Air Weapons and Licensing Bill Stage 1 Report: Lost Causes and Unintended Consequences

A CRITIQUE OF THE SCOTTISH PARLIAMENT LOCAL GOVERNMENT AND REGENERATION COMMITTEE STAGE 1 REPORT ON THE AIR WEAPONS AND LICENSING (SCOTLAND) BILL

Back in December 2014 I attended at the Scottish Parliament to give evidence to the Local Government and Regeneration Committee who are steering the Air Weapons and Licensing (Scotland) Bill. The progress of the Bill can be tracked here. I was to represent the view of the Institute of Licensing on a number of issues, most if not all of which were broadly aligned to those expressed by the Law Society of Scotland licensing sub-committee. I was encouraged at the opportunity I was given to raise a modest selection of very real practical issues surrounding the Licensing (Scotland) Act 2005 and I spoke of this positivity in an article for the Scottish Licensed Trade News on 8 January 2015.

I was therefore looking forward to the Stage 1 report which was published last week. The full report can be accessed here. A number of very interesting and some controversial items have come out of the report. The Report itself can be treated as a list of recommendations, having heard evidence, from the Committee back to Parliament to take forward as they see fit. It is therefore considered to be influential but Parliament is not bound by these recommendations. The following is my analysis of the report (which, I should state, ignores the proposals on air weapons and metal dealers).

ALCOHOL LICENSING

The life of a licensing policy statement

It has been proposed that licensing board’s triennial statement of licensing policy should have a longer shelf life, namely 5 years. This appears to have been requested by licensing boards themselves with the example of a certain board being, in its view, “hamstrung” by the policy of its predecessors following council elections. Making the policy 5 years and tying the dates to the council term may prevent that type of situation. In addition, having a policy in place for 5 years means that the licensing system will inevitably become more rigid.

Overprovision

When I appeared, I think that this was the first topic I was asked about notwithstanding the Institute of Licensing response to the consultation did not discuss the topic in any real sense. It was clearly an issue exercising minds. The Bill proposes to allow licensing boards to set their whole area as an “overprovision zone” (although many think the law allows this anyway) and also to take licensed hours into account when assessing overprovision. The Committee endorses these but goes two steps further and suggests that the assessment should take club premises and occasional licences into account. The inexorable logic of inclusion when it comes to club premises may be all too apparent and those who have read the evidential sessions will know the Committee was greatly concerned about the role and impact of club premises within the licensing system. Adding club premises to overprovision assessments should not be overly taxing for a board.

Occasional licences on the other hand will be a nightmare for boards to contend with. Tens of thousands of these licences are issued by licensing boards and deal everything from a PTA cheese and wine evening to T in the Park. Assessing and understanding that level of information within numbers simply cannot be achieved with alacrity, nor can the geographical interplay of occasional and full premises licences. The inclusion of occasional licences within overprovision assessments is a task I do not envy and I wonder just how robust or transparent those assessments can possibly be. I also wonder how much use this level of information will be when considering whether to grant a new licence.

Interestingly, the Committee appears to hold some view that licensing boards are timid, cowering under their own policies when it comes to being faced with an appeal. They suggest that more needs to be done to make policy rigorous to prevent succesful appeals. That is well and good, but it misses the fundamental point that if a policy is unlawful for reasons other than the consultation process, then the robustness of that policy in terms of consultation is no shield. In addition, I find it odd that appeals be painted as some over-bearing menace when the reality is that appeals are few and far between because most operators/applicants simply cannot afford the process.

A 6th Licensing Objective?

This recommendation is the one which has made the front page of national newspapers in the last several days. The report says: “We also recommend, given the overwhelming evidence we received of harm and links to disorder from overconsumption, an additional objective be added to include the reduction of consumption.” So there we have it, a sixth licensing objective which would presumably read “Reducing the consumption of alcohol”. I have described this objective as oxymoronic. It cannot be correct that the law allows a board to license the sale of alcohol, the effect of which is to create legal duty upon the licensee to reduce consumption. How can this possibly work when the central purpose of a licence is to allow someone to sell alcohol? This is fundamentally unsound.

