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The Nicholson Committee: Review of Liquor Licensing Law in Scotland
CHAPTER 14
MISCELLANEOUS MATTERS
14.1 In this chapter we deal with a wide range of miscellaneous matters none of which requires a chapter to themselves. Many of them arise directly out of detailed provisions in existing legislation, but some do not. They are not set out in any order of importance: but in respect of provisions in existing legislation we have, where practicable, followed the order in which those provisions presently appear in the 1976 Act. For the avoidance of doubt we should make it clear that, where we do not refer specifically to particular provisions in the 1976 Act, that is either because it is obvious that they will not be repeated under our proposed licensing system (for example, provisions relating to types of licence, permitted hours, and so on) or because they should obviously be replicated in any new legislation (for example most of the current range of statutory licensing offences). We say something about offences in the following paragraphs.
(1) Offences
14.2 The 1976 Act makes provision for a wide range of offences in respect of contraventions of licensing law. The need for some of those will of course disappear if effect is given to the main recommendations in this report (for example, those associated with extended hours). However, many others, and in particular those associated with the unlawful sale or supply of alcoholic liquor, will remain relevant under the licensing system which we are proposing. We have not endeavoured to carry out an exhaustive study of the offences which may be appropriate under any new licensing system. However, we have given some thought to the penalties which may be appropriate when offences occur under such a system.
14.3 The permitted maximum penalties for offences under the 1976 Act are to be found in Schedule 5 to that Act. As originally introduced those penalties were set out as fines of a specified maximum amount. However, by virtue of changes introduced by the Criminal Justice Act 1982, and now contained in the Criminal Procedure (Scotland) Act 1995, s. 225, maximum penalties are prescribed by reference to certain levels on what is known as the "standard scale". That scale provides five levels of maximum fine with level 1 providing for a maximum fine of 200, level 2 providing for a maximum fine of 500, and so on up to level 5 which provides for a maximum fine of 5,000. Having examined Schedule 5, and in particular the maximum penalties which are prescribed for what we regard as serious offences such as those relating to the sale and supply of alcohol to those who are under age, we consider that they are presently of a level which is unlikely to have a great deal of deterrent effect. For example, the present maximum fine for a contravention of section 68(1) of the Act (selling liquor to, or allowing consumption by, persons under 18 in a bar) is set at level 3 on the standard scale (1,000). We appreciate, of course, that under our proposed scheme a personal licence holder who commits such an offence will be liable to further sanctions at the instance of the licensing board. Nonetheless, we consider that the prospect of a maximum fine of the level just mentioned is unlikely to be much of a deterrent, particularly when one bears in mind that the level of fines actually imposed is likely to be some considerable way below the permitted maximum. In respect of this particular example, therefore, we should have thought that it would not be inappropriate were the maximum permitted fine to be increased to 2,500 which is level 4 on the standard scale.
14.4 We have taken the above example simply as one where we believe that there would be advantage in increasing the maximum levels of fines for offences under licensing law. However, we have not seen it as appropriate that we should carry out a detailed survey of all offences and the penalties which they may attract. Accordingly, on this matter we confine ourselves to recommending:
61. Consideration should be given to the question whether the maximum penalties for the commission of offences under licensing law are set at an appropriate level, bearing in mind in particular the desirability that those penalties should have a deterrent effect in respect of the more serious offences: and an adjustment upwards should be considered in appropriate cases.
14.5 This is a convenient point at which to say a further word about the notification of convictions to relevant licensing boards. This is presently dealt with under section 129 of the 1976 Act. Under the scheme which we are proposing, if a personal licence holder is convicted of a relevant offence it will be for the appropriate licensing board to consider whether the personal licence should be forfeited or suspended. That obviously makes it necessary that the fact of the conviction should be notified to that board as soon as possible. Accordingly, we take the view that, where a personal licence holder has been convicted of a relevant offence, it should be the duty of the clerk of the convicting court to send appropriate notification to the licensing board which originally granted the personal licence and, if different, to the licensing board for the area where the licence holder was working at the time of the offence. We also consider that notification should be sent to the chief constable for the latter area. Earlier in this report 1 we have made a suggestion to cater for any case where the convicting court is unaware of the fact that the convicted person is the holder of a personal licence.
14.6 So far as premises licences are concerned we have some difficulty in imagining what kinds of offences might be appropriate in respect of licence holders, and we suspect that they are most likely to be dealt with only by licensing boards in respect of failures to observe the terms of their premises licences. However, if we are wrong about that, and if in future there were to be offences capable of being committed by premises licence holders, the proposals about notification which we have made above in respect of personal licence holders should obviously be replicated. On this whole matter, therefore, we recommend:
62. Provision should be made to ensure that, where a personal licence holder is convicted of a relevant offence, an extract of that conviction is transmitted forthwith to the relevant licensing board and to the relevant chief constable. For the foregoing purposes the relevant licensing board will be the one which originally granted the personal licence and, if different, the licensing board having jurisdiction in the area where the personal licence holder was working at the time of the offence in question. The relevant chief constable will be the one having responsibility for the area where the personal licence holder was working at the time of the offence in question. In the event of legislation providing for offences under licensing law which are capable of being committed by a premises licence holder there should be similar provision in respect of notification of convictions.
(2) E-commerce
14.7 "E-commerce" is the name which is now given to those transactions by means of which goods are bought and sold in response to instructions given by telephone or, increasingly, through the internet. While all kinds of goods are bought and sold in this way, our interest has of course concentrated on sales of alcoholic liquor. In that context the general question is: how does this method of sale fit into the framework of licensing law?
