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THE LICENSING (SCOTLAND) BILL: AN ANALYSIS OF CONSULTATION RESPONSES
EXECUTIVE SUMMARY
The consultation
1. The Licensing (Scotland) Bill: A Consultation on Liquor Licensing ('the consultation document'), published in May 2004, sought views on 46 proposals for the reform of licensing in Scotland. One hundred and twenty-three written responses were received from a wide range of stakeholders.
2. This report summarises the submissions from: licensing boards (29); DAAT and substance misuse bodies (17); alcohol sales (16); members' clubs and student organisations (15); individuals (14); health and social work bodies (6); local authorities (6); alcohol producers (5); community/religious/youth organisations (4); other statutory bodies (3); and other groups (8). As such consultations aim to give voice to key stakeholders in the field, responses generally do not constitute a representative sample. There is a reasonable balance between boards and local authorities (35) on the one hand, and those involved in the production, supply and sale of alcohol (36 including clubs). Health, advice and social work-related bodies are, proportionately, less well represented (23).
3. Between two thirds and three quarters of all those responding to the consultation commented on each individual question. Many respondents included qualifying and conditional comments, referring, for instance, to the need of local flexibility or for clarification of terms used in the consultation document.
The national policy framework
4. Overall, there was a high level of support for the national policy framework, across respondent types who commented on the questions in this section. Specifically, there was support for standard national licence conditions and for the key areas identified for such conditions. Various other areas where conditions might be imposed were suggested, such as minimum standards for training and monitoring of health, safety and hygiene. Consultees were split on whether national conditions would remove the need for additional local ones. One of the most controversial proposals was that licensing board policy statements should remain current for two years, with a clear majority rejecting this, although few reasons were given, apart from one that policy should evolve constantly.
Licensing boards
5. A majority agreed to limiting board membership to ten, but there was concern about proposed minima for a sitting of five and for a quorum of three, which were both deemed too small. Suggestions to ensure close co-operation between licensing boards and licensing fora included having a small number of common members or having LLSOs liaise between them.
Licences
6. There was a high level of consensus on the proposal that standard national conditions should be developed for off-sales and the provision of adult entertainment, and either guidance or national conditions for late opening. Just under a half of those who commented supported retention of 11 pm as the 'late opening' watershed; a third proposed midnight, others later times. Various conditions that could be applied to 'late opening' were offered, across a range of issues relating to matters that would be covered by national standard conditions, safety, venue capacity, cut-off entry times, location and customer dispersal arrangements.
7. The need for close co-operation between local planning and licensing systems was recognised, and there were suggestions that redefinition of planning classes would be required to reflect changes in license types.
8. There was general support for controls on occasional permissions for voluntary organisations. No suggested conditions dominated respondents' remarks, although the issue of training recurred. Definitions of 'voluntary organisation' and 'occasional' were sought.
9. Although most who commented on the question of whether boards should actively assess overprovision in their area agreed with the idea, definition of 'area' was called for and there were a number of observations about how to define and calculate overprovision.
Licensing hours
10. There was general agreement in principle for a presumption against 24-hour opening, but many thought that this should not be statutorily enshrined, and that particular venues and events should be excepted. The position of 24-hour shops and supermarkets was raised in relation to contemporary working, shopping patterns and the need for local flexibility.
Communities
11. Entitling 'anyone with a real and material interest' to object to a premises licence application was supported, but objectors and partial assenters felt that 'real and material interest' needed to be defined or was too broad. It was generally agreed that the groups in the consultation document should receive written notice of an application from the board, although positive and negative responses expressed concerns about the costs and administrative burdens this would entail for boards. Definition of 'immediate neighbour' as a group to be notified was required.
12. A clear majority of those who commented on the appropriateness of a 4 metre radius from the licensed premises, to determine who should receive written notice, rejected the notion that this distance would be anywhere near sufficient to encompass all who might be affected by the business. Local factors and the nature of the premises would influence the impact on neighbours. More appropriate distances were sought (for example, 100 or 25 metres).
Monitoring and compliance
13. A proposal that Liquor Licensing Standards Officers (LLSOs) should be employed by local authorities rather than by boards was supported by a majority who included this question, although there was concern about how this new post could be funded.
14. Few suggestions for how a tiered complaints system should work or for the range of sanctions which would be applied went beyond proposals in the consultation document. The importance of having a clear range of sanctions at different levels was stressed and the introduction of a points system (akin to the one for driving licences) suggested.
15. Two thirds of comments agreed that a licence suspension should take immediate effect until a hearing on suspension before a sheriff. Opposition was largely based on an assertion that this would be contrary to natural justice and deny the licensee the right to earn a living.
Training
16. Agreement, by a clear majority, that board members should undertake their mandatory training within three months of election before sitting was tempered by a general concern about what would happen in the period between the election of a new board and new members receiving training. Rejecters thought that three months was insufficient time. Most agreed that personal licence holders should undertake refresher courses every five years, although there were concerns about how training would be funded.
