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Business Bulletin 1999-2011

Minutes of Proceedings 1999-2011

Journal of Parliamentary Proceedings Sessions 1 & 2

Committees Sessions 1, 2 & 3

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part 6 – disclosure

411. Part 6 of the Bill establishes a statutory framework for disclosure of evidence in criminal proceedings in Scotland.

Background

412. In November 2006, the then Justice Minister, Cathy Jamieson MSP, appointed Lord Coulsfield to review the law and practice of disclosure of evidence in the Scottish criminal justice system. This was prompted by a number of decisions of the Judicial Committee of the Privy Council and of the High Court which redefined and expanded the duty of disclosure, the most important being McLeod v HMA (No. 2) [1998] JC 67, Holland v HMA [2005] SC(PC) 3 and Sinclair v HMA [2005] SC(PC) 28.316

413. Lord Coulsfield’s final report was published in September 2007. Having consulted on Lord Coulsfield’s recommendations, the Scottish Government published a statement of its intended next steps, including a commitment to bring forward legislation and to develop a statutory Code of Practice.317

414. According to the Policy Memorandum the purpose of this Part of the Bill is to “provide certainty in statute as regards how the disclosure of evidence regime should operate”, in place of the existing common law system. In particular, the new regime provides—

  • “a continuing duty on the Crown to disclose material and relevant information for and against the accused to the defence;
  • a statutory definition of that duty and provision for how and when the duty is complied with;
  • a duty on the police and other agencies or organisations who investigate crimes and submit reports to the prosecutor to provide the prosecutor with schedules listing all the information which may be relevant to the case obtained during the course of the investigation; and a duty on the prosecutor to disclose to the defence in solemn cases a schedule listing all the information that may be relevant that is categorised as non-sensitive;
  • provision for defence statements;
  • provision for applications to the court for orders restricting disclosure. In other jurisdictions, these are sometimes referred to as Public Interest Immunity (PII) procedures, designed to allow material which falls within the definition of what requires to be disclosed to be withheld on public interest grounds;
  • a new offence of misuse of disclosed information; and
  • provision for a statutory code of practice to support the legislative provisions.”318

Fairness, certainty and clarity

415. The Law Society of Scotland was largely positive about the disclosure provisions—

“The Society’s position is that a full and fair system of disclosure to the accused is an essential element of a fair trial and without such a system there can be no guarantee of an accused person receiving a fair trial.”319

416. For the Solicitor General for Scotland, the key benefit of the Part 6 provisions was to provide certainty to those involved—

“The Bill gives us a comprehensive set of rules so that the police and the prosecutor know that if they comply with those rules, they will comply with their disclosure obligations, which will ensure a fair trial in accordance with article 6 of the European convention on human rights.”320

417. The Crown Office, similarly, described the Bill as providing “for the first time, a clear procedural and legal framework for disclosure within which the police, the Crown and the accused can operate with certainty.” This would be complemented by a code of practice which would—

“set out publicly the procedures to be adopted by investigators and prosecutors which might be thought to be less appropriate for primary legislation such as the conduct of lines of enquiry during an investigation, the detailed responsibilities of key roles in the investigation and prosecution and the consequences for completion of reports and witness statements”.321

418. The Committee was advised that work had already started in preparing a draft code of practice, and that a copy will be provided as soon as it is available.322

419. However, others were doubtful about the level of detail included in the primary legislation. The Judges of the High Court of Justiciary described the style and structure of the drafting of Part 6 as “often unnecessarily complicated and ‘user unfriendly’”, while the Sheriffs’ Association warned of “detailed, complicated and time-consuming rules about disclosure that will further delay trials”.323

420. Lord Coulsfield had similar doubts. For him, the key was “to state the fundamental duty of the prosecution clearly and in a simple and memorable form at the start of the relevant part of the statute”. Instead, he believed that “the provisions of the Bill are much too elaborate and diffuse and tend to confuse rather than clarify the statement of the fundamental duty.”324 He would prefer to see sections 85 to 90 replaced by one or possibly two fairly short and simple sections.325

421. The Solicitor General, however, argued that the Bill already contained a clear statement of principle in section 89(3) which requires the prosecutor to review all relevant information and disclose it to the accused where—

“(a) the information would materially weaken or undermine the prosecution case,

(b) the information would materially strengthen the accused’s case, or

(c) the information is likely to form part of the prosecution case.”

422. According to the Solicitor General—

“That is a statement of principle—it is our disclosure obligation. It takes into account the most up-to-date and authoritative jurisprudence on the matter from the Privy Council, and it is enshrined in the Bill.”326

Sections 86 to 88: Solemn cases: schedules of information

423. Sections 86 to 88 of the Bill create a duty on the police (and other agencies or organisations who investigate crimes and submit reports to the prosecutor) in solemn cases to provide the prosecutor with schedules listing all the information which may be relevant to the case obtained during the course of the investigation. The schedules need to distinguish between information that is “sensitive”, “highly sensitive” and “non-sensitive”, although only “sensitive” is defined in the Bill. If the prosecutor disagrees with the categorisation of any piece of information, he or she will be able to direct that the schedules are amended and re-submitted.327

424. Although Lord Coulsfield had recommended a practice, similar to that employed in England, of listing the material to be disclosed in various categories set out in schedules, he was sceptical about how this had been effected in the Bill—

“The Bill makes the provision of schedules, both by the police to the prosecutor and by the prosecutor to the accused, a statutory requirement. That was not my intention and it is, I think, a serious error. The use of schedules is only a method of carrying out the duty of disclosure. It is an inconvenient and cumbersome method. One should not exclude the possibility that, with experience, better methods may be devised. If any prescription is required, it should be done by a code of practice or by regulation: it is easy to amend a code of practice but much harder to amend a statute. There may even be cases in which it is inconvenient or harmful to use schedules even where adequate disclosure could be made in a different form. In England, the statute does not include any requirement for schedules.”328

425. The Judges of the High Court of Justiciary agreed, saying it was not appropriate or necessary to include in the Bill detailed provision about schedules of information, which would be better dealt with administratively—

“To attempt to address such practical, administrative arrangements by means of detailed provision in primary legislation risks creating an undesirable lack of flexibility and the possibility of raising objections and questions of a highly technical nature.”329

426. These points were acknowledged by the Scottish Law Officers. The Lord Advocate said “I certainly agree with the desire to make things as straightforward and simple as possible”, while the Solicitor General accepted that the schedules of evidence “could reasonably be taken out of the Bill and put into subordinate legislation or a code of practice”.330 However, he added—

“I am a great advocate of simplicity, but as I said, disclosure is a complex matter. When you look at the number of relevant provisions and sections in comparison with our disclosure manual from which we operate, they are not overly long or detailed and they give us a comprehensive set of rules or provisions. We know that if we comply with them, we will ensure a fair trial and comply with our disclosure obligations.”331

427. Chief Constable House, on behalf of the the Assocation of Chief Police Officers in Scotland, said that his main concern in relation to these provisions was the level of police resources that would be required. He cited his experience of the English and Welsh system where “disclosure was a massive drain on police resources” and “it was a monster, to be frank, and one from which England and Wales have stepped back significantly.”332

428. The Cabinet Secretary agreed to consider whether elements of the provisions could be dealt with in rules of court or in the code of practice, but expressed caution on the grounds that “the duty to disclose is a critical duty and if we were to remove too many provisions we would deprive [the] Parliament of its role in scrutinising the proposals”.333

429. A separate point raised by the Sheriffs’ Association concerned the need for a distinction between “sensitive” and “highly sensitive” information in section 86. The Sheriffs foresaw delays “created by information having to be categorised, the information having to be described, and with inevitable arguments between the prosecutor and the investigating authorities over the correct categorisation”.334

Committee conclusions

430. We support the general policy of clarifying the rules of disclosure, and accept that these provisions are motivated by good intentions. However, we agree with Lord Coulsfield that the way in which his recommendations have been given effect in the Bill is too complex and detailed, and risks losing sight of the underlying principle. We would prefer to see the basic duty of disclosure elevated to greater prominence.

431. The Committee invites the Scottish Government to review, in the light of Lord Coulsfield’s comments, where the line has been drawn between what is set out in the Bill (including provision about schedules of information in solemn cases) and what is to be included the proposed code of practice (or in guidance). We welcome the Crown Office’s commitment to provide a copy of the draft code, and look forward to being given sight of it in advance of Stage 2.

432. We also note the evidence by the Sheriffs’ Association questioning the need for a distinction between “sensitive” and “highly sensitive” information, particularly when the latter is not separately defined. It would be helpful if the Scottish Government could provide a fuller justification for why this distinction is considered necessary and how it is to be applied.

Sections 94-95: Defence statements

Background and evidence received

433. Under sections 94 and 95 of the Bill, the accused (or the accused person’s defence team) must (in solemn cases) or may (in summary cases) provide the prosecution with a “defence statement” setting out certain details of the planned defence. It is intended that this will assist the prosecution in determining what evidence must be disclosed to the accused.

434. However, there was significant scepticism amongst practitioners about how well the defence statement regime would work and whether it would add very much to the present position.335

435. Lord Coulsfield, in his report, said that the experience of English practitioners was that “in the majority of cases, defence statements are late, unspecific and unhelpful”, and that it would be difficult to make the system work better through more rigorous enforcement without “either causing delay or prejudicing a legitimate defence or both”. In his view, in Scotland the well-established rules for notification of special defences and the relatively new mechanisms for holding pre-trial hearings fulfilled most of the functions expected of defence statements. He was therefore not convinced that a general requirement for defence statements “would give any significant, additional benefit to justify the additional work and cost which would be generated”.336 He maintained this view in evidence to the Committee, saying that—

“Requiring the preparation of defence statements would have a cost in time and expense, and they could cause confusion and delay and add to complexity in the conduct of trials.”337

436. For the Law Society of Scotland, a key concern was about the requirement on the accused to lodge a defence statement at least fourteen days before the first diet and at least fourteen days before the preliminary hearing, given the requirements about what such a statement should include—

“14 days before a preliminary hearing or first diet in the sheriff court, we do not always know the facts that the prosecution will seek to establish. It is difficult to know how the defence will be able to deal with a requirement to set out ‘matters of fact on which the accused takes issue with the prosecution’. Furthermore—others have said this and I agree—the danger is that, if the accused has to set things out in the detail that seems to be envisaged, their right to silence will be undermined.”338

437. The Sheriffs’ Association were also concerned about the proposal to make defence statements compulsory in solemn procedure, rather than voluntary as Lord Coulsfield had envisaged. They argued that the timing requirements envisaged could lead to the accused being required to lodge a defence to an indictment before the prosecution has provided any information about the prosecution case, and that this “will no doubt be regarded as repugnant to our legal system” and, as well as being unnecessary, was “contrary to the principles of our law, the right to silence and article 6 of the European Convention of Human Rights”.339

438. Ian Duguid, for the Faculty of Advocates, was also sceptical, saying that defence statements “are a concept that is particular to the law of England and Wales and are required there because they do not have the procedures that we have”. In particular, the Bonomy reforms of 2004 had already put in place a range of procedures, such as a requirement for advance intimation of special defences—

“We have gone some way towards addressing the issues that defence statements were designed to address in England … so I am curious as to whether a defence statement will do anything over and above what we have, other than increase expenditure.”340

439. However, the Lord Advocate argued that recent statutory amendments and changes in practice in England and Wales – details of which were later provided in a supplementary submission by the Crown Office341 – meant that the experience with defence statements was now quite different from that encountered by Lord Coulsfield. Referring to the thousands of documents that can be involved in High Court cases, she argued—

“To understand what might be relevant or of interest to the defence, it is of considerable help—in establishing the rights of the accused to a fair trial under article 6 of the ECHR—to be able to anticipate in what the defence might be interested. It is not just about assisting the prosecution; it is also about assisting the accused. It’s not about prosecution by ambush or surprise – we now disclose all relevant information – but nor should it be about defence by ambush or surprise.”342

440. The Solicitor General referred to cases he had been involved in where he believed a defence statement would have assisted the prosecution to effectively discharge its duty of disclosure. He argued strongly in favour of making defence statements mandatory—

“A trial is a test of the prosecution evidence and the defence case, if the defence wants to put forward a case. One would want to identify issues in advance of the trial because that, in my view, makes for a much better trial. It means that it will not be simply a case of taking a scattergun approach to the evidence: there will be focus to assist the court and the jury, and there will be no excessive delays or long trials. A defence statement is a good thing: it should be mandatory rather than discretionary in order to achieve the purposes that I have articulated.”343

441. For John Logue of the Crown Office and Procurator Fiscal Service, the Bill’s provisions reflected an important point of principle, namely—

“that it is difficult to conceive of a reason why the defence would, at the stage of being ready to go to trial, be unable to advise anyone of what its case is. After all, as a result of the recent changes, the defence now has fair notice of the entirety of the Crown case to the extent that is required under the law, and the accused is the only person in the process who is able to say at that stage what the defence case potentially is.”344

Committee conclusions

442. This is another provision on which the Committee has not been able to reach an agreed and settled view. We understand the rationale presented by the Scottish Government, but we also recognise the concerns expressed by some witnesses. However, the Committee is not currently persuaded that there is merit in the proposal to make defence statements compulsory in solemn cases, as it appears that the timing of their production may risk jeopardising important principles of justice. Some further explanation of the Scottish Government’s thinking would therefore be appreciated, including on its reasons for departing from Lord Coulsfield’s recommendations on this issue.

