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Police Reform and Social Responsibility Act 2011

Amendments of the Licensing Act 2003

Section 103: Licensing authorities as responsible authorities

302.The Licensing Act 2003 defines responsible authorities as including the police, fire authorities, local authorities exercising health and safety, local planning, environmental health and child protection functions, and any licensing authorities (other than the relevant licensing authority) in whose area a part of the premises is situated. The relevant licensing authority is the authority with responsibility for licensing functions relating to the premises in question and currently is not a “responsible authority”. Responsible authorities can make representations based on the licensing objectives in relation to applications for the grant or variation of a premises licence or club premises certificate, to request the review of such authorisations or to make representations in relation to other discrete processes. Because relevant licensing authorities were not “responsible authorities” (within the previous definition), they were unable to engage in those activities. Section 103 introduces amendments to bring relevant licensing authorities within the definition of “responsible authority”, enabling relevant licensing authorities to engage in those activities. Subsections (2) and (3) amend the provisions in Parts 3 and 4 of the Licensing Act 2003 to make relevant licensing authorities “responsible authorities” in relation to premises licences and club premises certificates. Subsection 4 makes provision for the application of these amendments.

Section 104: Primary Care Trusts and Local Health Boards as responsible authorities

303.Section 104 amends sections 13(4) and 69(4) of the Licensing Act 2003 by adding a Primary Care Trust (or its equivalent body in Wales, a Local Health Board) for any area in which a premises is situated (or for any area any part of which is the area specified by an early morning restriction order) as a responsible authority. These new bodies will be able to fulfil the same functions as existing responsible authorities.

304.This section also amends section 5(3) of the Licensing Act 2003 by adding these bodies as bodies which a licensing authority must consult before determining or revising its statement of licensing policy.

305.Subsection (5) makes provision for the application of these amendments.

Section 105: Premises licences: who may make relevant representations

306.Under the Licensing Act 2003 ‘interested parties’ (persons who can make an application for review or a representation with regard to one of the licensing processes) in most cases must have a particular relationship to the vicinity of the premises in relation to which the application or other process relates (for example, by living in the vicinity or being involved in a business in the vicinity).

307.Sections 105 to 108 remove this test of ‘vicinity’ from the Licensing Act 2003, and consequently remove the category of interested party. This enables any person to make representations in relation to applications for the grant or variation (including a minor variation) of a premises licence or club premises certificate, the grant of a provisional statement and to make applications for the review of such authorisations, and to make representations in relation to other discrete processes. However, all representations will need to relate to the licensing objectives and must not be frivolous or vexatious.

308.Section 105, at subsections (2) to (10), amends a number of provisions in Part 3 of the Licensing Act 2003 to reflect the introduction of this measure in relation to premises licences. Section 13 of the Act is amended to remove the definition of an ‘interested party’, and a range of processes are modified. These are the processes governing applications for:

a.

the grant or variation of a licence,

b.

the grant of a provisional statement,

c.

a minor variation of a licence, and

d.

an application for a licence by a community premises to remove the requirement to have a designated premises supervisor.

309.The requirement on an applicant to advertise an application, and on a licensing authority to send notices of applications, are modified as a consequence of the removal of the category of interested party from these processes. This amendment also provides that any representations from persons (other than responsible authorities) must not, in the opinion of the relevant licensing authority, be frivolous or vexatious.

310.Subsection (3) amends the requirements on the Secretary of State to make regulations governing who should advertise an application. Regulations will require an applicant and licensing authority to advertise the application: the former must advertise the application in a way which ensures that it comes to the attention of persons in the licensing authority’s area who it may affect; the latter must advertise it in a way that ensures that it comes to the attention of all persons who it may affect.

311.Subsection (11) makes provision for the application of these amendments.

