Guidance to The Licensing Act 2003 Has Been Updated

September 2006

The Government has now tabled in Parliament their revised Guidance, which came into effect on 22 June 2006.

The most eagerly awaited clarification was whether personal licensees need to be available on site at all times, a position which some authorities had tried to enforce albeit against the flow of advice.

Specific clarification is given at paragraph 7.67A, on authorisations of sales.  This is an additional paragraph which is replicated below:

“Authorization” does not imply direct supervision of each sale of alcohol by a personal licence holder. The question arises as to how sales can be authorised in circumstances where the personal licence holder is absent for longer periods, such as when taking a holiday. In the Government’s view it is not possible to state categorically how the requirement of authorisation is satisfied as the facts and circumstances in each case will differ. Whether or not an authorisation has been given within the meaning of Act or whether the frequency or length of absence meant that the personal licence holder could not, in fact, have authorised the sale would, ultimately, be a matter for a court to determine on the evidence before it when the issue arose.

Nevertheless, it seems reasonable to expect that the courts would require the authorisation to be meaningful and properly carried out and not involve any abdication of responsibility. In our view, the following factors might be relevant in considering whether there was real authorisation:

• the person(s) authorised to sell alcohol should be clearly identified;

• the authorisation should have specified the acts which may be carried out by the person

• being authorised;

• there should be an overt act of authorisation, for example, a specific oral or written

• statement given to the individual(s) being authorised; and

• there should be in place sensible arrangements for monitoring by the personal licence

• holder of the activity authorised by him or her on a reasonably regular basis. (Our emphasis)

Clearly any current or intended authorisation should be clear and in writing. 

The only addition suggested by the Guidance would appear to be that where there is protracted absence through holiday, or whatever, there should be some arrangements in place whereby the person giving authority to make sales has systems in place to ensure that they are aware of what is ongoing in their absence, perhaps to the extent that there is a requirement to advise in the event an issue or problem arising.

This Guidance was reinforced by a letter sent by Tessa Jowell specifically stating that the view of one Police authority, requiring the closure of premises in the absence of a personal licence holder, was wrong.

Other amendments to or clarification of the original Guidance – from that originally issued – include:

• Reinforcement that in the event of inconsistency between planning and licensing, the more restrictive effectively prevails.

• A Designated Premises Supervisor may supervise more than one set of premises as long as they are able to ensure that the four Licensing Objectives will be properly promoted and the that the law and any licence conditions be complied with (Para 4.18)

• You can apply in advance to effect a change of DPS specifying the date when the change is due to take effect ( Para 4.23)

• Clarification on the position of “wholesale sales”

• Where there is an inaccuracy in an application the application should not be rejected or returned  if the error is minor and easily remediable ( Para 5.45)

• Some greater flexibility on TENs may be suggested by the following:

  A temporary event notice may be given for part of a building such as a single room within a village hall, a plot within a larger area of land, or a discrete area within a marquee as long as it includes a clear description of the area in which it is proposed to carry on licensable activities and the premises user intends to restrict the number of people present in the notified area at any one time to less than 500. If the premises user fails to restrict the numbers to a maximum of 499, he or she would be liable to prosecution for carrying on unauthorised licensable activities. ( Para 8.13A)

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