Alcohol and Entertainment Licensing Law

Colin Manchester, Susanna Poppleston, Jeremy Allen

• Publisher: Routledge-Cavendish
• Year: 2008
• Print ISBN: 9780415422901
• eBook ISBN: 9781134099993
• Edition: 2
• Topic: Law
• Subtopic: Financial Law
• Index: Law

This comprehensive and authoritative guide to licensing law is co-authored by the UK's only professor of licensing law and two eminent licensing practitioners. It provides a detailed exposition and contextual analysis of the legal provisions governing the licensing of alcohol and entertainment under the Licensing Act 2003, encompassing both the legislative and decision-making framework of the Act as well as its implications for human rights.

Fully updated and revised, it covers the various forms of authorization for licensable activities and licence and certificate conditions that might be attached as well as the enforcement and appeal provisions of the Act. This new edition, building on the highly acclaimed original work published in 2005, includes subsequent legislative changes and case law decisions.

New additions to this edition include:

• 
  
  

• expanded coverage of enforcement provisions and police powers
• a revised and extended chapter on appeals, in light of the practical and procedural developments that have evolved in the appeal process
• amendments to existing regulations and the revised Statutory Guidance issued in 2007.

This book is essential reading for all local authorities, legal advisers, licensing policy advisors, operators and the police as well as those applying for licences.

CHAPTER 1

INTRODUCTION TO THE LICENSING ACT 2003

1.1 THE LICENSING SCHEME

1.1.1 Introduction

1.1.2 The Licensing Act 2003 (the 2003 Act) introduced a modernised and integrated scheme covering the sale by retail of alcohol or the supply of alcohol by a club to a club member, the provision of various forms of entertainment (principally music and dancing, indoor sports entertainments, films and plays) and the provision of late night refreshment (LNR), which is the provision of hot food or hot drinks at times falling within the period from 11.00 pm to 5.00 am.¹ Various forms of authorisation for these ‘licensable activities’ can be obtained from licensing authorities, which generally are local authorities (see 1.1.10 below). The forms of authorisation include premises licences, club premises certificates (CPCs) and temporary event notices (TENs), which can authorise any of the above activities, and personal licences that authorise the retail sale of alcohol under a premises licence. Licensing authorities are required to issue these authorisations and discharge their numerous other licensing functions under the 2003 Act with a view to the promotion of specified licensing objectives. These objectives, which are set out in s 4(2) of the 2003 Act, are: (a) the prevention of crime and disorder; (b) public safety; (c) the prevention of public nuisance; and (d) the protection of children from harm.

1.1.3 Prior to the 2003 Act, there were a number of separate licensing schemes for the above-mentioned activities. Licences for the sale or supply of alcohol (or ‘intoxicating liquor’ as it was termed under the Licensing Act 1964) were issued by licensing justices and there were separate statutory schemes for the licensing by local authorities of public entertainments (which included music, dancing and indoor sports entertainments), films, plays and LNR.² None of these schemes had any specified licensing objectives set out in the relevant legislative provisions; rather, the licensing authorities were given a broad, largely unfettered, discretion to determine whether or not licences should be granted in accordance with their perception of the public interest. There was no coherent rationale or purpose underlying the licensing controls and the broad discretion conferred inevitably led to wide inconsistencies, a lack of transparency and, at times, overintrusive regulation. When the Better Regulation Task Force (BRTF) – a body set up by the incoming Labour Government in 1997 to improve the quality of government regulation – measured the areas of liquor and entertainment licensing against its principles of transparency, accountability, targeting, consistency and proportionality, the system, particularly in relation to alcohol, was found wanting on several counts.³ This led the Government to introduce in April 2000 a White Paper, Time for Reform:Proposals for the Modernisation of Our Licensing Laws ((2000) Cm 4696), which proposed reform not only of alcohol and entertainment licensing, but also the licensing of late night refreshment services. A new licensing scheme integrating these three areas of activity was duly implemented by the 2003 Act.

