UK Immigration Bill and Scottish Licensing

ON THE UK GOVERNMENT IMMIGRATION BILL, FROM A SCOTTISH LICENSING PERSPECTIVE

I have read with interest the licensing provisions contained within the new UK Parliament Immigration Bill. The Bill received its first reading in the House of Commons on 17 September 2015. The Bill contains a number of proposals which affect the licensing laws of England & Wales, under the Licensing Act 2003. The Bill itself is a UK Bill; that is because immigration law is a reserved matter and outwith the competence of the Scottish Parliament. So, whilst wider aspects of the Bill will apply to Scotland, the specific
proposals which relate to licensing will not, because the changes made will only relate to the Licensing Act 2003.

The proposals are contained under Clause 10 of the Bill, headed “Illegal working in licensed premises”. The clause is in the following terms:

10 Licensing Act 2003: amendments relating to illegal working
(1) Schedule 1 (Licensing Act 2003: amendments relating to illegal working) has effect.
(2) The Secretary of State may by regulations make provision which—
(a) has a similar effect to the amendments made by Schedule 1, and
(b) applies in relation to Scotland or Northern Ireland.
(3) Regulations under subsection (2) may—
(a) amend, repeal or revoke any relevant enactment;
(b) confer functions on any person.
(4) Regulations under subsection (2) may not confer functions on—
(a) the Scottish Ministers,
(b) the First Minister and deputy First Minister in Northern Ireland,
(c) a Northern Ireland Minister, or
(d) a Northern Ireland department.
(5) In this section “relevant enactment” means—
(a) an Act of the Scottish Parliament or Northern Ireland legislation, and
(b) an instrument made under such an Act or under Northern Ireland legislation.

I am not clear how on the one hand this purports to give power to the Secretary of State to introduce regulations which would apply in Scotland and have the same effect as the English licensing proposals; and also gives power to amend, repeal or revoke an Act of the Scottish Parliament, but at the same time cannot confer functions on the Scottish Ministers. Greater legal minds than mine will no doubt have the answer but it seems to me that the only way to achieve the same English licensing proposals in this Bill would be to amend the 2005 Act, which would require this to be done by Holyrood, not Westminster. I would be very interested to hear from the constitutional chaps out there on this point.

Let us have a look at some of the proposals, which are contained in Schedule 1 to the Bill.

  • The Secretary of State is made a “responsible authority” under the Act
  • An applicant for a premises licence or personal licence must be entitled to work in the UK
  • If a premises licence holder ceases to be entitled to work in the UK then transfer provisions similar to those where the holder becomes insolvent should apply
  • Immigration offences are added to the list of relevant offences
  • Rights of entry are conferred on Immigration Officers
  • A closure order power where officers find illegal working and the premises licence holder has been convicted of an offence previously

I will be interested to know if Theresa May MP appreciates that the first of these will mean her office receiving thousands of licence application notifications!

The Licensing Act 2003 and the Licensing (Scotland) Act 2005 are different beasts, of course, and grow from different soil. One of the differences between the two is the status of the licensing objectives which underpin the Acts, and the interpretation of these following jurisprudence in the separate Scottish and English courts. In Scotland, it is well known that a key decision here is Brightcrew Ltd v Glasgow Licensing Board [2011] SCIH 46, which talks of the objectives flowing from the sale of alcohol and not being of general public interest matters. This is in contrast to the 2003 which as a licensing Act, licenses activities other than the sale of alcohol.

The presence of illegal workers in Scottish licensed premises has resulted in review applications by Police Scotland (and the former separate constabularies), and, I think, by the UKBA themselves. This has had mixed outcomes. In some cases, the licensing board has decided that the status of workers is not an alcohol licensing matter and, following Brightcrew, have taken no action. This happened at the Clackmannanshire Licensing Board, to give one example, where a personal licence review was abandoned on the basis of the Brightcrew argument (put forward by my former colleague, John Batters), back in August 2011 and is reported here. On the other hand, there are examples of premises licences being revoked or suspended at review hearings because of illegal workers such as the Kings Lodge in Bishopbriggs.

Offences under the Immigration Act 1971 are relevant offences under the 2005 Act, but how does one link that offence to the licensing objectives under scrutiny of the Brightcrew test? Has the crime occurred as a result of the sale of alcohol – does it flow from the sale of the alcohol? It is an interesting one to debate: and I wonder what the future holds for Scotland – will there be yet more licensing reform to adopt these English proposals?

On a wider note, if these proposals are not replicated in Scotland, does this mean that illegal working or employing illegal workers north of the border will become a more attractive proposition than in England & Wales?

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About Stephen McGowan

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