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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
16. ENFORCEMENT
16.1 In considering all the licensing provisions contained in the 1982 Act, the Task Group were aware that effective enforcement of the licensing provisions is vital to the credibility of the licensing system. In view of this, the Task Group endorse the Enforcement Concordat, to which all local authorities in Scotland have signed up. The Enforcement Concordat sets out the principles and procedures of good enforcement by setting out what businesses and others can expect from the various enforcement agencies, including local authorities and the police. We support the Enforcement Concordat's aims of ensuring that enforcement is carried out in an equitable, practical and consistent manner. We also agree that a key role of enforcement officers is to help businesses and others to meet their legal obligations without unnecessary expense, while taking firm action against those that flout the law or act irresponsibly. Copies of the Enforcement Concordat can be obtained from the Improving Regulation in Scotland Unit within the Scottish Executive (Tel: 0141-242-5644) or online at http://www.scotland.gov.uk/about/ELLD/EI/00015242/Introduction.aspx .
16.2 The Task Group considered that the combination of the Enforcement Concordat, and the flexibility available within the existing legislative framework, provides local authorities and the police with sufficient powers and guidance to ensure effective enforcement. However, we were aware of concerns expressed about the lack of effective enforcement, and consequently sought views via the consultation on a number of measures to improve enforcement of the licensing provisions. These are covered below.
STATUTORY DUTY TO ENFORCE THE LICENSING PROVISIONS IN THE 1982 ACT
16.3 Many licensing authorities, for a variety of reasons, do not pro-actively seek out unlicensed premises and this type of breach usually only comes to their attention following a complaint, for example relating to noise late at night outside premises or following an incident occurring. There were mixed views on whether licensing authorities should be proactive in this regard and whether the solution would be to place a statutory duty on them to appoint enforcement officers. However, we are of the view that it would not be appropriate to specify the number of enforcement officers a licensing authority have in place as local circumstances will vary considerably from one authority to another. Of course, licensing authorities that wish to adopt a more pro-active stance can already do so within the existing framework of the 1982 Act, albeit that this would result in higher costs being incurred.
16.4 The Task Group accepted that greater enforcement by local authorities could result in increased licensing fees given the requirement for licensing authorities to recover their costs. However, we considered that there are various steps that are open to local authorities wishing to minimise any increase in the costs of licences. Increased enforcement by local authorities need not necessarily involve recruiting new staff - existing staff such as trading standards officers and health and safety officers could take on a greater role in enforcing licensing legislation. The Task Group noted that one of the most common complaints from various trades in response to the consultation was that an absence of effective enforcement results in unfair competition from 'cowboy' unlicensed operators. Thus for the legitimate traders, the benefits of improved enforcement may outweigh any increases in the cost of licence fees. (See also the recommendation at paragraph 13.6 about the need for guidance on fee setting generally).
16.5 Notwithstanding this conclusion, in considering the issue of enforcement, the Task Group accepted that civic government licensing matters are a relatively low priority for the police and as such the duty to enforce the licensing system will inevitably fall upon the local authorities who administer it. With this in mind, we took the view that there would be merit in introducing a statutory obligation on licensing authorities to ensure that any licensing requirements which they have in place in their area are adequately enforced.
Recommendation
The Task Group concluded that it would be inappropriate to specify in legislation the number of enforcement officers licensing authorities should have in place, this rightly being left to local discretion as circumstances vary considerably between areas. However, we recommend that the legislation is amended to place a statutory obligation on licensing authorities to ensure that any licensing requirements they have in place are adequately enforced.
SETTING UP OF A LOCAL AUTHORITY CIVIC GOVERNMENT LICENSING ENFORCEMENT NETWORK
16.6 The Task Group sought views on the proposal that licensing authorities should be encouraged to develop their enforcement strategies in conjunction with other agencies and with regard to best practice across Scotland. The majority of respondents supported this proposal. We considered that an enforcement network to assist individual licensing authorities in developing their enforcement strategies would be helpful and, together with the introduction of a statutory duty to enforce the licensing provisions, would provide the impetus for licensing authorities to take more effective action with regard to enforcement. In our view, one of the professional officer societies involved in licensing matters, such as SOLAR, might be best placed to take this forward, in conjunction with the police and procurator fiscal service.
Recommendation
The Task Group recommend that a local authority civic government licensing enforcement network be established through SOLAR to assist local authorities in developing their enforcement strategies.
CONSIDERATION OF THE INTRODUCTION OF FIXED PENALTIES AS A MEANS OF ENFORCING THE LICENSING PROVISIONS
16.7 The Task Group observed that there is a perceived lack of prosecutions for civic government licensing offences. In view of this, and in order to reduce the burden on the Procurator Fiscal Service, we sought views on the merits of empowering local authority officers to issue fixed penalties for such offences. However, we were not persuaded of the argument for doing so. In our view, local authority officers might frequently require the assistance of the police to ensure the co-operation of the alleged offender. We were also concerned that such a power may put enforcement officers at increased risk given the confrontational nature of the task. Additionally, the introduction of fixed penalties could be seen as being at odds with the principles of the Enforcement Concordat, with its emphasis on co-operation between enforcement officers and licensees. Following the evaluation of the responses to our consultation, and taking into account the reluctance of local authorities who responded to the consultation of becoming involved in issuing fixed penalties, we concluded that fixed penalties should not be introduced.
Conclusion
The Task Group concluded that the introduction of fixed penalty notices as a means of enforcing the licensing provisions was inappropriate and that the status quo should remain.
CONSIDERATION OF POWER TO OBTAIN SEARCH WARRANTS TO BE EXTENDED TO LOCAL AUTHORITY OFFICERS
16.8 In considering the different roles of local authority officers and the police it was noted that under the powers of section 6 of the 1982 Act only police officers have the powers to obtain a warrant to search suspected unlicensed premises. The Task Group are however aware that under the revised licensing arrangements for Houses in Multiple Occupation (HMO), introduced in 2000 under section 44 of the 1982 Act, it is open to authorised officers of the local authority to obtain such a warrant. We therefore considered whether there was a need to extend this power to the other premises-based licensing activities in the 1982 Act, such as late hours catering and public entertainment establishments. In the case of HMO, the Task Group understand that local authority officers previously had a power to enter such premises under the Housing (Scotland) Act 1987. However, because evidence gathered under these powers was inadmissible in prosecutions, a specific power to obtain search warrants was provided in the new regulations.
16.9 The Task Group were not convinced that there was a need to extend such a power to other premises licensed under the 1982 Act, not least because the majority of such premises are, in any case, open to the public. However before making a determination, the Task Group decided to seek views on this as part of the consultation process. The majority of those responding on this point favoured the status quo. As such, and particularly in view of local authorities own reservations about providing them with these powers, we concluded that it would not be appropriate to make such a change.
Conclusion
The Task Group concluded that it would be inappropriate to extend the power to obtain warrants to search unlicensed premises to local authority officers.
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