The Licensing (Scotland) Act 2005: consultation on occasional licences

The Licensing (Scotland) Act 2005 – Consultation on reviewing the fee for occasional licences and considering a limit on the number and duration of occasional licences

Background

1. Alcohol licensing in Scotland is principally regulated by the Licensing (Scotland) Act 2005 ('the 2005 Act') and secondary legislation made under that Act.

2. The operation of the alcohol licensing system is the responsibility of Licensing Boards. Licensing Boards are independent regulatory bodies and their activities are governed by the 2005 Act. Councils elect members from among their councillors to form the Licensing Board(s) for their local authority area, and Boards receive support from local authority staff. However, a Licensing Board is an entirely separate legal entity from a local authority.

3. Licensing Boards are primarily responsible for regulating the sale of alcohol to the public within their particular area. The Boards carry out a range of functions, including granting and reviewing licences to sell alcohol.

4. The Scottish Ministers have powers under the 2005 Act to make secondary legislation in relation to alcohol licensing. For instance, in relation to the procedure that Licensing Boards and applicants are to follow, or as to fees.

5. This consultation relates to the 'occasional licence'. An occasional licence allows unlicensed premises to sell alcohol. Licensing Boards are responsible for issuing occasional licences.

The occasional licence

6. The purpose of the occasional licence is to cater for the multitude of events which take place on premises which are not 'fully' licensed but feature the sale of alcohol, for example fetes, wedding receptions and arts events. When used in their envisaged role, occasional licences offer a flexible regime for the hospitality and entertainment sector to provide alcohol at events outside licensed premises.

7. However, concerns have also been raised that some applicants have sought to use the occasional licence process to apply for consecutive occasional licences as an alternative to a full premises licence, allowing them to circumvent parts of the licensing regime.

8. The procedures for handling occasional licences are set out in sections 56 to 61 of the 2005 Act. Those persons eligible to apply for an occasional licence are:

• The holder of a premises licence;
• The holder of a personal licence; and
• A representative of any voluntary organisation.

9. Occasional licences are subject to mandatory national licensing conditions set out in schedule 4 to the 2005 Act.

10. Voluntary organisations may apply for an occasional licence authorising the sale of alcohol at an event connected with the organisation's activities. A single voluntary organisation may hold over a 12 month period:

• Not more than 4 occasional licences of 4 days or more in duration;
• Not more than 12 occasional licences of less than 4 days in duration

11. However the total number of days on which an occasional licence has effect must not exceed 56 during any 12 month period.

12. Occasional licences may be given in respect of a premises licence covering a members' club. This means, for example that a members' club which under its licence is normally only permitted to supply alcohol to its members and their guests may during the period covered by an occasional licence admit members of the public and sell alcohol to them.

13. The maximum duration of each occasional licence is 14 days.

14. Under the 2005 Act and The Licensing (Procedure) (Scotland) Regulations 2007 (SSI 2007/453), applications for occasional licences are subject to a statutory procedure for notification, publication and determination. This is intended to ensure there is appropriate notification of applications and the ability to object and make representations.

15. Any application for an occasional licence is notified to the Chief Constable and Licensing Standards Officer (LSO), and anyone can lodge an objection.

Reviewing the fee for occasional licences

16. Section 56 of the 2005 Act and The Occasional Licence (Scotland) Regulations 2007 (SSI 2007/96) set out the legislative process for applying for an occasional licence.

17. Section 136 of the 2005 Act enables Scottish Ministers to make provision for the charging of alcohol licensing fees by Licensing Boards in a range of situations such as applying for premises licences, personal licences and occasional licences; annual fees and transfers or variations of licences.

18. The Licensing (Fees) (Scotland) Regulations 2007 (SSI 2007/553) were made in exercise of the powers conferred by the 2005 Act to provide for the fees to be charged by Licensing Boards in relation to various matters under the 2005 Act. In respect of some matters, Licensing Boards have discretion as to the fee that is to be charged. Regulation 13 of SSI 2007/553 sets out the procedure for determining certain fees where Licensing Boards have discretion as to the level of the fee:

13. In determining any fee under regulation 6(1), 8(1), 11(1) or 12(2), a Board is to have regard to the desirability of ensuring that the total fees payable under these Regulations to that Board in respect of any period are likely to be broadly equivalent to the expenses incurred by that Board, and the council for the area of that Board, in administering the Act generally during that period.'

