Section 105 - Purchase of alcohol by or for a child or young person

216.      Subsection (1) makes it an offence for a child or young person to buy or attempt to buy alcohol whether or not on licensed premises.

217.     Subsection (2) gives the child or young person immunity from committing an offence under this section where the child or young person is taking part in test purchasing authorised by a chief constable.

218.     Subsection (3) places an obligation on the chief constable to avoid any risk to the welfare of the child or young person who has been authorised to buy or attempt to buy alcohol.

219.     Subsection (4) makes it an offence for an adult to act as an agent for a child or young person in purchasing or attempting to purchase alcohol (for example, if a child gives money to an adult to buy alcohol on their behalf). It is also an offence to buy alcohol for a child or young person to consume on relevant premises. The offence also applies where a member of a club has alcohol supplied to a child or attempts to do so.

220.     Subsection (5) provides that it is not an offence to buy beer, wine, cider or perry for a person aged 16 or 17 to consume with a table meal on relevant premises.

Section 106 - Consumption of alcohol by a child or young person

221.     Subsection (1) makes it an offence for a child or young person knowingly to consume alcohol on relevant premises.

222.     Subsection (2) also makes it an offence for a responsible person knowingly to allow the consumption of alcohol by a child or young person on relevant premises.

223.     Subsection (3) provides that the offences in this section will not be committed where a 16 or 17-year-old consumes beer, wine, cider or perry with a meal.

Section 107 - Unsupervised sale of alcohol by a child or young person

224.     This section makes it an offence for a responsible person knowingly to allow a child or young person to sell, supply or serve alcohol, unless the alcohol is for consumption off the premises or is for consumption with a meal and (in either case) the sale is specifically authorised by someone aged 18 or over.

Section 108 - Delivery of alcohol by or to a child or young person

225.     This section relates to off-sales. Subsections (2) and (3) make it an offence for any responsible person to allow someone under the age of 18 to deliver alcohol from such a premises or to deliver (or allow to be delivered) alcohol to someone under 18.

226.     Subsection (4) provides for an exemption. Delivery by a child or young person is not an offence where the child or young person delivering or taking delivery works at the relevant premises, or at the place of delivery, in a capacity which includes the delivery of alcohol. An example of this would be where a young person is helping out in a family business, or works at a reception desk at the place of delivery.

227.      Subsection (5) establishes a defence to the offences in subsections (2) and (3)(a) (allowing delivery to a child or young person), namely that the person accused took all necessary precautions to avoid committing the offence. Subsection (8) establishes a defence for the offence in subsection (3)(b) (delivering to a child or young person). It is a defence to show that the person making or allowing the delivery had been shown documents bearing to be proof of age of the child or young person. Those types of documents which are acceptable for this purpose are set out in subsection (7).

Section 109 - Sending a child or young person to obtain alcohol

228.     This section makes it an offence to send a child or young person to obtain alcohol which is sold for consumption off the premises. This offence covers, for example, circumstances where a parent sends his or her child to an off-licence to collect some alcohol which has been bought over the telephone.

229.     Subsection (2) provides that the offence will be committed regardless of whether the child or young person is sent to the actual premises from where the alcohol is sold or supplied, or whether he is sent to other premises to which the alcohol has been sent.

230.     Subsection (3) provides that the offence will not be committed where the child or young person works at the premises in question and his or her job involves taking deliveries of alcohol.

Section 110 - Duty to display notice

231.     This section makes it a statutory requirement that there be displayed on all relevant premises (defined in section 147) in a prominent place at all times a notice stating that it is an offence for a person under the age of 18 to buy or attempt to buy alcohol on the premises or for a person to buy alcohol on their behalf. The notice must also contain a statement as to the "no proof - no sale" requirement.

232.     The form and size of the notice will be set out in regulations.

233.     Subsection (4) makes it an offence for anyone specified in subsection (5) relating to the premises in question, not to display such a notice.