1.1.4 The licensable activities

1.1.5 Section 1(1) of the Act defines ‘licensable activities’ as:

(a)	the sale by retail of alcohol,
(b)	the supply of alcohol by or on behalf of a club to or to the order of a member of the club,
(c)	the provision of regulated entertainment, and
(d)	the provision of late night refreshment.^4

A single premises licence can be obtained under which a person can provide any or all of these activites and any or all of them can similarly be provided under the authority of a TEN as temporary activities for a period of time not exceeding 96 hours (see s 100(5)(b) and 9.2.3 below), provided certain requirements are met. Section 2(1) provides:

A licensable activity may be carried on–

(a)	under and in accordance with a premises licence (see Part 3), or
(b)	in circumstances where the activity is a permitted temporary activity by virtue of Part 5.

1.1.6 Certain licensable activities are also ‘qualifying club activities’ and s 1(2) provides:

The following licensable activities are also qualifying club activities–

(a)	the supply of alcohol by or on behalf of a club to or to the order of a member of the club,
(b)	the sale by retail of alcohol by or on behalf of a club to a guest of a member of the club for consumption on the premises where the sale takes place, and
(c)	the provision of regulated entertainment where that provision is by or on behalf of a club for members of the club or members of the club and their guests.

The provision of a CPC for the above activities continues the special arrangements that had previously been applied to the consumption of alcohol on the premises of non-profit-making clubs and extends the arrangements to the provision of entertainment in clubs. As regards the provision of LNR in clubs, these are ‘exempt supplies’ and do not constitute licensable activities for which an authorisation is required (see Sched 2, para 3(2)(a) and 5.4.6 below).

1.1.7 In most cases, however, authorisation for licensable activities will be provided by a premises licence. Such a licence can authorise licensable activities either indoors or outdoors,⁵ but on its own will be insufficient where the licensable activities include the sale of alcohol for consumption on or off the premises. In this instance, a personal licence, held by an individual, will also be needed to enable him to sell or authorise the sale of alcohol. The rationale for this was set out in the White Paper as follows:

The argument for licensing people as well as premises is that there needs to be a reasonable assurance that anyone responsible for the sale of alcohol is aware of his or her obligations and is capable of fulfilling them. In addition, a great many public houses are these days managed by people on behalf of large pub operating companies and the normal transfer of managers from one set of premises to another is unnecessarily inhibited by the current law which ties the licence holder and the venue together. A split licensing system therefore offers much greater flexibility to the industry in terms of human resources. The licence would be held by the person running the premises on a day to day basis (Cm 4696, 2000, para 39)

1.1.8 Whilst a personal licence is needed for the provision of alcohol under a premises licence, one is not needed for provision of alcohol under a CPC or TEN, nor is one required for the provision of entertainment or LNR under any form of authorisation. No personal licence is needed for the provision of alcohol under a CPC since non-profit-making clubs holding a CPC are essentially private premises where alcohol is not sold to the public and there are unlikely to be the problems of disorder or underage sales that might occur in licensed premises open to the public.⁶ Nor is a personal licence required for the provision of alcohol under a TEN. Here there might be provision of alcohol to the public but the Act restricts the number of TENs that a person not holding a personal licence can give in any one year to five, compared to 50 that can be given by a personal licence holder (see s 107(1)–(3) and 9.7.1 below). The limitation on numbers clearly minimises, but does not eliminate, the risk of any unsuitable person selling alcohol at a temporary event. The risk might, of course, be eliminated if the police issue an objection notice on the ground that holding the event might undermine the crime prevention objective and this is upheld by the licensing authority (see 9.5 below). Otherwise, the risk remains a present one if the event goes ahead, although as Lord McIntosh stated during the course of the legislation’s passage, the police have the power to close down for up to 24 hours premises for which a TEN has been given ‘where they are a source of noise, nuisance and disorder likely to threaten public safety’ (HL Deb, vol 643, cols 385–86, 17 January 2003). That a personal licence is not required for entertainment or LNR reflects the Government’s view, expressed by Lord Davies in Parliament, that ‘the risks associated with the provision of public entertainment or late-night refreshment without alcohol are not so great that a system of personal vetting is needed’ (HL Deb, vol 643, col 395, 16 January 2003).

