Scotland and “Primary Authority”

ON SCOTTISH GOVERNMENT PROPOSALS TO INTRODUCE A “PRIMARY AUTHORITY” ARRANGEMENT FOR SCOTTISH LOCAL AUTHORITIES

The work of the Scottish Government is never done, with yet another consultation released last week. The Consultation on Primary Authority Arrangemens relating to the Devolved Regulatory Responsibilities of Local Authorities in Scotland, released on 28 June 2013, is not going to win the consultation title of the year award but thankfully the proposals it contains could make a significant difference to businesses in Scotland and is to be welcomed. The consultation can be accessed here and closes on 23 August 2013.

I should start by saying that this proposal is tied into the Regulatory Reform Bill currently working its way through Holyrood and is therefore part of the Scottish Government’s commitment to make life easier for businesses in Scotland. It also has various ramifications for licensing, hence the reason a discussion of it appears on my blog!

PRIMARY AUTHORITY: THE ENGLISH EXAMPLE
The “primary authority” concept already exists in England & Wales and I am pleased to see that it is finally making an appearance north of the border. So what exactly is it? In short terms, the idea of the “primary authority” is that a business with operations in multiple local authority areas can select a particular local authority, and working in partnership (as opposed to an adversarial relationship) with that authority seek to satisfy the authority, based on that authorities guidance, as to how they comply with certain regulation(s). In turn, that authority will share these learnings with other authorities in the hope of reducing red tape for that business elsewhere. In other words, it allows a business to identify one authority with which to wade through most of the “red tape”. On the face of it, this could be an incredible leap forward for businesses in Scotland and may save considerable expenditure on complying with red-tape in 30 or so different local authorities, each with it’s own views on how that regulation should be complied with.

The concept was introduced in England in the Regulatory Enforcement and Sanctions Act 2008. According to the BDRO, as of June 2013 there were 772 businesses in partnership with 103 local authorities down south. The scheme arose from business concerns over contradictatory and conflicting enforcement and interpretation of certain regulatory regimes from local authority to local authority, but in turn it incentivises business to reach compliance with the help of the primary authority (a “win win” situation?). This process means a sort of partnership working with local authority officers advising and guiding businesses on how to reach compliance in a constructive manner.

The primary authority system in England & Wales captures a number of legislative regimes but, of course, I’ll stick to those relevant to licensing! Schedule 3 of the 2008 Act contains the list of effected regimes, and this includes various animal licensing regimes (eg boarding establishments), cinemas, sports ground legislation, food hygiene law, the Gambling Act 2005, the Licensing Act 2003, pedlars, pet shops, weights and measures, petroleum and so on. It is a comprehensive list with the 2005 and 2003 Acts being perhaps of most of interest to me.

It requires, of course, both the business and the local authority to agree to sign up to the “partnership” and there are certain eligibility criteria. Section 27 of the 2008 Act perhaps best sums up the outcome of this arrangement:

27 Advice and guidance

(1) The primary authority has the function of—

(a) giving advice and guidance to the regulated person in relation to the

relevant function;

(b) giving advice and guidance to other local authorities with the relevant

function as to how they should exercise it in relation to the regulated

person.

The process of the partnership has three key areas: issuing “assured” advice; creating systematised enforcement actions; and developing nationwide inspection plans. The use of “primary authority”  in England & Wales is being extendedby widening the eligibility criteria, and in general terms this appears to be a success.

For more information on primary authority in England & Wales see the BRDO website, here.

THE SCOTTISH PROPOSAL
Some readers may realise that a number of business operating in Scotland will already be very familiar with primary authority; some of the 700 odd businesses which have signed up in England & Wales will have premises north of the border too, such as large chain stores or licensed multiple operators. To a small extent, there is already some engagement on primary activity in reserved matters in Scotland. The Consultation gives a useful example with the Arnold Clark Group/Glasgow City Council partnership.

The proposal then is consider a kilted version of primary authority, “a Primary Authority model which works for Scotland”. The consultation seeks views on whether the English model is a good framework for Scotland, whether a different framework should be envisaged and whether (like the 2008 Act) any Scottish legislation should have a Schedule of affected Acts. The consultation provides a copy of Schedule 3 to the 2008 act as a guide. Of course, much of this applies cross-border but there are some key differences with licensing: the Licensing (Scotland) Act 2005 would need to be inserted instead of the Licensing Act 2003, the various Scottish “civic” regimes would need to be included and so on. Of course, there may be consultees who would argue that licensing should not be included at all in Scotland. We shall see.

HOW COULD PRIMARY AUTHORITY AFFECT LICENSING?
If the Licensing (Scotland) Act 2005 was included in a Scottish primary authority model this could have very interesting ramifications. For example, a drinks promotion treated as responsible in the primary authority may therefore be acceptable in any Scottish authority. Best practice as to compliance with the Challenge 25 condition may another example of “advice” offered by the primary authority. One can see how this may be of extreme attraction to the larger licensed operators. I also read with interest that changes afoot in England & Wales would see businesses part of a trade association availing themselves of primary authority, as opposed to individual businesses with interestes in two or more local authorities. Widening this out to civic licensing may make for even more interesting developments: take, for example, a taxi association reaching an agreement with a primary authority on vehicle standards.

Working with national law firm TLT I speak to colleagues in our English offices about primary activity and I am told it has been a most welcome advance, seems to work well (after some teething issues) and benefits some of our clients greatly. The Arnold Clark example would seem to chime with that. I look forward to seeing the proposal develop in Scotland.

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About Stephen McGowan

Leading Scottish licensing solicitor at TLT. Chairman of BII Scotland.
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One Response to Scotland and “Primary Authority”

  1. Pingback: Better Regulation and Licensing? | Stephen McGowan's Licensing Blawg

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