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Further Options for Alcohol Licensing - Consultation Paper

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Chapter 2 - Proposals to strengthen the powers of Licensing Boards and the police

1. Further criminalising the supply of alcohol to under 18s - extend existing criminal law to cover the supply of alcohol to under-18s in a public place.

2. Restrictions where disorder is likely to occur - police powers

3. Restrictions where disorder is likely to occur - Licensing Board powers

4. Enable Licensing Boards to apply new local licensing conditions to all existing licensed premises without the need to update individual licences.

5. Reintroduction of the "Fit and Proper" test - Licensing Boards are currently limited to considering relevant convictions notified by the Chief Constable when determining whether someone should be granted a personal licence.

6. Place a statutory duty on Licensing Boards to promote the licensing objectives.

7. Place a statutory duty on Licensing Boards to report annually on how the board fulfilled its duty to promote each of the licensing objectives

8. Place a statutory duty on Licensing Boards to gather and assess information on each of the five licensing objectives in the 2005 Act in the preparation of their statement of licensing policy.

9. Extend the period that a statement of licensing policy is in force to five years and introduce a statutory ouster limiting appeals against an adopted licensing policy statement outside its introductory period.

10. Consideration of English Language ability

Proposal 1 - Further criminalising the supply of alcohol to under 18s - extend existing criminal law to cover the supply of alcohol to under-18s in a public place.

8. The SNP manifesto included a commitment to take forward action as follows.

"We will also clamp down on those adults who supply booze to kids. A legal loophole means that adults can buy alcohol for someone under the age of 18 if the alcohol is consumed in public. This encourages outdoor drinking dens of young people, where those in the group who are over 18 buy alcohol for younger members. We will close this loophole and give the police the power they need to disrupt these drinking dens."

9. Working in conjunction with early intervention campaigns to address underage drinking and reduce alcohol fuelled anti-social behaviour and violence, the police are able to confiscate alcohol from children and young people intent on drinking in public places and from adults supplying alcohol to child and young people for consumption in public places. They describe this approach as "putting out the fire by removing the fuel". During these campaigns Strathclyde Police found the majority of 'outdoor drinking dens' consisted of small clusters of people ranging in ages from 14 to 21. In many cases those over 18 were the suppliers of alcohol to those under 18.

10. There are existing offences under the Licensing (Scotland) Act 2005, section 105 relating to buying alcohol on behalf of a child or young person or for consumption on licensed premises. Local byelaws, set by local authorities, can also make it an offence to drink in public, however these do not apply across all of Scotland and they operate differently in different areas.

11. When Strathclyde Police confiscated the alcohol they found they were powerless to stop those over 18 simply buying and sharing more alcohol which led to a continuing cycle of confiscation and purchasing. The police were unable to take any further action because it is not, in itself, against the criminal law to give alcohol to someone under 18 for consumption in a public place.

12. We believe that the criminal law should make it illegal to supply alcohol to a person under 18 for consumption in a public place. This may be achieved either through the creation of a new specific offence or adapting the existing section 105 offence contained within the 2005 Act. We consider that the law should not make any exemptions. This would assist in addressing under-age drinking.

13. Such a change would, for example, criminalise parents who served alcohol to their children at, for example, family picnics in public places. However we would expect that police and prosecutors would use their discretion to avoid over-zealous enforcement.

Proposal 1

1. Criminalise supplying alcohol to a person under 18 for consumption in a public place.

Questions

2. Do you agree that it should be illegal for adults to supply alcohol to an under 18 for consumption in a public place?

3. Are there specific circumstances in which this should not be illegal?

Proposal 2 - Restrictions where disorder is likely to occur - Police powers

14. The Joint Action Group (JAG) on Football has agreed that alcohol fuels much of the violence and disorder associated with football and felt that more needs to be done to restrict access to alcohol before, during and after football matches. The JAG proposed the introduction of legislation similar to the Licensing Act 2003 section 160, (effective in England and Wales) which would allow a senior police officer to apply to a court requesting the imposition of restrictions on licensed premises within an area where disorder is likely to occur, for example within the vicinity of a football stadium before, after and during a high risk match.

