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The Nicholson Committee: Review of Liquor Licensing Law in Scotland

CHAPTER 2
SOME BACKGROUND FACTS AND OUR GENERAL APPROACH

2.1 We have already noted in chapter 1 some of the background facts which have to be taken into account when determining how, and to what extent, existing licensing law and practice might be reformed in order to take account of contemporary circumstances. Those facts include (a) the emergence of the "super-pub" which generates a much greater density of drinkers notwithstanding the fact that the number of public house licences has remained fairly constant for many years; (b) a large increase in the last 30 years or so in the number of off-sale licences; (c) the appearance since 1976 of a large number of entertainment licences; and (d) the widespread grant of regular extensions to permitted hours which has effectively erased the concept of permitted hours as understood and recommended by the Clayson committee, and which has resulted in large numbers of licensed premises, particularly in town and city centres, being open until very late at night. There are, however, other background facts which have been brought to our notice which, in our view, require the most urgent consideration. They mainly relate to public health, to under-age drinking, and to public order.

Health issues

2.2 It is well known that excessive consumption of alcohol can have damaging consequences. However, we think that there may be advantage if we set out a few of those consequences in some detail because we have the impression that they are often not fully understood or are overlooked. They have been put very clearly before us both by our own members from the medical profession and by others.

2.3 Alcohol impacts on all body systems. It damages cells by attacking the membrane coat, the energy mechanisms and the enzyme systems. Excessive use, whether on a single occasion or prolonged excessive use, has a negative health impact, mainly on the brain and on the gastro-intestinal system, particularly the liver. Research suggests that the brains of younger people are more sensitive to the effects of alcohol. ¹

2.4 A spectrum of consequences results from the acute effects of alcohol -

(a) loss of inhibitions - placing the drinker at risk by removing the normal controls of the higher brain centre;
(b) reduced efficiency in the performance of critical tasks such as driving motor vehicles or operating machinery;
(c) lack of judgment - resulting, for example, in unprotected casual sexual activity or the inability to judge the speed of approaching traffic;
(d) overt intoxication, often leading to noisy, offensive or violent behaviour in public places and in the home;
(e) loss of consciousness leading, in adverse environmental circumstances, to death;
(f) abdominal pain and vomiting due to gastric irritation or, less commonly, acute or chronic pancreatitis; and
(g) acute alcohol poisoning leading to death.

2.5 Chronic excessive use of alcohol impacts on all body tissues and organs but especially on the brain and on the liver. The effect on the brain may cause a dependency syndrome or organic brain impairment. These may result in -

(a) deterioration in social functioning causing, for example, tension within personal relationships in the family or at work; inefficiency at, or absenteeism from, work; aggressive and unreasonable behaviour; anxiety and depression, which may lead to self-harming or suicidal behaviour;

(b) 'secondary poverty' resulting from excessive expenditure on alcohol, and this may aggravate deterioration by contributing to neglect, poor diet, family distress and homelessness;

(c) physical dependency showing itself in the form of withdrawal symptoms such as delirium tremens and epileptic seizures if alcohol is withheld for some hours; and

(d) severe and irreversible brain failure causing Wernicke-Korsakoff syndrome and other forms of dementia.

The impact of excessive alcohol use on the liver commonly leads to enlargement due to fatty deposition. More severe injury causes hepatitis (with jaundice), cirrhosis, liver failure and death. Liver cancer (and several other cancers) are linked to prolonged alcohol excess.

