Lawyer of the Month: Stephen McGowan
Licensing law, Stephen McGowan acknowledges, can be “extremely difficult to fathom”. He speaks as an expert, being both the head of licensing (Scotland) at TLT and the author of three books on the subject – the latest of which, the recently published McGowan on Alcohol Licensing Law in Scotland, aims to demystify this area of law.
That was no easy task, however. “One of the key criticisms of licensing law,” McGowan says, “is that it’s essentially impenetrable but to the very few. You pity the poor licence holder who has to get their head around it.”
Fortunately, McGowan has the benefit of not only extensive experience with licensing law, but a passion for it as well. He came to the law rather late in life, having worked as a licensing paralegal for five years and, prior to that, serving with Glasgow City Council’s licensing section, before sitting his law degree part-time at Strathclyde University. He attributes his enthusiasm for the subject that would become his speciality to a youthful span as a barman; consequently, he “got the bug for working the license trade”.
“I like the coalface of the licence trade – the pouring of the pints and dealing with the punters – but I also like the legal and the technical side of it,” McGowan reflects. “So I ended up working for the council, and then for a specialist law firm.”
Licensing law has been brought under greater scrutiny due to the impact of amendments brought in as part of the Scottish government’s coronavirus legislation, but even prior to the pandemic, major changes were underway.
“Alcohol licensing law is one of these areas that is so politically heated, it is very often changed because politicians have aspirations to introduce things that are seen to be doing something about the problems that alcohol can bring,” McGowan notes. “In fact, there’s been an unrelenting stream of change across the lifetime of the Licensing Scotland Act 2005, which came into force in 2009 – since that time, the act has been in a process of perpetual change.
“Even now, there’s been four other pieces of primary legislation that have significantly amended it; there’s something in the order of 40 to 50 secondary statutory instruments, never mind all the jurisprudence case law and the thirty-odd local licensing board policies up and down the country, which change every three to five years. So licensing law is in a kind of undulating motion of never-ending change. I suppose that’s one of the things that attracts people – it is an exciting area of law to do.”
Despite his fascination however, McGowan describes the impact of the Covid-19 pandemic as “shattering” upon the licensing trade. “Every pub, nightclub, restaurant was closed because of the impact of the virus. I was watching my clients closing their businesses, not knowing if they would have businesses to reopen. As a licensing lawyer, you ask yourself: ‘What clients am I going to have? Are we going to get through this?’
“In terms of the actual legal changes, it seemed like almost every week there was some amendment to the regulations – our clients really relied on us heavily across that period, because it was so difficult to know what the law was. It was difficult to get your head around for licensing lawyers, never mind the trade - people were tripping up.”
“But it’s been an awful period for all of us,” McGowan adds. “Especially those who have been faced with loss as a result of the virus, which pales my comments into insignificance.”
While the pandemic necessitated the sweeping restrictions which hit many of his clients so hard, McGowan has less sympathy for the impenetrability which characterises so much of licensing law – or those he judges as responsible.
“That comes back, again, to the political desire to be taking action on alcohol harm,” McGowan argues. “Except sometimes, these laws have unintended consequences or don’t work in practice. A good example of that was the ban on discount multipacks that was introduced a few years ago, which health groups lobbied for.
“The way the law was written did not ban multiples of multipacks, so in actual fact, it created the reverse of what it was intended to achieve – an incentive for people to buy multiples of multipacks.
“This was pointed out to the government at the time, but we still have that law on the books. That’s one of many examples I’ve given in the book, and I don’t think I’ve held back in criticising parliament when I believe it has given bad law.”
Following the revelation earlier this month that 2020 saw a 12-year high in alcohol-related deaths in Scotland, calls were made by some for minimum unit pricing (MUP) to be increased. Yet McGowan is dubious that changes in licensing law can be relied upon to improve Scotland’s long-standing difficult relationship with alcohol.
“One of the things that I think stakeholders need to understand is that licensing law is not a panacea,” he says. “Licensing law is very clear about what licensing law is about: licensing. There are significant cases that make it extremely clear that licensing law should not be used for non-licensing purposes – it’s not a silver bullet for the harms that alcohol can bring.
“What you’ve got to do to penetrate the prism of alcohol harm is understand that alcohol is not inherently evil – what makes people abuse it is what should be focused on. Poverty – intellectual poverty, social poverty, housing poverty, cultural poverty, economic poverty – these are the real things that in my view that bring people to abuse alcohol.
“So when you come back to laws being passed around alcohol, like minimum pricing, these laws are designed to influence consumer behaviour. What they don’t to is tackle the underlying poverties that lead people to abuse alcohol.”
“The Scottish government has conducted a noble pursuit to do what it can to address alcohol harms – I don’t think anyone would disagree,” McGowan continues. “But licensing is often seen as an easy way in, which ignores the nuance of the system. There is a difference between licensing policy and alcohol policy, because licensing policy by its very nature allows people to drink and sell alcohol – that is the purpose of the system.
“So from my perspective, take the deeper approach – don’t tinker around the edges.”