SNP Publish Controversial New Alcohol Proposals
The Scottish Government’s new package of measures: “Changing Scotland’s Relationship with Alcohol: A Framework for Action”, designed to address the problems arising from over consumption of alcohol in Scotland, was released on 2 March 2009. It is a broad document with suggestions for change across a spectrum of areas from licensing laws to mental health support and education. This article highlights the proposed changes in relation to licensing laws.
The proposals include a series of changes to existing licensing laws, mainly in the form of additional regulations under the Licensing (Scotland) Act 2005. Many will view this attempt as controversial – enforcing policy through the “back door” by way of regulations instead of full parliamentary scrutiny. Although the paper does indicate that industry stakeholders will be given the chance to comment on the new regulations, many in the licensed trade will be concerned that these provisions are being steamrollered through for political reasons.
New Mandatory Conditions
A number of the key licensing proposals take the form of additional mandatory conditions which will attach to every premises licence issued under the Licensing (Scotland) Act 2005. The new mandatory conditions proposed are as follows:
1. A ban on alcohol being sold as “free” with another product, whether alcohol or not, specifically from off sale premises. This attacks the common “buy one get one free” and similar deals.
2. A ban on alcohol being sold at a reduced price on the purchase of another product, again specifically from off sale premises. This strikes at the type of promotion such as “buy 2 bottles of wine and get a third for only £3”
3. A ban on selling alcohol as a “loss leader”. This will prevent the practice of supermarkets selling alcohol at a loss in order to entice customers to their premises, who then make up their profit from ancillary sales made.
4. Introducing a minimum price per unit of alcohol. The suggested price is 40p per unit.
5. Enforcing the use of the 125ml measure for wine as the “standard” measure.
6. Marketing materials relating to alcohol in off sale premises only to be allowed in the designated off sales areas.
7. A ban on marketing materials in any licensed premises referring to a previous price, such as “Was £5.99, now £3.99”
Comment: The majority of these conditions seek to ban “irresponsible” promotions for off sale premises and are not likely to be met with much resistance. There are already similar mandatory conditions for on sale premises. The most controversial new condition is, of course, enforcing minimum pricing. There has been concern as to whether this could accord with competition law and Scotland will be the first country in Europe to have minimum pricing of alcohol if the proposal comes to fruition. An interesting aspect is that the proposed unit price, namely 40p per unit, may have little impact on the vast majority of on sales of alcohol. If one considers that a pint of lager has 3 units of alcohol, then this would mean £1.20 minimum for a pint. You’d be lucky to find a pint at that price in any event – many city venues are now charging as much as £5 for a pint of imported lager. Off sales, however, will be more affected - a litre bottle of vodka has 37.5 units, meaning a minimum of £15. Cheap ciders are most likely to be affected but certain tonic wines are likely remain broadly the same.
The proposal regarding the 125ml glass of wine is also being considered down south, where an early day motion to enforce the use of the measure now seems to have become subsumed into part of a wider UK Government action plan on alcohol which is also due to be released. The root of this particular proposal is the belief that people tend to drink more wine more quickly than they did 20 years ago.
A difficulty with the introduction of all these new conditions may be how the Government intends to make them attach to premises which have already been issued with one of the new licences. Could a licence holder challenge the retrospective addition of a condition not imposed at the time the licence was granted?
Other proposals
The paper also makes several other proposals, including:
1. Enforcing the use of the 25ml measure for the sale of spirits. This would require amendments of weights and measures legislation, which is a reserved power to Westminster and would require UK legislation.
2. The creation of a new power allowing licensing boards to decide whether or not to restrict off sales to over 21s for their area or parts of their area. Boards would be forced to consider this each time they review their statement of licensing policy every three years.
3. The creation of a new power specifically allowing the police and local licensing forums the power to request the licensing board consider raising the off sale age to 21.
4. The creation of a Social Responsibility Fee. This is a further tax on licence holders to “offset the cost of dealing with the adverse consequences of alcohol”. The proposals state that the fee would not apply to small businesses where the sale of alcohol is ancillary to the main purpose of the business or where sales are small.
