The Minimum Pricing Multiverse: Why Facts Matter

Background

Minimum unit pricing, described by some as a “world leading” policy, was introduced by the Scottish Government in May 2018, following a significant legal challenge from some parts of the alcohol industry. It created what is sometimes called a “floor price” for alcohol. It is a condition of every alcohol licence in Scotland that alcohol cannot be sold below a certain amount; breach of this is a criminal offence, and could result in the licence being revoked. It was a significant, interventionist policy: certainly bold, and certainly controversial. One of the reasons the courts ultimately “approved” minimum pricing was that the law had a sunset clause: it would operate for five years, the operation would be assessed, and then Parliament would have to vote on whether to retain the law permanently with regard to that assessment.

I have been asked a number of questions around the policy by clients and other stakeholders in the licensing system. This article attempts to bring together these queries, and to urge stakeholders to consider the relevance of facts.

Uprating the Minimum Price

Why look at all this now? Well, because the Scottish Government has agreed that the level of unit price should be increased, from 50p to 65p, and on 8 February 2024 announced plans to pass secondary legislation to uprate the amount. A draft Order was laid before Parliament on 19 February 2024: The Alcohol (Minimum Price per Unit) (Scotland) Amendment Order 2024. The Order will amend the original Alcohol (Minimum Price per Unit) (Scotland) Order 2018[1] to swap out “50 pence” for “65 pence”.

This decision was announced ahead of Parliament voting on whether the law should be retained at all: it would now take an argument with some degree of invention to imagine the Scottish Parliament will do anything other than “approve” minimum pricing given the SNP and Green coalition have the votes to do so. The mechanism for making the law permanent has also been laid in draft form, before Parliament on the 19 February 2024, under the Alcohol (Minimum Pricing) (Scotland) Act 2012 (Continuation) Order 2024. This is the Order catered for under s.2(2) of the Alcohol (Minimum Pricing) (Scotland) Act 2012, without which the law of minimum pricing will “expire” under the sunset clause. It is anticipated that Parliament will vote to approve this Order, and therefore approve the permanency of minimum pricing, sometime this Spring, and that the new 65p price will go live in September 2024.

Facts Matter

The public have been consistently presented with the proposition that “minimum pricing has saved lives”. This has been repeated by politicians, health experts and others over some time now but particularly in the last few weeks. It is almost as if it has become accepted that this is a material fact through repetition, instead of genuine analysis. The reality, for those who choose to critically examine the Government’s own assessment and studies, is opaque, and in this article I will express why such statements are, for me, something other than factual.

For and Against: not as clear cut as might be thought

Taking a step back for a moment, I think it is important to acknowledge that across the businesses who observe the policy there are mixed views. It is inappropriate to think of minimum pricing as a “them vs us” scenario with health on one side and the alcohol industry on the other. The alcohol industry in Scotland is not a homogenous entity; it is profoundly heterogenous. There is no such thing as “Big Alcohol”. It would be untrue to state that the alcohol industry opposed and continues to oppose minimum pricing. In fact, the alcohol and licensed trades remain split on this point. Significant names such as Tennents, Greene King, and the Scottish Licensed Trade Association all publicly supported it, and again some have come out publicly to declare support for the new rate of 65p this month[2].

The legal challenge[3] surrounding the adoption of minimum pricing led to significant media coverage over many years and the existential concept of the measure has been challenged on a continual basis; debated amongst academics and commentators.

But the variety of views does not just exist amongst the diaspora of the alcohol industry. It is also a policy widely discussed unofficially amongst the licensing community in Scotland and I think it is fair to say it has both supporters and detractors. There is no unanimity.

The same, indeed, might be said for those from the health community: addiction charities such as FAVOR[4] have been outspokenly negative about pursuit of the policy and the impact it has on their service users[5].

The Scottish Government’s own assessments on Public Attitudes also confirm a split in support amongst the general public: a study published in September 2023 indicated 43% of the population was in favour, versus 38% against[6].

Counterfactuals and Factuals

Now in 2024, as we teeter on the brink of the policy being made permanent, my concern with minimum pricing is not necessarily the existential rights and wrongs of the policy itself but that Government seems prepared to overlook the equivocal status of the evidence on which the policy is to be assessed. The evidence is the Public Health Scotland Final Report[7] which details the analysis of a large number of discrete studies which have been conducted over the last five years, the concomitance of which is presented in one over-arching document. Upon publication of this in June 2023, the Government unambiguously declared:

“Scottish Ministers have considered all the information presented in this report and conclude that there is sufficient evidence that Minimum Unit Pricing has achieved its policy aim.”

This is a one-eyed statement to any impartial analysis. When the report was published, the Scottish Government said that the policy had “saved lives”, this notwithstanding that the number of alcohol related deaths had actually risen. In fact, the claim of saving lives emanates from just one of these discrete studies and this was only by comparison to a counterfactual; it was speculation of an alternative reality. The argument here is that it “saved lives” because that the policy had theoretically stopped more deaths from happening: this is not an analysis of reality; but of a theorised world where the rate and rise in England & Wales was used as a barometer. “But for” minimum pricing, it was argued, the rates would have been a lot worse. The “lives saved” are theoretical. Meanwhile, back in the real world, the number of people who have died has risen.

The Scottish Government were later obliged to reconsider their wording following an intervention from the UK Statistics Authority[8]; such hypotheses were merely that; speculation, not material fact. Then the Sunday Times uncovered (in August 2023) interference from Holyrood civil servants to amend some of the wording in the reports in order to create a more favourable impression of the outcomes. For example, where one report had claimed the evidence that minimum pricing had achieved a reduction in consumption was merely “consistent”, civil servants instructed this to be amended to read “strong and consistent”, and that is the wording which is used in the final report.

Despite these discoveries and an acknowledgement that the claim of lives saved is not factual, the phrase “minimum pricing has saved lives” continues to be espoused publicly absent appropriate caveats. It was stated as fact by multiple people giving evidence at the Health, Social Care and Sport Committee on 6 February 2024[9]. Yet this is not a fact: it is an estimate based on modelling of a counterfactual reality. It does us all a disservice not to make this clear in evidence at Parliament.

It is my view that as a matter of law and material fact, the proposition is not evidence based. When it comes down to it, the data that suggests there has been a 13.4% reduction in deaths and 4.1% reduction in hospital admissions is not from the real world: it is a form of well-intentioned clairvoyance. It is the minimum pricing multiverse.

The fact is that in real world deaths have not reduced, they have risen. Hospital admissions have not reduced, they have risen. This is not something to celebrate, but facts matter, or at least, they should matter, in determining such important governmental policy.

What is the True Policy Intention of minimum pricing?

There is also an ebb and flow around the true policy intention. Is minimum pricing a whole population approach, designed to cut down drinking across all of us? Or is it a targeted approach, aiming to intervene in the drinking patterns of the heaviest drinkers and most harmed? Is it both of these things?

When the Scottish Government published its macro-level Alcohol Framework in 2018, minimum pricing was described as having two drivers: the “whole population approach”, and “tackling health inequalities”. This was later confirmed in the Scottish Government Interim Business and Regulatory Impact Assessment published on 20 September 2023, which said:

“The policy aim of MUP is to reduce health harms caused by alcohol consumption by setting a floor price below which alcohol cannot be sold. In particular, it targets a reduction in consumption of alcohol that is considered cheap, relative to its strength. It aims to reduce both the consumption of alcohol at population level and, in particular, among those who drink at hazardous and harmful levels. In doing so, it aims to reduce alcohol related health harms among hazardous and harmful drinkers and contribute to reducing harm at a whole population level.”

I’ll come back to this point, but there is a real thread to pull on here: how can the policy be both holistic (“whole population approach”) and targeted (“tackling health inequalities”)?

Why increase to 65p and not some other number?

Some have asked me why the Government has settled on an increase of 15p, up to 65p. This is the number lobbied for by those in support of alcohol restrictions since at least 2021[10] and certainly throughout the period of the assessment and publication of reports this is the number those stakeholders have persistently put forward. I should declare that I am on record as opposing any increase whilst the “grand experiment” was running. I took the view that the courts had approved the scheme at a certain level and it would be unwise to change it until after a decision had been reached to retain the law[11]. It is interesting to note why the Government did not go higher: why not 70p or 80p for that matter? The Scottish Government said:

“Increasing MUP above 65ppu is recognised as being at too high a level for Scotland. The impact on consumers, dependent drinkers and the market would be very large. It is also likely that the possibility of unintended consequences would be increased, such as potential financial difficulties for dependent drinkers and increase in use of non-beverage alcohol. At these levels, the price floor would begin to impact beyond lower price alcohol products that have been the core target of the policy intent to reduce alcohol that is cheap relative to its strength. The level of interference of 70ppu, 75ppu and 80ppu is, therefore, too high to justify the policy aims despite the greater health benefit that would be achieved.”

Evidence Matters

I will now turn back to the over-arching claim that minimum pricing has worked: this is where we examine the evidence. I have reviewed the key studies which form part of the most important outcomes and areas of assessment in the overall report. When you take some time to examine the results of these studies and really look behind the curtain, the results are at odds with the backdrop of Government and health agency claims of success. Here is my summary of the discrete studies:

• Wyper et al (2023): This is the “counterfactual” study I refer to above and is the only one of all the studies in which it is claimed the policy had a success, here arguing that the policy led to a 13.4% reduction in deaths and a 4.1% reduction in hospital admissions. But these figures do not relate to the real world, where deaths and admissions have increased. These numbers are in fact modelling of an alternative reality, not material fact. In addition, if we take the hospital admissions data and examine the confidence interval, this is -8.3 to 0.3. This is a p Value, or a “probability value” of 0.064. Ask your friendly neighbourhood statistician what they make of the evidential strength of all of this.
• Manca et al (2022a): This study looked at the impact on ambulance callouts and found no evidence of impact.
• Manca et all (2023): This study looked at impact on alcohol dependence and found no evidence of impact.
• So et al (2021): This study looked at attendances at A&E and found no evidence of impact.
• So et al (2021): This study also looked at prevalence of illicit drug use and found no evidence of impact.
• Iconic Consultation (2020): This study looked at the impact on children and young persons drinking behaviours and found: “MUP was not perceived to impact on the alcohol-related behaviour of participants either positively or negatively”.
• Ford et al (2020): This study looked at harms from others to children and young persons and found: “No specific examples were provided by those working with families affected by alcohol use of positive or negative impacts from MUP”.
• Holmes et al (2022): This study looked at the impact on harmful drinkers: “There was no clear evidence found of any change in severity of dependence”.
• Kopasker et al (2022) and Leckcivilize et al (2022): these studies looked at impacts on expenditure on food and found “No evidence of effects on the quantity of food purchased, energy density or diet quality.”
• Krzemieniewska-Nandwani et al (2021): This study examined impact on crime and disorder and found: “Limited evidence of beneficial or detrimental impacts on crime”.
• Dimova et al (2022) and Emslie et al (2023): these two studies looked at homelessness and street drinking and found: “There were some reports of increases in illicit drug use among those already using drugs to supplement alcohol consumption but there were conflicting views on whether this was attributable to MUP. Minimal changes were perceived in terms of theft or begging to acquire alcohol”.
• Francesconi and James (2022); Manca et al (2022b) and Vandoros and Kawachi (2022) all looked at road traffic accidents and the results were inconsistent to say the least. “One paper found no evidence of impact, another paper reported evidence of an increase and a third paper reported evidence of a decrease.”
• Frontier Economics 2019; Frontier Economics 2023: these studies looked at the impact on the drinks industry and found “No evidence that MUP had significantly impacted the performance of the alcoholic drinks industry in Scotland in terms of the key metrics”.
• There are also a clutch of studies (Frontier Economics 2019; Paterson et al (2022); Paterson et al (2023) and Griffith et al (2022), Holmes et al (2022)) which looked at cross border purchasing trends but none of these have any dramatic results: “…no evidence of a substantial  impact on profitability, turnover or employment of retailers in Scotland close to the border”; “…some evidence of cross-border trade, but only on a small scale”.

