Further Options for Alcohol Licensing

Over the last few years the Scottish Licensing System has undergone significant statutory regulation. The Licensing (Scotland) Act 2005 came into force of 1st September 2009. This was amended in October 2011 by the Alcohol, Etc. (Scotland) 2010 and the Criminal Justice and Licensing (Scotland) Act 2010.

In the intervening period it has become clear that not all aspects of the new regime are operating well. Accordingly the Scottish Government has recently consulted on proposed further changes to the Statutory Framework for Licensing in Scotland. These proposals for further change fall into two categories.

  1. Proposals to strengthen the powers of the Licensing Board and the Police.
  2. Proposals to improve the effectiveness of the Licensing Regime.

Proposals to Strengthen the Powers of Licensing Board and the Police

Proposals made under this heading are as follows:-

  • Further criminalisation of the supply of alcohol to under 18s, to extend the existing criminal law so as to cover the supply of alcohol to under 18s in a public place.
  • The introduction of police powers so as to impose restrictions on licensed premises within an area where disorder is likely to occur. This proposal has been put forward in response to concerns about violence and disorder associated with alcohol consumption and football matches. This proposal is similar in effect to that provided to police officers in England and Wales in accordance with Section 160 of the Licensing Act 2003.
  • The introduction of a power to allow Licensing Boards to impose additional conditions to vary the opening hours for some or all licensed premises so as to restrict the sale of alcohol around football matches, or other events likely to be associated with disorder.
  • A proposal to enable Licensing Boards to apply new local licensing conditions to all existing licensed premises without the need to update individual licenses.
  • A return to the "fit and proper" test as to whether an applicant is suitable to hold a licence. This was the statutory test for proposed licence holders under the Licensing (Scotland) Act 1976 and is the statutory test applied for other types of licence regulated by the Civic Government (Scotland) Act 1982. A return to this test would provide the Police with a wider ability to present information to Boards and give Boards the ability to consider a greater breadth of relevant information when determining a licensing application than is currently permitted under the 2005 Act regime.
  • Impositions of a statutory duty on Licensing Boards to promote the 5 licensing objectives enshrined in the 2005 Act.
  • Imposition of a statutory duty on Licensing Boards to report annually on how the Board has fulfilled its duty to promote each of the Licensing objectives.
  • Imposition of a statutory duty on Licensing Boards to gather and assess information on each of the 5 Licensing objectives in the 2005 Act, in preparation of their Statement of Licensing Policy.
  • Extension of the period for a Statement of Licensing Policy to 5 years. Under the 2005 Act, each Board's Statement of Licensing Policy currently only lasts for 3 years. The proposal to increase this to 5 years would allow the timings of the Statements of the Licensing Policy to tie in with the 5 yearly Scottish Local Government elections. It is further proposed that a statutory ouster clause be introduced so as to prohibit appeals against an adopted licensing policy statement outside its introductory period. This is a proposal similar to the statutory ouster clause contained in Section 237 of the Town and Country Planning (Scotland) Act 1997 which limits challenges to an adopted local plan.
  • Introduction of a test to ensure that applicants for a Personal Licence have a reasonable command of the English language.

Proposals to Improve the Effectiveness of the Licensing Regime

  • In 2011 the Court of Session decision in Brightcrew Limited v City of Glasgow Licensing Board highlighted certain uncertainties in Licensing Boards' decision making process. In this case, the Inner House of the Court of Session, Scotland's Civil Appeal Court decided that the essential function of the 2005 Act was the licensing of the sale of alcohol. Accordingly that did not empower a Licensing Board to insist on matters in a decision which, while desirable, were not directly linked to the sale of alcohol. The effect of this decision is controversial but it seems clear that some Boards now take a cautious approach about recognising factors, such as noise complaints and anti-social behaviour, in taking decisions to refuse Licensing Applications for fear that these decisions are taken on grounds not directly concerned with the sale of alcohol.
  • Under the 2005 Act, Members' clubs enjoy less onerous regulation. Criticisms have been levelled to the effect that a minority of clubs are abusing this privilege and are effectively operating as commercial organisations. It is now proposed that the 2005 Act is amended so as to prevent this abuse of members' clubs status.
  • A proposal to standardise procedures at Licensing Board Hearings throughout the country. Scotland has recently moved to a single Police Force and it is apparent that the majority of legal agents who practise in this area are representing clients across a wide geographic area. It is felt that inconsistencies between the procedures adopted at different Boards and the approaches taken by them can cause difficulties for applicants. Proposals to standardise the procedures at licensing boards are argued to have the effect of reducing unnecessary burdens and uncertainty for applicants.
  • A proposal to develop a National Licensing Policy Statement that local Licensing Boards are required to have regard to when drawing up their own policies.
  • A proposal to amend the Licensing objective in the 2005 Act so that it protects not only children (age 0 to 15) from harm but also young persons (aged 16 and 17).
  • A proposal to amend the terms of legislation requiring the notification to the Board of changes in connected persons to Premises Licence.
  • A proposal to amend the legislation to allow Boards, if they so choose when assessing overprovision, to state that the locality for assessment of over provision can be the entire Board area. This proposal also clarifies that overprovision can include an increase in the capacity of a particular premises, and not just an increase in the number of licences. When considering increase in in capacity, it would be also be open to Boards to consider an increase in opening hours.
  • A proposal to tackle internet sales which are "taken" in Scotland but dispatched from England. Such sales can have the effect of defeating the Scottish Government's policy of prohibiting multibuy offers.
  • A proposal to clarify specific circumstances under which alcohol can be sold in Garage Forecourts. The need for this amendment is a direct result of judicial decisions regarding the current wording of the 2005 Act.
  • A proposal to increase flexibility over training requirements for new board members. This proposal has been considered to address concern that following the 2012 Scottish Local Government Elections that some applicants were prejudiced by having to wait for new Board members to undergo the necessary statutory training.

