2005 Chapter 16

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These notes refer to the Licensing (Scotland) Act 2005 (asp 16) which received Royal Assent on 21 December 2005

LICENSING (SCOTLAND) ACT 2005

EXPLANATORY NOTES

INTRODUCTION

1.     These Explanatory Notes have been prepared by the Scottish Executive in order to assist the reader of the Act and to help inform debate on it. They do not form part of the Act and have not been endorsed by the Parliament.

2.     The Notes should be read in conjunction with the Act. They are not, and are not meant to be, a comprehensive description of the Act. So where a section or schedule, or a part of a section or schedule, does not seem to require any explanation or comment, none is given.

THE ACT

3.     The Act is in 9 Parts.

4.     These are:

• Part 1 - Core provisions

• Part 2 - Licensing bodies and officers

• Part 3 - Premises licences

• Part 4 - Occasional licences

• Part 5 - Licensed hours

• Part 6 - Personal licences

• Part 7 - Control of order

• Part 8 - Offences

• Part 9 - Miscellaneous and general

5.     Commentary explaining the changes introduced by each Part is provided below. The main legislation which currently governs licensing in Scotland is the Licensing (Scotland) Act 1976 (c.66) as amended and the Licensed Premises (Exclusion of Certain Persons) Act 1980 (c.32). The Act repeals this legislation.

COMMENTARY ON PARTS

PART 1 - CORE PROVISIONS

Section 1 - Prohibition of unlicensed sale of alcohol

6.     This Act makes provision for regulating the sale of alcohol, and for regulating licensed premises and other premises on which alcohol is sold. Section 1 establishes that a licence is required to sell alcohol unless the premises are exempt as defined in section 124.

Section 2 - Meaning of "alcohol"

7.     This section provides an interpretation of the term "alcohol" for the purposes of this Act.

Section 3 - Certain supplies of alcohol to be treated as sales

8.     This section provides for certain supplies of alcohol to be treated as sales of alcohol for the purposes of this Act. This ensures that those supplies would come under the provisions of the new licensing regime. Two types of supply are covered.

9.     The first is supplies by clubs to their members. Members' clubs are owned by their members. This means that the members own the stock and they do not need to sell the alcohol to themselves. But this provision ensures that the supplies are treated as sales so that the club still needs a premises licence.

10.     The second type of supply is one in which the alcohol is supplied in pursuance of a contractual right. For example, some hotels or resorts may offer "all inclusive" packages under which the price paid for the stay at the hotel or resort includes unlimited supplies of "free" drink. This provision ensures that the supply of alcohol under such packages is treated as a sale so that the hotel or resort, or at least the bar in the hotel or resort, requires a premises licence.

11.     The second set of circumstances might also cover arrangements under which alcohol is supplied at a bar in exchange for a voucher or token which is bought elsewhere. The supply at the bar will be treated as a sale so that the bar needs a premises licence.

Section 4 - The licensing objectives

12.     This section establishes 5 high level "licensing objectives" that represent the values on which the Scottish licensing system would be based, the parameters against which everyone would measure the elements of that system and the solid foundation which local authority Licensing Boards must have regard to in carrying out their functions under the Act.

PART 2 - LICENSING BODIES AND OFFICERS

Section 5 - Licensing Boards

13.     Licensing Boards were introduced by the Licensing (Scotland) Act 1976 and subsection (1) of this section retains them. There will continue to be a Board for each council area or, where a council area has been divided into licensing divisions, a Board for each division. The Boards will continue to be made up of local authority councillors elected by the local authority.

14.     Subsection (2) provides that where local authorities consider it appropriate to do so, they may split their area up into licensing divisions in the future.

15.     Subsection (3) sets out the consequences of establishing licensing divisions. This includes the requirement that for each of those division areas, a separate Licensing Board would have to be established and that where this occurs the existing Licensing Board for that local authority would be dissolved. The provision of licensing divisions is a continuation of the current procedure under the Licensing (Scotland) Act 1976.

16.     Subsection (4) allows for licensing divisions to be merged back into a single area so that there is a single Board for the whole area. Subsection (5) provides for the consequences of such a merging of divisions.

Section 6 - Statements of licensing policy

17.     Subsection (1) places a duty on Licensing Boards to publish what is to be known as a "licensing policy statement" for their area for a 3-year period. This statement would offer guidance and clarity on the policy on which Licensing Boards would base their decisions in implementing their functions under the Act. This is particularly important for a system which is likely to have quite a high degree of local flexibility in terms of the discretion given to Licensing Boards.

18.     Subsection (2) provides that Boards have a power to issue a supplementary statement within that 3-year period. It is intended that this supplementary power would cover new or unanticipated issues.

