The Licensing Roundabout

ON THE SCOTTISH GOVERNMENT’S NEW CONSULTATION ON FURTHER CHANGES TO BE MADE TO THE ALCOHOL LICENSING REGIME

The Scottish Government today released a consultation with a number of very significant proposals for changing the Licensing (Scotland) Act 2005. The Act came into force on 1 September 2009 and since that time has been through the licensing mincer on a number of occasions. The legislation hardly had time to take it’s first stuttering breaths before changes resulted from the Criminal Justice and Licensing (Scotland) Act 2010 and even more tinkering with the Alcohol etc. (Scotland) Act 2010. We also have a third peice of significant legislation on the cards, namely the Alcohol (Minimum Pricing) (Scotland) Act 2012.

This new consultation will be unwelcome by those who feel the legislative framework needs time to settle. There will be those who say that such unabashed amending speaks to the quality of the original Act itself. There will also be those who welcome some of these new proposals with open arms and much of it is based on requests from the police, licensing boards and Alcohol Focus Scotland. There is some attempt to deal with fixing errors in the system but there are considerable absences such as the process for provisional licences and transfer applications which some of us have been raising for years now. The over-riding theme is about greater power for licensing boards and the police. There is little comfort for the trade here.

The consultation closes on 21 March 2013 and can be accessed here.

It is also very interesting to note how the recent amendments to the English Licensing Act 2003 are concentrating minds north of the border. Licensing really is a roundabout with both Holyrood and Westminster borrowing from each other and it is little wonder those of us involved are in a spin. How on earth the trade are supposed to keep up with all of this when someone like me is left lying in a darkened room trying to fathom it all is a real concern.

There are 21 proposals. Of these I count 16 which are about increasing the power of Boards in one way or another, the police, or health. There is a clear ethos to try and move the system more and more towards the “policy is king” approach. There is much to be discussed here and as such I have to cherry pick for this blog. The full list is as follows:

1. Further criminalising the supply of alcohol to under 18s by extending existing criminal law to cover the supply of alcohol to under-18s in a public place.

2. Restrictions where disorder is likely to occur – police powers

3. Restrictions where disorder is likely to occur – Licensing Board powers

4. Enable Licensing Boards to apply new local licensing conditions to all existing licensed premises without the need to update individual licences.

5. Reintroduction of the “Fit and Proper” test – Licensing Boards are currently limited to considering relevant convictions notified by the Chief Constable when determining whether someone should be granted a personal licence.

6. Place a statutory duty on Licensing Boards to promote the licensing objectives.

7. Place a statutory duty on Licensing Boards to report annually on how the board fulfilled its duty to promote each of the licensing objectives

8. Place a statutory duty on Licensing Boards to gather and assess information on each of the five licensing objectives in the 2005 Act in the preparation of their statement of licensing policy.

9. Extend the period that a statement of licensing policy is in force to five years and introduce a statutory ouster limiting appeals against an adopted licensing policy statement outside its introductory period.

10. Consideration of English Language ability

11. Brightcrew – Address the uncertainties highlighted by the 2011 decision in Brightcrew Ltd v City of Glasgow Licensing Board.

12. Members’ Clubs – Concerns have been raised that some members’ clubs, which enjoy a less onerous regime, are abusing either the letter or the spirit of the rules by operating in direct competition with local licensed premises.

13. Concerns have been expressed about procedures at licensing board meetings.

14. Develop a national licensing policy statement that local licensing boards are required to have regard to when drawing up their own policies.

15. Amend the licensing objective in the 2005 Act from “protect children from harm” to state “children and young persons”.

16. Interested parties – The Law Society raised concerns that legislation intended to require notification of those connected to a premises licence, was too broadly drafted and would inadvertently criminalise many premises licence holders.

17. Amend section 7 of the 2005 Act, the duty to assess overprovision, to state that the locality for assessment of overprovision can be the entire board area.

18. Amend section 7 of the 2005 Act to make it clear that overprovision can include an increase in capacity where there is no increase in the number of premises, and include opening hours in the assessment of overprovision.

19. Address concerns over internet sales by extending promotions ban to cover orders dispatched from England but which were ‘taken’ in Scotland.

