66th Report, 2015 (Session 4): Alcohol (Licensing, Public Health and Criminal Justice) (Scotland) Bill at Stage 1

SP Paper 825 (Web)

Contents

Introduction
Overview of the Bill
Delegated Powers Provisions
Recommendation
Annexe

Remit and membership

Remit:

1. The remit of the Delegated Powers and Law Reform Committee is to consider and report on—

(a) any—

(i) subordinate legislation laid before the Parliament or requiring the consent of the Parliament under section 9 of the Public Bodies Act 2011;

(ii) [deleted]

(iii) pension or grants motion as described in Rule 8.11A.1; and, in particular, to determine whether the attention of the Parliament should be drawn to any of the matters mentioned in Rule 10.3.1;

(b) proposed powers to make subordinate legislation in particular Bills or other proposed legislation;

(c) general questions relating to powers to make subordinate legislation;

(d) whether any proposed delegated powers in particular Bills or other legislation should be expressed as a power to make subordinate legislation;

(e) any failure to lay an instrument in accordance with section 28(2), 30(2) or 31 of the 2010 Act; and

(f) proposed changes to the procedure to which subordinate legislation laid before the Parliament is subject.

(g) any Scottish Law Commission Bill as defined in Rule 9.17A.1; and

(h) any draft proposal for a Scottish Law Commission Bill as defined in that Rule; and

(i) any Consolidation Bill as defined in Rule 9.18.1 referred to it by the Parliamentary Bureau in accordance with Rule 9.18.3.

Membership:

Nigel Don (Convener)
John Mason (Deputy Convener)
Richard Baker
John Scott
Stewart Stevenson

Alcohol (Licensing, Public Health and Criminal Justice) (Scotland) Bill at Stage 1

Introduction

1. At its meetings on 22 September, 27 October and 3 November 2015 the Delegated Powers and Law Reform Committee considered the delegated powers provisions in the Alcohol (Licensing, Public Health and Criminal Justice) (Scotland) Bill at Stage 1 (“the Bill”)1. The Committee submits this report to the lead committee for the Bill under Rule 9.6.2 of Standing Orders.

2. The Non-Government Bills Unit on behalf of the Member in Charge of the Bill has provided the Parliament with a memorandum on the delegated powers provisions in the Bill2.

Overview of the Bill

3. The Bill is a Member’s Bill, introduced by Dr. Richard Simpson MSP (“the Member”) on 1 April 2015. It is instructed by the Parliament’s Non-Government Bills Unit (“NGBU”). The lead committee is the Health and Sport Committee.

4. The Bill’s overall policy objectives are to promote public health and reduce alcohol–related offending through:

  • some restrictions on the retailing and advertising of alcoholic drinks;
  • some changes to licensing laws;
  • obligations on the Scottish Ministers to issue guidance and report on its alcohol education policy; and
  • directing certain offenders toward treatment or restricting their alcohol consumption.

5. Part 1 concerns alcohol licensing and public health (sections 1 to 14). Part 2 concerns offences involving alcohol and drinking banning orders (sections 15 to 31). Part 3 has general provisions (sections 32 to 35).

6. The Member contends that steps taken in the past 10 years appear to have arrested the sharp increase in the consumption of alcohol since the 1970’s. The Member refers to figures which suggest that alcohol consumption per head in Scotland is amongst the highest in the world – 23% higher than in England and Wales, despite similar pricing and availability. It is not just the level, but the patterns of consumption (“binge drinking”) which are harmful (Policy Memorandum, paragraphs 3 to 6).

Delegated Powers Provisions

7. The Committee considered the delegated powers in the Bill. At its first consideration of the Bill, the Committee determined that it did not need to draw the attention of the Parliament to the delegated powers in the following provisions:

  • Sections 16(11) – Duration of drinking banning orders
  • Section 27(5) – Approved courses
  • Section 27(6) – Guidance about conduct of approved courses
  • Section 28(2) – Certificates of completion of approved courses
  • Section 28(6) – Certificates of completion of approved courses
  • Section 28(8) – Certificates of completion of approved courses
  • Section 29(3) – Addition of a “relevant authority”
  • Section 29(4) – Modification of list of persons to be consulted prior to applying for drink banning order
  • Section 33 – Ancillary provision
  • Schedule paragraph 8(4) – fixed penalty for alcohol advertising offences
  • Schedule paragraph 9 (1) and (2) – method of payment and payment periods

8. At its meeting on 22 September, the Committee agreed to write to the Member to raise questions on the remaining delegated powers in the Bill. The correspondence is reproduced at the Annexe. As a result of this correspondence the Committee agreed that it did not need to draw the following power to the attention of the Parliament:

  • Section 34(2) – Commencement

Recommendation

9. The Committee’s comments and recommendations on the remaining powers are detailed below.

Sections 2(3) and (4) (inserting paragraph 8A(1) of schedule 3, and paragraph 7A(1) of schedule 4, to the Licensing (Scotland) Act 2005 (“the 2005 Act”) – Alcoholic drinks containing caffeine

Power conferred on: Scottish Ministers
Power exercisable by: regulations
Parliamentary procedure: affirmative procedure

Provision

10. Section 2 imposes new mandatory conditions in respect of both premises licences and occasional licences (used for temporary events) granted under the 2005 Act. This would cover both “off-sales” and “on-sales”. These conditions would prohibit, in licensed premises or as part of an occasional licence, the sale of alcoholic drinks with a caffeine content in excess of such amount as may be prescribed by regulations.

