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

2. Licensing Objectives

Introduction

2.1 This chapter provides information on the five licensing objectives. A key component of the licensing system set out in the 2005 Act is that it provides local flexibility to deal with local circumstances. However, to ensure consistency of approach, it is important that this local flexibility is balanced with a clear, effective and national framework within which Licensing Boards are required to operate. The 2005 Act established just such a national policy framework.

2.2 The 2005 Act sets out 5 high level "licensing objectives" that represent the values on which the Scottish alcohol licensing system is based, the parameters against which elements of the system should be measured and the solid foundation which Licensing Boards must have regard to in carrying out their functions under the 2005 Act.

2.3 The licensing objectives are the engine that drives the 2005 Act. They are a key feature of Licensing Board policy statements, the basis for refusal of a premises or occasional licence, the attachment of conditions, sanctions on a personal licence holder or a competent ground for review of a premises licence.

2.4 The five licensing objectives are listed below:

• preventing crime and disorder;
• securing public safety;
• preventing public nuisance;
• protecting and improving public health; and
• protecting children and young persons from harm.

2.5 Since the implementation of the 2005 Act, Licensing Boards have been able to develop their knowledge and understanding of how to best promote the 5 licensing objectives. This will continue to be an ever evolving process, informed by local experience.

2.6 Licensing Boards are also required by the 2005 Act to produce and publish Annual Function Reports which should be drafted with a focus on explaining the work of the Licensing Board over the relevant period, in order to provide transparency and accountability to the local community. The reports are primarily about Licensing Boards showing how they adhere to the licensing policies and how they promote the licensing objectives, rather than providing a description of the Licensing Boards' procedural approach.

Licensing Objectives

2.7 The guidance offered below for each objective is given in the order in which the objectives are listed in the 2005 Act. Each objective is equally important i.e. no one licensing objective carries more weight than any other. It is recognised that whilst the licensing objectives are standalone there will also be an element of interaction between them.

Preventing crime and disorder

2.8 This objective relates to the prevention of crime and disorder as a result of the sale or supply of alcohol or irresponsible operation of licensed premises. This covers behaviour such as: drunk and disorderly conduct; breach of the peace; assault and other crimes or offences which may occur within premises, outside premises, or in other settings which may have occurred as a result of the sale or supply of alcohol (see Chapters 11 and 13 for more information on control of order and other offences).

2.9 One example of a Licensing Board promoting this licensing objective can be found within Edinburgh Licensing Board's statement of licensing policy 2018 which states:

• "The promotion of the licensing objective to prevent crime and disorder, places a responsibility on licence holders to become key partners in achieving this objective. Applicants will be expected to demonstrate in their operating plan that suitable and sufficient measures have been identified and will be implemented and maintained to reduce or prevent crime and disorder on and in the vicinity of their premises, relevant to the individual style and characteristics of their premises and the activities at those premises".

The statement of licensing policy goes on to provide clear, concise and helpful information as to the factors an applicant needs to address in their application/ operating plan to satisfy the Licensing Board that due consideration has been given by the applicant to this specific licensing objective.

2.10 Alcohol related crime and disorder does not only occur within or immediately outside licensed premises. A significant proportion of alcohol is bought to be consumed at home or in other private dwellings. Whilst alcohol licensing alone cannot directly address issues such as domestic violence, Licensing Boards may wish to consider supporting work in this regard through partnership working. One example of a Licensing Board demonstrating a wider understanding of alcohol related crime can be found within West Lothian Licensing Board's statement of licensing policy 2018 which states:

• "The Board wishes to ensure that West Lothian is a safe place to work, live in and visit, and recognises that it is widely acknowledged that the consumption of alcohol can be a significant contributory factor in late night crime and disorder and in certain types of antisocial behaviour. Gender based violence issues also have strong associations with alcohol consumption (domestic abuse, sexual violence, human trafficking, commercial sexual exploitation and exploitation of vulnerable persons). While licensing alone cannot directly address these they are nonetheless significant issues within the crime and disorder, health, community safety and child protection agendas. The Board, in partnership with Police Scotland and other local agencies, is committed to playing its part in helping to reduce alcohol related crime and disorder and antisocial behaviour problems.
• "The Board recognises that licensing is not the primary mechanism for the control of criminal behaviour, public nuisance and antisocial behaviour once individuals have left licensed premises. Nevertheless the Board considers that licensing plays a key role in both preventing and controlling alcohol related crime and disorder and antisocial behaviour through the promotion of the licensing objectives and the monitoring of licensed premises."

