Section 142 of Licensing (Scotland) Act 2005: consultation on draft revised guidance for licensing boards

Consultation on: Licensing (Scotland) Act 2005 – Section 142: Draft Revised Guidance for Licensing Boards

Background

1. The main piece of legislation that controls the sale of alcohol in Scotland is the Licensing (Scotland) Act 2005 (the Act).

Further primary legislation that has impacted upon the licensing regime in Scotland, since the introduction of the Act, includes:

• Alcohol etc. (Scotland) Act 2010
• Criminal Justice and Licensing (Scotland) Act 2010
• Alcohol (Minimum Pricing) (Scotland) Act 2012
• Air Weapons and Licensing (Scotland) Act 2015

2. As well as the above primary legislation, the licensing regime in Scotland is also underpinned by secondary legislation. The Scottish Ministers have powers under the Act to make secondary legislation to supplement the Act and these powers are exercised from time to time.

3. A range of secondary legislation, related to alcohol licensing, has been made since the first guidance was issued. The Act, the associated explanatory notes and the regulations and orders made under the Act can be viewed at the Office of the Public Sector Information (OPSI) website at the following address: - http://www.opsi.gov.uk/legislation/scotland/about.htm

4. Operation of the Licensing system is the responsibility of Licensing Boards, which are independent regulatory bodies governed by the Act. Councils elect members from among their councillors to form their Licensing Board, which is a completely separate legal entity from the Council.

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

6. Under section 142(1) of the Act, the Scottish Ministers may issue guidance to Licensing Boards as to the exercise of their functions under the Act. In the exercise of their functions, a Licensing Board must have regard to guidance issued to them by the Scottish Ministers under that subsection of the Act.

7. The Scottish Parliament approved the first draft of 'Guidance for Licensing Boards' on 7 March 2007 and it was then issued to Licensing Boards on 4 April 2007.

8. The Scottish Ministers may modify any guidance issued by them under section 142(1) of the Act.

9. The Scottish Government is continuing to work towards reviewing and improving licensing law and practice, which includes modifying guidance and Regulations to bring them up to date, and to ensure that they are fit for purpose.

10. The initial guidance for Licensing Boards has not been substantially amended since it was issued to them. The current guidance can be viewed at Licensing (Scotland) Act 2005 - Section 142: Guidance for Licensing Boards. To provide clarity for Licensing Boards we are committed to updating the existing guidance, aiming for it to reflect the range of relevant primary and secondary legislation enacted since the initial guidance was issued.

11. Scottish Government officials, with assistance from a working group formed from members of the Council of the Scottish Region of the Institute of Licensing and others, such as Alcohol Focus Scotland and other health professionals, have reviewed the existing guidance and have prepared a 'Draft Revised Guidance for Licensing Boards', which is included at Annex A.

12. The Council of the Scottish Region of the Institute of Licensing includes Local Authority Licensing Solicitors/Clerks from The Society of Local Authority Lawyers and Administrators in Scotland – Licensing Working Group (SOLAR) and representatives from the NHS, Police Scotland, trade solicitors, Licensing Standards Officers and a licensing advocate.

13. A non-prescriptive approach has been taken to drafting the revised guidance, with the intention of affording Licensing Boards the flexibility to operate and take decisions in light of their particular circumstances. The draft revised guidance does not seek to instruct Licensing Boards exactly how to exercise their functions under the Act. It is simply intended to assist Licensing Boards as they carry out their responsibilities under the Act. Scottish Ministers wish Licensing Boards and their Clerks to be creative and innovative and to implement the Act in a way that best meets local needs and circumstances.

14. Scottish Ministers must lay any subsequent guidance issued by them under Section 142(1) of the Act before the Scottish Parliament.

Purpose of this Consultation

15. The purpose of this consultation is to invite views on the 'Licensing (Scotland) Act 2005 – Section 142 Draft Revised Guidance for Licensing Boards – v 0.1', included at Annex A.

