2008: let the fun commence
by Tom JohnstonSome headline developments over the Licensing (Scotland) Act 2005, and the rollout of test purchasing
The Journal, January 2008, page 38
Calling out around Scotland, are you ready for a brand new game? If you can recite the five licensing objectives in your sleep, and have committed to memory the couple of dozen sets of regulations, take your seat at the table. The dealers will be with you shortly. If not, have you left it too late?
The Scottish Government has let its timetable slip dramatically. It is frightening that a clerks’ training session should take place as late as January. This means that in many cases staff simply have not had time to make important decisions on practical matters. Most policies suggest that boards will need to be satisfied that operating plans will comply with the objectives; however, the statutory forms have no place to address this. One view suggests that those boards who demand more written information may face judicial review. My own view is that boards are entitled to examine operating plans critically to test compliance. I suspect licensees would prefer to provide more information if it means a rubber stamp approval, as opposed to the expense of a hearing.
Coping with children
At the time of writing, most board policies have been published. The vast majority are sensible; some hint at future dark mischief; and some have sections which call out for emergency lobotomy. Nowhere is this more so than in sections dealing with children (defined in the Act as those under 16). It has been forgotten by most that the 1976 Act prohibited only the presence of children in bars. Now whole premises will be regulated. I can see the point of protection from heat sources or of segregation of children and flying darts. But a regulation that the children have to be in sight of the accompanying adult at all times, even when in the toilet? That would have caused me problems when taking my three teenage daughters to lunch. Edinburgh’s policy suggests that all staircases must have stair gates. Is the elegant sweep of the Caledonian Hotel staircase to be defiled for ever? But the biscuit must go to whoever suggested that if you allow children in for chicken nuggets and chips, your staff should have to go through Disclosure Scotland checks. In an industry with the highest staff turnover, a three week appointment procedure is nothing other than lunacy.
Put to the test
2008 will also see the impact of the national rollout of test purchasing. Following their successful appeals, BP and Alldays had their cases remitted to the new Fife board. Commendably the board declined to follow the misguided action of its predecessors, and no suspensions were imposed. Despite the Fife police shortcomings, I understand other forces intend to promote the discredited “two strikes and you’re out” policy. I have written of this in earlier articles. Suffice it to say the policy is simplistic and must be examined carefully.
Fife police deliberately misled boards in a number of ways, including arguing for an incorrect legal test. A favourite tactic is to treat a report to the PF as though it was a conviction. I recently had the PF say in terms that there was no justification whatsoever for the report, upon which an objection had been based, having been made to him at all. I have quite a thick file of cases in Fife where inaccurate information has been given to boards. It contains many more than “two strikes”. If vicarious responsibility applied in these circumstances, it is interesting to speculate what charges might be levelled at the people at the top.
Tom Johnston, Young & Partners LLP, Dunfermline
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