Health problems in Scotland

2.6 While the foregoing gives a brief indication of the general consequences of over-indulgence in alcohol, it of course says nothing about the extent of that in Scotland. However, a considerable amount of information is in fact available regarding the situation in Scotland. It does not make happy reading-

• Deaths in Scotland reported as due directly to excessive alcohol use more than doubled between 1990 and 2000, from 13.4 to 31.2 per 100,000 population, with a sevenfold higher rate in deprived neighbourhoods compared with affluent communities. ²
• Acute hospital admissions associated with the use of alcohol increased more than fivefold between 1980 and 2000 (120 per 100,000 population in 1980: 649.2 per 100,000 population in 2000) with men being more than twice as likely as women to require such treatment. ³
• There has been a rapid increase in the rate of hospital admission as a result of acute intoxication among young men and women (aged less than 25 years). Indeed, in 2000 the highest rate of emergency admission occurred among the age group 15-19 years.
• The Scottish Health Survey ⁴ has shown a steady increase in the reported consumption of alcohol between 1995 and 1998 among both men and women aged 16-24 years. In 1998 some 43% of men and 24% of women in this age group reported exceeding the recommended limits of alcohol units.
• The Scottish Health Survey has also shown that 10% of Scottish men aged 16-74 years and 4% of Scottish women can be defined from their drinking patterns as 'problem drinkers' - a total of more than 225,000 Scottish citizens.

Representatives from the medical profession have suggested to us that the increase in the ill-health consequences of drinking is linked to an overall increase in alcohol consumption associated in turn with an increase in its affordability and with the promotion among younger people of a wide range of spirit based mixer drinks.

Binge drinking and 'happy hours'

2.7 A related problem which has been brought to our attention concerns so-called binge drinking. That is the name given to the practice of drinking very substantial quantities of alcohol within a short period of time. It appears that this is particularly common among people under the age of about 30 with young women now often drinking as much as young men, and it has been represented to us by many of our consultees that it is a practice which is actively encouraged by certain bars and night clubs which engage in deep price discounting, often referred to colloquially as 'happy hours'. The dangers associated with excessive drinking within a short period are plain, and one of our concerns has been to see if there are ways in which changes to licensing law and practice can bring about some improvement. We consider this in detail in chapter 12 below.

Under-age drinking

2.8 The term 'under-age drinking' is widely used in relation to the consumption of alcoholic drinks by young people. However, we think that it is appropriate at this early stage in our report to make it clear that it is not unlawful for people above the age of 5 years to consume alcohol. What is in general prohibited by the law is the sale or supply in licensed premises of alcohol to, or the purchase of alcohol by, those who are under the age of 18. ⁵ Against that background it is generally understood (and we have no quarrel with this) that it is acceptable for young people to be introduced to alcohol, preferably by their parents, in a responsible and gradual way - a modest glass of wine with an evening meal, a small beer at a family barbecue party, and so on.

2.9 What is of particular concern, however, is the growing amount of evidence that children, sometimes as young as 12 or 13, are drinking regularly in an unsupervised fashion, and often to excess. On our behalf the Scottish Executive Central Research Unit commissioned research which was undertaken within the context of the Edinburgh Study of Youth Transitions and Crime. That is a large-scale, longitudinal study of approximately 4,300 young people currently aged around 15 and attending schools within Edinburgh. Although the study is confined to young people in Edinburgh, we have no reason to suppose that its findings are not equally valid throughout Scotland as a whole. The major findings of the study are as follows-

• Drinking alcohol is a common practice on the part of an overwhelming majority of Edinburgh teenagers under 18. Just over 51% admitted to drinking alcohol when they were around 13 years old, and this figure had risen to almost 84% by the time they were 15.
• Almost half (48.7%) drink at least monthly or more often, with half of these drinking on a weekly basis.
• Just under half (49.2%) of the respondents had purchased alcohol illegally from at least one source in the previous year.
• The most common source of alcohol for these youngsters was a small licensed grocer or corner shop, with 33.2% having purchased alcohol from one of these outlets.
• Those who had purchased alcohol were more likely to drink more frequently. 41.8% of alcohol buyers drank on a weekly basis compared to 7.7% of non-buyers. Furthermore, a higher number of sources where alcohol had been purchased also meant a higher frequency of drinking.
• Many of those surveyed in the study had succumbed to the adverse effects of drinking alcohol. 48.5% were unable to remember some of the things they had done on at least one occasion, and 45% reported being drunk at least once in the last year.
• The study has also found that the purchasing of alcohol, as distinct from frequency of drinking, is strongly related to delinquent behaviour.