11. For premises licences, the new condition is contained in a new paragraph 8A inserted into schedule 3 to the 2005 Act. For occasional licences, it is contained in a new paragraph 7A inserted into schedule 4. Paragraphs 8A(5) and 7A(5) require the Scottish Ministers to prescribe a maximum amount no later than 12 months after Royal Assent to the Bill. Further regulations might adjust the limit subsequently. Amendments to section 146 of the 2005 Act apply the affirmative procedure for scrutiny of the regulations.

Comment

12. The Committee asked the Member for explanation of the following matters, in relation to this power to make regulations:

(a) The Scottish Ministers must prescribe an amount (a maximum level of caffeine in caffeinated alcoholic drinks) under these powers no later than 12 months after the date of Royal Assent to the Bill. Why has this timing been chosen as suitable?

(b) It appears that these powers would enable the Ministers to prescribe either the same or different maximum amounts, for the purposes of premises licences and occasional licences under the 2005 Act. Why is this considered to be appropriate?

13. The Member has responded to the Committee on question (a), that he considers a 12 month period to be sufficient to allow the Scottish Ministers to make a considered judgment on the appropriate maximum caffeine level, taking into account the available research and evidence, while still ensuring that the provision could take effect without undue delay. The Committee accepts that explanation.

14. On question (b), the Member has responded that the fact that the mandatory conditions for premises licences and those for occasional licences are set out in separate schedules to the 2005 Act make it necessary for the Bill to make separate textual amendment of each schedule, in identical terms. The Member’s expectation is that Ministers would make a single set of regulations, to specify a maximum caffeine level that would apply for the purposes of both the proposed new paragraph 8A(1) of Schedule 3, and paragraph 7A(1) of Schedule 4, to the 2005 Act.

15. The Member states in response that “it is difficult to conceive of circumstances in which [Ministers] could justify setting differential caffeine levels for the two types of licence. The theoretical possibility that they might do so does not seem to me to create a problem in practice, and I therefore do not think that amending the Bill to prevent this could be justified.”

16. The Member also explains in response that his expectation is that a single set of regulations would set one maximum level which would apply to both types of licence, and that Ministers would need to make a considered judgment on the appropriate level, taking into account the available research and evidence.

17. The decision whether to set differential maximum caffeine levels will therefore depend on the underlying policy considerations, and the consideration of the available research and evidence, relative to consultation on the draft regulations which would propose to set the appropriate level/s.

18. The Committee notes that these powers would enable the Scottish Ministers to prescribe either the same amount or different amounts as a maximum caffeine level in alcoholic drinks containing caffeine which may be sold on premises, depending on whether the premises have a premises licence or an occasional licence.

19. The Member has explained to the Committee that his expectation is that regulations would set a maximum level which would apply to both types of licence. The Scottish Ministers would however need to make a considered judgment on the appropriate maximum level/s, taking into account the available research and evidence when proposing the draft regulations. The Committee does not consider that the power to set differential levels is justified solely by the Member’s contention that the power requires to be drawn in two separate provisions, one related to premises licences and the other related to occasional licences (new paragraph 8A(1) of Schedule 3, and paragraph 7A(1) of Schedule 4, to the 2005 Act).

20. Whether the same or different maximum levels should apply, however, depends on the underlying policy considerations and consideration of the available research and evidence (relative to consultation on the draft regulations which would propose to set the appropriate level/s). While the Committee is content with these powers in principle, and that the affirmative procedure should apply to the exercise of the powers, it therefore draws to the attention of the Health and Sport Committee that the powers would enable either the same or different levels to be set, depending on the type of licence which applies to premises.

21. The Committee considers that it would be equally possible in principle, and were it to be demonstrated to be an appropriate policy, for section 2 to be amended at Stage 2 to provide that the same maximum caffeine level must apply, as a mandatory condition in relation to both types of licence. It recommends that the Health and Sport Committee considers this further.

