Chapter 3 - Proposals to improve the effectiveness of the licensing regime
11. Brightcrew - Address the uncertainties highlighted by the 2011 decision in Brightcrew Ltd v City of Glasgow Licensing Board.
12. Members' Clubs - Concerns have been raised that some members' clubs, which enjoy a less onerous regime, are abusing either the letter or the spirit of the rules by operating in direct competition with local licensed premises.
13. Concerns have been expressed about procedures at licensing board meetings.
14. Develop a national licensing policy statement that local licensing boards are required to have regard to when drawing up their own policies.
15. Amend the licensing objective in the 2005 Act from "protect children from harm" to state "children and young persons".
16. Interested parties - The Law Society raised concerns that legislation intended to require notification of those connected to a premises licence, was too broadly drafted and would inadvertently criminalise many premises licence holders.
17. Amend section 7 of the 2005 Act, the duty to assess overprovision, to state that the locality for assessment of overprovision can be the entire board area.
18. Amend section 7 of the 2005 Act to make it clear that overprovision can include an increase in capacity where there is no increase in the number of premises, and include opening hours in the assessment of overprovision.
19. Address concerns over internet sales by extending promotions ban to cover orders dispatched from England but which were 'taken' in Scotland.
20. Clarify the specific circumstances under which alcohol can be sold in garage forecourts.
21. Timing of Board training
Proposal 11 - Brightcrew
52. The decision of the Court of Session in the case of Brightcrew Limited v Glasgow Licensing Board has potentially important implications for the operation of the licensing system. The case centred on the ability of the Board to refuse an application for a premises licence from a lap dancing club. The grounds of refusal cited by the Board were incompatibility with two licensing objectives (public health and preventing crime and disorder). The refusal was based upon incompatibility with the Board's policy on adult entertainment, particularly with regard to the health and safety of the dancers.
53. An Extra Division of the Inner House allowed the appeal from Brightcrew. It held that the essential function of the 2005 Act is that of the licensing of the sale of alcohol. Since the licensing with which the Act is concerned is the licensing of the sale of alcohol, inconsistency with a licensing objective means inconsistency flowing from the permitting of the sale of alcohol on the premises. Whilst the objectives contained in the Act were desirable in a general sense, that did not empower a licensing board to insist on matters which, while perhaps unquestionably desirable in that sense, are nevertheless not linked to the sale of alcohol.
54. In other words, the Board was not entitled to refuse to grant a licence on the basis of breaches of its Code of Practice where the provisions breached did not relate to the sale of alcohol.
55. The implications of this decision are open to dispute, and further court judgements would be required to provide greater clarity of interpretation of the existing legislation. Some argue that Brightcrew does not have profound implications as long as Boards have clear and evidenced licensing policy statements, whereas we understand that some Boards are now cautious about taking cognisance of factors such as noise complaints, fights, and other disturbances because they are not directly concerned with the sale of alcohol. Some Board decisions not to take action seem to be based upon a fear of challenge in the courts.
Address the uncertainties highlighted by the Brightcrew decision
23. Would expanding the scope of the Act from 'sale' to 'sale and supply' address the uncertainties created by Brightcrew?
24. Would placing a general duty on Boards to 'promote' rather than 'have regard' to the licensing conditions address the uncertainties created by Brightcrew?
25. Would making clear that the Act allows regulation of the sale of alcohol or other activities in the licensed premises within licensed hours address the uncertainties created by Brightcrew?
26. Would you suggest another approach to resolve the uncertainties arising from Brightcrew?
Proposal 12 - Members' clubs
56. Concerns have been raised that some members' clubs, which enjoy a less onerous regime, are abusing either the letter or the spirit of the rules by operating in direct competition with local licensed premises.
57. The reasons that clubs have special arrangements under the Licensing (Scotland) Act 2005 remain valid. They exist principally for the benefit of their members and are not commercial enterprises that are open to members of the public. They also play a valuable part in community life in providing a range of sports and social activities.
58. Clubs want to retain their special status, whilst the mainstream trade wants to ensure that individual clubs are not abusing that status. The main complaint is that some clubs are acting commercially, by allowing entry to non-members, and have an unfair advantage over the mainstream licensed trade, the latter being more strictly regulated and not enjoying the same privileges and exceptions. Boards have expressed concern that the Act as it currently stands prevents them from dealing effectively with the minority of members' clubs that appear to be abusing the system.
