Licensing landscape is as clear as mud

Lawyers lambast legislation ahead of May’s local elections

SEARCHING for a needle in a haystack is hard enough when there’s only one bale to investigate, but when it comes to licensing in Scotland things get far more complex.
A legacy of legislation on top of legislation has left on-trade operators with a labyrinth of rules and regulations to navigate on the road to compliance.

• Licensing labyrinth: piles of legislation makes things tough for licensees, say lawyers.

Some of Scotland’s leading licensing lawyers reckon the current state of affairs is unacceptable and say it’s time for a root and branch review ahead of the tenth anniversary of the 2005 Licensing Act coming in to force in 2019.
Archie Maciver, of Brunton Miller, reckons a review of the whole licensing system “would be hugely beneficial” both to the trade and to “the hapless souls like myself who practise this type of law”.
“There are too many areas which aren’t fit for purpose and require to be amended,” he said.
“This would seem like a good opportunity to take stock and change what needs to be changed to make the system work more efficiently.”

SLTN columnist Jack Cummins of Hill Brown Licensing and editor of Scottish Licensing Law and Practice (SLLP) agreed with Maciver, suggesting that it’s time for government to intervene.
“That [root and branch] review was proposed by the Glasgow board’s clerk, Mairi Millar, at last November’s SLLP conference,” said Cummins.
“It was abundantly clear on the day – and from subsequent delegate feedback – that the idea had universal support from a whole range of stakeholders.
“If the Scottish Government is serious about listening to those immersed in licensing, it should take this forward as a priority.”

If the SNP wrest control of councils it would be logical to expect policy pursuing public health.

Licensing lawyer Janet Hood also reckons a review would be useful as the law is “so complex”, meaning most people “do not have a chance of understanding it”.
Hood added that licensing experts have expected to see revised licensing board guidance since 2007, but have been left wanting.

Glasgow City Chambers in George Square

“The [current] guidance was published in April 2007 and was out of date before September 1, 2009 when the Licensing (Scotland) Act 2005 came mostly into force,” said Hood.
“Guidance would be of assistance to everyone if it were to lead to a general reduction of confusing local bureaucracy.”
Cummins also touched on the issue of statutory guidance, suggesting that the decade-long gap since the Scottish Government last issued guidance – before the 2005 Act was fully implemented – makes existing guidelines “unacceptably out of date” and in need of an “urgent overhaul”.

“In particular, it ought to cover the many areas where the law has changed in the past decade,” said Cummins.
As alluded to by Cummins, the tenth anniversary of the Licensing (Scotland) Act coming into force is looming, and Frances Ennis of Pinsent Masons reckons it’s “thoroughly depressing” that a root and branch review is being discussed already, as the last Act was designed to “completely overhaul its predecessor”.

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A ban on alcohol advertising?

Alcohol Focus Scotland recently recommended a ban on advertising alcohol in public spaces, arguing that it will protect children and help cut underage drinking.
Some of Scotland’s top licensing lawyers have weighed in on the issue.

“In response to the report, a spokesman from Diageo pointed out that the level of underage drinking in Scotland has been falling in recent years anyway, whereas in France, where a similar ban on advertising is already in place, levels have been up.
“The Scottish Government does not presently have the power to implement legislation in this area. However, they have described the report as an ‘interesting contribution’ and indicated that they will lobby the UK government for greater power over advertising regulations.”
– John Grant Wright, Johnstone & Mackenzie

“As public health lobbyists continue to press vigorously for controls on alcohol advertising and marketing – as well as a clampdown on any price-led promotions – there’s at least a chance that ministers will respond with new measures. But I’d like to think that the Scottish Government will take its foot off the pedal – particularly if – as I suspect – minimum pricing clears the Supreme Court hurdle later this year.”
– Jack Cummins Hill Brown Licensing


However, Ennis reckons the real problem is not a legislative one, but relates to licensing boards.
“Most boards use common sense in applying the law and are prepared to be flexible when it comes to responsible business operators,” said Ennis.

Aberdeen City Council

“What we need is a properly funded regime. Boards are massively under resourced; gone are the days when, if you had a licensing query, you simply phoned a board and picked the brains of someone who had an in depth knowledge of the system.

“We now get a generic number and a call back, if we’re lucky, days later.”
Change to licensing boards is all but guaranteed, with local elections coming up and new board policy statements in the pipeline.

However it’s change that will take place on something of a moving political train.
Should the Scottish electorate vote as the polls and pundits predict this May, Cummins suggested it could lead to a points change that takes many boards in a different direction in terms of their objectives.

“If as expected the SNP wrest control of many council areas, it would be logical to expect a robust delivery of the party’s policy in relation to licensing issues, primarily, I suspect, those related to the ‘public health’ objective,” said Cummins.
“We’ll also see new licensing board members coming to that role with zero experience – so there may well be a stormy outlook for the trade.”

