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Society questions Scottish Government licensing plans

12 November 2008

Scottish Government proposals for restrictions on the sale of alcohol, especially through off-sale outlets, have come under challenge in a submission from the Law Society of Scotland.

In a response submitted to the Government, the Society's Licensing Subcommittee has challenged both the enforceability and in certain respects the legality of the measures announced.

On one of the principal policies, minimum retail pricing per unit of alcohol, the committee questions whether it falls to be regarded as a licensing matter, which would be devolved, or one relating to the "regulation of the sale and supply of goods and services to consumers", a reserved matter under the Scotland Act. It notes that the public health motive for the proposal might bring it within the Parliament's powers, this being a devolved matter, but calls for clarification.

The committee also questions the basis for the minimum figure of 35p per unit of alcohol put forward by the Government, and highlights the problems likely to arise in checking whether it is being properly applied, especially to mixed drinks.

Loss leaders

Another enforceability issue is in relation to the proposed ban on loss leading promotions. The committee believes the compatibility of the measure with European competition law needs further study, and also points out that there is little clarity as to what costs and overheads should be taken into account in deciding whether alcohol is being sold at a loss. This is another area, it says, where licensing officers will have problems deciding whether a loss is being incurred.

As regards restrictions on promotions on licensed premises, the committee points out "that licensed premises are in themselves an invitation to purchase alcohol. If premises are licensed to sell alcohol, this will no doubt be advertised in the same way as any other commercial premises advertises its products". It also notes that irresponsible promotions are already prohibited under the 2005 Licensing Act.

On the raising of the age of purchase in off-sales from 18 to 21, the committee highlights "that premises licences will have the potential for both on-sales and off-sales, and an age differential will lead to a number of enforcement issues", with difficulties for the staff involved.

The proposed "social responsibility fee" would also be difficult to implement and enforce, "as there would appear to be no consensus within the licensed trade as to where problems arise", and impossible to assess fairly and objectively who should pay the fee.

The committee does support action to reduce the size of standard measures, improve labelling and control advertising especially when directed at young people.

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