Official Report 472KB pdf
Agenda item 3, which is our main item of business, is our third and final day of stage 2 consideration of the Air Weapons and Licensing (Scotland) Bill. I welcome back Michael Matheson MSP, the Cabinet Secretary for Justice. I also welcome Colin Keir MSP, who is here to speak to amendments in his name. Later in the meeting, we will be joined by Richard Lyle MSP, who will speak to an amendment in his name. We also expect to be joined by David Torrance MSP, who may speak in support of Richard Lyle’s amendment.
Today, we will consider the remainder of the bill, from section 60 to section 79, and all amendments to those sections. That covers part 3 of the bill, on civil licensing provisions, and part 4, on general licensing.
Before we move on to consideration of amendments, it would be helpful if I set out the procedure for stage 2 consideration. Everyone should have with them a copy of the bill as introduced, the marshalled list of amendments that was published on Monday and the groupings of amendments, which sets out the amendments in the order in which they will be debated. There will be one debate on each group of amendments. I will call the member who lodged the first amendment in each group to speak to and move their amendment and to speak to all the other amendments in the group. Members who have not lodged amendments in the group but who wish to speak should indicate by catching my attention in the usual way.
If the cabinet secretary has not already spoken on the group, I will invite him to contribute to the debate just before I move to the winding-up speech. As with a debate in the chamber, the member who is winding up on a group may take interventions from other members if they wish. The debate on each group will be concluded by me inviting the member who moved the first amendment in the group to wind up. Following the debate on each group, I will check whether the member who moved the first amendment in the group wishes to press their amendment to a vote or to withdraw it. If they wish to press ahead, I will put the question on that amendment.
If a member wishes to withdraw their amendment after it has been moved, they must seek the committee’s agreement to do so. If any committee member objects, the committee must immediately move to the vote on the amendment. If any member does not want to move their amendment when I call it, they should say, “Not moved.” Please remember that any other MSP may move such an amendment. If no one moves the amendment, I will immediately call the next amendment on the marshalled list.
Only committee members are allowed to vote at stage 2. Voting in any division is by show of hands. It is important that members keep their hands clearly raised until the clerk has recorded the vote. The committee is required to indicate formally that it has considered and agreed each section of the bill, so I will put a question on each section at the appropriate point.
It is expected that the committee will conclude its stage 2 consideration of the bill at this meeting.
Before section 60
Amendment 93, in the name of Colin Keir, is grouped with amendment 99.
Thank you for your welcome, convener.
Amendment 93 is a probing amendment that takes cognisance of modern technology. When the Civic Government (Scotland) Act 1982 was written, no one would have heard of apps on mobile phones with a direct link to customers that is totally computerised and not recorded locally. Although many locally licensed taxi and private hire car operators now use apps, the advent of multinational companies with no licensed local booking office could well make local conditions that are set by licensing authorities redundant or difficult to enforce. That worry is shared by the Scottish Taxi Federation. Local conditions are focused on the safety and comfort of passengers. Amendment 93 might help to ensure that multinationals realise that such local conditions, including booking office conditions, are a legal nicety that they have to observe.
Shall I speak to my second amendment?
You should speak to both, please.
It is another probing amendment, to section 60. It would bring clarification for local licensing authorities—
I think that you have understood me wrongly. At the moment, you are speaking only to amendment 93 and amendment 99, if you wish.
I see—I beg your pardon. I am speaking only to amendment 93. The other amendment in my name is amendment 94.
I move amendment 93.
We will come to amendment 94 later.
Amendment 99 is designed to ensure that taxi operators are required to have an office in the local authority area in which they are licensed and in which they operate. During the committee’s evidence sessions, we heard a lot of concern from the Scottish Taxi Federation and taxi drivers about the impact of operators such as Uber, which can operate without a licensed premises and might be able to bypass local licensing regimes. Amendment 99 would tighten up the bill to ensure that it reflects the changing nature of the taxi and private hire car industry. It would ensure that companies cannot bypass local licensing regimes and undercut taxi drivers and private hire car companies. In essence, it is about creating a level playing field and ensuring a fairer deal for all in the sector.
I am grateful for the amendments that have been lodged by Colin Keir and Cara Hilton. I share their concerns that the current booking office regime that is provided for in the Civic Government (Scotland) Act 1982 (Licensing of Booking Offices) Order 2009 should be examined again to ensure that it regulates the subject matter effectively.
The stage 1 evidence sessions discussed the need to reflect in legislation developments in modern technology. I have provided an undertaking that we will examine and review the existing legislation to ensure that it operates as effectively as possible. Scottish Government officials have already discussed the growing concerns on the issue in a meeting of stakeholders back in August 2014. A follow-up meeting that is scheduled for Wednesday 3 June will bring together representatives from the police, licensing authorities, academics and the trade, including Bill McIntosh of the Scottish Taxi Federation.
I realise that Colin Keir and Cara Hilton want to ensure that the 2009 order works as effectively as possible. However, I am concerned that, by making an amendment via primary legislation, and then updating the secondary legislation to deal with other issues that may arise in further meetings with stakeholders, we will create confusion and possibly introduce delays. Those delays can be avoided by dealing with everything at the same time as part of a comprehensive package that has had the benefit of full and considered stakeholder engagement.
I therefore ask Colin Keir to withdraw his amendment and Cara Hilton not to move hers, on the basis that the Scottish Government is already engaged with stakeholders on the issue and is committed to updating the relevant secondary legislation. We will keep the committee advised on progress that we make on the issue.
Thank you, cabinet secretary—I found that incredibly interesting. I have a degree of sympathy with Cara Hilton’s amendment 99. However, having listened to the cabinet secretary, I seek to withdraw amendment 93.
Amendment 93, by agreement, withdrawn.
Amendment 99 not moved.
Section 60—Refusal to grant private hire car licences on grounds of overprovision
Amendment 94, in the name of Colin Keir, is grouped with amendment 91.
Amendment 94 is another probing amendment, which goes back to my days as regulator for taxis, among other things, here in Edinburgh. The proposals would bring clarification for local licensing authorities that wish to limit the number of hire vehicles operating in their areas. The issue is one of how to address unmet demand when having to justify the number of vehicles on the roads. With a policy of limiting numbers, an accepted methodology may lessen the chance of a legal appeal for those who have applied for a vehicle licence but who have subsequently been refused.