5. Monitoring the prosecution of licensing offences and identifying further enforcement steps to ensure compliance.
6. A review of test purchasing.
7. Giving trading standards officers powers in relation to test purchasing. This may extend to allowing trading standards to send young persons to conduct a test purchase.
8. Reducing the drink driving limit. This is reserved to Westminster.
9. The creation of an agreed code of practice for promotions.
10. The creation of a UK wide labelling stategy.
11. Banning any TV advertising of alcohol before 9pm.
Comment: Perhaps the most controversial point here is raising the off sale age to 21. The Government met with strong resistance on this point and in fact it was voted down in Holyrood. Nevertheless, the SNP is pressing on, but instead of a Scotland-wide age increase what they are proposing is that individual licensing boards be allowed to decide whether or not they would like to increase the off sale age for their area, or parts of their area. The SNP are trying to address youth related disorder and alcohol associated antisocial behaviour, but the “21 rule” has met with considerable resistance.
Let’s use an example to illustrate why this is controversial. Let’s say Glasgow has banned all off sales to people under 21. Jimmy Smith, a 20 year old member of the armed forces, has just returned from Iraq where he fought for his country, and is looking to celebrate his fourth wedding anniversary with his wife by buying a bottle of champagne; and to celebrate his new business venture – he is now the licence holder of a public house. On his day off, he pops into another pub in Maryhill Road and has a pint of lager with lunch, and nips next door to the bookies to place a bet on the 3.20 at Chepstow. He then attempts to buy a bottle of Tattinger in an off sale shop across the street but is refused because of the “21 rule”. Unperturbed, he takes the opportunity to nip in to the local school where he votes in the general election which happens to be occurring that day. After smoking a cigarette, he then drives 2 minutes along the road to Bearsden, just outside Glasgow jurisdiction, where he finally purchases his champagne. Does Jimmy feel aggrieved?
I foresee problems where people are moving from one board area to another and not knowing which rule applies. Could this also lead to “booze cruises”, where persons under 21 drive over the council border to get their bevvy from the neighbouring jurisdiction? There are, I suspect, serious enforcement problems with this proposal. And how would the offences under the licensing Act be changed to make it an offence in one board area but not another?
Points 8, 9, 10 and 11 above would require action from Westminster and industry co-ordination. In this case, the Scottish Government is merely stating it would be supportive of such moves.
The “social responsibility fee” is also likely to be met with cries of anguish from a licensed trade suffering through the economic downturn, and having just shelled out millions of pounds in regulatory compliance, new licence fees and so on. The equivalent English creation, a levy for premises in an “Alcohol Disorder Zone”, has been pilloried as unworkable and to date no English Council has elected to use the facility.
Separate Checkout Proposal Dropped
One of the initial proposals which has been dropped is the separate checkout for alcohol sales. This met with strong resistance, especially from individual businesses with smaller retail space compared to some of the major supermarkets, who argued that a separate checkout simply could not be facilitated. Such “shame lanes” have also been shown to actually increase the amount of alcohol sold. The other suggestion that under 18s should not be allowed to operate a checkout has been dropped.
And finally…
There is also, it should be said, a difficulty in pursuing specific alcohol policy through regulations to an Act which was not drafted with those policies in mind. The Licensing (Scotland) Act 2005 was brought in by a Labour Government whose alcohol strategy was based on the Nicholson Report, whose ideas on the regulation of alcohol are not the same as those of the current Government. The SNP administration having been elected have a mandate to give effect to their manifesto, and that is only right, but legal difficulties arise in the relationship between the Act itself and the new regulations they propose.. Conflict between the Act and the Regulations results not simply in legal interpretation issues, but could have serious consequences for the hospitality trade and industry, just as VisitScotland is more reliant than usual on the trade to provide services to visitors to Scotland in this, the year of Homecoming Scotland 2009. The Scottish Government might also want to ask themselves if classifying May 09 as “Whisky Month” is an irresponsible promotion!
The full report is available here:
http://www.scotland.gov.uk/Resource/Doc/262524/0078482.pdf
Press coverage:
http://news.bbc.co.uk/1/hi/scotland/7917824.stm
http://www.thepublican.com/story.asp?sectioncode=7&storycode=62962
http://thescotsman.scotsman.com/latestnews/Scottish-government-targets-binge-drinking.5028899.jp
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