The Nicholson Committee Report on Liquor Licensing Law in Scotland: Analysis of Consultation Responses
11. Appeals
Summary
Recommendations 48 to 57 relate to appeals against licensing board decisions. There were 20-28 responses to each recommendation, mostly from licensing boards. There was strong support for most of the proposals. The main exception was Recommendation 51 (enabling a person dissatisfied with a decision to request a statement of reasons prior to appeal): three quarters of comments agreed with this, but six were opposed.
Recommendation 48
- An appeal against a decision taken by a licensing board should in future be heard by the sheriff principal within whose sheriffdom that licensing board is located. (Paragraph 11.6)
11.1 Twenty-eight consultees referred to this recommendation, the vast majority supportive. However, two licensing boards anticipated difficulties with the recommended system owing to the potential increase in the volume of appeals. They suggested that either a Liquor Licensing Appeal Tribunal or local Licensing Tribunals should be established, which could also deal with appeals in relation to planning.
Recommendation 49
- All decisions taken by a licensing board, other than purely procedural ones, should be open to an appeal to the sheriff principal. (Paragraph 11.7)
11.2 This was referred to by 20 respondents; all in support, with two being in agreement subject to the introduction of Appeal Tribunals as discussed above.
Recommendation 50
- An appeal to the sheriff principal should proceed by means of stated case. (Paragraph 11.10)
11.3 The vast majority of the 24 responses on this recommendation were supportive. There were a couple who disagreed and several who offered conditional agreement and additional comments, particularly in relation to the potential increased resource implications for licensing boards. Several boards felt that this recommendation would be likely to lead to the time being taken to consider each application increasing and would make the process longer, more formal and more legalistic. Another board suggested that training would be required for clerks and boards in order for them to proceed in this way.
Recommendation 51
- Notwithstanding our recommendation that appeals should proceed by means of stated case there should be continuing provision enabling a person who is dissatisfied with a decision taken by a licensing board to request a statement of reasons from the board prior to marking any appeal. (Paragraph 11.11)
11.4 Twenty-four consultees, largely licensing boards, referred to this proposal. Around three quarters of these were in support of the recommendation, with one respondent commenting that:
"It is imperative that any person who is dissatisfied with a decision has a right to a statement of reasons prior to deciding whether or not to appeal that decision. It is essential that this recommendation be adopted in the interests of openness and transparency." (Council)
11.5 Some respondents from licensing boards indicated support for this recommendation in part, but detailed additional considerations, which should be taken into account:
"Another issue is whether Licensing Boards would be liable for expenses in the event that they did not become a party to any appeal."
"The status of the statement of reasons will have to be made clear. In other words, it must not be mistaken for a stated case, and criticised on appeal for, say, lack of clarity."
11.6 Those disagreeing with this recommendation were boards who felt that the recommendation was either illogical within the proposed system, or that it would create a drain on resources.
Recommendation 52
- As at present, a licensing board should be entitled to be a party to any appeal. (Paragraph 11.12)
11.7 There were 23 comments on this recommendation with the considerable majority being in support. Perhaps unsurprisingly, comments were mainly from licensing boards. A response indicating conditional agreement suggested that the recording of proceedings before boards should be made mandatory.
11.8 Reasons for disagreement were that licensing boards would not appreciate the expense and consequent effect on resources of being involved in appeals. Instead of Recommendation 52, one board indicated that:
"Under the proposals, the sheriff principal will hear the appeal based on a stated case, and if the Board is assured that the merits will be addresses, the Board sees no particular need to enter the appeal process."
Recommendation 53
- There is no need to repeat the present provision which appears to permit a chief constable to be a party to an appeal even where he had not participated in the original proceedings before the licensing board. (Paragraph 11.13).
11.9 Around 20 consultees, referred directly to Recommendation 53, with all but one indicating full support. Most responses were from licensing boards. The one opponent emphasised that,
"As the Committee acknowledge, Chief Constables have an interest in the outcome of any relevant appeals. Protocols will need to be established to ensure that intimation is furnished to Chief Constables, be that by the appellate court or a party to the appeal." (Police)
Recommendation 54
- The grounds of appeal against a decision of a licensing board as presently set out in heads (a) to (c) of section 39(4) of the 1976 Act should be retained. However, the ground set out in head (d) should be replaced by one which reflects the concept of proportionality as developed in the jurisprudence of the European Court of Human Rights. (Paragraph 11.14)
11.10 This recommendation was referred to by 22 respondents who all agreed either fully or in part. The responses were largely limited to representatives of licensing boards.
Recommendation 55
- It should no longer be competent for an appellate court to hear evidence by or on behalf of any party to an appeal. (Paragraph 11.16)
11.11 Twenty-one comments on Recommendation 55 were largely from representatives of licensing boards. All but three indicated support for the recommendation. One of those who rejected the proposal, observed,
"There may be circumstances where it would be appropriate for evidence to be heard in particular, those circumstances where inaccurate information was given to the Board." (Scottish Beer and Pub Association and British Hospitality Association)
Recommendation 56a
- On upholding an appeal the appellate court should, as at present, be entitled (a) to remit the case to the licensing board for reconsideration of its decision (Paragraph 11.17)
11.12 Twenty submissions referred to this, with all but three responses indicating complete or partial support. Again, responses derived mainly from licensing boards. Those who conditionally supported the recommendation expressed concern that it might be inappropriate in the absence of evidence. Those who rejected Recommendation 56a indicated that the power of the appellate court should be limited so that it did not hear evidence, and that it "remit the case to the licensing board with directions or recommendations if appropriate" (Licensing board).
Recommendation 56b
- On upholding an appeal the appellate court should, as at present, be entitled (b) to reverse or modify the decision of the licensing board. (Paragraph 11.17)
11.13 Again dominated by licensing board representatives, 20 respondents commented on this with the majority being in support. One respondent, expressing conditional agreement, suggested that it would be helpful if legislation included guidance on the specific circumstances under which the sheriff principle could remit the case. Five respondents were opposed to the recommendation, for similar reasons as stated in relation to 56a, that an appellate court does not hear evidence.
Recommendation 57
- The present right of appeal to the Court of Session on a point of law only should be retained. (Paragraph 11.18)
11.14 There were 19 specific submissions to this recommendation, with most responses from licensing board representatives. There was almost universal support for this recommendation, with just one comment indicating only partial agreement in principle.