16. For the avoidance of any doubt, it should be noted that there is no requirement for this particular version of the draft revised guidance to be laid before the Scottish Parliament and it does not have legal effect for Licensing Boards at this stage. Any subsequent revised guidance, once it has been finalised, will be laid before the Scottish Parliament prior to it being issued. Furthermore, we are not seeking comments on the Licensing (Scotland) Act 2005 or any associated primary or secondary legislation in this particular consultation.

17. The draft revised guidance is a technical document issued specifically for Licensing Boards to support them in the exercise of their functions under the Act. One of the purposes of the guidance is for the Scottish Ministers to give guidance to Licensing Boards on the effect of the complex areas of, and interactions between, the legislative provisions. Respondents to this consultation should be mindful of this and that the guidance cannot go beyond what the legislation provides for and is focused on providing further explanation of the legislation.

18. Although the guidance is for Licensing Boards, others such as, local authorities, Police Scotland, Local Licensing Forums, Licensing Standards Officers and the licensed trade and their representatives may find it useful.

19. We would welcome comments on:

1 - any areas within the draft revised guidance which you found were unclear.

(Please specify the paragraph number. We would also welcome suggestions of alternative wording, for our consideration.)

2 - other issues which you believe should be taken into account within the draft revised guidance

Responding to this Consultation

20. We are inviting responses to this consultation by 11/06/2019.

21. Please respond to this consultation using the Scottish Government's

consultation hub, Citizen Space (http://consult.gov.scot). Access and respond to this consultation online at https://consult.gov.scot/justice/draft-revised-guidance-for-licensing-boards. You can save and return to your responses while the consultation is still open. Please ensure that consultation responses are submitted before the closing date of 11/06/2019.

22. If you are unable to respond using our consultation hub, please complete the Respondent Information Form to: Licensing.Consultation@gov.scot or

Criminal Law, Practice and Licensing Unit,
Scottish Government,
GW15.
St Andrew's House,
Edinburgh, EH1 3DG

Handling your response

23. If you respond using the consultation hub, you will be directed to the About You page before submitting your response. Please indicate how you wish your response to be handled and, in particular, whether you are content for your response to published. If you ask for your response not to be published, we will regard it as confidential, and we will treat it accordingly.

24. All respondents should be aware that the Scottish Government is subject to the provisions of the Freedom of Information (Scotland) Act 2002 and would therefore have to consider any requests made to it under the Act for information relating to responses made to this consultation exercise.

25. If you are unable to respond via Citizen Space please complete the Respondent Information Form included in this document at Annex B.

26. To find out how we handle your personal data, please see our privacy policy: /privacy/

Next steps in the process

27. Where respondents have given permission for their response to be made public, and after we have checked that they contain no potentially defamatory material, responses will be made available to the public at http://consult.gov.scot. If you use the consultation hub to respond, you will receive a copy of your response via email.

28. Following the closing date, all responses will be analysed and considered along with any other available evidence to help us. Responses will be published where we have been given permission to do so. An analysis report will also be made available.

Comments and complaints

29. If you have any comments about how this consultation exercise has been conducted, please send them to the contact address above or at Licensing.Consultation@gov.scot

Scottish Government consultation process

30. Consultation is an essential part of the policymaking process. It gives us the opportunity to consider your opinion and expertise on a proposed area of work.

31. You can find all our consultations online: http://consult.gov.scot. Each consultation details the issues under consideration, as well as a way for you to give us your views, either online, by email or by post.

32. Responses will be analysed and used as part of the decision making process, along with a range of other available information and evidence. We will publish a report of this analysis for every consultation. Depending on the nature of the consultation exercise the responses received may:

• indicate the need for policy development or review
• inform the development of a particular policy
• help decisions to be made between alternative policy proposals
• be used to finalise legislation before it is implemented.

33. While details of particular circumstances described in a response to a consultation exercise may usefully inform the policy process, consultation exercises cannot address individual concerns and comments, which should be directed to the relevant public body.