Subordinate Legislation
Licensing (Mandatory Conditions No 2) (Scotland) Regulations 2007 (draft)
The committee is invited to consider the draft regulations. The cabinet secretary is joined by Gary Cox, Tony Rednall and Ian Fairweather from the criminal law and licensing division of the Scottish Government.
I refer members to the cover note from the clerk as well as correspondence from the Confederation of British Industry, Asda and Scottish Health Action on Alcohol Problems. I invite the cabinet secretary to speak to the regulations but not to move the motion at this stage in case officials are required to contribute.
The draft regulations cover two areas: training records for staff serving alcohol and alcohol display areas in off-sales premises. They are part of on-going work to implement the Licensing (Scotland) Act 2005. The regulations build on the measures for staff training that are already in place. Regulations that were made by the previous Administration required that all staff who serve or sell alcohol must be trained and they set out the areas that training must cover. The draft regulations require that a training record must be kept on the premises for each member of staff serving or selling alcohol.
The draft regulations also set out the format of the training record. That requirement is to provide a simple mechanism for the licensing standards officer to check that there is evidence that each member of staff has been appropriately trained. If the licensing standards officer discovers that a member of staff is serving alcohol and there is no training record for that person, it will be a breach of licensing conditions and will be brought to the attention of the licensing board. We consider the requirement to be a proportionate measure that complements the training requirements that have already been put in place. It reduces the scope for abuse and provides an opportunity for the licensing board to take tough action against any premises that do not train their staff appropriately.
The second part of the regulations provides for the separate display of alcohol on off-sales premises. The issue was first raised by Tom McCabe and George Lyon, who consulted on draft regulations in 2006. We need to change our bevvy culture in Scotland. Alcohol is not just an ordinary commodity to be picked up unthinkingly and thrown into a supermarket trolley along with a pint of milk and a packet of tattie scones. It should not be promoted or sold as such, but that is what is happening in many stores where there are numerous alcohol displays in addition to the beer, wines and spirits section. The approach varies from retailer to retailer, but examples include beer displayed in the aisle with the barbecues, fine wines in the ladies' lingerie department as well as in the food hall, cans of gin and tonic in the fridge beside lunchtime sandwiches, bottles of wine at every check-out and the ubiquitous pallets of beer inside store doorways. The positioning of alcohol is not about making it easier for the shopper; it is about tempting the shopper to buy and to buy more.
The regulations will require that alcohol is displayed in a particular area of the store, which will help to start to shift attitudes. To make it clear that alcohol is not an ordinary commodity, the regulations do not require separate walled-off areas, turnstiles or check-outs; they just require that all alcohol is kept in a dedicated part of the store. Premises will have almost two years to reorganise their displays in a way that complies with those conditions.
In response to concerns that were raised in last year's consultation, we have made provision in the regulations for a second inaccessible alcohol display area to cater for the typical layout of smaller convenience stores. Such premises generally have an area behind the till where high-value alcohol products are kept, along with other high-value or age-restricted products. The regulations will allow that to continue.
With the convener's permission, I will mention a few specific points. As you would expect, retailers' representatives are opposed to the creation of separate display areas. They want to continue to have a free-for-all and to be able to pile booze to the rafters all round the store. I understand that one retailer has made representations to committee members, although it has not shared that correspondence with me. I am not convinced by any of the views opposing the regulations. The Scottish Retail Consortium, representing the big supermarket operators, has said that there will be a significant cost to all businesses in Scotland. That is just wrong. The measures will affect only those retailers that have numerous displays at present. Many retailers, including some supermarkets, already keep their alcohol in one part of the store. The regulations would mean that it would be business as usual for them and no changes would be needed.
The SRC has argued that the proposals restrict the amount of stock that can be displayed. Again, that is wrong. The regulations do not restrict the size of the alcohol display area. A store could continue to have the same amount of alcohol on display; it would just have to keep it all in one place.
The regulations are about trying to change our culture and getting over the message that alcohol is not just another commodity. The Parliament had a constructive and consensual debate two weeks ago and overwhelmingly passed a motion in my name, as amended by an amendment in the name of Pauline McNeill, welcoming the approach towards alcohol displays. Our alcohol culture means that we need to be innovative and creative and to try new measures to help to change that culture. Creating a separate alcohol display area will not cure all our ills, but it is a step in the right direction.