The real-world studies are striking in how similarly ineffectual one way or the other the policy has been. Yet they have all been set aside by those who say the policy is a success, including the Scottish Government. Why? Why not deal with the totality of the report, with these other studies and facts?

It remains to be seen when the matter is debated in Parliament how the real-world studies will be critiqued or acknowledged, or if the Government will endeavour to focus solely on the single study from the MUP multiverse.

The absence of acknowledgement of the ineffectualness of the policy on real world data is doubly frustrating when Public Health Scotland has been quick to make pronouncements such as “there was no clear evidence of substantial negative impacts on the alcoholic drinks industry, or of social harms at the population level”. This type of commentary confirms, to me at least, that the presentation of the outcomes is overtly selective.

Impact Assessments relative to 65p

I now wish to turn to examine further publications linked primarily to the legislative process to uprate the level to 65p. In laying the secondary legislation (ie the draft 2024 Order I refer to above), the Scottish Government published a suite of “impact assessment” documents on 19 February 2024. These are discreet assessments, separate to the Public Health Scotland assessments and studies I discuss above (though rely heavily on them). My summary of these impact assessments is as follows:

• Business and Regulatory Impact Assessment[12]: this is an extensive document, a significant piece of work by all accounts, coming in at some 174 pages. Some of the detail of this is covered more generally in parts of this article, for example I look at issues such as enforcement, and the relevance of the UK Internal Market Act 2020 later on. At this juncture it is worthwhile focusing on the impact on businesses as in the earlier part of this article I have focused on health and societal impacts. The BRIA concludes there is “no strong evidence of an adverse impact on the alcoholic drinks industry as a whole as a result of MUP.” However, that being said, there is an acknowledgement that the position is nuanced, as there was: “evidence of some producers experiencing lower profits, and some smaller retailers having reduced revenues. Similar results are expected with an updated minimum unit price, with products which experience the greatest price increase expected to experience the greatest reduction in sales”.
• Child Rights and Wellbeing Impact Assessment[13]: there is no evidence of any impact either good or bad in relation to children’s rights and wellbeing. This is perhaps unsurprising given the terms of the related assessments I discuss above, but it is useful to see how this is summarised in this separate impact assessment. The impact assessment does its best to paint the outcomes as impactful, relying on giving examples of “qualitative” evidence, which means viewpoints expressed by individuals as opposed to material fact. Notwithstanding these efforts the assessment contains two key statements which point to the truth of the matter: “It is not possible to say whether children and young people in families affected by alcohol use were positively or negatively affected”, and then “it is the assessment of Scottish  Ministers that the continuation of MUP, and the increase in price to 65ppu, is unlikely to have a significant negative or positive impact on children and young people.”
• Island Communities Impact Assessment[14]: this impact assessment again does not appear to take us anywhere towards any evidential base one way or the other. Consider the following statement: “Whilst there is no specific study relating to the effects of MUP to date within island communities, there is some evidence island communities tend to have slightly lower levels of hazardous and harmful drinking as well as lower mean units of weekly alcohol consumption compared to Scotland as a whole”. The assessment does recognise that some island communities have a higher proportion of employment within the alcohol industry, but instead of any discreet exploration of whether the impact on island-based businesses, they simply point to the wider analysis of the industry “at large”, which for me is a missed opportunity. The assessment also confirms the following: “No evidence was found during the five-year evaluation to show the implementation of MUP at 50ppu has had an effect on the island communities in a way that is significantly different from its effect on the mainland.”
• Fairer Scotland Duty Assessment[15]: this assessment relates to socio-economic impacts. However, the assessment does not actually bring forward any separate analysis on the impact of minimum pricing on deprivation other than extractions from the counter factual modelling study: for example saying that “the greatest estimated reductions in deaths and hospital admissions as a result of MUP were observed in the four most deprived deciles in Scotland”. I do note however that this impact assessment again confirms what is now stated as the twin goals of minimum pricing. It is both a whole population approach, and also a targeted approach: “MUP targets hazardous and harmful drinkers in the most deprived areas.” It is instructive to see the report acknowledge the alcohol harm paradox as follows: “However despite lower levels of hazardous or harmful drinking, those in the most deprived areas are still experiencing higher levels of alcohol harm compared to those living in the least deprived areas. This is known in the public health literature as the alcohol harm paradox, and the reasons for this are not fully understood but there are a number of possibilities.” However, neither this assessment or the wider reports offer any material evidence to how minimum pricing may have impacted on what is known about the alcohol harm paradox. When they refer back to the wider studies, they do acknowledge the inconclusive and contradictory results: “Studies reviewed as part of the MUP evaluation suggested some hazardous or harmful drinkers had reduced their alcohol consumption, while others reported no change to their drinking. There was evidence that some people with alcohol dependence had been unable to reduce their consumption. One evaluation study found no significant change in the proportion of drinkers consuming at harmful levels amongst those in the lowest social grade.” Given the absence of evidence one way or the other in Scotland, the authors fall back to the modelling study, and have to look further afield by linking to a speculative WHO report from 2022, which has a foreword by Nicola Sturgeon in her then capacity as First Minister (on which see below).
• Equality Impact Assessment[16]: this assessment looks at how the uprate in minimum pricing might impact upon persons with a protected characteristic under Equalities legislation. I will summarise the report for each characteristic in turn, but the overall conclusion here seems to be that there is no evidence of any impact one way or another on the policy in terms of protected characteristics:
  • Age: “There is no evidence that MUP has had a differential negative impact on those within a certain age group nor that MUP exacerbates age inequalities”
  • Disability: “There is no direct evidence on the impact MUP may have on disabled people.”
  • Sex: Again there is no material evidence on this. The assessment can only have regard to the modelling study. “There is likely to be a slight differential positive impact on men, who consume more alcohol on average and therefore suffer more from alcohol harms.”
  • Pregancy and Maternity: “Given there is, at a population level, low levels of alcohol consumption amongst pregnant women in Scotland, it is unlikely that continuation of MUP at 65ppu will have a significant impact on this group.”
  • Sexual Orientation: “There is no direct evidence on how those in the LGBTQ+ community have been impacted by MUP.”
  • Gender reassignment: “There is no evidence that the continuation of MUP at 65ppu would have a disproportionate impact on the people who identify as trans.”
  • Race: “There is no evidence of MUP having a negative impact on any racial group.”
  • Religion: “There is no evidence of MUP having a negative impact on any religious group.”

The overall trend across all of these impact assessments is that there is no evidence of any impact one way or another; thus chiming with the totality of the studies under the PHS banner.

Hypothecation and Taxation

Another strand I wish to pull upon is the fact that minimum pricing is not a tax, though it is perhaps misunderstood as such by some. The “additional” money spent by the consumers does not go to the public purse, nor does it go the producer who made the alcohol, it goes to the retailer who has sold it. During the lengthy legal case against the Government pre 2018, it was made clear that the Scottish Government argued for the lawfulness of the policy partly on the basis that their hands were tied in terms of taxation alternatives: alcohol duty is a reserved matter, so that option was not open to them. The Scottish Government has, however, form for running what appeared to be a hypothecated tax: what became known as the “Public Health Supplement”, which was in operation from 2012 to 2015. This was a tax on the largest retailers of alcohol and tobacco products: the supermarkets (though not all supermarkets, only ones selling both alcohol and tobacco).

However, despite the labelling and public messaging over the Supplement, it was never hypothecated and the £95million raised disappeared into the Government’s general coffers with no transparency on how the money was spent. The nearest we got was a statement given on 19 February 2014 from John Swinney in Parliament[17], who said:

“The public health supplement was a temporary three year policy introduced at the spending review 2011 and was estimated at the time to raise an additional £25/35/35 million over 2012-13 to 2014-15. The estimated additional income was factored into the total resources available in spending review 2011 and contributed to the preventative spend measures introduced at that time…As set out at the spending review 2011, the public health supplement is a temporary three year policy. After March 2015 the legislation falls and the supplement no longer applies, so spending plans for 2015-16 were always set taking this into account.”

There is no clear reason I can divine as to why the Supplement was shelved after three years, though an academic study[18] which investigated this point claims it was, in part, down to the negative impact the tax had on relations between Government and business, and they go on to say:

“our analysis suggests the Supplement was not designed in such a way as to stimulate behavioral change among retailers, and that the revenues were not hypothecated for health, but used to address a gap in the Scottish government’s Spending Review proposals. It could therefore be argued (as many of our interviewees did argue) that the presentation of the Supplement as a “public health” measure was misleading.”

The idea of reintroducing this has already been heralded in light of the rise to 65p; the logic being that if retailers are “making extra money” through minimum pricing, it should be taken off them again through a separate tax. It is a dogmatic take, given the rise would be a mandatory licence condition: in putting the price up, retailers are obeying the law; to do otherwise would be a criminal offence under licensing legislation. Separately, given the argument for the increase is based on inflation, is it not also correct to understand that inflation impacts on costs and overheads that retailers have faced since 2018? It is also a novel view given the purpose of minimum pricing is to put people off buying alcohol because it is less affordable: is it not designed to make sales go down, not up?

The truth is that the idea of a new public health levy was already on the cards, having been announced by Shona Robinson MSP in her December 2023 budget[19]. This perhaps telegraphed the February announcements on minimum pricing. It will therefore be interesting to see what form any new levy takes and how it will, if at all, be properly hypothecated and transparent.

Compliance: Enforcement and Sanctions

I ought now to circle back briefly to discuss compliance, enforcement and sanctions. As I say above, the observation of the minimum price is a mandatory condition on every licence in Scotland under the Licensing (Scotland) Act 2005, and if a licence holder were to sell alcohol below the price, they would open themselves to regulatory action under that Act (which ultimately could mean revocation of the licence), whilst also committing a criminal offence under s.1 of the 2005 Act for which the penalty can be a fine up to £20,000 and/or six months imprisonment.

Since minimum pricing became law in 2018, I am struggling to remember any but a very handful of cases where a retailer sold alcohol below the minimum price, and those cases I can recall are from the very early days, and usually down to genuine oversight, e.g. arising from IT systems or simple human error, as opposed to a wilful act. Now in 2024 I am not aware of this being an issue whatsoever, either for Licensing Standards Officers or Police Scotland. I doubt it will be an issue when the price goes to 65p; other than again, perhaps some IT gremlins or glitches.

There is one study within the wider suite of assessments which looks at this: Dickie et al (2019)[20]. These researchers interviewed LSOs, Police Scotland divisional licensing officers and trading standards and in short found: “minimum unit pricing was, in the main, well implemented and compliance among licensed premises was high.” This study was done only one year into the 5 year experiment and I think it would have been interesting to have more of a longitudinal study carried out to determine any trends over that period – but my suspicion is that non-compliance is virtually non-existent save for some blips in the immediate introduction.

The study authors recognise some limitations in their approach: they did not look at, for example, any evidence of whether premises licence reviews had been brought as a result of non-compliance, because that data was too difficult to ascertain with only two licensing authorities having published such detail. They don’t seem to have recognised the role of s.14 of the 2005 Act which allows for “notices” to be issued for non-compliance but given the complexity of the licensing system that ought to be forgiven: however again the study is limited in that is looks at a period of less than one year. In order for analysis of impact on the licensing system to be more meaningful, Public Health Scotland should have commissioned the study to run from 2018 to 2024 and not just 2018 to 2019. However I think the study authors also very fairly note that the licensing system is designed to be one which encourages compliance first and sanctions last: if a retailer is in breach, the likelihood of them being issued a s.14 notice or being brought to review, far less charged by the police, is remote: what happens in the real world is that the friendly neighbourhood LSO will “have a word” and the retailer will comply and that is the end of the matter. Rarely in my experience does it go beyond that.

