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Licensing Law Update by Maclay Murray & Spens LLP

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Licensing Law Update by Maclay Murray & Spens LLP

January 19
12:11 2015

Natasha Grant MMSScotland’s licensed trade has faced a series of challenges in recent years. Natasha Grant, a lawyer in the Commercial Dispute Resolution team at Maclay Murray & Spens LLP and a member of the firm’s Food and Drink team, sets out some of the further changes on the horizon.

 

 

What have been the main drivers of change?

A perfect storm of regulatory and market changes have combined to create some of the most testing times witnessed by the Scottish licensed hospitality sector in living memory. The reverberations of the smoking ban of 2006; the property downturn of 2008; a new licensing regime in 2009 introduced by the Licensing (Scotland) Act 2005, coupled with reduced consumer spending and the recent tightening of drink driving laws, will continue to be felt for years to come.

What are the main changes to licensing legislation and policy?

As a result of the Scottish Government’s strategy to tackle alcohol misuse, the industry has seen numerous amendments to licensing legislation and policy. Since the Licensing (Scotland) Act 2005, which signalled a clear divergence in policy from the rest of the UK, numerous amendments and regulations have been introduced. Some of these changes include:

  • An extension of vicarious liability of premises licence holders for staff members, in circumstances where the licence holder has no knowledge of an offence taking place (The Criminal Justice and Licensing (Scotland) Act 2010, introduced December 2010);
  • Existing restrictions on on-sales being extended to off-sales, preventing multi-pack pricing, variation of pricing within 72 hours, and BOGOF promotions (The Alcohol etc (Scotland) Act 2010, introduced 1 October 2011);
  • A renewed emphasis on over-provision and the alcohol ‘access debate’;
  • Widely debated restrictions on price promotions, including the introduction of minimum unit pricing (The Alcohol (Minimum Pricing) (Scotland) Act 2012), which is still to be implemented.

What has been the industry’s response?

Understandably, the reforms have faced significant opposition from the drinks and hospitality industries, not just due to the potential impact on profit margins but also as a result of the increasing pressure on businesses to seek specialist advice to comply with the law.

Even long-standing statutory obligations are posing problems, like the recent episode when thousands of personal licence holders had their licences revoked as a result of failing to meet ‘refresher’ training deadlines, as required by Section 87(3) of the Licensing (Scotland) Act 2005.

Although the full fallout from this is yet to be seen, it’s clear that the current licensing regime has become a minefield for businesses and those advising them.

Will the current regime be changed?

Despite calls for an overhaul, the Scottish Government concluded that the current licensing regime system could instead be improved by introducing further amendments to the Licensing (Scotland) Act 2005, by way of the Air Weapons and Licensing (Scotland) Bill in May 2014. The bill, which is currently being considered by Parliament, forms part of the Government’s strategy to ‘reserve public order and safety, reduce crime and advance public health’, and includes the following key proposals:

  • The introduction of a ‘fit and proper’ requirement for licence holders;
  • Amendment of the fifth licensing objective relating to the protection of children to include ‘young persons’;
  • Criminalisation of the supply of alcohol to children and young people;
  • Provision for extension of licensing board overprovision policies;
  • Provision for licensing boards to consider spent convictions as part of their decision-making process;
  • Removal of the five-year prohibition on reapplying for a personal licence; and
  • A new obligation on licensing boards to determine applications within nine months of lodging.

What are the timescales?

The proposals are expected to come into force later this year, or by early 2016. Despite some welcome changes – the removal of the prohibition on reapplying for personal licences being one – the bill has come under criticism for failing to address long-standing issues such as the transfer of premises licences.

How will this impact licensees?

As the Government maintains its focus on licensing reform, with licensing practitioners continuing to raise concerns over the existing regime, the message to operators of licensed premises is to anticipate further changes and to remain vigilant in order to comply with new laws and regulations in the coming year.

For more information on any legal matters concerning your business, visit www.mms.co.uk or call 0330 222 0050.

 

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Catering Scotland

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