Official Report 358KB pdf
Our next agenda item is further consideration of the Licensing (Scotland) Bill. I welcome Patrick Browne, the chief executive of the Scottish Beer and Pub Association, and Sue Allen, the vice-president of the association. I apologise that we overran slightly on our previous item of business—I hope that we will not detain you for too long. I ask Patrick Browne to make his introductory remarks on the bill, after which members will ask questions.
I thank the committee for the opportunity to give evidence on the Licensing (Scotland) Bill. I have with me Sue Allen, who is the regional director in Scotland for Punch Taverns. The Scotland on Sunday newspaper recently described her as Scotland's top landlady. Punch Taverns operates 450 of Scotland's 5,000 pubs, which makes it the country's largest pub operator by far. Sue is also vice-president of the Scottish Beer and Pub Association.
Where you disagree with the proposals in the bill, will you spell out what you would put in their place?
We disagree with some of the details of the bill. The main issue is probably the duty to assess over-provision. At present, licensing boards use their local expertise and knowledge in making judgments about over-provision. Our concern about the strategy of having a national licensing forum that will arrive at a formulaic assessment of over-provision is that the local knowledge and expertise that the boards have traditionally used will be lost and will be replaced by a central method of decision making. We would prefer boards to continue to be allowed to exercise their local knowledge in making judgments about over-provision.
Do you think that the market will play a big role? You have heard some of the evidence that there has been a tendency to be defensive about allowing in new entrants or new products, however you want to describe them. Should the market decide whether something survives?
Individual licensing boards should be free to judge whether there is over-provision in particular locations. Our concern about the provisions in the bill on over-provision is that they could lead to no new licences being granted in particular areas, which would drive up the paper value of licences in those locations. New operators that try to access those markets would have to pay a premium for their licences, which would leave them with less cash to invest in those businesses if they were successful in taking them over. There is a particular problem with dealing with competition issues by locking down the market in that way.
I therefore presume that you are against any linkage between a licence and the capacity of an establishment.
Individual licensing boards have to judge whether the relative size of premises will meet demand in a local area or lead to over-provision. There is a danger that local knowledge and expertise will be lost if some kind of formulaic assessment of over-provision is used.
You said that you would welcome a single licence that covers all forms of establishment, be it off-sales, on-sales or whatever. What is your view on over-provision and controls for off-sales?
At the moment, something like 40 per cent of alcohol sales are in the off-sales sector. That trend has developed during the past 20 or 30 years in response to customer preferences and the fact that the consumer can now access alcohol from a variety of sources and in a variety of ways. The traditional blurring between the on-trade sector and the off-trade sector has been removed in the past 10 to 20 years. People get their alcohol from various sources and they drink in various environments. Again, individual licensing boards should judge whether there are too many off-sales or on-sales premises in a particular location.
Bruce Crawford has a supplementary question, but first I have a question. Would having only one type of licence make it more difficult for the licensing board to make a decision on over-provision when it believes that such over-provision is within one sector? Some of the argument for having more than one type of licence is that different forms of knowledge and training are necessary for running a pub in comparison with what is required for running an off-sales establishment. Is that a legitimate argument for having different types of licence for those two types of premises?
We welcome the development that there will only be one licence. As I said, in the past 20 to 30 years, there has been a blurring between the different types of premises, whether they are pubs, restaurants or hotels. For example, hotels increasingly tend to operate hotel bars as pubs.
I want to try to get under the over-provision issue and build on what the convener said.
The creation of one type of premises licence would be a welcome development. At the moment, many licences are dependent on classifications of premises that no longer apply. Our view is that rather than the Executive taking a formulaic approach by issuing national guidance, it would be preferable if local licensing boards were able to use their knowledge and expertise when making such judgments. The operating plan should make it entirely possible for a licensing board to make a judgment about the different ways in which a premises will be operated and to decide, for example, whether it should grant a supermarket a licence or allow an additional pub application. It should be feasible for such distinctions to be made in the wording of an operating plan.
You would make a good politician, because you successfully avoided discussing the scenario that I described. I understand why you might have wanted to do that, but if there was a formulaic process—you couched your answer in such a way as to suggest that there should not be—would that change your mind?
Obviously, if a formulaic approach were adopted by the national licensing forum, the trade and applicants would have to deal with that, although it would still be for individual licensing boards to regulate the situation. Our preference is for local boards to be allowed to use the expertise and knowledge that they have developed rather than to have central guidance on an issue that is largely determined by local factors.
I accept that, but I am concerned about what would happen if a formulaic approach that did not suit your organisation were adopted.
We will come back to Bruce Crawford's other questions shortly.
My first question relates to some of the evidence that we received from the Glasgow community representatives on the impact of licensed premises on local communities. Examples were cited of how licensed premises can have both external and internal disturbances and of how that can impact on communities. Do you acknowledge that there is a need for licensed premises to invest in the surrounding environment, whether through closed-circuit television or greater involvement in activities such as clearing litter? I realise that it would be difficult for you to say that you would welcome such developments, but in a large number of premises, investment seems to be focused within the premises.
If the members of a community have a legitimate issue with the operation of a licensed premises, it is right and proper that they should be able to raise it, as is the case under the current licensing legislation and with environmental health matters. If someone has a genuine, material issue to raise, it is right that their case should be heard. However, I am concerned about the suggestion that the neighbour notification radius around a licensed premises should be extended to 50m. My worry is that, in more urban areas, that would mean that an awful lot of notices would have to be sent out to local people.
