ANALYSIS OF THE AIR WEAPONS AND LICENSING (SCOTLAND) BILL AS LAID BEFORE THE SCOTTISH PARLIAMENT ON 15 MAY 2014
The much anticipated new licensing bill has now been laid before Parliament. The Bill and accompanying documents can be viewed from the following link.
The name of the Bill and associated media coverage suggests that the fundamental purpose of this Bill is the creation of the new air weapons licensing scheme. It does, of course, go much further than that. It is probably the most wide-ranging licensing Bill every to affect Scotland, noting that it features significant changes to alcohol licensing, to metal dealers, to private hire licensing, and the creation of the new sexual entertainment licensing regime. A number of these proposals flow from a glut of licensing consultations on which I have blogged previously: (sexual entertainment here; on taxis and private hire here; and on alcohol licensing here and here). In addition to observing the proposals which have made it to the Bill, it is interesting to pause to note suggestions from the consultations which have not made the cut (at least at present), such as suggestions for a national licensing policy which would sit above local board policies, the restrictions on pubs in the vicinity of football stadiums, and considerations of whether there should be rules concerning the use of the English language for licence holders. None of these proposals has made the Bill.
This blog will deal with the alcohol and civic licensing proposals. I shall leave analysis of the proposed air weapon scheme to another.
THE LICENSING BILL: ALCOHOL PROPOSALS
1. Introduce “young persons” to the fifth licensing objective: this comes directly as a resullt of the Tesco Stores Limited v Midlothian Licensing Board 2012 in which a decision to suspend a licence following a failed test purchase on the grounds of “protecting children from harm” was overturned, inter alia, because no children were involved. The test purchaser had been a young person (ie a 16 or 17 year old). This proposal will see the fifth licensing objective read “Protecting children and young persons from harm”.
2. Alignment of licensing policy statements to council terms: current licensing policy statements are triennial (although supplementary policies are possible). Clause 42 of the Bill would change this and tie the policy life into local council elections. This would mean a longer shelf life for licensing policies, with a requirement to introduce a new one within 18 months of each local council election.
3. Re-introduction of the fit and proper test: Perhaps the most important change to alcohol licensing, is the re-introduction of an old 1976 style consideration of the “fitness” of the licence holder/applicant. The fitness is restricted in that it is with “regard to the five licensing objectives”. Whilst this may reignite decades of jurisprudence on the so-called “fit and proper test”, tying it to the licensing objectives means that it is not as wide-ranging as the old 1976 test and Brightcrew-stle considerations would apply. The ground would apply to new licence applicants, transfer applicants and also as a ground of “review” of a licence, as well as personal licence applications and reviews. Strangely, the drafting allows boards to consider for connected persons in a transfer scenario only and not in a new grant or in a premises licence review. In a premises licence review setting, the Bill requires licensing boards to revoke a licence where the ground of “unfitness” is upheld. This is something I hope can be looked at because there is consideration for wider context such as where a licence is about to be transferred. There should be a power of recall at the least, akin to the power of lifting a premises licence suspension where there is a material change of circumstances, in circumstances where there is a transfer pending.
4. Personal Licence Reports: The Bill makes provision for LSOs to report on personal licence applications.
5. Spent Convictions: This is one of the hidden proposals which I would hope will generate some debate as the Bill moves through Parliament. The current position on spent convictions is that they cannot be considered in relation to a licence applications. That provision of the Act (s.129(4)) is to be repealed under this Bill. This means that spent convictions will be capabale of consideration. I understand that Police Scotland have requested this change as a result of the inability to produce certain convictions before the Board as they are spent. There must be proper debate in Parliament as to whether this is appropriate. If spent convictions are re-introduced, then I imagine we are back to the old 1976 “two-stage” approach for their consideration.
