What role will MUP play in overprovision policies going forward?
By Jack Cummins
LAST month I revisited minimum unit pricing (MUP) and took a look down the road ahead.
In the meantime this troublesome topic made an appearance in the most unexpected place – as the deciding factor in a licensing appeal.
There’s a significant backstory here.
Around six years ago Aldi, the discount supermarket business, successfully assailed the refusal of a licence for a new store in Dundee.
An appeal succeeded on the basis that the licensing board’s overprovision policy was fatally flawed: the board had tripped up by failing to carry out a consultation on the policy that satisfied the requirements of both the Licensing (Scotland) Act 2005 and guidance issued to licensing boards by the Scottish Government.
The board carried out a fresh consultation exercise and subsequently adopted a new policy seeking to halt the grant of licences for new off-sales premises in the city – setting the stage for another contest with Aldi.
In January last year another new store application was knocked back and, inevitably, another appeal was launched.
Senior counsel for Aldi launched a number of salvoes at the board’s decision-making process but only one landed on target: the board had failed to take the effect of MUP into consideration.
Why was that omission fatal to the refusal of the application?
The overprovision policy adopted in November 2018, some seven months after the MUP legislation came into force, was driven by a report by the local Alcohol and Drug Partnership. It suggested that alcohol-related harms were principally fuelled by two factors: availability and price.
The policy certainly addressed the former but took no account of MUP.
In his written judgment the Sheriff said that, “the coming into force of the minimum unit price of alcohol had to be considered” but it had not been considered at all.
As I explained in my last column, sunset clause provisions terminate MUP legislation six years after it came into force unless it’s extended by the Parliament.
After five years, Scottish Ministers are required to produce an evaluation report. But, according to the Sheriff, the production of that report “did not preclude [the board] carrying out their own research” which might have led to the adoption of a supplementary statement of licensing policy.
While Aldi was handed the palm of victory, the story doesn’t end there.
Back in 2016, the Sheriff granted the licence. This time, the Sheriff elected to send the application back to the board for reconsideration of the decision in the light of his findings.
On the face of it, the judgment raises a whole raft of questions. If the minimum unit price is increased would the efficacy of that measure require to be evaluated locally? Will other licensing boards require to revisit their overprovision policies and factor in the impact of MUP? What about the effect of the pandemic on alcohol purchasing and consumption? Perhaps more fundamentally, should there not be a requirement for licensing boards to assess whether their policies are achieving their desired outcomes?
Coincidentally, following this month’s local council elections new licensing boards will be constituted and work will start on the formulation of new policy statements that must be in place by November next year.
Of course, overprovision isn’t the only policy element and the position adopted by boards in a whole range of areas has an impact on licensed businesses of all types.
Will your local board decide on longer trading hours? Might there be a relaxation of children’s access to pubs and restaurants? And can we expect decisions that will help to boost the on-trade’s post-pandemic recovery?
One thing’s for sure: new off-sales will continue to sit within the gun sights of many licensing boards and on the wider front MUP will continue to climb up the licensing agenda.