Licensing: Remote board hearings – the future?

For the majority of us, until recently, a Zoom was a rocket shaped ice lolly and a Teams meeting was just that – a meeting of your team in your office. COVID-19 changed all of this by catapulting licensing lawyers and licensing boards and their clerks into the modern age with the introduction of remote hearings.

In effect from 7 April, the Coronavirus (Scotland) Act 2020 provides that where a hearing cannot be conducted in person due to a reason relating to coronavirus, the licensing board must give any person who would have been given the opportunity to be heard at that hearing the chance to be heard instead by phone, written representation or videoconference. This has allowed licensing business to continue despite the nationwide lockdown and ongoing restrictions.

The majority of licensing boards very quickly adapted and went online. As with all innovations, teething problems were inevitable; but council staff across the country should be commended for their efforts in putting the technology in place. Some boards prefer telephone hearings to video, and written submissions have been encouraged by others, particularly in non-contentious applications. Where video is used, practitioners have been obliged to familiarise themselves with the quirks of various platforms: Zoom, Microsoft Teams and WebEx.

The pandemic forced these measures to be introduced under pressure, but it’s clear that conducting a licensing board hearing remotely has many advantages. It enables truly remote working, with agents able to present applications from their homes, and dramatically reduces the amount of cross country travel. It is now possible to “appear” in a review in Inverness at 10am and a new licence application in Dumfries at 2pm. It also benefits applicants who may have struggled to find local representation and, where the application is non-contentious, it makes for very succinct hearings.

The downsides

However, remote hearings are not without challenges. In the context of criminal court proceedings, Sheriff Napier in Aberdeen recently refused to deal with any more cases via video link and branded the technology being used “appalling”. The technology there was in place to enable the accused to appear via video link, and a particularly poor connection meant the proceedings were interrupted by loud, distorted feedback. This is a stark reminder that IT is fallible. Can we always be certain that board members hear submissions in their entirety and that they haven’t missed a vital point? Where a board member fell asleep during review proceedings before the Aberdeen City Licensing Board in 2012, Sheriff Derek Pyle found on appeal that there were serious breaches of natural justice. Could board decisions be more liable to challenge on those grounds where technology is involved and the quality of that technology is in dispute?

On a personal level, one of the benefits of attending hearings is to gain knowledge of how boards approach certain applications, and also to engage with fellow agents, board staff, officials and clerks. This element is sadly missing, particularly where you are given an individual time slot for your Zoom meeting. Your client may also be on the call, but taking instructions on a material point with any degree of privacy can be tricky, especially where the virtual “mood music” suggests that trimming back an application may be the only means of getting it over the line. Advocacy by video link or phone involves very different techniques to face-to-face interaction, and “reading the room” can be far more challenging during online submissions particularly when you can’t see the body language of those you are seeking to persuade. Recently objectors to an application suggested that a remote hearing did not allow them a proper opportunity to participate meaningfully, a concern heightened by the absence of a right of appeal on their part, albeit they were invited to attend in line with the legislation.

Here to stay?

Astonishingly, some licensing boards have not yet convened a remote board meeting, meaning that they have not heard a single application in six months. In some cases they are refusing to accept applications for new licences entirely, as they don’t believe they can be processed remotely. That is clearly the exception rather than the rule. As time goes on it appears that remote hearings will be more than just a temporary fixture. Prior to lockdown, the Aberdeenshire board was already leading the way with the introduction of remote hearings. Although the Coronavirus (Scotland) Act specifically deals with remote hearings in light of the coronavirus pandemic, there would appear to be nothing to prevent licensing boards continuing to use alternative methods in the future.

The Journal welcomes Audrey Junner as our new regular contributor, and records our sincere thanks to Tom Johnston, who has now retired, for his long and loyal service in the role.