I was wondering whether there should be a levy. I know that it is difficult for you to support that idea, but do you acknowledge that community representatives have asked why the council should clear up all the litter and deal with the other aspects of behaviour that licensed premises encourage; why we should pay the police bill for the large number of call-outs to licensed premises; and why owners of premises do not fit a CCTV system to serve not just their premises but the community? Could we include something in the bill that would give people a bit more confidence that licensed premises are working with the community? At the moment communities think that proprietors focus purely on the inside of the premises.
My concern about having general guidance is that one size never fits all. If there is a specific issue at a specific premises, that should be dealt with in the operating plan and by the local licensing board. However, I understand where you are coming from. The argument is the same for other retailers, such as McDonald's, being responsible for picking up the litter outside their premises, which I support fully. My concern is about generalising too much.
As responsible operators, our clear view is that if a premises is causing problems the licensing board and the police should address those problems and, if necessary, shut down the premises. We are not in favour of bad operators being allowed to continue to operate if they are causing problems for their neighbours in the community. If there is an identifiable need for CCTV, I am sure that individual operators would consider that. Under the bill, depending on premises' operating times, there will be scope to impose additional conditions on the licence, which might include the installation of CCTV cameras, although we have concerns about CCTV being imposed on all premises irrespective of whether it is required.
You said that the marketplace will take care of all the competitive factors. How fair is the marketplace at the moment? Having large groups of branded pubs seems to minimise the opportunity for the smaller proprietors to make a profit. How fair is it to throw everybody out there and let them get on with it, given that there are anti-competitive processes that do not encourage the existence of the small pubs that people used in the past? We have seen such pubs close down as the branded pubs have expanded.
It is not just about the operation of the market; pubs operate within the regulatory environment of the licensing system. However, the marketplace has a role in putting out of business pubs that are not very good or allowing the owners of such premises to sell them to somebody else who can operate them more effectively.
Do you accept that the marketplace will not always take care of the issues that you have raised? A number of large branded pubs have taken measures that are making things difficult. We have to accept that it is not just the weak that are unsuccessful; people who have run pubs for many years find themselves unable to compete with the larger, branded pubs that are clearly marketing against them.
Public houses operate within a regulatory environment. If they were pursuing anti-competitive practices, I am sure that this Parliament or the Westminster Parliament would address that. The industry has recently been the subject of investigations by various parliamentary committees. The pub trade operates in a regulated, licensed environment, so it is not just about the market.
I want to pick up on Sue Allen's concerns about the intention to increase the radius for neighbour notification to 50m and to seek your views on the proposal to allow any person to object. You say that you are opposed to the 50m neighbour notification radius, which your helpful submission explains is because of the cost to the boards of that extra level of notification. It could be argued that your opposition arises from your belief that you are likely to get more objections if more people get notifications. However, you could not argue that those people do not have an interest in what is going on in a public house or other establishment within 50m of their home.
I do not think that we object to the proposal to allow any person to object to a licence, but objections should be real, material and commonsense rather than frivolous or vexatious. I know from experience that if there is a problem with a pub, that is well communicated in the area. Objections from many people are already heard by our local licensing boards and it is right that people should have a right to say that they are affected by the way in which a licensed premises is operated. I have no objection to people being able to object.
You are saying that it is more reasonable for someone who has a real, material objection to be able to object than it is for someone who lives within an almost arbitrary 50m boundary. I hear what you are saying about the rural dimension, but although it might be an extra administrative burden for a board in an urban area to let people know what is happening with an application, the impact of living within 50m of an urban pub in, say, Edinburgh's Grassmarket can be quite considerable and the impact on someone's life is likely to be greater than if they were living within 10m of a rural pub in the middle of Inverness-shire. You seem to be arguing that any person who has a commonsense reason should have the right to come forward with an objection. That is the existing position and you would be quite happy for that to continue.
Yes.
I will ask about the national training requirements that are mentioned in the bill. Are the provisions for personal licence holders adequate and appropriate? The submission from the Convention of Scottish Local Authorities says:
As a member of my association and as a representative of my company, I welcome the inclusion of training in the bill. It will do the industry a lot of good to uprate the training that is given and for training to be made mandatory.
The issuing of a personal licence for 10 years was one of the recommendations of the Nicholson committee. We are relaxed about that because if someone who holds a personal licence abuses their position or is found to be operating incorrectly or out of line with the regulations, they will be brought in front of the licensing board and the matter will be dealt with. Rather than our having any difficulty with someone having a personal licence, there is a presumption that people will have such licences and that if they abuse their position, the matter will be dealt with. We would support that.
There might be quite a high turnover of bar staff. What sort of training do you think that they should have?
I assume that you are referring to casual student employees who work in bars only for a matter of weeks. There should be a responsible person on the premises who has been fully trained, and the casual employee should be given some form of on-the-job training when they start the job—even if it is only a trial shift, during which they are shown the proper way in which to do things and health and safety issues are explained, such as how to recognise when people are intoxicated. They should be supervised during their shift. I cannot see how we could possibly make training mandatory for such temporary workers.
Some people are concerned about the additional costs that the new proposals will involve. In particular, licensing standards officers will be involved in the process. What is your view on that? Should the cost of the new licensing process be met from general taxes or should it be self-financing through fees? What methods should be used to set the fees? We have had a fair bit of discussion about whether the fees should be based on property, turnover or profit. Which should it be?