Sections 102-106: Applications to court: orders restricting disclosure

Background

443. Under sections 102-106 the prosecutor may apply to the court for orders to withhold certain information from the accused on the grounds that the information is sensitive. This is sometimes referred to as “public interest immunity”. The three categories of order proposed – “non-disclosure orders”, “non-notification orders” and “exclusion orders” – are intended to give effect to recommendations made by Lord Coulsfield in his report.

444. A non-disclosure order allows the prosecutor to withhold from the accused an item or items of information specified in the order which would otherwise require to be disclosed. An exclusion order prohibits the accused from attending or making representations in proceedings relating to the application for a non-disclosure order, while a non-notification order prohibits notice being given to the accused of the making of the applications for non-notification, exclusion and non-disclosure orders and also the decisions of the court in relation to any of those applications.345 An exclusion order may be made with or without a non-notification order also being made, but if a non-notification order is made, an exclusion order must also be made.

Evidence received

445. Ian Duguid, for the Faculty of Advocates, recognised that there would be situations when information would have to be withheld in the public interest, and that a framework had to be provided for this situation. He questioned, however, whether the proposals were balanced, and whether there were enough safeguards for the withholding of information.346

446. Speaking for the Law Society of Scotland, Bill McVicar suggested that the provisions “might – unfortunately – complicate the system more than is necessary”, and that they adopted an English system that “would not fit terribly well with our procedures”.347

447. The Sheriffs’ Association expressed strong reservations about the provisions in the Bill—

“In a democratic society such provisions are likely to be regarded as disturbing. We anticipate time taken up with challenges under the European Convention of Human Rights.”348

448. The Association also questioned why one of the tests for granting a non-notification or exclusion order was lower than that required for a non-disclosure order—

“It is simply whether “it is not in the public interest that the nature of the information be disclosed”, instead of “likely to cause serious prejudice to the public interest”. We are not clear why the test is lower for non-notification and exclusion orders.”349

449. Lord Coulsfield argued in favour of setting out the detail in subordinate legislation—

“In my view, issues to do with orders, such as the procedure for making them, the terms of orders and what kind of orders can be made, should all properly be found in subordinate legislation, because one hopes that, with experience, it will be possible to simplify and improve the procedure, so it should be easy to change.”350

Committee conclusions

450. The Committee accepts the case made by the Scottish Government, following Lord Coulsfield, for having a statutory process to allow non-disclosure of information in certain circumstances. However, we also recognise the inherent difficulties in achieving this objective while continuing to secure adequate protection for the rights of the accused. We are also concerned about the amount of detail set out in these sections of the Bill, and agree with witnesses that some of this provision would be better dealt with in subordinate legislation (subject to appropriate Parliamentary control) to allow them to be refined and developed over time.

Section 107: Special counsel

Background and evidence received

451. Section 107 allows the court, when considering an application for a non-notification, exclusion or non-disclosure order, or a review or appeal in relation to such an order, to appoint “special counsel” if the court considers it necessary to ensure that the accused receives a fair trial.

452. Commenting on this, the Sheriffs’ Association said—

“We think that such an appointment may be inevitable for an application for a non-notification order, an exclusion order or a non-disclosure order where either of the first two has been granted. The task of special counsel will be difficult because he or she will not be familiar with the details of the defence case and because the accused is not to be made aware of the contents of these applications.”351

453. In their written submission, the Judges of the High Court of Justiciary noted that nothing is said in the Bill about the funding of special counsel.352

454. Bill McVicar, representing the Law Society of Scotland, questioned whether the proposed special counsel system – which he described as being about “hiding information from the defence” – was compatible with human rights.353

455. When asked about compatibility with ECHR, Lord Coulsfield drew to the attention of the Committee a House of Lords appeal case concerned with control orders under terrorism legislation, under which there is a procedure for the use of special counsel to consider information that is thought not to be suitable for public disclosure. He explained that a decision in that case was still awaited. He commented—

“If we are asking ourselves whether the proposed system would be compatible with ECHR, the response must be that the system as it has been operating in England has so far survived all the challenges that have been made to it, but one cannot say whether it will continue to do so.”354

456. The Lord Advocate acknowledged that the issue of special procedures and non-notification had been looked at by the House of Lords recently. She commented—

“I am satisfied that, so far as is possible, the Bill sets a framework that will be compatible with the ECHR as we understand it in the United Kingdom, and that much will depend on the facts of individual cases. It will ultimately be for judges to determine whether the provisions, as they operate in practice, can allow fair trials in that respect. That judicial role will be important.”355

457. On 10 June in Secretary of State for the Home Department v AF and others [2009] UKHL 28 on the use of secret evidence in control order hearings, nine Law Lords (including two Scottish judges, Lords Hope of Craighead and Rodger of Earlsferry) unanimously agreed that the procedure that resulted in the making of the control orders in relation to the three individuals concerned did not amount to a fair trial, and accordingly allowed their appeal.356 The Law Lords did not accept the argument that “special counsel” can second-guess the impact of non-disclosed material on the defence’s conduct of the trial in such a way as to allow the court to retain confidence that the accused can have a fair trial.

458. However, the Cabinet Secretary said that the House of Lords judgment “does not apply to the procedures that we operate in Scotland” because of the checks and balances that are built into the non-disclosure provisions.357 He added that—

“The fundamental differences between the circumstances of the AF case and the provisions of the Bill are that, in control order cases, the non-disclosed information is the incriminatory evidence used by the court in deciding whether to grant the order whereas, in our proposed scheme, it is only the exculpatory evidence which is not disclosed (and, even then, only where rigorous tests are met) and, therefore, the court has to entirely disregard information which is the subject of a non-disclosure order in reaching its verdict. As such, Special Counsel within the scheme proposed in Scotland for non-disclosure orders in criminal proceedings do provide an additional safeguard in ensuring that the accused’s rights are protected.”358

Committee conclusions

459. The Committee is satisfied that the provision for special counsel in this Bill do not fall foul of the human rights objections raised by the House of Lords in relation to control orders, and are appropriate in the context of a non-disclosure regime. However, we would be grateful for clarification about how special counsel would be paid for, and in particular whether any changes to legal aid regulations will be required.

Section 115: Acts of Adjournal

Background

460. Under this section, the High Court is empowered to make “such rules as it considers necessary or expedient for the purposes of, in consequence of, or for giving full effect to” Part 6 of the Bill. Any such rules would be in the form of “Acts of Adjournal” – a form of subordinate legislation made directly by the High Court and not subject to any Parliamentary procedure or control.

Subordinate Legislation Committee report

461. The Subordinate Legislation Committee (SLC), in its report on the Bill, questioned the width of the delegated power involved and even whether a new power was necessary in addition to the existing power of the High Court to make Acts of Adjournal under section 305 of the Criminal Procedure (Scotland) Act 1995. It concluded that “insufficient justification” had been given for a power in these terms, or for the decision not to limit its scope to “matters of criminal practice or procedure or other matters within the remit of the High Court”.359

Committee conclusion

462. The Committee notes the concerns of the Subordinate Legislation Committee, and invites the Scottish Government to provide a fuller justification of the scope of the proposed power, and indeed why it is considered necessary in addition to existing powers to make Acts of Adjournal.

Part 7 – mental disorder and unfitness for trial

Background

463. Part 7 of the Bill implements the recommendations made by the Scottish Law Commission in its 2004 Report on Insanity and Diminished Responsibility.360

464. The principal recommendation of the Commission’s report was that the common law test for insanity as a defence should be abolished in favour of a statutory special defence, provable on the balance of probabilities, that the accused lacks criminal responsibility by reason of mental disorder (defined to exclude psychopathic personality disorder). It also recommended a statutory basis for the plea of diminished responsibility, available only in cases of murder, which should, if successful, reduce any conviction to one of culpable homicide; and that the common law plea of insanity in bar of trial should be replaced by a statutory plea on the basis of “unfitness for trial”.

Evidence received

465. The Mental Welfare Commission for Scotland welcomed the introduction of the new statutory defence to replace the common law defence of insanity and the removal of outdated and inappropriate terminology. However, it questioned the exclusion of psychopathic personality disorder from the defence of mental disorder, pointing out that the Mental Health (Care and Treatment) (Scotland) Act 2003 defines “mental disorder” to include all forms of personality disorder.

466. The Commission also questioned the lack of reference to individuals with a learning disability or cognitive impairment, pointing out that their ability to understand and give informed consent to participation in community programmes may be limited and hence that they may be “set up to fail”.361

467. A further issue was that the proposed defence depends on whether the offender was able to “appreciate the nature or wrongfulness of the conduct”. For the Commission—

“a mental disorder may not just impair an individual’s ability to appreciate the wrongfulness of the conduct but may also impair their ability to control their behaviour even though they may appreciate that their actions are wrong.”

468. Very similar concerns were raised by the Law Society of Scotland and the Scottish Association for Mental Health (SAMH). SAMH also suggested that “abnormally aggressive or seriously irresponsible conduct” needed to be further defined, but other witnesses did not think that further definitions would necessarily help.362

469. The Law Society of Scotland, in explaining its concern about the terms of the “mental disorder” defence, suggested that it might not be available to “a person who kills his or her children while suffering from a depressive illness [and who] may be able to appreciate what he/she is doing and understand that it is wrong in the eyes of the law, but nonetheless be driven to commit the crime by his or her illness.” However, James Chalmers, from the University of Edinburgh, thought the Society had misunderstood the position and was wrongly assuming that the Bill relied on “the much criticised English position” according to which “no defence of insanity is available to a person who knows their actions to be legally wrong, but – due to mental disorder – does not appreciate that they are morally wrong”. Scots law, he said, already recognised a defence of insanity based on circumstances similar to those outlined by the Law Society, and the defence provided under the new section 51A would not change that, since it “encompasses a failure to appreciate either legal or moral wrongfulness”. He added that the Law Society’s arguments for a defence of “volitional insanity” had already been fully considered by the Scottish Law Commission in its report and rejected “for cogent reasons which have not been challenged”.363

470. However, where Mr Chalmers did see a problem was with subsection (4) of the new section 51A(4) which allows only the accused to advance the special defence of mental disorder. He gave various examples of situations in which there could be a dispute about whether an offender had a mental disorder or suffered instead from diminished responsibility and where, without the ability of the Crown also to advance the special defence, the court could find itself unable to reach the appropriate verdict.364

Committee conclusions

471. The Committee broadly supports this provision insofar as it implements the Scottish Law Commission’s recommendations. However, we are not yet confident that the proposed special defence of mental disorder has been appropriately defined, given the concerns raised in evidence and the differences of interpretation between Mr Chalmers and other witnesses about whether the special defence would be available to people who know their conduct is wrong, but are driven by their mental illness to do it anyway. We therefore invite the Scottish Government to consider carefully and respond to the points raised. We support the suggestion by James Chalmers that it should be open to the Crown as well as the accused to advance the special defence. We also invite the Scottish Government to comment on the issues raised by the Mental Welfare Commission relating to people with learning disability or cognitive impairment.

PART 8 – licensing under civic Government (Scotland) Act 1982

Introduction

472. Part 8 of the Bill—

“makes various changes to the general licensing provisions of the Civic Government (Scotland) Act 1982 and to its specific provisions on metal dealers, market operators, public entertainment, late hours catering, and taxis and private hire cars.”365

473. These changes are based on recommendations made by a Task Group set up to review the licensing provisions contained in the 1982 Act.366 The Task Group’s remit was to—

“re-examine the principles and mechanisms of licensing as they are set out in the 1982 Act and, having done so, review the existing provisions and any proposals for change submitted to the Executive.”

