It remains to be seen if issues around overprovision, clubs and transfers are addressed, writes licensing lawyer Stephen McGowan
THE Local Government and Regeneration Committee recently held a session to consider the Air Weapons and Licensing (Scotland) Bill, specifically relating to the proposed changes to alcohol licensing.
Along with Paul Waterson from the SLTA and John Lee from the Scottish Grocers’ Federation, I was called as a witness.
The session presented a good opportunity to discuss and voice issues facing the licensed trade.
It was also refreshing that I was able to raise technical issues, which do not attract the same attention as big policy issues like minimum pricing, yet are very important to licensing practitioners and the trade.
Overall, it was encouraging to see that the MSPs were engaged and making an effort to fully understand the issues discussed.
The first question of the session was about overprovision, with discussion centred on whether it does or doesn’t work.
This appeared to be one of the key areas of concern for the committee, who felt that it was a controversial topic.
The Bill seeks to allow licensing boards to set their entire area as overprovided, as well as allowing licensed hours to be taken into account.
My view is that a board can already select its entire area as an overprovision zone.
On the issue of hours I suggested that the committee consider including wording in the Act to clarify ‘duty to trade’.
We also discussed the role of considering employment prospects in granting a new licence.
I thought it might be useful to direct the committee to the West Dunbartonshire licensing board policy.
This is one of the strongest overprovision policies in Scotland, yet specifically deals with the issue of employment.
The West Dunbartonshire board took evidential studies into account, finding that employment was a considerably positive factor when considering public health. This could be linked to the relevant licensing objective and therefore the positive consideration of job creation could be taken into account.
Two committee members seemed concerned about the regulation of club premises.
They were particularly interested in the ‘commercial creep’ of some club premises which now allow members of the public to access their premises.
From experience I know that certain licensing boards have had issues with the regulation of club premises. I raised this point and we also discussed the use of occasional licences to allow the public into club premises.
We went on to discuss that there are many examples of clubs applying to vary their licences permanently to become public access premises.
Interestingly, there is nothing in the Bill that deals with clubs, so perhaps one to watch.
Representing licensing practitioners, I had the opportunity to raise a number of technical concerns including the provisions for transfers of licences, which creates difficulties for applicants and boards.
I expressed my view that a return to the old site only provisional licence will allow developers to have the certainty of a licence grant much earlier in the process, thus allowing greater confidence for securing funding for the development.
The committee also listened to my points on the use of police intelligence and spent convictions. This was particularly in relation to the re-introduction of the ‘fit and proper’ test.
I outlined that it would be a breach of the right to a fair trial to make decisions based on unknown and unseen evidence.
At the end of the session I also raised the issue of the recent personal licence refresher confusion and asked for emergency legislation to assist those whose licences have been revoked.
The committee fairly pointed out that emergency legislation is in the gift of the Scottish Government and not this particular committee and it is doubtful there will be any movement on that.
It is perhaps telling what topics the MSPs wanted to address in this session and only time will tell if the committee will take the points raised on board and use the Bill to address them.
• Stephen McGowan is a partner and head of licensing (Scotland) at TLT solicitors.
