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The Nicholson Committee: Review of Liquor Licensing Law in Scotland

CHAPTER 1
THE BACKGROUND TO THE REVIEW,OUR APPOINTMENT, AND OUR METHOD OF WORKING

The historical background

1.1 Liquor licensing legislation has existed in Scotland for a very long time. The first licensing legislation appears to have been an Act of 1756, and the first hint of the present system is to be found in an Act of 1802. Licensing legislation was subsequently redrafted in something a little more like its present form in what is commonly known as the Home Drummond Act of 1828.

1.2 Further legislation followed throughout the 19th century, and towards the end of that century it became clear that consolidating and amending legislation was necessary. A Royal Commission was accordingly appointed in 1896 and, following on its report, the Licensing (Scotland) Act 1903 was enacted. That Act made radical changes and, amongst other things, it introduced the system of registration for clubs which still exists to this day. (As will be seen later in this report, many of our consultees have argued strongly that the time has come when the licensing of clubs should be brought within the normal licensing system.) The 1903 Act also forbade the sale of liquor on Sundays except to travellers. That, of course, was at a time when motor cars were still very much in their infancy, and when it was not regarded as socially unacceptable to encourage, or at least facilitate, drinking by drivers.

1.3 A Royal Commission under the chairmanship of Lord Mackay was appointed in 1929 to consider further reform of licensing law, but the members of that Commission were not unanimous in their views, and no legislation followed. In the result the 1903 Act remained the basis of licensing legislation and practice for many decades subject only to some minor modifications, with the whole legislation being consolidated in the Licensing (Scotland) Act 1959. In the year when that Act was passed a departmental committee on Scottish licensing law was appointed under the chairmanship of Lord Guest. The result of that committee's deliberations was the Licensing (Scotland) Act 1962 which provided for standard permitted hours for the whole of Scotland and for Sunday opening, albeit restricted to hotels and to certain premises providing meals.

The Clayson report

1.4 Finally, in 1971 a committee under the chairmanship of Dr Christopher Clayson was appointed with a broad remit not dissimilar to ours. The Clayson committee presented its report in August 1973, ¹ and most of its recommendations were incorporated in the Licensing (Scotland) Act 1976. Among the main recommendations which were implemented in the 1976 Act were: the transference of the functions of licensing courts to boards consisting of local authority council members; a requirement for licensing boards to have quarterly meetings in January, March, June and October; the introduction of two new types of licence, namely the refreshment licence and the entertainment licence; provision for licences to be held by legal personae other than natural persons, such as limited companies; and certain extensions of permitted hours. Subject to some amendments introduced in 1990, 1992, 1993 and 1996 the 1976 Act remains the basis for licensing law and practice in Scotland at the present time.

1.5 At the risk of some over-simplification the main thrust of the Clayson recommendations was to create a more liberal licensing system in the hope that this would encourage sensible social drinking, while at the same time building in a variety of controls in the interests of public health and public safety. However, some 30 years have now passed since the date when the Clayson committee presented its report, and in that period much has changed both in relation to social attitudes to drinking and in relation to the manner in which, the sources from which, and the times at which liquor is sold.

Changes since the time of the Clayson report

1.6 The number and type of licensed premises has in certain respects changed substantially over the foregoing period. However, not all types of premises have increased in number, and it is of interest to note, for example, that the number of public house licences presently in existence is little different from what it was near the beginning of the 20th century. The following Table ² gives a brief overview of the provision of different types of licences at different dates from 1915 to 2001.

Liquor licences in force in Scotland - number by type of premises in 1915, 1945, 1965, 1980, 1997 and 2001

Comparable figures are not available in respect of registered clubs. However, it is to be noted that the number of such clubs in 2001 was 2,513.

