HL Deb 30 July 1903 vol 126 cc832-46

[SECOND READING.]

Order of the Day for the Second Reading read.

THE SECRETARY FOR SCOTLAND (Lord BALFOUR of BURLEIGH)

My Lords, I think perhaps the wisest thing that I can do will be at once to relieve your Lordships' minds of any apprehension that I propose to make a speech of a length at all commensurate with that of the Bill which I am about to ask your Lordships to read a second time. There are, as any of your Lordships who have taken the Bill in your hands will see, somewhat more than a hundred clauses, but they are not by any means new matter. The Government announced in the Gracious Speech from the Throne that they proposed to deal during the-present session both with the Amendment and with the Consolidation of the Licensing Laws of Scotland. An Amending Bill was introduced into another place, and also a Consolidation Bill. Both Bills were read a second time and referred to the Standing Committee, and at the conclusion of the proceedings of that Committee, which sat for some weeks considering the Amending Bill, the results of their labours upon that Bill were transferred by general consent to the Consolidation Bill, which then went through its subsequent stages in the House in the form in which it is now presented to your Lordships.

This Bill, therefore, not only amends but consolidates the licensing law of Scotland. It consolidates the whole of the legislation regarding licensing which has been passed as affecting Scotland from the years 1828 to 1901—a period of more than 60 years. During that period there were passed twelve or fourteen public Acts, and a good many private Acts which had penalties of their own, and they are all now reduced to one harmonious whole; and if this measure passes through Parliament, as I have every confidence it will do, before the end of the session, anyone who wants to study any matter respecting the law of licensing in Scotland will not have to do more than read this measure. I think I am entitled to say that this is a highly creditable and useful piece of work, and one which will tend greatly to the convenience of those who have to deal with these matters in the future.

As I do not anticipate any opposition to the Second Reading of the Bill, I shall pass very lightly over most of its provisions, and only touch upon the most important and the new matters which are suggested for legislation to the House. I am sure your Lordships will see that the Bill is presented in a convenient form, because the parts which are new and the parts which are old are distinctly marked, the new parts being marked with thick black lines, so that your Lordships may rely with confidence that anything which is not so marked is already the law of the land. The Bill, then, is divided into seven parts. The first part deals with the question of the new authorities which it is proposed to set up for licensing purposes. I suppose everybody connected with Scotland knows that at the present time there is a licensing court for every county, and in some cases for divisions of counties, and that every Royal burgh has its licensing court of its own, consisting of the magistrates of the burgh. There is an appeal to Quarter Sessions in the case of counties, and to Quarter Sessions of counties in the case of burghs, the large cities having an appeal to their own Quarter Sessions. Very general dissatisfaction has been felt for many years in regard to the constitution of these authorities or, as they are described in the Bill, courts.

In some of the counties of large size the courts have grown by the increase in the number of justices to such an extensive number that all sense of personal responsibility is lost, and in some of the larger counties there have been courts assembled for what after all is largely a judicial as well as an administrative purpose, numbering ninety or over a hundred members; and there has been a great deal of canvassing and solicitation. It is perfectly notorious that in many cases large numbers of the members of the court appear, having been whipped up by one side or the other, and that as soon as special cases in which they are interested are decided they go away. We have, I hope, successfully made an effort to reform that state of matters. In the future there will be a separate licensing court for every burgh over 7,000 in population, whether Royal or Parliamentary, but the existing Royal burghs which are over 4,000 in population will, as a concession to a sort of, perhaps, vested interest, retain their own court, and in all those cases the court will be the magistrates of the burgh. There are now about eighty Royal burghs with courts of their own. About half of those are below 4,000 in population, There are 118 police burghs, and to, these licensing courts of their own will be given whenever they are above 7,000 in. population.

