SCPO Briefing Paper 6/4 outlined the
issues raised by the Nicholson Report on Licensing Law Reform. The
Scottish Executive have now considered responses to that
consultation and produced proposals for a draft Bill (also covering
the report of the Daniels Committee on Off-Sales), again the
subject of further consultation, with responses requested by 31
August. This new Briefing Paper updates the previous one, in light
of these developments and a meeting between the Executive Bill Team
and church representatives in July 2004.
The caricature suggested last autumn by the Sunday Times
("Scottish church leaders have formed a cross-faith campaign group
to oppose the planned liberalisation of drinking laws") does not
reflect the churches' stance. However, crucial questions have been
raised with the Executive, focussing on the relationship between
the proposals (which broadly reflect those of the Nicholson Report)
and the Executive's Plan for Action on Alcohol Problems.
That Plan (launched in 2002) recognised that, in Scotland,
"problem drinking is costing at least £1bn in health costs, sick
days and lost productivity - enough to build 10 new hospitals every
year (Mary Mulligan)"; more recent Executive statistics showed a
22% increase in alcohol-related hospital cases over 5 years, and
1957 alcohol-related deaths in 2002 (compared with 583 in 1980.
While the Scottish trends reflect the UK picture, other European
countries have achieved reductions in alcohol problems. However,
there are different views as to how well the proposals for
modernising Licensing Law reflect with the urgency needed to
address these problems.
In launching the proposals, Cathy Jamieson said that the
Executive "take the problem of the harm caused by alcohol abuse
very seriously", adding that "liquor licensing legislation is one
of the routes we have available to us that can support the other
measures we are taking though the Plan for Action". The Executive
have also suggested that there are strong links between the two
policies (including measures on under age drinking and some
expansion of the grounds for objecting to licenses to include
over-provision), which will be made more explicit in a future,
revised version of the Plan. Yet, others feel that there has been
uncritical acceptance of the conventional wisdom (which also
informed the relative liberalisation of thirty years ago) that
relaxed regulation will lead to more "civilised" drinking, when the
alarming growth of binge drinking suggests otherwise.
1. Licensing Principles
The key - and the potential for positive links - lies in the
"licensing principles", suggested by Nicholson as the first
explicit policy basis for licensing law and accepted by the
Executive for inclusion in future legislation. These are (a) the
prevention of crime or disorder; (b) the promotion of public
safety; (c) the prevention of public nuisance; (d) the promotion of
public health; and (e) the protection of children from harm. These
have been widely welcomed, as giving legislation and the work of
Licensing Boards "a positive social purpose, and criteria against
which progress can be measured"; while law and regulation cannot
alone change the drinking culture of Scotland, they can provide a
framework within which other aspects of the strategy can
develop.
Clearly, these are broad principles, and Nicholson tended to
devolve to local Licensing Boards decision-making on how to express
the principles in, for example, licensing conditions. However, the
Executive have suggested that "the clear benefits of local
flexibility must be balanced by a prominent national framework
which sets boundaries around some of that local discretion in the
interests of national consistency". They therefore propose
developing a set of minimum standard national licence conditions
covering issues such as the access of children to licensed
premises, the provision of adult entertainment, additional public
safety requirements for late opening premises, and some specific
differences relating to off-licences; these conditions are likely
to include "no proof (of age) no sale" requirements and
restrictions on "irresponsible promotions" (such as "happy hours"
of heavily discounted drink prices). Suggestions are sought of
other areas to be covered by national licence conditions.
Churches have tended to be supportive of national conditions to
address the problem areas of under-age and binge drinking, while
recognising the need to balance this with responsiveness to local
conditions.
2. Licensing Forums
The Nicholson proposal for a National Licensing Forum is
endorsed, with the additional suggestion that Ministers should have
powers to issue statutory guidance to Licensing Boards on the
discharge of their functions. Both would help strengthen
connections between legislation and other measures to tackle
alcohol problems (not least through links between the National
Forum and the Scottish Advisory Committee on Alcohol Misuse).
Local Licensing Forums (governed and appointed by local
authorities but with wide representation of interested parties)
would encourage active participation in setting local policies,
feeding into policy statements by Licensing Boards, although this
approach does not mean that communities will be given a veto over
the establishment of licensed premises in their area. Church
representatives have expressed concern that local authority
appointment would compromise the independence needed for these
forums, but the Executive responded by suggesting that existing
non-statutory forums are run by Boards and apparently work well. It
has also been suggested that local forums should have power to
demand an annual "impact assessment" from Licensing Boards, to
monitor compliance with the five principles, as well as having
strong links with local Alcohol Action Teams.
3. Licensing Hours
One of the key reasons given for the need to reform existing
legislation is that the "licensing hours" established in the 1976
Act have all but disappeared in practice. At 31 December 2003,
10,239 licensed premises held one or more regular extensions to
permitted hours granted by Licensing Boards in Scotland; 92% of
public houses and 87% of hotels (excluding restricted hotels) had
regular extensions in force.
Controversially, Nicholson proposed an end to statutory
licensing hours - as "unnecessarily restrictive" and eroded by
widespread extensions - provoking headlines about 24-hour drinking,
quickly denied by Sheriff Principal Nicholson as an intended
outcome of his proposals. The Executive have accepted the basis of
that approach, but also "understand some of the concerns of both
trade and health groups who, for different reasons, oppose longer
opening hours, particularly 24-hour opening". What is now proposed
is that Licensing Boards determine opening hours to suit local
circumstances, with a mandatory requirement for them to set out
their policy on this clearly in their policy statement; there would
also be a "presumption against 24-hour opening … with limited
exceptions set out in statutory guidance", although it is not clear
whether and how such a presumption can be incorporated in
legislation. Views are invited on this, and, in particular, on what
the exceptions might be.
