HOW do you solve a problem like overprovision?
At last September’s national conference for licensing boards, justice secretary Kenny MacAskill said that the forthcoming Licensing Bill would make overprovision “easier to define and assess”.
History repeats itself because, almost exactly ten years ago, Cathy Jamieson, the minister then in charge of the Licensing (Scotland) Bill, had a similar plan.
With off-sales firmly in the firing line, she promised that we could look forward to a “clear definition” which would help licensing boards to decide whether a new licence should be granted.
But, in fact, as a result of a landmark House of Lords case decided in 1996, the definition of overprovision as set out in the 1976 Act was pretty straightforward.
A licensing board was only required to count up the number of licences of the proposed type in a particular locality and then, using the magic dust of “local knowledge”,
decide whether or not one more would tip the scales.
Boards will continue to handle overprovision at local level.A refusal decision required only the most basic – invariably uninformative – explanation; and, absent a major slip up in the clerk’s statement of reasons, it would be ‘bomb-proof’ on appeal. In fact, some cynics suggested that boards used the overprovision ground to reject an unwelcome application when invoking another reason would be much harder to justify.
In my view, this created a system in which the public and the trade could have no confidence.
If there were ten licences in a locality, exactly why would 11 be too many? It was, as the Nicholson Committee reported, a “largely arithmetical” exercise which was “imprecise and unworkable” in any meaningful sense. As one of my colleagues put it, no distinction required to be drawn between “a brasserie and a boozer” and a concert hall fell into the same category as a nightclub.
There were also concerns that the concentration on sheer numbers took no account of potential capacities. Thus, a ‘superpub’ in a small area might have greater implications for public nuisance and disorder than a number of small establishments – although it would only account for a single licence.
The 2005 Act takes a more focused approach.
Capacities require to be taken into account.
The licensing boards can – but need not – look at the “description” of premises. They’re required to carry out an overprovision assessment as part of the triennial licensing policy statement, preceded by a thorough consultation exercise which takes into account the views of stakeholders.
Where an area is found to be overprovided, that isn’t the end of the matter, because an applicant for a new licence can demonstrate that the proposal should be treated as an exception to the policy – but that will often be an uphill struggle.
Moreover, even where proposed premises are not affected by the policy, an application is still capable of being refused; and although I expect more court decisions to be handed down, indications are that boards will continue to have considerable latitude in their approach to new licence applications.
In fact, apart from overprovision, there are eight refusal reasons, if you count each of the licensing objectives.
However, for reasons which are far from clear to me, it seems that the Scottish Government considers that – as in other areas of the Act – it’s time for another bite at the cherry.
It’s very difficult to imagine how boards might be further empowered.
I can offer two predictions.
It’s likely the Bill will make it clear that a licensing board can declare the whole of its area overprovided (doubt has been expressed as to whether it’s legally competent possible to take that step as the law stands).
Although the SLTA has called for a “centralised, government-controlled” approach to overprovision, it’s certain that the issue will continue to be handled by licensing boards at local level.
Otherwise, we shall simply have to wait and see what ministers have in mind.
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