Securing public safety

2.11 This objective links to a duty placed on licence holders to ensure that the public are kept safe in relation to the sale or supply of alcohol or operation of licensed premises.

2.12 The public in this context relates to a wide definition which includes customers on the premises, the premises' staff and passers-by or persons in the vicinity of a licensed premises. For example, The Highland Licensing Board Statement of licensing policy states at Appendix 8:

• "All alcoholic and non-alcoholic drinks shall only be sold and served in cans or in plastic or polycarbonate containers. (This condition is likely to be applied at all large-scale public events such as music festivals, Highland Games and large agricultural shows, but may also be applied to other occasional licences where considered appropriate in the interest of public safety)"

Preventing public nuisance

2.13 Whilst the operation of a licensed premise does not of itself inherently create public nuisance, the 2005 Act recognises that nuisance from a licensed premise can be a concern for local residents and communities and this objective therefore seeks to provide comfort that nuisance (e.g. noise, littering) and anti-social behaviour can be addressed where relevant. It is likely that the Police will be involved as the first responder to issues of public nuisance and anti-social behaviour.

2.14 It should be noted that not all noise emanating from a licenced premise should be treated as a public nuisance for the purposes of this licensing objective. For example, nuisance caused to local residents from a noisy extractor fan or ventilation system should properly dealt with under a different regulatory regime.

2.15 Fife Licensing Board's statement of licensing policy sets out the steps one Licensing Board is taking to promote this licensing objective:

• stipulating shorter hours when considering a premises licence application if it considers this to be appropriate, depending on where the premises are situated or the likelihood of the situation or use of the premises contributing to anti-social behaviour.
• clearly setting out licence holders' responsibilities with regard to: smoking in public places (making a cross reference to the "protecting and improving public health" and "protecting children from harm" licensing objectives); waste generated in or by the premises being disposed of safely; and the provision of outdoor seating.
• helpful examples of control measures are given to assist applicants who may need to take account of such matters when preparing and carrying out the activities in their Operating Plan. Applicants are also reminded of the need to consult with various named bodies prior to holding any outdoor musical events or using amplified equipment.

Protecting and improving public health

2.16 This licensing objective prompts those involved in the alcohol licensing regime to consider the impact of the sale and consumption of alcohol on health within the legislative framework provided by the 2005 Act. This Licensing objective, probably more so than the others, provides Licensing Boards with the opportunity to take a more strategic approach to licensing in their area, and set out their vision for their licensing area through engagement with the local community.

2.17 In this way this licensing objective encourages Licensing Boards to consider the cumulative effect of licensed premises on alcohol-related harm, within their licensing area, rather than the actions of any individual premises. Collecting harm data for localities will build a picture of the health and wellbeing of the people in the locality, and doing so on a consistent basis over time means the long term health and wellbeing of a locality can be monitored and improvements made. Local Licensing Forums are well placed to assist Licensing Boards in this task.

2.18 City of Glasgow Licensing Board is an example of one of a number of Licensing Boards which have adopted an approach of looking at alcohol and health issues at their local authority area level, and then made a policy that seeks to promote the public health objective. City of Glasgow's Licensing Board's statement of licensing policy sets out its approach to this matter:

• "…..the Licensing Board was particularly concerned by the number of areas in the city which suffer from high levels of alcohol related emergency hospital admissions and alcohol related deaths, in many cases well above the average for the country as a whole……. it was also evident that in some areas there are very few licensed premises and therefore identifying them as an overprovision locality in terms of the number and capacity of licensed premises would not be appropriate.
• "However, overprovision is only one ground for refusal, and the Licensing Board believes that in terms of the alcohol related health data it has considered, it is important to clearly set out its concern regarding the granting of an off-sales licence and the Licensing Objective of Protecting and Improving Public Health.
• "While each application will be considered on its own merits, in the view of the Board where there is evidence that the locality in which the applicant premises are situated suffers from higher than the national average levels of alcohol related health harms, …..the Licensing Board will carefully consider whether the granting of such a licence would be inconsistent with the Licensing Objective of Protecting and Improving Public Health".

