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The Nicholson Committee: Review of Liquor Licensing Law in Scotland
CHAPTER 9
REGISTERED CLUBS
9.1 Registered clubs, which are presently dealt with under Part VII of the 1976 Act, fall largely outwith the current general licensing system in that they achieve the entitlement to sell alcohol by virtue of registration granted by a sheriff. That system was first introduced by the Licensing (Scotland) Act 1903. Apart from the fact that the system of registration denies to licensing boards any supervision of clubs, the system also contains some other special features which distinguish it from what might be termed mainstream licensing law and practice. In terms of section 114 of the 1976 Act the police have no general right of entry to club premises and can only enter such premises if they have obtained a warrant allowing them to do so from a justice of the peace or a sheriff. By contrast, section 85 of the Act allows a constable at any time to enter and inspect any premises in respect of which a licence (other than an off-sale licence) is in force. A second point of distinction is that, whereas most decisions by a licensing board are subject to appeal, a decision by a sheriff in relation to registration is final and not subject to appeal. 1 It is also to be noted that a sheriff is not disqualified from considering an application for registration by reason of the fact that he is himself a member of the club in question. 2 We have little doubt that this provision is at odds with the "independent and impartial tribunal" requirement in article 6 of the European Convention on Human Rights. It is also, of course, to be contrasted with the provisions of section 2 of the 1976 Act which, in relation to the membership of a licensing board, disqualifies anyone with an interest in the premises to which a particular application relates. Finally, there is another anomaly of which note should be taken. That is that, although registered clubs are largely outwith the general licensing system, they nonetheless fall within that system in relation to applications for extensions of permitted hours. 3 It is not clear to us why this should be so.
9.2 Unsurprisingly perhaps, those of our consultees who are representative of registered clubs submitted that the present system is perfectly satisfactory and does not require any change. On the other hand, a great many of our other consultees argued that the present system relative to clubs is anomalous and indefensible, and they strongly urged that clubs should in future be brought within the normal licensing system. The police, for example, indicated to us that they would see advantage in being able to enter club premises in the same way as they can enter other licensed premises, and without having first to apply for a warrant. More generally, other consultees simply observed that it is unacceptable and anomalous that certain premises, which are to all intents and purposes licensed premises, should be dealt with by a regime which is unique to them.
9.3 The possibility that clubs should be brought within the general licensing system is something which was considered by the Clayson committee. They concluded that the police should have the same right of entry to club premises as they have in respect of licensed premises, 4 but they also recommended that the present arrangements for club registration by the sheriff should be maintained. 5 In coming to the latter recommendation the Clayson committee had regard to what they describe as the underlying principle relating to the supply of liquor in registered clubs, namely that "all the property of the club, including the stock of liquor, belongs to the members collectively and that when a member obtains liquor what takes place is a supply rather than a sale". 6 Partly by reference to that principle the Clayson committee came to the conclusion that registered clubs are different in kind from licensed premises and that they should have a right to registration if they can satisfy a court of law (the sheriff) that certain statutory requirements are met.
9.4 While the 'principle' founded on by the Clayson committee may be sound in theory, we do not consider that it accurately or realistically reflects the actual situation whereby, when an alcoholic drink is obtained in a club, money changes hands in exactly the same way as it does in licensed premises. Moreover, while we have no doubt that the great majority of registered clubs are operated in a thoroughly acceptable manner and cause no concern in relation to public health or public order issues, there appear to be a few of which that cannot be said. We therefore consider that some measure of control and supervision should be available in respect of clubs. Given that we are recommending an enhanced supervisory role for licensing boards, and given that it would not be practicable to set up a separate supervisory system solely for clubs, it appears to us that there is an overwhelming case for bringing clubs within the general licensing system which we are proposing, and thus within the supervisory system to be operated by licensing boards. It follows that Liquor Licensing Standards Officers should have a right of entry into club premises just as they will, under our recommendations, in respect of other licensed premises. We also consider that there should be a right of entry by the police of the same kind as presently exists in relation to licensed premises.
9.5 We note that assimilation of clubs into the general licensing system is something which is provided for in the current Licensing Bill for England and Wales. Essentially, what that Bill does is to set out a series of provisions which are effectively the same as those for premises licences generally, but reflecting specialities which arise only in the case of clubs. Thus, provision is made for what is to be known as a 'club premises certificate'; provision is made to identify what will be recognised as a club for the purposes of the legislation; reference is made to a 'club operating schedule'; provision is made for the rules of the club to be produced along with an application; and, in several places, there is special provision regarding the role and the duties of the club secretary. Apart from distinguishing features such as the foregoing, however, the provisions for clubs are by and large the same as for other premises seeking, or holding, a premises licence. Thus, for example, similar provision is made regarding objections or representations in relation to an application; provision is made for variation; provision is made for review, and the possible imposition of sanctions; and so on. In our view the general approach adopted in the Licensing Bill is one which could readily be followed in legislation for Scotland. In the circumstances we do not consider that it is necessary that we should spell out in detail the regime which should apply to clubs in Scotland since that would simply involve considerable repetition of what appears earlier in this report. Accordingly, we confine ourselves to recommending:
46. (a) Registered clubs should be brought within the general licensing system recommended in this report.
(b) The licensing regime for clubs should be the same as for other premises which will have a premises licence, but subject to any different provisions which are necessary in order to recognise the special character of clubs.
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