House of Lords - Explanatory Note
Licensing Bill [HL] - continued          House of Lords

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Clause 178 - Hearings

285.     Procedures for hearings will be prescribed in regulations, which may require authorities to notify certain persons of hearings, ensure the expedition of urgent cases and set out rules relating to evidence and legal representation. Licensing authorities may not make any orders as to the costs of hearings under the Bill.

Clause 179 - Giving of notices, etc.

286.     This clause sets out rules for delivery of documents to the licensing authority and any other person or body affected by the licensing regime.

Clause 180 - Provision of information

287.     This clause provides for the sharing of information by licensing authorities and responsible authorities for the purposes of the Bill.

Clause 181 - Proceedings for offences

288.     This clause sets out the bodies that can bring a prosecution for an offence contained in the Bill. It also extends the limitation period for bringing summary proceedings from the usual period of six months to a period of 12 months.

Clause 182 - Offences by bodies corporate etc.

289.     This clause provides that where an offence under the Bill is committed with the consent or connivance of a director, member of the management committee, chief executive, manager, secretary or similar officer of a corporate body (e.g. a limited company), or through attributable neglect, the officer as well as the corporate body commits the offence. In the case of partnerships, the consent, connivance or attributable neglect of a partner, or in the case of other unincorporated associations the consent or connivance of an officer of the association or member of its governing body, would make the individual and the organisation guilty of the offence.

Clause 183 - Jurisdiction and procedure in respect of offences

290.     This clause provides that any fine imposed following the conviction of an unincorporated association should be paid out of the association's funds. It provides that any proceedings brought against unincorporated associations must be brought in the name of the association, and not the name of any of its members. Certain legal procedures and rules relating to the service of documents will apply to unincorporated associations as to bodies corporate.

Clause 184 - Vessels, vehicles and moveable structures

291.     The provisions for premises licences, club certificates and temporary permissions will apply to a vessel not permanently moored or berthed in a particular place as though they were premises situated at the place where it is normally moored or berthed. A vehicle or moveable structure - e.g. tent or inflatable building - which is not permanently located in the same place will be treated as premises located at any place where it is parked or set. So if licensable activities are carried on or from the vehicle when it is parked, a premises licence, club premises certificate or temporary event notice will be required, and where such activities take place when it is parked in more than one place, the vehicle will be treated as if it were separate premises at each location, and separate premises licence etc. will be required. Clauses 28 to 31 (provisional statements re premises licences) do not apply to vessels, vehicles or moveable structures.

Clause 185 - Location of sales

292.     Where the place where a sale of alcohol takes place is different from the place from which the alcohol is supplied, the sale is treated as having happened at the place from which the alcohol is appropriated to the contract. For example, when alcohol is bought via mail order or a telephone call centre, the sale will, for the purposes of the Bill, have taken place at the warehouse from which the alcohol would be delivered, rather than the call centre where the contract for sale of the alcohol was concluded. The requirement for a premises licence will therefore apply to the warehouse rather than the call centre.

Clause 186 - Meaning of "alcohol"

293.     For the purpose of the Bill, 'alcohol' means: spirits, wine, beer, cider or any other fermented, distilled or spirituous liquor. It does not include any liquor of 0.5% strength or below at the time of the sale or supply in question, perfume, flavouring essence, alcohol which is, or is included in, any medicine, denatured alcohol (methylated spirits) or alcohol contained in liqueur confectionery (as defined in subsection (2)).

Clause 187 - Meaning of 'sale by retail'

294.     This clause defines 'sale by retail', of alcohol, for the purposes of the Bill as a sale to a person other than a sale to a trader for trade purposes, to a club which holds a club premises certificate, to a premises licence holder or to a premises user with a temporary event notice for purposes permitted by those certificates, licences or notices. The purpose of these exemptions is to ensure that purely "business to business" sales are excluded from the scope of the Bill.

Clause 190 - Crown application

295.     This clause provides for the Bill to apply to the Crown and to Crown property. It also applies to land of the Duchies of Lancaster and Cornwall (except to the extent that they are occupied by the Queen or the Prince of Wales).

