Select Committee on Delegated Powers and Regulatory Reform First Report


DELEGATED POWERS IN THE BILL

CLAUSE 5: STATEMENT OF LICENSING POLICY

21.  Clause 5 requires each licensing authority to determine and publish a statement of licensing policy every three years. The statement must take account of the views of representatives of holders of premises licences and club premises certificates, the police and the fire authority, and local residents and businesses.

22.  Clause 5(2)(a) provides for the Secretary of State by order to appoint the day from which the initial three year period commences. All licensing authorities will be required to determine their licensing policy and to publish a statement of that policy before the new regime is implemented and individual licensing applications are made. This is necessary because when determining such applications, each licensing authority will be bound to act in a way consistent with its own policy. It is therefore intended that clause 5(2)(a) will be brought into force before those provisions of the Bill which introduce the substance of the new regime.

23.  An order made under subsection (2)(a) will not be subject to any Parliamentary procedure. This is because the order will only specify a date on which a period begins to run which is comparable to the effect of a commencement order.

24.  Clause 5(7) provides that the Secretary of State may make regulations about the determination and revision of licensing policies, and the preparation and publication of licensing statements. This power will allow the Secretary of State to impose requirements on licensing authorities in the light of experience, so as to ensure that the publication of licensing statements achieves its aim of enabling all applicants for licences and other interested parties to know the policy background against which applications for the grant of licences etc. will be determined. It will also enable the Secretary of State to ensure that there is a degree of consistency between different licensing authorities.

25.  Regulations under clause 5(7) will be subject to the negative resolution procedure. It is considered appropriate for these matters to be subject to secondary legislation and to this level of Parliamentary control to give the Secretary of State the flexibility to make future adjustments to the administrative operation of the licensing regime, while not altering the essential structure of the scheme.

CLAUSE 8: REQUIREMENT TO KEEP A REGISTER

26.  Clause 8 requires each licensing authority to maintain a register which records certain information in relation to the licensing regime including applications, notifications and the grant of licences and certificates. The aim of the register is to make information readily available to the public, to responsible authorities and authorised persons. The information contained in the register must be made available for inspection by the public during office hours free of charge although a fee may be charged for copies. A list of matters that must be entered in the licensing register is contained in Schedule 3.

27.  Subsection (1)(d) allows the Secretary of State to make regulations adding to the list of matters to be recorded in the register. This will allow additional information to be made available to the public if experience of the new licensing regime shows that to be desirable.

28.  Subsection (2) gives the Secretary of State a power to make regulations prescribing the form of the register and the manner in which it is kept. This power will provide the Secretary of State with the necessary flexibility to react swiftly to take account of any future changes in circumstances and changes in local government practice, and developments in record-keeping technology.

29.  Regulations under clause 8 will be subject to the negative resolution procedure. It is considered appropriate for these matters to be subject to secondary legislation because this will give the Secretary of State the flexibility to make future adjustments to the administrative operation of the licensing regime. It is considered appropriate for this level of Parliamentary control to be exercised because the subject-matter is essentially technical and does not concern the essential framework of the regime.

CLAUSE 9: PROCEEDINGS OF LICENSING COMMITTEE

30.  This clause states that a licensing committee may form one or more sub-committees, each comprising three members of the committee. Subsection (2) gives the Secretary of State a power to make regulations making provision about:

  • the proceedings of the licensing committees and their sub-committees (including provision about the validity of proceedings and the quorum for meetings)
  • public access to these meetings
  • publicity to be given to those meetings
  • the agenda and records to be produced in respect of those meetings
  • public access to such agendas and records and other information about those meetings.

31.  Given the administrative nature of these matters and the fact that in many respects the proceedings of licensing committees will be determined by local authorities' own standing orders, it appears sensible and appropriate for these matters to be left to secondary legislation, and for the negative resolution procedure to apply.

CLAUSE 13: AUTHORISED PERSONS, INTERESTED PARTIES AND RESPONSIBLE AUTHORITIES

32.  This clause defines the terms 'authorised persons', 'interested parties' and 'responsible authorities' for the purposes of Part 3 of the Bill.

33.  Subsection (2)(f) provides a power for the Secretary of State to add to the list of persons in the definition of 'authorised persons'. 'Authorised persons' are representatives of the public bodies within the definition of responsible authority and they fulfil functions in the inspection and enforcement of licensable activities. Subsection (2) of the clause lists a number of such persons, such as a fire inspector, a health and safety inspector and an environmental health officer of the local authority. The power in subsection (2)(f) will enable additional persons to be added to that list as future circumstances may require. For example, if changes are effected to the types of premises to which the licensing regime is to apply it might be necessary for a new category of persons to be prescribed as 'authorised persons' and hence given a role in the inspection and enforcement of licensable activities on or from those premises.

34.  Subsection (4)(g) gives the Secretary of State a power to add to the list of bodies in the definition of 'responsible authorities'. Responsible authorities are public bodies that may make representations to the relevant licensing authority in relation to applications to carry out licensable activities. Subsection (4) of the clause lists a number of responsible authorities, such as the chief officer of police and the local fire authority. Subsection (4)(g) will allow the Secretary of State to add to the list as circumstances may dictate and will ensure that all appropriate authorities are consulted and that appropriate safety and security concerns are properly considered when a licence is issued under the new regime. In addition, changes in the nature of regional representation may necessitate consultation with officers such as the Mayor of Greater London.

