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15 July 19

Licensing briefing: relief is at hand for those whose applications for personal licence renewal, submitted by 31 May, are not processed in time; and is the proposed new s 142 guidance an improvement?

by Tom Johnston

By now, the curtain has fallen: the moment has passed. I refer, of course, to the 31 May deadline for an application for renewal of a personal licence which expires on 31 August 2019. Statistics suggest that less than 50% of licence holders have applied. 

In many cases there will be good reason for this. Some will have left the licensed trade altogether. It must be remembered that in the run-up to the 2005 Act coming into force, some bodies, including various police forces, were expressing the view that alcohol could not be sold unless a personal licence holder was on the premises. In these difficult times for the trade, one can easily imagine employers balking at the cost of training courses and renewal fees if it transpired these were not absolutely necessary. But for those who have just ignored the warnings, to quote the song, there may be trouble ahead.

For those in time, a reprieve

It is rare in this column to find praise for the Scottish Government on licensing matters, but credit where it is due. In my last article, I expressed the widely shared concern that even those who had applied timeously for renewal of their personal licences might lose them, simply through licensing boards being unable to process all applications in time. Ministers have made an order which will avoid these problems (this time). It provides that a personal licence expiring on 31 August 2019, for which renewal has been lodged by 31 May, will remain in force until the earlier of (a) the expiry of 28 days beginning with the day after the application is determined, or (b) 29 February 2020. It should be noted that this does not extend the 31 May deadline, nor does it apply to personal licences expiring after 31 August 2019.

Draft guidance: remaining concerns

At the same time, consultation has been continuing on the new draft guidance to be issued under s 142. The previous guidance lost all credibility because of the howling errors it contained regarding s 123, relating to licensing of shops on garage forecourts. No attempt was made to restore that credibility by regular modification of the guidance, as was envisaged in s 142(2) (and which happened regularly in England). Yet it must be remembered that licensing boards are obliged to have regard to any such guidance. In the event that a board decides not to follow it, that board is obliged to give ministers a notice of its decision and a statement of the reasons for it. Dozens of shops on garage forecourts have been issued with premises licences, yet no board has ever made a notification under s 142.

Many of the representations made to SG on the draft have been more pitches for reform than matters of direct relevance. The usual suspects have been bleating about overprovision, which is a bit daft, given that boards have just put in place their policies for the next five years. The fee payable for occasional licences (still a ludicrously low £10) is being reviewed. That has brought the whole issue of occasionals to the fore once again. Many in the licensed trade believe that the system is being abused, allowing for very significant levels of unfair competition.

Having gone through the draft in some detail, I am happy to report that there is not too much to be concerned about. The text on s 123 has been completely rewritten, and makes full reference to the relevant case law. I was, however, dismayed to see that the author still seems to believe that there is a duty to trade. Benevolently, it is suggested that someone who fails to open for every single hour specified in the operating plan should face no sanction for temporary departures from the licensed hours caused by unforeseen circumstances such as illness, bereavement or inclement weather conditions

In his commentary on the 2005 Act (Greens Annotated Acts), Jack Cummins analyses the requirement contained in sched 3, para 2 that alcohol is to be sold only in accordance with the operating plan. He points out that if this is interpreted in a way which is mandatory, as opposed to permissive, ridiculous consequences could follow. In the early days there were some who were prepared to argue the case. In 2019 there is not a single licensing board, LSO or practitioner who believes there is a duty to trade. If the guidance is to have the credibility which Parliament intended, it should get rid of this blatant error.

Tom Johnston, Ormidale Licensing Services

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