Responsibility levy is a ‘nonsense’ tax

Long-mooted power could be the last straw for some operators

Jack Cummins is one of Scotland’s leading licensing lawyers. Every month he writes on licensing law and answers readers’ questions in SLTN.
Jack Cummins is one of Scotland’s leading licensing lawyers. Every month he writes on licensing law and answers readers’ questions in SLTN.

The word “alcohol” appeared only once in the SNP’s pre-election manifesto (in the context of justice system measures to address female offending).
So, you might well believe that over the life of the new parliament there are no unwelcome surprises in store for the trade.
But as I’ve explained before on this page, there are a number of ‘sleeper’ provisions in licensing law – changes to the Licensing (Scotland) Act 2005 that have been enacted but not yet brought into force.
One of those is the creation of the so-called ‘social responsibility levy’, which occupies over three pages of the Alcohol etc (Scotland) Act 2010 – and there are already signs that might come to life in the foreseeable future.
It was kicked into the long grass in 2012 because of the prevailing economic climate; but in the run-up to last week’s election Shona Robison, health minister in the last Holyrood administration, gave a signal to the Sunday Post that it might well be revived.
The levy’s origins go back a very long way. In 2005 the Association of Chief Police Officers (Scotland) called for a ‘polluter pays’ scheme which would involve “very large and busy” urban premises making a financial contribution to the deployment of police resources – but paid-for policing was ditched during the progress of the Licensing (Scotland) Bill amid concerns that it would amount to an extra tax that would be impossible to implement.
A couple of years later, then justice secretary Kenny MacAskill gave the proposal a new lease of life.
He told the national licensing boards’ conference: “It’s not just in our towns and city centres where alcohol misuse is a problem and a ‘polluter pays’ approach could be extended beyond late-opening premises in big towns and cities.”
Those who have been given the right to sell alcohol should bear the responsibility for the social costs – and, predictably, off-sales landed in the firing line.

The term “polluter pays” isn’t just downright offensive. It’s also fundamentally illogical.

There is a whole raft of powers available to deal with ‘polluting’ licensed businesses.
As the Scottish Grocers’ Federation told SLTN when the idea was suggested, many independent retailers were upset by the suggestion that they contributed to antisocial behaviour; and rogue retailers who flout the law ought to be dealt with through existing enforcement mechanisms.
So, when the legislation was framed, it received an Orwellian makeover, becoming the “social responsibility levy” – yet the financial memorandum accompanying the launch of the draft legislation used the expression “polluter pays” and postulated the possibility that “only licensed premises breaching the Licensing (Scotland) Act 2005 would be subject to the levy”.
In a now very familiar way, the detail in the Alcohol Act is scant.
It does little more than establish the principle of a levy which can be imposed on the holders of alcohol, street trading, public entertainment and late-hours catering licences.

• Shona Robison indicated recently that the levy could be revived.
• Shona Robison indicated recently that the levy could be revived.

Funds raised would be deployed to meet or contribute to expenditure “in furtherance of the licensing objectives” and which the local authority considers “necessary or desirable” having regard to the “adverse impact” on those objectives attributable to the licence holders.
But all the important fine detail is to be set out in subordinate legislation following a mandatory consultation involving health boards, the police, licensing boards, local authorities and affected businesses. For example, provisions for exemption from charges, remission or repayment of charges and discounts based on compliance with “standards of practice” in relation to social responsibility.
It’s no wonder some MSPs were rightly concerned that they had no clear view of what they were expected to approve.
Any suggestion that the implementation of the levy would be a step towards reducing alcohol misuse is nonsense.
Its use as a mechanism to deal with businesses defaulting on their obligations under licensing legislation would be totally illogical.
This would be a tax, plain and simple, and for many struggling operators it could be the last straw.

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