Blogs and Books

Licensing friends, please note that blogging activity will be somewhat restricted for a while as I knuckle down on work for my new book, a successor title to Licensing and Gambling Law in Scotland (2009).

This new legal textbook will again be published by Avizandum but will focus on the Licensing (Scotland) Act 2005 and attendant legislation, bringing us right up to speed with the subsequent changes under the Criminal Justice and Licensing (Scotland) Act 2010, the Alcohol etc. (Scotland) act 2010, the Air Weapons and Licensing (Scotland) Act 2015; all the sundry regulations; the latest developments in licensing jurisprudence, plus of course practical explanations and guidance, and my views and opinions of life at the coal face of licensing practice in Scotland. 

Work on this is well under way so wish me luck! We are aiming for publication in 2017. 

A formal announcement will be made in due course. 

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Never Mind the Buzzkills? Inaudibility, Licensing and Edinburgh’s Live Music scene

ON THE CAMPAIGN TO REMOVE THE SO-CALLED INAUDIBILITY CONDITION, LIVE MUSIC IN LICENSED PREMISES AND THE SOMETIMES COMPETING RIGHTS OF RESIDENTS AND MUSICIANS
Every single on sales licensed premises (and by that I mean pubs, bars and clubs, but not shops and off licences) in Edinburgh has a condition attached to the licence:

“all amplified music and vocals must be inaudible in any neighbouring residential premises”

This condition is a local condition which Edinburgh Licensing Board developed as part of the conversion to the current liquor licensing regime, contained within the Licensing (Scotland) Act 2005. It is not a Mandatory condition of the Act itself, as is sometimes reported or expressed. It is instead a ‘local’ condition. A condition imposed by the licensing board of their own devising.

It has been argued that the condition is extreme, disproportionate, unenforceable, arbitrary, but also welcome, necessary, sensible and obvious. Welcome to one of the many dichotomies of licensing law in Scotland.

Notice that the condition only refers to ‘amplified’ music and vocals. So background music is not captured. Neither is unamplified music such as an accapella barbershop quartet or for that matter a solo drum performance with a 20 piece kit (which is not mic’d up). Neither is a guitarist who sings unamplified.

The soil in which the condition has been planted is that of one of the five licensing objectives which underpin the 2005 Act: ‘preventing public nuisance’. Every licensee has a legal duty to uphold this objective. Public nuisance arising from licensed premises may take many forms but it can be said to include nuisance from entertainment such as live music.

But is total total Inaudibility going too far? The debate sits astride a wider UK discussion on an English legal principle known as the ‘agent of change’. If you are the person who has brought about the change, you should be the one at whose feet demands are placed. One can easily see how this could apply to Mrs McGlumpher, who, having moved into a flat above The Dog and Duck which has traded for 120 years with live music at night, makes one noise complaint which could result in an abatement notice being served, a licence review, and the death of the business because punters go to The Bull and Bush down the road, where the strains of ‘Pearls a Singer’ can be heard uninterrupted.

Does it make sense that such a sword of Damocles, suspended and shining above the pub can take precedence over the old ‘but why did you move above a pub missus?’ submission? The agent of change is Mrs McGlumpher – the pub is doing what it has always done without complaint. Is it really fair for her to expect the pub to cease the entertainment? But think of poor old Mrs McGlumpher! She’s 83 and can’t get a good night sleep. Two sides, and all that.

There is a lot of material of the Agent of Change Principle but a good place to start is with the view of the Music Venue Trust which you can find here:

http://www.musicvenuetrust.com/2014/09/what-is-agent-of-change-and-why-is-it-important.

Is the condition lawful?

As I have pointed out on this blog before, conditions have to be enforceable, understandable and proportionate. In addition, s.27(7) of the 2005 Act makes it clear that conditions cannot relate to another enactment – licensing conditions should be about licensing the ‘essential function’ of what the licensing Act is aiming to regulate and that is the sale of alcohol. Is there a case that a condition about noise is ultra vires given noise is regulated under the Environmental Protection Act? This is a ‘Brightcrew’ argument of course. But it is not clear cut. One might argue that noise arises from the consumption of alcohol; that is, high spirits and singing by inebriates, whether at the karaoke or ‘just because’. Such noise could, I think it can be argued, offend the licensing objective of preventing public nuisance.

But the Edinburgh condition is about amplified music, not vocals or the human voice.

One might also argue the condition is ‘practically’ unenforceable because the only way amplified music can truly be inaudible is if it doesn’t occur at all. One might also argue it is disproportionate: it is simply going too far.

There is interest from Edinburgh City Council to look into this. The council appears to be alive to the threat that the condition places on the Edinburgh live music scene. It is suggested that there is a willingness, politically, to try to find an answer which allows a vibrant live music scene.

