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

4. Statements Of Licensing Policy

Introduction

4.1 This Chapter provides information on the development and preparation of statements of licensing policy (referred to in the 2005 Act as a 'statement of licensing policy'). Each Licensing Board is required by section 6 of the 2005 Act to publish a statement of licensing policy before the beginning of each licensing policy period. Whilst the 2005 Act allows Licensing Boards to delegate certain functions, they cannot delegate responsibility for determining their licensing/supplementary statement of licensing policies.

4.2 The Air Weapons and Licensing (Scotland) Act 2015 amended the 2005 Act in relation to licensing policy periods. A statement of licensing policy will generally have effect from 18 months after a local authority election (which occur, at least, every five years) until 18 months after the next local authority election. For example following local authority elections in May 2017, Licensing Boards had to have agreed and published a statement of licensing policy by November 2018 which will cover the period to November 2023 (assuming local authority elections in May 2022).

4.3 Linking the statement of licensing policies to the local authority elections enables newly appointed Licensing Board members to use the statement of licensing policy inherited from their predecessor Licensing Board during the interim period i.e. up to 18 months post the local authority election. This allows the Licensing Board to take stock following an election, take the views of others into consideration, gather evidence and set policy statements that reflect their views and aspirations whilst being mindful of the need to promote the five licensing objectives and to be consistent with the provisions of the 2005 Act.

4.4 A Licensing Board may also issue supplementary statement of licensing policies which will be with respect to the exercise of their functions during the remainder of that licensing policy period or until it is superseded by another supplementary statement of licensing policy or new statement of licensing policy. For example North Lanarkshire Licensing Board's statement of licensing policy in its preamble section states: "This policy will be applied during the period until 18 months after the next ordinary local government elections; it will be kept under review and revised, if appropriate, by the issue of supplementary statements, during this period".

4.5 The statement of licensing policy must be published before the beginning of the licensing policy period. Once published, Licensing Boards must make copies of a licensing and any supplementary statement of licensing policy for public inspection free of charge and publicise this fact. It is recommended that licensing and supplementary statement of licensing policies are made available on the Licensing Board website and/or the alcohol licensing section of the relevant local authority website.

4.6 The statement of licensing policy is an important part of an assessment of the wider considerations at play within the Licensing Board area and should set out a general approach to the making of licensing decisions, but must not ignore, or be inconsistent with, provisions in the 2005 Act. However, it must also not simply be a repeat of what is set out in legislation or statutory guidance. It should provide a clear indication to the local community as to the Licensing Board's evidenced based policy and should seek to promote the licensing objectives (see Chapter 2 for more about the licensing objectives) set out in the 2005 Act. It is important that statement of licensing policies should be written in terms that can be easily understood by the local community as consultation with the local community (including Local Licensing Forums), is a key part of providing feedback to Licensing Boards.

What should, may and should not be included in a statement of licensing policy

4.7 The statement of licensing policy should include:

• A clear indication of the Licensing Board's policy on the granting of licensed hours generally, and where different policies may apply in different localities according to local circumstances;
• A statement of their policy on overprovision (see Chapter 5 for more about the overprovision assessment) of licensed premises or particular types of premises and which localities (if appropriate) have (1) been determined to be overprovided for by the Licensing Board, or (2) are approaching overprovision, including the evidence upon which the Licensing Board relied and the material considerations taken into account;
• A note which states that where an application is made for the confirmation of a provisional premises licence (section 46 of the 2005 Act refers), that the Licensing Board may make a variation to the conditions for the purposes of "ensuring consistency with any statement of licensing policy since the licence was issued".
• A general statement on how many Licensing Standards Officers the local authority employs, their role and remit, and how they can be contacted; and
• A statement of the agreed procedures the Licensing Board has developed for handling applications, objections, representations, delegation of functions and review hearings etc. for premises and personal licences.