In particular, and against the background of our wider recommendations, how does one determine the location of the premises in respect of which a premises licence will be required, and how does one determine the identity of a personal licence holder who will be accountable for at least some of the activities involved? In some instances such questions will not give rise to difficulty. For example, if (as is increasingly the case) a local supermarket offers a home delivery service in response to orders placed by telephone or through the internet, the premises and the person requiring a licence are likely to be readily identifiable. (At present some operations of the kind just described may be thought to give rise to a problem if the telephone line and/or the internet terminal are accessible for 24 hours each day since of course actual sales are only permissible within the trading hours allowed under the 1976 Act. 2 However, that problem, even if it is a real one, is likely to disappear if effect were to be given to our recommendations relative to authorised opening hours.) In some other instances, however, the situation in relation to premises and persons may not be so clear. Increasingly, some purveyors of alcohol operate through call centres which need not necessarily be located in Scotland, and the store or depot where liquor is stored and from which orders are processed may likewise not be in Scotland. Indeed, neither of those places may even be within the United Kingdom.
14.8 We raised the question of e-commerce in the consultation paper which we circulated at the beginning of our work as a committee. However, very few of our consultees offered any views on the subject, and most of those who did tended to be of the view that this is not something which is presently giving rise to any problem; and for that reason they did not consider that any new and detailed legislative intervention is necessary. Having now considered the matter ourselves we are of the same view. It is probably desirable that this matter should be kept under review so that, if particular problems were to reveal themselves in future, appropriate legislative action could be taken. In that connection there might be advantage if primary legislation were to enable appropriate provision to be made by secondary legislation: that would ensure that any necessary steps could be taken with a minimum of delay. For the present, however, we do not consider that any detailed provision in primary legislation is required. On this matter, therefore, we recommend:
63. There is currently no need for express provision in primary legislation in respect of sales of alcohol arranged by telephone or through the internet; but this matter should be kept under review in the future.
(3) Exclusion from licensed premises
14.9 In terms of the Licensed Premises (Exclusion of Certain Persons) Act 1980, where a person is found guilty of an offence committed on licensed premises (other than off-sale premises), and the court is satisfied that in committing the offence he resorted to, or offered or threatened to resort to, violence, it may, in addition to, but not in substitution for, any other disposal, make an exclusion order against him. An exclusion order prohibits the offender from entering any licensed premises specified in the order without the express consent of the licensee for such period between three months and two years as may be specified in the order. Any breach of an order is itself an offence.
14.10 The foregoing provision has been criticised by several of our consultees. The first criticism relates to the fact that what are currently off-sale premises are excluded from the ambit of the provision. It has been suggested that those who work in such premises are just as entitled as those who work in public houses to have protection from those who have engaged in violence within their premises. We have examined the Hansard reports of the debates which led to the introduction of the 1980 Act and, so far as we can tell, it was decided at that time to exclude off-sale premises on the basis that, since many such premises are part of larger premises selling food and other goods, it would be unreasonable to exclude someone from entry and thereby deny him access to food and other forms of non-alcoholic sustenance. We for our part are unmoved by that consideration. There are plenty of unlicensed places where food can be purchased, and we do not consider that an offender will be seriously prejudiced if he were to be excluded from a place or places which also happen to sell alcohol for consumption off the premises. Furthermore, and in any event, the present statutory provision would also prevent the making of an exclusion order in respect of premises which operate solely in terms of what is presently an off-sale licence. We can see no justification for that. We therefore consider that the time has come when the ambit of exclusion orders should be extended so as to include all premises. In that connection we should also add that since, if effect were to be given to our more general recommendations regarding the licensing system, there would no longer be any terminological distinction between on-sale and off-sale premises, some amendment of the 1980 Act would in any event be necessary.
14.11 A further criticism which has been directed against the provisions in the 1980 Act is that, even within their permitted scope, they are little used. This, it is said, is because, even in appropriate cases, procurators fiscal fail to suggest to sheriffs that consideration might be given to the making of an appropriate order. In that situation it has been suggested to us that there should be a procedure whereby an exclusion order could be granted on the application of a licensee with that application being presented subsequent to a relevant conviction and in circumstances where an order had not been sought by the procurator fiscal at that time. We can see some attractions in that proposal. We recognise, of course, that a licensee might be able to achieve a somewhat similar result by means of an application for a civil interdict, but that can sometimes be a lengthy process, particularly if the proceedings were to be defended by the offender. On the other hand, the proposal put to us is to the effect that an order could be made by the court simply on the basis of a relevant conviction, and without the need for further inquiry. We do not consider that we are in a position to make a firm recommendation on this point, but we suggest that it is something which should be considered by the appropriate authorities. We also suggest that the Lord Advocate might consider the possibility that in appropriate cases courts which are granting bail might be invited to make it a bail condition that the person in question should not enter specified licensed premises during the currency of the bail order. On this whole matter, therefore, we recommend:
64. The Licensed Premises (Exclusion of Certain Persons) Act 1980 should be amended so as to extend its scope to all licensed premises including in particular those which currently operate under an off-sale licence. Furthermore, consideration should be given to the introduction of a procedure whereby a licensee can apply for an exclusion order where a relevant offender has been convicted of a relevant offence but an exclusion order has not been sought at that time.
(4) Supply of alcohol at sports grounds
14.12 Following on several well documented examples of serious drunken crowd disturbances at football matches in the 1970s the McElhone Report on Football Crowd Behaviour led to the introduction in Part V of the Criminal Justice (Scotland) Act 1980 of provisions controlling the availability and supply of alcohol at certain sporting events. Those provisions, as amended by the Sporting Events (Control of Alcohol etc.) Act 1985, are now to be found in Part II of the Criminal Law (Consolidation) (Scotland) Act 1995. The provisions in question permit the Secretary of State to designate certain sports grounds and sporting events as ones to which the statutory restrictions are to apply. By orders made in 1998 and 2001 (in place of earlier orders) all of the Scottish Premier League football grounds together with some others are so designated. So too are Hampden Park in Glasgow and Murrayfield Stadium in Edinburgh. Interestingly, although the McElhone Report was solely concerned with steps to prevent drunken disturbances at football matches (and the ensuing legislation was primarily aimed at that), it appears that at the relevant time the Scottish Rugby Union voluntarily sought inclusion in respect of Murrayfield on occasions when international rugby matches were taking place. However, no club rugby grounds are subject to designation in terms of the relevant orders.