1.7 The above Table reveals that, while there had been some reduction in the number of public house licences by the end of the Second World War, the number began to grow again thereafter but has since levelled out at a figure which, as previously noted, is almost the same as in 1915. What those figures conceal, however, is the emergence in recent times of the so-called "super-pub" which has a capacity many times greater than that of public houses in the past. (The same is, of course, true of many night clubs today which can accommodate hundreds of customers at any one time.) Very large public houses, located mainly in city and town centres, attract large numbers of customers, and the result is that a given number of public houses may now cater for many more people than was formerly the case. There has been something of an increase in hotel licences during the period since 1915 albeit that the number of such licences has dropped in the years since the passing of the 1976 Act. The most spectacular increase, however, has been in off-sale licences with the number of such licences having nearly doubled even since 1965. This suggests that a significantly larger quantity of alcohol is now being purchased for consumption away from on-licensed premises (mainly in the home, one assumes) than was formerly the case. That appears to be confirmed by figures published by the British Beer and Pub Association ⁶ which show, for example, that in 1970 the consumption of beer in on-licensed premises represented 93.1 litres per head of population as against 9.0 litres per head sold in off-sale premises whereas in 1998 the comparable figures were 64.0 litres and 31.4 litres respectively. We have not been able to obtain comparable figures for the consumption of wine and spirits. However, it is, we think, well known that the consumption of wine has increased significantly during the last 30 years or so, and it may be presumed that a considerable proportion of that increased volume is sold in off-sale premises. In the context of the rapid rise in the number of off-sale premises we should also add that this has caused problems for many local authorities in that it appears to have given rise to an unwelcome increase in the amount of uncontrolled drinking occurring in public places in our towns and cities. In many instances local authorities have endeavoured to cope with this problem by the promulgation of local bye laws: and, as we understand it, this has had a fair amount of success. We, for our part, would encourage such local initiatives.

1.8 The above Table also reveals that, since their introduction in 1962 and 1976 respectively, there have been quite significant increases in the number of restaurant, refreshment and entertainment licences. Unsurprisingly, the highest concentrations of restaurant and entertainment licences are to be found in the major cities (Edinburgh, Glasgow, Aberdeen and Dundee). Those cities account for 470 of the restaurant licences in force in 2001 (nearly one third of the total) and for 344 of the entertainment licences (considerably more than one third of the total). ⁷

1.9 However, figures showing the number of different kinds of licence in force at the present time do not of themselves reveal the full picture of the extent to which the licensing scene has changed since the time when it was considered by the Clayson Committee. That Committee recommended the retention of the concept of permitted licensing hours, albeit with the normal hours extending to 11 p.m.; but they also recommended that licensing boards should be entitled, on application, to grant regular or temporary extensions to those hours. All of those recommendations were given effect in the 1976 Act. It is clear, however, that the Clayson Committee had in mind that extensions would be granted only in special circumstances such as, for example, in holiday resorts during the summer. ⁸ The reality today, however, is quite different. The most recent statistics issued by the Scottish Executive ⁹ reveal that in Scotland as a whole around 90% of all licensed premises had one or more regular extensions in 2001. As is well known, many of those extensions run not just until midnight but often extend until 3 or 4 a.m. or even later. This has given rise to many problems which have been brought to our notice by local residents' and amenity groups.

The immediate background to our appointment

1.10 The significant changes to the licensing scene which we have just been describing played a considerable part in persuading Ministers and others of the desirability of reviewing liquor licensing law in Scotland. However, in addition to all of the foregoing there has been growing concern in recent years about the health implications of, for example, binge drinking on the part of the young of both sexes and about the growth of alcohol related illnesses, affecting all ages. Additionally, those with a concern for public order have become increasingly alarmed at the links between over-consumption of alcohol and the commission of crimes, in particular crimes of violence. We set out some of the relevant data in relation to such matters in greater detail in chapter 2 below.

1.11 Concerns about public health and public disorder in relation to the consumption of alcohol are, of course, nothing new; and such concerns were at the forefront of the deliberations of the Clayson committee. However, a resurgence of such concerns was taken on board by Government Ministers, and at an annual licensing conference in 1997 Mr Henry McLeish, who was then Minister for Home Affairs at the Scottish Office, said that, while at that time there were no immediate plans for legislative change, he would welcome the practical views of those actually operating the current legislation. In the result responses were received from a number of interested organisations, and we have taken those into account in the course of our own work.