Section 106: Premises licences: who may apply for a review

312.Subsections (2) to (6) amend a number of provisions in the Licensing Act 2003 governing applications for review or summary review of a premises licence, and a review of a licence following the making of a closure order, to reflect the introduction of this measure. Subsections (2) and (6) amend the requirements on a licensing authority to advertise an application for review or summary review, and a review following a closure order, so as to ensure that this is brought to the attention of any persons it may affect, and to advertise the period during which any such person may make representations about the application. These amendments also provide that representations from any persons (other than responsible authorities) must not, in the opinion of the licensing authority, be frivolous or vexatious.

313.Subsection (7) makes provision for the application of these amendments.

Section 107: Club premises certificates: who may make relevant representations

314.Subsections (2) to (8) amend a number of provisions in the Licensing Act 2003 relating to applications for the grant, variation and minor variation of a club premises certificate in Part 4 of the Act. Section 69 of the Act is amended to remove the definition of “interested party”. These amendments require a licensing authority to advertise applications for the grant or variation of a certificate so as to ensure that this is brought to the attention of any persons it may affect, and to advertise the period during which any such person may make representations about the application. These amendments also provide that representations from any persons (other than responsible authorities) must not, in the opinion of the licensing authority, be frivolous or vexatious.

315.Subsection (3) amends the requirements on the Secretary of State to make regulations governing who should advertise an application. Regulations will require the application and licensing authority to advertise the application: the former must advertise the application in a way which ensures that it comes to the attention of persons in the licensing authority’s area who it may affect; the latter must advertise it in a way that ensures that it comes to the attention of all persons who it may affect.

316.Subsection (9) makes provision for the application of these amendments.

Section 108: Club premises certificates: who may apply for a review

317.Subsections (2) to (4) amend a number of provisions in the Licensing Act 2003 governing applications for review of a club premises certificate to reflect the introduction of this measure. Subsection (3) amends the requirements on a licensing authority to advertise an application for review so as to ensure that this is brought to the attention of any persons it may affect, and to advertise the period during which any such person may make representations about the application. Subsection (4) provides that representations from any persons (other than responsible authorities) must not, in the opinion of the licensing authority, be frivolous or vexatious.

318.Subsection (5) makes provision for the application of these amendments on the amendments coming into force.

Section 109: Reducing the burden: premises licences

319.The Licensing Act 2003 imposes a general duty on licensing authorities to exercise their licensing functions with a view to promoting the licensing objectives; the objectives are the prevention of crime and disorder, public safety, the prevention of public nuisance and the protection of children from harm. A number of specific processes require licensing authorities to take steps which are “necessary” for the promotion of the objectives. This requirement is imposed on licensing authorities by a range of provisions in the Act; this primarily arises when licensing authorities are considering whether to grant or refuse an authorisation in relation to which relevant representations or objections have been made.

320.Sections 109 to 111 amend those provisions by instead requiring licensing authorities to take steps which are “appropriate” for the promotion of the objectives. This has the effect of reducing the threshold which licensing authorities must meet to achieve the promotion of the objectives, but ensures that their decisions continue to be solely for the purpose of promoting the objectives. These sections introduce this amendment into provisions according to whether these relate to premises licences (Part 3 of the Act), club premises certificates (Part 4) or various discrete processes, for example in relation to temporary event notices or applications for personal licences.

321.Section 109, at subsections (2) to (14), amends a number of provisions in the Licensing Act 2003 that relate to premises licences to reflect the introduction of this measure. The basis on which a licensing authority makes decisions in a range of processes relating to premises licences is correspondingly modified. These are the processes governing applications for the:

a.

grant or variation of a licence following relevant representations,

b.

imposition of conditions on licences which authorise the performance of plays at a premises to promote public safety,

c.

removal of the requirement to have a designated premises supervisor in relation to a community premises following a police objection,

d.

grant of a provisional statement following relevant representations,

e.

variation of a licence to specify an individual as a designated premises supervisor following a police objection,

f.

minor variation of a licence following representations,

g.

transfer of a licence following a police objection,

h.

review of a licence, and

i.

summary review of a licence (in relation to whether interim steps should be taken and what steps to take following the review determination).This amendment also relates to a licensing authority’s decision to cancel an interim authority notice following police objections.

