CONSULTATION ON THE AIR WEAPONS AND LICENSING BILL: Why Did We Bother?

“The government I lead intends to be open, listening, and available in a way we have not seen before – the most open and accessible government that Scotland has had.”

First Minister Nicola Sturgeon

A few days ago I delivered my quarterly column on liquor licensing to the Editor of the Journal of the Law Society of Scotland. I anticipate it will appear in the April issue. In it I analysed some aspects of the response to the consultation on the Air Weapons and Licensing (Scotland) Bill, currently being considered by the Local Government and Regeneration Committee at Holyrood. In a manner which many would consider to be out of character on my part, I expressed sympathy with the legislators, with particular reference to the quality of some of the responses. Having read the Stage 1 report, which was published on 23 March, I now formally withdraw that. Their weasel words, duplicity and flagrant misrepresentation of facts would win universal approval, not only from Sir Humphrey Appleby of Yes Minister fame, but also from snake oil salesmen the world over.

The major issues which most of us in the profession had on the proposed reforms to liquor licensing were not with what was in the Bill, but with what was omitted. The Law Society’s licensing sub-committee took the view that our responses should be restricted to a few non-political points which caused problems in day to day practice. (Note that while I anticipate many of my fellow committee members may agree with what I write, these are my personal views.)

We concentrated on three main issues; site only provisional licences, surrenders and transfers. The problems which we highlighted are issues which do not arise under the English Licensing Act. While that too has its faults, all of the practical problems which we in Scotland face have a solution within the Licensing Act 2003. Many of these points were also raised by other groups such the Institute of Licensing.

The issue of site only licences is a simple one. It is wasteful to have to go to the expense of lodging incredibly detailed plans for a building which may have nothing more than outline planning permission, in the near certain knowledge that a major variation of the licence with further expensive plans will ultimately be required if the licence is granted. This was explained to the committee by various parties. In addition to the cogent evidence, it was not unreasonable to assume that the committee would have expert legal guidance, given by someone au fait with the current legislation. So it was more than a little disconcerting to read that “the 2005 Act does not allow for provisional licences where premises are yet to be built or under construction.” Well, in my copy it does, and I’ve obtained a fair few in my time. How did the committee react? The Scottish Government was asked for its comments. Its response? They indicated the proposal had the potential to undermine facets of the existing regime. They considered they (sic) would not be widely supported by others. The old section 26(2) provisional grant did have its critics who felt that a licence could be obtained with too little information being given, but that was in the days before operating plans. We are not told what facets of the existing regime would be under threat.

On the issue of surrenders the committee clearly got the point. They seemed to have accepted that there are numerous examples where a licence is surrendered out of spite, putting a landlord in the invidious position of owning premises which have no licence. Even if a new licence can be obtained the cost, including loss of rent, can easily run into tens of thousands of pounds. The committee, however, seemed to focus on only one disadvantage, namely the situation where an older property might not comply with current regulations and the owner might struggle to obtain a new licence. Never mind the 99% of cases where there will be no such problem. Again the Scottish Government was asked for its views. The response? The proposal had the potential to undermine facets of the existing regime. They considered the proposal would not be widely supported by others. Sound familiar? As there is a procedure under the English legislation for resuscitating a surrendered licence, one might have expected any evidence of such problems to be readily available. Who are these mythical “others” who might be offended?

Finally, the appalling mess of the present transfer system was fully explained to the committee. The detail of all of the problems is clearly set out in the report. Bear in mind that these are issues which the Law Society and other commentators have been making for over a decade, since the 2005 Act was a Bill, and in the run up to the two pieces of amending legislation. The current flaws see the law being bent or broken every week by practitioners desperately trying to make commercial sense. In cross border deals we face the embarrassment of having to explain to lawyers in England and Wales why we have a serious problem which they do not. Once again the committee sent a memo down to New St Andrews House. A different reply from the government this time. The report states, We asked the Scottish Government for their views on teach (sic) of the above issues and they said they “continued to consider the concerns raised”. Does that fill anyone with hope that something will find its way into the Bill? No, me neither.

The fact is that none of the issues raised was in any way political. Any genuine concerns by “others” could easily be addressed. The truth is that this consultation seems to have been a sham. The licensed trade deserves better than this badly written and ill checked piece of work. (The word licence is spelled license no fewer than 19 times.) This report is a shoddy piece of work by lazy legislators who give not a fig for anyone else’s agenda.

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