19. However, Licensing Boards have no discretion in respect of the occasional licence fee. Regulation 15 of SSI 2007/553 set the occasional licence fee at £10 for all applicants:

15. The fee payable in respect of an application under section 56(1) of the Act is £10.'

20. The Review of Alcohol Licencing Fees report published in February 2014 made a number of recommendations to Scottish Ministers. One of which was that the fee for occasional licences should be raised higher than the current £10 level.

21. The steering group set up to review fees reported that the occasional applications were overall the most labour-intensive activity for Licensing Boards, who spent between 5 and 50% of their total activity on these applications. Although many occasional applications require relatively little work, some are much more complex and labour intensive and the £10 fee does not cover the associated costs.

22. Furthermore, there are a large number of these compared to other applications. The feedback received from the steering group was clear that the £10 occasional licence fee was not sufficient to cover the cost of administration.

23. Having considered the above, the Scottish Government believes that there is a case for increasing the fee from the current level of £10.

24. Increasing the fee requires a change to regulation 15 of SSI 2007/553.

25. The Scottish Government is also required to consult before any new fees system comes into force. We are therefore now consulting on whether or not to raise the fee for an occasional licence from the current price of £10, to either £50, £75 or £100. We also welcome views on alternative fee levels

26. In addition to welcoming views from respondents to the consultation on whether or not the fee level for the occasional licence should be increased, we also welcome evidence to support their view.

Prescribing a limit on the number and duration of occasional licences

27. As well as consulting on whether or not to increase the fee level for the occasional licence, we are also consulting on prescribing a limit on the number and duration of occasional licences for holders of a premises licence and holders of a personal licence.

28. Section 56 of the 2005 Act was amended by section 13 of the Alcohol etc. (Scotland) Act 2010 ('the 2010 Act) to provide Scottish Ministers with a power to make Regulations limiting when a Licensing Board may issue an occasional licence.

29. Section 13 of the 2010 Act was commenced on 1 October 2011. However, Regulations setting limits have not yet been made for holders of a premises licence and holders of a personal licence. We are therefore now seeking views on whether to prescribe limits, and if so, what they should be. At present there are no restrictions on the number of occasional licences that may be granted to a premises licence holder or a personal licence holder.

30. The power to make Regulations includes the ability to:

• set out limits on the number of occasional licences that could be issued to the same applicant in a 12 month period,
• set out limits on the number of occasional licences that could be issued in relation to the same premises in a 12 month period,
• set out limits on the number of days that the occasional licences issued to the same applicant in a 12 month period could have effect,
• set out limits on the number of days that the occasional licences issued in relation to the same premises in a 12 month period could have effect, and
• can also set out limits on the number of continuous days that a series of occasional licences can have effect in relation to the same premises.

Purpose of consultation

31. The purpose of this consultation is therefore:

• To consult on whether or not to raise the fee for an occasional licence from the current price of £10, and if it is agreed that we should increase the fee, seek views on what that new fee level should be; and
• seek views on prescribing a limit on the number and duration of occasional licences for premises licence holders and personal licence holders.

32. In terms of next steps following this consultation, the Scottish Government will analyse the responses and if considered appropriate will draft and lay secondary legislation embedding any new fee level or limit on the number and duration of occasional licences into Scottish law.

Consultation Questions:

(We would be grateful if you would use the consultation questionnaire provided at Annex C)

Fees

1. Do you agree that the fee for an occasional licence should be increased from the current level of £10?

Yes / No

2. Why?

3. Do you agree that £50 is an appropriate new fee level?

Yes / No

4. Why?

5. Do you agree that £75 is an appropriate new fee level?

Yes / No

6. Why?

7. Do you agree that £100 is an appropriate new fee level?

Yes / No

8. Why?

9. If you do not think that any of the proposed fee levels are appropriate, what do you believe would be a suitable fee level?

10. What evidence, based on cost recovery, can you supply for an appropriate fee level for occasional licences?

Limits
11. Do you agree that limits should be placed on the number and duration of occasional licences for holders of a premises licence and holders of a personal licence?
Yes / No
12. Why?
13. What do you think would be an appropriate limit on the number of occasional licences that could be issued to the same applicant in a 12 month period,and why?
14. What do you think would be an appropriate limit on the number of occasional licences that could be issued to the same premises in a 12 month period, and why?
15. What do you think would be an appropriate limit on the number of days that occasional licences issued to the same applicant in a 12 month period could have effect, and why?
16. What do you think would be an appropriate limit on the number of days that the occasional licences issued in relation to the same premises in a 12 month period could have effect?
17. What do you think would be an appropriate limit on the number of continuous days that a series of occasional licences can have effect in relation to the same premises?
18. Are there any other comments you wish to make that relate to the occasional licence?