‘Killjoy’ outdoor drinking bans are here to stay

Recent calls to relax rules on drinking alcohol in public spaces are unlikely to go anywhere, but takeaway pints from pubs won’t be affected

When the reopening of outdoor areas was kicked down the lockdown-easing route map last week, sections of a frustrated public found bright sunshine and the availability of takeaway pints an irresistible temptation. But almost immediately a row has broken out over “killjoy” byelaw bans.

Almost every council in Scotland has introduced byelaws prohibiting the possession of alcohol in an open container or the consumption of alcohol in a designated place. The actual wording of the byelaws varies from area to area, as does the geographical coverage. The Edinburgh approach is atypical: an offence is committed where any person who consumes alcohol in a designated place “fails to desist” when required to do so by a police officer.

A number of Police Scotland divisions have issued warnings to those seeking summer solace in a chilled pint that they could be handed a fixed penalty notice. But ex-Glasgow MP Paul Sweeney stepped in to call for the “outdated” ban to be scrapped, insisting that antisocial behaviour legislation was sufficient.

That view attracted a fair amount of support on social media, but other voices suggested there was enough evidence that some people just couldn’t be trusted to drink responsibly.

It’s an interesting debate – but also a sterile one, because you can be absolutely sure the byelaw bans are here to stay.

Taking a wider look, what’s the on-trade’s position when it comes to selling takeaway pints? I’ve heard it suggested that under no circumstances may alcohol be sold for off-consumption except in the manufacturer’s original, sealed packaging or in a sealed container. That is just wrong.

In fact, the Licensing (Scotland) Act 2005 has little to say about a requirement to sell or supply alcohol for off-consumption in sealed containers. There are just two relevant provisions:

  • Alcohol sold within licensed hours may be taken from the premises within 15 minutes from the end of licensed hours but must not be taken away in an open container.
  • A promotion offering alcohol as a reward or prize is only lawful if the drink is in a sealed container and consumed off the premises.

But challenges could arise when off-sale alcohol is supplied to a customer in a fashion that clearly anticipates more-or-less immediate consumption – leading to a claim that the licence holder is effectively encouraging a byelaw breach, or at least making it easier.

There will be some modes of supply where that allegation is easily made out: for example, where the alcohol is handed over in a disposable glass with a loose cardboard cover.

Otherwise, this is not a straightforward area. It’s pretty much impossible to provide advice to the on-trade on what definitively constitutes an acceptable degree of enclosure. But there is a bottom line: I wouldn’t rule out cases where takeaway drink linked to byelaw breaches has licence repercussions.

There’s something of a paradox here. If a member of the public is intent on so-called “street drinking” a ring-pull can of beer from a shop provides a ready answer; and, of course, wine is now more commonly sold with a screw top rather than a cork.

I’m willing to bet that when we’ve seen illegal drinks parties in parks and on beaches, the alcohol wasn’t purchased in pubs.

Jack Cummins is one of Scotland’s leading licensing lawyers. Every month he writes on licensing law and answers readers’ questions in SLTN.

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Jack Cummins is unable to enter into personal correspondence on readers’ questions. The advice offered in SLTN is published for information only. No responsibility for loss occasioned by persons acting or refraining from action as a result of material contained in SLTN can be accepted by the author or publisher.