19.     Subsection (3) places a duty on Boards, when preparing their policy statements to ensure that the statements promote the 5 licensing objectives set out in section 4 and to consult on their proposed policy statements with those persons listed in paragraph (b)(i) to (iii).

20.     Subsection (7) allows Scottish Ministers to specify the date by which Boards must prepare their first policy statement under the new regime.

Section 7 - Duty to assess overprovision

21.     Subsection (1) places a duty on Licensing Boards to make a pro-active assessment of overprovision of licensed premises in their area as part of their policy statements. There would also be flexibility for Boards to decide, for any locality, whether there was overprovision generally in relation to licensed premises or only in relation to a particular identifiable sector.

22.     Subsection (2) provides that Boards would themselves determine what amounts to a "locality" for this purpose. This is as flexible as possible to reflect the very different pressures which may apply in different geographical areas throughout the country.

23.     Subsection (3) places a duty on Boards when considering their policy on overprovision to have regard to those matters specified and to consult with those persons listed in subsection (4).

24.     Premises which have only an occasional licence are to be left out of the assessment of overprovision.

Section 8 - Applicants attempting to influence Board members

25.     This section makes it an offence for anyone who has submitted an application under the Act to attempt to influence in their favour a member of the Licensing Board at any time. Subsection (2) establishes how the Board should proceed where a prosecution for an offence under this section has been brought against an applicant.

Section 9 - Licensing Board's duty to keep a public register

26.     This section places a duty on Licensing Boards to keep a licensing register containing the information set out in subsection (1)(a) to (c). Subsection (2) provides that Scottish Ministers may regulate the type of information required and the form in which it is kept.

Section 10 - Local Licensing Forums

27.     Subsection (1) places a duty on each council to establish a Local Licensing Forum for its area. The establishment of these forums is new and should enhance the local Board's awareness of both the beneficial and detrimental impact of their policies in particular on the local community and on local trade. Where a local authority has split their area into separate licensing divisions, subsection (2) allows for the establishment of a separate Local Licensing Forum for each of those divisions.

28.     Subsection (3) provides that there should as a minimum be at least one formal annual meeting between the Board and the local Forum. This is important to ensure that a relationship is established between these bodies.

Section 11 - General functions of Local Licensing Forums

29.     This section establishes the general function of Local Licensing Forums. The role of the Local Licensing Forum is to comment on the Board's general policy approach and not to comment on individual licence applications.

Section 12 - Licensing Boards' duties in relation to Local Licensing Forums

30.     This section establishes duties on Boards to have regard to the Forums' advice, to provide any statistical information that the Forums may request from them and to present reasons why they have followed a different route from that recommended by the Forum.

Section 13 - Licensing Standards Officers

31.     Subsection (1) places a duty on local authorities to appoint one or more officers to be known as Licensing Standards Officers ("LSOs") whose general statutory functions are those set out in section 14 of the Act. This is a new role. The Civic Government (Scotland) Act 1982 empowers the police and authorised officers of licensing and fire authorities to enter and inspect premises, vehicles or vessels of a licence holder or applicant for a licence. With respect to liquor licensing, however, there is currently no such provision. Subsection (2) further provides that local authorities may share the use of LSOs across their boundaries.

Section 14 - General functions of Licensing Standards Officers

32.     Subsection (1) establishes the general functions of Licensing Standards Officers and those are set out in paragraphs (a) to (c). LSOs do not act as policemen with regard to licensing, but they will liaise with the police and other relevant officials such as environmental health officers in ensuring the licensing objectives are adhered to and solutions found to problems involving licensed premises. LSOs will act as a source of advice and guidance for licensees and for the community; mediate between communities and the trade or between any two parties where there is a need to resolve a local problem and develop a local solution and supervise compliance with licence conditions by the relevant licence holders.

33.     Subsection (2) sets out in more detail the power of the LSO to deal with a breach of licence conditions by issuing a written warning to the licence holder and making a referral to the Licensing Board for review of the licence.

Section 15 -Powers of entry and inspection

34.     Subsections (1) and (2), give LSOs power to enter and inspect licensed premises to establish compliance with the premises or occasional licence and any other requirements of the Act.

35.     Subsections (3) and (4) place a duty on licence holders and those managing and working on premises to co-operate with and assist the LSOs in the performance of their functions and to provide any information or documents requested by the LSO.

36.     Subsection (5) provides that any person referred to in subsection (4) who fails to assist or who obstructs the Licensing Standards Officer would be guilty of an offence.