59. Minor changes to legislation might allow Boards to discharge their duty more effectively.
60. Constitutions of clubs have to contain a set of rules, but Licensing Boards have no actual power to demand a copy of the constitution. Clubs can change a constitution without notifying a Board. The constitution does not form part of the licence or its conditions, so breaching the constitution does not breach the licence.
61. There is currently no sanction for clubs operating in what would appear to be a commercial nature and there are no grounds upon which to call for a review of the premises licence.
62. It is proposed to incorporate the constitution into the main operating plan or to make adhering to the constitution a mandatory condition in terms of the mandatory clubs provisions. Any breach of the relevant provisions within the constitution relating, to the sale of alcohol, would then be a breach of licence and could be subject of review.
63. Whilst this would in effect make clubs more accountable it would also generate more work for Boards.
Address the concerns that have been raised about members' clubs
27. Do you agree that there should be additional restrictions on the operation of members' clubs?
28. Do you agree that breach of provisions within a club constitution relating to the sale of alcohol should become a breach of licence allowing the Licensing Board to review the licence ?
29. What would be the resource implications for local authorities and clubs if the constitution had to be incorporated into the licence?
30. Do you have any other proposals to tighten up the regulation of members' clubs, for example through additional mandatory conditions?
Proposal 13 - Hearings
64. ACPOS and legal agents have expressed concern about procedures and the inconsistency of approach at Licensing Board meetings and in particular the conduct of hearings. With the move to a single police force and legal agents operating across multiple Board areas a more standardised approach could reduce unnecessary burdens.
65. A Licensing Board is considered to be an administrative decision-maker, it is not a judicial tribunal but it does require to act fairly with the applicant and other parties. Although a Board currently has the freedom to perform its function as it pleases 'in so far as it is not bound by statute' proceedings must be conducted in a quasi judicial manner and with proper regard for the rules of natural justice. This does not prevent the Board carrying out its functions by applying it own expertise to the application.
66. Licensing Boards are made up of local authority councillors (minimum of 5, maximum of 10) and have considerable autonomy in the approach they adopt. Accordingly, there are wide variations in the degree of formality, how written and oral evidence is taken and considered, and how decisions are made. Whilst a Licensing Board meeting must be held in public, in the interest of natural justice, it is known that some proceedings are held in private
67. In the main, Boards examine and approve licence applications, they can also carry out reviews where there are concerns. The Board must balance the public interest against the legitimate desires of businesses to open, continue to trade and expand.
68. The local authority must appoint a clerk to the Licensing Board who must be either an advocate or solicitor. The role of the clerk is to provide legal guidance and support.
69. Neither the 2005 Act nor guidance currently give direction in respect of how hearings should be conducted. However the Scottish ministers may by regulation make provision as to the procedure to be followed at or in connection with any alcohol licensing hearing to be held by a licensing board. These provisions may include:
- Notification of hearings
- Rules of evidence, which are to be applied for the purposes of the hearing
- Representation of any party at the hearing
- Timescales by which steps in the procedure must be taken
- Liability for expenses
- The times by which applications to a Board under this Act, and other business to be considered by a Board, are to be determined or considered
- The publicising of meetings of a Board
- Public access to any agenda and record or, and other information concerning, a meeting of a Board
70. Some legal agents are arguing for boards to adopt procedures and rules of evidence akin to those used in courts rather than the current more informal approach. They argue that the introduction of 'evidential hearings' would allow them to "properly test" the material presented by an objector or complainer.
71. In relation to objectors there can also be issues of fairness where an objector is required to state their grounds in advance, but the licence holder can present new material at any time. Objectors may not be given the opportunity to rebut the new material and have no right of appeal.
72. Clerks to Boards have voiced some concern about ECHR considerations, the requirement to hold hearings for decisions which could be better addressed by officials through delegated authority and additional powers that they believe would improve the operation of the Act
73. Finally Licensing Boards are not, nor were meant to be operated as courts. The rationale behind this is that the Licensing Board, which has a quasi-judicial function, should be seen as a separate entity from the criminal proceedings, and as in a Civil Court has different standards of proof - 'balance of probability' as opposed to 'beyond all reasonable doubt'.
