Better Regulation and Licensing?

ON THE REGULATORY REFORM (SCOTLAND) ACT 2014 AND POSSIBLE IMPLICATIONS FOR LICENSING

The Scottish Parliament has recently passed the the Regulatory Reform Bill, which will become an Act later this year. A copy of the Bill as Passed can be found here.

There are some interesting aspects of this new peice of legislation which may or may not impact on licensing. One of the key planks of the Bill is the introduction of a Primary Authority Scheme in Scotland, similar to that already in operation in England & Wales. I discussed the licensing implications for Primary Authority in my blog back in July 2013 which you can read here, so that does not form part of this offering. Instead I wish to look at the new obligation which will be placed on local authorities concerning “sustainable development”; and some interesting changes to the “portability” of safety certificates underpinning applications for street trader licences.

SUSTAINABLE GROWTH
The new Bill (as passed) has created various obligations on “Regulators”. This affects various public bodies which are prescribed in Schedule 1 to the Bill and are as follows:

  • Accountant in Bankruptcy
  • Food Standards Agency
  • Healthcare Improvement Scotland
  • Local authorities
  • Scottish Charity Regulator
  • Scottish Environment Protection Agency
  • Scottish Fire and Rescue Service
  • Scottish Housing Regulator
  • Scottish Natural Heritage
  • Social Care and Social Work Improvement Scotland
  • VisitScotland

Note that this list includes Local Authorities, but not licensing authorities. There is a key distinction. Alcohol and gambling licence applications are dealt with not by the local authority but by the licensing board, a separate beast, created under the Licensing (Scotland) Act 2005. The Local Authority, that is, the council, is not the licensing board. It does, however, deal with licensing which is commonly referred to as civic licensing and that is licensing under the Civic Government (Scotland) Act 1982. The 1982 Act relates to a plethora of licences including taxis, street traders, public entertainment, window cleaners, sex shops, and will also feature a new licence for sexual entertainment venues if the proposals in the new Licensing Bill to be laid before Parliament in Spring 2014 are brought forward. I have of course discussed the proposed sexual entertainment licensing system on these pages before, here.

Section 4 of the Bill contains a new obligation for these Regulators in the following terms:

Regulators’ duty in respect of sustainable economic growth
(1) In exercising its regulatory functions, each regulator must contribute to achieving sustainable economic growth, except to the extent that it would be inconsistent with the exercise of those functions to do so.
(2) The Scottish Ministers may give guidance to regulators with respect to the carrying out of the duty imposed by subsection (1).

(3) Regulators must have regard to guidance given under subsection (2).
(3A) The Scottish Ministers must publish (in such manner as they consider appropriate) any such guidance.
(4) Subsection (1) does not apply to a regulator to the extent that the regulator is, by or under an enactment, already subject to a duty to the same effect as that mentioned in that subsection.

This is a very interesting part of the Bill. Note that local authorities (and the other prescribed Regulators) are placed under a duty to “achieve sustainable growth”. This imports a consideration of factors which may not necessarily relate, prima facie, to a licence application under the 1982 Act. It involves a consideration of economic and business factors such as investment, development, job creation and so on. There is a “get out clause” here which allows the local authority to overlook these factors if “inconsistent” with the exercise of its regulatory functions. This sounds like a field day for lawyers arguing about growth and development in the face of opposition to licence applications such as new sex shops or sexual entertainment venues, or any other type of licence for that matter. The crux of this debate must surely be the guidance. I am unfortunately sceptical about guidance owing to my experience of the various guidance documents issued by the Government in relation to the Licensing (Scotland) Act 2005. I will therefore hold my breath on how the “sustainable growth” argument may be deployed in licensing hearings until we have that guidance.

I would however like to note that it is important to distinguish the licensing function of the Board compared to the council in that this requirement to consider sustainable growth does not have any bearing on alcohol or gambling applications. In the recent consultation on alcohol licensing, some respondents argued for a 6th licensing objective under the 2005 Act to take account of the positives which a new licence can bring. You can read these responses here. At least one respondent has suggested that “sustainable growth” should be a licensing objective. It is doubtful the Licensing Bill will feature such a proposal as it would seem to rail against the prevailing political climate concerning alcohol harm in Scotland. however, I would argue that is a lost opportunity.

In my mind, a licensing board should consider both the positives and the negatives that the grant of a licence may bring; and the Act should recognise that. I see no difficulty in “Balancing” the 2005 act to allow for an objective about promoting sustainable and reponsible growth. I have argued before that this wider consideration is already a part of the make-up of a licensing board; but with the increasing influence of the health lobby I suggest that the responsible growth and development of the licensed trade is something which needs to be protected otherwise we will result in a retrograde scenario akin to the dilapidation of the licensed trade following the Temperance Acts of the early 20th century.

CHANGES TO STREET TRADER LICENSING
The Bill also contains, at the proposed s.42, an “update” to street trader licensing in relation to food businesses. This seems to relate to a sort of “portability” approach to allow street traders to produce certificates of hygiene safety from one food authority, in another. This appears to be stop the existing situation where there can be extreme difficulties from one local authority to another as regards differing interpretations of the food hygiene legislation by local officers. In other words, to stop the sort of approach where 5 sinks is acceptable in Dundee, but not in East Ayrshire, and that sort of thing. I would suggest this change is to be welcomed and will remove considerable uncertainty for mobile street traders who operate in more than one jurisdiction.

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About Stephen McGowan

Leading Scottish licensing solicitor at TLT. Chairman of BII Scotland.
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One Response to Better Regulation and Licensing?

  1. Pingback: Consultation on Scottish Regulators Code of Practice | Stephen McGowan's Licensing Blawg

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