Licensing: More change to come in 2021

Licensing lawyers are no strangers to changes in the law in their field. Since the Licensing (Scotland) Act 2005 was introduced there have been three additional pieces of primary legislation and over 30 regulations to absorb. However, 2020 took things to a very different place.

The Coronavirus (Scotland) Act 2020 was a statute like none other, passed to ensure licensing board business could continue in the grips of a pandemic, with new timeframes to protect licences. There followed a raft of regulations designed to suppress the virus – but the impact of their controls was, and continues to be, catastrophic for the licensed trade. 

Quite apart from closure and partial reopening, we have had a music ban, the 10pm curfew, restrictions on gaming machines, and mandatory collection of customers’ contact details. Face coverings became mandatory. There were the infamous café regulations, the Strategic Framework, and (to date) 10 versions of regulations from the relentless level reviews. With these regulations came guidance, and with guidance came confusion, local interpretations and a legal status that was at times impossible to pin down. Some of those regulations are now the subject of legal proceedings which question their basis in law and their proportionality.

While the focus for many licensing solicitors in 2020 was squarely on interpreting this continually evolving legislative landscape and supporting clients through the crisis, those in local authorities have also had other matters to attend to, as even in a pandemic licensing does not standstill. 

Theatre licensing

As of 27 January 2021, the Theatres Act 1968, which provided a licensing regime for premises used for the public performance of plays, will be repealed. Instead, as a result of an amendment to the Civic Government (Scotland) Act 1982 brought into force by s 74 of the Air Weapons and Licensing (Scotland) Act 2015, a local authority can resolve under s 9 to license theatres under its public entertainment licensing (PEL) regime. The licensing of theatres is therefore no longer mandatory, and after the end of the month in some parts of the country will be an unregulated activity.

Some local authorities including Edinburgh did take the opportunity in 2020 and resolved to include theatres under their PEL regime. Others already had plays listed as an activity within their resolution, so that the requirement to hold a PEL automatically applies on the repeal of the 1968 Act. Notably, many theatres also hold premises licences under the Licensing (Scotland) Act 2005 so will continue to be exempt for that reason.

This shift in approach has not been widely publicised, so it is not clear whether all theatres were aware of the changes, which impact their very ability to perform the work which is at the core of their operation. With theatres sadly closed under Scotland’s Strategic Framework until they enter level 1, the smooth transition between the two regimes becomes a less pressing issue, but there will come a time that theatres are no longer dark. The show must go on and it must be properly licensed.

Short term lets (STLs)

The 1982 Act is set to be expanded in other ways this year, as it will also be the vehicle used to regulate short term lets (STLs). Unlike theatres, the licensing of STLs will be mandatory; however the local authority will have discretion to designate planning control areas. Within those areas planning permission for a material change of use would always be required for a dwellinghouse to operate as a short term let; otherwise the necessity for planning consent would be determined on a case by case basis.

The Government has determined that it will follow its original timetables on STLs, despite the impact of COVID-19. The regulations establishing the system will be in place by April 2021. Each local authority must have a live system for accepting applications in place by 1 April 2022, all hosts must apply for a licence by 1 April 2023 and that application must be determined and licence granted by 1 April 2024.

Impact of Brexit

The small matter of exiting from Europe has many practical impacts on the licensed trade, critically the effect on foreign workers within the industry, but in legislative terms there is only one piece of relevant licensing legislation. The Licensing (Amendment) (EU Exit) (Scotland) Regulations 2019 amend ss 102 (sale of alcohol to a child or young person) and 108 (delivery of alcohol by or to a child or young person) to include a UK driving licence as an acceptable form of identification. This does not replace the reference to a European driving licence but is in addition to it.

Licence holders can continue to accept the documents as before, and this minor but important amendment ensures that the law keeps up with the UK’s new status. Originally this was due to come into force on exit day, but this has since been amended by virtue of the EU (Withdrawal Agreement) Act 2020 to “IP Completion Day”, which was 31 December 2020.