Clarity needed on fit and proper test

Boards shouldn’t base licensing decisions on vague intelligence

• Aspects of the Air Weapons and Alcohol Bill are a cause for concern.

In my column a couple of months ago I looked at two proposals in the Air Weapons and Alcohol Bill that, in my view, pose significant threats to the trade: the re-invented ‘fit and proper person’ test and the scrapping of the protections afforded by the Rehabilitation of Offenders Act 1974.

I’ve now had an opportunity to look at the Scottish Government’s ‘policy memorandum’ accompanying the Bill – and alarm bells are ringing even more loudly.
The memorandum suggests that the new-style ‘fit and proper’ test will give licensing boards “the ability to consider a greater breadth of relevant information”.
That would involve allowing consideration of “a wider range of information including police intelligence and any associations with those deemed to be unsuitable”.
Here’s a disturbing reminder of a proposal put forward last September at the national licensing board conference by the chief constable of Police Scotland – condemned not only by licensing lawyers, but also councillor Malcolm Cunning, the then convener of the Glasgow licensing board.

I’ve looked at the memorandum accompanying the Bill and alarm bells are ringing.

Sir Stephen House called for an “intelligence commissioner” who could assist in getting sensitive information about individuals into the decision-making process.
My understanding is that the commissioner would vet the “intelligence”, but it would not be put before applicants, licence holders or the licensing board.
Councillor Cunning told The Herald newspaper that the proposal breached human rights and “any sense of natural justice”. While there might be a small number of “bad people” in the trade they had “as much right to open judicial systems as anyone else”.
Add to the mix the potential for licensing boards to look at time-expired convictions.
As matters stand, if a conviction is ‘spent’ for the purposes of the Rehabilitation of Offenders Act 1974 it can’t be tabled by the police.
The Scottish Government wants to do away with that protection – a move that’s come out of the blue, with no mention of the proposal in the wide-ranging consultation document preceding the publication of the Bill.
And there’s a ‘red flag’ paragraph in the policy memorandum. It reads: “The 2005 Act provides that spent convictions cannot be considered in any part of the licensing board’s deliberations, such as considering whether to grant personal or premises licences, or in hearings once the licence has been granted”.
So, “spent convictions” could be dredged up at a licence review – although they were inadmissible when the licence was issued.
Let’s put all of this together.
If the Scottish Government gets its way, boards could make a ‘fit and proper person’ assessment of an applicant or licence holder by taking into account not simply ‘unspent convictions’ but also those which, with the passage of time, will have lost their relevance and, most worryingly of all, allegations of criminality shrouded in secrecy that have never been tested by a court. It’s simply unacceptable.
There could be a lively debate in prospect.
The parliament’s Local Government and Regeneration Committee (LGRC) – in charge of the “Stage 1 scrutiny” – has identified parts of the Bill which require further explanation from the Scottish Government.
One of its 33 questions on the alcohol provisions looks for clarification on the thinking in relation to ‘police intelligence’ which, according to the committee, “seems to suggest that police intelligence and associations [with unsuitable persons] are now considered as seriously as previous convictions”.
It wants to know how the Scottish Government’s approach sits with the European Convention on Human Rights and “what recourse applicants have to challenge unsubstantiated ‘intelligence’”.
The committee is also probing the Bill’s approach to “spent” convictions.
I’m reassured to discover that it’s not just licensing lawyers who want answers.

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