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

3. Licensing Boards

Introduction

3.1 This Chapter provides information about a range of activities – including publication of reports, training and fee setting – Licensing Boards undertake under the 2005 Act.

3.2 Licensing Boards were created by the Licensing (Scotland) Act 1976. Section 5 of the 2005 Act provides for the continuation of those Licensing Boards. This means that there is a Licensing Board for each local authority area or, where a local authority area has been divided into licensing divisions, a Licensing Board for each division.

3.3 The 2005 Act also allows for a local authority area which was not previously divided into licensing divisions to subsequently make such a determination. The existing Licensing Board is dissolved and a separate Licensing Board created for each of the divisions. In a similar vein any local authority can revoke a previous determination they have made to divide their area into licensing divisions. However, if they decide to do so, there is to be a single Licensing Board for the whole of the local authority area.

3.4 If a local authority decides to make any such determination or revocation they must notify the Scottish Ministers accordingly, no later than 7 days after doing so and must publicise it in a manner the local authority sees fit. For example this may be achieved by making the information available on the local authority's and Licensing Board's websites.

3.5 Licensing Boards are independent regulatory bodies governed by the 2005 Act as amended and associated statutory instruments. Local authorities elect members from amongst their councilors to form a Licensing Board. However, a Licensing Board is a separate legal entity from the local authority within whose area it sits. Licensing Boards are expected to operate in a transparent and fair way whilst being mindful of best practice when fulfilling their statutory duties and are accountable to their local communities.

3.6 Schedule 1 of the 2005 Act sets out procedural matters relating to the membership and other administrative matters for Licensing Boards provided for by section 5 of the 2005 Act. Whilst the Scottish Ministers have a number of powers under the 2005 Act to make subordinate legislation - to in effect put more flesh on the legislative framework set out in this piece of legislation – the 2005 Act is clear that the operation of the licensing system is the responsibility of the Licensing Boards. Licensing Boards have wide discretion to determine appropriate licensing arrangements according to the needs and circumstances of their local communities and their own legal advice.

Duties under the 2005 Act

3.7 Licensing Boards are required by the 2005 Act to carry out a number of duties some of which are described below.

Statement of Licensing Policy

3.8 The 2005 Act places a duty on Licensing Boards to publish what it refers to as a "statement of licensing policy" for their area for a three year period. This statement should, amongst other matters offer guidance and clarity on the policy on which a Licensing Board will base its decisions in implementing their functions under the 2005 Act. A Licensing Board may choose to publish a supplementary statement of licensing policy during the three year period that the statement of licensing policy applies. When preparing these documents a Licensing Board must consult with various people. Chapter 4 "Statement of Licensing Policy" covers this topic in more depth.

Overprovision Assessment

3.9 The 2005 Act placed a duty on Licensing Boards to make an assessment of overprovision and include a statement regarding this in their statement of licensing policy. This policy provides Licensing Boards with powers to consider the unique circumstances of their area and decide whether, based on local needs, it is appropriate to restrict access to alcohol through limits on new licences, licences of a particular type, or variations of existing licences. Where it is assessed that there is overprovision a rebuttable presumption is created against granting new licences although each case is judged on its own merits and there is always the possibility of exceptions. The Air Weapons and Licensing (Scotland) Act 2015 amended the 2005 Act overprovision assessment provisions. Chapter 5 "The Overprovision Assessment" covers this in more depth.

Public Register

3.10 In addition to the Freedom of Information requirements (see paragraphs 3.21 below) which Licensing Boards have to comply with, the 2005 Act places a duty on Licensing Boards to keep a licensing register containing the following information:

• premises licences, personal licences and occasional licences issued by the Licensing Board,
• the Licensing Board's decisions in relation to applications made to the Licensing Board under the 2005 Act, and
• other decisions of the Licensing Board relating to the licences mentioned in paragraph (a).

3.11 Licensing Boards are also required to make their licensing registers available for public inspection at all reasonable times. For example, the Dundee City Licensing website provides information on how to view public registers on-line and "in person". Dundee City Licensing pages.

Annual Reports

3.12 The Air Weapons and Licensing (Scotland) Act 2015 amended the 2005 Act to require Licensing Boards to prepare and publish an annual functions report and an annual financial statement no later than three months after the end of the financial year (31 March). Provision is also made in the 2005 Act which allows a Licensing Board, if they consider it appropriate, to prepare and publish a combined function and financial report and such a report must be published not later than 3 months after the end of the financial year in question.

Training of Licensing Board Members

3.13 The 2005 Act provides that an 'election of Licensing Board members' must be carried out by the local authority at their first meeting after each ordinary election of the local authority. All Licensing Board members must undertake the required training within 3 months of appointment. If the local authority area is divided into licensing divisions, each of the Licensing Boards for those divisions will have an 'election of members.' Each time members are re-elected they must undergo the training again, within three months of their re-election.

3.14 Members must provide evidence of having completed their training to the clerk to the Licensing Board within four months of the member's election or re-election. Until this has been done, the member may not take part in Licensing Board proceedings. If the member fails to undergo training within three months, or to submit evidence within four months, of election or re-election, the member ceases to hold office.