322.Subsections (15) and (16) make provision for the application of these amendments.

Section 110: Reducing the burden: club premises certificates

323.Subsections (2) to (5) amend a number of provisions in Part 4 of the Licensing Act 2003 relating to club premises certificates to reflect the introduction of this measure. The basis on which a licensing authority makes decisions in a range of processes relating to club premises certificates is correspondingly modified. These are the processes governing applications for the:

a.

grant or variation of a certificate following relevant representations,

b.

imposition of conditions on certificates which authorise the performance of plays at a club premises to promote public safety, and

c.

review of a certificate.

324.Subsection (6) makes provision for the application of these amendments.

Section 111: Reducing the burden: other situations

325.Subsections (2) to (6) amend provisions in relation to a range of discrete processes in the Licensing Act 2003 to reflect the introduction of this measure. The basis on which a licensing authority makes decisions in those processes is correspondingly modified. These are the processes governing a licensing authority’s decision to:

a.

send a premises user a counter notice following police objections on a temporary event notice,

b.

reject an application for a personal licence following police objections,

c.

reject an application for renewal of a personal licence following police objections, and

d.

revoke a personal licence following police objections in relation to new convictions coming to light.

326.These also amend the basis on which a licensing authority makes decisions in relation to the steps it must take at a review following a closure order.

327.Subsections (7) to (9) make provision for the application of these amendments.

Section 112: Temporary event notices: who may make an objection

328.The Licensing Act 2003 currently includes a scheme which enables an individual to carry on a licensable activity, on a temporary basis, by virtue of a temporary event notice. To hold a temporary event, the event holder (‘premises user’) must send a temporary event notice to the licensing authority and the Chief Officer of Police at least 10 working days before the event. The Chief Officer, if satisfied that the temporary event would undermine the crime prevention objective, must send an objection notice to the licensing authority and premises user no later than 2 working days after receipt of the temporary event notice.

329.Police objections trigger a requirement on the licensing authority to hold a hearing and may result in a counter notice being sent to the premises user if the licensing authority takes the view that the temporary event would undermine the crime prevention objective. The licensing authority must also give the premises user a counter notice if one of the prescribed limits is exceeded. If a counter notice is issued, the temporary event notice will no longer authorise any licensable activities taking place under it.

330.Section 112 extends the right to object to a temporary event notice to the environmental health authority, and allows the police and the environmental health authority for the area in which the premises are situated (defined as ‘relevant persons’), to object to a temporary event on the grounds of all four licensing objectives. It also allows licensing authorities to issue a counter notice under section 105 of the Act on the basis of all four of the licensing objectives.

331.Subsections (2) to (13) amend sections 104 to 107 and 194 of, and Schedule 5 to, the Licensing Act 2003.These amendments introduce the new category of ‘relevant person’, and revise and adapt the processes governing objections from relevant persons; these relate to the holding of a hearing or modification of a temporary event notice following receipt of objections from one or both relevant persons, the notices which the relevant licensing authority must send to the premises user and relevant persons, the timetable governing when these steps must be taken, and extend existing rights of appeal to the magistrates’ court to those involved in the process. These amendments do not represent a departure from the existing processes in Part 5 of the Act, but adapt these to facilitate the involvement of the environmental health officer and the ability of relevant persons to object on the basis of all the licensing objectives.

332.Subsection (14) makes provision for the application of these amendments.

Section 113: Temporary event notices: conditions

333.This section enables a licensing authority to impose conditions on a temporary event notice if it considers that this promotes the licensing objectives. A licensing authority can only impose such conditions if an objection has been made by at least one relevant person (and the licensing authority considers that permitting the event to proceed would promote the licensing objectives), and at least a part of the premises in relation to which the temporary event notice is given is already subject to a premises licence or club premises certificate. Any such conditions must be consistent with the activity authorised by the temporary event notice and existing conditions attaching to the subsisting licence or certificate.

