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Off-sales in the Community
CHAPTER TWO: THE NICHOLSON PROPOSALS
2.1 This chapter sets out those key recommendations of the Nicholson Committee which have a bearing on off-sales.
2.2 In tackling the remit, we saw the Nicholson proposals as a natural place to start. We found ourselves in broad agreement with the proposed system envisaged by the Nicholson Committee and set out in its recommendations.
2.3 We also supported the Minister for Justice's statement, made during the parliamentary debate of 17 September 2003, which sought to clarify the position with regard to 24-hour drinking. We agree that 'there is little or no argument for any premises to routinely sell alcohol throughout the day and night'. The thrust of the Nicholson proposals is to allow flexibility but in a manner which suits specific local and community circumstances.
The Nicholson Proposals
The Licensing Principles
2.4 Underlying any decisions made by the licensing board would be the following licensing principles (a) the prevention of crime or disorder; (b) the promotion of public safety; (c) the prevention of public nuisance; (d) the promotion of public health; and (e) the protection of children from harm. (Rec 1) 3
Licensing Boards
2.5 The determination of a liquor licence should remain in the hands of licensing boards composed of local authority councillors (Rec 2) whose meetings should be held as and when they are required and certain classes of business should be delegated to the clerk of the licensing board (Rec 9).
Licensing Forums
2.6 Every area should have a statutory licensing forum whose members will be drawn from a variety of backgrounds with an interest in the licensing system. They will keep the licensing system under review and advise the licensing board in relation to any matters of concern other than individual current licensing applications. The board should be under a duty to have regard to any advice given and where a board decided to ignore such advice or views, it should give its reasons for doing so. (Rec 10)
The Licence
2.7 The existing system of licences should be replaced by a system consisting of a premises licence authorising the sale or supply of alcohol in the named premises, and a personal licence authorising the person named in the licence to manage and to operate licensed premises and to sell or supply alcohol without supervision. (Rec 11)
2.8 An application for a premises licence should be accompanied by an operating plan or schedule setting out in detail the nature of the operations to be conducted in the premises, and by a layout plan setting out the precise location and extent of items such as display shelving, etc. (Rec 11)
2.9 Once granted a premises licence should continue in force for an unlimited period without renewal unless it ceased to be used for the purpose for which granted. It would require variation in certain circumstances and could also be varied, suspended or revoked in the event of a complaint being upheld by a licensing board. (Rec 11)
2.10 A personal licence should be granted if the applicant is over 18, possesses a licensing qualification and has not forfeited a personal licence in the previous 5 years nor been convicted of any relevant offence. (Rec 11)
2.11 Legislation should authorise the making of regulations setting out standard conditions which must be attached to all premises licences. It should be open to the licensing board to modify or add to the terms set out in the operating plan. Such decisions will be subject to appeal. (Rec 12)
2.12 The present system of statutory permitted licensing hours should be abolished and replaced by a system under which there will be no statutorily prohibited hours; and actual opening hours will be those authorised, upon application, by a licensing board who must have regard to their general declared policy and the need to promote the licensing principles. (Rec 20) 4
2.13 Procedural rules relative to proceedings before licensing boards should contain prescribed forms to be used by applicants and objectors, with those forms being standard in all licensing board areas. (Rec 23)
2.14 Lists of applications published in local newspapers should group the premises to which the applications relate by postcode number. (Rec 27)
Objectors & Observers
2.15 Objectors to a licensing application should no longer be required themselves to send their objection to the applicant. This should be undertaken by the licensing board. (Rec 28)
2.16 The list of statutory objectors should be confined to those individuals or organisations who are not normally involved in the licensing process but who may wish to object to the grant of a particular application. There should be a separate list of those with a continuing interest in the licensing process who may submit observations or representations regarding an application or applications. (Rec 31)
2.17 The following should be statutorily entitled to object to the grant of an application for a premises licence - (a) any persons who own, are tenants of, or reside in property situated in or near the neighbourhood of the premises to which an application relates, together with any body or organisation which represents, or bears to represent, people of the foregoing category; (b) a community council for the area in which the premises are situated; and (c) any body representing an established religion where that body owns or occupies property in or near the neighbourhood of the premises to which the application relates. (Rec 32)
2.18 The following should be entitled to submit observations or representations to a licensing board in respect of any application - (a) the chief constable; (b) the fire authority; and (c) any official of the local authority who, by reason of their office, has an interest in any aspect of an application. (Rec 34)
2.19 Even in the absence of objections or formal observations or representations a licensing board should be obliged to consider an application for a premises licence on its merits; and, if the board concludes that there are grounds for refusing the application, it should be entitled to take that course. (Rec 35)
