Official Report 401KB pdf
That brings us to the main item on today's agenda: consideration of the Licensing (Scotland) Bill at stage 1. I welcome to the committee four representatives of the Scottish Executive: Rab Fleming is head of the local governance and licensing division; Jacqueline Conlan is the bill team leader; Ian Fairweather is also in the bill team; and John St Clair is from the office of the solicitor to the Scottish Executive. Welcome to you all. We look forward to the evidence that you will be leading this afternoon. We will start by hearing an opening statement on the general principles of the bill.
Good afternoon and thank you for the invitation to give evidence on the Licensing (Scotland) Bill. The bill has been a long time coming. The Nicholson committee reported almost four years ago and, since then, we have held extensive consultations with the licensed trade and many public and voluntary bodies. Following that consultation, we believe that we have been able to put together a coherent and robust bill.
Thank you for those opening remarks, Mr Fleming. I invite questions from members, starting with the deputy convener, Bruce Crawford.
Thank you for coming along and helping us out on the bill, for which I am very grateful. I would first like to consider the abolition of permitted opening hours and the ending of the requirement to have licences renewed every three years. I think that there is a correlation between those two issues, which we need to explore.
It might be helpful if I provide a little background to the recommendation for the removal of statutory permitted opening hours. Sheriff Principal Nicholson took the view that, although the current system provides for statutory permitted opening hours, there is a fairly entrenched system of regular extensions, which is operated by licensing boards across the country in a variety of ways. There is already a patchwork approach. Indeed, 10,000 of the existing 17,000 licences benefit from extensions to opening hours, so there is much local differentiation in the current system.
I understand that and I appreciate the background to the approach. However, a member of the Scottish Licensed Trade Association who is watching the process unfold might understandably be concerned that in some areas the core hours that are currently permitted might be eaten into, because licensing boards might take a much less liberal approach than is intended. How will the Executive deal with such situations? Currently, the trade has a guarantee that it can open during certain hours, but no such guarantee will exist in future. Those concerns have been expressed to me, although not necessarily in those terms.
The point that you make was raised by the SLTA. One important aspect is that the policy statement, which we have tied specifically to the operation of the licensing principles, will provide some certainty up front. In general, under the new system, boards will not be able to take decisions on a whim and there will be many more checks and balances on their powers. That approach is underpinned by provisions in the bill such as the national framework and by the guidance that the Executive will issue. If boards do not adhere to that guidance, they will have to give their reasons for not doing so.
I hear what you say, but I think that I will need a wee bit of convincing on that matter. However, I will listen to the evidence that we receive.
You are right to say that, under the new regime, licences for premises will be open ended. The Nicholson committee thought that appropriate because there is no reason why a licence that is specific to certain premises, that is accompanied by a detailed operating and layout plan and that makes everything about the operation of those premises clear up front should not be open ended.
I accept that that will be true in places where there are variations and the variations are on-going, but, under the new regime, if a pub decides to open for 18 hours a day, it will be able to do that for 10 years, unless some process is brought to bear that creates variation. At present, communities normally respond to on-going problems. When people see advertisements about licences, they think, "This is my chance to have my say." My concern is that the silent majority will just put up with what they see as unsatisfactory behaviour and will not object. As the process will not involve asking people to object, as happens at present, people will need to take a much more proactive approach.
That could be the case, but it is difficult to say how the new situation will compare with the present one, because we cannot anticipate how communities or individuals will feel about the process. However, the new regime will have flexibility. That goes along with the open-ended premises licences, because we must ensure that there is a system to vary such licences and a robust system for complaints to be heard. The system under the new regime will be robust.
My question is on the back of the questions from the deputy convener. The tourism and hospitality industry is the biggest employer in Scotland. Some festivals—in the Orkneys and the Western Isles, for example—last for months, not just for one day or a weekend. Is it expected that the guidance on the variation system will allow licensing boards not only to have variations for a couple of days—after public notice and consultation—but to build in at the beginning of each year variations in licensing opening hours to fit local economic and tourism needs? What guidance will be given on that?
That issue has two aspects. First, licensees do not often run special events under their normal liquor licence. That situation will continue under the new regime, because the bill will introduce a system of occasional licences, which is intended to cover voluntary organisations that run special events and licensees who run special events outwith licensed premises. The occasional licensing regime applies to festivals such as the Edinburgh festival.
The bulk of the bill is about what, where, when and how, but my question is about who will do the licensing. In the past few months, the committee has had debates about the democratic accountability of the proposed regional transport partnerships. There is a danger that the same issue may arise with the present proposals, because of the concern that the proposed size of licensing boards will not allow a true reflection of the make-up of local authority areas, particularly larger ones. Has that concern been expressed to you and, if so, what answer did you give?
The changes that the Nicholson committee proposed are different from those in the bill. The Nicholson committee suggested that boards should have a maximum of five people sitting at any one time, although the membership could be greater. That conclusion was reached because of problems with the existing boards. A lot of feedback was given to the Nicholson committee about people feeling intimidated when they appear before large boards with up to 20 members. The Nicholson committee also felt that the large boards operate inefficiently, sometimes simply because people cannot hear what is going on or understand the process because of the line of councillors.
Am I right in saying that a quorum could be as low as three if a board had a smaller number of members?
That is also the case under the 1976 act.
So there would be no difference, as there could currently be as few as three members. That should surely raise concerns, which the bill could have addressed.
Low quorums, such as three members, must be allowed so that smaller boards that are allowed to have a maximum of five people sitting are not penalised through not being able to reach a quorum. Boards with five members could be penalised if they had a quorum of five. There must be a little flexibility for smaller boards with only five members, but there is absolutely no problem with having 10 people sitting on boards. Obviously, a larger city board would want to ensure that as many of the 10 people as possible attended meetings.
Would it not be better to have a percentage quorum rather than a set figure? After all, three out of five members is a higher percentage than three out of 10 members.
We did not consider that.
Perhaps the committee can consider that matter and draw to your attention what has been said.
Yes.
Convener, may I ask a question that is not related to the question that I have just asked?
Tommy Sheridan wanted to ask a supplementary question. We will take his supplementary question first and then return to you.
I would like to return to a more general issue, but, first, I would like to deal with one thing that strikes me about the size of boards, which I would like you to elucidate. There seems to be an attempt to move towards more devolved and localised decision making—there is the idea of local licensing forums, for example. However, you are suggesting that, for cities such as Glasgow, three councillors could be responsible for almost 500,000 people and for applications not only for pubs in the city centre—which is what everybody thinks about—but, more important, for the many complaints about local premises, particularly off-sales premises.
From our perspective, it is not particularly intended that three people should take decisions for the whole of Glasgow, as Glasgow will have a 10-member board. However, you are right to say that if only three people turned up, they could, technically, make decisions. Perhaps the matter should be considered in relation to larger boards and there could be consideration of whether quorums could be changed in accordance with the size of the board. That might be one option.
So the intention is not for the city of Glasgow to have separate boards for the south-west, the south-east and the north-east. The intention is to have one licensing board that covers the whole city, whereas, in more rural areas where geography is the main issue, the intention is to have licensing divisions. Is that what you are getting at?
No. What I am saying is that that is kind of what happens at the moment. As to the intention, I think that the bill makes the matter a little clearer. The decision is not one that the Executive would take; it is one for the local authority. If the local authority felt that there was the need for more licensing boards in Glasgow, it could take the decision to have them.
We will return to some of Tommy Sheridan's other points. Paul Martin wants to come in with a supplementary question.
Jacqueline Conlan said that it was inefficient for a board to have 20 members. Why is that the case?
The Nicholson committee reported that many of the people from whom it heard said that it felt intimidating to appear before a board of 20 people. With such large numbers involved, people also do not understand what is going on. I have attended a meeting of the Edinburgh licensing board, which has quite a large membership, and know that if someone is sitting at one end of a very long table, it is difficult to hear what people at the other end are saying. It is inefficient and unnecessary for such a large number of people to take decisions. It is felt that decisions can be taken in a more effective way by a board that has a slightly smaller number of members.
So no scientific approach was taken to the decision not to have 20 members.
No.
It is just that I notice that the Nicholson committee had 14 members and that the working group on off-sales in the community had 16 members. Why do you think that it is inefficient for a board to have a higher number of members?
Do you want me to give an answer? I have one.
You would have given the advice that helped to create those groups. You helped to create a group of 16 people and another group of 14 people and yet your advice is that licensing boards should have only 10 members.
The reason why the Nicholson committee and the expert group had those numbers was they had to accommodate sectoral interests. Obviously, the Executive would have faced a lot of criticism if all those interests had not been represented around the table.
Why should the licensing boards, too, not be representative of sectoral interests? I appreciate that the process of coming before a board may be intimidating for some people who are not familiar with the process. However, there is still the principle that the licensing board should be representative of various ward interests. You are saying that the principle of representation was a good one for the committee and the working group but not for the boards.
The additional point that I should make in response is to say that the councillors who sit on licensing boards become board members in order to take decisions that affect the whole of the city. They do not necessarily take decisions that relate to their own interest. The idea behind having local councillors on the licensing board is more to do with local knowledge than one person's individual interest. Local knowledge is built into the system in other ways as well, particularly through the existence of the local licensing forums, which can give information directly to the boards.
I will not take up much more of your time, but I think that you misunderstood the question. The point that I am making is that it is perfectly feasible for councillors to have an interest in representing one of the council's overall objectives, rather than just a local interest. What is wrong with that? Surely that is the same principle that you described in relation to the Nicholson committee and the working group.
I do not think that there is anything wrong with that, but I stand by what I have said.
The working group had 16 members, but the council licensing boards are to have 10 members.
In your opening statement, you spoke about the fact that the Nicholson report was four years old. I have spoken to senior police officers in Lanarkshire who are concerned that, since the publication of the report, they have been dealing with a new development that is addressed neither in the report nor in the bill. I am referring to the new way of delivering drink to people's homes, which is commonly known as dial-a-drink or—in Lanarkshire—dial-a-swally. If there is nowhere in the bill for that new development to be addressed, how can we deal with the concerns of those police officers?
I am delighted to tell you that there is a provision in the bill that addresses that problem, of which we are very aware. We have made it a specific offence to make a delivery between 12 midnight and 6 am, except to licensed premises. The provision was designed specifically to deal with the problems that you have highlighted. I was not aware that they existed in the area that you have mentioned, but I was aware of them in Fife. The issue was put to ministers and the provision in the bill to which I have referred is designed to deal with it. There are other provisions relating to remote sales of alcohol and deliveries to young people that will impact on the problem.
