Chief Legal Officer:

Mirza F.N. Ahmad MBA LLM Barrister

Ingleby House,

11-14 Cannon Street,

Birmingham B2 5EN


BRIEFING NOTE : LICENSING BILL [2002]


Introduction

  1. The Licensing Bill (previously the Entertainment and Alcohol Licensing Bill) had its Second Reading in the House of Lords on 26 November 2002 and completed its committee stage on 20 January 2003. The Third Reading and Reports will take place in February 2003. A large number of amendments were proposed at the Committee stage although very few were agreed to. A significant number of amendments have also been tabled at the Report stage. It is the government's intention that the Bill will enter the House of Commons in March 2003 and achieve Royal Assent by no later than July 2003. This will depend on how smoothly the Bill passes through its final stages in the House of Lords and the House of Commons. The government anticipates a transitional period of a year before full implementation of the Bill.
  2. The Bill will repeal existing legislation relating to licensing, which is contained in a large number of statutes including the Licensing Act 1964, with the intention of creating a single system of licensing premises which sell alcohol, provide public entertainment or provide late night refreshment.
  3. The most widely publicised feature of the Bill is that it will bring an end to the concept of "permitted hours" under the 1964 Act and will allow licence holders to fix their own hours of opening subject to any objections from interested parties and public authorities.
  4.  

    Licensable Activities

  5. The Bill will apply to licensable activities which are defined as:

  1. Schedules 1 and 2 of the Bill set out in detail definitions of "regulated entertainment" and "late night refreshment". "Regulated entertainment" includes, broadly, any public entertainment or entertainment for consideration with a view to profit (including raising money for charity). "Late night refreshment" includes the supply of hot food or hot drink between the hours of 11pm and 5am.
  2. The Bill provides that any licensable activity must be carried on either in accordance with a premises licence or a club premises certificate or in circumstances where it is a permitted temporary activity.
  3.  

    Licensing Authorities

  4. The Bill will transfer licensing powers to local authorities from licensing justices in respect of the sale of alcohol and from magistrates courts in respect of registered members' clubs. Local authorities retain responsibility for public entertainment, cinema and night cafés and other late night refreshment outlets.
  5.  

    Licensing Objectives

  6. A licensing authority will be under a duty to carry out its functions in accordance with the licensing objectives set out in the Bill, which are:

  1. In having regard to the licensing objectives the licensing authority must consider its own licensing policy and any guidance issued by the Secretary of State. A Framework for the guidance has been issued (see paragraph 46 below).
  2.  

    Statement of Licensing Policy

  3. The licensing authority must determine and publish a statement of its licensing policy every three years. The Secretary of State will determine in regulations the commencement date of the first three year period which is likely to be the date on which the Bill comes into force. Thereafter the licensing authority must renew its policy every three years. In determining its policy it must consult the local police, fire authority, licence holders and businesses and residents. The licensing authority must keep its licensing policy under review and make revisions to it as appropriate. It must also consult on any revisions and publish a statement of detailing any revisions. The government may issue regulations governing the determination and revision of licensing policies.
  4.  

    Licensing Committee

  5. The licensing authority must establish a licensing committee consisting of between 10 and 15 of its members. The licensing authority may delegate all of its licensing functions to the committee except for the determination of its licensing policy. The committee may delegate any of its functions to sub-committees consisting of three committee members and the sub-committees may in turn arrange for the discharge of certain functions by an officer of the licensing authority. The government may issue regulations in relation to the proceedings of licensing committees and sub-committees.
  6. The delegations to the Council's Licensing Committee will need to be revised to comply with these requirements when the Bill comes into force.
  7.  

    Register

  8. The licensing authority is required to keep a register which must included among other things a record of each premises licence, club premises certificate and personal licence issued by it and any licence applications received by it. The register must be open for inspection free of charge by any person during office hours without payment.
  9.  