Best Buys?

One of the driving forces behind all of this is the seemingly dogmatic reliance on what the WHO calls the “best buys”, or what they say is the three key policy levers which might be pulled to deal with alcohol harm. These are sometimes called the “Three A’s”, viz Affordability (Price), Availability, and Attractiveness. But these concepts are artificial constructs within a macrocosm of global public health policy, and I wonder if they need to be revisited or at least critically re-evaulated based on real-world data from specific localities and jurisdictions.

Minimum pricing is an example of a bold policy which costs the Government nothing to implement; but on its own evidence is a policy which has had neutral impact, and on its own statistics deaths have gone up. This is why I think we are starting see some signs of reservation amongst parts of the health community: with so much focus on minimum pricing, other targeted interventions which may in fact address alcohol harm at the local level and impact on real lives and communities, but which might cost the Government money, are left behind.

It seems to me one can discern a shift in the academic health community towards critically analysing whether the other “best buys” are worth their salt. A recent example of this relates to alcohol advertising. Advertising, like price, is a totem; but again the stubborn adherence to this seems to me to be based on dogma, not on probative evidence. Consider the following: in a recent study[21] on advertising as a “best buy” the authors say:

“The available empirical evidence does not support the claim of alcohol marketing bans constituting a best buy for reducing alcohol consumption.”

I was instructed to analyse the evidential basis for the Scottish Government consultation on restricting alcohol advertising for the Scottish Alcohol Industry Partnership and that paper can be accessed here. My conclusions were in short, the same.

It seems to me that the multiple minimum pricing studies I refer to above, based on real world data should also, properly understood, give the academic community some degree of pause as to whether price, in the Scottish example, remains a “best buy”.

The Lawfulness of Minimum Pricing and its Evaluation

I now wish to bring us back to consider the terms against which the policy should be assessed. Remember that the Scottish Government said in 2018 that minimum pricing had two key aims: to reduce alcohol consumption generally in the population, and to tackle the most harmed and affected by health inequalities. Looking at the studies I refer to above, if we examine this through the prism of the whole population approach, the only way the policy can be described as a success is by closing our eyes to all of the real world data and looking only at the single study which looks at alternative reality data.

If we instead examine this through the prism of tackling health inequality and targeting the most harmed, I cannot see any evidence at all of success. In fact, I have noted one study[23], which was not included within the wider report of the Scottish Government, which found that consumption in the 5% heaviest male drinkers actually went up, and that consumption patterns by younger men in deprived areas was unaffected.

This is all incredibly important when we remember what the courts had to say about a policy with two objectives. When we refer back to Scotch Whisky Association and others v Lord Advocate and another, we find that in fact this was a crucial element to the courts determining that the policy was lawful at all: it was only upon clarification from the Scottish Government in court that the primary aim of the policy was tackling health inequalities; that it was targeted towards harmful drinkers, that the courts approved it. Consider the following summary of this point:

“The CJEU also made clear, however, that minimum pricing genuinely pursues a legitimate public health objective, and – as long as the legitimate objective is identified specifically as the reduction in alcohol consumption among heavy drinkers and drinkers with potential alcohol-use disorders – is both appropriate and necessary.”

That statement comes from a 2022 WHO Paper which lobbies for minimum pricing[24]. And yet it is remarkable to recollect the recent amount of focus there has been on the efficacy of minimum pricing in the Scottish experiment being about the whole population approach.

Let us remind ourselves of the specific wording from the courts which clarifies this point (my emphasis):

“A critical issue is, as the Lord Ordinary indicated, whether taxation would achieve the same objectives as minimum pricing. Although not all of the points on which he relied for his conclusion on this issue can still stand, the main point stands, that taxation would impose an unintended and unacceptable burden on sectors of the drinking population, whose drinking habits and health do not represent a significant problem in societal terms in the same way as the drinking habits and health of in particular the deprived, whose use and abuse of cheap alcohol the Scottish Parliament and Government wish to target. In contrast, minimum alcohol pricing will much better target the really problematic drinking to which the Government’s objectives were always directed and the nature of which has become even more clearly identified by the material more recently available, particularly the University of Sheffield’s April 2016 study.”

In order to convince the courts that minimum pricing was lawful, the Scottish Government specifically stated in clarification that the primary goal was not a whole population approach but in fact the targeted approach, and always had been (the petitioners had sought to argue that it was only during the life cycle of the case that the Government had “changed tack” in focusing on the targeted approach, but the court rejected this and agreed that the focus had always been there).

That being the case, surely as a matter of law all parties must accept that it is the achievements against that goal which are “weighted” for the purposes of the Parliamentary assessment as to whether the policy should remain on the statute books?

Consider this important extract from the judgement:

“The system will be experimental, but that is a factor catered for by its provisions for review and “sunset” clause. It is a significant factor in favour of upholding the proposed minimum pricing regime.”

It seems to me that the fact minimum pricing was allowed to go ahead at all was on the basis (a) that the Government clarified to the courts that the primary focus was on “really problematic drinking”, not general consumption; and (b) because it had a safety valve of the trial period to evidence whether that objective had been achieved.

These were the two key reasons to declare the policy lawful.

The UK Internal Market Act 2020

There is a further legal quirk: does the increase in the minimum price have any implications under the UK Internal Market Act 2020? This law did not exist at the time minimum pricing was introduced in 2018, but it does apply now. One would hope that, given the debacle over the Deposit Return Scheme, the Scottish Government has got its ducks in a row. The Scottish Government accepts that the price increase does constitute a “substantive change” for the purposes of s.9 of the 2020 Act. This issue is canvassed in Part 6 of the BRIA[22]. The Scottish Government puts forward a number of reasons why it does not believe the 2020 Act is triggered but I shall summarise this by quoting the following: “it seems unlikely that an adverse market effect will arise but it cannot be discounted on the information available” (my emphasis). It will be interesting indeed should anyone affected by the increase seek to unpick this.

And finally…Post-legislative scrutiny?

As someone who is at the coal face of licensing law in practice, I can say unequivocally that the Government is quick to impose restrictions, and slow to analyse whether they work or not. The sheer volume of licensing law across multiple Acts and secondary legislation is legion: and yet, with the exception of minimum pricing, there has been not a single effort to ascertain the impact of any of it.

I find it incredible that there has been no post-legislative scrutiny by Parliament of the Licensing (Scotland) Act 2005 or any of its myriad amendments given public and parliamentary interest in alcohol harm.

I think it is incumbent upon a prudent legislator to understand what has or has not worked across the existing laws, before adding more.

Only through such scrutiny could gaps or successes be identified. Such scrutiny should, of course, be vested in material fact.

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[1] SSI 2018/135 (as amended by SSI 2020/81).

[2] https://www.theslta.co.uk/news/scottish-government-announces-retention-of-minimum-unit-pricing-for-alcohol/

[3] Scotch Whisky Association and others v Lord Advocate and another [2017] UKSC 76.

[4] https://www.facesandvoicesofrecoveryuk.org/

[5] See, for example, “Unmasking the Mirage: Evaluating Scotland’s Minimum Pricing Policy for Alcohol”, Annemarie Ward, CEO of FAVOUR, 29 August 2023 (https://www.facesandvoicesofrecoveryuk.org/unmasking-the-mirage-evaluating-scotlands-minimum-pricing-policy-for-alcohol/)

[6] https://www.gov.scot/publications/public-attitudes-minimum-unit-pricing-mup-alcohol-scotland/

[7] https://publichealthscotland.scot/media/20366/evaluating-the-impact-of-minimum-unit-pricing-for-alcohol-in-scotland-final-report.pdf

[8] https://uksa.statisticsauthority.gov.uk/correspondence/response-from-sir-robert-chote-to-sandesh-gulhane-msp-minimum-unit-pricing/

[9] https://www.scottishparliament.tv/meeting/health-social-care-and-sport-committee-february-6-2024

[10] https://www.alcohol-focus-scotland.org.uk/media/440102/joint-afs-shaap-mup-letter-to-minister-of-ph-and-cabsec-health-with-signatories-181121.pdf

[11] https://www.slrmag.co.uk/minimum-unit-pricing-stephen-mcgowan/

[12] https://www.gov.scot/publications/minimum-unit-pricing-mup-continuation-future-pricing-business-regulatory-impact-assessment/pages/1/

[13] https://www.gov.scot/publications/minimum-unit-pricing-mup-continuation-future-pricing-stage-2-child-rights-wellbeing-impact-assessment/

[14] https://www.gov.scot/publications/minimum-unit-pricing-mup-continuation-future-pricing-island-communities-impact-assessment/

[15] https://www.gov.scot/publications/minimum-unit-pricing-mup-continuation-future-pricing-fairer-scotland-duty-assessment/pages/1/

[16] https://www.gov.scot/publications/minimum-unit-pricing-mup-continuation-future-pricing-equality-impact-assessment-results/documents/

[17] https://archive2021.parliament.scot/S4_ChamberDesk/WA20140219.pdf

[18] Hellowell et al (2016): Hellowell M, Smith KE, Wright A. “Hard to Avoid but Difficult to Sustain: Scotland’s Innovative Health Tax on Large Retailers Selling Tobacco and Alcohol.” Milbank Q. 2016 Dec; 94(4).

[19] https://www.gov.scot/publications/scottish-budget-2024-25/documents/ – see Page 31 for reference to the new public health supplement.

[20] https://www.healthscotland.scot/media/2660/minimum-unit-pricing-for-alcohol-evaluation-compliance-study-english-july2019.pdf

[21] Manthey et al (2023) Restricting alcohol marketing to reduce alcohol consumption: A systematic review of the empirical evidence for one of the ‘best buys’, Addiction, 2023; 1-13.

[22] https://www.gov.scot/publications/minimum-unit-pricing-mup-continuation-future-pricing-business-regulatory-impact-assessment/pages/7/

[23] Rehm et al (2022), “Differential impact of minimum unit pricing on alcohol consumption between Scottish men and women: controlled interrupted time series analysis”, BMJ Open 2022;12.

[24] “No place for cheap alcohol: the potential value of minimum pricing for protecting lives”, WHO, June 2022: Para 5.1.3.

Bengal Dish Ltd v Aberdeenshire Licensing Board – 20 December 2023

This is a very useful little case concerning a premises in Torphins, called the Learney Arms. It is as yet unreported but I will update the blog with a link should that change. I am grateful to Advocate Scott Blair, who acted for the Pursuer in this case, for giving me a copy of the decision.

This case relates to the imposition of a variation to restrict the premises ability to offer live or recorded music to not later than 11pm, following a premises licence review hearing. This centres around complaints from noise from an upstairs neighbour. The review was brought by the Environmental Health department of the local authority.

The importance of this case is that it confirms under discrete Scottish licensing laws that the wider legal definition of what constitutes a “public” nuisance under general administrative law and UK licensing law is the same: namely, that nuisance experienced by a single complainant is *not sufficient* to meet the test of what constitutes “public”.

Sheriff Principal Pyle, who has dealt with a number of other licensing appeals over the years, puts it this way:

“The question therefore became whether the noise experienced by the flat owner could properly be described as a public nuisance, such that the defenders were entitled to vary the conditions of the pursuers’ premises licence. In my opinion, it is obvious that they were not so entitled. The defenders state that the owner is a member of the public. That is doubtless true, but it ignores the rule that for something to be regarded as a public nuisance it is necessary to show that it affects an identifiable class of the public.”