According to police officers, there is no current requirement for licensees to get proof of age when they deliver. That is the issue about which the police officers are concerned. There is nothing in the bill that empowers the police to prevent a delivery from being made at 9, 10 or 11 o'clock at night to a group of young people who will then go out to a local park and cause the nuisance that the police have been trying to avoid by cracking down on off-sales. The bill needs to address the specific concern about how the police can control the off-premises sale of alcohol to young people.
You are right to say that this is a difficult issue, because to some extent the bill continues the position under the 1976 act, which allows deliveries to be made to a young person who is opening the door of a family residence. If a delivery is to a family residence, it can be made. Perhaps the issue is more where the contract and sale are made.
Exactly. That is the point that I am making. The police see nothing in the bill that will give them powers to address the issue.
I am not sure about the specific concerns of the police officers to whom you have spoken, but the no-proof, no-sale scheme is a key aspect of the bill. Licensees must ask for proof of age when there is any doubt about whether a person is 18. The bill stipulates that a notice will have to be posted next to the place where sales are made. It also spells out the types of proof that must be requested, which will be added to by regulation. We worked closely with the licensed trade on the no-proof, no-sale scheme. The off-sales sector, in particular, was keen that that should be included in the bill. We hope that it will go some way towards addressing the concerns that you mention. That is all that I can offer at the moment.
I have a supplementary to Michael McMahon's question. If a sale is made over the telephone, how is the licensee to know that the person to whom they are selling is under age? Many people who are 16 or 17—perhaps even younger—may have access to debit cards that enable them to make purchases over the phone. Would that be deemed the point of purchase? I cannot see how a licensee could judge over the phone whether a person was under age.
I understand the point that you are making, but I am not sure that I can add anything concerning the provisions in the bill. I will take the point away and think about it.
I want to pursue the issue of proof of age. Has no consideration been given to ensuring that when an off-sale that has been made by telephone is delivered, the delivery person should receive a receipt for the delivery and see the purchaser's proof of age, in order to eliminate the problem? Supermarkets make deliveries that may include alcohol. The alcohol may not be intended for a child, but there are some fairly glaring loopholes in the bill. People could get debit cards at an early age, as has been said, or an adult could be induced to use their credit card to make a purchase of alcohol that was being delivered for someone else. What will happen if the police do not have the powers to deal with that?
Remote sales are difficult to deal with. We are not just talking about sales over the telephone; we are also talking about internet sales. We have gone as far as we can by ensuring that the place from where the sales are dispatched is subject to a premises licence so that there is an opportunity for the board to apply licensing conditions.
I will come on to the broader issue of young people. One of the Executive's policy intentions is to reduce the incidence of under-age drinking. You will be aware that Sheriff Principal Nicholson's submission highlights the concern that the bill appears to be silent on young people. Although there is some mention of young people in paragraphs 18, 86 and 139 of the policy memorandum, the sheriff principal does not feel that the bill deals with the issue. How do you respond to that?
On Gordon Nicholson's comments, the policy on access by children will appear in the operating plan. A paper by the expert group that has been submitted to the Subordinate Legislation Committee and to your committee makes it clear that there will be questions in the operating plan about access by children to on-sales licensed premises. There will also be a mandatory national licence condition on access by children, and that too appears in the paper for the Subordinate Legislation Committee. That was also discussed by the expert group and the condition has been endorsed by ministers. I have spoken to Gordon Nicholson about his point that there should be an overarching provision on that in the bill. I am quite happy to consider that.
I also asked about test purchasing.
That issue is really for the Lord Advocate. He has considered the matter and there was a successful pilot on tobacco, on which he made an announcement recently. The pilot is not being extended to alcohol at the moment but there is an agreement to consider it again and consult the various stakeholders, including the police, to decide whether it can be used.
I appreciate that it is an issue for the Lord Advocate. However, as I understand it, a young person is not committing an offence by trying to buy tobacco.
You are right. There is a complication with alcohol and that is one of the problems.
There are some supplementary questions. If Sylvia Jackson, Tommy Sheridan and Bruce Crawford could be brief, we will be able to move on to other issues.
The part of the policy memorandum that is concerned with under-age drinking says:
The main thing on which we and the licensed trade have worked is the no-proof, no-sale scheme. Ministers wanted to tackle under-age drinking, particularly in relation to the off-sales sector. The off-sales sector supports the no-proof, no-sale system. The sector wanted to have the backing of legislation, because refusing sales in small stores can be intimidating for people. The no-proof, no-sale policy requires the display of a notice and the request of proof. The Executive will accredit types of proof.
Will you elaborate on those points? The matter is important. The working group on off-sales in the community suggested that community councils should be statutory consultees. How will you create more of a link with a community where a problem exists?
The new system will deal with the second point, because a problem that the Nicholson committee saw in the existing system was the drift of premises away from their original purpose. That drift will not be possible with operating plans, because for any drift beyond an operating plan, an application will have to be made to a board for a variation to the operating plan. That variation would have to be advertised to the local community, which would have an opportunity to have a say before any decision was taken.
You said that we would be able to examine the situation closely when shops have moved to selling alcohol much more than they did. How will that be operationalised? Will a grey area in the middle exist? How precise will plans be?
The operating plan will have to be precise, because it is the means by which boards have information that allows them to decide not only whether to agree to a licence but which licence conditions are appropriate. National as well as local licence conditions will be available. The expert reference group has submitted to the Parliament a paper on operating plans that gives some idea of the position. Operating plans will have to be detailed. They are critical to the new system's operation. We need to develop that feature carefully.
Can we get a copy of that paper?
You should have a copy.
Are the questions that Tommy Sheridan and Margaret Smith wish to ask on the issue of young people, or are they general questions?
My question is on off-sales.
Mine is to do with the policy objective.
If we go back to brief supplementaries, I will come back to you both on your more general questions.
I was going to ask one of my general questions as a supplementary because that seemed to be the way that things were flowing.
I will take Tommy first.
You have talked about the four key issues that are mentioned in the policy memorandum and the convener referred to reducing under-age drinking. The legislation has been four years in the making. There has been an awful lot of talk, and an awful lot of work has been done. Why is there no policy objective or desire on the part of the Executive to reduce alcohol consumption? Why is there neutrality about alcohol consumption? I am concerned that there is a mixed message going out that it is okay to drink—in other words, to consume a drug that can have harmful effects—but not to drink excessively. We would encourage people to exercise—it is healthy to do so—but not to over-exercise. Why is there no overarching policy objective that says that people do not need to drink?
The remit of the bill concentrates more on managing the supply side of alcohol than on addressing the demand side. We see the work that has gone on in the Health Department on alcohol abuse as where the lead should be taken on policies to address the demand side. When the national licensing forum is up and running, it will provide a good vehicle to bring the building blocks of the policy together because it will be jointly chaired by the deputy ministers responsible for the bill and for health.
I am sorry to contradict that a bit, but the policy memorandum and the associated documents all draw heavily on crime and health problems that relate to alcohol misuse. The policy memorandum presents policy objectives, but those do not include reducing alcohol consumption as a whole. It talks about reducing under-age and binge drinking only. Are you saying that a health-related statement will come out in some form that will say to Scotland, "Look, you don't have to drink to enjoy yourself and to socialise"? Will that be an objective?
Almost exactly the same statement that you have just made was made when we launched the bill, but perhaps it was not strong enough. The national licensing forum, which will bring together the work that we are doing with the work that our colleagues in the Health Department are doing, will present the opportunity to make a strong statement.
There seems to be some concern that the controls on irresponsible promotions are directed very much at pubs and not at off-sales.
We recognise that concern. In the on-trade, there is an obvious link between promotions and the consumption of alcohol. It is much more difficult in the off-trade to establish a link between purchase and the pattern of consumption. Our intention is to commission some research in the near future to investigate that. If that research is carried out quickly, I hope that we can incorporate it into the bill as the bill progresses.
What is the likely timeframe on that? Will the research be done within three months, or within six months?
We cannot be specific about that at the moment. We have arranged to meet Alcohol Focus Scotland, among others, to talk about the research that could be done. Once we have pinned that down, we will be able to consider the timescale for carrying out the research. We will not be in a position to amend the bill while it is going through, but there will be a transitional period before the bill comes into effect, and we will have powers—if we are given them by the Parliament in the bill—to amend the schedule that has conditions on promotions. It would be possible to extend those conditions to off-sales if, following the research, it became clear that that was the appropriate route to go down.
I am pleased by your comments in that they do not completely shut the door on the question of how irresponsible drinks promotions are defined. We know about happy hours and so on, but the definition could be extended quite easily to include promotions by off-sales and supermarkets—those two examples immediately spring out of the list—for alcohol products that are likely to appeal to under-18s. It would be irresponsible for a supermarket or off-licence to push sales of such products particularly hard or indeed to offer alcohol as a reward or prize. It seems to me that, even without the benefit of research, we can apply the definition to off-sales and to supermarkets, given the concerns that colleagues expressed earlier about the fact that many people purchase alcohol from supermarkets.
All that I can tell you is the position that the deputy minister, Tavish Scott, has reached, which is that he will look at the research. He has a meeting tomorrow with Alcohol Focus Scotland and he has agreed to meet the off-sales licensed trade. We need to get the supermarkets and the grocers side of the trade around the table to hear about their experiences and the best practice that they have in place at the moment. It is important to do that first. The promotions policy in the bill is based on tackling binge drinking. As Rab Fleming said, we have more evidence to make the link in the case of on-sales. It is more difficult to make that link and find evidence for it in the case of off-sales, but that is what we need to do before we can extend the policy.
I pick up the point that Margaret Smith made about young people and drinking. She asked a good question. When the minister meets the off-sales licensed trade, why can he not simply ask, "When you sold Bacardi Breezers at this price, how many did you sell? When you sell them at a lower price, how many extra do you sell?" They are purchased in shops, but shops do not see the end result. We can be pretty sure that there are certain products in the market that are targeted at younger people. I would not have thought that there is much science in asking the supermarkets for information on the increase in sales that occurs when the products are cheaper. That information must be available on the supermarkets' computer systems. I hope that you will accelerate the process by asking simple questions rather than requiring lengthy pieces of detailed research.
There are a number of provisions. First, the no-proof, no-sale scheme has been designed to go some way to tackle the problem. For the first time, the notice that must be displayed in premises will say specifically that it is an offence to buy alcohol on behalf of a young person, to try to make that a bit more prominent in licensed premises. Under the bill it is an offence to do that, as it has been since 1976.
