Back to top
Article

Which way will the wind blow?

21 January 13

Licensing lawyers should welcome the recent Scottish Government consultation paper, "Further Options for Alcohol Licensing"

by Tom Johnston

I suspect most licensing lawyers have been critical of the current administration on more than one occasion. We must therefore welcome the production of the recently published consultation paper entitled Further Options for Alcohol Licensing (www.scotland.gov.uk/Publications/2012/12/8130).

In his foreword, the Justice Secretary is at pains to stress that the Government has listened to the concerns about difficulties encountered by stakeholders, or where the legislation is unclear or ineffective.

While the paper sets out 21 “proposals”, most of these do no more than highlight areas of general concern.

Mr MacAskill promises that the views “are not fixed and we are committed to an open and productive discussion on these proposals”.

Responses are sought via a 52-question form. The questions are open and not loaded.

Each one has a comments section, to allow for extended answers.

The final question is simply “Do you have any further suggestions for reform?”

The whole tone of the paper is thoughtful. The draftsman is clearly aware of some of the major issues (though it is also clear that the health lobby and the police have been more vocal than the lawyers, both in the public and private sectors). For example, there are serious suggestions that licensing boards should require to engage in active promotion of the licensing objectives, and to demonstrate that they have done so. That involves people, and people cost money. Who will pay? How will society benefit from such vague and woolly data?

The spectre of unilateral variation of licensing conditions once again rears its head. This was the so called “Stalin clause” proposed in, and thankfully deleted from, the bill which became the 2010 Act. This must be opposed. Views are sought on a clearer interpretation of Brightcrew, the most misquoted piece of case law in years.

Our opinion is sought on the licensing of garage forecourts. Refreshingly, the paper states: “with most people already driving to do their shopping, it could be argued that the need to stop garages from selling alcohol has been lessened”. Quite. Section 123 was an act of folly. While it may be reasonable to prohibit bars in motorway service stations, there is absolutely no evidence from the thousands of licensed garage stores to support the ludicrous notion that these encourage drink driving.

We are given our chance to comment on licensing board practice and procedures. Who could resist question 32 – “Can you provide examples of particularly good or bad practice at board hearings?” Ladies and gentlemen, let us not miss the offenders and hit the wall – but remember that you may be identified under FOI. Slightly more seriously, let us call for some checks and balances on the minority of boards and board members who fall far below the standards which Sheriff Nicholson set in his much lauded report.

Even within our profession there will not be unanimity. Should the “fit and proper person” test be brought back? If so, should it be defined? What criteria should be irrelevant?

This is a wide ranging consultation. It highlights many areas of weakness, but by no means all. This is the time to call for a return to the “site only” provisional grant, and for the introduction of a provisional variation. Let it be made clear that a variation may be granted in part, not just in whole. The local variations in licensing fees must be abolished, and fees as a whole must be reduced. The licensed trade has been ripped off for far too long, subsidising the overtime payments of LSOs attending meetings for no obvious reason. How much do the local licensing fora cost? Are they worth the money?

In short, we have an opportunity to be heard. If we do not take this chance we have no right to sit on the sidelines and snipe. The deadline for responses is 21 March 2013. I would love to be able to reflect your views in my next article. Please send me your thoughts – tgj@businesslaw.co.uk

Tom Johnston, managing partner, Young & Partners LLP, Glasgow and Dunfermline

Have your say