6. New Offence re Supply of Alcohol: a new s.104A of the 2005 Act would see offences of supply of alcohol to a child or to a young person created. This closes a gap in the existing law concerning supply of alcohol to under 18s outside of licensed premises, that is, anywhere but on licensed premises. This power was lobbied for by Police Scotland, concerned at the example of adults allowing under age drinking at “house parties” and so on. The offence would apply to “public places” (but not for the purposes of religious worship) so it does not appear to go as far as encroaching into a domestic dwelling.
7. Angostura Bitters: the current law exempts angostura bitters from the definition of “alcohol” under the Act, meaning that the sale of bitters is not a “licensable activity”. This was presumably based on the fact that, despite a 44.7% strength, this product is not designed to be drunk in the typical way and is merely used as a flavouring such as in a long vodka, with a special bottle designed so that only a small splash may be poured at a time. For reasons I am unsure of, the Government considers this to be an issue and has elected to remove the exemption, meaning that bitters would now be classed as “alcohol” and therefore could not be sold without a licence.
8. Overprovision: overprovision continues to be a real hot-potato, especially with recent media coverage from Edinburgh. The change in this Bill simply clarifies that a Board may elect to make the whole of its jurisdiction an “overprovision zone” (although I’m not sure that the Act does not currently allow for that), and also consider licensed hours in terms of the ground of refusal for new licences and major variations.
9. Licensing Board Financial Reports: a new requirement for Boards to produce an annual financial report with explanatation of expenditure and income. There is an obligation on the council to assist with this.
10. The end of “interested parties”: one small chink of light for licensing practitioners is the death knell for “interested parties”, a definition designed to create any number of people liable for licensing offences and reporting purposes, which was never enacted, was always a complete guddle, and will now be repealed.
11. Personal Licences and the 5 year Refresher Training: Clause 57(2) of the Bill removes the 5 year ban on re-applying for a personal licence following revocation for not completing the refresher training within the correct timescales. This change is most welcome, but will not help the current crop of licence holders who are staring down a fast approaching deadline at the end of August 2014. It remains absolutely essential that all existing personal licence holders get booked up on their refresher courses urgently. Time is fast running out. Moving back to the Bill, a further change is that Licensing boards will require to give 9 months notice of expiry of a personal licence, not 3, and the window for licence renewal applications to be lodged will be changed to 9 months beginning 12 months from the date of expiry.
12. Processing Deadlines and Deemed Grant provisions: one of the most interesting changes is the adoption of a civic licensing style processing deadline and “deemed grant” provision. Licensing boards will have a duty to acknowledge applications which would set the clock running, although if they deem the application “incomplete” the clock would not run until that had been resolved. The processing deadline is 9 months from date of receipt (or subsquent full receipt if the application was incomplete). If the Board fails to deal with the application within 9 months then it is deemed granted with no additional local conditions. This is, on the face of it, excellent news for trade and practitioners frustrated by processing logjams which in some areas can see applications not dealt with for 18 months or longer. On the other hand, it does create a higher threshold concerning the lodgement of the application and I can see to-ing and fro-ing between licensing boards and agents as to whether an application is deemed “complete”. Some licensing boards are happy to sit on such an application and wait on the gaps to be filled, but others will simply return the whole lot with no opportunity for dialogue. In addition, I see no provision to deal with how quickly a licensing board is required to issue a deemed grant licence. Some licensing boards can be very tardy in issuing the actual licence paperwork and I would have liked to see a duty for the paperwork to be issued within a set timescale.
General comment: I am disappointed to note that whilst there appears to be Parliamentary time to consider the legal status of angostura bitters, no consideration has been given at all in this Bill for the continued, exasperated pleas of licensing practitioners in connection with issues over transfer “traps”, difficulties with provisional and confirmation of provisional licences, mechanical issues with variation applications and so on. On the other hand, I am pleased to see that the “football restriction” has been dropped as this would surely have killed a number of responsible businesses; and I am pleased that there is no place for the introduction of a top-down national licensing policy.
