Last orders for drinks licences as we know them

Pubs and shops in Scotland are to sell alcohol 24 hours a day, in a major relaxation of Scotland’s drinking laws. If you believe the media coverage that followed the report’s publication, those were the proposals of the Nicholson Committee. But Sheriff Principal Gordon Nicholson QC, who chaired the committee, is disappointed that his report was seen as a great liberalisation.

“We went to great pains to emphasise how the existing provisions for extended hours have been used way beyond the limited purpose intended by the Clayson Committee,” he says referring to the body whose work preceded the 1976 Licensing Act. “Clayson intended extensions in fairly special circumstances but the practice has grown so that 90% of all licensed premises now have extensions of one sort or another.”

Not that the report sets out to be restrictive. “Given that the majority of people in Scotland drink sensibly and responsibly, the licensing system should be as free from restrictions as possible,” it states at the outset. But the committee, which paid particular attention to health and public order issues, was equally concerned to strengthen the powers of licensing boards where necessary. “We are giving more teeth to licensing boards to make sure the system works in a lawful and appropriate way,” says Nicholson.

Licensing principles with teeth

Those teeth may be shown both at the application stage and during the subsequent operation of the licence. Boards will have to undertake “a more proactive role,” guided by “licensing principles” – the prevention of crime or disorder; the promotion of public safety; the prevention of public nuisance; the promotion of public health; and the protection of children from harm.

These five principles run through the whole of the Nicholson proposals. They underpin the grounds for refusing an application, the conditions to be attached to a licence and the criteria against which any action will be considered. The current English Licensing Bill has a similar approach, without the reference to health – an objective “just as important as any of the others”, in the report’s view.

The Nicholson Committee’s most radical proposal (and the one which has attracted the media headlines) is the abolition of the statutory opening hours. Instead “each application would be accompanied by an operating plan or schedule, setting out in detail the nature of the operations to be conducted in the premises” – permitting abolition not only of the set hours, but also of the seven different types of licence currently defined in the 1976 Act. Only two types would remain, a premises licence and a personal licence. The former would be obtained by anyone wishing to operate a public house, off-sale, club or other licensed premises, the operating plan defining the use to which the premises could be put. The responsible manager would require a personal licence, granted where the individual possessed qualifications appropriate to the proposed operation and satisfying conditions relating to fitness.

The Sheriff Principal readily concedes that his proposals constitute a significant increase in a board’s regulatory powers. “One cause for concern at the moment is that there is really no definition of the scope of operations in individual premises,” he says. This can lead to what Nicholson dubs “licensing by stealth”, where, say, a hotel applies for a licence for a small bar area for its residents, but once it is granted the bar area is inexorably extended until the premises become a large super-pub with a few letting bedrooms attached. In the future such a change would conflict with the terms of the licence – standard conditions of which would require compliance with the operating schedule  – and incur the board’s wrath.

To balance these powers the Committee proposes that each licensing board area would have its own licensing forum, representing various interests in the licensing system. Following consultation with the forum (and having to give reasons if it chose to differ), each board would “issue policy statements which give a broad indication of the policy which is likely to be adopted in relation to the operation of the licensing system within their respective areas”. Some boards were opposed to this as apparently fettering their discretion, but Nicholson disagrees. “Declared policies are nothing new. Boards will be at pains to frame their policies in such a way as to declare that they are not tying their hands,” he says.

There are no hard and fast models, he continues. “The licensing board for Edinburgh, for example, might want to set policies covering different parts of the city centre. On issues such as whether licences should be granted for shops attached to filling stations, it might be appropriate to adopt different policies in urban and rural areas.”

A National Licensing Forum, proposed to keep the law and practice under regular review, would give rise to ministerial guidance on matters such as the admission of children.

The Committee proposes grounds for refusing a premises licence similar to the existing “suitability” provision, and a reformulated version of the overprovision ground. But these would be subject to the generality that a licence may be refused if to grant it would “undermine the promotion of the licensing principles”. Would this introduce an unduly subjective element into a board’s decision-making? Nicholson doesn’t think so. “There is a great degree of subjectivity already. For example, if a locality has 25 licensed premises, is it overprovision to grant a licence for a 26th?

