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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
13. SCHEDULE 1 TO THE 1982 ACT
This part of the Act contains provisions relating to the general system (i.e. for all activities except sex shops for which Schedule 2 applies - see Chapter 12) and covers matters such as applications, objections and representations, temporary licences, notification of outcome, variation and suspension, fees, obtaining reasons for decisions and appeals.
13.1 In reviewing the provisions of Paragraph 1(2) of Schedule 1, which stipulate the information which must be included on any licence application form, the Task Group considered whether the mandatory information specified should be extended to include 'date of birth' and 'place of birth'. We recognise that such information can be helpful to the police in carrying out criminal background checks. Respondents to our consultation were almost unanimously in favour of such a change. Additionally it was suggested that a number of other mandatory details should be added to those currently required on an application form, for example, the DVLA details of any vehicles related to the application or the National Insurance number of the applicant. However, we concluded that other than date and place of birth a compelling case had not been made for any further additions to the information mandatorily required on an application form, albeit that licensing authorities could use their discretionary powers contained at Paragraph 1(2)(e) to obtain such other details as they considered necessary.
Recommendation
The Task Group recommend that 'date of birth' and 'place of birth' are added to the list of details that are mandatorily required on a licence application form.
13.2 We also considered whether there was any requirement to change the current provisions contained at Paragraph 2 of Schedule 1 regarding the notification and advertising of licence applications. Some respondents to our consultation paper were of the opinion that a 'neighbour notification' system should be introduced for premises based licences, along the lines of that contained in the Licensing (Scotland) Act 1976. However it is already open to licensing authorities to introduce a system for notifying community councils, local councillors etc. if they considered it appropriate. Consequently, we took the view that it would be inappropriate to introduce a statutory duty to do so, as this would result in additional bureaucracy which, depending on the nature of the application, may be entirely unwarranted. Furthermore, that licensing authorities were already empowered to determine those type of licence applications which should be advertised.
Conclusion
The Task Group concluded that the discretion currently available to licensing authorities to determine the level of notification and advertising of applications should remain.
13.3 During the consultation process, we tested our emerging conclusion that the period allowed for representations to be made on any application for the grant or renewal of a licence should be extended from 21 days to 28 days. Whilst 21 days usually proves sufficient, there are instances in which it can create difficulties. For example, sometimes by the time the police receive an application form from the licensing authority they have much less than 21 days to respond. Consequently we proposed that an additional 7 days would ease such problems considerably. The proposal was supported by a majority of respondents.
Recommendation
The Task Group recommend that the time allowed for making representations on any application for the grant or renewal of a licence, as provided for at Paragraph 3(1)(e) of Schedule 1, should be extended from 21 to 28 days.
13.4 At present, a licensing authority may, before making a decision on an application for the grant or renewal of a licence, give the applicant, and anyone who has made representations, the opportunity to attend a hearing. We proposed that Paragraph 4(2) of Schedule 1 should be amended to increase the period of notice given for a hearing on a licence application from 7 to 14 days. The rationale for this being that 14 days was a more appropriate time scale to allow a person to prepare his case before a hearing, especially if there were a large number of objections to consider. The majority of respondents to the consultation paper favoured such a change.
Recommendation
The Task Group recommend that the period of notice which licensing authorities must give for attendance at a hearing, as provided for at Paragraph 4(2) of Schedule 1, should be increased from 7 days to 14 days.
13.5 The Task Group supported the recommendation in COSLA's report that the period of notification required before a suspension hearing can take place should be reduced from 21 days to 14 days. We considered that 21 days was perhaps an excessively long time, and a reduction to 14 days would be in line with the proposed 14-day period of notification required for hearings under paragraph 13.4 above.
Recommendation
The Task Group recommend that the minimum period of notice which must be given before a suspension hearing can take place, as specified at Paragraph 11(8) of Schedule 1, should be reduced from 21 days to 14 days.
