Guidance on instructing Counsel: common legislative solutions

Licensing

Description of legislative solution

This legislative solution involves making the doing of an otherwise lawful activity unlawful, unless done in pursuance of (and in accordance with) a licence. It is, therefore, a tool used to regulate and monitor a particular activity – or in other words to decide how it should be done.

The power to grant licences may be conferred on a part of government or on another body or person.

Licensing regimes range from the very simple (eg a dog licence or a TV licence – perhaps better regarded as a way of raising money rather than regulating the activity?) to the complex (eg the licensing of the supply of electricity).

Related legislative solutions

Notification regime

A close relation of this legislative solution is a notification regime, ie a regime that requires a person to notify a regulator of the person's intention to do a particular kind of activity, with the regulator having certain powers in relation to the doing of the activity. An example of this is to be found in Part 2 of the Communications Act 2003 (which regulates certain providers of electronic communications services etc).

Registration regime

Another close relation is a registration regime, ie a regime that provides that a person may do an activity only if the person's name appears on a register kept by an authority.

In substantive terms, in comparison to a licence there are usually fewer (or no) grounds for refusing an application to register, and little or no discretion about doing so. But complex registration regimes may provide for qualifications for registration, for conditions to be imposed and for registrants to be removed from the register if certain conditions are met (eg registration of doctors by the General Medical Council). In such cases, the difference between "licence" and "registration" may be minimal.

Elements of the legislative solution

1. Activity to be regulated

1.1 What is the activity that is to be subject to the licensing regime?

NB: there is an important link here to the issue of enforcement, considered below - doing the activity without a licence is almost invariably criminalised, so the activity must be defined with sufficient clarity to form the basis of an offence.

1.2 Should there be any exceptions, ie any persons who may do the activity without a licence or any other cases in which the activity may be done without a licence?

For example, if the activity is something that may be done by a public authority as part of, or incidentally to, its functions, should the public authority require a licence? Does anything need to be said about this in order to achieve the right result?

2. The licensing authority

2.1 What body or other person is to grant licences?

2.2 Is there a single body for the regime or a number of local bodies eg councils (or a mixture of the two)?

2.3 If local bodies are to issue licences: are the licences in respect of each body's area only, or do they have effect generally? If the latter, what are the implications as regards enforcement? Can local bodies act together and issue a joint licence?

3. Applications for licences

3.1 Who may apply for a licence (anyone, or only certain kinds of person)?

3.2 Should a licence authorise only the legal person to whom the licence is granted, or should it also authorise the activities of others? If the latter, does anything need to be said about this in order to achieve the right result?

For example, should a licence granted to a company authorise employees and/or agents of the company? Or if the licence relates to activity on land, should a licence granted to the owner of the land authorise the activity on the land, regardless of who does it?

3.3 Should it be possible to grant a licence jointly to two or more people (where this makes sense in terms of the activity to be regulated)?

For example, if the licence relates to activity on land or in a building, what is to happen where the land or building is jointly owned?

3.4 Are there to be any restrictions on the circumstances in which applications may be made?

4. Grant or refusal of application for licence

4.1 Should there be a discretion to grant a licence, or a duty to grant one (except in certain cases)?

• If a discretion, do any conditions need to be met in order for a licence to be granted? Are they matters of fact or opinion?
• If a duty, what are the cases where there is no duty to grant? Are they cases where there is a duty to refuse the application, or is there still a discretion to grant a licence?

4.2 What kinds of activity should a licence actually authorise, and to what extent should the activity be authorised?

For example, should a licence authorise:

• the whole range of the regulated activity,
• a certain sub-set of that activity (eg driving only certain types of vehicle, or entering into only certain kinds of credit agreement), or
• a particular example of the activity (eg a licence for a particular vehicle or for particular premises to be used as a house in multiple occupation)?

4.3 What should the duration of a licence be?

4.4 May conditions be imposed on the doing of the activity?

If so:

• What kinds of conditions?
• Should all the permitted conditions be set out in the legislation (so that the person granting the licence can or must choose between them), or should there be a wider discretion to impose conditions of their own devising (if so provide some examples of conditions - take particular care if a condition might confer a discretion on a person, eg by referring to things approved or specified by a person)?
• Should there be "standard" conditions which must be included in the licence, or are automatically included unless the authority decides otherwise?

4.5 What is the procedure for applications?

In particular:

• Should the applicant be entitled to prior notice of an intended refusal? Or to a hearing where it is proposed to refuse the application?
• Should the licensing authority be permitted or required to consult others about granting a licence?

