OTS p32 Licensing Dec08.qxp 03/12/2008 13:56 Page 32
business building · licensing
A return to the ‘Fit
and Proper’ test
Stephen McGowan of Tods Murray LLP not mention amending the equivalent provisions for
analyses proposals in the new Criminal transfer applications, personal licence applications, or
Justice and Licensing Bill, including a re-
occasional licence applications. Why should the police
introduction of the ‘fit and proper’ test.
be able to object on the wider grounds to a new
premises licence, but not to these other applications? It
One of the fundamental tenets of the Licensing doesn’t make sense. I hope that the Scottish
(Scotland) Act 1976 is what is commonly known as the Government has these other applications in mind, or it
‘fit and proper’ test. The fit and proper test is actually a will have completely missed the point. What about
ground of refusal, and therefore objection and is used to people who have already gone through transition and
prevent unsavoury individuals from holding a licence; have their new premises, but would not have done had
perhaps because they have a criminal record, or are in this proposal been in place? Will the Licensing Boards
some other way unfit to take charge of a licensed have to review all of those licences? Does an applicant
Stephen McGowan is a
premises. As a ground of objection, the police were able who is prejudiced by the new ‘fit and proper’ test have a
trainee solicitor with
to use this as an avenue to bring information about point when he complains that thousands of applications
Tods Murray LLP. He can
applicants to the attention of the licensing boards have been granted without having to jump this hurdle?
be reached on 0141 275
outside of the mere presence of convictions; such as
4771.
their personal character or history of pub management. Other measures
But the new Licensing (Scotland) Act 2005 changed The new Criminal Justice and Licensing Bill also
“This reduction
all that and although “any person” can object, the police proposes various other amendments to the 2005 Act.
of the role of
themselves have had their hands cuffed, so that they Firstly, it will prevent an individual from holding (or
the police in
can only object for the purposes of the new crime applying for) more than one personal licence in order to
prevention objective where the applicant is involved in avoid the situation where a person may ‘fall back’ on a
the new
serious organised crime, despite there being no second personal licence if the first is suspended or
licensing
definition of what “serious organised crime” is. revoked. It also makes provision for a ‘fast track’ version
system caused
This reduction of the role of the police in the new of the new occasional licence: under the existing 2005
an outcry; but
licensing system caused an outcry; but not just from the rules, such applications would have to be made with at
not just from police themselves. It seemed unbelievable that “any least 28 days notice of the event, but the proposed
the police person” could object except the police.
changes will allow an applicant to lodge his application
themselves. It
Thankfully, the Scottish Government has listened to at shorter notice. An obvious example of this is funerals,
seemed
these concerns and has sought to reincorporate the ‘fit which are arranged at short notice.
unbelievable
and proper’ test, of sorts, back into the 2005 Act. This is However why provide for a fast track occasional
that ‘any
to be done through yet another new Act, which at the licence, but not a fast track occasional extension? Most
person’ could
moment is in the form of the proposed Criminal Justice funerals are catered for on existing licensed premises
object except
and Licensing Bill. This Bill will, in the main, update and that apply for an early morning extension to trade prior
modernise the criminal justice procedures in Scotland, to 11am so why should they still be forced to apply 28
the police.”
but will also amend the 2005 Act to try and sort out days in advance? I think the police would have concerns
some of the difficulties that have been raised. if a publican said he was going to cater for a funeral 28
The proposal, as it stands, is that s.22 of the Act will days in advance – does he know something the soon-
be amended to remove the special objection provisions to-be-deceased does not?
for the police, so that they would be classed as “any The fact that the Scottish Government is listening to
person”, and in turn be able to object in relation to any those of us working with the 2005 Act is commendable
of the new licensing objectives and provide the board but are these proposals thought through? And why, if
with a far greater variety of they are going to amend the Act, did they not end the
information. This development debate once and for all over whether a personal licence
The advice offered on this page is
should be welcomed. holder has to be on the premises at all times; and why
published for information only. No
But has the Scottish don’t they insert a section stating “Nothing in this Act
responsibility for loss occasioned
Government missed a trick? shall be taken to mean that a premises must be open
by persons acting or refraining
The proposed amendment during the licensed hours”, thereby striking out the
from action as a result of the
relates to s.22 only; and that alleged “duty to trade”? To do so would let us all breath
material contained on this page can be
is in relation to new premises a sigh of relief that such a ridiculous concept is not a
accepted by the author or the publishers.
licence applications. It does part of the new licensing laws.
· 32 · ots · december 2008 · www.55north.com/ots_home.asp
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