Licensing (Scotland) Act 2005 section 142: guidance for licensing boards and local authorities

Guidance on section 142 of the Licensing (Scotland) Act 2005 for licensing boards and local authorities.

Finance and Central Services Department
Local Governance and Licensing Division

Chief Executives of Local Authorities & Clerks to Licensing Boards

Victoria Quay
Edinburgh EH6 6QQ

Telephone: 0131-244 8495
Fax: 0131-244 7020

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4 April 2007


Under the terms of the Licensing (Scotland) Act 2005 Ministers may issue guidance to Licensing Boards as to the exercise of their functions under the Act. The Act also requires that before the first guidance can be issued to Boards, it must firstly be approved by Parliament. The Parliament approved the first draft of guidance for Boards on 7 March 2007.

I am pleased now to be able to issue the first guidance for Licensing Boards, which will also be of use to local authorities and others affected by the Act.

Whilst section 142 of the Act requires Boards to have regard to the guidance I would like to stress that Boards will have the flexibility to operate and take decisions in light of their particular circumstances (although, in terms of section 142(4), a Board deciding not to follow the guidance must give Ministers notice of that decision together with a statement of the reasons for it). That is a fundamental principle of the Act and it is important to maintain it. The guidance does not seek to instruct boards exactly how to make the Act work. It is simply intended to assist boards as they carry out their responsibilities under the Act. Ministers wish boards and their clerks to be creative and innovative and to implement the Act in a way that best meets local needs and circumstances. Guidance that is too prescriptive would hinder that creativity.

We considered that it would be of assistance for guidance to be issued at this stage, in advance of some of the necessary subordinate legislation under the Act being made. As such, we have always been aware of the need to revise guidance later this year to, among other things, fully reflect the regulations that came behind it in the Parliamentary process. We will need to consider whether any further guidance should be developed in respect of the regulations that Parliament has recently approved, or in the longer term, regulations that are still to be put before Parliament.

Finally I would like to make it clear that we remain open to suggestions about how the guidance might be revised in future. With that in mind we will continue to engage with Boards and other stakeholders over the coming months to ensure that any issues can be addressed. This includes issues already raised where it was not possible in the time available to fully address them before the guidance had to be submitted to Parliament. I cannot promise that every issue will be accepted into revised guidance but where we are not able to accept a particular issue we will explain our reasoning for not including it in the guidance.

In addition, we expect that new issues may arise in light of experience gained whilst Boards develop their first Policy Statements throughout the remainder of 2007 and we will be happy to consider. Any revised or new guidance will, of course, have to be laid before the Parliament, as the 2005 Act requires.

Yours sincerely

Head of Licensing Team


Email: Central Enquiries Unit

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