Boards are expected to start working on policy statements imminently
WHILE the Scottish trade’s legislative landscape has seen no shortage of changes in recent years, on a day-to-day basis licensing at a local level is guided by a single document: the licensing policy statement.
Based on legislation but drawn up by each licensing board individually, the policy statements lay out a board’s approach to alcohol licensing in its area, including its position on the issuing and reviewing of licences, licensed hours, outdoor seating and overprovision.
As these documents are created by each licensing board separately, there can be some fairly sizeable differences in approach from one area to the next – something that has caused no end of consternation to operators since the introduction of the Licensing (Scotland) Act.
And it could be set to cause consternation all over again in the coming months when the new licensing boards set about drafting their new statements.
By law, the next set of policy statements should commence within 18 months of this May’s council elections – in other words, by November 2018.
As with any other aspect of alcohol licensing, the timing of the policy statements is likely to vary between areas. But the sooner boards get started, the better, say licensing lawyers.
“The consultation process is complex – getting it wrong could land a policy on the rocks – so boards really should be starting to get organised in the coming months,” said Jack Cummins of Hill Brown Licensing.
“The current policies don’t take account of changes to the 2005 Act – overprovision is the obvious example – so limping on beyond the deadline with an out-of-date approach would be totally unacceptable.”
I’m sure there will be some boards that are on the ball and others will be a bit more tardy.
Licensees in at least some board areas should expect to hear about consultations soon.
“I know a number of boards have already started work on [policy statements],” said Archie Maciver of legal firm Brunton Miller.
“I am sure the situation will be as before – there will be some boards who are very much ‘on the ball’ and will produce their policies timeously and there will be others that are perhaps a bit more ‘tardy’.”
Caroline Loudon of TLT said she is aware of several licensing boards that have started “pre-consultation review exercises” and are publishing questionnaires as they begin the process of reviewing their policy statements.
“It is obviously incredibly important that consultation on these momentous policy statements is carried out robustly with all stakeholders given an opportunity to partake and provide information/evidence,” said Loudon.
She added that a transparent and thorough consultation process is particularly important in the case of the two “hot topics” of licensing: overprovision and public health.
“It will be important for boards not to seek to have the answer to these two topics before the question has been asked,” said Loudon.
“All stakeholders seeking to provide evidence on these points must be listened to and it will be important for licensing boards to be able to demonstrate that the consultation exercise has been open, transparent and robust.
“Proper consultation and analysis of evidence from a variety of sources will be vital if licensing boards are to be able to defend policy in certain areas.”
This could be more important during this round of policy statements than ever before, say lawyers, as the past couple of years have seen several significant legal cases on the topic of overprovision.
“There have been recent cases dealing with overprovision and policy statements with, notably, Aberdeen being on the wrong end of a fairly damning assessment of their policy,” said Andrew Hunter of Harper Macleod.
“I expect overprovision will emerge as the key ground for refusal going forward and would expect policy statements to be better drafted in light of court guidance to support any policy that an area or areas are overprovided for.”
While overprovision is likely to be a hot topic in the next policy statements, it isn’t the only issue the trade should be keeping an eye on when boards begin to consult on their documents.
Licensing lawyer Janet Hood said the rules governing issues such as licence transfers could stand to be improved in many policy statements.
And practical, day-to-day considerations such as allowing licensees to present certified copies of their personal licences during inspections, rather than the originals, could benefit operators greatly, said Hood.
I expect overprovision will emerge as the key ground for refusal moving forward.
“At present many LSOs and the police are requiring original personal licence documents to be kept on the premises,” she said.
“This means that a large number of personal licence holders’ personal licences are lost.
“It is particularly vexing when offices in licensed premises are closed and personal licences are in the safe.
“It is acceptable in any other part of business in Scotland for solicitors to certify documents as a true copy.
“The reason given is that police and LSOs need to be able to check if previous convictions are recorded and appropriate training has taken place.
“These matters are easily checked by reference to the issuing licensing board if there is believed to be a problem.”
Most important of all might be licensing boards’ attitudes towards their policy statements once they are complete, however.
Maciver of Brunton Miller said he felt it was important that statements are viewed by licensing boards as a guide, but do not “bind them hand and foot”, particularly with regard to granting licences.
“Notwithstanding any policy statements boards must always deal with each application on its own individual merits,” said Maciver.
“The way I look at policy statements is to consider them as being the ‘benchmark’ against which ‘normal’ applications will be judged.
“If, however, there is something which is out of the norm and which deserves special treatment, then the existence or otherwise of a ‘policy document’ should not preclude that particular application being granted if the applicant can persuade the board that his or her case is ‘special’ and deserves to be treated as something beyond the norm.”
Policy statements aside, there is always the potential for further licensing law changes from Holyrood.
It is important that consultation on these documents is carried out robustly.
Recent years have seen successive rounds of legislation from the Scottish Government, and although there haven’t been any specific announcements recently, there’s always the chance more changes could be on the horizon.
Licensing lawyers have also repeatedly called on the Scottish Government to consolidate existing law in order to pull all relevant licensing laws together into a single, cohesive licensing Act.
However, Loudon at TLT was sceptical that this will happen in the next year.
She said: “These calls seem to not be gaining traction with the powers that be for many reasons; the main reason perhaps being that there are simply other more pressing things going on with the Scottish Government’s focus on the implementation of the Air Weapons and Licensing (Scotland) Act 2015 and of course Brexit.
“Given these two matters, I think that licensing might be put ‘on the back burner’ for 2018.”
