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The truths they don't want you to read....

Sunday, January 23, 2011

Time up - enough is enough

I've carefully read the decision in Ken Galloway v Western Isles Licensing Board, which has resulted in the Golf Club being granted a Sunday Licence, for members only.

Let's pick out a few comments by the Sheriff:
[14] I am satisfied that this appeal should be allowed. It is clear to me that the Board has erred in law, both by applying the incorrect legal test and by the arbitrary application of a general policy. The first thing to be said is that, as a matter of law, in considering the application the Board was required to consider whether there existed any of the grounds of refusal set out in section 30(5) of the 2005 Act. Under s. 30(4), if none of the grounds applied, then the Board must grant the application. Conversely, if any of the grounds applied, the Board must refuse the application. Counsel submitted that these provisions meant that ultimately the Board was not empowered to make a discretionary decision, although of course it might attach different weights to the submissions and other material available to them in applying the legal test. It has of course to be noted that under section 131(3)(a)(iv) of the 2005 Act, one of the grounds of appeal is that the Board has exercised its discretion in an unreasonable manner; indeed that is one of the grounds advanced in the present case.
Then it gets worse:
[15] On what I might describe as the onus point, it is perfectly clear from the statutory language that it is not for an applicant to persuade a licensing Board that what the applicant wants to do will conform to the licensing objectives or any one or more of them. The Board will of course require to consider all relevant material before it, but it is for the Board (and not for the applicant) to sift and assess all that material. Having done so, it must ask itself whether any of the grounds of refusal exist. Here, the Board has not done that; it is clear from the passage from the Statement of Reasons which I have quoted above at para. [4] that having apparently decided that granting the application would result in the increased availability of alcohol, (which the Board says would not be consistent with protecting and improving public health) the Board has qualified that by saying that the applicant had not demonstrated that such increased availability would be consistent with that licensing objective. That qualification leads me to the view that the Board has introduced into its exclusive decision-making process a requirement on the applicant which has no basis in the statutory formula. It discloses a clear error of law.
Before the Sheriff really puts the boot in:
[16] As for the proposition that there has been an arbitrary application of a general policy, it is essential that when applying its licensing policy a Licensing Board must find and demonstrate a causal link between the particular mischief apprehended and the general terms of the policy itself. In Deejays Nightclub v Aberdeenshire Licensing Board (op. cit.) the need for such a link was made clear; and if a general policy is applied without a causal link, an error of law occurs: Aitken v Glasgow City Council (op.cit.)

[17] That is the situation here. Not only were there no objections to the application from the police or from any statutory or other body concerned with public health, those objections which raised that issue were indeed of a generalised nature. The Board did not focus (as it should have done) on the Club itself, its members and guests and its activities; and it failed to explain how granting the application would be detrimental to public health. Now I accept that a part of the Board's Licensing Policy is to protect and improve the health and welfare of patrons of licensed premises; and of course such a policy is laudable. But to apply that general policy to a particular application without examining its specific merits (or demerits) amounts to an arbitrary application.
Could it get any worse?

I sincerely hope not. However, I think the time has come - after repeated failures - for the position of some members of the Licencing Board to be a serious issue for the public to consider.

It is the complete failure to pay any attention - yet again - to the advice of the lawyers employed to give specialised and professional advice to the Board that is unforgivable, and demands change.

Members of the Licencing Board
Those of you who voted to refuse the licence must now consider your position as members of the Board. It is untenable, as you have disregarded the clear established legal advice in favour of a personal view based, it appears to the public, upon your personal beliefs in complete and flagrant disregard of the law.

That is not to say that we in any way decry your personal beliefs, but when you act in a quasi-judicial manner, you must put those aside; as you have been told on many occasions.  You may have acted honourably, but you got it so badly wrong that your fundamental judgement and ability to take objective decisions have been fatally undermined.

To the one member who told the Board that they voted in the way they did because they were lobbied to do so by the LDOS, then the whisky and revolver are in the study.  Go there now.

It can only be a matter of time before complaints are lodged with the Standards Commission, and when upheld that will inevitably further undermine the worth of the views you hold.


Your choice.

