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

Chapter 14
Appeals

The Nicholson Report

Under the 1976 Act an appeal lies to the Sheriff by summary application against some decisions of a Licensing Board. A further appeal may be made to the Court of Session but only on a point of law. On other decisions the available procedure is judicial review. The Nicholson Report notes that the present system is unacceptably slow and recommends that appeals should in future be heard by a Sheriff Principal by stated case to allow for quicker disposal. In addition, all decisions by Boards, other than purely procedural ones, should be open to appeal. Boards would continue to have the right to be party to an appeal but Chief Constables should only have this right where they participated in earlier proceedings.

Boards should be required to give reasons for decisions following a request. Existing grounds of appeal should be retained but, reflecting recent developments, the 'unreasonable manner' ground should be changed to one reflecting the ECHR concept of proportionality.

Consultation Summary

Around 20 comments were received on these proposals, mainly in support. There were concerns that allowing all Board decisions to be open to appeal would result in a strain on Board resources. It has also been suggested that under a stated case process, recording of Board proceedings should be mandatory to ensure a factual record for appeals based on incorrect material fact.

Our Approach

We broadly support the Nicholson proposals on appeals. Appeal processes need to be robust and effective and we believe that the Nicholson approach meets this requirement.

However, we will consult further with Sheriffs Principal as we move towards a draft Bill.

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