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2. Transition
Statutory Instruments
2006 No.
Licensing (Liquor)
The Licensing (Transitional and Saving Provisions) (Scotland) Order 2006
Made - - - - 2006
Laid before the Scottish Parliament 2006
Coming into force - - 2006
The Scottish Ministers, in exercise of the powers conferred by sections 145 and 146(2)(b) of the Licensing (Scotland) Act 2005( a) and of all other powers enabling them in that behalf, hereby make the following Order:
Citation and commencement
1. This Order may be cited as the Licensing (Transitional and Saving Provisions) (Scotland) Order 2006 and shall come into force on 2006.
Interpretation
2. In this Order-
"the 1976 Act" means the Licensing (Scotland) Act 1976( b);
"the 1990 Act" means the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990( c);
"the 2005 Act" means the Licensing (Scotland) Act 2005;
"Board" means a Licensing Board to which members have been elected under paragraph 2 of schedule 1 to the 2005 Act;
"the transitional period" means the period from 12:01 a.m. on 1 February 2008 until 5:00 a.m. on 1 September 2009.
Licensing Boards
3. -(1) Following the election of members to a Board under paragraph 2 of schedule 1 to the 2005 Act, the Board so constituted is to be responsible for discharging as regards its area the functions of a licensing board under the 1976 Act as well as the functions assigned to it under the 2005 Act.
(a) 2005 asp 16.
(b) 1976 c.66.
(c) 1990 c.40.
(2) So far as may be necessary for the purposes of paragraph (1), any reference in the 1976 Act to a licensing board is to be read as if it were a reference to a Board constituted as described in that paragraph.
Delegation
4. -(1) Each Board is to make arrangements so that, during the transitional period, the functions specified in paragraph (3) are (subject to paragraph (2)) discharged by that Board's clerk or a member of staff appointed to assist the clerk.
(2) Where during the transitional period it appears to the clerk of a Board that, as regards a particular case, it is appropriate that a function specified in paragraph (3) be discharged by the Board, that officer is to remit the case to the Board.
(3) The functions referred to in paragraph (1) are-
(a) making a decision under section 25 of the 1976 Act;
(b) making a decision under section 26 of that Act;
(c) granting an occasional permission under section 34 of that Act;
(d) giving a consent under section 35 of that Act;
(e) deciding that the Board is satisfied as described in paragraph (i) of section 59(1) of that Act;
(f) dealing with an application under section 29 of the 2005 Act for a minor variation such as is described in subsection (6)(c) of that section; and
(g) determining an application under section 33 or 34 of that Act (other than such an application as is described in paragraph 10(2)(e) of schedule 1 to that Act).
Determination of applications
5. -(1) Any application for a licence under Part II or III of the 1976 Act lodged during the transitional period is to be determined no later than 6 months after the date on which it is lodged.
(2) Any application under section 20 of the 2005 Act which falls within article 12 is to be determined no later than 6 months after the date which is, in terms of paragraph (6) of that article, the appropriate date in respect of that application.
(3) Any other application under that section lodged during the transitional period is to be determined no later than 6 months after the date on which it is lodged.
No requirement for hearing
6. No hearing need be held under section 23(2) of the 2005 Act to consider an application lodged during the transitional period in respect of which-
(a) no objections have been [timeously] made to the Board; or
(b) any objections so made have been rejected under section 22(4) of that Act.
Continuation of 1976 Act licences
7. -(1) Any licence under Part II or III of the 1976 Act which is in effect at the beginning of the transitional period is to continue in effect until the end of that period.
(2) Where a licence is continued in effect by virtue of paragraph (1)-
(a) any occasional or regular extension of hours granted under section 64 of the 1976 Act is to apply until the end of the transitional period as it applied in the period before the licence would otherwise have expired; and
(b) any children's certificate granted under section 49 of the 1990 Act is to remain valid until the end of the transitional period.
(3) Nothing in paragraph (1) or (2) prevents a Board suspending a licence under section 31 or 32 of the 1976 Act or suspending a children's certificate under section 50 of the 1990 Act.
Continuation of registrations under Part VII of the 1976 Act
8. -(1) Any certificate of registration under Part VII of the 1976 Act which is in force at the beginning of the transitional period is to continue in force until the end of that period.
(2) Where a certificate of registration is continued in force by virtue of paragraph (1), any occasional or regular extension of hours granted under section 64 of the 1976 Act is to apply until the end of the transitional period as it applied in the period before the certificate would otherwise have expired.
(3) Nothing in paragraph (1) prevents a sheriff cancelling a certificate of registration under section 109 of the 1976 Act.
Applications under the 1976 Act
9. -(1) A Board need not consider an application for the grant or provisional grant of a licence under Part II or III of the 1976 Act lodged during the relevant period unless there is lodged with the Board at the same time an application in respect of the same premises under section 20 or 45 of the 2005 Act together with any documents required to accompany it.
(2) A Board need not consider an application for the grant or provisional grant of a licence under Part II or III of the 1976 Act lodged after the end of the relevant period.
