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.

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.

One other point can be made. It is not uncommon for a
licence to be held by someone other than the person who
derives actual economic benefit from the business in
question. If the economic interest in the business is in truth
held or enjoyed by a party other than the licence holder
that might raise questions as to whether the licence holder
can place much reliance on those interests in complaining
about an alleged lack of proportionality.

EHRR CD 41 at 51 the European Commission said:
‘the question whether a licence to conduct economic
activities amounts to a ‘possession’ within the
meaning of Article 1 of Protocol number 1 depends,
inter alia, on whether it gives rise to a reasonable and
legitimate expectation of continuing benefits. A
licence holder cannot be considered to have such an
expectation where the conditions attached to a licence
are no longer fulfilled’.

Interference with the peaceful enjoyment of
possession
For a decision to be disproportionate there must be an
interference which upsets the fair balance between the
general or public interest and the interests of the holder of
the possession. Interferences can be analysed under
reference to the three rules identified in Sporrong and
Lonroth.
All legal rights and property must be lost before there is
deprivation. Deprivation is a more serious step than
control or other forms of interference. It is likely to be
harder to justify on grounds of proportionality than less
severe measures. However in licensing law terms it is
likely that it will be very hard to establish a case of
deprivation.

Licensing (Scotland) Act 2005
asp 16
The Bill for this Act of the Scottish Parliament was passed by the Parliament on 16th November 2005 and received Royal Assent on 21st December 2005
An Act of the Scottish Parliament to make provision for regulating the sale of alcohol, and for regulating licensed premises and other premises on which alcohol is sold; and for connected purposes