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

Chapter 7
Monitoring and Compliance

The Nicholson and Daniels Reports

The Nicholson and Daniels Reports have proposed the following range of measures:

Liquor Licensing Standards Officers (LLSOs)

• A new system of Liquor Licensing Standards Officers to supervise and monitor the new system, co-operate with licensees, report licence breaches to the Board and statutory powers of entry to all licensed premises. The Daniels Report recommends in addition that these officers should be independent of Boards and employed by local authorities, have a clear mediation role, a clear national job description and undertake diversity and racial awareness training.

Exclusion

• Amendment to the Licensed Premises (Exclusion of Certain Persons) Act 1980 to extend its scope to all licensed premises including off-sales and to give licensees power to apply for an order where the court has not sought to impose one at the time of conviction. The Daniels Report supports this and adds that orders should be triggered by disorder not just in but also 'associated with' a licensed premises.

Police Powers

• Extend police powers of entry and inspection under the 1976 Act to cover all licensed premises including off-sales and registered clubs.
• Retain existing power for a Chief Constable or above to apply to the Board to close licensed premises for public safety reasons.
• Extend police closure powers to provide a mechanism for immediate closure for public safety reasons.

Sanctions and Penalties

Premises Licence

• The Nicholson Report recommends a staggered range of sanctions from a formal warning to revocation. The Daniels Report supports this.
• Where a sanction involves closure for any period and an appeal is marked, the licensee should be able to apply for interim suspension of the closure pending disposal of the appeal and this should be heard by a local Sheriff within 2 weeks. The Daniels Report recommends that closure should not take effect until after the hearing on interim suspension to avoid unduly penalising small businesses.

Personal Licences

• Where a holder is convicted of a relevant offence, it should be for the Board for the area in which the person is working rather than for the court to apply an appropriate sanction. That sanction should be suspension for anything up to 6 months or forfeiture.
• Arrangements should be made to link a computerised database of personal licence holders to the Scottish Criminal Records Database.
• It should be open to the Board to call the premises licence holder to account where a personal licence holder has been convicted of a relevant offence and to apply an appropriate sanction.
• There should be additional power for the Board, following a complaint, to impose a sanction where there has been no relevant offence but the person has not carried out their duties in a manner consistent with the licensing principles. This should range from admonition or endorsement to suspension or forfeiture.

Consultation Summary

A majority of consultation respondents agreed that there should be liquor licensing standards officers provided there is clarity over their role and funding. There was universal agreement on exclusion orders and extending police powers of closure.

On premises licences, the 27 respondents were largely in favour of a range of sanctions. On closure and interim suspension, views were mixed. A small number of respondents flagged up a serious detrimental effect on businesses. On personal licences, most were in favour of the proposals on action to be taken where a personal licence holder has committed an offence and where the personal licence holder has failed to carry out his or her duties in an acceptable manner.

Our Approach

We agree with the Nicholson proposal to introduce liquor licensing standards officers under the new system and with the powers those officers would have including a statutory right of entry to all licensed premises. We see this as a key element of the new system. The LLSOs would have two clear roles:

• Guidance - Power to act as a source of advice and guidance for licensees and for the community.
• Mediation - Power to mediate between communities and the trade or between any two parties where there is a need to resolve a local problem and develop a local solution.
• Complaints - Power to report complaints to the Board recommending an oral hearing where mediation, guidance and support have failed to resolve a problem or where there has been a serious or continuing breach of a licence.

In addition, we endorse the additional proposals made by the Daniels Committee including the recommendation that LLSOs should be employed by Local Authorities. Further detailed work will be required on a national standard job description and qualifications for the post and this could, as suggested in the Nicholson Report, be an issue for consideration by the National Forum. The Expert Group will be asked to consider further the governance aspects of the post and issues which need to be settled for legislation.

We agree with the Nicholson and Daniels proposals in relation to Exclusion Orders. In particular, we believe that the additional measures suggested by the Daniels Committee will make this an effective means by which to target pockets of antisocial behaviour occurring outside licensed premises. We must do everything we can to put a stop to harassment and intimidation wherever it occurs within our communities. We must also ensure that shopworkers can work safely and without fear.

We also agree that the police powers of closure should be updated and should in future be applicable to all licensed premises.

On the sanctions to be applied to premises licences, we acknowledge that Boards need more options and that the current legislation does not deliver those options. This is to the detriment of everyone working within the licensing system - both for licensees, who should be entitled to a warning in some circumstances and for communities, who have a right to expect that effective action will be taken in response to the breach of a licence. We therefore support the idea of a range of sanctions and we will ask the Expert Group to do further work on that. We are attracted to the following type of system:

• mediation and guidance (LLSO);
• oral warning (LLSO);
• written warning (Board); and
• oral hearing (Board).

and to the following range of sanctions to be applied following an oral hearing:

• modify licence conditions;
• suspend licence for a defined period; and
• revoke licence.

Guidance would be required for Boards on how to operate the system and it is clear that a judgement would be required to be taken not only on the use of the sanctions but on the stage at which an oral hearing would be appropriate. In some cases of very serious licence breach it may be appropriate to progress straight to an oral hearing.

On interim suspension of a licence pending a hearing by the Sheriff, we have taken account of the range of views and the alternatives put forward by the Nicholson and Daniels Report. Whilst we appreciate the pressure closure may put on a small business, this will not be a decision which is taken lightly by Boards. The new system will require Boards to give reasons for decisions and to act in a proportional manner. It will, in addition, require Boards to follow procedures (as set out above) which give licencees the opportunity to remedy an emerging problem before suspension or revocation becomes an option. Under those circumstances, we support the Nicholson proposal for immediate closure where the Board decides that licence suspension is the correct sanction. However, we will consult further with Sheriffs to ensure that hearings can be held promptly.

On the sanctions to be applied to personal licences, we are content with the Nicholson proposals. We will give further consideration to the treatment of pending court proceedings.

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