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The Nicholson Committee: Review of Liquor Licensing Law in Scotland
Footnotes
Chapter 1
1 Report of the Departmental Committee on Scottish Licensing Law, Cmnd. 5354 (hereafter referred to as "the Clayson report").
2 Figures based on those given in the Clayson report and Scottish Executive Liquor Licensing Statistics 2002.
3 Restricted hotel licences were introduced for the first time by the Licensing (Scotland) Act 1962.
4 Restaurant licences were introduced for the first time by the Licensing (Scotland) Act 1962.
5 Refreshment and entertainment licences were introduced by the 1976 Act
6 Statistical Handbook 2001.
7 Scottish Executive Liquor Licensing Statistics 2002.
8 See the Clayson report, para. 9.73.
9 Scottish Executive Liquor Licensing Statistics 2002.
10 Issued in January 2002.
11 See para. 5.5, below.
12 A somewhat similar view of the usefulness of international comparisons was taken by the Clayson Committee: see report, paras. 1.14 to 1.16.
13 Time for Reform: White Paper issued by the Home Office in April 2000.
14 See paras. 4.27 and 7.3, below.
Chapter 2
1 Driving under the influence of alcohol, Stewart K and Sweedler B, in Alcohol: Minimising the Harm, Ed. Plant, M; Single, E; Stockwell, T (1997).
2 Registrar General (Scotland).
3 (SMR 1) Information Services Division, NHS Scotland.
4 1998.
5 There are some limited exceptions to this: see, for example, 1976 Act, s. 68(4). In our view, current prohibitions and exceptions are confused, and confusing, and we later make recommendations for improvement: see chapter 13 below.
6 The European School Survey Project on Alcohol and Other Drugs (ESPAD) 1999.
7 Scottish Schools Adolescent Lifestyle and Substance Use Survey (SALSUS), Interim Report 2002.
8 Tackling Alcohol Related Crime, Disorder and Nuisance, HMSO (2000).
9 Crime Reduction Toolkits: Alcohol and Crime, HMSO (2001).
10 This does not necessarily mean that the violence actually takes place in the bars in question. On some occasions it does, but more frequently it takes place elsewhere.
11 Clayson report, Introduction, para. 20.
12 The Scottish Health Survey 1998 estimates that, at the time when the survey was carried out, the mean weekly consumption of alcohol was 19.1 units for men and 6.5 units for women. The recommended safe consumption is a maximum of 21 units per week for men and 14 units per week for women.
13 1976 Act, s. 119(3). The 1976 Act makes no provision for the extension of permitted trading hours in the case of off-sale licences.
14 Argyll Arms (McManus) Ltd. v. Lorn etc. Divisional Licensing Board 1988 SCLR 241, at 243.
Chapter 3
1 1976 Act, s. 1.
2 See para.3.16.
3 1976 Act, s. 1(4), (5).
4 Ibid. s. 1(5A).
5 We deal with them later: see para. 4.21 et seq.
6 See chapter 10 below.
7 See para. 3.15 below.
8 s. 2.
9 s. 19.
10 1976 Act, s. 6.
11 Ibid. s. 1.
12 s. 4.
13 Para. 3.3.
14 Para. 6.38 et seq.
Chapter 4
1 1976 Act, Sched.1.
2 Time for Reform: White Paper issued by the Home Office in April 2000.
3 1976 Act, s. 64.
4 Ibid., s. 17(1)
5 See para. 6.31 et seq.
6 See para. 7.6 et seq.
7 See our proposals in relation to licensing hours in chapter 5 below.
8 See chapter 13.
9 We recommend the retention of a procedure similar to that which is presently found in s. 26 of the 1976 Act: see para. 6.12 below.
10 1976 Act, s. 30(3).
11 See para. 4.25.
12 See chapter 7.
13 1976 Act, s. 30(4)
14 See chapter 9.
15 See para. 6.8.
16 See our proposed licensing principles and objectives: para. 2.22 and recommendation 1 above.
17 See para. 4.21 et seq.
18 Chapter 12.
19 See chapter 13 below.
20 On policy statements, see para. 6.38 et seq.
21 Chapter 5.
22 Para. 4.19 et seq.
23 In terms of s. 23(5) of the 1976 Act a licensing board is obliged to consult the fire authority before granting or making the provisional grant of a new licence.
24 A very serious fire in the centre of Edinburgh in December 2002, in an area containing many clubs and public houses, vididly illustrates the risks which may arise when large numbers of people are in a building or locality at the same time. Thankfully, there were no casualties on that occasion.
25 1971 Act, s. 1(2)(e).
26 1976 Act, s. 23.
27 Report, para. 8.26.
28 That could most conveniently be done in the front of 'observations': see para. 6.25 below.
29 See para. 4.15 above.
30 Para. 4.8 et seq. above.
31 Para. 3.7.
32 See para. 3.8.
Chapter 5
1 1976 Act, s. 119.