Councillors
Are you aware that other Councillors disregard the highly-paid professional advice, in your name?

Backbench Councillors
You are being kept in the dark about the fact that there is a systemic* approach by certain Councillors to not only ignore legal advice, but to bury legal advice and to try to keep that legal advice from other Councillors, and to actively breach the guidance and guidelines they signed up to as Councillors.

The Council is being tarred by their actions, and you as blameless Councillors are going to be tarred with the same brush if you are not careful.

The public confidence in the Council is at an all-time low, and you are not asking the questions, rattling the cages, or demanding that your colleagues observe the obligations of office.

Are you prepared to take a stand, or will you just let them destroy your reputation?


* Systemic - a pattern.  I have the evidence, which is being actively buried by senior officers and senior councillors in half-complete reports.  Why do none of you want to know about it?  Because, you are going to be assumed to be complicit; if you don't do the necessary.

11 comments:

Anonymous said...

But Angus , you as a councillor ignored the planning advice that was given to you in regard to windfarms by the then head planner. Do you plan to foot the bill for the on going farce there?

Anonymous said...

I would circulate this blog post amongst people in the Scottish Parliament, and also Whitehall, who matter.

The one (small) thing that is deterring is that in the Scottish Parliament in particular, there are more than a few people fed up with the Comhairle, or bewildered at the "renegade"* nature of some of the councillors. At some point, and we may be near to that point, the concept of subsuming the Western Isles into the Highlands and Islands council region, will be broached.

* - Renegade - as described by a minister in the Scottish Government. He's got a point.

Anonymous said...

So in layman's terms - they made a right arse of it. And have been told so by a judge.

Tony Giles said...

If you have the evidence why not take it to the standards commission or the press and get it out into the open?

If you've tried to give the information to back-bench councillors and they've ignored it then why not release it?

Anonymous said...

It's amazing. My partner and i totally agree with the points that you have posted here.

Anonymous said...

I could walk down the village in my pants playing the trombone on a Sunday and I’m not breaking the law. But I can’t play golf, call that democracy?

There is no freedom in this country anymore.

Anonymous said...

11.29
You couldn't come into my house and do it as it's my property. The golf club's landlord doesn't want them playing golf on their land on a Sunday. Stornoway Trust members were democratically elected and those who were for golf didn't get the votes. That's what you call democracy in action.

Anonymous said...

12.12 You ought to compare like for like.

If you were his/her landlord then he/she could do just that, and you would not be able to stop him/her from doing so on a Sunday because of your religious beliefs without loosing a long and costly court battle - just as the WILB found out.

Anonymous said...

@11.38

Closer but that's still not like for like. Don't the terms of the golf club lease specify no playing on Sundays? Just as a tenancy can specify no pets, and could try to get away with no trombones. I don't know at what point human rights come in (eg if a landlord were to specify no electric on Sundays and you were daft enough to sign it, could he hold you to it?)

Anonymous said...

I'm not sure exactly what a landlord could specify in a lease, but would have thought as soon as you start to put something like:

1.12.1342a The tenant can play a trombone in their underpants on the premises as that is what the premises were designed for.

1.12.1342b However, the tenant may not play a trombone in their underpants on a Sunday, as according to my religious beliefs Sunday is the Sabbath (not Friday evening to Saturday evening as perhaps indicated in my religions holy book) and I wish the tenant to adhere to my religious beliefs and not their own.

You might have some problems legally!

OK, so not many leases will spell things out in this way, but that is simply because the landlord would be taken to court before the lease could be implemented.

The thing is, the WILB members who voted against granting a license to the golf club did so because of their religious beliefs and pressure from the LDOS and a couple of individuals, and not because of due consideration of the application - no matter what they may say - everyone knows it, so why they can't hold their hands up and say so?

I would hazard a guess that members of the Trust are refusing any change to the lease due to their religious beliefs in exactly the same way.

Anonymous said...

@12.28

10.50 here. Yes, if we assume that the Trust will not discuss sensibly, the question is whether the club can break the terms of their lease (if that is what's holding them back from Sunday swinging) in reasonable confidence that they'd be all right in court, were it to come to that.

And of course religious considerations never have a place in the courts here, do they.