Thank you for that, cabinet secretary. I agree with your final point that there is cross-party agreement that our alcohol culture is a major public health issue that we must tackle in every way that we can.
You said that Asda, the CBI and others have lobbied us hard on the impact that the regulations will have on businesses. I will pick up on two or three of the points that businesses have made to us. The first is that the regulations are proposed without the benefit of any research to prove that they will have the beneficial impact that you suggest and hope that they will. You have covered the second point to some extent, but I would like you to nail it down. Asda says in its letter:
"Ordinary shop workers will face very considerable burdens at already stressful seasonal times of the year to make these regulations work by concentrating the sale of beer, wines and spirits in two aisles a huge burden is created for those filling the shelves and taking goods to and from the warehouse."
I want your absolute assurance that you do not propose to limit the display of alcohol to two aisles, that any discussions and decisions about the floor space and layout for alcohol in supermarkets or anywhere else is a matter for the retailer and licensing board and that, in fact, retailers could ask for that to be changed at different times of the year.
The third point is the suggestion from some that there should be a derogation from the regulations at peak hogmanay time and possibly, in the two weeks through Christmas and hogmanay. Will you give us your views on that?
We did not carry out research on the impact on business. It seems to us that some matters are self-evident. The clear correlation between the availability and the consumption of alcohol has been demonstrated by organisations such as Scottish Health Action on Alcohol Problems and Alcohol Focus Scotland. There are also links between consumption and price and between consumption and advertising. It would have been a waste of public funds to commission further research. We all know that those links exist.
On the assurance that you seek with regard to Asda, you are correct to say that licensing boards will be able to deal with the matter. Alcohol will not be restricted to two aisles. There will be an opportunity for licensing boards to decide how matters are best dealt with.
On your point about a derogation and the strain on workers, the industry did not approach us to ask for a two-week derogation. When we asked what it meant by a seasonal derogation, we were told that it would start in November, if not October, and run right through. At what other times of the year would we have a derogation? That is the difficulty. If Scotland is successful on Saturday, would we have a derogation for the European championships in 2008? Would we have a derogation for the Commonwealth games in 2014? Would we have a derogation because we wished people to be able to buy bottles of champagne for their sweethearts on St Valentine's day?
The Scottish Retail Consortium is being disingenuous in some of the matters that it raises. Is Christmas a busy period? Yes. Will the regulations cause significant difficulties for the trade? No. Like many people, I will doubtless be inundated with socks, pants, carpet slippers or whatever as Christmas presents. Those items are sold over the counter in far greater volumes at Christmas than during the rest of the year. Retailers say that they need a derogation for alcohol because they sell so much more of it at Christmas, but much more of almost everything is sold at Christmas. It is up to retailers to stock up. They will be able to hold unlimited supplies in their storerooms, but they will not be able to continue to maintain the problem that we have. I do not support a derogation.
You pre-empted my question. I was going to ask whether you support the specific derogation that the Scottish Retail Consortium mentions in its letter to the committee—that is, a 14-day derogation during the Christmas period. That is different from the expansive derogation that you rightly criticised. What about the specific proposal, which the SRC describes as a compromise, of a 14-day derogation?
First, the matter applies to all items that are sold. It applies to the children's toy counter. Most toys are sold at Christmas—perhaps even 95 per cent. It applies to the book trade, but I do not see a representation from the SRC saying that it needs to increase the space that is used to promote the sales of Harry Potter books because more of them are sold at Christmas than at any other time of the year.
Secondly, I return to my answer to Margaret Smith's question. I did not commission any research because some matters are self-evident. When I was a lawyer in practice, until 1999, I used to operate during the Christmas and new year period, unlike some conveyancing firms. There has been a change in our drink culture since then, but even then I was inundated because of the alcohol-related problems that occur at Christmas and new year. People were literally banging on the door when we opened on the day after boxing day, seeking exclusion orders and so on because of alcohol-related domestic violence. The duty solicitor at the sheriff court in Edinburgh was almost guaranteed to get a murder case, and that was in the days when the murder rate was perhaps lower. They lost the opportunity to engage with their family on those days, but what they lost on the roundabout they gained on the swings, because the volume of alcohol-related crime was significant.
