Tue 25 Aug 2015

Air Weapons and Licensing (Scotland) Act 2015

The Air Weapons and Licensing (Scotland) Act 2015 ("2015 Act") was passed by the Scottish Parliament on 25 June 2015 and received Royal Assent on 4 August 2015. Most of the provisions discussed in this article are not yet in force - commencement orders are awaited.

The 2015 Act does several things: It changes the existing liquor licencing and civic government licensing schemes and it also introduces a system of licensing for air weapons in Scotland. This article covers a few aspects of the changes to rules on liquor licensing.

Liquor licensing boards are given extra powers or grounds for refusal when determining applications for Premises Licences or Personal Licences and those for a Licence Transfer or a Review of a Licence. I'll call this group of four types of application the "Affected Applications".

Fit and proper person test

In relation to all Affected Applications, the 2015 Act reintroduces the "fit and proper person" test which existed prior to the introduction of the Licensing (Scotland) Act 2005 ("2005 Act").

Once the new rules are in force, any Affected Application can be refused on the grounds that the applicant, transferee or Licence holder is not a fit and proper person. This criteria of fit and proper person, when it applied previously, was subject to intense criticism - as it was interpreted differently by various Licensing Boards. It remains to be seen this time around whether or not there will be any degree of uniformity in the interpretation of this criteria.  

Transfer of Premises Licences

There are also new provisions dealing with transfer of Premises Licences. In terms of the 2005 Act, either a Premises Licence holder or a person other than the Premises Licence holder (in certain circumstances) could apply to the Licensing Board for transfer of a licence. The 2015 Act allows anyone to apply for a transfer of a Licence provided that they obtain a written statement, signed by the holder of the Premises Licence, consenting to the transfer to the transferee (a "Consent Statement"). 

The Board can dispense with the requirement for this Consent Statement if they are satisfied that the transferee has taken all reasonable steps to contact the Premises Licence holder in order to obtain the consent, but has received no response. These new provisions should ensure a much smoother transfer process.

Let premises - Licence transfer when lease ends

The new rule could, however, give rise to some challenges. For example, let's look at the situation where the licenced premises are leased and the landlord wishes to have a Licence transferred to him when the Lease ends. He approaches the tenant, who is the Premises Licence holder but the tenant refuses to consent. This scenario does not appear to be covered by the new provisions in the 2015 Act.

Deemed grant of applications if no determination within 9 months

Under the 2015 Act, Licensing Boards must determine a relevant application (as defined in the 2015 Act) within 9 months of the date of their receipt of it - provided that the application was valid. If a Board fails to determine an application within that period (or such extended period as the Sheriff may grant on appeal) then it is deemed to have been granted. 

The Sheriff may extend the 9 months period only if it appears to him/her that there has been a good reason to do so and that no previous extension has been granted in relation to that application.

Removal of 5 year prohibition against re-applying for Personal Licence

One measure which has come into immediate effect is the removal of the five years prohibition on Personal Licence holders reapplying for their Personal Licences if they were forfeit after they failed to comply with refresher training requirements. 

Many Personal Licence holders had their licences forfeited last year due to a failure to comply with this requirement. Those who fell into that trap and forfeited their Licenses can now apply immediately for a new Licence.

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