Trade braced for further reform

Increased regulation and bureaucracy putting pressure on operators, lawyers say

SCOTLAND’S licensed trade is facing its third piece of legislation since the 2005 Act came into force in September 2009.

And while the actual content of the new Licensing Bill is not yet known (the Bill had not been published as SLTN went to press; the Scottish Government has stated it will be published before the end of the parliamentary year), a number of proposals were put forward at the consultation stage; the return of something similar to the ‘fit and proper’ person test, a fresh look at the way in which overprovision is assessed, and greater powers for police and licensing boards have all been mooted.
It remains to be seen what will make the cut.
But Scotland’s licensing lawyers want what will be the fourth package of licensing reform in as many years (the new Bill follows the 2005 Licensing Act, the Criminal Justice and Licensing Act 2010 and the Alcohol etc Act 2010) to ‘fix’ aspects of the legislation which they say present problems for operators.
“It is time to deal with the practical issues, which are uncontroversial, such as a return to the ‘site only’ provisional licence (avoiding the spending of thousands on plans for speculative ventures), and the introduction of a provisional variation,” said Tom Johnston of Young & Partners.
“At present, if you are considering alterations, you must vary your licence first. What if you decide not to carry them out, or the estimates are too high?
“You end up trading illegally.
“Simple things that the profession has been arguing for from day one.”
Archie Maciver of Brunton Miller agreed that there are issues with the 2005 Act which require to be addressed.
“It’s a constant source of wonderment to me why ministers constantly seek to draft more legislation prior to resolving the problems which have been occasioned by the first attempt at the 2005 Act,” said Maciver.
“Since then, we have had numerous statutory instruments amending legislation, resulting in licensing legislation being contained in numerous documents rendering it virtually impossible for practitioners, never mind operators, to keep abreast of where matters stand.”
And Maciver fears yet more legislation could prove too much for some in the trade.
The amount of paperwork involved in a licence application has multiplied under the 2005 Act, he said, and there are a greater number of regulations for operators to observe.
“It is becoming bordering on the impossible for the small operator to keep up with bureaucracy,” added Maciver.
“It’s fine if you are a major PLC with huge departments dealing with different aspects of the running of the business.
“However, publicans who are pulling pints, washing the floor, serving customers and, at the same time, dealing with all the paperwork are now drowning under a sea of bureaucracy.
“I have no doubt that not only will this lead to new potential operators deciding not to become involved in the licensed trade, but it will lead to many deciding simply to turn the key in the door and walk away from their existing premises.”
His comments were echoed by Stephen McGowan of TLT, who said increased red tape had already proved too much for some operators.
“If one considers the impact of temperance ‘veto’ laws imposed in the early 20th century, these simply forced out respectable operators, cut off investment and growth and, in turn, led to ramshackle premises with disinterested staff,” he said.
“That is a warning from history our government should heed well.”
Jack Cummins of Hill Brown Licensing said: “I reckon that the larger operators will grit their teeth and get on with it, but for the smaller players more regulation might just be the last straw, particularly if it brings more costs.”
Aside from the new Licensing Bill – and the implications it could have for the trade – operators are being reminded to ensure they have taken appropriate steps to prepare their business ahead of this summer’s major events, like the Commonwealth Games and Ryder Cup.
Andrew Hunter of Harper Macleod advised licensees seeking to make any changes to their premises’ operating plan to act sooner rather than later.
“If you want to show the Games on TV, you need to ensure that your operating plan allows this,” he said.
“A variation is required and could take six months or longer to process, even if there is no objection to the change.
“Extended hours can be applied for much nearer the time, but if the board wants to hear you on your application, the process will stall.
“Decide on your dates, your desired hours and apply now.”
Elaine Brailsford at Tods Murray said: “If you are within the Glasgow board area and wish further extended hours beyond this automatic one hour extension, you will be required to apply for them. If you want the approved extension then you should check your licence and if it does not permit seasonal variations you may need to make an application for further extended hours.
“With other boards you may have to make an application anyway. We would also advise that you wait until full guidance has been published by the boards in respect of the automatic one hour extension to ensure that your premises are eligible in this regard.”