I think nobody defends the existing state of matters. It is perfectly absurd that a burgh with 348 population should have a licensing court of its own, when a police burgh of 82,000 is still under the control of the county justices. The burghs, I have no doubt—in fact I know quite well—would have desired that all the Parliamentary burghs and all the police burghs should have courts of their own given them, but if that had been done it would have made about 250 different licensing courts in Scotland, one for every three or four parishes, it may be said, and that, I am perfectly certain, would not have tended to wise administration, and is not seriously proposed by anyone. Although this proposal has caused a certain amount of opposition on the part of those burghs from whom licensing authorities are taken away, I think I am entitled to say that it has been very maturely considered, and both the majority and the minority of the Licensing Commission, which sat under the presidency of Viscount Peel, recommended that no burgh which was under 7,000 in population should have a licensing court of its own. That, my Lords, was the recommendation which we first adopted, and which we put into the Bill as we laid it on the Table of Parliament. But, as I have said, as a concession to feeling, and in the hope of modifying the opposition to the proposal which we then made, we have gone down to a population of 4,000 for Royal burghs which now have licensing courts and allowed them to retain in those cases their own courts of first instance.

So far as the counties are concerned, every county or district of a county will have a licensing court of its own. The court will consist half of county councillors and half of justices, and will vary in number from eight or nine in the case of the smallest courts to twenty-one or twenty-two in the case of the larger ones. Where the county or district contains any Royal or Parliamentary burgh under 4,000, magistrates from such burghs will be added to the court in the population ratio. I hope by this means that we shall do away with most, if not all, of the existing difficulties, that there will be introduced a sense of personal responsibility which I am afraid is too often absent at the present time that we shall get the maximum of local knowledge which those resident in these places will have, and at the same time that those very small communities will have their local bias and local feeling corrected by a certain admixture of those who live, not within their borders, but in the immediate neighbourhood.

We provide also for a new system of Appeal Courts. There will be a separate Appeal Court for each burgh or city above 20,000 in population. It will consist half of magistrates and half of justices of the county or of the city, as the case may be. All burghs in each county between 7,000 and 20,000 in population will have an Appeal Court of their own, and in that case the Court will be constituted half of magistrates and half of justices of the peace; and each county, whether divided into districts or not, including all the burghs under 7,000, will have an Appeal Court of its own. The idea is to have as few different policies as may be. We think it advantageous that the largest possible area should be brought under the control of the Appeal Court, so that the decisions in regard to licensing in that area may be as uniform as possible. The second part of the Bill consolidates all the existing provisions as to the power and duties of licensing courts, and confers certain new powers, the most important of which will be found in the forty-first Clause of the Bill and are concerned with the making of by-laws for certain purposes which are there specified.

The third part of the Bill consolidates all the provisions as to Excise licences, and it also contains a new provision of some importance concerning the forfeiture of Excise licences when the holders are guilty of shebeening or hawking liquors without certificates. The fourth part of the Bill consolidates the law as to offences and penalties for various forms of drunkenness and breaches of the licensing system This, I think, will be a great improvement, because many of the larger towns and cities have passed special Acts of their own, defining their own special offences, and decreeing certain penalties, each differing from the other, in regard to them. By this Bill, if it passes, they will all be consolidated into one whole, and the penalties will be uniform over the whole country. Amongst other things, in this part of the Bill a certain measure of liquor which has been the subject of a good deal of conflict and discussion in Scotland is now legalised. It is known as a "schooner." I do not know if many of your Lordships connected with Scotland know how much is contained in a schooner. As a matter of fact, a schooner is two-thirds of an imperial pint. The Home-Drummond Act prevented the sale of any liquor above half-a-pint in anything except imperial measures. I understand that the special thirst in Glasgow requires more than half a pint to slake it, but that it is not necessary to purchase a whole pint, and, therefore, with the economy peculiar to the race this half-way house, so to speak, has been devised. It is undoubtedly illegal at the present time to sell two-thirds of a pint, but if a man wants rather more than half a-pint why should he be forced to buy a whole pint if two-thirds will satisfy him? Therefore, by general consent, it is proposed that it shall no longer be illegal to sell this particular measure of two-thirds of a pint.