13.6 Throughout our initial consideration of the Review we were acutely aware that there was widespread concern over the wide variation in licensing fees charged by different licensing authorities. Information supplied by licensing authorities confirmed that there are indeed considerable differences in the licensing fees charged by local authorities. This is not altogether surprising, as the provisions of the Act allow a licensing authority to vary fees between activities as they think fit, so long as the total amount collected is sufficient to meet their expenses for all activities (except taxis and private hire cars - see Section 12 of the 1982 Act and sex shops - see Schedule 2 paragraph 18). Even allowing for this, the Task Group considered that the variation in fees from one licensing authority to another were frustrating for businesses, especially those which operate in more than one authority. Consequently, in our consultation paper, we proposed that COSLA undertake a review of licensing fees with a view to producing guidance on the setting of such fees for authorities. This was supported by a majority of local authorities, and by various trade groups. However, following consideration of the responses, we concluded that the guidance should more appropriately be drawn up by one of the professional societies which have an interest in licensing matters, i.e. SOLAR.
Recommendation
The Task Group recommend that a review of all licence fees charged by licensing authorities under the 1982 Act be undertaken by SOLAR with a view to guidance being issued in an attempt to reduce the variance in the level of fees charged.
13.7 The Task Group considered the current timescales for the procedures for a licensing authority notifying an applicant of the outcome of an application, for the recipient to obtain reasons for that decision from the licensing authority and for the appeals process. Under the current system, a licensing authority must notify the applicant (as well as the chief constable, objectors and where premises are involved the fire authority) of its decision on whether or not to grant a licence within 7 days of it being taken. The applicant then has 28 days from the date the decision was taken to request a written statement of reasons from the licensing authority which has 10 days to comply with that request. COSLA proposed a revised timetable in their Report which proposed that the time period for applicants to request reasons should be reduced from 28 days to 7 days and the time period within which a licensing authority must provide the written statement of reasons should be increased from 10 days to 14 days. We considered that a reduction in the period available for requesting reasons from 28 days to 7 days was unreasonable, given that the applicant may be on holiday at the time the decision is taken. We concluded that the period for requesting reasons be reduced to 21 days without adversely affecting the applicant. The Task Group did not believe there were any grounds to extend the current 10-day period which a licensing authority has to respond to any such request.
13.8 In proposing the above revised timescales, we considered whether there would be merit in increasing the period allowed for appeal to a sheriff from 28 to 42 days from the date the decision was taken, given that the current period could lapse before the applicant had received a written statement of reasons from the licensing authority. However, we were also aware that the Sheriff has discretion to hear appeals lodged outwith the 28-day period on good cause being shown. The Task Group were conscious that any extension of the period for appealing to the Sheriff would disadvantage successful applicants, as their licence cannot commence until the period allowed for an appeal to be lodged has expired. In view of this, we concluded that the 28-day period for lodging an appeal with the Sheriff should remain, with any appeals outwith this period being left to the Sheriff's discretion.
Recommendation
The Task Group recommend a slightly revised timescale for a licensing authority notifying the applicant (and others) of the outcome of a decision, for interested parties obtaining reasons for that decision and for any appeal to a sheriff. A licensing authority should continue to be required to notify an applicant (and others) within 7 days of any decision taken on whether to grant or renew a licence. Thereafter the applicant should have 21 days from the date of the decision to request reasons from the licensing authority, and the licensing authority should have 10 days to comply with this request. The applicant should continue to have 28 days from the date of decision to lodge an appeal with the Sheriff, subject to any discretion to hear appeals outwith this period.
13.9 The COSLA report also recommended an amendment to Paragraph 18 of Schedule 1 to prevent someone from applying for a licence when there are court proceedings relating to an existing licence of the same type still ongoing. The Task Group noted that in the case of an application for the grant or renewal of a licence, which had gone to the sheriff on appeal, paragraph 6 of Schedule 1 would normally prevent a similar application being made within one year of the licensing authority's decision. In the event of an appeal lasting longer than one year, the licensing authority would under Section 3 of the 1982 Act, have a further 6 months before a decision on any new application was required, and this can be extended by applying to a sheriff. We therefore took the view that in practice, it is unlikely that an application for a new licence could be made as a means of circumventing the legislation, and were not convinced of the need for change. The majority of those who responded to the Task Group's consultation agreed with this conclusion.