334.Subsections (2) to (5) amend sections 98, 109 and 110 of the Licensing Act 2003 and insert section 106A into the Act. This has the effect that a permitted temporary activity must be carried on in accordance with both the existing requirements imposed under section 100 of the Act and any conditions imposed on a temporary event notice by a licensing authority under section 106A. A licensing authority, if it decides to impose one or more conditions on the temporary event notice under section 106A, must give the premises user a notice of the decision and a separate statement (the ‘statement of conditions’) that sets out the conditions imposed on the temporary event notice and give a copy of the notice and statement to each relevant person. This section makes a number of amendments to the existing process to facilitate the introduction of a licensing authority’s power to impose conditions.

335.Subsection (6) makes provision for the application of these amendments.

Section 114: Temporary event notices: late notices

336.Section 114 enables a premises user to give a limited number of temporary event notices in a shorter timeframe than that which applies to the existing temporary event notice process. This is defined as a “late temporary event notice”. A temporary event notice which is given in accordance with the existing timeframe is defined as a “standard temporary event notice”. An objection from at least one relevant person to a late temporary event notice will result in a counter notice being issued. This will make the late temporary event notice ineffective (without a right to a hearing and onward appeal, as applies to the existing process) and the event to which it relates cannot lawfully take place.

337.Subsections (2) to (12) amend a number of provisions in the Act, and insert sections 100A and 104A which also amend a number of provisions in Part 5 of the Licensing Act 2003 to introduce a separate process stream for standard and late temporary event notices.

338.The existing processes are adapted to facilitate the introduction of the availability of a late temporary event notice. A standard temporary event notice is a temporary event notice which is given to the relevant licensing authority and (if it is made in writing) to each relevant person, no later than 10 days before the temporary event to which it relates. A late temporary event notice is a temporary event notice which is given to the relevant licensing authority electronically no later than five working days, but no earlier than nine working days before, the temporary event begins; or, if it is made in writing, is given to the licensing authority and each relevant person no later than five working days before the temporary event begins and to at least one of the relevant persons no earlier than nine working days before the event begins. There is a limit on how many late temporary event notices can be given in any calendar year: this is 10 for personal licence holders and two for non-personal licence holders.

339.Subsection (13) makes provision for the application of these amendments.

Section 115: Relaxation of time limits applying to temporary event notices

340.Section 115 amends sections 100 and 107 of the Licensing Act 2003 to increase the period for which licensable activities at any single event can be carried on in accordance with a temporary event notice from 96 to 168 hours, and the number of days in any calendar year on which a single premises can be used to carry on licensable activities from 15 to 21 days.

341.Subsection (4) makes provision for the application of these amendments on the amendments coming into force.

Section 116: Temporary event notices: acknowledgement of notice

342.Section 116 amends section 102 of the Licensing Act 2003 to remove the requirement on a licensing authority to acknowledge receipt of a temporary event notice by sending one notice to the premises user, and replaces this with a requirement to give written acknowledgement.

343.Subsection (2) makes provision for the application of these amendments.

Section 117: Temporary event notice: time for objection by police

344.Section 117 amends section 104(3) of the Licensing Act 2003 to extend the period in which a relevant person can object to a temporary event notice from two to three working days. Subsection (2) makes provision for the application of this amendment to temporary event notices given on or after the commencement of this section.

Section 118: Persistently selling alcohol to children

345.Section 147A of the Licensing Act 2003 makes it an offence for a premises licence holder, or person who has given a temporary event notice, to sell alcohol on two or more occasions in a three month period to a child. On conviction, a person is liable to a fine not exceeding £10,000. This amendment increases the maximum fine to £20,000.

346.Section 169A of the Act enables the police and trading standards officers to issue a closure notice to a person in relation to whom there is evidence that he has committed an offence under section 147A of the Act and for which there is a reasonable prospect of conviction. The closure notice discharges the person from any further criminal liability but prevents him from selling alcohol for the period specified in the notice. This amendment increases that period from a maximum of 48 hours to a period of between 48 hours and 336 hours.