Annexe

On 22 September 2015, the Delegated Powers and Law Reform Committee wrote to the Member, Dr Richard Simpson MSP as follows:

1. The Delegated Powers and Law Reform Committee considered the above Bill on Tuesday 22 September and seeks an explanation of the following matters:

Sections 2(3) and (4) (inserting paragraph 8A(1) of schedule 3, and paragraph 7A(1) of schedule 4, to the 2005 Act) – Alcoholic drinks containing caffeine

Power conferred on: Scottish Ministers
Power exercisable by: regulations
Parliamentary procedure: affirmative procedure

2. Section 2 imposes new mandatory conditions which would prohibit, in licenced premises or as part of an occasional licence, the sale of alcoholic drinks with a caffeine content in excess of such amount as may be prescribed by regulations.

3. The Bill would insert new paragraphs into the Licensing (Scotland) Act 2005 which would require Scottish Ministers to prescribe a maximum amount of caffeine in caffeinated alcoholic drinks, no later than 12 months after Royal Assent to the Bill.

4. The Committee asks the Member in Charge of the Bill for explanation of the following matters, in relation to the powers in sections 2(3) and (4) (inserting paragraph 8A(1) of schedule 3, and paragraph 7A(1) of schedule 4, to the 2005 Act):

(a) The Scottish Ministers must prescribe an amount (a maximum level of caffeine in caffeinated alcoholic drinks) under these powers no later than 12 months after the date of Royal Assent to the Bill. Why has this timing been chosen as suitable?

(b) It appears that these powers would enable the Ministers to prescribe either the same or different maximum amounts, for the purposes of premises licences and occasional licences under the 2005 Act. Why is this considered to be appropriate?

Section 34(2) – Commencement

Power conferred on: Scottish Ministers
Power exercisable by: Regulations
Parliamentary procedure : Laid, no further procedure

5. The commencement powers provides for certain provisions as listed in subsection (1) to come into force on the day after Royal Assent. The other provisions are proposed to automatically commence 12 months after Royal Assent, unless Ministers bring any of them into force earlier by regulation (subsection (2)).

6. These commencement powers are relatively unusual as they set out when certain provisions will come into force, unless regulations are made to commence these provisions earlier. Such powers take into account that this is a Member’s Bill rather than a Government Bill.

The Committee asks the Member in Charge of the Bill for explanation of the following matters, in relation to the commencement powers in section 34 –

(a) Subsection (1) of the section lists various provisions which would come into force on the day after Royal Assent. Subsection (2) provides that the other provisions come into force at the end of 12 months from the day of Royal Assent, or on such earlier day as the Scottish Ministers may by regulations appoint.

Please clarify why the various provisions as listed in subsection (1) have been selected as suitable for commencement on the day after Royal Assent, with the other provisions coming into force by regulations?

(b) Why has a timing of 12 months from Royal Assent to the Bill been selected as a suitable longstop date, by which the Scottish Ministers must have commenced the remaining provisions?

The Member responded as follows:

My responses to the Committee’s queries are set out below.

Section 2 – Alcoholic drinks containing caffeine

The Committee notes that the Scottish Ministers are required to prescribe (in regulations) a maximum level of caffeine no later than 12 months after the date of Royal Assent, and asks (a) why this timing was chosen.

While Government Bills that delegate power to Ministers will often do so without explicit time constraints, it is normal for a Member’s Bill to seek to limit the discretion afforded to Ministers, as a reflection of the Member’s own lack of control over Ministers’ subsequent exercise of those powers. In this context, I consider a 12-month period sufficient to allow Ministers to make a considered judgement on the appropriate caffeine level (taking account of the available research and evidence), while still ensuring that the provision can take effect without undue delay.

The Committee then notes that the provision would enable Ministers to prescribe either the same or different maximum amounts for premises licences and occasional licences, and asks (b) why this was considered appropriate.

The explanation for this is simply that the mandatory conditions for premises licences, and those for occasional licences, are set out in separate schedules to the 2005 Act – making it necessary for the Bill to make separate textual amendment of each schedule (in identical terms).

It is common practice in legislation to have separate regulation-making powers which can be jointly exercised by a single statutory instrument. In this case, the expectation is that Ministers would make a single set of regulations specifying a caffeine level that would apply for the purposes both of new paragraph 8A(1) of schedule 3 and of new paragraph 7A(1) of schedule 4.

Exactly the same drafting approach was taken by the Scottish Government in the Alcohol (Minimum Pricing) (Scotland) Bill, introduced in 2012. Section 1 of that Bill also inserts new paragraphs (drafted in identical terms) into each of schedules 3 and 4 to the 2005 Act, thus giving Ministers two separate powers to set a minimum unit price, by regulations.

Whenever Ministers make regulations, they must be in a position to explain and defend what those regulations contain. It is difficult to conceive of circumstances in which they could justify setting differential caffeine levels for the two types of licence. The theoretical possibility that they might do so does not seem to me to create a problem in practice, and I therefore do not think that amending the Bill to prevent this could be justified.

