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Licensing (Scotland) Act 2005 - Section 142: Guidance for Licensing Boards and Local Authorities

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1. Introduction

The Licensing Objectives

1. The Act complements the wider policies of the Scottish Executive. This includes measures to tackle antisocial behaviour, and the programme of work set out in the Plan for Action on Alcohol Abuse, which seeks to tackle under age drinking, binge drinking, and the wider problems associated with alcohol misuse.

2. Act establishes a national policy framework to provide an appropriate level of consistency across Scotland on the implementation of licensing policy. Within that national framework, Licensing Boards will have flexibility to take local decisions in light of their own area's particular circumstances.

3. The Act sets out 5 high level "licensing objectives." These represent the principles on which the new licensing system is based, and provide Licensing Boards with a solid foundation on which to build their own local policies. These objectives are not ranked in order of importance. Each has equal weighting and all must be paramount considerations when Licensing Boards are carrying out their responsibilities. These 5 objectives are:

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

4. As well as complementing the wider policies of the Scottish Executive these objectives aim to improve the environment for social drinking to one which is safe and welcoming for all.

The Guidance

5. This guidance has been prepared in accordance with section 142 of the Licensing (Scotland) Act 2005. The main provisions of the Act are expected to come into force in September 2009. This guidance is provided mainly for Licensing Boards, but we hope other agencies such as local authorities, the Police, Local Licensing Forums, Licensing Standards Officers, and the licensed trade and their representatives may also find it useful. In some areas the guidance is necessarily detailed so as to provide as much assistance as possible to those implementing the Act and those who are subject to the provisions of it.

6. Section 142 of the Act provides that in carrying out its functions, a Licensing Board must have regard to guidance issued by Ministers under that section. However, it is recognised that the Guidance cannot anticipate every possible scenario or set of circumstances that may arise. Licensing Boards may therefore 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. If Boards depart from the guidance, they must be able to provide full reasons for their actions. Departure from the Guidance may give rise to an appeal or judicial review, and the reasons given could be relevant if the courts are asked to consider the lawfulness and merits of any decision taken.

7. In accordance with section 142 of the Act this guidance cannot be issued by the Scottish Ministers unless a draft of the guidance has been laid before, and approved by resolution of the Scottish Parliament. This guidance was so approved on 7 March 2007.

The Licensing (Scotland) Act 2005

8. The Act, the associated explanatory notes and any statutory instruments made under its provisions may be viewed at www.opsi.gov.uk.