Section 111 - Drunk persons entering or in premises on which alcohol is sold

234.     This section makes it an offence for a drunk person to attempt to enter any relevant premises (defined in section 147 - basically any premises on which alcohol is lawfully sold). It also makes it an offence for a person, whilst on relevant premises, to be drunk and incapable of taking care of himself or herself. A person committing an offence under this section can be arrested without warrant by the police.

Section 112 - Obtaining of alcohol by or for a drunk person

235.     This section makes it an offence for any person to buy or attempt to buy alcohol for someone who is drunk or to help a drunk person to obtain or consume alcohol. The offences only apply where the alcohol is to be consumed on relevant premises.

Section 113 - Sale of alcohol to a drunk person

236.     This section makes it an offence for any responsible person working on relevant premises to sell alcohol to someone who is drunk.

Section 114 - Premises manager, staff etc. not to be drunk

237.     This section makes it an offence for any responsible person (ie the premises manager and anyone else who works on relevant premises) to be drunk on the premises.

Section 115 - Disorderly conduct

238.     Subsection (1) makes it an offence for any person to behave in a disorderly manner or to annoy others with offensive language on relevant premises.

239.     Subsection (2) makes it an offence for any responsible person in relation to relevant premises to allow disorderly conduct on the premises. Subsection (3) provides a "due diligence" defence for a person charged with an offence under subsection (2).

240.     Subsections (4) and (5) confirm the penalties for offences committed under this section.

Section 116 - Refusal to leave premises

241.     This section makes it an offence for a disorderly person to refuse to leave relevant premises when asked or for any person to refuse to leave licensed premises at closing time when asked. Subsection (3) allows certain authorised persons to use reasonable force to remove from any premises on which alcohol is sold a person who is behaving in a disorderly manner but refuses to leave when asked. "Authorised persons" is defined in subsection (6)

Section 117 - Offences relating to sale of alcohol to trade

242.     This section makes it an offence for a person to sell alcohol to trade otherwise than from premises used exclusively for the purpose of selling to trade (whether such sale is solely of alcohol or not).

Section 118 - Prohibition of sale of alcohol on moving vehicles

243.     This section deals with, for example, "party buses" and "stretch limousines" that currently provide alcohol. It makes it an offence for any person to knowingly sell alcohol on any vehicle whilst it is moving unless authorised to do so. "Vehicle" is defined in section 147 and basically means any road vehicle.

Section 119 - Delivery of alcohol from vehicles etc.

244.     This deals with deliveries of alcohol and would provide that all such deliveries and carrying of alcohol in vehicles is properly and clearly recorded.

Section 120 - Prohibition of late-night deliveries of alcohol

245.     This section deals with off-sales and makes it an offence for anyone who works on these licensed premises to deliver alcohol between 12 midnight and 6 am and also an offence for any responsible person to allow such a delivery.

Section 121 - Keeping of smuggled goods

246.     This section makes it an offence knowingly to keep or allow to be kept on any licensed premises any illegally imported goods.

247.     Subsection (3) provides a power for the courts to order the forfeiture or destruction of goods kept in breach of subsection (1).

PART 9 - MISCELLANEOUS AND GENERAL

Section 123 - Excluded premises

248.     This section provides that those premises described in subsection (2) are excluded from the new licensing regime, and consequently the sale of alcohol would not be permitted on these premises. Paragraph (a) is intended to cover motorway service areas and paragraph (b) covers petrol stations and garages.

249.     Subsection (5) provides that garage premises which are a principal local source of fuel or groceries are not excluded premises and can therefore apply for a licence to sell alcohol

250.      Subsection (6) provides a power for the Scottish Ministers to amend the list of excluded premises by way of regulations.

Section 124 - Exempt premises

251.     This sets out those premises which are to be exempt from the requirement to hold a licence under the Act. An "examination station" at any airport is basically the area beyond the security check-in.

252.     Subsection (1)(d)(ii) provides a specific exemption for ferries while engaged on a domestic journey. 'Ferry service' is defined in subsection (4).

Section 125 - Special provisions for certain clubs

253.     This section deals with clubs. Part VII of the Licensing (Scotland) 1976 Act regulates clubs by virtue of registration granted by a sheriff. This system was first introduced by the Licensing (Scotland) Act 1903. That system is repealed by the Act. Instead, the general licensing regime will apply to clubs as it applies to other premises, subject to the provisions in this section.

