« Previous | Contents | Next »
Listen
The Nicholson Committee: Review of Liquor Licensing Law in Scotland
OVERVIEW AND LIST OF RECOMMENDATIONS
On 28 June 2001 Mr Jim Wallace, the Justice Minister, announced our appointment with the following terms of reference -
"To review all aspects of liquor licensing law and practice in Scotland, with particular reference to the implications for health and public order; to recommend changes in the public interest; and to report accordingly".
It is our hope that our report contains a substantial package of measures which will simplify and improve licensing law and practice; which will give consumers a wider range of choice, but which will at the same time provide means for controlling undesirable and irresponsible behaviour on the part of some licensees; which will increase community involvement in the licensing process; and which will take full account of the health and public order issues which are mentioned specifically in our terms of reference. It is important to see our recommendations as a complete package since many of them are dependent on others for their overall effectiveness. In what follows we offer a brief overview of the contents of each chapter in the report, and we then set out in full the recommendations which are to be found throughout the report. For the convenience of the reader each recommendation is followed by a note of the paragraph number where the particular recommendation can be found in the full report.
Chapter 1 of the report contains a brief history of licensing law in Scotland, and it then highlights the major changes which have taken place since the last major review of licensing law in 1973 (the Clayson report). The chapter describes the background to our appointment, and it comments in particular on growing concerns in recent years in relation to health and public order issues arising from over-indulgence in alcohol. The chapter then describes in some detail the way in which we have gone about our task.
Chapter 2 sets out a quantity of data relative to health and public order issues and it also examines, by reference to research studies, the incidence of unsupervised drinking by children. The chapter then goes on to discuss our general approach to reform. Having considered various options we express the conclusion that our task has been to carry out a balancing exercise which takes full account of the many serious causes for concern which undoubtedly exist but which also recognises other considerations which point to the desirability of retaining, so far as possible, the relatively relaxed licensing regime which now exists in Scotland. We also state that we do not consider (nor did any of our consultees) that changes to licensing law can of themselves remove the undesirable consequences of over-indulgence in alcohol. Many of the problems associated with that are deeply engrained in the Scottish psyche, and reform of the law will not of itself bring about changes. The chapter continues by identifying seven guiding principles which have informed our preferred approach to our task. They are:
1. Given that the majority of people in Scotland drink sensibly and responsibly, the licensing system should be as free from restrictions as possible.
2. Any restrictions imposed by law should be those which are necessary in order to promote public health, public order and safety, a nuisance-free environment, and the protection of children from harm.
3. Where controls are necessary in order to achieve the foregoing objectives, there should be an adequate and effective means available to ensure, so far as practicable, that the controls are regularly and strictly enforced: and the potential penalties for infringement should be sufficient to encourage compliance.
4. Legislation should be framed in a way which will make it possible for young people to be introduced to licensed premises in a responsible and supervised manner.
5. Those who operate within the licensing system, whether as licence providers, licensees or servers, should, so far as is reasonably practicable, be adequately trained and, as necessary, supervised.
6. The procedures relative to applications for licences should be simplified so far as possible, but should ensure that the views of anyone with a legitimate interest in the grant or refusal of an application can be heard and considered.
7. So far as possible the procedures for appealing against decisions taken by licensing boards should be simplified and made more speedy.
We then go on to propose that in future certain of the foregoing principles should be enshrined in statute, and that the promotion of those principles should determine the approach of licensing boards and others to all matters arising under licensing law. The "licensing principles" which we propose are: the prevention of crime or disorder; the promotion of public safety; the prevention of public nuisance; the promotion of public health; and the protection of children from harm.
Chapter 3 begins by considering, by reference to the requirements of the European Convention on Human Rights and by reference to other considerations, whether licensing boards should be retained in their present form. (Our detailed analysis of the requirements of the ECHR is set out in Appendix C.) We conclude that licensing boards should be retained, and the chapter goes on to consider matters of detail such as the size of boards, the disqualification of members, and the frequency of board meetings. We propose that in future all board members should be required to undergo appropriate training involving instruction in licensing law, instruction in best practice for the management and operation of licensed premises, including an awareness of public order and public health issues, and instruction in good and acceptable judicial behaviour. Finally, it is suggested in this chapter that statutory recognition should be given to local licensing forums, some examples of which are already in existence in some parts of the country. We propose that there should be a local licensing forum in every board area, and we suggest that licensing boards should be required to meet their local forum at least once a year, and that boards should be under a duty, when formulating policy, to have regard to any advice given, or views made known, by the local licensing forum.
