The Licensing Roundabout, Part Two

A FURTHER ANALYSIS OF THE SCOTTISH GOVERNMENT PROPOSALS ON ALCOHOL LICENSING REFORM

I have now had a chance to digest some of the wider and more specific issues raised in the new Alcohol proposals contained in the “Further Options for Alcohol Licensing” consultation released on 19 December 2012. The consultation can be accessed here.

SOURCE OF THE PROPOSALS
It is interesting to note the origin of the proposals. Although there is no clear source for every single proposal, and some have come from more than one source, my best guess is that the various stakeholders have the following “hits”:

Police – 5

Joint Action Group on Football – 2

Scottish Government – 4

Licensing Boards -4

Alcohol Focus Scotland/SHAAP – 7

Law Society/Licensing Solicitors – 3

The Trade – 1

The sole trade proposal which I can discern is the move to tighten up control on member’s clubs. This has most likely been raised formally by licensing boards but the issue has appeared in Scottish Licensed Trade News and clearly there is some concern from the “mainstream” licensed trade over club premises. SLTN reported as recently as 18 October 2012 that the Government had written to one concerned licence holder that it was a matter for licensing boards to deal with – see here. That position has clearly changed.

The consultation says (at paragraph 114) “The Scottish Government recognises that licensing can impose a burden on businesses, and is keen to minimise this”. Yet there is little evidence of the trade being listened to when you look at the numbers above. The good news is that the Government remind us on a number of occasions that the proposals are not fixed and they are open to all views.

In my previous blog on this I picked up on some particular themes which struck me. Having been through the document now I have some further observations.

FOOTBALL DISORDER
There are proposals here which would allow the police to seek an order to close every single licensed premises in a particular geographical area before and after a football match, on the basis that violence and disorder associated with football is “alcohol fueled”. This proposal steals from the Licensing Act 2003 where the police can apply to the court for a special “football” closure order. Of course, police have existing closure powers. What we are talking about here is a blanket closure of a number of premises. There are separate proposals to allow a licensing board to vary licensed premises opening hours surrounding football games (by virtue of the new powers to impose unilateral conditions introduced under the Alcohol etc. (Scotland) Act 2010) but the consultation itself seems to concede that this would be incredibly difficult to achieve for imminent matches and the wording devised to be imposed on licences to allow for this would be “exceedingly difficult” to devise without being “unduly onerous”. The only way it would work would be to allow Boards to unilaterally change premises licensed hours as they saw fit without recourse. That cannot in any meaningful sense be fair or proper.

POWER TO IMPOSE UNILATERAL CONDITIONS
I mention above the new power which allows Boards to vary conditions (and the word “vary” can mean add new). This is of real concern to me as although for a Board to add/vary a condition using this power there would need to be hearing, there would be no right of appeal. This consultation suggests, for the first time, that there “possibly” should be a right of appeal to the Sheriff. I am greatly heartened to see this. It goes on to say that new conditions could apply without need to update individual licences. By this, I think the intention here is to avoid the paperwork-headache that would arise in having to send all affected licences back to the Board to be updated before sending them back again.

I disagree with this. I think that if a licence holder is under a legal obligation to abide by conditions placed on his licence, failure to adhere which could lead to a criminal record, a £20,000 fine and/or 6 months in jail then the very least that he should expect is that all conditions are stated on the licence. Licences change hands all the time. That is the reality of business and the commercial world. If conditions are not stated then you can bet that they will be forgotten or not known about in the first place. I appreciate that there is a lot of work in asking licences to be sent back to be updated. But if the Board has placed new conditions on the licence then surely they must be stated on that licence.

POLICY, POLICY, POLICY
Practically all 7 of the proposals emanating from Alcohol Focus Scotland and SHAAP are about moving the whole licensing system to be based on a top-down policy. This is all about removing power from Licensing Boards and tying up the whole country into a policy framework which, of course, would be heavily influenced by health concerns. This should be of real concern to the licensed trade and for Boards themselves, in my view. Taking all of the “health” proposals together the result, if it ever came to pass, would be nationalised diktat where there is less and less local decision making and more and more emphasis on an abolitionist rhetoric. This approach would create a “locked-in” system designed specifically to curtail local licensing board independence and reduce the possibility of legal challenge. The argument put forward by the health lobby, and repeated in this consultation, is that “a process which is continuously under threat of legal challenge does not serve the public interest”. This is staggering. The public interest is not served by restricting access to justice. Who would invest and develop in a country with this sort of system?

The licensing system envisaged here would be a sham where boards are tied into making decisions based on policy alone, applicants and licence holders have no legal redress, and where the rules are set by the dogma of the abolitionists and anti-alcohol brigade. The “each application on its own merits” approach would bite the dust. As regular readers of this blog will know, my position is not that health is an irrelevancy, it is that is it merely one consideration of many (and certainly an important one) which licensing boards should balance when considering applications. Parliament has entrusted licensing boards to adminsister the licensing system because the members are locally elected representatives of their constituencies. They must be allowed to consider the positive and the negative aspects of an application.