474. When the Task Group’s report was published in 2004, the then Scottish Executive stated that it was not in a position to bring forward the necessary legislative changes prior to the 2007 Scottish Parliament elections.367

475. According to the Policy Memorandum, the amendments to the 1982 Act taken forward in the Bill are “largely technical”, although they include some more substantive changes. Overall—

“The aim of the amendments is to make the 1982 Act licensing provisions fit for the 21st century in line with the Task Group report’s recommendations.”368

The 1982 Act and the Task Group recommendations

Evidence received

476. Aberdeenshire Council said that, rather than further amendments to the 1982 Act, it would prefer to see an overhaul of the Act as a whole.369 Midlothian Council, while generally welcoming the provisions, noted that no explanation had been given for why some of the recommendations made in the Task Group’s report had not been taken forward in the Bill.370

477. The Scottish Taxi Federation went further, suggesting that only “a few” of the Task Group’s recommendations were implemented by the Bill, and that “if the efforts of the Task Group are not to be lost and the 1982 Act properly updated, then much more needs to be included”.371

478. However, responding to these claims, the Cabinet Secretary said that all but two of the Task Group’s recommendations that required legislation were being implemented by the Bill, and that the aim was to improve an Act that had served Scotland well, rather than making change for its own sake.372

Committee conclusion

479. The Committee accepts the Cabinet Secretary’s explanation, and recognises that the Task Group recommendations provide a sound general basis for the provisions in this Part of the Bill.

Section 121: Conditions to which licences under 1982 Act are to be subject

Background and evidence received

480. The 1982 Act allows for the automatic and unconditional grant or renewal of a licence where the licensing authority has failed to reach a final decision on an application within a specified period.

481. Section 121 of the Bill removes the term “unconditionally” and instead allows for mandatory and standard conditions to be applied to any such licence issued by a licensing authority. Mandatory conditions will be determined by Scottish Ministers while standard conditions will be determined by licensing authorities.

482. The proposal was generally welcomed. North Ayrshire Council called it “a good proposal”373 and Aberdeenshire Council said—

“While normally all licences are processed and issued within 28 days, there are occasions where problems arise that make it difficult to issue a licence within the permitted six months. To be able to issue a licence by default with the same standard conditions that all other licences issued under the Act have makes the licence enforceable where there are problems. This provision is long overdue.”374

483. In order to have effect, a licensing authority will be required to publish any standard conditions determined by them. The Law Society of Scotland suggested that a transitional period should be set to allow local authorities “time to draft, consider, publish and determine standard conditions for all licence types.”375 The Cabinet Secretary for Justice said that he recognised the need for a transitional period and that it would be considered carefully as part of implementation.376

484. The Faculty of Advocates welcomed the intention to remove the term “unconditionally” from the 1982 Act, but described the introduction of mandatory licensing conditions as “a radical departure from the current approach which is to leave the attachment of specific conditions to licensing authorities.”377 In the Faculty’s view, mandatory conditions would not allow licensing authorities to take into account local circumstances and it said that no explanation had been given for this change.

485. Mr MacAskill, when questioned by the Committee on the potential inflexibility of mandatory conditions, said—

“We accept that the setting of mandatory conditions has the potential to limit local flexibility. Whenever they exercise the power, ministers will need to be aware of that. We are seeking an appropriate balance between matters that require to be dealt with uniformly and those that require to be dealt with on a much more localised basis.”378

486. George Burgess, for the Scottish Government, explained that the inclusion in the Bill of a power to set mandatory conditions for licences was seen as the easiest way of addressing the Task Group recommendation that all licence holders should be required to display or carry their licences. Given the variety of licences covered by the 1982 Act, he said it was considered preferable to create a power rather than “write directly into the 1982 Act a different type of condition for each type of licence”; but he added: “We do not have a long list up our sleeve of other mandatory conditions that we are looking to insert by way of the power.”379

Committee conclusion

487. The Committee is satisfied with the Scottish Government’s justification for seeking a power to set mandatory conditions, and accepts its explanation about the conditions it envisages determining.

Section 123: Licensing of metal dealers

Background and evidence received

488. The 1982 Act provides for a mandatory licensing scheme for all metal dealers. Section 123 of the Bill replaces this with an optional scheme by which it will be “open to local licensing authorities to determine whether or not licences are required in their areas.”380

489. Again, the Committee received evidence381 requesting transitional provisions in order to afford licensing authorities time to decide whether or not to retain a licensing requirement for metal dealers. Some witnesses questioned the need to relax the regime. Dumfries and Galloway Council said it was an “odd time”382 to introduce an optional scheme when the “theft of metal is regularly reported in the press.” Aberdeenshire Council shared this view, saying that—

“The price of metal is currently very high and many communities are experiencing random theft of metal. This activity should remain mandatory.”383

490. However, the Association of Chief Police Officers in Scotland (ACPOS) was content for the decision on whether or not to licence metal dealers to rest with local authorities, saying that—

“The theft of metal has been an issue in the past. Our local experience is that it has been curtailed to a large extent, probably due to the economic downturn.”384

Committee conclusions

491. The Committee notes the concerns raised by some witnesses about theft of metals and the implication that a mandatory system of licensing may have a role to play in tackling this problem. We recognise that tackling criminality is only one factor to be taken into account in deciding on an appropriate licensing regime, but we are also uncertain about the Scottish Government’s rationale for proposing moving to an optional system of licensing in this area. We therefore invite the Cabinet Secretary to provide a fuller justification of this aspect of its policy intention.

Section 124: Licensing of taxis and private hire cars

Background

492. The Task Group made over 20 recommendations in its report on the licensing of taxis and private hire cars, noting that—

“of all the licensing activities contained in the 1982 Act, this was the one that had over the years attracted the most criticism, particularly from the trade who had been pressing for a review for some time. In view of this, and given the number of people involved in the trade, it was not surprising that this was the activity which attracted most responses from our consultation.”385

493. According to the Policy Memorandum, the purpose of section 124 of the Bill is to—

“modernise the taxi and private hire car licensing regime within the Civic Government (Scotland) Act 1982 in line with the Task Group report’s recommendations.”386

Applications for taxi and private car licences

494. The 1982 Act requires applicants for taxi or private hire car licences to have held a driving licence for any continuous period of 12 months. Under the new proposals, all applicants for taxi and private hire licenses must have held a driving licence for 12 months immediately prior to the application.

495. The Policy Memorandum states that this new provision “clarifies the original intention of the policy and was widely supported during the consultation on the Task Group review.”387

496. Aberdeenshire Council strongly supported this proposed change in the interests of public safety, while North Ayrshire Council stated that it “clarifies a grey area of law”.388 Dumfries and Galloway Council generally supported the change but suggested that some discretion be granted to local authorities to allow an applicant’s individual circumstances to be taken into account – a view supported by the Law Society of Scotland, which gave the example of someone disqualified from driving on a “totting up” basis (i.e. where the disqualification is triggered by the most recent of a series of driving offences committed over a period of time). The Bill would prevent that person applying for a taxi licence until a year after the end of the disqualification period, something that both the Society and Glasgow City Council suggested would amount to a double penalty for the individual.389

497. Responding to these concerns, the Cabinet Secretary said that the purpose of section 124(2) “is to ensure that an applicant has a proven record of unblemished recent driving experience to the benefit of public safety and confidence”. He wanted to see “a uniform approach throughout all areas”, and on this basis did not support giving discretion to licensing authorities.

Fixing scales for taxi fares

498. Section 17 of the 1982 Act specifies how licensing authorities should fix the scales for taxi fares. The Bill updates these provisions to include a requirement to review and then fix scales within an 18-month period.

499. Glasgow City Council and the Law Society of Scotland both suggested that the 18-month deadline could prove difficult to meet, given the time sometimes required for consultation. The Scottish Taxi Federation believed that such reviews should be completed annually and suggested a method to make this possible—

“If a cost formula were agreed between trade representatives and the local authority, such a review would simply be a case of checking the figures against the previous figures and calculating any percentage increase which may apply.”390

500. According to the Federation, section 17 will be ineffective as there are no sanctions for local authorities should a review of fares be late. They suggested the section be amended to include a right of appeal by taxi operators against an authority’s failure to carry out a fares review within the prescribed timescale.

501. The Cabinet Secretary did not see why the 18-month timescale should be a problem, since most local authorities interpreted the existing legislation on a similar basis. He also did not think it was necessary for the Bill to provide sanctions against a licensing authority that fails to review fares within the set period. His experience was that “the taxi trade is not shy in coming forward if it thinks there are matters that are prejudicial to its financial wellbeing”, so there is “an inbuilt mechanism for local authority accountability”. Nevertheless, he was willing to consider a statutory sanction if it was thought necessary.391

Appeals in respect of taxi fares

502. Taxi operators can currently appeal against a licensing authority’s review of taxi scales. Section 124 of the Bill will amend the 1982 Act to widen this right of appeal to include representatives of taxi operators.

503. While the Scottish Taxi Federation supported this amendment,392 Glasgow City Council considered that the right to appeal decisions should only be extended to those who responded to the original consultation.393

504. However, the Scottish Government said it was appropriate to give all representative bodies a right of appeal, since these groups already require to be consulted by licensing authorities when they review taxi scales and then notified of the outcome.394

Publication and coming into effect of taxi fares

505. Section 124(5) requires licensing authorities, once they have fixed taxi fare scales, to publicise the scales in a newspaper circulating in the relevant area. The Law Society of Scotland and Glasgow City Council both commented on this provision, pointing out that newspaper advertisements are expensive and that it would be more consistent with the “modern approach” of the Licensing (Scotland) Act 2005 which allows advertising via a website.395 John Loudon from the Law Society of Scotland also pointed out that people can find information on a website at any time, whereas they will only see a newspaper advertisement if they happen to read the relevant edition.396

506. The Cabinet Secretary said the aim was simply to follow existing practice, which appeared to have worked well, with no specific concerns about cost having been raised. He noted the point about the use of websites, but said that making a change in this context “would have potential implications for other parts of the 1982 Act.”397

Other issues

507. The Committee also received evidence suggesting further provisions in relation to the licensing of taxis and private hire cars. For example, the Scottish Taxi Federation suggested that local authorities’ power to limit the number of taxi licences should be extended to cover private hire licences.398

508. While not considering this an issue to be considered in the context of the Bill, the Cabinet Secretary for Justice added—

“we do anticipate that we may need to look more widely at the existing powers once we have a clearer understanding of where the current consultation on vehicle accessibility is proceeding.”399

509. Both the City of Edinburgh Council and West Lothian Council also proposed additional restrictions for non-UK residents who applied for taxi and private hire car driver licences. According to the City of Edinburgh Council—

“Taxis and private hire cars often carry children and vulnerable adults, mostly without incident. However, licensing authorities and the police wish to ensure that all drivers are subject to rigorous background and criminal checks. These checks cannot be carried out effectively on persons who reside outwith the United Kingdom.”400

510. The Scottish Government said that it had received no evidence of such concerns from either licensing authorities or the police.401

Committee conclusions

511. The Committee supports the proposal to require all applicants for taxi licences to have held a driving licence for the year immediately prior to their applications. We agree with the Cabinet Secretary that discretion for licensing authorities would not be appropriate in this context.

512. We also agree with the Cabinet Secretary that provision for sanctions against authorities that fail to review fares within the set period is unnecessary, given existing mechanisms to enable authorities to be held accountable.

513. While we would not wish to undermine the distinction between taxis that are entitled to ply for trade and private hire cars that are not, we accept that there may be a case for allowing local authorities to limit the number of private hire cars operating in their areas, just as they can limit the number of taxis. However, we agree that this is not a matter for the current Bill, not least because of the shortage of evidence we have taken on this issue and the fact that the Task Group did not address the point in its report.

514. Finally, we are surprised that the Scottish Government is unaware of concerns about the ability of licensing authorities to carry out appropriate checks on non-UK residents applying for a taxi or private hire car driver's licence. Members of the Committee have, individually, heard such concerns expressed, and we would encourage the Scottish Government to adopt a more active approach to establishing whether this anecdotal impression is borne out by the evidence.

Sections 125 and 126: Licensing of market operators and licensing of public entertainment

Background

515. Section 125 of the Bill removes the exemption from holding a market operators’ licence currently given to non-commercial organisations. The new provisions will bring charitable, youth, religious, community, political and other organisations within the scope of the new provisions and “licensing authorities [will] have discretion as to whether to charge reduced or no fees to such organisations.”402 Licensing authorities will be able to regulate car boot sale organisers as well as other types of market operators.