Section 16 - Training of Licensing Standards Officers

37.     This section allows Scottish Ministers to prescribe mandatory training requirements with which Licensing Standards Officers must comply. In particular, Scottish Ministers will have power to accredit both course content and course providers.

PART 3 - PREMISES LICENCES

Section 17 - Premises licence

38.      This section introduces the new premises licence. This replaces the seven different types of licences under the current legislation. The Act provides that anyone wishing to sell alcohol on any premises, subject to the exceptions set out in the Act, has to hold a premises licence.

Section 18 - Meaning of "appropriate Licensing Board"

39.     This section provides that for the purposes of premises licences, the "appropriate Licensing Board" for any premises is the Board in whose area the premises are situated (or mainly situated). If premises straddle two or more areas equally, applicants can nominate one of the Licensing Boards in question to act as the relevant Licensing Board. The effect of this section is to identify the Board which will carry out licensing functions in relation to premises licences.

Section 19 - Meaning of "premises manager"

40.     This section introduces the term "premises manager". Each premises licence will have to specify the premises manager for the premises. Subsection (2) ensures that a person can only be the designated premises manager for one licensed premises.

Section 20 - Application for premises licence

41.     Under subsection (1) any person, which includes corporate and unincorporated bodies and statutory bodies as well as individuals, can apply for a premises licence. However, if an individual wants a licence, he or she will need to be 18 or over. Under subsection (2) the application for a premises licence must be accompanied by a draft of the applicant's proposed operating plan and a layout plan for the premises. These plans will provide Licensing Boards and local communities with a clear indication at the time of the licence application of what activities will be undertaken on the premises. Applications will also have to be accompanied by certain certificates relating to planning, building control and food hygiene (see section 50 of the Act).

42.     Subsection (4) provides for the form and content of operating plans to be set out in regulations. However, this subsection lists a number of specific requirements as to the content of operating plans, including the proposed opening hours, any other activities in addition to the sale of alcohol and the position with regards to allowing the entry of children to a licensed premises.

43.     Subsection (5) clarifies that premises may sell alcohol for consumption both on and off the premises and that the times during which alcohol is to be sold nay differ between the two.

Section 21 - Notification of application

44.     This section places a duty on Licensing Boards to notify those persons specified in subsection (1) (a) to (e) of all applications they receive for premises licences. This is a new duty and a change from what was previously provided for in the Licensing (Scotland) Act 1976.

45.     Licensing Boards must notify the chief constable of all applications for premises licences. Subsection (3) places a duty on the chief constable to respond to the Licensing Board by giving certain notices within a period of 21 days. This procedure is intended to ensure that checks are made for the existence or otherwise of any convictions for relevant or foreign offences that any applicant or those connected with the applicant may have. Section 129 provides for "Relevant offences" to be set out in regulations. "Foreign offences" are offences under the laws of countries other than Scotland which correspond to relevant offences. Section 147(2) sets out who is a "connected person" in relation to a company, partnership or club. This ensures that checks are carried out on the persons in control of these bodies as well as the bodies themselves.

46.     Subsection (3) further provides that the chief constable must, within 21 days of notification of a new premises licence application, submit a report to the Licensing Board regarding antisocial behaviour which has taken place on or in the vicinity of the premises and all complaints about such behaviour.

Section 22 - Objections and representations

47.     This section is wider than the provisions in the Licensing (Scotland) Act 1976 relating to persons who have a statutory right to make objections and representations in relation to applications for premises licences. Any person (whether an individual or a corporate or unincorporated body) may object or make representations provided that, as noted in section 21(3), this is not considered by the Board to be vexatious or frivolous.

48.     Subsection (2) allows the chief constable, in whose area an application for a premises licence has been made, a limited right to object to an application on the grounds that the applicant or a connected person is involved in serious organised crime. The chief constable may then, for the purposes of the crime prevention licensing objective, recommend refusal of the application.

Section 23 - Determination of premises licence applications

49.     This section sets out the procedure that Licensing Boards must adopt when they receive an application for a premises licence. It provides both for the circumstances where a Licensing Board proposes to grant a premises licence and where it proposes to refuse a premises licence.

50.     Subsection (5) sets out the grounds on which a Licensing Board may refuse a premises licence application. Those grounds are set out in paragraphs (a) to (e). One of the grounds relates to consistency with the licensing objectives. When considering the impact on the crime prevention objective in particular, the Board must pay particular attention to any convictions for relevant or foreign offences of which they have been notified by the chief constable and any recommendation as to refusal of the application which the chief constable may have given. However, the existence of convictions does not preclude the board from granting the licence.

