Our next item of business is evidence from the Scottish Government’s bill team on the financial memorandum to the Air Weapons and Licensing (Scotland) Bill. I welcome Quentin Fisher, Ewan Bruce, Keith Main, Walter Drummond-Murray and Peter Reid. Good morning to you all. Members have copies of the financial memorandum and all written evidence received. Before we move to questions from me and from the committee, I invite one of our witnesses to make an opening statement. Who has drawn the short straw?
I have. Thank you for inviting us to offer evidence to the committee today. I will make a couple of brief and broad observations.
The bill makes provision in respect of a number of new and existing licensing regimes. Any additional costs associated with the bill should be read against the wider cost to society of the activities that are regulated or, indeed, the risks associated with the regulated behaviour.
The bill has a number of purposes. It aims to protect public safety by creating a new licensing regime for air weapons. It aims to improve aspects of locally led alcohol and civic government licensing, such as the licensing of scrap metal dealers, taxis and private hire cars, in order to preserve public order and safety, to reduce crime and to advance public health. It also gives local authorities the power to regulate sexual entertainment venues in their areas, so that performers and customers benefit from a safe and regulated environment.
The breadth of the licensing regimes that are covered means that there is not insignificant variation in the specific legislative detail and therefore in the financial impact in respect of each regime. That variation is, I hope, reflected accurately in the financial memorandum. In keeping with current licensing practice, the bulk of the costs associated with licensing regimes is ultimately borne by the individuals and organisations who seek to carry out the licensed activity.
It is worth noting that many of the costs that are identified, particularly in respect of part 3, “Civic Licensing”, depend on future decisions that will be taken at local authority level. Local authority discretion is an important principle in all of this. In such instances we have sought, where possible, to offer some indication of what the costs might be.
We will do our best to ensure that the answers that we provide today are helpful to the committee in informing your consideration of the bill.
Thank you for your brief opening statement. When a question is asked, the witnesses can decide among themselves who is the most appropriate person to respond to it and to any follow-up question.
It is logical to go through the bill part by part, so let us start with part 1, “Air Weapons”. The bill will make it illegal to possess air weapons without good reason, but I note that people who hand in unlicensed air weapons will not be entitled to compensation. Surely the absence of compensation will make it less likely that weapons will be handed in. A lot of folk will just think, “Well, it’s at the back of the garage and I’m not going to the bother of digging it out and taking it to the local police station.” What is the thinking behind not compensating people who hand in weapons, even with a token £20 or so?
That issue has been discussed quite a lot over the three or four years in which we have been working with stakeholders and considering provisions. I understand that it is of concern to some people.
There have been occasions in the past when changes in firearms law led to the outright prohibition or banning of certain types of gun. For example, in 1997 handguns were in effect prohibited and the Government of the day offered compensation. In the bill, the Government does not intend to ban airguns as such. We are seeking to ensure that the people who have airguns are appropriate and can have them safely and so on, but we are not banning the guns.
Our view is that there are an awful lot of airguns at the back of people’s garages, as you said. In the course of the past few years, lots of people have said to me, “We had one of those when I was a kid. It’s in the loft or somewhere and I haven’t seen it for years.” We think that there will be a lot of low-value, old air weapons that have never been used or are perhaps broken or no longer fit for use, and it will be open to people to hand them in to the police—we will put in place arrangements for that—sell them through private sales or registered firearms dealers or make other arrangements. For example, owners might pass them on to other users.
Ministers’ policy has always been that, because there will be no ban and we are talking about quite a high number of low-value weapons, compensation will not be part of the arrangements.
I thought that compensation might be an incentive for people who no longer have an interest in or use for airguns to get them out of circulation. We might get more guns out of circulation than we otherwise would.
Quentin Fisher said that the new system will not be unduly burdensome, but that is hotly contested. The financial memorandum suggests that the cost of processing applications for air weapons under the new arrangements will be about £85.55. That is a remarkably precise figure, and it has been contested by people who submitted evidence to the committee. For example, the British Association for Shooting and Conservation—I will try not to use acronyms—said:
“the cost that will be associated with the introduction of an air weapon licensing scheme will be very high”,
and
“hugely disruptive to the already overstretched Firearms Licensing administrations in Scotland”.