LICENSING BOARD REPORTS
Further concern for Boards is the additional work expected of them in gathering, assessing and reporting evidence. AFS and SHAAP argue that if this is done better, then it would ensure Board policy is based on best available evidence and therefore “less likely to be successfully challenged”. Again this chimes with the proposals above. The health lobby wish to create a system in which the trade has absolutely no recourse. There is a fundamental presumption underlying this sort of ethos that alcohol is nothing but a negative aspect of society; that the licensed trade should be regulated almost out of existence. I also have concerns about how licensing boards are going to get the funding, staff, knowledge and resource to do all of this evaulating. At a time when licensing fees are under review, I am now even more worried.

THE BRIGHTCREW SPECTRUM
I do not propose on dealing with this in too much detail as my views have been well ventilated in a number of publications. The idea that the Government should introduce new primary legislation to “get around” case law may not sit will with some but it is not exactly novel. My worry is that the consultation does not deal with the “Brightcrew Effect” properly. It suggests that Brightcrew stops Boards from dealing with “noise complaints, fights and other disturbances because they are not directly concerned with the sale alcohol”. That is not a fair representation. I would suggest that there is a Brightcrew “spectrum”, with matters such as noise generated by persons under the influence at one end, and reviews as a result of tampered electricity meters at the other. If noise complaints, fights or disturbances arise as a result of persons who have consumed alcohol in a premises, then in my mind they are issues connected to the sale of alcohol and therefore intra vires to a Board. On the other hand, the steepness of stairs, the presence of an illegal immigrant in the kitchen, or whether children should be allowed to play Category D gaming machines is not connected to alcohol, are regulated elsewhere, and therefore ultra vires to a Board. These are of course, simply my own views on the matter.

The fundamental principle of Brightcrew – that licensing boards should stick to regulating the sale of alcohol and not intervene in other areas such as health and safety, and other non “licensing” matters, is not new. It cannot be correct that a licensing board concerns itself with shampooing carpets and that is where abandoning this principle will take us.

One final topic and I will leave the rest for debate elsewhere.

INTERNET SALES
The 2005 Act requires a premises to be licensed if alcohol is despatched from it in relation to off sales. This means that Scottish licensing laws do not apply to sales made over the internet or by mail order if the goods are sent from a warehouse/storage unit outside of Scotland. In turn, the various restrictions such as “irresponsible promotions” law cannot apply to businesses operating in other jurisdictions. The Government does not like this and wants to restrict the Scottish consumer choice by seeking to regulate based on a sort of “point of consumption” test akin to the recent Gambling Bill on online gambling. In this proposal, the business would have to be licensed not based on the geographical location of the despatch facility, but where the customer places their order. In turn they would have to abide by Scottish licensing law. This proposal has a number of difficulties to overcome before it could ever see the light of day.  There are European law issues here regarding the free movement of goods – but I will leave that for another day. For now I want to flag a practical aspect of this – exactly what would be licensed? If a mail order club has no premises in Scotland would they need to hire a unit somewhere or open a shop? In which Board area? The licence would have to attach to a “premises” of some kind unless the Government wishes to create a new class of licence altogether.

There is so much more to consider here. I look forward to reading the analysis, articles and reports in the months to come.

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About Stephen McGowan

Leading Scottish licensing solicitor at TLT. Chairman of BII Scotland.
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5 Responses to The Licensing Roundabout, Part Two

  1. Andy says:

    I would agree with the comment about shampooing carpets is not for the board to decide. This was a comment made by the licensing forum which in turn has made the suggestion to the board. I am sure that this was agreed by the forum in which members of the trade sit, before submission.

    • Thanks for your comment Andy. Of course, as I mentioned in the ‘carpet’ blog the shampooed carpets were a forum suggestion. It is a handy example of the sort of oddity that can sometimes come up at licensing boards. There are other boards with ‘standard’ conditions just as bizarre.

  2. Andy says:

    Stephen, I agree with your comments about members clubs as most nowadays are treading a fine line to comply with section 125. I would also argue that some voluntary organisations do the same, but funnily enough the Scottish Government does not want to engage on a definition of a Voluntary organisation. I know that most of your work is on behalf of the trade, do you know offhand how many proposals were submitted by the trade for review as per the ministerial foreword in the consultation papers.

  3. Andy, I do not know of any proposals submitted by the trade for review in advance of this consultation. I would be surprised if the trade knew that they had that opportunity. This is very much health-led so far as I can see. Of course, the trade now have the chance to raise concerns as part of this consultation. What I can tell you is that the Law Society of Scotland Licensing Sub-committee, of which I am a member, has raised a raft of issues with the Act but very few of these seem to engage ministers in the same way that the health proposals do.

    Now that I am Chairman of BII Scotland, with that hat on I will be submitting a response based on members views. Members of BII can contact me at stephen.mcgowan@tltsolicitors.com to let me have their thoughts.

    Have a very Merry Christmas!

  4. Pingback: A Bitter Taste? The Air Weapons and Licensing (Scotland) Bill | Stephen McGowan's Licensing Blawg

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