Minimum Pricing

The Alcohol (Minimum Pricing) (Scotland) Act 2012 was passed by the Scottish Parliament in June 2012. This legislation aims to introduce a preferred minimum price for alcohol of 50p per unit with the stated aim of improving Scotland's unhealthy relationship with alcohol. The Act has however been the subject of judicial review proceedings raised at the instance of the Scotch Whisky Association and other trade bodies which contend that the Act itself is outwith the legislative competence of the Scottish Parliament, and that there was no evidential basis for the belief that the legislation, by imposing a minimum price, would reduce the harmful consumption of alcohol or improve the public health of the general population. In May 2013, the Court of Session rejected these arguments in a decision hailed as a significant victory for the Scottish Government. This decision is, however, the subject of appeal proceedings which will be heard, at the earliest, this coming autumn. Meantime, the Scottish Government has confirmed that it will not take any steps to introduce minimum pricing for alcohol until the outcome of the judicial challenge is known.

Children & Young Persons

With effect from 1 October 2013, new Regulations will come into force prescribing additional forms of identification which are acceptable as proof of age for a person attempting to buy alcohol. These are:

  • Defence Identity Cards;
  • Photographic Identity Cards, bearing the national Proof of Age Standards Scheme hologram;
  • National identity cards issued by a member state of the European Economic Area and Switzerland, and
  • Biometric Immigration documents.

These documents will supplement those presently deemed acceptable, including passports and British Retail Consortium Proof of Age cards.

Refresher Training

In terms of the 2005 Act, all personal licence holders must undertake refresher licensing training by 5th anniversary of their licence. A number of personal licences were issued by Licensing Boards in 2008 and 2009, prior to the coming into force of the 2005 Act on 1st September 2009. The Scottish Government has now provided clarification that any licence holder who is in this situation will only be required to undertake refresher training by 1 September 2014, being the 5th anniversary of the new regime coming into effect. A rush for training in advance of this date is expected.

Reduction of Drink Drive Limit

The Scottish Government has recently consulted on its proposal to reduce the current drink drive limit by reducing the existing blood/alcohol limit of 80mg/100ml to 50 mg/100ml with consequential equivalent reductions in the breath and urine limit. Draft legislation to bring in this change to the law is now awaited.

Independence Referendum Results

The referendum on Scottish Independence is due to take place on Thursday 18 September 2014. In advance of this date it is anticipated that Licensing Boards may see a large number of applications for extended hours to allow premises to stay open into the night for the result of the referendum being announced.

Civic Government Licensing

The main piece of legislation covering the vast majority of other licensable activities in Scotland remains the Civic Government (Scotland) Act 1982. There has been little in the way of recent amendment to this, with the exception of amendments relating to public entertainment licensing and houses in multiple occupation.

Public Entertainment Licences

In contrast to the position in England, where a lighter touch regulatory approach is being adopted, on 1st April 2012 the law in Scotland regarding Public Entertainment Licences changed significantly. Prior to this date, a licence for an event constituting public entertainment was not required unless payment in "money or money's worth" was made for the entertainment being provided. With effect from 1st April last year, this condition regarding payment was removed to the effect that free event were brought within the public entertainment licensing regime.

Despite this change in the law, local authorities throughout the country have reacted in a number of different ways, some enforcing the strict terms of the amended legislation and other allowing for specific exemptions for certain events where no admission fee is charged and where only small numbers of people attend. The regime for small scale and free to enter events is somewhat shambolic and whether a licence will be required for a particular event depends very much on the local authority area in which it is due to take place.

HMO Licensing

With effect from 31 August 2011, all Houses in Multiple Occupation (HMOs) must be licensed in accordance with the provisions of the Housing (Scotland) Act 2006. The effect of this is to bring within the licensing regime nearly all residential accommodation which provides the main home for three or more unrelated people. Certain types of property such as residential nursing homes, boarding schools and the like are excluded from this regime but the owners of shared flats and houses, flats, bed-sits, hostels and halls of residence will need to be licensed.