You have said that 98 per cent of people will be dealt with without the need for further inquiry, but the Scottish Air Rifle and Pistol Association says that that is incredibly misleading, because half the folk who use these weapons use them for informal target shooting in their own gardens; we do not want to see that, because of the safety impact. The association completely refutes the financial assumptions that have been made about the bill and suggests that the average cost will be significantly higher; it mentions a figure of almost £120.
Can you talk us through how you came to the 98 per cent figure for the proportion of applications that would not require visits, and how you reached the figure of £85.55?
10:45
We arrived at the 98 per cent figure in discussion with Police Scotland, which will be the licensing authority. The air weapons provisions and the whole process of applying for licences for air weapons are based around the existing firearms regime for high-powered rifles, shotguns and so on. The aim has been to provide a fairly light-touch approach to licensing air weapons, recognising that they are not generally as dangerous as more high-powered guns.
In talking to Police Scotland, we discussed how that would be done. We accept the police’s view, which we share, that there are some 60,000 to 65,000 existing certificate holders for other types of firearms, and that many of them will also have air weapons and will be brought into the new regime. Many of the security issues have been looked at in licensing those holders and providing them with certificates, so a large number of people would already be taken out of the system. For those who are new applicants, it is a relatively light touch, and Police Scotland has told us that a disclosure-style arrangement, under which they will check an applicant’s basic criminal history, should suffice for the majority of applicants.
That has been the view of Police Scotland throughout. The police therefore believe that 2 per cent is the right level for a full home visit and security check. Obviously, as the new system comes in that may vary a little, but that is the view that we have taken over the piece, and we worked up the figures on that basis.
In the past couple of weeks, I have looked again at the £85.55 figure. The figure is very accurate. We used figures that have been used by colleagues down south in the Home Office and the Association of Chief Police Officers; they have done a lot of work over the past couple of years in looking at the costs of processing existing firearms applications. With their agreement, we have adopted a lot of the figures for work that has been done by our working group in that context. The figure takes account of processing times and the type of staff who are doing different bits of work, and the calculations behind the £85.55 pretty much reflect the work that is done.
That has led the Home Office to consult recently on an increase in firearms fees more generally, so we have continued to adopt that figure. BASC and SARPA are aware of that work. In fact, BASC was part of the working group down south that agreed those figures. There are always differences in how we treat the figures, and I understand BASC’s concerns about the impact on its members, but we think that there is a generally accepted basis for the background workings behind the figures, which we will review later in the year as we start to look at fee levels.
I imagine that more than 2 per cent of the population will have a criminal record, so it seems a bit odd that the figure is so low. It is quite burdensome, even if the cost is £85. Okay, a law-abiding citizen will grudgingly apply for that, but the folk whom you are most worried about will just not bother paying £85 to get a gun licensed, will they? Surely all that you will do is impact adversely on shooting clubs and their members.
There will be an impact on shooting clubs and members—absolutely. That is part and parcel of the licensing system, but, then again, existing firearms and shotgun owners pay for a certificate, which currently costs £50 for five years. We have not set a fee level yet for air weapons. The fee reflects the work that has to be done by Police Scotland to ensure that the right people have air weapons and that the police can therefore help to protect public safety. If the figure is £50, £60 or £70 over five years, that is a relatively small price compared with the cost of membership of a club or with the amount that somebody pays for some other interest.
I accept that there will be a core of people who will just say, “We’ll hide our guns. We’re not going to get involved in this licensing system.” As part and parcel of the implementation, we have to ensure that we are getting the message out. There is provision in the financial memorandum for a media campaign. We have had the verbal agreement of the shooting organisations to help us get that message out. We need to get it out to the wider community to make sure that people know that there will be a requirement to license their guns. If people choose not to license those weapons, they will be committing an offence and the police will deal with that appropriately. Over time, it will help the police to identify air weapons that are in circulation with people who should not have them. There are provisions elsewhere in the bill that will allow for the courts to order the forfeiture of those weapons or deal with them appropriately.
If there are half a million weapons in circulation and you are talking about between 10,000 and 30,000 applications, to me, that means that between 94 and 98 per cent of people will not bother getting their weapons licensed. SARPA has said:
“a more realistic total licence number would be between 100,000 and 150,000”.
Even then that would be a maximum of 30 per cent of people applying—most people would still blank the legislation.