What remains unclear (and unexplored by the Executive) is what
impact this might have in practice, and how the principles would be
applied to the issue of opening hours. No assessment appears to
have been made of whether this would limit current extensions (eg
in areas where there have been public safety and/or disturbance
issues) or remove all constraints. Yet there is evidence that most
of the problems associated with alcohol misuse increase in parallel
with increased availability. Crucially, would Licensing Boards have
difficulty in justifying the placing of any curtailment on the
hours of any premises opening when other premises had less (or no)
curtailment - especially if the licensee appealed on a human rights
and/or free competition basis?
4. Varieties of Licence
Nicholson proposed that the seven or more current types of
licence be replaced with a single system, bringing clubs under the
same jurisdiction as pubs but with distinct licences for premises
and for persons. Operation of any type of licensed premises would
require both a premises licence (based on suitability of the
building) and a personal licence held by the person responsible for
on-site running of the premises. The former would remain in force
indefinitely, but could be varied on application by the licence
holder, or by the Licensing Board in the event of breach of its
terms in a way which "prejudiced the licensing principles". The
latter, normally valid for ten years, would be granted to
individuals with approved qualifications, allowing the licence
holder to manage licensed premises, and to sell or supply alcohol
without supervision.
For personal licences, the Executive support a move away from
the moral judgement of who is a 'fit and proper person', instead
emphasising more objective qualifications and relevant criminal
convictions (a list of which would be included in the Bill). One
area of possible concern, however, is that a designated personal
licence holder would not be required to be on the premises during
all opening hours.
5. Training
Both Nicholson and Daniels stressed the importance of training
to any successful system. Nicholson proposed that: (a) appropriate
training prescribed in regulations should be made available to
Licensing Board members; (b) in addition to the training
requirement for personal licence holders, encouragement should be
given to training for all who work in licensed premises, with
training courses given official accreditation and specified in
regulations; and (c) casual staff do not need to be given formal
training but should be given in-house basic instruction by the
designated personal licence holder and should at all times be under
the supervision of a trained person. The Daniels Report proposed
that training courses should be mandatory for personal licence
holders and on-site training provided for all other employees with
personal licence holders undertaking refresher training every 5
years.
Responding to comments made by churches and others during the
earlier consultation, the Executive go further, believing that
Board members' training should be mandatory, and Board members
would not be allowed to sit until their training had been
completed. In addition, "permanent staff who are servers of alcohol
must receive appropriate mandatory training at an agreed national
level (which would be lower than that required for personal licence
holders)"; while "casual" staff (with a strict definition of
"casual") would be exempt, they would have to undergo basic on-site
training by a personal licence holder. This tightening of
requirements has been welcomed by groups such as Alcohol Focus
Scotland.
6. Objections to Licences
The Executive support the approach taken by the Daniels
Committee of widening the entitlement to object and make
representations to anybody who can show a "real and material
interest" (replacing and widening the present list of entitled
people and groups); this would apply to all licensed premises.
Future objectors would clearly have to base their case on the
licensing principles, though it is explicit that over-provision in
a given area might be a ground of objection and Boards will be
required to make "a pro-active assessment of overprovision in
consultation with local communities".
Fundamentally, the approach hopes that community feelings will
be better expressed through the local forums than through a legal
process, which currently (and perhaps inevitably) favours the
better-resourced corporate applicant over local objectors.
7. Ensuring Compliance
Nicholson recognised that the key to any effective system lay in
monitoring and ensuring compliance. He proposed Liquor Licensing
Standards Officers (with functions of guidance, mediation and
reporting complaints) - welcomed by churches, though with
reservations as to their independence if employed by local
authorities. Broadly, the Executive have agreed, adding powers for
LLSOs to issue oral warnings while Licensing Boards would have a
range of other sanctions.
A recently-reported police suggestion that licensees should have
a legal duty of care to members of the public who may be affected
by the actions of their intoxicated customers is not raised in the
consultation paper.
8. Children
While Nicholson suggested a presumption in favour of access by
children to all licensed premises, the Executive (again responding
to comments in the consultation) favour a system of "opting in" by
licensees to child access, and then only if suitable arrangements
are in place. However, they do wish to encourage more
child-friendly pubs.
They will retain existing controls on the sale and supply of
alcohol to under 18s, backed up by a "no proof, no sale" scheme;
they would allow 16 year olds to buy certain low-alcohol drinks for
consumption with a meal, but otherwise make it illegal for under
18s to consume alcohol on licensed premises (which it is not at
present).
9. Binge Drinking and Happy Hours
A major recommendation of the Nicholson Report was that a
standard condition be attached to premises licences that nothing
should be done to promote excessive alcohol consumption; for many,
this did not go far enough. Although the Executive press release
for their proposals highlighted a "crackdown on irresponsible
drinks promotions which encourage binge drinking and lead to
anti-social behaviour", they are uncertain about how to establish a
"workable solution" and "intend to ask the Expert Group to advise
us on how we might seek to define an 'irresponsible promotion'
leading to a standard national licence condition … on this issue,
we clearly need to involve the licensed trade to identify existing
best practice". Responses to the present consultation may be
crucial on this.
10. Other Issues
Other specific issues raised in the meeting with church
representatives included (a) anomalies re armed forces canteens and
trains (both currently exempt from licensing laws - no change
proposed), (b) money-laundering and promotion of sectarianism in
pubs (both of which the Executive are keen to tackle), and (c)
petrol stations (to which they may grant permission to sell alcohol
where these are "premises with an important community
function".
Consultation responses are due in by 31 August.