CHAPTER ONE – THE LICENSING ACT 2003
The Act was brought into force on the 24th November 2005. The Act fundamentally altered the way the licencing of premises was administered and enforced, and upon enactment it passed decision-making powers in licensing from Magistrates’ Courts to local authorities in England and Wales. One of the key points of difference from the Licencing Act 1964 was it made the process of obtaining a licence to sell alcohol and perform live and recorded music more straightforward, but it also made the process of imposing changes upon such licences, and taking them away altogether, more straightforward.
The Act created responsible authorities, public bodies tasked with regulatory oversight into the licencing regime. Those responsible authorities are provided for in Subsection 13(2) of the Act and are (in straightforward terms)
- the relevant licensing authority in whose area the premises are situated;
- the chief officer of police for any police area in which the premises are situated;
- the fire and rescue authority for any area in which the premises are situated
- the Local Health Board for any area in which the premises are situated
- the local authority in England whose public health functions within the meaning of the National Health Service Act 2006 are exercisable in respect of any area in which the premises are situated [public health]
- the enforcing authority within the meaning given by section 18 of the Health and Safety at Work etc. Act 1974 for any area in which the premises are situated [environmental health in respect of public safety]
- the local planning authority for any area in which the premises are situated
- the local authority by which statutory functions are exercisable in any area in which the premises are situated in relation to minimising or preventing the risk of pollution of the environment or of harm to human health [environmental health in respect of public nuisance]
- a body which represents those who, in relation to any such area, are responsible for, or interested in, matters relating to the protection of children from harm and is recognised by the licensing authority for that area for the purposes of this section as being competent to advise it on such matters [Trading Standards and the local Children Safeguarding Board, or equivalent].
- where the premises (not being a vessel) are being, or are proposed to be, used for a licensable activity within section 1(1)(a) or (d), the Secretary of State. [Immigration Enforcement]
Two responsible authorities are central to the Summary Review process.
- Licensing Authorities perform a number of functions in relation to the Summary Review process. Firstly, they are required to administer the Summary Review once an application is made by the chief officer of police for the area within which the council is situated accompanied by the associated Certificate. This will include fixing the notice advertising the review application in a prominent place at the premises to which the application is subject. The Licensing Authority will also be required to liaise with Committee Services to organise any hearings, some of which will be required to be held at relatively short notice. Throughout the Representation Period the Licensing Authority will be required to receive and distribute any representations upon the Summary Review application to all relevant parties as well as any supporting evidence in support of any of those parties in relation to any hearings. The Licensing Authority will also be required to send out any decision notices in accordance with associated statutory time limits. The councillors who make any substantive decisions in relation to licensing applications are also, strictly speaking, part of the Licensing Authority.
- Police Services are the source of any and all Summary Reviews. It is enshrined within the Guidance that the police should be the ‘main source of advice for licensing authorities’ in relation to the prevention of crime and disorder Licensing Objective,[1] and this principle will always carry some weight, usually significant, with Licensing Subcommittees. This is an understandable and rational approach but sometimes means licensed premises face an uphill task in challenging the police’s opinions or stance on their premises. Once the review application has been submitted along with the accompanying certificate signed by a senior officer, then short of that certificate being quashed there is nothing that can stop the Summary Review process taking its course.
Standard Reviews of Premises Licences
In order to understand a Summary Review, it is helpful to understand the mechanics and principles of a Standard Review of a Premises Licence, applied for under section 51, and determined under section 52 of the Act. Unlike Summary Reviews, which were introduced via Violent Crime Reduction Act 2006, Standard Reviews were part of the original body of the Act and have (apart from a few tweaks to the original wording) remained intact since November 2005.
A Standard Review of a Premises Licence is a process where someone, usually a responsible authority, is seeking some sort of change to a Premises Licence, or its revocation. This process is commenced by the completion of a review application form setting out the premises to which the application will be subject and the grounds for the review application, which is served upon the Licencing Authority within which those particular premises are situated.[2] It is usual for a Standard Review application to include within it what the applicant is seeking from the process, which can and frequently does include a request for revocation of the licence.