3.15 Consideration should be given by the Licensing Board to co-ordinate accredited training for new and re-elected members along with other persons for which training is relevant, for example, members of the Local Licensing Forum and local Licensing Standards Officers. This could assist with gaining an understanding of each of their respective roles and build good working relations. Consideration could also be given to including information on relevant local issues alongside the training.

3.16 As with Licensing Standards Officer training (see Chapter 7), Licensing Board members training has been reviewed and a revised training specification submitted to and accredited by Scottish Ministers. As part of the training qualification project to refresh the Licensing Board Member training and the Licensing Standards Officer training both specifications were also considered by a steering group who consulted and agreed on the proposed content in particular, the Scottish Qualifications Authority who have had significant involvement in advising on and developing the training specification. The following topics require to be covered under the accredited training:

Introduction to alcohol licensing

• what the Licensing (Scotland) Act 2005 covers
• reason for the Licensing (Scotland) Act 2005
• responsibility of Licensing Board members to regulate the sale of alcohol, and premises on which alcohol is sold

The 5 licensing objectives

• what the 5 licensing objectives are
• how alcohol can impact on the 5 licensing objectives

The quasi-judicial process

• role of the Licensing Board in upholding the 5 licensing objectives through policy and decision making
• decision making
• disqualification from the Licensing Board

The creation, monitoring and review of appropriate licensing board policy

• creation of a statement of licensing policy
• relationship with other policies
• duty of the Licensing Board to assess overprovision and make statements of licensing policy
• monitoring of the statement of licensing policy

Key role of others

• role of the Clerk
• role of the applicant and their agent
• constitution and role of the Local Licensing Forum and the Licensing Board's duty in relation to Local Licensing Forums
• constitution and role of the Licensing Standards Officer in relation to the Licensing Board and local authority
• role of the Health Board
• role of the Police
• overview of other statutory bodies involved in the licensing process
• role of the public in licensing

Premises and occasional licences

• what is a premises licence
• role of premises manager
• objections
• licence conditions
• determination of a premises licence application
• review/variation/transfer of a premises licence
• provisional/temporary licence
• occasional licences

Personal licences

• what a personal licence is
• action against personal licence holders

Licensed hours

• what are Licensed hours
• extensions to licensed hours

Fees

3.17 Fees to be charged by Licensing Boards in relation to various matters under the 2005 Act are set out in secondary legislation - The Licensing (Fees) (Scotland) Regulations 2007 as amended – by the Scottish Ministers. These fees cover a range of activities including, amongst others, annual premises licence applications, annual premises fees, occasional licence applications. The regulations also enable Licensing Boards to set various fees in relation to more routine processes carried out under the 2005 Act.

3.18 The fees regime is intended to reflect the Scottish Government's intention for the system to be self-funding i.e. to cover both direct and indirect costs incurred by Licensing Boards. In other words, the money raised by fees should be broadly equivalent to the expenses incurred by the Licensing Board and the local authority for that area of the Licensing Board, in administering the licensing regime during that period.

Engagement Strategies

3.19 Licensing Boards should have effective engagement strategies in place to enable them to engage with and seek the views of their local community. In the case of Local Licensing Forums (see Chapter 6) who play a significant role in reviewing the operation of the licensing system in their locality, the 2005 Act requires each Licensing Board to hold, at least once in each calendar year, a joint meeting with the Local Licensing Forum for its area.

Complaints

3.20 Any complaint about a Licensing Board should be made to the Licensing Board itself in the first instance. If this does not resolve the matter, then a complaint can be made to the relevant local authority. Local authority websites provide information about their own complaints procedure. If after going through the local authority complaints procedure the matter remains unresolved then the final stage for complaints about public organisations is the Scottish Public Services Ombudsman. The Ombudsman's website sets out its complaints procedure.

Freedom of Information (Scotland) Act 2002

3.21 Licensing Boards are public authorities and as such are subject to the Freedom of Information (Scotland) Act 2002 which requires them to publish information as well as respond to requests. Information is published under the publication scheme duty. All Scottish public authorities have adopted the Scottish Information Commissioner's Model Publication Scheme as the basis for deciding what information they proactively publish. The Model Publication Scheme (itspublicknowledge.info) for Scottish Public Authorities was updated in March 2021.

Public Sector Equality Duty – Equality Act 2010

3.22 The public sector equality duty in section 149(1) of the Equality Act 2010 requires public authorities (including Licensing Boards) to have due regard, when exercising their functions, to the need to:

• eliminate discrimination, harassment, victimisation and any other conduct that is prohibited by or under the Act;
• advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it; and
• foster good relations between persons who share a relevant protected characteristic and persons who do not share it.

3.23 It is supported by the specific duties contained in The Equality Act 2010 (Specific Duties) Scotland Regulations 2012 (SSI 2012 No.162) as amended. The purpose of the Regulations is to place specific duties on some of these authorities (including Licensing Boards) to enable them to better perform their public sector equality duty.

3.24 To support Scottish public authorities in meeting their equality duties, the Equality and Human rights Commission has produced technical and non-statutory guidance.