    Premises Licence

  10. Any licensable activity apart from one carried on in accordance with a temporary event notice, must be carried on in accordance with a premises licence. The application for a premises licence must be made to the licensing authority where the premises is situated.
  11. Any individual over the age of 18 may apply for a premises licence. The application must be accompanied by an operating schedule setting out the licence requirements, including hours of opening.
  12. If any relevant representations are made by any interested parties or responsible authorities within a prescribed period to be fixed by government regulations, the licensing authority must hold a hearing to consider them unless it agrees with the applicant and the party or parties who have made representations that a hearing is unnecessary. Having regard to the representations the licensing authority may then:

  1. "Interested parties" include people living in the vicinity or involved in a business in the vicinity or their representatives. One of the very few amendments agreed to at the Bill's Committee stage means that the local MEP, MP and ward councillor are also included.
  2. "Responsible authorities" include the local police, fire authority and public bodies with responsibility for environmental health.
  3. If no relevant representations are made, the licensing authority must grant the licence subject only to the conditions in the operating schedule and the mandatory conditions. Unless the licence is stated to be for a fixed period it will be of indefinite duration (unless revoked).
  4. Local interested parties and responsible authorities will have the power to request the licensing authority to review existing licences when problems arise. If there is a review the licensing authority may:

Mandatory Conditions

  1. The mandatory conditions are:

  

Provisional Statement

  1. The Bill allows any individual over the age of 18 who is interested in premises under construction or being extended or altered for the purpose of being used for one or more licensable activities to apply for a provisional statement which, if made, may allow any subsequent application for a premises licence by that person to be expedited.
  2. The application for a provisional statement must be accompanied by a schedule of works to be carried out on the premises. Any interested parties or responsible authorities will have the opportunity to make relevant representations as part of the application process. If no relevant representations are made the licensing authority must issue the provisional statement.
  3. If the applicant subsequently applies for a premises licence and the works described in the schedule of works have been satisfactorily completed, further relevant representations will be excluded from the application process unless the circumstances have changed since the application for a provisional statement was made.
  4.  

    Personal Licence

  5. A personal licence is a licence which permits the individual holding it to supply alcohol or authorise the supply of alcohol in accordance with a premises licence.
  6. Unlike an application for a premises licence, which must be made to the licensing authority where the premises is situated, an application for a personal licence must be made to the licensing authority where the individual is ordinarily resident. The licensing authority must grant the licence if:

The definition of "relevant offence" is wide-ranging; all relevant offences are listed in Schedule 4 to the Bill.

  1. If the applicant does not meet any of the first three conditions listed above in paragraph 26 the application must be rejected. If he does not meet the fourth condition the licensing authority must give the police a notice to that effect. If the police do not object to the issue of the licence within 14 days the licensing authority must grant the licence.
  2. If the police issue an objection notice the licensing authority must hold a hearing to consider it unless the police and the authority agree a hearing is unnecessary. The authority must reject the application if it considers it necessary for the promotion of the crime prevention objective but in all other cases must grant the licence.
  3. The initial duration of a personal licence is for ten years but it can be renewed for subsequent periods of ten years at a time. The licence may be revoked if the holder commits a relevant offence after it has been granted and, after consultation with the police, the licensing authority considers revocation necessary to promote the crime prevention objective.
  4.  

    Permitted Temporary Activities

  5. When it is proposed to use premises for one or more licensable activities in a period not exceeding 72 hours for up to 500 people, an individual may notify the licensing authority of the proposals by giving it a temporary event notice. The activity proposed will be a permitted temporary activity provided that:

  1. The notice will be void if the event is within 24 hours of any other event specified in another temporary event notice given by the premises user.
  2. If the police believe that the event would undermine the crime prevention objective, they must give an objection notice stating their reasons to the licensing authority and the premises user. The licensing authority must hold a hearing unless it is agreed with the police that a hearing is unnecessary. The temporary event notice may be modified by agreement between the premises user and the police prior to the hearing or decision to dispense with a hearing in which case the police objection notice will be treated as having been withdrawn.
  3. Having regard to the objection notice the licensing authority may give the premises user a counter notice if it considers it necessary for the crime prevention objective to do so. If the licensing authority decides not to give a counter notice it must give the premises user and the police notice of its decision. In any other case it must give the counter notice together with a notice of the reasons for it to the premises user and copies to the police.
  4. The licensing authority must also give a counter notice if:

If the event period in the notice straddles two years the temporary event notices in both years must be taken into account.

