Please find attached a copy of the guidance issued to Licensing Boards in order to assist with the implementation the Alcohol etc. (Scotland) Act 2011. Sections 2 to 13 of the Alcohol Act make amendments to the Licensing (Scotland) Act 2005. The guidance is issued under section 142(1) of the 2005 Act and has been laid before Parliament. It is provided for Licensing Boards, but we hope that local authorities, the Police, Local Licensing Forums, Licensing Standards Officers, and the licensed trade and their representatives may also find it useful.
In addition to the guidance I wanted to touch on some related matters that the guidance does not cover.
LICENCE HOLDERS: SOCIAL RESPONSIBILITY LEVY
Sections 14 and 15 of the Alcohol Act sets out enabling powers for a social responsibility levy. Section 15 sets out those bodies that Scottish Ministers must consult with prior to a draft statutory instrument containing regulations being laid before Parliament. These include health boards, Licensing Boards, chief constables, local authorities, relevant licence-holders, and various voluntary organisations with an interest in health policy, alcohol policy and representing the interests of children and young people.
Section 14 gives the Scottish Ministers a power through regulations to impose a charge on holders of premises or occasional licences under the 2005 Act and on holders of street trader's licences (section 39), holders of public entertainment licences (section 41) and holders of late hours catering licences (section 42) under the Civic Government (Scotland) Act 1982. Money raised by the charge will be for local authorities to use in meeting or contributing towards the costs of dealing with the adverse effects of the operation of these businesses, for example extra policing or street cleaning or in furthering the licensing objectives listed in section 14(5). The uses to which the money is put requires the local authority to consult with the relevant health board and the appropriate Chief Constable.
Section 15(4) of the Alcohol Act sets out the procedures to be followed by Scottish Ministers for the purposes of the consultation referred to in section 15(3). Scottish Ministers must lay a copy of the proposed draft regulations before Parliament, send a copy to any person that is required to be consulted and consider any representations made on the proposed draft regulations within 60 days of them being laid before Parliament. Those required to be consulted are health boards; bodies that are representative of the interests of Licensing Boards; Chief Constables; local authorities; premises or occasional licence-holders; holders of street trader's, public entertainment and late hours catering licences; voluntary organisations having an interest in health policy, alcohol policy and representing the interests of children and young people; and such other persons (if any) that Scottish Ministers think appropriate.
The Scottish Government has been clear that the Levy will not be imposed until the economic circumstances are right.
PREMISES LICENCES
Variation of conditions
The 2005 Act only allows Licensing Boards to impose conditions in a premises licence when it grants the licence under section 27(6) or if it reviews a premises licence under sections 36 to 40. In these circumstances it may only do so on a case by case basis. Section 10 of the Alcohol Act inserts a new section 27A into the 2005 Act which enables Licensing Boards to vary the conditions of premises licences in relation to a matter prescribed by the Scottish Ministers in subordinate legislation in respect of all or some licensed premises in its area. This provides greater flexibility for Licensing Boards as it allows them to vary the conditions of premises licences of a category or group of licences as opposed to the current position which only permits a variation on a case by case basis. Examples of conditions that could be considered include matters such as requiring shatter proof glasses, CCTV of off-sales or the number of door staff in city centre establishments. Section 27A(2) prevents, however, Scottish Ministers from prescribing an age over 18 at which persons may purchase alcohol as a matter that a condition imposed under section 27A(1) could relate to.
A Licensing Board will only be able to exercise the power in the new section 27A if the Board considers it necessary or expedient for the purposes of any of the licensing objectives (section 4 of the 2005 Act).
Before making a variation the Licensing Board is required to publish a notice of the proposed variation to premises, in the prescribed manner and separately to give notice of the proposed variation, to premises licence-holders whose licences the proposed variation would apply to and to certain other persons (any local community council, the local authority, relevant health board, appropriate chief constable and the enforcing fire authority). Section 27A(7) requires these notices to state that any persons may make representations to the Licensing Board about the proposed variation and to set out the date by which such representations must be made. Section 27A(8) requires that if a Licensing Board receives any representations, then it must hold a hearing in relation to the proposed variation and may give any persons who made representations the opportunity to be heard.
Where a variation is made by a Licensing Board under 27A(1), the Board must comply with the following: amend the premises licence, give notice of the variation to the appropriate chief constable and the holders of premises licences in respect of premises to which the variation applies within a month, send a copy of the variation to the address of the premises to which the variation applies, and publicise the variation in such manner as the Board thinks fit. A variation will not have effect if the appropriate notice is not given.
Section 27(A)(11) gives Licensing Boards the power to revoke variations in the same way that they have the power to make variations.
OCCASIONAL LICENCES
Limits on numbers and duration of licences
The ability for Scottish Ministers to introduce limits on the number and duration of occasional licences has been considered necessary to ensure that the use of an occasional licence is not abused. An occasional licence is a licence which authorises the sale of alcohol on the premises and is appropriate for one-off functions or short term events that do not last more than a few days.
Section 13 of the Alcohol Act amends sections 56 and 59 of the 2005 Act by providing that Licensing Boards must refuse applications for occasional licences where this would exceed the occasional licence limit. The occasional licence limit will be that set out in section 56(6) of the 2005 Act in relation to a voluntary organisation. Should this become necessary, Scottish Ministers may make regulations setting out what is meant by the occasional licence limit in respect of cases other than voluntary organisations and members clubs.
Regulations prescribing the occasional licence limit may include limits on the number of occasional licences that may have effect in respect of the same applicant or the same premises in a 12 month period or may limit the number of continuous days on which occasional licences may have effect in respect of the same premises.
The occasional licence limit for a voluntary organisation will remain the limit already set out in section 56(6) of the 2005 Act and for members clubs in the Licensing (Clubs) (Scotland) Regulations 2007 (SSI 2007/76).
PROPOSED REGULATIONS TO BE MADE UNDER THE ALCOHOL ETC. (SCOTLAND) ACT 2010
We intend to lay before Parliament at the earliest opportunity regulations to deal with the following two issues.
2010 Act - Section 5: Off-sales: location of drinks promotions - mail shots in the vicinity of licensed premises
The Alcohol Act provides that drinks promotions can not take place outwith the alcohol display areas. An exception from the definition of "drinks promotion" in section 5(5) is "the display of any product which is (a) a branded non-alcoholic product for sale on the premises, or (b) a newspaper, magazine or other publication (i) for sale on the premises, or (ii) if not for sale on the premises, which does not relate only or primarily to alcohol." It is our intention that this exception also applies to publications distributed in the vicinity of premises so long as they do not relate only or primarily to alcohol. This would enable small retailers to distribute flyers in their neighbourhood.
2010 Act - Section 5: Off-sales: location of drinks promotions - drinks promotions displayed on the buildings of drinks companies
The Alcohol Act provides that drinks promotions can not take place outwith the alcohol display areas. Some stakeholders have raised the issue of whether there needs to be an exception to this relating to the display of drinks branding on the buildings of drinks companies. Drinks companies may provide a shop in their headquarters building for staff only which means they are required to have a premises licence under the 2005 Act. Such office blocks also generally display the names of the products they make on their building, either by way of signage, window transfers, flags etc. In addition, there may be various parts of the office complex which display alcohol branding, logos etc.. The issue is whether this signage/branding would be regarded as a "drinks promotion". If so, it would be required to be restricted to the alcohol display areas only and removed from all other parts of the building - both inside and out. It may, therefore, require an exception to be made in order to allow the status quo to continue.
I would be happy to discuss any of the matters contained either in this letter or the guidance and its annex.
T: 0131-244 4222