PUNITIVE DRIFT IN SCOTLAND
RE-EVALUATING CIVIC SUSPENSIONS AND THE ULTRA VIRES RISK
By Eddie Grice Scottish Civic Licensing Paralegal and Chairman of the Scottish Private Hire Association
www.spha.scot
Anyone who spends enough time standing before licensing committees, navigating the granular nuances of the Civic Government (Scotland) Act 1982 on behalf of the trade, eventually notices a dissonance. There is a widening gap between the theoretical framework of the Act and its practical application in the committee room.
We all accept the foundational premise of civic licensing. It is an administrative, forward-looking regime designed to protect the public. The statutory fit and proper test is fundamentally concerned with whether a person should hold or continue to hold a licence, rather than providing a general power to punish them for past conduct.
Yet, observing the mechanics of committee decisions across various local authorities, there is an often unchallenged drift toward quasi-judicial punishment.
This raises a slightly uncomfortable but necessary legal question for our industry:
Are Scottish licensing authorities routinely acting ultra vires (beyond their legal power/authority) by policing statutory offences under the guise of local licence conditions?
The punitive v preventative paradox
To understand the boundaries of a licensing authority’s power, we have to look at the anatomy of a suspension. When a suspension is handed down in the heat of the moment following a complaint, the justification given by the committee is often heavily anchored in retrospective bad behaviour.
Too often, there is no clear corrective roadmap. The committee does not explain what the suspension is intended to achieve, what remedial action is required or why that action requires the driver to remain off the road.
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Without a corrective intent or a remedial pathway, a suspension fundamentally ceases to be a preventative measure. It becomes a block of time served off the road. It operates, in every practical sense, as a punitive sanction.
The Scottish alcohol licensing regime has already grappled with this problem, and the core administrative principles have in my opinion obvious relevance to civic licensing. In Lidl UK GmbH v Glasgow City Licensing Board [2013], the Court of Session was unequivocal in finding that a licensing board’s role is not to punish past misdeeds. A suspension must have a genuine regulatory purpose. It cannot lawfully be imposed simply to punish past misconduct where there is no continuing problem which suspension can address.
Sheriff Paul Pender reinforced this logic in Nelson v Renfrewshire Licensing Board [2013]. In that case, a suspension applied after the licence holder had already dismissed the offending staff was overturned. The board had erred in law because there was no continuing risk that a period of suspension could cure. The administrative necessity had evaporated, leaving only a punitive shell.
Applying this doctrine to civic committees exposes a stark fragility in how they regulate drivers. If a private hire driver with an unblemished history faces a single, isolated complaint, what exactly is a suspension attempting to correct?
If there is no established pattern of behaviour, no evidence suggesting a likelihood of repetition and no ongoing risk to mitigate, a suspension imposed without an identifiable continuing risk or remedial purpose risks becoming a semantic veil for punitive action, rather than a genuine exercise of the fit and proper test.
The ultra vires risk of duplicated offences
This punitive mindset is not merely a cultural habit of elected councillors; it can also be facilitated by the way local authorities draft their licence conditions. Take, for instance, a common condition found in local licensing regimes: “The driver of a private hire car shall not ply for hire.”
OCTOBER 2026 PHTM
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