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The Nicholson Committee: Review of Liquor Licensing Law in Scotland
CHAPTER 3
LICENSING BOARDS
Should licensing boards be retained?
3.1 Licensing boards, as we know them today, were introduced by the 1976 Act in accordance with recommendations made by the Clayson committee. Essentially, licensing boards are made up of a statutorily prescribed proportion of local authority councillors with the actual number of members dependent on whether there is to be a single board for an entire council area or whether a council area has been divided into licensing divisions. 1 One of the first matters which we have had to address is whether licensing boards should continue in much their present form in future or whether they should be replaced by something quite different. Two distinct considerations arise here. The first relates to the question whether licensing boards satisfy the test of being an 'independent and impartial tribunal' as required by article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (hereafter referred to as ECHR). That Convention was incorporated into United Kingdom domestic law by the Human Rights Act 1998. The second consideration arises from representations made to us by a number of consultees to the effect that licensing boards should be replaced by a more representative tribunal containing members drawn from the licensed trade, local communities, and other sources. We deal with each of these in turn.
The ECHR
3.2 Most of the considerations which bear on the question whether licensing boards are, or are not, compatible with article 6 of the ECHR depend on a detailed analysis of cases decided by the European Court of Human Rights, the House of Lords, and the Court of Session in Scotland. We have carried out that analysis but, so as not to break the flow of this report with many pages of legal reasoning, we have set out our analysis of the relevant law in full in Appendix C to this report. Briefly, our conclusion is that prima facie licensing boards do not at present satisfy the requirements of article 6 of the ECHR-largely, but not entirely, on account of the fact that they may entertain an objection from the very local authority of which they themselves are members. However, as will be seen, we have come to the conclusion that it is possible to make certain changes which will at least substantially diminish the extent to which licensing boards are not compliant with the requirements of the Convention. Furthermore, we have also taken note of the fact that, in accordance with decisions taken by the European Court of Human Rights, any shortcomings in a tribunal of a quasi-judicial/quasi-administrative kind may be acceptable if there is an appropriate right of appeal to a court which does comply fully with the requirements of article 6. Taking all of that into account, we have come to the conclusion that the incorporation of the ECHR into our domestic law does not require us to depart from a system where licensing applications are determined in the first instance by a licensing board made up of local authority councillors.
A more representative tribunal?
3.3 As noted above, some of our consultees suggested that licensing boards should in future be replaced by a new kind of tribunal which would be composed of representatives from a range of bodies and organisations which have an interest in the operation of licensing law. That, it was suggested, could include representatives from the licensed trade, from local residents' groups, from the police, from public health, and so on. By contrast, licensing boards themselves argued strongly for the retention of the present position on the basis that members of licensing boards have a unique knowledge of the locality which they represent and, moreover, are ultimately answerable to their constituents at the ballot box. We are not persuaded that a representative body, drawn from a variety of backgrounds, would in fact be an effective and coherent decision-making tribunal. It would inevitably, we think, create a risk of competing sectional interests. Moreover, there is, we believe, a difficulty in that, once one tries to establish a representative body, it may be difficult to determine its membership with any certainty since some bodies who have initially been omitted may continue to press for representation. It is also perfectly possible that the actual representatives from constituent bodies might themselves be replaced by others from time to time, That, of course, would adversely prejudice the continuity, and consistency of decision-making, of any new tribunal. That is something which would be undesirable. We consider that on the whole the present system for providing the membership of licensing boards has worked fairly well: and we can see considerable force in the argument that councillors are well suited to being members of the boards on account of their local knowledge and their democratic accountability to the electorate. Having said that, we recognise the desirability of allowing all those with an interest in the licensing system to have some say in how it operates, and we make proposals as to how that might be achieved later in this chapter. 2 In the meantime, however, we recommend:
2. The determination at first instance of applications relative to liquor licences should remain in the hands of licensing boards composed of local authority councillors.
The size of licensing boards
3.4 Under existing law 3 a licensing board must consist of not less than one quarter of the total number of members of the council; and, where the area of a council is divided into licensing divisions, the board is to consist of such number of members as is not less than one quarter of the total number of members of the council returned for the wards within the area of the division. In no case can a licensing board consist of less than five members of the council. 4
3.5 Many of our consultees have said that very large boards as permitted by the 1976 Act are unwieldy and inefficient; and those consultees with experience of having appeared before boards as objectors have commented that it can be very intimidating to appear before a board which may consist of 15 members, or even more. This apparently arises because it is the practice for full boards (or at least as many members as can be mustered on the day) to sit at quarterly meetings. We ourselves have seen some of those large boards in session and, quite apart from any question of them being intimidating, what has struck us is that they appear singularly inefficient with a board member at one end of the line-up often being unable to hear what his or her colleague is saying at the other end of the line. Some licensing boards themselves have acknowledged to us that there would probably be advantage if the total size of licensing boards were to be reduced, and if there were to be a reduced number sitting for the disposal of applications. In addition, many boards have said to us that members often have difficulty in finding time to attend board meetings, and that a reduction in the number required might ease that problem.
