April 2008

Legal News

April 2008

operational, Legal News, April 2008, COMMENTS

For many years Scotland’s approach to liquor and public entertainment licensing seemed more modern and up to date than England and Wales. True, the system was very different. For a start, there were a lot fewer premises. A major pub owning company might have 2,000 pubs, hotels or bars in England and Wales and by contrast only a hundred in Scotland spread fairly widely. The licensing legal system was also different. In Scotland, Local Authorities had always handled all aspects of licensing. Their Licensing Boards considered all applications. They met less frequently than either magistrates under our old licensing system or councils under our new one. Watching them in operation was a revelation, particularly to the outsider. Scotland banned smoking in licensed premises before either Wales or England. Thus when the country decided to reform its licensing laws, anyone would expect them to be ahead of the game once more and strive for simplification.
This doesn’t appear to be the case.

The first collection of operators who have applied for new licences report that it hasn’t been an easy process. I have heard stories of Licensing Boards requiring very complicated plans of licensed premises, in some cases specifying details that quite frankly aren’t appropriate for licensing purposes. Does a Licensing Board really need to know the thickness of each wall in order to consider the application? Does it really require a whole host of other information not specified by the regulations? It should not be forgotten that the vast majority of venues applying for new licences have been trading quite successfully under the old ones for some considerable time.

If the reports I’m hearing are true (and I shall know more next month when I go up to talk to Scottish licensing lawyers at a conference) then one thing makes Scotland very similar to England: the desire by Licensing Boards in Scotland and Local Authorities in England and Wales to try to include in the licence almost everything that could be relevant. One company we represented was obliged to accept a condition proposed by the Environmental Health Officer that dealt with the length of time that rubbish could be left outside the premises for collection. This was a laudable aim by the Local Authority to ensure the streets were kept clean. My client already had his own policy requiring all rubbish to be collected from the premises. We told this to the Environmental Health Officer and confidently expected them to withdraw the suggested condition. Not a bit of it. They insisted that it appeared on the licence and stated that if we didn’t accept it we would have to go to a hearing. My clients shrugged their shoulders and agreed to the condition being imposed. After all, it didn’t affect them one way or another, so why go to the expense of a hearing to explain all that?

It would make more sense for an Environmental Health Officer to ask for a review, or better still use that option only if powers of persuasion fail, when faced with a venue that doesn’t have a policy in place for rubbish and is causing a nuisance. The Licensing Act 2003 was intended to be a light touch piece of legislation, only imposing conditions where they are strictly necessary. In other words, licences should not be complicated, with conditions running to several pages. If there is a problem then conditions can be added at a later date.

Further confusion arises when the board asks for information to be put on the plan, but doesn’t specify whether the information is required by the regulations. It would be helpful if they differentiated this by words to the effect of: “Items shown on the plan, that are not required by the regulations, are shown for illustration purposes only. They can therefore be moved or changed without an application for variation.” We face this problem in England and Wales, where many Local Authorities require an application every time something on the plan moves.

The government is currently examining whether we can transfer Scotland’s training principles over to England and Wales. In Scotland, all bar staff are required to receive basic training, whether they’re part-time or full-time. The training can be done on site by an appropriate employee of the company concerned.

Finally, onto something entirely different. In a recent issue I wrote, slightly reluctantly, about ADZs and the Home Offices’ obsession with legislation. I concluded the article by stating that there was a chance that parliament will throw out the regulations. Well, for once, I’m pleased to say that parliament has come up trumps. They decided it was defectively drafted and sent it back to the Home Office. At present they’re saying they are going to persist but I, like almost everyone else, very much hope they will change their minds and not proceed.

Words: Jeremy Allen

From: April 2008 Issue

Subscribe to NIGHT magazine