Minimum Pricing Update

In an earlier article we reported on  the current status of the Scotch Whisky Association’s challenge to the minimum pricing legislation (“MUP”), the Inner House of the Court of Session having remitted the case to the European Court of Justice (“ECJ”). We described that as a sensible move, considering the importance of the case.

Just how important has been emphasised by the latest developments. The ECJ has asked European Union governments, trade bodies, and other interested parties to present any submissions of opinion before the end of October. These will be taken into account before the judges deliver their ruling, possibly in the first half of next year. This unusual step reflects the strongly held view among some that a policy such as MUP may distort trade between member states, one of the cornerstones of the EU itself. Those in favour of the move, including most of the medical profession, point out that very significant increases in alcohol consumption, and therefore alcohol related harm, have coincided with a significant decrease in the price of alcohol relative to income. Opponents of MUP say that there is no evidence that it will improve the behaviour of problem drinkers, but that it will have an impact on those who enjoy alcohol responsibly. They cast doubt on the “modelling” which has been carried out by some academics, and point out that attaching weight to evidence from other jurisdictions, such as Canada or Scandinavia is like comparing apples with pears (or perhaps Special Brew with Château Lafite?)

Set your diary for mid 2015 and watch this space.

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Two Glasses of Wine and You’re an Alcoholic?

Taken literally, that is the message contained in the more sensational headlines yesterday. In fact the news story is the proposal to make available to persons at high risk level of alcohol dependency in England and Wales a drug called nalmefene. it has the effect of reducing the pleasure which the brain registers from the consumption of alcohol and therefore removing the urge to drink more. Unlike some other drugs aimed at preventing alcohol consumption nalmefene, we are told,  does not generally cause dangerous side effects. It works by removing the desire to continue drinking, rather than setting up an adverse reaction to alcohol.

Many  health professionals welcome the move. They believe that the cost of the drug (currently in the region of £3 per tablet) will be more than offset by the savings to the National Health Service, where costs of dealing with alcohol related disease are soaring. Others favour minimum pricing, and most agree that long term education and change of societal habits will be the most effective cure for our society’s ills.

The main talking point for the man in the street (or perhaps the woman in the Clapham winebar) is the definition of “high risk level”. According to the World Health Organisation, this is 7.5 units per day for men and 5 per day for a woman. That works out at the equivalent of three pints of beer or two medium sized glasses of wine per day. Those figures have caused much consternation. But the fact is that alcohol related illness has soared over the last thirty years. We are drinking far more than previous generations. The good news is that levels seem to have dropped a little in the last couple of years. Whether we accept the WHO recommended levels or not) and many of the figures bandied about over the years have been purely arbitrary, we ignore medical advice at our peril.

Law Society Actively Seeking Changes to New Licensing Bill

As a member of the Law Society of Scotland Licensing Sub Committee, I am actively involved in seeking amendments to the Air Weapons and Licensing (Scotland) Bill. The main (but by no means all) of the concerns are the important matters which have yet again been ignored by the Government,, despite having been flagged since the bill which led to the 2005 Act was published. The transfer system is a complete mess: there is much ambiguity over a licence “ceasing to have effect”, with no protection for a landlord where the tenant holds the licence, and the failure to address the lack of a “site-only” provisional licence is unsatisfactory. It is hoped that as many organisations as possible will voice their concerns over these important omissions. There are also major implications for the work of licensing boards and their clerks, not least in the preparation of annual “accounts”. The Bill itself can be found in Useful Links Section. For more details of the Bill’s progress, see
http://www.scottish.parliament.uk/parliamentarybusiness/CurrentCommittees/29852.aspx

Tom Johnston Appointed Chairman of Fife Licensed Trade Association

Ronnie Dick, President of Fife Licensed Trade Association, has unveiled Fife lawyer Tom Johnston as the association chairman of the year until 2016. Speaking from The Lomond Hills Hotel in Freuchie, Ronnie said, “the position of chairman of the year is an honorary one. In the past we have usually appointed representatives from the major drinks giants. This time we decided unanimously to appoint Tom Johnston because of his reputation in the licensed trade. Tom is recognised throughout Scotland as an expert in licensing law, and has been advising people in the trade for over 30 years. We are delighted he has agreed to accept the position.”

Tom Johnston responded, “I have been involved with Fife LTA for more years than I care to remember and I was very honoured to receive the invitation. Coincidentally, the appointment coincides with announcement of my retirement from private practice (although I will still be involved with licensing issues). This means I will have a lot more time to devote to the association business. There are many challenges facing licensees just now, and we face yet another set of licensing reforms in the autumn. I will be able to advise on these. I am also fascinated by the practical benefits social media is bringing to business and I will be working closely with the committee. Fife has one of the most vibrant licensed trade associations in the country, and we aim to improve it still further over the next two years.”

