Either define the term or get rid of it, says lawyer
By Dave Hunter
A LICENSING lawyer has called on the Scottish Government to either provide a clear definition of the term ‘overprovision’ or scrap it altogether.
Overprovision – the issue of whether or not there are too many licensed premises within a geographic area – is currently in the spotlight as licensing boards across Scotland introduce their new licensing policy statements for 2013-2016.
Currently, each board is required to include a section on overprovision in their statement. So far several boards have declared that specific locales within their area have too many licensed premises, with some even declaring their entire area to be overprovided.
But lawyer Robert Skinner of Terra Firma Chambers has argued that the term is poorly defined, which has led to an uneven approach to the issue across the country.
“Under the Licensing Act, both the ’76 Act and the 2005 Act, you should really get your licence unless there are deleterious social consequences that would result in the grant of it,” said Skinner. “There has to be something bad as the result of overprovision – so it would be an excessive number of premises because this would happen or that would happen.
“With respect to overprovision – if the Act said ‘the board shall take into account factors X, Y and Z when considering overprovision’ that would be helpful, and that might inform their policies.”
“But at the moment there doesn’t seem to be a touchstone by which overprovision can be measured.
“Either they (the government) clarify the factors – overprovision because of X or Y – or they just abandon it as being something that doesn’t really mean anything.”
SLTA chief executive Paul Waterson agreed the current system is flawed, but argued the answer is for a centralised, government-controlled approach to overprovision.
“In principle, overprovision is a tool that can be used to protect the licensing objectives, to keep standards high,” he said.
“It doesn’t stop competition, it doesn’t stop new entrants. Of course we need it.”
However, a Scottish Government spokeswoman said the issue would continue to be handled at local level by licensing boards. “The 2005 Act only came into force 4 years ago and the regime is still settling in and in the main, working well,” she said. “However, there are areas that are not as effective as they should be. Therefore, rather than proposing any radical overhauls of the regime, we will look at these areas to find ways to improve the existing system.”
Highland Licensing Board last week made headlines with its approach to overprovision when it announced that, throughout the region, there will be a “presumption against” new off-sales licences where the alcohol display is larger than 40 square metres.
“NHS proved to us that most alcohol is purchased from supermarkets and whilst the same people may also use their local shop or bar or nightclub, these are not the prime source for the masses so therefore they pose less harm to public health,” said board convenor Maxine Smith.