On the 15th May 2014 the Scottish Parliament published the Air Weapons and Licensing (Scotland) Bill (“the Bill”). The Bill introduces a number of changes to the Licensing (Scotland) Act 2005 (“the 2005 Act”) and the Civic Government (Scotland) Act 1982 in relation to various licensing regimes. This article focuses on the changes to alcohol and entertainment licensing.
Fit and proper person test
The Bill reintroduces the concept of a “fit and proper person” test which was abolished in 2009. A licensing board can “consider, having regard to the licensing objectives” whether the applicant is a fit and proper person. The test will apply to new premises licence applications, transfers, personal licence applications and reviews. The Bill does not include a definition of fit and proper which will be left up to the licensing boards to determine, in consideration with the licensing objectives.
Premises Licence Transfers
The police currently provide information to a licensing board on whether the transferee, or connected person has been convicted of a relevant or foreign offence. A new amendment means that the police can also provide “any information” in relation to the transferee or connected person to the board.
Boards will have to give more notice to personal licence holders regarding expiry of their licence. Currently licensing boards have to give three months’ notice and this will be extended to nine months under the Bill giving holders more time to submit their renewal application.
The Bill also proposes the removal of the 5 year ban on applying again for a personal licence following revocation for not completing the requisite refresher training within the prescribed timescales.
Whilst this is to be welcomed it will do nothing to help licence holders who are facing a fast approaching deadline in relation to the current requirement to complete training by the end of August 2014.
S129 of the 2005 Act will be repealed meaning that boards will be permitted to consider not only current but also spent convictions of applicants.
Supply of alcohol to a child or young person
It will be an offence to supply or buy alcohol for a child or young person under 18 for consumption in a public place.
The gap in relation to young persons outlined by the case of Tesco v Midlothian Licensing Board in 2012 has also been filled by an addition to section 4 of the 2005 Act to include young persons (i.e. those aged 16 and 17) as well as children.
A licensing board’s discretion in relation to overprovision will be widened as a board will be able to consider licensable hours as well as the number and capacity of licensed premises in the locality. It can also determine that the whole of its area is a locality affected by overprovision.
Licensing board’s duty to produce annual financial report
A licensing board must publish a financial report no later than three months after the end of each financial year. The report should include the amount of relevant income received and the amount of expenditure.
Licensing policy period
The Bill removes the reference to the three year period for the review of licensing policy statements and replaces this with a requirement to publish a statement of policy 18 months after a local government election takes place.
Duty to notify changes in relation to interested parties changes scrapped
A premises licence holder will no longer have to notify changes to a licensing board in relation to interested parties, i.e. a party who has an interest in the premises such as an owner or tenant.
Acknowledgement of application and period of determination
A licensing board must give an acknowledgement to an applicant as soon as practicable confirming whether or not the application meets the prescribed requirements.
A licensing board must determine every relevant application which meets prescribed requirements within nine months.
A sheriff can, on application to the Board, extend the period for determination if they have good reasons for doing so and no previous extension has been granted. Where a Board has failed to determine an applications before the end of the 9 month period, the application will be deemed granted on the expiry date. The Board will be unable to impose any conditions (other than mandatory ones) on a deemed granted application.
Public entertainment licences
Theatres will be required to have a public entertainment licence (PEL). A licensing authority can currently attach conditions to a PEL and the Bill proposes that where a PEL authorises performance of plays, the licensing authority cannot attach a condition to the nature of plays which can be performed nor the manner of performing plays. This does not prevent the authority attaching conditions on public safety grounds.
Sexual entertainment venues (SEVs)
The Bill introduces a licensing regime for SEVs. Currently, premises offering sexual entertainment such as lap dancing, usually operate under the Alcohol (Scotland) Act 2005 through conditions attached by the local licensing board to promote the licensing objectives. The proposal to introduce separate licensing regime for SEVs aims to ensure more effective regulation of these premises and will align SEV licensing with that currently in operation in England and Wales.
It will be at the discretion of local authorities as to whether or not a licensing regime is needed in their area and councils can opt to have no SEVs at all. Whilst it is hoped that the new licensing regime will deliver an effectively regulatory environment for sexual entertainment venues, there is some concern that there may be practical difficulties with the local authority rather than the licensing board being responsible for the administration and also an increased cost to business having to apply for an additional licence.
Civic licensing standards officer
The Bill provides that each council must appoint at least one civic licensing standards officer for its area.
The function of the officer is to provide information and guidance on licensing matters, supervise licence compliance and provide mediation services to resolve licensing disputes. The officer will have the power to enter and inspect premises and issue notices requiring rectification of any breaches.
Whilst bringing some additional regulatory burdens there are also positive messages within the Bill, such as the licence determination period – albeit a nine month one, which will provide some certainty to operators who will need to endeavour to ensure that their applications are “complete” so as to start the clock ticking.
In addition, the notification of expiry dates and 5 year ban changes will be welcomed by personal licence holders.
It remains to be seen how boards will deal with the fit and proper person test but it is hoped that this will not cause too much controversy as it is used in other licensing regimes. The police will be cheering on the test’s inclusion as it will give them greater scope to present information to licensing boards, giving the boards the ability to consider a greater breadth of information. However, the boards will need to make sure their determination of “fit and proper” is closely linked to the licensing objectives and thus the test is narrower than that of the Licensing (Scotland) Act 1976.
We shall report on the Bill as it makes its way through Parliament.