Mutual Recognition: Portability of Licences

ON THE GOVERNMENT RESPONSE TO THE ISSUE OF PORTABILITY OF LICENCES IN ORDER TO SECURE COMPLIANCE WITH THE EU SERVICES DIRECTIVE

In a previous blog post back on Valentines Day this year, I discussed the licensing ramifications for failure by the Scottish and UK Parliaments to adhere to the rqeuirements of the EU Services Directive and in particular the issue of “portability” of licences. That blog can be read here.

BIS has now published its response to this issue and proposed a solution. The solution, you will not be surprised to hear, is in passing further law, and in particular adopting a new licensing concept which will be known as “mutual recognition”. This will be an extremely interesting development in licensing across the UK and will affect licensing regimes not just in England & Wales but up here in Scotland too.

BIS has to a large extent agreed that there is non-complaince as regards the EU Services Directive. Their summary of how this will be addressed is as follows: “We have concluded that it will be appropriate to [take steps to comply with the Directive] by implementing a form of mutual recognition, under which all licences issued by competent authorities whose functions relate either to the entire UK or to at least one of the four parts of it listed above, shall be valid throughout the UK. There will be important exceptions on the grounds of overriding public interest in appropriate cases.”

The portability of licences can only relate to “personal” licences, in the generic sense, that is, licences under any sort of regime which attach to an individual and not to a premises. It interesting to note then the types of personal licence which respondents to the consultation mentioned most frequently. Using the wording in the BIS report, these were as follows:

  • Licenses under the Licensing (Scotland) Act 2005
  • Licences under the Civic Government (Scotland) Act 1982, including Street Traders, some Second Hand Dealers, Window Cleaners, Itinerant Metal Dealer’s Licences
  • Personal Licences in terms of the Alcohol (Scotland) Act 1976
  • Licences for House to House Collections (House to House)
  • Personal Licences issued under the Licensing Act 2003

It is somewhat disappointing that the BIS report does not pick up on the fact there is no such thing as the Alcohol (Scotland) Act 1976. One can only presume the respondent(s) meant the Licensing (Scotland) Act 1976, which is any event was repealed by the Licensing (Scotland) Act 2005. I would also have expected BIS to pick up on the fact that the 2005 Act provides for personal licences broadly akin to the 2003 Act.

Let us explore the proposed solution: “mutual recognition”.

The Principle of Mutual Recognition
The base idea of mutual recognition is that a licence issued in one part of the UK can be “recognised” and accepted as valid in another part, and vice versa. It will be a matter for individual licensing authorities to decide which of the “personal” licences are affected because according BIS it would be impractical for the Government to scope all the possible affected licences. There would an exception to the principle of mutual recognition where in the “over-riding public interest”.

So how will this be done? It means serious legislative change. On the face of it, the initial changes would be made to the Provision of Services Regulations 2009 which enacted the EU Services Directive (although not fully, as this consultation and response testifies). But there would also be significant and sweeping changes to other primary legislation. Look out for changes to the Licensing (Scotland) Act 2005, the Licensing Act 2003, the Civic Government (Scotland) Act 1982 and beyond. As a brief reminder, the EU Services Directive does not apply to gambling or to licensing for taxi and private hire drivers.

The licensing maelstrom continues.

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About Stephen McGowan

Leading Scottish licensing solicitor at TLT. Chairman of BII Scotland.
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