You can see various coverage of the Edinburgh council debate on this at the following links:

http://www.edinburgh.gov.uk/news/article/1705/edinburgh_agrees_live_music_matters

http://www.edinburgh.gov.uk/blog/newsblog/post/712/edinburgh-debates-live-music-matters

https://www.list.co.uk/article/70826-opinion-live-music-matters/

http://www.edinburghnews.scotsman.com/news/noise-rules-shake-up-for-music-venues-1-3631493

https://www.thestage.co.uk/news/2015/scotland-planners-should-adopt-agent-of-change-principle-says-theatres-trust/

The council, however, is not the licensing board. The licensing board is a separate and distinct legal entity.
The technical resolution to this is not simple. If the licensing board were convinced to drop the condition or at least amend it in some way, then each licence would have to be ‘called in’ to allow that change to take effect.

Remember that this is not some over arching policy but a specific condition imposed on every on sales licence.

There is no mechanism under the 2005 Act to allow the board to unilaterally amend all licences. Each licence would need to be subject by either (a) an application by the licensee to delete/amend the condition or (b) a review hearing, perhaps instigated by a friendly LSO or the board themselves, to amend or delete the condition.

Either way requires a hearing by law. The prospect of hundreds of licences being called into a hearing would clog up the Edinburgh licensing system no end and create costs for both the administration of these hearings, and for the licensees who would have to instruct specialist licensing solicitors to appear. If the amendment was by way of variation, this would require application fees, public notification, any person could object, and might invite all manner of comments from locals who often use a site notice to raise complaints about anything even if not relevant to the variation sought.

The alternative to all of this strife is for the board to make some sort of public announcement that it is no longer going to insist on adherence to the condition. But that approach is parastatutory at best and would not, in my view, stand up in court if a member of the public sought to challenge a licence on the basis the condition was not observed.

As a former drummer, I know it’s only Rock and roll – but I like it! (Yes I do). We can’t have a situation where live music has to wither on the vine because someone can hear it. On the other hand a resident can rightly be aggrieved if they can’t get no satisfaction. It is a balancing act. But it’s not just an Edinburgh problem.

Aberdeen has also started a conversation about the agent of change principle.

There is a live e-petition which has gathered approaching 400 signatures at the time of writing, here;

http://committees.aberdeencity.gov.uk/mgEPetitionDisplay.aspx?ID=71&RPID=0&HPID=0

The petition arises from a real life neighbour complaint scenario involving the Granite City’s Krakatoa and Downstairs entertainment venues. You can see coverage of this at the following links:

Agent of change in Aberdeen? Venues petition council

https://www.eveningexpress.co.uk/fp/news/local/plea-for-council-to-be-given-power-to-control-music-licensing-in-city/

Note that the Aberdeen challenge focuses on having the council petition the Scottish Government to amend planning policy. That won’t help the Edinburgh licensees, because the Inaudibility condition is not a planning condition, but I would really like to see a genuine debate on this issue at Holyrood both in terms of planning and licensing.

Scotland has a proud history of live entertainment and musical heritage and some of our most famous musicians and artists cut their teeth in local pubs and bars. I think that culture and talent is worth protecting from what can sometimes be a cotton wool approach to licensed premises. And that’s not for the ears!

It will be interesting to see how this all develops in Edinburgh, Aberdeen and elsewhere. Encore!

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Is Minimum Pricing Lawful? It Depends.

After the judgement of the ECJ on minimum unit pricing (‘MUP’) was issued yesterday, there followed a litany of headlines and commentary which betrayed a truism when considering the impact of nuanced legal precedent:  whilst both sides yet again claimed victory, the real answer was that classic lawyers riposte: it depends. 

The Alcohol (Minimum Pricing) Act 2012 seeks to impose a new mandatory condition on all licences under the Licensing (Scotland) Act 2005, namely that alcohol cannot be sold for less than a minimum price using units of alcohol as the barometer. 

The Scotch Whisky Association and other trade groups have challenged the 2012 Act through the Scottish Courts. The Court of Session referred the matter to the European Court of Justice for a view, in order that the CoS could then finalise its own findings. 

My reading is that the ECJ has found that, whilst MUP is a restriction on trade, it might not be unlawful if other less restrictive measures have been considered. They point to tax as the obvious alternative.

The decision is far from simple. It is detailed, with a number of technical and practical caveats. 

First of all, given that MUP does not automatically target problem drinkers but is a ‘whole population’ policy, the evidential burden on the Scottish Government to make a case that it is necessary and proportionate is quite high; something which the Advocate General Yves Gots pointed to in his opinion a few months ago. This is because the Government needs to prove that MUP is more effective than increased taxation. Demonstrating that the mischief can be targeted in this way is far from easy. Consumption patterns, drinking trends, commercial decisions, poverty (socio-cultural, economic and intellectual), demography, geography and individual factors all have a role to play. It is a most complex topic. 

It is now for the CoS to consider all of this evidence (much of which is contested one way or the other by the alcohol industry, other commentators, public health academics, alcohol harm charities and temperance bodies) before reaching a view.

