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The Nicholson Committee: Review of Liquor Licensing Law in Scotland

APPENDIX C
THE HUMAN RIGHTS ACT AND RELATED ISSUES

Why it is necessary to consider this matter

1. The Human Rights Act 1998, which incorporates into our domestic law most of the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR), came into force throughout the United Kingdom in October 2000. In terms of section 1 of the 1998 Act those incorporated rights are referred to as "the Convention rights". However, those rights are also referred to in the Scotland Act 1998 which created the Scottish Parliament.

2. Section 29(1) of the Scotland Act provides:

"An Act of the Scottish Parliament is not law so far as any provision of the Act is outside the legislative competence of the Parliament."

Section 29(2) of the Act sets out various circumstances in which a provision will be outside that competence, and one of those, in terms of subsection (2)(d), is where "it is incompatible with any of the Convention rights". In terms of section 126(1) the phrase "the Convention rights" as used in the Scotland Act has the same meaning as in the Human Rights Act 1998.

3. Following on receipt of this report, Scottish Ministers may decide to proceed with a Bill before the Scottish Parliament to give effect to some, or all, of our recommendations. However, it will be essential in that event that any legislation should be within the legislative competence of the Parliament, and in particular should not be incompatible with any of the Convention rights. It is for that reason that we have seen it as part of our duty to consider our recommendations with care so as to ensure, so far as we are able, that they will not fail the compatibility test.

4. We have also considered it desirable to set out the relevant considerations and our response to them in some detail notwithstanding that as a result much of what follows may be of little interest to those readers who are not lawyers. We have therefore set this matter out in this Appendix so as not to distract readers from the main thrust of the recommendations contained within the body of this report.

5. The main matters which have caused us some concern relate to licensing boards and to the system for reviewing boards' decisions under appeal or judicial review procedures. So far as the first of these is concerned we begin by examining the position under reference to existing law, and we thereafter go on to note how the situation will change (for the better, we believe) by virtue of the recommendations which have been made earlier in this report.

(1) Licensing Boards - compatibility with ECHR

6. Article 6(1) of the ECHR is in part in the following terms:

"In the determination of his civil rights and obligations ..... everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law."

So far as licensing boards, and proceedings before them, are concerned, this provision gives rise to two questions. First, do proceedings relating to liquor licences involve the determination of civil rights and obligations; and second, if the answer to the first question is in the affirmative, is a licensing board as presently constituted an independent and impartial tribunal?

Civil rights and obligations

7. So far as the first question is concerned, it has recently been held in Scotland ¹ that a liquor licence which is being applied for, but which has not been granted, may not fall to be regarded as a property right so as to bring article 6 of the ECHR into play. However, the European Court of Human Rights (ECtHR) has held that a liquor licence which is in existence is a property right. ² The consequence of that decision appears to be (and this seems to have been accepted by Lord Johnston in Catscratch) that article 6 will certainly apply to proceedings before a licensing board in all cases other than an original application for the grant of a licence. That means that, at least so far as applications at the instance of a person who is already a licensee are concerned, a licensing board should be an "independent and impartial tribunal" within the meaning of article 6.

8. We should perhaps also add that there is a line of Strasbourg authority which makes clear that article 6 of the Convention is not restricted to courts in the normal sense of that word but also extends to a range of administrative bodies. ³ On the basis of that line of authority, which was not challenged in the Tre Trektorer case, ⁴ it seems clear to us that a licensing board is a body to which article 6 will apply.

9. While all of that alone is sufficient to require us to consider the second question which we posed in paragraph 6 above, we consider that the applicability of article 6 to proceedings before licensing boards might well arise in a different context by reason of other articles in the ECHR itself. Article 8(1) of the Convention provides:

"Everyone has the right to respect for his private and family life, his home and his correspondence."

Moreover, article 1 to the First Protocol to the Convention provides:

"Every natural or legal person is entitled to the peaceful enjoyment of his possessions."

