Licensing (Scotland) Act 2005

George Lyon MSP

SCOTLAND

LICENSING (SCOTLAND) ACT 2005

Interviews, controlling interest, March 2007, COMMENTS

Throughout February NIGHT has been talking to Scottish operators about their reaction to the Licensing (Scotland) Act 2005. Your responses have ranged from critical to positive, with some key issues remaining a cause for confusion. As the guidance and draft regulations await approval by parliament, NIGHT speaks to George Lyon, Licensing Minister for the Scottish Executive, about some of the finer points of the Licensing (Scotland) Act 2005, and how it will impact on the trade.

In England there was a lot of negative media coverage of the Licensing Act, with volatile terms such as ‘24 Hour Drinking’ or ‘Booze Britain’ adversely affecting the licensed trade. What do you anticipate the media perception of the Scottish Act will be?
The Scottish Executive has consistently maintained there would be a presumption against 24 hour drinking since the publication of the Nicholson Committee Report. This is a stance that is set out in the Licensing (Scotland) Act 2005, reiterated in the Licensing Guidance and a point we will continue to make when the question arises.

BEDA Scotland members are concerned that with the loss of grandfather rights on their licences, they will be in a worse position when the Act comes into place. What was the reasoning behind the removal of grandfather rights?
We have given partial grandfather rights which ensure a licence cannot be removed on the grounds of overprovision. However we have never guaranteed a complete buy in for the present alcohol licenses. This has never been available when people renewed their licenses every three years nor when they have had to renew their additional hour applications every year under the Licensing (Scotland) Act 1976.
The 2005 Act introduces a new regime where licences are granted in perpetuity. This means a Licensing Board will never need to revisit the premises licence of its own accord. With such a change we believe it is correct that all premises must apply for a licence under the new regime and that Licensing Boards have an ability to consider these licences if they believe it necessary. For the majority of well run premises this should not be a problem.

Do you think later trading and staggered hours benefit the public good?
Fundamentally this question is for local Licensing Boards as we expect them to apply local policies to deal with what are local circumstances. Licensing Boards will need to consider this question when producing their policy statements which we expect will draw on advice from the police and local licensing forum, which will consist of representatives from the trade and local community.

BEDA believes that a stringent set of late night mandatory conditions is a clear and efficient way of upholding the objectives of the Act. Where do you stand on this?
The Act will apply a number of mandatory regulations to all premises, for example irresponsible promotions. For those premises opening after 1am it is intended there will be a further set of mandatory conditions, however the majority of these will only be applicable to certain premises based on size and activity.
The Scottish Executive’s position remains to allow Licensing Boards to act with regards to the local situations. Therefore there is nothing to stop a Licensing Board applying additional conditions to a premises licence which fell outside the additional definition if it believed these additional conditions were necessary. A problem premises operating irresponsibly should be faced with more stringent conditions than the majority of responsible members of the trade.

What was the reason for limiting the off trade’s retailing hours to 12 a day? When can we expect the publication of the Scottish Executive’s research into the volumes of alcohol being consumed at home?
There is a strong link between alcohol consumption and antisocial behaviour, and the 2005 Act is consistent in putting a priority on tackling this for all types of alcohol sales. For on-sales, these links are direct and can be directly addressed as they are in the Act. For off-sales the linkage is more difficult to assess and address and for this reason parliament decided to take a ‘safety first’ option and apply national restrictions to off sales opening hours.
The Executive has commissioned research into the sale of alcohol from off-sales and which one aspect of this research was to look at how that alcohol was consumed. The report is due to be published shortly at which point I will carefully consider with Ministerial colleagues what action can be taken in light of the findings.

We understand that each licensing board will be required to create a cumulative impact policy after the implementation of the Act. Can licences be granted before the cumulative impact policies are in place?
In Scotland, the Licensing Act refers to overprovision of licensed premises rather than cumulative impact. Section 7 of the Act requires Licensing Boards to provide a statement in their Policy Statements with regard to overprovision of licensed premises. In determining overprovision, boards are required to have regard to the number and capacity of licensed premises in any locality within their area (to be determined by boards). Due to concerns raised by many Licensing Boards over the huge burden that would be placed on them of implementing the duty to assess overprovision of licensed premises this year, we took the decision to postpone commencement of the duty until the main provisions of the Act come into force in 2009. This will allow boards more time to gather the relevant information with regard to capacity of licensed premises, as required by the Act. However, the Act still provides a power for Licensing Boards to refuse an application for a premises licence on the grounds of overprovision. Guidance is currently before Parliament which sets out how Boards will implement the grounds for refusal during the transition period. Following approval of the guidance it will be issued to Licensing Boards.

Have you set a licence application fee?
A decision on fee levels has still to be taken, however you may wish to look at the Independent Fee Review commissioned by the Executive which will be referred to when the matter is being considered. Any regulations concerning fees will be subject to public consultation and we will continue to engage directly with BEDA Scotland as we implement the Act.
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