Licensing (Scotland) Act 2005 section 142: guidance for Licensing Boards

Annex A Coronavirus Legislation

Coronavirus (Scotland) Act 2020

1. The aim of the Coronavirus (Scotland) Act 2020 ("the 2020 Act") was to respond to the emergency situation caused by the coronavirus pandemic. The Coronavirus (Scotland) Bill was introduced to the Scottish Parliament on 31 March 2020 and followed the parliament's emergency bill procedure. All three stages of the Bill took place on 1 April and following agreement of the Parliament, the Bill completed the parliamentary process on 1 April 2020. Royal Assent was granted on 6 April 2020 and the alcohol licensing provisions came into force on 7 April 2020.

Licensing (Scotland) Act 2005: temporary modifications

2. The alcohol licensing regime as set out in the Licensing (Scotland) Act 2005 ("the 2005 Act") contains a considerable number of strict timescales and deadlines with little or no discretion available to the relevant authorities if they are not adhered to. Schedule 5 contains temporary modification to the law in relation to alcohol licensing Coronavirus (Scotland) Act 2020 (legislation.gov.uk). The Scottish Government considers the alcohol licensing provisions in the 2020 Act to be a pragmatic response to the coronavirus outbreak.

The temporary modifications cover:

Requirement to hold a hearing

Paragraph 1 of schedule 5 of the 2020 Act sets out modifications to the operation of provisions in section 133 of the 2005 Act relating to requirements falling on Licensing Boards to hold hearings.

Premises Licences

Paragraph 2 sets out modifications to the operation of provisions in the 2005 Act relating to premises licences.

Personal Licence holders

Paragraph 3 sets out a number of modifications to the operation of provisions in the 2005 Act relating to personal licence holders.

Licensing Boards etc.

Paragraph 4 modifies the operation of a number of provisions in the 2005 Act relating to Licensing Boards.

Modification of duties of Licensing Standards Officers

Paragraph 5 sets out a number of modifications to the operation of provisions in the 2005 Act relating to Licensing Standards Officers.

Notification by the Chief constable

Paragraph 6 modifies the operation of a number of provisions in the 2005 Act relating to the Chief constable of Police Scotland being required to respond within 21 days to a notice from a Licensing Board. The purposes of the response is to provide information to Licensing Boards in respect of various licensing matters.

Interpretation

Paragraph 7 has the effect of modifying section 147 (interpretation) of the 2005 Act as if there were inserted a definition of "coronavirus" into that Act.

Modification of the Licensing (Procedure) (Scotland) Regulations 2007

Paragraph 8 modifies the operation of the Licensing (Procedure) (Scotland) Regulations 2007 (SSI 2007/343).

Licensing (Scotland) Act 2005: extension and expiry of temporary modifications

Section 12 of the 2020 Act as enacted, provided that, amongst other provisions, the temporary modifications to the alcohol licensing regime would expire on 30 September 2020, unless the Scottish Parliament approved regulations providing for its effect to continue to 31 March 2021. The 2020 Act also provided that the Scottish Parliament could approve regulations allowing one further extension until 30 September at which point any remaining provisions in the Act would expire.

The Coronavirus (Scotland) Acts (Amendment Of Expiry Dates) Regulations 2020

SSI 2020/299

The Coronavirus (Scotland) Acts (Amendment Of Expiry Dates) Regulations 2021

SSI 2021/152

Coronavirus (Extension and Expiry) (Scotland) Act 2021

The Coronavirus (Scotland) Acts (Amendment Of Expiry Dates) Regulations 2022

SSI 2022/113

The 2020 and 2021 regulations extended the temporary modifications made to the 2005 Act by the 2020 Act to 31 March 2021 and 30 September 2021.

As mentioned above, section 12 of the 2020 Act provided that the temporary modifications to the alcohol licensing regime would expire on 30 September 2021. The Coronavirus (Extension and Expiry) Scotland) Act 2021 ("the 2021 Act") extended the majority of the alcohol licensing provisions until 31 March 2022.

The temporary modification which allowed for licensing board meetings to be held in private for a reason relating to Covid expired on 30 September 2021 made to Paragraph 12(2) of schedule 1 to the 2020 Act which provided that a Licensing Board does not have to meet in public if it cannot do so as a result of the coronavirus outbreak was expired by the 2021 Act and did not continue to be the law after 30 September 2021.

