The Scottish Government

Next »

Listen

Analysis of Consultation Responses and Scottish Executive Response

Introduction

1. The Gambling Act 2005 (the Act) gives licensing authorities (Licensing Boards in Scotland) a range of new powers to license gambling premises in their communities and requires licensing authorities to perform a number of different functions. These include issuing premises licences, temporary use notices and a range of permits and other permissions. To assist authorities in this task, and to provide transparency for those wishing to apply to an authority for a permission under the Act, all authorities are required to prepare and publish a licensing policy statement.

2. Section 349 of the Act sets out the procedures licensing authorities must follow in preparing such a policy statement. Following widespread consultation, authorities will publish a licensing policy statement describing the principles they intend to apply in exercising their various functions. The Scottish Ministers (the Secretary of State in England and Wales) have the power to make regulations about the statements, procedures and their publication.

Consultation Exercise

3. Draft regulations on the above statements issued for consultation on 5 December 2005 to 180 interested parties including local authorities, Licensing Boards, those involved in the provision of gambling, their trade associations, legal interests, club associations, faith groups and charitable groups. The draft regulations and consultation paper were also posted on the Scottish Executive's consultation website. The Executive received 11 responses as at the closing date of 24 February 2006, which can be categorised as follows:

4. The Annex to this paper lists the 11 respondents and the individual responses can be viewed on the Executive's consultation website. Copies of the responses will be available to the public in hard copy at the Scottish Executive Library, K Spur, Saughton House, Broomhouse Drive, Edinburgh, EH11 3XD (0131 244 4565).

5. Of the 11 responses received, 8 respondents were generally content with the draft regulations though some raised points of detail. 1 respondent concentrated on listing the ill-effects of gambling and expressed the opinion that the Gambling Act would worsen the situation. Another respondent felt that the regulations did not provide nearly enough detail as to the expected form and content of the policy statements. The final respondent felt that the consultation exercise was carried out before sufficient details were available to consider it in its proper context but nevertheless provided detailed comments.

6. The Executive is grateful to those bodies and individuals that responded to this consultation exercise. The main issues raised by respondents followed by the Executive's response (in bold) are set out below.

Main Issues Raised

7. Some responses raised issues that are outwith the scope of these regulations, such as requiring licensing authorities to have regard to the Gambling Commission guidance and setting out the presumption that authorities should aim to permit the use of premises for gambling where certain conditions are met. Some wider issues were also raised, such as the regulations referring to assurances given earlier on 'grandfather rights'.

The scope of these regulations is limited to setting out the form of policy statements and the procedures for their preparation and publication. The actual content of the statements is determined by the Gambling Act itself but the Gambling Commission guidance aims to assist in this regard. Section 25 of the Act already requires licensing authorities to have regard to the Commission guidance and section 153 states that authorities must aim to permit the use of premises for gambling subject to the conditions listed there. The section 349 regulations do not therefore need to address such matters. The wider issues raised are also not appropriate to these regulations - in the case of 'grandfather rights', these are being taken forward separately through the Department for Culture, Media and Sport (DCMS) consultation over transitional arrangements.

8. Several respondents commented on the link between the draft regulations and the Gambling Commission guidance and expressed views on matters such as the timing of the respective consultation exercises and how to ensure consistency of approach.

The Gambling Commission consultation over its guidance to licensing authorities ends on 17 March and the Commission aims to publish the final version in May. The Executive was fully involved in the preparation of the draft guidance, as was DCMS, and this will apply to the final version also. This continued close liaison should ensure that the Commission guidance and the regulations complement each other in terms of information to be included in the policy statements. The regulations will be finalised before the Commission guidance will be, and this will help to facilitate consistency of approach.

9. A couple of responses felt the draft regulations lacked detail and that a template approach would be welcomed. The degree of discretion allowed to licensing authorities was also queried.

As explained earlier, the scope of these regulations is limited to setting out the form of policy statements and the procedures for their preparation and publication: the content is determined by the Gambling Act and the Gambling Commission guidance. The regulations set out minimum requirements, in relation to certain areas where it is considered particularly important to be dealt with separately in all licensing policy statements, to provide a degree of consistency for the gambling industry.

