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A REPORT BY THE TASK GROUP SET UP TO REVIEW THE LICENSING PROVISIONS CONTAINED IN THE CIVIC GOVERNMENT (SCOTLAND) ACT 1982
1. PART ONE AND SECTION 9 OF PART TWO OF THE 1982 ACT
This chapter covers the general provisions at sections 1-9 of the Act relating to timescale for consideration of applications; rights of entry, inspection and search; offence provisions and the requirements placed on a licensing authority should it wish to introduce any optional licensing activity contained within the Act.
SECTION 3 - DISCHARGE OF FUNCTIONS BY LICENSING AUTHORITIES
1.1 The Task Group considered whether the current six-month period which licensing authorities are allowed to determine the outcome of a licence applications was excessive. However, we concluded that in the vast majority of cases licensing applications are determined well within this timescale, although there were occasions when the process did take up to the maximum period allowed. In opting for the status quo, we recognised that if the period was reduced there may be an increase in licensing authorities seeking extensions through the courts, which would be a misuse of court time. While licensing authorities should endeavour to deal with applications as quickly as possible, we did not consider there was any evidence which justified a reduction in the period allowed.
1.2 We also considered whether sub-section (2) provided a sheriff with the power to grant more than one extension to the 6-month period available to the licensing authority in considering a licence application or renewal. We concluded that, while the provisions did not explicitly provide for this, the fact that the sheriff had discretion to specify such further period as was considered appropriate, would allow the licensing authority to return to court as long as any application that was made fell within the 6-month period.
Conclusion
In the absence of any evidence that the current time limit for licensing authorities to process applications/renewals was proving problematic, and given our consultation demonstrated support for the status quo, the Task Group concluded that the 6-month timescale for reaching a decision should remain.
1.3 In accordance with the recommendation in COSLA's report, we considered whether any licence which is deemed to be granted unconditionally by the failure of the licensing authority to reach a decision within the 6-month period should continue. In doing so, we recognised that the COSLA report specifically recommended that in retaining the deemed grant, this should not be "unconditional" but instead standard conditions should apply. We supported the retention of the deemed grant to encourage licensing authorities to ensure that a decision was reached within the six-month period. However, we recognised that the effect of the current provisions was that in granting such "unconditional" licences, no conditions whatsoever could be attached to it. As a result other licence holders with conditions attached to their licence could be trading at a disadvantage. We did not initially support the COSLA recommendation that standard conditions should apply, not least because some licensing authorities do not have standard conditions in place. Consequently, the Task Group sought views on its initial findings that the deemed grant should remain but that the licensing authority should be empowered to attach whatever conditions it considered appropriate to any such licence. The majority of respondents supported the retention of the deemed grant with conditions attached, although there was a minority view that only standard conditions should be permitted as a means of penalty to licensing authorities who failed to deal with the licence application timeously. After further consideration, and bearing in mind that the majority of respondents favoured change to provide for conditions of licence to apply to a deemed grant, we concluded that applying standard conditions would be more appropriate in that it would act as an incentive to ensure that applications were processed quickly and efficiently.
Recommendation
The Task Group concluded that the deemed grant of licence in the event that a licensing authority does not process an application within the six-month time limit, or obtain an extension from the courts, should remain. However, for the reasons outlined above, we do not consider that this should remain unconditional and recommend that section 3 be amended to permit the application of standard conditions to any such licence. In making this recommendation we are alert to the fact that some licensing authorities do not currently have standard conditions in place and will require to take steps to draw these up if this recommendation is implemented.
SECTION 5 - RIGHTS OF ENTRY AND INSPECTION
1.4 Under the provisions of section 5(1) an authorised officer of the local authority, fire authority and a constable can enter and inspect licensed premises for the purposes set out in section 5(2). In its report, COSLA proposed that in the case of a constable this should be extended to include civilian police staff. The Task Group concluded that in the light of the increased involvement of civilian police staff with licensing duties such an extension was justified, and this was almost unanimously supported by those who responded to the consultation.
Recommendation
The Task Group recommend that the rights of entry and inspection in relation to constables at section 5(1) for the purposes set out at section 5(2) be extended to include civilian staff employed by the police under the provisions of section 9 of the Police (Scotland) Act 1967.
1.5 The merits of the COSLA recommendation that section 5(4) be extended to require licences to be displayed on premises, vehicles or vessels and where this is not practical to be carried at all times by the licensee or day-to-day manager was also considered. We noted that the existing provisions only require a licence to be produced within 5 days of being requested to do so by an appropriate officer. The Task Group concluded that, while licensing authorities already have discretionary powers to attach such a requirement through the licensing conditions, in the interests of public safety, it should perhaps be a mandatory requirement. However, we did not consider that it was necessary for all licence holders to display the actual licence (or a copy) and that in some cases the display of an identification badge issued by the licensing authority was an acceptable alternative. Consequently, we concluded that there would be merit in requiring all premises to display the licence (or a copy), for vehicles to display a licence and/or a plate and in the case of individuals licence holders, the requirement should be to either have the licence (or a copy) on their person or to display an identification badge, whatever condition of licence the licensing authority prefers.
1.6 There was near unanimous support for this proposal, with some respondents pressing for the offence provision at section 5(5) to apply to those who fail to comply with the new provision. The Task Group was receptive to punitive measures being introduced in this regard, but concluded that failure to comply would be more appropriately dealt with by the licensing authority through possible suspension or withdrawal of licence, as opposed to burdening the courts with possible breaches of licensing conditions. However, at the end of the day, if prosecution is the preferred option section 7(2) will provide for this to be dealt with through the courts.
Recommendation
The Task Group recommend that, in the interests of public safety, the legislation be amended to make it a mandatory condition of licence that the licence (or a copy) be displayed on premises, vehicles (or a plate) and vessels and where this is not practical for the licence to be carried at all times by the day-to-day manager. In the case of other activities we further recommend that individuals should be required to carry the licence (or a copy) on their person unless the licensing authority, under its discretionary powers, have made it a condition of licence that an identification badge be displayed or shown on demand.
SECTIONS 5, 6 AND 7 - OFFENCE PROVISIONS
1.7 In reviewing the offence provisions our initial view was that these, and the penalties attached, remained appropriate. The vast majority of respondents supported this view, although a few thought that maximum fines and disqualification periods should be increased, as well as perhaps allowing a prison sentence to be imposed, in order to provide a greater deterrent. Following further consideration of this matter we remained of the view that the offence provisions were adequate. Although it is not within our remit to review the fine levels, we concluded that it would be appropriate to raise with Ministers whether there is a need to undertake a general review of criteria for fines on the standard scale, and whether the fine levels themselves need to be reviewed.
Recommendation
The Task Group recommend that Ministers consider whether a general review of the criteria for fines on the standard scale needs to be undertaken and whether the level of fines themselves need to be reviewed.
SECTION 9 - APPLICATION OF SECTIONS 10-27 AND 38-44
1.8 In reviewing the provisions of section 9 we considered whether the current provisions which prevent licensing authorities from introducing an optional new licensing activity until 9 months after the necessary resolution was passed remained appropriate and sought views on the merits or otherwise of reducing this timescale. Responses were fairly evenly split between the status quo and a reduced period (6 months being the preferred option) with the remainder recommending that it should be left entirely at the discretion of licensing authorities. In conclusion, we opted for the status quo on the basis that it provides the trade with sufficient time to make the necessary changes to their business and for licensing authorities to process the supporting licence applications.
Conclusion
The Task Group concluded that the status quo should prevail i.e. the 9-month notice licensing authorities are required to give before an optional new licensing requirement is introduced in their area should remain.
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