The difficulty is that that detail is not in the bill, for understandable reasons. We are told that the Executive will produce detailed proposals before Parliament has completed its scrutiny of the bill.
That is useful. In fact, there were some interesting faces behind you when you made that comment.
Are you about to go into a different area, Bruce?
No, I want to tease this matter out a little more, because I think that we might be facing a problem. The minister might well suggest such proposals, but those proposals might not emerge during our evidence-taking sessions. As a result, we might not get another chance to ask these witnesses about the type of fee arrangement that might be appropriate. I cannot imagine that your organisations have not discussed this issue, but it might well be that you have not reached a conclusion on the right way of doing this. I realise that you might not be able to deal with the matter today, but it would be useful if you provided further written evidence on whether fees should be set according to profit, turnover, property size or number of customers. I do not know how the heck you will do that, but such information will be useful.
I am more than happy to ask my organisation for a response to that question. However, I will say that, as far as the licensed trade is concerned, such a mechanism already exists. For example, the way in which the current business rates structure directly relates the turnover of a premises to the rates that it pays is pretty transparent.
I know that the business rates mechanism is slightly different for hotels and pubs. They are not treated in the same way as other businesses.
My evidence suggests that our members are happy with the fact that the current business rates structure relates their turnover to the amount of rates that they pay. Again, I am happy to seek a response from our members on that matter.
That would be useful.
You have already raised your members' concerns about potential gold-plating. Where in the bill might that occur?
Concerns have been raised about the fact that some elements of the local authority licensing mechanism, which has operated for a number of years, are self-financing while others are not. For example, many licensing boards draw on services in their local authority to provide the licensing mechanism and perhaps do not fully recharge them.
I suppose that the question was more about potential gold-plating in the bill.
I agree in part with what you say. We set out our position on grandfather rights in detail in our submission. A precise form of words must be used.
In your submission, you say:
I agree with that assessment.
Your submission indicates that you are quite comfortable with the provisions on statutory permitted hours. Are you perfectly happy that there will not be distinct regional variations in licensing boards' approaches to permitted hours? Are you concerned about the lack of a simple process for occasional extensions of permitted hours?
If we accept the Nicholson recommendations and the bill, we must accept that individual boards will make judgments about local circumstances, which will be reflected in the trading patterns of their areas. That is the regime that is to be introduced and we support it.
Finally, on irresponsible drinks promotions, how comfortable are you with the bill's provisions in relation to the on-trade? It has been suggested that there is an omission in the bill, in that there appears to be no requirement on the off-trade with regard to what might be regarded as irresponsible drinks promotions.
We support action to tackle irresponsible promotions. The Executive has taken such action in the bill, but we have a slight concern because promotion is not just about selling drinks at reduced prices at certain times; it is also about promoting new products in the marketplace or trying to encourage people to switch from one brand to another. For example, we might need an opt-out for promotions of new products, but that is a matter for the committee to judge.
You have certainly finished your evidence on a high with that observation. I thank you for your evidence, which has been useful and which will help the committee in its consideration of the bill.
I thank the committee for inviting us today. We are not Argyll and Clyde—that is the health board.
Sorry, I meant Argyll and Bute.
You have already introduced the members of the Argyll and Bute licensing board. A number of years ago, Argyll and Bute Council decided to divide its area into two divisional licensing boards: Bute, Cowal and Lomond divisional licensing board and Lorn, mid-Argyll, Kintyre and Islay divisional licensing board. I am chairman of the Lorn board and Daniel Kelly is chairman of the Bute one. I understand that the note that we prepared has been circulated to members of the committee, so I do not intend to go through it. I hope that during the meeting we will have the opportunity to expand on the issues that are raised in the note. Given what happened in the previous session, that will be quite interesting.
I do not have much to add, except that I welcome the golden opportunity that you have to solve what are common problems in Scotland. I ask Robert Millar to enlighten the committee on a small correction to our submission.
We welcomed the opportunity to lodge a written statement but, unfortunately, in the rush to prepare it we made a mistake. In the paragraph on the size of boards, we refer to a minimum of 10 members. Of course, the bill proposes a minimum of five members, so our submission should read "five and three", not "ten and three".
I represent an area in which divisions in boards are not uncommon. The idea that a licensing board has to cover a whole local authority area seems to relate to some areas but not all. In the evidence that we took in Glasgow last week, concern was expressed to us about the proposal that the Glasgow licensing board should be divided, instead of having a single board with fewer members covering the whole of Glasgow. I am interested in hearing your perspective on the proposals on the size of boards, and particularly on the idea of licensing boards with five to 10 members. I am aware that some licensing boards are almost the size of some councils, and I would like to hear your perspective on the idea that they could not operate if they were smaller. I seek responses from you on the scale of licensing boards. How many members do they need if they are to work?
In Argyll and Bute, there are two distinct geographical areas, as I explained. Members come from various parts of Argyll and Bute and they bring to the boards their local knowledge of the issues. For example, a few weeks ago, four members were in favour of something that had been proposed in their own area, but the members from outwith the area opposed it. Members have a local perspective on matters that affect their areas. The number of licensed premises in Argyll and Bute is in the order of 640—I shudder to think what the figure per head of population is. We have to deal with a lot of licences throughout a wide area, so we rely on local knowledge.
One of our major concerns is that in a city the size of Edinburgh, which is developing at a huge rate, and to which everybody wants to come to open clubs, luxury hotels and so on, we need consistency of grant. If the grant is too small or boards are very small, we will not get the required breadth of knowledge from the city.