This part of the Bill also adopts the English provision forbidding the sale of liquor to children under the age of 16. It restricts Sunday sale except to lodgers and to bonâ fide travellers for their own consumption. The law with regard to bonâ fide travellers differs from the law of England in this respect, that there is no distance charter. In each case the distance which a man must have travelled is considered as a question of fact for the court which hears the case. I think that is more logical, and, at any rate, no serious proposal has been made to alter the law in that respect in Scotland and make it the same as the English law. But one unfortunate decision was given some time ago—at least a decision in my opinion unfortunate—that a bonâ fide traveller when he has travelled a certain distance was entitled to purchase, not only for his own consumption, but for the consumption of any of his friends, whether they had had travelled or not, as much liquor as he liked. We propose to do away with that and to make it clear that the bonâ fide traveller shall be entitled to purchase only for his own personal consumption.

Another clause in this part of the Bill forbids sale from vans except where the liquor has been previously ordered or booked. A custom has grown up for grocers' vans to hawk liquor about, and this has been productive of much evil and will be abolished by the unanimous consent of everybody who has the interest of the population at heart. Clause 76 makes an important consolidation of the various general and local provisions, a matter which I have already mentioned. Clause 72 provides for a Black List on principles analogous to those provided in the Act of last year for England, but with some differences. We propose that when any fourth conviction for an offence scheduled under the inebriates Act has taken place within twelve months, a person so convicted may be put on the Black List with out further procedure. Another clause makes habitual drunkenness, either of husband or wife, a ground for judicial separation; and another clause forbids excisable liquor from being consumed in unlicensed refreshment houses during the hours when the public-houses are closed.

The fifth part of the Bill deals with the difficult and complicated subject of the registration of clubs. That is a mater which was also dealt with in the English Act of last year, but he evils which have grown up in Scotland are, I am sorry to say, much more serious and more deep-seated, and much worse in every way than anything which in known in England, The club of the humbler strata of population is hardly known in Scotland as a social resort. It may be said, without fear of contradiction, that in practically every case where a club has been formed in any of the large towns or cities in Scotland for those below the artisan class, it has been formed solely and only for the purpose of encouraging drinking, for getting drink at times when the public houses and hotels are closed, and generally for purposes which are not defensible. The number of these institutions has been rapidly growing. I have had complaints from every town and city of importance, and no matter has been made the subject of so much public discussion in Scotland as the best means of regulation this class of institution. It has gone to this length, that many of them in Edinburgh and Glasgow, in Dundee and Aberdeen and other places, have actually their agents upon the streets on Sunday for the purpose of touting for customers for the clubs, and in one case it was proved before the Courts that a large number of people had been taken into one of these institutions, and the only colourable defence that could be made for their being taken in and given drink was that they were friends of the waiter, who had treated them.

The provisions we are making are for the registration of clubs upon application by those institution. Before a club can be registered at all a certificate in form of one of the schedules of the Bill must be produced, signed by two justices and magistrates, and by the owner of premises. This certificate must certify that the club is to be conducted as a bonâ fide club, and not mainly for the sale of excisable liquors, and the club rules must comply with the provisions of Clause 80. All clubs of all social classes will have to come under this provision, but if your Lordships look at that clause, you will see, I think, that there is nothing in any one of the rules with which every well-ordered club does not already comply. I need not, I think, do more than refer to that clause, because it is in plain language and will tell its own story. A registered club may be struck off the register, as provided in Clause 85, by the sheriff in respect of conviction before the Sheriffs Court or the Burgh Magistrates' Court if that club or any of its managers have broken the law. The sixth part of the Bill deals with legal proceedings, and really does nothing more than consolidate the present law, with such changes of phraseology as are made necessary by the passing of the Summary Jurisdiction Act. The seventh part of the Bill contains definitions, and there are schedules for the forms of the certificate and so on.