That deals with the licensee but not specifically with the person who is buying the alcohol. Are there any thoughts about more punitive measures aimed at people who procure alcohol to pass on to youngsters? They know that they are breaking the law. I do not think that signs will make any difference to them.
Following Sheriff Principal Nicholson's statement that some of the penalties for selling alcohol to young people and allowing them to consume it were too light, there has been a significant increase in the penalties for three offences in particular: under section 93, the sale of alcohol to a child or young person; under section 94, allowing the sale of alcohol to a young person; and under section 97, allowing a young person to consume alcohol—that might apply not to the seller but to a parent. The penalties have been increased to level 5 on the standard scale, which is up to £5,000, so there has been a hefty ratcheting up of the sanctions.
What consideration was given to requiring every person who sells alcohol in an off-licence, whether the local store or supermarket, to be certificated to do so? Requiring them to be licensed would be going too far and I accept that they will all be trained a bit better in future. That way, they would not only go through the training but at the end of the process they would have a bit of paper to say that they were qualified to sell alcohol.
It comes back to the training provisions. I can tell you more than you would pick up from the text of the bill about what is intended. There are lots of different levels of training. For personal licence holders, there has to be one premises manager for each premises, who holds the personal licence. The personal licence holder will have to have extensive training to allow them to hold the licence. They will be issued a licence that is valid for 10 years and be subject to all sorts of responsibilities as a result. In addition, all permanent members of staff serving or selling alcohol on licensed premises must be trained to a national standard that is accredited. They would have a certificate at the end of that process.
Who would be responsible for saying whether the certificate can be awarded? Would it be the local authority or the training provider?
We are going to ask the national licensing forum to do a fairly extensive piece of work on the types of training that should be accredited—we have tried to leave a few options in the bill for how we might proceed. We have options such as accrediting the training provider, accrediting the training course and setting out the content of the course. We want the forum to consider a number of possibilities to establish the best way to proceed.
That is useful. Thanks very much. I have a question on over-provision, but I am not sure that this is the right time to ask it.
I will bring in Tommy Sheridan to ask his other questions, one of which is on over-provision. You might be able to come in on the back of it, Bruce.
I have a question on over-provision, but before I ask it I want to ask Jacqueline Conlan about one of the policy objectives, which is providing a voice for communities. You have mentioned the local licensing forums several times today. Is it envisaged that the forums will provide the voice for communities? If so, how many members of the community do you envisage being members of the forums?
The bill does a number of things to improve the position for communities; local licensing forums are part of that. We are widening out to any person the list of people who can object to a licence. Under the current regime, boundaries with that list have caused difficulties: they have excluded people on housing groups and school boards from being able to object to a licence. That will not now happen. Licensing standards officers will be able to mediate with communities. There is a policy on over-provision and a much wider range of sanctions is available under the bill. It is about taking all those measures together. We have set out in schedule 2 how local forums should be formulated. There is a list of people from which membership of the forums should be drawn, but we have not set out specific numbers or communities.
As you said, the list is set out in schedule 2. You make a number of prescriptions. You say that the licensing standards officer must be a member of the forum and that the people relevant for its membership include:
We have set out a minimum in the bill, but that does not mean that in practice there cannot be a good relationship with the board, or that more than one licensing standards officer cannot be involved. Because the forum's policy role is being set out in legislation, you could say that there is a need to set some boundaries around it. However, on the size of the forum, you might want to ask questions of the minister.
That relates to the next central question—
One second, Tommy. I want to ask a supplementary question on the forums before you go on to address over-provision.
We note the point on a quorum and will take it away.
If I am reading you correctly, you are saying that you would not expect a councillor who was on a local forum to serve on a licensing board.
That is correct.
This question relates to problems that arise from the assessment of over-provision. My concern is who will assess over-provision. What level of community involvement will there be in deciding on over-provision?
When a council decides to divide its areas into licensing divisions, there can be a forum for each division, so there is flexibility. If the council decides that one central board and forum are not enough, it can subdivide the structure into as many parts as it thinks appropriate.
What assessment of over-provision will be made during the inevitable transitional period? I worry because some communities already feel that there is over-provision. If you set the starting point as now and say that only what is added to the current provision will be assessed, some communities will feel let down. They are hoping for a realistic assessment of the over-provision that already exists.
They will be able to complain. Over-provision will be considered during the transitional period because boards will have to develop their policy statements before the new regime can start. Over-provision will be part of that. Boards will have to make assessments during the transitional period and that is when consultation with communities will start.
Over-provision has been exercising my mind. Is the way in which we deal with over-provision about restricting the number of hours in which off-licences, in particular, operate? Or is it about restricting the number of outlets? Which is the best method?
I agree with everything you said about over-provision. The guidance on the role of the proposed national licensing forum will be crucial. It is certainly the intention to provide good guidance to boards on how they should take matters forward.
I have a final question—
Is it short?
It is very short. If there are three off-licences in one street, the board decides that there is over-provision and does not grant licences to all three premises and two of the off-licences eventually close down, will not the off-licence that remains just get more business? There would be the same level of provision: no less alcohol would be available.
I come back to the point that the bill regulates a legal product. The licensing objectives deal with issues of public safety, nuisance and health that are linked to the product. As I said, the bill represents a regulatory aspect of a wider picture, which includes the action that our colleagues in the Scottish Executive Health Department are taking through, for example, the plan for action on alcohol problems. Such initiatives more directly consider the consumption and misuse of alcohol, education and other ways of tackling problems.
A recent episode of "The Enforcers" was about the unregulated sale of tobacco to children. What kind of training for staff do you envisage? Will everyone who works on a checkout go through training? I see that you are nodding, so I assume that the answer is yes.
Yes, that is right.
If that is the case, will the responsibility lie with checkout staff, so that if they do not ask for proof of age they could be open to a criminal charge?
There is a threefold responsibility. There is a responsibility on the individual, but because the bill deals with licensed premises it will also place responsibilities on personal licence holders who act as the premises manager and the premises licence holder. There are a number of ways in which the new regime will tackle problems.
David Davidson has questions on the broader issue of grandfather rights in the transitional arrangements.
Yes. The witnesses seem to be hinting that they are beginning to come to a view on grandfather rights in the transitional period, which was not obvious before today's meeting. Issues to do with the marketplace have been raised. Some people, for example in Aberdeen, are already investing in new premises and upping their game by training staff and licensed doormen.
I hope that I will not disappoint you, but I can tell you the position that ministers have reached. We have not, for a number of reasons, taken any decision on transitional arrangements. We feel that we need to have detailed discussions about such arrangements with the licensed trade and licensing boards. There are a number of options—you have outlined some—but we need to discuss them. It is also important that we have some certainty about the shape of the new regime, which will come through the parliamentary process.
Forgive me if I am pushing you, but the financial memorandum to the bill must specify costs. Would it not be more sensible to state, clearly and well in advance of the bill's being passed and the regulations' introduction, the general obligations that licensees will be required to fulfil if they are to be able to enjoy a succession of the rights that they already have so that they know in advance whether they will have to rush out and take all sorts of court action, which might impede the bill's passage and, in the process, impose a great cost on the trade, the Scottish Executive and, possibly, councils?
It would not have been feasible to develop policy on transitional arrangements before the shape of the bill was settled. The minister has been clear that the key to the transition is that licensees be given sufficient time and have a very good understanding of what is required. The passage of the bill is only the first step towards a new regime; we will have regulations and guidance to produce, which could take 18 months, and that will be done before boards create their policy statements, which will happen before we get to a transitional period. There is time for the transition to happen, and the intention is that the new system will not be introduced in such a way that licensees are put at a disadvantage by not knowing what to expect.
Is it the intention that the regulations will come to the Parliament for an affirmative decision?
The guidance that will be introduced under the new system is the key thing, and the procedure specified in the bill for that would involve debate by the Parliament.
Convener, do you want me to move on to the next subject?
I think that Michael McMahon wanted to ask a supplementary question first.
I will ask the question later, because it is on another issue.
I will ask about another area about which there seems to be quite a bit of debate. I refer to the regulations that are proposed on the status of, and police access to, private clubs. How will those regulations impinge on clubs of various types, ranging from students unions to working men's clubs, with which there do not seem to have been tremendous problems in the past? There is also the difficulty that some clubs, such as rugby clubs, might not have a full-time steward who can become the licensed person. How will that be dealt with?
Ian Fairweather can give more detail, but I will start by saying that we have had much discussion with clubs. We have developed the position with their full co-operation and, as far as I know, they are happy with it. The police will have access to clubs in future. Clubs' special status will also be recognised through licence conditions.
The Nicholson report recommended that clubs should be brought into the system and that a provision should protect their special nature. That is what section 117 does. It gives ministers a regulatory power to exempt clubs that meet certain conditions. All those conditions were set out in a memorandum to the Subordinate Legislation Committee. Do you want me to read them out?
No; that is fine.
The information is available for you. All those clubs will be exempt from the likes of the over-provision assessment. A further power will allow clubs to be exempted from the requirement to have a personal licence holder, who is known as a premises manager in the bill.
Will that cover inappropriate promotions, which we have discussed?
I am not sure.
Under the regulatory powers in the bill, we intend to exempt very small clubs from the requirement to have a personal licence holder. That has been a concern, particularly of bowling clubs that have very few members and are very small but have the capacity for members to have a drink. We have said that we will examine that.
It was about promotions.
One advantage of a non-differential pricing route over a minimum pricing route is that it can be applied equally to private clubs and to other licensed premises. It does not prevent such clubs from having lower prices, as they traditionally do, but they will have to comply with the rest of the policy.
Will a smaller club that will be exempt be defined clearly?
Yes. That is the intention.
Will that be in the bill?
It will be in regulations.
Why is no provision made for objectors or personal licence holders to appeal? Sheriff Principal Nicholson has expressed concerns about that. I pick up some of the points that Tommy Sheridan made about involving communities and ensuring that they have a voice. Not having an appeal provision for objectors is slightly worrying.
Perhaps an apology is due to the committee if a misunderstanding has occurred. The provisions in the bill do not reflect the Executive's final position on appeals. They were holding provisions pending discussions that we had with sheriff principals on the mechanics of how Sheriff Principal Nicholson's recommendations about appeals would work in practice. We have successfully concluded talks with sheriff principals and have drafts that we will recommend to Parliament at stage 2 or perhaps before then.
That is excellent. You have answered my supplementary question.