The issue here is irresponsible sale and consumption of alcohol. The Committee heard at length on these issues and have reacted. I don’t think they have fully considered the ramifications of a sixth licensing objective in these terms. How can it possibly be measured or evidenced? How can a licensee actually reduce consumption of the product he is licensed to actively sell? Does the barman tell the customer he will only serve half-pints? Does the checkout assistant suggest a home visit to see how much of the 12 bottles of wine is consumed, when and by whom? The mischief being attacked here is certainly important but this would be bad law and create a legal obligation on a trade to put itself out of business! This cannot be correct and I hope the proposal withers on the vine at Stage 2 when amendments are proposed. 

In addition to this, it seems unsound to create further obligations which strike at irresponsibility when there are plenty of existing laws and offences. Does not the existing licensing objective of “Protecting and Improving Public Health” deal with overconsumption and irresponsibility? There are any number of “drunkenness” offences under the Act which also already deal with this issue: sale of alcohol to a drunk, sale of alcohol to someone who is going to give it to a drunk, premises manager and staff not to be drunk in relevant premises, a drunk person cannot enter a licensed premises, and so on.

Police Intelligence

I spoke about the issue of “unseen and unknown” police intelligence at licensing heards and warned that there was a danger that decisions based on this type of “evidence” would corrupt inherent legal principles of natural justice and the right to a fair trial. The Committee’s comment on this element is to say: “We do not consider that police intelligence in a raw form should be made available to Boards. It is a matter for the Police to make available relevant information to Boards in a manner consistent with ECHR considerations.” I don’t think that really takes us anywhere on this point. It is a matter for police to seek to present what information they wish; it is for agents to oppose to that if they deem it appropriate; and it is for licensing boards to assess what weight they attribute to the police intelligence in reaching a decision. That will remain the case.

Transfers of Licences

Out of all the technical issues bedevilling solicitors and clerks across the county, the one which a solid majority would agree is top of the hit list is the terrible mess of provisions concerning the transfer of licences, especially s.34 applications. I spoke about this at the Parliament and provided an ancillary note highlighting the practical examples as to why s.34 of the 2005 Act is woeful. This is included verbatim in the Stage 1 report. However, instead of making any bold recommendations like they have in other areas, the Committee has completely side-stepped the issue. There is no recommendation on transfers at all; and the final line on the matter is: “We asked the Scottish Government for their views on teach of the above issues and they said they continued to consider the concerns raised“. How utterly frustrating. The issues have been on the tables for years. What is there left to consider? The Law Society of Scotland has been raising the issue of transfers since and before the Act came into force. The Law Society has even offered to help redraft the relevant sections of the Act. Despite these most recent attempts both the Society and now the Institute have been rebuffed.

Surrender of Licences

Another “request” from both the Law Society and the Institute was to look at the legal status of surrendered licences. Under the old 1976 Act a surrendered licence could be re-activated by way of a transfer, so that a frustrated landlord could retrieve a licence surrendered out of spite by his tenant. The Committee’s view on this is: “We have heard no evidence to convince us that businesses should be able to avoid current regulations designed for safety or other reasons through this method“. That, of course, misses the point entirely. A premises in this situation would have been trading since at least 2009 and if there were safety issues they would have been dealt with under appropriate legislation: licensing or otherwise. The “safety” regulations referred to themselves do not require older buildings to meet current laws! If that were so half of Scotland’s buildings would close. This appears to be a lost cause but it is frustrating that the central point has not been understood. The Committee say elsewhere: “We asked the Scottish Government for their views [on surrenders] and they said the proposal had the ‘potential to undermine facets of the existing regime’. They considered the proposal would not be widely supported by others“. There is no further information given about which facets of the regime would be undermined. The Law Society of Scotland and Institute of Licensing represent between them licensing solicitors and licensing practitioners of both local authorities and private practice all over Scotland: I would consider that “wide support”.

