Scotland could see a licence to sell chewing gum!
In England and Wales the licensing system was
unified in 2005 with the advent of a single premises licence
covering an array of activities, albeit to sell alcohol you also
needed at least one person to hold a personal licence. Broadly
speaking though, the system has worked, reducing the burden of
having different licences for different activities.
In Scotland a new licensing system was
introduced in 2009. In many respects similar to ours with a
dual system of premises and personal licences. However, an
opportunity was missed in our view to unify all the existing
"licensable activities" in the one licence. In fairness, it
almost got there; many types of licence were amalgamated under the
new premises licence.
One which was not "swept up" in the new
provisions was the Late Night Catering Licence (LNCL). This is
a licence to permit the provision of "meals"
between the hours of 11 pm and 5 am. It was introduced
by the Civic Government (Scotland) Act 1982.
However, the question as to whether premises
providing meals after 11 pm required this licence was left for each
Licensing Authority to determine. This would require public
notice and consultation before making a resolution. In the
absence of a resolution no licence would be required. We
understand, though we are not certain, that each of the
Licensing Authorities did go on to make such a resolution. It
is not unreasonable that they did so in order to regulate the ever
growing number of takeaway food businesses that play their part in
the "problems" experienced in the late night economy.
NB: In England and Wales the law currently
requires premises' providing late night refreshment (defined as hot
meals or hot drinks) between 11 pm and 5 am must have a premises
licence, subject to one or two exemptions, for
example, hotel guests and employees.
In Scotland new legislation came into force on
the 1 October 2012 by virtue of the Criminal Justice and Licensing
(Scotland) Act 2010. This has amended the Civic Government
(Scotland) Act 1982 by removing the word "meals" and inserting the
word "food." It is a significant change
in wording as the definition of food is given the same meaning as
in the Food Safety Act 1990 which includes (not exhaustively):
- articles and substances of no nutritional value which are used
for human consumption;
- chewing gum and other products of a like nature and use;
and
- articles and substances used as ingredients in the preparation
of food.
The consequence of this change potentially
means that any premises open after 11 pm selling anything which can
be consumed will need a LNCL. So for example a newsagents or a
petrol station open after 11 pm will now need to make an
application for a LNCL. This will not only incur the premises
owner in the cost of applying but also running the risk of
regulation on the way in which the premises are run, perhaps by
having a condition for CCTV to be installed for
example.
We say potentially because the Licensing
Authorities retain the "jurisdiction" for what premises need to
apply for a LNCL within their resolution under section
9. Accordingly if there has been no new resolution with
respect to this change in legislation it is virtually certain that
no action could be taken against those premises selling food after
11 pm.
One hopes from an operator's point of view the
Licensing Authorities take a sensible view and revise their current
resolution to specify those categories of premises that do need a
licence, thereby making it clear that no-one else need
worry.
Our advice is simple: contact your Licensing
Authority and ascertain what they intend to do. If there
is consultation on a change to their resolution make sure you make
representations with a view to persuading them to exclude your
class of premises as being one which must apply for a
licence. If the proposal is to include your type of premises
ascertain by what date they will expect an application to be made
following the making of the resolution so at least you are prepared
for the worst. You will need to crunch the numbers on what net
profit you make between 11 pm and 5am and balance that against the
cost of the licence and the cost of compliance with conditions
which might be imposed.
Will we ever see this in England and
Wales? If we understand the reasons behind the change in
Scotland, and none seem to be published, we might be better
placed to offer our opinion.
