Licensing Act 2003

The Licensing Act 2003 (c 17) is an Act of the Parliament of the United Kingdom. The Act establishes a single integrated scheme for licensing premises in England and Wales (only) which are used for the sale or supply of alcohol, to provide regulated entertainment, or to provide late night refreshment. Permission to carry on some or all of these licensable activities is now contained in a single licence — the premises licence — replacing several different and complex schemes. Responsibility for issuing licences now rests with local authorities, specifically London boroughs, Metropolitan boroughs, unitary authorities, and district councils, who took over this power from the Justices of the Peace. These authorities are each required to establish a Licensing Committee, which acts in a quasi-judicial capacity under the Act. The powers of the Act came fully into force at midnight at the start of 24 November 2005.

Key measures of the Act

Key measures contained in the Act include:

Flexible opening hours

Flexible opening hours for licensed premises, with the potential for up to 24 hour opening, seven days a week, will now be available. As well as the flexibility, the granting of these new type of licences is to be, for the first time, subject to consideration of the impact on local residents, businesses, and the expert opinion of a range of authorities in relation to the licensing objectives. This flexibility is intended to minimise public disorder resulting from standard closing times whereby many intoxicated individuals are all ejected onto the streets at once come 23:00, as well as encouraging less of a binge-drinking culture.

Single premises licences

The single integrated premises licence, bringing together the six existing licensing regimes (for alcohol, public entertainment, cinemas, theatres, late night refreshment houses, and night cafés) with the intention of cutting down on bureaucracy and simplifying such provision.

Personal licences

A new system of personal licences relating to the supply of alcohol is to be brought in. This will enable holders to move more freely between premises where a premises licence is in force than is currently the case.

Licensing Committee

Each local authority must set up a Licensing Committee with between ten and fifteen members. It is envisaged that most member level decisions will be made by a sub-committee of three. The Committee can and should have a scheme of delegation for different types of decision; this means that many applications will be decided by officers. The full Committee is expected to receive monitoring reports.

The Committee is regarded as quasi-judicial, and many of the requirements of a normal council committee (e.g. on access to data) will not apply. The Committee should make its decisions in accordance with the principles of natural justice and with regard to the Human Rights Act 1998 (Articles 1, 6 and 8 of the European Convention on Human Rights are likely to be engaged). It has been suggested that councillors should not be involved in any way in decisions on premises in their ward, and the Standards Board for England has advised that only councillors who are members of the Committee should have any role in considering applications.

Licensing objectives

The Act sets out four licensing objectives which must be taken into account when a local authority carries out its functions. They are:

1. the prevention of crime and disorder,
2. public safety,
3. prevention of public nuisance, and
4. the protection of children from harm

In Scotland there is a fifth licensing objective which is:

1. protecting and improving public health

Licensable activities

The Act defines "licensable activities" as:

• the retail sale of alcohol,
• the supply of alcohol in clubs,
• the provision of late night refreshment, and
• the provision of regulated entertainment

In turn, "regulated entertainment" is defined as:

• a performance of a play,
• an exhibition of a film,
• an indoor sporting event,
• a boxing or wrestling entertainment (both indoors and outdoors),
• a performance of live music,
• any playing of recorded music, or
• a performance of dance

in the presence of an audience (which may be just one person). There are exceptions (e.g., Morris dancing and similar) and refinements (e.g., Karaoke is considered to be music).

"Late night refreshment" is defined as the supply of hot food or drink (that is, food or drink that is either served at, or has been heated on the premises to, a point above ambient temperature) to the public for consumption, both on or off the premises, between 23:00 and 05:00.

Premises licences

A premises licence is required for any premises offering licensable activities. However, once a licence is granted it is valid until it is either surrendered or lapses in accordance with the Act, in contrast to the predecessor schemes which generally had to be renewed annually. The application for a premises licence requires the completion of an operating schedule and the offering of conditions to be included on the premises licence and a plan of the premises.

A premises licence that includes the sale of alcohol must name an individual who holds a personal licence granted under the Act. This person is known as the designated premises supervisor (DPS) and must sign a consent form consenting to being named as that DPS. Applicants must serve a copy of the application on the licensing authority (the council), the police, the fire authority, the body of responsible for health and safety enforcement, the body responsible for dealing with pollution (Environmental Health) a body responsible for advising on Child Protection issues, the planning authority and the weights and measures/trading standards authority. These bodies are all known as Responsible Authorities. Responsible Authorities are able to make representations to the licensing authority about an application. The application must also be advertised by way of a blue notice displayed on or near to the premises for 28 days and in a local newspaper on one working day within ten working days of making the application. In addition to the Responsible Authorities the Act now allows for any "other person" to make representations. If representation is made, the licensing authority must hold a hearing in most cases.

After the hearing, the authority can make one of five decisions: to grant the licence with conditions that match the operating schedule (and conditions can be added); to exclude some licensable activities from the application; to refuse to accept the person specified as designated premises supervisor (but only on police advice); to approve different part of the premises for different activities; or to reject the application entirely. An unsuccessful applicant can appeal to the Magistrates' Court; unusually, an interested third party who disagrees with a decision to grant a licence can also appeal against the council's decision.

Any person or responsible authority can apply to the licensing authority for a review of an existing premises licence, with the aim of amending its conditions or revoking it entirely.

Cumulative Impact Policy

Although not specifically referred to in the Act, Guidance, provides for the establishment of special areas of cumulative impact.^[3] This allows Licensing Authorities to designate such an area where there is evidence that accumulation of licensed premises in it may cause one or more of the licensing objectives to be undermined if further licences are granted.

