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Clarity is needed on fit and proper

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Clear definition required as applicant assessment is reintroduced to law

Operators and trade groups have issued fresh calls for a clear definition of ‘fit and proper’ before the assessment of an applicant’s ‘fitness’ to hold a licence is reintroduced to legislation.

• The fit and proper test will come into force on Monday, May 15.

The ‘fit and proper’ test, last seen in the 1976 Licensing Act, is a provision of the Air Weapons and Licensing (Scotland) Act 2015, which is due to come into force on May 15. There is currently no ‘fit and proper’ test under the 2005 Licensing Act, although other ‘tests’ are applied, including the chief constable’s ability to object if an applicant for a personal or premises licence applicant has been convicted of a ‘relevant offence’.

The introduction of the fit and proper test on May 15 will mean that licensing boards are required to consider, “having regard to the licensing objectives”, whether an applicant is a fit and proper person to hold a licence in relation to personal and premises licence applications, transfers, and reviews; boards will also have the power to revoke a licence following a review in which the licence holder is deemed ‘unfit’.

A further provision of the Air Weapons and Licensing Act, for which a commencement date has yet to be set, will allow boards to consider ‘spent’ offences.

However, trade groups and operators say a clear definition of fit and proper is required.
SLTA chief executive Paul Waterson said: “Everyone supports fit and proper for various reasons but no one knows what it means.

“There has got to be a clear definition and guidelines on what it means.
“When it was challenged under the old [1976] Act it fell down because there was no definition.”
Donald MacLeod, chair of the National Licensed Trade Partnership, agreed.

“There has to be a definition of fit and proper; everyone needs to be clear on what it means,” he said.
Stephen McGowan of TLT solicitors said: “The police will themselves need to think about what they will be looking for when considering what is fit and proper and, given the test is linked to the five licensing objectives, there will be arguments over where the limit lies.”

Jack Cummins of Hill Brown Licensing, said there’s “plenty of case law generated under the 1976 Act that helps define how it should be used”.

“The big difference this time is the requirement to revoke a licence following a review where the holder has been found to be ‘unfit’ – and it’s not the sort of stigma that’s going to be shaken off easily,” he said.

Inspector Stuart Cameron of Police Scotland’s National Liquor and Civic Licensing Policy Unit told SLTN: “Whilst there is no definition within the legislation of ‘fit and proper’ and unlikely to be one as it would be difficult to be prescriptive considering all factors which could be required to be taken into consideration, we can advise that as you would expect Police Scotland will examine each application for the grant, transfer, renewal, etc. of licences on a case by case basis.

“In respect of the disclosure of information to support the ‘not fit and proper’ test, officers and staff should identify all information available and thereafter take into account factors such as the relevancy, gravity and the time elapsed when considering disclosure.

“Any information disclosed should only be for the purpose of determining the applicant’s fitness to hold a particular licence. For that reason, I consider that the reasoning process employed by officers and staff must demonstrate that they have considered only the persons fitness for the material licence.”

Paul Fair of the National Licensing Standards Officers’ Group said: “At this stage, we as a group are uncertain what involvement LSOs will have in assessing personal licence applications against the standards imposed by the return of the ‘fit and proper’ test, however we will without a doubt heavily rely on our excellent working relationship with Police Scotland to ensure that a fair, balanced and proportionate approach to such matters continues to be made.”

A spokesman for the Scottish Government said: “The concept of ‘fit and proper’ already exists in other licensing regimes. Interpretation will be a matter for individual licensing boards and ultimately the courts.”

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