I have some sympathy for the other amendment in the group, amendment 91.
I move amendment 94.
I call Cameron Buchanan to speak to amendment 91 and to the other amendment in the group.
May I deal with amendment 92 at the same time?
No. You may speak only to amendments 91 and 94 at the moment.
Amendment 91 would leave out section 60 totally, which would mean that a licensing authority would not be able to refuse a private hire car licence application on the grounds of overprovision. Allowing a licensing authority to refuse a private hire car licence application on the grounds of overprovision is severely anti-competitive, and it will hurt consumers, jobs and the local economy, as well as the wider public.
Allowing refusal due to overprovision would be against the public interests, for four reasons. First, restricting the supply of private hire vehicles would limit the ability of consumers to select their preferred option from the different services on offer. That ability to choose is crucial to increasing and maintaining service standards in the industry.
Secondly, preventing new entrants would reduce the amount of price competition in the industry. Therefore, prices would be prevented from going as low as possible in a freer market.
Thirdly, putting up barriers to entry would prevent increases in the supply of private hire vehicles, which, combined with price competition, would allow more people than before to make use of private transport.
Finally, it is apparent that allowing a licensing authority to determine that a locality is overprovided for would prevent economic growth and job creation. If someone wishes to start work as a private hire vehicle driver, a licensing authority should not stand in the way of that just because other drivers have already entered the market. Government should aim to facilitate job creation, rather than shielding incumbents from any competition.
I am grateful for amendments 94 and 91, which were lodged by Colin Keir and Cameron Buchanan.
Amendment 94 would require the Scottish Government to provide secondary legislation setting out the methodology to be used by licensing authorities to assess demand for private hire car services for the purposes of the overprovision test. Stakeholders have consistently argued that there needs to be guidance in order for the overprovision test to operate effectively, and we accept that. The Scottish Government is already fully committed to working with stakeholders to prepare guidance on the overprovision test. By providing guidance setting out the methodology, rather than secondary legislation, we can adopt a more user-friendly approach and can include material such as examples of best practice, which would not be appropriate within secondary legislation.
For those reasons I ask Colin Keir to withdraw amendment 94, with the assurance that we will prepare guidance on the overprovision test as part of its implementation and roll-out. In addition, I am happy to keep members informed of progress that we make on the matter.
I turn to amendment 91, which would remove section 60. Section 60 allows a licensing authority to refuse a private hire car licence when it is satisfied that granting it would result in there being an overprovision of private hire cars. I remain of the view that an optional overprovision test in relation to private hire cars is a useful addition to the taxi and private hire car licensing regime. Providing an ability to limit private hire car numbers where it is deemed necessary will enable licensing authorities to ensure that those who enter the private hire car trade can have an expectation of making a reasonable income. It will also reduce the temptation for private hire car drivers to attempt to operate in illegal competition with taxis.
I therefore ask Cameron Buchanan not to move amendment 91.
10:15
Having heard the cabinet secretary, I seek leave to withdraw amendment 94. I look forward to seeing what comes forward from the Scottish Government.
Amendment 94, by agreement, withdrawn.
Amendment 91 moved—[Cameron Buchanan].
The question is, that amendment 91 be agreed to. Are we agreed?
Members: No.
There will be a division.
For
Buchanan, Cameron (Lothian) (Con)
Against
Adamson, Clare (Central Scotland) (SNP)
Coffey, Willie (Kilmarnock and Irvine Valley) (SNP)
Hilton, Cara (Dunfermline) (Lab)
Rowley, Alex (Cowdenbeath) (Lab)
Stewart, Kevin (Aberdeen Central) (SNP)
Wilson, John (Central Scotland) (Ind)
The result of the division is: For 1, Against 6, Abstentions 0.
Amendment 91 disagreed to.
Section 60 agreed to.
Section 61—Testing of private hire car drivers
Amendment 92, in the name of Cameron Buchanan, is in a group on its own.
Amendment 92 refers to section 61 but also to section 60. The amendment would prevent licensing authorities from being able to require testing of applicants for private hire vehicle licences.
Technology now allows drivers to efficiently navigate without extensive knowledge, and requiring a test would be a significant barrier to employment and growth in the industry. With Garmin and TomTom, nobody really needs the knowledge. If someone wishes to become a private hire car driver, the Government should not prevent them in any way from doing so.
Some people would prefer to be driven by someone with extensive local knowledge who does not need to use global positioning system navigation, but they can choose to use a black cab instead of a private hire vehicle. Passengers should be free to choose for themselves which type of transport they want.
Requiring testing of all drivers would be another method of shielding incumbents from the competition, which relates the amendment to section 60. That behaviour would favour vested interests over aspiring entrants to the market. More important, it would not be in the interests of consumers.
I move amendment 92.
I am grateful to Cameron Buchanan for his explanation of amendment 92. I remain of the view that offering local licensing authorities the ability to test private hire car drivers is entirely appropriate. The training and testing of taxi drivers serve a useful purpose, and given the growing numbers of private hire car drivers, I believe that it is important that they too should receive training and testing.
The legislation has deliberately been drafted to provide licensing authorities with the discretion to determine whether a test should take place and what that test should be, in order to ensure that unduly burdensome training is not required where it is clearly not appropriate. Such training could cover issues such as customer care and disability awareness. That would allow for consistency between taxis and private hire cars and would make for a more professional and capable private hire car service that is better able to meet the needs and aspirations of the people who use the service.
I therefore ask Cameron Buchanan to withdraw amendment 92.
I was talking less about training and more about the knowledge test—that was the key. As I said, I think that requiring testing of all drivers would shield incumbents from the competition, and I am against that; I would like to keep the competition open. Therefore, I press amendment 92.
The question is, that amendment 92 be agreed to. Are we agreed?
Members: No.
There will be a division.
For
Buchanan, Cameron (Lothian) (Con)
Against
Adamson, Clare (Central Scotland) (SNP)
Coffey, Willie (Kilmarnock and Irvine Valley) (SNP)
Hilton, Cara (Dunfermline) (Lab)
Rowley, Alex (Cowdenbeath) (Lab)
Stewart, Kevin (Aberdeen Central) (SNP)
Wilson, John (Central Scotland) (Ind)
The result of the division is: For 1, Against 6, Abstentions 0.