I have one other issue to raise, on objectors. You will be aware that Sheriff Principal Nicholson has voiced concern that the definition of objector in the bill is too wide and leaves it open for someone who has no geographical locus on a particular application to submit an objection. Sheriff Principal Nicholson says that that goes some way beyond the real and material interest test that is proposed in the Daniels report and that it goes further than the recommendations of the Nicholson report. Do you have any concerns about the breadth of objectors that are allowed? Do you see it adding to the workload and causing problems for the licensing system?
A lot of thought has gone into this. Although we cannot totally predict the future, our take on it is that there is a growing tendency for the courts to allow representative groups to participate in other civil cases. We did not want to refuse, in principle, any representative group or individual access to the objecting system; we wanted the system to be as transparent and democratic as possible.
In his written submission, the sheriff principal makes the point that someone who has a genuine, principled, objection to the sale of alcohol might object and that it would be difficult to term such an objection either frivolous or vexatious. He seems to suggest by implication that the real and material interest test that Daniels proposed might be a better model.
We considered that carefully, but there are difficult drafting questions around using the model of real and material interest. Catching that idea would require a significant expansion of the text. We thought letting everybody make objections, but filtering them if there were problems, the more pragmatic approach and the one more likely to achieve the effect that we are after.
Do you feel that the terms that are used would deal with the example that I gave—someone who makes a principled objection or series of objections to the sale and consumption of alcohol?
Yes. If the objection was substantially the same every time, it would be caught.
Tommy Sheridan has a brief supplementary question.
I thank you, convener, for indulging me. You have had an impossible task and there are so many areas that we have not even touched on. It is a pity that we have such a limited amount of time. The idea of objections being considered frivolous or vexatious on the basis of their being annoying would not go down well with a lot of community objectors. However, I want to ask specifically about section 86.
Thanks very much for making that point. Gordon Nicholson also made that point in his comments. We are happy to take that away and reconsider the section.
What measures have been taken to improve police reporting to the licensing boards?
Could you give me a bit more detail?
It could be argued that the current format of the police reporting to licensing boards is insufficient, in terms of the kind of information that is provided to licensing boards. Are there any measures in the bill to improve the situation?
The issue has not been raised with us. In general, the police have a good and close relationship with licensing boards. They attend board meetings and seem to be in fairly regular contact with them. If you give me more detail, I can take it away and consider the point.
If, for example, 110 calls about an off-sales establishment were made to the police, would you expect that to be reported to the licensing board?
By the police? Under the new system, we would expect—
I mean under the existing system and the 1976 act. Would you expect the police to report that 110 calls were made by a local community that was concerned about activities in and around those premises?
I am not sure that I am equipped to comment on what is happening at the moment. I would expect that, where there were persistent problems linked to specific licensed premises, the licensing board would be made aware of that.
I appreciate that, but I am asking about the current process by which the chief constable reports to the licensing board concerning new applications. Under current provision, in the 1976 act, if 110 calls have been made about an off-licence premises, any member of the public would expect that to be reported to the licensing board. However, current experience suggests that that information is not reported. Are there any measures in the bill to address the way in which Strathclyde police interact with the licensing board to provide a wide range of information? As it stands, the police may not be providing all the information concerning those licensed premises.
There are two sets of issues: one about new applications; the other about on-going problems. As regards on-going problems, there would be a close relationship with the police, which would probably make itself known most through the relationship with the licensing standards officer. Under the new system, the police will certainly be at liberty to bring complaints.
That relates to the licence holder. I will give the example of an off-sales in Ruchazie in Glasgow to illustrate my point. On average, 50 youths congregate at, and are involved in antisocial behaviour around, those premises. Under the new provisions, would you expect the police to report that information to the licensing board?
There are no specific provisions that give the police a statutory duty to report certain types of information. The bill provides routes for them to do that, but there is nothing in the bill that regulates the practice.
Do you accept that the licence holder is not the only important element of the licence and that the operation of such premises in the communities in which they provide a service is important too?
We obviously want to ensure that the new system means that when there is a problem with the operation of a premises, it can be tackled. The mechanisms for that are in the monitoring and enforcement regime that will be put in place. If there are issues that you want to raise that go beyond that, such as the arrangements for how the police will relate to the licensing board, we would need to look at that in more detail.
You are happy to confirm that you will look at the format of the process by which the police will provide information to the licensing board.
We would be happy to consider any information you provide, but it would be for the minister to decide whether he wanted to amend the bill or introduce additional provisions on that.
I want to ask about the role of chief constables. I may be wrong, but it seems to me from what we are being told that although chief constables have a right to be competent objectors to applications at the moment, under the bill they will no longer be able to object to an application, but may simply make a recommendation that is based on an assessment of the applicant's convictions. Is that understanding correct? What does that mean?
The bill incorporates the Nicholson committee's recommendation that we should replicate the system that has been introduced in England and Wales. Nicholson said that that system is broadly acceptable and should be introduced in Scotland. That proposal is linked to the removal of the fit and proper person ground for rejecting a licence application. It has been suggested that that ground, which can be considered quite vague and subjective, has been overused. As the new system will be more transparent and will be set up on a more objective basis, it should be clearer for applicants and the police.
So the police's role does not relate just to the personal licence holder; they can report matters such as repeated problems with a premises to the licensing board at any time.
Yes. There are two sides to the role of the police. There is the procedure that I have just explained, which relates to the premises licence holder. In addition, the bill sets out procedures that relate to the personal licence holder. The police have a role in assessing relevant offences and convictions, but a complaint may be made against a personal licence holder that is linked to problems that have arisen on a premises, with the result that the board decides that it wants to take action against the personal licence holder. In such circumstances, the licence holder would be said to be acting in a way that was not consistent with the licensing objectives in the bill.
That brings us to the end of our questions for the first panel of witnesses. I thank the four representatives of the Scottish Executive for what I think has been a very useful opening session. It continued for a little longer than we had originally scheduled, but it has helped the committee to understand the Executive's perspective on a number of the issues and to highlight a number of issues on which members would like the Executive to return to the committee following further consideration. I am sure we will be dealing with you again over the months to come.
Largely because I submitted a written paper, I had not intended to make any introductory remarks. However, over the past hour and a half I have been taking a few notes on some of the matters that have been raised and it might be helpful to give my view on what I think are some of the more important ones.
We welcome your response to some of the debate on the Executive's introductory evidence; it has been useful.
The committee certainly considered that possibility. We looked into the matter because of our ECHR concerns and our concerns about whether the licensing board could be considered an impartial tribunal if it were able to grant a licence to that from whence it came. When we carried out a survey of the position around the country, we discovered that some local authorities have no liquor licences; that some have only two or three; and that Glasgow City Council has the largest number—something like eight or nine. We are not talking about a massive number of licences.
Thank you for coming along to the meeting and for being prepared to give evidence. Obviously, your committee has presented Scotland with an incredibly important piece of work and it is good to see that work coming to fruition today.
I recognise that there is a theoretical risk and I suppose that, to a certain extent, we must do some crystal ball gazing. However, I should also make clear the committee's concern that, although the current legislation provides for specified permitted hours—as you rightly say—the reality has been totally different for many years.
That is useful and reflects the reality of the situation. In your submission, on section 60, you acknowledge that an applicant could stipulate an opening period of 23 hours and 59 minutes, so the premises would in effect be open 24 hours.
That was really a point about drafting rather than policy. I have not had a response from the Executive. It might persuade me that I have misunderstood or got it wrong, but it seems to me that although the idea is, as I understand it, to create a kind of presumption against 24-hour opening—with which I would not quarrel—the bill will not achieve that, for the reasons that I set out in my submission.
That is useful.
This is a purely personal view, but I think that it is because the bad, undesirable consequences of over-provision have crept up on us gradually over a good number of years. Some time ago I asked a licensing board chairman what his approach to over-provision was. He said that the matter was terribly difficult, because if a defined area already had 12 licensed premises, it was difficult to determine whether a 13th licensed premises would result in over-provision or whether that would be the case only once there were 14 or 15 licensed premises.
I will give you an example of a licensing board trying to grapple with the issue. Members probably know Perth reasonably well. In St John Street, there are now a fair number of pavement cafes. There have always been many pubs in that part of Perth. When the pavement cafes first started applying to open licensed premises, all the objectors were neighbouring pubs operating in the area. Quite rightly, the licensing board said that it would not say that there was over-provision and would go ahead and allow the number of pubs to expand. Rather than going out of business, the existing pubs got busier, because the environment was improved and the owners invested more successfully in their businesses. There, the over-provision rules were not applied. I am a bit concerned that the over-provision rules might stop investment going into areas and bringing other premises up to the required standard. I do not know how much your committee considered that issue and whether such market regulation could have the effect of not allowing investment to come in.
That is certainly a risk. Another point that is germane is what we call in our report licensing by stealth. The situation has been touched on briefly this afternoon. For example, premises might be given a hotel licence under the existing law to which no special condition is attached. The licence is given in the knowledge that the hotel is a small one with 10 bedrooms and a small bar. What can happen—I can think of at least one instance, possibly more, of this happening in Edinburgh—is that the bar grows and grows and spills over in summer to outside tables and chairs. There can be 1,000 people drinking in premises that were originally granted a hotel licence when there was only a tiny bar. That kind of thing can also have an impact on over-provision. However one defines the word, one will have to consider the number of premises in a defined area, their size, their capacity, the type of premises and so on.
I am aware that people in the area that I represent are less concerned about over-provision in the on-trade than they are about it in the off-trade. Off-licences can often dominate small towns and villages and push out other forms of business. Will the provisions on over-provision be used to help to stimulate local economies by ensuring that a particular type of premises, such as an off-licence, does not dominate an area?
What you say is perfectly possible in some areas, and that is why the approach is not so much board by board as locality by locality. The considerations in one place might be slightly different from those in another. As you rightly say, the arrangements and the number of premises in a certain locality can have a positive or a negative impact on the overall economy of the locality.
Did your committee consider the social consequences of over-provision? There seems to have been a significant increase in the provision of licensed premises, particularly off-licences.
It is probably fair to say that our starting point was the adverse impact that over-provision can have on local communities. At one of our evidence sessions, a quite vocal residents group made it plain that it is important not to define any notion of locality too narrowly. The group made the perfectly valid point that there might be a reasonably definable locality that people might say has too many pubs and clubs, the impact of which can be felt at 4 in the morning a couple of miles away, because that just happens to be the route that all the drunken ex-clubbers take on their way to get the local late-night bus. It was also made clear to us that the issue was not strictly within our terms of reference. I suppose that it is not within the terms of reference of the bill either.