74. It is entirely a matter for the Licensing Board to decide what evidence or information it accepts or rejects. They have a duty to consider all information put before it. That information and or evidence can include details of behaviour and conduct whether it is associated with criminality or not. However, the Licensing Board must consider the admissibility, relevance and weight to be given to each item of evidence.
75. Local councillors generally have no legal training in the rules of evidence and may not be best placed to deal with more court like 'evidential hearings'. The Act does not provide for witnesses to be put on oath or cross examined, which may well call into question the credibility of the evidence presented. Objectors, including the police are not normally represented by legal agents. With a shift to 'evidential hearings' this may have to change, which would come at considerable expense. Hearings would be likely to take considerably longer than at present and this would lead to increases in licensing fees so that boards could recover their costs. For these reasons we are not currently convinced of the case for 'evidential hearings'.
76. However administrative inconvenience, in itself, cannot be accepted as a valid excuse for failure to comply with the requirements of natural justice
77. The Act entrusts the administration of the licensing system to Licensing Boards and is designed to protect the local community and general public where problems associated with the licensing objectives occur. Licensing Boards are or should be best placed to determine what actions are appropriate for the promotion of the licensing objectives in their areas.
78. It was always envisaged that the Licensing Board would use the hearing process effectively to deter crime and disorder and address issues around premises and individuals failing to comply with the licensing objectives
Address concerns about procedures at Licensing Board hearings.
31. Should the Scottish Government provide additional guidance or regulation for Licensing Boards on the conduct of hearings and why?
32. Can you provide examples of particularly good or bad practice at board hearings?
33. Should Board meetings be held in public, in their entirety?
34. What other issues should be considered for inclusion in any guidance on board procedures and why ?
Proposal 14 - National policy statement
79. Alcohol Focus Scotland (AFS) and Scottish Health Action on Alcohol Problems (SHAAP) recommended the development of a national licensing policy statement that local Licensing Boards should be required to have regard to when drawing up their own policies.
80. A national policy statement could benefit local Licensing Boards and help them to integrate local and national strategies for managing alcohol related problems.
81. For a national licensing policy statement to have an impact it would require some statutory basis. However given the very wide variations between the different Scottish communities the statement would have to be fairly high level and as a result might not have much real impact.
82. Licensing Boards and clerks have expressed concern that the introduction of a national policy would erode their policy making and discretion.
Develop a national licensing policy statement that local Licensing Boards are required to have regard to when drawing up their own policies.
35. Should the Scottish Government introduce a national licensing policy statement and why ?
36. What sort of issues should such a statement cover ?
Proposal 15 - Amend the licensing objective to protect children and young persons from harm
83. Section 147 of the 2005 Act defines a child as "a person under the age of 16" and a young person as "a person aged 16 or 17". Thus the 'protecting children' objective does not apply to 16 and 17 year olds. The distinction between children and young persons creates difficulties for Licensing Boards when dealing with issues around young persons. For example it means that any action the Board take in relation to test purchase failures have to be considered in regards the crime prevention objection as opposed to the children objective. Equally when considering areas set aside for children and young persons within premises, it is difficult to relate to this to the objectives especially in respect of young persons
84. The broadening out of the objective would give Licensing Boards greater scope when considering the wider implications of young persons access to alcohol.
85. The current section 110 notice is inaccurate as it does not fully reflect the rules, it is proposed to update it.
86. Another proposal is to strengthen the current mandatory condition in relation to Challenge 25 which currently only requires that there is an age verification policy in relation to the sale of alcohol on the premises. It is proposed that this be expanded to also require that the age verification policy be adhered to.
Amend the licensing objective in the 2005 Act from "protect children from harm" to state "children and young persons from harm".
37. Should the licensing objective be amended to say "protect children and young people"?
38. Does the current mandatory condition in relation to Challenge 25 create difficulties?
Proposal 16 - Interested parties
87. The Criminal Justice and Licensing (Scotland) Act 2010, at section 184, proposed that a premises licence holder be under a duty to notify their licensing board if a person becomes or ceases to be a connected person or interested party. This was to respond to concerns that the holders of premises licences were failing to advise Boards of connections with, for example, organised crime. Criminal sanctions would apply for a failure to notify.