Although, so far as we are aware, this point has not as yet been tested in the courts, we tend to the view that an objector to the grant of a licence might well seek to invoke either or both of the above provisions as rights which would be infringed were a licence to be granted, or to be granted subject to certain authorisations, for example in respect of opening hours.
The argument, we think, might be that such a grant in respect of premises close to residential property would be detrimental to the objector's family life and his home, and would not permit the peaceful enjoyment of his possessions including his home. If that is correct, the consequence is that on this basis also a licensing board must satisfy the requirement of being an independent and impartial tribunal; and, if the civil right in issue in proceedings before a board is one claimed by an objector, then that requirement could well arise at the stage when an applicant is applying for a first grant of a licence notwithstanding that at that stage no civil right is being determined in relation to the applicant himself.

An independent and impartial tribunal

10. That, accordingly, brings us to the second question which we posed above, namely:
Do licensing boards, at least as presently constituted, satisfy the test of being independent and impartial tribunals within the meaning of article 6 of the ECHR? In seeking to answer that question it is important to bear in mind that the question is not whether licensing boards are in fact lacking in independence and impartiality: the question is whether an objective observer would conclude that they lack the outward appearance of independence and impartiality. Thus, in Findlay v. United Kingdom ⁵ it was stated:

"In order to establish whether a tribunal can be considered as 'independent', regard must be had inter alia to the manner of appointment of its members and their term of office, the existence of guarantees against outside pressures and the question whether the body presents an appearance of independence. As to the question of 'impartiality', there are two aspects to this requirement. First, the tribunal must be subjectively free of personal prejudice or bias. Secondly, it must also be impartial from an objective viewpoint, that is, it must offer sufficient guarantees to exclude any legitimate doubt in this respect."

11. As presently constituted licensing boards consist of a prescribed number of members of the councils in whose areas the boards operate. ⁶ Section 2 of the Act makes provision for a variety of circumstances in which a person who is a councillor, and therefore otherwise eligible to act as a member of a licensing board, is to be disqualified from doing so. A total disqualification is imposed on any person "who is, or who is in partnership with any person as, a brewer, maltster, distiller or dealer in or retailer of alcoholic liquor", ⁷ and disqualification from participating in proceedings in respect of a particular application is imposed in a number of circumstances such as where a member of the board holds a disqualifying interest in a company which is an applicant or objector ⁸ or where a member of the board is the proprietor, tenant or sub-tenant of the premises in question. ⁹

12. In our view the foregoing provisions in the 1976 Act go a considerable way to satisfying the test of independence and impartiality as set out in the passage from the judgment in Findlay which we have quoted above. However, that alone is not a complete answer to the question.

13. Section 16(1) of the 1976 Act sets out a list of those who may competently object in relation to any application for the grant, renewal or permanent transfer of a licence, and section 64(7) provides that the same persons may object to an application for the regular extension of permitted hours. Those who may competently object include any person owning or occupying property situated in the neighbourhood of the premises to which the application relates, and a local authority for the area in which the premises are situated. Given the overall structure of the arrangements under the 1976 Act a local authority qualifying as a competent objector will, of course, be the very authority from whose membership the members of the licensing board have been drawn; and that same authority might of course also be a competent objector by virtue of owning or occupying property in the neighbourhood of the premises to which an application relates. In any case where an objection is taken by a local authority in either of the foregoing circumstances the consequence, of course, is that members of the licensing board, who are also councillors in that local authority, are being asked to give an independent and impartial decision where one of the parties, as it were, is the very authority of which they are all members. In our view it is impossible to say that such a situation satisfies the objective test required by article 6 of the Convention and as explained in the case of Findlay. ¹⁰

14. But that is not all. Section 16(1) of the 1976 Act also provides that the chief constable, and the fire authority for the area in which the premises are situated, are to be competent objectors. But local authorities exercise at least a supervisory role in relation to police forces and, through the Police Board, are responsible for the appointment of chief constables. It is by no means unlikely that at least some members of a licensing board will also be members of the relevant Police Board. Local authorities also exercise similar functions in relation to fire authorities. Furthermore, it is also quite likely that some members of a licensing board may have previously been involved in relation to premises which are the subject of a licensing application, possibly, for example, at the planning stage. All of the foregoing simply confirms our view that licensing boards, as presently constituted, and having regard to the present structure of licensing law, do not satisfy the objective test for being independent and impartial tribunals for the purposes of article 6 of the ECHR.