So it is accepted that a majority of licensed premises, such as off-sales, will find themselves in deprived communities. If you were to compare Mearns Cross in Newton Mearns with Springburn Way, for example, you would see very different profiles. Is that something that your committee considered?
I do not think that we considered that specifically, but I would not quarrel with what you are saying. You are absolutely right.
I will move on to issues around young people. You have set out clearly what you would like to be the case with regard to access to licensed premises by young people. You will have heard the committee asking the Executive a series of questions about sales to under-age people. You have commented that you believe that some aspects of sections 98 to 100 are inconsistent. Will you expand a little on your views in that regard?
As I think I commented in my submission, it is perfectly possible that I might not have understood the issue properly. Yesterday, Jacqueline Conlan—bless her—told me that she would be sending me a response to my comments, which would deal with the matter.
I am sure that it would be useful if you could do so. I am sure that the Executive will copy the committee in on what it sends you on the issue.
As far as dial-a-drink services are concerned, I found myself thinking earlier this afternoon that, in a situation where a delivery driver who is giving effect to an order placed by telephone arrives at a house and a young person answers the door and says, "Ah, you've brought my order," or something like that, and there does not appear to be a responsible adult in the house—in other words, where it is not pure chance that a child has opened the door, and it was not the father who placed the order—there might be advantage in requiring the delivery driver to ask the person to prove their age and to say that, if they cannot, they will not hand over the order and will take it back to the shop, with the cost being reimbursed to the appropriate debit card or whatever.
If it is difficult to deal with dial-a-drink services—you went through the complications—it will be equally difficult to deal with purchases over the internet, which, no doubt, will increase. In the circumstances, would it not be better just to ban those practices?
That is jolly difficult. I am sure that we have all seen increasing numbers of Sainsbury's and Tesco vans on the roads during the day and in the evening, with drivers staggering out with boxes full of groceries—bread, sugar and, perhaps, half a dozen bottles of wine. Given that, as I understand it, that is a pretty commonplace way for many people to do their shopping, by doing what you suggest, we would be saying either that that kind of shopping must cease altogether or that people can carry on shopping for cornflakes and coffee, but must not order any alcoholic drink. That would be possible, but I sense that it would not be terribly popular.
Rather than banning the practice completely, a fairly reputable supermarket, such as Tesco, could make it a condition of sale that where alcohol is purchased online it must be received by someone aged over 18. The person purchasing the alcohol would enter into a contract; if it fell apart, the onus would be on them, rather than on Tesco.
I would not have a difficulty with that. I talked specifically about supermarkets, but it occurs to me that there are many wine societies and the like that operate entirely by mail order, either in the true sense or by taking orders over the telephone or internet. If one were to say that such businesses were no longer lawful, one would put many old, established organisations out of business overnight, which would not go down well.
Is there evidence of how the issue has been addressed in other countries?
We did not receive any evidence on what happens in other countries. I will be frank—there is a former member of my committee in the public gallery who will perhaps tell me if I have got this wrong: I do not think that we considered the problem that has been discussed this afternoon, which is doorstep delivery, possibly to a child. We gave some consideration to internet sales, but that was in the context of the more technical problem of determining what the premises are for the purposes of a premises licence if the purchaser deals just with a website.
I was thinking of countries in which there are already stricter regimes for the sale of alcohol and how they might have overcome the internet problem.
I do not know. Officials in the Executive might have contacts whom they can get in touch with, although not necessarily formally, to get a feel for what happens elsewhere.
Recently, I received answers from the Scottish Executive to parliamentary questions on internet pharmacy. I was given an assurance that, as far as the Executive is concerned, all premises that operate as internet pharmacies will be subject to the same regulations as will traditional community pharmacies that hold a national health service dispensing contract. Do you feel that the area needs to be considered more closely and that the same regulations should be applied to all premises, as happens in the licensing of premises that dispense drugs, which are registered products? Is there a parallel?
When we were preparing our report, we were not persuaded that there is a problem in relation to the sale of alcohol over the internet, but we suggested that an eye should be kept on the situation. Section 130 makes provision for remote sales of alcohol and gives ministers the power to introduce whatever regulations might be required. The intention is to keep an eye on the situation and to take appropriate action as and when it is required.
As in many cases, the matter boils down to the unit cost of alcohol, which is also an issue for off-sales. People are becoming more astute about how to purchase volume on price. Is there a need to make such regulations to address that from the perspective of the various objectives that are set out in the bill—the promotion of public health, the protection of children and so on?
The situation is like the curate's egg: it is good in parts and bad in others. I fully recognise the undesirability of an off-sales place doing a big promotion on alcopops that are likely to be attractive to young people. That was mentioned earlier. On the other hand, I suspect—tell me if I am wrong—that if one wanted to buy a couple of bottles of whisky to put in the cupboard at home for the odd occasions on which one might want to have a whisky or entertain a friend, most of us would go along to the off-licence and scan the shelves, and, if we saw that Johnnie Walker was being offered at £3 a bottle less than Bell's because of a special promotion, we would buy the brand that was subject to the special promotion. I think that I am right in saying—although, again, I speak with no professional knowledge of this—that many of the promotions in off-licences are the work not of the shopkeeper, but of the big manufacturers and distributors.
Let us move back on to our scheduled questions.
Bell's was obviously targeting you because it wanted a celebrity endorsement from a well-known spokesperson on alcohol issues.
Broadly, it does, although I recognise the point that was made earlier by Tommy Sheridan that the limit on the total number of members of a local licensing forum may have a squeezing effect on the number of those members who can be said truly to represent local interests. The total number could, perhaps, be increased. The issue did not catch my eye when I read the bill.
Taking a percentage approach might be better than setting an absolute figure.
A percentage approach could allow the local representation element to be taken into account. We could say, for example, that not less than 25 per cent of the membership must represent the local interest. If boards operate with a maximum of 10 members, they might run into difficulties if there is not space for others who should be there—the chief constable and people whose functions relate to health, social work and so on. I am thinking aloud, but I wonder whether there might be an advantage in reconsidering the total. Paragraph 2 of schedule 2 says that the forums should be
Good. I was going to ask you that question.
As I was saying when you were out of the room, divisionalisation is permissible under the bill. Although it already happens in places such as Aberdeenshire, in the past it was never thought of in relation to cities. I can see some advantage in divisionalisation. The committee would have to lobby Glasgow City Council and get it to accept the proposal, however. If Glasgow divisionalises and has four separate boards, perhaps there might not be so much wrong with 10 as the maximum number of members of local licensing forums. However, if Glasgow remains a single unitary licensing board area, an argument could be made that the maximum number of board members should be increased so as to allow a wider spread of local interests from around the whole city.
Is it important that the forum is independent from the licensing board?
Yes, it is important as a matter of principle. As the committee probably knows, even before the Nicholson report was published, there were local licensing forums in some parts of the country, albeit that they were set up informally. I think that I am right in saying that the Edinburgh licensing forum was chaired by the chairman of the local licensing board. As far as I understand, that arrangement worked well. Nonetheless, although it may work well in some instances, there can be no guarantee of it doing so in all areas, which is my reason for saying that, as a matter of principle, it is better that the forums are independent. Obviously, they should meet the licensing board fairly frequently.
In your paper, you say that you were surprised that the bill makes no mention of the national licensing forum, although you also say that you understand why the detail of the forum has to come in future. Do you stand by what you said? Is it reasonable to expect the national licensing forum to be mentioned on the face of the bill?
Yes. It would be helpful if the bill mentioned the national licensing forum, as that would put the bill's other provisions in context.
I am addressing a school meeting on the subject of licensing tomorrow evening. Should I tell people that the bill will give the public a greater say in licensing decisions?
Yes. My view is that you can say that.
Thank you.
You can mention that public endorsement, Margaret.
I would have preferred it if, instead of just saying yes to my suggestion, Gordon, you had said, "Yes, but the bill could be a lot better." The truth of the matter is that it would not take much to improve on the current position.
You will appreciate that that is a matter for the Executive, not for me. However, I am sure that its officials are listening to what you are saying.
I would appreciate it if you could find out whether it is okay to pass on any answers.
The short answer to your questions—I will give you the longer answer in a moment—is the one that an Executive witness gave earlier. The bill is fundamentally concerned—as our committee was—with the licensing of premises and people trading in alcohol, although I have to say that we acknowledged that the way in which that is done has implications for public order, public health, local amenity and a range of other matters.
Thanks, Gordon. I will not dwell on the point, but the question arises: why should we have legislation relating to over-provision if we do not have an opinion about the need to reduce the consumption of alcohol overall? Specifically, the bill aims to reduce under-age drinking and drinking among young people. Why it does not have the wider population in mind is beyond me. I think that that is remiss.
As I said, I have no difficulty with what you propose. The bill, as drafted, largely repeats what is in the 1976 act and allows for a local authority area to be divided into divisions for the purpose of licensing boards. The schedule that deals with licensing forums makes it clear that, where that is done, each of those divisions will be considered a board area for the purpose of having its own local licensing forum. The mechanics are all there. Like you, I see some advantage in the larger cities taking that approach to reflect more properly and accurately local interests. What is relevant to the people on the east side of Glasgow may be quite different from what is relevant to people on the west side. However, I do not think that the Parliament will want to change the way that things stand. The Parliament cannot order councils to divide up into board areas; the councils have to make that decision themselves.
Surely the bill could require councils to consider localised areas—I am thinking aloud with my form of words here. Some Labour members might disagree with me on this, but, having been a councillor for 11 years, I worry that big councils such as Glasgow City Council tend to use certain positions as a form of patronage. If there are several boards rather than one big board, that might become more difficult. Would a change towards localised areas be legally possible?
I hesitate to offer a legal opinion to a committee of the Scottish Parliament. Speaking personally, I cannot see anything wrong with a piece of legislation that says that every local authority must, for instance, apply its mind every five years to the question whether the licensing board in its area should be divisionalised.
With proportional representation on its way, I hope that such two-minute meetings will be a thing of the past.
I did not want to appear too dogmatic in what I wrote in my paper. Now that you have asked me the question, I am bound to say that those provisions are a can of worms. If section 86 stands as it is, I can foresee all sorts of people getting forcibly ejected by licence holders, raising actions for damages and taking their case through the courts. They could claim damages because the licence holder had used more than reasonable force, saying, for example, that they got a black eye as a consequence. The provision is undesirable. I heard Jacqueline Conlan say that the Executive would revisit the matter. I certainly hope that it does so.