We are trying to tease out the arguments. In evidence last week we heard one perspective, which was that if local knowledge was used and the people who made the decision were local to the area, they might be susceptible to local pressures, whereas if the board included the wider geographical area, local pressures would dissipate, and decisions could be made without pressure from local communities. What are your views on that? I see that Councillor Attridge is keen to get in, so I will take him first.
Boards have two types of members, who can be easily classified as openers or shutters. If you have small boards, you can bet that premises will not be opened, which would be unfair on those people who wish to come into and develop the city. We need development. We are a major tourist attraction. We need consistency and breadth on boards, which will take the wind out of the sails of parochial nimbys.
Rory Colville wants to answer as well, but I refer again to a recent debate and vote that we had on a proposal: local councillors voted for the proposal, but people from outwith the area voted against it. That gives a good indication of the situation.
I agree with the provisions in the bill that would allow boards to divide if they wished. We say that we have a drink culture in Scotland, and we certainly have a different culture in Islay and Mull. With all due respect to Danny Kelly, I do not think that the councillors in Helensburgh would fully understand that culture. We have 26 islands in the Lorne, mid-Argyll, Kintyre and Islay area. We need to have local knowledge. It is important that we retain the right of boards to decide to divide.
So you are happy for the bill to allow horses for courses.
How do you mean?
Just as you describe it. Boards should be allowed to divide where it is appropriate to do so, and boards in cities should be allowed to take a wider perspective and to be as broad as possible.
There has to be that flexibility.
I have a couple of issues. The bill proposes that any person will be able to object, as opposed to the present position. What do you think of that? What will be the implications for your boards if that proposal goes ahead? Could you also address the issue that I touched on with the previous panel, which is the proposal to increase the area for neighbour notification around licensed premises, to try to involve the public in decisions to a greater extent? How can we find ways to engage with the public on these important issues without it always coming down to nimbyism, which Councillor Attridge mentioned?
The Edinburgh board is happy to embrace the inclusivity that is suggested and to bring more people into the process. I am sure that the convener of the board agrees that one of the big problems is that many objectors go part of the route in lodging objections. They will attend a board meeting and then meet a technical problem that means that their objection is declared incompetent and they must walk away from the meeting without being heard. That is unsatisfactory for members, highly unsatisfactory for the individuals who are involved and unnecessary. Those people will have failed to clear a technical hurdle.
Are you quite relaxed about the point about neighbour notification?
Yes. I understand that there will be a duty on the clerks, but, as long as the resources are there to carry it out and the clerks are properly resourced to serve notices, that should not be an issue—the process is administrative.
Do the gentlemen from Argyll concur with that?
We endorse what has been said. We are in favour of the involvement of as many people as possible. However, planning applications for buildings attract objections from across the world. Where does it end? We need to be sensible. We are keen to hear valid and competent objections and to let people have a voice, but there must be some perspective.
I have a point to make about occasional licences, about which we would like to say something at some stage.
My next questions cover occasional licences.
I foresee a huge workload with occasional licences in particular. I noticed that the clerk must pass objections to occasional licences to the applicant. Obviously, that will not happen so often with permanent licences, but if there are up to 16 licences for organisations a year, there will be a huge workload for the clerk in notifying the applicant and vice versa. I visualise a lot of extra work if the public object to occasional licences.
My next questions are indeed on occasional licences. Board members have highlighted concerns about the proposed number of such licences and the training of staff. I want to tease out a little what your proposals would be and what would be reasonable. In responding, Mr Millar could pick up on what Councillor Colville has said about the extra administrative work that would be involved.
The Edinburgh board already operates a system in which there is notification of occasional licences. The current system requires the applicant to notify the chief constable, but a great many applicants do not do so in practice. A process has therefore developed over the years whereby there is, in effect, notification. It is clear that there will need to be more notification but, as I said, that is a matter of resources. Through the increased use of information technology and the geographic systems that are now being introduced with IT, it is possible to identify premises that require to be notified. If the system is in place and properly operated, it could do the notification itself. Therefore, I do not see the issue as being a major problem.
I think that the figure of four occasional licences in section 53 could be increased, but 56—that is more than one a week—could become a nuisance and the use of untrained staff would become an issue. It is not common sense to have such a high number of occasional licences. Training, or the lack of it, is one of our worries.
Before we go on to Argyll and Bute, I will pursue questions with Robert Millar about the process that he would expect to be followed under the new regime to deal with occasional licences.
For occasional licences, as opposed to occasional extensions?
Sorry—occasional extensions.
The board's statement of policy would be the starting point. The board would have to indicate—I will take Edinburgh as an example—that, during the period of the Edinburgh festival and the winter festivals, an automatic two-hour extension to normal hours would be granted to premises and that perhaps for other events a one-hour extension would be allowed. The premises would indicate in their operating plan whether they intended to take up the extra hours. Thereafter, there would be no further notification for occasional extensions.
Would that process cover not only major events such as the festival but matters such as a wedding booking?
The nature of the premises would need to be taken into account. If the premises regularly operated a wedding business, it would be able to deal with the matter through its operating plan. If a premises were being refurbished, for example, and there was an intention to move into that market, that would be a major variation anyway and the public would have the opportunity to come in at that point. The board would determine whether the premises were suitable for that business.