Standard Review applications commence a process that ends in a hearing (unless the parties can all agree it is not necessary) where the future shape and form of the licence under review is determined. The Standard Review process involves the advertising of the application, a requirement that the associated hearing is held within a certain period (in accordance with the Hearings Regulations)[3] and any decision that follows from the application can be appealed to the Magistrates’ Court. The Standard Review process also invites representations from both responsible authorities and ‘Other Persons’,[4] which if deemed relevant in the case of the latter, will make them parties to the Standard Review and entitled to attend the hearing.
After the Act was brought into force in November 2005 it quickly became apparent that there were significant limits to the Standard Review process which meant that licensed premises that were associated with serious crime (and in some instances involving fatalities) would not be subject to any immediate, effective and meaningful regulatory intervention, in that the hearing would take place some two months after the review application was submitted and any decision made by the Licensing Subcommittee at that hearing, if appealed, would not take effect until the determination of that appeal,[5] which could be many months after the hearing. This meant there was no lawful power under the Act to prevent badly run and dangerous premises from carrying on as before for several months after a serious incident.
This meant that consideration was given to ways of addressing this by amending the Act by inserting new sections (which form the basis of much of this book) and following the enactment of the Violent Crime Reduction Act 2006, the Summary Review process was introduced into the Act via The Violent Crime Reduction Act 2006 (Commencement No. 3) Order 2007 on 1st October 2007, nearly two years after the Act came into force.
There are several distinctions between Standard Review applications under section 51 of the Act and Summary Review applications under section 53A.
Firstly, a Standard Review application can be initiated by any person.[6] This includes any responsible authority but also ‘Other Persons’ under the Act. In terms of the latter, this is frequently disgruntled local residents who are unhappy about the way the local pub is operated, usually for reasons of nuisance. There is a power for Licencing Authority to reject a Standard Review application made by an ‘Other Person’ on the grounds of it being frivolous, vexatious or repetitious but this power is rarely exercised.[7] In contrast, a Summary Review can only be initiated by the Chief Officer of Police.[8]
Secondly, a Standard Review application can be brought on any ground, and should be accepted as valid by the Licensing Authority as long as it is relevant to at least one of the Licensing Objectives. There is no requirement under the Act for the Standard Review of a Premises Licence to be sought on any prescribed ground save for the overarching principle of its relevance to the promotion of the Licensing Objectives. A Summary Review can only be brought if it contains grounds associated with the prevention of crime and disorder, and where that crime and/or disorder is serious.[9] There is nothing in the Act precluding the Chief Officer of Police including any other ground(s) in their Summary Review application, relevant to one of the other Licensing Objectives, but it must contain core grounds based on serious crime being associated with the premises to which the application is subject.
Thirdly, is the Representation Period. For a Standard Review application this is 28 days beginning on the day after the application is received by the Licencing Authority.[10] For Summary Reviews this is 10 working days.
Fourthly, is the hearing itself which with a Standard Review is required to be held 20 working days after the end of the Representation Period (which is, give or take, one month) whereas for Summary Reviews this is within 28 days after the day the Licensing Authority receives that Summary Review application.[11] The overall process in a Summary Review is around half the duration of a Standard Review.
Fifthly, there is no mechanism under a Standard Review for any parts of the determination to take effect immediately. Under section 52(11) of the Act the decision does not take effect for 21 days from when it is delivered in writing, and if the decision is appealed against within those 21 days, until that appeal is disposed of. This difference between each power is perhaps the most impactful distinction upon licensed premises in particular, and was clearly the most important contrast to the legislators and the principal driver behind the amendments to the Act.
The Standard Review process is more widely accessible to applicants, less fast-paced and intense, and less immediately impactful on the licence holder and their business than the subject of this book, Summary Reviews.
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[1] Paragraph 9.12 Section 182 Guidance
[2] Schedule 8 Licensing Act 2003 (Premises Licences and Club Premises Certificates) Regulations 2005
[3] Paragraph 7 Schedule 1 Licensing Act 2003 (Hearings) Regulations 2005
[4] Section 52(2) Licensing Act 2003
[5] Section 52(11) Licensing Act 2003
[6] Section 51(1) Licensing Act 2003
[7] Section 51(4) Licensing Act 2003
[8] Section 53A(1) Licensing Act 2003
[9] Section 53A(1)(b) Licensing Act 2003
[10] Regulation 22(1)(b) The Licensing Act 2003 (Premises Licences and Club Premises Certificates) Regulation 2005
[11] Section 53A(2)(b) Licensing Act 2003