It sounds as if we are discussing the matter in a vacuum and that the type of situation that we are talking about does not currently occur. Currently, if a bouncer on a door ejects someone from the premises, the person ejected would have redress to the court if they felt that the bouncer had acted with undue force. What would change under the bill in relation to people getting evicted from premises?
The bouncer is doing something because it is part of his job. My concern lies in enshrining things in statute. I might be quite wrong about this, but it seems that what we are discussing now is not a million miles away from the discussion that has arisen in recent times largely from the Martin case—the case of the householder who shot somebody dead when his house was being burgled. A bit of discussion has been taking place, perhaps more south of the border than here, about whether there should be statutory authority for householders to use force if their house is invaded—members must have come across that debate. There is perhaps a hostage to fortune in relation to this debate, which goes slightly in the same direction.
Currently, if a person uses inappropriate force to remove someone from a premises, they can be charged with assault. However, the reality is that, particularly in smaller pubs, publicans who police their pubs well and deal with trouble without needing to call the police have the best-run premises. If the bill is passed, there will be a danger that such publicans will no longer be able to police their own premises.
That might be. I agree that some of the best-run premises are the ones that never have to call the police.
In your paper, you raise concerns about section 122—
Are you talking about the provisions on appeals?
Yes, and about the sanctions that licensing boards could impose. When I was a member of Glasgow City Council, there were a number of occasions over the years on which a publican cocked a snook at the board's decision because the appeals process allowed their premises to remain open for extraordinary lengths of time. The board's decisions were ignored and communities thought, "What's the use of the power?" I want the bill to confer real power on boards to take action. You are concerned that a balance should be struck and you say:
I am hopeful that under the proposals, which I was pleased to hear are to be substantially revamped to reflect more closely the recommendations of the Nicholson report, appeals to the sheriff principal would be dealt with expeditiously—you will appreciate that I speak from 12 years' experience as a sheriff principal. I would think that a sheriff principal might be able to hear and decide an urgent appeal in the sort of case that you have been discussing within about six weeks. Currently, it commonly takes nine months for an appeal to be heard, so that would be a significant improvement.
I note the concerns in your submission about ECHR compliance and I note that the Executive believes that as long as the appeal process is ECHR compliant, it sees no difficulty in its proposals. If your interpretation were correct and a successful ECHR-based challenge could be launched, what would be the ramifications? Would that bring the whole act into default?
A challenge might do that. I accept fully that the case law from the European Court of Human Rights makes it plain that a deficiency in the impartiality of the judicial body at first instance can be overlooked when a right of appeal exists to a court that is undoubtedly impartial in the fullest sense. However, there is authority that says that, notwithstanding that, a duty exists to ensure that a court or quasi-judicial body at first instance is as close to objective impartiality as possible.
I am sure that none of us round the table is infallible. You draw out an important concern on which the committee will have to satisfy itself fully before final consideration of the bill.
I asked a question earlier about the dial-a-drink service. The police officers who spoke to me about that had a legitimate concern about a specific issue. They were not talking about the threat of someone getting their bottle of Beaujolais from Wines of the World; they were seriously talking about young people getting a bottle of Buckfast from Winos-R-Us. My question was not intended to draw us into a wider discussion of the ordering of bottles of wine over the internet. Do you believe that the bill, as drafted, will give the police the powers to address that specific concern? Have you heard Scottish Executive officials saying that there is provision to curtail that type of activity between 12 o'clock and 6 o'clock? Will the police be able to enforce the provisions in the bill in respect of young people obtaining alcohol from an off-licence via the telephone?
I have not been through the bill with a fine-toothed comb—you will appreciate that I have not been as close to it as those in the Executive—and I do not think that I can give you a definitive answer to that question. However, I have no clear recollection of having seen anything in the bill that would immediately address the point that you touch on.
Would you be prepared to write back to the committee, once you have had a look at the bill to see whether it addresses that concern?
Yes. I could have a look at the bill and let you have my view on the matter, if that would be helpful.
That would be worth while, as we are taking evidence from you on how the recommendations in your report are being implemented in the bill. I would certainly appreciate that.
That is probably correct. One hopes that, if chief constables were to be reinstated as objectors, a responsible chief constable would, of his own initiative, raise that kind of matter with the local licensing board. In any event, I think that the review provisions in the bill allow a chief constable, among others, to bring matters to the attention of the board in order to determine whether the board should intervene and impose some kind of sanctions on the licence holder. There is a role for the police in doing that.
In my experience, the police felt that it would be inappropriate for them to ask the local licensing board to ask them to provide information. They made themselves available and had an officer at the meeting of the board, but the board never availed itself of that information although it was making a decision about the granting of licences on the basis of the impact on antisocial behaviour. Is there some way of requiring the licensing board to seek that information from the police before making a decision? Perhaps the bill could include that requirement. Would it be beneficial to make that a requirement?
You must forgive me if, unlike Jacqueline Conlan, I do not have all the provisions of the bill at my fingertips. You are right that there is normally a police representative at a table just in front of the board members, and from my limited experience of attending licensing board meetings under the present system, almost invariably the chairman of the board will turn to the police representative at each application and say, "Inspector Smith, have you anything to say about this one?"
My experience might be particular to the licensing boards that I am thinking about. I had better stop asking questions about the subject.
My point is that if it is general practice—with one or two possible exceptions—for licensing boards to follow the kind of practice that I have seen, there might be no need to make that a requirement in the bill.
I understand that the 1976 act requires the licensing board to provide the chief constable's report, which means that the premises issue will be raised.
It is not entirely fair to do a head count of the respondents. Some of the residents associations that contacted us were vociferous and supplied us with a lot of helpful information. Some of them were indirectly represented on slightly different bodies. Appendix A to the report contains the list of consultees who responded in writing, which includes bodies such as Angus alcohol steering group. That group, as are many other such groups, is made up of a couple of local doctors, the local social worker, some local residents and a local policeman. They are representative of that sort of community. It is always nice when one feels that one is reaching out to the widest possible audience. I reckon that we did not do too badly.
The reason why I raised the point is that Jacqueline Conlan said earlier that we have never had any complaints about how the police report to licensing boards. Michael McMahon made a similar point. That is not the case in some communities. People are concerned that, when they attend licensing board meetings, they are told that there is no police report when that is not representative of their experience. Their experience is of significant antisocial activity at particular premises that is not being reported to licensing boards. I raise that point because the bill seems to focus on the licence holder and whether they have criminal convictions, but community representatives are raising wider issues about the kind of antisocial activity that surrounds the premises of the licence holder.
As you were speaking, it occurred to me that the issue is one that the local licensing forum might want to consider. If membership of the local licensing forum includes a police representative, the matter could be discussed from that perspective and from the other, different perspectives that are represented on the forum, after which the decision could be taken whether to pass the matter to the board.
Does that not make the case for chief constables having a format for the way in which they provide information to a board? If the police have made 110 calls to a licensed premises, surely that warrants a report to the local licensing board? The report would say that that premises has had 100 visits and that there is concern about antisocial behaviour, not necessarily in the premises but in the surrounding area.
I understand that that sort of thing is possible under the bill.
Because mention is made of location in the bill?
No, because of the application for review provisions in section 34. Section 34(1) says:
Surely that makes the case for a specific format that sets out the procedure for review of the licence? Such a format would not leave the decision to the discretion of the police authority but would make it clear that a full report of all activities surrounding those premises should be made. I am not saying that leaving matters to the discretion of an authority always means that the problem is not addressed. However, on occasions, the use of discretion has meant that problems were not reported to licensing boards.
If the committee were to go down that road, I foresee some licensing boards saying, "Oh my gosh, not that chief constable again. He is forever sending in notes about these tiddly little things because the Licensing (Scotland) Act 2005 tells him to do so."
Surely 110 calls to the police—
I think that you are getting into a debate with the witness, Paul.
I have a comment for the convener. We are going round in circles on the input that police officers make to licensing boards. Given that we are at the beginning of our evidence-taking process, a number of other witnesses are to come before us, some of whom will have the information that we need on the subject. We need a clear picture of the licensing boards at the present time and of police input to boards on an on-going, case-by-case basis as each application comes before a board.
Some of the comments that you made in your report were extremely interesting, Sheriff Principal Nicholson. I turn to your comments on section 7, which concerns the duty to assess over-provision. You mention "so-called ‘grandfather rights'". Will you expand on that in light of the comments that Scottish Executive representatives made this afternoon? After the bill is passed—if that happens—and before regulations are made, will there be a need to set out clearly what is expected of licensees if they wish to pursue and continue their existing licence provision?
That would be helpful and appropriate. My concern, which might be ill founded, is that the focus that is given to over-provision by giving it a section to itself could have what many might consider to be an undesirable impact on existing licence holders. It depends on how the timescales work, but a licensing board might decide to work out whether there is over-provision in a designated locality and decide, by whatever yardstick it uses, that there unquestionably is over-provision in the area.
Do you envisage it being a case of business as usual under the bill, provided that licences are reviewed and premises examined and inspected by the new licensing officers, perhaps with police input? Is that a possible way forward or ought the bill to include specific recommendations from the Scottish Executive, which introduced the bill, to ensure that the new regime does not sneak up on licensees and that we do not face a series of advance appeals, which would take up a lot of court time and prevent the bill from progressing?
To put it broadly, it is desirable that there should be as much advance information and co-operation as possible during the transitional process to try to make it run as smoothly as possible and, if it is not contrary to the Executive's policy, to reassure existing licence holders that, although it is possible that the terms of their licences might vary upon transfer to the new system, they will certainly be entitled to retain their licences.
Subject to what?
Subject to coming up with an acceptable operating plan.
As the bill is worded, is there a serious risk of advance appeals being made or other advance action being taken through the courts to establish those rights or is that being overplayed?
It is a little premature for such actions. After all, the bill has been on the table for only a couple of weeks and it is perfectly plain from what we heard this afternoon that the Executive is continually refining and reviewing its policies, which is only to be expected. I suppose that it comes down to this: whichever direction the policy is to take, the sooner it is made clear and final, the better. Everyone will then know where they stand.
Are you content that due attention was paid to the Nicholson committee's recommendations on private clubs?
Yes, I think so. I am sure that you realise that we thought it quite anomalous that one group of premises that sell drink should be completely outwith the normal licensing process. We thought that there was no particularly sound argument for allowing clubs to retain that special, almost privileged, position. However, at the same time, we acknowledged that clubs have a character that is very different from that of ordinary commercial licensed premises and we were anxious that that difference should be recognised as appropriate in the bill. As far as I can tell, the bill seems to do that.