Protecting children and young persons from harm

2.19 The Air Weapons and Licensing Act 2015 amended the 2005 Act to broaden out this objective - from "protecting children from harm" - to "protecting children and young persons from harm". The 2005 Act provides that "a child" means a person under the age of 16 and "a young person" means a person aged 16 or 17. Young people are particularly vulnerable to the effects of alcohol, whether they are drinking themselves or being affected by other people drinking in their lives. Broadening out this objective gives Licensing Boards greater scope to protect young persons.

2.20 In a wider sense, the presence of this objective underlines that the responsible operation of licenced premises is not simply about avoiding the commission of criminal offences but in ensuring that the environment or atmosphere of a premise where children or young people are to be admitted is a sensible, non-threatening one where children and young persons can be in the company of adults who are consuming alcohol.

2.21 For example, in the foreword to its 2018 statement of licensing policy South Ayrshire Licensing Board commented:

• "The Board wished to strike a balance, in support of our very important objective of protecting children and young persons from harm, by suggesting that moderate on-premises consumption of alcohol in a well-run and supervised family friendly environment is better able to protect our young people than any provisions we can make to discourage families consuming excessive alcohol in their homes."

2.22 Dundee Licensing Board, is one of a number of Licensing Boards which clearly state in its statement of licensing policy that:

• "As a general rule, children and young persons under the age of 18 will only be permitted into licensed premises which are considered to be restaurants or into other licensed premises where the primary purpose of allowing them access is to consume a meal or to attend a pre-booked and ticketed function"

2.23 North Ayrshire Licensing Board is one of a number of Licensing Boards which make specific reference in their statement of licensing policy to licensed premises requiring to provide the appropriate environment for children and young people.

• "The Board has a long-standing interest in encouraging family-friendly Premises within North Ayrshire and wishes to continue to ensure that Premises which seek to accommodate under-18s are run in such a way that they are suitable. Premises which are small and enclosed or which have few facilities, are unlikely to be accepted as able to provide the appropriate environment"

2.24 Children and young people are particularly vulnerable to the effects of alcohol – the earlier a young person begins to drink alcohol, the more likely they are to drink in ways that can be risky later in life. The 2005 Act creates a number of offences which relate to the sale or supply of alcohol to children and young persons (see Chapter 12 for more information).

2.25 Licensing Boards will wish to be mindful that children and young people can be impacted by exposure to marketing and promotion of alcohol within licensed premises. For example, Falkirk Licensing Board comments in its statement of licensing policy 2018 that:

• "Where licensed premises intend to hold events where alcohol is not provided and those events are specifically targeted at children or young persons (for, example, underage discos or parent and toddler groups), consideration should be given to taking steps to avoid any obvious promotion of alcohol."

2.26 Whilst alcohol licensing alone cannot directly address issues such as child sexual exploitation, Licensing Boards may wish to consider supporting work in this regard through signposting licence holders to further information or through partnership working. For example, the East Lothian Licensing Board statement of licensing policy 2018 signposts parties to "East Lothian & Midlothian Inter-Agency Guidance on Child Sexual Exploitation".

2.27 City of Glasgow Licensing Board's statement of licensing policy 2018 outlines that as part of the consultation process on the draft statement of licensing policy, the Licensing Board met with representatives from Barnardo Scotland, to hear about their campaign to work with businesses in Glasgow, including licensed premises, to help them understand their role in preventing and tackling child sexual abuse. In the finalised licensing statement, the Licensing Board encourages all licence holders and operators of licensed premises to carry out a risk assessment of their premises with regard to child sexual exploitation and use it to inform their written policies and procedures, as well as in staff training and refresher training and the Licensing Board states it will also consider making this a condition of a premises licence where it is considered necessary and appropriate to do so.