Licensed hours

4.8 In relation to licensed hours, the statement of licensing policy should:

• State that licensed hours will be those agreed following the Licensing Board's consideration of the operating plan and any mandatory and local licence conditions applied. Particular attention should be drawn to those premises wishing to open after 1 am since additional mandatory licence conditions will apply (see Chapter 8 for more about Premises Licences). It is important that in developing its policy on licensed hours, the Licensing Board must take account of the views of the Local Licensing Forum so that any policy published has the backing and confidence of the local community. Further to this, following a review, reducing licensed hours can be one of the sanctions applicable against a licence holder.
• Provide a clear indication of the Licensing Board's policy in relation to licensed hours in general and outline any specific areas of the policy which may differ from that general policy e.g. where different policies may apply in different localities according to local circumstances, if appropriate. Evidence for the policy approach should be included within the statement of licensing policy (this may be in an annex to the statement of licensing policy) in the interests of transparency and openness.
• State that each application will be considered on its individual merits. However, it is important that the Licensing Board is alert to, and the statement of licensing policy recognises, the aggregate effect that a number of licensed premises may have on a community. For example, consideration should be given as to ways in which large numbers of customers leaving premises simultaneously can be appropriately managed. This might be necessary to reduce friction outside establishments, at taxi ranks and other transport sources, which can lead to disorder and disturbance.
• Observe the presumption in section 64 of the 2005 Act against 24 hour opening in Scotland for on and off sales. Licensing Boards are entitled to agree exceptions to that presumption but only if satisfied that there are exceptional circumstances justifying it. Ministers are of the view that Licensing Boards should consider "exceptional circumstances" to cover social events such as one-off local or national festivals.

4.9 A Licensing Board may extend the licensed hours in respect of the premises by such period as is specified in the extended hours application or such other period as the Licensing Board considers appropriate. Irrespective of the time period for the extended hours requested by the applicant or such other period as the Licensing Board considers suitable, the time period for the operation of the extended hours must be a maximum of one month.

4.10 In considering applications relating to licensed hours, Licensing Boards may wish to consider applications for up to 14 hours continuous trading as being reasonable but local circumstances and views of those represented by Local Licensing Forums should always be considered. Any application for licensed hours for more than 14 hours should require further consideration of the effect of granting extra operating hours. It is unlikely that "exceptional circumstances" would be justified in the case of premises where there were routine requests to sell alcohol for 24 hour periods.

4.11 Other considerations that may be included in the statement of licensing policy are:

• A clear indication of how the Licensing Board will take into account other strategies when developing their policy statement, for example, Community Planning Partnerships, Local Health Improvement Plan, Alcohol & Drug Partnership, local crime prevention.
• Being clear that no statement of policy overrides the right of any person to make representations on an application or to seek a review of a licence where such provision has been made in the 2005 Act.

Relationship with other strategies and regimes

4.12 The alcohol licensing regime in Scotland does not exist in a vacuum and Licensing Boards should clearly explain how they will take into account other pertinent strategies and regimes when developing their statement of licensing policy. For example, the Western Isles Licensing Board statement of licensing policy comments that "The Board will work and appoint a Board Member to work with the Outer Hebrides Alcohol and Drug Partnership and the Outer Hebrides Community Safety Partnership in the Western Isles; the importance of such co-operation is recognised as part of the wider alcohol agenda".

Planning

4.13 A statement of licensing policy should indicate that planning, building control and licensing regimes have separate processes and applications which have to be considered on their merits under the relevant regime. A good practice example is the City of Edinburgh's statement of licensing policy where at Chapter 2 "Wider Context" it is stated that "in particular, the board's licensing functions will be discharged separately from the Council's functions as the local planning authority. The Board recognises that planning and licensing regimes are separate and that the processing of licensing applications should be an exercise distinct from the processing of planning applications. Notwithstanding that, consultations with the Council's Planning service are carried out on all licensing applications to underpin the common approach referred to below. The Board as the licensing authority will not be bound by decisions made by the Council as the local planning authority. Applicants for licences will be reminded that planning permission may be required for certain uses and that planning consents may carry conditions."

Transport

4.14 A statement of licensing policy should describe any arrangements between the police and Licensing Standards Officers for reporting views or concerns to the local authority transport committee (or other bodies with responsibility for transport in their area). The police are best placed to advise on the need to disperse people from town and city centres quickly and safely to avoid high concentrations of people in particular vicinities which may lead to disorder, disturbance and pressures on public transport facilities. The use of taxi contracts, taxi marshals are examples of ways in which large numbers of people can be safely dispersed from pubs and clubs.