Once the CoS delivers its verdict, it can be appealed ultimately to the Supreme Court and back to the ECJ. Yesterday’s announcement is then just another landmark on the MUP journey which may run for years. 

There a few particular points I’d like to explore. Firstly, the tax alternative. Much has been made of the fact that alcohol duty is outwith the competence of Holyrood. Is that good or bad for the Scottish Government? I’m really not sure.  They can rightly argue that as an alternative, it is not open to them. However, the judgement refers to alcohol duty or ‘other taxes’. The Scottish Government does have wide tax raising powers so is there something to be said about that? Taxes not on the product directly, but on the supplier? I can give two examples of this. First, the so-called ‘public health’ tax which was introduced to apply to large retailers who sold both alcohol and tobacco, ran for a period and has now been withdrawn; and second the Social Responsibility Levy, which has been enacted but never commenced, which is a tax on licence holders based on a sort of ‘polluter pays’ doctrine.  

How does consideration of these non duty taxes fit with all of this?

I also wonder about the ‘whole population’ approach. Affordability and availability are referred to as significant factors in alcohol abuse. Yet alcohol consumption has fallen year on year in Scotland since around 2008, when we are told alcohol is more affordable than ever before. Similarly, the availability doctrine does not seem to accord with the example of our neighbours in England and Wales; whose consumption has also fallen over the same period when their licensing laws were liberalised under the Licensing Act 2003 with the vast majority of premises trading longer hours than pre 2005. During that same period a number of alcohol related harm-type statistics have fallen or remained static. 

Another point is that I cannot align myself with the view of health commentators who suggest that the alcohol industry is subverting democratic will. That sort of ad hominem emotional reductionism is unhelpful and in any event wrong. What is more democratic than the right of an aggrieved party to seek redress in the courts to challenge the Government of the day? Public health policy is subject to the rule of law as with any area of policy, and rightly so. It is perfectly acceptable that certain parts of the industry can seek to challenge a law. I’d also encourage caution about inferring that the whole alcohol industry is the challenger. That’s simply not the case. The Scottish Licensed Trade Association is an open and strong supporter of MUP and has been for decades. Many independent publicans support the idea. Painting a ‘Big Alcohol’ as some kind of existential menace is counter productive given not all parts of the industry are aligned on this topic, and perhaps more importantly, because alcohol is not tobacco and superimposing anti ‘Big tobacco’ language is a crude artifice. The CoS has already ruled in an earlier part of the MUP case that the responsible consumption of alcohol is part of human happiness. Folk Devils and moral panics do not lead to sensible policy in my view. 

I also urge calm to those who say that the Scottish Government are so focused on this policy that they have lost perspective. The Government has stated on a number of occasions that they don’t see MUP as a magic bullet but part of a package of measures which they have introduced with an aim to curb alcohol abuse, which is of course a noble pursuit. 

I don’t profess to have a settled view on all this. These are my present thoughts which may well be educated by greater minds as the debate unfolds. I do say that the intricacies of the case involve not just a licensing law cypher, but far grander constitutional and academic tautologies which we shall encircle for some time yet. 

A very Merry Christmas to you all, and best wishes to you and yours for 2016!

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UK Immigration Bill and Scottish Licensing

ON THE UK GOVERNMENT IMMIGRATION BILL, FROM A SCOTTISH LICENSING PERSPECTIVE

I have read with interest the licensing provisions contained within the new UK Parliament Immigration Bill. The Bill received its first reading in the House of Commons on 17 September 2015. The Bill contains a number of proposals which affect the licensing laws of England & Wales, under the Licensing Act 2003. The Bill itself is a UK Bill; that is because immigration law is a reserved matter and outwith the competence of the Scottish Parliament. So, whilst wider aspects of the Bill will apply to Scotland, the specific
proposals which relate to licensing will not, because the changes made will only relate to the Licensing Act 2003.

The proposals are contained under Clause 10 of the Bill, headed “Illegal working in licensed premises”. The clause is in the following terms:

10 Licensing Act 2003: amendments relating to illegal working
(1) Schedule 1 (Licensing Act 2003: amendments relating to illegal working) has effect.
(2) The Secretary of State may by regulations make provision which—
(a) has a similar effect to the amendments made by Schedule 1, and
(b) applies in relation to Scotland or Northern Ireland.
(3) Regulations under subsection (2) may—
(a) amend, repeal or revoke any relevant enactment;
(b) confer functions on any person.
(4) Regulations under subsection (2) may not confer functions on—
(a) the Scottish Ministers,
(b) the First Minister and deputy First Minister in Northern Ireland,
(c) a Northern Ireland Minister, or
(d) a Northern Ireland department.
(5) In this section “relevant enactment” means—
(a) an Act of the Scottish Parliament or Northern Ireland legislation, and
(b) an instrument made under such an Act or under Northern Ireland legislation.