15. Section 160 of the Licensing Act 2003, provides police officers in England and Wales with the power to apply to court for an order requiring all licensed premises which are situated at or near the place of disorder, or anticipated disorder, to be closed for a period of up to 24 hours. The guidance supporting this legislation highlights that events which might justify action under section 160 could include football fixtures with a history of public order problems. When seeking an order under section 160, the burden of proof falls on the police to satisfy the court that their intelligence or evidence is sufficient to demonstrate that such action is necessary.

16. The aim of the proposal is to reduce availability of alcohol around events such as football matches and therefore to have an impact on reducing alcohol-related disorder. It may also help with dispersal of supporters following a football match - something which the police have highlighted as an issue. The proposal could also be applied to marches or other events likely to be associated with significant disorder. It is recognised, however, that this proposal would raise significant concerns amongst establishments located close to some football grounds.

17. Currently in Scotland, police have the powers, under section 97 of the Licensing (Scotland) Act 2005, to apply to a Licensing Board to close individual licensed premises in the interests of public safety. This proposal would extend beyond individual premises to cover all the premises in a specified geographical area.

Proposal 2

Give the police powers to impose restrictions on licensed premises, both the on and off trade, within an area where disorder is likely to occur

Questions

4. Does section 97 form a suitable basis on which to provide extended police power?

5. Should the procedure under s97 be extended to allow the police to apply to the Board for the closure of premises within a geographical area, or should the police instead have to apply to the Sheriff for approval of restrictions in a wider geographical area?

6. Should exceptions be allowed within the geographical area, for example for pre-arranged wedding receptions, directors' boxes/corporate hospitality, etc.?

Proposal 3 - Restrictions where disorder is likely to occur - Licensing Board powers

18. The Joint Action Group (JAG) on Football also proposed that Boards should be able to impose additional conditions to apply variations to opening hours for some or all licensed premises to restrict the sale of alcohol around football matches

19. There would have to be significant risk before this proposal was utilised. The aim of this recommendation is to help to reduce availability of alcohol around football matches.

20. Section 10 of the Alcohol etc. (Scotland) Act 2010 inserted a new section 27A into the 2005 Act which enabled Licensing Boards to vary the conditions of individual premises licences in respect of all the premises in its area or vary a group of licences in respect of matters prescribed by the Scottish Ministers. A Board will only be able to exercise the power if it considers it necessary or expedient for the purposes of any of the licensing objectives and in relation to matters prescribed in regulation. Scottish Ministers could therefore lay regulations to allow Boards to restrict opening hours in relation to specified matters. Section 27A requires Boards to publish a notice of any proposed variation, stating that any persons may make representations to the proposed variation and these would trigger a hearing.

21. The time required by these procedures make it unlikely that section 27A could be used for an imminent match. However a condition could be applied relating to all matches, home matches, derby matches, or other event likely to trigger disorder, provided a clear definition could be provided.

22. It would be exceedingly difficult for a Board to devise a condition that served the intended purpose, without being unduly onerous. Once the condition is imposed, it could not easily be changed or relaxed, and a breach would be an offence.

Proposal 3

Boards should be able to impose additional conditions to apply variations to opening hours for some or all licensed premises to restrict the sale of alcohol around football matches or other events likely to be associated with disorder

7. Should Boards be able to impose additional conditions to apply variations to opening hours for some or all licensed premises to restrict the sale of alcohol around football matches or other events likely to be associated with disorder?

8. Do you have concerns about this proposal, and if so, what are they?

Proposal 4 - Variation of local licensing conditions

23. As detailed above at Proposal 3, section 10 of the Alcohol etc. (Scotland) Act 2010 inserted a new section 27A into the 2005 Act which enabled Licensing Boards to vary the conditions of premises licences in respect of all the premises in its area or vary a group of licences, in respect of matters prescribed by the Scottish Ministers.

24. Section 27A as introduced prevents Boards from attaching conditions unless they are prescribed by Scottish Ministers.

25. Whilst it may be possible for Ministers to prescribe a wide range of conditions this potentially prevents Boards from dealing with issues at a local level. It is therefore proposed to remove the restriction to matters prescribed by Scottish Ministers.

26. We would expect that any introduction of blanket conditions would still have to be subject of consultation, and the usual constraints, for example those at section 27(7) and should ultimately be included within a Board's Statement of Policy.