516. Section 126 of the Bill removes the existing exemption in section 41 of the 1982 Act from the need to hold a public entertainment licence if an event is free to enter. This will allow licensing authorities to control large-scale free events but will give them discretion whether to require licences for certain events such as school fetes or gala days.403

Evidence received

517. East Lothian Council supported the removal of both statutory exemptions, as it believed that events held outwith the licensing framework could “easily be to the detriment of the public with regard to safety and lack of measures for public protection.”404

518. Aberdeenshire Council took a similar view, saying the removal of the exemption was “long overdue”—

“Many large scale events regularly get round licensing requirements by being ‘free’. This often means that essential health and safety checks are not carried out and the applicants do not have the proper measures in place to ensure the safety of the events. Likewise, the ability to be able to exclude small events is welcomed.”405

519. Dumfries and Galloway Council was concerned that sections 125 and 126, by removing the statutory exemptions for non-commercial organisations, will take up local authorities’ “valuable time and resources” and “will impact on local community groups”. They argued that authorities would have to publicise the new arrangements and process additional applications, and that (given their obligation to secure cost recovery) it would unfairly increase fees for other applicants if they exercised their discretion to waive or reduce the fees for non-commercial organisations.406

520. Other written submissions407 questioned whether the potential costs of obtaining a market operators’ licence or a public entertainment licence would be prohibitive for not-for-profit organisations. Midlothian Council said that volunteers who organise events such as gala days and fetes need to be supported rather than potentially have obstacles placed in their path.408 Both the Law Society of Scotland and ACPOS questioned whether there was sufficient evidence of a current problem to justify this change in the law – “what is the mischief that we are trying to resolve?”409

521. Frank Jensen, speaking for Fife Council, pointed out that local authorities currently only had discretion either to license all market operators in their area, or none. He suggested that—

“It would be highly desirable if there were explicit provision that gave local authorities discretion to determine which categories of market in their area they wished to license, control or regulate … through assessment of perceived risk, numbers and so on. Such explicit provision would allow local authorities to decide whether to license small-scale markets, or car-boot sales by church groups, and so on.”410

522. Alan McCreadie, Deputy Director Law Reform of the Law Society of Scotland, questioned the statements in the Policy Memorandum and the Explanatory Notes that local authorities already have discretion either to charge reduced or no fees to non-commercial organisations or exempt them from licensing requirements.411 He did not see how such discretion was provided for by the Bill, and therefore concluded that the reference must be to authorities’ existing discretion under section 9 of the 1982 Act (according to which the licensing of market operators and public entertainment applies only where an authority has so resolved). He described it as a “curious situation” in which authorities, by invoking section 9, would be able to “circumvent” the intention of these sections of the Bill.412

523. In oral evidence, the Cabinet Secretary insisted that the removal of exemptions would not prevent local authorities from creating their own exemptions for some or all of the organisations presently entitled to exemptions. He said it was appropriate that these decisions should be made by locally-accountable politicians rather than centrally, by Scottish Ministers.413 In a supplementary submission, the Cabinet Secretary further explained the basis for his view, asserting that—

“If section 125 is approved and a licensing authority did subsequently decide to licence non-commercial market operator activities, the 1982 Act affords licensing authorities full flexibility in deciding whether to charge reduced or no fees to non-commercial organisations. For example, a licensing authority could decide to license non-commercial market operators but charge no fees to applicants.”414

Licensing of lap dancing clubs

524. The Committee understands that local authorities regulate lap dancing clubs primarily through the alcohol licensing system (although such clubs could also be regulated under section 41 of the 1982 Act which requires a “public entertainment licence” in order to operate legally). Both the Trafficking Awareness Raising Alliance and Glasgow City Council said that the Bill “provides a valuable opportunity to reassess the current licensing of lap dancing venues”.415 The Alliance added that it would “strongly welcome” any move to re-categorise such clubs as sex shops for licensing purposes, in order to “give local authorities greater powers to apply conditions and restrictions on such clubs.”416

525. However, the Cabinet Secretary said that the Licensing (Scotland) Act 2005 “enables local authorities to take what action is required in this area”, although he did not give details of the existing powers in question.417

Committee conclusions

526. The Committee shares concerns raised in evidence that the potential costs for non-commercial groups to obtain a market operator’s or public entertainment licence might prove prohibitive. We recognise that the Bill gives local authorities discretion over whether to charge for such licenses, but we can also understand concerns that where the power to charge exists, it may in practice be used.

527. The Committee also recognises the public safety concerns surrounding large-scale events that are free to enter, and hence currently do not require a public entertainment licence. We believe that it is important that community and charitable groups are able to hold small-scale events easily while also ensuring that licensing authorities have the power to control these large-scale events. The Committee therefore invites the Scottish Government to consider the alternative of basing the requirement for a public entertainment licence on the scale of the event (recognising that this will require authorities that choose to impose a licensing regime also to exercise discretion in relation to the size of events that would then require to be licensed).

528. In relation to lap-dancing clubs, the Committee is strongly in favour of local authorities having sufficient powers under licensing legislation to be able to control the numbers of such venues in their area – including to the extent of setting zero as the appropriate number of such venues. We would be grateful for an assessment by the Scottish Government of whether it considers those powers to be sufficient for this purpose. Subject to that, we are not convinced that re-categorising these venues for licensing purposes would necessarily be beneficial.

Section 127: Licensing of late night catering

Background

529. The 1982 Act provides that premises providing meals and refreshments between 11 pm and 5 am are to be licensed if licensing authorities so decide.

530. Section 127 of the Bill replaces “meals and refreshments” with “food”, bringing late-night grocers and 24-hour stores within the scope of the provisions, although licensing authorities will still have the power to determine which types of premises require a licence. This change implements a recommendation of the Task Group, which believed that—

“the potential for large numbers of people leaving pubs, night clubs etc. late at night to cause a disturbance … exists regardless of whether the food or drink being sold has been cooked or pre-prepared in any way”.418

Evidence received

531. South Lanarkshire and East Lothian Councils supported this provision on the grounds that it removes current uncertainty about whether certain types of premises, such as those selling kebabs, require to be licensed.419

532. ACPOS fully supported the provision as a useful tool in licensing premises which can be a source of disorder late at night, although it also pointed out that there could be “fairly significant” resource implications for the police.420

533. However, the Law Society of Scotland said that—

“Section 42 of the 1982 Act was enacted in order to regulate the sale of meals or refreshments from take-away establishments located in the main in city centres and in residential areas with potential for disturbance. The Society would therefore question why late night grocers, 24-hour stores and motorway service stations etc. should be brought within the scope of these provisions and questions whether the regulation and cost is proportionate to the perceived benefit.”421

534. In his response to the Committee, the Cabinet Secretary for Justice reiterated that section 127 of the Bill takes forward a Task Group recommendation and believed that it was appropriate to give licensing authorities the discretion to licence such premises “as they are best placed to decide what subset of food and drink retailers need to be licensed.”422

Committee conclusion

535. The Committee considers that there is a case for broadening the definition for late night catering but supports local authorities retaining discretion in determining which types of premises require a licence.

Section 128: Applications for licences

536. Section 128 of the Bill makes various changes to Schedules 1 and 2 to the 1982 Act, including some of the time-limits that apply to applications for and the issuing of licences.

537. South Lanarkshire Council pointed out that some of these changes would have both advantages and disadvantages – for example, extending from 21 to 28 days the period within which people may object to licence applications “will cause delay for people wishing to obtain a licence although it may make it easier for partner organisations to submit timeous reports”423 However, Dumfries and Galloway argued that increasing the length of the objection period is unnecessary as most applications are unopposed and there is already provision allowing authorities to consider objections outwith the time-limit.424

538. The Cabinet Secretary for Justice accepted that the existing time period of 21 days for objections is “usually sufficient”. However, he pointed out that the police, for example, often have much less than 21 days to object once they have received notice of the application, and that lengthening the objection period would “ease such problems considerably.”425

Statement of reasons time limit

539. Under Schedule 1 (paragraph 17) to the 1982 Act, a person applying for a licence has 28 days from the date of the decision to request a written statement of reasons from the licensing authority. Section 128 of the Bill reduces the time which an applicant has to request a statement of reasons from 28 to 21 days.

540. Dumfries and Galloway Council supported this change as being—

“of advantage to the authority especially in relation to issuing of a licence where an objection has been lodged. It is presently unfortunate that the period during which a statement of reasons can be requested equates with the period for lodging an appeal.”426

Renewal applications after the expiry of a licence

541. Section 128 will allow licensing authorities, “on good cause being shown”427, to treat renewal applications received up to 28 days after the expiry of the previous licence as having been made on time, rather than treating them as new applications. While this amendment was welcomed by the Faculty of Advocates,428 the Committee received a number of critical comments.

542. Dumfries and Galloway Council pointed out that, since a decision on any such late application would require the exercise of discretion, it would have to be taken by councillors rather than delegated to staff; but that the timescales demanded an “almost immediate response” if the advantage of the provision was not to be lost. 429

543. Midlothian Council regarded the proposal as “a backward step” that was likely to lead to confusion and make enforcement more difficult.430 Glasgow City Council also cautioned against the change, saying it was “very concerning from a regulatory perspective” as, presumably in an attempt to protect licence-holders from the consequences of forgetting to renew, it risked undermining the importance of expiry dates. It also questioned what was meant by “good cause shown” and whether a hearing would be required to decide.431

544. The Law Society of Scotland expressed similar concerns.432 John Loudon, convener of the Society’s licensing law sub-committee, said he could—

“see the logic and the fairness of having a bit of leeway. However, what happens if, for example, an offence occurs or someone applies for an extra taxi during the 28-day period?”433

545. In a supplementary submission, the Society suggested that a shorter period of leeway, perhaps seven days, would be better than the 28 days proposed, although it also felt that the leeway provision was unnecessary. In its view, if the provision is to remain, a licensing authority should convene a hearing to determine whether there had been cause shown for a late renewal.434

546. According to the Cabinet Secretary—

“If the licensing authority allows a late renewal application, trading will be legal, in the same way that it will be when the renewal application is made on time. If there has been no renewal application, or if the licensing authority does not recognise good cause for a late application, offences concerning trading without a licence will apply as normal. … Section 128 allows the licensing authority to recognise honest mistakes and to allow a licence holder to continue to trade, even if the renewal application is made late.”435

Applicants’ personal information

547. The 1982 Act requires people applying for licences to provide their address. Section 128 of the Bill will additionally require them to provide their date and place of birth.

548. South Lanarkshire Council welcomed the new provision and said that it is a practice which they have already adopted. Punch Taverns had no objection to this information being provided to licensing boards, the police and other statutory bodies but said that “this information must not be available in the public domain.”436

549. The Cabinet Secretary for Justice said that, while applicants for licences would continue to be required publicly to display notices containing certain information, this did not include the additional information being required by the Bill (i.e. date and place of birth). He would expect local authorities only to use this additional information to assist the relevant authorities and not to publish it.437

Committee conclusion

550. The Committee recognises that these amendments are based on the Task Group’s recommendations and considers them as sensible proposals.

part 9 – Alcohol licensing

Introduction

551. The provisions in this Part of the Bill make changes to the Licensing (Scotland) Act 2005 in order to—

“reduce costs, shorten process times, remove unintended barriers and close loopholes, while ensuring Licensing Boards receive sufficient information on which to base their decisions concerning licences to sell alcohol.”438

552. The 2005 Act came fully into force on 1 September 2009, replacing the Licensing (Scotland) Act 1976 in its entirety. There was a transitional period, beginning in February 2008, aimed at giving existing licence holders and licensing boards sufficient time and information to enable them to adapt to the new system, with Ministers putting in place by subordinate legislation (using powers under the 2005 Act) some of the legislative changes proposed in the Bill.

553. Despite this, there were widespread reports in the immediate run-up to the 1September date about problems relating to the new regime, with many councils reported to be late in issuing many of the new personal licences applied for. In June, the Law Society of Scotland outlined the extent of the problems being encountered by licencees and trade bodies, and suggested an extension to the 1September deadline for processing applications to enable those who had put in applications in good time to continue trading lawfully beyond the deadline.439

554. Responding to these and similar concerns, the Cabinet Secretary made further use of the “transitional provisions” power in the 2005 Act to allow a personal licence to be deemed to be in effect in relation to a premises manager from 1 September 2009 provided an application for personal licence for that manager had been made by 31 August. Licensing boards must process all such personal licences by 1 November 2009.440

Sections 129 and 140

Background

555. Section 129 of the Bill is intended—

“to require Licensing Boards to actively consider the detrimental effect of off-sales purchases of alcohol to people under the age of 21 within their area, or part of their area, and to Licensing Boards with a power to impose licensing conditions restricting off-sales of alcohol to people under the age of 21.”441

556. Section 140 enables Scottish Ministers to impose a “social responsibility levy” for alcohol retailers and certain licence holders “to help offset the costs of dealing with the adverse impact of these businesses or their customers”.442

557. On 24 March 2009, following the introduction of the Bill but before the Committee had started its oral evidence-taking, Bruce Crawford, the Minister for Parliamentary Business, advised the Committee that the Scottish Government intended to introduce a new health bill to take forward a range of alcohol measures including minimum pricing, restrictions on the sale of alcohol to persons under 21 and a social responsibility levy. As a consequence, the Scottish Government would be lodging amendments to remove sections 129 and 140 of the Bill at Stage 2. In light of this announcement, the Justice Committee decided not to consider further these sections of the Bill.443

Committee conclusion

558. The Committee welcomes the Scottish Government’s commitment to remove these sections of the Bill at Stage 2.

Wider issues relating to the 2005 Act

559. As the Committee’s consideration of the Bill overlapped with the period immediately preceding full commencement of the 2005 Act, it was perhaps not surprising that some of those who commented on the Bill also offered comments on the commencement process as well.