There is, perhaps, one matter to which I should specially allude. Your Lordships know that on recent occasions we have had more than one discussion here as to the limitation of the power of the magistrates of the larger cities to close public-houses and other similar places within their bounds at 10 o'clock at night. It is worth while, perhaps, and this is almost the last topic to which I shall think it necessary to allude, to go somewhat closely into the history of this matter, because in proposing the Bill in the form in which it is now brought before the House, I am asking the House to reverse a decision to which it came in 1887, and also to alter a decision which, at my own instance, it came to last year. The history of the matter is this. By the Act of 1865 a power is given to the licensing court of any district to fix other hours for opening and closing in any particular locality than 8 and 11. In 1872 the magistrates of Rothesay sought, under this provision, to close all the inns and public-houses in that town by drawing a line which included all the inns and public-houses in the burgh, and to say that the area so included was a particular locality in the sense of the statute. The Court of Session decided that such a course was not authorised by the law, and ordered the magistrates to revert to the original hours. That decision was given in 1874, and no further advantage was taken of the provisions of that Act until the spring of 1902, when the magistrates of Glasgow and Dundee resolved to delimit certain areas in Glasgow and Dundee respectively as being particular localities in the sense of the Act, and to fix the hour of closing at ten o'clock instead of eleven, for inns, hotels, and public-houses. That case was taken on appeal to the Court of Session, but it was decided that the locality was fairly delimited, and the decision of the magistrates practically stood. The result is, therefore, that in particular localities magistrates can, in every burgh, define particular areas for early closing.

An Act was passed in 1887 allowing every burgh, with the exception of four or five exempted burghs, to close their public-houses at ten o'clock, and your Lordships will recollect that the exemption in the matter of the larger cities was inserted by this House. Last year the noble Earl opposite, the Earl of Camperdown, introduced a Bill to reverse that decision, and to give the magistrates of those larger cities the same power as was hitherto enjoyed by the smaller communities. Last year I opposed that Bill, and your Lordships may perhaps remember that I opposed it mainly upon two grounds. First, on the ground that if it were carried into effect and the magistrates did so close the public-houses, it would be impossible in the existing state of the law with regard to clubs to avoid a still further and greater increase of bogus institutions of that kind, in which case the last state of matters would be worse than the first. If this Bill passes into law that argument will no longer have any weight. The second main ground of objection which I offered was upon a consideration that in these larger cities there were more people arriving and departing, and that life generally was later, and that the same law ought not to be applied to these larger communities as was applied to the smaller ones. The great argument against me at that time was that although that was true as far as the centres of these cities were concerned, it did not apply to the outlying districts, and that it was hard that there should be no power to close in those districts at an earlier hour it desired. The force of the second argument which I used will, as I think your Lordships will see, be largely taken away by the decision of the Court of Session last year, given subsequently to the time when I was speaking, that it is at present competent for the magistrates of these larger cities to delimit areas in their towns without treating the area under their jurisdiction as a whole.

Although I still remain of opinion that there is no case as yet made out for closing the whole of the public-houses within such communities as those of which I am especially speaking, I think it better not to adhere to the view I previously expressed, but to give way to the practically unanimous opinion of those who were concerned with this Bill ill another place, and allow the provisions of the Act of 1887 with regard to the larger towns to be repealed. There may be some matters which it may be necessary to discuss in Committee, but I think I have gone over all the points which it is necessary to call attention to at this stage. I put this measure before you as a substantial instalment of temperance reform. I am perfectly well aware that it will not do all that everybody wants to do. I do not believe that it is possible, to ever will be possible, to carry out some, at any rate, of the proposals which are glibly made by those who have not to carry them into effect. I would point out, however—and I think it is an important point—that eighteen out of twenty-nine suggestions contained in the Majority Report of Viscount Peel's Commission are embodied in this Bill. Of the Minority Report we take twenty-one out of thirty-two. Many of those, of course, are the same recommendations, but I think I may say broadly, and without fear of contradiction, that we have practically embodied in this measure every provision upon which both the Majority and the Minority Report agree. There are one or two which we have not taken, but I think I may say that we have gone in this matter as far as enlightened and wise public opinion will allow us to go at the present time. If we cannot, as I know perfectly well we cannot, make men sober by Act of Parliament, at any rate we are doing much in this Bill to take temptation out of the way of those in whose way it is at present placed, and, while I think we do not interfere unduly with individual liberty, we are doing a great deal which, I believe, will make for the formation of public opinion in favour of sound tem, perance principles. While we penalise that trader who makes it a large part of his business to avoid keeping the law, we do not hamper those who desire legitimately to carry on what we regard as a necessary business. I believe those who have studied the discussions on this Bill will bear me out when I say that on the whole it has been well received, that it is in accordance with public opinion, and that not only the amendment of the law which we now propose, but the consolidation of all the statutes which we now-bring together, will prove of great, and, I hope, if it passes into law, of lasting benefit to the country in whose interests it is put before the House.