1.12 Further developments took place following on the creation of the Scottish Parliament. The White Paper, Towards a Healthier Scotland, announced the setting up of a new advisory committee on alcohol misuse. That committee, the Scottish Advisory Committee on Alcohol Misuse (SACAM), was established in April 1999 under the chairmanship of Dr. Andrew Fraser, Deputy Chief Medical Officer for Scotland, and its membership brings together experts from health, police, local authorities, licensing authorities, the voluntary sector and the drinks industry. Two of its members (Mr Anderson and Professor Brunt) are also members of this Committee. SACAM's formal remit is to advise the Scottish Executive on policy, priorities and strategic planning in relation to tackling alcohol misuse in Scotland. As can be seen, SACAM's task is not primarily directed towards legislative reform, and to that extent it is different from the task which we were given under our terms of reference. On the other hand, SACAM's remit is obviously complementary to ours, and for that reason we have maintained close contact with that Committee in the course of our own work. Moreover, many of the initiatives which are recommended in SACAM's Action Plan ¹⁰ have assisted us in the formulation of our own recommendations.

1.13 In addition to all of the foregoing many licensing practitioners and licensing boards have become increasingly disenchanted with what they perceive as fundamental shortcomings and unnecessary complexities in the detailed provisions of the 1976 Act. That, coupled with a growing awareness of the other considerations which we have briefly mentioned above, finally led to our appointment in the summer of 2001.

Our appointment and our approach to our task

1.14 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".

Initial consultation

1.15 Notwithstanding the fact that the membership of the Committee was not finally determined until July 2001 we held the first meeting of the full Committee on 1 August that year when all but one of our number were able to attend. At that meeting we settled the terms of a consultation paper and we agreed a list of potential consultees to whom the paper would be sent with a request for comments. On the basis that the paper would not actually be despatched to consultees until about mid-August, and having in mind that it is customary to allow about 12 weeks for responses to a consultation, we agreed to invite consultees to let us have their comments by mid-November 2001.

1.16 At our first meeting we were mindful of the fact that there might well be other bodies and individuals who were not on our list of consultees but who might nonetheless wish to make their views known. We were anxious that all with an interest in the subject should have an opportunity to present their views, and accordingly we arranged for notices to be placed in a wide range of national and local newspapers and in trade and professional journals. Furthermore, the full text of the consultation paper was made available on the Scottish Executive website. We are pleased to say that these forms of advertisement produced a significant number of responses, mostly from individuals.

Sub-groups

1.17 So that the three month period when responses to the consultation were awaited should not be wasted, and in order to assist us in our deliberations thereafter, we decided at an early stage that there would be advantage in dividing the Committee into three sub-groups which would take forward appropriate research and thinking on major issues which the Committee required to address and which are highlighted in our terms of reference. Accordingly, a public order sub-group, a health issues sub-group, and a legal issues sub-group were established. The membership of these sub-groups is as follows -

Public order sub-group
Sir John Orr (later, Mr Willie Rae)
Councillor Tom Holmes
Mr Simon Jaquet
Mrs Maureen McKerrow
Mr Gordon F. Millar

Health issues sub-group
Mr William Anderson
Professor Peter Brunt
Dr Helen Zealley

Legal issues sub-group
The Chairman
The Rt Hon Menzies Campbell
Mr Jack Cummins
Ms Patricia McIlquham
Sheriff Ian Peebles

Each of the above sub-groups met on several occasions and reported back to the full Committee. In addition to formal meetings members of the public order sub-group also made a number of visits. These included: (a) a late night visit, accompanied by members of Strathclyde Police, to the centres of Hamilton and Glasgow to see for themselves the dynamics of "entertainment districts"; (b) a visit to the West Yorkshire Police in Leeds; and (c) a visit to the Northumbria Police in Newcastle. Members of the Public order sub-group also attended a conference on "Tackling Alcohol-related Crime and Disorder" which was held in London on 29 May 2002.

Meetings and visits

1.18 During its life the full Committee met for 11 one-day meetings, and in addition we met for two working weekends in the country. We also individually, or in small groups, made a number of visits and participated in joint meetings.

1.19 At an early stage those of us with no current experience of licensing boards took the opportunity to visit and to observe proceedings before a number of boards at their quarterly meetings; and some of us have made further visits to licensing board meetings subsequently. In November 2001 our Chairman visited Kirkwall at the invitation of the Orkney Drugs Alcohol and Smoking Action Team. He took part in a number of meetings there, including a well attended public meeting, at all of which a number of important issues were raised and discussed. Later that month some members of the Committee, including the Chairman and the Secretary, travelled to Dublin where we had a helpful and interesting meeting with the Chairman and members of the Irish Commission on Liquor Licensing which is currently carrying out a review not unlike our own. Additionally, in June 2002 some of our members visited the Isle of Man. As will be mentioned in more detail later, ¹¹ the Government of the Isle of Man has recently done away with the concept of permitted licensing hours. We were therefore anxious to have information as to how that arrangement is working in practice. Some of our members have also attended, and in some instances participated in, a range of conferences and seminars on alcohol related topics.