Licence fees

560. The submission from the Scottish Licensed Trade Association (SLTA) concentrated on the fees set by licensing authorities to cover the costs of the new licensing system introduced by the 2005 Act. The SLTA said it was “absolutely absurd” that the major supermarkets – which accounted for 73% of off-sales alcohol purchases – would pay fees that were equivalent to “only 7.5% of the total running costs for the transitional period”. In the SLTA’s view, the supermarkets should “make a far greater contribution to the running of the new licensing regime”. It also argued that the fees set by licensing boards “will lead to inconsistency and confusion throughout the country” and the new system was “a money making exercise for Local Councils who we are sure will find some way of justifying the fees set.” The SLTA was particularly concerned that the fee structure proposed unfairly burdened the on-trade and that small, independent pubs were being targeted disproportionately.444

561. John Loudon from the Law Society of Scotland was asked how an appropriate balance should be struck between reflecting in the fee structure the volumes of sales between different outlets, while at the same time equating fees to the administrative costs of processing applications (on the principle of full cost recovery). He acknowledged that—

“With the judgment of Solomon. It is very difficult to strike the balance. You will never get it right, because whatever you plump for, there will always be people who are caught fairly – or unfairly. … I appreciate what the SLTA is saying. I am glad that I am not the one who has to make the decision on the fees, because it is not easy.”445

562. The Cabinet Secretary for Justice, while stating that the Parliament had already agreed that the licensing regime must be self-financing, wrote—

“Fees are set by the local authorities within capped bands and those bands ensure a small corner shop pays less than a large supermarket. This is unlike the current arrangements where everybody pays the same. It is easy to say the costs should be loaded onto the biggest retailers but we believe the system has to be fair to everyone, including the council tax payer. The fees are charged for the cost of processing the application (a position that will be reinforced by the forthcoming EU Services Directive). Any Board which collects an excess is expected to reduce the coming year's annual fee.”

563. The Cabinet Secretary added that the Accounts Commission had been asked to consider these issues and that the Scottish Government will consider its recommendations.446

564. The Committee acknowledges that concerns raised on the structure of alcohol licence fees, as defined in the 2005 Act, are outwith the scope of the current Bill. However, the Committee is of the view that there are some inequalities in the present system, including the difference in fees paid by different sized outlets, on-sales and off-sales premises and discrepancies across licensing boards. The Committee therefore welcomes the Scottish Government’s decision to ask the Accounts Commission to consider these issues and would encourage the Commission to look in particular at the cost implications for smaller outlets in rural areas. The Committee looks forward to receiving the Scottish Government’s response to the Commission’s recommendations in due course.

Appeals procedure

565. The Committee received a number of representations about the appeal procedures introduced by the 2005 Act, which replaced a system of appeal by summary application with a system of application by way of stated case. The City of Edinburgh Licensing Board considered the new system “cumbersome” and suggested that “thought should be given to reverting to the arrangements for summary appeals under the Licensing (Scotland) Act 1976.”447 Fife Licensing Board described the stated case appeals process as “time consuming” as they “deal in facts and while in liquor licensing cases there are indeed findings in fact by the Board, a considerable amount of what they do is founded on possibilities and probabilities.”448

566. John Loudon from the Law Society of Scotland said that there were widespread concerns in the profession about the stated case appeals procedure—

“We have the rare situation that almost every lawyer – if not every lawyer – whom I have met agrees that the new appeal procedures are cumbersome, expensive and not working in practice. That is what the private sector, the public sector and sheriffs have said.”449

567. Mairi Millar, Senior Solicitor and Assistant Clerk to the City of Glasgow Licensing Board, agreed, saying that—

“the stated case procedure does not work for licensing appeals and a straightforward return to the summary application is welcomed by all.”450

568. In his evidence, the Cabinet Secretary advised that the concerns had been recognised and that the appropriate amendments would be lodged at Stage 2.

569. The Committee welcomes the Cabinet Secretary’s commitment to lodge amendments at Stage 2 to reinstate the summary appeals procedure.

Provisional premises licenses and site-only application procedure

570. A further area of criticism of the 2005 Act focused on the procedures under section 45 for obtaining a new provisional premises licence, and the lack of a “site-only application” process like that under section 26(2) of the Licensing (Scotland) Act 1976. Under the 1976 Act, according to the Law Society of Scotland, “an applicant could make an application to the board having obtained only planning permission”, whereas under the 2005 Act, “applicants require to incur the expense of an operating plan, a layout plan and all statutory consents before the Board can consider the application for premises licence.” Giving oral evidence for the Society, John Loudon acknowledged that “the mischief under the 1976 Act was that the board had no control over the detail once someone got to the affirmation stage”, but that there was nevertheless “a desperate need” for a similar procedure under the 2005 Act. He gave the example of a major hotel project that was not going ahead because of the cost involved in preparing the detailed plans required for an application, saying “that represents the loss of a major inward investment to Scotland, which is crackers”.451

571. Mr Loudon also highlighted the two-year period within which a provisional premises licence under the 2005 Act was valid:

“A project of any size will take longer than two years. If the project is not completed within two years and the board does not grant an extension, the developer might have spent heaven knows what and still have no licence. Developers are simply not going to do that. Bankers or financiers will not lend someone the money to do that.”452

572. In his view, increasing the period to five years would be sensible, especially for bigger projects.

573. The Scottish Beer and Pub Association (SBPA) was also critical of the changes made to site-only applications in the 2005 Act, describing the new process as “time consuming, complex and very expensive”. The SBPA acknowledged that once the provisional premises licence is granted, the applicant has the ability to make subsequent changes to the premises “but that is process akin to a new licence application and may easily take another three to six months in addition to the time already spent in applying for planning and licensing.” The Association also said that the two year maximum length of the provisional licence was “completely unrealistic for any major development.” The Scottish Late Night Operators Assocation echoed these concerns, arguing that the costs of the 2005 Act application process were deterring much-needed investment and development.453

574. The Committee shares the concerns raised in evidence about the procedures for obtaining a provisional premises licence under section 45 of the 2005 Act, and believes that there is a case for modifying these procedures within the current Bill. We therefore invite the Scottish Government to consider bringing forward suitable amendments at Stage 2. These amendments might re-introduce something similar to the site-only application procedure under the 1976 Act while also extending the current two-year time limit for provisional licences.

Licence transfers

575. The Law Society of Scotland highlighted a potential difficulty with the 2005 Act regarding transferring licences to court-appointed administrators. The Law Society wrote—

“In terms of the 1976 Act [Licensing (Scotland) Act 1976], there was no requirement for the licence to be transferred. The position now is that the administrator would be required to become the premises licence holder in his own right as opposed to as an agent of the insolvent company (and apply within 28 days of their appointment) and may be reluctant to do so.”454

576. Asked to comment on this, the Cabinet Secretary said he was unaware of the details, but was prepared to consider it further.

577. The Committee welcomes the Cabinet Secretary’s willingness to address this potential difficulty and trusts that an appropriate solution can be found.

Section 130: Premises licence applications: notification requirements

Background and evidence received

578. Under the 2005 Act a licensing board, when notifying a required list of interested parties, must provide a copy of the application along with the notification. Section 130 of the Bill amends this requirement so that licensing boards must provide copies only to the appropriate chief constable, and may provide copies to “any other person”. According to the Policy Memorandum, this “does not prevent the application being available for public inspection but reduces the cost and burden of notification.”455

579. This change was generally welcomed.456 However, the City of Glasgow Licensing Board457 considered that it should also be a requirement to provide a copy of the application to the relevant fire authority, while the City of Edinburgh Licensing Board458 suggested extending the requirement to include Licensing Standard Officers.

580. Fife Licensing Board suggested making it clear that the requirement to provide a “copy” of the application was understood to include electronic transfer of the information contained in an application forms an not necessarily the form itself.459 North Ayrshire Council pointed out that it may be difficult for some persons who have received a notice of an application to view the application if they live some distance from a council office.460

581. Doubts were also expressed about the value of providing copies of applications to “any other person”, suggesting this could lead to uncertainty over what is being proposed and therefore generate a large number of objections. The City of Edinburgh Licensing Board suggested that any notice of an application sent to interested parties should include a broad outline of the application, while the City of Glasgow Licensing Board asked whether a standard form of notification would be developed.

582. During oral evidence, Mairi Millar of the City of Glasgow Licensing Board, said—

“A balance must be struck. Given the length of such documents, it would be overburdensome for boards to have to provide copies of the application form, the operating plan and the layout plan for neighbourhood notification and various other consultations. ... My experience throughout the transition period for the 2005 Act coming fully into force is that people who have received letters of notification have had no idea as to what was proposed, because of the lack of information that I have described. In all honesty, I think that even providing them with a copy of the application form, operating plan and layout plan would take them no further. I find it difficult to understand what is proposed in applications, because the generic operating plan has little or no information about what will happen on the premises.”461

Committee conclusions

583. The Committee believes that a balance must be struck between the cost and burdens of notification and providing appropriate information. The Committee therefore recommends that the minimum notification required should consist of a summary of what is being proposed along with information on how to view the application in full.

Section 131: Premises licence applications: modification of layout plans

Background and evidence received

584. Section 131 enables a licensing board to propose a modification to the layout plan provided with an application for a premises licence if that modification would enable it to accept an application that would otherwise be refused.

585. While this was welcomed by some local authorities462, the City of Glasgow Licensing Board and the Law Society of Scotland both highlighted potential difficulties in practice and suggested that the proposal be clarified. The City of Glasgow Licensing Board noted that a modified application would not be able to be granted “there and then”463 as any such amended plan would require further consultation with other interested parties such as building control officers and the fire authority.

586. The Law Society also commented on the potential for the licensing board to refuse “applications accompanied by layout plans which had received the appropriate statutory consents.”464 Alan McCreadie of the Law Society of Scotland expanded—

“For want of a better phrase, we would end up with a catch-22 situation. Once the technical consents have been given, if the board is not happy with something, which is then fixed—if the applicant is happy to do so—the premises might then no longer meet the technical consents.”465

587. The Scottish Beer and Pub Association (SBPA) and Punch Taverns were both opposed to the provision. The SPBA stated—

“We do not believe this is proportionate and we are concerned the clause could lead if passed to Licensing Boards effectively having the power to ‘micro manage’ the actual operation of a licensed premises, with significant likely cost and other implications such as planning, listed building consent and building warrant requirements.”466

588. SBPA Chief Executive Patrick Browne expanded on the point in oral evidence—

“We have no issue with an applicant and a board mutually agreeing that a course of action is appropriate for an application, with a consequent change to a layout plan. … Our concern is that if boards are given the power to make changes, they might try in some cases to do so without agreement and leave it for the applicant to seek a remedy.”467

589. Paul Smith, Vice-Chairman of the Scottish Late Night Operators Association, added—

“I am worried that licensing boards, which sometimes have only five or 10 minutes to decide on an application, could suggest a change that might seem right to them but which would destroy a building's layout and design. I am greatly concerned that if an applicant were presented with a fait accompli – we should remember that the decision whether to grant the licence on the day might be critical for the applicant to secure options on buildings or funding – they might be forced to accept it.” 468

590. But Mairi Millar from the City of Glasgow Licensing Board said she was not aware of her Board ever intervening on “cosmetic” grounds—

“Any attempts to modify the layout or operating plan have been the result of concerns raised by building control officers or licensing standards officers”.469

591. Councillor Thomas from the City of Edinburgh Licensing Board agreed, saying that her board “would change plans only if officials reckoned that we needed to do so.”470

592. According to the Cabinet Secretary—

“The provision was included following a request from licensing boards, which saw it as being helpful, rather than something that would stifle businesses – it should enable applications to be progressed, rather than rejected.”471

593. However, he said that he was more than happy to discuss the issue again with the trade.

Committee conclusions

594. While acknowledging the concerns raised in evidence about giving licensing boards the power to suggest modifications to layout plans, the Committee is not convinced that this would be a problem in practice. The Committee nevertheless welcomes the Cabinet Secretary’s commitment to discuss the matter further with the licensed trade.

Section 132: Premises licence applications: antisocial behaviour reports

Background

595. The 2005 Act requires chief constables to provide an antisocial behaviour report to the licensing board within 21 days for every application. The report is required to describe “all cases of antisocial behaviour identified within the relevant period by constables as having taken place on, or in the vicinity of, the premises, and all complaints or other representations made within the relevant period to constables concerning antisocial behaviour on, or in the vicinity of, the premises.”472

596. Section 132 of the Bill amends the 2005 Act to require that chief constables only have to provide such a report if requested by the licensing board, although they may also choose to provide one. According to the Policy Memorandum, it had become clear, when considering the implementation of the 2005 Act, that the existing procedure was “unnecessarily onerous and bureaucratic.”473 Scottish Ministers used secondary legislation to introduce a similar provision for the duration of the transitional period prior to the implementation of the 2005 Act.