1.1.9 In addition to the need for a personal licence where alcohol is sold under a premises licence, there needs to be a ‘designated premises supervisor’ (DPS) for the premises. The DPS can, but need not be, the premises licence holder (see s 15(2) and 6.4.2 below) and the purpose of this requirement is to ensure that, in the case of premises selling alcohol to the public, there is someone with overall responsibility for the sale of alcohol on the premises, who can be readily identified by enforcement officers. The Government considered it essential that police officers, fire officers or officers of the licensing authority be able to identify immediately the person at any premises selling alcohol in a position of authority. Whilst this is an important consideration, it clearly detracts from the ‘portability’ concept of the personal licence and undermines the split between premises and personal licences, since the DPS holding the personal licence is ‘tied’ to the licensed premises for which he is the premises supervisor.

1.1.10 The licensing authorities

The licensing authorites administering the scheme are, for the most part, local authorites in England and Wales. In England, licences are granted by district or county councils, except in London where they are granted by borough councils or the Common Council of the City of London, and in Wales they are granted by county or county borough councils. Licensing authorities do, however, include three additional bodies: the Sub-Treasurer of the Inner Temple, the Under-Treasurer of the Middle Temple, and the Council of the Isles of Scilly. Section 3(1) and (2) provides:

(1)	In this Act ‘licensing authority’ means–

(a)	the council of a district in England,
(b)	the council of a county in England in which there are no district councils,
(c)	the council of a county or county borough in Wales,
(d)	the council of a London borough,
(e)	the Common Council of the City of London,
(f)	the Sub-Treasurer of the Inner Temple,
(g)	the Under-Treasurer of the Middle Temple, or
(h)	the Council of the Isles of Scilly.

(2)	For the purposes of this Act, a licensing authority’s area is the area for which the authority acts.

1.1.11 Discharging the licensing functions

1.1.12 As indicated (see 1.1.2 above), a licensing authority is required to issue the various authorisations for licensable activities and discharge its numerous other licensing functions under the 2003 Act with a view to promotion of the licensing objectives. Further, in order to discharge its licensing functions, it is required to draw up a ‘Licensing Statement’, that is, a Statement of Licensing Policy (SOP), to which it must, under s 4(3)(a), have regard when carrying out its licensing functions. Section 5 provides that an authority must, for each three-year period, determine its policy with respect to the exercise of its licensing functions, and publish a statement of that policy. There are also requirements for consultation before determining the policy, for keeping statements under review and for making revisions as appropriate (see 4.3.3–4.3.5 below). In addition, a licensing authority must, under s 4(3)(b), have regard to any Guidance issued by the Secretary of State under s 182 of the 2003 Act when carrying out its licensing functions.

1.1.13 The requirement in s 4(1) for a licensing authority to discharge its licensing functions with a view to promotion of the licensing objectives focuses the authority’s attention on the aims and purposes of licensing control and seeks to ensure that decisions are directed towards achieving them. The requirement in s 4(3)(a) seeks to ensure transparency in the discharge by the authority of its licensing functions by requiring it to set out in its SOP how it will discharge those functions. The requirement in s 4(3)(b) seeks to ensure that, whilst the discharge of licensing functions remains a matter determined primarily at local level, there will be an element of central ‘direction’ through the the Secretary of State’s Guidance with a view to achieving a greater degree of consistency. This element of central ‘direction’ will feed into the authority’s formulation of its SOP, since drawing up the SOP (and keeping it under review) is a licensing function and the authority must therefore have regard to the Guidance when discharging this function. The interrelationship between licensing objectives, the SOP and the Guidance is, however, a complex one and is examined in detail in Chapter 4.