I am not clear how on the one hand this purports to give power to the Secretary of State to introduce regulations which would apply in Scotland and have the same effect as the English licensing proposals; and also gives power to amend, repeal or revoke an Act of the Scottish Parliament, but at the same time cannot confer functions on the Scottish Ministers. Greater legal minds than mine will no doubt have the answer but it seems to me that the only way to achieve the same English licensing proposals in this Bill would be to amend the 2005 Act, which would require this to be done by Holyrood, not Westminster. I would be very interested to hear from the constitutional chaps out there on this point.

Let us have a look at some of the proposals, which are contained in Schedule 1 to the Bill.

  • The Secretary of State is made a “responsible authority” under the Act
  • An applicant for a premises licence or personal licence must be entitled to work in the UK
  • If a premises licence holder ceases to be entitled to work in the UK then transfer provisions similar to those where the holder becomes insolvent should apply
  • Immigration offences are added to the list of relevant offences
  • Rights of entry are conferred on Immigration Officers
  • A closure order power where officers find illegal working and the premises licence holder has been convicted of an offence previously

I will be interested to know if Theresa May MP appreciates that the first of these will mean her office receiving thousands of licence application notifications!

The Licensing Act 2003 and the Licensing (Scotland) Act 2005 are different beasts, of course, and grow from different soil. One of the differences between the two is the status of the licensing objectives which underpin the Acts, and the interpretation of these following jurisprudence in the separate Scottish and English courts. In Scotland, it is well known that a key decision here is Brightcrew Ltd v Glasgow Licensing Board [2011] SCIH 46, which talks of the objectives flowing from the sale of alcohol and not being of general public interest matters. This is in contrast to the 2003 which as a licensing Act, licenses activities other than the sale of alcohol.

The presence of illegal workers in Scottish licensed premises has resulted in review applications by Police Scotland (and the former separate constabularies), and, I think, by the UKBA themselves. This has had mixed outcomes. In some cases, the licensing board has decided that the status of workers is not an alcohol licensing matter and, following Brightcrew, have taken no action. This happened at the Clackmannanshire Licensing Board, to give one example, where a personal licence review was abandoned on the basis of the Brightcrew argument (put forward by my former colleague, John Batters), back in August 2011 and is reported here. On the other hand, there are examples of premises licences being revoked or suspended at review hearings because of illegal workers such as the Kings Lodge in Bishopbriggs.

Offences under the Immigration Act 1971 are relevant offences under the 2005 Act, but how does one link that offence to the licensing objectives under scrutiny of the Brightcrew test? Has the crime occurred as a result of the sale of alcohol – does it flow from the sale of the alcohol? It is an interesting one to debate: and I wonder what the future holds for Scotland – will there be yet more licensing reform to adopt these English proposals?

On a wider note, if these proposals are not replicated in Scotland, does this mean that illegal working or employing illegal workers north of the border will become a more attractive proposition than in England & Wales?

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MacAskill Calls for More Licensing Law Reforms

SOME THOUGHTS ON THE COLUMN WRITTEN BY KENNY MacASKILL FOR THE “AGENDA” SECTION IN THE HERALD, MONDAY 21 SEPTEMBER 2015, AND AN UNINTENDED DIP INTO LICENSING HISTORY

I read with interest an article by former Justice Minister Kenny MacAskill MSP and reportage contained within today’s Herald. The column is here. Coverage of the article is found here. Mr MacAskill writes in reaction to the news that 72% of all alcohol sold in Scotland is from the off sale sector. The main news story focuses on his calls to have licence fees linked to volume (as opposed to rateable value of the premises) but in fact he goes further than that and his piece is another call for further licensing law reform. As I have stated on these pages and elsewhere, the unrelenting pace of licensing law change and reform is incredible, and we seem to be on a never-ending licensing Mobius strip. The Scottish Government has just passed another Act which amends alcohol licensing significantly – the Air Weapons and Licensing (Scotland) Act 2015. His principal suggestion is about fees:

That licence fees be based on volume of alcohol sold, not rateable value

This will attract support from the pub trade and opprobrium from the supermarket and off sale sector. Mr MacAskill is clearly vexed by the recent confirmation of the significant amount of alcohol which comes from the off trade. He implies that alcohol sold in pubs is “safer” in that it is consumed in a regulated environment with checks and balances; whereas alcohol bought from off sales can be more harmful consumed at home alone. He argues that harmful under age consumption is not people trying to get served in bars but cheap alcohol from high street stores.

The proposition that licensing fees should be revisited is not new and it is surprising that the former Justice Minister did not make more of his case when he presided over a full review of licensing fees as Cabinet Secretary. Although the “72%” figure is the latest, it has been at 70% or thereabouts for a few years now. The Scottish Government review of licensing fees was published in February 2014 and my blog discussing this is here. The review was a damp squib: it did not deliver a new way of thinking about licensing fees and there has been no changes to any fees taken forward. It’s only current legacy is the creation of a new s.9B of the Licensing (Scotland) Act 2005, via s.56 of the Air Weapons and Licensing (Scotland) Act 2015, which has created a duty on licensing boards to produce annual financial statements confirming the amount of income received and the amount spent on administering the licensing system. Mr MacAskill wants any additional revenue raised under a volume scheme to be put towards dealing with the harm which arises from abuse of alcohol. The 2005 Act requires, however, that licensing fees are used to cover the administration of the system, and it also requires that this be “cost-neutral” – so licensing boards are not allowed to make a profit. So the Act would need to be changed significantly to deal with that.

