05 February 2014

Ahead of a draft Licensing Bill, the Scottish Government has published responses to their consultation on Further Options for Alcohol Licensing, which closed on 21 March 2013.

The consultation set out a number of proposals aimed at improving the effectiveness of the Licensing Regime and strengthening the powers of both the Licensing Boards and the Police. In addition to proposals to clamp down on a legal loophole enabling adults to supply alcohol to under 18’s, and proposals to allow the Police and Licensing Boards to impose restrictions where disorder is likely to occur, one of the most significant proposals within the consultation is to reintroduce the ‘fit and proper’ person test for those applying for a licence.

The previous regime under the Licensing (Scotland) Act 1976 included a fit and proper test but this was not incorporated into the Licensing (Scotland) Act 2005, which instead imposed other tests such as notification to the Chief Constable who can advise on whether the applicant has previously been convicted of any relevant offence.

The responses to the consultation reveal that over two thirds of those who responded were in favour of enabling a Board to consider whether an applicant is a fit and proper person. Some of the reasons highlighted include:

• A perception that it will provide a broader and more detailed picture to the Licensing Board in determining an application.
• That an increased use of fiscal fines, fixed penalties and warnings has meant that there are a growing number of cases reported to the procurator fiscal were no criminal case is taken, resulting in claims that consideration of relevant offences alone is insufficient.
• A ‘fit and proper’ person test might allow Boards to consider a wider range of information such as police intelligence and therefore afford them a greater capacity to tackle crime, particularly serious organised crime.

In contrast the main concern raised by the respondents about the proposal, interestingly by both those in favour and those against, was that the test may give Licensing Boards too much power and may lead them to refuse an application based upon poor quality evidence, with some respondents suggesting that such instances under the 1976 Act was a reason why the decision was taken to remove it from the legislation.

In an attempt to limit the discretion of a Licensing Board a further proposal in the consultation seeks to provide a definition of fit and proper. Two-thirds of respondents felt there should be a definition with the most commonly received comment being that the definition should include previous convictions. Further comments suggested any definition should include police intelligence, alternatives to prosecution and non-court disposals, and a premises’ history such as reviews and complaints.

But again a concern highlighted by those opposed to a definition suggests that defining the test runs the risk of constraining the issues the Boards could consider and potentially ruling out new concerns. Experience from other regimes demonstrates that there is sufficient case law to guide decision-making so that there is no need to further define it the test.

Although we will have to wait for the draft Bill to see the final version of the test, a Scottish Government spokeswoman was quoted in the Scottish Licensed Trade News as stating that “whatever the final form and detail of these provisions they will build on the Licensing (Scotland) Act 2005 rather than simply being a reintroduction of relevant provisions in the Licensing (Scotland) Act 1976” (September 2013).

If you require further information about this case, please do not hesitate to contact:

Nicolas McBride
Partner
E: nmb@bto.co.uk
T: 0141 221 8012