In reaching this view he relies on long-established legal and licensing principles, citing the famous case of R (Hope and Glory) Public House Ltd v City of Westminster Magistrates Court [2009] EHWC 1996 Admin; and the older Att-Gen v PYA Quarries [1957] 2QB 169 decision. Hope and Glory is a case very well known to those who practise licensing law under the Licensing Act 2003 (England & Wales) whilst the PYA Quarries case comes from a wider body of general administrative law (of which licensing is a sub-group).

A “class of the public” means something more than a single person: it means a “representative cross section” and “effect on a sufficiently high number of members of the public which was sufficiently widespread or indiscriminate“. In short compass, public nuisance must be understood as a plurality. I think it is long-established, however, that the plurality can be persons beyond the customers of the premises (Sangha v Bute and Cowal Divisional Licensing Board 1990 SCLR 409).

This judgement may be surprising at a local level, as it may jar to read that complaints from a single source do not, as a matter of law, engage the licensing objective of preventing public nuisance, but this is a long-established legal point which has only now found discrete voice (so far as I know) in a Scottish licensing case under the 2005 Act.

I think it is worth ventilating the view that there is a difference between what is public nuisance under the Licensing (Scotland) Act 2005; and what constitutes statutory nuisance under the Environmental Protection Act 1990; and what may deemed to be a common law nuisance. For the avoidance of doubt, a statutory nuisance or a common law nuisance is not the same thing as decreeing it a “public nuisance” under the 2005 Act. As an aside, it is worth noting that the Pursuer in this case reminds us that nuisance at common law must be more than “mere discomfort” (Watt v Jamieson 1954 SC 56; Anderson v Dundee City Council 2000 SLT (Sh Ct) 134).

This point is, for me, a further reminder that all of us who live and work in the world of regulatory and licensing law should tread carefully in knowing what legislative framework is the correct one to follow to address an alleged mischief. If an Environmental health officer fails to make a case under their own legislation, it is improper to use the licensing system as a “stalking horse” to get at the alleged mischief – unless, of course, they can make out the case that there is public nuisance, as that term should be properly understood.

Understanding that public nuisance and common law nuisance are two different animals takes us only part of the journey. We must then remember that even if public nuisance was found in fact, in order for a board to engage steps under s.39 of the 2005 Act it would still have to be a case where the public nuisance alleged met the Brightcrew test; ie that it had a sufficient nexus to the sale of alcohol. This is a test which does not exist under the licensing laws of England & Wales, where broader matters can be considered – as the 2003 Act does not just deal with the licensing of alcohol, but other matters (eg “late night refreshment”).

I would remind readers of Bapu Properties Ltd v City of Glasgow Licensing Board (Glasgow Sheriff Court, 22 February 2012, unreported, but see McGowan on Alcohol Licensing (2021): Pages 26 and 31). In that case the Sheriff said the following:

“I conclude that, to the extent that the Board’s decision proceeds under Section 30(5)(b) of the 2005 Act, the apprehended ‘public nuisance’, upon which the Board’s decision was predicated, was not related to the sale of alcohol. The single function of a Licensing Board under the 2005 Act is that of the licensing of the sale of alcohol. The powers to licence the sale of alcohol cannot be deployed to effect objectives not related to the sale of alcohol, but which the Licensing Board might yet find desirable.”

This is all language linked to wider legal concepts of a body acting ultra vires; or acting with an improper purpose.

Let us also remind ourselves that nuisance may not always be noise nuisance. A person may experience, for example, “smell nuisance” from a licensed premises. But that is not a matter for the licensing board. Another example (from the heady days of a pre-social media world) might be fly-posting, which could be a form of nuisance, but is irrelevant as far as licensing goes (Maresq T/A La Belle Angele v Edinburgh Licensing Board 2001 SC 126).

But even with that, the journey is not yet complete, because we must also remind ourselves that the licensing objective is about Preventing Public Nuisance. This means it is about not necessarily that public nuisance has occurred in fact, but should be an exploration of what steps were taken to prevent it; and what steps have been taken to prevent re-occurrence. This is known in Scots licensing law as “future proofing” and is a further legal principle we must have in our minds around this discrete area. Consider the following dicta (from Lidl UK GmbH v City of Glasgow Licensing Board [2013] CSIH 25):

“the process of review is essentially forward looking. It involves examining whether the continuance of the particular premises licence in issue, without taking any of the steps listed in section 39(2) [that is, the sanctions open to a Board, e.g. suspension, revocation, etc], would be inconsistent with endeavouring to achieve the licensing objective in question. The process of review is therefore not directed to imposing a penalty in respect of some past event which is not likely to recur to an extent liable to jeopardise the licensing objective.”

Lastly, remember that this is all linked to the test as to whether a step should be taken by the board is whether they consider it “necessary or appropriate” (s.39(1), 2005 Act) for the purposes of licensing objectives.

Bengal Dish may have a very discrete point to make, but it is nevertheless of great utility in allowing these wider issues around “public nuisance” in the context of the 2005 Act to be explored. I hope this analysis takes the reader some way in that exploration.

Alcohol Advertising: A Tale of Quantity and Quality

On 30 November 2023 the Scottish Government published an analysis of the responses to its controversial consultation on proposed prohibitions around the advertising of alcohol.

The report can be found here. It was prepared by Griesbach & Associates, a research consultancy service who have form in providing consultation analysis for the Scottish Government.

Government has already decided on a direction of travel

The report includes a Ministerial Foreword, from Elena Whitham MSP who declares:

“It is clear that further engagement is needed, to ensure that future proposals have adequately taken account of the range of views on this matter. To that end, in early 2024 the Scottish Government will undertake targeted stakeholder engagement on alcohol marketing, to better understand the concerns raised by business stakeholders on this matter. I am committed to working with stakeholders on the impact and the implementation of proposals, and this collaborative approach will enable us to refine and enhance our proposals, ensuring that they’re well informed, deliverable and achieve our aim of reducing alcohol harms. The Scottish Government will then seek to undertake a further public consultation in 2024 on a narrower range of proposals, following the planned engagement with stakeholders in early 2024.”

So here we have official confirmation there is to be a second consultation; which will run at some point in 2024. That will no doubt require further analysis of responses, and then, at some further juncture, one assumes a Bill will be forthcoming.

There is here, for me, an admission of mis-step in the original approach. I was vocal in my criticism that Government allowed the consultation to be engineered, and steered, in a silo. That error appears to be gently conceded here.

A Stark Summary

Here are some key numbers from the Executive Summary:

• There were 2993 responses. Although the report doesn’t confirm this, I understand this to be one the highest yields to a Scottish Government consultation since Holyrood came into being. Of these, the report says there were 1985 individual responses, 423 responses from organisations, and 585 “campaign” responses which it says were organised by CAMRA (542) and the SBPA (81).
• 70% or more opposed nearly all of the specific proposals set out in the consultation.
• 77% opposed a comprehensive package of restrictions.

Who Responded?

Here is an extract from the report showing the different types of organisations (as opposed to individuals) which responded.

For transparency, I should note that my firm, TLT LLP, was the only law firm to respond and is one of the 8 respondents under the “Other Organisation Types”. One of the emotive aspects of the consultation was that it requested respondents to declare links to the alcohol industry. The Government was later required to confirm that industry responses would not be treated with any difference or weighting to responses from others. In the result, 22% of respondents said they had direct links, 13% said indirect links, and 65% of respondents said they had no links to the alcohol industry.

Specific Proposals and their responses

Here is a very quick headline summary of the responses to a few of the key proposals:

• Sports Sponsorship: 77% of respondents against a ban; 21% agreed with a ban
• Events Sponsorship: 81% of respondents said there should be no ban on alcohol sponsoring events like music and cultural events; whilst 17% agreed
• Prohibition on adverts in public places:75% against a ban, 22% for.
• Restriction of Alcohol displays in shops: 76% against, 21% for.
• Structural Separation ie “shop within a shop”: 76% against, 19% for
• Banning alcohol branded merchandise: 82% against, 15% for.
• Restrictions should extend to No/Lo products: 78% against, 18% for.

A Shot across the Bows?

What I think is important to note from the Griesbach report is that they spend some time in each of the discreet areas to outline that responses from all sides appear informed; justification for views is offered. Those who responded in outcry and disappointment at the approach of the consultation did not do so merely on emotion or self-preservation, although some made their feelings very clear (eg, on the ban on branded merchandise the report says: “respondents frequently expressed their views in strong language saying that the proposal was ‘ridiculous’, ‘laughable’ or ‘preposterous’.”)

In fact, the report does an excellent job of highlighting that responses from this clear majority were cultured, engaged, and able to offer probative critique. Here are some examples:

• On sport sponsorship: responses from sporting bodies provided evidence of an inverse relationship between advertising spend and alcohol harm, citing studies.
• On event sponsorship: “organisers of large-scale arts and music events, those representing museum and galleries, organisations responsible for the care of heritage sites, and funders of the arts sector in Scotland often provided long and detailed accounts of why they were opposed.”
• On event sponsorship: evidence was submitted to the effect that the public were in favour of alcohol brands supporting culture and heritage events
• On event sponsorship: evidential comparisons were drawn by respondents to the issues around public funding for example with France, Ireland and Norway. They demonstrated that the Scottish Government was not prepared to fund the arts to the same level; and a ban on support from alcohol brands would result in closure, unemployment, and impact the next generation of artists and musicians.
• On a ban on public advertising: respondents made strong points that there had been no attempt made to understand the impact of existing regulation or assess the impact on new and small businesses.
• On a ban on public advertising: numerous practical examples were provided highlighting how unworkable the proposal would be such as liveries and cross-border travel, costs to business in replacing existing external apparatus, cost to local authorities in loss of billboard revenue, and so on.
• On “in shop” bans: research evidence was cited on the likelihood of young people being influenced at home, as opposed to by seeing brands on a shelf.
• On “in shop” bans: respondents highlighted a large number of existing arrangements none of which had been properly recognised or the impact of which analysed in the consultation: CAPS, Challenge 25, local licensing and so on.
• On window display bans: respondents highlighting the real consequences for staff and public safety as well as the impact on customer experience and administrative burden on licensing boards as display changes would require licensing approval.
• On branded merchandise: respondents criticised the alleged evidential basis for the ban – “The evidence quoted in relation to young people is questionable. In particular, the evidence for the use of branded merchandise among 11- to 19-year-olds is largely based on the wearing of replica football club shirts featuring an alcohol sponsor.”
• On No/Lo: “respondents also argued that (the presentation of) the evidence in the consultation paper in relation to NoLo products is misleading and incorrect. It relies on the use of non-peer reviewed studies, including those carried out by campaign groups.”

The volume of opposition to the proposals can only be described as significant; it is a clear and robust majority. I tend to think that Ministers realised pretty early on that the framing of the consultation was too agenda-driven, too single-minded. It is telling that there was no BRIA; and it is disappointing that the consultation appears not to have had the benefit of being sense-checked by departments outside of Health.

Looking at the Griesbach report, it is not just the quantity but the quality of responses from people who opposed the proposed prohibitions which I hope will remind our policy-makers and legislators that, when it comes to alcohol, the only good silos are the ones in which the grain is stored.

Certas Energy UK Ltd v South Lanarkshire Licensing Board [2023] SC GLA 29

Appeals flowing from the Licensing (Scotland) act 2005 are relatively rare. The last reported appeal was Keasim Ltd v City of Glasgow Licensing Board [2021] SC GLW 57, an important case which relates to occasional licences but more generally to the vires of a board. So it has been a good couple of years for the legions of Scottish licensing law anoraks waiting on another judgement to dissect. I am therefore delighted to bring you some analysis of a new decision, namely Certas Energy UK Ltd v South Lanarkshire Licensing Board [2023] SC GLA 29. Happily, there is a crucial link between these two cases, viz Sheriff Reid. It is always a relief to see a decision from Sheriff Reid, who it seems to me benefits from a real grasp of the licensing system as well as, of course, the jurisprudence and the law.