Section 34 - commencement

Section 34 lists a set of provisions that are to come into force on the day after Royal Assent, and then provides for the remaining provisions to come into force 12 months later, or on an earlier date specified in regulations made by Ministers. The Committee asks for an explanation of (a) why the provisions listed for early commencement were chosen, and (b) why a 12-month deadline was chosen for commencement of the remainder.

In relation to (a), the general approach taken to commencement is to have delayed commencement where there is a need for a lead-in time, but otherwise to adopt early commencement as the default position. In terms of the individual provisions to be commenced early, the explanations are as follows:

  • Section 2: the power to make regulations (setting the maximum level of caffeine) will need to be exercised well in advance of the provision itself coming into force, as the prohibition can be applied only once it is known what level of caffeine in a pre-mixed alcoholic drink would make it unlawful to sell.
  • Section 3: the aim is to end age-discrimination in off-sales as soon as possible, and it is not considered that any additional lead-in time is required in relation to ending Ministers’ own powers to add, amend or prescribe licence conditions (under section 27(2)(a) and (5) and 60(2)(a) and (3) of the 2005 Act). However, it was not considered practical to apply this immediately in relation to Licensing Boards’ existing power to impose age-related conditions on individual licences (under section 27(6) or 60(4) of the 2005 Act). Licensing Boards are further removed from the legislative process than Ministers, and some time may be needed to inform them of the removal of this power, and the implications this may have for the way they make licensing decisions.
  • Section 14: as this section requires Ministers to make the first alcohol education policy statement within 12 months of Royal Assent, it clearly makes sense for the section to be in force throughout that period, so as to retain the 12-month differential between the requirement first applying and the deadline for meeting it.
  • Sections 16, 27 and 28: all the provisions that are to come into force early are those that allow Ministers, by regulations or in guidance, to specify (or vary) detailed aspects of the DBO regime. In some cases, these powers will need to be exercised in advance of the first DBO being made, so that the regime will work as intended. Ministers may also wish any variations to apply as from the date the first such order is made. For these reasons, it is clearly necessary for Ministers to have these delegated powers available before the remainder of the DBO provisions come into force.
  • Section 29: this section consists of definitions of terms used throughout Chapter 1 of Part 2, together with additional regulation-making powers. If all of that Chapter was being brought into force on a single day, there would be no need to provide for early commencement of the definitions. But since (for the reasons already noted) some individual provisions within Chapter 2 are being commenced early, and since those provisions rely on some of the terms that section 29 defines, it is clearly preferable for the definitions to be brought into force on the earlier rather than later date. It also makes sense for the regulation-making powers in section 29 to be in force as early as possible, so they can be exercised in advance of the rest of the Chapter coming into force.
  • Section 30: subsections (4) to (7) require Ministers to take certain steps associated with a pilot exercise, the first of which is to be done “as soon as reasonably practicable after … Royal Assent”, so clearly these provisions need to be in force immediately if Ministers are to comply with that timescale.
  • Part 3: in line with normal drafting practice, the general provisions made in this Part are to come into force at the earliest opportunity.
  • Schedule: paragraph 8 requires Ministers to carry out an annual review of the fixed penalty (for advertising offences), with the first such review required within 12 months of Royal Assent – thus making it necessary to bring this provision into force immediately, so that the obligation applies for the full 12-month period before the deadline. Paragraph 9(1) includes a regulation-making power which Ministers will need to exercise in advance of the fixed-penalty regime itself coming into operation, while paragraph 9(3) specifies the applicable procedure – again explaining why these provisions have been selected for early commencement. (Paragraph 9(2) also contains an enabling power, but one which is intended to be used only after commencement of the fixed penalty scheme, so early commencement of this sub-paragraph would not be appropriate.)

In terms of why a 12-month deadline for commencement of the remaining provisions was chosen, this timescale is, again, a pragmatic compromise. I believe it should be long enough to allow the Scottish Government and other relevant parties a reasonable time to make preparations, without allowing undue delay in bringing these important measures into full effect. If there is good evidence that a longer timescale may be needed, this is something that could be considered at Stage 2.

I trust that the above is sufficient to respond to the Committee’s questions.


Any links to external websites in this report were working correctly at the time of publication. However, the Scottish Parliament cannot accept responsibility for content on external websites

Footenotes:

1 The Alcohol (Licensing, Public Health and Criminal Justice) (Scotland) Bill (as introduced) is available at the following website: http://www.scottish.parliament.uk/S4_Bills/Alcohol%20(Licensing%20Public%20Health%20and%20Criminal%20Justice)%20(Scotland)%20Bill/b65s4-introd.pdf [accessed November 2015]

2 The Alcohol (Licensing, Public Health and Criminal Justice) (Scotland) Bill Delegated Powers Memorandum is available at the following website: http://www.scottish.parliament.uk/S4_Bills/Alcohol_DPM.pdf [accessed November 2015]

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