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The Licensing (Scotland) Bill: A Consultation on Liquor Licensing

Chapter 4
Licences

The Nicholson Report

The Nicholson Committee believes that the present system of seven types of licence is confusing and unhelpful. They therefore recommend its replacement with a system of two licences - a premises licence and a personal licence. This is similar to the approach taken in England and Wales under the Licensing Act 2003.

Premises Licence

The premises licence would be a single form of licence for any premises which sells alcohol, each licence being tailored to the type of premises in question by reference to an operating plan lodged by the applicant. Operating plans would cover a range of detailed issues including the activity to be conducted, opening hours and policy in relation to children. They would also specify the designated personal licence holder responsible for the premises. They would form the basis for the terms and conditions of the licence. Once granted there would be no need for renewal, in contrast to the present system where renewal takes place every 3 years. However, there would have to be a facility to allow licences to be varied, for transfers and for provisional licences.

The Nicholson Committee sees the need for a set of standard national conditions applicable to all premises licences. The Committee also recommends that the Licensing Board should be able to modify or add to a premises operating plan regardless of whether or not a complaint has been lodged.

Fire and Safety

The Nicholson Committee proposes that there should be a requirement for all applications for a premises licence to be accompanied by a certificate from the fire authority and for the Licensing Board to be able to request, in addition, specification of a safe maximum capacity. The Committee also recommends the continuation of the requirement (with the extension to off-sales premises) for applications for provisional or new licences to be accompanied by certificates from the relevant planning, building control and food hygiene authorities. However, Boards should be able to attach additional conditions where this is necessary or desirable to promote the licensing principles.

Personal Licence

A personal licence would be granted to a named individual over the age of 18 who possesses appropriate, approved qualifications and who has not been convicted of any relevant offence or forfeited a licence in the past 5 years. The licence would authorise the holder to manage and to operate licensed premises without supervision and it would authorise that person to supervise others. The licence would be valid for 10 years before requiring renewal. The Committee believes that there should also be a central register of personal licence holders.

Occasional Licences and Occasional Permissions

The Nicholson Committee supports the retention of the current system of occasional licenses (for the licensee to offer catering outwith licensed premises) and occasional permissions (to an otherwise non-licensed voluntary organisation for special events). The Committee recommends that an occasional licence should in future be granted to a personal licence holder with the appropriate qualifications. Whilst a personal licence would not be required for occasional permissions, the Committee felt there was a need to define 'voluntary organisation'.

Grounds for Refusal of a Premises Licence

The Nicholson Committee recommends that, even in the absence of objections, a Licensing Board should be obliged to consider an application for a premises licence on its merits, and, if it concludes that the licence should not be granted, it should be able to take that course. The Committee recommends statutory grounds for refusal based on the following:

• undermining the promotion of the licensing principles;
• suitability of the premises with regard to location, character, condition and likely clientele; and
• overprovision.

Where a licence is refused, the Committee recommends that the present 2-year period before reapplication should be reduced to 1 year and an earlier reapplication should be allowed at any time if circumstances have changed.

Consultation Summary

Premises Licence

There was broad agreement that the current licensing system needs to be simplified, although several contributors believed that there should continue to be some differentiation between different types of establishments. Those who wished to maintain such distinctions, in particular certain sections of the Licensed Trade, believe that their removal would encourage a growth in irresponsible promotions through increased competition between different sector operators.

The main alternatives to the single premises licence revolved around using two or more of the three following type classifications:

• on-sale - to cover pubs, hotels, cafes and refreshment places;
• off-sale - to cover off-licences, supermarkets and other retail stores; and
• entertainment - to cover discos, nightclubs, dance halls and other clubs.

The majority supported the overall principle of the operating plan, however, several opposed the recommendation believing it to be overly bureaucratic and burdensome.

While two-thirds of respondents were in favour of removing the need to renew the premises licence, there was notable concern at the inability to review the licence regularly. On licence variations, there was a need to clarify the process.

The majority agreed to standard national conditions although one Licensing Board wished to be able to add conditions to any national standards to reflect local circumstances. A significant minority opposed allowing Boards to modify or add to a premises operating plan, believing it gave them too much power.

Fire and Safety

Whilst the majority supported the proposed fire certificate and safe maximum capacity specification, Fire Boards were concerned at how this sat with current fire prevention policy and the fact that maximum safe occupancy levels are at present the responsibility of local authority building control sections. On the continuation of new licences being accompanied by the relevant certificates and a Board's ability to attach additional conditions, most respondents were in general agreement.

Personal Licence

Personal licences were broadly supported although further clarification was sought on the holder's specific role and responsibility.

In qualifying for a personal licence, several respondents felt that it would be more appropriate to keep the 'fit and proper person' criteria from the present legislation and some (including the police) felt that this should be extended to premises licences.

It was suggested that applications should be made in the area an applicant is working in as opposed to the area of residence. There was general support for a central register.

Occasional Licences and Occasional Permissions

Only 4 respondents opposed the recommendation regarding occasional permissions, mainly on the basis that the voluntary organisations would be untrained and a belief that occasional permissions were abused, leading to unfair competition for other licensed premises.