254.     Subsection (1) provides a power for the Scottish Ministers to prescribe categories of clubs that would be exempt from the application of those provisions of the Act listed in subsection (2). The general effect is that such clubs would not need to have a premises manager and the overprovision ground of refusal would not apply. Subsection (3) permits the Scottish Ministers to prescribe different descriptions of clubs for the purposes of different provisions set out in subsection (2).

255.     Subsections (4) confers power on the Scottish Ministers to provide for further modifications of the Act as it applies to such categories of clubs as they may specify.

Section 126 - Vessels, vehicles and moveable structures

256.     "Premises" for the purposes of the Act includes vessels, vehicles and other moveable structures. In the case of vessels, this section effectively provides for the "home port" of the vessel to be treated as the place where it is situated. That means, for example, that it will be the Licensing Board for that port that would have jurisdiction to grant a licence for the vessel.

257.     In the case of vehicles and other moveable structures, the effect of this section is that, where alcohol is to be sold on or from the vehicle etc. while it is parked somewhere, a separate licence will be needed for each such place.

258.     This section also makes special provision for the licensing of moving vehicles and other moveable structures. Subsection (5) sets out which Licensing Board will be responsible for licensing such premises. Subsection (6) exempts moving premises from certain requirements of the Act which are only necessary for buildings: notification to neighbours, the community council and the fire authority, requirement to provide certificates relating to planning, building control and food hygiene.

259.      In addition, vessels are exempted from the requirements to notify neighbours and the fire authority, and to provide certificates relating to planning, building control and food hygiene.

Section 127 - Power to prohibit sale of alcohol on trains

260.     Subsections (1) and (2) provide for the prohibition of the sale of alcohol at specified stations or on any train travelling between specified stations for a specified period. An order made under this section may be made by a sheriff on application by a senior police officer, if the sheriff is satisfied that the order is necessary for the prevention of disorder.

261.     Subsection (3) requires the senior police officer who applied for the order to serve a copy of the order on the train operator or operators concerned.

262.     Subsection (4) makes it an offence for anyone knowingly to sell alcohol, or to permit its sale, in contravention of such an order.

Section 128 - Power to prohibit sale of alcohol on ferries

263.     This section creates a power for the Police, on application to a sheriff, to prohibit the sale of alcohol on specified vessels which are part of a ferry service. This mirrors the power in section 127 of the Act in relation to trains. This power can be used to prevent the sale of alcohol on either a particular journey or a particular route.

Section 129 - Relevant offences and foreign offences

264.     This section provides a definition of the term "foreign offence" for the purposes of this Act and provides a power for the Scottish Ministers to set out by way of regulations a list of "relevant offences" for the purposes of this Act.

265.     Subsection (3) allows the persistent commission of a lower level offence - which would not by itself be sufficiently serious - to amount to a "relevant offence". Convictions for a "relevant offence" may result in refusal by the Board to grant a licence or the review of a licence. One of the uses to which this regulation making power is intended to be put is to make additional links between the Licensing Act and the Smoking, Health and Social Care (Scotland) Act 2005 (asp 13).

Section 130 - Effect of appeal against conviction for relevant or foreign offence

266.     This section provides that the duties placed on Licensing Boards under this Act relating to relevant and foreign offences may still be carried out if the conviction is subject to appeal but the Board has discretion to postpone any action it has decided to take.

267.     Subsection (3) provides that the Board's actions will have no effect if the conviction is overturned on appeal.

Section 131 - Appeals

268.     This section provides that any decision of a Licensing Board specified in schedule 5 of this Act may be appealed against by way of stated case to either the sheriff or the sheriff principal, as appropriate.

269.     Subsection (2) sets out the circumstances in which cases will be determined by either the sheriff or the sheriff principal.

270.     Subsection (3) establishes the grounds on which appeals could be made.

271.     Subsection (5) sets out the powers of the sheriff or sheriff principal where an appeal made under this section is upheld.