 

See picture below

TRUST INNS V GLASGOW LICENSING BOARD: A COMMENTARY

Early commentaries on the recent case of Trust Inns Limited v City of Glasgow Licensing Board (Glasgow Sheriff Court, 22 January 2014) suggested that the principles established in the important case of Lidl v City of Glasgow Licensing Board, which has been the subject of previous columns, were in some way being eroded. In fact, if you take the time to read the Sheriff’s judgment in the Trust Inns case, you will see that he was doing no such thing. The facts in the Trust Inns case were that the premises had attracted considerable police attention because of persistent drugs related problems. Three separate police “interventions” had taken place. (As an aside, in the brave new world of Police Scotland, get used to new and wonderful terminology.) It does not seem to have been disputed that at least some of the police grounds for review were factually accurate. A huge raft of measures seems to have been introduced to try to deal with the problem. Under new management, introduced shortly before the review, things seem to have improved. The board was not impressed, and clearly felt that whatever may have been done, it was too little too late. There were five months separating the first and last police intervention and a further five months before the police in fact applied for a premises licence review. At the review hearing the board held that the grounds of review had been established, and decided to revoke the premises licence, citing all five of the licensing objectives, bar public health. The appeal seems to have been plead slightly oddly, with last minute attempts to amend, and, unusually, issues relating to natural justice, with which we will deal later, being argued in various, apparently self-contradictory, ways. One of the arguments did touch on the Lidl case, where their Lordships in the Division did make reference to suspension having a “corrective”, as opposed to a “punitive” purpose. The defender’s argument which prevailed here was, substantively, straight out of  Hughes v Hamilton District Council 1991 SC 152 and Latif v Motherwell District Licensing Board 1994 SLT 414.In other words if the board was entitled to consider the material which it did, the assessment of the weight to be attached is a matter for the board. As Sheriff Reid said, “a substantial part of the present appeal falls within … binding dicta.” As he pointed out, Lidl is completely irrelevant here. The facts of the two cases are fundamentally different. The board in Lidl was dealing with a suspension – here there was a revocation. The board was held in the present case to have been entitled to hold the grounds of review established: in Lidl the opposite was the case. In fact, to analyse Lidl a little more closely, given the fact that the court made a finding that the ground of review had not been established, it could be argued that any dicta on the length and purpose of the suspension were simply obiter. From the confusing arguments regarding natural justice, one interesting issue arose. The LSO’s report (which is required in the case of a premises licence review) had not been produced to the pursuer’s agent at, or prior to, the hearing. There is in fact no obligation to intimate it to the licensee, which is quite scandalous. Something for the draftsman of the new bill, perhaps? I do find it extraordinary that the pursuer’s agent did not ask for a copy from the clerk – this is not something I have ever been refused. I have, however, used the complete lack of any detail on material points as justification for seeking an adjournment. That can sometimes be a sound tactic. In fact the LSO’s report seemed to say so little here that it was deemed immaterial. Finally, this is another salutary tale concerning the risks associated with allowing your landlord clients to hold licences in their own name – how can they possible exercise the degree of supervision and control which a licensing board is entitled to demand?

THE NEW LICENSING BILL: WHAT A DAMP SQUIB

The Scottish Government has recently published its latest proposed reforms to liquor licensing legislation. As this will be the fourth piece of legislation inside a decade, it was hoped that we would have a consolidating statute to make easier reading. Instead we have the sort of drafting mishmash which was the source of annoyance from Westminster, when a mini kilt was sown on to English legislative change. The bill is named the Air Weapons and Licensing (Scotland) Bill. In addition to airguns and liquor, it deals with taxis, scrap metal and sexual entertainment venues. On the positive side, many of the dafter topics raised at consultation have been shelved. These included additional police powers to require pubs to close when certain football matches were played; boards having  powers to vary licence conditions without a hearing: and boards having an obligation actively to promote each of the licensing objectives. Thankfully, garage forecourt shops have also  been left alone. The proposed changes themselves? Firstly, as expected, the licensing objectives are to be varied to protect young persons ( 16 and 17 year olds) as well as children. The police have campaigned for a long time for the reinstatement of the “fit and proper person” criterion. This will return as a ground of refusal of a premises or personal licence, and as a ground for review of each. If on review the ground is established, an automatic revocation will follow. The criticism of this test was that it was applied very differently throughout the country. From the licensee’s point of view, one potential saving grace is that the board must have regard to the licensing objectives. The test usually comes into play following a conviction. The rider relating to the licensing objectives means that to an extent, the party in the spotlight can have some protection through Brightcrew. Suggestions at consultation that the legislation might seek to water down the consequences of  Brightcrew have not come to fruition. On the subject of convictions, it should be noted that section 129(4) has been repealed. That subsection prohibited a board from considering convictions which were spent for the purposes of the Rehabilitation of Offenders Act 1974. In practice, if the police want to introduce a spent conviction, this will take us back to the two stage hearing, where the first stage was a debate on whether or not it was appropriate for the spent conviction to be introduced. An unnecessary complication, I believe. Overworked clerks will be pleased that they will no longer have to produce a licensing policy every three years. Sensibly the interval for this has been extended by reference to council elections. In the overprovision part of the policy, it has been confirmed that a board may look at its whole area as one unit when assessing overprovision. But I am certain that those same clerks, and council finance directors, will have been as stunned as I by the new duty on boards to produce a financial report showing its income and expenditure and  an explanation as to how the amounts in the statement were calculated. This has to be done within three months of the end of each financial year. I can hear the screams as we speak. Licensees will no longer be subject to prosecution for failing to notify changes in the details of “interested parties”. Some lip service is being paid to the problems anticipated through revocation of personal licences for failure to comply with the training regulations. Your licence will still be revoked if you don’t retrain and exhibit evidence of this timeously; however, you will be able to apply for a new licence without waiting five years. Most disappointing were the topics which were not covered, despite significant lobbying, and their non-controversial nature. There will still be no site-only provisional premises licences. The administrative anomalies relating to variations and transfers have been completely ignored. No time, you may say? Yet an eagle eyed draftsman had time to check that angostura bitters, first made by Dr Siegert in the town of Angostura, Venezuela, and having an ABV of 44.7%, had no place in the list of exemptions from the meaning of alcohol. Section 2(1)(b)(iv) will be repealed: variations and transfers will be the same old mess. Hey ho.