“Fit and Proper” test back on the cards?
Tods Murray LLP analyse proposals in the new Criminal Justice and Licensing Bill, including a re-introduction of the “fit and proper” test.
Article on the proposed return of the "fit and proper" test in the Licensing (Scotland) Act 2005; first published in On Trade Scotland in December 2008.
One of the fundamental tenets of the Licensing (Scotland) Act 1976 is what is commonly known as the “fit and proper” test. The fit and proper test is actually a ground of refusal, and therefore objection, under the 1976 Act and is used to prevent unsavoury individuals from holding a licence; perhaps because they have a criminal record, or because they are in some other way unfit to be in charge of a licensed premises. As a ground of objection, the police were able to use this as an avenue to bring information about applicants to the attention of the licensing boards outside of the mere presence of convictions; such as their personal character and history of pub management. The majority of people in the trade think this is an important and purposeful provision; as it helps maintain standards and drive out unwanted elements.
But the new Licensing (Scotland) Act 2005 changed all that: under s.22 of the new Act, although “any person” can object; the poor police have had their hands cuffed, so that they can only object for the purposes of the new crime prevention objective where the applicant is involved in serious organised crime. There is no definition for what “serious organised crime” is.
This reduction of the role of the police in the new licensing system caused an outcry; but not just from the police themselves. It seemed unbelievable that “any person” could object except the police.
Thankfully, the Scottish Government have listened to these concerns and have sought to reincorporate the “fit and proper” test, of sorts, back into the 2005 Act. This is to be done through yet another new Act, which at the moment is in the form of the proposed Criminal Justice and Licensing Bill. This Bill will, in the main, update and modernise the criminal justice procedures in Scotland but will also amend the 2005 Act to try and sort out some of the difficulties that have been raised.
The proposal, as it stands, is that s.22 will be amended to remove the special objection provisions for the police, so that they would fall to be classed as “any person” and in turn be able to object in relation to any of the new licensing objectives and provide the board with a far greater variety of information. This development should be welcomed.
But has the Scottish Government missed a trick? The proposed amendment relates to s.22 only; and that is in relation to new premises licence applications. It does not mention amending the equivalent provisions for transfer applications, personal licence applications, or occasional licence applications. Why should the police be able to object on the wider grounds to a new premises licence, but not to these other applications? It doesn’t make sense. I hope that the Scottish Government has these other applications in mind, or they will have completely missed the point.
And what about all the people who have already gone through transition and have their new premises, but would not have done had this proposal been in place? Will the Licensing Boards have to review all of those licences and attempt to revoke them? Does an applicant who is prejudiced by the new fit and proper test have a point when he complains that thousands of applications have been granted without having to jump this hurdle?
The new Criminal Justice and Licensing Bill also proposes various other amendments to the 2005 Act. Firstly, it will prevent an individual from holding (or applying for) more than one personal licence in order to avoid the situation where a person may “fall back” on a second personal licence if the first is suspended or revoked. It also makes provision for a “fast track” version of the new occasional licence: under the existing 2005 rules, such applications would have to be made with at least 28 days notice of the event, but the proposed changes will allow an applicant to lodge his application at shorter notice and it will be up to the Board to determine whether the occasion for which the licence is required is suitable for it to be fast tracked. The obvious example is for funerals which will normally be arranged with just a few days notice.
However, has the Scottish Government misdirected itself here? Why provide for a fast track occasional licence, but not a fast track occasional extension (or extended hours application as it will be known)? Most funerals are catered for on existing licensed premises who apply for an early morning extension to trade prior to 11am so why should they still be forced to apply 28 days in advance? Indeed, I think the police would have concerns if a publican said he was going to cater for a funeral 28 days in advance – does he know something the soon-to-be-deceased does not?!
The fact that the Scottish Government is listening to those of us working with the 2005 act is commendable but are these proposals thought through? And why, if they are going to amend the Act, did they not end the debate once and for all over whether a personal licence holder has to be on the premises at all times; and why don’t they insert a section stating “Nothing in this Act shall be taken to mean that a premises must be open during the licensed hours”, thereby striking out the alleged “duty to trade”? To do so would let us all breath a sigh of relief that such a ridiculous concept is not a part of the new licensing laws.
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