Amendment 92 disagreed to.
Section 61 agreed to.
Section 62 agreed to.
Before section 63
Amendment 58, in the name of the cabinet secretary, is in a group on its own.
Amendment 58 seeks to increase the penalties for those metal dealers who operate without a licence or who fail to comply with licence conditions. Amendment 58 will increase the relevant penalties to a maximum fine of £20,000 and/or up to six months in prison.
There is widespread agreement that the penalties in relation to metal-dealing offences are inadequate when they are set against the multimillion pound cost of metal theft. They are also inadequate when they are set against the possible rewards that can be obtained by a rogue dealer who seeks to circumvent the licensing regime by failing entirely to apply for a licence or by failing to comply with the conditions that are attached to a licence. The increased penalties are required to act as an effective deterrent to someone who operates outwith the licensing regime.
The committee recommended that the penalties be enhanced, and there is widespread support for that position from the police, the legitimate trade and those companies and organisations that are badly affected by metal theft. It is also worth highlighting that, regardless of the criminal penalties, the mere fact that they had a conviction would have very serious potential consequences for any scrap metal dealer. It would be open to a licensing authority to remove an individual’s licence, which might have implications for their livelihood. I therefore ask the committee to support the amendment.
I move amendment 58.
In light of the evidence that we took, we welcome the Government’s amendment 58.
Amendment 58 agreed to.
Sections 63 and 64 agreed to.
Section 65—Acceptable forms of payment for metal
Amendment 59, in the name of the cabinet secretary, is grouped with amendments 60 and 61.
Amendments 59, 60 and 61 seek to tighten the definitions that are used to define how payments for scrap can be made.
The policy intent, which enjoys widespread support, is to prevent a scrap metal dealer from paying in cash. As members will be aware, the rationale for that is to ensure that payments can be made only in a traceable fashion by cheque or bank transfer. The amendments seek to ensure that any loopholes are avoided by clarifying that an account that is used for a transfer of payment must be a bank or building society account.
Amendment 59 clarifies that an account must be a bank or building society account. Amendment 61 seeks to insert in the Civic Government (Scotland) Act 1982 new section 33AA, which provides a definition of what
“bank or building society account”
means. Amendment 60 allows for any consequential amendments that may be necessary. The ability to make amendments to the definition in new section 33AA is limited to a consequence of changes that add, amend or remove methods of payments to those that are provided for in new section 33A(2).
I ask the committee to support amendments 59, 60 and 61.
I move amendment 59.
Amendment 59 agreed to.
Amendments 60 and 61 moved—[Michael Matheson]—and agreed to.
Section 65, as amended, agreed to.
Section 66—Metal dealers and itinerant metal dealers: records
Amendment 62, in the name of the cabinet secretary, is grouped with amendment 63.
Amendments 62 and 63 seek to amend the record-keeping requirements for scrap metal dealers that are set out in the bill. Amendment 62 has been lodged in response to an issue raised by the industry that the proposed requirement to record the date on which metal is processed would be impractical for many dealers, because of the business practices that most dealers follow. Once metal arrives in a yard, it is quickly sorted and stored collectively with a significant amount of other similar metal derived from other sources. Given those circumstances, it would be difficult to record the date on which a specific item was processed, by which I mean melted or crushed.
We have always made it clear that we are eager to work with and support the legitimate scrap metal industry. We believe that its concerns on this matter are well founded and that the change, taken in the context of the other enhanced licensing requirements in the bill, will not diminish the proposed scheme’s effectiveness.
Amendment 63 will allow Scottish ministers to specify through secondary legislation particular forms of identification, such as a passport, a driving licence or similar documents, that will be acceptable for the purposes of establishing a customer’s name and address. I ask the committee to support these amendments.
I move amendment 62.
Amendment 62 agreed to.
Amendment 63 moved—[Michael Matheson]—and agreed to.
Section 66, as amended, agreed to.
After section 66
Amendment 64, in the name of the cabinet secretary, is in a group on its own.
Amendment 64 seeks to allow Scottish ministers to bring forward regulations to establish a register of metal dealers and itinerant metal dealers. We accept the committee’s view that a register of metal dealers would be of value, and a new register would build upon the existing requirements for licensing authorities to publish details of licences already contained within paragraph 14 of schedule 1 to the Civic Government (Scotland) Act 1982.
The secondary legislation powers that we are proposing in the bill will allow Scottish ministers to make regulations to establish, keep and maintain such a register. The regulations may also include other matters such as specifying who will maintain such a register, what details will be published and what duties will be imposed on individuals or bodies to provide information to be published. I ask the committee to support the amendment.
I move amendment 64.
Amendment 64 agreed to.
Amendment 65, in the name of the cabinet secretary, is in a group on its own.
Amendment 65 makes provision for revised definitions of metal dealers and itinerant metal dealers. The legitimate trade has argued that it is essential to have a more comprehensive definition of the term “metal dealer” in the bill to capture those at the periphery of the industry who run businesses that involve the acquisition of large amounts of scrap metal. Such people might include a skip hirer on a building site, a door-to-door collector who does not pay for metal but takes it away for the householder’s convenience, a car breaker or a demolition contractor.
The committee picked up the concern in its stage 1 report, and amendment 65 addresses the problem by striking a balance to capture some of those wider activities without requiring someone who acquires and sells metal as an extremely peripheral activity—for example, a plumber or heating engineer who takes away domestic piping—to have a licence.
10:30The amendment expands the definition to include those who buy or sell metal for scrap. That captures those who sell metal without making a payment for it in the first place—for example, the itinerant collector who goes door to door, collecting and taking away unwanted items. It departs from the previous definition, which required the person to buy and sell metal for scrap before they would need a licence. By defining the licensable activity as carrying on
“a business which consists wholly or substantially of buying or selling for scrap”,
we will ensure that people such as plumbers who, in the normal course of events, acquire or sell metal as a peripheral activity will not require a licence.
As with any licensing system, the decision as to whether an individual requires a licence will rely on the specific facts and circumstances of each case. It might be a question of the degree to which scrap metal forms a part of the business, which can be determined only on a case-by-case basis. I also point out that the new definition provides that a “motor salvage operator”, as defined in subsection (3) in the amendment, carries out the business of a metal dealer and therefore will require a licence.
