The Licensing (Scotland) Act 2005 hit the alcohol trade like a hurricane on 1 September, introducing onerous new licensee provisions, required modifications to premises and new penalties on license holders for the drunken conduct of their patrons. Combined with a much reported backlog of applications in the processing system, only a promise of ‘softly softly’ enforcement seems to have stopped widespread pub closures across the country.  Licensing specialist Stephen McGowan of Tods Murray LLP says the new regime is riddled with pitfalls for unwary licensees.

To my knowledge, the mainstream press first picked up on this in November last year, with a front page headline in the Herald warning that pubs all over Scotland would close because they had not applied for the necessary licences in time. We then learned through FOI requests that in fact 20 percent of premises had not applied for the new premises licence; many because they could not afford the massive hike in licensing fees the new system had introduced; many because they had already closed because of the general economic downturn. Of the 80 percent of premises who managed to apply for their premises licence, it now seems that many of those think that is the end of the story, and it’s plain sailing now the “big bang” date of 1 September has passed. That is far from the truth, and what parts of the trade have failed to appreciate is that simply having your premises licence is not enough. You also have to have an individual named on that licence as the premises manager; the “nomination” process varies from board to board and could be as simple as emailing the licensing section; or may require a minor variation application with a £20 fee.

But again this is more deceptive than first appears. In order to be named as a premises manager, the individual must first have passed a training course and then in turn successfully applied for their own personal licence from the licensing board which covers the area where they reside. Training courses are still vastly oversubscribed and managers are struggling to get on courses; awarding bodies are taking a lot longer to issue certificates because of the backlog; and some managers mistakenly think the training certificate itself is a personal licence. It ain’t!

The bad news for the Government is that closures will almost certainly impact on their target tourism figures in the Year of Homecoming, which are predicated on there being a certain number of licensed facilities operating in Scotland, and it looks like smaller, rural premises like B&Bs are particularly affected. I’ve also noticed a trend for many restaurants in Glasgow and Edinburgh who are now moving to “BYOB” and avoiding the licensing fees by avoiding the need for a licence.

MacAskill famously said that parts of the Act needed a “good clout with a heavy hammer”. Senior licensing lawyer Jack Cummins has suggested a stick of dynamite might be more appropriate.  

I find it ironic that the original impetus for a new licensing regime was led by the licensing boards and agents, bemoaning the supposedly clunky and outdated 1976 Act, and who sought a sleek, modern and streamlined system. When the Nicholson Committee was appointed, the Government used it as a route to investigate the nation’s health. No one can deny that the Government is pursuing a legitimate aim in addressing the concerns about over-consumption in Scotland and certainly something has to be done. But in my view licence holders are too often unfairly demonised as the root of our unhealthy relationship with alcohol. The licensed trade must now be the most regulated trade in Scotland.

Another SNP soundbite popular with MacAskill, Sturgeon and co is: “it’s not the drink – it’s the way we drink it”. Yet there is too little enforcement against the individual who would seek to ruin it for the rest of us. The number of prosecutions for existing offences such as entering a premises whilst drunk, attempting to purchase alcohol whilst drunk, attempting to buy alcohol for persons under 18, being drunk and incapable in licensed premises, and being drunk and disorderly in licensed premises are startlingly low.