347.Subsections (4) and (5) make provision for the application of these amendments.

Section 119: Early morning alcohol restriction orders

348.Section 172A of the Licensing Act 2003 enables a licensing authority to make an early morning restriction order to prohibit the supply of alcohol from premises (including supplies authorised by a temporary event notice) between 3am and 6am in the whole or part of its area. The order can apply every day or on specified days, and for a limited or unlimited period. A decision to make an order must be made by the full council of a licensing authority. A licensing authority can only make an order if it considers that this will promote one or more of the licensing objectives, and the making of the order is subject to a licensing authority observing prescribed procedures. The procedures include a requirement that a licensing authority must advertise its decision to make an order, a right of affected persons to make representations and a requirement on a licensing authority to hold a hearing to consider such representations.

349.Subsection (2) excepts the decision of a licensing authority to make an early morning restriction order from those licensing functions which can be exercised by licensing committees. This has the consequence that a licensing authority’s decision to make such an order must be made by its full council. Subsections (3) and (4) repeal section 55 of the Crime and Security Act 2010 (which inserted sections 172A to 172E into the Licensing Act 2003) and introduce these provisions in an amended form. This has the effect of enabling a licensing authority to make an order of any duration beginning at or after 12 midnight and ending at or before 6am. An order can be made, amongst other things, at different times on different days. A licensing authority’s ability to exercise this power remains subject to the existing processes prescribed in sections 172A to 172E of the Licensing Act 2003.

Section 120: Suspension of licence or certificate for failing to pay annual fee

350.Sections 55 and 92 of the Licensing Act 2003 contain powers to make regulations to prescribe the annual fees payable by the holders of premises licences and club premises certificates. The annual fee is payable on the anniversary of the grant of the licence or certificate. A fee which is not paid on the due date can be recovered as a debt due to a licensing authority. No other sanction for non payment of an annual fee is available to a licensing authority. This section introduces amendments to the Licensing Act 2003, by inserting sections 55A and 92A, to require a licensing authority to suspend a licence or certificate for non payment of an annual fee if certain conditions are met.

351.A licensing authority will be required to suspend a licence or certificate if the annual fee is not paid when it is due. A licence or certificate holder will avoid this consequence if, at the time that the annual fee became due, the non payment was a result of an administrative error (by any person) or the holder disputed liability to pay the fee (whether as to liability to pay a fee at all, or its amount) and the grace period of 21 days had not expired. In the event of a dispute about liability to pay a fee, the holder of a licence or certificate must notify the licensing authority in writing of this dispute on or before the due date for the fee. If a licensing authority suspends a licence or certificate, it must notify the holder in writing and specify the date on which the suspension takes effect; this date must be at least two working days after the day the authority gives the notice. A suspension ceases to have effect on the day on which the authority receives payment of the fee from the licence or certificate holder. The authority is required to give the holder written acknowledgment of receipt as soon as practicable following receipt, and in any event no later than the period prescribed in subsection (6) of section 55A or 96A.

352.Subsection (6) makes provision for the application of these amendments on the amendments coming into force.

Section 121: Power for licensing authorities to set fees

353.The Licensing Act 2003 contains various powers to make regulations to prescribe fees.  These fees include (but are not limited to) the:

a.

fee to accompany an application for the grant, variation or transfer of a premises licence under Part 3 or for the grant or variation of a club premises certificate under Part 4;

b.

annual fee for a premises licence or club premises certificate;

c.

fee to accompany an application for the grant or renewal of a personal licence; and

d.

fee to accompany a temporary event notice.

354.The powers to prescribe fees in relation to premises licences and club premises certificates are contained in sections 55 and 92.

355.In all cases, the current powers enable regulations to prescribe a fixed fee for each fee category, although there is power to prescribe different levels of fee within a category; for example, the fee to accompany an application for the grant of a premises licence or club premises certificate is determined by reference to the rateable value of the premises to which it relates, or whether the activities carried on at the premises primarily comprise the supply of alcohol for consumption on the premises.  Regulations have been made to prescribe those fees: the Licensing Act 2003 (Fees) Regulations 2005.

