Around the start of the 20th century, the approach of a licensing authority to the “overprovision” of licensed premises was, in current parlance, a “no brainer”. Magistrates enjoyed a more-or-less absolute discretion as to whether a district was “congested” and the granting of a licence was “meet and convenient”.
So, when Robert McGeehen, a wine and spirit merchant in Airdrie, found his 9 year-old business closed down with the refusal of his certificate’s renewal by a temperance bench seemingly committed to dismantling the licensing system in favour of prohibition, the Court found itself unable to interfere (McGeehen v Knox, (1912) 1 SLT 428).
The approach of the Licensing (Scotland) Act 2005 to “overprovision” is set for significant overhaul from 30 September 2016 when amendments* take effect as part of the piecemeal implementation of the Air Weapons and Licensing (Scotland) Act 2015 (“the AWLA”). While the law is not about to undergo an outright 200-year regression, it may be no exaggeration to say that the reforms on the near horizon are intended to hand Licensing Boards a nuclear weapon if there care to launch it.
Firstly, for the purposes of overprovision assessments, Licensing Boards will be able to treat the whole of their area as a “locality” if they so wish (a step which licensing lawyers have always believed to be open to them). They will still require to have regard to the number and capacity of licensed premises; but, as a result of the reforms, in future they “may” have regard to “such other matters” as they “think fit”.
We’re not given any clue as to what these “other matters” might be, except that Boards may “in particular” take into account licensed hours. How those hours might meaningfully inform the policy formulation is impossible to detect. The notion that licence holders are under a “duty to trade” - that is to say, remain open for business during all licensed hours, save in exceptional circumstances - has virtually no adherents save for the Scottish Government. So, while Boards will be examining authorised licensed hours, they will have no idea of the hours actually operated.
This approach also leaves the statutory guidance to Licensing Boards wrong footed and provides yet another reason to prioritise its overhaul after the passage of some 9 years. The guidance expressly forbids Boards from taking into account for the purposes of policies “the hours during which licensed premises in the locality trade, since these will be controlled through operating plans”. Yet, Section 142 of the 2005 Act places Boards under an obligation to follow the guidance.
Secondly, the changes to the refusal ground in Sections 23(5)(e) and 30(5)(d) are no doubt intended to implement a commitment given at an Alcohol Focus Scotland conference a number of years ago by the then Justice Secretary, Kenny MacAskill. He promised that the Scottish Government would make it easier for Licensing Boards to “define” overprovision. Plainly, the policy intention is to vest in Boards a much wider discretion than they currently enjoy. Support for that analysis is found in the explanatory notes published to accompany the AWLA: the new wording “means that Licensing Boards can refuse an application if they consider there would be ‘overprovision’” and they can take into account “other factors”. A “no brainer”, one might think.
How are the changes likely to play out in practice? In all likelihood, those Licensing Boards who presently take a libertarian approach to new licensed developments are unlikely to deploy their new armoury. On the other hand, the political make-up and mindsets of the new Boards to be constituted following the local government elections next May is anyone’s guess. In any event, one result is certain. The refusal of applications on the overprovision ground will be extremely difficult to assail in an appeal (absent any fundamental errors of the sort disclosed in a recent decision: BP Oil UK Ltd v Dundee City Licensing Board (see: www.sllp.co.uk)). In fact, we might expect the broad-axe approach which the House of Lords was content to uphold in Caledonian Nightclubs Ltd v City of Glasgow District Licensing Board, 1996 SLT 451 - a landmark case decided under the provisions of Licensing (Scotland) Act 1976 which also endowed Boards with a very wide discretion in overprovision cases.
*You can view the changes to Sections 7 and 23(5)(e) of the 2005 Act (dealing, respectively, with Licensing Board policy statements and the overprovision ground for refusal of a new licence) here: https://is.gd/ukotas. (Parallel changes have been made to the overprovision refusal ground in relation to variation applications found in Section 30(5)(d).)