The Immigration Bill 2015-16 contains a number of proposals that will affect liquor licensing laws in England and Wales.
With the potential for elements of this Bill to be transported into Scottish licensing laws, it is also worth considering what this could mean for Scotland. Indeed legislators have already indicated that they wish to achieve the same in Scotland.
This does, of course, throw up some interesting devolution issues.
While immigration law is a reserved matter for Westminster, licensing is a devolved matter and falls very much within the control of the Scottish Parliament.
But, the technicalities around legislating for devolved matters and the appropriate consent requirements are perhaps best left for another article.
Suffice to say, we may see the changes come into Scottish licensing ‘by the back door’.
What changes are on the horizon?
The Bill is currently working its way through the legislative process for England and Wales and it is useful to examine the licensing proposals in this Bill to understand what might be on the horizon for the Scottish licensed trade.
The proposals are that:
• The Secretary of State is made a “responsible authority” under the Act (a technical amendment).
• An applicant for a premises licence or personal licence must be entitled to work in the UK.
• If a premises licence holder ceases to be entitled to work in the UK then transfer provisions similar to those where the holder becomes insolvent should apply.
• Immigration offences are added to the list of relevant offences.
• Rights of entry are conferred on immigration officers.
• There is a closure order power where officers find illegal working and the premises licence holder has been previously convicted of an offence.
In my opinion the only way to transplant these proposals, or a variation of them, into Scotland would be to amend the 2005 Act.
But the constitutional lawyers will have to debate the mechanics of that.
If, by hook or by crook, the changes are transplanted into the Licensing (Scotland) Act 2005, it will perhaps breathe new life into the old Brightcrew arguments [Brightcrew Ltd v Glasgow Licensing Board [2011] SCIH 46].
This case arose from a Glasgow lap dancing club whose liquor licence application was refused on the grounds that the premises was in breach of the board’s policy on adult entertainment. The policy sought to regulate matters beyond alcohol, such as levels of nudity and working conditions for the dancers.
In Brightcrew, the court established that the licensing objectives flow from the sale of alcohol, rather than being of general public interest. As a result, licensing reviews based on illegal workers being detected in Scottish licensed premises had very mixed outcomes.
In many cases, licensing boards decided that the status of workers was not an alcohol licensing matter and, following the Brightcrew precedent, some boards took no action.
If the Immigration Bill proposals are brought into Scotland, we will no doubt see the authorities call for licensing reviews with greater gusto and perhaps greater success where illegal working is detected.
Immigration checks will become part of the licensing application process.
If the Bill’s proposals are not replicated in Scotland, the worst case scenario is that serious and organised crime groups view it as being easier to place illegal workers in the licensed trade north of the border, rather than in England and Wales.
• Niall Hassard is licensing legal director at TLT LLP.
