Licensing (Scotland) Act Consultation: Can we improve the processes?

The sale of alcohol and control of outlets has long been a hot topic and as such, alcohol licensing has been a leading policy issue for the Scottish Government over the past few years. Since the Licensing (Scotland) Act 2005 came into force, there have been a number of consultations and amendments to the law. Submissions from the most recent consultation, 'Further Options for Alcohol Licensing', which concluded in March 2013, are now with the Government for analysis before proposals are issued. Going by the title, the consultation has a wide remit and appears to have the bold ambition to improve all areas affected by alcohol licensing.

Controlling premises licences

Despite the consultation's seemingly wide remit, we can assume that its most publicised focus will be the creation of powers to control the way that premises licences are managed by licensing boards and Police Scotland. The debate here centres on the need to address social and health concerns about the sale of alcohol, while being mindful of the economic and social benefits of a successful industry, and the importance of leisure and tourism. Resolution perhaps lies in a mixture of control, education, co-operation and support for authorities, while sustaining the economic benefits - particularly in the leisure and tourism sector - that alcohol sales can bring to communities.

Licensing system administration

While understanding that these issues will be at the forefront of the media debate, the other element to address is the administration of the licensing system. The 2005 Act has a number of flaws that affects its operations. This consultation presents the chance to correct elements that create difficulties, both for hard working licensing boards seeking to prioritise and process applications, and applicants.

At present, it is difficult for an applicant to know with any certainty when their application will be considered, as they go through numerous processes before finally being considered at the Board. First, the applicant is required to obtain S50 permissions and submit the papers. Once submitted, applications need to be processed before being advertised and called before the Board. There is no timetable for this and a high volume of applications can cause lengthy delays. The introduction of a realistic timetable would help keep applicants informed and create a more transparent system.

Trouble when transferring licences

Similarly, when seeking the transfer of a licence from one business to another, there is uncertainty as to timing, meaning that it could be completed earlier than the property transaction causing problems for both parties. If the transfer takes effect later than expected, the previous licence owner is left accountable, although all other interest in the business has been relinquished. If for any reason the deal fails, a party with no interest in the business can have responsibility. Control over the effective transfer' date would make the process smoother, avoiding anomalies.

These and many other operational irregularities within the Licensing (Scotland) Act 2005 could be addressed by increasing transparency and adding structure to the process.

For more information please contact Euan McSherry, Associate Partner at DWF.

This information is intended as a general discussion surrounding the topics covered and is for guidance purposes only. It does not constitute legal advice and should not be regarded as a substitute for taking legal advice. DWF is not responsible for any activity undertaken based on this information.

Euan McSherry

Partner - Head of Real Estate Litigation (Scotland)

I provide litigation advice to clients in the retail, food and banking sectors. I am the first Scottish lawyer to be listed on the Register of RICS Accredited Mediators.