356.Section 121 amends the Licensing Act 2003 by inserting sections 197A and 197B which enable regulations, instead of prescribing the amount of a fee, to provide that the amount of a fee is to be determined by the licensing authority to whom it is payable.

357.Section 197A preserves the power of the Secretary of State to prescribe the amount of a fee (subsections (1) and (2)) but also enables the Secretary of State to provide that licensing authorities may instead determine the amount of a fee payable to them (subsection (3)).  Under subsection (7), where the amount of a fee is set by a licensing authority, it must relate to both the licensing authority’s costs in so far as these are referable to the discharge of the function to which the fee relates (for example, the costs referable to an application for a licence: see section 197B(2)) and the licensing authority’s general costs under the Licensing Act 2003 (for example, the costs of exercising one of a number of licensing functions under that Act in relation to which a fee is not specifically payable: see section 197B(3)). Under subsection (2), these are also matters the Secretary of State may take into account when setting the fee.

358.Subsections (4) and (5) enable regulations to specify constraints on a licensing authority’s power to determine the amount of a fee (for example, a maximum fee for a specific fee category).  Subsection (6) enables a licensing authority to determine a different fee for each fee category that may be specified in regulations and requires a licensing authority to publish the amount of a fee as determined from time to time.

359.Section 197B(4) enables regulations, in a case where the amount of a fee is prescribed by the Secretary of State or provision is made for a licensing authority to determine a fee, to make different provision for different licensing authorities or descriptions of licensing authority. This allows the Secretary of State to prescribe fees in regulations for some licensing authorities but provide for other licensing authorities to themselves determine those kinds of fees.

360.Section 121 also provides that, in a case where a licensing authority may determine the amount of a fee under section 197A, it cannot delegate the exercise of this function to a licensing officer by virtue of sections 10(1) and (2) of the Licensing Act 2003.

Section 122: Licensing policy statements

361.Section 5 of the Licensing Act 2003 requires a licensing authority to determine its licensing policy in respect of each three year period and publish a statement of that policy in the form of a ‘licensing statement’ before the beginning of each such period. The licensing authority must also keep its policy under review during each three year period and revise it as appropriate.

362.This section enables a licensing authority to determine its licensing policy and publish a licensing statement in respect of every five year period (this cycle commences on 7th January 2011), unless it replaces its entire policy at any time during each five year period, in which case the new five year period begins from the date on which the policy is replaced. A licensing authority continues to be required to keep its policy under review during each five year period.

Section 123: Personal licences: relevant offences

363.This section amends Schedule 4 to the Licensing Act 2003. This contains the offences (“relevant offences”) which are relevant to the processes governing the grant, renewal etc. of personal licences. An applicant for the grant or renewal of a personal licence must disclose an unspent conviction for a relevant offence or a foreign offence. A licensing authority notifies the police of the existence of such a conviction, and the police can object to the grant or renewal of the application if they are satisfied that the grant or renewal of the application would undermine the crime prevention objective. This objection requires the licensing authority to hold a hearing to determine the matter. There is also provision for revocation of a personal licence if a personal licence holder is convicted of a relevant offence.

364.The relevant offences include sex offences, offences involving violence and dishonesty, road traffic offences and drugs offences. This section amends the list of relevant offences to include an offence of attempt to commit a relevant offence or conspiracy to commit a relevant offence, an offence of failing to co-operate with a preliminary test under section 6(6) of the Road Traffic Act 1988 and conspiracy to defraud.

365.Subsection (5) makes provision for the application of these amendments.

Section 124: Review of effect of amendments on licensing scheme

366.This section requires the Secretary of State to review the regulatory impact on the licensing regime under the 2003 Act of the amendments being introduced in this Act. The review must be carried out as soon as practicable after the expiry of a five year period from the last date on which these amendments come into force. The duty to review only applies in relation to amendments which are or may introduce a regulatory burden; these provisions are listed in subsection (1)(a).

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