This decision relates to a petrol forecourt shop in Cambuslang. A previous application for a licence had been refused; and on appeal was remitted back to the board. The board heard the case, and proceeded to refuse it again. That second refusal was also appealed, and this decision is the result.

As a brief aside, this is the first case I am aware of where a licence application has been refused again following a remit.

The application was refused (again) on the basis of overprovision and the appeal flows for most part in a challenge to the lawfulness of the board’s overprovision policy and how the policy was conducted and created. To that end, it is somewhat timely for those licensing boards yet to come out of the traps in producing a consultation for their updated overprovision policies which are due to kick in from November 2023. To some extent, the Certas decision reminds us of lessons ventilated in the two unreported Aldi appeal cases against Dundee (12 August 2016, but still available via SLLP here; and then 30 March 2022 (no online copy available) about how boards conduct their consultations, and materials they take into account, but it especially reminds me another case I was involved with, Marini v South Lanarkshire Licensing Board (2019, joint remit agreed, unreported), where again there was a refusal on overprovision which led to a remit, though in that case the licence was granted at the remitted hearing. Those interested in other jurisprudence around formulation of overprovision policies should also be aware of Martin McColl Ltd v Aberdeen City Licensing Board, 26 August 2015 (also unreported, alas, but digested at [2016] LLR 725).

Firstly, it is perhaps useful to note that the decision explores, albeit surprisingly, whether it is competent to seek to attack a board’s policy on a summary appeal relating to an application, as opposed to a judicial review of the policy itself. Most commentators would, I believe, have suggested that matter was settled by Brightcrew Ltd v City of Glasgow Licensing Board 2012 SC 67, which confirmed a decision to refuse based on policy is susceptible to appeal where it is averred the policy is unlawful. Sheriff Reid makes matters very clear for us in this regard and eruditely confirms that a summary appeal may challenge a licensing policy.

The case then exposes a number of flaws in the creation of the overprovision policy which ultimately led to the application being refused. The first of these errors relates to locality.

In consulting on the policy, the board failed to properly identify the locality or localities it was seeking evidence for; and failed to properly consult with persons resident in the locality. In this case, the board had issued a pre-consultation exercise to help inform them; but that exercise/survey did not identify the localities. Further, the survey was only conducted with employees of South Lanarkshire Council and therefore was not conducted towards the relevant statutory consultee of persons resident within the locality, notwithstanding the boards somewhat opaque efforts to link those employees to the localities using post codes.

An interesting aspect of the case is the interplay with the Scottish Government statutory guidance (aka the s.142 Guidance). Here the challenge was that the board did not have regard to the Guidance in the formulation of the policy; again Sheriff Reid upholds that argument (at Para 44):

“the defender’s consultation failed to have regard to the statutory Guidance, in breach of section 142 of the 2005 Act. That failure constitutes an error of law; that error is material in nature (because it relates to a core element of the consultation procedure, namely the proper evaluation of consultation evidence); that material error vitiates the defender’s published Policy (so far as relating to alleged overprovision inter alia in Cambuslang East); and, insofar as the defender’s refusal of the pursuer’s application was founded upon that flawed aspect of the Policy, that decision is likewise vitiated by error of law.”

The Statutory Guidance relevant to this case was the first edition, which dated back to March 2007, and was therefore always a focus of criticism from the licensing community due to it’s vintage, but that criticism would not admonish the statutory requirement to have regard to it. We do now have a long-awaited second edition of the guidance, which was published on 13 January 2023, and is available here.

Sheriff Reid offers us yet more insight, this time in relation to the relevance of materials relied on by the licensing board produced by Alcohol Focus Scotland and the reference to what is known in licensing circles as the CRESH report (at Para 45):

“The AFS Report is entirely generic in content. It does not address overprovision within any locality. The authors of the AFS Report acknowledge this limitation on their evidence.”

Sheriff Reid goes on to say (at Para 46):

“The upshot is that the terms of these Reports, however impressive at a generic level, cannot be regarded as “robust and reliable evidence” indicative of a saturation point having been reached, or close to being reached, in any locality. Nor can a “dependable causal link” be “forged” between that generic evidence and “the operation of licensed premises in a locality”“

The issue of the disconnect between specific premises and specific localities, in comparison to data which might be put forward by health stakeholders is also addressed by Sheriff Reid, saying (at Para 47):

“…the defender relied upon statistical data in the Briefing Report as supporting a link between alcohol availability and rates of death and hospital admission. However, again, the Briefing Report is not locality-specific. It addresses “data zones”, not localities. Curiously, the locality of Cambuslang East does not even feature in the Briefing Report as a “neighbourhood” or a “data zone” of concern.”

This, for me, is a crucial observation for those of us at the coal face of licensing hearings. The reference to intermediate data zones (IDZs) as the focus of health evidence should be challenged where those zones do not align with the agreed locality. Many licensing boards will consider a locality based on a radial projection; for example, looking at a “locality” which is 500m within of the application premises. Such locality is not going to mirror an IDZ, which will be a totally different area, albeit they two may overlap.

Another element of the judgement worth reflecting on is the board’s reliance on “local knowledge”. It is well understood that a board relying on its own local knowledge in reaching a decision is an important part of the licensing process. But the local knowledge must be declared otherwise reliance on it would be unlawful. Sheriff Reid has this to say (at Para 60):

“The use of local knowledge to determine “localities” (or to draw inferences from locality-specific material already available to it) is the sort of local knowledge which has secured judicial approval (Mirza v City of Glasgow Licensing Board 1996 SC 450), albeit such local knowledge ought still to be disclosed at common law (Pagliocca v City of Glasgow District Licensing Board 1995 SLT 180). Where a board has private information which is not otherwise available to parties or the public, the rules of natural justice require its disclosure (Freeland v City of Glasgow District Licensing Board 1980 SLT 101). Here, the “local knowledge” that is founded upon relates not merely to the determination of the localities (or to the drawing of inferences from available locality-specific evidence) but to other material issues, namely, to establishing a supposed connection between particular localities and generic data on alcohol availability, injury to health, criminality, and/or anti-social behaviour. But what is this magical “local knowledge”? The Policy is silent. It is not disclosed.”

The undeclared “local knowledge” was one of the grounds of appeal under the Marini case mentioned above. Consider also the following statement from Tesco Stores Ltd v City of Glasgow Licensing Board 2013 SLT (Sh Ct) 75: “if a board has relied upon any specific, material information, it must not rely upon undisclosed material but must give the applicant an opportunity to make submissions upon that material.”

The last element of interest to me in this case is one of the unsuccessful grounds of challenge. Certas had argued that the board had acted irrationally because they had granted another licence in the same overprovision locality at the same hearing. Sheriff Reid dismisses this ground, but in doing so gives us all a very helpful analysis (at Para 64):

“The two applications were quite separate. Two wrongs would not make a
right. The defender was entitled, indeed obliged, to consider both applications independently on their own merits. Even if the defender went wildly wrong in having granted the “Super Save” application, or in its articulation of the reasons for doing so, the defender was entitled (and obliged) to consider the pursuer’s application on its own merits and to reach and articulate a correct decision on that separate application. True, there ought to be consistency in administrative decision-making on comparable matters. Arbitrary and capricious decisions are to be deprecated. But the circumstances in which an aggrieved applicant should be entitled to open up and scrutinise the merits of separate decisions, involving different parties, premises and applications, must be limited. On practical grounds, it is also unattractive because it necessarily embroils the court in scrutinising a multiplicity of decisions. In extreme cases, a blatant or recurring inconsistency in administrative decision-making across different applications, readily verifiable as otherwise related in circumstance, may well go to support a challenge based on irrationality. But those circumstances are likely to be exceptional. Ultimately, here, all that the defender can say is that the Super Save application should not have been granted and that the defender made an error in doing so. So what?“

Overall, I think it fair to describe this case as a very helpful addition to the canon of licensing jurisprudence. In his usual fashion, Sheriff Reid has delivered us a thorough analysis of a number of licensing law issues and there is plenty to digest here.

Alcohol Advertising and Promotion – Scotland’s New Proposals

On 17 November 2022 the Scottish Government released a new consultation on proposed changes to introduce prohibitions around alcohol advertising and promotions. The powers which this consultation discusses, if enacted, would likely be the most significant restrictions ever to have been placed on the alcohol and retail industries in Scotland. The level of prohibition proposed goes further than anything ever seen before, and is more restrictive than even the temperance legislation of the late 19th and early 20th centuries.

Background

The announcement of this consultation was expected by those of us who follow these things, although the precise proposals are a shock. At the very heart of this is a presumption that something must be done around the advertisement and promotion of alcohol, particularly in relation to how it may affect vulnerable persons such as those with alcohol addition issues, and how it may affect children and young people.

This all goes back to the Scottish Government’s Alcohol Framework 2018: Preventing Harm, which, amongst a suite of other suggestions, which the public health actors refer to as “best buys”, included the following two points:

• To consult on marketing restrictions to protect children and young people from alcohol marketing.
• To press the UK Government to improve measures to protect children and young people from exposure to alcohol marketing.

Further work was undertaken by certain stakeholders in 2019 but for obvious reasons the consultation was delayed following the onset of the pandemic. Now launched, the Ministerial foreword makes the following claims:

“It is likely that alcohol marketing influences heavy drinkers and acts as an incentive to drink“.

“[Prohibition] will reduce the potential triggering effect that alcohol can have on heavy drinkers and those in recovery and treatment“

However, although there is a focus on harmful drinkers, and on young people, the consultation also acknowledges that this is a “whole population” approach. In other words, even though it may be argued that some individuals can be negatively affected by alcohol marketing and promotions, and even though those individuals will be a very small number of persons, we all need to take the medicine collectively, at a societal/macro level.

Hard-working alcohol producers will be vexed, I would suggest, to see the following comment:

“Without branding and other marketing strategies, alcohol products in each beverage sub-sector are essentially variations of the same thing“.

This is an overt effort to eradicate the diversity and personality of individual alcohol products; to reduce them to a denominator common to those who are so opposed to it; that is, to see alcohol only as a harmful commodity, a vice. This one sentence discounts centuries of craft, effort and enterprise. This one sentence discounts the joy in sampling one malt whisky over another and sharing that experience with a friend. These, of course, are positive traits and experiences, which explains their absence.

This all springs from the idea, put forward by anti-alcohol campaigners, that alcohol is inherently bad; and we all need to be protected from it – every one of us. In turn, the producers and retailers of the product are also painted by those proponents as bad faith actors, to the extent that there have been calls by some groups to exclude the alcohol industry from this consultation altogether.

It is difficult to conclude, looking at the levels of prohibition proposed here, other than that Government has apparently been captured by such thinking on this issue. Despite the focus on children and vulnerable groups they say: “the proposed actions [in the consultation] are intended to have an impact on everyone in Scotland“, notwithstanding they also say: “There is limited academic evidence on the impact alcohol marketing has on the adult population“. It is not enough that there are two key groups who, it is argued, need protecting. Here we are told we all need protecting, whether there is any evidence to that effect or not.

The consultation is influenced by a growing trend in policy-making: reliance on what is called “lived experience”. With lived-experience, the emotive, very personal comments of individuals who may have a negative experience of alcohol are put forward as the basis, the rationale, for policy change. It is in hearing the views of individuals, much of which has been gathered through arranged events and interviews, that we are offered a moral platform to justify the proposals. Just ahead of each of the consultation questions, you will find “lived experience” quotes, providing a emotive drive and narrative against which the reader is invited to frame their analysis. No similar quotes are presented to offer any contrary view.

The consultation is peppered with links to a multitude of research papers all of which, when taken together, paint this not as a consultation at all, but a fait-accompli: marketing and advertising of alcohol is an inherently bad thing, but especially for persons with harmful consumption patterns, and especially for children and young people. But again there is no contrary view put forward; no wider perspectives are explored or even suggested.