We believe that amendment 65 strikes the right balance and I ask the committee to support it.
I move amendment 65.
Amendment 65 agreed to.
Amendment 66, in the name of the cabinet secretary, is in a group on its own.
Amendment 66 makes provision for powers to make secondary legislation to allow Scottish ministers to set out the circumstances in which the metal dealer and itinerant metal dealer regime does not apply, thereby creating exemptions from metal dealer and itinerant metal dealer licensing requirements.
We are confident that the definition of
“a metal dealer or an itinerant metal dealer”
strikes the right balance. It provides clarity, capturing activities that should fall within licensing while avoiding the need to license peripheral activities in which the acquiring of metal is wholly incidental. It is also flexible enough to respond to the particular facts of individual cases.
Nevertheless, we believe that it is right to enhance the flexibility to deal with circumstances that might not emerge until after the new regime is up and running, and amendment 66 allows ministers to prescribe circumstances in which a licence is not required. Such circumstances might relate to particular premises or activities where it is concluded that a scrap metal dealer’s or itinerant metal dealer’s licence is not required. As it is right to build such flexibility into the system, I ask the committee to support the amendment.
I move amendment 66.
Amendment 66 agreed to.
Section 67 agreed to.
After section 67
Amendment 67, in the name of the cabinet secretary, is in a group on its own.
Amendment 67 seeks to restrict the circumstances in which premises that are licensed under the Licensing (Scotland) Act 2005 are exempted from the requirement for a public entertainment licence. A number of boards have raised concerns that a large public entertainment event such as a music festival that is attended by tens of thousands of people could be licensed under a £10 occasional licence for alcohol issued under the 2005 act.
We are sympathetic to those concerns. The occasional licence is simply not intended to cover such events and is ill-suited for that purpose. Although we would not like to go so far as to entirely remove the exemption for those with an alcohol licence and thus require thousands of pubs to require an additional public entertainment licence, we nevertheless believe that the exemption should be restricted.
Amendment 67 therefore limits the exemption of premises that are licensed under the 2005 act to those that possess a premises licence within the meaning of section 17 of the 2005 act. That would include a premises licence and a temporary premises licence. However, an occasional licence issued under the 2005 act will no longer provide an exemption from the requirements of public entertainment licensing. I ask the committee to support the amendment.
I move amendment 67.
Amendment 67 agreed to.
Amendment 68, in the name of Richard Lyle, is in a group on its own.
I am the convener of the cross-party group on the Scottish Showmen’s Guild, and I will move amendment 68 on behalf of the guild in order to right a wrong that it has been unable to resolve for more than 30 years due to United Kingdom parliamentary procedure and time.
The Civic Government (Scotland) Act 1982, which deals with funfair licensing, creates hardship for showmen who operate their legitimate business and continue their way of life here in Scotland. The 1982 act, which now falls within the competence of the Scottish Parliament, is being used to prevent funfairs by way of the implementation of excessive licensing conditions that take so long to process that events cannot be applied for in time.
Many local gala committees simply cannot have funfairs because the licensing legislation is too expensive, lengthy and involved for them to handle. We have to ask whether funfairs in England, Ireland and Wales are required to hold a temporary public entertainment licence, and the answer is that they are not. Funfairs in the rest of the United Kingdom are not classed as regulated entertainment.
Why are only funfairs that travel through Scotland required to be licensed? It is because of a parliamentary mistake dating back to 1982 in a Scottish act that was introduced by the UK Parliament. At that time, the Showmen’s Guild of Great Britain employed a parliamentary agent to keep abreast of legislation that was likely to affect travelling showmen in both England and Scotland. In 1982, due to an oversight, the parliamentary agent missed the Civic Government (Scotland) Bill and its ramifications for Scotland’s showmen.
In the rest of the UK apart from Scotland, showmen only need to obtain permission to operate. The funfair organiser in England, Ireland or Wales obtains permission from the landowner or local authority and simply notifies the local police of the showmen’s presence in the area. In other parts of the UK, showmen only need to show their safety certificate to obtain permission to operate. The same conditions apply for funfairs in Scotland, which come under directive HSG175—“Fairgrounds and amusement parks: Guidance on safe practice”—and the Health and Safety at Work etc Act 1974.
The Scottish Showmen’s Guild works with the National Association For Leisure Industry Certification and the amusement device inspection procedures scheme in ensuring that all funfair equipment is registered and subject to annual inspection, which involves electrical, pneumatic and hydraulic structural testing of welds; design review; conformity of design; risk assessment and HS spot checks.
You may ask whether the 1982 act on licensing relates to safety. It does not. You may ask how, if amendment 68 was agreed to, local authorities would control funfairs without licensing. I contend that there are other provisions in law that cover funfairs, such as the Noise Act 1996, HSG175, the Health and Safety at Work etc Act 1974, the Alcohol etc (Scotland) Act 2010 and the Gambling Act 2005. When applications are made to local authorities, the same procedure would be followed with regard to the police, the fire service, local councillors, local communities and environmental health departments. Most funfairs let land from the local authority, and a simple set of conditions of let can be applied as required and enforced by all Scottish local authorities.
All that we ask for is that which exists in England: fairness. Why do funfairs that travel through Scotland need to be removed from the 1982 act? I suggest that the time that is involved in obtaining a temporary licence is too long to be practical in real life. Applicants need to have all knowledge relating to an application submitted from 28 days up to 90 days in advance of the funfair date, including the layout, the types of rides that will be attending and the specific people who will be presenting those rides. There is no provision in the 1982 act for short notice, emergency changes regarding changes of layout, the tenant of the fair, extra attractions, extensions to dates or new venues. If showmen arrive at a site that is waterlogged, they cannot work, because permission will have been granted only for the particular site.
The 1982 act also affects showmen who present funfairs in other ways. It creates a further financial burden; fees vary between local authorities; and interpretation and implementation of the 1982 act is subject to local policies even if people disregard the working of the act. If a licence is refused, no refund is made to the applicant, who has no alternative way of earning a living during that period. That is totally unfair and it might breach the Human Rights Act 1998.
The 1982 act requires each funfair to be licensed, and the licence must include every tenant of the fair and an equipment plan. Imagine a window cleaner being required to make a separate licence application for every house and to submit a separate plan of each window’s location, type and size. That is what showmen have to provide under the 1982 act.
