What the Doctor ordered: More licensing laws?

ON THE MEMBERS BILL INTRODUCED BY LABOURS DR RICHARD SIMPSON: THE ALCOHOL (LICENSING, PUBLIC HEALTH AND CRIMINAL JUSTICE) (SCOTLAND) BILL

No sooner had licensing commentators and practitioners gulped down the Stage 1 Report of the Air Weapons and Licensing (Scotland) Bill, with such indigestible morsels as a 6th licensing objective, were we faced with yet another proposed Bill which seeks to introduce yet further licensing laws! The sheer volume of legislation, and proposed legislation, surrounding alcohol now beggars belief. I once described licensing law at some conference as akin to a Mobius strip – as so-called “new” laws are introduced along the progress of the strip they in fact mirror so much of what has been tried before, that advancement of licensing laws becomes tautologous. But now perhaps it might be better to view the Scottish licensing laws as akin to the expanding universe theorem – continous growth in infinite directions.

This new Bill is, in fact, not a surprise to those of us who keep a close on eye on Parliamentary machinations, coming as it does from a Labour consultation which was a response to the singularity of the Alcohol (Minimum Pricing) Scotland Act 2012 and percived failings of the Alcohol etc (Scotland) Act 2010. My licensing friend Caroline Loudon (@CKPLoudon) and I provided the response to this consultation on behalf of the Law Society of Scotland licensing sub-committee.

The Bill can be accessed here: http://www.scottish.parliament.uk/S4_Bills/Alcohol%20(Licensing%20Public%20Health%20and%20Criminal%20Justice)%20(Scotland)%20Bill/b65s4-introd.pdf.

The “Shifting the Culture” consultation document from March 2012 can be accessed here: http://www.scottish.parliament.uk/S4_MembersBills/20120313_Shifting_the_Culture_Alcohol_Bill_Consultation_Final_version.pdf.

I have taken a look at licensing law retailed proposals for this Bill below. This article therefore does not consider education measures or general criminal justice measures such as the drink banning orders.

Mandatory Licence conditions concerning “Multipacks”

This aspect of the Bill addresses what most observed was a glaring hole in the mandatory condition introduced under the Alcohol etc (Scotland) Act 2010 to ban discounted multipack deals. The “ban” did not apply to multiples of multi-packs, only multiples of single items. In other words, if a single can of lager was for sale, then a four pack would have to be priced at 4 x the individual can; but 3 x the four pack could be sold at a discounted rate. This created an inverse incentive and was yet another example of poor drafting in the world of licensing.

Ban on caffeinated alcoholic products

The Bill proposes to introduce a ban on “ready mixed” caffeinated alcoholic products. The maximum level of caffeine is to be set by way of regulations. “Ready mixed” is defined as a product supplied to the premises (not the customer) in a sealed container. This also appears to apply where two or more containers are packaged together and supplied to the premises and the contents are designed to be combined. Depending on the level of caffeine set by regulations, the reality of this proposal is that it seeks to bring about a ban of a well known fortified wine, at least in its current format. The level suggested in the original paper was 150mg. This proposal, if the Bill were to be enacted, is likely to face challenge from the manufacturers or distributors of affected products on the basis of EU competition law and those affected may also be interested by a recent English magistrates decision (see here: http://www.thisismoney.co.uk/money/news/article-3025796/Ban-high-strength-alcohol-lead-huge-payouts.html and here: http://www.offlicencenews.co.uk/news/fullstory.php/aid/14881/Landmark_case_could_open_floodgates_for_councils_to_be_sued_over_Reducing_the_Strength_schemes.html) concerning the banning of higher strength alcohol products through mandatory local schemes, with those affected now considering compensation claims. It is not envisaged, as the Bill is currently drafted, that this ban would apply to drinks mixed at the bar such as an espresso martini or an Irish coffee.

Ban on increasing age of sale to 21

This proposal is interesting in that it comes just as the news is full of headlines about the NHS proposal to raise the age of off sales to 21 (see here: http://www.dailymail.co.uk/news/article-3026019/Ban-drinking-21-say-health-chiefs-Scots-consider-draconian-halt-surge-hospital-admissions.html). This proposal is designed to frustrate that! The Alcohol etc. (Scotland) Act 2010 created a law preventing licensing boards from adopting a blanket policy increasing the off sale age to 21 for their area. However, it is still open to a board to do so based on an individual, targeted basis such as through a licensing review hearing. Dr Simpson believes that this is a form of age discrimination and the proposal here is to stop boards from raising the age of sale to 21 regardless of the circumstances, on the basis 18 to 20 year olds are responsible adults and the product is legally available to them. I do question the timing of this NHS proposal given that the prevailing trend for young drinkers is to continue to drink less, and the 18 to 25 demographic is the one with the biggest decline in alcohol consumption as attitudes change (see here: http://www.theguardian.com/society/2015/feb/13/teetotallers-on-rise-in-uk-one-in-five-dont-drink, here: http://www.bbc.co.uk/news/magazine-25652991 and here: http://www.bbc.co.uk/news/health-31452735). From a legal perspective, it does seem to be at least odd that I could be a premises and personal licence holder and therefore selling and supplying alcohol to others at the age of 18, yet not be legally allowed to consume alcohol till 21. Well rehearsed arguments about serving ones country, marrying, driving, voting and so on would also apply.

