. The privileges and exemptions currently enjoyed by the University of Cambridge and the Vintners of the City of London in relation to the licensing of alcohol sales are not preserved by the Bill. 23. The existing legislation provides that premises in Wales licensed for the sale of alcohol may open on Sundays only where there has been a vote in favour of such opening in the local government area where the premises are situated (see sections 66 and 67 of the Licensing Act 1964). These statutory provisions are repealed by the Bill. COMMENTARY ON CLAUSES Part 1 - Licensable activities General 24. This Part describes those activities that are covered by the Bill and as a consequence prescribes those matters which are regulated by the provisions in the Bill, thereby determining its scope of application. The Part also sets out circumstances in which a licensable activity and qualifying club activity may be carried on. ECHR Considerations 25. The Convention rights are not engaged by this Part of the Bill. Clause 1 - Licensable activities and qualifying club activities 26. This clause in subsection (1) lists four activities which are to be regulated by the provisions of the Bill and which constitute licensable activities. These are—
27. In subsection (2), this clause lists those licensable activities which, for the purposes of the Bill, are "qualifying club activities" and which as a consequence may be carried on by qualifying clubs under a club premises certificate (see commentary on Part 4 of the Bill). Qualifying club activities are—
28. Subsection (1)(b) specifies as a licensable activity the supply of alcohol by or on behalf of a club to or to the order of its members. This is necessary due to the fact that alcohol in possession of a club will belong to its members and in terms of its further distribution to the members there will be no sale by retail. However, a sale by retail will take place in relation to purchases by guests of members. 29. Some bodies which call themselves "clubs" are in fact not within the ownership or control of their members. In such cases, any supplies of alcohol to members are sales by retail. Subsection (3) ensures that the references in the Bill to the supply of alcohol by clubs to members do not include supplies by such clubs. 30. Finally, in subsection (7), the clause refers forward to clauses 170, 171 and 172 in Part 9 of the Bill which provide that certain activities which would otherwise fall within subsection (1) are not licensable activities for the purposes of the Bill (see commentary on Part 9). Clause 2 - Authorisation for licensable activities and qualifying club activities 31. Subsections (1) and (2) provide that a licensable activity may be carried on under and in accordance with a premises licence (see commentary on Part 3), a temporary event notice (see commentary on Part 5), or, if it is also a qualifying club activity, under and in accordance with a club premises certificate (see commentary on Part 4). By virtue of clause 134 the carrying on of a licensable activity otherwise than in accordance with a premises licence, club premises certificate or temporary event notice is an offence. 32. Subsection (3) provides that more than one authorisation (that is, a premises licence, a club premises certificate or a temporary event notice) can cover the same premises. This enables, for example, a qualifying club that wishes to provide entertainment to members of the public on certain days to hold both a club premises certificate to cover its normal operation and a premises licence, to authorise the provision of entertainment, in respect of the same premises. Where there is more than one authorisation, they may be held by the same person or different people. PART 2: Licensing authorities General 33. Part 2 lists the bodies which are to be licensing authorities under the Bill, describes the licensing objectives which the licensing authority must promote, and places an obligation on licensing authorities to publish a statement of licensing policy. 34. It also sets out the requirement for a licensing authority to establish a licensing committee and covers the delegation of licensing functions to licensing committees, sub-committees or officers of the licensing authority. The clauses also cover the obligation to maintain a licensing register. ECHR considerations 35. The Convention rights are not engaged by this Part of the Bill. Clause 3 - Licensing authorities 36. This clause lists the bodies which for the purposes of the Bill will act as licensing authorities. Subsection (2) describes the geographical area in which the authority will act. Clause 4 - General duties of licensing authorities 37. This clause sets out the licensing objectives that must be promoted by the licensing authority in carrying out its duties. These are—
38. The four licensing objectives aim to ensure that the carrying on of licensable activities on or from premises is done in the public interest. The third licensing objective, the prevention of public nuisance, will not extend to every activity which annoys another person but will cover behaviour which, when balanced against the public interest, is found to be unacceptable. The fourth licensing objective relates to harm to children beyond matters relating to physical safety. 39. Subsection (3) provides that when discharging its functions, the licensing authority must have regard to its policy framework document under clause 5 and to any guidance issued by the Secretary of State (clause 177). Clause 5 - Statement of licensing policy 40. This clause requires each licensing authority to determine and publish a statement of its licensing policy every three years. The first three-year period will begin with a day appointed by the Secretary of State. Subsection (3) lists those whom the licensing authority must consult in preparing its licensing policy; these include the police, the local fire authority, people who represent holders of premises and personal licence and club premises certificates, and people representative of local businesses and residents. Schedule 8 makes transitional provision requiring holders of those representing licensees under the Licensing Act 1964 to be consulted until the new regime is in force. Subsection (4) imposes a duty on an authority to keep its licensing policy under review. Any revisions to it, following consultation with those listed in subsection (3), must be published. Subsection (7) provides that the Secretary of State may make regulations relating to the formation of licensing policy and the publication of licensing statements. Clause 6 - Licensing Committee 41. This clause requires each licensing authority (with the exception of those which cover only the Inner and Middle Temples which consist, in each case, of only one person) to establish a licensing committee of between ten and fifteen members of the authority. Clause 7 - Exercise and delegation of functions 42. Subsection (1) of this clause provides that the licensing committee will discharge all of the authority's licensing functions, except for the function of the determination and publication of its statement of licensing policy. 