15. The foregoing considerations inevitably led us to consider whether we should recommend replacing licensing boards as presently constituted by some other form of tribunal which would be compatible with the requirements of article 6. However, almost without exception our consultees have supported the retention of licensing boards largely on the grounds that licensing decisions at first instance are best left in the hands of those who are to be presumed to have a wide local knowledge and understanding, and who are furthermore accountable to the electorate through the ballot box.

16. We have a great deal of sympathy for that view; and certainly we are unaware of any general dissatisfaction with the way in which licensing boards have gone about their task during the last 30 years or so. Accordingly, we have examined the ECHR jurisprudence to see if it might provide a solution to the problem arising from the fact that, as we have explained, licensing boards as presently constituted are not compatible with the requirements of article 6 of the Convention. A starting point for our consideration of this is a series of cases decided by the European Court which appear to suggest that any shortcoming in a court or tribunal of first instance may in effect be overlooked provided that there is an adequate right of appeal to a court which manifestly does satisfy the requirements of article 6. The leading authority for this approach is Albert & Le Compte v. Belgium¹¹ where it was stated (at para. 29):

"Nonetheless, in such circumstances the Convention calls at least for one of the two following systems: either the jurisdictional organs themselves comply with the requirements of article 6(1), or they do not so comply but are subject to subsequent control by a judicial body which has full jurisdiction and does provide the guarantees of article 6(1)."

Right of appeal

17. Given that the 1976 Act provides a right of appeal to the sheriff in certain circumstances, ¹² and given that judicial review may be available in cases where there is no statutory right of appeal, it might be thought that that is sufficient to "provide the guarantees of article 6(1)". However, the words "full jurisdiction", as used in the passage quoted above, have caused some difficulty because they have at times been interpreted as meaning that the appellate court should be able to review a tribunal's decisions on its merits, and in effect to hold a rehearing of the case on all its facts and circumstances. But that is not what is available either under judicial review procedure or under the appeal provisions of the 1976 Act. In terms of section 39(4) of that Act a sheriff may uphold an appeal -

"only if he considers that the licensing board in arriving at its decision -

(a) erred in law;
(b) based its decision on any incorrect material fact;
(c) acted contrary to natural justice; or
(d) exercised its discretion in an unreasonable manner."

It is clear that the foregoing provisions do not permit a sheriff to carry out a full rehearing of an application on its merits. ¹³ Moreover, and in any event, in terms of the 1976 Act not every decision taken by a licensing board is subject to an appeal to the sheriff. In such instances a board's decision may be reviewable by the process of judicial review, but the availability of such a remedy may not always be clear; and in any event judicial review does not involve the rehearing of an application on its merits. ¹⁴

18. In fact, however, the perceived effect and meaning of the words "full jurisdiction" as used by the ECtHR in Albert & Le Compte have subsequently been considered by that Court itself ¹⁵, and most recently by the House of Lords in R (Alconbury) v. Secretary of State. ¹⁶
The decision in the Alconbury case has also been applied by an Extra Division of the Court of Session in the case of County Properties Ltd v. The Scottish Ministers. ¹⁷

19. Both the Alconbury case and the Scottish County Properties case were cases under planning law and practice. However, we are of the view that the opinions which were expressed there are of great relevance in the context of licensing law and practice and of the appeal system which is available in that context. In order to understand the significance of the foregoing cases it will be helpful to begin by referring to the case of Bryan v. United Kingdom¹⁸ which was distinguished both by the Divisional Court in Alconbury and by the Lord Ordinary at first instance in County Properties.

