ON THE SCOTTISH GOVERNMENT REVIEW OF FEES UNDER THE LICENSING (SCOTLAND) ACT 2005
The Scottish Government has released the long awaited report following a review on licensing fees under the Licensing (Scotland) Act 2005.
The report can be viewed here.
The report, which was conducted by an independent research body, has to a large extent body-swerved the fundamental question behind the review itself, by not proposing a new alternative for licensing fees. The review was originally put in place following concerns about the vast difference in fees across Scotland, coupled with FOI results collated by the Scottish Grocers Federation which showed that some licensing boards had made significant profits from licensing fees and, it was suggested, these had not been returned to the licensing “system” but instead swept up in general local authority accounts.
The review looked at whether it was appropriate to consider a fee structure based on turnover or size of the premises and these are rejected as unworkable, but does not offer any other alternative and does not offer any suggested changes to the existing licensing fees which are set by licensing boards up to a maximum based on the rateable value. This will be disappointing for the trade and those who have campaigned for the fees to be reduced (or in some cases increased).
The report does, however, suggest that licensing boards should be placed under a stricter legal obligation to be accountable for the profits they make from fees. The review also concludes that occasional licence applications are priced too “cheaply” at the current rate of £10 per licence. The review found that the work required for such applications could very often vastly outweigh that minimal cost and an increase of between £20 and £80 has been suggested. Finally, the review also concludes that there may be merit in revisiting the special discount available for “members clubs”.
Overall, the review does not take us any further forward and does not deliver on what the trade will be expecting – a new fee structure – and it is disappointing that there has been no firm suggestion about a new way to create fair fees for all. It remains an absurdity that an application for major variation can cost as little as £90 in one licensing board area, yet an identical application could cost as much as £1333.33 in another.
Finally, the review appears to ignore the wider importance of the decision in Hemming v Westminster City Council  EWCA Civ 951 concerning the appropriate level of fees which a licensing authority should be setting. The report suggests this English case is of no precedential value in Scotland, but that position appears to misunderstand that the underlying law to which Hemming relates is of direct impact to Scotland and Scottish licensing, namely the EU Services Directive.