Legislation shouldn’t be used as a ‘gateway’ to solve wider issues or general concerns, writes lawyer Stephen McGowan
THE last issue of SLTN (May 10) covered calls by campaigners and politicians to use the licensing system to enforce employment practices on licence holders.
This principally related to the ‘Safe Home’ campaign, which encourages employers to make sure late-working bar staff can get home safely at the end of their shift. Other calls were made to refuse or revoke licences where the business could not prove that its employment practices were appropriate.
Making sure employees are properly looked after is, of course, important. The difficulty, however, is that the campaign attempts to use the licensing system to achieve an aim outside of its remit.
This is not the first time this has happened.
In February, the UK government launched a consultation on introducing tax checks as part of the licensing process – for example, to ensure the applicant is VAT registered.
Another example that is already (in my view improperly) on the statute books is the shoe-horning of immigration status checks into the alcohol licensing process.
Should businesses be registered for VAT, ensure that their workers have the right to work in the UK and have sensible policies in place to ensure that they are looking after their employees? Of course; but these principles should be dealt with under their own laws.
The courts have ruled on this time and time again and their position is that licensing law should not be used for an improper – ie. “non-licensing” – purpose.
In the burger van case McCluskey v North Lanarkshire Council 2016, the court held that street traders could not be banned from locating themselves outside of schools because of the nutritional value of their food. In Blusins Ltd v Dundee licensing board 2001, the court held that the board could not refuse a licence on the grounds of a rates debt. There is also the famous case of Gerry Cottles Circus v Edinburgh City Council 1990 in which the court held the council was wrong to refuse an entertainment licence on moral grounds relating to animal welfare.
The key issue is that the licensing system cannot be used to introduce other tests or concerns that do not relate to the purpose of licensing. There is also clear statutory direction here – section 27(7) of the 2005 Act states that a board cannot impose a condition on a licence if that matter relates to something covered under another enactment.
To give another example, there is a recent requirement for new licence holders to submit a statement concerning disabled access and facilities; these matters are dealt with under other legislation, so when a board is assessing a licence application it can be made aware of what the facilities may or may not be, but it should not use its views on those facilities as a ground for refusal; guidance from the Scottish Government also makes this clear.
A more practical issue with using the licensing system for other purposes is one of resource. Local authorities – many of which have had to cut staff and resource in recent years – are already struggling with the volume of ‘day to day’ business. Making them guardians or gatekeepers of complicated issues like immigration and tax would lead to considerable administrative delay, which would have a knock on effect on all other licensing business. This would result in delays to new openings, investment, new facilities, amenities and job creation.
While these issues are of course important, there are separate systems in place to deal with them.
Employment issues should be dealt with by the employment tribunal; access and equality-related by the Equalities and Human Rights Commission.
Licensing law should not be used as a ‘gateway’ to solve wider societal issues or general public concerns.
• Stephen McGowan is partner and head of licensing (Scotland) at TLT.