17. Three quarters of all the consultees answered the question on whether all permanent staff should receive appropriate mandatory training to national standards. Almost all assented that they should and all who disagreed were trade representatives. Responses on this issue linked to responses on whether casual staff should be exempted from the same training requirement, and instead receive on-site training from a licence holder, subject to a statutory definition of 'casual'. Despite apparent consent to this proposal, many expressions of agreement were qualified on condition of there being a clear definition and understanding of 'casual', particularly given the sector's heavy reliance on casual staff, workforce mobility, and the fact that casual staff may work longer hours than permanent ones. The third of comments rejecting this notion did so on the basis that all staff serving alcohol should be appropriately trained and a definition of casual based two or three months of employment would be inappropriate.
18. There was near unanimous consensus that the personal licence holder should have a duty to ensure that training of permanent staff was carried out. More than half of the suggestions for monitoring staff training mentioned a role for the LLSOs and it was noted that individualised staff records or logbooks of training would be especially useful given the nature of employment patterns in the sector.
Irresponsible promotion
19. A clear majority of consultees commenting agreed that the issue of irresponsible promotions would be best tackled through a Scotland-wide approach, accepting the need for national definitions, actions and publicity. Two thirds of all those responding to the consultation included comments on how to define 'irresponsible promotion', expressing a range of features and tactics encouraging rapid and excessive consumption. Definitional problems in the off-sales context were noted, as were examples of existing good practice.
Children and young people
20. A majority who commented agreed that premises should be required to 'opt in' to a new system allowing children access to licensed premises subject to standard national conditions and administrative procedures. Agreements were qualified with an emphasis on the need for any system to be accessible and simple and that separate premises types should be treated differently (restaurants contrasted with bars). Relevant conditions would have to be monitored, and having tick-boxes on application forms and details in operating plans for how children's access was to be provided for would minimise the administrative burden on boards and licensees. There were various reasons behind rejections of an 'opt-in' system and there were concerns that conditions for children's admittance should not be so restrictive that certain types of otherwise suitable premises would be unable to enter the system.
21. There was virtually unanimous support amongst those who commented for extending a system of no sale without proof of age to all licensed premises in Scotland.
Registered clubs
22. The consultation sought suggestions for conditions to be attached to premises licence to recognise the special nature of clubs. A few consultees thought that the same conditions should apply to all premises. Most comments singled out one or two conditions, or simply stated that clubs should adhere to requirements in existing legislation on clubs. The inclusion of key information in the operating plan was presented as a way of ensuring that the club observed licensing conditions in line with its status as a non-commercial operation.
23. Most who commented agreed that the bar manager or steward should be the designated personal licence holder, but many shared with some who rejected this proposal anxieties about how this would operate given the often voluntary and irregular nature of staffing in clubs. It was suggested that an appropriate office bearer could assume the role.
24. The question of whether there were any 'very small clubs' that should be exempt from the proposed personal licence requirements was one of the most contentious consultation topics. Three quarters of those who commented believed there should be no exceptions, sharing with those who did think there could be exemptions concerns about defining 'very small clubs'.
Fees
25. Although there was general support for the idea of a retention fee, many were unclear about its purpose, and there were misgivings about the effect a fee might have on small retailers if it were set too high. An annual payment was the most common suggestion for how the retention fee could be paid, on the basis of some form of premises banding system.
Board procedures
26. Almost all who commented on the proposal agreed that premises applying for a licence should display an A3 notice for 21 days announcing this. Suggestions for how to make board hearings less intimidating for those appearing before them included observations that proposed smaller sized boards might help. Particular elements of the hearing that were identified for potential change were moderated use of legalistic and overly formal language, the provision of accessible information about the process, training for the chair and other members in running hearings, and the room layout.
Miscellaneous provisions
27. A vast majority who submitted comments thought that motorway service stations and petrol stations should not be able to sell alcohol, but that community shops, which also sell petrol, should be allowed to sell alcohol. Some definition of such business would be needed.
28. A clear majority believed that the police, with due justification, should have the power to seek a court order prohibiting the sale of alcohol on particular train routes at certain times. The question of whether there was a real problem to justify such a move was posed and the point made that the consumption of alcohol was more the issue.
29. Half of all consultees responded to a question on whether passenger boats and ships travelling within Scotland should be included in the licensing system. A majority considered that they should, although potential jurisdictional problems were flagged up. It was noted that, although regulation might be needed in the pleasure excursion market, this did not appear to be the case for the Scottish shipping sector.
30. The vast majority who commented agreed that wholesalers should be brought within the licensing system. The idea of requiring those who run mail order, internet or telephone sales operations to hold a personal licence was supported by almost all who commented, although a few consultees drew attention to the problem of enforcement. A majority further agreed with a suggestion that their storage premises should be licensed.
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