By Audrey Junner, Partner, Miller Samuel Hill Brown
THE Scottish Government has stepped in with muscular provisions to protect the licensed trade during the coronavirus crisis.
Ahead of the Coronavirus (Scotland) Bill’s fast-track through the Scottish Parliament yesterday (April 1), a government official told stakeholders that the licensing provisions are designed to minimise the potential loss of business rights, recognising the need to protect the interests of those serving communities at this difficult time.
In the absence of these measures, many operators could suffer even more misery at a time of unprecedented turbulence.
The Coronavirus (Scotland) Act 2020 will come into force on the day following Royal Assent, which is expected to be given early next week.
Over the years, licensing lawyers have criticised the Scottish Government for failing to appreciate unnecessary difficulties created by the legislation that could be simply resolved. For example, last year, when thousands of personal licences were due to be renewed, there were real worries that applications meeting the deadline wouldn’t be processed by the expiry date and would simply lapse.
In the event, licensing boards did manage to cope with the tsunami. But it was still clear that the law needed to be changed: where an application is lodged on time, the licence should remain in effect until the application was processed. That’s the position under other licensing legislation.
As you’ll discover below, the emergency Bill goes some way to address the problem, for the time being at least – and a solution of that sort should be put on a permanent footing.
So, with sections of the trade facing meltdown, the Scottish Government’s recognition that licensed businesses providing essential services need to be freed from the fallout from missed deadlines is really welcome.
Many of the Bill’s provisions allowing a degree of flexibility are linked to a “coronavirus reason” and it’s expected that this will be interpreted by licensing boards with a large degree of elasticity.
These are the key provisions as they affect the trade:
Personal licence holders are allowed to submit a renewal application up until the day before the expiry date if it wasn’t possible to do so for a reason associated with coronavirus. Where an application is submitted and it hasn’t been determined by the expiry date, the licence will continue to have effect for a six-month period starting with the expiry date. Boards also have discretion to extend training deadlines. So anyone who finds that they can’t complete a course in time can contact the board and ask for more time.
Premises manager changes
Normally, where a premises manager ceases to work at the premises – or becomes incapable of acting in that role – the board must be notified within seven days of the occurrence. Then, a minor variation application to nominate a new premises manager must be submitted within six weeks of the event. Failure to follow the procedure means that the board must remove the premises manager from the licence – with the result that the sale of alcohol must cease. The seven-day period is extended to 28 days and the six-week time limit it stretched to three months. The latter period may then be extended on a request being made for a coronavirus-related reason.
Provisional premises licences
A provisional premises licence normally has a “life” of four years, but it can be extended if an application is made before its expiry. The board can extend for an appropriate period if it’s satisfied that: (a) completion of the construction or conversion of the premises has been delayed; and (b) the delay is due to factors outwith the licence holder’s control. Where there’s no extension, the licence is treated as revoked. In terms of the Bill, on the first application for an extension made before the end of the four years the board must grant a six-month extension if it’s satisfied in relation to (a) and (b) above and the reason for the delay is related to coronavirus.
Clarity on takeaways
Even if a premises licence operating plan doesn’t expressly provide that food may be taken away or delivered from the premises for consumption off the premises, a term to that effect is to be implied. Of course, alcohol takeaways and deliveries are only permitted where provision is made in the operating plan for off-sales licensed hours.
Boards will be allowed to hold “remote” hearings by phone or using video conferencing or they may proceed by means of written submissions. These facilities may be used where a premises licence review hearing is to take place. Timescales can also be extended if the usual deadline can’t be met for coronavirus reasons.
Licensing boards can’t consider business at a meeting unless one half of the members are present (and not less than three). The Bill changes the quorum to one-third of the members. Meetings must be held in public, but a board may dispense with that requirement for a reason relating to coronavirus. Provision is also made for a board to establish a committee, consisting of no fewer than three members, for the purpose of dealing with a wide range of matters normally reserved to a meeting of the board itself.
Extended hours applications
Deadlines are extended for police objections and reports by licensing standards officers.
Premises licence transfers
In certain circumstances – the death, incapacity, insolvency or dissolution of the licence holder – a transfer application has to be made within 28 days of the event occurring. Missing that time limit has a drastic result: the licence ceases to have effect. The Bill provides a vital safety net by allowing licensing boards to accept a transfer application after the end of the 28 days where the deadline has been missed for a reason related to coronavirus.
Further down the track…
There’s a key area that has yet to receive attention. In seven months’ time, premises licence holders will be obliged to make payment of the annual fee. For many, that’s likely to a financial burden they can ill afford. Boards can accept four or twelve instalment payments – but it remains to be seen whether the Scottish Government will allow a fees “holiday”.
Changes to the Licensing (Scotland) Act 2005 will expire after six months but they may be extended for two further periods of six months, giving a maximum duration of 18 months.