88. However the Law Society raised concerns that this provision is too vague and too broad to be practical. If the premises licence is held by a tenant of large chain such as Punch Taverns and there is a change on the Board of Punch does that have to be notified? If, as happens in the current economic circumstances, the ownership passes from a defaulting company to the bank who then sell it on to a private equity firm who parcel it up in a property portfolio that is sold to a pension fund, is a tenant going to keep up and notify at every stage?
89. In order to respond to these concerns the Scottish Government have held off bringing this provision into law, that is it is still to be commenced. We are considering options to make the provision more effective before it is brought into effect.
90. One proposal is to amend the duty to read that, 'when a premises licence holder is aware (or should reasonably be expected to be aware) of a change…..'
91. Alternatively we could adopt the approach of the Civic Government (Scotland) Act 1982 Schedule 1, paragraph 5 (3)(b) whereby "The activity to which it relates would be managed by or carried on for the benefit of a person, other than the applicant, who would be refused the grant or renewal of such a licence if he made the application himself".
92. Concerns have also been raised by ACPOS about a conflict with another provision within the Criminal Justice and Licensing (Scotland) Act 2010. These are not yet an issue, as the provision for interested parties has not yet been brought into law. However if it were commenced as currently drafted then it would have the unintended consequence that a premises manager would no longer have vicarious liability. Vicarious liability is where a person is deemed to be liable for the offences committed by employees.
93. Within section 184, which inserts section 40A into the 2005 Act, an interested person is defined as a person who is not the premises licence holder and is not the premises manager. This has not yet been commenced.
94. However within s195, vicarious liability (responsibility for the offences of employees) is applied to the premises licence holder or an interested party. But as explained above s40A specifically excludes the premises manager from the definition of an interested person, the effect is that the premises manager would not have vicarious liability for the offences of employees.
Address concerns that legislation intended to require notification of those connected to a premises licence, was too broadly drafted and would inadvertently criminalise many premises licence holders.
39. Do you agree that the duty as presently drafted is unworkable and why ?
40. (a) Do you prefer the proposal that the duty should be amended to read that
'when a premises licence holder is aware (or should reasonably be expected to be aware) of a change…..'
(b) Or do you prefer the proposal to adopt the wording from the Civic Government (Scotland) Act 1982
"whereby "The activity to which it relates would be managed by or carried on for the benefit of a person, other than the applicant, who would be refused the grant or renewal of such a licence if he made the application himself".
(c) Alternatively do you have any other suggestions?
41. In common with the premises licence holder and interested parties, should a premises manager have vicarious liability for the offences of employees ?
Proposal 17 - State that the locality for assessment of overprovision can be the entire board area
95. This is another recommendation made by Alcohol Focus Scotland (AFS) and Scottish Health Action on Alcohol Problems (SHAAP).
96. The 2005 Act places a duty on Licensing Boards to make an assessment of overprovision in any locality within the Boards' area. It is suggested that the use of the term "within" is taken as indicating that the area for the assessment of overprovision cannot therefore be the entire Board area. It is argued that this presents a obstacle when considering the wider scope of the protecting and improving public health objective and prevents Boards from considering the availability of alcohol across their whole geographical area.
97. Boards have struggled to identify locality for overprovision areas and questioned the ability to declare an entire Board area overprovided for. In respect of the Public Health objective, in the absence of a whole population approach over a wider geographical area it is difficult to make a case and almost impossible to relate public health data to individual premises. In terms of the public health objective it is very difficult, if not impossible in most cases to make a causal link between where alcohol is sold and where it is consumed.
Amend section 7 of the 2005 Act, the duty to assess overprovision, to state that the locality for assessment of overprovision can be the entire board area.
42. Should section 7 of the 2005 Act, the duty to assess overprovision, be amended to state that the locality for assessment of overprovision can be the entire board area?
43. Would this make it easier for Boards to assess overprovision?
Proposal 18 - Clarify that overprovision can include an increase in capacity
98. This is another recommendation made by Alcohol Focus Scotland (AFS) and Scottish Health Action on Alcohol Problems (SHAAP).
99. It is argued that when considering overprovision this should be made in the widest possible sense. The Act should therefore also explicitly afford an opportunity to consider overprovision in terms of increased hours and capacity within licensed premises.
