Letter: board or committee?

With regard to the thought provoking and illuminating article, “Hostility enacted”, Journal, July 2016, 20, I offer the following as supportive comment rather than detraction.

Acknowledging that this is something that repeatedly occurs in print and in legal practice, there is an important distinction to be made between licensing boards and licensing/regulatory committees of Scottish local authorities. In this instance, as with the practical application of legislation, precision is important.

The licensing board is a separate statutory body constituted under the Licensing (Scotland) Act 2005, which deals specifically with liquor licensing. Each local authority establishes a licensing board in its area (or in each licensing division if the area is subdivided). The board also deals with applications pursuant to the Gambling Act 2005.

Licensing/regulatory committees (the names and exact functions vary between authorities) have a separate remit generally to deal with “civic” licensing matters in terms of the Civic Government (Scotland) Act 1982. These committees are constituted by each authority with functions as delegated. The “civic” licensing authority is explicitly not the remit of the licensing board. Civic licensing matters include taxis and private hire cars, public entertainment, market operators and late hours catering amongst others.

It does not assist the profession to perpetuate this lack of precision when there is a clear legal distinction to be drawn. From personal experience it is also commonplace for legal professionals to make this error.

On a separate note, and I make clear that I do not have the authors’ expertise in the new Immigration Act, as a former practitioner there are many real life examples of work situations on “licensed” premises (both liquor and civic) that are unsafe for and abusive of illegal immigrants, would be appalling to the general public and which could have been picked up earlier by a suitable system of statutory licensing checks, properly applied. Where licensable activities are used as a tool to conceal illegal immigration, including coercive control, it also thwarts the overarching priority of licensing legislation – mitigating risk to public safety.

Sarah Craig and Jennifer Ang reply:

We would like to thank Mr Connolly for responding to our article, the aim of which was to draw attention to the many areas of practice affected by the 2016 Act.

The Immigration Act 2016 contains a raft of measures, and we only covered some. [See also further article in the August issue – Editor.] We agree that the exploitative working situations migrants face can be appalling and unsafe and that abusive practices need to be addressed. We think the question whether this Act is approaching the issue appropriately is not straightforward, however. It is one that involves thinking about how to prevent such exploitation without sending those affected by it further underground. This question continues to be debated, and we do not pretend to answer it.

One of our aims was to draw attention to the lack of scrutiny which measures affecting areas usually regarded as devolved (including licensing) received during the Act’s passage through Parliament. We did this, first, because we think the measures deserve scrutiny even if they are difficult to address, and secondly in the hope that there may still be an opportunity for relevant experts to be consulted so they can influence their shape.