35.  In each case it is considered that secondary legislation is suitable for these matters because the Secretary of State will need to have the flexibility available to reflect any changes in the community's safety and public order priorities, or other such matters. Given that these are essentially operational matters that do not go to the general framework of the Bill, the negative resolution procedure seems to be appropriate.

CLAUSE 16: APPLICANT FOR PREMISES LICENCE

36.  This clause outlines who may apply for a premises licence. The definition includes any individual in the business of carrying on or including licensable activities, as well as bodies such as charities, health service bodies or educational institutions.

37.  Subsection 1(j) gives the Secretary of State a power to make regulations to add to the list of those persons able to apply for a premises licence. The use of secondary legislation provides an efficient and quick procedure to ensure that a category of person will not be prevented from applying for a premises licence if future circumstances show that to be desirable. As this matter concerns the detail of the operation of the regime and not the framework, it is considered appropriate for these regulations to be subject to the negative resolution procedure.

CLAUSE 17: APPLICATION FOR PREMISES LICENCE

38.  This clause details the procedure that must be followed in order to make an application for a premises licence. Applications must be made in the correct form to the relevant licensing authority.

39.  Subsection (2) provides that regulations under clauses 53 and 54 may apply to this clause: see below.

40.  Subsection (3) sets out the information that must accompany an application for a premises licence. Subsection (3)(b) gives the Secretary of State a power to prescribe the form of the plan of the premises which must accompany the application. This is an administrative requirement that enables the licensing authority to know the precise details of the premises that are the subject of an application and the detail of the proposed use of the premises for licensable activities by area (if relevant). Subsection (3)(c) contains a power for the Secretary of State to prescribe the form of consent given by the individual who it is proposed will act as the designated premises supervisor. Such a form must accompany the application. This individual will in practice have day to day responsibility for compliance with the premises licence conditions.

41.  An application for a premises licence must also be accompanied by an operating schedule. Subsection (4) gives the Secretary of State a power to prescribe the form of the schedule and sets out a number of matters which must be included in it, including the licensable activities to be carried out, proposed hours of opening etc, and a statement of how the applicant intends to promote the licensing objectives. Subsection (4)(e), which will apply only where the supply of alcohol is included as one of the proposed licensable activities, gives the Secretary of State a power to require the operating schedule to include prescribed information relating to the individual who it is proposed will act as the premises supervisor. Such information may include, for example, his name and address, as it is important that the police and other enforcement bodies are able to identify and contact the person who is subject to a range of requirements under the Bill. Subsection (4)(h) gives the Secretary of State a power to add further matters to the schedule. The intention is to ensure that if, in the light of experience, it proves desirable for the operating schedule to contain additional information, that may be provided for quickly and flexibly.

42.  In each case, these are operational matters which concern administrative details of the new regime. It is therefore considered appropriate for these matters to be prescribed in secondary legislation and for the regulations to be subject to the negative resolution procedure.

43.  Clause 17(5) contains a power for the Secretary of State to make regulations providing for the advertisement of applications for a premises licence. In particular, these regulations may prescribe the period within which an application must be advertised, the form of any advertisement, the manner in which it is advertised, the persons (in addition to each responsible authority) who must be given notice of the application, and the period within which the responsible authorities and interested parties may make representations to the licensing authority about the application. This power is necessary to ensure that applications for premises licences are advertised sufficiently prominently and expeditiously for representations to be made to the licensing authority before the application is determined.

44.  An application for a premises licence could cover anything from a village dance hall to a multi-screen cinema, and so the detail of what is an appropriate advertising procedure may vary widely from case to case. It would therefore be inappropriate to attempt to specify a single procedure on the face of the Bill; instead the use of regulations will provide the necessary flexibility. Given the level of detail and the administrative nature of the provisions, their inclusion in secondary legislation and the use of the negative resolution procedure appears sensible and appropriate.

CLAUSE 23: FORM OF LICENCE AND SUMMARY

45.  This clause lists the basic requirements as to the form and content of the premises licence and summary.

46.  Subsection (1) gives the Secretary of State a power to make regulations specifying the form of a premises licence and a summary of it. Such regulations must require a licence to include the name and address of the licence holder, a plan of the premises, the duration of the licence, the licensable activities to be carried on, the name and address of the designated premises supervisor (if any) and the conditions subject to which the licence has effect. The power to make regulations will provide the flexibility to include further requirements as to the form and contents of a premises licence, and to make adjustments should future circumstances require.

47.  Given the detailed and administrative nature of the matters to be included in these regulations, it seems appropriate for them to be subject to the negative resolution procedure.

CLAUSE 28: APPLICATION FOR A PROVISIONAL STATEMENT WHERE PREMISES BEING BUILT, ETC.

48.  This clause provides that an individual who has an interest in premises being or about to be constructed, extended or altered for the purposes of carrying out licensable activities may apply to the licensing authority for a 'provisional statement'. The value of such a statement is that other parties may not subsequently make representations about the licensable activities when an application is made for a premises licence in respect of the premises if they could have made those representations when the application was made for the provisional statement. The effect of this clause is thus to provide a certain degree of assurance to those interested in premises which are to be used for licensable activities about their potential trading conditions before investing in that work.