If ad hoc occasional licences were required, do you envisage that a licence holder could submit in their operational plan that they wanted 12—or any other number of—ad hoc occasional licences a year to allow them to deal with unexpected circumstances? Would the operational plan be the appropriate place to do that? How would you deal with those situations?
The board would have to indicate that it was prepared to consider requests for ad hoc extensions in the operating plans. The bill seems to suggest that, if there is an ad hoc extension, the operator of the premises is making a major variation. We need to consider, perhaps in a way that has never been done before, the type of business that operates on the premises. That is what the boards will be doing with the operational plans. If the premises already has in place a function suite that is used every weekend for an ad hoc function, be it a wedding or an anniversary celebration, that is taken into account in the hours that are granted.
My concern is that we will be in a situation where the fees will go up. It is a nap that that will happen. Some businesses will face pressure on their books because of the legislation on smoking in public places and will have to be fleet of foot to stay alive. We must find ways of enabling those who are capable of changing their business profile in order to stay alive to do that. Perhaps that means that some sort of ad hocery should be built into the operational plan. If that was going to happen, some sort of national standard would be needed. Do you support the idea?
Yes.
There are a fair number of voluntary organisations in Argyll and Bute and many of them ask for occasional licences. That gives the licensing board and the police quite a problem, especially on the islands, because of the nature of some of the functions.
How much of that is caught up with the issue of lack of training for the people in voluntary organisations who organise those occasions? How big a problem is it?
It is a big problem. The staff in many of the voluntary organisations have not had any training, but we would like them to.
Years ago, when I worked in Edinburgh, some of the licensing authorities decided that if an organisation wanted a bar—say for a school fete—a local licence holder had to deliver it by making the application and so forth. Is that sort of arrangement for one-off occasions under consideration? If so, would the local licence holder be required to be present in person and to be responsible for the occasion?
Yes.
The practicalities of the proposal would not work on the islands. We have looked at the idea, but licensees are not interested in running those sorts of occasions at the moment. The trouble with occasional permissions is that they are considered part of the culture in certain remote areas—what else is there to do?
I will take up what Mr Crawford said about people having to look about for opportunities when the smoking ban is introduced. That will offer another business opportunity for personal licence holders. Somebody who is trained and trusted and has a licence could run occasional events. The solution is available if we look deeply enough.
To run occasional events, somebody who is responsible and is seen to be responsible must be involved. I am sorry—I cannot see the name-plate of the member to whom I want to refer.
My name is Bruce Crawford. I will turn my name-plate towards you so that I can become world renowned.
I could not see the word "Crawford"—I thought that it said "Robert".
Does Bruce Crawford want to pursue his original question?
Yes. What are the gentlemen's views on how the licensing standards officers might be best managed? Should enforcement by them be under a board's control and direction or should they operate separately as council officers but still report to a board? Another view that has been floated—I would like to know whether it has much credence—is that the police might employ LSOs, who would still report to licensing boards. A plethora of arrangements could be brought to bear on how best to employ LSOs. What are your feelings about what the LSOs' main role should be in comparison with what the police do?
We envisioned LSOs as being along the lines of environmental health officers and having many powers of entry. We accept that councils, not boards, will employ LSOs. LSOs should not be employed by the police. The police will still report to boards and we do not want to hear from two branches of the same department—I would like to hear a slightly different view.
Our submission highlighted concerns about the lack of input to a board under the new arrangements. I am aware that the position varies across the country, but the Edinburgh board has the benefit of input from the fire and police services and from several council officers, including those in food hygiene and environmental services.
Do the gentlemen from Argyll and Bute want to respond?
My view is similar. We had a vision that the LSOs would be attached to the council, simply because of the area that we cover. The workload for the LSOs would be considerable, given what they would have to do and where they would have to go. We have about 640 licensed premises in Argyll and Bute.
We must remember the spread of Argyll and Bute. The licensing board that I chair covers the area from Helensburgh to Rothesay, away down to Tighnabruaich and nearly up to Inveraray. That is a big area. The other licensing board covers the Oban and mid-Argyll area, which is massive and has a huge number of islands. The job would be a big one and a big responsibility.
We anticipate that we will need two LSOs—one for each division—because of the huge area that is involved. We have a pub on Sanda that takes a whole day to get to—it is designed purely for sailors. We have 26 inhabited islands, more than half of which certainly have some form of licensed premises, although I am not sure of the exact number. A big concern is how we will pay for the officers. I am sure that the committee has heard before from Argyll and Bute Council about the issue of sparsity—the population is spread throughout the area. Argyll and Bute Council cannot afford to subsidise the officers, so they will have to be funded either out of the fees or centrally.
I hear what you have all said but you are arguing for a situation in which the individual who will be trying to enforce a board's policies on the ground and who, no doubt, will be involved in the education process will operate at arm's length from the board. Can the proper direction and focus be achieved, if, as Robert Millar envisages, LSOs are employed more broadly as council officers? It does not matter whether the officers are employed by the council or the board; the issue is whether they will have the right focus and direction if they operate at arm's length from the boards. I need more from you to convince me of that—I might be convinced, but you have not got me there yet.
That brings us to the subject of licensing forums. We have a large forum and believe in working in partnership in a city the size of Edinburgh. Unless we work together, nothing happens. We have a forum of around 50 people. It does not meet once a year, as envisaged in the bill, which would be a waste of time; instead, the board meets the forum before every quarterly board meeting. We have solved problems through our forum, which includes licensing solicitors, agents, council officers, representatives of different types of licensed premises and community councillors—you name it, we have it. If a person is relevant, they are in the forum. The issue is all about including people and working together. Therefore, in Edinburgh, any licensing standards officer who thought that he was at arm's length doing exactly what he wanted would be told something different. He would be there to work for the betterment of the city and for health and safety.