13.10 The Task Group considered, but did not support, a proposal resulting from the consultation process that the Act should be amended to prevent a temporary licence being sought while a permanent licence application is under appeal. Our view was that there may be occasions when it would be appropriate to issue a temporary licence while a permanent licence application is under appeal.
Conclusion
The Task Group concluded that the status quo should remain with regard to the submission of applications for licences while legal proceedings relating to another licence of the same type remain ongoing.
13.11 During the consultation process we sought feedback from licensing authorities on any problems they may be experiencing with 'fronting' - where an applicant intends to operate a business on behalf of someone who would not, themselves, be considered to be a fit and proper person to hold such a licence. In doing so we noted that the application form mandatorily requires details of the day-to-day manager of the business to be provided as well as the owner and that the provisions of Paragraph 5(3) of Schedule 1 already allow licensing authorities to refuse an application if they have grounds for believing that 'fronting' is being attempted. The majority of respondents were of the view that this was not an issue, and that any problems they had encountered lay in gathering sufficient evidence to prove in court that the person applying for the licence is 'fronting', rather than any fault in the existing legislation.
Conclusion
The Task Group did not consider any changes to the current legislation are required to combat the problem of 'fronting'.
13.12 The Task Group considered a number of other issues which arose as a direct result of the consultation process. Notably, a proposal that the legislation should be amended to give licensing authorities discretion (depending on circumstances) to consider licence renewal applications received shortly after the expiry date to be considered as a renewal as opposed to an application for a new licence. The rationale for this being that there is provision for this in the Licensing (Scotland) Act 1976. The Task Group agreed, on the basis that there could be genuine reasons for an oversight, that it seemed unfair to prevent someone from trading, for what could be a fairly lengthy period, because of this. Consequently, we considered the principle should be extended to the 1982 Act and that the 28 days allowed in the 1976 Act would be an appropriate period to allow for this. However, we considered that in such instances the licence could not be backdated to cover the period for which the applicant was unlicensed as this could have potential implications with regard to insurance. We also recognised that it is open to licensing authorities, as best practice, to issue reminder letters before a licence expires and to enquire about failures to renew a licence if it so wishes, but stopped short of recommending that there should be a statutory requirement for them to do so.
Recommendation
The Task Group recommend that the Act be amended to allow licensing authorities to consider licence renewal applications received after the expiry date as renewals rather than applications for a new licence for up to 28 days after the expiry of the previous licence, subject to them being satisfied that due cause has been shown.
13.13 The Task Group also received a representation indicating that a licensing authority was concerned that fire authorities were not routinely inspecting premises in their area to ensure that they meet fire safety standards. Paragraph 2(1) of Schedule 1 states that a licensing authority shall send a copy of any licence application they receive to the chief constable and, where premises are involved, to the fire authority. We raised these concerns with HM Inspectorate of Fire Services. The Inspectorate took the view that the intent of Schedule 1 is to ensure that firemasters receive copies of licence applications to enable them to object if they feel it appropriate to do so. This provision serves to notify fire brigades of the possible commencement or continuation of licensable activities, allowing them to review the level of risk, without imposing unnecessary administrative burdens in relation to what may prove to be premises of relatively low risk. It was noted that local practices over the years may have led licensing authorities to expect a response from the fire authorities to the majority of premises-based licence applications. However fire authorities are free to determine their own priorities in terms of fire safety activity and will increasingly tend to use the strengthened powers now available to them under fire safety legislation to ensure adequate protection to employees and members of staff. The Task Group were content that the existing provisions provide adequate protection in terms of fire safety.
Conclusion
The Task Group did not consider that any changes are required to the existing procedures for fire authorities in relation to their consideration of premises-based licensing applications.
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