The Nicholson Committee: Review of Liquor Licensing Law in Scotland
The present system of permitted hours and trading hours
5.1 The present system of permitted licensing and trading hours in terms of the 1976 Act is not essentially different from the kind of system which has existed since at least the beginning of the 20th century: that is to say it is a system which prescribes certain times during which licensed premises may be open and certain times when they must be closed. The permitted opening hours under the 1976 Act are somewhat more generous than what went before, but the general approach is effectively the same. However, the 1976 Act prescribes a different system of opening hours for off-sale premises, known as trading hours, 1 and there is currently no provision for the extension of those hours. 2
5.2 We have noted earlier, however, that the system of permitted hours as provided for by the 1976 Act, and as intended by the Clayson committee, has changed radically over the years largely as a result of occasional, and in particular regular, extensions. The Clayson committee recommended that it should be possible to extend normal permitted hours, but they clearly did so on the basis that this was something which might only happen very infrequently, for example in certain holiday resorts at peak holiday periods. The reality today, however, is that regular and lengthy extensions to statutory permitted hours are so widespread that the whole concept of permitted hours has very largely been eroded. At the same time certain restrictions (for example that relating to sales on a Sunday morning in respect of off-sale premises) are still in place, and are now seen by many as being unnecessarily restrictive. Moreover, there is no provision for the extension of the statutory trading hours for off-sale premises.
Options for reform
5.3 Given that we have already rejected any suggestion that there should be a reversion to a system of very restricted licensing hours, 3 we consider that, for the future, the choice lies between retaining something like the present system or moving to a system where no hours of the day or night will be statutorily prohibited for the sale or supply of alcohol but actual opening hours in respect of premises may be authorised upon application to the licensing board. Strictly speaking, the purely factual consequence of the second of the above options could be largely achieved under the first option by an even greater use of extensions than has hitherto taken place, and by bringing off-sale premises under the general provisions relating to other licensed premises. However, we regard it as inherently unsatisfactory that the actual licensing scene should be - as is the case at present - significantly different from what the governing legislation was originally intended to bring about, and our preference is therefore for a system where the legislation and the actuality are in step with each other.
5.4 More generally, however, we are of the view that the time has now come when there should no longer be what many regard as petty and irrational restrictions on the sale and supply of alcohol. As we have noted earlier in this report, some supermarkets now open for 24 hours each day - presumably because the companies concerned are satisfied that that is commercially desirable - but the off-sale parts of such premises must remain closed outwith permitted trading hours, and with no possibility of an extension to those hours. That means that a customer who, for personal reasons, finds it convenient to shop at a time when most people are asleep in their beds can purchase food and groceries of all kinds, but cannot purchase any alcohol. The same is true in respect of Sunday mornings: but we are not persuaded that there is any continuing justification, or desire, for such a restriction on sale. It is also to be noted that under existing law more restricted permitted hours apply in other kinds of licensed premises on Sundays. 4
Our proposed system
5.5 For the foregoing reasons we have come to the conclusion that the existing system relative to permitted hours should be replaced by one where it is in theory possible for licensed premises to be open 24 hours a day. Such a system was recently introduced in the Isle of Man, and some of us visited that island in order to find out how that system actually works. So far as we are able to tell, the system appears to be operating in a satisfactory manner. However, there is one feature of the Isle of Man system which, in our view, should not be copied in Scotland. That is that, as we understand it, licensees in the Isle of Man are at complete liberty to choose their own opening and closing hours, and indeed to change these hours from week to week or even from day to day. Such an unregulated system may well work satisfactorily in a small island like the Isle of Man, but we are firmly of the view that in a country such as Scotland the desirability of promoting the licensing principles makes it necessary to have a system which is more controlled and regulated.
5.6 We are in no doubt that licensing boards would operate a system of 'authorised' hours in a responsible and acceptable manner, and their general approach to that should be set out in policy statements. 5 Accordingly, what we have in mind is a system which would have the following features-
- There would be no hours in the day, or days in the week, when there would be an absolute prohibition of the sale and supply of alcohol.
- Licensees, or applicants for new licences, would determine the hours when they wished their premises to be open for business and, having regard to the general policy promulgated by the licensing board in question, they would set out their proposals in that connection in the operating plan or schedule which would accompany their application for a premises licence. They would then apply to the licensing board for a premises licence which, among other things, would authorise opening at those times.
- Licensing boards would be entitled either to authorise the opening hours applied for or to authorise any other opening hours that appeared to be appropriate having regard to the board's general policy and the promotion of the licensing principles.
- Once opening hours had been authorised by a licensing board they would remain effective for the duration of the licence; but it would be open to a licensee at any time to apply for a variation of the authorised opening hours. The authorised hours could also be varied by a licensing board if it were to find that the business of particular premises had not been conducted in accordance with the terms of the licence and with the promotion of the licensing principles
- As with other terms and conditions attached to a licence by a licensing board, any decision relative to authorised hours would be open to appeal.
5.7 If effect were to be given to the foregoing suggestions there might not in fact be a very noticeable difference between the licensing scene as it exists at present and as it might exist in future. We imagine that many operators are reasonably satisfied with their present permitted hours, and would not wish to seek any changes. Moreover, we suspect that in many instances purely commercial considerations, such as staff costs, would dissuade licensees from seeking greatly extended hours. On the other hand, what we are proposing might result in some increases in opening hours in circumstances which are likely to be welcomed by consumers. On this matter, therefore, we recommend:
20. (a) The present system of statutory permitted licensing hours should be abolished and should be replaced by a system under which there will be no statutorily prohibited hours; and actual opening hours will be those authorised, upon application, by a licensing board.
(b) Licensing boards should be entitled either to authorise the opening hours applied for or to authorise any other opening hours that appear to be appropriate having regard to their general declared policy and to the need to promote the licensing principles.
(c) Once opening hours have been authorised by a licensing board they should remain effective while a premises licence is in force; but it should be open to a licence holder at any time to apply for a variation of the authorised opening hours. It should also be open to a board to vary those hours if, upon a complaint having been made, it is satisfied that such a variation is necessary for the promotion of the licensing principles.