Section 132 - Appeals: supplementary provisions

272.     This section sets out those procedural matters relating to appeals made under section 131 and provides that any further procedural matters that might be required may be prescribed by Act of Sederunt.

273.     Subsection (8) allows the sheriff principal to recall (pending the outcome of the appeal) any decision of the Licensing Board which has resulted in the suspension or revocation of a premises licence, if he considers it appropriate to do so on the balance of convenience.

Section 133 - Hearings

274.     This section provides that any hearing held under the provisions of this Act must be held at a meeting of the Licensing Board. It also provides a power for the Scottish Ministers to make regulations to set out all other procedural matters relating to any hearing held under the provisions of this Act including those matters set out in subsection (3).

Section 134 - Form etc. of application and notices

275.     This section provides a power for the Scottish Ministers to make regulations that set out the form and content of applications and notices made or given under the Act and the manner in which they are to be made or given.

Section 135 - Power to relieve failure to comply with rules and other requirements

276.     This section provides a power for Licensing Boards to overlook any procedural failing and thus enable them to deal with applications etc. despite procedural requirements not having been met.

Section 136 - Fees

277.     This section provides a power for the Scottish Ministers to make regulations to enable fees to be charged by Licensing Boards.

278.     Subsection (3) places a duty on the Scottish Ministers to consult with those persons listed in paragraphs (a) and (b) before making any such regulations under this section.

279.     Subsection (4) establishes that a Licensing Board need not carry out any of its functions relating to the application for which fees are payable until they are paid. Subsections (5) and (6) set out who fees should be payable to. Ultimately, fee income will be paid over to the councils.

Section 137 - Inspection of premises before grant of licence etc.

280.     This section provides a power for Licensing Standards Officers and the police to enter premises at any time in those circumstances linked to a relevant application or review, provided for in subsection (1), and if necessary to use reasonable force to do so. This is for the purposes of assessing the likely effect on the promotion of the licensing objectives of the grant of the application or the effect of the sale of alcohol under the licence. It also provides that anyone preventing those persons from undertaking this task will be guilty of an offence.

Section 138 - Police powers of entry

281.     This section provides that a constable has a lawful right of entry to any licensed premises and to any other premises on which the constable has reason to believe alcohol is being sold in breach of section 1(1) of the Act

282.     Subsection (4) establishes the conditions under which a police officer below the rank of inspector may enter the premises.

283.     Subsection (5) makes it an offence for anyone to obstruct the police in the carrying out of their functions under this section.

Section 139 - Remote sales of alcohol

284.     This section deals with situations where alcohol is delivered from a different place from that in which the order for the alcohol is placed. Subsection (1) and (2) provide that where the place of despatch is in Scotland, the sale is treated as having happened at that place. For example, when alcohol is bought via mail order or a telephone call centre and sent out for delivery from a separate warehouse, the sale is, for the purposes of this Act, treated as having taken place at the warehouse and not the call centre. The requirement for a premises licence would, therefore, applies to the warehouse rather than the call centre.

285.     Subsections (3) and (4) provide a power for the Scottish Ministers to provide for the regulation of the converse scenario i.e. where the alcohol is ordered in Scotland but delivered from a warehouse outside Scotland.

Section 140 - Presumption as to liquid contents of containers

286.     This section establishes a presumption relating to the contents of a container. This essentially means that, for the purposes of a trial for an offence under the Act, any liquid found in a container is to be presumed to be the liquid that the label on the container suggests it is. This section replicates what was previously provided for in the Licensing (Scotland) Act 1976 relating to such matters.

287.     Under subsection (4) the presumption can be rebutted, but notice of intention to lead evidence to rebut the presumption must be given. The prosecution or defence may wish to rebut the presumption. For example, the defence may want to prove that the contents of what appears to be a bottle of alcohol was not in fact alcohol and the prosecution may want to prove that the contents of what appears to be a bottle of coca cola was in fact alcohol.

Section 141 - Offences by bodies corporate etc.

