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

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.

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.

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.

Licensable Activities

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

the sale by retail of alcohol;

the supply of alcohol by or on behalf of a club to, or to the order of, a member of the club;

the provision of regulated entertainment; and

the provision of late night refreshment.

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.

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.

Licensing Authorities

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.

Licensing Objectives

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:

the prevention of crime and disorder;

public safety;

the prevention of public nuisance; and

the protection of children from harm.

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).

Statement of Licensing Policy

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.

Licensing Committee

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.

The delegations to the Council's Licensing Committee will need to be revised to comply with these requirements when the Bill comes into force.

Register

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.

Premises Licence

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.

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.

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:

modify the conditions set out in the operating schedule and the mandatory conditions (see paragraph 21 below);

exclude from the scope of the licence any of the licensable activities to which the application relates;

refuse to specify any person in the licence as the premises supervisor; or

reject the application.

"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.

"Responsible authorities" include the local police, fire authority and public bodies with responsibility for environmental health.

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).

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:

take no action;

give a warning or request for improvement to the licence holder;

modify or suspend the licence; or

revoke the licence.

Mandatory Conditions

The mandatory conditions are:

where the licence authorises the supply of alcohol:

no supply of alcohol may be made unless there is a designated premises supervisor in respect of the premises licence;

no supply of alcohol may be made at a time where the designated premises supervisor does not hold a personal licence or his personal licence is suspended; and

every supply of alcohol must be made or authorised by a person who holds a personal licence.

where the licence imposes a condition requiring door supervision, a condition that any door supervisors must be licensed by the Security Industry Authority.

Provisional Statement

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.

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.

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.

Personal Licence

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.

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 applicant is aged 18 or over;

he possesses an accredited licensing qualification;

no personal licence held by him has been forfeited in the previous five years; and

he has not been convicted of any relevant offence.

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

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.

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.

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.

Permitted Temporary Activities

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:

the individual ("the premises user") giving the notice is over 18;

the notice is in the prescribed form and, where one of the proposed licensable activities is the supply of alcohol, certain mandatory conditions are incorporated in it;

the notice is given to the licensing authority in duplicate at least 10 working days before the proposed event and is accompanied by the prescribed fee;

the notice is acknowledged by the licensing authority within certain time limits;

a copy of the notice is given to the local police;

the notice has not been withdrawn; and

no counter notice has been given.

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.

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.

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.

The licensing authority must also give a counter notice if:

the premises user holds a personal licence and has already given 50 temporary event notices in the same calendar year; or

the premises user does not hold a personal licence and has already given 5 temporary event notices in the same calendar year.

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

Children

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.

The Bill introduces specific offences relating to children including:

selling or allowing the sale of alcohol to or purchasing alcohol for children;

consuming alcohol if under the age of 18 on licensed premises unless aged 16 or 17 and drinking beer, wine or cider with a table meal.

Club Premises Certificate

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.

The following licensable activities are defined as qualifying club activities:

the supply of alcohol by or on behalf of a club to, or to the order of, a member of the club for consumption on the premises where the supply takes place;

the sale by retail of alcohol by or on behalf of a club to a guest of a member of the club for consumption on the premises where the sale takes place; and

the provision of regulated entertainment where that provision is by or on behalf of a club for members of the club or members of the club and their guests.

Right of Appeal

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:

dismiss the appeal;

substitute for the decision any other decision that could have been made by the licensing authority; or

remit the case to the licensing authority to deal with it in accordance with the court's direction; and

make such order for costs as it thinks fit.

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.

Fees

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.

Offences

The Bill specifies the following as criminal offences:

carrying on or attempting to carry on a licensable activity on or from any premises otherwise than in accordance with an authorisation (i.e. a premises licence, club premises certificate or a temporary event notice);

exposing for sale by retail any alcohol in circumstances where it is an unauthorised licensable activity;

keeping alcohol which is intended for sale by retail or supply in circumstances where it would be an unauthorised licensable activity;

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.

Other offences under the Bill include:

allowing disorderly conduct on licensed premises;

selling alcohol to a person who is drunk;

obtaining alcohol for a person who is drunk;

failing to leave or entering or attempting to enter (having been requested not to) licensed premises when drunk and disorderly without reasonable excuse;

keeping smuggled goods; and

giving a false statement as part of the application for a licence, club premises certificate or temporary event notice.

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.

Framework Guidance

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:

provide details of the principles to be adopted by the licensing authority in determining its licensing policy including:

a prohibition on local authorities adopting arbitrary quotas on number of licensed premises;

prevention of policies which would inhibit the principle of children having free access to licensed premise unless there are particular reasons to exclude them;

integration with local crime prevention, planning, transport, tourism and cultural strategies, such as a proper separation of planning and licensing regimes to avoid duplication and inefficiency;

an emphasis on the importance of longer opening hours to combat binge drinking and anti-social behaviour;

discretion to demand stricter conditions for late licences operating in residential areas but no provision for generalised closing times in such areas (i.e. zoning) although the establishment of Alcohol Free Zones under the Criminal Justice and Police Act 2002 will not be affected;

a recommendation against standard licensing conditions;

promotion of the benefits of agreed protocols between the police and the local authority about the enforcement of licensing laws;

proper account of the need to promote live music, dancing and theatre;

provide a statement of best practice for the issue of licences;

provide guidance as to the registration of personal licence holders as designated premises supervisors and recommend that no conditions as to their qualifications or experience will be attached unless the capacity of the premises is 1,500 or more;

underline the need for fairness, proportionality and minimum bureaucracy in issuing premises licences;

lay down best practice in relation to hearings and the protection of human rights;

emphasise that "safe capacities" should only be imposed where necessary for public safety;

promote model sets of conditions to promote consistency;

indicate that conditions may only be attached to licences where necessary for the promotion of the licensing objectives;

lay down additional guidance as to temporary events notices, club premises certificates and reviews of licences and certificates; appeals; police powers to close down licensed premises; sale and supply of alcohol to minors; and transitional matters.

Transitional Provisions

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.

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:

the mandatory conditions described in paragraph 21 above must be incorporated in the licence;

any condition allowing up to two musicians to perform in a bar without any specific permission will no longer apply (this provision is contained in the Licensing Act 1964 which will be repealed when the Bill comes into force).

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

an appeal is pending against a decision to revoke or reject an application for the renewal of the existing licence and the police are satisfied that converting the licence would undermine the crime prevention objective; or

because of a material change in circumstances since the existing licence was granted or renewed converting it would undermine the crime prevention objective.

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.

If the licensing authority fails to determine the application within two months the licence will be deemed to be granted.

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.

An applicant can also apply for a variation to the terms of his/her existing licence at the same time.

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

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.

If the licensing authority fails to determine the application within three months of receipt the licence will be deemed to be granted.

Impact on Birmingham City Council

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.

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:

personal licences be required for all licensable activities and not just the supply of alcohol;

the word "vicinity" in the definition of "interested party" be changed to the broader term "locality". It also proposed that interested parties should include "other people legitimately affected";

local authorities have the power to set their own fees;

the right of local authorities under the Bill to recover unpaid fees "as a debt due to the authority" be extended so that, as under the existing licensing regime, licences will lapse for non-payment of fees;

in relation to permitted temporary activities:

the requirement for a temporary event notice to be given at least 10 days in advance of the proposed activity be amended to 28 days;

the local fire authority and the local authority should be allowed to object as well as the police to any temporary event notice;

all licensed premises should have a maximum permitted capacity stated on their licence.

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