HM Insights

New Licensing (Scotland) Bill unveiled

Following Further Options for Alcohol Licensing last year, the Scottish Government introduced further amendments to the Licensing (Scotland) Act 2005 with the Air Weapons and Licensing (Scotland) Bill on 14th May 2014. Whilst the reforms around the new air weapons licensing regime, the so-called "Andrew's Law", after the death of toddler Andrew Morton in 2005, grabbed the headlines, the Bill contains some important proposed changes to alcohol licensing law in Scotland.

Fit and Proper Test

The Bill proposes that the licensing objective of "protecting children from harm" is amended to read "children and young persons" to rectify a shortcoming previously identified in the Act.

Of greater significant is the return of the "fit and proper person test" to the grounds of refusal for applications. The wording proposed is "that the Licensing Board consider, having regard to the licensing objectives, that the applicant is not a fit and proper person to be holder of a premises licence". This will be a ground of refusal for both applications for grant of a premises licence and for transfer of an existing premises licence. In addition, how unfit the holder of the premises licence becomes a ground for review of the premises licence.

The fitness test returns at the behest of ACPOS lobbying. To an extent, it is a known entity, having been a ground of refusal under the Licensing (Scotland) Act 1976 but the wording is different. In its new form, the test makes direct reference to the licensing objectives (as it should do given the objectives are the cornerstones of the 2005 Act) and therefore the extent to which previous case law on "fitness" is relevant remains to be seen. The risk with the fit and proper person test is that it can be seen as a catch all provision for objectors, particularly objections by the police. One fears that the days of objections containing undisclosed intelligence gathered prejudicial information will return, as the kitchen sink is thrown at the applicant who has no convictions for said alleged indiscretions.

When dealing with a review of premises licence taken on the ground of "fitness", the applicant for review may make reference to any "information on which the applicant's view" is relevant. If the width this provision was not of enough concern, it is proposed that if a Board uphold the grounds of review on a finding of unfitness, they must revoke the premises licence. There is, for example, no provision available for a suspension of licence whilst it is transferred to another holder. This draconian nature of this provision is compounded by the fact that section 40 of the Act, which allows the Board to reverse its own decision at review on a change of circumstances, is not amended – as such a decision by the Board to revoke in these circumstances cannot be reversed by the Board if, for example, a licence under appeal was transferred to a new holder.