“Lawyer: Holyrood approach ‘arrogant’ ” – My Justification

“Scottish Government’s legislative style slammed at conference”

As the person responsible for these rather lurid headlines from the latest issue of  the Scottish Licensed Trade News, perhaps I should be among the first to comment. The article was based on my address to Jack Cummins’ recent SLLP conference in Glasgow. I can have no complaint about the reporting. In the article I was  correctly quoted and the headlines are an accurate summation of my views. Those who did not hear the substance of my address might well feel themselves justified in writing this off as the posturings of a headline seeking lawyer in search of business, and dismiss it as Johnston on another of his rants.

Let me deal with the latter points. As I am no longer in private practice, I seek no business. As to seeking fame, or infamy, after nearly forty years in the business, I am well enough known. Let me turn instead to the reported straplines of my talk. As valuable newspaper space did not permit full detail, I want to demonstrate that I can justify each and every one of my fairly trenchant criticisms. I note that in response a Scottish Government spokesman stated the aim “to make sure legislation is not unduly burdensome or complicated.” Forgive me a sardonic smile. If that is the case, why not issue a consolidating statute so that the bewildered licensee who has the responsibility of teaching the law to his staff doesn’t have to wade through 4 statutes and 40+ sets of regulations? We now have a piece of legislation which has sections 39(2A), 39(2)(a) and 39A(2)(a).  He went on to say, “That is why the recent Air Weapons and Licensing (Scotland) Act 2015 addressed parts of the law which were not operating as effectively as they could have been.”

One can only assume that he was referring to the reform of the transfer provisions, which I described as a mess. Yes, we got some reform (after 10 years of agitating), but there was nothing at all in the original Bill. In fact the changes were not introduced until the Stage 2 part of the process, by which point there was no time for comment. I welcome the long overdue reforms but deplore an obvious flaw which will have to be addressed when a licensee departs in acrimonious circumstances and someone, often the owner of a property whose value will plummet without a licence, is trying to keep the business asset intact. A person seeking transfer of a licence must now produce evidence of consent to transfer. Fair enough. But this must be written and signed. That would appear to rule out email, which must constitute 80 – 90% of modern communication. 10 years ago we ditched the requirement for objections to be written or signed, for just such a reason. As those who have been at the sharp end know, it is not uncommon for licensees in financial difficulty, as so many are, simply to want to give up. This may leave a bank or insolvency practitioner trying to sell licensed property. What if the licensee does not issue consent? In those circumstances a hearing must be held.

Section 33A(4) allows the Board to dispense with consent if satisfied that the transferee has taken all reasonable steps to contact the premises licence holder in order to obtain consent  BUT HAS RECEIVED NO RESPONSE (my emphasis). There is no provision for a Board to decide that the consent is being unreasonably withheld, or to waive the “written and signed” requirement. What if a licensee whose pub has been repossessed and who clearly has no further right to occupy it simply refuses his consent? Or if an insolvency practitioner demands an outrageous premium for a consent? Or if, most frustratingly of all, the licensee sends an email saying, “fine by me”, but not a signed consent? In these circumstances the transferee has indeed received a response, but some boards may feel themselves obliged to refuse the application because, on a strict interpretation, the section 33A(4) test hasn’t been satisfied. A moment’s consultation with the Law Society experts could have ironed out that sloppy, ill considered drafting.

I criticised the additional burdens imposed on Licensing Boards in a climate where many of them are being forced to shed or share staff because of financial cuts. Is this then really a good time to impose the requirements for “Annual functions reports” and “Annual financial reports”. While those of us who believe that licensing charges at the applications stage were skewed might have welcomed the latter ten years ago, I am not sure what function they will serve now. I also suspect there will be huge scope for creative accounting as licensing boards are landed with their share of the council’s depreciation bill and the Provost’s motor expenses. I have even less idea of the benefit of the former. Any clerk needing assistance in fudging issues should simply read the Stage 1 report for this legislation. What possible good will these do? What purpose will they serve? Who will read them? My  view is that licensing boards are, in the main, operating to a higher standard than at any time since they were created by the 1976 Act. Will their work be enhanced by such a deployment of precious  resources?

Finally, I accused the legislators of producing a statute which was self contradictory. Let me place before you Production number 1, the new s39B. If at a review hearing it is established that the licence holder is not a fit and proper person to be the holder of a premises licence, the Board is obliged to revoke the licence. S39B provides relief by way of a mandatory recall of this revocation if, inter alia,  a transfer application is made within 28 days. Or does it? Let us examine the legislation.

“S 39B(2)The Board must recall  revocation if-

(a)   a relevant application* is made before the end of the period referred to in section 39(2B) (“the 28 day period”), and

(b)   the Board grants the application”

(* ie an application for transfer or variation – my notes)

Taken by itself I think the interpretation is fairly clear. You are entitled to a recall provided you get your transfer application in within the relevant period and the application is eventually granted, whenever that might happen. We all know these things can take a while, especially if the application goes in only on day 27. Even if it is lodged on day 1, the police have 21 days to respond. In short, it is far from certain that your application will be processed in 28 days, unless you are lucky. But read on.

“39B(3) The Board may extend the 28 day period pending determination of a relevant application.”

That would seem to contradict the interpretation I have just suggested. If simply getting your application in on time is enough, why do we need 39B(3)? And note the use of  word may. From day 1 to day 28, you are entitled to get back the benefit of the licence as a matter of right: beyond day 28 you are at the mercy of the board’s discretion. Legislation doesn’t come much more self contradictory than that. I have no idea what Parliament intended and have no idea what the law actually is.

I had much more to say in my address. It was by no means critical of everything in the new Act, but I would contend there is enough material to justify my less than complimentary overview.

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