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The Licensing (Scotland) Bill: A Consultation on Liquor Licensing

Chapter 3
Licensing Boards

The Nicholson Report

Boards

The Nicholson Committee recommends the retention of the present system of Licensing Boards, believing that there is considerable merit in the argument that councillors are well suited to being members of Boards because of both their local knowledge and their democratic accountability.

The Committee makes recommendations on Board composition, training, meetings, use of clerks and relations with the wider community.

The Committee sees a case for reducing the size of the Board, particularly for public hearings to determine applications, recommending that only five members should sit at any one time. They also question the need for the Board's Chair to be re-elected every year. There would be no need for statutory quarterly meetings and these would be replaced with ad-hoc meetings and regulations prescribing the time scales within which business must be completed. There should also be provision to delegate certain business to the clerk. It is already an offence for any applicant for a licence to attempt to improperly influence a member of a Licensing Board to support their application (also known as canvassing). The Committee feels that this should also be the case for objectors.

The Committee raises concerns that the current practice of Boards granting liquor licences to local authorities in their own name may be incompatible with the requirements of article 6 of the ECHR. Since members of the Board are also councillors, this may not be compatible with the requirement for an independent and impartial tribunal. The Committee therefore recommends that it should not be lawful for a local authority to hold a premises licence in its own name.

Local Licensing Fora

The Nicholson Committee also sees advantage in the Licensing Board being better informed about the concerns of the wider community and feel this can be achieved by the formation of Local Licensing Fora. Licensing Boards would have a statutory duty to meet, consult with and have regard to the Forum's views on their policy.

Consultation Summary

Whilst the consultation responses showed the majority were in favour of the continuation of Licensing Boards made up of local authority members, there were some requests for a wider representation of other interested parties on Boards or an alternative National Licensing Body.

Views were divided (with a slight majority in favour) on the setting of a maximum number for Licensing Board members. However, a greater number of respondents were against limiting to five the number who should sit to determine applications. Responses focused on the need for flexibility, avoiding internal conflict and ensuring a range of views were represented. While the majority of respondents were happy to forgo electing a Chair every year, a number wished the annual election
to continue.

Most respondents agreed with the proposals regarding the removal of fixed quarterly meetings and the delegation of certain tasks to clerks. Some respondents stressed the need for flexibility.

On objectors attempting to exert undue influence, the majority of respondents were Licensing Boards and felt that this needed further consideration. It would be difficult to ban constituents from talking to their own councillors and in any case this might be unnecessary in light of the Councillors' Code of Conduct in which councillors would have to declare an interest and stand down from the relevant Board meeting.

22 of 33 responses rejected the conclusion on local authorities holding licences in their own name. The majority of councils who responded and COSLA disagree. There were concerns about cost and the implications for small businesses.

Local Licensing Fora attracted a high degree of support. However, more clarity was requested on membership, the specific relationship with the Board and how such fora were to be financed.

Our Approach

Boards

We still agree with the original findings of the Clayson Committee, which reviewed liquor licensing in 1972 leading to the current legislation. That Committee recommended a move away from licensing courts. Licensing, local in nature and a process carried out in the interests of the community, requires a body answerable to the electorate for the exercise of its functions. We therefore agree with the Nicholson Committee's conclusion on the continued use of Licensing Boards drawn from local councillors. The UK Government, in their recent Licensing Act, have opted for a regime similar to this Scottish model.

On the size of Licensing Boards, we believe there is merit in Nicholson's recommendations for a more manageable size of Board. Many who contributed to the debate have stated that appearances in front of large Boards can be intimidating. We do however acknowledge the need, raised in the consultation responses, for local flexibility to ensure an adequate geographical spread and political balance. There is also a clear need to ensure consistency of decisions taken by a Board.

We believe that an appropriate workable compromise would be to retain a system of allowing the whole Board to sit at any one time but to impose a statutory maximum of no more than 10 members in total, a minimum of 5 and a quorum of 3. Boards and Divisions may, within those figures, decide how many members they wish to appoint. The Chair would, as in the 1976 Act, be given a second or casting vote to use when a vote is evenly split.

On election of the Chair, we support the Nicholson approach of requiring the Chair to hold office until the next Council election (unless that person is no longer a Council member).

Within the context of the new proposed framework, the operation of statutory quarterly meetings seems unfairly restrictive. However, we also agree with consultation respondents that while there is a need for flexibility in the system, there is also a need for certainty. We therefore support the removal of statutory quarterly meetings but intend to set out in regulations the timescales in which business should be completed and arrangements for delegation to clerks. It would be up to individual Boards to decide when to hold the necessary meetings.

It seems suitable on the one hand that those who attempt to improperly influence the decisions of a Board member, whether as applicant or objector, should face the same penalties. However, we also recognise that steps have already been taken to ensure that councillors are aware of how to conduct themselves in circumstances where a conflict of interest arises and where they are involved in making decisions on individual applications. The Ethical Standards in Public Life etc. (Scotland) Act 2000 introduced the new ethical standards framework, which included provision for the Councillors' Code of Conduct that came into effect on 1 May 2003. The Code was established to ensure that the highest standards are maintained in public life. The Standards Commission is responsible for enforcing the Code and has issued statutory Guidance on its use. We consider that the Code and associated Guidance provide a sufficient alternative to the extension of this offence to objectors.

In respect of Nicholson's recommendation that local authorities should no longer be able to hold liquor licenses, we have been made aware through the consultation process of the depth of feeling local authorities have on this subject.

Following our own consideration of the ECHR issues involved, we are of the opinion that local authorities may continue to hold liquor licences in their own name and may also continue to make objections to licences. We believe this is important so that local authorities are not limited from providing services to enhance their communities.

Local Licensing Fora

We place great importance on the role Local Licensing Fora will play in enhancing their local Board's awareness of both the beneficial and detrimental impact of their policies on the local community and on local trade. We believe it is crucial that there should be an effective mechanism for members of local communities to make both formal and informal views known within the new system.

We therefore intend to put Local Licensing Fora on a statutory footing.

Detailed arrangements for Forum working require to be developed further. However, we have the following initial views:

• membership should include a representative range of people with an interest in licensing but we appreciate that in some areas the full range of suggested members may not be available;

• community council representation may be appropriate;

• links should be established with the local Alcohol Action Team, which is responsible for developing local alcohol action plans to reduce alcohol related harm, and a member of that Team should sit on the Forum;

• an attempt should be made to involve young people, eg through youth fora;

• Liquor Licensing Standards Officers should actively participate;

• the Forum should be independent from the Board but the Board Chair or members should regularly attend meetings to ensure close co-operation exists between the two bodies;

• there should be a minimum of one formal annual meeting with the full Board; and

• the Forum should be governed and appointed by local authorities.

It is clearly the intention of the Nicholson Committee that the role of the Forum is to comment on the Board's policy and the impact of that policy and not to comment on individual licence applications. We support this approach. The Board should consult the Forum on its draft policy statement and on other policy decisions it is considering. We also agree that that it should be a statutory requirement for the Board to 'have regard to' the Forum's views and to be able to present reasons in those circumstances where a different route has been followed.

Appearances Before a Licensing Board

We propose, in line with the Daniels Committee Report, that guidance should be drawn up by the National Licensing Forum on how to make the process of appearing before a Licensing Board less intimidating.

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