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Licensing news Scotland - August 2017

This month in summary:

Licensing News

TLT hosting a one-of-a-kind law and training event for Scottish distillers

The Distillers Law and Information Training event (DLITE) follows on from TLT's successful Brewers Symposium in January at Drygate. It is thought to be the first event of its kind for distillers in Scotland.

It will be a full day of insightful presentations and topical debates led by TLT's top distillery experts and some of Scotland's best distillers, including Eden Mill, Ginerosity, and Lone Wolf.

The conference will take place at the impressive Summerhall in Edinburgh, home to Pickering's Gin and Barney's Beer, providing the perfect hospitality back-drop for the day.

This essential event for Scotland's distillery industry, is free to attend and you can register here.

Minimum pricing in court again

The Scottish Parliament's proposal for a minimum price per unit of alcohol has been subject to numerous court challenges from the Scotch Whisky Association (SWA) and this latest challenge seen the legal arguments being considered by the UK's highest court, the Supreme Court.

The SWA are arguing that the proposal breaches EU regulations as it would restrict the free movement of goods and are suggesting that less restrictive mechanisms of controlling alcohol prices are considered such as raising excise duty. In response the government is contending that the measure is intended to work alongside matters such as taxation and would improve public health.  

The Supreme Court justices have retired to consider matters and their decision is awaited…

Supreme Court rules on 'Hemming' case

The Supreme Court handed down its ruling on 19 July in relation to whether local authorities and other regulated bodies could charge licence holders for administrative and enforcement fees in relation to any licences they administer. The case related to a number of sex shops in Westminster who had brought proceedings against the local authority in relation to the high fees they were charged annually for their licences to operate. It was argued by the council that they were entitled to charge high fees as although the administration of the licences may not be expensive, enforcement action taken against unlicensed operators was, and as it benefited the licence holders, the cost should be theirs.

It was argued by the operators that only a reasonable fee for administering the process could be charged by the authority and that under Provision of Services Regulations that were brought in following an EU directive, any fees charged for enforcement against unlicensed operators were illegal. When the Court of Appeal found in favour of the operators, Westminster Council were forced to make repayments of over £1 million to them. However, they appealed the ruling.

The Supreme Court disagreed and determined that the council was entitled to charge a fee for both the administration of the licensing regime, but also for enforcement against unlicensed operators if the enforcement element was only charged to applicants who had been successful with their licence applications -  i.e. the fee was itemised and paid in two distinct parts. Both parts of the fee had to be reasonable and the council had to calculate the actual costs they incurred and levy the fee accordingly.

However, the Supreme Court asked for a ruling from the European Court of Justice whether it would be lawful for a council to ask for the total fee for administration and enforcement up front, when an applicant applied for a licence, on the basis that the enforcement part of the fee could then be refunded to unsuccessful applicants. The Court of Justice ruled that this would be illegal.

When remitted to them, the Supreme court determined that whilst the Westminster scheme, which had for years demanded the payment for administration and enforcement in full prior to the licence being granted, the illegality of doing so was of very little practical importance. The sex shop operators bringing the case all had licences, and therefore were all obliged to pay the enforcement part of the fee in any event on grant of their licences. The fact that they had been charged a little early in the process really had very little consequence. Only those applicants who had been refused a licence, or had not had it renewed, but had paid the enforcement part of the fee would be entitled to a refund.

Moving forward, however, applicants for licences for sex shops, street cafés, sexual entertainment venues, marriage licences or any form of licence where a local authority or similar body sets the fee and includes an element of enforcement action within it, can expect to have to pay both on application or renewal of their licence for the administering of the process and then make a second payment on grant of the licence prior to the licence being deemed valid to cover enforcement. Hopefully any delays in having to invoice applicants twice and process payment won't create an unnecessary frustration for operators of businesses waiting for their often very expensive licences!

Scottish Government publishes guidance relating to the licensing of funfairs

The licensing of funfairs is often a contentious area of licensing with applicants facing local neighbour objections and adverse comments from police. The Scottish Government has published guidance to both applicants and licensing authorities that largely reminds all parties of their statutory obligations especially the difference between a full and temporary licence.

This guidance may prove useful to applicants; however, they should remember that TLT are on hand to provide expert advice in relation any such application.

Gambling News

Gambling Commission announces release of tool to allow consumers to make complaints online

This new online tool, Resolver, supports consumers making complaints by explaining their rights to them and then assisting in the preparation of emails. The tool also lets the consumer know how to escalate the issue, for example, the option to refer the matter to the operator's ADR entity.

The introduction of such a tool is in keeping with the Gambling Commission's push to put consumers first and is perhaps a reaction to their review that found that the complaints system is not working for consumers with many finding it difficult to access and time consuming. The use of the Resolver system will be welcomed by the industry if it assists consumers in identifying valid complaints and streamlines the process.

Out and about

July was a quiet month for licensing boards due to local authorities' summer recesses, however, there was a solitary appearance at Perth and a licensing appeal hearing in Hamilton. The month of August is shaping up very differently with a number of citations received so far!

Stephen was delighted to attend the third annual West End Beer Festival in Glasgow and as well as partaking in some sampling; he caught up with representatives from a range of craft breweries.

Despite inclement weather Stephen, Niall, Michael, Alison, Cameron and Alice took part in TLT's Tour de Millport raising money for The Prince and Princess of Wales Hospice.

Niall's Twitter @niall_hassard

Stephen's Twitter @LicensingLaws

Michael's Twtter @michaelmcdx

Caroline's Twitter @ckploudon

This publication is intended for general guidance and represents our understanding of the relevant law and practice as at August 2017. Specific advice should be sought for specific cases. For more information see our terms & conditions.

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