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Are you up to the Act?

16 July 07

Every solicitor with licensed trade clients needs to decide whether to tackle the complexities of the new regime

by Tom Johnston

Most of these articles have been aimed at the specialist practitioner. However, implementation of the Licensing (Scotland) Act 2005 is but a few months away. If you have any licensed trade clients on your books, this article is for you.

The first licences under the new regime will be issued in an 18 month period from March 2008. In England the lead-in period was only six months. It was not uncommon to find licensees still waiting for paperwork nine months after the licences had been issued. While the Scottish regime is much more sensible, there is no doubt there will be huge pressure on the system as a whole, especially on clerks.

What type of licence will clients need? The answer is deceptively simple. The seven current licences will cease to exist. These will be replaced by a single category of licence known as a premises licence. This will also affect registered clubs, which will no longer be registered by the sheriff under Part VII of the 1976 Act.

Premises licence: devilish detail

It may sound simpler having only one type of licence, but the amount of information required will be enormous. Detailed plans of the premises and their capacity will be required. In addition to this, a detailed operating plan must be prepared. There must be a designated premises manager who, in turn, must have a personal licence. A premises licence will last indefinitely, but will require to be varied if the premises are altered, or if the activities carried on are changed, or if there is a change of premises manager.

Personal licence: question of authority

A personal licence may be applied for by a person aged 18 or over. He or she must possess a licensing qualification. Approved licensing qualifications will be set out. These will certainly include ServeWise Plus or BII qualifications. A personal licence will authorise the holder to “supervise or authorise” the sale of alcohol. It will normally be valid for 10 years. Like a driving licence, it may be endorsed in the event of breaches of the law.

Schedule 3 to the 2005 Act states that all sales of alcohol must be authorised, whether generally or specifically, by the premises manager or another person who holds a personal licence. The question is whether you require to be on the premises to give general authorisation. Can it be intended that if the personal licence holder in charge nips out to the bank, sales of alcohol must cease? If that is correct, then licensees will need to have numerous personal licence holders to provide cover for holidays, sickness, family emergencies and the like. It is believed that the Association of Chief Police Officers in Scotland takes the view that a personal licence holder must be in the premises at any time alcohol is sold.

Operating plan: criminal sanctions

This will be a lengthy document. The licensee will require to specify, inter alia:
  • the activities to be carried on in the premises;
  • the times when alcohol is to be sold (permitted hours as we know them will cease to exist);
  • whether the premises are providing on-sale, or off-sale facilities, or both;
  • whether children (under 16) or young persons (16-17) are to be allowed into the premises and, if so, at what times and to which part of the premises.
It will be a criminal offence to trade otherwise than in accordance with the terms of the operating plan. There was a suggestion in the parliamentary debates that the hours specified in the operating plan will be mandatory, i.e. licensees will require to open during these hours. I await with interest the first prosecution of a licensee for closing his premises early.

Time and cost

Final regulations still have to be published but it would be wise to start planning now. You should consider whether you want to spend the time and effort getting up to speed with the complexities or whether it is time to call in a specialist. The costs will be significant for small operators. Recent consultation papers suggest that the fees to be paid will be based not on a flat fee but on rateable value. In other words, there will be yet another tax placed on an already burdened and over-regulated trade. While there will be much work for those of us involved in the sector, it will not be much fun for anyone, especially clerks and clients. There may be troubles ahead…
Tom Johnston, Young & Partners LLP, Dunfermline
[See also the article by Janet Hood of BII Scotland on p 50]