Colin Manchester looks at some amendments that are needed to temporary event notices and the new Part 5A notice which has not yet come into effect.
Temporary event notices (TENs) have been subject to various amendments in recent years. There were several introduced by the Police Reform and Social Responsibility Act 2011 (PRSRA 2011) e.g. extending the right to object, originally confined to the police on the crime prevention objective ground, so that either the police or environmental health could object on any licensing objective ground (s 112), and extending 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 (s 115(3)). More recently, a further change has been made by s 67 of the Deregulation Act 2015, which has increased the maximum number of TENs that can be given under s 107(4) of the Licensing Act 2003 (2003 Act) for any one premises within the same year from 12 to 15. This recent amendment has led to a new TENs form being introduced by The Licensing Act 2003 (Permitted Temporary Activities) (Notices) (Amendment) Regulations 2016, SI 2016/20, to reflect the change. The new form duly reflects this change but a drafting error has been highlighted in a report of the Joint Committee on Statutory Instruments to Parliament. Section 9 of the new TENs form contains a declaration to be signed by the person giving the notice acknowledging that it is an offence to knowingly or recklessly make a false statement in connection with the TEN and that permitting an unauthorised licensable activity to be carried on at any place is an offence, but references in the form to the fine for these offences are incorrect. The form states that the fine for the former offence is one not exceeding level 5 on the standard scale and for the latter offence is a fine not exceeding £20,000 but these fines have been changed to unlimited fines by s 85 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 and para 33(2) of Sched 4 to the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Fines on Summary Conviction) Regulations 2015, SI 2015/664. References in the new TENs form should simply be to a fine and this has been recognised by the Home Office: ‘The error was an oversight which the Department will seek to correct at the earliest opportunity, which is expected to arise later this year’ (para 1.4 of the Joint Committee Report).
This is not, however, the only oversight which needs correcting in the area of TENs, as will be seen below. The power of entry in s 108(1) of the 2003 Act of a constable or an authorised officer of the licensing authority to premises to which a TEN relates is ‘to assess the likely effect of the notice on the promotion of the crime prevention objective’. This was the only purpose for which entry would have been relevant prior to the amendments to the TENs regime introduced by the PRSRA 2011, as only the police could give an objection notice on crime prevention objective grounds, but this is no longer the case. Under s 104(2) of the 2003 Act, as amended by s 112(5) of the PRSRA 2011, the police or environmental health can object on any licensing objective ground. If the power of entry in s 108(1) is to complement the amended provision in s 104(2), it should be available to assess the likely effect of the TEN on the promotion of any licensing objective and not just the crime prevention objective. It is difficult to resist the conclusion that s 108(1) remaining in its original unamended form was an oversight but, unless and until it is amended, it seems that the power will only lawfully be exercised if entry can be justified to assess the likely effect on promotion of the crime prevention objective.
An additional form of authorisation, which as in the case of a TEN does not require permission from the licensing authority but simply the giving of a notice, is the Part 5A Notice. This is a new form of authorisation in Part 5A of the 2003 Act which has been added by s 67(2) of and Sched 17 to the Deregulation Act 2015, although these provisions have not yet come into force. When they do, the Part 5A Notice will enable the licensable activity of the retail sale of alcohol to be carried out over a period of time by community organisations or small businesses that sell alcohol as an ancillary part of a wider service without the need for a premises licence, club premises certificate or the use of multiple TENs. The Part 5A Notice, the relevant provisions for which are contained in ss 110A-110L of the 2003 Act, is closely modelled on the TENs regime. Thus the notice is given to the licensing authority (s 110D), police and environmental health have an opportunity to give an objection notice based on any licensing objective ground (s 110I), and a counter-notice can be given by the licensing authority (s 100J). There is a power of entry in s 110L for a constable or an authorised officer of the licensing authority to premises to which a Part 5A Notice relates. You can guess what is coming next. Yes, this is closely modelled on the power of entry in s 108(1) for TENs, with s 110L(1) providing: ‘A constable or an authorised officer may, at any reasonable time, enter premises to which a Part 5A notice relates to assess the likely effect of the notice on the promotion of the crime prevention objective’. So, as in the case of a TEN, the power of entry is expressed to be to assess the likely effect of the notice on the promotion of the crime prevention objective, although an objection notice and a counter-notice can be given if considered appropriate for the promotion of any of the licensing objectives. If the position remains unchanged, this is what I plan to say on s 110L(1) in the 4th edition of Manchester on Alcohol and Entertainment Licensing Law when it is published next year:
The position here is the same as it is for the power of entry for TENs in s 108(1). That section was not amended following changes introduced for TENs by the PRSRA 2011 under which an objection notice and a counter-notice could be given if considered appropriate for the promotion of any licensing objective and the view was expressed that the failure to amend s 108(1) was an oversight. This view is reiterated here in respect of s 110L(1), which is expressed in comparable terms to s 108(1) and which compounds the failure.
If the failure to amend s 108(1) and s 110L(1) was an oversight, the Home Office may (if it is aware of this … ) seek to correct these provisions at the earliest opportunity, although it will not be as easy to do so as with amending the new TENs form to correct the oversight in respect of the level of fines. This is because the TENs form is contained in regulations i.e. secondary legislation but the provisions in ss 108(1) and 110L(1) are contained in an Act of Parliament i.e. primary legislation. Amendments to secondary legislation can be made by Government departments with the legislation laid before Parliament for a period of time for approval before it takes effect. This is a relatively straightforward process. Amendments to primary legislation, on the other hand, need to be made in an Act of Parliament, the passage of which will take a much longer period and the provisions of which are subject to detailed debate and scrutiny during the course of the legislation’s passage. Unlike the TENs form oversight, there is no ‘quick fix’ for the ss 108(1) and 110L(1) oversight(s). A good starting point, however, would be an acknowledgement of these oversight(s) and the need for these provisions to be amended, even if it may take some time before effect can be given to their correction.
© Colin Manchester