We should also add to the foregoing that a separate study of young people in 30 European countries ⁶ has shown that Scotland, along with the rest of the United Kingdom, Ireland and Denmark, has the highest rates of regular alcohol consumption and drunkenness at the age of 15/16 years. That same study also shows that Scottish girls, at 12%, are unique amongst this age group in their rate of spirit consumption and in having the smallest difference between their drinking patterns and that of boys of a similar age.

2.10 At a late stage in our deliberations we received further confirmation of the foregoing in the form of an Interim Report on adolescent substance use. ⁷ That report reveals, among other things, that in the period from 1990 to 2002 the percentage of boys who had had a drink in the past week had increased from 30 to 46 per cent, while the percentage of girls who had had a drink in the past week had increased from 25 to 47 per cent. The report also indicates that, of those boys and girls who drink, the percentage of boys aged 15 who had been drunk four or more times had increased during the period from 1990 to 2002 from 24.8 to 37 per cent, while in the case of girls aged 15 the increase during that period was from 17.3 to 37 per cent. The foregoing figures clearly show that drinking by young girls is now at the same level as drinking by young boys- something which was far from being the case as recently as 12 years ago.

2.11 The above findings are amply corroborated by what we were told by the various young people whom we met in the course of our work. They confirmed that in their experience regular drinking from as young as 12 years of age is commonplace. They also told us that it was far from uncommon for some of their school colleagues, often as young as 14 or 15, to go out of an evening with the declared intention of becoming drunk. Our young consultees also confirmed that some, though by no means all, small licensed grocers or corner shops tend to be favoured places for purchasing alcohol "without any questions being asked".
We should also add in this context that one of our consultees, who recently retired as Principal of a large mixed-sex school in Edinburgh, expressed the view that in his experience alcohol is a much greater problem for schoolchildren than illicit drugs.

Public order issues

2.12 It seems to be clear that there is often a strong correlation between alcohol and aggression, with alcohol affecting the ability to take a range of social or situational signals appropriately into account. Thus, for example, a Home Office report ⁸ has noted that "it has been estimated that 40% of violent crime, 78% of assaults and 88% of criminal damage cases are committed while the offender is under the influence of alcohol". A further Home Office document ⁹ notes the following-

• Alcohol is a factor in 40% of recorded domestic violence incidents.
• Victims of violence judged offenders to be under the influence of alcohol in 40% of incidents and in 53% of stranger violence.
• 19% of all violent incidents occur in or around pubs or clubs, rising to a third of violent incidents where the offender is a stranger.
• Drinking in bars is associated with greater violence or aggressive behaviour than in other drinking settings such as private clubs or restaurants. ¹⁰
• Alcohol consumption increases the vulnerability of an individual to assault.
• Young males aged 16-24 are much more likely to be the perpetrators of alcohol-related violence than any other group.

2.13 We have encountered difficulty in obtaining reliable Scottish data on matters such as the foregoing, and we venture to hope that in future such data may be compiled here in a systematic way. For the present, however, although the above statistics are derived from Home Office publications they are very largely confirmed by informal evidence which we have received from ACPO(S) and other police sources. We have therefore proceeded on the basis that, give or take a percentage point or two, the information relating to England and Wales is likely to be applicable in Scotland as well. We should add, however, that public order concerns are not restricted to behaviour which is of a serious criminal kind. Many of our consultees, and in particular those representing residents' associations, have told us of the considerable disturbance to which they are regularly subjected late at night when drunk and noisy patrons make their way out of licensed premises. As well as excessive noise this has other undesirable consequences such as the dropping of litter, urinating and/or vomiting in doorways, and so on. It is also to be noted that this kind of disturbance is not limited to the immediate neighbourhood of licensed premises. It can also arise some distance away when patrons are making their way in search of taxis or other transport, or are looking for a fast food outlet, or are simply walking (or in some instances staggering) home. We have been advised that in many parts of Scotland there is an absence of a coherent strategy for tackling the infrastructure which should be in place in order to minimise such problems - by which we mean a whole range of facilities including public transport, taxis, public conveniences, fast food outlets, and so on. Such matters are not within our immediate remit. However, we mention them as topics which might well come under the consideration of the local licensing forums and the National Licensing Forum which we recommend later in this report.