20. Bryan was also a case arising out of planning procedures, and the question before the European Court was whether an appeal to the High Court in England provided the necessary guarantees required by article 6(1) given that that Court could not rehear the original complaints and could not substitute its own decision for that of the Inspector. The European Court noted however that, although the appeal to the High Court was characterised as one on points of law, that did not exclude consideration of matters of fact in that consideration could be given to whether the Inspector had taken account of irrelevant considerations, or whether the evidence relied on had not been capable of supporting a finding in fact, or whether the inference drawn from the facts was irrational. ¹⁹ The Court went on to say (at para. 47):

"Such an approach by an appeal tribunal on questions of fact can reasonably be expected in specialised areas of law such as the one at issue, particularly where the facts have already been established in the course of a quasi-judicial procedure governed by many of the safeguards required by article 6(1). It is also frequently a feature in the systems of judicial control of administrative decisions found throughout the Council of Europe Member States. Indeed, in the instant case, the subject matter of the contested decision by the Inspector was a typical example of the exercise of discretionary judgment in the regulation of citizens' conduct in the sphere of town and country planning."

It may be noted at this point that the considerations which were founded on by the ECtHR in Bryan as entitling the High Court to take adequate account of matters of fact in the course of an appeal are not at first sight significantly different from the matters which may be taken into account by a sheriff by virtue of section 39(4) of the 1976 Act. ²⁰

21. The foregoing matters were carefully considered by the House of Lords in the Alconbury case, a case in which the Lord Advocate intervened in support of the Secretary of State. In that case their Lordships clearly recognised that the reference in Albert & Le Compte²¹ to a "judicial body that has full jurisdiction" had led to confusion in the past. Thus, Lord Hoffman said that those words had been misunderstood as amounting to authority that:

".... a policy decision affecting civil rights by an administrator who does not comply with article 6(1) has to be reviewable on its merits by an independent and impartial tribunal .... But subsequent European authority shows that 'full jurisdiction' does not mean full decision-making power. It means full jurisdiction to deal with the case as the nature of the decision requires." ²²

A somewhat similar observation was made by Lord Clyde:

"At first sight the expression ['judicial body that has full jurisdiction'] might seem to require in every case an exhaustive and comprehensive review of the decision including a thorough review of the facts as well as the law. If that were so a remedy by law of a statutory appeal or an application to the supervisory jurisdiction of the courts in judicial review would be inadequate. But it is evident that this is not a correct understanding of the expression. Full jurisdiction means a full jurisdiction in the context of the case ..... The nature and circumstances of the case have accordingly to be considered before one can determine what may comprise 'full jurisdiction'." ²³

22. From the foregoing starting point it is clear that their Lordships all attached weight to the fact that, at least in the context of planning law and practice, any rights which are being determined are not absolute but involve a balancing of private rights and public interest. Thus, for example, Lord Clyde said:

"Moreover the right to use land is not an absolute right. It is under the domestic law subject to the controls of the planning regime, whereby permission may be required for the carrying out of a development or for the making of some change of use. Planning permission is not in general a matter of right." ²⁴

Partly by reference to such considerations Lord Hutton said this:

"Because it is a feature of the judicial systems of the democratic members states of the Council of Europe that a court does not decide whether an administrative decision was well founded in substance, the Commission and the European Court have held that article 6(1) does not guarantee a right to a full review by a court of the merits of every administrative decision affecting private rights, but that there is compliance with the article where there is a right to judicial review of such a decision of the nature exercised by the High Court in England." ²⁵

