Coronavirus (COVID-19): Licensing (Scotland) Act 2005 section 142 - statutory guidance

This guidance is issued by the Scottish Ministers under powers provided for in section 142 of the Licensing (Scotland) Act 2005 (“the 2005 Act”).  Section 142(1) provides that Scottish Ministers may issue guidance to Licensing Boards as to the exercise of their functions under the 2005 Act and section 142(3) provides that Licensing Boards must, in the exercise of their functions under the 2005 Act, have regard to any guidance issued to them under section 142(1).

This guidance is specific guidance related to the coronavirus outbreak and is supplementary to (i.e. does not displace) the existing guidance issued by the Scottish Ministers under section 142(1).

This guidance should be read in conjunction with the sectoral guidance for the tourism and hospitality industry which includes the alcohol on-trade. Licensing Boards will, in conjunction with alcohol licensing enforcement authorities, wish to satisfy themselves that occasional licence applications provide assurance that the terms of the sectoral guidance, and legal provisions on coronavirus transmission prevention, can be met.

The coronavirus outbreak has had an unprecedented impact on Scotland including all sectors of the economy. The licensed trade has been affected in different ways. Those licensed for the off-sale of alcohol may of course have been adversely affected e.g. limits on the number of customers due to physical distancing. However, off-sales have been able to continue for many retailers and some may have even experienced increased sales. This is because of course the on-sale of alcohol has ceased through the need for relevant establishments to close down.

The Scottish Government is committed to seek to assist the licensed trade recover from the effects of the coronavirus outbreak. New flexibility and discretion was added to the operation of the alcohol licensing system under the 2005 Act through the Coronavirus (Scotland) Act 2020. 

The Scottish Government expects Licensing Boards to use this new flexibility and discretion to its maximum potential in aiding the recovery of the licensed trade in the coming period as Scotland’s lockdown is eased and the route-map for recovery is followed.

Any decisions a Board makes must be consistent with the five licensing objectives which remain the central most important principles of the 2005 Act. Awareness of the current coronavirus pandemic situation should also be borne in mind by Boards when making decisions.  Alcohol-related harm is a significant health challenge in Scotland, and alcohol consumption can make people more vulnerable to poor health, and reduce the immune system’s ability to fight off infectious diseases including coronavirus.

Within the overall legal framework provided for in the 2005 Act and the associated secondary legislative regime, the Scottish Government considers flexibility and pragmatism in decision-making and sensitivity to the wider economic situation should be at the forefront of how a Board decides to operate (e.g. decisions as to whether to hold remote hearings) and the decisions made by the Board (e.g. occasional licence applications for use of space by a licensed premises previously put to another use such as a car park).

Occasional licences

The existence of the occasional licence system within the 2005 Act is long-standing and reflects the need to be able to respond to a short-term situation where a licence to sell alcohol is required where a full premises licence is not appropriate. The occasional licence application requirements are lighter-toucher as a result.

Given the requirements for physical distancing, it can be expected that some licensed premises will explore maximising the use of their available space for the sale of alcohol in innovative ways that may not even have seemed apparent or possible prior to the coronavirus outbreak. For example, repurposing the use of garden space or car park space may be possible for some on-sale establishments. Boards will need to consider the individual circumstances of each application and, where appropriate, consider whether conditions may be attached to ensure the licensing objectives can be met. For example, the location of a car park directly accessing a busy main road may mean that securing public safety is difficult; it might be appropriate to limit some repurposed spaces to adults only to protect children and young persons.

In considering applications for occasional licences to use such space in this way, the Scottish Government expects Licensing Boards to approach decision-making with a keen and focused sense on the needs of the on-sale business to seek to recover from the coronavirus outbreak. 

New and innovative ways to continue to trade and sell alcohol within the constraints of physical distancing will be essential and the Scottish Government expects all applications to be considered sensitively with no unnecessary hurdles having to be overcome prior to the granting of an occasional licence. This does not mean the requirements of the 2005 Act should not be adhered to however; instead this reflects the open, flexible and pragmatic mindset the Scottish Government expects Licensing Boards to adopt in fulfilling the requirements of the 2005 Act.

It is worth noting that individual licensing policy statements of Licensing Boards were developed prior to the coronavirus outbreak. As such, they were written in a different context without explicit consideration being given to the impact of the coronavirus outbreak.   

The 2005 Act requires Licensing Boards to have regard to their licensing policy statements in the operation of their functions. However, the Scottish Government expects a sensitive approach to be taken in terms of assessing licensing applications, including occasional licence applications, against licensing policy statements as the Licensing Board makes a relevant decision within the context of the coronavirus outbreak. Decisions have to be made within the legal framework contained in the 2005 Act, but all decisions should also be made with a clear focus on alleviating, where practical, the negative impact of the coronavirus outbreak on the licensed trade.