The cost of this measure will be millions of pounds. How will the bill deliver on what it proposes in terms of enhanced and improved safety, when we are talking about only small minorities of people—according to your own figures—getting these guns licensed?
I cannot remember the paragraph numbers in the memorandum, but the estimate of 500,000 air weapons is generally accepted around the working group table as the potential number of air weapons out there in Scotland. In fact, we expect that a lot of them will simply be handed in because they are old, broken or unwanted. A lot of them will be sold on. Many people who own guns of any sort—air weapons included—will have a number of different guns, possibly because they have upgraded over the years and possibly because they do different types of shooting. Working down through those assumptions, we get to the figure in the financial memorandum of potentially 40,000 existing firearm certificate holders also having air weapon certificates in future. The 20,000 estimate is brand-new applicants to the system, who do not have more powerful firearms but who will come in and seek a certificate for the air weapon or multiple air weapons that they hold. It will be one certificate. A person can hold one, two or any number of air weapons on that certificate.
I will just ask one more question on this area, because colleagues want to ask about other parts of the bill.
The financial memorandum states that the estimated maximum additional enforcement, testing and reporting costs to be incurred by Police Scotland would amount to £90,000 per annum, based on an estimated 500 cases per year at £180 a case. The BASC questioned whether that figure implied that the police expected to seize 500 weapons as a result of non-compliance and asked how the figure compared with the estimate of 50 to 100 summary prosecutions that the FM quotes. That appears to be a wee bit of an anomaly.
We are looking at the line between the existing regime and the new regime. The 500 tests that sit against Police Scotland’s costs are an estimate that is based on the number of actual weapons that might have to be tested—they would be brand-new tests.
In the course of investigating other crimes or complaints, Police Scotland may find air weapons in a property and, under the current regime, the police cannot take those weapons. However, one of the benefits of the provisions in the bill is that, from the point at which they come into force, the police will be able to seize weapons and test them as part and parcel of another investigation. For example, if the police go into a property because of a complaint about domestic abuse or antisocial behaviour, a prosecution will already be going on because of that complaint, alongside which there will be tests if air weapons are seized.
The figure of 500 tests relates to the number of air weapons that could be taken in such investigations but there might be only 50 to 100 brand-new prosecutions simply for an air weapons licensing offence.
The existing firearms legislation already contains offences relating to air weapons. For example, it is already an offence for somebody to fire an air weapon beyond the boundaries of their own premises or carry an air weapon in the street. Under the bill, there will be a number of new licensing-related offences that will sit alongside existing offences that can be investigated and prosecuted.
I said that that was my last question, but I want to ask about one other thing. How many appeals do you expect from people who have been refused licences, and what would be the cost of those appeals?
I looked at the written evidence on appeals. We do not have a specific provision for appeals in the financial memorandum at the moment.
Indeed. I know that.
I apologise for that. I will look at it again. On the basis of criminal prosecutions, we expect a relatively small number of brand-new appeals. The thinking was that the bill would lead to a very low number of potential criminal appeals.
I understand that the British Association for Shooting and Conservation is saying that there is potential for a number of appeals against refusal or revocation of a certificate. However, the people who apply under the existing firearms regime are generally known in the system—they are known to the police and are existing firearms owners—so the number of refusals is very small. Each year, around 1 per cent of applications are refused, according to the most recent statistics that we have. As our system rolls out, we will look to the police to provide advice on that.
It is difficult to estimate the number of appeals, but we will have to be aware of the issue and, perhaps, revisit it. I am also conscious that there is a new sheriff appeal court system coming into play under the Courts Reform (Scotland) Act 2014, so we will have to consider how appeals will work through that system. Ministers and officials hope that there will not be a lot of appeals; because it will be a light-touch system, we do not expect there to be a lot.
We will move on to alcohol licensing. I will spend less time on the next two sections, not least because I have taken 20 minutes and I want committee colleagues to come in.
On the alcohol licensing provisions, West Dunbartonshire Council says:
“The legislation sets a maximum fee which licensing boards can charge and, even though ours is charging the maximum fee, we incur an annual deficit of almost £89,000”.
Glasgow City Council says:
“it should be noted that it is difficult, if not impossible, for the bodies to preemptively raise fees … to take into account the Scottish Government’s proposals”.