3.6 We have come to the conclusion that there is a sound case for reducing the size of licensing boards, and for reducing the number who should sit in public for the determination of applications and other matters. Apart from meeting the problems which we have noted above such a course would also, we believe, make it easier and more practicable for those board members who are to participate in public hearings to be given appropriate training. We deal with that topic in the following paragraphs of this chapter. The precise number of members who should constitute a full board, and the number who should sit at any one time, may be open to some debate. However, it is our view that a full board in a council area which has not been divided into licensing divisions should comprise a maximum of 15 members, and that the full board for a licensing division should comprise a maximum of 10 members. In relation to public hearings to consider and determine applications and other matters we consider that five members should sit for that purpose. Those five members would effectively be a sub-committee of the full board, and they would be charged with the duty of conducting hearings on behalf of the full board. We accordingly recommend:
3. (a) In a council area which has not been divided into licensing divisions a licensing board should comprise a maximum of 15 members; and in a licensing division area a licensing board should comprise a maximum of 10 members.
(b) When a board of either kind is sitting in public to consider and determine applications and other matters five members should sit for that purpose.
Training for members of licensing boards
3.7 We are firmly of the view that all those who play an active part in the licensing system should be required to have appropriate and adequate training. That will include licensees and those who work in licensed premises, 5 but in our opinion it should also include members of licensing boards, and in particular those members who are to sit regularly at hearings when applications and other matters will be considered and determined. Almost without exception our consultees have proposed that appropriate training should be mandatory, and most of the licensing boards who have written to us or who have spoken to us have agreed that this should apply equally to board members.
3.8 So far as members of licensing boards are concerned we consider that appropriate training should include two core elements. They are (1) instruction in licensing law, and (2) instruction in best practice for the management and operation of licensed premises. The latter element should also include an awareness of public order and public health issues. It is our view that licensing board members will not be able to carry out their duties competently, and in a manner which will attract public confidence, without a sufficient grounding in those matters. We suggest that it will be desirable that training in the foregoing subjects should be provided to a nationally approved standard so that essentially the same training package is offered to licensing board members regardless of where they are located. So far as instruction in licensing law is concerned, it may be that a national training package could be devised by clerks to licensing boards under the aegis of their national organisation, SOLAR. They might well wish to seek advice and assistance from respected practitioners in the field of licensing law. So far as instruction in best practice for the management and operation of licensed premises is concerned, there are already in existence some admirable training programmes for licensees and bar servers. We consider that those who provide such programmes should be able to devise suitable programmes for board members. Since the providers of training programmes might well change with the passage of time, and since it is in our view necessary that any training programmes should be of an approved kind, we do not think that it would be appropriate that we, or indeed any future primary legislation, should expressly specify any particular providers of training. Instead, we suggest that that should be done from time to time by appropriate regulations. We consider that the National Licensing Forum which we recommend later 6 might well be able to offer suggestions as to the content of such regulations.
3.9 There is one further element which should, in our view, be included in the training provided to members of licensing boards. That element is judicial conduct and behaviour. There can be no doubt, of course, that most board members presently conduct their business at quarterly and adjourned meetings in a manner which cannot be open to any criticism. Some of our consultees, however, have told us that they have experience of meetings which have not been conducted in a manner that would be regarded as appropriate and acceptable in a court of law. Their complaints have included: unnecessary interruptions when an applicant or objector is addressing the board; an appearance of bias or of minds having been made up even before submissions have been made; an inability to distinguish between facts and mere hearsay; and an appearance of indifference to what is being said by, or on behalf of, an applicant or an objector. We have no reason to doubt the accuracy of what we have been told. At the same time, however, we tend to think that any perceived shortcomings in respect of judicial behaviour are more likely to stem from ignorance of what is required than from any deliberate attempt to behave in an inappropriate fashion. But that simply strengthens our view that some basic instruction in what constitutes an acceptable judicial approach is desirable. Moreover, the need for such an approach to the business of a licensing board is now made even more desirable by the requirements of article 6 of the ECHR to which we made reference earlier in this chapter. At present, however, there is a difficulty with this in that there is no obvious provider of the kind of training which we have just been describing since the remit of the Judicial Studies Committee in Scotland does not at present extend to tribunals of any kind. In our view it will be necessary to find a way of making such training available.