20. Clarify the specific circumstances under which alcohol can be sold in garage forecourts.

21. Timing of Board training

FIT AND PROPER MAKES A COMEBACK

Much of this is real front page news in licensing terms. Re-introducing “fit and proper” is not much of a suprise but is a huge step. Glasgow Chair Malcolm Cunning openly called for this in recent conferences, making an excellent case for same – clearly that has been heeded. ACPOS have also lobbied on this, as I understand it.

POLICY IS KING?
Of real concern to the trade will be the suggested moves more and more to decision making on a policy basis. This fetters the discretion of the board to the extent that an additional ground of refusal will appear from the licensing mists (even if not explicitly provided for): that the application is contrary to policy. I fear such an approach, especially when it is clear policies can be flawed; that new boards are stuck with policies of the old (at least for a certain time); and that fundamentally decent operators are denied a viable business proposal because it is “outwith policy”.

I worry that too much emphasis is being placed on a national health agenda, which under these proposals could driven by a national policy diktat, with little regard in return to the positive aspects of responsible alcohol sale and consumption. Boards must surely be allowed local flexibility to take account of all matters including the positive benefits of responsible sale and consumption, tourism, job creation and so on, as well as health. A national policy may undermine that and leave the licensing process as a sham when the decision is made before an application is even lodged.

There is even a proposal that a policy could not be appealed after a certain period following introduction, which I find alarming.

DELEGATED POWERS AND TECHNICAL ERRORS
It is interesting to note that some of the techical errors of the recent legislation might be tidied up such as the failure of the provisions of the “challenge 25” policy to actually require premises licence holders to adhere to it – as raised by me in an earlier blog (“Challenging Challenge 25”). There is also a suggestion that the s.110 notice might be amended given it ignores exceptions to the offences it describes.

It is also breath taking to see the proposal that new licences and major variations might be dealt with by way of delegated powers. Both require a hearing under any circumstances at present.

LICENSING OF GARAGE PREMISES
I welcome the clarification on the law surrounding garages. It is one of the best examples of poor drafting of the original 2005 Act. I think the notion that such premises should be treated differently is logically unsound and have stated such before. The idea that a garage shop should not be licensed because customers may arrive by car is a fallacy when one considers the hundreds of licensed supermarkets across the country and the vast majority of customers arriving by car. There was never any evidence that a licensed garage undermined the anti drink drive message, that I am aware of.

BRIGHTCREW: A LICENSING FOOTNOTE?
Finally, it is extremely interesting to note how the Brightcrew “shockwave” is still causing concern. Here we have a statement of the law from the highest court in Scotland which speaks to the vires of a Board; the Goverment now seeks to supercede via new primary legislation because of the concern that Boards feel shackled by Brightcrew and are afraid of losing appeals. Of course, if the “policy is king” approach were adopted then the licensing appeal would soon become a rare fish indeed. Even now plenty of Board decisions go unchallenged entirely because the licence holder (or applicant) cannot afford the costs involved.

FINAL THOUGHTS
Licence holders have a series of legitimate gripes about how the system fails them, has exorbitant costs and unnecessary red tape, how it prevents investment and stymies commercial property transactions. I hope that some of these issues, as well as the “technical” points which licensing solicitors are at pains to raise, will also be taken on board. We need a system which allows Boards to address the adverse consquences of irresponsible alcohol sale and consumption, but the system also needs to provide a platform for decent and responsible operators to run their businesses free of excessive and unneccessary burdens.

Licensing Boards often support such applicants and licence holders at hearings and wish them well. A Board is not, in my view, a vanguard for the abolitionist or neo-temperance brigades. The positive side should not be forgotten. But the number of positives an applicant might bring to the table could be redundant if “against policy”. 

Earlier this year the Court of Session said that alcohol is a “part of human happiness”. I would hope that Holyrood has no intention to legislate against that!

“Round and round we go”, said Zebidee.

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About Stephen McGowan

Leading Scottish licensing solicitor at TLT. Chairman of BII Scotland.
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3 Responses to The Licensing Roundabout

  1. Barry Skinner says:

    Stephen – very informative as usual – thanks. Barry.

  2. Malcolm Cunning says:

    Only read through the document once and need to spend some time studying it in detail. Initial impression is that, like the curate’s egg, it’s good in parts. Slightly concerned that Board’s will be required to meet demands beyond our resources and that concerns of the health lobby are the most prominent.

  3. Pingback: A Bitter Taste? The Air Weapons and Licensing (Scotland) Bill | Stephen McGowan's Licensing Blawg

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