Opinion: Archie Maciver

As those who practise in this field will only be too quick to explain, the landscape of licensing law is ever changing. Since the Licensing (Scotland) Act 2005 was enacted with effect from 1 September 2009, we have already had two significant amending pieces of legislation (the Criminal Justice and Licensing (Scotland) Act 2010 and the Alcohol Etc (Scotland) Act 2010).

As if that were not enough, the Government has now introduced a further piece of proposed legislation, the Air Weapons and Licensing (Scotland) Bill, which is currently working its way through the parliamentary process with the likelihood being that it will become law round about the summer of 2015.

This bill proposes changes to the liquor licensing regime, the civic government licensing regime, and also seeks to introduce a system of licensing for air weapons in Scotland. If approved, the bill will create a number of new offences related to the possession, use and acquisition of air weapons by persons who do not hold a licence or do not act in accordance with the licensing regime.

Air weapons

These proposals, insofar as they relate to the licensing of air weapons, follow some high profile cases in which the misuse of such weapons has resulted in tragic circumstances, including the death of a young child in Glasgow.

As the proposed legislation stands, however, there are a number of issues which require clarification during the progress of the bill through Parliament if it is to prove an effective measure against the misuse of such weapons.

As it stands, it would appear that a single air weapon certificate would be issued to an individual covering all air weapons held by that person. Unlike shotguns etc, air weapons do not have a serial number and are therefore untraceable. There is no requirement for the certificate to state the number and type of weapons held by the holder, and it is therefore difficult to see how the police will know how many air weapons are, in fact, in circulation at any given time. Perhaps consideration should have been given to the thought that air weapons should bear serial numbers and that the details of the weapons should be contained on the air weapons certificate.

In similar vein, there is no requirement in the bill for this certificate to be presented in order to purchase ammunition. Given that airgun pellets can be fired from an air weapon only once, it is a statement of fact that the weapons will eventually run out of ammunition. Consideration should be given to a requirement that the air weapon certificate (listing the relevant weapons) should require to be presented in order to purchase ammunition.

A further question mark over the proposals is that the licensing scheme, if adopted, would be administered by Police Scotland. Whilst there is little doubt that that organisation is almost certainly the most appropriate to administer such a scheme, the financial implications for Police Scotland are enormous. It is very difficult to see how, in this age of budget constraints in which the police service is attempting to find huge savings annually as a result of the creation of the single force, they will be able to finance the administration of such a licensing scheme without significant cuts in other aspects of its budget.

Liquor licensing

Turning to the proposed changes in the liquor licensing regime, again those involved “at the coalface” are very concerned not just with the contents of the bill, but more significantly those matters which do not feature in it. For many years, the Law Society of Scotland and other bodies representing those involved in the field of liquor licensing have called upon the Government to look closely at matters which have been causing severe practical difficulties in the operation of the licensing system. It is accepted that these matters are not particularly “headline grabbing” or worthy of comment in the national press, but they do create practical day to day difficulties for those involved in the licensed trade and in some instances stifle development.

In particular, the wholly and unnecessarily complicated system for the transfer of licences requires to be redrafted. At the present time, the system, apart from causing confusion, can for example leave a landlord high and dry if one of his tenants in whose name the liquor licence stands decides to quit the premises and surrenders the licence. As matters currently stand, the landlord cannot effect a transfer of that licence to himself. A pub without a licence is frankly of little worth! It is only through the good grace of licensing board clerks who are willing to take a pragmatic approach to such problems that issues such as this are dealt with relatively quickly. If however the strict letter of the law was to be applied, there would be a major issue.

Similarly, under the current legislation, before a prospective developer of a site who ultimately has no intention of trading the licensed unit himself can seek the board’s consent for his proposal, he will require to go to the expense of obtaining very detailed layout drawings showing exactly how the premises are going to look when completed. This is despite the fact that he will in due course be transferring this licence to a third party whose layout requirements could be entirely different and who will have to go through a process to change the drawings which have been approved by the board.

Under the pre-2005 Act position, there was scope for an “outline only” application to be made, based on a written description of the type of premises which were envisaged. If approved, there were various procedural steps which had to be undertaken before the provisional licence became, first, detailed and then finalised in a form which could be utilised for the sale of alcohol. The cost involved on the current system is, particularly in rural areas, resulting in developers deciding not to proceed with projects, and this, I suggest, hinders the economic regeneration of many of these areas. It is a matter which is fairly easily resolved, merely by a return to something akin to the pre-2005 Act position, but again it is something against which the Government over the years has appeared to turn its face, showing no willingness whatsoever to take on board the requests from those involved in the industry.

Civic government

The proposed changes to the civic government licensing system are widespread and wide reaching. If enacted, the bill will have major repercussions for those involved in the provision of private hire car services, scrap metal dealing, and in particular for those involved in the sexual entertainment industry.

For the first time, local authorities will have an opportunity to regulate the number of private hire cars which are licensed. Local authorities have, for many years, been able effectively to put a “cap” on the number of hackney cab licences which they issue, and for an applicant to be successful they have to be able to show that there is a significant unmet demand in the area for their licence application to be granted. There has been no similar test for private hire cars until now. Ironically, the Government has decided to propose a different type of test so far as relating to private hire cars, whereby it will be whether or not “over-provision” of such vehicles exists in the area. This is a test which to some extent mirrors a ground of refusal under the liquor licensing regime. The difficulty is that “over-provision” is an exceptionally difficult concept to establish. It is somewhat nebulous in concept and one wonders why the Government has decided to approach private hire vehicles in a different way from hackney cabs.

The main controversy in terms of the civic government aspects of licensing is in the field of sexual entertainment, in the proposal to introduce a new type of licence, a sexual entertainment venue licence, for lap dancing clubs and the like. This will be administered by the local authority, and if the proposals are enacted, the result will be a two tier licensing system in respect of such premises. An application will require to be made to the local licensing board for a liquor licence, and in addition, an application will require to be made to the local authority for a licence for the type of business proposed. It is evident that this could result in a situation where a proposed business operator of such premises could have one licence but not the other! Similarly, it raises a raft of questions regarding existing sexual entertainment venues such as the lap dancing clubs which exist in most of the major cities in the country. If they are to be subject to this new regime (and the indications are that they will be so subject), there is a very real possibility that premises which have operated satisfactorily for many years, but are located in a local authority area where the authority has publicly stated that they do not really wish such businesses to operate, could have their investments completely destroyed and the businesses shut down as a result of this change in legislation.

Too complex

As can be seen from the very brief snapshot, the bill is one which covers a wide range of matters.

This approach to legislation whereby the Government contains within one bill legislative proposals covering such a wide range of topics (i.e. civic government licensing, liquor licensing and air weapons licensing) makes it more and more difficult for practitioners, operators and those involved in the world of licensing generally to keep wholly up to date with the law. In the field of liquor licensing alone, if this current bill is enacted it will be the fourth piece of major legislation since September 2009, and when one couples the fact that there are some 40 plus pieces of subordinate legislation affecting the liquor licensing regime, it is surely time that some codification of licensing law took place. As we all know, “ignorance of the law is no defence”, but in order for that maxim to prevail, surely the law must be easily accessible to all.

In the field of licensing such accessibility is becoming ever more distant.