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.