23. All of their Lordships in Alconbury attached great weight to the different considerations which may apply in the case of, on the one hand, decisions which are truly administrative in character and, on the other hand, decisions which are truly judicial in character. Planning decisions are of the former kind and in what Lord Clyde called the "planning regime" it is therefore appropriate to allow a considerable discretion to those who exercise decision-making powers at first instance and to have a relatively limited judicial review procedure thereafter. This approach is encapsulated in a passage in the speech by Lord Hoffman where he says:

"In this area [of planning judgment] the principle .... does not require that the court should be able to substitute its decision for that of the administrative authority. Such a requirement would in my opinion not only be contrary to the jurisprudence of the European Court of Human Rights but would also be profoundly undemocratic. The 1998 Act was no doubt intended to strengthen the rule of law but not to inaugurate the rule of lawyers." ²⁶

24. Very shortly before the Alconbury case came before the House of Lords the European Court had a further opportunity to consider the form of appellate review which would be sufficient, in the context of planning law and practice, to satisfy the requirements of article 6(1) of the ECHR. In that case, ²⁷ which was considered by the House in Alconbury, the Court said:

"The Court recalls that in the case of Bryan²⁸ it held that in the specialised area of town planning law full review of the facts may not be required by Article 6 of the Convention. It finds in this case that the scope of review of the High Court, which was available to the applicant after a public procedure before an inspector, was sufficient in this case to comply with Article 6(1). It enabled a decision to be challenged on the basis that it was perverse, irrational, had no basis on the evidence or had been made with reference to irrelevant factors or without regard to relevant factors. This may be regarded as affording adequate judicial control of the administrative decisions in issue." ²⁹

In our opinion the foregoing passage is entirely consistent with the reasoning given by their Lordships in Alconbury.

25. We have already mentioned that the decision of the House of Lords in the Alconbury case was subsequently followed by an Extra Division of the Court of Session in Scotland. ³⁰ Two points are to be noted in the opinion of the Court in that case. The first is the statement that the decision in Alconbury did not simply turn on the facts of that case:

"We are satisfied that what was said in the Alconbury appeals did not relate merely to the specific facts and procedures which were under scrutiny in those cases. The crucial questions are issues of principle." ³¹

The second point to be noted in the opinion of the Court in the County Properties case is that, even where adequate review procedures are in place, that will not absolve a tribunal of first instance from the need to comply with the requirements of article 6(1) so far as possible and practicable:

"We would add that, while the reporter may not be, on his own, an independent and impartial tribunal' for the purposes of art. 6(1), it is important to bear in mind that he is bound to conduct the inquiry in accordance with statutory rules designed to give all parties to the inquiry fair notice of matters upon which they may wish to be heard, and a full opportunity to present to the reporter any relevant evidence or submissions. Moreover, the written report to be prepared by the reporter will require to contain findings in fact, a summary of the evidence upon which such findings in fact are based, details of the reporter's assessment of those findings in fact and of the planning issues involved and reasons for the reporter's recommendations to the Scottish Ministers".

Our view and our approach

26. Having considered all of the foregoing as best we can our conclusion is that, notwithstanding that, for the reasons which we have given, licensing boards do not at present satisfy the test of being independent and impartial tribunals within the meaning of article 6(1) of the ECHR, that shortcoming is not fatal provided that there is in existence an adequate form of review by a judicial body which does meet the requirements of the article. We also conclude, however, that in the case of decisions which are largely, or wholly, administrative in character (and we see licensing board decisions as being of that kind), it is not essential that a review or appeal procedure should allow for an application to be reheard on its facts and on its merits. A considerable measure of discretion must be allowed to the tribunal of first instance in such cases, and it will suffice, for the purposes of compliance with article 6(1), if an appellate court, as well as considering possible errors of law, can consider the facts in the sense of deciding whether the tribunal has taken account of irrelevant considerations, whether the evidence relied on by the tribunal was not capable of supporting a finding in fact, and whether the inference drawn from the facts was irrational. In our opinion the foregoing is the effect of the various cases to which we have made reference including in particular the European Court cases of Bryan v. United Kingdom and Chapman v. United Kingdom, the House of Lords decision in the Alconbury case, and the decision by the Extra Division of the Court of Session in the County Properties case.