South Lanarkshire Council says:
“the Council does not currently have the funding in place to meet”
potential future costs. Surely the regime will add significant burdens to local authorities.
The proposals in the bill are a broad mix. They were derived from suggestions that were floating about among stakeholders and from the consultation exercise. The idea was to finesse and improve the existing legislation, not to impose substantial additional burdens on licensing boards. On that basis, we felt that it was reasonable to say that the costs would be broadly neutral.
We would be sympathetic to the idea of amending the existing limits on the licensing fees, but we carried out detailed work in reviewing them and got scant response from the local authorities. Therefore, we felt that we did not have enough information on which to base an increase in the fee levels.
Inserting a statutory duty on local authorities to report on their income and expenditure will give us a basis on which to understand all the local authorities’ costs—in relation to both expenditure and time—in order to allow the fees to be increased, if that is felt to be appropriate. One of the main findings of the fees review was that the current occasional licence fee of £10 is felt to be insufficient. We feel that we can increase the occasional licence fee without extensive further work, and fairly soon.
11:00
Thank you. The written submission from the Convention of Scottish Local Authorities states:
“There are some concerns that the introduction of a duty for Boards to publish a financial report may be administratively difficult for local authorities depending on current accounting procedures. COSLA does recognise that this increases transparency and would provide evidence for any future fee increases.”
Nevertheless, COSLA adds that South Ayrshire Council
“expressed ‘particular concerns’ that the fee for occasional licences had not been reviewed, stating that the current fee was insufficient to cover the cost of work involved in processing a licence application.”
Yes. The current £10 fee is set in secondary legislation, so we could increase it outwith the bill.
Okay. I have one final question on civic licensing—I am skimming through the submissions because I want to allow colleagues to ask questions.
The financial memorandum states that the bill
“will give local authorities the power to refuse to grant private hire car licences on grounds of overprovision.”
However, the Scottish Taxi Federation states that the financial memorandum has “got things badly wrong”, and it questions how the financial memorandum’s estimate was reached, stating that no suitable methodology or measuring tool exists at present. Indeed, it goes on to say that it would be “difficult if not impossible” to devise such a tool. How did you reach your estimates?
At the moment, there is no equivalent test for private hire cars. There is a similar test for taxis that relates to unmet demand, but that is a different test. We took the figure from Napier University, which quoted £15,000 to £20,000—the figure is in the financial memorandum—as the indicative level for the unmet demand test. That figure was given as an example; in practice, it is a completely new test and we have not yet devised a procedure to determine what the appropriate amount would be.
The point that the Scottish Taxi Federation and others raise—that £15,000 might be on the low side—is possibly true for a large authority such as the City of Edinburgh Council or Glasgow City Council, but those are exceptional cases. A lot of local licensing authorities have very small numbers of private hires and, were they to carry out an unmet demand test, the amount would probably be a lot lower. We would be happy to work with local licensing authorities and relevant stakeholders to develop an appropriate methodology for testing that.
Thank you. I said that I was going to open up the evidence session, but none of my colleagues has yet indicated that they want to ask any questions. I hope that they will. I will ask another question while they all get themselves psyched up for that.
The financial memorandum notes that some local authorities might receive no fee income from sexual entertainment venues—that is, where none exists in a local authority area—but could incur
“tens of thousands of pounds”
in legal fees should an operator challenge a decision not to grant a licence. What is your comment on that?
We recognise that risk in the financial memorandum, but the precise amount that such a challenge could cost is very hard to pin down. Glasgow City Council estimated that a low-level challenge in relation to a civic licence—for example, a private hire car driver licence going before the sheriff court—could cost between £2,500 and £3,000. However, if a case went all the way to the inner house of the Court of Session, the cost would be very substantial—there is no getting away from that—although it is hard to be precise.
The Civic Government (Scotland) Act 1982 confers a responsibility on local authorities to ensure that the total cost of licensing is covered by the licensing fees. Ultimately, however, when a case is likely to be very expensive, it is for the local authority to judge whether it is worth pursuing and whether the public benefit that it is trying to achieve would warrant pursuit of the case all the way through the courts and the incurring of that expenditure.
My colleagues now wish to ask questions. The first one will be from Mark McDonald.