296.     The Board of the Green Cloth is a committee of the Royal Household responsible for licensing inns "within the verge of the Palace" (i.e. Buckingham Palace). There are a number of public houses within the jurisdiction of the Board, which is limited to what used to be the private grounds of the Sovereign, and includes Carlton House Terrace, the northern end of Whitehall and the National Gallery (the former Royal Stables). Those areas currently within the jurisdiction of the Board of Green Cloth are within the remit of the Bill, so that licensing functions in respect of these areas are to be carried out by the relevant licensing authority.

297.     Activities carried out at royal palaces are not "licensable activities" for the purposes of the Bill (see clause 170). This would include, for example, the Palace of Westminster.

Clause 191 - Removal of privileges and exemptions

298.     Under the Licensing Act 1964, the historical exemptions and privileges enjoyed by the University of Cambridge and the Honourable Company of Vintners were preserved and so the licensing requirements did not apply to either of them. The new regime applies across the board and this clause makes it clear that none of those privileges or exemptions is being preserved.

Clause 192 - Regulations and orders

299.     Most secondary legislation made under the Bill is to be subject to the negative resolution procedure. But the following secondary legislation is to be subject to the affirmative procedure—

      a)      an order under clause 169 (relaxation of opening hours for special occasions);

      b)      an order under clause 173(3) (order amending definition of "excluded premises" where alcohol sales are prohibited); and

      c)      an order under paragraph 4 of Schedule 1 (amendments to the meaning of "regulated entertainment").

300.     Commencement orders, and the order prescribing the start of the first period for which licensing authorities must prepare a statement of licensing policy (see clause 5), will be subject to neither procedure. Regulations or an order under the Bill may make transitional provisions.

Clause 193 - Minor and consequential amendments

301.     This clause gives effect to Schedule 6, which sets out minor and consequential amendments to existing legislation required by the Bill. The Secretary of State has a limited power to make consequential amendments by order. He may only make amendments, consequential on any provision of the Bill, to any Act or subordinate legislation made before the provision in question comes into force.

Clause 194 - Repeals

302.     This clause gives effect to Schedule 7, which sets out which existing legislation will be repealed by the Bill, and the extent of any repeal.

Clause 195 - Transitional provisions etc.

303.     This clause gives effect to Schedule 8, which sets out the transitional and transitory provisions.

Clause 196 - Short title, commencement and extent

304.     The Bill extends to England and Wales. And the amendment of the Confiscation of Alcohol (Young Persons) Act 1997 (see clause 152) extends also to Northern Ireland.

Schedule 1 - Provision of regulated entertainment

305.     This Schedule defines the provision of regulated entertainment as covering entertainment provided solely or partly for members of the public, or exclusively to club members and their guests, or for which a charge is made, which is provided for profit or to raise money for charity. It also covers the provision of entertainment facilities for participating in entertainment.

306.     The definition would cover entertainment staged by a charity for purposes of fundraising, but would not, for example, include the provision of entertainment for a company or firm for its clients, for which no charge was made but which was connected with stimulating general goodwill which might be advantageous for the business.

307.     Forms of entertainment to be regulated by the Bill would include—

    a)     plays - both performance and rehearsal;

    b)     the showing of films (or any exhibition of moving pictures);

    c)     all indoor sporting events. For the purposes of the Bill, an indoor sporting event is one which takes place inside a building for spectators wholly inside that building. A sporting event that takes place at a venue whose roof can be opened or closed would not constitute an indoor event, even when the roof is closed. For the purposes of this Bill, sport is defined as any contest in which physical skill is the main factor. For example, tennis would be covered by the definition. However, a game of chess contested publicly would not;

    d)     outdoor boxing and wrestling matches. No other form of outdoor sport would be regulated by the Bill;

    e)     music: both the public performance of live music and the public playing of recorded music. No distinction is made in the Bill between amplified or unamplified music, or between different musical styles; and

    f)     The public performance of dance;

308.     where the entertainment takes place in the presence of an audience.

