A wild goose chase?

The Scottish Government today announced a further package of measures designed to tackle Scotland's alcohol problem but will they get off the ground?

The Alcohol etc (Scotland) Bill introduces amendments to the Licensing (Scotland) Act 2005 less than 3 months after the new licensing regime came in force. There are no real surprises but a close reading of the Bill should concern a licensed trade which is already facing increased, post-transition regulation and the effects of the credit crunch.

The main proposals are:

• a minimum price per unit of alcohol. The price will be fixed by statutory instrument to allow for increases in the future. This will impact on the way licence holders market their products, for example, if they offer customers "meal deals" only the price of food could be discounted. The minimum price is to apply even if the alcohol is marketed with a non-alcoholic product
• packages containing 2 or more alcoholic products may only be sold at a price equal to or more than the total of the price for a single. This is designed to put an end to the sale of heavily discounted cases of beer and wine
• location of drinks promotions in off sales to be restricted to the areas where alcohol is displayed and will not be permitted "in the vicinity" of the premises – an end to "A" board hoardings on the pavements?
• there will be a requirement for a written age verification policy – minimum age 21. Many of the larger companies already operate such policies so this is designed to target the smaller operators
• licensing boards will be required to publish a detrimental impact statement as to the effect of off sales to 18 to 21 year olds on the area
• a power to vary the conditions attached to some or all licensed premises in their area. For example they could decide that all off sales in a particular area should close at 6pm or on a Sunday. They could also decide that off sales cannot sell to those under 21. There is no right to a hearing and no right of appeal
• a power to introduce a Social Responsibility Levy, not only for alcohol premises but also late hours catering outlets and other food businesses. The five licensing objectives in the 2005 Act will be incorporated into the Civic Government (Scotland) Act 1982
• a wide ranging and unqualified power to introduce new regulations

Where these proposals affect alcohol licensed premises, they will be attached to each premises licence as a mandatory condition. Breach will be an offence and a ground for review of the licence.

The main focus of interest, no doubt, will be whether the minimum pricing proposal is compatible with EU law. The Scottish Government, thus far, has refused to disclose the legal advice it has received on this topic. Both the First Minister and Nicola Sturgeon have prayed in aid the "protecting and improving public health objective". The advice may well be irrelevant now as it seems this proposal is doomed to failure as the opposition parties will not support it. However, of perhaps more concern to the licensed trade is the power to vary unilaterally the conditions attached to premises licences without a hearing. Standing the "right to a fair hearing" enshrined in the ECHR, it is difficult to see how this measure can survive in its present form.

While no-one could deny that something needs to be done to tackle Scotland's alcohol problem it remains to be seen if this Bill is the answer.

For further information or advice in relation to the above, please contact:-

AUDREY FERRIE
Senior Associate and Head of Licensing
Tel +44 (0)141 567 8636
Email audrey.ferrie@mcgrigors.com