Fit and proper test could be operated with ‘worrying elasticity’
By Jack Cummins
WE might have been expecting some sort of tidy up exercise: in the last four years or so there have been two major rounds of licensing law reform, but perhaps some further fine tuning was needed.
The Scottish Government’s press release coinciding with the publication of the Air Weapons and Licensing (Scotland) Bill certainly gave that impression.
The release ran to 751 words.
Less than 50 were devoted to alcohol licensing: “[the] creation of new offences of giving, or making available, alcohol to a child or young person for consumption in a public place”; and “[The] Bill also contains provisions to tackle other areas of licensing, including … more robust alcohol provisions for pubs, clubs and retailers”.
But not only does this Bill ignore the frustrations of lawyers struggling to make parts of the Licensing (Scotland) Act 2005 workable (the transfer procedures are just not fit for the purpose), it also contains provisions that go far beyond a “tidy up” and cause me considerable concern.
I’ll be commenting on other aspects of the Bill as it progresses through Parliament. In this column, space only allows me to examine two key elements: the “fit and proper person” test comeback and changes to “overprovision”.
It’s impossible to argue with the objective of keeping unsuitable individuals removed from the management of licensed premises; and there’s no doubt that the “fit and proper” test, as enshrined in the Licensing (Scotland) Act 1976, worked pretty well.
But the Bill re-invents the test in a manner that ought to set alarm bells ringing because there’s every reason to believe the test will be operated with worrying elasticity.
In certain cases a board might in future be invited to consider “information” that is considered to have a bearing on “fitness”. That could well be seen by the police as an opportunity to push the boundaries, particularly since we’ve already seen attempts to introduce prejudicial “intelligence” that the police have not been prepared to disclose.
My concerns don’t end there.
The Bill also proposes to allow the consideration of convictions which are deemed as “spent” under the Rehabilitation of Offenders Act and which could be so old – or so irrelevant – as to paint a wholly unfair picture of an applicant’s character.
Then there’s a really draconian provision.
The Bill reinvents the fit and proper test in a way that ought to set alarm bells ringing.
Under the 1976 Act, a board might suspend a licence on the ground that the holder had ceased to be “fit and proper” – but when the suspension ended so did the “unfitness”.
The new Bill addresses that paradox with a sledgehammer: where the holder of a premises licence or a personal licence is found not to be a “fit and proper person”, then the board must revoke the licence.
Speaking at a conference last September, Kenny MacAskill said the Bill would make overprovision “easier to define”.
We now learn that would be achieved in three ways.
Firstly, boards would be entitled to decide that their whole areas are a “locality” for overprovision purposes, although I have never thought they were prevented from doing so at the moment. Secondly, boards would be entitled to take licensed hours into consideration. Let’s hope that boards have the common sense to appreciate that many licensed premises have obtained largely unused hours for the sake of flexibility (properly disregarding the view that there’s a “duty to trade”) so that any decision based on authorised hours could have a seriously distorting impact.
Thirdly, there’s a puzzling change to boards’ overprovision assessments.
Currently, a board “must have regard to the number and capacity of licensed premises in the locality”. Proposed new wording provides that a board “may have regard to (among other things) the number, capacity and licensed hours of licensed premises in the locality”.
Why change “must” to “may”? And what “other things” might be relevant?
No doubt we’ll get a better view of what’s behind this as the Bill goes through the committee stages.
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