New publication is a ‘fundamental attack’ on the licensing system
By Jack Cummins
EARLIER this year, Edinburgh licensing board came under fire following decisions to grant premises licences to supermarket operators for two new stores in the city’s Tollcross area.
Alcohol Focus Scotland (AFS) chief executive Dr Evelyn Gillan told the Edinburgh Evening News that the grant of the licences was “irresponsible” and it was “very worrying” that Eric Milligan, the board’s convener, was unaware of “clear evidence” linking alcohol availability and harm.
She said: “The licensing board has a duty to protect the public interest and decisions like this are clearly failing to do so.”
Then, a month ago, AFS published a paper analysing licensing board policies for the period from 2013 to 2016 (as reported in SLTN August 21).
Unsurprisingly, it seems that a policy was only a “good policy” if it matched AFS expectations.
Many boards are faulted in a number of areas, including: presentation and “readability”; the lack of an “evidence base” or “contextual information”; a “lack of transparency” as to how consultees’ views had been acted upon; and a failure to explain policy approaches.
Potential health benefits flowing from employment are dismissed out of hand.
There’s also dissatisfaction that Sunday opening from 11am for on-sales premises is now standard in all but one board area.
Potential health benefits flowing from employment opportunities created by new licensed developments are dismissed out of hand.
Many policy statements are accused of placing too much emphasis on the trade’s contribution to local economies and tourism.
And when it comes to overprovision, boards need only use the standard of evidence used to support bans on tobacco display and alcohol marketing. (That startling assertion came hard on the heels of a suggestion from a public health professor in England that alcohol labels could warn of the risks of cancer and domestic violence).
I agree with AFS that the statutory guidance to boards, which was issued over seven years ago, is ripe for a fresh look. It’s also true that some policy statements are better expressed than others and demonstrate a more thorough approach.
But, nevertheless, I reckon we’re now seeing a fundamental attack that goes to the heart of the system.
When the Nicholson Committee was set up to review licensing law, consideration was given as to whether boards ought to be replaced by a new kind of tribunal that might include representatives from the trade, residents’ groups, the police and public health.
But the committee saw a risk that such an approach would lead to “competing sectional interests” and considered that councillors were “well suited” to being board members “on account of their local knowledge and their democratic accountability to the electorate”.
It was recognised that local licensing forums could play an important part in a new system by keeping its operation under review, taking account of the implications of relevant local police and health data and advising the board in relation to any matters of concern. And, of course, health boards have a guaranteed seat at every local forum as well as a right to be notified of applications presented to boards.
Inevitably, licensing boards’ rulings will occasionally attract flak from interest groups – indeed, for lawyers representing the trade their approach is sometimes frustrating – but I’d far rather work under the current arrangements than hand decision-making over to those who have refused to sit at the same table as the trade (recalling the recent health walkout from the National Licensing Advisory Group), show no tolerance towards opposing opinions and offer no positive words of encouragement to the responsible licensed trade.
And isn’t it ironic that AFS should take the Scotch Whisky Association to task for “blatantly disregarding” the democratic process in its legal challenge to minimum pricing, while having the confidence to accuse democratically-elected boards of “irresponsibility” and a dereliction of duty?
• Jack Cummins is one of Scotland’s leading licensing lawyers. Every month he writes on licensing law and answers readers’ questions in SLTN.
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