Moved that the Bill be now read 2a— (Lord Balfour of Borleigh.)

THE EARL OF CAMPERDOWN

My Lords, the subject of Scottish licensing is a very important one, and the Bill which is before the House is, as your Lordships will have seen, of very considerable dimensions. I am happy to think that the discussion of this Bill is not likely to bear any proportion to its size. The reason for this is that the Bill, like many Scottish Bills, has been very fully considered by the Government with the aid of the Scottish Members in the other House, and the result is a Bill which I concur with the noble Lord in thinking is a satisfactory one. It goes as far as all reasonable persons would think possible at the present time, and I hope with him that it will produce a very good effect when it comes into operation in Scotland. I therefore only propose to trouble your Lordships with a very few remarks, at all events at this stage of the Bill. I would say, in the first place, that I agree with the noble Lord that the consolidation of all the licensing Acts in this Bill is a step which will prove of great advantage to the country to which the Bill applies, and I also think, with him, that it confers very great credit upon the permanent staff who have been occupied in what must have been a very laborious work.

I think that the licensing authority, as it stands in the Bill, is a very satisfactory one. I am speaking chiefly of the counties. I think that the proportion of one-half of elected members of the County or Burgh Councils, and the other half of justices of the peace in the burgh or the county is, perhaps, the best solution of that question which could have been adopted. As your Lordships will remember, in England two-thirds were to be justices, and one-third elected members of the County Council; but when the English Bill was under discussion I never attached too much importance to that point, because, after all, the very same class of persons are justices of the peace as are elected on the County Councils, and the difference really is one much more of words than of reality. With regard to the Court of Appeal, I have nothing to say against its constitution, except in one small particular, namely, where the smaller burghs have a Court of Appeal in common with the counties. Those small burghs, I know, are very anxious to have licensing authorities of their own. In that I am afraid I cannot agree, and, indeed, I think that the Government have already gone rather too far in the concession they have made by departing from the limit of a population of 7,000 and allowing Royal and Parliamentary burghs with a population of 4,000 to remain separate areas. As a matter of principle, I think it is undesirable that a licensing area should be too small, and except for some stronger reason than that of sentiment I think it is not desirable to create these small islands in the midst of large licensing areas. So far as I can see, no separate representation, and no special representation, is given to the small burghs in the country with regard to the Court of Appeal. It is a matter on which they have made representations themselves, and I think, although I have no brief at all to speak on their behalf and have no special preference for them, it is a matter on which they have some claim to consideration. If the noble Lord could see his way between this and the Committee stage to consider that point, I should be glad. I would much rather that he should propose an Amendment in that direction than that it should be done by myself or any other private member of your Lordships' House.