“In a way it is a subjective decision, but this is one reason why we’ve changed the unreasonableness ground of appeal to proportionality. This would permit an appellate court to look a little more deeply into a refusal, in that the basis on which a discretion has been exercised would be subject to a greater degree of scrutiny.”

Continuing supervision

Central to the committee’s scheme is the system for continuing supervision of premises once licensed. With a premises licence recommended to remain in force indefinitely (a personal licence is renewable after ten years), the report sees it as of the “utmost importance” that a board be satisfied that the proposed operation will remain substantially unchanged. To this end, borrowing a scheme that operates in British Columbia, boards should employ liquor licensing standards officers to monitor the licensing system in their area.

Nicholson is keen to emphasise informal methods of operation: “We see the primary role of standards officers as advisers and counsellors to those who run licensed premises. They would be a source of advice for licensees to consult on whether a proposed modification to the way they operate would be in accordance with their licence, and would also visit premises and advise if they found anything which did not conform to the licence.”

Rather than propose a system of enforcement notices, he prefers that officers would attempt to secure compliance by advice and persuasion, and “only as a last resort might the licence holder be reported to the board for a formal hearing”.

In a potentially significant passage the report notes that at present some grounds for refusing an application “may require something of a guess as to what may be likely in the future if the application were to be granted,” yet there is no remedy if that guess proves wrong.

“Under our proposals a board will be entitled to call somebody back to review the terms of the licence,” explains Nicholson. “And it will be a standard condition of all licences that licence holders must observe the licensing principles at all times.”

Banning culture of binge drinking

The report recognises that there are limits on the extent to which legal changes can limit Scotland’s binge drinking culture. The Committee would make it a condition of a licence that nothing be done to encourage excessive consumption. The Sheriff Principal concedes the vagueness inherent in the “excessive consumption” test, but adds: “My hope would be that the relatively few premises that are perceived as culprits at the moment might freshen up their act in any event.”

The committee devotes much attention to securing compliance with the Human Rights Convention in relation to the constitution and independence of licensing boards. While the board system should be retained to preserve local democratic accountability, local authorities from which members are drawn should no longer be able to obtain licences, any licensed operations being franchised to other parties. And while the authority, the chief constable and the fire authority should have a recognised interest to submit observations or representations, they should no longer be competent objectors. The committee considers that these measures, taken with increased rights of appeal, would provide sufficient safeguards.

As Nicholson says: “Our concern was to ensure that boards themselves would be compliant. I would readily see that someone might want to challenge the grant of a licence by reference to article 8 [right to private life] or whatever. But I see that as simply an illustration of where the whole area of licensing law does impinge on human rights legislation.”

As for possible challenges by a licence holder, there is Scottish authority that a licence which has merely been applied for is not a civil right for the purposes of article 6; and where rights do arise, “I should have thought that if a licensing board could give convincing reasons for reducing opening hours, any decision on that should be pretty secure.”

The Committee wants board decisions to be generally appealable, eliminating the need for judicial review, though Nicholson concedes that there might still be some areas, such as the issuing of policy statements, open to such a challenge. The “proportionality” test adopted in human rights case law would replace the “unreasonableness” ground of appeal, which reflects the now out-of-favour Wednesbury criteria.

One apparent curiosity is the recommendation that all appeals should be taken (by stated case) to the sheriff principal rather than the sheriff. In fact this featured in the Clayson Committee report but was ignored in the 1976 Act. Nicholson justifies this on the basis that: “There are not very many licensing appeals, and appeals to the sheriff can take a long time to be disposed of, in part because of the sheer volume of work sheriffs have to do.” He concedes the possibility that it could  set a precedent for appeals in other time-sensitive areas.

Radical relaxation or not, there is much in the 185 page report to command serious consideration in the consultation period announced by the Executive, which runs until Christmas – not enough time, unfortunately, to have the tabloid writers toasting a new legal regime inspired by Sheriff Principal Nicholson come Hogmanay.