See section 12 below for points to consider if third parties may have an interest.

5. Amendment of licences

5.1 Should amendments of licences be possible? If so, consider the following.

5.2 Should the licensee (ie the licence holder) be able to make an application for amendment?

5.3 Should the licensing authority be able to amend the licence on its own initiative?

5.4 Should someone other than the licensee or the licensing authority be capable of applying for it to be amended?

5.5 In relation to any application to amend:

• Should there be any restrictions on making applications?
• Should any conditions need to be met in order for the licence to be amended?
• Should the power to amend be unlimited or may the licence be amended only in certain ways and/or in certain circumstances?
• What is the procedure for considering applications for amendment of licences (see the questions above as regards the procedure for applications for licences)?

5.6 Similar questions arise as regards the making of amendments by the licensing authority of its own initiative. Additional questions (as regards procedure) in such a case are:

• Should there be a requirement to give the licensee notice of a proposed amendment?
• Should there be a requirement to give the licensee an opportunity to make representations about the proposed amendment?

6. Transfer of licences

6.1 Should it be possible for a licence to be transferred from one person to another?

If so:

• Should it be possible for an application be made for the transfer of the licence?
• Should there be any restrictions on making such applications?
• Should any conditions be met in order for the licence to be transferred?
• See the questions above about the procedure for considering applications for licences.

6.2 Does anything need to be said about situations where a person's property transfers by operation of law, eg the insolvency or death/dissolution of the licensee?

7. Suspension/revocation/surrender of licences

7.1 Should the licensing authority be able to suspend the licence?

If so:

• Should it be able to do so only on certain grounds (if so what are they)?
• Should there be any restrictions on the period for which a licence may be suspended (if so, can the period be extended and if so how)?
• What is the procedure for suspending the licence? In particular, does notice of a proposed suspension need to be given and does the licensee need to be given the opportunity to make representations about the suspension or proposed suspension?
• Should a suspension be capable of being lifted (otherwise than at the end of any fixed period of suspension), and if so how?
• What should the effect of suspension be (eg should the licence be treated as not existing for all purposes, or if fees are payable from time to time should they still be payable)?

7.2 Should the licensing authority be able to revoke the licence?

If so:

• Should it be able to do so only on certain grounds (if so what are they)?
• What is the procedure for revoking the licence? In particular, should there be a requirement to give notice of a proposed revocation and should the licensee be given the opportunity to make representations about the proposed revocation?
• Is any transitional provision needed in the event of a revocation (eg regarding activity which already underway when the licence is revoked and cannot easily be stopped)?

7.3 As regards suspension or revocation, should partial suspension or revocation be possible?

If partial revocation is to be possible, consider the potential for overlap between that and the amendment of a licence by the licensing authority of its own initiative.

7.4 Should the licensee be able to surrender the licence? If so:

• Are there to be any restrictions on this?
• What is the procedure for surrendering a licence?
• If there is a licence fee, is the licensee entitled to a pro rata refund?

8. Renewal of licences

8.1 If a licence is valid for a particular period, can it be renewed?

8.2 If so, in what respects (if any) should the process of renewal differ from the process of applying for a licence?

8.3 Does anything need to be said about the continuation of the licence while the renewal application is being processed (or is the idea that any renewal should occur before the end of the period for which the licence is valid)?

9. Fees

9.1 Are fees payable? If so, the following issues arise.

9.2 Are they payable in respect of applications and/or appeals?

9.3 Are they payable in respect of licences? If so, is there a one-off charge or is a fee payable in respect of each period (eg year), so long as the licence is in force?

9.4 How are the fees to be set?

• If in primary legislation, should there be a power to amend?
• If in subordinate legislation, what procedure?
• If less formally: should there be constraints on the power? Should there be a duty to (a) consult before setting the fee (b) publish the licensing authority's fee-setting policy (c) publish the amount of the fee?

9.5 Should it be possible to set different fees for different cases (if so, provide examples)?

9.6 What are the consequences of not paying a fee (eg If an annual fee is payable, should the licence be suspended or revoked? If so, should this occur automatically, or be a ground for suspension/revocation?)

9.7 Are there any restrictions (whether in EU law - for example under the services directive - or otherwise) as regards the amount of the fee, and if so does anything need to be said about this?