I suspect that the on sales sector would welcome this as they feel that they are burdened with a double penalty of licensing fees based on rates inequity. On the other hand, the system currently is not about how much alcohol is sold but cost-recovery of administration. It should take the same time and internal cost for a licensing board to process an application for a 20 cover bistro as it does for a 1000 capacity hotel complex, or a mega-store. The time spent processing each application can be different, admittedly. The bistro may not attract any reports or objections. The mega-store may attract 200 public objections and adverse reports from the NHS and Police Scotland. There is obviously more work involved where there is more paperwork. So the fundamental basis for charging is not about costs associated with health harm, but administration.

If we move to harm based system predicated on volume then there is the issue of how to determine what the volume of alcohol sold is. That information is confidential, proprietary sales data owned by the business. I can imagine challenges to any fee system which requires alcohol retailers to publish their books in this way. It would mean retailers having to present their accounts, presumably on an annual basis, to licensing boards in order to evidence which category of fee they would have to pay, and one can see how companies would be averse to releasing such information. There is, however, precedent for this in licensing under the Gambling Act 2005. Gambling licence fees paid to the Gambling Commission are based on “gross gambling yield” and the Gambling Act empowers the Commission to be entitled to virtually complete disclosure on the financial aspects of a licensed gambling business. As it happens, the Gambling Commission has recently consulted on a review of fees. But that, of course, is predicated on the presence of provisions in the Gambling Act which allow for this, and secondly this is fees payable to the national UK regulator, not to the local licensing boards. Licensing board fees for gambling applications are set nationally and again that income is not to off-set harms but to deal with administration. In other words, Parliament has saw fit to require that a significant level of confidential financial detail should be presented to the national regulator, and does so in terms, but does not require a parity of disclosure or set licence fees payable to the local licensing board on those terms.

Another issue here is that of evidence. If the fees are to be based on harm, how do we evidence and analyse where the harm is? Do we take a broad brush view and simply target one section of the alcohol industry for higher fees? Do we focus on a local shop which is well-run and has no difficulties, or ask the rogue operator who sells to drunks and under age children to pay more? This is a very complicated and emotive proposition. To put this in context, note that the review process under the Licensing (Scotland) Act 2005 is not about fault and not about punishment. There is no ability to levy “fines” on an operator for selling alcohol to someone who is drunk (albeit there is the potential for a criminal fine, but that money does not go to the council).

Mr MacAskill’s suggestion is bound to be controversial and I will watch with interest to see where it goes. Moving away from fees, Mr MacAskill has some other suggestions to make:

  • Separate tills for alcohol: the Act already provides for designated display areas in off sales premises already but Mr MacAskill thinks we should go further by creating specialist and separate alcohol tills as he says the display areas are still subject to “sales manipulation”.
  • Banning young persons from manning a till: under the current law, under 18s cannot sell or serve alcohol; but that does not apply if the person is providing waiter service (ie a glass of wine with a meal), or to staff processing off sale purchases – as long as the sale is supervised by a responsible person. Mr MacAskill wants to remove the off sales exemption. This means 16 and 17 year olds would not be able to work a checkout or till. This would, in my view, create extreme practical difficulties unless separate tills were also introduced otherwise 16 and 17 year olds would simply not be put on the tills at all, to avoid chaos at the tills with staff playing musical chairs. In these circumstances, employers might chose to not hire 16 and 17 year olds at all. This would only work, therefore, if separate tills were to be introduced. If separate tills were to be introduced, that might require licence variations. Can a shop use an existing till? Can they move it from one till to another at their whim? Does it have to be a separate kiosk like the cigarette desk? Or are we looking at the Canadian model and having all the alcohol and tills in a separate room altogether?

Finally, he finishes with a rather odd statement: “Alcohol should be a product available, but sold separately both on and off sales”. The reference to on sales here puzzles me. I’m not sure if this is simply a drafting error. He has made a case for separation of alcohol in the off sale context which, whether you agree with it or not, is discernible.  I find it difficult to imagine he means that alcohol sales should also be separated in an on sales context. He is, contrarily, very supportive of pubs in this article and there is an overall theme that his view is one of targeting the off trade sector. So how would “separation” like this work in a bar or restaurant? One bar for drink and one for food? Only certain staff allowed to sell drink? That sort of proposition, if indeed it is one, goes too far in my view.

Mr MacAskill is now flexing some of his own muscular opinions as a back bencher and is perhaps less fettered in his opinions. There is other evidence of that with his recent exhortations concerning the Social Responsibility Levy (also a result of news that 72% of all alcohol is sold from off sales – but paradoxically this levy would have to be paid by pubs and nightclubs and other licence holders), but what he has to say would, I imagine, hold some weight in the administration given his experience as our licensing Minister for many years.