2 Ibid. s. 64.
3 See paras. 2.12 et seq. above.
4 1976 Act, s. 53(1)(b).
5 See para. 6.38 below.
Chapter 6
1 See Appendix C, paras. 1 to 3.
2 Schedule 1.
3 The following parts of this chapter deal with general issues of procedure. Some matters of more specific detail are dealt with later in Chapter 14.
4 s. 10(1).
5 See also para. 14.52 below.
6 So far as this possibility is concerned we recognise that a local authority would be required to pay a proportion of the amount of any transaction to the credit card company. However, that could be recognised by providing that any applicant who wished to pay a fee in that way would have to pay an appropriately enhanced sum.
7 1976 Act, s. 16(2)(b).
8 Ibid. s. 16(3).
9 See chapter 7 below.
10 See para. 4.7 above.
11 McDonald v. Chambers 1956 SC 542. That case was concerned with the interpretation of an identical provision in the Licensing (Scotland) Act 1903.
12 We examine this in greater detail in Appendix C, below.
13 Cf. paras. 4.19, 4.20 above.
14 Section 16A was inserted in the 1976 Act by s. 53 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990. It is possible that this was done in order to negate a decision in Centralbite v. Kincardine & Deeside District Licensing Board 1990 SLT 231 where the Lord Ordinary held that a chief constable had no power to make observations as distinct from a formal objection. However, the report of the Parliamentary debate on the Bill which became the 1990 Act does not offer any explanation for giving chief constables this privilege.
15 See para. 6.23.
16 See para. 4.16 above.
17 Report, para. 8.33.
18 See para. 6.19 above.
19 See chapter 4 above.
20 For that reason one of our members, Mr Gordon Millar, has reservations regarding recommendation 35 which follows.
21 1976 Act, s. 17(1).
22 It is not clear that this difficulty was resolved by the House of Lords in Caledonian Nightclubs Ltd v. City of Glasgow District Licensing Board 1996 SLT 451.
23 Paras. 4.7 et seq. above.
24 See para.6,38.
25 See also para. 14.22 below.
26 See para. 3.16 et seq above.
27 Chapter 10.
Chapter 7
1 Para. 6.30 above.
2 Section 5, which refers to "an authorised officer of a licensing authority".
3 As we have mentioned earlier, we have been provided with a substantial amount of information about the liquor licensing system in British Columbia as a result of a visit there by one of our members.
4 Though there should be compensating savings under the general scheme which we are recommending. We consider the matter of fees in chapter 8 below.
5 One member of the committee, Mr Gordon Millar, has expressed some anxiety about the creation of yet another official with an entitlement to enter and to inspect licensed premises. He has suggested that effective liaison between all such officials is a subject which might with advantage be considered by the National Licensing Forum. All other members of the committee agree with that suggestion.
6 See para. 6.10 above.
7 Under the proposals which follow in this chapter there will be no continuing need for what is presently in s. 65 of the 1976 Act. However, we consider that there will be advantage in retaining provision along the lines of what is presently in s. 66; and we deal with that in more detail later: see para. 14.34 below.
8 1976 Act, s. 31(6).
9 Ibid. s. 31(1).
10 See chapter 11 below.
11 See para. 4.7 above.
12 Para. 14.5 below.
13 Para. 7.21 below.
Chapter 8
1 Para. 7.5 above; but see para. 8.4 below where it is suggested that our general proposals are likely to bring about some compensating savings.
2 The Gaming Act (Variation of Fees) (Scotland) Order 2002 (SSI 2002/281).
3 See chapter 10 below.
Chapter 9
1 1976 Act, s. 117(2).
2 Ibid. s. 117(1).
3 1976 Act, s. 64(5).
4 Clayson report, para. 13.26 (a recommendation which was not adopted in the 1976 Act).
5 Ibid. para. 13.19.
6 Ibid. para. 13.03.
Chapter 10
1 See our review of this in chapter 2 above.
2 See chapter 13 below.
3 See our recommendation on this at para. 6.40 above.
4 See para. 3.16 et seq. above.
Chapter 11
1 Act of Sederunt (Summary Applications, Statutory Applications and Appeals etc. Rules) 1999, Part VII.
2 1976 Act, s. 39(5).
3 Ibid. s. 39(2A).
4 Act of Sederunt, supra, rule 3.7.2(a).
5 1976 Act, s. 39(6).
6 Ibid. s. 39(4).
7 Ibid. s. 39(8)
8 Clayson report, paras. 6.09, 6.17.
9 See para. 7.14 above.
10 s. 18.
11 This appears to be the accepted construction of rule 3.7.2(a) of the Act of Sederunt of 1999: see fn. 1 above.
12 [1948] 1 KB 223
13 1976 Act, s. 39(6).
Chapter 12
1 See para. 2.7.
2 See, for example, Point of Sale Promotions: A Good Practice Guide for Pub Owners and Licensees, published by the British Beer & Pub Association.