14.13 We have received representations from the Scottish Premier League, from Hampden Park and from the Scottish Rugby Union inviting us to recommend that there should be some relaxation of the restrictions contained in what is now Part II of the 1995 Act. Essentially those representations have been to the effect that the sale of alcohol at the grounds concerned is essential if they are to remain commercially competitive when compared with grounds in England and elsewhere. We for our part are not unsympathetic to the representations put forward, particularly in the case of Murrayfield since, as we have noted, it was not mentioned in the McElhone Report and it came under the system of designation on its own initiative and on a voluntary basis. Moreover, as was pointed out to us by representatives of the Scottish Rugby Union, the designation does not extend to club rugby grounds - only to the national stadium. However, we are at the same time keenly aware of the fact that the provision of alcohol at sporting events is a matter of considerable controversy both in political and other circles. Moreover, we are also aware that many, and possibly all, Chief Constables have considerable reservations regarding the wisdom of making any change to current restrictions. In those circumstances we have concluded that it would not be appropriate for us to make any recommendations on this matter. However, given that the particular circumstances which gave rise to the present restrictions all took place more than 30 years ago, we consider that the time may now be ripe for all concerned to revisit this matter in order to see whether any changes are now appropriate. It occurs to us that one possible way forward would be to have a limited pilot scheme at one of the major stadiums. On this matter, therefore:
65. We do not consider that it is appropriate that we should make any positive recommendations regarding the current restrictions on the sale and supply of alcohol at designated sports grounds. However, we suggest that the time may now be ripe for all concerned to give consideration to whether any changes are now appropriate.
(5) British Summer Time
14.14 A small problem has been brought to our notice regarding the impact on licensing hours of British Summer Time on the occasions when it comes into effect in the spring and when it ceases to have effect in the autumn. Essentially, the problem is this. Suppose, for example, that certain premises, under existing law and with the benefit of extensions, are entitled to be open until 3 a.m. That effectively entitles the premises in question to be open for a total period of three hours between midnight and 3 a.m. However, when the clocks are put forward in the Spring it may be open to doubt whether the premises are bound to close when the clock reaches 3 a.m. under (British summer time) or may remain open until 4 a.m. (which would produce the full opening period of three hours after midnight). A similar problem, of course, arises in reverse when the clocks are put back in the autumn.
14.15 We understand that most licensing boards have local arrangements to deal with this problem; but the difficulty appears to be that there is no uniformity of approach with the result that some boards allow opening by reference to the total number of permitted hours for the day in question while others allow opening by reference to the time shown on the clock once any seasonal adjustment has been made. The latter approach, of course, allows for an additional opening hour on the relevant day in the autumn and an hour less on the relevant day in the spring. It seems to us that some uniformity of approach on this matter would be desirable. We have no strong views as to which way of dealing with the problem is to be preferred. However, on balance we tend to think that the "total number of authorised hours" approach is more logical, and more likely to be understood by customers, than the approach which is governed by the time shown on the clock after British summer time has come into operation or has ceased to be in operation. We therefore recommend:
66. At the times of the year when clocks are moved forwards or backwards to accommodate the requirements of British summer time there should be uniformity of approach throughout the country as to the effect which this has on closing times. On balance we suggest that in those licensed premises which are authorised to open later than the hour when the change takes place their closing time should be determined by reference to the number of hours after midnight when they are authorised to be open rather than by the actual time shown on the clock.
(6) Order of dealing with applications
14.16 Section 13(1) of the 1976 Act provides that a licensing board is not to hear the cases of applicants for new licences until all the other cases have been disposed of. It appears that this provision exists so that a board may give appropriate consideration to the "overprovision" ground for refusal as provided for in section 17 (1)(d) of the Act. Since we have proposed a significant change to that ground of refusal, and since in any event we have also proposed a radical change from the circumstances which have in the past called for regular quarterly meetings of licensing boards, we see no need for this provision to be replicated in any new legislation, and we consider that in future licensing boards should be entitled to deal with business in whatever order appears to be most appropriate. We therefore recommend:
67. In any new legislation following on this report there is no need for provision in the terms presently contained in section 13(1) of the 1976 Act.
(7) Application for new licence where previous application refused
14.17 In terms of section 14 of the 1976 Act, where a licensing board has refused an application for a new licence, a subsequent application for a new licence in respect of the same premises may not be entertained within two years unless the board, at the time of refusing the first application, has made a direction to the contrary. It is understood that the rationale underlying this provision is that it is desirable to protect successful objectors from the necessity of having to renew their objections within a period of less than two years. We have been advised, however, that some boards are very reluctant to reduce the period of two years even when the grounds on which an application has been refused are of a kind which are easily and speedily remediable.
14.18 A provision such as that in section 14 will no doubt be desirable under the new licensing system which we propose. However, we consider that the present provision is unduly restrictive, and we are therefore of the view that there should be a general embargo on the lodging of a subsequent application for no more than one year. We also consider, however, that it should be open to an applicant, within the period of one year after refusal, to seek leave of the board to proceed with a fresh application on the basis that there has been a change of circumstances since the time when the earlier application was refused. In this connection we note that section 14 of the 1976 Act permits a departure from the two year time lapse only where that is permitted by a board "at the time of refusing the first-mentioned application". In our view it should be open to an applicant to seek to have a fresh application received at any time. On this matter, therefore, we recommend:
68. In any case where an application for a new licence has been refused by a licensing board there should be a general embargo on the lodging of a subsequent application for no more than one year. However, where an application has been refused it should be open to an applicant, within the period of one year, to seek leave of the board to proceed with a fresh application on the basis that there has been a change of circumstances since the time when the earlier application was refused.
