ON THE QUESTION OF A LICENSING BOARD’S POWER TO ATTACH CONDITIONS AND WHAT MATTERS MAY BE REGULATED UNDER LICENSING LAW
The Dundee Licensing Forum has asked the Dundee Licensing Board to consult on a list of what it calls “Mandatory” conditions which the Forum has devised and would like the Board to attach to all licensed premises in Dundee. The Consultation, which can be accessed here, closes on 26 October 2012.
The list of conditions the Forum wishes to see attached to premises licences are as follows (there are separate questions in relation to occasional licences but I am not dealing with these here):
1. The premises must be maintained in a clean and hygienic condition.
2. The structure of the premises and the fixtures and fittings associated with the premises must be in a sound condition, must be kept clean and be properly maintained.
3. Where adjustments have been made for disabled persons such as wheelchair lifts, these must be available for use and maintained so that they are safe and operational. Disabled toilets must be kept clean and free from obstruction and not be used for storing equipment such as baby/toddler high chairs.
4. Blocked toilets and urinals must be put out of order and thereafter restored to effective working order as soon as possible.
5. Missing locks or lock catches or ill fitting doors on toilet cubicles must be restored to working order as soon as possible.
6. Matted or ingrained carpets must be thoroughly cleaned by shampooing. Worn carpets that are no longer capable of being cleaned must be replaced.
7. Dirty or stained seating upholstery must be thoroughly cleaned by shampooing. Worn, torn or punctured seating upholstery that is no longer capable of being cleaned must be repaired effectively or replaced.
8. Internal decor including wallpaper, paintwork, window blinds and curtains must be maintained in clean and good condition.
9. The entire premises both internally and externally must be kept free from graffiti.
10. Provide suitable facilities for the appropriate disposal of cigarette/tobacco related litter for the use of patrons who smoke outside the premises.
11. Maintain in a clean condition the areas to the exterior of the premises where patrons smoke. Including removing discarded cigarette/tobacco related litter from the pavement outside the premises.
There is no doubting that the Forum have good intentions in seeking to ensure licensed premises are ship-shape, but is shampooing carpets really a matter for a licensing board?
Section 27(7) of the Licensing (Scotland) Act 2005 contains the rules as to what a board can and cannot do when attaching a condition to a licence. [As an aside, this Consultation labels these proposed conditions as “Mandatory” but that is a slip of the pen. The only mandatory conditions are those imposed by Parliament and found in Schedule 3 to the 2005 Act. These conditions are in fact proposed Local conditions, meaning conditions invented by the licensing board themselves].
Section 27(7) says that a licensing board may not impose a local condition “which relates to a matter (such as planning, building control or food hygiene) which is regulated under another enactment”.
The purpose of this provision is to avoid “duplication” with requirements under other areas of law. Dundee Licensing Board’s own Statement of Licensing Policy 2010-2013 says: “The Board will, so far as possible, avoid duplication with other regulatory regimes such as health and safety at work and fire safety” (Page 20 – see here to access the statement).
The argument then is that the vast majority of these proposed conditions, if not all, fail the duplication test under s.27(7). A good number of them relate to health & safety law, some to building standards, and some to Equalities legislation. To put it another way, it is not competent for a licensing board to attach conditions about shampooing carpets.
In addition to failing the duplication test, they also fail a test of being unsufficiently closely connected to the sale of alcohol. In the now seminal decision of Brightcrew Ltd v City of Glasgow Licensing Board  CSIH 46, the Court of Session held that the essential function of a licensing board is to regulate the sale of alcohol, not other matters – and in my eyes those “other matters” would certainly include controlling such things as upgrading upholstery and shampooing carpets. In the post-Brightcrew landscape, I would suggest that all of these conditions are challengeable. I analysed the import of the Brightcrew decision in an article for the Journal of the Law Society of Scotland, here.
I am also reminded that over burdonsome regulation is cited as one of the reasons why Scotland’s pubs are closing at an alarming rate.
SECTION 27A – UNILATERAL POWER?
An additional issue raised by this consultation is a new power licensing boards have been granted, under a new s.27A of the 2005 Act. This was provided for in s.10 of the Alcohol etc (Scotland) Act 2010 but is not yet in force.
The Dundee Board rightly point out that, at present, they cannot simply just attach conditions to existing premises willy-nilly. They can only do so in relation to a new application, or where a premises is before them at a hearing for some other reason such as perhaps where things have gone wrong – perhaps a police request to review a a licence as a result of crime, disorder and so on.
However, Parliament has endowed Boards with a new power to unilaterally vary conditions to existing licences (and “vary” would include addition, modification or deletion). This concerns me greatly and has real implications in relation to the right to a fair trial and access to justice issues generally.
The new s.27A will allow Boards to “call in” licences to have conditions attached. There would be a hearing, the licence holder would be invited and can make a case against the new condition(s) but incredibly there is no right of appeal. This means that s.27A hearings could become a formality. With no redress, boards can simply attach the conditions and the only remedy for the licence holder would be to seek judicial review. That immediately places justice out of the reach of the licensed trade with the exception of muiltiple retailers and large pubcos due to expense.
But how does s.27A fit with s.27(7) and Brightcrew? The new Section 27A will sit separately from the limitation under s.27(7), so I suppose it could be argued that Board need not have regard to it. However, I am again not convinced that a Board could use s.27A to introduce conditions like those proposed in the Dundee consultation (eg health and safety). Section 27A(5) says:
“The Board may make a variation under subsection (1) only where it is satisfied that the variation is necessary or expedient for the purposes of any of the licensing objectives.”
This brings us back to Brightcrew. Brightcrew confirms that the licensing objectives are licensing objectives, i.e. relating to the sale of alcohol, and not general public interest objectives. I would argue that a new condition imposed under s.27A would have to relate directly to the sale of alcohol due to terms of s.27A(5) and the Brightcrew decision. In other words, a condition requiring carpets to be shampooed would be unlawful.
The problem is, given there is no right of appeal, such a condition would be unchallengable other than by judicial review.
ENFORCEABILITY OF CONDITIONS
There is a separate legal point to be made about vires generally, and the enforceability of conditions – perhaps a topic for another blog – but note decisions such as Stewart v Perth and Kinross Council  24 SLLP 12, a civic licensing case which went all the way to the House of Lords and, in extremely short terms, says that conditions must be “reasonable”. There is also caselaw which says that a condition which is lacking in specification or is unenforceable should have no effect, and here we go into real licensing anorak territory: see Spook Erection Ltd v City of Edinburgh District Council 1995 SLT 107 and Dunsmore v Lindsay (1903) 11 SLT 545 for a start.
Just how clean do those carpets need to be?