The real question then is, having just passed the 2015 Act, does Holyrood have any appetite for more licensing laws? Absolutely. Labour’s Alcohol (Licensing, Public Health and Criminal Justice) (Scotland) Bill is before the Parliament at the moment (on which I blogged here) and may well attract Government support for a number of reasons including that some of its proposals could be viewed as an alternative to minimum pricing if that does not go ahead, or just that they agree with some of the proposals. It is in early stages and could be subject to amendments including a new fee system, although it is perhaps easier to see the proposed rules over checkouts being adopted as amendments to Labour’s Bill, so watch for them being put forward by the Minister for Edinburgh Eastern.

Alcohol licensing law is subject to a whirlwind of opinions and reactionism because it is an emotive subject which most people have a view on. The Scottish Parliament has now had 5 attempts at getting it right and appears to have the appetite for more. But one must not take lightly these particular views, given Mr MacAskill’s experience in the sector, as they may find traction across the benches.

It is interesting to note that the Licensing (Scotland) Act 1976 survived over 30 years with only one real significant alteration by Primary Legislation, which was under the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990. The 1990 Act introduced changes to the permitted hours, children’s certificates were brought in, a tighter approach to regular extensions but a more relaxed procedure for Sunday opening. As I pause to dip my toes into licensing nostalgia, I note that the 1990 Act created issues with transfers of licences as it did not reflect the reality of conveyancing practice as it required a temporary transfer to be granted before a permanent transfer could be lodged. This was later reversed in the Licensing (Amendment) (Scotland) Act 1992. It is frustrating to think that 20 years later we are still dealing with similar issues on transfers.

As an aside, the one other reform I am aware of is the Licensing (Amendment) (Scotland) Act 1996 which introduced “entertainment” conditions as a result of public concerns over the rave culture of the early 1990s and in particular the deaths at Hangar 13 in Ayr.

Ruminating over old laws allows a little context.

  • The 1976 Act came into force in 1977 and was allowed to “bed in” for 13 years before it was changed under the 1990 Act
  • Over the 30 years life of the 1976 era, there were 4 Acts, including the 1976 Act itself.
  • The 2005 Act came into force in 2009 and was almost immediately reformed significantly with the Criminal Justice and Licensing (Scotland) Act 2010 and then the Alcohol etc. (Scotland) Act 2010.
  • Over the last 6 years, there have been 5 Acts including the 2005 Act itself, with another Bill on the horizon

The sheer volume of licensing law currently on the statute books is such that a Consolidatory Act is now essential. It cannot be equitable that all those involved in such an important area of life from traders, communities, health professionals, police, and even us licensing lawyers, have to wrap our heads around 5 Acts and 30 odd regulations. There is plenty of precedent for this but as I am in a nostalgic mood, so let us in particular look to the Licensing (Scotland) Act 1903 as an example.

In the Preface to the oldest Scottish licensing law book, “The Liquor Laws for Scotland”, by David Dewar (the Chief Constable and Procurator Fiscal for the Burgh of Dundee) the first edition of which was published in 1884, Mr Dewar says: “It is somewhat remarkable that so many Acts are at present in force containing important provisions affecting the trade in excisable liquors, extending from 1751 to the present year, and that no attempt has hitherto been made to consolidate these Statutes”. He makes the same plea in his second edition ten years later but was made to wait for the Licensing (Scotland) Act 1903.

I was pleased to learn that Mr Dewar retained his post until 1909 and therefore practiced licensing laws under the 1903 Act before his retirement. He must have enjoyed those twilight years of practice.

It was 152 years between the Tippling Act of 1751 and the 1903 Act. I do hope we don’t have to wait that long…

 

 

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Martin McColl Ltd v Aberdeen City Licensing Board 2015

CASE ANALYSIS OF THE DECISION IN MARTIN McCOLL LTD v ABERDEEN CITY LICENSING BOARD, ABERDEEN SHERIFF COURT, 26 AUGUST 2015

I am grateful to Jack Cummins for sending me a copy of this recent and as yet unreported licensing appeal. A copy of the judgement can be downloaded here: McColl v Aberdeen 2015.

This case concerns the refusal of an off sale licence by the Aberdeen board for a proposed RS McColls premises in Kinkorth, Aberdeen. The application was refused on the basis of overprovision and the public health objective. The overprovision element of this judgement is of interest but for reasons I explain below is only of limited use due to changes in primary legislation. The appeal as regards the public health objective is much more interesting.

Background to the Case

The Aberdeen board has a virtual blanket overprovision zone across it’s whole jurisdiction in respect of off sales, save a forested area and a green field site used for farming (Anguston and Kirkhill). A copy of the policy can be accessed here.