Chapter 4 deals with licences. In this chapter we propose the abolition of the present system which provides for seven different types of licence, not to mention the separate system for the registration of clubs. In place of the present system we propose that in future there should be a single premises licence the terms of which would be detailed in an operating plan or schedule lodged at the time when application for the licence is first made. Those terms would be subject to any standard terms or conditions which might be imposed by statute: and it would also be open to a licensing board to require modification of the terms where that appeared to be necessary for the promotion of the "licensing principles". Our proposal is that, once granted, a premises licence should remain in force indefinitely, but it would be capable of being varied on application by the licence holder, and it would also be subject to variation, suspension, or even revocation in the event of a licensing board being satisfied that there had been non-compliance with the terms of the licence of a kind which prejudiced the "licensing principles". Chapter 4 then goes on to propose the creation of a personal licence. This would be granted to an individual who possessed approved qualifications, and who satisfied certain other requirements, and it would entitle the individual in question to manage licensed premises and to sell or supply alcoholic liquor without supervision. A personal licence would remain in force for a period of ten years, and could be renewed for further periods of ten years thereafter. It is proposed that it should be a requirement that an applicant for a premises licence should specify a designated personal licence holder who will be the person responsible on a day-to-day basis for the management of the premises in question. We recommend the continuation of present requirements for the production of certificates in respect of planning, building control and food hygiene where a new premises licence is being sought, and we also propose that in future it should also be necessary to have a certificate of suitability from the fire authority together with, in appropriate cases, a specification of a safe maximum capacity for the premises in question. Finally, chapter 4 makes certain recommendations regarding appropriate training for all who work in licensed premises.
Chapter 5 deals with the subject of licensing hours. It notes that, on account of the prevalence of regular extensions, the actual licensing scene today is significantly different from what was recommended by the Clayson committee and from what was contemplated when the Licensing (Scotland) Act 1976 was first enacted. It is also noted, however, that extended hours are not available in respect of off-sale premises. In the foregoing situation the view is expressed that it is desirable that, in future, legislation and the reality of the licensing scene should be consistent with each other. To give effect to that it is recommended that the present system relative to opening hours should be abolished, and that there should be no statutorily prohibited hours. Instead, applicants for a premises licence should specify in the operating plan or schedule lodged with their application the hours when they wish the premises in question to be open. Those hours would be subject to authorisation by the licensing board, and it would be open to a board to modify the hours sought having regard to the board's general declared policy and to the need to promote the licensing principles.
Chapter 6deals with procedures before licensing boards. It begins by noting that it is inconsistent with the European Convention on Human Rights that a licensing board should be entitled to grant a licence in favour of the local authority from which the members of the board are drawn, and it is recommended that in future local authorities should make other arrangements, by for example the grant of franchises or leases, to ensure that premises licences can be held in the names of other parties. The chapter goes on to propose that in future procedural rules should not be set out in primary legislation but instead should be placed in self-contained regulations introduced by secondary legislation. It is recommended that there should be statutorily prescribed forms for applications and objections which would then be standard throughout the country. Such forms should be available electronically as well as in conventional form. Additionally, we suggest that an explanatory booklet, expressed in clear and simple terms, and explaining the legal requirements in respect of applications and objections, should be made generally available, possibly in at least some minority languages. The chapter then goes on to consider the process of objection; the identification of those who should be entitled to object; and the grounds upon which it should be open to a licensing board to refuse an application for a premises licence. The detail of our proposals on those matters can be seen in the list of recommendations below. Finally, the chapter recommends that in future all licensing boards should be under a duty to issue policy statements; and it is also proposed that Scottish Ministers should be entitled to issue general guidance to licensing boards in relation to the discharge of their functions.