Surely he would be there to enforce the board's policies. There may be a conflict between the city's agenda on economic development and the requirement on the licensing board to ensure that the licensing system operates effectively in a given area. Tell me if I am wrong, but I just want to test the argument.
Possibly Edinburgh has been fortunate in not having had a breakdown between the council and the board to date. I am employed by the City of Edinburgh Council but have effectively been seconded to the board. The same could be done with the licensing standards officers if that was what was wanted. I do not think that Edinburgh has envisaged a problem with that. Perhaps that was foolish, but it was felt that, as the council is the body holding the money, the revenue would pass through the board to the council. The council would then continue to pay the necessary number of officers. However, that is a purely administrative arrangement and the system could easily operate in a different way.
If fees are going to be recovered from the licence holder and it is all going to wash its own face, all the board will be is a post office for the money going from one place to another—it will not be accountable for the money that is being spent. We could argue for a long time but—
Please do not.
I need a bit of convincing and I do not feel as if I am getting it.
I do not think that there is conflict between the councils and the licensing boards. We have to work as one to make sure that the regime operates to the benefit of both. Bruce Crawford alluded to economic development. The licensing boards operate completely differently from the councils and have to make their own decisions based on the legislation that is in front of them. Whether a council has a different economic or social view, we are bound by the legislation and that is how we will operate. I do not mind who pays the LSO, as long as it is not the council. Someone has to pay him, but he must do the right job. There has to be a job description and we have to find out where the money will come from. If it comes from the licensees, that is fair enough, but there will be complaints about it. The job is necessary; we have to have LSOs and we have to fund them.
Two general issues have been raised in all the evidence sessions on the bill. One is about over-provision and the other is about the automatic granting of grandfather rights and the possible opportunity to improve standards. What are the views around the table on those issues?
We touch on grandfather rights in one of our submissions. We have some premises that we would not want to have grandfather rights to keep putting on certain kinds of what they call entertainment. We do not agree with grandfather rights. We envisage the majority of licensed premises carrying on as they are, but there are some that give us cause for concern, mainly because we have no means of controlling what they put on—indeed, under the bill, we would still have no control. Those premises cause considerable problems in Edinburgh city centre. However, if an establishment is putting on bona fide entertainment, it will not have any problems.
You are saying that you are not wanting to blank out grandfather rights but that there should be some assessment of whether they should be granted on an individual premises basis.
Yes.
Apart from adult entertainment, which you mention in your submission, are there any grounds for giving the board the right not to allow such a licence?
Training people to meet very high standards and criteria would be one consideration.
Earlier, one of the witnesses mentioned the fact that their organisation provides extensive overall training. Out in the real world, there are seven different types of licence and we have granted them all. My worry is that, with only one type of licence, someone who is running a small pub with a capacity of 15 could use grandfather rights to move to a pub with a capacity of 500. The board could consider individual circumstances, but if grandfather rights could be granted automatically, that would make things difficult.
I presume that, if somebody moved from one premises to another, that would constitute a variation, so the matter would come back to the board.
Fair enough. As I said, we have to look at each case as it arises. Our concern is about how we cope with the transition period and the effect that that will have on councillors' ability to do their other work. How much work we will have to do is a grey area. Each case will have to be considered and we might have to let some cases go through on grandfather rights. If we do not do that, it will not be feasible to keep the system going. However, I do not think that there should be automatic grandfather rights.
David Davidson asked about over-provision. The policy memorandum clearly says that over-provision is the fundamental problem. Although the bill will lead to improvements, which is to be commended, my reading of the situation is that there will be further provision.
Will the introduction of the single premises licence make it more difficult for boards to define over-provision?
I do not think so. When we consider an operating plan, we will decide whether there is over-provision of that type of operation. I return to the size of the boards: on a good board, there is good breadth of knowledge and it is possible to ascertain whether there is over-provision in the city. The over-provision of alcohol licences currently makes that difficult.
That brings us to the end of our questions. I thank the witnesses for their evidence.
Fiona Stewart and I are representing SOLAR, which is the organisation that represents lawyers and professional administrators in local government. As the convener said, we are clerks to our respective boards.
We welcome the opportunity to give evidence to the Local Government and Transport Committee. COSLA has been looking into the principles of preventing crime and disorder and promoting public safety. I do not sit on a licensing board; I think that that is why I was picked as the chair of the bill team. We are not experts on the subject. We had to try to reach consensus with the chairs and secretaries of several boards, which covered the north of Scotland to the Borders, and east to west, in the form of Edinburgh and Glasgow. We tried to form a consensus from the views of all those boards to represent the general position of COSLA.
We get the impression that most people welcome the bill, but that some concern is being caused by who would have the right to object. The bill proposes, basically, that anyone could object. How difficult would that make life for the licensing boards?
From the point of view of the clerks, we welcome the provisions in the bill, which reflect what happens under the Civic Government (Scotland) Act 1982. Occasionally, we get a large number of objectors to a specific application, but most objections that we receive under the 1982 act are genuine and require to be heard. We welcome the idea of opening up entirely the list of objectors and allowing any person to object.
Does COSLA share that view?