3.10 For all of the foregoing reasons we recommend:
4. Appropriate training, of a kind prescribed and approved in regulations, should be made available to all members of licensing boards. That training should include (a) instruction in licensing law; (b) instruction in best practice for the management and operation of licensed premises, including an awareness of public order and public health issues; and (c) instruction in good and acceptable judicial behaviour.
3.11 We have considered whether it should be a statutory prerequisite to sitting at a hearing for the consideration and determination of applications and other matters that the members concerned should already have received the prescribed training of the kind which we have just recommended. Some licensing boards, while welcoming the concept of training for board members, have suggested that such a requirement could present difficulties in the period immediately following council elections when the membership of a board might change, and those coming onto the board would not have had an opportunity to undergo the appropriate training. We think that this difficulty would diminish significantly if effect were to be given to the recommendation which we make later 7 for a departure from the present system of fixed quarterly meetings; and indeed it may well be the case that in practice no difficulties will actually be encountered. However, we consider that it is probably desirable that there should be some provision to cater for the possibility that there may be occasions when, for good and acceptable reasons, not all five members of a board who are to sit to hear applications and other matters have received the appropriate training. We therefore recommend:
5. Some provision should be made to cater for the possibility that, on account of changes in board membership following upon Council elections, it may not have been practicable for all of those who are to sit for the disposal of applications and other matters to have received appropriate training prior to the date of that sitting.
Disqualification of board members
3.12 The 1976 Act 8 provides that a person who is, putting it shortly, in business in the licensed trade is not to be a member of a licensing board. It goes on to prescribe various circumstances in which a member of a board is disqualified from participating in proceedings where he has an interest. As well as being obviously necessary, these provisions also strengthen the objective impartiality of the board as required by article 6 of the ECHR, and we consider that they should be replicated in any new legislation which follows from this report. However, it occurs to us that this may also impinge on the code of conduct for councillors which is now prescribed by section 1 of the Ethical Standards in Public Life etc. (Scotland) Act 2000. The relationship, if any, between what is presently in section 2 of the 1976 Act and what is in section 1 of the 2000 Act falls outwith our terms of reference, and accordingly we have not considered this matter in detail. We think it right, however, to let it be known that the provisions of the 2000 Act have not escaped our notice. In the circumstances, therefore, we restrict ourselves to recommending:
6. Provisions of the kind presently found in section 2 of the 1976 Act (disqualification of interested persons) should be replicated in any legislation which follows on from this report.
Canvassing
3.13 Although it is dealt with at a later point in the 1976 Act, 9 we consider that it is logical to deal with the matter of canvassing in conjunction with the subject of disqualification. Section 19 of the 1976 Act makes it an offence for any applicant to attempt to influence a member of a licensing board to support his application. Subject to what we have previously said about the possible impact of the Ethical Standards in Public Life etc. (Scotland) Act 2000, we consider that this offence should remain in any future legislation. However, we find it somewhat strange that the offence applies only to applicants and not to objectors. This is an anomaly which has been drawn to our attention by a number of our consultees. We can see no obvious reason why it should not also be an offence for an objector to attempt improperly to influence the decision of a board member. We therefore recommend:
7. It should continue to be an offence for an applicant to attempt to influence a member of a licensing board to support his application (1976 Act, s. 19). However, it should also be an offence for an objector to attempt to influence a member of a licensing board to support his objection.
Chairman of licensing board
3.14 Under existing law 10 the chairman of a licensing board requires to be elected annually notwithstanding that the members of the board remain in office for the full period between council elections. 11 We understand that it is commonplace for the same person to remain as chairman throughout that latter period, and it has been represented to us that it is an unnecessary complexity to have an annual election. Obviously, of course an interim election will be required should the chairman die or become unable to perform the duties of chairman for whatever reason, or should the chairman be voted out of office by his or her colleagues. In general, however, we see no need for an annual election, and accordingly we recommend:
8. Once elected, the chairman of a licensing board should continue to hold that office until a new board is elected following upon a council election.
