COVID-19: the licensing response

Another momentous week in the world, and of course the world of licensing. The Coronavirus (Scotland) Bill was considered by the Scottish Parliament on Wednesday 1 April 2020, with all three stages of its passage being passed within the day. Royal Assent was given on Monday 6 April, and the Coronavirus (Scotland) Act 2020 came into force from midnight following.

In its letter to licensing stakeholders, the Scottish Government confirmed its desire “to protect the interests of those serving our communities during these difficult times. Delivery of essential services in relation to the sale of food and drink is critical”; and that “the overall intent of the proposals is to minimise the risk of any person or business losing their current rights within the licensing regimes due to no fault of their own during the coronavirus outbreak”.

These statements will no doubt be well received by the trade, and of course all practitioners working with it to try to provide solutions to the current, very real difficulties. We are grateful to the Scottish Government for acting so quickly.

Licensing overview

The Act itself provides a definition of “coronavirus” as meaning “severe acute respiratory syndrome coronavirus 2 (SARS-CoV-2)” (s 1).

It makes amendments to current legislation on the following: eviction from dwellinghouses; protection for debtors; children and vulnerable adults; justice; alcohol licensing; the functioning of public bodies; and other measures in response to coronavirus.

In this note, we will concentrate on key changes to the Licensing (Scotland) Act 2005 and the Civic Government (Scotland) Act 1982. In essence, the Act seeks to build in discretion and flexibility to systems which are extremely deadline and date driven, often with little or no scope for missing those key dates. Practitioners, statutory representatives, supporters and objectors are well versed in operating within these tight timescales in usual course. But of course, things are currently far from “usual”, and we have all been reliant on the pragmatism of clerks and depute clerks to date, for which we are hugely grateful. Again, referring to the letter to stakeholders, that reliance has been recognised: “The Scottish Government is sure independent licensing authorities will be approaching the current situation pragmatically, but we understand that they need help to do that in terms of discretion under licensing law and we consider this Bill will help appropriate steps to be taken to protect the rights of licence holders.”

Licensing (Scotland) Act 2005

Schedule 5 to the Act (introduced by s 6) relates to alcohol licensing, and makes key amendments to the 2005 Act, summarised as follows:

Hearings. An amendment to s 133, to insert new subss (3A)-(3D), confirms that where a hearing cannot be held in person due to coronavirus, before reaching a decision on an application a licensing board must give any person who would have been heard at a hearing, an opportunity to be so heard by: phone, written communication (including electronic communication) or videoconferencing. Some boards have already moved to online methods, and we expect to see this across the country over the next month. 

Premises licences “ceasing to have effect”. The insertion of s 28(5A) confirms that where a licensed premises ceases trading for a temporary period for a reason relating to coronavirus, the premises do not cease to be used for the sale of alcohol for the purposes of subs (5)(b). This insertion removes any question mark over whether a licence would “cease to have effect” in these circumstances. 

Transfers under s 34. Importantly, new subs (1A) relieves the “within 28 days” rule: a board can accept an application for transfer by one of the parties specified in s 34 after the 28 day period, if the reason for lateness relates to coronavirus. This relaxation will no doubt be hugely helpful as time moves on. 

Period of effect of a provisional premises licence. On the first application to extend a provisional premises licence before the expiry of the provisional period, the licensing board must extend the provisional period by six months if the board is satisfied that completion of the construction or conversion of the premises is delayed, and the reason for the delay is a reason relating to coronavirus. With construction work all but ceased in Scotland due to the coronavirus, again this provision will be heavily relied on to preserve these valuable provisional premises licences. 

Dismissal, death etc of premises manager. A premises licence holder now has 28 days, rather than seven, to intimate the change in premises manager to the licensing board, and three months, rather than six weeks, within which to nominate and intimate a new premises manager. Importantly, that period of three months can be extended again by the licensing board, if a request is made and the reason relates to coronavirus.

Notification of extended hours applications to police, and licensing standards officer (“LSO”). The usual 10 day period for objection is made more flexible. If the Police or LSO cannot report within that period, they must let the licensing board know within the 10 days, and the board can take account of their otherwise late objections.

Food in relation to premises licences. Where the premises licence is silent on the point, “take away” and deliveries of food are accepted as being implied into the operating plan if food is being sold on the premises. We have already advised many clients in relation to this point and it is very helpful to have this confirmed.

Personal licences. Where an application for renewal has been made, but not determined, the period of effect of the personal licence is extended by six months from the date of expiry of the licence. The period within which to apply for renewal of a personal licence is extended to nine months, beginning 12 months prior to expiry, and again if an applicant can show that for reasons relating to coronavirus, they could not apply within that period, the licensing board has flexibility to move the date on which the period ends to the day before the expiry date of the licence. 