The consensus in COSLA is that we should open up the process to more objectors, but that it would be better to contain objections within the relevant licensing board area. There may be a need to review who can be statutory objectors, so that people such as MSPs and MPs can object. They may not live in the board area, but they might want to articulate a position.
What is your view on the police becoming objectors?
There are areas in which the police could become involved, but it is for the committee to decide whether the police should be statutory objectors. They can certainly raise issues in other licensing committees.
When the bill is passed we will have made the decision, but we want to make the right decision. We are looking for good evidence on why certain groups should or should not be objectors, and anything that you can suggest in that regard would be helpful to us. Does SOLAR have any reservations about broadening the list of objectors as widely as that?
Our submission refers to a right of appeal for objectors; we are strongly of the view that there should be such a right. However, that creates a problem in that if the list of people who are entitled to object is opened up entirely, the number of people who may have a right of appeal will inevitably be wider, too. A decision will have to be made on whether to go for a completely open list of people who are entitled to object and give them a right of appeal, or whether to restrict the list and thereby also restrict the right of appeal. I cannot suggest any solution to that problem.
Would the boards become overburdened clerically if they were trying to deal with that level of competition between one side and another? That might not be the best way of putting it.
As I said, we have some experience of objections under the Civic Government (Scotland) Act 1982. Occasionally, an application attracts a large number, perhaps hundreds, of objections. Making the process work in practice in order to hear all those objections is an administrative nightmare, but it can be done. I would hate to think that we were excluding competent, valid objections on liquor licensing.
From my experience and as a result of some of the evidence that the committee has received so far, I am concerned about the requirement—or the lack of one—on licensing boards to take cognisance of information that the police have. Although licensing boards can request information from the police, that does not always happen. Should it become a statutory requirement that information be requested from the police before licences are granted?
I hope that the licensing boards would consult the police on all applications. The police currently have the right to object and to make observations. In my experience, they use that right.
They do when it is requested of them, but should it be a statutory requirement that information from the police should accompany all licence applications?
My view is that the current system works quite well. The police have the right to object and to intervene in the process as they see necessary. They intervene at the appropriate time.
My experience tells me otherwise.
There is concern among some clerks that the police will be reduced to saying that Joe Smith has previous convictions or no previous convictions, whereas under the current system the police can provide information that might not relate to a conviction on the part of an applicant but which might still lead the board to consider that the applicant should not get a licence. There is concern among the clerks that such information would no longer be available to the board, because the police would no longer be able to provide it.
The issue is not only the applicant's previous convictions, but the applicant's premises. In some cases—my experience backs up Michael McMahon—communities object to applications, but when members of the community arrive at the meeting of the licensing board they are told that no police report has been received about activities at the premises. Is it not important to have a format that would reassure members of the community that, when they arrive at the board, the police will have reported that so many calls have been made to the premises and that so many incidents have been reported, although they might not have been detected? In that way, the board would have a picture of what is going on around the premises rather than focusing on the individual who is applying for the licence.
I can speak only from my experience as a clerk and say that the police in my area would tend to bring forward that information to the board automatically by way of an observation rather than as an objection, if they felt that it was relevant to the application. I can speak only for my own board area on that point.
Do you recognise that sometimes you might not hear about what is happening? For example, you might not have heard about issues such as those that Michael McMahon and I have had brought to our attention. Perhaps you do not hear about such issues because people raise them with local elected members or directly with the police. It is possible that you have processed applications when 100 telephone calls have been made to the police in relation to antisocial activities surrounding the premises in question, but no report has been made to the board so you have not heard about it. Is that correct?
I accept that.
COSLA's submission mentions grandfather rights, on which you will have heard comments. Obviously, you are involved with two large associations and are not responding as members of boards. What are your views on how the bill is framed with regard to grandfather rights and on the risks of following the English model, which has been mentioned? Will you say something about the application of the proposals and the fact that everything will have to be dealt with almost overnight?
One of the main points that we want to make is that there should be transitional periods. There was general consensus that grandfather rights should not be automatic, but it should be recognised that some establishments would find it difficult to get up to speed with training and standards, for example, especially if we are talking about raising standards in older premises to the level that is outlined in the bill. We do not think that grandfather rights should be automatic, but we recognise that a transitional period might be needed.
Earlier panels have spoken about the need to recognise the impact that grandfather rights might have on progressing the proposed legislation. I reflect on what those witnesses said because there is a link between transitional arrangements and grandfather rights. A significant body of work will be required to try to digest applications that are submitted when seven or eight different types of licence become a single licence. My colleagues have reminded me that single licence applications will be accompanied by operating plans that will allow boards to discuss the types of specialism in those plans. Perhaps that takes us back to the issue of over-provision, which has been raised.
I have a supplementary question for Councillor Swan. Are you suggesting that a transitional period should be granted to the licensing board to deal with all the issues, or that interim provisional or probationary licences should be granted until the board gets round to having a good look at them, which would give people a chance to update or match training needs, for example?
We considered matters with the latter in mind. It is always difficult to achieve wide consensus, but there seemed to be a general opinion that a transitional period would be needed to allow people to try to reach the necessary standards. I would not want to say much more than that.
I note that COSLA's submission raises concerns about adult entertainment. Do you concur with the City of Edinburgh Council's view that grandfather rights should not apply to premises that provide adult entertainment?
The City of Edinburgh Council was involved in the consensus and I bow to its knowledge. As you know, we do not have such entertainment in the West Lothian Council area. There was concern that adult entertainment should be dealt with under different legislation and people who are present thought that the issue should have been considered at an earlier stage.