49.  An application for a provisional statement must be accompanied by a schedule of works and subsection (6) gives the Secretary of State a power to prescribe in regulations the form of that schedule. In addition, subsection (6)(c) contains a power to prescribe what information is to be included in such a schedule, in addition to the particulars of the premises and of the proposed licensable activities and plans of the construction or alteration work to be done.

50.  A schedule of works will include information of a technical nature on matters of planning and building regulations. The powers in subsection (6) will provide the Secretary of State with the necessary flexibility to prescribe the detail required in a schedule of works and also to reflect any future changes in planning and building practices. It is therefore considered appropriate for these matters to be included in regulations and for them to be subject to the negative resolution procedure.

CLAUSE 29: ADVERTISEMENT OF APPLICATION FOR PROVISIONAL STATEMENT

51.  Subsection (2) provides that the power to make regulations under section 17(5) relating to the advertisement of an application for a premises licence (see paragraph 43 above) applies equally in relation to an application for a provisional statement under section 28. Subsection (3) provides that in particular, the regulations may prescribe the form of a statement to be contained in such an advertisement stating that responsible authorities and interested parties will be precluded from subsequently objecting to the grant of a premises licence for the premises concerned if they could have made the same objection when the provisional statement was sought.

52.   As with regulations under section 17(5) relating to the advertisement of an application for a premises licence, the purpose of this clause is to ensure that the application process is sufficiently well advertised so that the interests of residents and other interested parties are properly catered for. The use of secondary legislation will provide the Secretary of State with the necessary flexibility to provide for any future circumstances such as changes in public expectations about appropriate levels of notice. Given the level of detail and the administrative nature of the provisions, the use of the negative resolution procedure appears sensible and appropriate.

CLAUSE 33: APPLICATION TO VARY PREMISES LICENCE

53.  Subsection (5) provides that the power to make regulations under section 17(5) relating to the advertisement of an application for a premises licence (see paragraph 43 above) applies equally in relation to an application for variation of a licence under section 28.

54.   As with regulations under section 17(5) relating to the advertisement of an application for a premises licence, the purpose of this clause is to ensure that the application process is sufficiently well advertised so that the interests of residents and other interested parties are properly catered for. Given the level of detail and the administrative nature of the provisions, their inclusion in secondary legislation and the use of the negative resolution procedure appears sensible and appropriate.

CLAUSE 36: APPLICATION TO VARY LICENCE TO SPECIFY INDIVIDUAL AS PREMISES SUPERVISOR

55.  This clause sets out the procedures to be followed when a premises licence holder applies to a licensing authority to change the designated premises supervisor specified in the premises licence.

56.  Subsection (3)(a) gives the Secretary of State a power to make regulations prescribing the form of consent to be given by the individual whom the applicant wishes to specify as the delegated premises supervisor. The precise contents of such a form are a matter of administrative detail and thus it is considered appropriate for this matter to be prescribed in secondary legislation and for the regulations to be subject to the negative resolution procedure.

CLAUSE 46: INTERIM AUTHORITY NOTICE FOLLOWING DEATH ETC. OF LICENCE HOLDER

57.  This clause provides that where a premises licence lapses because of the death, incapacity or insolvency of the licence holder, a person with an interest in the premises, or who is connected to the former holder of the licence may apply for an interim authority notice which will have the effect of temporarily reinstating the licence.

58.  Clause 46(2)(a) contains a power for the Secretary of State to prescribe in regulations the type of interest that would qualify an individual to apply for an interim authority notice under these circumstances. It is considered appropriate for these matters to be prescribed in secondary legislation because the Secretary of State will then have the flexibility to amend or add to the list of prescribed interests in the light of experience, and it is considered appropriate for the regulations to be subject to the negative resolution procedure, because the interests concerned are likely to be of a detailed, technical nature.

CLAUSE 50: APPLICATION FOR REVIEW OF PREMISES LICENCE

59.  This clause makes provision for an interested party or responsible authority to apply to a licensing authority for a review of the premises licence by the licensing authority on grounds that are relevant to the licensing objectives. There will be usually be a hearing to consider the applications.

60.  Under subsection (3), the Secretary of State may make regulations which require an applicant to give notice to the premises licence holder and each responsible authority and which prescribe the time within which that notice must be given, which require the authority to advertise the application and to invite representations, which prescribe the period within which such representations may be made, and which require any such notice or advertisement to specify that period.

61.  It is important that in determining the details of the processes of application, advertisement and representation, the Secretary of State can make provisions ensuring that an adequate period of time is made available for representations and that a fair balance is achieved between the interests of licence holders and applicants for review. The use of secondary legislation ensures that the Secretary of State has the flexibility to make any changes that prove necessary in the light of experience. Given the level of detail and the administrative nature of the provisions, the use of the negative resolution procedure appears sensible and appropriate.

CLAUSE 53 : FORM ETC. OF APPLICATIONS AND NOTICES UNDER PART 3

62.  This clause provides that the Secretary of State may make regulations which prescribe the form and manner in which any application or notice in Part 3 of the Bill must be made, and any information or documents that must accompany it.

63.  The use of secondary legislation for these detailed and generally administrative provisions will provide the Secretary of State with the necessary flexibility to provide for any future changes in circumstances - for example, to take account of the potential for electronic submission of applications, etc. Given the level of detail and the administrative nature of the provisions, the use of the negative resolution procedure appears appropriate.