27. Although it would be open to the Board to carry out what is in effect a 'bulk update' of premises licences, any changes to the legislation would need to ensure that licence holders retained the ability to require a hearing to consider the variation, and possibly a right of appeal to the Sheriff. The Board would also need to ensure that existing premises licences were physically updated, to ensure that up-to-date copies were held on licensed premises.

Proposal 4

Enable Licensing Boards to apply new local licensing conditions to all existing licensed premises without the need to update individual licences.

Questions

9. Should Boards be able to apply new licensing conditions to all existing licensed premises without the need to consider each individual licence?

10. What procedure should apply before such conditions are applied and what rights of appeal would be appropriate?

Proposal 5 - Fit and proper

28. Many licensing regimes rely on a 'fit and proper' test as to whether someone is suitable to hold a licence. Indeed the previous alcohol licensing regime included a 'fit and proper' test. There is no 'fit and proper' test under the 2005 Act, various other tests are applied, for example in relation to a premises licence the Chief Constable may object that the applicant is involved in 'serious organised crime', while in relation to both the premises and personal licence the Chief Constable should advise whether the applicant has been convicted of any relevant offence or foreign offence.

29. The current system of relevant offences is complicated and difficult for members of the trade to understand without some form of legal assistance. The increased use of "alternatives to prosecution" and "non court disposals" specifically in relation to licensing offences, is having a direct impact on the ability of the police to present relevant information to Boards.

30. It is argued that returning to a 'fit and proper' test would give the police greater scope to present information to Boards, and give Boards the ability to consider a greater breadth of relevant information when determining a licence application.

Proposal 5

Allow Boards to consider whether an applicant is a 'fit and proper' person to hold a licence.

Questions

11. Should the legislation be amended so that Boards are asked to consider whether an applicant is a 'fit and proper' person?

12. Should there be a definition of 'fit and proper' and if so, what should it consist of?

Proposal 6 - Promotion of the licensing objectives

31. This is a recommendation made by Alcohol Focus Scotland (AFS) and Scottish Health Action on Alcohol Problems (SHAAP) in their report "Rethinking Alcohol Licensing" published September 2011 to place a statutory obligation on licensing boards to promote the licensing objectives.

32. The 2005 Act provides that central to the licensing of alcohol in Scotland are five "licensing objectives".

(a) preventing crime and disorder,
(b) securing public safety,
(c) preventing public nuisance,
(d) protecting and improving public health, and
(e) protecting children from harm.

33. At present the objectives provide the basis for various Board decisions and should be promoted in their licensing policy statements. It is argued that further strengthening this to require Boards to promote the licensing objectives would ensure that the objectives are promoted each time that the Board exercises its functions under the Act.

34. This would be akin to the position in the Licensing Act 2003 for England and Wales.

Proposal 6

Place a statutory obligation on Licensing Boards to promote the licensing objectives.

Questions

13. Should Boards be placed under a statutory obligation to promote the licensing objectives?

14. What impact would this have on the work of Boards

Proposal 7 - Statutory duty on boards to report

35. As an extension of the above proposal to require Boards to promote the licensing objectives, Alcohol Focus Scotland have also proposed that Boards be put under a statutory obligation to report each year on how the Board has fulfilled its duty to promote each of the licensing objectives.

36. Licensing Boards already provide annual statistics to Scottish Government. This collection of information could be expanded to include Board reports, or they could be submitted separately.

37. If it is decided to proceed, then it would be necessary to decide what format the Board reports should take and what information they should include.

38. Local Licensing Forums are already able to ask for information and statistical data on the Board's functions and they should be best placed to question the operation of Boards. At least once in each calendar year the Licensing Board must have a joint meeting with the Local Licensing Forum.

39. At present there is not a statutory obligation on Boards to provide statistics to the Scottish Government. It would be possible to make this a statutory requirement.

Proposal 7

Boards be put under a statutory obligation to report each year on how the Board has fulfilled its duty to promote each of the licensing objectives

Questions

15. Should Boards be placed under a statutory obligation to report each year on how the Board has fulfilled its duty to promote each of the licensing objectives?

16. Should the report be submitted to Scottish Ministers, the Local Licensing Forum, and/or some other body?

Proposal 8 - Statutory duty on boards to gather and assess information

40. This is another recommendation made by Alcohol Focus Scotland (AFS) and Scottish Health Action on alcohol Problems (SHAAP). It is proposed that a statutory duty be placed on Licensing Boards to gather and assess information on each of the five licensing objectives in the 2005 Act in the preparation of their statement of licensing policy.