We can exempt funfairs from the 1982 act by inserting the text that is suggested in amendment 68:
“After section 67, insert—
<Public entertainment licenses: exemption for funfairs
In section 41 of the 1982 Act (public entertainment licenses), after subsection (2)(aa) insert—
“(ab) premises used for the purpose of a funfair;”.>”
Removing funfairs from the 1982 act would remove a financial and insecurity burden from Scottish show people and their families and allow them more opportunity to operate their attractions. It would alleviate the fear and cost of a refusal, give them a greater sense of security and allow them to continue with their culture and traditions. It would also allow them to deal with circumstances that are outwith their control, such as bad weather, and let operators, in conjunction with the local council, seek an alternative site to operate.
If the rest of the UK and the European Union do not have licensing of funfairs, why do we? I understand that the showmen have also gained the support of other parties in Parliament, and I hope that the Government will take steps to support show people in Scotland by removing the anomaly.
I move amendment 68.
I declare an interest as a member of the cross-party group on the Scottish Showmen’s Guild. May I make a contribution, convener?
Yes—please do.
I congratulate Richard Lyle on his presentation of a comprehensive and detailed argument about the problems that showmen face while operating under the current system. However, this is a big bill that covers lots of different areas and we have taken no evidence on the issue at stage 1, nor have we consulted the stakeholders, so although I have sympathy with the reasons behind amendment 68, I will not be able to support it.
Mr Lyle makes a strong argument. I will wait to hear what the minister says. Even though we have not taken evidence on the issue at this stage, I hope that there will be a commitment to take on board and look at the case that has been made. It seems to me that Mr Lyle makes a fair case that the showmen and the shows that go round different communities are struggling. They often depend on the Scottish weather, but I know that it makes the gala in my home village if the fair is there.
There is a case, so I will wait to hear what the minister has to say. If we do not support amendment 68 today, I hope that we will be sympathetic and take on board what has been said.
Thank you, Mr Rowley. Before I bring in the cabinet secretary, it is only fair for me to put on the record that we have received a communication on the issue from the Convention of Scottish Local Authorities that expresses concern that we have not taken evidence or consulted on the issue.
I thank Richard Lyle for lodging amendment 68, which draws attention to funfair operators’ concerns about public entertainment licensing arrangements. I am well aware of those concerns and I agree that there is scope for local licensing authorities to consider their current practices in dealing with licence applications.
Licensing should be fair and proportionate. There is no reason to gold plate licence conditions so that funfairs become impossible to hold, and there is no excuse for the outright hostility to funfairs that some operators have reported that they face. It would be a great shame if funfairs, which add much enjoyment to public life in many towns and communities, were lost.
10:45Nevertheless, I cannot support amendment 68, which removes funfairs from regulatory control through licensing entirely. I am concerned that the amendment does not seek to define funfairs, which might give rise to problems of enforcement, and similarly it does not clarify the extent to which a premises may be
“used for the purposes of a funfair”
before the exemption is applicable. As fairs come in a variety of forms and can have associated activities such as market stalls and gala day parades, it is important to be clear about what would be exempted. Although it might be possible to address those issues, it would take careful consideration and we would benefit from appropriate consultation to ensure that we got it right.
More fundamentally, it is hard to think of a better example of a public entertainment that needs to be licensed. Funfairs raise obvious considerations with regard to the impact on neighbours in terms of noise and minor nuisance. Some fairs have raised the possibility of low-level alcohol-fuelled antisocial behaviour, and there are also health and safety considerations. Although other enactments provide some protection in that regard, licensing ensures that those enactments are followed and provides a quick and effective means of dealing with any concerns.
As the committee is aware, the Convention of Scottish Local Authorities and the police oppose the amendment. It is clear, however, that there is work to be done to ensure that funfair operators are treated fairly. To that end, I am prepared to work with local authorities to ensure that the issues that Richard Lyle has highlighted are addressed. I am also prepared to work towards the Scottish Government issuing guidance to licensing authorities to assist in their consideration of funfair applications. I hope that Richard Lyle will agree that those steps are welcome and provide an appropriate and proportionate response to the issue.
I ask the committee to reject amendment 68.
It was my intention to press the amendment because I feel that there is unfairness in Scotland compared with England. However, in discussions with the cabinet secretary, he has given me an undertaking that he will work towards addressing that unfairness. I ask that he meets me and the Scottish Showmen’s Guild as soon as possible to address the matter. In the light of the assurances that have been given, although I intended to press the amendment, I will not do so.
Amendment 68, by agreement, withdrawn.
Section 68—Licensing of sexual entertainment venues
Amendment 95, in the name of Cara Hilton, is in a group on its own.
I put on record my thanks to the Zero Tolerance Trust for working with me on amendment 95, and I thank the other organisations, including Scottish Women’s Aid and Rape Crisis Scotland, that have offered their support.
Amendment 95 would oblige a local authority to produce a licensing policy statement outlining its intentions in respect of licensing sexual entertainment venues. The statement would set out clearly why the local authority chose to offer or not to offer licences for those venues and would put that in the wider context of public health, child protection, community safety, gender equality and other policy concerns, but with a special focus on tackling violence against women.
I share the view, which has been expressed by the Zero Tolerance Trust and others, that the licensing of these venues is incompatible with the Scottish Government’s priorities and with our ambitions to ensure genuine equality for women and girls. Allowing the venues to exist seems at odds with the equally safe strategy, which is Scotland’s strategy to eradicate violence against women and girls; the Human Trafficking and Exploitation (Scotland) Bill; our approach to domestic abuse, rape and sexual offences; and indeed, UK equality and human rights legislation.
The amendment would ensure that any local authority that was considering offering a licence to a sexual entertainment venue would be obliged to take the policy context into account in justifying any licensing decision. I think that such decisions should not operate in a vacuum but should reflect the wider policy agenda, locally and nationally.
The evidence suggests that local authorities have often not effectively policed sexual entertainment venues but have allowed multiple breaches of licensing conditions—which are apparently legally unenforceable—such as that there should be no private booths and that there should be no-touching policies.
