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Reintroduction of fit and proper person test for Scottish Licensing Applications

The Scottish Government has laid before the Scottish Parliament regulations aimed at introducing further provisions of the Air Weapons and Licensing (Scotland) Act 2015 with effect from 15 May 2017.

The most important aspect of these regulations will be in the reintroduction of a ‘fit and proper person test’ in connection with applications for new and transfer of Premises Licences.

This means that Licensing Boards will, upon representation, be able to refuse applications for new and transfer of Premises Licence on the grounds that the Applicant does not meet a ‘fit and proper person test’.  The fit and proper person test which has existed in previous English and Scottish legislation has been criticised because it is not a very objective test. Added to this is the fact that the Scottish Government has legislated that the Rehabilitation of Offenders Act will no longer apply to applicants for Premises and Personal Licences – though this has not yet been brought into force.   So, for example, we may see Police Scotland trying to rely more on previous convictions, and they may include other ‘non-Court’ disposals such as warnings, cautions, fixed penalties etc… whether or not they relate to the operation of Licensed Premises. They may also look more closely at the personal associations of applicants. It is, therefore, worth bearing in mind when dealing with prospective Tenants whether or not there may be something in their background which would cause them to fail this test.   The fit and proper person test will also affect applicants for Personal Licences and connected persons such as company directors. It should be remembered that the fit and proper test can be brought into play for reviews of Personal and Premises Licences.

Importantly, however, these regulations do not introduce the proposed changes to the transfer mechanism of Licences which has been broached previously and which will in effect require that a consent to transfer is produced by the outgoing Licensee.

The regulations introduce a number of important other changes relating to the protection of young persons from harm, the way that relevant offences and foreign offences are dealt with, supplying of alcohol to children and young persons, the extension of the definition of alcohol to include angostura bitters imposing the duty on Licensing Boards to produce annual reports, giving Licensing Standards Officers greater functions in relation to Personal Licences and a number of other minor and consequential amendments which will probably have less day-to-day impact.

Should you wish to discuss this matter further please do not hesitate to contact our Alcohol & Entertainment Licensing team on 01332 226 142.

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