3 See para. 7.11 et seq. above.
Chapter 13
1 See Carter v. Broadbeer [1975] 3 All ER 158.
2 Clayson report, para. 11.04.
3 Ibid, para. 11.10.
4 Ibid.
5 Law Reform (Miscellaneous Provisions) (Scotland) Act 1990, ss. 49, 50.
6 See Agnew of Lochnaw and Baillie, Licensing (Scotland) Act 1976 (5th ed.), E1.3.9.
7 Chapter 10, above.
8 We deal with this more fully later in this chapter: para. 13.12 et seq.
9 Report, para. 11.23.
10 Para. 12.9 above.
11 1976 Act, s. 71.
Chapter 14
1 Para. 7.17 above.
2 1976 Act, s. 119(3): but see s. 54(3)(f) which, in the case of on-licensed premises, excludes from the restrictions of permitted hours the ordering or the despatch of alcoholic liquor to be consumed off the premises. In our view this demonstrates the unsatisfactory nature of the present distinction between permitted hours for on-licensed premises and trading hours for off-sale licensed premises.
3 See para. 4.19 et seq. above.
4 Report, paras. 15.31, 15.32.
5 1976 Act, s. 40.
6 Clayson report, paras 15.09, 15.10.
7 Ibid.
8 1976 Act, s. 65.
9 Report, para. 9.72.
10 Para. 14.34; recommendation 76.
11 See para. 14.28, and recommendation 73, above.
12 Report, para. 15.26.
13 Agnew and Baillie, Licensing (Scotland) Act 1976, 5th ed., E1.2.425.
14 See also para. 6.6 above.
15 See paras. 14.28 and 14.44 above.
Appendix C
1 Catscratch Ltd. v. City of Glasgow Licensing Board (No. 2) 2001 SCLR 817, per Lord Johnston at 825.
2 Tre Trektorer Aktiebolag v. Sweden (1989) 13 EHRR 309.
3 See, for example, Ringeisen v. Austria (1971) 1 EHRR 455; Konig v. Federal Republic of Germany (1978) 2 EHRR 170; Oerlemans v. Netherlands (1991) 15 EHRR 561; Zumtobel v. Austria (1993) 17 EHRR 116; Bryan v. United Kingdom (1996) 21 EHRR 342.
4 See fn. 2 above.
5 (1997) 24 EHRR 221, para. 73; and see Starrs v. Ruxton 2000 JC 208.
6 Licensing (Scotland) Act 1976, s.1.
7 s. 2(1).
8 s. 2(2).
9 s. 2(4).
10 It is also to be noted that a local authority may occasionally apply for a liquor licence in its own name (see para 6.2 above). That also raises the possibility of conflict with the objective test of compatibility.
11 (1983) 5 EHRR 533.
12 1976 Act, s. 39.
13 Notwithstanding the fact that, in considering an appeal, the sheriff may hear evidence by or on behalf of any party to the appeal: s. 39(5).
14 See Clyde and Edwards, Judicial Review, para. 14.03.
15 See, for example, Bryan v. United Kingdom (1996) 21 EHRR 342; X v. United Kingdom (1998) 25 EHRR CD 89.
16 [2001] 2 All ER 929.
17 2001 SLT 1125.
18 (1996) 21 EHRR 342
19 Para. 44.
20 See para. 17 above.
21 See para. 16 above.
22 Para. [87].
23 Para. [154].
24 Para. [156].
25 Para. [189].
26 Para. [129].
27 Chapman v. United Kingdom (2001) 33 EHRR 399.
28 (1996) 21 EHRR 342: see paras. 19 and 20 above.
29 Para. 124.
30 County Properties Ltd v. The Scottish Ministers 2001 SLT 1125.
31 Page 1130F.
32 See para. 25 above.
33 See para. 2 above.
34 Latif v. Motherwell District Licensing Board 1994 SLT 414.
35 Page 415C.
36 [1948] 1KB 223.
37 Pages 233, 234.
38 Sched. 1, para. 18(7).
39 Noble Organisation Limited v. Glasgow District Council (No 3) 1991 SLT 213, per Lord Morison at 217, 218.
40 Clyde and Edwards, Judicial Review, para. 14.04.
41 R (Daly) v. Home Secretary [2001] 2WLR 1622.
42 Page 1634.
43 [2001] 1WLR 840.
44 Page 1635.
45 Page 1636.
46 Pages 1636, 1637.
47 ECHR - One Year On; 18 January 2002.
48 See para. 30 above.
49 For example, a decision under s. 16 of the 1976 Act in relation to the grant, renewal or transfer of a licence may be appealed to the sheriff, but a decision under s. 64 in relation to extensions of permitted hours is not subject to an appeal of that sort, and can only be subject to judicial review.
50 See paras 33 to 36 above.
51 See para. 29 above.
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