41. It is argued that this would place beyond doubt that a Licensing Board should gather sufficient information to formulate its policy. Imposing a statutory duty on boards to gather and assess information on each of the five licensing objectives would help ensure that Boards' policies were based on the best available evidence and, in theory, were less likely to be successfully challenged.

Proposal 8

Place a statutory duty on Licensing Boards to gather and assess information on each of the five licensing objectives in the 2005 Act in the preparation of their statement of licensing policy

Questions

17. Should Boards be placed under a statutory duty to gather and assess information on each of the licensing objectives in the preparation of their statement of licensing policy?

18. What benefits would such a statutory duty bring?

Proposal 9 - Extend period of statement of licensing policy

42. This is another recommendation made by Alcohol Focus Scotland (AFS) and Scottish Health Action on Alcohol Problems (SHAAP). It is proposed to extend the period that a statement of licensing policy is in force to five years and introduce a statutory ouster clause limiting appeals against an adopted licensing policy statement outside its introductory period.

43. At present every Board must, before the beginning of each 3 year period, publish a statement of licensing policy on their functions under the Act. In preparing the statement, the Licensing Board must ensure that the policy stated in the statement seeks to promote the licensing objectives. At present there is no sanction for not publishing a statement of licensing policy, but it does support the work and decisions of the Board.

44. Under the current arrangements, a licensing policy statement has to be subject to a full consultation. This consultation would not prevent a legal challenge during the course of its life in respect of an individual application or subsequent appeal. It could be argued that a process which is continuously under threat of legal challenge does not serve the public interest. The introduction of a statutory ouster clause may limit the number of appeals against an adopted licensing policy statement.

45. This proposal could also link the review period to that of local authority elections, for example such that the new Board had to prepare a new policy statement within a year of being appointed, and once agreed it would have a duration of five years. There would remain an ability to make changes during the life of a policy statement by way of a supplementary statement.

46. A statutory ouster clause presently applies under section 237 of the Town and Country Planning (Scotland) Act 1997 and provides that parties have six weeks to challenge an adopted local plan. If licensing is to be a policy led system then a statutory ouster clause similar to the planning regime may well be necessary. However, if adopted, the consultation and advertisement requirements forming part of the policy statement procedure may need to be strengthened.

Proposal 9

Extend the period that a statement of licensing policy is in force to five years and introduce a statutory ouster clause limiting appeals against an adopted licensing policy statement outside its introductory period.

Questions

19. Should the period that a statement of licensing policy is in force be extended to five years?

20. Should there be a statutory ouster clause limiting appeals against an adopted licensing policy statement outside its introductory period?

10. Consideration of English Language ability

47. At present there is no language requirement in relation to alcohol licensing. Although a personal licence holder must sit and pass a Personal Licence Holder Qualification, it can, at present, be provided and examined in languages other than English.

48. A personal licence authorises a person to supervise or authorise the sale of alcohol. Most staff training is provided by a personal licence holder. However it is not a requirement in the legislation for there to be a personal licence holder on the premises at all times.

49. Concerns have been raised that where personal licence holders are not readily able to understand English, then they will find it difficult to understand, comply with and apply the requirements in relation to alcohol licensing.

50. It is possible that such premises would eventually be subject to enforcement action, for example through failing a test purchase, but this is a poor outcome for the trader, the public, and a poor reflection on the licensing regime itself.

51. We would like to gauge how much of a concern this actually is, and consider options to address it. The Scottish Government and local authorities remain committed to ensuring that there are not unreasonable barriers to businesses trading, and that where any additional requirements are imposed they are set at a level necessary to protect the public, without seeking to impose an undue burden. It has, for example, been suggested that it is required that the Personal Licence Holder Qualification must be taken in English, or include some test for English proficiency. A more onerous alternative would be for there to be a mandatory condition that there is someone on the premises with a reasonable command of English at all times.

Proposal 10

Measures to ensure that licence holders have a reasonable command of English.

Questions

21. Is there currently an issue with licence holders who do not have a reasonable command of English.

22. If there is a problem, what would be your preferred means to address this?