(8) Attendance at meeting of licensing board
14.19 Section 15 of the 1976 Act provides that a licensing board may decline to consider an application if the applicant or his representative does not attend the meeting at which the application is to be considered. The section goes on to provide that an applicant for the renewal of a licence or for the permanent transfer of a licence need not attend or be represented unless the applicant has been cited by the board to attend the meeting.
14.20 Much of the context of the foregoing provision will, of course, disappear under the licensing system which we are proposing. However, it is likely that some provision to a similar effect will require to be made in the procedural regulations which will be drafted in connection with that new system. In that connection it has been brought to our attention that the present provision can sometimes cause difficulties because some licensing boards, it appears, interpret it as allowing them to refuse to hear an application even where an applicant or his representative - possibly because of having been caught in a traffic jam - arrives at a meeting only a few minutes late. It has also been represented to us that some boards insist on the attendance of an applicant in person notwithstanding that he has instructed legal representation and has nothing to contribute to the proceedings himself. Given that our general proposals are designed to make application proceedings more flexible and user-friendly we consider that any replication of what is currently in section 15 of the 1976 Act should make some allowance for excusable late arrival at a meeting, and should not require the attendance of an applicant in person (who otherwise has legal representation) unless specifically cited to attend by the board. In the latter case we also consider that any citation should specify the purpose for which the applicant's appearance is required. We therefore recommend:
69. Any procedural rules designed to replicate what is presently in section 15 of the 1976 Act should require a licensing board to consider an application where an applicant or his representative for excusable reasons arrives late at a meeting; and an applicant who is otherwise represented should not be required to attend such a meeting in person unless cited to attend by the board. In the latter case, any citation should specify the purpose for which the applicant's appearance is required.
(9) Planning permission
14.21 A small drafting point arises out of what is presently section 23 of the 1976 Act. That section provides that an application for a new licence must be accompanied by relevant certificates in respect of planning, building control and food hygiene. We have recommended retention of the principle underlying this provision. 3 However, we note that, while the specific provisions in relation to building control and food hygiene are expressed in neutral terms, the provision (in subsection (2)) relative to planning provides that the certificate from the appropriate authority must state "that the applicant has obtained" the relevant planning permission. On a strict interpretation that would mean that an applicant who had just purchased, or taken over the lease of, the premises in question would not be entitled to rely on planning permission granted to the seller or previous tenant of the property notwithstanding that that permission might be precisely the same as the permission likely to be granted to the applicant and that it had been granted only a very short time before. The present provision appears to us to be quite unnecessary, and we suggest that for the future it should be sufficient that an applicant for a new licence should produce a certificate from the appropriate authority stating that appropriate planning permission has been obtained, whether by the applicant himself or by someone else. We therefore recommend:
70. Any planning permission required in connection with an application for a new licence need not have been obtained by the applicant; if otherwise relevant and appropriate, certification of that permission should be acceptable where it was granted to a previous owner or tenant of the premises in question.
(10) Premises on special roads, and premises associated with filling stations
14.22 Section 28 of the 1976 Act provides that premises are to be disqualified for receiving a licence if they are situated on land acquired or appropriated by a special road authority, and for the time being used, for the provision of facilities to be used in connection with the use of a special road provided for the use of traffic of class 1 (with or without other classes). That rather cumbersome wording in effect means that licences should not be available for motorway service stations. Such a prohibition was originally introduced by the Licensing (Scotland) Act 1962, and its retention was recommended by the Clayson Committee. 4 We do not propose any change to this prohibition; and we note that an identical prohibition is contained in the current Licensing Bill for England and Wales.
14.23 In this connection we have also given some consideration to the problems surrounding the licensing of premises forming part of, or ancillary to, filling stations which are not located on motorways. Such premises have featured frequently in licensing appeals before sheriffs and in the Court of Session. Some people, and some licensing boards, have taken the view that campaigns against drink-driving are likely to be seriously prejudiced if alcohol is available for sale in close proximity to petrol pumps where drivers stop to fill up their cars with fuel. Others, while not challenging the foregoing view in principle, have argued that each case must be looked at in the light of its own circumstances. Thus, for example, it has been argued that there can be no objection in principle to allowing off-sales in part of a large supermarket which also has a filling station on adjacent ground. At the other end of the size spectrum it is not unknown in some of the more remote villages in Scotland for the sole village shop to have a petrol pump at the roadside. It could be argued that to deny such a shop a licence for off-sales would adversely prejudice local residents who would otherwise have to travel long distances in order to purchase some wine or beer for home consumption. On balance we do not consider that it is either desirable or necessary to have a standard licensing provision to deal with this matter, and we tend to think that, as at present, it should be left to licensing boards and, if necessary, the courts to deal with each case on its own merits and by reference to its own particular circumstances. On this whole matter, therefore, we confine ourselves to recommending:
71. The present prohibition on the grant of a licence for motorway service stations (1976 Act, s. 28) should be retained.
(11) Occasional licences and occasional permissions
14.24 The above matters are currently dealt with by sections 33 and 34 of the 1976 Act. Putting it shortly, section 33 provides for the grant to a licence holder of an occasional licence authorising him to sell alcohol in the course of catering for an event taking place outwith the licensed premises in respect of which he is the holder of a licence. A typical example of that would be the provision of catering, including the sale of alcohol, at a wedding reception or other social event held on private property. Section 34, by contrast, provides for the grant of an occasional permission to a person representing a voluntary organisation authorising him to sell alcohol in the course of catering for an event arising from, or related to, the activities of the organisation and taking place outwith licensed premises. A typical example of that would be where an organisation such as a tennis or other sporting club holds an occasional function in its clubhouse which is otherwise unlicensed.