Were the comments on exemptions for small clubs that we heard today from Executive officials reasonable?
Yes. The comments were helpful and appropriate.
That concludes questions for the witness. Thank you for the evidence that you submitted in advance and for your evidence today.
I will make a few remarks and provide some background. When the working group was meeting, I was chief executive of East Renfrewshire Council. I retired from that position in September and I am now employed part time as Her Majesty's lay inspector of constabulary for Scotland, a post that I will hold for three years. George Clelland has been in charge of licensing in Strathclyde police for the past two years and will move on from that role on Thursday. Tony Rednall is an Executive official and was the assistant secretary of the working group.
I asked Sheriff Principal Nicholson about the criteria for an objector. I understand that your group recommended that an objector should be someone
We were concerned to ensure that the criteria were as broad as possible. The bill goes further than we went, because we were in favour of defining an objector as someone with a real and material interest, which might be difficult to determine. Regardless of whether we use the term "real and material interest" or say that an objection or representation that has been made on "frivolous or vexatious" grounds should be rejected, the criteria will be tested by the building up of case law. If the test were that an objector should have a "real and material interest", it is probable that the national licensing forum would still have to produce guidance on how such an interest should be defined. Similarly, the forum will probably have to give careful thought to what may constitute a "frivolous or vexatious" objection or representation. It does not cause me too many problems that the Executive has departed from our recommendation and suggested instead that the licensing board should reject "frivolous or vexatious" representations or objections.
Licensing standards officers will have a crucial role. Should they be independent of any other authority, or should they be subject to the control of the licensing board? What powers should they have, and how should they be funded?
In our report, we said that licensing standards officers should have an educational and mediation role in addition to their monitoring role. We are pleased that section 14 sets out that those should be the three roles of LSOs. LSOs will provide information and guidance on the operation of the act. They will also provide a mediation service to try to avoid or resolve disputes or disagreements. The bill defines the role of LSOs very much in the way that we thought that it should.
People who have a disagreement with LSOs, or who feel that LSOs have overstepped the mark or been too inquisitive, might want to appeal. Who will provide independent scrutiny of the role and performance of LSOs? Should it be the national licensing forum, or a division of a Scottish Executive department?
There will be scrutiny, or appraisal, of an LSO through a local authority's performance review and development schemes. Just about every local authority in Scotland has a staff appraisal scheme to measure how well people have achieved their objectives. Line managers within local authorities will monitor and scrutinise each person's role.
How should complaints about LSOs' performance be dealt with?
Complaints will clearly form part of the process. I presume that line managers will have to take account of complaints against an individual officer as part of their appraisal.
David Davidson asked about the financing of licensing standards officers. Will you comment on that? I accept that the licensing board would not employ LSOs directly—they would be employed by the local authority—but should the board offer LSOs direction or guidance on enforcement measures?
The licensing board will have to produce a policy statement for its area and the LSOs will operate within that policy. There will be policy guidance, stemming from the statement that the board will be statutorily obliged to produce. As you would probably expect from a former local authority chief executive, I have strong views about the financing of the LSOs. They will be a cost to local authorities. I would expect the Scottish Executive to assess that cost fully and to reimburse councils for the cost of employing an LSO. In the case of small councils such as Clackmannanshire, the cost could be fairly low. Even my council, East Renfrewshire, with 43 licensed premises, will have only one officer. However, councils such as Glasgow and Edinburgh will have substantially more than one LSO. The cost could be quite heavy for local government. As a former council chief executive, I think that the Executive should pick up the bill.
You say that the Executive should pick up the bill. Alternatively, the fee structure could provide the finance for LSOs. Would that be preferable to the public purse picking up the bill?
When the group talked about that idea, the licensed trade representatives were against it on the grounds that the fee hike would be too much. I do not have evidence one way or the other. I would need to see the Executive's work on that before I could pass comment.
To tease that point out a bit further, would the application of a fee through the licensing system to pay for LSOs be any different from a local authority taking money for planning applications and using it to fund its work in that area?
That is a fair point. I would not necessarily disagree. To use an old-fashioned term, this is what local authorities would describe as a burden, and a burden needs to be paid for. I have no view one way or the other on whether it should be paid for through the fee or by the Executive.
Most of us would accept that it is a burden. Tom McCabe, the Minister for Finance and Public Service Reform, has commented recently about the need for duties to be shared across council boundaries as a means of cost saving and efficiency. Did the group consider the possible regionalisation of such services? The 43 licensed premises in your authority might not warrant a full-time officer. As a former councillor in Stirling, I know well the methods that we were trying to develop to share costs and facilities with Clackmannanshire and Falkirk and I am sure that that approach is common to all parts of Scotland. Is there a view about the efficiency of the service from that perspective?
We did not address that specifically but, as you will know, local authorities work together in a variety of areas. If a small council felt that the cost of employing a full-time LSO was not justifiable because of the small number of premises, I am sure that there would be no barrier to its co-operating with a neighbouring authority. The only problem might be that I think the bill requires each council to employ an LSO. I do not know whether councils could get round that provision by offering a shared post. Dog wardens, for example, are normally employed across a range of authorities. There are many such shared posts in local government.
Does Superintendent Clelland have a view on sharing licensing standards officers across police authority boundaries?
It would certainly be possible to share licensing standards officers under appropriate circumstances. For East Renfrewshire, which was Peter Daniels's authority, the obvious neighbour would be Glasgow, which will need to employ a considerable number of officers, so that might be a one-off instance in which it would not be necessary to employ a full-time officer. However, that would be the exception rather than the rule.
How does Peter Daniels envisage that local licensing forums would work? We touched on the matter earlier and it was suggested that they could be regional forums.
Our concern was to ensure that the proposed local licensing forums are independent of the council, which is necessary if they are to offer independent, objective views and advice to licensing boards on the matters that fall within their remit. The approach to setting up the forums, which is set out in section 10 and schedule 2, is good and covers the issues well. A council will have to establish and support a forum in an approach that will be very similar to the approach to community councils. Under the Local Government (Scotland) Act 1973, councils must establish a community council and provide it with administrative support, but beyond that the community council is independent. There are many examples of bodies that councils set up to operate at arm's length from the authority. We are happy with the bill in that context.
Do you have a view on the membership of the forums?
No. Paragraph 2(5) of schedule 2 provides that a forum's membership could include
I asked Sheriff Principal Nicholson about the evidence that he heard in relation to the notices that chief constables will provide to licensing boards. Perhaps Superintendent Clelland can clarify the matter.
I listened to the discussion with great interest. My job at Strathclyde police involves being the chief constable's representative at Glasgow City Council licensing board. We are notified of every application for a new licence and given the opportunity to make appropriate inquiries and make a full report on the application to the board. The other part of our involvement with the system is the on-going monitoring of licensed premises. Currently, we have the opportunity to bring before boards complaints and objections to renewals or regular extensions of licences, so we are currently very much part of the process. I have reservations about the provisions that relate to the chief constable's involvement. It would not be appropriate for our role simply to be to notify the licensing board of convictions
If 100 calls are made by members of the community about antisocial activity immediately outside licensed premises, should that be reported to the licensing board? There seems to be a myth that such things are not relevant to the licensing board and should not be reported to it. However, local people would hope that, if the police are frequently called out to deal with antisocial behaviour at particular licensed premises—not necessarily because the licence holder has criminal convictions—that behaviour should be reported.
I do not know the particular case that you are referring to. Normally, I would have thought that such information would be brought to the licensing board's attention in some way. In Strathclyde police, the division concerned would gather the information and convey it to me. The information would then be brought to the board's attention at an appropriate stage, whenever that may be. A difficulty that sometimes arises is in attributing particular behaviour—antisocial behaviour in the case you describe—to the presence of particular licensed premises. Disputes can arise over who can be held responsible for general behaviour in an area.
A newsagent would probably attract less antisocial behaviour than licensed premises. We have to clarify what should be reported to the licensing board and what should not. There seems to be a myth that we cannot report antisocial behaviour outside licensed premises because that behaviour is nothing to do with the licence holder.
I agree with where you are coming from. Somebody can be the best licence holder in the world but, if the premises attract antisocial behaviour, the community would clearly be concerned and appropriate action should be taken.
Earlier, Mr Daniels touched on irresponsible promotions and said that his working group had not done much work on that issue. Should the bill cover off-sales as well as on-sales? The Executive has said that it will do further research on that.
It was a pity that we were not able to consider the issue. Paragraphs 7 and 8 of schedule 3 to the bill deal with irresponsible drinks promotions. As we heard earlier, those provisions will apply only to the on-trade. However, it is encouraging that ministers will be able to modify the list so that any promotions by off-licences can be tackled.
Earlier, we talked about various schemes and about the role both of small off-sales premises and of the larger supermarkets. Many people bulk buy because of drinks promotions. Did you have input from people who were concerned about the supermarkets' role?
In the working group, the licensed trade and retail sector members debated that issue. The licensed trade was concerned about people's ability to access alcohol freely in a supermarket, to carry it outside the supermarket and to engage in antisocial activities. We did not reach a conclusion, because we could not consider the matter in sufficient detail, as I said. I think that George Clelland would agree that tension existed between the retail sector and licensed trade representatives on the group.
Do you have views on additional measures that could be considered to address concerns about a lack of controls on off-sales premises and supermarkets?
I have nothing specific. The bill focuses on matters such as deep price discounting and happy hours, which will not be allowed because of the 48-hour requirement.
Aberdeen City Council recently attempted to establish a minimum pricing scheme for the on-trade. Did the working group take a view on that scheme, which was overturned in the courts? If such a scheme was national, how might it apply to off-sales?
The point is that the scheme was overturned in court. The court took the view that Aberdeen City Council had acted ultra vires—beyond its powers. Perth and Kinross Council also had such a scheme, but the price that Perth and Kinross licensing board set was much lower than the price in Aberdeen and I am not sure whether the matter has been followed up with legal action.
The bill proposes a 48-hour pricing system for on-sales. Did your group consider a minimum period for holding a price in off-sales? I am thinking of larger supermarkets, in which a profit mix subsidises some lines.
I am afraid that we did not go into such detail.
I am led to believe that the Perth and Kinross experiment has been dropped.
It has.
One concern about happy hours and other such promotions is that they encourage binge drinking, because products are cheaper for a certain time. Given that most binge drinking among young people—under-18s—is of products that are bought in off-licences and supermarkets, do you believe that substantial price discounting in off-licences contributes to binge drinking among young people and possibly older people? Is there not a reasonable argument that that could be the case and should we consider measures to try to curb that behaviour?
