Getting the Scottish licensing facts right

A couple of weeks ago I commented rather dismissively on a row which erupted in Scotland over admission of the public to members' clubs in Scotland...

A couple of weeks ago I commented rather dismissively on a row which erupted in Scotland over admission of the public to members' clubs in Scotland on special occasions, under the Licensing (Scotland) Act 2005.

Three senior licensing specialists wrote in to protest and to put me straight on why they are justifiably annoyed, and why I was wrong.

This is not just a case of "sour grapes", but a genuine constitutional point which, at the same time, causes consternation to the established pub trade.

My description of the facts with regard to members' clubs and occasional licences was essentially correct, but the effect of the recently-published clubs Order introduces an extra exemption for clubs from the general principles of the Act that occasional licences should be for premises other than the licensed premises themselves.

Also, the conditions of the club's own licence (restricting supplies to members and guests, for example) will not apply on these occasions.

I am right that this concession has been allowed in England and Wales for some time, and that under the current Licensing Act, temporary event notices (TENs) continue to provide for this on club premises.

But Scottish clubs have been subject to more restrictions for a long time - so this sudden concession, brought about by an undebated Order and effectively changing the terms of the Scottish Act, is seen as back-door legislation - hence the strength of these protests.

By writing about this in the way I did, I compounded the original sense of outrage at the behaviour of the Scottish Executive. I have to say that before writing the piece I spoke to the licensing division of the Executive, and they thought it was a storm in a teacup.

After examining the details, I think they are wrong. From any angle, this is an inappropriate way to bring key elements of legislation into being, especially on such an emotive subject as unfair trading by clubs. Twenty years ago, this was a huge issue in England.

The Executive might still have decided to award members' clubs this concession on "outside events" so that they enjoyed a similar (but more generous) regime to that in England and Wales. But adequate consultation on changing the law should have been undertaken, to enable all the issues to be aired.

My apologies to head of BII Scotland Janet Hood, Scottish Beer and Pub Association chief executive Patrick Browne and leading Scottish licensing lawyer Jack Cummins for getting the facts wrong in this instance.