Evidence received

597. This proposal has been welcomed by some respondents, such as the SBPA and Punch Taverns. North Lanarkshire Council also supported the proposal—

“Allowing the Chief Constable if he sees fit to produce such reports or the Board at any time prior to determining applications to request such reports from the Chief Constable will avoid any unnecessary work being undertaken regarding the preparation of such reports.”474

598. ACPOS, although welcoming the provision, was concerned about the usefulness of the reports because incidents of antisocial behaviour cannot always be directly attributed to individual premises. Assistant Chief Constable Barker explained—

“The provisions that were put in place during transition have been helpful. The amount of work that would be involved in producing an antisocial behaviour report for every premises is considerable. … Where there are clusters of licensed premises in a town or city centre, it would be difficult in a general report to attribute antisocial behaviour to particular premises, but we can say that a group of premises has caused concern.”475

599. The Committee received evidence questioning whether there was any merit in retaining this provision. For example, the City of Glasgow Licensing Board stated that, in relation to antisocial behaviour reports, “their content adds no value to a Board’s consideration of an application.”476

600. Similarly, Mairi Millar of the City of Glasgow Licensing Board, was concerned that antisocial behaviour reports offered “no tie-in with the applicant premises”. She added—

“I would be reluctant to advise a board that it could refuse an application based on an antisocial behaviour report, because that report will display no evidence of culpability on the part of the applicant.”477

601. That view was supported by Fife Council, whose Legal Team Leader Frank Jensen said—

“So far, the antisocial behaviour reports that our board has viewed have been of very limited value, essentially because of that point about culpability. The reports do not contain a great deal of information that can be used, although they might paint a picture of the area. The information in antisocial behaviour reports might be used more beneficially in larger areas such as town centres, where the details could be reported to licensing forums, which can make general recommendations to the licensing board on terminal hours and other issues. However, that option is available already.”478

602. North Ayrshire Council said that antisocial behaviour reports, as presently prepared, contain fundamental flaws and that much more information requires to be given to the Board.479 This was echoed by the City of Edinburgh Licensing Board who emphasised “the need for consideration of the type of report that would be of most value.”480

603. The Cabinet Secretary for Justice said that Scottish Ministers supported the view taken by police and that the Bill seeks to—

“strike the appropriate balance between the needs and wants of our communities, the requirements of our police and the amount of information that can be dealt with by the board that is charged with the ultimate responsibility of deciding whether to grant the application.”

604. The Cabinet Secretary added that as licensing standards officers are now in place, a variety of checks and balances exist.481

Committee conclusions

605. The Committee was unable to reach consensus on the merits of this provision. Some members of the Committee considered the current measures within the 2005 Act requiring chief constables to provide an antisocial behaviour report to licensing boards for all applications still to be appropriate. Other members felt that such reports should only be provided by chief constables if requested to do so by the licensing board or if they choose to provide one, so as to target resources more effectively. The Committee specifically notes that, now that all premises licences are subject to the requirements of the 2005 Act, antisocial behaviour reports are required only in respect of applications for new licences. We also note that the provisions in the 2005 Act allowing a premises licence to be reviewed provide an opportunity for a licensing board to consider any evidence on antisocial behaviour associated with a particular licensed premises, or indeed to request an antisocial behaviour report itself.

606. While we note the evidence suggesting that antisocial behaviour reports are often not specific enough to aid a licensing board’s consideration of an individual application, we do not consider this to demonstrate a problem with the legislation, and is something that should be addressed by better communication between boards and the police on the information required.

Section 133: Sale of alcohol to trade

Background and evidence received

607. Section 133 of the Bill amends section 63 of the 2005 Act, so that it is no longer an offence for licensed premises to sell to the trade. The Policy Memorandum describes it as—

“a common sense measure that corrects an unintended consequence of the 2005 Act. For example if a restaurant owner wished to buy alcohol for the restaurant from a supermarket instead of the wholesaler, the restaurant owner would under the 2005 Act be committing an offence.”482

608. North Lanarkshire Council483 was supportive of the change as providing clarity to section 63 of the 2005 Act. The Law Society of Scotland484 also welcomed the provision.

Committee conclusion

609. The Committee welcomes this as a sensible amendment to the 2005 Act.

Section 134: Occasional licences

Background

610. Section 134 of the Bill reduces the length of time, from 21 days to not less than 24 hours, that a licensing board is required to wait for comments from the chief constable and the licensing standards officer. The Policy Memorandum explains—

“The provisions will enable the fast tracking of some occasional licences where there is very limited notice of the need for such a licence e.g. a funeral. At present the statutory time requirements of the 2005 Act would prevent such functions or events from taking place.”485

611. The licensing board must be satisfied that the application requires to be dealt with quickly while the provision also restricts the approval of such applications to “any member of the Board, any committee established by the Board and the clerk of the Board.”486

Evidence received

612. This proposal was generally welcomed. The SPBA, Punch Taverns, City of Edinburgh Licensing Board and the Law Society of Scotland all supported the provision but suggested that the procedure should also include applications for extended hours. John Loudon from the Law Society of Scotland explained—

“Under the 1976 Act, occasional extensions, as they are known, are common. It is very rare for there to be a problem with an occasional extension: you put in your application and it is processed and granted. Some boards turn such applications round within two or three days, although others take a couple of weeks. … Relatively few issues have arisen. I therefore cannot see any good reason for not replicating that system in the 2005 Act. That would be in the interests of the public, business and councils. We could be creating a time problem when none exists at present.”487

613. North Ayrshire Council, North Lanarkshire Council and South Lanarkshire Council also welcomed the change but questioned why the power was not also delegated to members of staff employed to assist the Clerk. North Lanarkshire Council said that not extending the power to such staff “could, on occasion, cause unnecessary delay.”488

614. The City of Glasgow Licensing Board feared that the reduction in the reporting period could be abused by applicants who were “seeking to have the reduced reporting period in less than exceptional circumstances”489and suggested that the provisions need to be tightened to avoid such abuse. It also considered it unsatisfactory that any concerns from the chief constable or licensing standards officer might not be highlighted to the board before the application is granted. Dumfries and Galloway Council, meanwhile, was concerned about the “vastly detailed procedure”490 for occasional licences within the 2005 Act, and suggested that the Licensing (Scotland) Act 1976 contained a much simpler and more effective procedure. Mairi Millar, Senior Solicitor and Assistant Clerk to the City of Glasgow Licensing Board agreed.491

615. The Cabinet Secretary said that in light of the concerns expressed he would be happy to look again at this provision.492 Responding further in writing, the Cabinet Secretary pointed out that the 2005 Act for the first time gives the local community affected an opportunity to comment and believed that any “simplification of the procedure as suggested would remove that community involvement.”493

Committee conclusions

616. While the Committee acknowledges the need for fast-tracking of some occasional licence applications, in light of points raised by witnesses it has some concerns that the procedure might be open to abuse. The Committee therefore seeks assurances from the Scottish Government that the procedure will minimise the scope for such abuse and notes the Cabinet Secretary’s willingness to look again at the provision.

617. The Committee also recommends that the power to approve such applications should be capable of being delegated to licensing authority officials.

Section 135: Extended hours applications: variation of conditions

Background and evidence received

618. Section 135 enables licensing boards to apply additional conditions to extended hours licences for the period that the extended hours apply or for the whole period of the licence. The Policy Memorandum provides a practical example—

“where a licensed premises has listed one of its activities as showing televised sport, a Licensing Board may see no reason to apply specific conditions. However if there was a request for extended hours to enable the screening of certain football matches during a major competition (for example the World Cup), the Licensing Board may wish to see additional conditions applied to the premises, e.g. extra door staff and the use of plastic glasses while those extended hours apply (and earlier in the day).”494

619. This provision was broadly welcomed.495 For example Dumfries and Galloway Council said it—

“will allow the Board to address concerns arising from the use of the additional hours without reviewing the premises licence and is therefore a positive step.”496

620. North Lanarkshire Council497 also welcomed the provision but said it was unclear whether a licence holder would be given a hearing into whether the variations proposed are necessary for the purposes of the licensing objective. Aberdeenshire Council was concerned that there could be room for legal argument about exactly what additional conditions licensing boards had power to impose.498

621. According to the Cabinet Secretary for Justice, it is a matter for a licensing board to decide whether to hold a hearing. When questioned on what powers licensing boards had to impose such additional conditions, Mr MacAskill stated that “the position on enforcement is no different from any other licence”.499 Philip Lamont added that the Scottish Government would re-examine the provisions in the light of the comments by Aberdeenshire Council to ensure the powers assigned are clear.500

Committee conclusions

622. While generally content with the provision, the Committee notes that extended hours applications might increase the potential for irresponsible drinking. The Committee therefore seeks clarification from the Scottish Government as to how it envisages licensing boards ensuring they take health and public order concerns into account when considering such applications.

Section 136: Personal licences

Background and evidence received

623. Section 136 of the Bill amends the 2005 Act to allow a licensing board to refuse an application for a personal licence on the grounds that the applicant already holds one, or that a previous licence held by the applicant expired or was surrendered during the past three years. The section also makes it a criminal offence, subject to a fine of up to £1,000, to pass off as valid or fail to surrender a void personal licence. The purpose is—

“to close a possible loophole where a licence holder who had an endorsement under section 85(1) of the 2005 Act could avoid the suspension or revocation provisions of section 86 of the 2005 Act by voluntarily surrendering their personal licence before the Licensing Board had had an opportunity to consider what action it might take under section 86 of the 2005 Act, and then apply for another personal licence which would be “clean”.”501

624. Both the City of Edinburgh Council Licensing Board and Dumfries and Galloway Council welcomed the provision.502 However, the Scottish Beer and Pub Association considered it unlikely that a person would apply for a second personal licence to avoid sanctions, given the vigilance of licensing boards and the existence of a National Personal Licence Database.503 Similarly, Punch Taverns said that the 2005 Act is still in its infancy, no problems concerning second personal licences have so far arisen and there are “sufficient safeguards to prevent the issues which appear to cause the Government concern.”504

625. The City of Glasgow Licensing Board, although supportive of the change, said it was unclear how licensing boards would know whether an applicant already holds, or previously held, a personal licence issued by a different licensing board, since the National Personal Licence Database was not used by all boards, and was not always updated quickly.505 In oral evidence, Mairi Millar, Assistant Clerk of the Board, added that “the Bill will cure many of the problems that we have identified with personal licences” and that the database would be “useful in the future”, once the Bill had taken effect. At present, she said, there is no point in checking the database because boards have no right to refuse an application for a personal licence on the ground that the applicant already holds or previously held one.506

626. The Law Society of Scotland also supported the change, and suggested that all licensing boards should be required to update the national database.507

627. The Society also questioned the requirement in the Bill that an application must be signed by the applicant, arguing that the applicant’s agent should also be able to sign the application. However, Frank Jensen of Fife Council suggested that the provision could be interpreted so as to allow an agent to sign, since “the person making the application” need not be the person who would benefit from it. He believed that the correct interpretation would be influenced by the EU Services Directive, which is intended to remove certain barriers to trade. Mairi Millar also referred to the Directive, suggesting that it would require licensing boards to accept online and hence unsigned applications, although this might not apply directly to personal licences.508

628. Section 73 of the 2005 Act requires chief constables to be notified of all personal licence applications and allows them to recommend to the board that a particular application be refused by reference to the applicant’s relevant previous offences. ACPOS suggested that chief constables should, in addition, be able to make formal representations to boards that would be relevant to the board’s consideration of an application even though they did not merit a recommendation to refuse it.

629. Aberdeenshire Council noted that section 136 includes provision apparently aimed at tackling a “possible black market in personal licences”, but suggested this would be more effective if personal licences issued by a particular licensing board were only valid in that board’s area, rather than throughout Scotland.509

630. The Cabinet Secretary confirmed that the Scottish Government was in the process of ensuring that all provisions within both the Bill and the 2005 Act meet the requirements of the EU Services Directive, but he acknowledged that there were some technical difficulties with the National Personal Licence Database which were being “tackled”.510 He confirmed that all local authorities had signed up to participate in the Database but that if this participation was not realised, he would consider making it mandatory.

Committee conclusions

631. The Committee supports these provisions for tightening the rules on applications for personal licences. We recognise the importance of the national database to make the provision effective, and accept the Cabinet Secretary’s assurances about the practical measures being taken in this connection. We also support ACPOS’s suggestion that chief constables should have wider powers to make representations to licensing boards in relation to personal licence applications, and would invite the Scottish Government to give this serious consideration.