There seems to be evidence, too, that some licensing authorities have taken their eye off the ball regarding the monitoring of venues. Furthermore, a recent court case involving City of Edinburgh Council officials showed that they had accepted lap dances in return for awarding building contracts.
There is absolutely no doubt that there must be a lot more public scrutiny before sexual entertainment venues are granted licences. A policy statement such as that which my amendment would require is one way of achieving that and increasing accountability.
I move amendment 95.
I support Cara Hilton’s amendment. I support the idea that it is for local authorities to make such decisions—it is correct to have that approach in the bill. When a local authority makes a decision on sexual entertainment venues, it is important to have a policy statement that is open and transparent and that the public can understand. Therefore, amendment 95 would enhance the bill. I hope that the minister will consider those points.
I have considerable sympathy for amendment 95.
The Scottish Government acknowledges that commercial sexual exploitation may be a form of violence against women. However, we have always argued that the local authorities that license the activities are best placed to reflect their community’s views on the issue. The proposed licensing scheme will allow proper local authority control, part of which is ensuring better working conditions and a more controlled environment for the women who work in sexual entertainment venues.
A local authority that seeks to license sexual entertainment in its area will have to undertake a proper exercise to reach a determination of how to approach the licensing function and what its policy objectives are. The Scottish Government will produce statutory guidance to assist local authorities in undertaking that exercise. That guidance will make it clear that a local authority will risk challenge unless it has sought relevant stakeholders’ views, gathered evidence and addressed all the relevant considerations. In other words, a local authority will have to give violence against women groups and similar organisations the opportunity to raise issues and will have to show that it has considered those issues before reaching its final determination.
I am, however, concerned that amendment 95 would make it appear that any sexual entertainment venue licensing regime that was adopted by an authority had one consideration or objective only—that is, to address violence against women. Our intention is to give local authorities the power to license the venues and to reach the decisions that are right for their own areas on the basis of a range of considerations. For example, I envisage their considering the impact on neighbours, on those who make use of a locality and on any schools and churches that may be nearby. I also envisage their considering whether there is an associated risk of criminality or public disorder. I would not want to create the impression that the regime was driven by one consideration only—violence against women. That is a crucial matter, but it should not be the sole consideration, and the bill needs to reflect that.
I recognise the importance of the issue that has been raised by Cara Hilton and I offer to work with her to produce a fresh amendment at stage 3 that will make explicit in the bill that local authorities must consider violence against women as one of a number of issues. Therefore, I invite Cara Hilton to withdraw amendment 95.
I am grateful to the minister for his comments. It is important that we take action. I want to see the spirit of my amendment reflected in the bill, so I accept his offer to work on a fresh amendment at stage 3.
Amendment 95, by agreement, withdrawn.
Amendment 96, in the name of Cara Hilton, is in a group on its own.
I thank the Zero Tolerance Trust for working with me on amendment 96, and I thank Scotland’s Commissioner for Children and Young People for offering his support.
The purpose of the amendment is to prevent under-18s from working in sexual entertainment venues. As the bill stands, under-18s would be able to work in such venues at times when sexual entertainment was not taking place. The Zero Tolerance Trust has argued that that would create a groomers charter, allowing venues to employ teenage girls to work as cleaners or in office administration roles before persuading or coercing them to become performers when they reached 18.
We all know how short of cash people are at that age. It is probably quite a tempting offer for many girls in that situation, and it is a particular concern for vulnerable young women such as care leavers or women living with poverty or disadvantage. Also, some men who attend such venues seek to buy sex there, and there is no guarantee that they will restrict their inquiries to performers.
Under-18s who work in sexual entertainment venues are at risk of sexual exploitation, of being propositioned for sex and of being exposed to an industry that damages women. Many such venues screen pornography in the background, and there is a real risk that under-18s could be exposed to that, which is a child protection issue.
I do not think that anyone under 18 should be allowed to work in or attend in any capacity a sexual entertainment venue; it is simply not a safe, healthy, working environment for children. Under-18s cannot work in sex shops, and that provision should apply to these venues, too.
This is a personal issue for me. I have a six-year-old daughter, and I do not want her to grow up in a Scotland where women are viewed and treated as sexualised objects. These venues normalise a really harmful form of sexual exploitation, and
“a failure by the Scottish Government to send out this clear message is a failure to young people.”
Those are not my words but those of Scotland’s Commissioner for Children and Young People.
The Scottish Government’s violence against women strategy recognises the very real links between discrimination, objectification, violence against women and commercial exploitation. If we are serious about wanting an equal Scotland and tackling domestic abuse and violence, and if we really want to ensure that Scotland is the best place for girls to grow up in, the Scottish Government must be consistent.
Sexual entertainment venues are no place for any child to work. We need to put a stop to that and ensure that our young people get the protection that they need.
I move amendment 96.
I support Cara Hilton on this issue. It is an anomaly that under-18s can work in a sexual entertainment venue, even as cleaners, because they will be influenced by that environment. There is an inconsistency here and I support amendment 96.
I have sympathy for the objective of amendment 96, which is aimed at offering better protection for young people. It follows up issues that were highlighted by the children’s commissioner ahead of the stage 1 debate. However, I have a number of concerns.
I make it clear that the bill does not relax controls in any way—it does quite the reverse. Sexual entertainment premises are currently treated in more or less the same way as any other licensed premises. That means that, at the moment, under-18s could be collecting glasses or undertaking similar activities while the sexual entertainment venue is open. The bill makes it clear that, if young people are being employed in such roles, that must stop. Under-18s should not be on the premises while sexual entertainment is taking place. That is a reasonable and proportionate step forward.
I would not, however, be comfortable in saying that a 17-year-old cleaner could not be employed or a plumber’s apprentice could not enter to repair a leak when the premises were closed or when the venue was being used merely as a bar and sexual entertainment was not taking place. I am not sure that the proposal is proportionate, as it gives rise to concerns that the employment opportunities of young people may be unreasonably restricted.
I have seen no evidence that the type of grooming that concerned the children’s commissioner, whereby the cleaner progresses eventually to participating in sexual entertainment, actually takes place. The tighter control that is offered by the new licensing regime should, in any case, prevent that sort of thing from occurring.
That said, I acknowledge the importance of the issue that Cara Hilton has highlighted. Again, I offer to work with her to produce a stage 3 amendment to address her concerns, but in a way that would allow some flexibility in order to avoid consequences that may be viewed as unreasonable.