I accept that there is a problem for the Scottish Retail Consortium, but it applies to all goods and not just alcohol. It is clear that alcohol is not simply another commodity and that alcohol-related problems are far greater at Christmas and new year than at any other time.
I do not have a question; I just have some points that I would like to raise, if that is okay, convener.
Well, put them in question form and the cabinet secretary can respond.
I have no question at all, only some points about the draft regulations.
Well, ask him whether he agrees with you.
The first point regards the derogation. Some 19 years or so ago, I had a wee job working in a supermarket. I remember working through the Christmas period, when the back store was always chock-a-block with alcohol. The letter from Asda says that the warehouses will always be stowed full of alcohol whether there are six, two or 10 aisles.
The first time that I read the draft regulations, I had two points of concern: when they would come into force and whether they would impose a trade restriction because of the regulation on the display of alcohol within shops. However, when I read through them again, I realised that Scotland has to change the situation because of its alcohol problems.
The letter from Asda says:
"There is likely to be a limiting of customer choice"
because of
"a reduction in the range of products stocked."
That is a rather spurious argument, because it is up to each company what products it wants to sell. Does Asda want to sell to a particular market or does it want to give people more choice? Trying to put the responsibility for that on to the Government is rather unfortunate, to say the least. If Asda wants to have an argument about reducing the range of products that can be sold, it only has to consider the state-run Systembolaget shops in Sweden. Liquor, wine and strong beers can be bought only in those shops; some beers can be bought in the supermarkets, but they are extremely weak. If Asda wants to argue about restricting trade, we will have to consider what happens in Sweden.
For ease of handling the debate, we will go round the committee for questions and comments. At the end, Mr MacAskill will have the opportunity to respond.
It occurs to me that an unforeseen consequence of passing the regulations might be that supermarkets increase both the amount of floor space in the aisles that they normally use for alcohol, and the other space that they would normally take up by cross-merchandising, to cover the peak at Christmas and new year. Has that been considered?
There has been a change of tone this morning, and I could not agree with the cabinet secretary more. He made a robust case in favour of what we agreed during the passage of the Licensing (Scotland) Act 2005. We debated display then. It was a robust debate because there were differences of opinion, but we have had that debate and should take it forward.
The logistical arguments have been made by some of the largest companies in the world. I am sorry, but I do not buy the argument that Tesco and Wal-Mart will face logistical challenges. I have a lot of respect for those companies, which are significant employers in the constituency that I represent, but they have never faced empty shelves. They have stocked their shelves effectively and I have no doubt that they will continue to do so.
I support what the minister said about the connection with domestic abuse during the festive period. I represent a constituency that has its fair share of the domestic abuse statistics and I have heard from families that dread Christmas and new year because of the consumption of alcohol.
It is time for the supermarkets and the industries that are involved to take some social responsibility for their actions. They must recognise that, as well as continuing to provide a market in which there is competition and that provides the consumer with choice, they must take some responsibility. We did that with the on-trade through the Licensing (Scotland) Act 2005, on which a lot of work was done. We are now asking one thing of the off-trade: to reconsider how it displays alcohol.
I am delighted to support the cabinet secretary today. We should ensure that the regulations are introduced and that the industry is given time to implement the policy. We should also work with it to support it in that process.
I agree with Paul Martin's analysis of the cabinet secretary's submission to the committee. I have been in politics for a long time and have dealt with people who have suffered marriage break-ups, violence and, unfortunately, deaths as a result of the overconsumption of alcohol, which increases at that time of year.
Having said that, what about the mad mother, housewife and politician who is running around one of the large supermarkets, trying to get the Christmas shopping done without a list? She has got the tattie scones for breakfast and then something catches her eye and she thinks, "Oh, I need that for after dinner," or whatever. Is it fair that someone who can drink alcohol responsibly will perhaps be put out a little at that time of year?
Please deal with that question in your conclusion, cabinet secretary.