14.25 It has not been suggested to us that sections 33 and 34 of the 1976 Act have given rise to any major problems, and we can see advantage in retaining something like them in any new legislation which may follow on this report. However, section 33 will, we suggest, have to be changed to some extent so as to make it applicable to a personal licence holder who possesses the appropriate qualifications for the type of premises and event to be covered by the occasional licence. So far as section 34 is concerned, it has been represented to us that there may be a problem in that the persons in charge of the events in question may be unqualified and inexperienced in the sale of alcohol. Given the insistence which we have placed in this report on the possession of appropriate qualifications and training that might appear to be a major drawback. On the other hand, it has not been suggested to us that events of the kind covered by section 34 in fact give rise to any problems or difficulties since in the majority of cases the organisers are sensible and responsible, and those attending the events are not seeking to indulge in binge drinking or other undesirable activities. We for our part see no need to remove this small opportunity for those who are not professionally involved in the licensed trade to operate in a very limited way under occasional permissions, and we consider that the present provision enabling that to happen should continue. We think, however, that there might be some advantage if there were to be a statutory definition of 'voluntary organisation'. No such definition is given in the 1976 Act, and we are of the view that in the absence of a definition there may be room for dispute as to the types of organisation which are entitled to seek a permission of this kind. On this matter, therefore, we recommend:
72. The present provisions in sections 33 and 34 of the 1976 Act relative to occasional licences and occasional permissions should be replicated in any new legislation. However, it should be provided that an occasional licence may be granted to a personal licence holder who has the appropriate qualifications entitling him to cater for the event in question; and in the case of occasional permissions there should be a statutory definition of 'voluntary organisation'.
(12) Reconstruction, and structural alterations on renewal, of certain licensed premises
14.26 The above matters are currently dealt with in sections 35 and 36 of the 1976Act. We are of the view that any need for such provisions will disappear under the general licensing scheme which we are recommending in this report.
(13) Regulations and bylaws
14.27 The above matters are currently dealt with in sections 37 and 38 of the 1976 Act. Under our proposals all procedures will be standardised throughout the country, and in that situation we see no continuing need for what is provided in section 37. So far as section 38 is concerned, we take the view that our proposals regarding the terms of a premises licence and licensing board policies will remove the need for this provision.
(14) Seamen's canteens
14.28 Seamen's canteens have a whole Part of the 1976 Act to themselves (Part III, sections 40 to 46). So far as we have been able to discover the sale of liquor in canteens, without what was in those days described as a certificate, was first authorised as a war-time measure under the Defence (General) Regulations 1939. Those Regulations were repealed by the Licensing (Seamen's Canteens) Act 1954 which made special arrangements for the grant of licences to seamen's canteens by a licensing court. The provisions of the 1954 Act were reproduced, with some amendments, in the Licensing (Scotland) Act 1959, and those provisions were in due course carried over into the 1976 Act. A licence for a seamen's canteen may be granted "if a body approved by the Secretary of State have provided or propose to provide a seamen's canteen the need for which has been certified by him after consultation with the Merchant Navy Welfare Board". 5
14.29 When the Clayson committee was considering this matter it understood that at that time there were only two licensed seamen's canteens in Scotland, both in Glasgow, and in that situation the committee expressed the view that they "would have liked to recommend that the special provisions relating to seamen's canteens should be repealed and that the licensing of such premises should be brought fully within the ordinary licensing system". 6 However, they considered that it would still be necessary to have a separate type of certificate or licence "to continue to mark the differences between say, public houses, and canteens", 7 and in that situation they recommended the retention of special provisions for seamen's canteens. Our own investigations have revealed that at the present time there appears to be one seamen's canteen still in existence in Glasgow. We have been advised that there may also be one in Grangemouth, but attempts to contact it by telephone have been unsuccessful. So far as the canteen in Glasgow is concerned, it does not, frankly, appear to us that it is being conducted strictly in accordance with the provisions of sections 40 to 46 of the 1976 Act. In the whole circumstances we can see no good reason for continuing yet again special provisions which, as we have noted above, were originally introduced in order to make provision for circumstances which may have been relevant at the outset of a conflict which took place more than half a century ago but which do not appear to have any relevance today. Moreover, the consideration which weighed with the Clayson committee, namely that it would be necessary to have a different type of certificate or licence to distinguish between seamen's canteens and other types of licensed premises, is no longer of consequence under the general licensing system which we are recommending. Under our proposals any significant differences would be noted in the operating plan or schedule, and the premises licence would be tailored accordingly. In all the circumstances, therefore, we consider that the time has come when licensing law should consign seamen's canteens to the pages of history, and that in future they should fall under the new licensing system which we have proposed in this report. We suggest, however, that, before any final decision is made on this matter, it would probably be prudent for Ministers to consult with the Merchant Navy Welfare Board in order to see if there is some other persuasive consideration which we have overlooked. On this matter, therefore, we recommend:
73. For the future there is no need to make special provision in respect of seamen's canteens, and the licensing of such premises should come within the general licensing system recommended in this report. However, prior to any final decision being taken in respect of this recommendation Ministers should consult with the Merchant Navy Welfare Board in order to ascertain whether there is any significant consideration, of a kind not made known to us, which militates against such a course being taken.