"The effect of adopting a special policy of this kind is to create a rebuttable presumption that applications for new premises licences or club premises certificates or variations that are likely to add to the existing cumulative impact will normally be refused, following relevant representations, unless the applicant can demonstrate in their operating schedule that there will be no negative cumulative impact on one or more of the licensing objectives."^[4]

Personal licences

A personal licence allows a person to sell alcohol, or authorise the sale of alcohol, under the authority of a premises license. Anyone can apply for a personal licence to the licensing authority for the area in which they live. They need to show they have a licensing qualification and a criminal record clean of relevant offences. The local authority can only refuse such an application on police advice. The licence lasts indefinitely after changes to legislation where it was required to be renewed every 10 years.

Anyone who already had a licence under the previous licensing schemes in their name - typically a pub landlord - was able to get a licence without having to have a qualification; this was known as the grandfather right.

If an applicant does not live within a local authority's area, they can apply to any authority of their choice.

Temporary event notices

Any person over 18 can serve the local authority and local police with a temporary event notice (TEN) for an event which would normally need a premises licence, but which would be for a maximum period of 168 hours, and would be for a maximum number of 499 people. Examples of events that could be covered by a TEN might be where a pub wants to stay open all weekend for a special occasion, but does not want to apply for, or cannot get, a licence allowing this all the time; or a beer tent in a summer fair. TENs also cover licensing over alcohol to clubs, entertainment or late night refreshment (serving hot food between 11pm and 5am). Currently a notice costs £21.00.

TENs must be submitted at least ten working days before an event is due to start; notice is given to the council responsible for the area to which the event is to be held. A copy of this notice must be sent to the police that cover that area and to the Environmental Health department. The police and environmental health have 3 working days to make an objection. Anyone who does not have a personal licence can give only five notices a year, while a personal licence holder can give 50. A TEN can only be given in respect of the same premises fifteen times in a calendar year. On 25 April 2012 a late TEN was introduced. This can be submitted between five and nine working days before the event and should only be used when unforeseen circumstances lead to short notice.

There is no need for permission for a temporary event; the prospective premises user merely has to formally notify the council and police that the event will take place. So long as the criteria noted above are met (as well as any others that may apply, for example, if alcohol is being sold, that provisions are in place to stop under 18s from buying it) and the police have no objections, the event can go ahead. The council cannot impose any further conditions, limitations or restrictions. However, if the authority is convinced that any of the above limits will be exceeded, or they uphold a police objection (which can only be made on the grounds of crime prevention), they will issue a counter-notice which has the effect of cancelling the temporary event notice.

Children and the Act

The Act also makes a few important changes to the current law regarding children and alcohol, although these were not publicised at the time. For instance, a rule allowing children under 18 to sell alcohol in supermarkets was extended to all licensees, as long as "the sale or supply has been specifically approved by that or another responsible person", thus making it legal for under-18s to work on a bar. Children working behind bars is however controlled by other legislation such as the Children and Young Persons Act 1933.

It was also made a criminal offence for someone under the age of 18 to attempt to purchase alcohol for the first time in English law, punishable by a fine of up to £1,000 (or level 3 on the standard scale).

Reaction to the Act

The Act has caused some controversy. On one side of the argument is the frustration some British drinkers and many tourists have with the traditional closing time of 23:00, as opposed to the more liberal drinking regulations of continental Europe and further afield. They believe that a liberalisation of the drinking-up time will reduce 'drinking against the clock', a precursor to binge drinking. Those against the legislation, on the other hand, believe that binge drinking will increase, as drinkers will have more time to get drunk.

Impact on live music

The new requirement that there be a licence for the playing of live music in any venue no matter how small has been criticized for reducing the number of places where artists can play to tiny audiences.^[5] There have been press stories about how the law unreasonably singles out the playing of musical instruments when compared to other forms of entertainment, such as circus performing.^[6]

To deal with the concerns raised, the Live Music Forum was set up, chaired by Feargal Sharkey. Its report,^[7] issued in July 2007, reported that overall "the Licensing Act has had a neutral effect on the UK’s live music scene", but recommended there should be more flexibility of the application of the Act on smaller premises. However the introduction of Form 696 by the Metropolitan Police Service as part of the licensing system for live music has been criticised by Sharkey and others for the restrictions imposed on music promoters in London.^[8][9]

Implementation of the Act

Any premises that had an old-scheme licence were able to apply for that licence to be converted; provided there was no material change in the use of the premises, the local authority was effectively bound to agree this. Licensees had to apply for this by 6 August 2005. At that date, it was reported that most pubs had applied, but many off-licences had not. Although the right to "convert" current licences expired on 6 August, premises could still apply as "new" premises, without benefit of "grandfather rights". The new licensing laws came into effect at midnight at the end of Wednesday 23 November 2005, with old licensing regimes ending and new licences coming into force.

In a report on the new legislation in November 2006, the Institute of Alcohol Studies reported that one year after implementation "opinions were divided, as expected, leading to the unavoidable polarisation of the debate, increasingly centred upon the misguided notion of ‘24 hour drinking’."^[10]

On 8 November 2007 the Department for Culture, Media and Sport reported that there were 176,400 licensed premises in England and Wales.^[11] Only 5,100 premises have 24 hour licences, most of which (65 per cent) are hotel bars. Only 460 pubs, bars or nightclubs have 24 hour licences.

See also

• Zoo Bar (Halifax, West Yorkshire) - The first establishment to be closed under the auspices of the Act.

References

External links

• The Licensing Act 2003, as amended from the National Archives.
• The Licensing Act 2003, as originally enacted from the National Archives.
• Explanatory notes to the Licensing Act 2003.
• Department for Culture, Media and Sport (DCMS)
• Proposed changes to the Licensing Act 2003 (Home Office)
• Article on the Licensing Act in Web Journal of Current Legal Issues