In the wood shed something stirred…

For what seems like an eternity, licensing reform has seemed to be in a state of semi-permanent hibernation. Lest you start shouting, bear with me. Yes, the licensed trade needs more regulation like we needed COVID-19, but if our legislative garden were rosy I would not be writing this. The state of Scottish licensing law is a mess.

We have been telling the Government this for many years. The reaction would strike unaffected parties (or non-stakeholders, as I believe they are called these days) as comical. I have no idea whether the creation of Sir Humphrey Appleby in Yes, Minister was imitation, parody, or both, but he seems to have become the training manual for a significant number of people in the Scottish Government. Being told ad nauseam that the minister was aware of the problems was as insulting to one of Scotland’s most important sectors as it was frustrating to those attempting to improve matters.

But suddenly we hear there is a new kid in town. One who seems prepared to listen and, more importantly, to act. It is probably fair to say that those of us who work with the Law Society of Scotland to try to bring about change had all but given up. (I must stress that the views I express are personal.) The good news is that there are signs of a sea change. Sources close to the Government suggest that licensing may be back on the agenda. Let us, in no particular order, refresh our memories of what might need attention. (There is of course bad news, but I’ll leave that to the end.)

Grievance list

Remember s 142? The “guidance” which sparked a conflagration of litigation; the static, out of date document whose revisal was begun a couple of years ago. Just possibly, this may eventually see the light of day. Now, I can’t get excited about this, but there may be more. It is pretty appalling when in Scotland we have to work around ill conceived legislation, and the system would grind to a halt but for the pragmatic approach of clerks and their Nelson eyed view of the flaws.

For 15 years we have had a ludicrous transfer system, predicated on the fiction that an application ought normally to be instigated by the outgoing licensee. Five years ago we had an attempt to improve this. That contained one fatal error. If the outgoing licensee fails to respond to a request to consent, fine. But if they say no, even though they might have been evicted or have no legal right to occupy the premises, then what?

A complete impasse. Lawyers pointed this out. We were ignored. Then the insolvency practitioners pointed it out, and the matter was left in limbo – for five years, when a tweak in the drafting could have resolved it in five minutes.

Occasional licences also need to be sorted. There are too many anomalies about the frequency with which some seem to be able to obtain them; and the fees they generate fail to cover the costs. Unless something is done fairly soon, the five yearly cycle of personal licence renewal will be upon us once again. (As an aside, can anyone point me to any other trade whose members are required to resit a test with such frequency?) It would offend our intelligence less if the clear anomaly with regard to wholesalers and minimum unit pricing were to be resolved. Thus far we have had Government papers which are legally inaccurate, glossing over badly drafted legislation. It must be remembered that exactly the same tactic was used in the original s 142 guidance (still with us), regarding the licensing of shops on garage forecourts.

Small beer, though

There is of course, more. We all know that. And at last, it seemed, there was someone in place who might listen. You will note the tense, seemed. The first damper is that next year is an election year in Scotland. The chances of action before then were always slim, even for tinkering let alone the full consolidation which is desperately required. And our new friend has been taken from us by COVID-19. No, not dead, but seconded to a more important role dealing with this. And while writing this little rant, and considering the dreadful problems facing the licensed trade, I am forced to concede that, by comparison, these issues represent a very small hill of beans. When the tide of this virus subsides, I am genuinely fearful for the state of the licensed trade it will leave behind.

For briefings on the licensing provisions of the Coronavirus (Scotland) Act 2020, and also the planning provisions, see the online articles published with this edition.