Section 137: Emergency closure orders

Background and evidence received

632. The 2005 Act allows “a senior police officer” (defined as a constable of or above the rank of superintendent) to make an “emergency closure order” requiring licensed premises to close for up to 24 hours in the interests of public safety, and then to extend or terminate the order. Section 137 of the Bill changes this to a constable of or above the rank of inspector so as to “accord better with the practicalities of day to day policing”.511

633. The SBPA and Punch Taverns both welcomed this clarification512, North Lanarkshire Council described the provisions as “helpful”513 and the Law Society of Scotland considered it a “sensible proposal.”514 However, while accepting that the amendment may assist the police on an operational level, Dumfries and Galloway Council believed that “keeping it at a higher rank would underline the importance of what is being sought or imposed.”515

Committee conclusion

634. The Committee welcomes the changes made by this section of the Bill.

Section 138: False statements in applications: offences

Background and evidence received

635. Section 138 of the Bill makes it an offence, punishable by a fine of up to £1,000, knowingly to make a false statement in an application under the 2005 Act. The Explanatory Notes suggest this might be used to deter people from applying for a second personal licence as a precaution against the original such licence being suspended or revoked for improper conduct.516

636. In its written submission North Lanarkshire Council considered the creation of the offence “an incentive for applications to be completed honestly and accurately.”517 The provision was also welcomed by the City of Edinburgh Licensing Board and the City of Glasgow Licensing Board, although the Glasgow Board sought clarification on how the offence would be established if the application was submitted electronically without a signature.518 Further clarification of the provision was also sought by the SPBA and Punch Taverns who sought an assurance that “honest oversights or mistakes would not be caught by this provision”.519

637. On the point about electronic applications, the Cabinet Secretary said that the Scottish Government was “in the process of ensuring” that the 2005 Act and the Bill fully complied with the EU Services Directive. On the point about oversights or mistakes, the Cabinet Secretary said that—

“A defence is afforded in that the person must knowingly make a false statement before an offence is committed.”520

Committee conclusion

638. The Committee accepts the policy rationale for the changes proposed.

Section 139 and schedule 4: Further modifications of 2005 Act

Background and evidence received

639. The 2005 Act allows any person to make an objection to a premises licence. However, the chief constable is limited to making an objection on the grounds of crime prevention if there is reason to believe that the applicant is involved in serious organised crime. Schedule 4 to the Bill (introduced by section 139) makes various changes to the 2005 Act to widen the grounds on which a chief constable can raise objections in relation to a premises or personal licence. The Policy Memorandum states that—

“This provision will ensure that the police have the same ability as anyone else to object to a licence on any or all of the grounds offered by the Licensing Objectives including prevention of crime and public nuisance, securing public safety and protecting children from harm.”521

640. The proposed changes were welcomed by the City of Edinburgh Licensing Board and also North Lanarkshire Council, which said—

“There was always a feeling that the Board’s powers were unnecessarily restricted in this area with the legislation as it was originally drafted. … The proposed new power of the Chief Constable to report conduct inconsistent with the licensing objectives will, of course, be welcomed by the police and it is a positive measure since it allows for the ongoing monitoring of the operation of premises and personal licences and is a clear indicator to those involved in the licensed trade that if the police in their monitoring of matters have concerns regarding anything inconsistent with any licensing objectives there is provision for them to refer the matter, as they see fit to the Licensing Board.”522

641. Aberdeenshire Council, Dumfries and Galloway Council and the City of Glasgow Licensing Board each suggested minor amendments, sought clarification or highlighted possible drafting errors within schedule 4. All three, however, generally welcomed the changes.

642. Both Punch Taverns and the SBPA, however, described the provisions as “very wide ranging” and questioned whether they were necessary, given that the police would already be fully consulted on licence applications, and would have carried out criminal records checks. They went on—

“We would suggest that allowing the police to comment on applications solely on the basis of the objective of ‘preventing crime and disorder’ is entirely appropriate, adequate and proportionate. Extending this to all of the other licensing objectives risks the police acquiring the status of the catch all objector of last resort. We do not believe this would be appropriate nor reasonable and it could lead to the police commenting on matters which are more appropriately dealt with by other agencies with more relevant, or indeed the only, expertise. We would suggest that this could only weaken the status of the police in the process and indeed the credibility of their objections on legitimate criminal matters.”523

643. In response, the Cabinet Secretary argued that the police had the same right to comment on all licensing objectives as members of the public, and that it would be for “the Licensing Board to weigh the information before reaching a decision”.524

Committee conclusions

644. The Committee accepts the case made by the Scottish Government for this provision. We are not persuaded by the objections raised, and accept the Cabinet Secretary’s argument that chief constables should have greater powers to object to applications for a premises or personal licence.

additional issue: non-invasive post-mortem

Background and evidence received

645. The Scottish Council of Jewish Communities (SCoJeC) made a written submission to the Committee urging the Parliament to take the opportunity presented by the Criminal Justice and Licensing (Scotland) Bill to provide that “a post-mortem carried out by non-invasive methods such as Magnetic Resonance Imaging (MRI) is acceptable for all purposes for which a surgical post-mortem is generally accepted”. As this topic is not currently addressed in the Bill, SCoJeC asked that consideration be given to an amendment to add this new subject-matter within the overall scope of the Bill.

646. The submission explained that Halachah (Jewish Law) regards the human body (including all body parts and tissue) is sacrosanct, and requires that it should always be treated with dignity. Although fully accepting that there may be occasions when it may be necessary for a post-mortem examination to take place, SCoJeC pointed out that, since MRI scanning was made available in Manchester in 1997, the number of surgical post mortems carried out in the Jewish community there has fallen from around 100 to fewer than ten per annum. However, SCoJeC had been told that MRI is not currently recognised as a form of post-mortem examination in Scotland.

647. SCoJeC also explained that the Coroners and Justice Bill, currently before the UK Parliament, included a provision that would permit a coroner to specify the kind of post-mortem examination that should be made, the Explanatory Notes for which made specific mention of MRI.525

648. In response, the Lord Advocate made clear that she had no objection in principle to the introduction of non-invasive post mortems in Scotland but that “it would depend on the nature of the death”. John Logue, Head of Policy at the Crown Office, said that following representations from the Jewish community the matter was being considered closely. However, he cautioned that there might be relatively limited scope for using MRI in Scotland, given the difference between the role of procurators fiscal in investigating deaths in Scotland and the role of coroners in England. He also suggested that it was unclear whether legislation was necessary to enable MRI to be used in post-mortem examinations in Scotland.526

Committee conclusions

649. The Committee acknowledges the importance of this issue to the Jewish community and potentially other faith groups in Scotland. However, we are unclear whether an amendment of the sort sought by the Scottish Council of Jewish Communities is necessary to enable MRI to be used where appropriate. It must also be doubtful whether such an amendment would be within the scope of the current Bill, given that the issue of post-mortem examination is not directly a matter of criminal justice.

650. Nevertheless, since the matter has been raised with us, it would be helpful if the Scottish Government or the Crown Office could give us a more definitive view on whether it supports SCoJeC’s case for a change to the system of post-mortems in Scotland, whether legislative change would be required and, if so, when that legislation might be forthcoming.

651. We would certainly wish to ensure that a full range of techniques for the conduct of post-mortems is available in Scotland, so that non-invasive methods can be considered in appropriate circumstances. We accept that many relatives will understandably prefer such non-invasive methods where possible, but accept that this must always be a decision for the procurator fiscal, acting in the public interest.

conclusion

652. As will be evident from this report, the Justice Committee has scrutinised in considerable depth the many complex issues raised by this Bill. Some of the more significant provisions are controversial, and it was predictable that we would not be able to agree on those. Many raise difficult issues in terms of legal principle, effectiveness and cost, and we have found it challenging to reach a clear view based on the often strong and diverse evidence we have received.

Recommendation

653. Notwithstanding the differences of view on specific provisions set out earlier in this Report, the Committee agrees to recommend to the Parliament that the general principles of the Bill be agreed to.


Footnotes:

 

316 The Rt Hon Lord Coulsfield. (2007) Review of the Law and Practice of Disclosure in Criminal proceedings in Scotland. Available at: http://www.scotland.gov.uk/Publications/2007/09/11092728/0. Further background is set out in the letter from the Cabinet Secretary of 22 October 2009.

317 Scottish Government. (2008) A Statutory Basis for Disclosure in Criminal Proceedings in Scotland Analysis of responses to Consultation and Next Steps. Available at: http://www.scotland.gov.uk/Resource/Doc/221066/0059469.pdf

318 Policy Memorandum, paragraphs 467, 474.

319 Law Society of Scotland. Written submission to the Justice Committee.

320 Scottish Parliament Justice Committee. Official Report, 9 June 2009, Col 2073.

321 COPFS. Written submission to the Justice Committee.

322 COPFS. Written submission to the Justice Committee.

323 Judges of the High Court of Justiciary; Sheriffs’ Association. Written submissions to the Justice Committee.

324 Lord Coulsfield. Written submission to the Justice Committee.

325 Scottish Parliament Justice Committee. Official Report, 2 June 2009, Col 2002.

326 Scottish Parliament Justice Committee. Official Report, 9 June 2009, Col 2073.

327 Policy Memorandum, paragraph 482.

328 Lord Coulsfield. Written submission to the Justice Committee. See also Scottish Parliament Justice Committee. Official Report, 2 June 2009, Col 2001.

329 Judges of the High Court of Justiciary. Written submission to the Justice Committee.

330 Scottish Parliament Justice Committee. Official Report, 9 June 2009, Cols 2072-3.

331 Scottish Parliament Justice Committee. Official Report, 9 June 2009, Col 2073.

332 Scottish Parliament Justice Committee. Official Report, 26 May 2009, Cols 1920-21.

333 Letter from Cabinet Secretary for Justice, 22 October 2009.

334 Sheriffs’ Association. Written submission to the Justice Committee.

335 Judges of the High Court of Justiciary; Law Society of Scotland. Written submissions to the Justice Committee.

336 The Rt Hon Lord Coulsfield. (2007) Review of the Law and Practice of Disclosure in Criminal proceedings in Scotland. Available at: http://www.scotland.gov.uk/Publications/2007/09/11092728/0

337 Scottish Parliament Justice Committee. Official Report, 2 June 2009, Col 2003.

338 Scottish Parliament Justice Committee. Official Report, 2 June 2009, Col 1989.

339 Sheriffs’ Association. Written submission to the Justice Committee.

340 Scottish Parliament Justice Committee. Official Report, 2 June 2009, Cols 1987-8.

341 COPFS. Supplementary written submission to the Justice Committee.

342 Scottish Parliament Justice Committee. Official Report, 9 June 2009, Cols 2074-5.

343 Scottish Parliament Justice Committee. Official Report, 9 June 2009, Col 2076.

344 Scottish Parliament Justice Committee. Official Report, 9 June 2009, Col 2077.

345 Policy Memorandum, paragraph 489.

346 Scottish Parliament Justice Committee. Official Report, 2 June 2009, Col 1989.

347 Scottish Parliament Justice Committee. Official Report, 2 June 2009, Cols 1988-9.

348 Sheriffs’ Association. Written submission to the Justice Committee.

349 Sheriffs’ Association. Written submission to the Justice Committee.

350 Scottish Parliament Justice Committee. Official Report, 2 June 2009, Col 2002.

351 Sheriffs’ Association. Written submission to the Justice Committee.

352 Judges of the High Court of Justiciary. Written submission to the Justice Committee.

353 Scottish Parliament Justice Committee. Official Report, 2 June 2009, Col 1989.

354 Scottish Parliament Justice Committee. Official Report, 2 June 2009, Col 2004.

355 Scottish Parliament Justice Committee. Official Report, 9 June 2009, Col 2078.

356 Secretary of State for the Home Department (Respondent) v AF (Appellant) (FC) and another (Appellant) and one other action [2009] UKHL 28. Available at: http://www.publications.parliament.uk/pa/ld200809/ldjudgmt/jd090610/af-1.htm

357 Scottish Parliament Justice Committee. Official Report, 1 September 2009, Col 2245.

358 Letter from Cabinet Secretary for Justice, 22 October 2009.

359 Subordinate Legislation Committee, Report on the Criminal Justice and Licensing Bill, paragraphs 63-69.

360 Scottish Law Commission. (2004) Report on Insanity and Diminished Responsibility. Available at: http://www.scotlawcom.gov.uk/downloads/rep195.pdf

361 Mental Welfare Commission for Scotland. Written submission to the Justice Committee.

362 Law Society of Scotland, SAMH. Written submissions to the Justice Committee. Scottish Parliament Justice Committee. Official Report, 2 June 2009, Cols 1993-4.

363 Law Society of Scotland. Written submission to the Justice Committee. James Chalmers. Supplementary written submission to the Justice Committee.

