Briefing note on The Licensing Act 2003

On 8 June 2005 the government finally confirmed when the old licensing regime will end and the new licensing regime will come fully into effect. From Thursday, 24 November 2005 - the Second Appointed Day - everyone who sells alcohol, puts on entertainment or serves hot food after 11pm must have the requisite new licences to be able to continue to trade.

The time for making applications to convert old licences into new ones began on 7 February 2005 and ends on 6 August 2005. Licensees must submit their applications within this period in order to take advantage of the various "grandfather" rights. If they do not, they will have to make applications for new licences which will be more onerous and the outcome cannot be guaranteed. For instance, under the new law in order to hold a personal licence to sell alcohol an individual must pass a formal licensing qualification and have a Criminal Records Bureau Certificate.

Over the last few weeks there has been a lot of publicity about the need to make these applications in a timely fashion. The authorities are getting increasingly concerned about the small number of applications submitted to date which are running at 4% and a "high level" government task force has been established to review the position.

From our dealings with applications for conversion and/or a variation, the reasons for delay are clear. The regulations and forms were introduced at a very late stage, there has been no detailed guidance from local authorities on how to deal with the applications – not surprisingly since they are new to the applications themselves - and the information required is extensive and complex.

If you undertake any "licensable activity" you need to deal with your application to convert and/or vary your licences WITHOUT FURTHER DELAY to avoid interruption to your business. Our guide outlining the new regime of the Licensing Act 2003 can viewed below:

Full Article

Please note that the purpose of this briefing note is to highlight some of the main provisions of the Licensing Act 2003, it is not intended to be an exhaustive guide.

The Licensing Act 2003 received Royal Assent on 10 July 2003 and follows on from the white paper published in April 2000 which looked at reforming alcohol and entertainment licensing ("Time for Reform: Proposals for the Modernisation of our Licensing Laws CM4696").

The purpose of the Act is to promote four fundamental licensing objectives being:-

1. The prevention of crime and disorder;
2. The promotion of public safety;
3. The prevention of public nuisance; and
4. The protection of children from harm.

The Act unifies the various different licensing systems into a single integrated scheme licensing the sale of alcohol, the provision of public entertainment and late night refreshments.

The licensing authorises prescribed "licensable activities" – broadly, the sale of alcohol, the provision of entertainment and hot food after 11pm through a system of:-

• Personal licences;

• Premises licences;

• Club premises certificates; and

• Temporary event notices.

The Act received Royal Assent on 10 July 2003. The Secretary of State's guidance under Section 182 was issued on 7 July 2004 and licensing authorities have prepared new licensing policy statements.

The "First Appointed Day" from which existing licences can be converted into new licences was 7 February 2005.

The "Second Appointed Day", which is the day when the new system will come into force proper is fixed at 24 November 2005.

These authorise individuals to sell or supply alcohol or authorise the sale or supply of alcohol for consumption on or off premises. To qualify for a personal licence an individual must be:-

• 18 or over.

• Possess an accredited licensing qualification which will ensure that the licensee knows the law but is also aware of the broader social responsibility that comes with the sale of alcohol.

• Have a clean criminal record (subject to some exceptions) evidenced by a Criminal Records Bureau Certificate.

Personal licences last for 10 years and are renewable unless they are suspended, surrendered or forfeit by the Court.

Under so called "grandfather" provisions, most people currently holding a Justice's Licence can convert an existing alcohol licence into a new personal licence without obtaining the licensing qualification and the Criminal Records Bureau Certificate.

This authorises the holder of the licence to use the premises for "licensable activities". A licence can be held by an individual or by a corporate entity and the licence details the licensable activities to be undertaken at the premises. An operating plan or schedule is a new feature of the Licensing Act and is central to the application for a premises licence. It consists of a description of the style and character of the business to be run from the premises and should include:-

• Details of the times during which the licensable activities are to take place;

• If open at any other times, when the premises are open;

• If the licence is required only for a limited period what that period is.

• Where the licensable activities include the supply of alcohol the details of the designated premises supervisor;

• Steps which the applicant proposes to take to promote the licensing objectives.

The premises licence will incorporate operating conditions fixed on the basis of the operator's requirements and residents' views as well as police and fire authority assessments. As before, these licences are transferable. They may also be varied on application.

The sale of alcohol is considered to have greater responsibility than other regulated entertainment and that is why a personal licence is required by individuals who supply or sell alcohol. The "Designated Premises Supervisor" is required to ensure that there is always one specified individual among probably a number of personal licence holders working in premises identified as having the day to day responsibility for running the premises. It is considered essential that the police, fire officers or licensing authority can immediately identify the designated premises supervisor as their point of contact. The designated premises supervisor is to be specified on the premises licence and if he/she changes the new designated premises supervisor is to be notified to the licensing authority.

Previously the responsibility for granting and monitoring the various licences was divided amongst different authorities, for instance, local authorities dealt with cinema licences whereas the local licensing justices dealt with alcohol licences. Under the Licensing Act the new licensing authority is the local authority. The licensing authority has to promote the four licensing objectives of the legislation and in carrying out its licensing functions has to do the following:-

1. Have regard to the guidance issued by the Secretary of State under Section 182 of the Licensing Act 2003. (This currently extends to in excess of 150 pages).
2. Every three years to publish its own policy with respect to exercising its licensing functions after consultation with the local police, the fire authority and other relevant local bodies. The rationale being that at the same time pursuing the licensing objectives the local licensing authority can tailor its policy to take into account the specific needs of the licensing area, for instance the needs of Covent Garden will differ radically from the needs of a community in rural Wales.

• Flexible opening hours is a key feature. The Licensing Act brings with it the potential for up to 24 hour 7 days a week opening in order to minimise the social disorder and binge drinking associated with the current regimented 11pm closing time. There is detailed guidance on permitted opening hours of which ultimately will be subject to consideration of the impact on local residents.

• Fees have been set centrally with no local authority discretion to vary them.

• There will be a new system of temporary permitted activities which allow extensions for premises licences and the sale of alcohol by non-licence holders within permitted limits after a straightforward notification process. This will allow specific events to be held, for instance, a wedding reception, parties for sporting events i.e., world cup final etc.

• Boats undertaking "licensable activities" will require a premises licence as will wholesalers when selling to the public.

• The sanctions available to local authorities are much more wide-ranging and flexible and include the suspension and forfeiture of licences.

Holders of existing licences have six months from 7 February 2005 to apply for the conversion of their licences into new premises licences and must do so if they wish to continue trading when the Licensing Act comes fully into force. If they hold justices' licences they will be converted into premises licences and personal licences. If licensees wish to take advantage of the more flexible range of opening hours or to diversify their business, they will need to make an application to vary the existing licence. As an applicant will have to do a significant amount of work in producing an operating schedule as part of the application anyway, it may be worthwhile making any application to vary at the same time as the initial application to convert the licence rather than waiting for the new system to come into force.

If applications are not submitted on or before 6 August 2005, licenceholders will have to apply for new licences and will lose the "grandfather" privileges of the transitional provisions. This may mean that they will not get their new licences in time to continuing trading from 24 November 2005. IT IS, THEREFORE, IMPERATIVE FOR EVERYONE WHO HAS LICENCES TO ACT IMMEDIATELY.

This article was written for Law-Now, CMS Cameron McKenna's free online information service. To register for Law-Now, please go to www.law-now.com/law-now/mondaq

The original publication date for this article was 16/06/2005.