CLAUSE 54: FEES

64.  This clause gives the Secretary of State a power to make regulations requiring any applications or notices made under Part 3 of the Bill to be accompanied by a fee, and prescribing the amount of the fee. For example, a fee may be set to accompany an application for a copy of a premises licence or summary when the original document is lost, stolen, damaged or destroyed, and the power in clause 54 is expressly applied to these circumstances by clause 24(1). The regulations may also require premises licence holders to pay an annual fee to the licensing authority, and may prescribe the amount and due date of those fees.

65.  This power will allow the Secretary of State the flexibility to set fees at levels that allow licensing authorities to make full recovery of the costs of administering the licensing system, and to make future adjustments to the level and structure of fees to take account of inflation or other economic changes. Given the level of detail and the administrative nature of the provisions, the use of the negative resolution procedure appears appropriate.

CLAUSE 57: PROVISION SUPPLEMENTARY TO SECTION 56

66.  This clause sets out the arrangements for certifying copies of premises licences and summaries of premises licences for the purposes of section 56 (duty to keep and produce licence). Subsection (1)(c) provides that certification of a copy of such a document as a true copy can be made not only by the relevant licensing authority or a solicitor or notary but also by a person of a prescribed description.

67.  The description of persons under subsection (1)(c) has been left to secondary legislation so as to allow the Secretary of State sufficient flexibility to amend the list of prescribed descriptions in the light of experience of the new regime. Given the technical and detailed nature of the provisions, the use of the negative resolution procedure appears appropriate.

CLAUSE 68: AUTHORISED PERSONS, INTERESTED PARTIES AND RESPONSIBLE AUTHORITIES

68.  As is the case in clause 13 in relation to premises licences, this clause defines the terms 'authorised persons', 'interested parties' and 'responsible authorities' for the purposes of Part 4 of the Bill in relation to club premises certificates.

69.  Subsection (2)(f) provides a power for the Secretary of State to add to the list of persons in the definition of 'authorised persons'. 'Authorised persons' are representatives of the public bodies within the definition of responsible authorities and they fulfil functions in the inspection and enforcement of licensable activities. Subsection (2) of the clause lists a number of such persons, such as a fire inspector, a health and safety inspector and an environmental health officer of the local authority. The power in subsection (2)(f) will enable additional persons to be added to that list as future circumstances may require.

70.  Subsection (4)(g) gives the Secretary of State a power to add to the list of bodies in the definition of 'responsible authorities'. Responsible authorities are public bodies that may make representations to the relevant licensing authority in relation to applications to carry out licensable activities. Subsection (4) of the clause lists a number of responsible authorities, such as the chief officer of police and the local fire authority. Subsection (4)(g) will allow the Secretary of State to add to the list as circumstances may dictate and will ensure that all appropriate authorities are consulted and that appropriate safety and security concerns are properly considered when a licence is issued under the new regime.

71.  In each case it is considered that secondary legislation is suitable for these matters because the Secretary of State will need to have the flexibility available to reflect any changes in the community's safety and public order priorities, or other such matters. Given that these are essentially operational matters that do not go to the general framework of the Bill, the negative resolution procedure seems to be appropriate.

CLAUSE 70: APPLICATION FOR CLUB PREMISES CERTIFICATE

72.  This clause details the procedure that must be followed in order to make an application for a club premises certificate. Applications must be made in the correct form to the relevant licensing authority.

73.  Subsection (4) sets out the information that must accompany an application for a club premises certificate. Subsection (4)(b) gives the Secretary of State a power to prescribe the form of the plan of the premises which must accompany the application. This is an administrative requirement that enables the licensing authority to know the precise details of the premises that are the subject of an application.

74.  An application for a club premises certificate must also be accompanied by a club operating schedule. Subsection (5) gives the Secretary of State a power to prescribe the form of the schedule and sets out a number of matters which must be included in it, including the qualifying club activities to be carried out, proposed hours of opening etc, and a statement of how the applicant intends to promote the licensing objectives. Subsection (5)(e) gives the Secretary of State a power to add further matters to the schedule. The intention is to ensure that if, in the light of experience, it proves desirable for the operating schedule to contain additional information, that may be provided for quickly and flexibly.

75.  In each of these cases, these are operational matters which concern administrative details of the new regime. It is therefore considered appropriate for these matters to be prescribed in secondary legislation and for the regulations to be subject to the negative resolution procedure.

76.  Clause 70(6) contains a power for the Secretary of State to make regulations providing for the advertisement of applications for a club premises certificate. In particular, these regulations may prescribe the period within which an application must be advertised, the form of any advertisement, the manner in which it is advertised, the persons (in addition to each responsible authority) who must be given notice of the application and the period within which the responsible authorities and interested parties may make representations to the licensing authority about the application. This power is necessary to ensure that applications for club premises certificates are advertised sufficiently prominently and expeditiously for representations to be made to the licensing authority before the application is determined.

77.  The use of regulations will provide the necessary flexibility for the procedures relating to advertisements to cover a wide range of different cases. Given the level of detail and the administrative nature of the provisions, their inclusion in secondary legislation and the use of the negative resolution procedure appears sensible and appropriate.

