In the wee small hours

The Scottish Government has done it again – legislated for ambiguity. The problem this time arises in relation to late hours catering and premises that are already licensed under the Licensing (Scotland) Act 2005.

Two questions have arisen.

Question 1

Do you need to secure a late hours catering licence under the Civic Government (Scotland) Act, s 42 as amended if you want to sell food between the hours of 11pm and 5 am in premises licensed in terms of the Licensing (Scotland) Act 2005 for e.g. 24 hour supermarket operation or for the late hours service of food in onsales premises?

Answer 1

No – as the premises are already licensed for that activity.

Question 2

Would a simple “major” variation in terms of the Licensing (Scotland) Act, s 29 suffice to include sale of food between 10pm and 10am in offsales premises, or from the end of core hours to the desired terminal hour for onsales premises, if the current operating plan does not include that activity during those hours?

Answer 2

If a premises licence is held for subjects, a simple major variation would be all that would be required to permit food or other sales at any time between the hours of 10pm and 10am in offsales premises, or from the end of core hours to the end of the sale of food or other activity in onsales premises.

Reasoning

The Civic Government (Scotland) Act 1982 (“CG(S)A”), s 42, as amended by the Criminal Justice and Licensing (Scotland) Act 2010, s 177, requires persons selling food between the hours of 11pm and 5am to hold a late hours catering licence.

The CG(S)A was earlier amended by the 2005 Act, sched 6, para 6 to state: “(4) A late hours catering licence shall not be required in respect of– (a) the use as such of licensed premises within the meaning of the Licensing (Scotland) Act 2005”.

That paragraph had previously stated: “A late hours catering licence shall not be required in respect of- (a) the use as such of licensed premises within the meaning of the Licensing (Scotland) Act 1976”.

The 1976 Act only permitted licensing boards to license the sale of alcohol on premises. It did not – other than for entertainment licences – permit boards to license any other activity. Therefore it was easy to interpret the CG(S)A, s 42 as meaning that at the end of permitted or trading hours the premises were not being used as licensed premises as such, and if late hours catering or other civic government activities took place on the premises a civic government licence would be required.

However the same is not the case with the 2005 Act. Section 1 states that it is illegal to sell alcohol on unlicensed premises and that a premises or an occasional licence will be required for those sales. Section 17 goes on to say that a premises licence “means a licence issued by a licensing board authorising the sale of alcohol on the premises”. In my opinion that is only one of the things authorised to take place on the premises, and the licence covers other sections of the 2005 Act that require to be taken into account when considering the above query. Section 17 shows that these licences permit not only the sale of alcohol but can also include the carrying out of other activities including inter alia the sale of food.

Section 20 of the 2005 Act demonstrates that an applicant for a premises licence is required to request a licensing board to grant a licence not only to authorise the sale of alcohol but also to authorise other activities to take place on those premises. Or in other words to use the licensed premises for the sale of alcohol and for those authorised activities as such, and for no other purpose and during no other hours than those permitted. The Premises Licence (Scotland) Regulations 2007 confirm that the applicant requires to apply to the licensing board by way of completing an operating plan for authorisation to sell alcohol whether for on- or offsales or both, and to apply for authorisation to carry out activities other than the sale of alcohol on those premises. The operating plan also requires applicants to apply for the hours for the sale of alcohol – which hours are called core hours – and also to apply for hours for activities which can take place outwith those core hours.

A board has to consider not only the premises licence application, which holds no operational details, but also the operating and layout plans, which flesh out the application and permit the board to know what they are granting. The operating plan therefore is an integral part of the licensing process.

Section 26 of the 2005 Act states that where a licensing board grants a premises licence application it must issue to the applicant a premises licence in the prescribed form containing the information and documents specified in subs (2) – in other words, inter alia the operating plan and layout plan. This being the case, in my opinion no other interpretation is possible other than that the operating plan is part of the licence.

Section 29 of the Act is headed "Application to vary premises licence", and states that the variation of the licence means any variation of inter alia “any of the information contained in the operating plan”, which must therefore be taken as being part of the licence which is to be varied.

If I am correct, then a premises licence can cover any food sales taking place on premises subject to a premises licence. These food sales will either have been put into the “other activities” section of the operating plan, and the times during which such sales take place dealt with in the non-core hours section of the operating plan previously granted, or can be covered by the operating plan by way of making a major variation application.

The CG(S)A, s 42 exempts 2005 Act premises in the following terms: “the use as such of licensed premises within the meaning of the Licensing (Scotland) Act 2005”. The uses permitted as such on premises are contained in premises licences issued by boards in terms of the Licensing (Scotland) Act 2005. In my opinion neither Act constrains that interpretation.

For the above reasons I do not believe there is a need for dual licensing as has been elsewhere proposed.

Unfortunately – as far as I am aware – although the Scottish Government has been asked for a view, none has been forthcoming.

The opinion of the author is not shared by all of the accredited specialists. Some believe that late hours catering licences are required for premises selling food between the hours of 11pm and 5am. They will no doubt respond to this article.