1.20 We have already mentioned the Scottish Advisory Committee on Alcohol Misuse (SACAM) which has been carrying out a great deal of valuable work which is complementary to our own. Throughout our existence as a Committee we maintained a close and helpful liaison with SACAM, assisted in part by the fact, which we have already mentioned, that two of our members are also members of that Committee. We had a useful joint meeting with SACAM in January 2002, and in December 2002 our Chairman attended a further meeting with that Committee. Furthermore, in March 2002 we had a helpful whole-day meeting, organised by Alcohol Focus Scotland, when we met a wide range of people with an interest in licensing and the prevention of alcohol misuse.

Law and practice in other countries

1.21 In the course of our work we obtained a certain amount of information about the law and practice relative to liquor licensing law in other countries. A number of our consultees drew our attention to the fact that in some countries, such as those in southern Europe, there appear to be very liberal regimes but with few obvious signs of public drunkenness or disorder among local residents. We have given careful consideration to such evidence as we have about the law and practice in such countries. However, we are of the view that great care must be taken before one can safely proceed on the basis that a system which appears to operate successfully in one country can simply be replicated here with the same results. In our opinion cultural backgrounds and norms probably play a much larger part in determining social behaviour than any laws regulating the sale and consumption of alcohol, and we therefore doubt whether it can safely be assumed that what works in, for example, Italy or Spain will necessarily work here. ¹²

1.22 On the other hand, we have obtained some assistance from an examination of current, and proposed, law and practice in countries where, so far as we can determine, cultural and other considerations are not significantly different from those in Scotland. We have already made reference to the Republic of Ireland and to the Isle of Man. We have also had regard to current proposals for reform of licensing law in England and Wales. For some time those proposals were to be found only in a White Paper issued by the Home Office. ¹³ However, in November 2002 legislation which builds on the proposals in the White Paper was announced in The Queen's Speech, and since then we have been following the progress of the Licensing Bill with interest. In addition, we have become aware of certain practices which are followed in the Province of British Columbia in Canada. We have drawn some assistance from them, and they are mentioned again later in this report. ¹⁴

The response to consultation

1.23 In all we received 205 written responses to our consultation paper. A full list of those who responded in writing is given at Appendix A. We are most grateful to all those who took the trouble to write to us, and we have carefully considered all of the comments and suggestions which have been made to us. Following on receipt of those written responses we decided that it would be helpful to explore some of the major issues in greater depth with a representative number of our consultees, and accordingly we identified a considerable number who should be invited to meet us and to give oral evidence. We heard oral evidence over a total of 8 days, and in the course of that we met, and had discussions with, representatives of 23 organisations. A full list of those organisations which attended oral evidence sessions is given at Appendix B.

1.24 Some of us also participated in a number of informal meetings with young people. Given the very real concerns which exist regarding the drinking habits of young people, including schoolchildren, we were anxious that their experiences and views should be fully taken into account by us. Accordingly, we met some members of the Scottish Youth Parliament and, on other occasions, a variety of other young people some of whom were still at school and some of whom had left school quite recently. All of those whom we met were willing to speak to us with great frankness and candour, and we are most grateful for the assistance which they have given us.

General thanks

1.25 Before concluding this Chapter of our report we should like to place on record our gratitude to all who have helped us to clarify our thinking and to formulate the recommendations which follow later. Obviously, our thanks go to those who have responded in writing to our consultation paper, to those who have met us at oral evidence sessions, to those who have welcomed and assisted us in the course of our various visits, and, as we have just said, to the young people whom we have met informally. It is also worth recording, however, that we have in addition received a certain amount of informal correspondence with suggestions for possible reforms from private individuals; and, since the subject of liquor licensing and the law which governs it appears to be a matter of wide, general interest, many of us have also received a variety of views, even in the context of social conversation. Our thanks go to all who, by whatever means, have contributed to our work.

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