The most important part of the Bill to my mind is that which deals with grocers' licences. I entertain the notion very strongly, and I think those of your Lordships who know Scotland well must agree with me, that grocers' licences and the way tins business is worked in Scotland do the greatest evil at the present time. In Scotland villages are few and far between, and the cottages are scattered about, and are usually adjacent to the farm-houses. The consequence is that the population is very scattered, and although there may be no public-houses within miles, you will find as a rule that those sparsely populated country districts are more regularly served with liquors through the agency of the grocers' carts than perhaps any other part of the kingdom, and I am vary glad that stringent regulations are made in this Bill on that point. It is provided that in the first place the liquor is only to be taken in carts when it has been ordered, that a book is to be carried by the man who delivers it containing the orders and the name of the person to whom the liquor has been delivered, and there is also to be kept in the grocer's shop a corresponding book, both of which books will be accessible to the police. I hope that this Bill may be successful in dealing with what is undoubtedly a very great evil at the present time. If it proves an unsuccessful means, we must try to find some more effectual means of dealing with it, but in the meantime the proposal in the Bill seems to me as practicable and as sensible a proposal as could be made, and I have no doubt that the County Councils will endeavour to work it in the best way they can.

I really think that it is hardly necessary for me to address any more remarks to your Lordships on points on which I agree with the Bill. I think that the Bill is a very good and a very sensible one so far as I can judge, and I would merely, in conclusion, make one remark to the point on which the noble Lord touched at the end of his speech. I refer to the power conferred upon the municipalities of the seven large towns which were previously exempted of closing at any time between ten and eleven o'clock, which is a power that has been possessed for some time by all other muncipalities. I am very glad indeed to find that the Government have adopted a different attitude from that which they adopted last year towards this proposal. I am also glad my noble friend Lord Wemyss is not present, because if he had been I do not know what he would have said with regard to their backsliding. But the proposal which the Government are now making is, I believe, a sensible one and the right one. I never could understand why there was any less reason to trust the councils of large towns than the councils of small ones. Unless it is evident that the public sense is in favour of closing at an earlier hour, I cannot see any reason why the council of a large town should be more anxious to act against the wishes of the majority than a small council. I do not quite agree with the noble Lord in the reasons winch he gave for this change of attitude. He said that the Courts had now decided that it was in the power of these municipalities to close any districts in their area, but I contend that they had that power for years: there never has been any doubt of it as far as I know. The only instance in which the case came into Court was when Rothesay proposed to divide its whole area into four or six districts, and to close the public-houses in each of those districts. The Court in that case decided that the whole area could not be dealt with in that way under the Act, but with regard to the power of closing in a district, that power has for many years been in force. I am glad that the Bill has been introduced, and I hope that it will pass into law.

THE EARL OF ABERDEEN

My Lords, the noble Lord in charge of the Bill stated that he considered this a practical instalment of temperance legislation, and I have no doubt that the House will feel that that declaration is amply justified. It is certainly a matter for congratulation that the noble Lord has succeeded in so ably dealing with this difficult subject. If the Bill dealt only with that important subject of clubs which my noble friend referred to, it would certainly be a public benefit. The fact that the beverage chiefly consumed in Scotland is spirits as compared with ale, which is more common in England, makes the abuse in regard to grocers' licences particularly easy in Scotland. Personally, I would gladly have seen something further done in this direction. The Bill deals with the sale of liquor by means of grocers' carts, but there is often an abuse without the use of the travelling carts. I refer to the custom of selling spirits in bottles, which are taken by a group of persons, and the spirits consumed, not technically on the premises, but at the door, so to speak, of the establishment where the liquor is purchased. I think the Bill in some other respects might have gone further. My noble friend Lord Camperdown remarked that the Government in the other House had the assistance of the Scottish Members. No doubt the Scottish Members showed the keenest interest in the subject, and proposed many Amendments; but, unfortunately, some of the Amendments which were submitted by the Scottish Members in Committee were not supported by the Government, and are not embodied in the Bill as it is brought up to us. I shall certainly in Committee bring forward some at least of the Amendments which were suggested in the House of Commons. I am glad that my noble relative has included in this Bill the provision enabling public-houses to be closed at an earlier hour in the large towns, which have hitherto been exempted. Although I think the Bill might have gone further, it is an excellent measure, and I trust that it will pass and will pave the way for even further steps in the same direction.

On Question, Bill read 2a and committed to a Committee of the whole House on Tuesday next.