A new era in licensing law will be established by the Licensing (Scotland) Act 2005. Given the wide-ranging nature of the reforms*, the Act is not expected to come into force until September 2009, and between now and then a series of transitional arrangements will take place to assist an orderly conversion from the present regime under the Licensing (Scotland) Act 1976 to the new structure. When fully enacted, the current licensing system operating under the 1976 Act will be completely replaced.
General Timetable for Transition
The original transition timetable that was announced provided for the following key milestone dates:
- By October 2006 - All accompanying regulations and draft statutory guidance are to be published for a three month period of formal consultation
- By February 2007 - Finalised regulations and guidance are to be laid before the Scottish Parliament for approval;
- May 2007 - Appointment of new Boards following Local Government Elections;
- From June 2007 to November 2007 - A six-month period during which the new Boards will prepare licensing policy statements and carry out overprovision assessments. Final versions of licensing policy statements then to be published and made widely available two months prior to the start of transition. Appointment of Licensing Standards Officers and local Forums by Local Authorities would also take place in this period;
- From February 2008 - The transition period would be approximately 18 months from this date. The move to the new regime will culminate in a "big bang", where all licences under the new system and the majority of the provisions of the 2005 Act will take effect on a single appointed day, following a transition period.
Administrative Transition for Licences
It has been confirmed that the transition period for the new regime will start on 1 February 2008 and will last for a period of 19 months, with the "Big Bang" date on 1 September 2009.
New Licensing Boards will be appointed following the May 2007 elections and they will deal with matters under the existing regime and the new regime during transition.
During transition it will be necessary for 1976 Act Licences to continue to run until 1 September 2009 when the 1976 Act Licences will terminate automatically, and during this period, Licences will be deemed to be automatically extended. During transition, this will mean:
- There will be no 1976 Act renewals. Any existing 1976 Act Licences which expire during transition will automatically extend until 1 September 2009;
- There will be no 1976 Act regular extensions. Regular extensions in existence when transition begins will be automatically extended. The only case where regular extensions will be granted during transition is in conjunction with an application for a new Licence under the 1976 Act;
- No quarterly meetings will be held during transition, and so the last quarterly meeting will be in January 2008;
- Boards will use delegated powers to conduct the remaining business of the 1976 Act i.e. occasional extensions.
Lodging dates during Transition
There will be a series of lodging dates within the transition period depending on when the existing Licence expires, as follows:
- For March expiries – licensing application under the new system to be made by 1 March 2008;
- June expiries – 1 June 2008;
- October expiries – 1 October 2008;
- January expiries – 12 January 2009
There is nothing stopping applicants from applying earlier than the lodging dates.
There are only limited Grandfather rights (i.e. rights which, because they were held under the previous regime, can be carried on into the new regime) applying to the transfer into the new regime, such as:
- Exemption from the consequences of over provision where there is no change to size capacity or type of operation;
- Exemption from the need to provide Building Standard, Planning and Food Hygiene Certificates under the new Legislation.
However, if the Boards were minded to refuse on the grounds of location, character or condition even though the transfer was on a like for like basis then they can request the licensee to make modifications within a period of 12 months.
Premises and Personal Licences
Applications under the new system will be for Premises and Personal Licences. There are no Grandfather rights for Personal Licences and all applicants must undergo training in terms of the new regime.
It is envisaged that there will need to be more than one Personal Licence holder given that there must be a Personal Licence holder on the premises at all times, although there is a view that delegation of authority to a Premises Manager would suffice.
There will be a hybrid application system during the transition period for new Licences, until 1 March 2009, the result of which would be that either:
- the new Licence is granted;
- a Provisional Licence granted in order to allow premises to be completed; or
- a new Premises Licence or Provisional Premises Licence is granted which would not take effect until 1 September 2009
An operating plan will be required for each Premises Licence application which will require to specify all activities taking place on the premises. Currently Section 23 Certifications are not required in relation to Off Sales Licences. Under the new regime all applicants will be required to produce Certificates in relation to Planning, Building Standards and if food is supplied then Food Hygiene as well.
In terms of the operating plan there will need to be a layout plan and the required content will be prescribed. Information as to proposed capacity will also be required. Each applicant will need to specify the hours of operation in their operating plan. The new system includes an obligation to trade during the hours sought.
Off sales licences
From draft guidance issued by the Scottish Executive for consultation purposes it appears that the approach that will be taken regarding capacity in relation to off sales will be that licensees should be asked to set out the minimum linear footage they anticipate will be used for alcohol, as a percentage of the total linear footage of the shop. This should include the maximum linear footage of customer footings to be used in off shelf seasonal display.
Operating hours for off sales will be between 10am and 10pm.
The Scottish Executive has produced draft Guidance, principally aimed at Licensing Boards, but which will also inform other agencies such as local authorities, the police, Local Licensing Forums, Licensing Standards Officers, and it is intended that it will be sufficiently widely drafted so that it will also be of considerable use to the licensed trade and their representatives.
Although Licensing Boards must have regard to guidance issued by the Scottish Ministers they will have some discretion to depart from the guidance if they have reason to do so, provided that the Board has had regard to the guidance in reaching a particular decision or view and they must be able to justify the reasons for departing from the guidance, since departure from the Guidance may give rise to an appeal or judicial review.
A consultation on the draft guidance closed on 8 December 2006. The final version of the guidance, once relevant responses to the consultation are taken into account, has to be approved by the Scottish Parliament.
Action you should be taking now
The recommendation to Licensees at the present time is to start preparation now by keeping a diary of all activities taking place, so that all such activities can be catered for when coming to draft the operating plan.
*Among the Act's reforms are:
- provision of a national framework to include standard national licence conditions;
- overhaul of the system of licences, replacing the current seven with two new types of licence – personal licences and premises licences;
- 24 hour licences are to be granted only in exceptional circumstances;
- an emphasis on compulsory training;
- new Licensing Standards Officers and a wider range of penalties;
- provisions designed to combat under-age drinking and binge drinking;
- provisions intended to protect communities.