2.20 There should be a general ground for refusing to grant a premises licence, namely that the operation of the premises for the sale or supply of alcoholic liquor would undermine the promotion of the licensing principles. The following should be grounds for refusal, namely (a) that the premises to which an application relates are not suitable or convenient for the sale of alcoholic liquor having regard to their location, their character and condition, the nature and extent of the proposed use of the premises, and the persons likely to resort to the premises; and (b) that, having regard to the type, number, size and capacity of licensed premises in the locality at the time when the application is considered, the grant of the application would be likely to undermine the promotion of the licensing principles. (Rec 36)
Licensing Board Policy
2.21 Licensing boards should be under a statutory duty to issue policy statements which give a broad indication of the policy which is likely to be adopted in relation to the operation of the licensing system within their respective areas. (Rec 37)
Guidance from Scottish Ministers
2.22 Provision should be made to enable Scottish Ministers to issue and revise guidance to licensing boards on the discharge of their functions; and licensing boards should have regard to such guidance when formulating or revising their own policy statements. (Rec 38)
Liquor Licensing Standards Officers
2.23 Licensing boards should employ persons to be known as Liquor Licensing Standards Officers whose functions will be to supervise and monitor the operation of the licensing system in a licensing board area. Those officers should have a statutory right of entry to all licensed premises. The main functions of liquor licensing standards officers should be to co-operate with license holders in order to assist compliance with terms and conditions attached to a licence and to report to the licensing board any persistent or serious cases of non-compliance. (Rec 39)
2.24 A procedure should be devised to enable licensing boards to hold a hearing for consideration of any complaint brought to their notice by a liquor licensing standards officer or by any person entitled to make observations or representations in respect of, or to object to, an application for a licence. (Rec 40)
Licensing Board Sanctions
2.25 Licensing boards should have available to them a range of sanctions in respect of premises licences. The available sanctions should range between a formal warning or admonition to revocation of a licence. (Rec 41)
2.26 Where a sanction involving closure of licensed premises for any period, or a reduction in authorised hours, has been imposed by a licensing board, and the premises licence holder concerned has marked an appeal against that decision, he or she should be entitled to apply to the local sheriff for interim suspension of the sanction pending disposal of the appeal. However, where interim suspension is not granted, the sanction should remain effective pending the determination of any appeal. (Rec 42)
National Licensing Forum
2.27 A national licensing forum should be established. Its members, appointed by the Minister for Justice or the Minister for Health, should be drawn from a wide range of relevant backgrounds. The forum should meet periodically under the chairmanship of a Minister and its task should be to keep licensing law and practice under constant review, and to offer advice to Ministers as to ways of dealing with emerging problems or difficulties. (Rec 47)
Appeals
2.28 An appeal against a decision taken by a licensing board should in future be heard by the sheriff principal. (Rec 48) All decisions taken by a licensing board, other than purely procedural ones, should be open to an appeal to the sheriff principal. (Rec 49). An appeal to the sheriff principal should proceed by means of stated case. (Rec 50)
Irresponsible Promotional Activities
2.29 There should be a standard condition attached to all premises licences to the effect that nothing must be done in connection with the business of the premises, whether by way of promotional advertising, by way of offering discounted prices, or in any other way, which encourages excessive consumption of alcohol and which thereby prejudices, or is likely to prejudice, the licensing principles. The board, where it is satisfied after a hearing that a breach has been established, should be entitled to impose an appropriate sanction. (Rec 58)
Alcohol & the Under 18s
2.30 Current prohibitions on the sale or supply of alcohol to persons under the age of 18 should be retained. The Scottish Executive should arrange for the introduction of a national proof-of-age card which would certify that the holder is of an age when he or she is entitled to purchase or to be supplied with alcoholic liquor in licensed premises. So far as is practicable that card should be incapable of forgery and should be readily available, free of charge. Licence holders and their staff should be entitled to refuse to serve a young person who cannot produce that proof-of-age card, but as appropriate they should be entitled to rely on any other official document such as a passport. (Rec 60)
Offences
2.31 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. (Rec 61)
Police
2.32 The Licensed Premises (Exclusion of Certain Persons) Act 1980 should be amended to extend its scope to all licensed premises including in particular those which currently operate under an off-sales licence. Furthermore, consideration should be given to the introduction of a procedure whereby a licence holder 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. (Rec 64)
2.33 Any police officer should have a lawful right of entry into any premises in respect of which a premises licence is in force. (Rec 77)
2.34 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. (Rec 78) 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 as is specified in the order. (Rec 76)
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