Get ready for more licensing change

Scotland’s licensing laws are set to be modified again. The Air Weapons and Licensing (Scotland) Bill, introduced to the Scottish Parliament recently, makes a series of proposals, including a number of direct importance to store operators. We asked licensing lawyers for their thoughts. In this article Andrew Hunter, partner with Harper MacLeod and a Law Society of Scotland accredited specialist in liquor licensing law, highlights some of the most important parts of the bill.

Andrew Hunter,Harper Macleod LLP, Law Society of Scotland accredited specialist in liquor licensing law.

Change to objective
The bill proposes that the licensing objective of “protecting children from harm” is amended to read “children and young persons”.

Fit and proper test
Of great significance is the return of the “fit and proper person test” as the ground of refusal for various types of applications. Going forward, applications for grant of new premises licence or provisional premises licence, transfers of premises licence and for grant of a personal licence may be refused by “having regard to the licensing objectives, that the applicant is not a fit and proper person”.
The fitness test returns at the behest of Association of Chief Police Officers in Scotland (ACPOS) lobbying. The wording of the test is slightly different to that under the old Licensing (Scotland) Act 1976 and directly refers to the licensing objectives (the cornerstone of the 2005 Act).
In my view, the risk with the fit and proper person test is that it can be seen as a catch-all provision for objectors, particularly police objections. I fear that objections containing undisclosed “intelligence” information will return, as the kitchen sink is thrown at the applicant who has no convictions for said alleged indiscretions.
The question of fitness is also to be ground for review of both a premises licence and personal licence. Worryingly, the applicant for review may make reference to any “information on which the applicant’s view” is relevant. If the width of this provision were not of enough concern, it is proposed that if a board upholds the grounds of review on a finding of unfitness, they must revoke the premises licence or personal licence.
There is, for example, no provision available for a suspension of licence whilst it is transferred to another holder. The draconian nature of this provision is compounded by the fact that section 40 of the current act (in relation to premises licence), which allows the board to reverse its own decision at review on a change of circumstances, is not amended. Therefore a decision by the board to revoke in those circumstances cannot be reversed by the board if, for example, a licence under appeal was transferred to a new holder.

Nine months to determine applications and deemed grants
The bill proposes one very welcome amendment. Many of you may have been frustrated at the time taken for applications in certain board areas to be processed. The bill proposes a nine-month deemed grant provision.
Therefore a failure by the board to determine an application within nine months will result in a deemed grant, subject to statutory conditions. This should speed up the processing of applications in some areas, particularly if an application includes a policy-inconsistent part that is not desired to be deemed.

Agency purchases and underage purchases
The bill creates new offences regarding the purchase of alcohol. First, an adult who attempts to buy alcohol on behalf of or for a child or young person commits an offence. This will deal directly with so-called “agency purchases”.
Second, an offence of “giving alcohol” to a child or a young person is created, but subject to the exception that the alcohol is for consumption for purposes of religious worship or is not to be consumed in a public place. No offence is committed where certain types of alcohol are supplied to a young person (aged 16 or 17) for consumption with a meal on licensed premises.

Other proposed changes
It is proposed that Licensing Policy Statement periods are revised from the current three-year period to run in line with local government election periods. That will have the effect of making policy periods run for five years.
In assessing overprovision, it is proposed that the board may regard its whole jurisdictional area as a “locality” and thereby declare the whole area overprovided.
That will undoubtedly allow boards to further target the reduction of, or at least the stabilising of, numbers of off-sales premises in their area. In addition, when assessing overprovision, it may also have regard to “licensed hours” as well as the number of licences and their capacity.