An occasion for the law to change

New moves could help prevent abuse of occasional licences

Occasional licences are often used to cover events at unlicensed venues

WHEN the Licensing (Scotland) Bill was published in February 2005, the core content was pretty much as expected.

But there were a few show stoppers, including a total lack of provision for occasional licences. Under the Licensing (Scotland) Act 1976 it was possible for members of the trade to cater for events “outwith the licensed premises” for periods of up to 14 days.

The same facility was available to clubs, provided the event related to the “functions of the club”. And voluntary organisations were able to run bars in unlicensed premises, normally for fundraising purposes, by obtaining an “occasional permission”.

The Scottish Government was quick to fill the gap when this significant omission was drawn to its attention. But it did so in a way that has failed to meet the expectations of the trade and licensing boards.

In fact, the new system of occasional licences started with an almighty row about the preferential treatment handed out to members’ clubs. For reasons that were probably politically-based, certain types of ‘not for profit’ clubs are allowed to obtain occasional licences for their own premises. (There are quotas depending on the length of the licences, with an overall limit of 56 in a 12-month period.)

When a licence is in force, the club can, in effect, operate on a commercial basis: there’s no requirement for non-members to be signed in and for a visitors book to be kept.

Understandably, the reaction from the on-trade – already infuriated by the way in which some clubs abuse their privileged status – was one of absolute outrage.

For licensing boards, there’s a very basic weakness in the new provisions.

Since occasional licences are no longer dependent on catering for an ‘event’, they’re a very attractive proposition for those who wish to avoid the expense of obtaining a premises licence.

An application may be made by the holder of a premises or personal licence; or by a representative of a voluntary organisation. It costs just £10; but for a ‘permanent’ licence the application fee could be as high as £2000.

And occasional licence applications are subject to less publicity – reducing the scope for objections – and far less regulatory scrutiny.

A premises licence application must be considered at a board meeting, but that’s not an automatic requirement for occasional licences.

In one recent Glasgow case, safety concerns relating to a restaurant’s timber cladding only surfaced when the board – concerned at the long-term use of occasional licences – called the operators to a hearing.

It now looks as if the Scottish Government will step in to plug the gaps. A consultation – ending on July 16 – seeks views on a new application fee which I reckon will be set at £50 at least.

That hike would be easily justifiable on a cost recovery approach.

Then there’s the possibility of a cap on the number of occasional licences that could be granted to the same applicant or for the same premises in a 12-month period, as well as a limit on the number of continuous days on which licences could be in force.

I suspect that the potential effect of these proposals on the trade may not be immediately obvious.

On one hand, it’s perfectly reasonable to eliminate the scope for abuse by those who want to run licensed premises on the cheap.

But there are those who rely on occasional licences for perfectly legitimate reasons.

For example, many outside catering businesses based at unlicensed premises are utterly dependent on occasional licences. They might well require dozens of licences in the course of a year.

And those who have obtained a provisional premises licence but face a delay in having it confirmed because of an administrative log jam frequently need to obtain occasional licences as a stop- gap.

There could also be an impact on the use of the licences for outside drinking areas during the summer months.

So, while the time has surely come to stop the system being abused, the changes should be sufficiently fine-tuned to preserve reasonable business interests.

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

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Jack Cummins is unable to enter into personal correspondence on readers’ questions. The advice offered in SLTN is published for information only. No responsibility for loss occasioned by persons acting or refraining from action as a result of material contained in SLTN can be accepted by the author or publisher.