CLAUSE 76: FORM OF CERTIFICATE AND SUMMARY

78.  This clause lists the basic requirements as to the form and content of the club premises certificate and summary.

79.  Subsection (1) gives the Secretary of State a power to make regulations specifying the form of a club premises certificate and a summary of it. Such regulations must require a licence to include the name and registered address of the club, the address of the premises to which the certificate relates, a plan of the premises, the qualifying club activities for which the premises may be used and the conditions subject to which the certificate has effect. The power to make regulations will provide the flexibility to include further requirements as to the form and contents of a club premises certificate, and to make adjustments should future circumstances require.

80.  Given the detailed and administrative nature of the matters to be included in these regulations, it seems appropriate for them to be subject to the negative resolution procedure.

CLAUSE 85: APPLICATION FOR REVIEW OF CLUB PREMISES CERTIFICATE

81.  This clause makes provision for an interested party, a responsible authority or a member of a club to apply to a licensing authority for a review of the club premises certificate by the licensing authority on grounds that are relevant to the licensing objectives. There will be usually be a hearing to consider the applications.

82.  Under subsection (3), the Secretary of State may make regulations which require an applicant to give notice to the club and each responsible authority and which prescribe the time within which that notice must be given, which require the authority to advertise the application and to invite representations, which prescribe the period within which such representations may be made, and which require any such notice or advertisement to specify that period.

83.  It is important that in determining the details of the processes of application, advertisement and representation, the Secretary of State can make provisions ensuring that an adequate period of time is made available for representations and that a fair balance is achieved between the interests of clubs and applicants for review. The use of secondary legislation ensures that the Secretary of State has the flexibility to make any changes that prove necessary in the light of experience. Given the level of detail and the administrative nature of the provisions, the use of the negative resolution procedure appears sensible and appropriate.

CLAUSE 89: FORM ETC OF APPLICATIONS AND NOTICES UNDER PART 4

84.  This clause provides that the Secretary of State may make regulations which prescribe the form and manner in which any application or notice in Part 4 of the Bill must be made, and any information or documents that must accompany it.

85.  The use of secondary legislation for these detailed and generally administrative provisions will provide the Secretary of State with the necessary flexibility to provide for any future changes in circumstances - for example, to take account of the potential for electronic submission of applications, etc. Given the level of detail and the administrative nature of the provisions, the use of the negative resolution procedure appears appropriate.

CLAUSE 90: FEES

86.  This clause gives the Secretary of State a power to make regulations requiring any applications or notices made under Part 4 of the Bill to be accompanied by a fee, and prescribing the amount of the fee. For example, a fee may be set to accompany an application for a copy of a club premises certificate or summary when the original document is lost, stolen, damaged or destroyed, and the power in clause 90 is expressly applied to these circumstances in clause 77(2). The regulations may also require an annual fee to be paid by or on behalf of a club to the licensing authority, may provide that the club secretary (or other officers or members) is to be liable for paying that fee and may prescribe the amount and due date of those fees.

87.  This power will allow the Secretary of State the flexibility to set fees at levels that allow licensing authorities to make full recovery of the costs of administering the licensing system, and to make future adjustments to the level and structure of fees to take account of inflation or other economic changes. The power will also make it easier for the Secretary of State to take account of the variety of organisational structures of clubs. Given the level of detail and the administrative nature of the provisions, the use of the negative resolution procedure appears appropriate.

CLAUSE 93: PROVISION SUPPLEMENTARY TO SECTION 92

88.  This clause sets out the arrangements for certifying copies of club premises certificates and summaries of club premises certificates for the purposes of section 92 (duty to keep and produce certificate). Subsection (1)(c) provides that certification of a copy of such a document as a true copy can be made not only by the relevant licensing authority or a solicitor or notary but also by a person of a prescribed description.

89.  The description of persons under subsection (1)(c) has been left to secondary legislation so as to allow the Secretary of State sufficient flexibility to amend the list of prescribed descriptions in the light of experience of the new regime. Given the technical and detailed nature of the provisions, the use of the negative resolution procedure appears appropriate.

CLAUSE 98: TEMPORARY EVENT NOTICE

90.  Where a premises user wishes to carry out a licensable activity, he must submit a "temporary event notice" to the licensing authority. Clause 98 outlines the form, detail and procedure for tendering a temporary event notice.

91.  Subsection (4) gives the Secretary of State a power to prescribe by regulations the form and content of a temporary event notice. The clause provides that the notice must set out certain details about the proposed event:

  • the licensable activities that are to be carried out;
  • the total length of the event - which must not exceed 72 hours;
  • the times during the event that the licensable activities are to be carried out (for example, where an individual wishes to organise an event that covers 36 hours and where the bar will be open for two evenings within that time);
  • the maximum number of people to be allowed on to the premises at any one time - which must not exceed 500;
  • whether any alcohol sales are to be made for consumption on or off the premises (or both), in which case all such sales must be made by, or under the authority of, the premises user.

92.  Subsection (5)(f) allows the Secretary of State the power to prescribe any other matter that must be included in a statement contained in a temporary event notice. Such a matter would relate to the event itself. Subsection (4)(c) provides for more general information to be submitted when notice is given. Given that a temporary event could take place at any premises or public place, it is necessary to ensure that authorities have an appropriate level of control to guard against unscrupulous practices. The light touch approach for temporary event notices does mean that a degree of scrutiny is necessary and certain basic information which identifies the premises and the applicant is required. Subsections (5)(f) and (4)(c) ensure there are appropriate levels of scrutiny. Secondary legislation is considered suitable for these matters as the Secretary of State will need to have the flexibility available to reflect the variety of forms that a temporary event might take.

