|
Licensing Reform Old Johnston's Almanack Sees the Future
by TG Johnston - January 2002
The first stage to the long awaited reform of the Licensing (Scotland) Act 1976 has begun, with the first sessions of the Royal Commission under the chairmanship of Sheriff Principal Gordon Nicholson QC having taken place. The findings of the committee are not expected for a year or so, and will take account of submissions from a broad range of interested parties. Balancing the needs of all will be no easy task, and the members appreciate they have much to do to produce a report of equivalent quality to that of Christopher Clayson, who chaired the Royal Commission whose findings formed the basis of the 1976 Act. The flaws in the legislation were not the fault of Clayson - rather his report was a little too far ahead of it time. Vested interests in Parliament left us with an ill thought through compromise. We all hope for better this time.
Those of us who advise the trade will, of course, simply have to put up with whatever appears on the statute book. It is interesting, however, to canvass the views of clients and outsiders to consider what reforms are on people's shopping lists.
A moratorium on new licences is favoured by the Scottish Licensed Trade Association (SLTA). It takes the view that there are too many licences at present, contributing to falling standards. There is no doubt that in many parts of the country traditional pubs are being squeezed by the rise of the so called superpubs with their superior buying power. Sadly for the trade, we do not think this will come to pass. Human rights law includes rights to enjoy property. These, along with the general freedom to trade enshrined in current European law, are likely to rule out a 21st century prohibition on expansion.
There has been much speculation that a split licensing system will be introduced, with people and premises being licensed separately. This has to make sense, not least for the administrative benefits it is bound to bring. If an individual has obtained requisite qualifications, this could be shown on his licence. At present, there is no halfway course between a warning (for which there is no official statutory basis), and suspension of a licence. Practice can vary widely from board to board. Many boards are unwilling to take the extreme step of taking away someone's livelihood: a system of endorsement with a right of appeal to the Sheriff might result in greater consistency. Supermarket chains or licensees with multiple outlets would be able to substitute one manager for another with minimum red tape. How far the reformers will go remains to be seen, but my money is on some variation on this theme.
Nothing vexes the trade more than extensions of hours. Ironic to recall that the licensed trade opposed Clayson's proposals for any extension of hours beyond a 10.00 pm closing hour. What causes so much unhappiness is not that regional variations are allowed, but that you may find your competitor just a few miles away has longer hours than you simply because the neighbouring board has a different policy. Many say that licensing hours should be abolished altogether, with boards being empowered to restrict hours in the case of nuisance: others favour a retention of core permitted hours, with the licensee having to show a case for an extension. I think that neither the public nor the trade (save in a few areas, eg Edinburgh, where you can legally drink for about 22 hours a day) is ready for the completely liberal approach, and I think we shall be left with something similar to our present system. The core hours will be awaited with interest, and the anomaly that is Sunday afternoon closing must surely be swept away.
As a legal practitioner who made his first stuttering appearance shortly after teh birth of the 1976 Act, and who has lived with its idiocies all his working life, I wish, more than anything, for some sense, clarity and consistency. A learned judge once said that
As lawyers and licensees alike, wecan live happily enough with change. We are less happy if the change results in unfairness, or if clients in Perth have to be given different advice from clients in Stirling. The Royal Commission has a first rate membership. Old Johnston's Almanack hopes for a good report followed by genuine consultation and well thought through legislation. It is optimistic of the first, but less so of the second two. We should not accept anything less than a score of three out of three.
|