Before looking at the proposed restrictions, it is worth noting that the consultation does come out with at least one concession, which is that the Scottish Government can only put forward policy which is within the powers of the Scottish Parliament. It will be interesting to see if any responses to the consultation suggest elements of the proposals are ultra vires.

That being said, I think the following sentence summarises neatly where the Scottish Government wants to take all of this:

“It is crucial that any potential restrictions to reduce the volume of alcohol marketing are as comprehensive as possible.”

No holds barred, then. Let us examine the proposals.

Sport Sponsorship

The first part of consultation asks us whether we should prohibit all alcohol sports sponsorship in Scotland. This flows from recommendations, laid out in terms, from the Young Scot Health Panel and Children’s Parliament which include:

• Prohibiting alcohol branding on merchandise (i.e. shirt-sponsorship) and banning wider sponsorship (i.e. on boarding/hoarding)

• “Accredit” venues which are more family friendly, where they have agreed to restrict alcohol – even going so far as to suggest venues should place a limit on the number of drinks people can buy and ensuring live TV does not show people drinking in the crowds

Many sporting authorities have already responded with extreme alarm over these proposals. No doubt they are making those views known in responses to the consultation. What is frustrating is that there is no evidence of any attempt to take those views as part of a more balanced exercise to understand the nuance before now, in the ‘formulation’ stage of the policy proposals.

Where are the “lived experience” quotes from representatives of the community sports team, in praise of support they receive from the local distillery? Where are the efforts to understand how alcohol businesses support local communities such as through sporting groups? Whilst I have no doubt such views will result from the public consultation, the perception created is adversarial, requiring those affected to be on the defensive (pardon the sporting pun).

Event Sponsorship

This part of consultation starts by telling us there is no evidence at all as to whether sponsorship of “events” (by which they mean music, cultural events and so on as opposed to sporting events) by alcohol has negative outcomes. Nevertheless, unhindered by any expressed desire to wish to proceed with probative and proportionate policy-making, they plough on and ask whether there should be a prohibition on alcohol sponsoring all events across Scotland. This, if enacted, would end alcohol sponsorship of musical or cultural festivals as well as local community led events. Heaven knows how you organise a beer festival.

The fait-accompli element of all of this is writ-large in the following paragraph: “The Scottish Government acknowledge it would be a significant undertaking if alcohol sponsorship was prohibited for all events, without an adequate lead-in time. This takes account of the commercial nature of sponsorship contracts whereby these are made for a number of years. We welcome views on whether a lead-in time would be appropriate as well as how, and for how long, this might operate.”

Public Places

Perhaps the most incredible proposal within this consultation is the suggestion that there should be a complete ban on any and all promotion/advertising of alcohol in public places. This notion is suggested not necessarily, it would seem, as an intrinsic goal per se, but also on the basis that it might be quite difficult to create a more nuanced law. Consider the following paragraph:

“Given the difficulties around defining places as places children and young people frequent, as well as the likely impact of alcohol marketing on adults too, a prohibition of alcohol advertising in public spaces may be the best course of action.”

I find that to be a remarkable statement. Here we have the Government saying that, because it might be too complex to prohibit alcohol marketing under defined circumstances, they should just go ahead and ban it altogether. We are looking at the white-washing of the alcohol industry across the country. We are looking at alcohol being treated as a substance which must be hidden from plain sight from the entire population. And we are looking at this happening (a) without any probative evidential base, (b) because it is the easier option legislatively, and (c) absent any analysis of the positive impact that the alcohol industry and alcohol has for individuals, local communities and society and absent any analysis of the impact these proposals would have on those affected.

Notwithstanding the acceptance of “difficulties” here, they go on to propose examples of places and environments where advertising and promotions might be banned, such as near schools or nurseries, on public transport or bus stops and train stations, and even leisure centres.

In-store Alcohol Marketing

This section is a good example of how parts of the consultation are framed through lived experience. Here we are presented with the following two lived experience quotes:

• “When you go to the till, you pass the big alcohol bit” (9-11 year old)

• “Alcohol is right at the counter… it’s a trigger for me, so I have to avoid it. I don’t go there. If I haven’t got milk, I have to wait until I go to the [big] shops.” (Lisa, 1 year sober)

We are being encouraged to see these proposals subjectively, through the eyes of these two contributors. We are invited, therefore, to see the proposals not as they might affect the wider population, and not with any causal evidence, and certainly not as how the proposals might affect the alcohol industry or the people who work in, or whose jobs are supported by that industry.

We are instead invited to look at these proposals only through an extremely narrow lens, the lens of harm experienced by a few individuals. I make no point as to the validity of the experiences the contributors have had; but I do ask whether testimony from a small clutch of individuals, all of which is geared towards the same pre-disposition (in this case negative experiences of alcohol marketing), is a sure-footing for policy, and in turn law. Is introducing population wide restrictions based on the negative experiences of a small cohort proportionate?

One of the proposals in this section is that alcohol should not advertised or even seen in window displays at all, so that no alcohol can be visible from outside the shop. I find this sort of proposal to be a remarkable blind-spot when it comes to the history of licensing rules and regulations. It takes us backwards to a period of time where it is assumed there is an inherently corruptive element to simply seeing alcohol in a window display. Does this not add a layer of secretive mystique, countering the Government’s stated aim to make alcohol less attractive?

There are many businesses who specialise in selling alcohol. If these proposals are taken forward you are looking at a blackout of store fronts of premises such as dedicated off-sales, or retail units for local distilleries and breweries. Craft beer shops will be under rules akin to the restrictions on licensed sex shops, but with less colourful wording on the black vinyl stretching across the windows.

Oh, and good luck with the local brewery setting up a stall in the local farmer’s market.

They even take us into territory where alcohol must be seen in the same context as tobacco:

“Where alcohol is displayed behind the checkout this could be required to be in a closed cupboard, like tobacco products.”

I am almost surprised not to see a reference to plain packaging here (although note the comments below on “content of advertisements”).

They also propose that aisle-end displays be banned, and that “mixed” aisles be restricted, so that alcohol is not in the same aisle as some other product. All of this suggests that the Scottish Government seems to have satisfied itself that there is evidence of unfettered patterns of impulse-buying.

They go further, and explore the “shop within a shop” idea and ask:

“Do you think we should consider structural separation of alcohol in Scotland to reduce the visibility of alcohol in off-trade settings (e.g. supermarkets)?“

There is no suggestion as to how any such restriction would be imposed on existing retailers. There are huge licensing implications here, of course. Any change to alcohol displays would mean a variation of the premises licence, meaning new architects plans, and might also mean a loss of product range, and physical works having to be carried out.

What of premises whose entire premises is one big alcohol display, like a working distillery with a retail shop or visitors centre?

Brand-sharing and merchandise

Not content with proposing a complete ban on all alcohol advertising in all public spaces, and the shuttering of shop-fronts, they go further, and suggest that there should be a ban on the sale of all alcohol-branded merchandise altogether. No more hats or mugs. No more t-shirts. No more craft brewery hoodies. In the context of this consultation, these have become “walking billboards“. And as for ‘brand-sharing, no more bourbon flavoured BBQ sauce, no more liqueur flavoured ice cream. The Scottish Government go further still, and present a case that even advertising for alcohol-free products should be banned as they are, in essence, “gateway” brands to expose people to the alcoholic variants, because of the use of the same names and logos:

“This demonstrates the need to carefully consider restricting these other distinctive and identifiable elements associated with the alcohol brand, in addition to restricting use of the alcohol brand name.“

Print advertising

If you have been reading closely so far, you may agree with me that what we are looking at here, when you combine these proposals, is the almost complete eradication of the public presence of alcohol. It is no surprise to see, therefore, a proposal that alcohol advertising in all newspapers and magazines should simply be banned altogether, although, to be fair, they do say:

“some consideration would need to be given to specialist consumer publications, trade press and industry-focused publications.”

Online advertising

Concerned with alcohol advertising appearing online and through social media channels, a number of further questions are posed. This will also make for concerning reading for alcohol producers and retailers who use websites and social media channels to engage with their customers and sell their products. Take a look at the following questions:

• Do you think we should restrict alcohol branded social media channels and websites in Scotland?
• Do you think we should restrict paid alcohol advertising online in Scotland?
• Do you think we should restrict alcohol companies from sharing promotional content on social media (e.g. filters, videos or posts) – whether this is produced by them or by consumers?

TV and Radio advertising

Here again the consultation documents tells us that people watch TV and may therefore be exposed to alcohol advertising. That being so, restrictions should be considered. Here are some example questions:

• Do you think we should explore prohibiting alcohol advertising on television and radio completely?

• Do you think we should introduce a watershed for alcohol advertising on TV and radio (e.g. like Ireland), and if so how would this work?

• Do you think alcohol advertising should be restricted in cinemas?

Restrictions on content of advertisements

Not content with removing alcohol from visible public society, if any residual advertising may remain, the Government wants this to be controlled so that only state-sanctioned attributes can be referred to, such as geographical origin and certain factual criteria. This can be summarised in the following sentence:

“By removing the attractiveness of alcohol in the advertising we begin to change the culture around alcohol.”

This links to the earlier observation I made about the notion that alcohol is intrinsically negative, and cannot be allowed personality. This is how we reach the perspective that “alcohol brands portraying drinking alcohol as a fun, sociable and a community activity which makes people feel good and equals happiness” is a reality which must be challenged, thus discounting the joy which the product brings to the moderate majority, thus discounting the health benefits of such joy.

Enforcement

Towards the end of the consultation the Government suggests that a new regulator may have to be set up to deal with the enforcement of all of this. Who is going to pay for that? The industry? The tax-payer? What might this new regulator look like? A Scottish Alcohol Advertising Standards Commission? Is this the body which will issue the “accreditations” suggested earlier; as well as taking action to ban adverts or shutter window displays? All of this remains to be seen.

Summary

I have been practising alcohol related law in Scotland over some years, in my role as a licensing lawyer representing the trade, and I have written on this topic widely. I have often been a “critical friend” of the Scottish Government, having sat on many working groups and bodies on licensing reform, and must also concede I have been withering in my analysis of the efficacy of some of the licensing law which the Parliament has produced. That being said, even I am amazed at just how far these new proposals go, and the absence of balance.

The entire consultation is driven by what I am left to describe as a moral position that alcohol is inherently bad, a negative aspect of society from which everyone needs to be protected and shielded. It is not enough that consumption of alcohol (whether harmful or not) must be reduced, we cannot even be trusted to see it; and wider civil society must be encumbered with disproportionate prohibition, instead of the proportionate targeting and delivery of support to those very few who need it.

It is an entirely one-sided consultation. It reads like it was written by anti-alcohol pressure groups. It makes no effort at all to consider, present or even acknowledge the positives of responsible alcohol retail and consumption. It makes no attempt to explore the positive economic contributions that the alcohol industry makes through promotion and advertising, or the social cohesion and enjoyment that responsible alcohol retail and consumption can bring. It makes no effort to analyse what the impact of these proposals would be on the alcohol industry, or the other connected industries and communities and families supported by that industry.

How many businesses could survive in such a hostile environment for the industry with no means to promote or sell their products? What will that mean for diversity of products? How many jobs would this impact? Would this have a disproportionate effect on smaller, independent businesses such as craft breweries or local convenience stores?

It also makes no real effort to analyse the hard work put into responsible retailing and responsible drinks advertising by the industry, and there is little here as to how all of this might cut across efforts by other agencies such as the Portman Group or the ASA.

There is no doubt at all that some people within Scottish society have a problematic relationship with alcohol. I doubt anyone would seriously argue a Government should not take steps to help those who are harmed, or who are harming others. But the suggestion that the response should be a wholesale eradication of visible alcohol from public society is in short, a prohibitionist’s charter.