309.     The Secretary of State may by order amend the definitions included in the Schedule.

310.     A number of exemptions to regulated entertainment are included in the Bill including—

      a)      the provision of any form of entertainment for broadcast where there is no studio audience

      b)      the showing to an audience of television and radio programmes forming part of a programme service within the meaning of the Broadcasting Act 1990 (so long as the programmes have not been pre-recorded)

      c)      recorded music which is incidental to an activity which is not a licensable activity, for example, music played in lifts

      d)      film exhibitions used for product demonstration, advertisement, information, education or instruction. This would exempt, for example, educational films shown in schools, or special advertisements shown at product display stands in shopping centres.

      e)      entertainment incidental to a religious meeting or service. This would exempt, for instance, the singing of hymns or other religious material at a religious service. It would not, however, exempt the provision of entertainment at religious premises that were being used for a purpose unconnected with a religious service - for example, the performance of a classical concert at a church.

      f)      entertainment provided on vehicles in motion

Schedule 2 - Provision of late night refreshment

311.     For the purposes of the Bill, late night refreshment means the supply of hot food or hot drink to the public, for consumption on or off the premises, between 11pm and 5am. It also means the supply of hot food or hot drink between those hours on premises to which the public has access. The Schedule contains a definition of "hot" for the purposes of the Bill.

312.     Certain supplies are not covered by the definition of late night refreshment, including—

      a)      supply to guests of hotels or similar premises, e.g. guest houses, lodging houses, caravan or camping sites or other premises supplying accommodation as their main purpose

      b)      supply to members of recognised clubs

      c)      supply to employees of a particular employer - for example, where refreshment is made available to employees whose shift patterns require them to be present at the workplace between 11pm and 5am

      d)      premises already licensed under certain other Acts - for instance those used as "near beer" premises in London (where certain descriptions of non-alcoholic beverages are sold).

There are specific exemptions for the provision of hot food or drink by vending machines (where the money is inserted by members of the public rather than the staff at the premises), food or drink supplied free of charge, or by a registered charity.

Schedule 3 - Matters to be entered in licensing register

313.     This Schedule sets out the information to be recorded in the licensing register that all licensing authorities will be obliged to maintain (see clause 5).

Schedule 4 - Personal licence: relevant offences

314.     This Schedule lists those offences that could, on conviction, rule out the grant or renewal of a personal licence to the individual convicted, or lead to revocation of an existing licence held by a licence holder so convicted.

Schedule 5 - Appeals

315.     This Schedule provides for decisions made by a licensing authority to be subject to appeal to a magistrates' court by any party involved in the decision - applicants, responsible authorities and interested parties. So, an applicant for a premises licence may appeal to the magistrates' court against the inclusion in the licence by the licensing authority of conditions that the applicant sees as unreasonably restrictive. At the same time, the police, for example, or a local resident would have a right of appeal against conditions that appeared to them to fail to promote the licensing objectives.

316.     Appeals must be brought no more than 21 days after notification of the appealed decision, and must be made to the court for the petty sessions area in which the relevant premises or club is situated.

317.     Part 1 of this Schedule sets out the appeals process with regard to premises licences.

  • Applicants may appeal to the magistrates court if the licensing authority has rejected their application for a premises licence, for a variation of a premises licence, for the variation of a designated premises supervisor or for a transfer of a licence.

  • If a licence is granted, the licence holder may appeal against the imposition of conditions on that licence, the exclusion of a licensable activity or refusal to specify an individual as supervisor.

  • Those who made relevant representations during the course of an application may appeal against the decision to grant a licence.

  • Applicants or any person who made a relevant representations may appeal against the decision to issue a provisional statement.

  • Where a licensing authority takes the step of modifying the conditions of the licence before granting a variation, the applicant may appeal. Any person who made relevant representations can appeal against the decision to vary the licence.

  • The chief officer of police who gave a notice may appeal against the grant of an application to specify an individual as a premises supervisor or against the decision to transfer a licence.

  • Where a licensing authority decides to cancel an interim authority notice following a notice from the chief officer of police, the person who gave the interim authority notice may appeal against the decision. Where the licensing authority does not cancel the interim authority notice following a notice from the police, the chief officer of police may appeal.

  • The decision in relation to a review of a premises licence may be brought to appeal by the applicant for the review; the premises licence holder or any one who made relevant representations.