 

Children

  1. Access by children to licensed premises will be permitted unless the premises operator when making an application for a premises licence decides to exclude them or the licensing authority imposes conditions preventing or moderating access by children where necessary to promote the licensing objectives, one of which is the safeguarding of children from harm.
  2. The Bill introduces specific offences relating to children including:

 

Club Premises Certificate

  1. Certain qualifying club activities are subject to less stringent requirements than other licensable activities, which means that clubs which qualify will not be required to obtain a full premises licence to carry out those activities. Instead they will have to apply for a club premises certificate. Clubs will nevertheless have to bear in mind the licensing objectives.
  2. The following licensable activities are defined as qualifying club activities:

 

Right of Appeal

  1. All decisions of the licensing authority will be subject to a right of appeal in the Magistrate's Court. The court has the power to:

  1. Decisions of licensing justices are currently appealed to the Crown Court. Entertainment licensing decisions of the local authority can be appealed to the Magistrates Court.
  2.  

    Fees

  3. The Bill provides that application fees for premises and personal licences and for club premises certificates and temporary event notices will be fixed centrally by government regulations. There will be no discretion for licensing authorities to vary these fees. The government is currently consulting local authorities and industry on the appropriate level of fees. Concerns have been raised about centrally set fees failing to cover costs so that the licensing authority will be required to make up any shortfall. A full cost assessment has yet to be carried out by the Council but it is possible that a system of centrally-set fees will adversely affect the Council because of the cost of enforcement in relation to a higher number of licensed premises than many smaller licensing authorities.
  4.  

    Offences

  5. The Bill specifies the following as criminal offences:

  1. A person will have a defence to any of the above offences if his act was due to a mistake or to reliance on information given to him or the act or omission of another person or some other cause beyond his control and he took all reasonable precautions and exercised all due diligence to avoid committing the offence.
  2. Other offences under the Bill include:

  1. The Bill also introduces the offences relating to the supply of alcohol to children and the consumption of alcohol to children described in paragraph 35 above.
  2.  

    Framework Guidance

  3. The Framework Guidance issued by the government gives an indication of the scope of the guidance that will be issued when the Bill comes into force and which licensing authorities will be required to adhere to. The Guidance will, among other things:

 

Transitional Provisions

  1. Schedule 8 to the Bill sets out transitional arrangements for the transition of the existing licensing system to the new regime. An estimated 180,000 business will have their current licences preserved under the new regime. The timetable for the transition will be fixed by government regulations. The government currently proposes a transitional period of 12 months although no dates have been fixed.
  2. The Bill provides that for six months following the "first appointed day", which will be a date fixed by government regulations , holders of existing justice's licences or other relevant licences relating to particular premises can apply for their existing licence to be converted into a new premises licence. Applicants must give a copy of their application to the police. If no objection notice is received from the police the licensing authority must grant the licence on conditions equivalent to those contained in the old licence except that:

  1. However, the police must give a notice of objection to the licensing authority and the applicant within 28 days if:

  1. If the licensing authority receives a police objection notice it must hold a hearing unless it agrees with the police and the applicant that a hearing is unnecessary. It must, having regard to the objection notice, reject the application if it considers it necessary for the promotion of the crime prevention objective.
  2. If the licensing authority fails to determine the application within two months the licence will be deemed to be granted.
  3. The new licences will take effect on the "second appointed day" which will be a date to be fixed in government regulations. They will be of indefinite duration unless the application for conversion requires the licence to be time limited. Following the grant of the new licence the old licence will be revoked.
  4. An applicant can also apply for a variation to the terms of his/her existing licence at the same time.
  5. The holder of a current justice's licence may also apply for a personal licence within a transitional period of at least six months which will be fixed by the Secretary of State. If the licensing authority is satisfied that the applicant holds a justice's licence and no objection from police is received within 28 days then the licensing authority must grant the licence
  6. If however the police object to the licence on the grounds that the applicant has been convicted of a relevant offence and the licensing authority considers it necessary for the promotion of the crime prevention objective, it must not grant the licence.
  7. If the licensing authority fails to determine the application within three months of receipt the licence will be deemed to be granted.
  8.  

    Impact on Birmingham City Council

  9. The Council has yet to carry out a full impact assessment of the implementation of the Licensing Bill on its licensing function although it intends to commence this process in February 2003.
  10. The Local Government Association argued in a briefing paper for use by the House of Lords in the Bill's committee stage that the Bill should be amended so that:

  1. None of these proposals were accepted as amendments at the Committee stage of the Bill. However, a significant number of amendments have been tabled for consideration during the Report stage, which is due to take place this month.

 

February 2003