27. We have also concluded on the basis of the foregoing that, although all of the relevant case law relates to planning cases, the considerations which weighed with the various Courts in those cases - the administrative or quasi-administrative nature of the decisions, the need to achieve a balance between private rights which are not absolute and the wider public interest, and so on - are of a kind which are equally applicable in the context of liquor licensing law and practice. For those reasons we consider that the conclusions reached by the Courts can properly guide us in our deliberations.

28. On that basis we are of the view that the current review provisions in relation to licensing decisions (including judicial review) are not fundamentally flawed, and go a long way to meeting the requirements which are set out in the ECHR jurisprudence. For example, we have already drawn attention to the fact that the provisions of section 39(4) of the 1976 Act (which set out the grounds on which a sheriff may allow an appeal) are not significantly different from the grounds which were desiderated by the European Court in Bryan. In all the circumstances we have come to the conclusion, on the basis of our analysis of the relevant law, that it is not necessary for us either to consider a wholly different constitution for the membership of licensing boards or to propose a radically different appeal procedure from that which is presently in place.

29. From all of the foregoing it follows, in our opinion, that the present arrangements relative to licensing boards and to appeals from their decisions, should be immune from challenge under the ECHR even if they were to remain unchanged. However, while preparing this report we have been mindful of the fact that in the County Properties case ³² the Court stressed that, where a tribunal of first instance is not itself an independent and impartial tribunal, it must nonetheless conduct its business in a way which is, so far as possible, in accordance with the requirements of the Convention notwithstanding that any incompatability on the part of the tribunal will be cured by the availability of appropriate appeal procedures. In this report, accordingly, we have made a number of recommendations which would in our view significantly reduce the extent to which a licensing board at present falls short of being an independent and impartial tribunal as required by article 6(1) of the Convention. Those recommendations include:

• Retention of the present disqualifications for acting as a member of a licensing board.
• A requirement that all licensing board members should be appropriately trained, with that training including instruction in good and acceptable judicial behaviour.
• A simplification of procedures, designed in part to ensure that all with a legitimate interest to do so can be heard in proceedings before licensing boards.
• Removal of a local authority's statutory entitlement to object to an application for a licence.
• Proposals to remove the need for a local authority to apply for a licence in its own name.
• Speedier and more effective appeal procedures, including the availability of an appeal against all decisions by licensing boards other than purely procedural ones.

It is our view that the foregoing changes, if implemented, will help to ensure that any new legislation, following on our report, will not be incompatible with any of the Convention rights, and will not be outside the legislative competence of the Scottish Parliament. ³³

(2) The scope of an appeal

30. Having said that, however, there remains, we believe, a problem in relation to the scope of the appeal which is presently allowed in licensing cases, in particular in relation to the provision in section 39(4)(d) which permits a sheriff to uphold an appeal if satisfied that the licensing board "exercised its discretion in an unreasonable manner". That part of the subsection has been considered in a number of cases, and in one which is generally regarded as a leading authority ³⁴ Lord Allanbridge, who delivered the opinion of the Court, said: ³⁵

"Although he does not say so in terms, it is clear that the sheriff purported to find the fourth ground (d) established in this case and therefore allowed the appeal. We are of the view that in considering this matter the sheriff could only interfere with the decision of the board if he concluded that the course followed by the board was one that no reasonable board, having taken into account all of the relevant circumstances, could have adopted. This is the test which the court applies in deciding whether it is entitled to interfere with the decision made by a judge in the exercise of his discretion. ..... Counsel for the appellants referred to the test of 'irrationality' as outlined in Council of Civil Service Unions v. Minister for Civil Service [1985] AC 374, but that case was concerned with judicial review and we consider it to be inappropriate where the question to be examined is whether the licensing board exercised its discretion in an unreasonable manner in terms of s. 39(4)(d) of the Act."