It is incumbent on the Scottish Government to lift its head from the playbook of those who agitate for that prohibition. Consider the balance in the following quote from the Court of Session:

“The industries which the petitioners represent include companies which make a substantial contribution to the national economy and their products when used responsibly contribute to human happiness. But the abuse of alcoholic drinks and the harm which the abusers cause to themselves and others is a matter of general public concern both in this jurisdiction and throughout the United Kingdom.” (Lord Hodge, in the famous minimum pricing judicial review [2012] CSOH 156.)

You can engage with the consultation online here.

The deadline for responses is 9 March 2023.

Scottish Liquor Licensing Statistics 2020/21

The Scottish Government releases annual statistics on the number of licences, applications lodged and so on, and has done since the onset of the Licensing (Scotland) Act 2005 back in 2009. I have commented on these from time to time. The numbers can be found here.

On 22 April 2022 the latest batch was released, covering the period 1 April 2020 to 31 March 2021 – and therefore the first year of the pandemic. Understandably, initial focus in the trade press has been on the number of personal licences, which appear to have dropped by circa 5000 during this period. In this blog I will provide a further analysis of the overall numbers.

Premises Licences – Overall numbers

In my view the number of premises licences has not varied to any considerable degree since the 2005 Act came into effect. Pre conversion to the 2005 Act, there were around 22,500 premises (this includes members’ clubs). After conversion in 2009, this number dropped to 16,300 or thereabouts which reflected the number of businesses who did not go through the process at that time. In 2012 the number was 16,157 and in 2016 the number was 16,629. In 2020 the number of premises licences was 16,565. In the new numbers for 2021, this has dropped back to 16,303.

Premises Licences – Pandemic Perspectives

It is perhaps worthwhile considering what this means in light of the numbers covering Year One of the pandemic. The statistics don’t say how many licences were surrendered or lost by operation of the law such as ceasing to have effect following an insolvency. We do know that in this period 15 licences were revoked; which may have been as a result of mischief or misbehaviour and would include some licences being revoked for Coronavirus breaches, or perhaps non-payment of the annual fee. It may therefore come as a surprise to some that perhaps only 200 odd licences have fallen away, given the impact of the pandemic. But these numbers do not represent, in any meaningful sense, the number of businesses which have actually failed. When a business fails that does not mean the licence is gone. The licence may not be held by the same person or entity which has gone bust; the licence may be held by a landlord, or even where it is held by a party who has become insolvent, there is a process to ensure the licence remains in force by allowing it to be transferred to the appointed insolvency practitioner and thereafter to a third party and that is what commonly occurs in my experience. The numbers covering 21/22 might reveal further detail on this, taking into account Year Two of the pandemic as they will.

Premises Licences – Other Trends

In the 19/20, there were 431 new licence applications, only 4 of which were refused. In 20/21, there were 451 applications, again only 4 of which were refused. Pure off-sale licences have dropped from 5022 to 4993, a drop of 0.57%.

Glasgow has usurped Edinburgh as the area with the highest number of licences in force – 1944 (19/20 – 1868), compared to Edinburgh’s 1917 (19/20 – 1888).

Occasional Licences

In 19/20, there were 24,776 occasional licences granted in Scotland. In 20/21, that number had dropped significantly to 9950. It is very likely that this decrease is significantly influenced by Covid-19, when one considers the number of one-off events which were all cancelled during Year One of the pandemic – everything from all the festivals and live concerts, to local charity events, weddings and so on. Perhaps the largest drop on a local basis was in Glasgow, which fell from 2606 to 489 – however, this must surely reflect the pragmatic approach taken in Glasgow to allow many businesses to trade outdoor areas from a single, long-life occasional licence across the entirety of this period (instead of multiple consecutive 2 week licences), and remain in effect even now for many businesses.

Personal Licences

The number of licences in force in the 19/20 figures was 55,459. In the 20/21 figures, this has dropped to 50,382. At first blush this suggests that 5000 personal licences were lost in Year One of the pandemic. A more granular analysis provides further insight, however.

2541 new personal licences were granted in 20/21. Whilst this might suggest that the true number of licences which were lost was nearer 7500, that remains to be seen. It is possible that of the 2541 granted new licences in that 12 month period, those individuals may have lost a licence, and successfully applied for a new one, so there is an unknown “churn” factor to consider. Of the total number of personal licences which were revoked during this period, the runaway majority of 1195 were because the individual did not complete refresher training – so it is possible that some of those people then went on to apply for and be granted a new licence having subsequently done the training with the same 12 month period. During the same period only 4 personal licences were revoked as a result of a review hearing including both where convictions had been reported, or where conduct inconsistent with the licensing objectives had been reported.

The stats do not tell us how many personal licences were surrendered or simply not-renewed, which is a shame because I think that missing detail could have been telling here. It does seem to me that a number of people may have elected to surrender or not renew their licence during Year One of the pandemic because they no longer worked in the licensed trade. Similar observations have been made in relation to SIA licensed door supervisors, and licensed taxi and private hire car drivers.

Coronavirus (Recovery and Reform) (Scotland) Bill – Licensing Implications

The Scottish Parliament introduced the Coronavirus (Recovery and Reform) (Scotland) Bill (“the Bill”) on 25 January 2022. The wider ambit of the Bill is to create permanent powers to respond to public health emergencies. It is therefore an extremely important piece of proposed legislation. It has already attracted detractors, concerned that a permanent footing for remarkable emergency powers introduced in response to the Covid-19 pandemic should not be legislated for in this way. In that regard, the Bill proposes to give Parliament the power to introduce such restrictions (which the Bill calls “protections”) by way of secondary legislation and therefore, it will be argued by some, without the fuller scrutiny that such measures should attract in a time of emergency.

This article, however, is to focus on the licensing provisions of the Bill. These are, to be fair, pretty technical and in short are designed to allow the possibility of remote hearings, which are legislated for under the temporary arrangements at the moment, to be offered on a permanent basis going forward.

Civic Licensing

The Bill seeks to amend the Civic Government (Scotland) Act 1982 on a permenant basis to allow for the possibility of remote/hybrid hearings. A new Paragraph 18B(1) is proposed to be added to Schedule 1 to the 1982 Act. It says:

How hearings may be held
18B (1) A licensing authority may determine that a hearing is to be held—
(a) in person,
(b) wholly through the use of remote facilities, or
(c) partly in person and partly through the use of remote facilities.
(2) In sub-paragraph (1), “remote facilities” means any equipment or facility which—
(a) enables persons who are not in the same place to participate in the hearing, and
(b) enables those persons to speak to and be heard by each other (whether or not it enables those persons to see and be seen by each other).”.

An equivalent provision is proposed for Schedule 2, to cover applications for Sex Shops and Sexual Entertainment Venues.

This new paragraph essentially puts on a permanent statutory footing the ability to hold hearings remotely, and to hold a hybrid hearing which is partly remote and partly in person. The “hybrid hearing” may become the overarching model of the future where a committee is in person in local authority chambers, but with IT facilities and screens set up in the room to people to also join remotely. This arrangement is already in place in certain licensing authority areas, such as Inverclyde.

The Bill also contains an amendment to relax some notice requirements to allow certain applications to be listed on the local authority website. This is of course currently allowed via the temporary arrangements under the Coronavirus (Scotland) Act 2020 (see s.17(1) and Schedule 6 Paragraph 1(7)(a)) of the 2020 Act).

Alcohol Licensing

The Bill proposes to amend the Licensing (Scotland) Act 2005 to create a new s133A which, in short, introduces equivalent wording to that above for the 1982 Act, allowing remote and hybrid hearings to take place on a permanent basis. This can be seen as a continuation (although not in exact terms) of the current arrangements which exist under s133(3A through 3D) which were inserted into the 2005 Act by the Coronavirus (Scotland) Act 2020 (see s.17(1) and Schedule 5 Paragraph 1(2) of the 2020 Act).

Again the purpose hear is to allow licensing boards to hold remote or partly remote hearings on a permanent basis and as with civic licensing business, it is to be anticipated that the hybrid hearing may become the common hearing of the future, with boards sitting in person in public, but with some participants joining remotely via a screen within the hearing facility.

Analysis

In broad terms, I expect licensing practitioners to welcome these changes to the 1982 Act and 2005 Act. Most people who are at the coal face will, like me, very much welcome a return to face to face hearings whilst retaining the option, it is hoped, for remote participance if that is suitable for the individual. There are certainly cases I have acted in across the last two years that I would have much preferred to be in the room and there are multiple reasons why this might be so.

Firstly, a large part of advocacy is in reading the room, reading body language, and – in some cases – taking the hint when you may be off on a frolic. It is also far easier to interact with your client when you are in the room with them. I have had plenty of situations where I have had to ask the board/committee to pause proceedings whilst I take instructions via Whatsapp or even to take a call, whilst hopefully remembering to put myself on mute.

In this context it also difficult for an agent to help steer the client as to how they should best answer certain questions when you are not there to give them the metaphorical kick under the table!

Similarly, I find that the councillors I see and hear from in these hearings miss seeing the applicants in the flesh so that they can better gauge the person and their attitude.

Having hearings conducted remotely has allowed business to continue during the pandemic and thank goodness for that. What it has also done, to some small extent, is to erode the formality of the quasi judicial nature of the hearing itself. I have witnessed scenarios where applicants or other parties such as objectors interact with the board members or officers as if they were in a “zoom drinks” with their pals on a Friday night.

Whilst this might be a slightly frivolous point, there is a deeper issue to ponder about natural justice. I have heard a number of remarks from solicitors worried about the appearance (in the wider sense) of cases where a party applicant may be, for example, virtually attending a hearing, whilst holding a phone up walking around their house or outside somewhere, perhaps about to learn that they have lost their licence. In one case a colleague of mine witnessed, a private hire driver took part in a hearing whilst behind the wheel of his car, and had to be told by the committee chairman to pull over.

There is always a place for the well-aired point that ensuring access to justice (and even quasi-justice) can sometimes be hampered by the formality of a hearing, but where hearings are formal and serious, it is because serious matters are being discussed which may have significant implications for the parties involved such as the livelihood of a licence holder, or the quality of life of an objector, and so on.

Lastly, on a more personal note, the re-introduction of in person hearings cannot come soon enough to simply let us see one another again and interact as human beings do. Licensing is a small and collegiate area of legal practise and having a good old natter with other agents, officers and so on is a much-missed aspect.

The Bill as introduced is here.

More detail on the Bill such as the Policy Memorandum and Explanatory Notes can be found in the overview here.

McGowan on Alcohol Licensing Law in Scotland (2021)

Significant text on Scottish alcohol licensing weeks from publication

Publisher: Edinburgh University Press. To see the book listing, click here.

It is with both relief and trepidation that I can finally declare that my latest book, ‘McGowan on Alcohol Licensing Law in Scotland’, will be published in July 2021. It is listed on the website of my publisher (see link above) and on Amazon. It is a text of some 620 pages, or about 300,000 words, 21 chapters and multiple appendices. It is a licensing leviathan.

I have been writing this book for 7 long and eventful years. It is remarkable to think it has been such an arduous journey. There is no doubt this is a significant personal milestone and I am excited to be on the precipice of sharing it with my friends and colleagues in the licensing community.

As promised in my last little “teaser” blog a few weeks ago, I wanted to preface the formal launch and publication with this somewhat wistful retrospective. Think of this as a pre-publication dalliance; a vignette on the story behind the book, and some thoughts on the experience of writing it. It may also, I hope, whet the appetites of those for whom this labour of love is intended.

Origins of the text

Back in 2014 I was asked by my then publisher Margaret Cherry of Avizandum Publishing to start work on a second edition of ‘Licensing and Gambling Law in Scotland’ (2009).