Personal licence holder’s duty to undertake training. The licensing board can now relieve failures to comply with five year refresher training due to coronavirus and can extend the period to undertake training. That period can be extended more than once if needed. 

Licensing boards' annual functions/financial reports. If due to coronavirus, the licensing board cannot prepare and publish its annual reports, it must publish confirmation of that position not later than three months after the financial year end, provide an estimate when it will publish the reports, and prepare and publish the reports not later than nine months after the end of the financial year. 

Section 135 discretion. The licensing boards have extra power to relieve their own, applicants' or other parties' procedural failures due to excusable cause relating to coronavirus, as well as applicants' (or other parties') failures due to mistake, oversight or other excusable cause where it considers it appropriate. 

Quorum of board meetings. Committees established by the board and consisting of not less than three members (rather than five) can now exercise functions on behalf of the board. Again, this will be very important when it comes to keeping business flowing through the boards and allowing them to “meet” with fewer board members. 

Notifications by the chief constable. Where the chief constable cannot provide a report on applications, or requests for antisocial behaviour reports, within the usual 21 day time frame, he must confirm his position and outline when he expects to respond. We have had the opposite experience to date. In urgent applications, we need the police to respond very quickly. To date, we have only had positive responses to our requests for speedy assistance from reporting agencies. Understandably, there will come a point where delay will creep in due to outside pressures relating to coronavirus. 

Civic (Government) Scotland Act 1982

Moving now to the changes to the 1982 Act, which covers the likes of street trading, taxis, public entertainment and late hours catering, s 7 and sched 6 provide for changes to the application time limits, hearing procedures and ancillary processes because of issues arising from the coronavirus emergency.

Time limits. Section 3 of the 1982 Act has been amended to prolong the time that local authorities have to consider applications. The cumulative effect is to give them 12 months to determine the application before it is deemed granted. This 12 months can still be extended by application to the sheriff court.

Schedule 1, para 8(5A) sets out saving provisions for late applications for renewals. The time limits have been extended to allow a local authority to accept a late renewal application for up to three months after a licence expires, on cause shown. One assumes reasons relating to coronavirus will be deemed good cause.

The duty on a licence holder in sched 1, para 13(2)(a) to produce a licence has had the time limit doubled from seven days to 14 days. Production of the licence can be mandated in response to a decision by the local authority to suspend or revoke the licence. If the more generous time limit is broken and that is due to the coronavirus, the licence must be produced as soon as practicable.

Under sched 1, para 17 a licensing authority now has 15 days as opposed to 10 days to produce the reasons for a decision. If the more generous time limit is broken due to coronavirus the decision must be transmitted as soon as is practicable. 

Appeal time limits do not take account of delays in the issuing of reasons, therefore one cannot await the licensing authority’s reasons if significantly delayed. 

Procedure. Dealing with variations to civic licences, para 10 of sched 1 has been amended to confirm that relevant parties need not be invited “to attend” but rather must be invited to be heard (i.e. by means other than personal attendance – see below).

Hearings. Dispensing with the need for face to face hearings during the enforced social distancing has been addressed through new paras 18B-18F of sched 1, which stipulate that if a person who would normally be afforded the opportunity to attend a hearing and cannot do so in person, arrangements are to made to do so by –

(a) telephone,

(b) written representations, including by means of an electronic communication, or

(c) videoconference, if the authority has videoconference facilities.

Importantly, the method is at the discretion of the person entitled to be heard. This may need managing by local authorities, because multiple parties can be entitled to be heard and those parties may have differing preferences on the medium to state their case.

Hearings will be deemed to take place on the day written submissions etc are considered (not the date they are lodged), and this date of determination will form the basis of calculating any further key dates for notification of decisions and/or appeals etc.

Advertising. Where an applicant cannot display a public site notice the local authority can, in lieu of a newspaper advert, advertise the application on their website.

Licence holder convictions. The 1982 Act, s 7 imposes requirements on the clerks in sheriff courts to transmit extracts of convictions of licence holders to the local authority. The time limit for transmission has been amended to provide relief if the delay is because of a reason relating to coronavirus. In that case, it must be transmitted as soon as reasonably practicable.

And finally:

Licensing of skin piercing and tattooing. The Act simply tidies up the amendments with reference to the Civic Government (Scotland) Act 1982 (Licensing of Skin Piercing and Tattooing) Order 2006 (SSI 2006/43), but has no practical effect. The overall time limit remains 15 months for determination.

Sex shops. In light of the fact that sex shops have their own bespoke schedule covering procedures for their applications, special amendments have been made to sched 2 to the 1982 Act.

Conclusion 

We are all having to adapt quickly to new working practices and ways of doing things, time always being of the essence. This new Act allows flexibility and positive changes to both of these licensing regimes that will allow applicants, practitioners, reporting agencies and the licensing boards to move forward. While we will not be “business as usual” for some time, this will allow some continuity and we hope, unlock some current issues.