Site-only Provisional Licences

When I attended Parliament I had three requests to make of the Committee: to consider transfers, surrender, and site only provisionals. All three were discussed. As you will note above, any modification to the laws on transfer appear to have been punted into the legislative long-grass, and the surrender issue rebuffed. Perhaps third time lucky with the much missed “site only” provisional licences? The report says: “We asked the Scottish Government for their views on this issue and they indicated the proposal had the potential to ‘undermine facets of the existing regime’. They considered they would not be widely supported by others“. Again there is no further detail. The Committee, in their recommendations, rejected the re-introduction of site only provisional licences and say: “We consider greater clarity within overprovision statements and procedures thereunder should provide the necessary information required by developers. We note for example the effect of recent business decisions made by large retail groups not to develop sites. They could under these proposals hold these types of licenses for a considerable period before trading commences. This could impact on other businesses seeking licences during the interim period between a grant and sales commencing.”

Lets unpick that a little. The Committee appears to misjudge what information developers need. The information available to them in terms of which areas may be covered by overprovision zones is already available. They can already judge where to make an application. That is not the issue! The issue is that the Act will not let them lodge an application unless they have full layout plans. The site only provisional application, which would allow an application to be lodged but without full layout plans, is a proposal unconnected to the development of more clarity within overprovision assessments. This response shows a poor understanding of the licensing system. They also misunderstand the fundamental process of applications before a board, which is very much “each on it’s own merits” and first come first served. It also appears to focus on the idea that this proposal is designed to help developers of large retail premises: but this “route” would apply equally to the small businessman who wants to put a bar or restaurant into a dis-used high street premises, for example.

It appears there is no room at the inn for site only provisional licences so this is another lost cause.

Minor and Major Variations

There is no mention of amending this aspect of the Act in the Bill. However, the Committee have been exercised to recommend: “the Scottish Government urgently review the types of applications falling into each of these categories with a view to ensuring local residents have adequate opportunity to make representations about variations which might adversely affect them. We expect the revised guidance to enhance the rights of residents to make representation and remove existing anomalies as reported to us.” This comes from evidence from the clerk of West Lothian Licensing Board who fairly raised the issue of variations which should be minor, and are treated as major, and vice versa. The Committee has focused on ensuring local residents have better engagement. This may mean a “re-draft” when it comes to list of approved “minor variation” applications but this whole topic is a minefield. There are certainly some changes to a licence which are so negligible it is a nonsense they have to face a major variation and the cost and delay of that. On the other hand, it is suggested that some “layout change” variations should be major variations. If the Parliament carries this forward it would require a working group populated by those who understand the technical processes of these applications.

LSOs and Gambling Premises

Here is a hoary old chestnut! I have been discussing the issue of gambling enforcement for some time on this blog going back to July 2012 if not before. The Committee have suggested that Parliament close the loophole pertaining to gambling enforcement and “licensing authority” staff under the Gambling Act 2005. That is music to my ears but is also a red herring because Holyrood has no jurisdiction on this matter! The Gambling Act 2005 is a Westminster Act and the powers lies there.

CIVIC LICENSING

Taxis and Private Hire

The Committee recommends a “full review” of taxi and private hire licensing to report back within this Parliamentary term. There is no apparent acknowldegement that the “full review” carried out as recently as 2012, called “Taxi and Private Hire Licensing: Proposals for Change“, was not fit for purpose, but there is considerable mention given to the developments of technology and how these are affecting this sector.

The Committee do appear to have understood the point made by the Law Society of Scotland and the Institute of Licensing that in relation to “capping” private hire car numbers, it is odd that this should be done by creating a test of “overprovision” when the equivalent existing test for taxis is about “unmet demand”. The Committee also endorses proposal to have “the knowledge” apply equally to private hire car drivers as well as taxi drivers.