Chapter 7 is concerned with the topic of supervision and compliance. It proposes that any person entitled to object to the grant of a premises licence and any person entitled to make representations in that connection should be entitled to bring to a licensing board's notice any perceived failure on the part of a premises licensee to comply with the terms of the licence. We also suggest that in future licensing boards should themselves employ persons to be known as Liquor Licensing Standards Officers. Their task would be to monitor the licensing system on a regular basis, and they too would be entitled to bring instances of non-compliance to the notice of the board. In such cases boards should have a hearing and, if satisfied that there has been a failure to comply with the terms of a licence, should have available to them a range of sanctions varying from a formal warning or admonition up to suspension or complete revocation of the licence. It is suggested that, in determining the appropriate sanction, a licensing board should consider what is necessary in order to promote the licensing principles. It is also recommended that, where a sanction involving closure of the premises for any period has been imposed, and the licensee has marked an appeal against that decision, the closure order should take effect notwithstanding that appeal. However, in such a case it should be open to the licensee to apply to the sheriff for interim suspension of the order pending the appeal. Finally, chapter 7 considers the monitoring of personal licence holders, and makes recommendations in that regard.
Chapter 8 deals with fees. It is noted that licensing boards have been unanimous in stating that the present level of fees is too low and does not cover costs, and that at least some of them would prefer to have the power to fix their own level of fees. We reject the suggestion that fees should be fixed locally, and we recommend the retention of a system whereby fees are fixed centrally by means of a statutory instrument or other order. However, we recommend that, so far as is practicable, fees should be of an amount which will make the licensing system self-financing. We also suggest that consideration should be given to devising a system of fees in respect of premises licences which will distinguish between premises of different size and capacity. Finally, it is recommended that the level of fees should be reviewed regularly, preferably annually, but no less often than every two years.
Chapter 9 deals with registered clubs, and it recommends the abolition of the present system whereby clubs obtain their entitlement to sell alcohol by means of registration with the sheriff. It is recommended that for the future clubs should come within the normal licensing system subject only to such variations as may be required to take note of their special character.
Chapter 10 deals with the desirability of the law and practice relative to liquor licensing being kept under regular on-going review. To that end we recommend the establishment of a National Licensing Forum whose members would come from a wide variety of relevant backgrounds and who would be appointed by Ministers. We suggest that that body should meet periodically under the chairmanship of the Minister for Justice and the Minister for Health, or one or other of them, and that its task should be, among other things, to offer advice to Ministers as to ways of dealing with emerging problems or difficulties.
Chapter 11 deals with the subject of appeals. It notes that under present arrangements an appeal to a sheriff may take many months before it is finally disposed of. It also notes that at present the availability of appeals is restricted with the consequence that in some instances the only means of challenging a decision is by the process of judicial review. Taking account of those matters it is recommended that in future appeals should lie to sheriffs principal, and that all decisions by licensing boards, other than purely procedural ones, should be capable of being appealed in that way. The chapter then goes on to consider the form which an appeal should take, and it is recommended that in future appeals should proceed by means of a stated case. Finally, consideration is given to the grounds upon which an appeal may be allowed. We express the view that in general the present grounds are satisfactory. However, for reasons which we explain we suggest that the present ground relating to the "unreasonableness" of a decision should be replaced by one which reflects the concept of proportionality as developed in the jurisprudence of the European Court of Human Rights.
Chapter 12 is concerned with what we have described as "irresponsible promotional activities". By that we mean promotional activities which, by substantial price reductions or otherwise, are likely to encourage excessive drinking within a relatively short period of time. That is something which in our view, and in the view of many of our consultees, is harmful and dangerous both in relation to public health and in relation to public order and amenity. We note that this appears to be a practice which is confined to a relatively small number of licensed premises, and we also note that modest price promotions are a regular feature in many establishments, both on-sale and off-sale. We do not have any anxiety regarding such modest promotions, but we have considerable anxiety about extensive promotions which are wholly irresponsible. We make reference to a number of initiatives which have taken place in certain licensing board areas in order to deal with deep price discounting. Those initiatives have involved agreements between the establishments in question and the licensing board whereby the establishments agree to maintain a certain minimum level of pricing in return for an undertaking by the board to maintain present arrangements for extended hours. We explain that we see no need for such agreements to come to an end provided that they are not successfully challenged under competition law. However, we recommend that it should in future be a standard condition of all premises licences that nothing should be done in connection with the business of the premises, whether by way of promotional advertising, by way of offering discounted prices, or in any other way, which encourages excessive consumption of alcohol and which thereby prejudices, or is likely to prejudice, the licensing principles. It is also recommended that, when a licensing board is satisfied that a breach of the foregoing condition has been established, it should be entitled to impose an appropriate sanction in respect of the premises in question.