(15) Drinking-up time
14.30 Section 54(3)(a) of the 1976 Act qualifies the general provisions relative to permitted hours by providing that there is no prohibition on the consumption of alcoholic liquor in any premises at any time within 15 minutes after the conclusion of the permitted hours if that liquor was supplied in the premises during the permitted hours. This is referred to colloquially as 'drinking-up time'. The present concept of permitted hours will, of course, disappear under our general proposals. Nonetheless, we think that it will still be desirable to have some provision to cater for drinking-up time when the hours prescribed in an operating plan or schedule, and authorised in a premises licence, come to an end. On this matter several of our consultees have suggested to us that the orderly closure of premises and the gradual departure of patrons would be assisted if the period for drinking-up were to be extended to 30 minutes. We can see some force in that suggestion, and we therefore recommend:
74. Notwithstanding the opening hours specified in an operating plan or schedule, and authorised in a premises licence, there should continue to be provision for 'drinking-up time' . That period should be extended to
30 minutes.
(16) Seasonal licences
14.31 Section 62 of the 1976 Act contains provisions which are intended to cater for those licensed premises (presumably in the more remote parts of the country) which close down all or part of their business during certain parts of the year. There will be no need for such provision under the scheme which we are proposing since matters of this sort will be dealt with in the operating plan or schedule lodged at the time when a premises licence is applied for.
(17) International airports and international ports
14.32 Sections 63 and 63A of the 1976 Act allow the Secretary of State to make special provision for the sale of alcohol at international airports and international ports. We consider that, subject to any necessary modification, these provisions should continue for the future, and we therefore recommend:
75. There should be continuing provision allowing Ministers to make special provision for the sale of alcohol at international airports and international ports. Subject to any necessary modification that provision should be along the lines of what is presently provided in sections 63 and 63A of the 1976 Act.
(18) Restriction orders
14.33 The current provisions in relation to restriction orders 8 will be overtaken by our more general proposals for review in the event of a complaint of any kind.
(19) Temporary restriction of permitted hours
14.34 Section 66 of the 1976 Act authorises a licensing board, on an application by a constable of the rank of chief inspector or above, to make an order, in the interests of public order or safety, that specified premises should be closed to the public for such time of up to three hours and on such day or days as may be specified in the order. This provision gives effect to a recommendation by the Clayson committee 9 that, where there is the possibility of disorder arising out of a given event on a given day, e.g. a football match, a board should have the power to close premises for a period or periods of up to three hours if they are satisfied that it is necessary in the interests of public order or safety. Given that public order and safety feature among the principles or objectives which we have suggested should in future guide the work of licensing boards, we are of the view that this is a provision which should be replicated in any new licensing legislation. We also note that, under section 66, the licence holder of premises to which an application relates has no right to object to the application. Notwithstanding our view that rights of appeal should be significantly widened, we consider that the foregoing restriction on the right of a licence holder to object is one which is reasonable and proportionate given the over-riding interests of public order and safety, and we accordingly suggest that that provision should also be retained. On this matter, therefore, we recommend:
76. It should continue to be open to a constable of the rank of chief inspector or above to apply to a licensing board for an order, which is desirable in the interests of public order or safety, that specified premises should be closed to the public for such time of up to three hours and on such day or days as may be specified in the order. The licence holder of premises to which such an application relates should have no right to object to the application.
(20) Police entry into premises
14.35 Section 85 of the 1976 Act permits a constable at any time to enter and inspect any licensed premises other than premises holding an off-sale licence, and he may enter premises of the latter kind only if he has reasonable grounds for believing that an offence has been or is being committed on those premises. Section 86 confers a similar right of entry in respect of unlicensed premises where food or drink is sold for consumption on the premises or in which there are reasonable grounds for believing that alcoholic liquor is being trafficked in unlawfully. In a case under section 86, however, the power of entry is not to be exercised by a constable below the rank of inspector unless he has the authority in writing of a justice of the peace or of a constable of or above the rank of inspector: and any such written authority remains valid only for a maximum of eight days. Finally, under this heading, section 114 of the Act makes provision for a constable to enter the premises of a club only where a justice of the peace or a sheriff, having heard evidence on oath, has granted a warrant authorising such entry. It seems to us that there is little rational justification for such a variation in powers of entry, even under the present licensing system Under the system which we are proposing, however, there will in our view be no justification for making distinctions, for example between what are currently described as on-sale and off-sale premises, or between clubs and other premises selling or supplying alcohol. Under our proposed system there will be a single premises licence which will not, except in the terms of individual licences, make distinctions of the kind which exist at present, and in our view it will be appropriate that a police officer of whatever rank should have a lawful right of entry to any premises in respect of which a premises or club certificate is in force. We therefore recommend:
77. Any police officer should have a lawful right of entry into any premises in respect of which a premises or club licence is in force.
(21) Order to close licensed premises
14.36 Under section 89 of the 1976 Act a sheriff is empowered, "if riot or tumult happens or is expected to happen", to order the holder of a licence in respect of premises situated in or near the place where a riot or tumult happens or is expected to happen to close those premises during such time as may be specified in the order. We doubt whether this provision is ever likely to be of great effect. The likelihood is that such a matter will not even come before a sheriff for consideration until well after any riot or tumult has come to an end. Moreover, the provision as drafted refers to licensed premises "in or near the place where a riot or tumult happens or is expected to happen", and thereby appears to exclude from its ambit any riot or tumult inside the licensed premises themselves.
14.37 We take the view that the interests of public safety demand that there should be a means whereby any one or more licensed premises should be capable of being closed swiftly and effectively where there is, or is likely to be, disorder either in or in the vicinity of those premises. In England and Wales this problem has been tackled by giving new and extended closure powers to the police, and provision to that effect is repeated in the current Licensing Bill. We consider that there is likely to be advantage were similar provision to be enacted in Scotland. Since the rationale for that would be the interests of public safety, and since that is also the rationale for the temporary closure order which we have just recommended above, 10 we consider that all of those matters might well be combined in a single group of provisions. We therefore recommend:
78. In the interests of public safety consideration should be given to providing the police with powers to close licensed premises when there is, or is likely to be, disorder either in or in the vicinity of those premises. Any provision to that effect could usefully be combined with provision giving effect to recommendation 76 above.
