Licence Holders Take Heed

In summer, Glasgow embraces an outdoor cafe and bar culture which would have been unheard of 15 years ago. But behind this scene of conviviality, it is essential that all licence holders understand their responsibilities and have the correct policies and procedures in place to comply with complex licensing law. Failure to do so can have serious consequences for their businesses.

The Scottish Government is responsible for regulating the powers of Scottish Local Authorities and Licensing Boards in relation to licensing the sale of alcohol. The main legislation which controls the sale of alcohol is the Licensing (Scotland) Act 2005.

This Act balances the rights of the majority of people who drink responsibly against the need to protect local communities from nuisance and crime associated with the misuse of alcohol. It is intended to provide a clear and consistent underpinning for the alcohol licensing regime in Scotland based on five objectives:

  • preventing crime and disorder
  • securing public safety
  • preventing public nuisance
  • promoting and improving public health
  • protecting children from harm

In 2010 two further Acts were passed: the Alcohol etc (Scotland) Act 2010 and the Criminal Justice and Licensing (Scotland) Act 2010. Also, because public drinking can severely hamper the quality of life for residents in a particular area, local authorities can pass byelaws to ban drinking in designated public places.

There are a myriad of requirements that all licence holders must meet. Here are the main ones:

  • Within 28 days, the Licensing Board must be notified of certain changes to the licence holding company such as a change of name or address and the appointment or resignation of any directors.
  • Each licensed premise must have a Designated Premises Manager named on the licence without which alcohol cannot be sold.
  • The Licensing Board has to grant permission to any changes in the business, such as a change in layout of the premises or the introduction of live music. A licence holder exceeding the remit of their premises licence is committing a criminal offence punishable by a fine of £20,000 or up to six months in prison or both.
  • A certified copy of the Premises Licence must be on display along with Schedule 3 and Section 110 Notices stating you must be 18 years of age to buy alcohol and that it is illegal to purchase alcohol for someone under the age of 18.
  • Staff should be made aware of all their responsibilities under the licensing legislation. For example, each Personal Licence Holder must tell the Licensing Board of any change in their name or address and any convictions they have. They must also complete the appropriate training including a refresher course and notify the Licensing Board of this.

If we can help with any licensing issues you may have please contact Paul Neilly on 0141 552 3422 or by email on pdn@mitchells-roberton.co.uk

Tougher Rules on employing illegal workers under Immigration Act

The Immigration Act 2016 came into force on 12 July 2016. Immigration minister James Brokenshire said:

“Some employers seem to think that by employing workers who are less likely to complain, including vulnerable migrants, they can undercut the local labour market and mistreat them with impunity…. The unscrupulous need to know that breaking the law is a high-risk activity and the full force of the state will be applied to them.”

The Immigration Act 2016 makes a number of changes to address the criminal offence of employing illegal workers and to tackle the exploitation of low-skilled migrant workers. Illegal workers are defined as individuals that do not have leave to enter or remain in the UK, or are in breach of a condition preventing them from working.

UK employers already have to carry out immigration checks before employees start employment.  Previously, employers would have breached their duties by “knowingly” employing an illegal worker. Under the new Act, employers will commit are in breach if they employ someone they have “reasonable cause to believe” is disqualified from employment because of their immigration status. A Government Factsheet on the new legislation says:

“By making the test more objective we are making it easier to prove the offence.”

Employers must now undertake three checks in order to comply with the law:

  1. Obtain the employee’s original documents as prescribed in the Home Office Guidance.
  2. Check, in the presence of the employee, that the documents are original and valid.
  3. Copy and keep the documents securely and record the date of the check and date for follow up checks.

To avoid discrimination claims, employers should carry out right to work checks on all prospective employees, not just those who appear to be of non-British descent.

The Act also introduces increased scrutiny and tougher potential sanctions for employers:

  • The maximum custodial sentence on indictment has been increased from 2 to 5 years
  • A maximum financial penalty of £20,000
  • A visa levy (immigration skills charge) on employers that use foreign labour.
  • A new power is introduced to close premises for up to 48 hours where a business employs illegal migrants. If the employer cannot prove they carried out appropriate checks then the business could be placed under special compliance requirements, including a period of continued closure.
  • A new Director of Labour Market Enforcement will oversee public bodies which enforce the different minimum standards for workers, including HMRC.

While the Immigration Act 2016 is now law, the majority of new measures will take effect only once further regulations are made. If you have any questions or if we can help in any way then please contact Paul Neilly on 0141 552 3422 or by email pdn@mitchells-roberton.co.uk

Conversion of Long Leases to Outright Ownership in Scotland

Tenants under certain long leases in Scotland as from 28th November 2015 automatically became the outright owners of the property as a result of key provisions of the Long Leases (Scotland) Act 2012.

In contrast to England and Wales, long leases in Scotland are relatively rare. In 1974, legislation restricted the maximum length of newly created residential leases to 20 years with further legislation in 2000 restricting the maximum length of newly created commercial leases to 175 years.  This latest legislation in 2012 will now operate to abolish those remaining historic long leases which the Scottish Government consider grant a tenant a right more akin to ownership than the right of a tenant under a lease. The result is that the landlord will have no further interest in the property and the tenant will become the owner.

To qualify for conversion, a lease must:

  • Be registered
  • Have originally been granted for a term of more than 175 years
  • Have more than 175 years of the term left to run (if non-residential)
  • Have more than 100 years left to run (if residential)
  • Have an annual rent of £100 or less
  • Not be a lease of a harbour in respect of which there is a harbour authority
  • Not be a lease of minerals
  • Not be a lease granted for the sole purpose of installing and maintaining pipes or cables

As from 28 November 2015 the following happened:

  • The tenant’s interest under a qualifying lease automatically converted to ownership.
  • Tenants could chose to opt out of the legislation but landlords could not.
  • Compensation may have become payable to the landlord for loss of rent or other rights.
  • Certain lease conditions automatically converted into title conditions affecting the tenant’s new interest in the property for the benefit of neighbouring properties. Other lease conditions may have converted to title conditions on registration of a notice by the person entitled to enforce the condition.
  • The landlord’s title was extinguished on 28 November 2015 and any standard security over the landlord’s title ceased to have effect.
  • Any standard security over the tenant’s interest in a long lease will remain and the tenant will own the property subject to that security.

If a lease has not already been registered in the Land Register, the tenant (now owner) may apply for voluntary registration of their interest in the Land Register. As noted above title conditions affecting the original owner’s title will remain in place and some conditions in the lease may convert into encumbrances burdening the property. For example if there are any access or other rights benefiting the lease, these will transmute into rights benefiting the property.

Suc matters will need to be considered as part of any application for registration of a disposition of the property or application for a voluntary registration  in order for the Land Register to be accurate.

If  you need further information about the above or I can assist you in any way then please contact me Ross Leatham by phone 0141 552 3422 or email rjl@mitchells-roberton.co.uk