Our general approach

2.14 All of the matters which we have described thus far in this chapter are plainly a cause for serious concern, and must be taken seriously. Upon one view they could quite rationally lead us to recommend very draconian measures in order to control the availability and the consumption of alcohol. We could, for example, recommend a return to very limited permitted hours with no allowance for any extensions. It would also be possible, as was done in many parts of the United States in the 1980s, to recommend raising the minimum age for the purchase of alcohol from 18 to 21. Additionally, it might be justifiable to propose a severe restriction on the number of licences which can be granted and held in certain areas.

2.15 We have come to the conclusion, however, that measures of the kind which we have just outlined would disadvantage the majority of the population who consume alcohol within sensible limits and would therefore meet with considerable public resistance. We believe that such measures would be politically unacceptable, would be commercially disastrous, and might well simply create more problems than they would cure. It is also, we think, of some significance that none of our consultees has proposed solutions of the kind mentioned in the previous paragraph.

2.16 In coming to the conclusion that we should not recommend the introduction of a severely restricted licensing regime we have taken a number of considerations into account. The first is that, as was observed by the Clayson committee, ¹¹ "the great majority of the people in Scotland who drink do so in moderation and without harmful medical or social consequences". Nothwithstanding the increases in alcohol abuse which we have noted earlier, we believe that observation to be still substantially true today; ¹² and it is our view that the sensible and responsible majority of Scottish people should be able to enjoy the purchase and consumption of alcohol with a minimum of restriction or interference. The same is true in respect of the many visitors from other countries who come to Scotland either on business or on holiday. The enlargement of the Scottish business economy and the encouragement of the tourist industry are, we believe, important considerations, and we tend to think that visitors from overseas are likely to have a more favourable view of this country if it appears to be free of apparently petty restrictions and if at the same time the consumption of alcohol takes place in a responsible and safe environment.

2.17 A second consideration which has influenced our thinking is that the pattern of social life in Scotland is now significantly different from what it was 30 years ago. Many people, including the young, now appear to have more money than their predecessors; and many of them seem keen to spend their money on social pursuits such as drinking in public houses, dining in restaurants, and 'clubbing'. Moreover, they do so not just at weekends but on other days of the week as well. Shopping habits have also changed substantially in the last 30 years. With the ever-widening spread of car ownership weekend shopping trips by car to supermarkets and hypermarkets, often on the outskirts of towns and cities, are now commonplace; and very often some bottles of wine or cans of beer will be on the shopping list along with the bread, eggs and cornflakes. Moreover, it is not uncommon for some supermarkets to remain open for 24 hours a day. It is to be assumed that those who operate supermarkets in that way are satisfied that such a business will be commercially viable but, as has been pointed out to us, the off-sale parts of such premises are restricted to opening during what are currently described as permitted trading hours ¹³ with the consequence that some customers who choose to shop on Sunday mornings or very late at night (possibly because of their own working hours) can purchase normal groceries at all hours but cannot purchase any alcohol at the same time.

2.18 A further consideration which must, we believe, be taken into account relates to the investment which has been made by many operators of licensed premises in the belief that the present licensing arrangements, with more or less readily available extended hours, will continue into the foreseeable future. In many instances substantial amounts of money, often running into millions of pounds, have been invested in the development of licensed premises of all kinds. These venues have also created a not insignificant amount of employment. In our view their continuing viability is something to which we must have some regard.