93.  Subsection (7)(b) provides for the Secretary of State to set the fee that must accompany a temporary event notice. This will give the Secretary of State the flexibility to make future adjustments to the fee structure as may be required from time to time to ensure that costs are recovered in the light of inflation. Given the technical and detailed nature of the provisions in this clause, the use of the negative resolution procedure appears appropriate.

CLAUSE 100: ACKNOWLEDGEMENT OF NOTICE

94.  This clause provides that a licensing authority must acknowledge receipt of a temporary event notice in a case where no counter notice is sent to the premises user under clause 105.

95.  Subsection (2) gives the Secretary of State a power to make regulations prescribing the form of acknowledgement. This provides for the exercise of administrative flexibility in the light of experience or changing circumstances - for example, where technological developments provide for electronic notification. Given the technical and detailed nature of the provisions in this clause, the use of the negative resolution procedure appears appropriate.

CLAUSE 105: COUNTER NOTICE WHERE PERMITTED LIMITS EXCEEDED

96.  This clause provides that a licensing authority which has received a temporary event notice must issue a counter notice in certain circumstances. Those circumstances are that the premises user is a personal licence holder who has already given at least 50 temporary event notices within the same calendar year as the specified event period; or that the premises user does not hold a personal licence, and has already given at least five temporary event notices in that year; or that five or more temporary event notices have been given in respect of the same premises in that year.

97.  Subsection (6) gives the Secretary of State a power to set out in regulations the form of a counter notice and the manner in which it must be given to the premises user. The intention is that by describing in detail the procedures that must be followed in the event of a counter notice, the process will be fair and effective. The use of secondary legislation in this context provides for the exercise of administrative flexibility in the light of experience or changing circumstances - for example, where technological developments provide for electronic notification. This is an administrative process which it is considered appropriate to set out in secondary legislation subject to the negative resolution procedure.

CLAUSE 108: THEFT, LOSS, ETC. OF TEMPORARY EVENT NOTICE.

98.  This clause allows premises users to apply to the relevant licensing authority for a copy of a temporary event notice that has been lost, stolen, damaged or destroyed. If lost or stolen, this must be reported to the police. The intention is that permission to hold a temporary event should not be conditional on possession of the original event notice. Also, a simplified process for obtaining a copy will ensure that during the event, the premises user will have ready authorisation for the event to take place. This may apply, for example, in the event of a routine police inspection.

99.  Subsection (3) gives the Secretary of State a power to set the fee that may be charged for the copy of the temporary event notice. This is to cover the necessary expense of issuing a copy. Fees will be set at levels to ensure cost recovery. By leaving the level of the fee to be prescribed by regulations, this clause gives the Secretary of State the flexibility to make future adjustments to the fee structure as may be required from time to time to reflect changes elsewhere on fees. As this is a purely administrative matter, it is considered appropriate for the regulations to be subject to the negative resolution procedure.

CLAUSE 118: DETERMINATION OF APPLICATION FOR GRANT

100.  This clause sets out the manner in which a licensing authority must determine an application for a personal licence. The criteria for the grant of a licence are:

  • that the applicant is at least 18 years old;
  • that he possesses an accredited licensing qualification;
  • that he has not had a previous personal licence forfeited in the previous five years;
  • he has not been convicted of any relevant offences (see Schedule 4) or foreign offences.

101.  Subsection (2)(b) gives the Secretary of State a power to make regulations which prescribe a description of person who will not need to obtain a licensing qualification in order to be granted a personal licence. The intention is to allow the new regime to take into account circumstances under which the experience and expertise of particular individuals would provide a degree of assurance equivalent to that provided by the possession of an accredited qualification. For example, it is a policy intention that a person who has met the entry requirements of the Honourable Company of the Vintners of the City of London will not be required to obtain a separate licensing qualification.

102.  The use of secondary legislation will provide the flexibility to treat equivalent groups in a similar fashion if and when representations are made to the Secretary of State. As this is a matter of the detail of eligibility for a personal licence, it is considered suitable that the regulations which prescribe this description will be subject to the negative resolution procedure.

CLAUSE 123 : FORM OF PERSONAL LICENCE

103.  This clause lists the basic requirements as to the content of a personal licence, including any relevant convictions.

104.  Subject to the requirements that the licence must specify the holder's name and address and the name of licensing authority that granted the licence, subsection (4) gives the Secretary of State a power to make regulations prescribing the form of the licence. This power may be exercised to relate either to the form or the content of the licence. It may, for example, be used to decide if the licence will be in a certificate or card format. The power will provide the flexibility to make adjustments should future circumstances require. It is also desirable that personal licences should be in a standard format, as they may be used in an area other than the one for which the authority which issued the licence is responsible.

105.  Again, as this is a matter of administrative detail, it is considered appropriate for these regulations to be subject to the negative resolution procedure.

CLAUSE 131: FORM ETC OF APPLICATIONS AND NOTICES UNDER PART 6

106.  This clause provides that the Secretary of State may make regulations which prescribe the form and manner in which any application or notice in Part 6 of the Bill must be made, and any information or documents that must accompany it. Regulations can also require an application for the grant or renewal of a personal licence, an application for a copy of a personal licence when the original is lost, stolen, damaged or destroyed, or a notification of a change in the licence holder's name or address to be accompanied by a fee, the level of which can also be set in the regulations.