In relation to several areas that are dealt with in the financial memorandum, various organisations have highlighted concerns about the cost of appeals. The British Association of Shooting and Conservation has concerns in relation to air rifles; the Scottish Taxi Federation has concerns in relation to taxis; and various licensing boards are concerned about some of the new changes, particularly the fit-and-proper-person test. There are concerns that the cost of appeals in those areas has not been properly factored in. Would you like to respond to those concerns?
That question covers all the licensing regimes, so I will deal with it in a broad fashion if I may.
I take it that you are talking about appeals in respect of decisions that have been made by the local authorities or the police to grant or revoke licences. The way to eliminate the possibility of an appeal would be to have no appeals system, but I do not think that anyone is suggesting that. At the moment, we have an appeals system and the possibility of appeal arises. The likelihood of an appeal being successful depends on, among other things, the quality of the decision that has been taken. It also depends on the mindset and the positioning of the potential appellant.
The moment that we have an appeals system in place—we have one for all licensing decisions—the possibility of an appeal exists. However, the likelihood of an appeal being successful is a different matter and can be ascertained only on a case-by-case basis, as can the costs of the appeal.
I do not know whether any of my colleagues wants to say anything about the specific regimes.
I would just add to the point that the convener made. There are only about 17 to 20 sexual entertainment venues in Scotland, which of itself limits the scope for appeals being taken through the courts.
You say that in relation to sexual entertainment venues, but the submissions that we have received raise the issue that there may be appeals against refusals to grant licences. Although there are only a small number of such venues in existence, there may be applications that, prior to the implementation of the legislation, would have gone through the alcohol licensing system or another route. The bill will create a new licensing regime, which will, potentially, lead to refusals under that new regime and thus to appeals against those refusals. Basing your projection on the small number of venues that exist does not reflect what may happen, and that is the point that the licensing boards are attempting to get across.
I realise that it is difficult to put an exact figure on it, but a financial memorandum is supposed to deal in best estimates. Did you consider the scenario of licence applications being refused rather than simply the number of licences that have already been granted?
You are correct in saying that there would be applications on top of that figure. However, the point remains that lap-dancing clubs have been in existence in Scotland for perhaps 15 years and, even after that time, there are still only about 20. It is therefore reasonable to infer that the demand for licences is limited. There will be applications, but there will not be an enormous number of them.
The cost of any appeals will depend on how far they are pursued through the courts. Going to the inner house of the Court of Session would be expensive. We have never had a better estimate of what exactly an appeal would cost than the figure of tens of thousands of pounds.
On the introduction of the fit-and-proper-person criteria for the granting of personal licences, there is a feeling that the definition is vague and could lead to a number of challenges. The Glasgow City Council licensing board states:
“the current drafting of the bill creates uncertainty as to the scope of the test and, unless corrected, will expose Boards to increased litigation costs until case law provides necessary judicial clarity.”
Has that issue been raised with you directly, in connection with the fit-and-proper-person test, and does the Government intend to look at the matter as the bill moves forward?
The fit-and-proper-person test has been carefully drafted. There are existing fit-and-proper-person tests in other pieces of legislation that the local authorities will be quite familiar with so it is not a completely new concept.
The test has also been framed with reference to the overarching licensing objectives for the Licensing (Scotland) Act 2005. Those objectives are broadly framed and put certain constraints on decisions that the local authority can make. Were local authorities to ignore those constraints, they would still be bound by the overall scope of the bill.
The Brightcrew decision that is frequently referenced related to a board making decisions that went beyond the scope of the bill. Referencing the fit-and-proper-person test to the overarching licensing objectives ensures that decisions that the board makes are constrained within the scope of the 2005 act.
On public entertainment venues, the financial memorandum states that the abolition of theatre licences would represent
“a decrease in regulatory burden overall”
but in evidence to the committee Dumfries and Galloway Council says that those authorities not currently licensing places of public entertainment would need to undertake a “substantial and detailed process” to assess whether there is a need to license theatres as places of public entertainment. It further stated that those that already do would incur
“significant press publication fees for statutory notices if the authority’s resolution is to be widened to include theatres.”
Glasgow City Council urges the Government to introduce
“provisions to allow the necessary amendment to the resolution to be expedited”
which, it suggested, would
“reduce the costs to theatre owners etc.”
On the one hand we are being told that there is a reduction in the burden, but on the other hand we are given evidence that suggests that there will be an increase in costs in some places. Could somebody reconcile that?