31. In approving the foregoing test of what is unreasonable it may be, although this is not mentioned explicitly, that the Court had in mind what are often referred to as the " Wednesbury principles". Those principles were enunciated by Lord Greene M.R. in the case of Associated Provincial Picture Houses Limited v. Wednesbury Corporation³⁶ where he said: ³⁷

"The court is entitled to investigate the action of the local authority with a view to seeing whether they have taken into account matters which they ought not to take into account, or, conversely, have refused to take into account or neglected to take into account matters which they ought to take into account. Once that question is answered in favour of the local authority, it may be still possible to say that, although the local authority have kept within the four corners of the matters which they ought to consider, they have nevertheless come to a conclusion so unreasonable that no reasonable authority could ever have come to it. In such a case, again, I think that the court can interfere."

32. We venture to think that the draftsman of the 1976 Act may well have had the " Wednesbury principles" in mind when he came to frame the appeal provisions in section 39; and indeed similar, or even identical, appeal provisions are to be found in a number of statutes, including the Civic Government (Scotland) Act 1982. ³⁸ The appropriateness of the " Wednesbury principles" has been questioned in an appeal under that Act, ³⁹ but it does not appear to have been suggested that they are wholly inapplicable to what is head (d) of the grounds of appeal under both the 1976 Act and the 1982 Act. Likewise, it seems clear that those principles are also seen as being, at least in part, applicable in proceedings for judicial review. ⁴⁰

33. However, the approval which has been accorded to the " Wednesbury principles" for more than half a century has recently come under close scrutiny in the House of Lords, at least in respect of cases where Convention rights are involved. ⁴¹ The Daly case involved an application for judicial review of an instruction by the Secretary of State to prison governors whereby cell searches, including an examination of correspondence between prisoners and their solicitors, were to be carried out in the absence of the prisoners themselves. On appeal to the House of Lords it was held that the searches were unlawful on common law principles and, additionally, that they were in breach of article 8(1) of the ECHR. In their speeches two of their Lordships (Lord Steyn and Lord Cooke of Thorndon) considered the continuing applicability of the " Wednesbury principles". This was not dealt with explicitly by the other members of the House, but they all expressed themselves as being in agreement with the views expressed by Lord Steyn.

34. Lord Steyn began ⁴² by considering a passage in the opinion of Lord Phillips of Worth Matravers M.R. in R ( Mahmood) v. Secretary of State for the Home Department⁴³ where he said that "when anxiously scrutinising an executive decision that interferes with human rights, the court will ask the question, applying an objective test, whether the decision-maker could reasonably have concluded that the interference was necessary to achieve one or more of the legitimate aims recognised by the Convention". Lord Steyn then continued:

"The explanation of the Master of the Rolls in the first sentence of the cited passage requires clarification. It is couched in language reminiscent of the traditional Wednesbury ground of review, and in particular the adaptation of that test in terms of heightened scrutiny in cases involving fundamental rights as formulated in R v. Ministry of Defence, ex p. Smith [1996] QB 517, at 554, per Sir Thomas Bingham M.R. There is a material difference between the Wednesbury and Smith grounds of review and the approach of proportionality applicable in respect of review where Convention rights are at stake."

35. A little later in his speech ⁴⁴ Lord Steyn sought to explain that difference in three ways:

"First, the doctrine of proportionality may require the reviewing court to assess the balance which the decision maker has struck, not merely whether it is within the range of rational or reasonable decisions. Secondly, the proportionality test may go further than the traditional grounds of review inasmuch as it may require attention to be directed to the relative weight accorded to interests and considerations. Thirdly, even the heightened scrutiny test developed in [ Smith] is not necessarily appropriate to the protection of human rights."