288.     This section deals with offences committed by companies, partnerships and other bodies. It effectively provides for certain persons responsible for the management or control of these bodies to share criminal responsibility for offences committed with their consent or connivance or due to their neglect.

Section 142 - Guidance

289.     This section provides a power for the Scottish Ministers to issue guidance to Licensing Boards. It also allows the Scottish Ministers to modify any guidance given by them. Subsection (5) places a duty on the Scottish Ministers to lay a draft of the first set of guidance to Licensing Boards before the Parliament and confirms that the guidance would be subject to the affirmative resolution parliamentary procedure. Subsection (6) provides that any subsequent guidance issued must be laid before the Parliament.

Section 143 - Crown application

290.     This section makes it clear that the provisions of the Act apply to Crown bodies as they apply to everyone else. So, for example, a licence is required for the sale of alcohol on any properties managed by Historic Scotland.

Section 144 - Modification of enactments

291.     This section introduces schedule 6 of the Act which contains modifications of enactments.

Section 145 - Ancillary provision

292.     This section allows the Scottish Ministers to make ancillary provision in statutory instruments in consequence of this Act. This power will, for example, be used to make transitional provision and further consequential modifications.

Section 146 - Orders and regulations

293.     This sections sets out the parliamentary procedure in relation to orders and regulations made by the Scottish Ministers under the provisions of the Act.

Section 147 - Interpretation

294.     This section defines certain terms used throughout this Act.

Section 148 - Index of defined expressions

295.     This section provides an index indicating where definitions of specific terms used throughout the Act can be found.

Section 149 - Repeals

296.     This section introduces schedule 7 to the Act which contains repeals of enactments.

Section 150 - Short title and commencement

297.     This section provides for commencement by order.

SCHEDULE 1

298.     This schedule sets out procedural matters relating to the membership and other administrative matters for Licensing Boards provided for by section 5 of the Act.

299.     Paragraph 1 provides for the maximum and minimum numbers of members of Licensing Boards and that they should be councillors and provides for the membership of Boards for Licensing Divisions.

300.     Paragraph 2 sets out the arrangements for the election of Licensing Boards by local councils and includes provision on elections to fill vacancies.

301.     Paragraph 3 provides the circumstances in which councillors will be disqualified from membership of Licensing Boards.

302.     Paragraph 4 establishes the duration for membership of Licensing Boards and also provides that a member may seek re-election, or resign at any time, and also sets out the circumstances when a member would cease to hold office. Paragraph 5 provides for the removal of members.

303.     Paragraph 6 makes provision for the election of a convener for each Licensing Board. It establishes the duration of office of the convenor, including eligibility for re-election. It provides that the convener may resign at any time and also provides when he or she would cease to hold office. Paragraph 7 makes provision for the removal of the convener.

304.     Paragraph 8 requires the local councils to appoint clerks for the Licensing Boards and to provide other staff, property and services that are required to enable the Boards to carry out their functions. Paragraph 9 enables the Board to establish committees.

305.     Paragraph 10 provides a power for Licensing Boards to delegate their functions under this Act, apart from those functions set out paragraph 10(2), to any of those persons listed in paragraph 10(1).

306.     Paragraph 11 makes it mandatory under this Act for all members of Licensing Boards to undertake the required training within 3 months of appointment and that they cannot take part in any Board proceedings until they have undertaken the required training. Failure to do so will result in the member of the Board having to leave office. It also provides a power for the Scottish Ministers to make regulations prescribing the training requirements.

307.     Paragraph 12 establishes the procedure that Licensing Boards have to operate when conducting meetings of the Boards including the required quorums for meetings. A power is provided for the Scottish Ministers to make regulations that would set out further provisions relating to proceedings of Licensing Boards. Any other matters not so provided for would be determined by Licensing Boards themselves by way of rules.

308.     Paragraph 14 makes transitional provision. It provides that existing members of Licensing Boards elected under the provisions of the Licensing (Scotland) Act 1976 would continue to hold office until the new elections are held. This would ensure continuity of membership until such time as this Act comes into force and new members are elected following the first local government elections held whilst this Act is in force.