Tourism

4.15 Statement of licensing policies should indicate that arrangements have been put in place for Licensing Board to receive, when appropriate, reports on the local tourist economies for their area to ensure these are reflected in their considerations. A good practice example can be found within Fife's Licensing Board's statement of licensing policy which makes reference to and agrees with views expressed by the Fife Tourism Partnership regarding the importance of tourism to Fife and supports the creation of high quality facilities for tourists and a vibrant night time economy in the larger settlements in Fife. Fife's statement of licensing policy also states that "the Board will seek reports from the tourism agencies on the local tourist economy to ensure that they are reflected in the Board's considerations".

4.16 The statement of licensing policy should not include:

• An intention to introduce (by means of the imposition of licence conditions) a prohibition on the sale of alcohol for consumption off the premises to those over 18 but under 21, whether in relation to some or all premises in the Licensing Board's area. However, this does not prevent a Licensing Board from imposing licence conditions restricting off-sales of alcohol to people under 21 on a case by case basis.

Licensing policy and the licensing objectives

4.17 As discussed above, when preparing a statement of licensing policy or a supplementary statement of licensing policy, a Licensing Board is required by the 2005 Act to ensure that the policy stated in these statements seeks to promote the 5 licensing objectives. The 5 licensing objectives are (covered in more detail in Chapter 2):

• Preventing crime and disorder;
• Securing public safety;
• Preventing public nuisance;
• Protecting and improving public health; and
• Protecting children and young persons from harm.

4.18 Licensing Boards are required to have regard to these 5 objectives when carrying out their functions under the 2005 Act. The 5 objectives carry equal weight and importance. Inconsistency with one or more of the objectives could provide a basis for refusal of an application.

4.19 A policy must also be consistent with the principles of what constitutes a lawful policy in general administrative law terms. Licensing clerks will be familiar with Calderwood v Renfrewshire Council (2004) Inner House of the Court of Session.

4.20 The licensing policy must not be inconsistent with the licensing objectives. If the licensing objectives pull in one direction and policy in the opposite, then the objectives rule. If both tend to the same view then policy simply reflects the licensing objectives.

4.21 Where an application comes before a Licensing Board which is contrary to the licensing policy, this does not necessarily mean that the application should be refused. It would be appropriate to refuse the application if it was inconsistent with the licensing objectives. Policy is an expression of how those objectives can be met. Inconsistency with policy can therefore be an important factor in deciding whether there is an inconsistency with the licensing objectives.

4.22 As licensing policy has a substantial role to play in promoting how the licensing objectives might be met, inconsistency with policy may be an indicator that the refusal of the application should follow. Equally, consistency with policy maybe an indicator that an application is consistent with the licensing objectives. The licensing policy is entitled to be given considerable weight. It is not merely a guideline. It is for the Licensing Board to determine whether what is proposed is inconsistent with the policy and whether the grant of the application would impact upon the rationale for the policy.

4.23 To assist Licensing Boards in their consideration of whether an application is consistent with their policy and the licensing objectives, Licensing Boards may wish to consider asking applicants to set out in their operating plan how they will address the licensing objectives and also to supply a written statement detailing how they will promote the licensing objectives. A good practice example is Falkirk Licensing Board's statement of licensing policy which says:

• "While not a requirement of the Act, the Board expects applicants for new and provisional Premises Licences and transfers of Premises Licences to accompany their applications with a written statement tailored to their particular premises setting out how they intend to conform to the 5 licensing objectives, paying particular attention to the locality in which the premises are situated and the activities to be carried out. The Board is of the opinion that a written statement demonstrates an active and thoughtful engagement with the licensing objectives".

4.24 Falkirk's statement of licensing policy goes on to say that: "The Board expects that an occasional licence will be operated in such a manner as to be consistent with the five licensing objectives. To that end, the Board requires applicants for occasional licences to submit with their application a written statement explaining how they will promote the five licensing objectives." To help applicants, Falkirk Licensing Board has attached a pro forma to the application form (available on the occasional licence page of Falkirk Council's website) to be completed and the website also indicates that "if applicants need assistance then contact one of the Licensing Standards Officers to make an appointment".

Matters to consider when preparing a statement of licensing policy

4.25 It is good practice when considering a new statement of licensing policy or supplementary statement of licensing policy to evaluate the impact the previous statement of licensing policy or supplementary statement of licensing policy. The output from this evaluation exercise can help inform the development of the new statement of licensing policy or supplementary statement of licensing policy. The development of a new statement of licensing policy also provides a Licensing Board with the opportunity to consider and reflect on any emerging issues and whether this might result in the need to consider a change in policy.