Bottle Marking Schemes

The idea here is to allow the police, and no one else, to ask a licensing board to impose a bottle marking condition on off sales premises the purpose of which would be to require the retailer to mark his containers so that they could be identified at some later date, for example if found in the possession of someone under age causing trouble in a public park. The procedure would mirror the s.27A imposition or variation of conditions by the licensing board’s own volition. The s.27A procedure was criticised when introduced as there was no right of appeal for the licence holder should a condition be imposed. The policy behind such schemes is to identify whether retailers are selling alcohol to people who should not have it. If an under age person is found with a marked bottle, the idea is that this could then be used against the retailer whose mark is on the bottle as “evidence”. I do have some issues with this approach. There is a causality question; and a debate to had over the quality of evidence. Statements would have to be taken and with no one under oath or cross-examined in a licensing hearing there is room for error. There is also an issue over who is being targeted as the “villain”: if the alcohol has found its way to someone under age from an adult, then is there not a question as to whether blame should be apportioned to the retailer or to the adult? Proxy sales are of course illegal, and responsible small businesses should refuse sales to adults if they are concerned that the adult is going to give or re-sell the alcohol to someone under age. But unless there is a group of youths nearby or the trader has local knowledge, how is he to divine my clandestine intent? If the markings are visible, might that tarnish a trader if discarded bottles are discovered in public places, and would that be fair or proportionate? There are some issues to think through on this one.

Increased Neighbour Notification for Licence Applications

The original Labour proposal in “Shifting the Culture” was to re-introduce licence renewals so that the public would have a greater say. That appears to have bitten the dust and instead Dr Simpson’s Bill favours increasing the amount of neighbour notification at the time of a new licence or major variation application. The proposal here is to increase the notification requirement from the current 4m up to 50m from the boundary of the premises. This would generate a significant burden on licensing board staff whose job it is to identify all these possible residences and then send letters. The number of letters would increased significantly in certain areas such as inner cities. This would inevitably generate much more objections to applications.  At the same time, the Bill proposes doubling the time period for site notice display from 21 days to 42 days. At a time when the Parliament is looking at reducing red-tape, this is most unwelcome. The delays in processing licence applications are already causing considerable difficulty in certain board areas. Doubling the site notice period will create further delay and burden.

Restrictions on Alcohol Advertising near Schools etc

This part of the Bill proposes a ban on alcohol advertising within 200 metres of schools, nurseries/creches, or outdoor play areas for children. This has echoes of the laws introduced in the Alcohol etc. Scotland Act 2010 which introduced a similar proposal for banning adverts outside of licensed premises, designed to limit adverts such as large hoardings at the entrances to supermarket car parks. This proposal would ban any alcohol advertising within 200 metres of any boundary of the affected premises. This would seemingly capture billboards and the like, perhaps facing a school playground, but would also capture alcohol adverts on bus shelters and other fixed apparatus. It does, however, recognise that applying such a ban to licensed premises within that 200 metre radius be unworkable and there are exemptions in the Bill to deal with this.

Restrictions on Alcohol Advertising within licensed premises

This proposal would create a new ban on alcohol advertising within a licensed premises which is a off sales which forms part of a wider retail premises. The explanatory notes say: “There is currently nothing to prevent supermarkets or other retail outlets from advertising alcoholic products throughout their premises, even though only a specific part of those premises is actually licensed (to sell alcohol for consumption off the premises). As a consequence, it is possible that people in, for example, the tea and coffee aisle may be encouraged to take advantage of drinks promotions, having not originally intended to purchase any alcohol“. I do find it odd that 18 to 20 year olds are to be treated as responsible adults in relation to the “under 21 rule” discussed above; yet that same logic cannot be said to apply to the general adult population in relation to being exposed to an advert for alcohol within a retail premises.  I also wonder if this proposal does not amount to a duplication – even if to an extent – of the mandatory condition introduced at Schedule 3 Paragraph 13 (1B) which prohibits “drinks promotions” from taking place other than in the designated alcohol display areas. It may be deemed that there is a difference between “alcohol advertising” and “drinks promotions” but whether this distinction is facile is a separate argument to the “volume” point I have made on several occasions on this blog: in this case, I would argue that it does not help the trade or the public to have rules on “drinks promotions” and separate rules on “alcohol advertising”.

This overlap or duplication adds to the sheer amount of law in this area, in addition to its general infamy as regards interpretation and practicality (see my comments above about the “loophole” in previous attempts at rules on multipacks), and is a wider issue that must at some level of Government bear scrutiny.

This Bill, if passed, would become the 6th primary peice of legislation to impact on licensing law in Scotland since 2009. Surely this is beyond parody? How can a licence holder or member of the public possibly be expected to grasp the law when it is split over:

  • The Licensing (Scotland) Act 2005
  • The Criminal Justice and Licensing (Scotland) Act 2010
  • The Alcohol etc. (Scotland) Act 2010
  • The Alcohol (Minimum Pricing) (Scotland) Act 2012 (although this is yet to come into force)
  • The Air Weapons and Licensing (Scotland) Act 2015

…and now possibly the Alcohol (Licensing, Public Health and Criminal Justice) Act 2015?

And this list does not include the 35 or so secondary statutory instruments, 32 or so local licensing board policies, and the ongoing caselaw! And then consider that this has all been brought in since only 2009.

One of the original aims of the 2005 Act was to modernise the antiquainted elements of the Licensing (Scotland) Act 1976. I do often wonder what Gordon Nicholson would make of the evolution of the licensing laws which his Committee bequeathed in part, as well as the pace of such reform.

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About Stephen McGowan

Leading Scottish licensing solicitor at TLT. Chairman of BII Scotland.
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2 Responses to What the Doctor ordered: More licensing laws?

  1. Pingback: The Scottish Mail on Sunday and Linear Pricing of Alcohol | Stephen McGowan's Licensing Blawg

  2. Pingback: McAskill Calls for More Licensing Law Reforms | Stephen McGowan's Licensing Blawg

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