Beware of subtle attempts to undermine the Scottish Parliament's decision not to set a higher minimum age for off-sale purchases

Many and varied are the treasures which lie beneath the surface of the Alcohol (Scotland) Act 2010. Recent guidance notes issued by the Scottish Government have brought to the surface some previously undreamt-of pearls.

The Government originally proposed setting the minimum legal age for off-sale purchase at 21, while retaining 18 for pubs, clubs, hotels and restaurants. That was rejected by the Parliament. The arguments were the usual – brave boys home from Afghanistan can go to pub, but can’t buy a bottle of wine to take home to the wife etc.

Section 9 of the Act states that in its licensing policy a board may not “indicate an intention to introduce” (by means of licence conditions) a prohibition on off-sales to persons of 18 or over but under 21. The section heading reads “Presumption against [my emphasis] prohibition on off-sales to under 21s”. But a presumption it is not: the section sets out clearly that which the board may not do, in the context of its licensing policy. It is a prohibition against a prohibition.

The confusion has been caused by para 7.1 of the guidance notes, which states: “Licensing boards are not prevented from imposing licence conditions restricting off-sales of alcohol to persons under 21...”. I wonder how many clerks or practitioners were aware of that? More fundamentally, I wonder whether it is indeed good guidance?

Promoting nonsense

There are clearly other errors. Paragraph 3.5 offers reassurance to those concerned about the law relating to drinks promotions in the vicinity of their premises because, say, of the proximity of an unconnected advertising space. The notes clearly say, the promotion must be in connection with your premises. If you have no control over it, you have nothing to worry about.

Yet in an otherwise sensible question-and-answer paper which follows, it is stated that if a delivery van bears a drinks promotion, it must not come within 200 metres of the premises. How many shopkeepers have control over what van delivers their stock, and what is painted on the side of it? What twaddle.

Questions of our age

So can a board make conditions concerning different ages for off-sales? In the absence of a policy, there would have to be cause shown, related to one of the licensing objectives. It would be very interesting to see which objectives might be used, and how it could be shown that they were offended by off-sales to those aged 18,19 and 20. The problem is that there are many shrill voices and very little evidence based on some sort of scientific method.

Some police forces have tried an “experiment” of asking local shops not to sell off-sales to under-21s over certain weekends. I have read of great success in reducing crimes of public order “as a result”. Unfortunately, I also have clients who have experienced these at first hand. They noted double the customary police activity in the areas in question. Which reduces the crime figures?

I wonder whether there may be a more forceful legal objection. Section 27 of the 2005 Act relates to licence conditions. Section 27(1) relates to the mandatory conditions contained in sched 3. The 2010 Act adds a new s 27A. Under s 27A(2), the Scottish ministers may not prescribe the age at which persons aged 18 or over may purchase alcohol as a matter in respect of which licence conditions may be varied.

Section 27(7) prevents a board, when granting a licence, from imposing a condition inconsistent with a mandatory condition, or which would have the effect of making such a condition more onerous or restrictive. If the Scottish ministers are prohibited by statute from doing something, a board surely cannot do it. Section 27A, however, applies only to variations. There will undoubtedly be human rights implications if a “possession” (and an existing premises licence falls within that definition) were to be interfered with in a way that not even the Scottish ministers could prescribe.

I hope boards will not try to go down that variation road. The Parliament clearly said these were powers it did not want to give. There are plenty of sanctions to deal with rogue operators. Let us shy away from guidance by gobbledygook and legislation by “nudge, nudge”.


The Author
Tom Johnston, Young & Partners LLP, Dunfermline and Glasgow
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