107.  The use of secondary legislation for these detailed and generally administrative provisions will provide the Secretary of State with the necessary flexibility to provide for any future changes in circumstances - for example, to take account of the potential for electronic submission of applications, etc. Given the level of detail and the administrative nature of the provisions, the use of the negative resolution procedure appears appropriate.

CLAUSE 164: REVIEW OF PREMISES LICENCE FOLLOWING CLOSURE ORDER

108.  This clause provides that where a court has made a closure order in relation to premises where there is, or is likely to be, disorder or public nuisance and in respect of which a premises licence has effect, the licensing authority must then review that premises licence with a view to modifying its conditions, suspending or revoking it.

109.  Subsection (4) gives the Secretary of State a power to make regulations relating to that process. In particular the regulations may require the licensing authority to notify the licence holder and each responsible authority of the review, the closure order and any order made by magistrates under clause 162(2) at the initial hearing which followed the closure order, may require the licensing authority to advertise the review and invite representations, may prescribe the period within which the representations may be made and may require any such notice or advertisement to specify that period.

110.  It is important that in determining the details of the processes of review, advertisement and representation, the Secretary of State can make provisions ensuring that an adequate period of time is made available for representations and that a fair balance is achieved between the interests of licence holders and applicants for review. The use of secondary legislation ensures that the Secretary of State has the flexibility to make any changes that prove necessary in the light of experience. Given the level of detail and the administrative nature of the provisions, the use of the negative resolution procedure appears appropriate.

CLAUSE 169: RELAXATION OF OPENING HOURS FOR SPECIAL OCCASIONS

111.  This clause gives the Secretary of State a power to make a licensing hours order to provide for licensed premises to open for specified extended hours on special occasions - for example, Royal Jubilees.

112.  Subsection (3)(a) provides that the Secretary of State may exercise the power so to apply the order to premises in one or more specified areas. The intention is provide for events such as a historical county festival, for example a major sports event affecting a local area, such as the Commonwealth Games in Manchester.

113.  Subsection (3)(b) provides that the Secretary of State may determine that different relaxed conditions can apply during different days of special occasions. For example, in the course of a four-day festival, he might determine that opening hours should be extended until midnight on the first three nights and 11:30 pm on the fourth night. Under Subsection (3)(c), the Secretary of State will have the flexibility to consider if different licensable activities should be subject to different relaxed conditions. The intention is ensure that the Secretary of State is not limited to an 'all or nothing' provision in regards to special occasions and has the flexibility to adjust the relaxed period according to the event itself.

114.  Regulations made under this clause will be subject to the affirmative resolution procedure. It is recognised that such relaxations could have a major impact on an area and so should take place only with the approval of both Houses of Parliament.

CLAUSE 170: ACTIVITIES IN CERTAIN LOCATIONS NOT LICENSABLE

115.  Clause170 states that an activity will not be a licensable activity if it is carried on at certain exempt classes of location. This include activities on board an aircraft, hovercraft or a train that is travelling. Royal palaces, and premises exempted on the grounds of national security are also included.

116.  Subsection (1)(g) provides the Secretary of State with the power to extend this exemption to additional locations as circumstances may dictate. For example, it is possible that the terminals for the Channel Tunnel rail link might be added to that list.

117.  Secondary legislation is considered appropriate in this matter, as it will provide for the exercise of administrative flexibility in the light of experience or changing circumstances. Given the level of detail and the administrative nature of the provisions (which might apply, for example, only to one specific location), the use of the negative resolution procedure appears appropriate.

CLAUSE 173: PROHIBITION OF ALCOHOL SALES AT SERVICE AREAS, GARAGES, ETC

118.  This clause provides for a general prohibition on the sale of alcohol from motorway service areas and garage forecourts.

119.  Subsection (3) gives the Secretary of State a power to make an order which excludes or includes particular descriptions of premises from those to which the prohibition applies. An example of the possible use of this power would be to lift the prohibition on the licensing of alcohol sales from garages, perhaps in rural areas. It might also be used relax the strict rules which apply to the sale of alcohol from motorway service areas and, for example, allow alcohol sales from motorway accommodation where travellers are staying overnight.

120.  The clause provides for substantive change to the existing legislation and current Government policy. Parliament should be allowed the opportunity to consider such alterations and decide its enactment. It is therefore considered appropriate that any regulations made under subsection (3) will be subject to the affirmative resolution procedure.

CLAUSE 178: HEARINGS

121.  This clause gives the Secretary of State a power to make regulations which prescribe the procedures to be followed in hearings held by a licensing authority in the course of fulfilling its licensing obligations under the Bill. It is of vital importance that all such procedures are seen to be fair and to reflect the requirements of human rights law. The Secretary of State needs to have the flexibility afforded by this power to make appropriate changes in the light of experience, and to respond to developments in human rights law.

122.  Subsection (1)(a) provides for the regulations to set out who should be notified of a hearing. In most circumstances, this should extend to the authorised persons and interested parties as defined in clause 13. Allowing this to be amended by secondary legislation will provide the flexibility to identify any other persons who may have some relevance or interest in the proposed hearing.

123.  Under subsection (1)(b) the Secretary of State may make provision for the processing of expedited procedures in urgent cases. Under subsection (1)(c) the regulations may set out which rules relating to evidence are to apply, and under subsection (1)(d) the regulations may make provision as to the legal representation of parties at hearings.