318.      Part 2 sets out the appeals procedure in relation to club premises certificates.

  • Clubs applying for a premises certificate or applying to vary a certificate may appeal against the decision by the licensing authority to reject the application.

  • If a certificate is granted, the holding club may appeal against the imposition of conditions or the exclusion of a licensable activity.

  • Those who made relevant representations during the course of an application may appeal against the decision to grant a certificate.

  • Where a licensing authority takes the step of modifying the certificate before granting a variation, the club may appeal. Any person who made relevant representations can appeal against the decision to vary the certificate.

  • The decision in relation to a review of a club premises certificate may be brought to appeal by the applicant for the review, the certificate-holding club or anyone who made relevant representations.

319.     Part 3 of this Schedule covers appeals in relation to temporary event notices, personal licences and closure orders.

  • In relation to temporary event notices, premises users may appeal against the decision by a licensing authority to give a counter notice.

  • Applicants for personal licences may appeal against the decision to reject an application for or application to renew a licence. Where the police lodged an objection notice to the grant or renewal of a personal licensing, and the licensing authority grants or renews the licence, the police may appeal.

  • Personal licence holders may appeal against revocation of that licence by the licensing authority. Where the police have given notice about relevant offences which come to light after the granting or renewal of a licence, and the licensing authority decide not to revoke the licence, the police may appeal against the decision.

  • The licence holder or any person who made representations on a review of a premises licence following a closure order may appeal against the outcome of the review.

?     Schedule 6 - Minor and consequential amendments

320.     This Schedule sets out the amendments to existing legislation required by the Bill.

Schedule 7- Repeals

321.     This Schedule sets out the existing legislation which will be repealed by the Bill.

Schedule 8 - Transitional provision etc.

322.     Part 1 of this Schedule sets out the transitional provisions for premises licences. A person who is either the holder of an existing licence or who has the consent of the holder of an existing licence may, within 6 months of a day appointed for the purposes of this Part of the Schedule, apply to the relevant licensing authority (determined in accordance with clause 12 in Part 3 of the Bill) for the conversion of an existing licence, or existing licences, to a premises licence. The Part lists, in paragraph 1(1), the existing licences in the current licensing regimes which may be converted to a premises licence and defines existing licensable activities to mean licensable activities authorised under an existing licence and any other licensable activities which may be carried on at the premises to which the existing licence relates which may be carried on by virtue of the existence of the licence.

323.     Paragraph 2(4) and (5) details the matters to be specified in an application for the conversion of an existing licence and the documents to accompany the application. Paragraph 3 requires an applicant for the conversion of an existing licence to give a copy of his application (with its accompanying documents) to the chief officer of police for the police area in which the premises are situated within 48 hours of the application. In circumstances where an appeal is pending against a decision to revoke or reject an application for the renewal of an existing licence and the chief officer of police is satisfied that the conversion of the existing licence would undermine the crime prevention objective or where he is satisfied that there has been a material change in circumstances since the grant of the existing licence or its last renewal such that the conversion of the existing licence would undermine the crime prevention objective, he must give a notice to that effect to both the applicant and the licensing authority. Paragraph 3(5) provides that the chief officer of police may not give such a notice after the end of the period of 28 days beginning with the day on which he received a copy of the application.

324.     By virtue of paragraph 4, a licensing authority must grant the application for conversion of an existing licence unless a notice has been given by the chief officer of police under paragraph 3 which has not been withdrawn. If a notice has been given, the authority must hold a hearing to consider that notice (unless the applicant, the chief officer of police and the licensing authority agree that this is unnecessary) and reject the application (or that part of the application which relates to the existing licence to which the notice relates) if the authority considers that it is necessary to do so for the promotion of the crime prevention objective. If the licensing authority fails to determine the application within 2 months of the receipt of the application, the application will be treated as granted. However, an application will not be granted in circumstances where the existing licence has ceased to be held by the applicant before the application is granted.