City of Edinburgh council

The prospect of new licensing boards was also raised by Caroline Loudon of TLT Solicitors, who reckoned changes in personnel could have a “massive impact” on the trade.
“We will potentially see first time councillors with no experience of quasi-judicial settings determining licence applications,” said Loudon.

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Licensing pitfalls to look out for

LICENSING in Scotland is a complex affair which means operators who are fully intent on keeping everything compliant can still slip up and fall foul of licensing legislation.
To assist operators Janet Hood of Janet Hood Training & Consultancy has offered some licensing tips:

• Staff training is complex and difficult for most people to get right. Ensure you cover:

–    Operating plan.

–    Opening and closing times.

–    Challenge 25 record keeping.

–    Refusals record keeping.

–    Incident record keeping.

–  Police visit record keeping.

–    Reminder system for staff training.

• Have a folder with certified copy of premises and personal licences, staff training certificates and incident and refusals books; make sure all staff know what it is and where it is, and who it has to be shown to – eg. Police Scotland and LSOs. Keep this behind the bar.

•    Understand due diligence in respect of compliance.

•    Make sure staff are clear on their legal duties.

•    Make sure staff comply.

•    Conduct daily checks on must haves:

–    Your summary licence in place.

–     A notice at the door in respect of children and young persons access.

–     A section 110 notice at till points.

–     Challenge 25 signage.

–     Check, are staff training records properly completed and accessible in folder behind bar (see above)?

• Join Pubwatch or another local scheme and agree to undertake Challenge 25 mystery shops using over 18s to ensure staff are getting it right.


“Both clerks and agents will have to work hard to bring these board members up to speed.”
Maciver agreed that this May’s local council elections could be “very significant” to the licensed trade.
“New councillors may have new ideas,” he said.
“Although boards are non party-political they are, nonetheless, made up of councillors.
“The time after an election is always one of uncertainty until the new boards settle down and get into their stride.”
In the wake of the local council elections this spring, new faces on boards won’t be the only changes – each will also be obliged to produce a new policy statement.

Maciver said he would like to see the new boards take a more sympathetic view of the licensed trade by creating policy statements that recognise the industry’s contribution to the Scottish economy.
“The new policy statements will be interesting,” said Maciver.

“I would like to see a more forward looking approach to the trade, particularly regarding late night venues which are struggling just now.
“Society changes over time as do the expectations of the public and it would be good to see perhaps a greater degree of flexibility in some policy statements.
“The trade in Scotland injects a huge amount of money into the economy. It is clear that the trade is struggling – the rates fiasco being the latest hammer blow – so anything which could assist them to survive would be welcome in my book.”

Tom Johnston of Ormidale Licensing Services had a different view on the new policy statements.
Johnston said he hopes boards leave things as they are, suggesting the rate of change when it comes to licensing law can leave operators in a muddle.
“There are 32 councils in Scotland and, from memory, 40 boards,” said Johnston.
“It is bad enough for national operators having to cope with these patchwork laws without them changing on a regular basis.

“There is always some upheaval when there is a change in personnel, particularly a change of convenor.
“It makes it harder to advise clients correctly; however, it is an unavoidable fact of life with the system we have.
“It is much better if you know there is a strong clerk in place, as this can avoid inconsistencies.”
Whatever happens in May, more upheaval for licensees is a certainty as the UK government makes changes to employment law that could leave licensed trade operators falling short in compliance terms.
Introduced ahead of last summer’s EU Referendum, the Immigration Act 2016 received Royal Assent on May 12 last year.

Various sections of the Act will soon be folded into the array of legislation that makes up Scottish licensing law, with new prohibitions on who can apply for a premises licence or personal licence as well as granting immigration officers the right to enter premises with a view to seeing whether an offence under any of the Immigration Acts is being committed in connection with carrying out licensable activity.

Included in the Immigration Act 2016 are new powers of “illegal working closure notices” and “illegal working compliance orders”, which could see licensees on the hook for hiring staff working illegally in the UK.
John Grant, senior associate at Wright, Johnston & Mackenzie, said that for hospitality operators, whose work “tends to come in peaks and troughs with busy periods”, there’s an obligation to be “aware of their responsibilities” under the law.
Grant added that these obligations extend to issues around employee status, with courts coming down hard on employers who shirk their responsibilities when it comes to holiday pay and other benefits.

“There have been a recent string of cases in the courts and employment tribunals, most notably involving Uber, concerning employee status,” said Grant.
“A worker’s status determines their entitlement to benefits such as holiday pay and pension rights.
“The courts recently have been taking a tough stance with employers in these cases and have been generally siding with the employees.”