For those reasons, I invite Cara Hilton to withdraw amendment 96.
The cabinet secretary says that the bill does not relax the rules in any way, but I do not accept that. I am concerned about the provision and the potential loopholes. Sexual entertainment venues are not the kind of places that we should be encouraging children and young people to work in. We should be challenging the culture.
11:00
What does Ms Hilton think about the example that was given by the cabinet secretary of a 16 or 17-year-old apprentice plumber or electrician being called out to work in such premises? Should they be excluded from the premises because of their age? We are talking about employment opportunities for 16 and 17-year-olds, and if Ms Hilton is going to press the amendment we need to be clear about how it would impact on the wider society, particularly young people who undertake apprenticeships and who are called out to undertake emergency plumbing or electrical repairs.
Amendment 96 is intended to protect young people who might be employed by a sexual entertainment venue.
Surely, the plumbers could send a 19 or 20-year-old, rather than a 17-year-old. There is no need to send an apprentice to that sort of job.
That is a valid point. Those venues are not the type of places that our young people should be working in.
Do you agree that it is important that we establish the principle—I think that that is what you are trying to do—that no one under the age of 18 should be in such premises?
Yes. Thank you for that helpful comment, Mr Rowley. It is about sending a clear message about the type of Scotland that we want to see and about how we value our young people. That is very important, so I will press the amendment.
The question is, that amendment 96 be agreed to. Are we agreed?
Members: No.
There will be a division.
For
Buchanan, Cameron (Lothian) (Con)
Hilton, Cara (Dunfermline) (Lab)
Rowley, Alex (Cowdenbeath) (Lab)
Against
Adamson, Clare (Central Scotland) (SNP)
Coffey, Willie (Kilmarnock and Irvine Valley) (SNP)
Stewart, Kevin (Aberdeen Central) (SNP)
Abstentions
Wilson, John (Central Scotland) (Ind)
The result of the division is: For 3, Against 3, Abstentions 1. I must therefore use my casting vote, which is against the amendment.
Amendment 96 disagreed to.
Amendment 97, in the name of Cara Hilton, is in a group on its own.
Amendment 97 would require licensing committees to consult violence against women partnerships or other bodies with a similar function. Again, it is aimed at ensuring that licensing committees fully appreciate the wider policy environment in which they operate. Right now, public policy can be a wee bit disconnected. Local authorities all have strategies on preventing sexual abuse and violence against women, but there is not a lot of joined-up thinking around how licensing decisions impact on women and little attention is paid to how having sexual entertainment venues in our towns and city centres impacts on women and girls. That does not make sense.
The Scottish Government’s violence against women and girls strategy, “Equally Safe”, which I referred to earlier in our proceedings, defines commercial sexual exploitation as a form of violence against women. The strategy aims to create
“a strong and flourishing Scotland where all individuals are equally safe and respected”.
Amendment 97 would mean that local authorities would have to discuss their approach to sexual entertainment venues with local violence against women partnerships and think seriously about how their approach to licensing those venues fits with the strategy.
In his answer to one of my earlier amendments, the cabinet secretary referred to the strategy, so I hope that he will have something positive to say on this issue. It is about ensuring that there is proper joined-up policy making at local level and that our public policy aspirations are reflected in decisions that are made.
I move amendment 97.
I support the intent of amendment 97, but I have some practical concerns. Although the current process already allows for robust notification procedures, with requirements for newspaper advertising and for notices to be publicly displayed, I can see that there may be advantages in both practice and principle of requiring specific forms of notification.
The practical advantage is that it would ensure that important stakeholders are notified of applications and have the ability to make timeous representations and to influence the process. The advantage in principle is that it would send a very clear message that violence against women partnerships and similar bodies are important stakeholders in the licensing process.
I am concerned, however, that the amendment specifically identifies violence against women partnerships. Although it is currently obvious what we are talking about, they are non-statutory bodies and we need to guard against some future reorganisation or fresh approach that would make those bodies extinct.
My preference would be for an amendment that would allow each local authority to identify which organisations in their area should be notified of applications. The statutory guidance that will follow the bill will specify what types of bodies and organisations should be considered and that would certainly include bodies such as violence against women partnerships.
I therefore invite the committee to reject amendment 97, as I have asked my officials to lodge an amendment at stage 3 that will achieve a similar aim.
In light of the cabinet secretary’s comments, I withdraw the amendment and I look forward to an amendment being lodged at stage 3.
Amendment 97, by agreement, withdrawn.
Section 68 agreed to.
Section 69—Deemed grant of applications
Amendment 69, in the name of the cabinet secretary, is grouped with amendment 70.
Amendments 69 and 70 will allow licensing authorities to revoke a licence under part 2 of the Civic Government (Scotland) Act 1982.
Part 2 licences include taxis and private hire cars, metal dealers and street traders, and can be granted for one to three years. At present, such a licence may be suspended for a specific period or for the remaining duration of the licence, but it cannot be revoked. However, it is possible to revoke a licence under part 3—for a sex shop—as indeed it is for an alcohol licence under the Licensing (Scotland) Act 2005. The ability to revoke a part 2 licence was called for in evidence sessions, and Colin Keir MSP made the same point during the stage 1 debate in Parliament.
I am therefore pleased to bring forward these amendments. As I have said, although it is already possible for a part 2 licence to be suspended for varying periods in certain circumstances, these amendments will allow for a proper response in those cases where the stronger sanction of revocation is more appropriate.
I move amendment 69.
Amendment 69 agreed to.
Section 69, as amended, agreed to.
After section 69
Amendment 70 moved—[Michael Matheson]—and agreed to.
Section 70 agreed to.
Section 71—Conditions for Part 3 licences
Amendment 71, in the name of the cabinet secretary, is grouped with amendments 76 and 79.
Amendment 71 concerns civic licensing, while amendments 76 and 79 relate to alcohol licensing.
Amendment 71 is a technical amendment. The bill as introduced repealed the word “unconditionally” from paragraph 9 of schedule 2 to the Civic Government (Scotland) Act 1982 on the grounds that its inclusion is redundant when viewed alongside the new condition-setting power created by the bill in section 71. Amendment 71 improves the drafting by defining more precisely where the deleted word lies in the 1982 act.