In addition to the statutory requirements and the suggested information set out in the Commission guidance, authorities are able to include any other information that they feel is helpful, which will also assist them in dealing with local circumstances. The Executive is satisfied that the regulations strike the right balance between local licensing authority discretion and a national, consistent approach for industry and the public.

The Executive understands that the Local Authorities Co-ordinators of Regulatory Services (LACORS) are developing a policy statement framework and template approach in England and Wales. Licensing authorities will of course be under no statutory obligation to use the LACORS template but the application of this to Scotland will be explored.

10. A couple of responses commented on aspects of consultation over licensing policy statements, such as the involvement of trade associations, handling of representations and timescales.

Following widespread consultation, licensing authorities will publish their policy statements and the policies will have effect for 3 years. It is, however, open to authorities to review and alter the policy during that period and section 349(3) of the Act requires authorities to consult on statement revisions. The regulations stipulate minimum requirements as to the advertisement and publication of the statements/revisions and enable authorities to select methods most appropriate to their area.

Section 349(3) is drafted widely in order that licensing authorities have significant discretion in terms of the specific organisations or persons consulted under the wider headings of "one or more persons appearing to represent the interests of persons carrying on gambling businesses in the area" and "one or more persons appearing to represent the interests of persons likely to be affected by the exercise of the authority's functions under the Act". The former could include existing operators, nationally recognised trade associations, local trade networks, the small business service, the CBI, unions, or some or all of the above. The latter heading is also wide and in both cases the list of organisations/persons under the headings is likely to differ between authorities. Given the discretion that authorities have been given in this area, the Executive considers it important for licensing policy statements to contain a full list of those persons consulted so this is required by the regulations.

A minimum period of 12 weeks is recommended for written consultation and the Gambling Commission has been asked to consider whether this should be included in the Commission's final guidance. The Commission's draft guidance already suggests that trade associations should be included in the category of those who represent persons living close to premises, or have business interests that may be affected, in considering who is "an interested party" in terms of section 158 of the Act. The Commission's guidance also states that appropriate weight should be given to the views of those consulted and suggests factors to be taken into account in determining what weight to give particular representations.

11. One response suggested that in the interpretation section of the regulations reference should be made to publication and not just preparation of a statement. Another response felt that regulation 3 should require greater detail of the description of the geographical area covered by the licensing authority's area. A further response suggested that there should be a paragraph similar to regulation 3 of the equivalent DCMS draft regulations.

The definition of "statement" in regulation 2 refers to section 349(1) of the Act, which includes the requirements both to prepare and publish the statement. The Executive considers therefore that no amendment is needed. Regulation 2 also includes a definition of "authority's area" and the Executive is of the view that between this and the requirement in regulation 3 to provide a description or plan of that area, further clarification should not be necessary.

As regards an equivalent to the DCMS regulation 3, while section 349(4) and (5) allow the Scottish Ministers to make regulations about the form of policy statements, they do not appear to enable that power to be further delegated. However, in the absence of such a provision, the default position will still be that the licensing authority determines the form of any statement subject to any regulations made by the Scottish Ministers. The Executive is content therefore that the regulations will have the same effect as the DCMS equivalent.

12. Time limits on advertising the notice of publication of statements and their actual publication have been modified in England and Wales as a result of the equivalent DCMS consultation exercise. The period for publicising the statement or revision before it comes into effect has changed from one month to 4 weeks. Also, the period for notifying the intention to publish a statement or revision was previously not less than 2 weeks before the publication date, but now reads "that notice shall be published no later than the first day on which the statement or revision is published".

The Executive considers that, in the interests of consistency of approach across Britain, the Scottish regulations should be amended accordingly. The final regulations will therefore reflect those changes.

Conclusion

13. The Executive considers that the regulations can now be finalised and they will be laid before the Scottish Parliament with a view to coming into effect in late April 2006. Licensing authorities will be expected to begin drafting their 3-year licensing policy statements shortly thereafter. The Executive will consult further as other regulations are drafted to implement other aspects of the Gambling Act, including setting mandatory and default conditions.

Scottish Executive
March 2006

Next »