Legal advice: Aberdeen drink policy ruled unlawful

By thePublican.com's team of legal experts from London solicitors Joelson Wilson.​

The Aberdeen City Licensing Board was left licking its wounds in November, after being defeated in the Court of Session, Edinburgh, following a judicial review of its policy aimed at tackling "anti-social behaviour and ill health occurring as a result of binge-drinking".

Here are the details of the case. The judicial review was brought by Mitchells & Butlers and Spirit Group, which had a stake in 26 city bars in the area. The case concerned minimum price tariffs in Aberdeen. The licensing board had issued a policy on tackling "irresponsible alcohol promotions on licensed premises". In effect this was an attempt to abolish "happy hour" and similar promotions.

In September 2004, the chairman of Aberdeen City Licensing Board wrote to all licence holders and nominated managers in the city advising them that it would implement a new policy on irresponsible alcohol promotions from October 19 2004. The letter set out the minimum price at which alcohol should be sold.

Any licence holders who sold alcohol below these minimum prices would be deemed to be "irresponsible" it stated. All on-site licensees were asked to sign a formal undertaking that the minimum price tariff would apply, "in order to create a level playing field". Interestingly, the proposed policy did not apply to off-sales.

The minimum price tariff included £1.75 for a pint of beer, lager, ales, stout, cider, premium larger and bottles of alcopops, £1.25 for 125ml measures of wine and £1.20 for spirits. The policy attempted to afford the board specific powers, in the event of any breach, to consider:

• Whether the applicant is a "fit and proper person" to be the holder of a licence
• Whether the benefit of the community as a whole outweighs the detriment to the locality relating to public safety and the likelihood of public nuisance, as customers could be encouraged to "binge-drink", and
• Whether the board should consider suspending the licence under Sections 31 and 32 of the Licensing (Scotland) Act 1976, or imposing a restriction order under section 65.

Lord Mackay stated that the board "would be acting outside its statutory powers, and thus unlawfully, if it adopted and sought to impose a requirement that licence holders sold alcohol at or above minimum prices, which the licensing board had itself fixed". He said it might be possible to "evolve a condition which could be designed to prevent or reduce the risk of excessive drinking occurring".

Scottish licensing laws are currently being revised under a published White Paper expected to become a Bill in February 2005.

It should be interesting to see what debates arise as licensing authorities in England and Wales increasingly try to impose minimum pricing schemes as the Licensing Act 2003 comes into force.