Licensing law and sectarianism
Sectarianism is a hot political topic right now in Scotland. Much of the debate centres on the problems associated with the actual or perceived links to Irish politics of those who support the "Old Firm" football teams of Rangers FC or Celtic FC.
The sectarianism debate is beginning to spill over into the world of licensing law. The press has reported in the last few months action taken by a number of Scottish police forces in relation to licensed premises alleged to be the source of sectarian tension.
Such action became the focus for legal debate in the recent case of Thomas Smith v. North Lanarkshire Licensing Board , 3 March 2005. The case can be found in the "Court Opinions" section of the Scottish Courts website. The link appears above.
In that case the Inner House of the Court of Session decided to overturn the decision of the Licensing Board made under section 31 of the Licensing (Scotland) Act 1976 to suspend for one month the public house licence held by Mr Smith. The premises in question had operated as a "Celtic" venue for a number of years without incident. Items associated with Irish republican politics which had been on display for a number of years were removed by the police after Mr Smith failed to remove them himself. The items in question could have fallen foul of a licensing board authority bye-law but this bye-law had never in fact been applied to the premises. The Board held that the items were sectarian in nature and as consequence Mr Smith was no longer a fit and proper person to hold the licence.
In the circumstances of this case, and given the particular history of the premises, the Court found that the reasons given by the Board for suspending the licence were inadequate and that decision to suspend was unreasonable. The Court ordered that the suspension be set aside.
The Court left open the wider question of when action by a Board might be justified in future cases. The stong impression is however formed that it may not be enough to rely on the allegedly sectarian nature of the material in question without there also being some evidence or actual disorder or a real threat of disorder.
Article 10 of the European Convention on Human Rights might also be relevant in this regard should further cases come before the courts. Article 10 secures the right to both freedom of political and/or commercial expression. In a future case might a publican be entitled to argue that the display of certain material is protected by Article 10 ? For example could Article 10 be used to challenge the legality of a bye-law which restricts the freedom of expression of a licenceholder ?
The sectarianism debate is beginning to spill over into the world of licensing law. The press has reported in the last few months action taken by a number of Scottish police forces in relation to licensed premises alleged to be the source of sectarian tension.
Such action became the focus for legal debate in the recent case of Thomas Smith v. North Lanarkshire Licensing Board , 3 March 2005. The case can be found in the "Court Opinions" section of the Scottish Courts website. The link appears above.
In that case the Inner House of the Court of Session decided to overturn the decision of the Licensing Board made under section 31 of the Licensing (Scotland) Act 1976 to suspend for one month the public house licence held by Mr Smith. The premises in question had operated as a "Celtic" venue for a number of years without incident. Items associated with Irish republican politics which had been on display for a number of years were removed by the police after Mr Smith failed to remove them himself. The items in question could have fallen foul of a licensing board authority bye-law but this bye-law had never in fact been applied to the premises. The Board held that the items were sectarian in nature and as consequence Mr Smith was no longer a fit and proper person to hold the licence.
In the circumstances of this case, and given the particular history of the premises, the Court found that the reasons given by the Board for suspending the licence were inadequate and that decision to suspend was unreasonable. The Court ordered that the suspension be set aside.
The Court left open the wider question of when action by a Board might be justified in future cases. The stong impression is however formed that it may not be enough to rely on the allegedly sectarian nature of the material in question without there also being some evidence or actual disorder or a real threat of disorder.
Article 10 of the European Convention on Human Rights might also be relevant in this regard should further cases come before the courts. Article 10 secures the right to both freedom of political and/or commercial expression. In a future case might a publican be entitled to argue that the display of certain material is protected by Article 10 ? For example could Article 10 be used to challenge the legality of a bye-law which restricts the freedom of expression of a licenceholder ?
posted by Scott Blair at 7:42 AM
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