1.2 NATURE OF THE LICENSING SCHEME

1.2.1 Deregulatory measure

1.2.2 The 2003 Act is first and foremost intended to be a deregulatory measure, aimed at promoting greater freedom of choice for the consumer and encouraging development of the leisure industry, whilst at the same time endeavouring to reduce crime, disorder and public nuisance, and ensuring that there are adequate safeguards provided for residents. Deregulation came in the form of a substantial legislative package, for on its passage the 2003 Act comprised some 200 sections and eight Schedules and was duly supplemented by several tranches of secondary legislation in the form of regulations and orders, along with 178 pages of statutory Guidance. The Act is not, however, simply concerned with eliminating historical anomalies, streamlining bureaucratic requirements and relaxing opening hours. More fundamentally, it seeks to readjust the boundaries between freedom and flexibility on the one hand and public interest regulation of the licensable activities on the other. As such, it can be seen as a flagship or exemplar of core elements of ‘Third Way’ politics⁷ pursued by the Labour Government that introduced it and under which gov...

Table of contents

• Cover Page
• Title Page
• Copyright Page
• Preface
• Contents
• Table of Cases
• Table of Statutes
• Table of International Legislation
• Table of Secondary Legislation
• Glossary of Acronyms and Abbreviations
• 1 INTRODUCTION TO THE LICENSING ACT 2003
• 2 PROCEDURAL AND DECISION-MAKING FRAMEWORK
• 3 LICENSING AND HUMAN RIGHTS
• 4 LICENSING OBJECTIVES, STATEMENTS OF POLICY AND SECRETARY OF STATE’S GUIDANCE
• 5 LICENSABLE ACTIVITIES: THE SCOPE OF CONTROL
• 6 PREMISES LICENCES
• 7 CONDITIONS
• 8 CLUBS AND CLUB PREMISES CERTIFICATES
• 9 TEMPORARY ACTIVITIES: TEMPORARY EVENT NOTICES
• 10 PERSONAL LICENCES
• 11 ENFORCEMENT
• 12 APPEALS
• APPENDIX CONTENTS
• APPENDIX 1: LICENSING ACT 2003
• APPENDIX 2: LICENSING ACT 2003 (PREMISES LICENCES AND CLUB PREMISES CERTIFICATES) REGULATIONS 2005, SI 2005/42
• APPENDIX 3: LICENSING ACT 2003 (PERSONAL LICENCE) REGULATIONS 2005, SI 2005/41
• APPENDIX 4: LICENSING ACT 2003 (HEARINGS) REGULATIONS 2005, SI 2005/44
• APPENDIX 5: LICENSING ACT 2003 (LICENSING AUTHORITY’S REGISTER) (OTHER INFORMATION) REGULATIONS 2005, SI 2005/43
• APPENDIX 6: LICENSING ACT 2003 (FEES) REGULATIONS 2005, SI 2005/79
• APPENDIX 7: LICENSING ACT 2003 (PERMITTED TEMPORARY ACTIVITIES) (NOTICES) ORDER 2005, SI 2005/2918
• APPENDIX 8: LICENSING ACT 2003 (PERSISTENT SELLING OF ALCOHOL TO CHILDREN) (PRESCRIBED FORM OF CLOSURE NOTICE) REGULATIONS 2007, SI 2007/1183
• APPENDIX 9: TABLE OF FEES
• APPENDIX 10: TABLE OF OFFENCES
• APPENDIX 11: SECRETARY OF STATE’S GUIDANCE ISSUED UNDER SECTION 182 OF THE LICENSING ACT 2003, JUNE 2007
• APPENDIX 12: GUIDANCE ISSUED BY DCMS ON POLICE POWERS TO CLOSE PREMISES UNDER THE LICENSING ACT 2003, JUNE 2007
• APPENDIX 13: GUIDANCE ISSUED BY DCMS ON EXPEDITED/SUMMARY LICENCE REVIEWS UNDER THE LICENSING ACT 2003, OCTOBER 2007
• Index