Public Entertainment Licensing

The key item to come out of this section is the proposal to remove the current exemption to the PEL requirement for a premises which has an occasional licence. This would appear to be a reaction to evidence that it is not appropriate for large scale events to be licensed simply by way of an occasional alcohol licence and not a separate temporary public entertainment licence.

Sexual Entertainment Venue Licensing

The controversies surrounding this area will run for years, I wager. The Committee have much to say on this and make several recommendations to the Parliament to take forward with the Bill. The starting point is definitions. I and others have raised considerable concern over conflicting legal definitions under separate licensing regimes such as “sexual entertainment” vs “adult entertainment” as the two are not the same, going by the existing and proposed legal definitions. The Committee has welcomed “guidance” but would it not be better to get the legal drafting right in the first place rather than augment it with further verbosity for lawyers to argue over? They do come down on the side of firmly excluding “plays” from the need to have the SEV licence but ironically suggest the definition for a “play” be lifted from the Theatres Act 1968 – which the Bill seeks to repeal as it is considered antiquated!

The definition of “play” in the 1968 Act may also be out of date and I think it should be updated. The definition in the 1968 Act is “any dramatic peice, whether involving improvisation or not, which is given wholly or in part by one or more persons actually present and performing in which the whole or a major proportion of what is done by the person or persons performing, whether by way of speech, singing or action, involves the playing of role“. Ballets are also caught and defined separately. But these definitions must be taken together with s.2 of the Theatres Act 1968 which prohibits “presentation of obscene performances of plays”. Obscenity in this regard is something which will “tend to deprave or corrupt”. These definitions are, to my mind, archaic, and I am not sure they should be implanted into 2015 legislation.

The proposal to allow 4 performances a year without the SEV licence, which was to cover one -off events such as a strip-tease in a public house, has been roundly rejected by the Committee who suggest the exemption should be removed entirely. If this were carried forward, it would mean no premises could have such one-off performances without the SEV licence which will, of course, be incredibly difficult if not impossible to secure in the first place. It creates an issue for premises who may wish to have a burlesque themed live performance, for example, and that takes us back to the problem over definitions. The equivalent legislation in England & Wales, from which the Scottish proposals are lifted, allow for 12 unlicensed events in a calendar year.

Finally, the Committee appears to have taken on board concerns that the licensing committee of the local authority may not be best placed to license SEVs and maybe the licensing board should be the correct authority. This is on the argument that boards have historic insight into these premises as they have regulated the alcohol side of thoses buisiness for years. Although I firmly believe the board is the place for this type of licence, in the same way that gambling is, I doubt this will be taken forward at this time because the entire structure of the SEV proposal is predicated on it being a licence issued under the 1982 Act. If it were accepted that the licensing board were to be the regulator, this whole aspect of the Bill would need to be re-written.

And finally…civic licensing objectives

The Committee makes two final general recommendations. The first of these is to introduce licensing objectives to the 1982 Act akin to the 2005 Act together with processes for review and so on, and the second is to transplant the 2005 Act neighbour consultation process to the 1982 Act. I am not sure if licensing staff will welcome the consultation work that they have to follow under the 2005 Act but I do see the logic in introducing a better process to the 1982 Act which I do feel is now outdated. The 1982 Act is predicated on public safety and this is perhaps an “implicit” objective of the licensing process.

Conclusions

Some of these proposals are merely adopting or endorsing the existing elements of the Bill. I have focused on the more interesting or controversial suggestions for additions or modifications. None of these are guaranteed. Some may be sponsored by MSPs at Stage 2 when formal amendments will be made. Yet further treasures could appear during the passage of the Bill as MSPs lodge amendments of their own on matters unrelated or barely to this report. Licensing is attractive to those who wish to make big statements but this is often counter-productive and generally ends with bad law. The passage of what became s.65 of the 2005 Act is one of the best (or worse) examples of this sort of Parliamentary grand-standing. The Bill has attracted considerable headlines so far. It has some way to go.

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About Stephen McGowan

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