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

1. Introduction

Licensing (Scotland) Act 2005

Statutory Guidance

1.1 As part of the overarching national framework for the alcohol licensing regime introduced by the Licensing (Scotland) Act 2005 ("the 2005 Act"), Scottish Ministers issued statutory guidance to Licensing Boards. The guidance is termed "statutory" as Scottish Ministers made use of the powers given to them under Section 142 of the 2005 Act to issue guidance. This guidance is frequently referred to as "Section 142 guidance".

Section 142 of the Act provides that, in carrying out its functions, a Licensing Board must have regard to Guidance issued by Ministers under that section. However, it is recognised that the Guidance cannot anticipate every possible scenario that may arise. Licensing Boards may therefore depart from the Guidance if they have reason to do so. If Licensing Boards depart from the Guidance, section 142(4) of the Act requires that they must give the Scottish Ministers notice of the decision together with a statement of reasons for it.

1.2 The purpose of the guidance is to assist Licensing Boards in carrying out their functions under the 2005 Act. That having been said, it is hoped that the guidance will also be of interest to others involved in the alcohol licensing regime, such as new / existing licence holders and licensing solicitors.

1.3 This version of the statutory guidance (issued on 13 January 2023) replaces the version of the original statutory guidance.

Approach Taken

1.4 The 2005 Act has been operational for over thirteen years. Licensing Boards have gained valuable experience and expertise in administering the alcohol regime as set out under the 2005 Act.

1.5 Scottish Ministers recognise the independence of the Licensing Boards but also consider it is important for Licensing Boards to share and learn from each other's experiences.

1.6 The Scottish Government Licensing Team recognises the important work undertaken by the Society of Local Authority Lawyers and Administrators in Scotland (SOLAR) Licensing Group to promote inter authority communication, information sharing and best practice between members of the SOLAR Licensing sub group. The Licensing Team are grateful to both the Convenor and Depute Convenor for the opportunity to attend SOLAR Licensing sub group quarterly meetings.

1.7 Throughout the guidance, where possible, examples of best practice have been set out, which it is hoped will be beneficial for all Licensing Boards to see and consider implementing in their licensing authority area as appropriate. Whilst reference may be made to specific Licensing Boards, it is acknowledged that many Licensing Boards may be undertaking similar work but it is impractical to list what each individual Licensing Board may / may not be doing.

1.8 Going forward, the intention is to have more frequent updates to the guidance. This will be achieved through the creation of a small SG led stakeholder group that will meet twice a year to reflect legislative changes and other matters. The Licensing Team will also look to Licensing Boards to provide examples of best practice, which can be incorporated into the guidance.

Licensing (Scotland) Act 2005

1.9 A number of amendments have been made to the 2005 Act since it was commenced and since the issue of the last version of the statutory guidance. Some of the amendments were fairly minor and some were more substantive. The amendments made are referenced and discussed, as appropriate, within the individual chapters of the guidance.

Licensing Objectives

1.10 The guidance contains a separate chapter on the five Licensing Objectives which play a key role in the administration of the alcohol licensing regime. Each of the Licensing Objectives is of equal importance.

1.11 Just as legislative changes have been made to the 2005 Act since commencement, there have also been changes in the way that alcohol is both purchased and consumed.

1.12 It is much more likely that individuals purchase alcohol in off sales premises to consume at home rather than purchase and drink in on sales premises. According to Monitoring and Evaluating Scotland's Alcohol Strategy (MESAS) monitoring report 2019, of the total alcohol sold in Scotland, 73% is now sold in the off trade. Drinking at home means less control over how much is consumed and some harms are harder to detect e.g. domestic violence. Many Licensing Boards recognise this shift and have reflected this when developing their licensing policy statements. This is an approach the Scottish Government strongly supports, and would encourage all Licensing Boards to consider.

1.13 Licensing Boards will be well acquainted with the range of reports and research material that has been published in relation to alcohol harm, not least the Scottish Government's Alcohol Framework 2018 – Preventing Harm report. Scottish Ministers' approach to reducing alcohol harm, aligned with that of the World Health Organisation (WHO), is reflected in the report.

1.14 An example of statistical information can be found on the National Records of Scotland (NRS) website. On 4 August 2022, NRS published annual figures (as at August 2021) relating to alcohol specific deaths in Scotland . The figure as at August 2021 stands at 1,245 deaths, an increase of 4.62% on the August 2020 figure of 1,190 (the corresponding figures for 2019 and 2018 being 1,020 and 1,136 respectively). The report also states "Alcohol-specific deaths have generally risen since 2012. Before this point, deaths fells [sic] sharply from the peak of 1,417 in 2006 to 968 in 2012".

1.15 Given the passage of time since the 2005 Act commenced, there is a wealth of information available to Licensing Board to help inform decision making/carrying out its functions e.g. documents they require to both consult on and publish including overprovision statements and licensing policy statements. It is also important that Licensing Boards fully engage at appropriate times with key partners such as Local Licensing Forums, Community Planning Partnerships, Health Boards, Alcohol and Drug Partnerships and Police Scotland. These local partners can often be a useful source of relevant and up to date information in their specific area of expertise.

1.16 The Scottish Government acknowledges that many Licensing Boards do review relevant information and actively engage with key partners. In addition, a number of Licensing Boards publish on their websites details containing the background information that has led them to adapt a particular policy. The Scottish Government commends these approaches to all Licensing Boards.