Meetings of licensing boards
3.15 The 1976 Act provides 12 that a licensing board must meet quarterly in January, March, June and October each year. Provision is also made for adjourned meetings, but they must take place within one month of the first day of the quarterly meeting. Several consultees have suggested to us that fixed quarterly meetings are too inflexible, and it has also been said that the provision regarding adjourned meetings can be over-restrictive and not conducive to the efficient handling of board business. We can see force in these observations, and we tend to think that it would be likely to improve the efficient disposal of business if boards were free to arrange meetings as and when required. In any event, the general licensing system which we recommend later in this report is likely to reduce substantially the need for very large meetings dealing with large numbers of applications on a regular basis while at the same time creating a need for boards to be able to convene at short notice in order to deal with urgent matters. A departure from a system of fixed, programmed, meetings will be appropriate under that recommended licensing system. We also suspect that a departure from the system whereby all boards across the country meet in the same months each year would be likely to be of assistance to those practitioners who have a large licensing practice, and who currently find it difficult to represent a large number of clients in different areas at virtually, or even actually, the same time. By the same token we consider that it should be open to boards to adjourn business for as long as circumstances require. Obviously, any unnecessary delays in the processing of applications should be avoided, and we consider that regulations should make provision for time scales within which business of various classes must be dealt with. Subject to compliance with those regulations boards should be able to schedule meetings on whatever dates appear to be most appropriate. The regulations will require to make provision for the amount of notice that must be given for board meetings of different kinds. We should also add that we envisage that, under our general proposals, it will be appropriate that certain classes of licensing board business should be capable of being delegated to the clerk of the board, and we therefore consider that there should be provision which makes that possible. We accordingly recommend:
9. (a) Licensing boards should no longer be required to hold meetings in January, March, June and October each year. Instead they should hold meetings, and adjourned meetings, as and when they are required.
(b) Regulations should prescribe time scales within which business of various classes must be dealt with; and those regulations should also prescribe the amount of notice which must be given for board meetings of different kinds.
(c) Provision should be made to enable certain classes of business to be delegated to the clerk of a licensing board.
Local licensing forums
3.16 Earlier in this chapter 13 we considered, but rejected, the suggestion made to us by some consultees that licensing boards should be replaced by a new kind of licensing tribunal consisting of members who would be representative of all the various bodies and other groups with an interest in licensing or the operation of licensed premises. However, we also recognised that such bodies and groups have a perfectly valid interest in the operation of the licensing system, and that that should be recognised in an appropriate way.
3.17 That is already done in an informal manner in some licensing board areas by the creation of local licensing forums. These are bodies which have members drawn from a variety of interested backgrounds such as the licensed trade, public health, the police, local residents' groups, and so on. As we understand it, those bodies meet from time to time on their own to discuss matters of concern in the licensing area in question, and also have meetings with members of the local licensing board when any concerns can be brought to the attention of the board. We understand that those forums are seen as operating successfully and effectively, and that they are perceived as a satisfactory medium for bringing to the attention of licensing boards facts and concerns which might otherwise pass unnoticed.
3.18 As will be seen later, 14 we consider that in future all licensing boards should be under a statutory duty to prepare and to promulgate statements of the general policy which they intend to pursue in respect of a range of licensing matters. In that situation we consider that local licensing forums of the kind we have just been describing could have a useful, and indeed democratic, role to play in ensuring that any board policies are well-informed and are based on an appreciation of the concerns of the wider community. We therefore consider that there would be advantage if local licensing forums of the kind that already exist in some areas were to be extended throughout the country. It is our view that such forums should be established by legislation and that, in terms of the legislation, licensing boards should be under a duty to meet their local forum on a prescribed number of occasions, probably at least annually or more often if required. We anticipate that local licensing forums would probably have regular contact with local alcohol action teams (bodies which are actively supported in SACAM's Action Plan); and indeed there may well be some common membership. We also consider that licensing boards should be under a statutory duty to have regard to any views advanced by the local licensing forum when determining their own policy in relation to licensing matters, and should equally be under a duty to offer a public statement of reasons in the event that they decide not to accept any views or proposals expressed by the licensing forum. It would not, however, be appropriate, in our view, that local licensing forums should be entitled to offer views in relation to particular applications which are currently being considered by a board. The membership of local licensing forums may, we think, to some extent depend on the size of the council area in question and the nature of local organisations. However, we suggest that, so far as practicable, the membership of a local forum should include representatives from: the police; the licensed trade; the Law Society of Scotland; the health service; education; social work; and residents' groups or associations. Depending on the nature of a particular locality it may also be appropriate to include representatives from the churches, from ethnic minority groups, and from youth groups. We consider that local forums of the kind which we are proposing should have health, public order and amenity issues at the forefront of their agendas, and to that end we suggest that they should be provided on a regular basis with relevant local data and statistics from the police and from public health departments. On this matter, accordingly, we recommend:
10. In every licensing board area there should be a statutory licensing forum consisting of members drawn from a variety of backgrounds with an interest in the licensing system. The function of such forums should be to keep the licensing system in the area in question under regular review, to consider the implications of relevant local police and health data and statistics, to meet the local licensing board at least once each year, and to advise the licensing board in relation to any matters of concern other than individual current licensing applications. A licensing board should be under a duty, when formulating its policy in relation to any matter bearing on its functions, to have regard to any advice given, or views made known, by the local licensing forum; and, where a board decides not to accept any such advice or views, it should be under a duty to give its reasons for doing so.
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