4.26 In the interests of openness and transparency Licensing Boards will wish to consider including some narrative in their statement of licensing policy (perhaps as an annex) to explain the evaluation process and how this fed into the development of a new statement of licensing policy.

4.27 The 2005 Act provides that, at the request of a Licensing Board, the Chief constable, the relevant health board or the relevant local authority must provide to the Licensing Board statistical or other information that it may reasonably require for the purpose of preparing a supplementary/statement of licensing policy. Relevant information from these parties will help develop a solid evidence base on which the Licensing Board can build its licensing policy. Licensing Boards may find it helpful to discuss and agree with these parties, in advance of the information being required, what the most useful categories of information might be and in what format the information should be presented. This should ensure any potential difficulties are highlighted and resolved at an early stage.

4.28 It is important that Licensing Boards consider and evaluate any evidence gathered to ensure there is a reliable and credible basis on which to develop their policy. Local Licensing Forums may be well placed to assist Licensing Boards with this matter. Licensing Boards should give appropriate weight to the views and responses obtained.

4.29 After the initial evidence gathering process, it is good practice for Licensing Boards to publish their draft statement of licensing policy for comment. For example Argyll and Bute Licensing Board carried out a 7 week consultation on a draft statement of licensing policy in early 2020. Argyll and Bute Licensing Board helpfully also provided a list of policy changes between the existing statement of licensing policy and the proposed new draft statement of licensing policy.

4.30 Argyll and Bute Licensing Board also published a "You said, We did" document on the relevant local authority website. This provided information on the number of responses received and an outline of what the responses covered, with issues of particular note being highlighted. The document also advised the consultation feedback was considered by the Licensing Board at its June 2020 meeting and changes were made to the licensing document prior to its finalisation and subsequent publication. In cases where there may be substantial differences between the draft statement of licensing policy consulted on and the final statement of licensing policy which is published, then in the interests of openness and transparency, Licensing Boards may wish to reflect on the need to fully explain the decision making process which resulted in their arriving at the final statement of licensing policy.

4.31 When preparing a licensing or a supplementary statement of licensing policy, a Licensing Board is required by the 2005 Act to consult—

the Local Licensing Forum for the Board's area, if the membership of the Forum is not representative of the interests of all of the persons specified in paragraph 2(6) of schedule 2, such person or persons as appear to the Board to be representative of those interests of which the membership is not representative, the relevant health board, and such other persons as the Board thinks appropriate.

4.32 In short, a Licensing Board should consult its local community in its widest sense. For example, Aberdeen City Licensing Board's convenor commented in her introduction to her Board's 2018 Statement of licensing policy that:

• "In order to create a policy that stakeholders could feel they had helped shape, the Board recognised that they would have to rewrite the Policy and not simply amend what had gone before. To that end, the Board carried out extensive consultation which included holding a Licensing Conference. The collaborative approach generated some very interesting feedback from the community and public-sector partners, residents and the trade which helped the Board to understand their needs and wishes."

Review of the statement of licensing policy

4.33 In exercising their functions under the 2005 Act, a Licensing Board must have regard to the current statement of licensing policy and any relevant supplementary statement of licensing policy, published by the Licensing Board. Licensing Boards must keep the effectiveness and rationale of the statement of licensing policy under review and make revisions as and when appropriate.

4.34 The Air Weapons and Licensing (Scotland) Act 2015 amended the 2005 Act to place a duty on Licensing Boards to prepare and publish an annual report on the exercise of their functions no later than three months after the end of the financial year (i.e. year ending 31 March). This report should contain a statement explaining how the Board has had regard to the licensing objectives, their statement of licensing policy, and any supplementary statement of licensing policy in the exercise of their functions under the 2005 Act during the financial year.

4.35 Being able to review the statement of licensing policy means that where a decision made by the Licensing Board, inadvertently, has an unintended consequence on the local community, there is a mechanism for the Licensing Board to review this decision. Local Licensing Forums can be of particular assistance to Licensing Boards in terms of providing feedback on how a specific policy is impacting on the local community.

Other considerations

4.36 There are of course many other matters that Licensing Boards can include in their statement, for example, their policy on outdoor seating areas and the suitability of take-away premises for the sale of alcohol for consumption off the premises.