124.  Given the level of detail and the administrative nature of the provisions, the use of the negative resolution procedure appears appropriate for these regulations.

CLAUSE 182: OFFENCES BY BODY CORPORATE ETC.

125.  This clause states that where an offence is committed by a body corporate with the consent or connivance of a director, member of the management committee, chief executive, manager, secretary or similar officer etc. of that body corporate, then the officer as well as the corporate body commits the offence. In addition, a member of a body corporate who has functions of management may commit the offence. Further, where an offence is committed by a partnership with the consent, connivance or neglect of a partner, then that partner as well as the partnership commits the offence.

126.  Subsection (7) states that any provisions within this clause can be applied to any body corporate or unincorporated association that is formed outside the UK. The intention is to make sure that if, for example, an offence is committed by a foreign body corporate with the consent or connivance of an officer etc. of that body, regulations may be made to ensure that the clause covers such foreign bodies.

127.  Delegated legislation is best suited to this subsection because of its technical and detailed nature, and to allow the Secretary of State sufficient flexibility to modify the provisions in the light of experience of the new regime. Given the technical nature of the provisions, the use of the negative resolution procedure appears appropriate for these regulations.

CLAUSE 196: SHORT TITLE, COMMENCEMENT AND EXTENT

128.  This clause contains the commencement provisions for the Bill.

129.  Subsection (2) provides for the provisions of the Bill to come into force in accordance with a commencement order made by the Secretary of State. The intention is to allow for the gradual introduction of various provisions of the Bill once the systems are in place to accommodate the reforms.

130.  Secondary legislation will provide the Secretary of State with the flexibility to ensure a measured and orderly transition period into the new regime. As is normally the case for a commencement order, no Parliamentary procedure is prescribed for such orders.

SCHEDULE 1, PARAGRAPH 4: PROVISION OF REGULATED ENTERTAINMENT

131.  This Schedule defines regulated entertainment as 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, for profit or to raise money for charity, and where facilities are provided for the purpose of entertainment.

132.  Paragraph 4 provides that the Secretary of State may by order modify the descriptions of entertainment as specified in paragraphs 2 and 3 of the Schedule. Paragraph 2 describes the activities which can constitute a form of entertainment, and paragraph 3 describes the facilities which can enable participation in entertainment. The intention is to allow the Secretary of State the flexibility to add, vary, or remove any description of entertainment and reflect developments over time which inform the Secretary of State as to the need or otherwise to regulate forms of entertainment in the public interest.

133.  These provisions can allow a whole new area of 'entertainment' to be incorporated in regulations for the licensing regime. An example of such a change would be for provisions to cover the watching of televised football matches in licensed premises, an activity which is not currently included within the definition.

134.  The power is considered sufficiently far-reaching that Parliament should be allowed the opportunity actively to consider such alterations. Regulations made under paragraph 4 will therefore be subject to the affirmative resolution procedure.

SCHEDULE 8: TRANSITIONAL PROVISION ETC

135.  Part 1 of Schedule 8 sets out the new regime's transitional arrangements for premises licences. It describes a number of powers that are provided for through delegated legislation. Many of these powers reflect similar provisions in the other main Parts of the Bill.

136.  Paragraph 1(1) gives the Secretary of State a power by order to specify the first appointed day, from when it will be possible to apply to a licensing authority to convert an existing licence, and the second appointed day, from which a new licence will take effect.

137.  Paragraph 2 gives the Secretary of State a power to specify the form and contents of an application for conversion of an existing licence into a new premises licence. Those contents must include the existing licensable activities under the existing licence and (if the licence is to authorise the supply of alcohol) information about the individual whom the applicant wishes to have specified in the premises license as the premises supervisor. An order may also specify any other information to be specified in such an application.

138.  Paragraph 2 also provides the Secretary of State with the power to determine the fee to accompany such an application. It also provides for a plan of the premises to be submitted in a form to be determined by the regulations, as well as any other such documents that may be required. The use of secondary legislation for these detailed and generally administrative provisions will provide the Secretary of State with the necessary flexibility to provide for any future changes in circumstances - for example, to take account of the potential for electronic submission of applications, or the impact of inflation.

139.  Paragraph 6 provides that all such new premises licences must be granted subject to the same conditions and licensable activities that existed under previous licence. In effect, all previous laws that defined premises' licensable conditions, for example, a pub's opening hours, will remain in effect unless an application is made to change.

140.  Part 2 sets out the transitional arrangements for applications to convert existing club certificates into club premises certificates for the purposes of the Bill. Under paragraph 14, the Secretary of State may specify the form of such applications and the accompanying documentation. These descriptions have been left to secondary legislation because of their technical and detailed nature, and to allow the Secretary of State sufficient flexibility to amend the list or prescribed descriptions in the light of experience of the new regime.

141.  Part 3 sets out the transitional arrangements for applications by holders of existing justices' licences to be granted personal licences. The Secretary of State may by order specify the transitional period within which such applications may be made. An order may also specify the form of a photograph of the applicant that must accompany an application, the description of person who may endorse that photograph as a true likeness, and the description of person who may certify a copy of a justices' licence as a true copy.

142.  Given the level of detail and the administrative nature of the provisions in Schedule 8, their delegation to secondary legislation appears sensible and appropriate.


 
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