I support the comments that other committee members have made about the regulations and what we are trying to achieve. The cabinet secretary is to be congratulated on the SSI. Unlike Cathie Craigie, who talked about a person running about at the last minute—I will not repeat the other phrases that she used about herself—I believe that it is about changing the culture around alcohol in Scotland.
At the weekend, I visited one or two large supermarkets. It is not a matter of people buying drink at the last minute; it is a matter of their buying it in the first minute. As soon as they walk into the large supermarkets, they see cases and cases of different types of alcohol on sale. We must change the culture and mood around alcohol in Scotland. At the moment, in one of the large supermarkets, people can buy two cases for £16, which encourages and exacerbates the alcohol problem in Scotland. The more that we can do to abate that, the better.
I endorse everything that has been said so far. To Cathie Craigie, I say that I do not see a problem at all in people being put out a little. Maybe we need to put them out quite a bit, as we simply have to change the culture.
Given that we are making general comments on the issue, it is worth noting that the trade in general is going to have to recognise that the Parliament is determined to reduce alcohol consumption. We have taken on tobacco and the culture around that is changing. The Parliament is now determined to take on alcohol and, if we are successful, less alcohol will be sold and distributed. The trade in general must recognise that. That does not have to be to the trade's disadvantage, as the margin—therefore, the total profit—will be up to the trade to decide. However, it needs to recognise the direction in which the wind is blowing.
I place on record the fact that, despite the questions that I asked, which were designed simply to allow the cabinet secretary to respond, I agree entirely with what the cabinet secretary has said today and with what has been said by other members. There is a real need to change the culture in Scotland, to create a responsible, safer Scotland. I am pleased that the work that was done by the two previous Executives and Parliaments, which the cabinet secretary will acknowledge, is being carried on by the present Government and Parliament. I support the regulations unreservedly.
In conclusion, let me say that I totally support the measures such as those on staff training—that is a vital component—but I am less persuaded by the measures regarding how supermarkets and so on should be run. As I said earlier, I frankly do not think that those will make a whit of a difference. I am slightly disappointed that the cabinet secretary felt unable to grant a two-week derogation. I accept that a three-month derogation is out of the question, but I think that the committee might be in favour of a two-week derogation.
The cabinet secretary may now briefly sum up the debate and thereafter move the motion.
On Stuart McMillan's point, the regulations will kick in on 1 September 2009.
On Margaret Smith's point, yes, the licensing board can vary the layout plan if the supermarket or other off-sales premises makes representations.
I am grateful to Paul Martin, Cathie Craigie and Bill Butler for what they said. I concur that the process was started by our predecessors. We need a culture change and all Scotland must sign up to it. This is not a party-political or ideological problem but a cultural problem. We cannot go on as we are.
I accept Cathie Craigie's point that legitimate shoppers will be put out; those who do not abuse alcohol will pay the price for those who do. However, my colleagues in the health portfolio would point out—as Nigel Don did to an extent—that the public damage arising from alcohol abuse goes beyond the antisocial behaviour and violence on which we tend to concentrate. The issue straddles health as well, because people are encouraged to drink alcohol regularly. As Paul Martin commented, some of the best brains in the advertising world are employed on subliminally encouraging people to indulge at home. That may not cause antisocial behaviour, but it causes huge difficulties for our health and welfare. Therefore, sadly, those who are not involved in such breaches must face the same consequences. We also need to tackle the hidden long-term health consequences that arise from people imbibing at home on a daily basis given that, even if they do not commit an offence, their livers will not cope.
On John Wilson's point, in due course—subject to the consent of the committee and of Parliament—we will introduce further regulations to address promotions. Those will be introduced early in the new year. We are seeking to deal with the issue of access because—to reiterate what, I think, the Scottish Grocers Federation said—the display of alcohol is about optimising sales. Such displays are not simply to assist the reasonable consumer but to encourage both the unreasonable and the reasonable consumer to buy more alcohol.
I move,
That the Justice Committee recommends that the draft Licensing (Mandatory Conditions No 2) (Scotland) Regulations 2007 be approved.
Motion agreed to.