The policy states: “Having excluded these two localities, the Board identified the rest of its area as a locality which has overprovision of off sales premises. The Board, having regard to the number and capacity of liquor licensed premises in this locality and, with the supporting evidence provided by consultees, adopted this locality as having an overprovision of liquor licensed premises for off sales. The Board realised that there were premises which sold alcohol for off consumption only and other premises which sold alcohol for both off and on consumption. It decided to restrict overprovision to premises that sold alcohol for off consumption only which, according to the information from the Health Board, is where the source of cheap alcohol lies“.

They go on to say: “The Board also realised that this figure was likely to change in future should any off sales premises close by way of surrender or revocation. The Board was also aware from the Health Board’s advice that described their evidence as “the tip of the iceberg” and that there was a lot of under-reporting. The Board therefore considered that this would not automatically lead to a successful application for a new licence on the basis that an existing licence had been surrendered or revoked. Should that occur the Board may consider carrying out a further overprovision assessment before determining such future application.”

The board also say: “The Board realised that the terms of section 7 of the 2005 Act did not support calculating overprovision to cover its entire area“. This will prove important shortly!

In this case, the applicant sought an off sale display area of 10m2 for the shop premises. The application representations from Police Scotland and the Licensing Standards Officer, both of whom drew the board’s attention to their own policy. The application was refused.

Overprovision and Localities

In relation to overprovision, the board state in its policy (see above) it could not adopt it’s whole jurisdiction. The sheriff seems to take the view therefore that the selection of the Anguston and Kirkwall localities amount to excluding two areas “of no consequence, in an effort to present the resulting locality as other than covering the whole area“, that the subtraction of these two areas was a “cosmetic exercise” and therefore the 2005 Act had not been followed, requiring as it does localities to identified and assessed. The Sheriff recognises that the Air Weapons and Licensing (Scotland) Act 2015, which is now enacted but not yet commenced, will clarify that a board is entitled to adopt its entire jurisdiction.

The Sheriff also criticises the Board for the absence of dealing with the steps required under s.23(e) in order to find a ground of refusal with regard to overprovision, namely to have regard to the number and capacity of licensed premises, or licensed premises of the same or similar description as the subject premises in the relevant locality.

Further criticism is levied in that the board did not refer to the locality within its policy (that is, the whole jurisdiction minus Anguston and Kirkwall), but instead chose to consider a second locality which was determined at the hearing (1 kilometre from the application premises). The statement of reasons did not specify in which of these localities overprovision would have resulted with the grant of the licence.

This part of the decision is likely to become a footnote given the amendments which will be brought in by the 2015 Act. However, there is much more to consider here which will be of interest to those exorcised by the role of the public health objective.

Possibility vs Probability: the role of Public Health and Licensing

A second ground of appeal upheld by the court was that, in refusing the application based on the licensing objective of protecting and improving public health, the board looked to whether the application “may” be inconsistent with that objective; whereas the legal test in s.23(5)(c) is that the grant “would” be inconsistent. The difference between “may” and “would” is critical. This passage from the decision will be of assistance to those who seek to argue that speculation about potential health harm (or indeed, speculation about imperilment of any of the objectives) should not be sufficient grounds on which to refuse an application. The sheriff says: “It is very clear that [the Board] require, when applying such factors as are relevant, to come to a view that these would be [my emphasis] inconsistent with one or more of the licensing objectives (Section 23(5(c)) and in that event that the board must refuse the application. That is, however, a completely different test from a set of circumstances which may be so inconsistent [my emphasis again]. This is the difference between possibility and probability. The defenders have adopted a substantially lower than test than required.”

This passage seems to suggest that refusing a licence on the basis that it is possible that it may lead to inconsistency with the licensing objective is therefore not good enough. A board requires to have sufficient evidence that that the inconsistency is not merely possible but is probable. Considering the wider jurisprudence on which I have blogged in these pages, such evidence would have to be targeted in terms of the specific application and premises and would also require to be probative and capable of assessment. This brings sharply into focus the contrast of certainty and speculation; the contrast between causation and correlation. There is a higher evidential threshold to demonstrate causation and probability compared to correlation and possibility. These issues are discussed at length in my blog post “Licensing: Public Health Evidence and Causality” from 8 January 2015.

To ask or not to ask, that is the Question

As a final vignette, the sheriff does, however reject the argument that natural justice was breached because part of the statement of reasons referred to possible domestic violence; a matter which had not been raised at the hearing: “I tend to agree with the Defenders’ solicitor that the board are not obliged to raise every aspect of its consideration with the representatives of the applicant. The policy statement gives notice to applicants of the relevant factors  and it is for applicants to select the topics on which they wish to address the Defenders in support of their application“.  This statement will no doubt create some debate amongst licensing practitioners although it can perhaps be considered obiter. Is it correct, for example, that an applicant can come away from a hearing having no idea why his application was refused because the board was silent on the particular issues which vexed it, and without being afforded the opportunity to respond to those criticisms? Typically the matters which cause concern are the ones which the board do raise in a hearing and allow the applicant to react to that.