Do the representatives of SOLAR want to respond to Mr Davidson's points?
Yes. SOLAR is opposed to automatic grandfather rights. Our view is that boards should have the discretion to deal with applications for licences in accordance with their policies. Allowing automatic grandfather rights would simply re-license what is there at present, even though every board has a small number of premises that give concern and which need to be addressed. If discretion was left with the boards, those premises and licence holders could be addressed by way of conditions.
What about the workload that the officers and officials will have to deal with on behalf of boards in the beginning, when there is an overnight rush to register?
Again, the answer is to have a reasonable transition period. There needs to be a period of perhaps a year or more between the bill coming into force and the commencement date so that licence holders can create operating plans and boards can establish and publish their policies.
From what I have heard so far, there is huge consensus throughout Scotland on the measures. Everyone tells us that they support the bill generally, but I guess that everything will be fine and hunky-dory only until the fee demands start dropping through folks' doors. I do not say that the bill is unnecessary, but I suspect that, when people begin to realise how much some of the measures will cost, there will be a minor revolution out there. People already pay business rates and water rates; the proposed ban on smoking will be a problem for small organisations; disability discrimination issues will become more important; there are fire regulations; and now we will have operating plans and more fees.
I would love to be able to offer a magic solution, but, unfortunately, COSLA has not considered the mechanics of the fee structure, although we will seek full cost recovery from the fees. COSLA accepts that that will mean a significant increase in fees, but we propose that, instead of being presented with a set fee structure, councils should be allowed, within mutually agreed parameters, to set the fee structure for each board area. We have consulted on that proposal. The suggestion would not necessarily keep fees down significantly, but it would mean that, instead of a one-size-fits-all approach—which has been mentioned—boards would be able to consider local circumstances, determine what fees were required and set the fees accordingly.
Is it your argument that councils' general funds could be used to support licence costs, or is it that the number of premises in some authorities will allow them to keep costs low?
It could be either.
That is where I have a problem. On the one hand, I hear that all associated costs should be covered by the fees, but, on the other hand, if we are to allow councils to support the licensing system from the general fund, we will—
I am sorry to interrupt, but we need to bear it in mind that, in the current fee process, councils act as a sort of mailbox or bank account for the money to go through. However, the funds that come in via liquor licensing fees are there to support the licensing staff.
What does SOLAR think?
SOLAR's position is no different from COSLA's. There are different ways of setting fee structures. Various decisions will have to be made in that regard. We favour local flexibility in setting fees and we favour full cost recovery. However, how that can be achieved is a huge problem.
That is the million dollar question, but we have to get there somehow and somebody along with the Executive will have to come up with a solution.
I have a quick supplementary for Fiona Stewart. Like me, you come from Aberdeenshire. You have a lot of small, well-scattered premises, so the time that is taken by a licensing standards officer to move around will be different from the time that is taken by an officer in, for example, the city of Aberdeen. In Aberdeenshire, we have different divisional boards. Do you see the right to cost recovery being based on each divisional board area or on the whole council area?
Good question.
It is a good question. We would have to look at it across the council area, bearing in mind the fact that each board is required to have its own LSO for each division. I think that Aberdeenshire hopes to retain its divisions. The costing has to come from Aberdeenshire as a whole, if the LSOs are to be employed by the council.
If the council does not just move funds around but instead acts as a banker, will it have to come to a view on the costs that need to be recovered? Will the sub-boards have to agree on how that can be dealt with locally?
Given Aberdeenshire Council's nature, I suspect that that would be the case, and that the council would consult the boards.
I presume that there is an overlap with the six area committees.
Yes, but area committee members would be reflected in the boards anyway, because the majority of area committee members also sit on the boards.
Are you saying that Aberdeenshire Council would employ six—
No, three. We have six area committees for the council, but we have three licensing divisions.
But surely even three would not necessarily employ one officer each. Surely the officers would be employed through the council as one entity, so that they could work flexibly in all areas.
Yes.
That is fine. Thanks.
Some people have suggested that defining over-provision will be a problem if all licences are of the same type. You probably heard the City of Edinburgh Council representatives say that it would be possible to do that through premises' business plans. Do you agree that the over-provision of particular types of licences can be dealt with adequately within the single premises licence, or would you prefer there to be distinctions—perhaps not as many as the current number of licences, but more than the single premises licence that is proposed?
Several representations have been made to me on that issue. As I have said, copies of applicants' operating plans, which will set out in more detail the types of activities that they plan to conduct with their licence, will be submitted with single licence applications. Perhaps that will provide some scope to make an easier determination of over-provision. In sitting here and listening to the discussions, I have been reminded that those operating plans will come in at the same time as the applications; we might therefore go down that route.
SOLAR generally supports the city of Edinburgh licensing board's view on the matter. It will not be easy for boards to determine over-provision and it will be even harder for them to declare their policies on over-provision. That will have to be done through examination of the operating plans, which should give us enough information to determine classes or types of operation and enable us to come to a view on over-provision on that basis, provided that there is some definition of capacity. The word "capacity" appears in the bill; there needs to be clarity about the capacity of premises and how that will be determined.
That brings us to the end of questions in the last evidence session of the day. I thank Fiona Stewart, Dan Russell, Jim Swan and Kathy Cameron for their contributions. It has been another useful session.
Meeting closed at 17:52.
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Transport (Scotland) Bill: Stage 2