(3) A Board need not consider an application under section 64 of the 1976 Act lodged during the transitional period.
(4) In this article, "the relevant period" means the period from the beginning of the transitional period up to and including 28 February 2009.
Suspension of publication requirement
10. During the transitional period, any list required to be published by a Board in a newspaper under subsection (1) of section 12 of the 1976 Act need not be so published if, no later than the date specified in that subsection, the Board publishes the list on a website.
Special procedure for certain applications under the 2005 Act
11. -(1) Where an application under section 20 of the 2005 Act falls within article 12, paragraphs (2) to (5) apply.
(2) The application does not require to be accompanied by the certificates otherwise required by section 50(1) of that Act.
(3) The Board is not entitled to refuse the application on the ground specified in paragraph (e) of section 23(5) of that Act.
(4) Where the Board is minded to refuse the application only on the ground specified in paragraph (d) of section 23(5) of that Act but would not be so minded if certain modifications were made to the character and condition of the premises, the Board is to grant the application.
(5) Following expiry of the period of 12 months beginning with the day on which a licence is granted in terms of paragraph (4)-
(a) the Board is to consider whether the modifications referred to in that paragraph have been made; and
(b) if they have not, the Board is to revoke the licence.
Applications to which special procedure applies
12. -(1) An application falls within this article if each of paragraphs (2) to (4) apply in respect of it.
(2) The application must relate to premises in respect of which-
(a) a licence under Part II or III of the 1976 Act is in effect; or
(b) a certificate of registration under Part VII of that Act is in force;
at the time the application is made.
(3) The operating plan and layout plan which accompany the application under sub-paragraphs (i) and (ii) of section 20(2)(b) of the 2005 Act must show that it is proposed that-
(a) the size and capacity of the premises; and
(b) the activities to be carried on in the premises,
are to be substantially the same as at the date of the application.
(4) The application must be made by the appropriate date.
(5) Where the application relates to premises in respect of which a licence under Part II of the 1976 Act is in effect, the appropriate date is to be determined by reference to the date on which that licence would, but for article 7(1), expire.
(6) Where that expiry date-
(a) is in March of any year, the appropriate date is 1 March 2008;
(b) is in June of any year, the appropriate date is 1 June 2008;
(c) is in October of any year, the appropriate date is 1 October 2008;
(d) is in January of any year, the appropriate date is 12 January 2009.
(7) Where the application relates to premises in respect of which a licence under Part III of the 1976 Act is in effect or a certificate of registration under Part VII of that Act is in force, the appropriate date is to be determined by the Board to which the application falls to be made.
Information regarding premises manager
13. -(1) The operating plan accompanying an application under section 20 of the 2005 Act made between the beginning of the transitional period and 1st July 2009 need not contain the information referred to in subsection (4)(g) of that section.
(2) In a case where that information is not provided to the relevant Board by 1st July 2009, any licence issued before that date under section 26 of the 2005 Act is deemed to be revoked on that date.
(3) In a case where as at 1st June 2009-
(a) a Board is considering an application under section 20 of the Act in respect of which the information referred to in paragraph (1) has not been provided; or
(b) a licence has been issued under section 26 of that Act and that information has not been provided,
the Board is forthwith to write to the applicant, or as the case may be the licence holder, advising of the need to provide that information by 1st July 2009.
Occasional licences
14. -(1) Paragraphs (2) and (3) apply in respect of the period which commences at the end of the transitional period and ends at 11:59 p.m. on 26 October 2006.
(2) Section 1(1) of the 2005 Act is to have effect as if the reference to an occasional licence granted under that Act were a reference to an occasional licence granted under section 33 of the 1976 Act.
(3) So far as may be necessary for the purposes of paragraph (2), any other reference in the 2005 Act to an occasional licence or to a licence is to be read as if it included a reference to an occasional licence granted under section 33 of the 1976 Act.
Exclusion orders: transitional provision
15. -(1) Paragraphs (2) to (4) apply in respect of the transitional period.
(2) Sections 94 to 96 of the 2005 Act are to have effect as if any reference to licensed premises generally or to licensed premises in respect of which a premises licence has effect were a reference to licensed premises within the meaning of section 4(1) of the Licensed Premises (Exclusion of Certain Persons) Act 1980( a).
(3) Sections 94 to 96 of the 2005 Act are to have effect as it any reference to the premises licence holder were a reference to the holder of the licence granted under the 1976 Act in respect of the premises in question.
(4) Section 95(6) of the 2005 Act is to have effect as if paragraph (b) and the words "or the premises manager" were omitted.
Exclusion orders: saving provision
16. Despite the repeal of the Licensed Premises (Exclusion of Certain Persons) Act 1980 on 1st February 2008-
(a) any exclusion order under that Act which is in effect immediately prior to that date is to continue in effect until it expires or is terminated in accordance with that Act; and
(b) anything which could have been done under that Act in relation to such an order or a breach of it may be done on or after that date.
St. Andrew's House,
Edinburgh
2006 | Authorised to sign by the Scottish Ministers |
(a) 1980 c.32.
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