Posted On: 14 April 2011
Author: Scott Blair
Licensing counsel Scott Blair is the guest columnist in issue 47 of Scottish Licensing Law and Practice which has just been published. In it he considers the scope of the principle of proportionality in relation to licensing decisions taken under the Licensing (Scotland) Act 2005.
Scott is grateful to Jack Cummins, editor of SLLP, for allowing the article to be published on the Murray Stable website.
The Contours of Proportionality: A Learning Curve
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.
The Nicholson Committee considered that reform of Scottish licensing law should take into account proportionality as licensing decisions could engage the right to peaceful enjoyment of possessions secured by Article 1 of the First Protocol to the ECHR.
At paragraph 33 of Appendix C to the Committee's report it was noted that a 'Wednesbury reasonableness' approach to licensing decisions would not be sufficient to secure full compliance with the ECHR.
In particular the Committee considered that there was force in the speech of Lord Steyn in R (on the application of Daly) v Secretary of State for the Home Department  UKHL 26 when he drew a distinction between Wednesbury and proportionality.
Lord Steyn sought to explain that difference in three ways (at paragraph 27):
'First, the doctrine of proportionality may require the reviewing court to assess the balance which the decision maker has struck, not merely whether it is within the range of rational or reasonable decisions. Secondly, the proportionality test may go further than the traditional grounds of review inasmuch as it may require attention to be directed to the relative weight accorded to interests and considerations. Thirdly, even the heightened [Wednesbury] scrutiny test developed in [R v Ministry of Defence ex parte Smith  QB 517 at 554] is not necessarily appropriate to the protection of human rights.'
Earlier in his speech he said that:
'The contours of the principle of proportionality are familiar. In de Freitas v Permanent Secretary of Ministry of Agriculture, Fisheries, Lands and Housing  1 AC 69 the Privy Council adopted a three stage test. Lord Clyde observed, at p.80, that in determinig whether a limitation (by an act, rule or decision) is arbitrary or excessive the court should ask itself:
"whether: (i) the legislative objective is sufficiently important to justify limiting a fundamental right; (ii) the measures designed to meet the legislative objective are rationally connected to it; and (iii) the means used to impair the right or freedom are no more than is necessary to accomplish the objective."'
This is sometimes referred to as the 'Daly template' for proportionality.
As a result of the views of the Committee, proportionality has now been made a ground of appeal in relation to review hearing decisions in relation to premises or personal licences. Under Sections 131(3)(b) and 131(4) of the Licensing (Scotland) Act 2005 ('the Act') it is a ground of appeal where a 'step' is taken which is disproportionate in all the circumstances.
(Continued.......To read the full article please click on the link at the top of the page.)