Get set for another year of licensing reform

Stephen McGowan

Just when you thought it was safe to go back into the off-trade section, new legislation this year is going to make further changes to the way in which retailers can operate.

by Stephen McGowan

I find myself starting this article by recognising that licensing law reform continues at an unabashed pace. Yet it could be the opening line to any article since 2009, such is the continued onslaught of legal changes affecting licensed convenience stores. We now have yet another licensing Bill to contend with, perhaps unusually titled the Air Weapons and Licensing (Scotland) Bill. The Bill seeks to amend various aspects of licensing from air weapons, alcohol, taxi and private hire and even sex entertainment. It also, crucially, will have no little effect on local stores.

The Bill will re-introduce a “fit and proper” test, which is mostly supported by all aspects of the trade content to ensure that licences are handed to people who are fit to hold them. This will include consideration of spent convictions, as well as a wider test concerning whether the application is generally “fit” with regard to the licensing objectives. Overprovision remains a key issue and this Bill will formalise the position that a licensing board can select its entire area as “overprovided”. I gave evidence to the Scottish Parliament on this Bill in December 2014 and the first question of the day was on overprovision. Some recent decisions in Edinburgh have seen commentators challenge that board in granting licences within its own defined overprovision areas, although a recent request by Sainsbury’s to add two new chiller cabinets was refused.

Overprovision is heavily influenced by increasing attention on academic studies and research concerning public health. Objections to new off sale licences from NHS boards are on the increase and becoming increasingly sophisticated. One recent study suggests that adverse public health is attributable to the number of off sales in a given area and has been quoted extensively in the media and at hearings by NHS officials. However, the authors of that study concede that there is not, as yet, sufficient evidence to prove a causal link between the two.

This creates a dilemma for licensing boards because the ultimate arbiter of licensing decisions is not the latest academic study but the rule of law. Licensing boards are bound by institutional legal principles such as causality, sufficiency and probativity of evidence and so on. On the other hand, many boards are becoming more and more aware of the health objective as a result of increased objections and this looks set to be an area of some debate for many years.

It should not be overlooked that a local store brings more to a community than simply alcohol, if it is licensed. The store can a focal point for a community, and can increase amenity by having a well run, lighted store covered by CCTV. In addition, a local store can very often be the main facility for the weekly shop. Licensing boards cannot take account of demand nor the financial imperative of a business, but they cannot close their mind to the benefits an application might bring such as employment opportunities for local people and so on. It is a delicate process which is often a difficult one to tread due to the negative portrayal of alcohol sales in local communities.

I expect to see considerable attention given to health related issues as we approach the 2015 general election. Labour have already placed great focus on health policies concerning sugar, alcohol and tobacco – although they do not appear to be minded to support Minimum Unit Pricing (MUP) at a national level. In Scotland, Labour were begrudging supporters of MUP having considered and published their own alternative proposals. The new Bill may be an opportunity for them to revisit some of those ideas which included, for example, banning the sale of caffeinated alcohol products and greater restrictions on promotion and advertising. The Bill is expected to be passed later this year although I would not be surprised to see it come into force until early 2016 at this rate. Alcohol remains a very visible target for politicians but in a climate of significantly reduced consumption, offences and harm, the argument may be less persuasive. There is no doubting that the irresponsible sale and consumption of alcohol should be a constant concern; but as a society we ought not to forget the benefits that licensed retail can bring.

  • Stephen McGowan is Head of Licensing (Scotland), Partner at TLT LLP Solicitors and serves as Chairman of BII Scotland. He recently joined the Scottish Government’s Alcohol Industry Partnership.