Licensing Armageddon – again?

If you are among the handful of specialists in this area, you will be all too aware of the impending doom. If, however, you do only a little licensing work, or have people in your firm who do, then read this and act quickly.

Anyone whose personal licence was obtained at the outset of the new regime will be looking at an expiry date of 31 August 2019. Applications for renewals must be made during a period of nine months beginning 12 months before the expiry date, i.e. between 31 August 2018 and 31 May 2019. It might be expected, therefore, that the early birds will have their applications in? I would be surprised if boards have more than a handful. Why? Because the precise meaning of the retraining provisions of the 2005 Act is unclear.

On one interpretation, a full licensing qualification must be done again, and a certificate accompany the renewal application. On another view, only a shorter refresher course need be undertaken, with the applicant having three months after the expiry date of the licence to submit that licensing qualification, provided the renewal application is timeously lodged. A third view is that the hapless licensee might require to do both. Apparently absurd, but it is a credible interpretation of the legislation.

Staying legal?

This anomaly has been flagged for well over a year. Shamefully, the Scottish Government is sitting on its hands as the trade faces a very serious problem. On 6 August (less than a month before applications could be lodged), it issued guidance of a sort. You can find it at bit.ly/2NMJJQC – it suggests that only the refresher training course is required; however, it insists that the qualification must be lodged with the application. It is hard to reconcile this with the clear terms of s 87(1), which allow for the training certificate to be lodged up to three months after the expiry date.

Confusingly, the Government has now prepared a new paper. It will become available after the deadline for this article. Astonishingly, this suggests that, for the purposes of renewal of a personal licence, a refresher training certificate, whenever obtained, would suffice. This is completely at odds with s 87, which requires refresher training to be carried out in each subsequent period of five years during which the licence has effect. This has been met with incredulity. Yet again, this Government seems to think that it can override the terms of statute with ambiguous practice notes and “guidance”.

Assuming we manage to crack the training code, let us turn to the practicalities. Estimates of the number of licences due for renewal by 31 August next year range from 40,000 down to “only” 24,000. All licensing boards have suffered from local authority cutbacks. To expect them to process anywhere between 2,700 and 4,400 applications a month would be ambitious enough, were this an average number; however, because of the uncertainties, we have started with a mere trickle. This will inevitably become a flood.

And let us say you lodge your application in time – on 30 May next, for example, but the board hasn’t processed it by 31 August, what then? The simple answer is that it will expire. There is no provision in the Act that a licence will remain in force. This is in contrast to the Civic Government (Scotland) Act 1982, which provides for a licence to continue in force if an application for renewal is made before its expiry. If the licensee is premises manager named in a premises licence, then that licence itself is at risk.

Nightmare scenario

At some stage, all applications for personal licences will be affected by the new immigration regulations, which will require clerks to be satisfied that the applicant has the right to work in the UK. That is a reserved matter. The Scottish Government therefore has no control over when these regulations come into force. Heaven help us if they are implemented in the next 12 months.

Similar issues were faced five years ago when refresher training certificates had to be provided. This problem is far more serious. Thus far, the powers that be have set a fee for an application (£50). They have issued a communication paper that may be wrong in law. Aside from that, despite repeated warnings, they are sleepwalking into a nightmare of their own making that may have profound consequences for one of Scotland’s most important industries. Implore your clients to be vigilant to avoid being caught in the last-minute rush.