364 James Chalmers. Written submission to the Justice Committee.

365 Explanatory Notes, paragraph 551.

366 Scottish Government. (2004) A Report by the Task Group Set Up to Review the Licensing Provisions Contained in the Civic Government (Scotland) Act 1982. Available at:

http://www.scotland.gov.uk/Resource/Doc/30859/0026954.pdf [Accessed 28 July 2009]

367 Scottish Government. (2005) Executive response to report on licensing. Available at

http://www.scotland.gov.uk/News/Releases/2005/08/02134157 [Accessed 29 July 2009]

368 Policy Memorandum, paragraph 512.

369 Aberdeenshire Council. Written submission to the Justice Committee.

370 Midlothian Council. Written submission to the Justice Committee.

371 Scottish Taxi Federation. Written submission to the Justice Committee.

372 Scottish Parliament Justice Committee. Official Report, 1 September 2009, Col 2225.

373 North Ayrshire Council. Written submission to the Justice Committee.

374 Aberdeenshire Council. Written submission to the Justice Committee.

375 The Law Society of Scotland. Written submission to the Justice Committee.

376 Scottish Parliament Justice Committee. Official Report, 1 September 2009, Col 2226.

377 The Faculty of Advocates. Written submission to the Justice Committee.

378 Scottish Parliament Justice Committee. Official Report, 1 September 2009, Col 2226.

379 Scottish Parliament Justice Committee. Official Report, 1 September 2009, Col 2227.

380 Policy Memorandum, paragraph 516.

381 Glasgow City Council and the Law Society of Scotland. Written submissions to the Justice Committee.

382 Dumfries and Galloway Council. Written submission to the Justice Committee.

383 Aberdeenshire Council. Written submission to the Justice Committee.

384 Scottish Parliament Justice Committee. Official Report, 16 June 2009, Col 2114.

385 Scottish Government. (2004) A Report by the Task Group Set Up to Review the Licensing Provisions Contained in the Civic Government (Scotland) Act 1982. Available at:

http://www.scotland.gov.uk/Resource/Doc/30859/0026954.pdf [Accessed 28 July 2009]

386 Policy Memorandum, paragraph 517.

387 Policy Memorandum, paragraph 522.

388 Aberdeenshire Council, North Ayrshire Council. Written submissions to the Justice Committee.

389 Dumfries and Galloway Council, Law Society of Scotland, Glasgow City Council. Written submissions to the Justice Committee.

390 The Scottish Taxi Federation. Written submission to the Justice Committee.

391 Scottish Parliament Justice Committee. Official Report, 1 September 2009, Col 2228.

392 The Scottish Taxi Federation. Written submission to the Justice Committee.

393 Glasgow City Council. Written submission to the Justice Committee.

394 Scottish Government. Supplementary written submission to the Justice Committee.

395 Glasgow City Council and the Law Society of Scotland. Written submissions to the Justice Committee.

396 Scottish Parliament Justice Committee. Official Report, 16 June 2009, Col 2101.

397 Scottish Government. Supplementary written submission to the Justice Committee.

398 The Scottish Taxi Federation. Written submission to the Justice Committee.

399 Scottish Government. Supplementary written submission to the Justice Committee.

400 The City of Edinburgh Council Regulatory Committee. Written submission to the Justice Committee.

401 Scottish Government. Supplementary written submission to the Justice Committee.

402 Explanatory Notes, paragraph 563.

403 Explanatory Notes, paragraph 565.

404 East Lothian Council. Written submission to the Justice Committee.

405 Aberdeenshire Council. Written submission to the Justice Committee.

406 Dumfries and Galloway Council. Written submission to the Justice Committee.

407 Glasgow City Council, South Lanarkshire Council and the Law Society of Scotland. Written submissions to the Justice Committee.

408 Midlothian Council. Written submission to the Justice Committee.

409 Scottish Parliament Justice Committee. Official Report, 16 June 2009, Cols 2103, 2114.

410 Scottish Parliament Justice Committee. Official Report, 16 June 2009, Col 2141.

411 Scottish Parliament Justice Committee. Official Report, 16 June 2009, Col 2104.

412 The Law Society of Scotland. Supplementary written submission to the Justice Committee.

413 Scottish Parliament Justice Committee. Official Report, 1 September 2009, Cols 2228-9.

414 Scottish Government. Supplementary written submission to the Justice Committee.

415 Glasgow City Council. Written submission to the Justice Committee.

416 Trafficking Awareness Raising Alliance. Written submission to the Justice Committee.

417 Scottish Government. Supplementary written submission to the Justice Committee.

418 Task Group report, paragraph 10.2; Policy Memorandum, paragraph 526.

419 South Lanarkshire Council, East Lothian Council. Written submissions to the Justice Committee.

420 ACPOS. Written submission to the Justice Committee.

421 The Law Society of Scotland. Written submission to the Justice Committee.

422 Scottish Government. Supplementary written submission to the Justice Committee.

423 South Lanarkshire Council. Written submission to the Justice Committee.

424 Dumfries and Galloway Council. Written submission to the Justice Committee.

425 Scottish Government. Supplementary written submission to the Justice Committee.

426 Dumfries and Galloway Council. Written submission to the Justice Committee.

427 Criminal Justice and Licensing (Scotland) Bill, section 128.

428 The Faculty of Advocates. Written submission to the Justice Committee.

429 Dumfries and Galloway Council. Written submission to the Justice Committee.

430 Midlothian Council. Written submission to the Justice Committee.

431 Glasgow City Council. Written submission to the Justice Committee.

432 The Law Society of Scotland. Written submission to the Justice Committee.

433 Scottish Parliament Justice Committee. Official Report, 16 June 2009, Col 2106.

434 The Law Society of Scotland. Supplementary written submission to the Justice Committee.

435 Scottish Parliament Justice Committee. Official Report, 1 September 2009, Col 2234.

436 Punch Taverns. Written submission to the Justice Committee.

437 Scottish Government. Supplementary written submission to the Justice Committee.

438 Policy Memorandum, paragraph 539.

439 Scottish Parliament Justice Committee. Official Report, 16 June 2009, Cols 2112-3.

440 The Licensing (Scotland) Act 2005 (Transitional Provisions) Order 2009 (SSI 2009/277), considered by the Justice Committee on 8 September 2009.

441 Policy Memorandum, paragraph 538.

442 Policy Memorandum, paragraph 555.

443 Letter from Bruce Crawford.

444 Scottish Licensed Trade Association. Written submission to the Justice Committee.

445 Scottish Parliament Justice Committee. Official Report, 16 June 2009, Col 2111.

446 Scottish Government. Supplementary written submission to the Justice Committee.

447 The City of Edinburgh Licensing Board. Written submission to the Justice Committee.

448 Fife Licensing Board. Written submission to the Justice Committee.

449 Scottish Parliament Justice Committee. Official Report, 16 June 2009, Col 2096.

450 Scottish Parliament Justice Committee. Official Report, 16 June 2009, Col 2156.

451 Scottish Parliament Justice Committee. Official Report, 16 June 2009, Cols 2097-8.

452 Scottish Parliament Justice Committee. Official Report, 16 June 2009, Col 2110.

453 Scottish Parliament Justice Committee. Official Report, 16 June 2009, Col 2131-2.

454 The Law Society of Scotland. Supplementary written submission to the Justice Committee.

455 Policy Memorandum, paragraph 541.

456 Aberdeenshire Council, South Lanarkshire Council, North Ayrshire Council, City of Edinburgh Licensing Board and the Law Society of Scotland. Written submissions to the Justice Committee.

457 City of Glasgow Licensing Board. Written submission to the Justice Committee.

458 City of Edinburgh Licensing Board. Written submission to the Justice Committee.

459 Fife Licensing Board. Written submission to the Justice Committee.

460 North Ayrshire Council. Written submission to the Justice Committee.

461 Scottish Parliament Justice Committee. Official Report, 16 June 2009, Cols 2144-2145.

462 North Lanarkshire Council, North Ayrshire Council and the City of Edinburgh Licensing Board. Written submissions to the Justice Committee.

463 City of Glasgow Licensing Board. Written submission to the Justice Committee.

464 The Law Society of Scotland. Written submission to the Justice Committee.

465 Scottish Parliament Justice Committee. Official Report, 16 June 2009, Cols 2107-2108.

466 The Scottish Beer and Pub Association. Written submission to the Justice Committee.

467 Scottish Parliament Justice Committee. Official Report, 16 June 2009, Col 2133.

468 Scottish Parliament Justice Committee. Official Report, 16 June 2009, Col 2134.

469 Scottish Parliament Justice Committee. Official Report, 16 June 2009, Col 2142.

470 Scottish Parliament Justice Committee. Official Report, 16 June 2009, Col 2143.

471 Scottish Parliament Justice Committee. Official Report, 1 September 2009, Col 2234.

472 Policy Memorandum, paragraph 543.

473 Policy Memorandum, paragraph 544.

474 North Lanarkshire Council. Written submission to the Justice Committee.

475 Scottish Parliament Justice Committee. Official Report, 16 June 2009, Cols 2117-2118.

476 City of Glasgow Licensing Board. Written submission to the Justice Committee.

477 Scottish Parliament Justice Committee. Official Report, 16 June 2009, Col 2146.

478 Scottish Parliament Justice Committee. Official Report, 16 June 2009, Col 2147.

479 North Ayrshire Council. Written submission to the Justice Committee.

480 City of Edinburgh Licensing Board. Written submission to the Justice Committee.

481 Scottish Parliament Justice Committee. Official Report, 1 September 2009, Col 2236.

482 Policy Memorandum, paragraph 545.

483 North Lanarkshire Council. Written submission to the Justice Committee.

484 The Law Society of Scotland. Written submission to the Justice Committee.

485 Policy Memorandum, paragraph 546.

486 Explanatory Notes, paragraph 581.

487 Scottish Parliament Justice Committee. Official Report, 16 June 2009, Col 2109.

488 North Lanarkshire Council. Written submission to the Justice Committee.

489 City of Glasgow Licensing Board. Written submission to the Justice Committee.

490 Dumfries and Galloway Council. Written submission to the Justice Committee.

491 Mairi Millar. Supplementary written submission to the Justice Committee.

492 Scottish Parliament Justice Committee. Official Report, 1 September 2009, Col 2238.

493 Scottish Government. Supplementary written submission to the Justice Committee.

494 Policy Memorandum, paragraph 547.

495 Dumfries and Galloway Council, the Law Society of Scotland and the City of Edinburgh Licensing Board. Written submissions to the Justice Committee.

496 Dumfries and Galloway Council. Written submission to the Justice Committee.

497 North Lanarkshire Council. Written submission to the Justice Committee.

498 Aberdeenshire Council. Written submission to the Justice Committee.

499 Scottish Government. Supplementary written submission to the Justice Committee.

500 Scottish Government. Supplementary written submission to the Justice Committee, 29 September 2009.

501 Explanatory Notes, paragraph 585.

502 City of Edinburgh Council Licensing Board and Dumfries and Galloway Council. Written submissions to the Justice Committee.

503 The Scottish Beer and Pub Association. Written submission to the Justice Committee.

504 Punch Taverns. Written submission to the Justice Committee.

505 City of Glasgow Licensing Board. Written submission to the Justice Committee.

506 Scottish Parliament Justice Committee. Official Report, 16 June 2009, Col 2155.

507 The Law Society of Scotland. Written submission to the Justice Committee.

508 Scottish Parliament Justice Committee. Official Report, 16 June 2009, Col 2152.

509 Aberdeenshire Council. Written submission to the Justice Committee.

510 Scottish Government. Supplementary written submission to the Justice Committee.

511 Policy Memorandum, paragraph 549.

512 The Scottish Beer and Pub Association and Punch Taverns. Written submissions to the Justice Committee.

513 North Lanarkshire Council. Written submission to the Justice Committee.

514 The Law Society of Scotland. Written submission to the Justice Committee.

515 Dumfries and Galloway Council. Written submission to the Justice Committee.

516 Explanatory Notes, paragraph 587.

517 North Lanarkshire Council. Written submission to the Justice Committee.

518 City of Glasgow Licensing Board. Written submission to the Justice Committee.

519 The Scottish Beer and Pub Association and Punch Taverns. Written submissions to the Justice Committee.

520 Scottish Government. Supplementary written submission to the Justice Committee.

521 Policy Memorandum, paragraph 549.

522 North Lanarkshire Council. Written submission to the Justice Committee.

523 Punch Taverns and the Scottish Beer and Pub Association. Written submissions to the Justice Committee.

524 Scottish Government. Supplementary written submission to the Justice Committee.

525 Scottish Council of Jewish Communities. Written submission to the Justice Committee.

526 Scottish Parliament Justice Committee. Official Report, 9 June 2009, Cols 2078-80.

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