THE LICENSING BILL: CIVIC PROPOSALS
1. Sexual Entertainment Venue Licensing: a brand new regime (almost idential to that in England & Wales) is to be introduced to require a licence for Sexual Entertainment Venues. I have blogged and written on this matter extensively elsewhere.
2. Private Hire Car Licensing: A new ground of refusal for “overprovision” of private hire car licences is to be created. This would seem to be the solution for the question posed concerning “demand” for private hire cars and whether there should be a cap in the same way there is for taxi operator licences.
3. The “Knowledge”: the topographical test, colloquially known as “the knowledge”, will now apply not just to taxi drivers but to private hire car drivers as well.
4. Licensing of “Special Events Vehicles”: an existing provision to exempt certain vehicles from the licensing requirement will be removed. This relates to, for example, the hiring of “stag” or “hen” limos and so on.
5. Changes to Metal Dealer Licensing: A number of steps will be introduced to tighten up the metal dealer licensing regime. This will be the subject of a separate blog.
6. Repeal of Theatre Licensing: A surprise addition to the Bill is the abolition of the licence requirements under the Theatres Act 1968, with the creation of a new “theatre” sub-class of public entertainment licence. In other words, theatres will require to have a public entertainment licence instead of a theatre licence. There is no provision concerning transitional arrangements for this handover. This change needs further thought. Councils will have to resolve to introduce “theatre” as a licensable form of entertainment under the PEL system, and consideration needs to be given to how premises licensed under the Theatres Act will “convert” to the public entertainment licensing regime. I hope this is caught as the Bill makes it way through Parliament. There is power in the Bill for transitional regulations. It strikes me as odd that Government would be moved to abolish theatre licensing and leave cinema licensing alone. Why not abolish the cinema licensing regime and make the showing of films a form of public entertainment licence? Both the theatres and cinemas Acts have already been abolished in England and Wales, with those premises now required to hold a premises licence under the Licensing Act 2003 instead.
7. Civic “Deemed Grant” and other provisions: the current position with 1982 Act applications is that there is a 6 month processing deadline. This is to be raised to 9 months akin to changes above under the 2005 Act; with an amendment to the deemed grant rules so that the “mandatory” or “standard” conditions WOULD be imposed on a “deemed grant” licence. There is also a new requirement about procedure for hearings under the 1982 Act (it is not clear why this should not apply to the 2005 Act as well) such as relating to rules on evidence and so on.
8. Civic Licensing Standards Officers: this proposal will see the 1982 Act borrow from the 2005 Act the position of Licensing Standards Officer. This new role copies extensively from the 2005 Act, creating three main powers of providing information, supervising compliance, and mediation (all of which will be very familiar to alcohol licensing practitioners). The LSO would also have a power of entry and issuing notices for non-compliance and so on. Strangely, the Bill does not replicate the provisions concerning a specific period of time within which a licence holder can work to remedy the issue. This seems odd. the 2005 Act, from which these provisions have been lifted, impose on the licence holder a 21 day period in which to remdy the issue. Only after that period can the alcohol LSO then take further action. There is no deadline referred to in this Bill for the similar civic enforcement notice. I think that is an oversight which should be fixed as the Bill makes it way through Parliament otherwise we will have a scattergun, personalised approach where one officer expects compliance within 7 days and another leaves it entirely open-ended.
9. Electronic Communications: it is proposed that local authorities may accept civic licence applications and related missives by electronic means. This, of course, is already a requirement for Scottish local authories by virtue of the EU services directive legislation but in many cases it is simply ignored. It still puzzles me why the services directive law is in place at all when so much of it is not adhered to.
General comment: Again it is interested to note what did not make it into the Bill, such as the suggestion that the burden of proof for the “fit and proper” test should be inverted (a suggestion I am relieved to see has bit the dust), nor does the idea of civic “licensing objectives” appear to have gathered pace. Finally, there were some proposals concerning taxi/private hire booking offices which I am surprised have not made the Bill.