There is a reasonable case, but the issue is whether any action that you can take might fall foul of competition legislation. That might be a problem, but the Executive would need to be asked about that.
We have heard discussion this afternoon about the policy objectives of the bill, one of which is to cut the amount of under-age drinking. Will the bill achieve the aims on under-age drinking that you set out in your report and address the concerns that you raised on it?
It will help. The working group was very strong on the proof-of-age scheme and we are pleased that our recommendations for the documentation that would be accepted as proof of age are in the bill. We were attracted by the idea of using the Young Scot card and I think that the Executive wants to consider that as well as other schemes. When proof-of-age schemes are in operation, they will help to tackle under-age drinking, but the bill will not solve the problem, because we have a culture of it in Scotland, which will take a long time to change. However, the bill is certainly a help.
Young people are innovative in the ways that they obtain alcohol. You probably heard the debate that we had earlier about the dial-a-drink service. What are your comments about the practical difficulties of dealing with that?
I share the concerns that other police officers expressed to you about the dial-a-drink service. I cannot for the life of me understand why those who deliver alcohol are not required to ask for proof of age from the person to whom they deliver it. That seems fundamental to me. If proof is to be asked for when someone goes into a shop, why will it not be asked for when drink is delivered? However, that would still be a difficult area to police, because, even if the person who receives the alcohol at the house is over 18, they could pass it on to others and they would be in a house to which nobody would have a right of access. The bill should state that the requirement for proof of age extends to the dial-a-drink service, but it must also be recognised that the privacy of the house raises issues.
There are practical difficulties with dealing with off-sales in licensed premises, so a difficulty or practical problem with requesting proof of age in deliveries to a home is no excuse not to propose provisions to deal with it.
Another major difficulty for policing off-sales is agency purchase, which is when an adult goes into an off-licence, buys alcohol for young people and passes it to them. The licence holder might not be aware that the alcohol is for younger people. Again, however, the fact that that situation poses difficulties does not mean that we should not try to police it properly, focus on trying to detect people who purchase on behalf of others and introduce sufficient legislative deterrents that work against their doing it in the first place. That is the only way in which we can prevent someone from purchasing alcohol for young people.
Is it practical to introduce test purchasing, given that the purchase of alcohol by someone under 18 is an offence? I do not know whether you covered that in your previous answer, because I was having a brief chat with the deputy convener.
Perhaps Peter Daniels will speak first.
We were attracted to the idea of test purchasing, although we know that it is controversial and we know what is happening with it in England. However, we came to our view because, when we were meeting, three trials had been undertaken by Scottish police forces. The trials took place in East Renfrewshire—my area—Paisley and Fife. In each case, to the best of my recollection, between 80 per cent and 90 per cent of licence holders or sales staff were prepared to sell alcohol to under-18s. We felt that that was damning. Members might recall that there was a lot of press publicity about it at the time. The Lord Advocate decided that three trials and no more were enough.
My force—Strathclyde police—supports what we called an integrity-testing regime, which is similar to test purchasing, but with a few specific differences. Some of the initiatives with which we were involved had 16 or 17-year-olds going into off-sales premises with no money in their possession, which meant that they could not have made the purchase. When it was established that a purchase would be made, however, a guiding officer was within eyesight to whom they signalled to come and inform the licence holder or shop assistant what was going on. In that way, it was established that the salesperson was willing to make a sale.
That is useful. I am glad to hear that that conversation is on-going.
I am trying to recall the discussion that we had about that, although I do not know whether it was in such explicit terms.
We discussed whether there should be a separate till for alcohol, similar to the separate till for cigarettes that is found in many supermarkets.
A separate till would cause difficulties because of the cost to supermarkets of reconfiguring their stores. People who were buying alcohol would need to get their biscuits at a different till. However, there is no reason why there could not be designated tills for alcohol and other goods. Every individual who was buying alcohol would be asked about their purchase. Would that help?
Yes. Although that idea has not found its way into the report, we discussed it and thought that it would help.
That is good to hear. I will come back to that point with other witnesses.
We did not consider that specifically, because we supported the basic principle of Nicholson that decisions on opening hours should be left to the boards. The decision that is taken by each board will depend on the circumstances in its area. What might be applicable in East Renfrewshire might not be applicable in Glasgow, just a few miles across the border. There has been a popular myth that the Nicholson report would mean having 24-hour opening, but the boards could decide to reduce the licensing hours from their present level. None of the subsequent discussion focused on that, but it is a real possibility. If a board thought—for whatever reason—that the licensing hours in its area were too generous, it might decide to reduce those hours.
The only evidence that we have about how much alcohol is being sold in supermarkets, particularly to young people, comes from the pilots that you are talking about. My guess is that, whether the evidence was from East Renfrewshire, Paisley or Fife, the figures alarmed everybody. We can safely say that alcohol is being sold to under-18s in supermarket outlets throughout the country, in a way that was never envisaged. Given that that seems to be the national picture, would it not be wise to reduce the number of hours in which supermarkets can sell alcohol, until the supermarkets prove that they can control the problem?
It comes down to the trust that we put in the local scene and local bodies such as licensing boards and local authorities. As you would expect, as an ex-council chief executive I am very much in favour of decisions being taken at as local a level as possible. My preference is to stick with Nicholson.
I can understand that. I presume that "Responsible Retailing of Alcohol: Guidance for the Off-Trade" will, at some stage, be cited to us by the retailers who produced it. The guidance goes through a checklist of things that are supposed to be done to ensure that sales are not made to under-18s, but it is not worth the paper that it is written on, because such sales are still happening. We need to have a more aggressive policy, nationally or locally, to ensure that sales to under-18s do not happen. I will return to that issue when the minister is here.
I do not want to go over all the ground that you have covered in relation to test purchasing, but do you not think that there is a distinct lack of urgency? You stated in your report that there were 905 licensing offences in 2001 but only 100 convictions. Even then, we all know from anecdotal evidence that those figures are the tip of the iceberg. Is it not the case that outlets will continue to flout the law, because they think they will get away with it and because the penalties are so small that it is worth it from a profit point of view?
I take that point on board. As chairman of the group, I hope that a decision will be reached by ministers sooner rather than later.
I envisage a number of practical difficulties in relation to the purchasing scheme that was mentioned. I would like offending sellers to hand over the goods and provide a receipt. That would be a better way of getting somebody than calling them over and having a debate with them, and then having them say, "Oh no, I wasn't going to sell it anyway." Would it not be easier for the Lord Advocate to simply exempt the young persons who are involved in authorised test purchasing schemes?
I agree. The scheme was put in place to comply with the Lord Advocate's requirements. I support an exemption of the nature that you describe. Test purchasing is an excellent policing tool that can be used, under appropriate circumstances, to obtain evidence of licence holders not running their premises properly and to make appropriate reports to either the procurator fiscal or the licensing boards, depending on the circumstances. I support your suggestion but, unfortunately, not every police officer has the same opinion. However, Strathclyde police supports test purchasing.
I take it that the figure of 905 licensing offences in 2001 represents reports that were made to the procurator fiscal.
I presume so.
The fact that there were only 100 convictions shows that the conviction rate was very low, despite reports being made.
Indeed. Many reports might have resulted in non-court disposals—either warning letters or other disposals—or perhaps no proceedings were taken.
I apologise because I had to use the loo when Peter Daniels made some of his points earlier, but did I hear him say something about the number of licensed premises in East Renfrewshire when he was chief executive?
Yes. The number was very small.
Did you say it was 43?
Yes.
Given your local authority background, I will pursue with you the point that I tried to make to the Executive witnesses. My worry is that the bill will not help the voice of communities to be heard in a city such as Glasgow.
I agree 100 per cent, but I see no problem with Glasgow establishing four licensing boards under the bill—or as many as were needed—each of which would have a membership of 10 councillors. If the issue is to ensure that the voice of the community, as expressed through local elected representatives, is sufficiently strong, that would be a way of achieving that. That model would mean that 40 councillors in Glasgow were members of a licensing board—I am not sure what the total number of councillors is.
There are 79, but there will probably be 80, although we are waiting for a report on that matter.
I am not sure what the bill proposes for situations in which there is more than one licensing board in a council area, but I presume that there would be no barrier to a council establishing a forum for each board area, if it decided to have more than one board. I do not see a problem with that, although Tony Rednall can correct me if I am wrong.
I do not think that that is wrong.
I agree that the proposal to have several boards in Glasgow would give greater community participation—there is no doubt about that—but one balancing consideration is the consistency of decision making. A decision in one area of Glasgow might conflict with a decision in another area, even if the applications were roughly the same. That is a concern that the current Glasgow licensing board may have about such a division.
I suppose that I would see that as a strength rather than a weakness, because we would then have a genuine reflection of local views, rather than the one-cap-fits-all approach of a single board. Such a system would encourage devolution of decision making to as local a level as possible. If that resulted in an application in the west end being treated differently from one in the east end, so be it.
Goodness. If you are asking me as an individual, I point out that I am teetotal. That is not because of principles or morality, but simply because I do not like the taste of alcohol. I do not drink beer, wine or whisky—I am a Diet Coke and orange juice man. As I understand it, the view of Nicholson and the Executive is that drinking is a socially acceptable phenomenon if it is done in moderation. The policy memorandum has a few pages about the importance of the trade to the Scottish economy. Those big policy issues are for ministers to get to grips with rather than for our little working group, which is considering off-licences. I can answer in a personal capacity, but my answer as chairman of the working group is that the policy issues are too big for us.
I must point out that smoking tobacco, which is a legal drug, was socially acceptable until recently and that there is a big drive to make it socially unacceptable. I hope that the Executive will take a similar attitude to drink.
So do I.
Perhaps I should have declared from the start that I, too, am teetotal.
I share Sheriff Principal Nicholson's concerns. I accept that there is a limited power to use force, for example in self-defence or when effecting a citizen's arrest. There are also issues with door stewards—in practice, they are allowed to escort people from premises, but I do not doubt that a reasonable degree of force is sometimes used in doing that, although when a steward goes too far, they can be subject to action. However, to give the proposed power to citizens would be dangerous.
That brings us to the end of our questions. I thank Peter Daniels, Superintendent Clelland and Tony Rednall. I apologise for keeping you so late, but, as with the previous two sessions, we have found this session to be useful to our consideration of the bill.
Meeting continued in private until 18:46.
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