10. Appeals

10.1 Is there to be a right of appeal against any decision?

10.2 To which decisions is the right to apply?

10.3 Who may appeal?

10.4 To whom is the appeal to be made?

10.5 Should there be restrictions on appeals (eg time period, grounds etc)?

10.6 What powers should the appellate body (or person) have when hearing the appeal (may it only confirm or set aside the original decision, or should it be able to substitute its own decision)?

10.7 Does anything need to be said about the effect of the decision appealed against while the appeal is being considered (eg is the decision suspended)?

This needs to be considered especially in the case of a decision to revoke a licence if the consequence of revocation is that a business cannot continue in operation.

10.8 Consider what more (if anything) is needed to cater for procedural aspects of appeals (see also sections 11 and 12 below). For example, where the appeal is to an existing appellate body, do that body's powers need to be amended to cater for the new rights of appeal?

11. Applications and appeals: contents, form etc

11.1 What provision is wanted as to the contents and form of applications and appeals, and the way (or manner) in which they must be made?

11.2 Should applicants be required to provide copies of documents?

11.3 What provision is to be in primary legislation, what in subordinate legislation, and what requirements are to be imposed more informally (eg by the giving of a general direction)?

11.4 Should the licensing body be able to require an applicant to provide further information/documents? If so, should failure to comply entitle the licensing body not to proceed with the application and/or to refuse it?

11.5 Should the licensing authority be required to process applications within a time-limit? If so how is that requirement to be enforced?

12. Applications and appeals: interests of third parties

12.1 Do third parties have an interest in whether the licence is granted and/or any licence conditions?

Compare, for example, a TV licence with a licence to incinerate waste on a commercial basis.

12.2 If third parties may have an interest, consider:

• whether, and how, particular interested parties or the public at large should be informed when applications and/or appeals are made (eg should there be a duty to publish notice of the application/appeal);
• whether interested parties should be given the opportunity to make representations in relation to any application or appeal;
• whether any interested party should be able to appeal against the grant of a licence (or in respect of the conditions of a licence).

See also the questions above about the licensing authority consulting others.

13. Enforcement

13.1 How is the prohibition on undertaking the activity without a licence to be enforced?

13.2 Are any powers of entry, search or inspection required?

13.3 Are any powers of arrest or detention required?

13.4 Should there be a (criminal) offence? If so, should it be an offence simply to undertake the activity without a licence, or would acting in that way be a ground for issuing an enforcement notice or compliance notice (breach of which would be an offence)?

13.5 As regards any offence:

• set out the elements of the offence;
• state the mode of trial (summary only, indictment only, or either way);
• state the maximum penalty;
• indicate whether there is a desire for fixed penalty notices (if so, see the legislative solution for fixed penalty notices).

13.6 An alternative is a civil penalty regime – which would require similar analysis.

13.7 If the authority is to have power to impose conditions as part of the licence, how should those conditions be enforced? (Offence? Ground for revoking the licence?)

14. Publicity

14.1 Is anything wanted to enable the public to know whether a person has a licence (eg a requirement to display the licence at a place of business or to state the licence number in business documentation)?

14.2 Is there to be a register of licences, and if so what is it to contain and who may have access to it?

15. Objectives/guidance

15.1 Is there a desire to set out objectives that guide the whole system? If so, should they be set out in primary or subordinate legislation, or issued more informally?

15.2 Should someone have a power or duty to issue guidance as regards the operation of the licensing system? If so, should there be a duty to consult before issuing guidance? Is a duty to publish guidance required?

Examples of the legislative solution

Consumer Credit Act 1974 Part 3 (now replaced by regulations under the Financial Services and Markets Act 2000)

Road Traffic (Northern Ireland) Order 1981 Part 2 (driving licences)

Electricity Act 1989

Licensing Act 2003 (alcohol etc)

Gangmasters (Licensing) Act 2004

Gambling Act 2005

Licensing (Scotland) Act 2005 (alcohol)

Marine and Coastal Access Act 2009 Part 4 (marine licensing)

Scrap Metal Dealers Act 2013

Mobile Homes (Wales) Act 2013 Part 2

Licensing of Pavement Cafés Act (Northern Ireland) 2014

Housing (Wales) Act 2014 Part 1 (private sector housing: system of registration and licensing)

Air Weapons and Licensing (Scotland) Act 2015 Part 1 (certificates for air weapons) and Part 3 (taxis etc, metal dealers etc)

Houses in Multiple Occupation Act (Northern Ireland) 2016 Parts 2 and 3

Public Health (Wales) Act 2017 Part 4 (licensing of persons who carry out acupuncture, body piercing etc) (link to Bill)