McGowan, Stephen “Licensing and Gambling Law in Scotland” (2009, Avizandum Publishing Ltd)

There had been unending change in licensing law over the five short years since the Licensing (Scotland) Act 2005 came into force on 1 September 2009. The first edition (shown above) had been written in the dog days of the 1976 Act, and published during transition to the 2005 Act. By 2014 it was already in need of a significant rewrite. I accepted the commission with relish, but also with purpose: I owed it to everyone in the licensing community to do my best to get it right. So I took a long breath and dived into the dark, undulating waves of licensing law, fathoms deep.

Scope of the text

It was abundantly clear that any effort to tackle both the Licensing (Scotland) Act 2005 and the Gambling Act 2005, as I had done in the first edition, was foolhardy. I had to primarily ensure that the text would be a robust and comprehensive analysis of the alcohol licensing maze. I found myself very gratefully reconciled to the fact that some other unfortunate wretch would have to write a book on gambling laws in Scotland (and heaven help the person who accepts that brief). I did allow myself a cheeky foray into gambling in a latter chapter (to cover poker/machines in pubs etc), but the scope of the book is very much focused on the Licensing (Scotland) Act 2005 (as amended – and oh, how it has been amended!).

This would therefore be a brand new academic text, but also a practical guide about the day to day of the work. In striking that balance I hoped I could tease out some personality; a dash here and there of the (tall) tales of my peers and I.

Much to consider

As licensing practitioners and the trade were reeling with the Criminal Justice and Licensing (Scotland) Act 2010, the Alcohol etc. (Scotland) Act 2010, numerous significant cases such as LIDL, Brightcrew and more, Parliament was also introducing what became the Air Weapons and Licensing (Scotland) Act 2015. This was all during my earliest descents into the word mines. Even then there had been canary calls for a consolidatory Act, such was the black, almost impenetrable morass of licensing law. Trying to grasp all of this, far less commute it to a comprehensible textbook, was a challenge. But then, there are some wider ground rules for the legal author which helped me along the way – and if I can impart a few tips, they would be as follows.

Some lessons for the budding legal author

1. Accuracy. One of the vagaries of legal authorship is to accept that one can spend hours trying to unpick the relationship between amending Acts, SSIs and so on, where the “return” might simply be a single line of text or a footnote. Don’t be put off. The time invested engenders accuracy, which becomes its own reward. If one has access to Westlaw or similar, then make use of it. The website www.legislation.gov.uk is also an incredibly important tool.
2. Momentum. Those part-time authors out there will know how difficult it is to maintain momentum, and how fleeting and elusive it can be. I can’t speak for real authors, but for me momentum sometimes vaporised at a whim. The effect of this can be extremely frustrating. Maintaining a good momentum is something I would certainly encourage budding legal authors to be mindful of, and try to organise your writing approach so you can stay in the (twilight) zone.
3. Save, save, save. A couple of times I lost not just my momentum mojo, but large swathes of updated text. With only myself to blame, those were unedifying moments. You must save your progress often, and keep backup copies on a regular basis. If you are working on a very large text, it is helpful to keep the chapters saved as separate files and email versions to yourself as you progress.
4. Don’t be afraid to ask for help. There were plenty of times I struggled with what the law was supposed to be. A good example is the concept of “interested parties”, which is a legislative boorach. I leaned a lot on my peers during this process; and one cannot take criticism personally. One must appoint the harshest of critics if at all possible in peer review, as the finished result will be more polished for it. As well as you know a topic, someone knows it better. There is no room for hubris.
5. Leave room for alternative interpretations. An example of this in my text was on the issue of minimum pricing and wholesale premises, a controversial area. I was careful to construct and present my own views as my own views, but also have the text reflect the views of my contrarians. A legal author cannot operate in a silo and where there is no unanimity, fair representation of competing interpretations is a must. One often hopes for a settled view, but where is the fun in that?

A Personal Journey

Across those first few years I kept moving with the pace of change of the law itself. However, the book was to experience a long hiatus for reasons at home. My beloved wife Angie, who has MS, had a severe relapse in 2016. This left her unable to walk, and to compound matters she then suffered a triple leg break as a result of a fall. These were tough times. We adjusted to rehab and treatment as our focus, and for a good couple of years the drafts of the book were on the proverbial shelf.

At the very end of 2018, our lives were, however, to have a much brighter next step, as we discovered Angie was expecting. We were blessed with our first baby, my beautiful daughter Abigail, in August 2019. As I write this blog Abi is causing wonderful havoc running about the house. I remember being up in the wee hours with her and, having gotten her off to sleep, spending a half hour here and there to complete certain sections of the text. Angie, of course, encouraged me on so many occasions with her own fighting spirit and endurance. This book is as much theirs as it is my own.

Eyes on the prize

There comes a time for any legal author when you must grasp the nettle. Writing about the law is a Canute-like experience at times, as you implore the tide of change to stay out in the open oceans. The fluid nature of licensing in particular was one of the really difficult aspects of writing this book. I had to go back and make significant changes to long settled portions of the book frequently whilst trying to maintain flow, narrative and personality on the page where I could. It was in the festive break of 2019 that I plunged towards the finish line of a completed first draft. Abigail was starting to sleep more regularly and Angie was delighted to get shot of me for a few hours peace of an evening, which meant I could really focus on the text.

It was around this time that I also started to engage more regularly with my new publisher, Edinburgh University Press. Avizandum had been acquired by EUP in August 2019. So, with august new publishers willing me on, and a fair wind behind me, I finally had what I considered my first completed draft of the new text in early 2020. It was an absolute beast, having crept up to around 330,000 words. I took this finalised but unfiltered version into peer review, with various luminaries from the licensing arena. I planned to give it to the publishers sometime in Spring 2020. And then, pandemic.

Lockdown Interregnum

The book was originally scheduled for publication in June 2020, and was to be trailed at the 25th anniversary SLLP conference in May of that year. Covid-19 put paid to that. It also meant further revision, to take account of the changes to the 2005 Act brought about by the Coronavirus (Scotland) Act 2020, although I elected to capture that in a stand-alone appendix in the hope that those changes would be timebound.

Peer Review

Three people in particular gave of their time significantly: now retired solicitor Tom Johnston, my colleague Niall Hassard at TLT LLP, and Jack Cummins of MSHB. Jack also very graciously agreed to provide the foreword, forging a link between my book and his own “Licensing Law in Scotland” from the 1976 Act era. His tome was first published in 1993 but it is his second edition from 2000 which remains such a significant influence to the licensing community (as, of course, are his annotated statutes).

Bespoke input on certain sections came from Archie Maciver, William O’Brien, Mairi Millar, Douglas Frood, Peter Clyde, Scott Blair and others. The efforts of these licensing friends led to a number of corrections, updates and revisals. My colleague Niall also co-authored the chapter on Occasional Licences and will want stout, and my other TLT compatriot Michael McDougall reviewed the final proofs for me offering sensible corrections (and I suspect will also want stout). I am very grateful to everyone who helped me on this journey.

Submission

After peer review had completed and I made my final edits, I submitted the text to the publishers in the winter of 2020. It then began making its way through the varied and mysterious stages of publication of a legal text, with a colourful array of commissioning editors, desk editors, copy editors, indexers, designers and others. This is the stage where the author loses control of the text and the best thing to do is enjoy a bit of freedom from it, and glide at the publishers pace.

We started 2021 in “Lockdown Two”, with hopes that vaccination would help us finally throw off this horrid pandemic, and herald a move back to normal life where I can stand with you, dear reader, at a bar and have a pint (or two). I hope I can regale you in person about some of the hidden gems in the book soon.

For now, it is time for me to publicly scratch a seven-year-itch, and finally acknowledge this labour of love.

I hope this introspective whets the appetites of my friends in the wider licensing community. I know some of you have been with me in part or in full on this journey and have been waiting very patiently. I can only hope I have done you all justice, and that your patience will be rewarded.

So, dear reader, keep an eye on Twitter (@licensinglaws | @edinburghUP) for updates as the book will be published at the end of July 2021. And, when able to do so, please place your order for a full-on licensing feast.

The full book listing, including chapter headings and other details, can be found at the EUP website here.

Reduction in alcohol consumption is not an invite to tinker with MUP

The latest alcohol consumption figures in Scotland were released on 17 June 2021. There is a lot to digest but here are a few key headlines:

1. Alcohol consumption is now at its lowest level for 26 years

2. Alcohol consumption has fallen year on year in the last 3 years

3. In the last period the split between on and off sale purchase was 10/90, which one assumes is certainly owing to the closure of hospitality during pandemic. The split has been approx 30/70 in previous years.

4. The overall drop equates to 34%, in comparison with 2003

In this (https://www.bbc.co.uk/news/uk-scotland-57501432) BBC article, Alcohol Focus Scotland have used the announcement to again call for minimum unit pricing (MUP) to be increased to 65p (from the current 50p). The Minister of Health Maree Todd MSP has her mind made up according to her quote in this article that the “world leading” MUP is already a success.

All parties must remember that Parliament is under a legal obligation to objectively review MUP at the end of the full five year trial period and the “success” of the measure is not, by law, purely about the impact on consumption. The Alcohol (Minimum Pricing) (Scotland) Act 2012 is clear that the impact on the licensed trade and alcohol producers is also a legal part of the test parameters, as well impact on various socio-economic demographics. This is often overlooked in debate on MUP.

I would remind all stakeholders that the Scottish Parliament is under a legal obligation to consider the impact of MUP on licence holders and producers; as well as the impact on the licensing objectives, as well as the impacts on individuals and groups in society. “Success” is therefore a nuanced, complex pattern.

Parliamentarians, like the rest of us, will always welcome news of falling health harms – but I urge us all to remain circumspect about whether MUP is a “success” for if we allow ourselves to view success through the sole prism of consumption levels, that is to ignore what the 2012 Act actually requires. Scottish Ministers are under a legal duty to inform their view based on all the test parameters and criteria at the end of the trial, having considered the terms of full five year report – not now, or at some other point.

I have said before that the legality of the trial is predicated on its time bound nature, and fixed terms. The courts approved MUP on the basis of the modelling presented to them at the 50p rate; and they approved it on the basis that it had a “sunset clause”, ie that it was a trial – and the trial outcomes (which includes what the impact is on licence holders and alcohol producers) would be objectively assessed before being made a permanent law.

When earlier studies on MUP appeared to suggest sales had increased, AFS and other health observers rightly said that no final view should be reached until the end of the trial. That observation was correct then – and is correct now.

Changing the rules of the experiment half way through undermines the legal footing on which the experiment has been approved. The experiment should be allowed to run as set by Parliament and the courts. Avoiding any urge to tinker with key variables of the experiment is even more important given the wider market forces that have influenced the nature of alcohol sale and consumption during the pandemic. Coronavirus and lockdown restrictions will of themselves have an impact – an impact that will have to be unpicked in the final analysis so that Parliament can have as clear a view as possible of the “pure” impact of MUP as opposed to other, wider forces which may have a part to play such as the pre-existing wider downward trends in consumption, especially in certain demographics.

When the five year report is released to Parliament, it will spark a great debate amongst stakeholders. I urge all to keep their powder dry until that time.

Teaser: McGowan on Alcohol Licensing Law in Scotland (2021)

It has been an age since this blog has featured any activity. There is a very good reason for that. For the last seven years, I have been working on a new licensing law book for publishers Edinburgh University Press.

This new book is now just a few months from publication. I am excited to finally share it with my friends in the licensing community. It is a significant tome of 620 odd pages, 300,000 odd words, 21 chapters and multiple appendices.

I plan on issuing a more personal blog detailing the journey of the text soon, with a thanks to those who have helped along the way. So, dear reader, watch this space for that update and of course for the publication of the book itself this July 2021. A summer blockbuster!

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