325.     Paragraph 7 provides that a person who makes an application for the conversion of an existing licence may at the same time apply for a variation of the new premises licence (the converted licence), notwithstanding the fact that at that time it would not have been granted, as if that licence is in force under clause 36 (application to vary licence to specify individual as premises supervisor) or clause 33 (application to vary premises licence). If such an application is made the relevant licensing authority (see clause 12) may discharge its functions in relation to that application and the relevant provisions in Part 3 of the Bill will apply.

326.     This Part of the Schedule also makes provision for the consequences of an existing licence being revoked by the licensing justices or a court after the grant of the new premises licence but before the second day appointed by the Secretary of State. If this occurs in respect of all the existing licensable activities converted to the new premises licence, the new premises licence will lapse. If it occurs in respect of only some of the said existing licensable activities the licensing authority is obliged to amend the new premises licence to remove those activity or activities from it.

327.     Provision is made for the applicant to appeal against a decision by the licensing authority to reject the application for conversion of an existing licence and for the chief officer of police to appeal against a decision to grant the application after consideration of his notice of objection. Further, a right of appeal is provided for the "applicant" against a decision to amend the new licence (as mentioned in the paragraph above).

328.     These provisions enable existing licence holders, or applicants with their consent, to enjoy the same authorisation in the new system as they currently enjoy if they wish to do so.

329.     Provision is made in relation to false statements for the purposes of obtaining a new licence.

330.     Paragraph 11 applies where, rather than using the procedure set out in the earlier paragraphs, a person who currently carries on a licensable activity applies for a new premises licence under Part 3 of the Bill. A licensing authority is prohibited from attaching conditions to the premises licence which would have the effect of restricting the opening hours to more limited hours than the current "permitted hours" under Part 3 of the Licensing Authority Act 1964.

331.     Part 2 of this Schedule makes similar transitional provisions to those in Part 1 in relation to applications by clubs which are registered for the purposes of Part 2 of the Licensing Act 1964 to convert their existing club certificate under that Part to a club premises certificate.

332.     Part 3 of this Schedule sets out the transitional provisions for personal licences. During the transitional period (defined as a six month period specified by order), a holder of an existing justices' licence (granted under the Licensing Act 1964) authorising the sale of alcohol by retail will be entitled to apply for the grant to him of a personal licence without having to possess the licensing qualification ordinarily required under Part 6 of the Bill, provided that certain requirements are met. These are that he produces his current justices' licence, his photograph (in a prescribed form) and a statement (if appropriate) relating to his convictions for relevant offences or foreign offences.

333.     The applicant must give a copy of the application for a personal licence to the chief officer of police within 48 hours of making the application. The chief officer of police may give an objection notice if he is satisfied, having regard to the applicant's conviction for any relevant offence or foreign offence, that the exceptional circumstances of the case are such that the grant of the licence would undermine the crime prevention objective. If no objection has been made by the police and the licensing authority is satisfied that the applicant holds a justices' licence the application must be granted. If the authority is not satisfied that the applicant holds a licence it must reject the application. If the police have objected to the grant, the licensing authority must hold a hearing (unless the applicant, police and the authority agree otherwise) to consider the objection. As a result of the consideration of the objection notice the licensing authority must reject the application if it considers it necessary for the promotion of the crime prevention objective to do so or grant the application in any other case. Provisions in Part 6 of the Bill relating to the notification of determinations by the licensing authority apply in relation to the authority's decision (see clause 120). Rights of appeal are conferred on the applicant and the chief officer of police.

334.     If an authority fails to determine an application for a personal licence within 3 months of its receipt, the application will be treated as granted.

335.     Part 4 of this Schedule provides that during the transitional period licensing authorities should consult representatives of existing justices' licences and registered clubs in their area in forming their licensing policy.

336.     Clause 186 (meaning of "alcohol") excludes "denatured alcohol". This is the term which, from the commencement of section 5(1) of the Finance Act 1995 is to be used to refer to what is currently referred to as "methylated spirits". Pending the commencement of that provision, clause 186 has effect by virtue of paragraph 30 of this Schedule as if it referred to "methylated spirits".

337.     The Schedule also makes provision for savings in relation to some of the provisions which are repealed by the Bill. To the extent that the provisions repealed are relied upon in other statutes (in particular, local enactments relating to London) their effect is preserved.

 
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Prepared: 19 November 2002