(22) Wholesale selling, and delivery of alcoholic liquor by vehicles, etc.
14.38 The above matters are dealt with in sections 90A and 91 of the 1976 Act. We are not aware that those provisions have caused any problems, and we consider that, subject to any necessary modifications, they should be replicated in any new legislation. We therefore recommend:
79. Subject to any necessary modifications the provisions in sections 90A and 91 of the 1976 Act relative to wholesale selling, and the delivery of alcohol by vehicles, should be replicated in any new legislation.
(23) Restriction on carriage of alcohol in crates, etc., on contract carriages
14.39 Section 92 of the 1976 Act is designed to prohibit the carrying on a hired public service vehicle of large quantities of alcohol, and the section makes it an offence for the PSV licence holder, or his employee or agent, to permit that to happen. We consider that similar provision should be made in any new legislation, and we therefore recommend:
80. Subject to any necessary modifications the provisions in section 92 of the 1976 Act relative to the carriage of alcohol in crates on contract carriages should be replicated in any new legislation.
(24) Sale of alcoholic liquor on passenger vessels on Sundays
14.40 Section 93 of the 1976 Act makes it an offence for any person on a passenger vessel on a voyage starting on a Sunday and finishing on the same day between any two places in Scotland or going from and returning to the same place in Scotland on the same day to sell or supply alcoholic liquor outwith the hours of 12.30 p.m. to 2.30 p.m. and 6.30 p.m. to 11 p.m. This provision has to be read against the background of section 138(1) of the Act which otherwise exempts aircraft, vessels or railway passenger vehicles from the need to have a liquor licence. In our opinion any social or religious rationale which may at one time have underpinned this provision is now unlikely to attract much, if any, support, and indeed we suspect that most travellers today would find it irksome that the relatively relaxed licensing regime in existence in land-based premises is not also to be found on board a passenger vessel. For those reasons alone we consider that this provision need not be repeated in any new legislation. In any event, it strikes us as strange and discriminatory that the restriction imposed by section 93 applies only in the case of vessels but not, apparently in other cases such as, for example, aircraft. For all of the foregoing reasons, therefore, we recommend:
81. The restrictions relative to the sale of liquor on passenger vessels on Sundays which are presently provided for in section 93 of the 1976 Act should not be repeated in any new legislation.
(25) Sale or supply for consumption outside registered club
14.41 This matter is presently dealt with in section 95 of the 1976 Act. Given that we have recommended earlier in this report that licensed clubs should be brought within the general licensing system which we are recommending, we consider that all matters relative to the business of clubs will in future be subsumed in our proposals relating to operating plans or schedules.
(26) Prohibition of sale or supply of alcoholic liquor in licensed canteens for consumption off the premises
14.42 This provision will be subsumed under our general proposals in relation to seamen's canteens. 11
(27) Consumption in, taking away of, and selling liquor from, off-sale premises
14.43 Section 97 of the 1976 Act makes it an offence for the holder of an off-sale licence, or his employee or agent, to sell alcoholic liquor for consumption on the premises. An amendment by paragraph 15 of Schedule 8 to the 1990 Act removed an earlier prohibition against the gratuitous supply of alcohol for consumption on such premises, and therefore legalised the practice of some off-sale operators of offering free wine tastings and other events on their premises. We see no reason to depart from the general approach of section 97 as amended, though at least some of its content will in future fall under our proposals regarding operating plans or schedules.
(28) Sale or supply of alcoholic liquor in certain theatres
14.44 Section 121 of the 1976 Act provides that a theatre erected before January 1, 1904, is to be treated for the purposes of the sale or supply of alcoholic liquor in the theatre as if an entertainment licence were in force in respect of the theatre. This provision is to be read in conjunction with section 138(1)(b) of the Act which in effect takes such theatres outwith the normal licensing requirements of the Act. The origin of these provisions is obscure, and no light is shed on this by the Clayson committee. 12 In our view it is surprising that an Act of 1976 should have found it necessary to make special provision in respect of theatres erected nearly three quarters of a century earlier, and we would find it totally bizarre that such provision should be repeated at the beginning of the 21st century. We are unaware of any reason why theatres erected prior to 1904 should receive special treatment and, having regard to the general scheme which we have been recommending in this report, we can see no reason why such theatres should not in future come within that general scheme. We therefore recommend:
82. There should no longer be any special provision in respect of theatres erected before January 1, 1904, and such theatres should in future fall under the general licensing system proposed in this report.
(29) Alcoholic liquor in confectionery
14.45 Section 123 of the 1976 Act prescribes the proportion of alcohol which may lawfully be contained in liqueur chocolates, and it prohibits the sale of alcoholic liquor in confectionery to persons under the age of 16. It is our understanding that the first part of the section complies with an EEC Directive. On balance we see no reason to depart from the present provision on this matter, and we therefore recommend:
83. The provisions of section 123 of the 1976 Act relative to alcoholic liquor in confectionery should be replicated in any new legislation.
(30) Supply on order by certain officials
14.46 Section 125 of the 1976 Act provides that the holder of a licence of any premises may supply alcohol from those premises outwith the permitted hours on an order stating why the liquor is required and signed by a constable of or above the rank of inspector, by the procurator fiscal, or by certain other officials. It appears that this section is intended to provide for cases of sickness or accident occurring outwith permitted hours, but Agnew and Baillie state that "so far as can be ascertained, it has not been used of late". 13 We suspect that this provision may be a relic of the days when a sip of brandy or the like was regarded as an appropriate medicine, and we doubt whether such a provision is necessary today. We therefore recommend:
84. The provision in section 125 of the 1976 Act permitting sale out of hours on the order of certain officials need not be repeated in any new legislation.