Chapter 13 deals with children and young persons. We note that present provisions in relation to access to licensed premises by those under the age of 18 are confused, confusing, and unsatisfactory. We also agree, however, with the Clayson committee who took the view that there would be advantage in allowing children access to licensed premises in appropriate circumstances. We have therefore recommended that all current provisions relating to access by children should be replaced by a general presumption in favour of such access. However, it should be open to any applicant for a premises licence to opt out of that presumption by doing so in the operating plan or schedule lodged with the application for the licence. Where there is no opt-out the operating plan or schedule should specify, as appropriate, parts of the premises where the presumption will, or will not, apply; whether, and if so at what times, children may be admitted without being accompanied by a person of or over the age of 18; any terminal hour after which access will not be permitted; and any other relevant restrictions. A licensing board should be entitled to make such modifications to the foregoing as appear to be necessary in order to promote the licensing principles. However, in order to avoid too many local variations it is suggested that the National Licensing Forum should, at an early stage in its existence, devise guidance, possibly in the form of standard conditions, regarding the terms and conditions which will generally be appropriate in respect of premises of different types. Finally, this chapter considers the sale and supply of alcohol to persons under the age of 18. It is recommended that all current prohibitions relative to such sale and supply should be maintained. However, it is suggested that the current proliferation of proof-of-age cards is confusing and likely to be less effective than is desirable. For that reason it is suggested that the Scottish Executive should arrange for the introduction of a national proof-of-age card which would be recognised throughout the whole country.
Chapter 14 of the report deals with a wide range of miscellaneous matters which are too numerous to be summarised here. Their nature, and the content of our recommendations, can be seen in the list of recommendations which follows after this overview of the report.
Before coming to that list of recommendations there are two general points to which we should draw attention. The first is this. In the report, and in our recommendations, we have not commented specifically on every single provision in the present Act of 1976. We have, of course, commented on provisions which will require significant change, and we have also commented on certain provisions which, subject to appropriate modification, should be retained in any new legislation. We have done that lest it might be thought that such provisions would not be appropriate in any new legislation following on our recommendations. However, there is a considerable number of existing provisions on which we have not commented in detail: those include, for example, the many provisions in the 1976 Act which create offences. It may be assumed that it is our position that, unless we have expressly recommended a departure from provisions such as that, and unless the need for them will simply disappear under the general scheme which we are proposing, we favour their replication in any new legislation following on this report.
The second point relates to the action which should be taken following on receipt of this report. We recognise, of course, that it will be for Ministers to determine whether our report should result in any legislative action at all. However, if they were to decide that there should be new legislative provision, we would strongly urge that that should take the form of an entirely new Licensing Act. As will be seen, our recommendations are extensive and involve very significant changes to existing law and practice. We are of opinion that, if appropriate effect is to be given to those recommendations, that will best be done by an entirely new statute. When the recommendations of the Clayson committee were given effect in 1976 that was achieved by the passing of a new statute, but it has ever since been a cause for complaint that in many respects it merely repeated (without, apparently, any critical consideration) provisions which were frequently no more than relics of the Licensing Act of 1903. That is one of the reasons why, at least in the eyes of experienced practitioners, the 1976 Act has over the years given rise to so many problems. We earnestly suggest that, if effect is to be given to our recommendations, it will be appropriate to draft entirely new legislation, in a new and self-contained Act, where attention can be given to ensuring that all of the provisions come together in a coherent and understandable way.
With those preliminary comments we now turn to set out the recommendations which are made in the report which follows.
« Previous | Contents | Next »