The point about a decreased regulatory burden was about the burden on theatres themselves. Some theatres might have to have a theatre licence and a public entertainment licence at the moment whereas the proposed system will be more streamlined and will allow a theatre, for example, to apply for just one licence. In the longer term, we also expect that operating a single regime rather than two will benefit local authorities.
On expediting the nine-month period between a local authority passing a resolution and it coming into force, it is reasonable for there to be some time between an authority announcing that something needs to be licensed and it coming into force so that people have time to apply for licences to get ready for it. The current period for that is nine months. We are not especially wedded to that period but it is hard to see how it could be less than several months. It should also be pointed out that a public entertainment licence is very wide and flexible so the local authority could decide to license billiard halls or snooker clubs, for example, and there needs to be some months between the time that that decision is made and the licence coming into force.
The requirements of the 1982 act are that an authority should publish the resolution, invite comments, and then consider those representations. There is some work to be done to reach the point at which a draft resolution can be published, but the amount of work should be proportionate to what is being proposed.
In the case of theatres, we expect there to be a strong assumption that they should fall under public entertainment licensing. They are already licensed and they have largely the same characteristics as many of the other forms of entertainment that are licensed as public entertainment. In those circumstances, we would not expect a substantial and detailed process to be required.
On fees, we recognise that publishing the sort of classified advert that is required under the 1982 act to notify people of a change in resolution has a cost. Glasgow estimated that the cost of an advert ranges between £300 and £550, its previous two having been £340 and £522. It is therefore a cost of a few hundred pounds, but it is not an on-going cost and it would have to be incurred only twice during the process of changing a public entertainment resolution.
I was just going to ask about that. I am by no means an expert so this is going to be very much the daft laddie question. I presume that an advert does not need to be posted for each individual licence; adverts can be applied collectively. For example, if a number of venues are going through the licensing process, they could all be captured within the one advert, which would reduce the cost burden.
Yes. The cost that is being referred to relates to the fact that, when a local authority determines the change through a public entertainment resolution and says what it is going to license, it has to advertise that fact and invite comments. It has to put in another advert at the end of the process showing what the final resolution looks like. It is not about individual applications; it is about the totality of what is changing within a local authority area.
11:15
I want to return to the submission from the Scottish Taxi Federation. It said that the bill will impact on its members because of the Government’s comments that additional costs should be charged to licence fees. Paragraph 170 of the financial memorandum gives an indicative value of the cost to drivers, vehicles and booking offices, with examples of fees in five licensing authorities. Do those examples include any additional costs for the implementation of the bill, or do the comments from the Scottish Taxi Federation reflect the fact that those costs are likely to increase in the future because of additional costs through appeals and other impacts of the legislation?
The financial memorandum reports licence fees that were being charged at the time we asked. Those are existing costs.
What assessment have you made of the impact that the legislation might have through additional or increased costs for licence fees for taxi drivers?
It is difficult to gauge because overprovision in relation to private hire is a discretionary power. It is up to local authorities whether they wish to introduce it. When we consulted, there seemed to be broad support for it and the evidence that came in response to the call for evidence does not seem to indicate that local authorities are keen to use the additional power. If local authorities decide not to use it, no additional cost will be incurred.
The Scottish Taxi Federation wishes to be clear whether, if a local authority applies for that power, the cost of the overprovision section and the possible court challenges will only be charged back to licensees for private hire care operators, or whether they will be charged back to the regime in general.
I have had a look at the bill, but I am not a lawyer so I cannot really offer a legal view. It does not seem to me to be prescriptive about how the local authority would allocate that cost and whether it would be to just the private hire element or the whole taxi element. At the moment, there is an unmet demand test in relation to taxis. I am not sure whether local authorities restrict the cost of that to the existing taxis or whether they spread it across the private hire regime. I suspect that it is really an issue for the local authority to decide on.
There appear to be no further questions from the committee. Do you have any other points to make to the committee before we wind up the meeting?
We thank you for asking us to give evidence today. If we can help with anything further, please let us know and we will happily provide further comment.
Thank you very much for that. That being the end of the public part of today’s deliberations, we will move into private. Before we do, I would like the committee to agree that we will look at the report of the evidence in private at our next meeting.
Members indicated agreement.
Thank you.
11:18 Meeting continued in private until 11:33.