(31) Burden of proof
14.47 Section 126 of the 1976 Act provides that, if the holder of a licence is charged with knowingly permitting drunkenness in the premises in question, and it is proved that any person was drunk in the premises, it is to be for the holder of the licence to prove that he and the persons employed by him took all reasonable steps to prevent drunkenness in the premises. On the assumption that an offence of permitting drunkenness in licensed premises will continue, we consider that this provision should be retained. We therefore recommend:
85. The provision in section 126 of the 1976 Act relative to the burden of proof should be replicated in any new legislation.
(32) Presumption as to contents of containers
14.48 Section 127 of the 1976 Act provides that for the purposes of a trial, and in the absence of a challenge, any liquid found in a container is to be presumed to conform to the description of the liquid on the container. This is a somewhat technical provision which is intended to avoid the time and expense which would be involved in proving the contents of a container when that fact is not actually to be challenged by an accused person. It seems to us that this is a useful provision which ought to be replicated in any new legislation. We therefore recommend:
86. The provision in section 127 of the 1976 Act creating a legal presumption as to the contents of containers should be replicated in any new legislation.
(33) Trial of offences
14.49 Section 128 of the 1976 Act makes provision for the manner in which, and the court in which, offences under the Act are to be tried. This, we think, is a policy matter for the Lord Advocate and others, and we therefore make no recommendation on this.
(34) Limitation of actions against sheriffs, etc.
14.50 Section 130 of the 1976 Act provides that no proceedings against any sheriff, justice of the peace, sheriff clerk, member of a licensing board, clerk of a licensing board, procurator fiscal, constable or other person on account of anything done in the execution of the Act are to lie unless they are commenced within two months after the cause of such proceedings has arisen. We have not been able to track down the origins of this provision, but we suspect that they may be found in the 19th century or even earlier. In present times we see no justification for such a provision, and we consider that it need not be repeated in any new legislation. We therefore recommend:
87. The provision in section 130 of the 1976 Act relative to the limitation of actions against sheriffs and others does not appear to have any contemporary relevance, and it need not be repeated in any new legislation.
(35) Betting and gaming licences and permits
14.51 Section 133 of the 1976 Act effectively brings betting and gaming licences under the jurisdiction of the same licensing boards as deal with liquor licences. We have no views as to whether that arrangement should continue under the liquor licensing system which we are recommending, and we simply note that this is something to which the appropriate authorities will have to give consideration.
(36) Notices, etc.
14.52 Section 134 of the 1976 Act provides that any notice or document required or authorised to be given or served under the Act may be served by post. We take the view that in future any notice or document should also be capable of being served electronically by means of fax or e-mail, and we therefore recommend:
88. Provision should be made to enable any notice or document to be served by fax or by e-mail as well as by post.14
(37) Exemptions
14.53 Section 138 of the 1976 Act is a somewhat curious provision which exempts certain activities from the ambit of general licensing law. The first two which are mentioned in the section, namely seamen's canteens and theatres erected before January 1 1904, have already been dealt with earlier in the Act, and we for our part have commented on them earlier in this chapter. 15 Section 138(1)(c), however, provides for a further exemption, and it provides that nothing in the Act is to make unlawful "trafficking, with passengers in an aircraft, or, subject to section 93 of this Act, in a vessel or railway passenger vehicle, in alcoholic liquor for consumption on board the aircraft or vessel or in the railway passenger vehicle, if the aircraft or vessel is employed for the carriage of passengers and is being flown or navigated from a place in the United Kingdom to another such place or from and to the same place in the United Kingdom on the same day, or, as the case may be, if the railway passenger vehicle is a vehicle in which passengers can be supplied with food."
14.54 In our view the foregoing provision is almost incapable of sensible comprehension. The reference to section 93 appears to suggest that that section deals both with vessels and with railway passenger vehicles, but in fact that section deals only with vessels, and even then only when such vessels are sailing on a Sunday. It would also appear that, so far as aircraft are concerned, the section, by its references to "the United Kingdom" is purporting to legislate for journeys anywhere in the United Kingdom, for example from Manchester to London, though that is plainly outwith the scope of purely Scottish legislation. At the same time, the references to the United Kingdom would appear to make it unlawful for any alcohol to be served on an aircraft flying from, say, Glasgow to New York at least until that aircraft had departed from Scottish air space. It is also, we think, somewhat curious, that in the case of railway passenger vehicles the exemption applies only where the vehicle is one in which passengers can be supplied with food while no such qualification is imposed in respect of either vessels or aircraft. We have not in fact consulted on how the foregoing anomalies might best be addressed, but we are in no doubt that there is a clear need for clarity regarding the sale and supply of alcohol on board aircraft, in trains, and in vessels. We therefore recommend:
89. In any new legislation appropriate provision should be made in relation to the sale and supply of alcohol on aircraft, on passenger trains, and on
sea-going vessels.
(38) Interpretation
14.55 Section 139 of the 1976 Act sets out a wide range of definitions which are to apply to words used in the Act. Under the scheme which we are proposing many new definitions will be required. However, one which will remain for definition is 'alcoholic liquor'. We are uncertain whether the definition set out in section 139 of the 1976 Act is still entirely appropriate, and we consider that before any new definition is drafted there would be advantage in taking the views of H.M. Customs and Excise. We therefore recommend:
90. For the purposes of any new legislation there should be consultation with H.M. Customs and Excise in order to determine an acceptable and current definition of 'alcoholic liquor'.
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