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The Licensing (Scotland) Act 2005 provides for a ‘disproportionality’ ground of appeal in relation to certain licensing board decisions. Advocate Scott Blair considers how the concept of ‘proportionality’ might be applied by the Court.
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As can be seen, consideration of how the principle of proportionality should apply to a licensing decision is by no means straightforward. Although the ultimate test is whether a fair balance has been reached that is perhaps easier to state than to apply. Although Lord Steyn noted the application of proportionality will often yield outcomes consistent with the traditional Wednesbury approach, that will not always be the case. The process of reasoning is different as is the role of the appeal court.
Only time will tell how the ‘contours’ of proportionality will be fleshed out as the Scottish courts grapple with this further consequence of licensing law reform. Meantime in council chambers, committee rooms and burgh court halls throughout Scotland, Boards will have to be increasingly mindful of how they go about striking the fair balance which is required of them by the Strasbourg Court.
http://www.murraystable.com/assets/files/articles/Contours_of_Proportionality.pdf