43. Subsection (3) provides that the authority may decide that its licensing committee must also discharge additional functions of the authority that are related to its licensing functions. If a licensing authority chooses to discharge such related functions itself rather than to arrange for the licensing committee to discharge them, it must consider any relevant report prepared by the licensing committee before acting in any such matter (unless it is urgent). This ensures that the licensing committee will have an input into any matter relating to the authority's licensing functions. 44. Subsections (5) to (7) provide that in cases where a matter concerns other functions in addition to licensing functions, a licensing authority may choose to refer the matter either to its licensing committee (having first consulted it) or to another of its committees. If the latter course is followed, then in considering the matter, that committee must consider any report (again, unless the matter is urgent) prepared by the licensing committee. 45. Subsection (8) makes provision that if a licensing committee is unable to discharge its functions because some of its members are prevented from considering or voting on a matter - for example, if they are disqualified under the licensing authority's standing orders because they have a financial interest in the matter - then the matter is instead referred back to the licensing authority for it to discharge its functions in relation to the matter. 46. Subsection (9) disapplies the provisions in the clause with respect to the Inner Temple and the Middle Temple with the result that in those cases the licensing authority will discharge all its licensing functions. Clause 8 - Requirement to keep a register 47. Subsection (1) provides that each licensing authority must maintain a register which records details of the authorisations it issues, the temporary event notices it receives, other notices and applications to it as set out in Schedule 3, and any other information which the Secretary of State prescribes. Under subsection (2) the Secretary of State is given the power to make regulations as to how that register must be maintained. Subsections (3) to (5) provide that the information contained in the register must be made available for inspection by the public during office hours, free of charge, and that a copy of that information must be supplied on request (for a fee). Subsections (6) and (7) make provision for the Secretary of State to arrange, through administrative action, for the establishment of one or more central registers, in which case the licensing authorities may be required to pay for the cost of such arrangements. Clause 9 - Proceedings of licensing committee 48. By virtue of the provision of this clause, a licensing committee may form one or more sub-committees, each comprising three members of the committee. The Secretary of State is given the power to make regulations relating to the committees and sub-committees' proceedings, public access to their meetings, publicity, agendas and records. Otherwise, licensing committees may regulate their own procedure and that of their sub-committees. Clause 10 - Sub-delegation of functions by licensing committee etc. 49. Subsection (1) provides that a licensing committee may sub-delegate the exercise of its functions to a sub-committee of the licensing committee, or to an officer of the licensing authority. Subsection (2) provides that in turn, the sub-committee can delegate functions to such an officer. Subsection (5) provides that such a delegation will, however, be subject to any direction made by the licensing committee. Subsection (3) provides that more than one such sub-committee or officer can discharge the same functions at the same time: thus, for example, a busy licensing committee which is faced with a high volume of licence applications could arrange for a number of licensing sub-committees to deal with them in parallel. However, subsection (4) sets out certain functions which may not be delegated to an officer. These are functions in respect of which representations or objections have been made and with which it is appropriate for the licensing committee or one of its licensing sub-committees to deal. PART 3: Premises licences General 50. This Part of the Bill provides for a single licensing system for all premises used for licensable activities (see note on Part 1 for description of licensable activities). The 'relevant licensing authority' (see clause 12) is to consider applications for premises licences. 51. Under the system established by the Bill, an applicant for a premises licence will submit an operating schedule setting out certain details about the activities to be carried out on or from the premises. Where no relevant representations are made by responsible authorities (the police, fire authority, health and safety agency, etc) or interested parties (local residents and businesses), the licensing authority must grant the licence application, subject to certain mandatory conditions (see clauses 19 and 20). 52. If relevant representations are received, the licensing authority must, unless specified persons agree, convene a hearing and consider the representations. This consideration may result in the rejection of the licence application in whole or in part, or the attachment of conditions to the licence that relate to the promotion of one or more of the licensing objectives. ECHR considerations 53. 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. 54. Clauses 17, 29, 32 and 49 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. 55. 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. 56. 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. 57. Clause 56 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. |
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