Finally, however, Lord Steyn notes that this "does not mean that there has been a shift to merits review". ⁴⁵

36. Similar views were expressed by Lord Cooke of Thorndon in his speech when he said: ⁴⁶

"And I think that the day will come when it will be more widely recognised that [the Wednesbury case] was an unfortunately retrogressive decision in English administrative law, in so far as it suggested that there are degrees of unreasonableness and that only a very extreme degree can bring an administrative decision within the legitimate scope of judicial invalidation."

This point was put even more robustly by Lord Justice Sedley, in a paper presented to a judicial seminar in Edinburgh, ⁴⁷ when, having referred to the decision of the House of Lords in Daly, he said:

"With this step the dead hand of Wednesbury, a decision which I have characterised elsewhere as a snore in the long sleep of public law during the first part of the last century, is finally lifted. And with its lifting comes the second major shift: a shift away from the hands-off concept of decisions which are inviolable so long as a public servant in his right mind could have taken them and towards a scrutiny of the components of such decisions and their relationship to one another."

The significance of the Daly case for licensing law

37. In our opinion the decision by the House of Lords in the Daly case is significant in the context of licensing law for a number of reasons. First, although that case was not concerned with planning or licensing law, it seems clear that what was said in relation to the " Wednesbury principles" is of general application. Second, while it is, in our view, likely that Scottish Judges will take note of what was said in that case when reviewing administrative decisions in cases affecting Convention rights, that will be possible only in judicial review proceedings where the approach of the court is not constrained by statutory appeal provisions. By contrast, licensing appeals to the sheriff are constrained by the words used in section 39 of the 1976 Act, and we tend to the view that in that situation the sheriff's approach to reasonableness considerations will still require, at least for the present, to follow the direction given in the case of Latif⁴⁸ since the decision in that case is of course binding on sheriffs until reversed or overruled.

38. We doubt whether anyone is likely to disagree with the view that it is undesirable that decisions by a licensing board should be open to review on significantly different grounds depending on whether that review is undertaken by judicial review or by a statutory appeal. Indeed, until now the need for judicial review in Scottish licensing cases has largely arisen not because that form of review can invoke wider or different grounds than those available under statutory appeals, but rather because the 1976 Act restricts the number of decisions by licensing boards which may be appealed to the sheriff. ⁴⁹ That reason for invoking the procedure of judicial review will of course disappear if effect is given to our recommendation for a significant widening of the availability of statutory appeal. However, since decisions by licensing boards may, we believe, increasingly impinge on Convention rights, and since we are bound to take note of what was said by the House of Lords in Daly⁵⁰ regarding the need for a proportionality test rather than a Wednesbury test in such cases, we have come to the conclusion that a way must be found to modify the reasonableness ground of appeal which is presently to be found in section 39(4)(d) of the 1976 Act. We have considered that in more detail in Chapter 8.

Acts of public authorities

39. There is one final matter which we should mention briefly. Section 6(1) of the Human Rights Act 1998 provides: "It is unlawful for a public authority to act in a way which is incompatible with a Convention right"; and subsection (3)(a) of section 6 defines 'public authority' as including "a court or tribunal". A licensing board is no doubt a "tribunal" for the foregoing purpose. That being so, it has been suggested to us that it is conceivable that a decision by a licensing board could be called in question by reference to section 6(1) as distinct from the articles of the ECHR itself, and that in that event the Strasbourg jurisprudence relative to the availability of an appeal to a court which is fully compliant with the Convention might be of no consequence. We venture to doubt whether any such challenge would be likely to succeed. We doubt whether a provision in the Human Rights Act can have, as it were, a life of its own distinct from the Convention and the jurisprudence of the European Court of Human Rights. In any event, we consider that for the reasons which we have mentioned earlier ⁵¹ any incompatibility on the part of licensing boards is likely to diminish greatly if effect were to be given to the recommendations in this report. We have not, therefore, found it necessary to examine this matter further: but we consider it appropriate to mention it briefly so that it should not be completely overlooked.

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