The Coronavirus (Scotland) Act 2020

The Act provides a definition of “Coronavirus” as:

““Coronavirus” means severe acute respiratory syndrome coronavirus 2 (SARS-CoV-2).”

It makes amendments to current legislation on the following: eviction from dwelling- houses; protection for debtors; children and vulnerable adults; justice; alcohol licensing; the functioning of public bodies; and other measures in response to Coronavirus.

This note concentrates on key changes to the Licensing (Scotland) Act 2005 and the Civic Government (Scotland) Act 1982. In essence, the Coronavirus Act seeks to build in discretion and flexibility to systems which are extremely deadline and date driven, often with little or no scope for missing those key dates.

The Licensing (Scotland) Act 2005 (“2005 Act”)

Schedule 5 of the Act, (introduced by Section 6) relates to alcohol licensing, and makes key amendments to the 2005 Act summarised as follows:

Hearings

Where a hearing cannot be held in person due to Coronavirus, before reaching a decision on an application, a Licensing Board must give any person who would have been heard at a hearing, an opportunity to be so heard by: phone, written communication (including electronic communication) or video conferencing.

Premises Licences “ceasing to have effect”

Where a licensed premises ceases trading for a temporary period for a reason relating to Coronavirus, the premises do not cease to be used for the sale of alcohol for the purposes of subsection 5(b).

Transfers under s.34

Importantly, this new section relieves the “within 28 days rule”; a Board can accept an application for transfer by one of the parties specified in section 34 after the 28 day period, if the reason for lateness relates to Coronavirus.

Period of effect of a provisional premises licence

On the 1st application to extend a provisional premises licence, before the expiry of the provisional period, the Licensing Board must extend the provisional period by 6 months if the Board is satisfied that completion of the construction or conversion of the premises is delayed due to Coronavirus.

Dismissal/death etc of premises manager

A premises licence holder now has 28 days, (rather than 7) to intimate the change in premises manager to the Licensing Board and 3 months, (rather than 6 weeks) within which to nominate and intimate a new premises manager. Importantly, that period of 3 months can be extended again by the Licensing Board.

Food/Take Away/Delivery & Premises Licences

Where the premises licence is silent on the point, “take away” and deliveries of food are accepted as being implied into the operating plan if food is being sold on the premises.

Personal Licences

Where an application for renewal has been made, but not determined, the period of effect of the personal licence is extended by 6months from the date of expiry of the licence. Periods within which to apply for renewal of personal licence are also extended.

Personal Licence holder’s duty to undertake training

The Licensing Board can now relieve failures to comply with 5 year refresher training due to Coronavirus and can extend the period to undertake training. That period can be extended more than once if needed.

Section 135 discretion

The Licensing Boards have extra power to relieve its own, applicants or other parties’ procedural failures due to excusable cause relating to Coronavirus: as well as applicants (or other parties to proceedings) for mistake, oversight or other excusable cause where it considers it appropriate.

Quorum of Board Meetings

Committees established by the Board and consisting of not less than 3 members (rather than 5) can now exercise functions on the part of the Board.

Notifications by the Chief Constable

Relaxation of the 21 day rule for the Chief Constable to report on applications, or requests for antisocial behaviour reports.

Undernoted are the proposed changes to the Civic (Government) Scotland Act 1982 (“the 1982 Act”) which covers the likes of street trading, taxis, public entertainment and late hours catering. The provisions provide for changes to the application time limits, hearing procedures and ancillary processes because of issues arising from the Coronavirus emergency.

Time limits

Section 3 of the 1982 Act has been amended to prolong the time that local authorities have to consider applications. The cumulative effect is giving them 12 months to determine the application before it is deemed granted. This 12 months can still be extended by application to the Sheriff Court.

The time limits have been extended to allow a local authority to accept a late renewal for up to 3months after a licence expires on cause shown (Coronavirus related).

A licence holder, now has 14 days to produce a licence, rather than 7 days. If 14 days cannot be met, due to the Coronavirus, the licence must be produced as soon as practicable.

A local authority now has 15 days as opposed to 10 days to produce the reasons for a licensing authority’s decision, which again can be extended on cause shown.

Appeal time limits do not take account of delays in the issuing of reasons therefore one cannot await the licensing authority’s reasons if significantly delayed.

Procedure

When dealing with variations to Civic licences relevant parties need not now be invited “to attend” but rather must be invited to be heard by –

(a) telephone, (b) written representations, including by means of an electronic communication, or (c) video conference, if the authority has video conference facilities.

Importantly the method is at the discretion of the person entitled to be heard. Hearings will be deemed to take place on the day written submissions etc. are determined, which will form the basis of calculating any further key dates for notification of decisions and/or appeals etc.

Advertising

Where an applicant cannot display a public site notice the local authority can, in lieu of a newspaper advert, advertise the application on their website.

Licence holder convictions

Extracts of convictions of licence holders to the local authority must now be transmitted as soon as reasonably practicable.

Whilst there may be delays and the need to get used to new procedures, like video conference hearings - local authorities, licensing lawyers and applicants will take heart from many of changes which allow business to continue during the lockdown

Article by Caroline Loudon and Niall Hassard, TLT LLP