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Statutory guidance: it’s coming back

16 July 18

Licensing briefing: after 11 years, and some recent less formal guidance, the Scottish Government is preparing new statutory guidance for licensing boards. But will it heed practitioners' concerns?

by Tom Johnston

There may be many practitioners, even those who do a reasonable amount of licensing work, who have quietly forgotten all about s 142 of the 2005 Act. The section has three main parts. It (a) allows Scottish Ministers to issue guidance and modify it; (b) requires licensing boards to “have regard” to that guidance; and (c) requires a board which decides not to follow any part of the guidance to give the Scottish Ministers notice of the decision, together with reasons for it.

This section followed recommendations made in the Nicholson report, and mirrored s 182 in the Alcohol Act 2003 in England & Wales. Nicholson also recommended that such guidance be reviewed and updated on a regular basis. The statutory guidance was issued in 2007. There have been no updates despite the large amount of licensing reform in the past 11 years. That contrasts with the position in England, where numerous updates have been made.

The good and the not so good

The 2007 guidance acquired notoriety, largely because of one horrible howler. In brief summary, s 123 of the 2005 Act sets out the circumstances in which a board may grant a licence for a shop on a garage forecourt. The guidance, on the other hand, stated, that if a premises is used as a garage or forms part of premises which are so used, the 2005 Act prohibits the holding of an alcohol licence. The courts have ruled that that is plain wrong, yet it remains in force. Numerous such licences have been granted. These are in breach of the guidelines, yet not a single notification has been made to the Scottish Ministers. There is no sanction for failure to notify. This and the failure to update might suggest a significant lack of standing in the eyes of Government and boards alike.

Recently we have seen more documents being issued in the field of licensing that  contain the word “guidance” in the title. It must be remembered, however, that unless this is specifically made in accordance with s 142 (which requires to be formally approved by the Parliament), it has no legal weight. Some of it is very useful. There is a short paper on the changes relating to disabled facilities. In short, all applicants for a new licence must specify what facilities they have for disabled persons. The guidance may be found at www.gov.scot and I commend it to anyone involved in any new application. 

Sadly, I find less to commend about the guidance on minimum pricing: www.gov.scot. Space does not permit a full exposition; however, I believe the guidance is completely wrong in suggesting that holders of a premises licence may sell alcohol at below the minimum price if it is a sale to trade.

Prepare for more

The main reason for this article, however, is to signal that new statutory guidance is on its way. Clerks will be aware that two sections, on licensing policy and on overprovision, have already been issued in draft form. SOLAR is advising its members, correctly, that such guidance is non-statutory at this stage. The Government response is that it will be useful for boards to have these while reviewing their own policies. 

I am told that the remainder of the guidance will be issued in draft form in the next couple of months, with a view to being finalised by the autumn. My heart sinks at the timing. That must mean that there will be little, if any, time for consultation and correction of any fresh errors. The Government must surely realise that organisations such as the Law Society of Scotland are not trying to influence policy: we are simply trying to avoid manifest error, and to prevent laws which are unworkable in practice.

The guidance will not be dealing with the new transfer provisions, as they are not yet in force. Sources close to the Government tell me that insolvency practitioners are expressing concern. Well of course they are, and if the Government had listened to us we could have told them that. In the words of Pete Seeger, “When will they ever learn?”

Tom Johnston, Ormidale Licensing Services

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