Amendments 76 and 79 are on alcohol licensing. Amendment 76 will allow a licensing board, when determining an application for a major variation to a premises licence, to request that the chief constable provides it with a report on all cases, complaints or representations made regarding antisocial behaviour on or in the vicinity of the premises in question. Currently, the Licensing (Scotland) Act 2005 provides that a licensing board, when determining a premises licence application, may request that the chief constable provides it with an antisocial behaviour report to help it consider whether to grant the licence. However, the board can do that only when considering the original premises licence application and not any later application for a major variation to a licence. We are of the opinion that that power should be available to boards when they are considering applications for major variations.
Amendment 79 is a minor amendment to remove reference in section 57(5) of the Licensing (Scotland) Act 2005 to the previously repealed section 57(2), which was repealed by the Criminal Justice and Licensing (Scotland) Act 2010.
I hope that the committee will support these amendments.
I move amendment 71.
Amendment 71 agreed to.
Section 71, as amended, agreed to.
After section 71
Amendment 72, in the name of the cabinet secretary, is grouped with amendment 98.
Amendment 72 will enhance the ability of licensing authorities to deal with the way in which sexual entertainment venues and sex shops seek to market themselves. Currently, conditions that may be imposed by the licensing authority are limited to regulating displays and advertising “on or in” the premises. Amendment 72 will ensure that advertising activities “connected with” the premises may also be dealt with, irrespective of where they take place. As sexual entertainment venues sometimes conduct a range of activities in surrounding streets, such as handing out flyers and putting up signs and posters, it is sensible to ensure that the authority is able to deal with those matters.
Amendment 98, in the name of Cara Hilton, seeks to address the same issue so, obviously, I welcome and support its objective. However, in my view, amendment 98 would be a more complicated way of achieving a similar objective to that of amendment 72 and it would significantly cut across the new provisions in section 71 that will permit Scottish ministers to, by order, provide mandatory conditions and local authorities to set standard conditions in respect of sexual entertainment venue and sex shop licences.
In addition, although amendment 72 will allow a local authority to deal with advertising and displays, amendment 98 would require a local authority to set conditions on that matter. My view is that it is unnecessary to make such a condition a statutory requirement; the proper approach is to enable local authorities to deal with the matter, support them in doing so through guidance and then leave the authority to choose how to go about using the powers at its local discretion.
Additionally, were amendment 98 to be agreed to, further amendments would be required at stage 3 to find a means to integrate the principle behind amendment 98 into the new scheme for mandatory and standard conditions. That would seem unnecessary, given that section 71 provides for the ability to set mandatory and standard conditions for all part 3 licences and amendment 72 will expand the ability of local authorities to deal with the issue of displays and advertising at a local level. Furthermore, the Government intends to issue guidance to local authorities on their use of conditions for part 3 licences. The Government may also impose specific mandatory conditions on such licences if it is subsequently shown that that is necessary.
I ask the committee to support amendment 72 and reject amendment 98.
I move amendment 72.
I welcome the opportunity to speak in support of amendment 98, which is aimed at restricting displays and advertising for sexual entertainment venues. Often, such venues have prominent, sexually explicit signage that can be seen by anyone who passes them, including children who are going to school and women who are going about their ordinary business. It is not acceptable that our children are exposed to those images and that women are made to feel uncomfortable daily. Such venues are not a mainstream form of public entertainment and are certainly not aimed at a cross-section of the public. It is only right that we should have restrictions on how such venues are allowed to advertise. Why should mums and dads have to plan their daily walking routes to avoid such images? Children should not be exposed to them on our high streets.
I ask the committee to support amendment 98.
11:15
As I outlined in my opening comments, what Cara Hilton is trying to achieve with amendment 98 is largely covered by our amendment 72, which provides powers for local authorities to take appropriate measures. As we have also set out, we will provide guidance to local authorities on how they should implement that aspect of the powers that they will have under the bill.
Amendment 72 agreed to.
Amendment 98 not moved.
Sections 72 to 77 agreed to.
Schedule 2—Minor and consequential amendments and repeals
Amendment 73, in the name of the cabinet secretary, is in a group on its own.
Amendment 73 is a consequential amendment that inserts a new part into schedule 4 to the Firearms Act 1968. The Firearms Act 1968, as amended, currently restricts the commercial sale or transfer of air weapons to registered firearms dealers. Schedule 4 to that act sets out the details of such sales or transfers, which must be recorded in a dealer’s register of transactions and, therefore, available for police inspection on request.
Section 24 of the bill maintains the existing restrictions but also restricts the manufacture, repair or testing of air weapons by way of trade or business to registered firearms dealers, as is the case with other firearms. Therefore, the amendment is necessary to ensure that details of those transactions are also properly recorded in a dealer’s register. Registered firearms dealers will, in essence, be required to record the same transactional information in relation to air weapons as for other firearms and so will be familiar with the new requirements.
I move amendment 73.
Amendment 73 agreed to.
Amendment 74, in the name of the cabinet secretary, is in a group on its own.
This amendment matches existing provision in the Criminal Procedure (Scotland) Act 1995 that applies to court proceedings relating to firearms or shotgun offences.
For the purposes of such proceedings, a constable or person employed by the Scottish Police Authority may sign a certificate that states that the accused did not hold the appropriate firearms or shotgun certificate on the date in question. That may be taken as sufficient proof of the matter, rather than requiring police witnesses to give such routine evidence in court.
Amendment 74 makes similar provision for the purposes of court proceedings that involve offences under part 1 of the bill. That amendment to the 1995 act is a sensible and proportionate measure for dealing with matters of routine evidence, which will save police and court time.
I move amendment 74.
Amendment 74 agreed to.
Amendments 75 to 79 moved—[Michael Matheson]—and agreed to.
Schedule 2, as amended, agreed to.
Section 78—Commencement
Amendments 80 and 81 moved—[Michael Matheson]—and agreed to.
Section 78, as amended, agreed to.
Section 79 agreed to.
Long title agreed to.
That ends stage 2 consideration of the bill. I thank members for their participation.
Our next meeting is on Wednesday 3 June, when we will consider the committee’s draft annual report and future work programme. As agreed earlier, those items will be considered in private.
Meeting closed at 11:20.Previous
Subordinate Legislation