Portability of Licences and the EU Services Directive

SOME OBSERVATIONS ON THE BIS CONSULTATION REGARDING THE UK’S NON-COMPLIANCE WITH THE EU SERVICES DIRECTIVE REQUIREMENTS ON PORTABILITY OF LICENCES

The Department for Business, Innovation and Skills (BIS) has released a short life consultation on the UK’s failure to comply with certain aspects of the EU Services Directive. The consultation, which can be accessed here, closes on 8 March 2013.

The European Commission has indicated to the UK Government that we may be in breach of the EU Services Directive (2006/123/EC) as regards the portability of licences. The Directive was brought into force here under the Provision of Services Regulations 2009 (S.I. 2009/2999). Put briefly, the Services Directive requires EU member states to allow for a licensing system which caters for “national applicability”. In other words, if I am granted a licence by one local/licensing authority, I should be able to use it throughout the UK.

The relevant wording in the Directive is that a licence: “shall enable the provider to have access to the service activity, or to exercise that activity, throughout the national territory, including by means of setting up agencies, subsidiaries, branches or offices, except where an authorisation for each individual establishment or a limitation of the authorisation to a certain part of the territory is justified by an overriding reason relating to the public interest.

Considering how to achieve this lofty goal raises all sorts of issues. I should say that there is a definition of “services” provided by the 2009 Regulations which includes those services not captured, one of which is transport services which I believe would include taxi and private hire licensing. Gambling is also exempted. It also only relates to licences which attach to an individual rather than a premises (for obvious reasons!) However it could affect other licence types such as street traders, window cleaners and metal dealers.

Given the EU Services Directive affects the whole of the UK there is some added sauce when one considers the separation of powers between Westminster and Holyrood. Licensing is not a reserved matter and alcohol and civic licensing is a matter for the Scottish Parliament. Achieving compliance with this Directive would, on the face of it, mean a licence granted by any English authority should not only be portable across English and Welsh authorities, but also in Scotland. And vice versa. So, if I apply for my street traders licence in West Dunbartonshire, that would entitle me to trade in Norwich. And so on.

I also wonder whether there is a point to be made about alcohol personal licences too. At present, a personal licence granted by an English or Welsh licensing authority cannot be used north of the border and persons who wish to become named premises managers need to apply for a separate Scottish personal licence. This is because the 2005 Act defines personal licence as a licence issued under the 2005 Act. Of course, portability of personal licences already exists intra the two separate jurisdictions, so for example my Glasgow personal licence can be used to name me as a manager in a pub in Inverness.

In the Consultation overview the Westminster Government appears to concede that, as far as we have differing licensing systems in England & Wales and Scotland (which are mutually exclusive), this is a breach. Watch this space.

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About Stephen McGowan

Leading Scottish licensing solicitor at TLT. Chairman of BII Scotland.
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3 Responses to Portability of Licences and the EU Services Directive

  1. SLWCN says:

    Interesting but would it still stop the Scottish Government using unlicensed traders even though they are breaking the law. So a street trader can be fined by the Police but it’s okay to give out Government contracts to companies who break the law in not licensing their employee’s.

    Also Council’s giving contract work to unlicensed traders.

    Councillor’s giving licenses to people who Police feel unfit to hold a licence. Just because they know the person.

    SNP are allowing laws to be broken on their own door step, so nothing will change !!!

  2. Andy says:

    I don’t quite see how th SNP are allowing laws to be broken on their own door step. If any laws were being broken I would expect the local policing division to report the matter to the procurator fiscal(PF) if someone wa trading illegally or Charri out a licensed function without a licence.

    The police in Scotland do not have the enforcement power to fine a street trader, this must be reported to the PF. As for the portability of licences Scotland operates under the Civic Government ( Scotland) act 1982 and the Licensing ( Scotland ) Act 2005, which are only applicable to licences issued in Scotland.

  3. Pingback: Mutual Recognition: Portability of Licences | Stephen McGowan's Licensing Blawg

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