100. Allowing Boards to consider overprovision in terms of capacity and not just the number of premises would, for example, allow Boards to consider in the round the total off-sales shelving capacity in their area, or the total aggregate opening hours in the on-trade. This total capacity would have to be considered not just in terms of new premises applications, but taking account of any variations or premises that have ceased to trade.
101. To date, boards have adopted different approaches to capacity especially in respect of off-sales premises. They have measured capacity in terms of linear, square, cubic, metres and as a percentage of trading space.
102. The problem is further exacerbated by the interaction between On and Off sales premises. Not all Boards record off-sale capacity in respect of on-sales premises.
Clarify that overprovision can include an increase in capacity where there is no increase in the number of premises, and include opening hours in the assessment of overprovision.
44. Should section 7 of the 2005 Act, the duty to assess overprovision be amended, to make it clear that overprovision can include an increase in capacity where there is no increase in the number of premises?
Proposal 19 - Tackle internet sales
103. Section 139 regulates the remote sales of alcohol (internet sales). The section applies where, in connection with any sale of alcohol, the premises from which the alcohol is dispatched for delivery in pursuance of the sale is not the same as those where the order for the alcohol is taken. Where the premises from which the alcohol is dispatched are in Scotland, the sale of the alcohol is, for the purposes of this Act, to be treated as taking place on those premises.
104. The Scottish Ministers may by regulations make such provision as they consider appropriate for the purpose of regulating the taking of alcohol orders in Scotland for dispatch from premises out with Scotland, but is then delivered in Scotland.
105. Following the introduction of Alcohol etc. (Scotland) Act 2010 concern was raised regarding supermarkets or other businesses taking orders in Scotland for the purchase of alcohol but then dispatching the order from premises out with Scotland. It was suggested that this practice would avoid the minimum pricing legislation and would allow supermarkets to continue with 3 for 2 type drink promotions etc.
106. Where sales are made in Scotland but dispatched from out with they could be controlled by way of regulation. However there could be considerable difficulties for police and local authorities in seeking to enforce such regulations.
Address internet sales by extending the Scottish measures such as the multibuy promotions ban to cover orders dispatched from England but which were 'taken' in Scotland.
45. Should the Scottish licensing regime apply to orders dispatched from out with Scotland?
46. If this were introduced, would the police and local authorities be able to carry out meaningful compliance and enforcement action?
Proposal 20 - Garage forecourts
107. Clarify the specific circumstances under which alcohol can be sold in garage forecourts.
108. The legislation in relation to garages is under excluded premises at section 123, and is complicated. Although a premises licence should not be granted to a garage, it can be granted where local residents depend on it for a variety of reasons. This protects rural garages, or urban garages that provide an important local service. This has proven difficult to interpret and apply in practice, and many garages now hold premises licences. With most people already driving to do their shopping, it could be argued that the need to stop garages from selling alcohol has been lessened.
109. Another form of excluded premises is a motorway service station. It is proposed to review and update the current definition of a motorway service station.
110. Both these proposals would relate to applications for new licences, rather than to existing premises licences.
Clarify the specific circumstances under which alcohol can be sold in garage forecourts.
47. Should all garages be refused a premises licence?
48. What, if any exemptions should apply?
49. Can you suggest an alternative approach which would address concerns?
Proposal 21 - Timing of Board training
111. After the 2012 local government elections concerns were raised by some Licensing Boards and applicants about the timing of hearings.
112. It is a legal requirement that Board members should be trained before they can take part in a Licensing Board. With local government elections scheduled in May, the Licensing Board can be subject to considerable changes. Scheduling training for new members over the summer period can prove challenging, and lead to delays in licence applications being heard. This is a particular issue for those applying for a new premises licence.
113. Many Licensing Board decisions can be dealt with via delegated authority, but not new premises applications or major variations.
114. The Scottish Government recognises that licensing can impose a burden on businesses, and is keen to minimise this.
115. A variety of proposals have been made, for example,
(a) Allow Board members three months grace to comply with the requirement for training
(b) Authorise Clerks and Depute Clerks to grant non-contentious new licences and major variations during the three month period, under delegated authority, with an option to have those decisions ratified by the Board at the end of the three month period.
Flexibility over training requirements for a new Board.
50. Are you aware of genuine issues of hardship to applicants caused by delays in Boards hearing cases following the local government election?
51. If so, what would be your preferred approach to address this issue?