If an applicant was to speak to every element of a licensing policy, licensing board hearings would be very long affairs indeed!

Conclusions

The overprovision and localities element of this decision is of time-limited effect. The wider debate about “possibility vs probability” is one which should have longer lasting import.

 

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The Scottish Mail on Sunday and Linear Pricing of Alcohol

SOME COMMENTS ON A RECENT SCOTTISH MAIL ON SUNDAY ARTICLE: “THE BARGAIN BOOZE BONANZA”, AND LINEAR PRICING OF ALCOHOL PROMOTIONS IN SCOTLAND

I was interested to read the Mail on Sunday article entitled “The Bargain Booze Bonanza” published on 2 August 2015. The article was first drawn to my attention by Jack Cummins via the @SLLPOnline twitter feed. My thanks to Jack for providing me with a link to the article here: http://www.pressreader.com/uk/the-scottish-mail-on-sunday/20150802/281779922836664/TextView.

Like many media articles on alcohol, there is much confusion and inaccuracy. This article regrettably is no different. The interpretation of Schedule 3 to the Licensing (Scotland) Act 2005, which contains the mandatory conditions which apply to all licences including a list of banned “irresponsible” promotions, has and will continue to be a talking point for legal practitioners. Some licensing areas state that certain promotions are unlawful, whilst others do not. Some licensing agents may disagree with the interpretation of what is or is not an irresponsible promotion.

There are a number of promotions referred to in this article as illegal on which I do not concur but I am narrowing the scope of this particular blog to the issue of pricing of single and double measures. The article calls these “Go large” measures. This is sometimes referred to as upselling or doubling up. The article says offering a double for any less than twice the price of a single is said to be “in clear breach of the law”.

Contrary to what is stated in this article, it is perfectly legal to have a double measure at a price which is less than twice the value of a single. What is illegal is where a premises tries to “upsell” the larger measure. So, if I ask for a rum and coke and the barman asks “Do you want to make that a double for an extra £1”, then that would be in breach of the Act. But simply having a price list and allowing the customer to make his or her own choice about whether they wish a single or a double is not, in my view, illegal. This particular point should be well settled by now. The 2005 act has not imposed “linear pricing”. That was clearly mentioned in Parliamentary debates at the time. On 20 September 2005 George Lyon MSP said that the then Scottish Executive had taken legal advice on whether Schedule 3 imposed linear pricing, and that advice was it did not. The purpose was not to introduce linear pricing, but deal certain promotional activity instead. The SBPA argued that it did introduce linear pricing, which the Executive rejected. An OFT complaint was pursued by the SBPA at this time, but it was also rejected on the basis that the OFT did not believe challenging the then Licensing (Scotland) Bill was within their remit (see “OFT Rejects Linear Pricing Complaint” [2005] 32 SLLP 13-14).

Licensing boards across Scotland have local policies which confirm that linear pricing in this context is a misnomer. The Perth & Kinross Licensing Board, for example, states in its current policy: “For the avoidance of doubt, the Board does not consider that there must be linear pricing of alcohol according to the size of measure.” 

The relevant paragraph 8(2)(c) of Schedule 3 to the Act states that an irresponsible promotion includes one which: “involves the supply free of charge or at a reduced price of one or more extra measures of an alcoholic drink on the purchase of one or more measures of the drink“. Having a double measure for less than the cost of two singles does not offend this provision: the larger measure is merely available at a certain price; it is not conditional on the purchase of one or more measures of the drink. It therefore only becomes irresponsible, in my view, if the barman tries to upsell the larger measure, which offends a separate provision under paragraph 8(2)(e) which states a promotion is irresponsible if it “encourages, or seeks to encourage, a person to buy or consume a larger measure of alcohol than the person had otherwise intended to buy or consume“.

There is a difference then in my mind between an advert or promotion which merely confirms the price of certain measures, compared to one which “pushes” the larger measure in some way. However, a degree of common sense should also be applied here. I do not think that, for example, upon approaching a bar having finished my half pint of ale the barman is committing an offence by asking me if I wish the “same again”, as some licensed trade trainers reportedly taught in the early days of the 2005 Act.

The Alcohol etc (Scotland) Act 2010 introduced partial linear pricing for multipack deals, but this does not apply if the single of product is not stocked (ie a four pack of beer is not caught unless individual cans of the same volume are sold), nor does it apply to multiples of multipacks. This gaping hole in the legislation, another example of woeful drafting when it comes to licensing law, has been remarked upon by me and others for some time. The Law Society of Scotland licensing sub-committee flagged this up to the Scottish Government before the 2010 Act was passed but to no avail. A new Bill, laid before Parliament by Dr Richard Simpson, contains a clause which would seem to close this particular gap: the Alcohol (Licensing, Public Health and Criminal Justice) (Scotland) Bill, which is discussed in my blog here.

If you require guidance or assistance on what may or may constitute an irresponsible promotion please contact me at stephen.mcgowan@tltsolicitors.com.

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