The 2021 Act also allowed secondary legislation to be used to extend Part 1 (which includes the unexpired alcohol licensing provisions) of the 2020 Act further, to 30 September 2022. The Parliament agreed to this by approving the 2022 regulations.

Coronavirus (Recovery and Reform) Scotland Act 2022

A non-emergency Bill was introduced to the Scottish Parliament on 25 January 2022 following on from a 12 week public consultation. The purpose of the Bill is to embed reforms in Scotland's public services and justice system that, though necessitated by the Covid pandemic, have delivered improvements for service users and improved efficiency. The Bill will also help build resilience against future public health threats. The Bill was passed by the Scottish Parliament on 28 June 2022, with Royal Assent being granted on 10 August 2022.

Alcohol licensing: section 23 how hearings may be held

This section makes similar provision to alcohol licensing as is made for civic licensing by section 21 of the Act, replicating the temporary modifications to the 2005 Act made by paragraph 1 of schedule 5 of the Coronavirus (Scotland) Act 2020. A new section 133A is inserted into the 2005 Act, giving a Licensing Board the ability to hold a licensing hearing through remote facilities, as well as in person, or through a mixture of both (often called a "hybrid" format). Subsection (2) of section 133A defines "remote facilities" for these purposes, a definition which would include telephones and video conferencing software. Subsection (1A) of section 133A ensures that any views which participants at a licensing hearing may offer with regard to the appropriate format for the hearing must be taken into account by a Licensing Board, prior to finalising its decision on the format. This applies to anyone who notifies the Board of their intention to participate, such as the licence holder or an objector.

Equivalent provision is then made for Licensing Board meetings by amendments to paragraph 12 of schedule 1 of the 2005 Act. In addition, because the existing paragraph 12(2) requires that Licensing Board meetings are held in public, a new paragraph 12(2A) is inserted in order to clarify that this requirement for public access is complied with, where a remote or hybrid meeting is held, by the Board enabling the public to observe the meeting remotely – for example through the public provision of a web link to the meeting.

The Coronavirus (Scotland) Acts (Saving Provision) Regulations 2022

• Part 4 of these Regulations makes saving provision in respect of the expiry of section 6 and schedule 5 of the first Scottish Act, insofar as they modified the Licensing (Scotland) Act 2005 ("the 2005 Act").
• Regulations 5 and 6 make general saving provision relating to the first Scottish Act for the purpose of supporting the subsequent particular saving provision, set out in regulations 7 to 10, which relate to the modifications of the 2005 Act. Regulation 7 saves the modification to section 45 (provisional premises licence) of the 2005 Act made by paragraph 2(5) of schedule 5 of the first Scottish Act. Section 45 provides that a Licensing Board can grant a provisional premises licence, which if not confirmed within 4 years is treated as revoked. The modification is saved only in respect of an application to extend the 4 year period which was made before the end of September 2022.
• Regulation 8 saves the modification to section 54 (dismissal etc. of premises manager) made by paragraph 2(6) of schedule 5 of the first Scottish Act. Where one of the events mentioned in section 54(2) of the 2005 Act occurs, the premises licence holder must notify the Licensing Board within 7 days, and must apply to substitute another person as the premises manager within 6 weeks. Paragraph 2(6) of schedule 5 modified these requirements to increase the 7 day period to 28 days and increase the 6 week period to 3 months. The modification is saved only in relation to a section 54(2) event occurring before the end of September 2022.
• Regulation 9 saves the modification to section 77 (period of effect of personal licence) made by paragraph 3(2) of schedule 5 of the first Scottish Act. A personal licence may be extended for 10 years if a renewal application is granted. The modification is saved only where an application has already been made but has not yet been determined, and the licence has expired, but remains in effect immediately before the end of September because of the effect of the modification.
• Regulation 10 saves certain modifications to sections 9A (annual functions report) and 9B (annual financial report) made by paragraph 4(2) and (3) of schedule 5 of the first Scottish Act. Sections 9A and 9B provide respectively that Licensing Boards must prepare and publish annual functions reports and annual financial reports within 3 months of the end of the financial year. The modifications are saved to allow the Board to be able to delay publication until the 31 December 2022.