Section 24 - Applicant's duty to notify Licensing Board of convictions

51.     This section places a duty on anyone applying for a premises licences to notify the Licensing Board of any convictions obtained whilst the application is pending. Any convictions obtained before the application is made will be brought to the attention of the Licensing Board by the Chief constable under section 21(4)(b)(i). Once an application has been granted, the Licensing Board will be made aware of any relevant convictions of a personal licence holder by the court making the conviction (see section 42).

Section 25 - Further application after refusal of premises licence application

52.     This section provides that, where a Licensing Board has refused an application for a premises licence, a subsequent application in respect of the same premises cannot be made within one year of that refusal.

53.     This section permits Licensing Boards, at the time of the initial refusal, to dispense with the one year limit, or where the limit has not been dispensed with, nonetheless to consider granting a re-application within the one year period where there has been a material change of circumstances.

Section 26 - Issue of licence and summary

54.     This section requires Licensing Boards, where they grant an application for a premises licence, to issue the applicant with a licence and a summary of the licence. The section also makes provision as to the form and content of the licence and summary. Subsection (2) sets out the minimum information which must be contained in the licence.

Section 27 - Conditions of premises licence

55.     This section provides that all premises licences will be subject to those mandatory conditions set out in schedule 3 to this Act, unless schedule 3 provides otherwise. The application of these mandatory conditions is intended to ensure national consistency on those matters specified in schedule 3.

56.     Subsections (2) and (5) provide a power for the Scottish Ministers to set out such further national mandatory or discretionary conditions to be attached to premises licences as they think are needed for the purposes of the five licensing objectives established by this Act.

57.     Subsections (3) and (4) place a duty on Scottish Ministers to set out by regulations additional mandatory licence conditions for all premises open after 1.00am.

58.     Subsection (6) provides a power for Licensing Boards to impose additional licence conditions to those ones to which the licence may be subject by virtue of subsections (1) to (3). This power could be used in circumstances where additional conditions were needed for the purposes of any of the five licensing objectives established by the Act and where some other form of activity not covered by schedule 3 was being undertaken on the premises. However, under subsection (7) a Board may only impose additional licence conditions which do not run counter to the effect of national conditions, and which do not attempt to alter or add to those conditions to make them more onerous or restrictive.

59.     Subsections (8) and (9) make clear the types of conditions which can be prescribed by Scottish Ministers and imposed by Licensing Boards. These can cover both the sale of alcohol and any other activity carried out on the premises.

60.     Subsection (10) provides a limitation on Licensing Boards' powers under any provision of this Act to vary the conditions of a premises licence to only those conditions provided for by this section.

Section 28 - Period of effect of premises licence

61.     This section establishes the maximum duration for any premises licence issued under the Act. The Licensing (Scotland) Act 1976 required licences to be renewed every 3 years. Premises licences under this Act would remain in effect indefinitely as long as the premises in question continue to be used for the purpose or purposes for which the licence was granted. However, the licence can be revoked if conditions are breached and the licence also ceases to have effect if the holder dies, becomes incapable, or insolvent unless a transfer is made under section 34. A licence holder may also choose to surrender a licence.

62.     Subsection (7) sets out circumstances under which a licence holder becomes insolvent for the purposes of this Act.

Section 29 - Application to vary premises licence

63.     This section permits premises licence holders to apply, to the Licensing Board which originally granted the licence, for variations to the terms and conditions of the premises licence. This is a change to the regime under the Licensing (Scotland) Act 1976 which made no provision for variations to licence. Subsection (2) provides that where practicable all applications must be accompanied by the paper version of the premises licence,.

64.     Subsection (4) provides that the duty placed on Licensing Boards under sections 21 and 22 of the Act also applies to applications under this section for variations to premises licences. This is to ensure that all those persons who have a statutory right to be notified, are notified of the proposed variation and that any such person may make representations and objections to the variation.

65.     Subsection (5) explains what is meant by a "variation". It includes any change to the operating plan. Subsection (6) provides for certain variations to be classed as "minor variations", which are dealt with less formally, and must be granted by the Licensing Board by virtue of section 30(2)

Section 30 - Determination of application for variation

66.     This section establishes the procedure that Licensing Boards must adopt when they are considering an application for a variation to a premises licence applied for under section 29 of the Act.

67.     Subsection (3) places a duty on Licensing Boards to hold a hearing when considering an application for a variation to premises licences (other than a minor variation which must be granted).

68.     Subsections (4) provides that the Licensing Board's decision must be based on the statutory grounds for refusal which are set out in subsection (5). These are similar to the grounds for refusal of an application for a licence.

69.     Subsection (6) provides a power for a Licensing Board to make its own additional variations to the licence conditions where it grants the variation applied for.