Personal licensing: a fit and proper route to success?

News that the Scottish Justice minister Kenny MacAskill wants to bring back the "fit and proper" test for personal licences under the new Scottish licensing system will certainly interest the police in the rest of the country. But has it any chance of success?

The method of obtaining personal licences in Scotland more or less follows the system in England and Wales — being 18 or over, possessing a licensing qualification and not having had a licence revoked in the previous five years. However, it is up to the police in the first instance to run the convictions check and then to issue a notice in appropriate cases saying that the personal licence ought to be refused. However, they can only do this under the terms of the Act if there has been a conviction — they cannot merely say that because of bad character and known behaviour a licence ought not to be granted.

This was, of course, the procedure adopted by the licensing justices in England and Wales under the 1964 Act and led to some very interesting debates about the use and extent of this power. In one famous case, the police objected to a licensee, simply because the owners of the pub refused to identify themselves and sheltered behind a company. In that case the high court held that it was the character of the actual applicant that was of prime importance.

But given the fact that there are no "grandfather rights" in Scotland, the proposal is of some significance, because existing licensees would be put through the whole process. If the police did not like someone, or were unhappy about the way they ran their pub, it would be open to them, under the MacAskill proposals, to object to the re-grant of his existing permission.

When the 2003 Licensing Act was being debated, the Home Office made it clear that the grant of a personal licence was to be an administrative action, with licensing authorities ticking boxes and only refusing a licence in rare instances where the police raised an objection on the back of a conviction. So it has turned out — there have been very few refusals and only a handful of revocations of personal licences by the courts.

Although MacAskill has promised a number of changes aimed at beefing up the Scottish licensing laws, it is not clear whether this proposal will get through the legislative process. He tends to shoot from the hip and it is only when the policy-minded civil servants get hold of it that common sense prevails. It is felt that bringing back the fit-and-proper test would not be in the best interests of the system and may clog up Scottish licensing boards with unnecessary hearings. It is also open to abuse.

The chief way in which "bad character" has emerged again in England is in the use of the review process to remove the Designated Premises Supervisor (DPS) from a licence, as the principal way to improve the conduct of the premises. In such cases, the police have to show that the individual was responsible for running the premises in a way that gave rise to concern.

But even this does not impact on the personal licence, which can only be taken away by the courts on conviction for an offence. The "sacked" DPS retains his licence and can move immediately to another pub or another operating company and still manage licensed premises. The fact that he has been removed from certain premises on review will not necessarily affect his being named on another premises licences, unless the police in the new area are aware of the background and use their exceptional powers to object under section 37 of the Act.