Premises Licence (Scotland) Regulations 2007 (SSI 2007/452)
Agenda item 3 is also on subordinate legislation. The cabinet secretary will make a brief opening statement on the regulations. It will expedite proceedings if, in the course of his statement, he can deal with the issues that have been raised by Glasgow City Council licensing board.
The Premises Licence (Scotland) Regulations 2007 set out the templates for an application for a premises licence, a summary of a premises licence, an operating plan and a specification for the layout plan that are required under the Licensing (Scotland) Act 2005.
I am happy to address the two points that have been raised by Glasgow City Council licensing board. First, it should be noted that the templates are not new, given that the format of the documents was developed by a sub-group of the national licensing forum back in May 2006. The sub-group included representatives from the licensed trade, the police, licensing boards and other stakeholders. The forms were not simply dreamed up by us, but were developed by those who will use them. They were revised and refined over a long period.
Glasgow City Council licensing board asks that a new section be added to the form to require all applicants to write a paragraph stating how they will comply with the licensing objectives. The proposal was considered carefully by the sub-group, but it was rejected. The sub-group took the view that such a section was unnecessary and raised concerns that it would be bewildering for applicants, who would either end up writing meaningless nonsense just to keep the licensing board happy or feel under pressure to go to the otherwise unnecessary expense of employing the services of a legal expert to complete the forms. Such a requirement would be an unnecessary burden on the licensed trade for no apparent advantage. In addition, Scotland's licensing lawyers might simply develop a standard paragraph that could be stamped into every form to comply with the requirements.
Nothing has changed since that decision was taken by the sub-group that developed the forms. I am satisfied that the forms as presented provide enough information to enable the licensing board to determine whether an application would compromise its licensing objectives. The new act also makes sufficient provision for monitoring and inspection to ensure that the licensing objectives are upheld. If the objectives are not upheld, a review of a licence can be initiated.
Glasgow's licensing board also raises an issue about the level of detail that is to be provided in the operating plan, in particular the information on the types of activities that might take place on the premises. The board suggests that it might be unable to distinguish between a pub and a nightclub on the basis of the information in the operating plan. I do not agree with that view. As members who have served on licensing boards will recall, board members receive a lot of information to allow them to take decisions. The new system will be no different.
Licensing boards will actually have more information than ever before. Board members will have an application form, on which the first piece of information will be the name of the premises. If it is called "Aitken's Bar", chances are that it will be a pub. Secondly, they will have the information from the applicant under the heading "Description of premises". It will be up to the applicant what to put in that box, but I would expect that the applicant will state that the premises will operate as a pub, nightclub, supermarket, convenience store, hotel or whatever. We will reinforce that point in guidance notes to applicants. Thirdly, board members will have the operating plan, which will set out details of what activities will be carried out on the premises and what the opening hours will be. Fourthly, board members will have the layout plan for the premises, which will give information on what the premises will look like. Board members also have local knowledge, which we should not underestimate. If, after all that, the board cannot work out whether a premises is a nightclub or a pub, the board's staff can ask for further information or its licensing standards officers can visit the premises.
This may seem like a small issue, but the change that Glasgow's licensing board seeks would affect licensed premises in an unreasonable way. The act requires that a change to the operating plan must be treated as a variation. That means that an application must be made to the board, for which a fee would be payable. For example, if the operating plan were to require more detailed information on activities, an applicant who said that the premises will have live folk music in the evening might need to apply to the board if that was changed to live country and western music. We do not consider that that level of detail is required. The forms need to strike a balance between giving boards enough information to take a decision and not being overly bureaucratic and restrictive to business. In particular, smaller businesses might not be able to instruct lawyers to go through the processes for them.
Therefore, I am content with the forms that have been presented and do not agree with the points that Glasgow's licensing board has raised.
On a more general issue, some of the administrative points that have been raised as we approach the transition period for the new act show a certain reluctance to move away from the comfort zone of the seven licence types that applied under the Licensing (Scotland) Act 1976. We need a willingness to accept the new act that Parliament passed and to make it work in the interests of our communities. The regulations are about creating a system that is fair to the trade as well as to boards. I am confident that the forms fit the bill.
The issues have largely been dealt with. As members have no comments, are they content with the regulations?
Members indicated agreement.
We will now move into private session.
Meeting continued in private until 13:31.