Grounds for Refusal of a Premises Licence

In the main, respondents supported giving Boards overall discretion on whether to grant a licence. The majority agreed that the licensing principles should form the general ground for refusals although concerns were raised that this would give an unreasonable amount of power to the Board. If over provision was to be retained as a ground for refusal, more explicit guidance was requested together with a need to consider the relationship between planning and licensing.

Our Approach

We support the Nicholson Committee's proposals for a new personal licence and for a single new premises licence with an operating plan, which goes to the heart of the new system. We support the proposed duration for those licences. In addition, we intend, unlike the present system, to restrict licences to those aged over 18.

Premises Licence

We envisage a new licensing system that will ensure that Boards have the discretion to take action which is appropriate for local circumstances. However, we believe, as set out in Chapter 2, that it is also important that this discretion is operated within the context of a clear and effective national framework.

We are aware that the licensed trade has been critical of the lack of consistency within the existing system. We feel that the National Framework, the basis of which was proposed by the Nicholson Committee, will bring with it an appropriate level of consistency. Boards will only be entitled to operate their discretion within the boundaries of that framework. Standard National Licence Conditions will be an important feature of that system, limiting Board discretion on issues best controlled at national level.

In addition, we have listened to concerns that the single premises licence (and removal of permitted hours) will lead to a greater level of irresponsible promotions caused by greatly increased competition. Although it is not our role to legislate to prevent competition, we are concerned that standards in the trade should be maintained at a reasonably high level and should not be undermined by an increase in competition under the new system. We do not believe that we need to move away from the single premises licence approach to achieve this.

We consider that a degree of differentiation and thus the maintenance of certain minimum standards could be achieved by extending the role of standard national licence conditions.
We will ask the Expert Group to consider the best approach but have the following in mind:

• standard national conditions appropriate for off-sales;
• standard national conditions appropriate for the provision of adult entertainment (including lap dancing); and
• options for late opening premises - the development of either standard national conditions or statutory guidance.

On licence variations, transfers and the provisional grant of licences, we accept the need for a workable system with straightforward administrative procedures. The Expert Group will be asked to develop a suitable process. We do not expect all variations to require consultation or publication. We will consider further the appropriate relationship between the provisional and confirmed premises licence to ensure that business development is not stifled.

We support the Nicholson Committee's wish to see new applications, including off-sales, accompanied by the relevant, planning, building control and food hygiene certificates and, where advised by the relevant authorities, support the Board's ability to attach additional conditions for the promotion of the licensing principles. We will consider further the issues raised by consultation respondents on fire certificates.

The consultation has highlighted that there may be an argument for some form of closer co-operation between the licensing and planning regimes. We intend to consider this further and would be grateful for views on how well the present system operates.

Personal Licence

For personal licences, we support a move away from the moral judgement of who is a 'fit and proper person'. However, it will be important to retain an effective system that enables Boards to ascertain, whether or not someone is a suitable person to hold a licence. We support the Nicholson Committee's approach which emphasises qualifications and relevant criminal convictions. Qualifications will be national and we will consider their compatibility with England and Wales. We will propose a list of 'relevant' criminal convictions for the Bill.

We believe the initial grant of a personal licence should be undertaken by the Board for the area in which the applicant is working or, if not employed, the Board for the area where the applicant resides. The same would apply to renewals - we do not believe it should be necessary for someone to apply for renewal to the same Board that granted their licence. Any review of a personal licence where a relevant offence has been committed should be carried out by the Board where the holder is presently working and a process will be developed to transmit such information to the relevant Board.

We will consider in discussion with the Department for Culture, Media and Sport, the possibility of a central database including how such a system could operate and who would run it.

Some consultees have queried whether the designated personal licence holder is required to be on the premises during all opening hours. We can confirm that this will not be the case.

Occasional Licences and Occasional Permissions

We support the Nicholson Committee's approach to Occasional Licences and Occasional Permissions. However, we would welcome views on the desirability of some form of regulation for Occasional Permissions, perhaps through training.

Grounds for Refusal of a Premises Licence

We support the Nicholson Committee's approach to grounds for refusal for the grant (or provisional grant) of a premises licence. However, any Board exercising its discretion in this area will be required to act within the overall national framework. Further consideration will be required of the grounds in relation to transfers and variations.

On overprovision, we have already announced for off-sales that we would require local Licensing Boards to make a proactive assessment of local provision in consultation with the local community, police and licensed trade before the new regime takes effect. We intend to extend our approach to over provision to all licensed premises where the provision of alcohol is the main business. We will seek early advice from the proposed National Licensing Forum on what constitutes over provision and how it should be tackled. The Board's conclusions should be reflected in their policy statements and arrangements would be made for regular review.

We intend to extend the 'relevant criminal convictions' qualification to applicants for premises as well as personal licences. We will ensure this is applicable to companies and partnerships as well as individuals.

We support the Committee's proposals of allowing reapplications within 1 year or sooner if circumstances have changed.

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