2.19 More generally, the alcohol and hospitality industry in Scotland, in terms of production, sale and distribution, is a major factor in the Scottish economy. It employs some 200,000 people, and it contributes some 2.4 billion in exports. In 1999/2000 the total tax revenue from excise duty and VAT on alcoholic drink in the UK was 11.5 billion, which is 4.4% of Government tax revenue. While those facts do not of themselves necessitate the maintenance, and indeed further development, of a liberal licensing regime, they are nonetheless facts which cannot be ignored, and we consider that account must be taken of the damaging effects which would ensue in terms of employment and revenue were there to be a return to strict and repressive licensing laws.

2.20 Taking into account all of the various considerations which have been mentioned thus far in this chapter we consider that our task has been to carry out a balancing exercise which takes full account of the many serious causes for concern which were detailed at the beginning of the chapter but which also recognises the other considerations which point to the desirability of retaining, so far as possible, the relatively relaxed licensing regime which now exists in Scotland. We have therefore rejected any idea of seeking to reimpose a highly restrictive licensing system such as existed prior to the reforms introduced by the 1976 Act. Instead, our starting point has been the system as we know it today. However, our endeavour has been not only to simplify that system and to make it, in the modern parlance, more 'user-friendly' but at the same time to improve the system so that existing controls, such as the prohibition of the sale of alcohol to those under the age of 18, can be made more effective. As will be seen later, we have also given consideration to the introduction of new controls of various kinds. We must, however, state quite clearly at this stage 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 which we have mentioned earlier in this chapter. Many of the problems associated with the consumption of alcohol are deeply engrained in the Scottish psyche, and reform of the law will not by itself change that. However, some steps are now being taken, largely as a result of the initiatives proposed by SACAM in its Action Plan, to tackle those problems from the perspectives of protection and control, culture change, public health and education. We welcome those initiatives, and we see our task as being to propose changes to the law which may assist the new initiatives and which will not provide any sort of hindrance to them.

Principles for reform

2.21 Some years ago, when delivering judgment in a licensing appeal in 1988, ¹⁴ Lord Clyde said: "It does seem to me to be at least difficult to find a clear pattern or consistent philosophy in the legislation embodied in the Licensing Act [of 1976]". We tend to think that, in saying that, Lord Clyde was possibly a little less than fair either to those who drafted the 1976 Act or to the Clayson committee on whose recommendations the legislation was largely founded. However, lest we become subject to similar strictures at some time in the future, we consider it appropriate to set out the guiding principles and objectives which have informed the recommendations which follow in subsequent chapters in this report. We venture to suggest that those principles and objectives might also form an appropriate background in future for the work of licensing boards and all others who have to participate in the new system which we propose.

2.22 Those guiding principles are as follows-

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.

2.23 In the chapters which follow we shall expand as appropriate on the above guiding principles. For the moment, however, we wish to propose that certain of those principles should be specifically enshrined in statute as principles which should at all times guide licensing boards and others in the exercise of their functions. Such an approach appears in the Bill which has recently been introduced in the Westminster Parliament, and which is designed to bring about significant changes to licensing law in England and Wales. That Bill sets out certain "licensing objectives" which are in future to guide decisions by licensing authorities in those countries, and those objectives are (a) the prevention of crime and disorder; (b) public safety; (c) the prevention of public nuisance; and (d) the protection of children from harm. We are happy to accept the foregoing as objectives or principles which should be replicated in any legislation for Scotland, though we note that they do not make any mention of the promotion of public health. In our view that is an objective which is just as important as any of the others, and we consider that it should feature in any Scottish legislation. We therefore recommend:

1. Any legislation following on this report should set out certain guiding principles or objectives which are to be the underlying basis for any decisions made by licensing boards. Those principles or objectives should be:
(a) the prevention of crime or disorder; (b) the promotion of public safety; (c) the prevention of public nuisance; (d) the promotion of public health; and (e) the protection of children from harm.

For convenience we refer to the foregoing principles throughout this report as the "licensing principles".

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