Health objective: fit for purpose?

A decade after the new Act one of its foundations is still weak

Public health campaigners have been targeting the off-trade

THE tenth anniversary of the Licensing (Scotland) Act 2005’s full implementation passed quietly two weeks ago.

It was a measure designed to blow away the thick layer of dust covering legislation that had spectacularly failed to keep up with retail practices and society’s attitude to alcohol.

A root and branch reform would, we hoped, produce a new system that was less complex, drive up standards in the trade and get to grips with the fall out from excessive alcohol consumption.

The Act’s introduction of ‘licensing objectives’ – in a sense, the engine that drives the legislation – mirrored a similar step when the law was overhauled south of the border in 2003.

There was, however, a crucial difference – one which has proved to be particularly troublesome.

When the Nicholson Committee was set up to review the Licensing (Scotland) Act 1976 and recommend “changes in the public interest”, it was required to have particular regard to “the implications for health and public order”.

Thus, unsurprisingly, the committee proposed the “promotion of public health” as a ‘licensing principle’. In the result, the wording of the objective found in the Act was framed rather differently: “protecting and improving public health”.

Looking back over the last 17 years or so, the context in which the ‘public health’ objective came into life appears odd.

When the Nicholson report was published in 2002, the focus of concern was not – as you might imagine – alcohol misuse leading to high mortality rates among those who consumed excessive quantities of off-sales alcohol sold at rock-bottom prices.

Instead, elements of the on-trade were lambasted for promotions described by the committee as “distasteful”: significant price reductions running for long periods and “all you can drink for £10” deals.

This was a time when tackling the scourge of ‘binge drinking’ in pubs and clubs was at or near the top of the alcohol reform agenda. As the report noted, “some establishments appear willing to indulge in extreme promotional activities in order to attract customers regardless of the consequences which that may have both for  the health of these very customers and also for the wider public interest in terms of public order and amenity”.

Now those who seek to pursue the ‘public health’ objective have turned their firepower in the direction of the off-trade.

Are campaigners making any headway?

I’ve listened to – or been involved in – countless application hearings where a health board has taken a statistics-led approach.

The logic is pretty simple. In a particular area, the figures for alcohol-related illnesses have a very unattractive look and granting another licence is a bad idea.

The problem with such an approach is a basic one.

Decisions taken by licensing boards must be evidence-based.

Let’s take an extreme example: a proposal to open an off-sales emporium in the near vicinity of a facility for recovering alcohol addicts could scarcely sit comfortably with the ‘public health’ objective.

But ordinarily is it enough to say that, simply as a matter of commonsense, another alcohol outlet is bound to make matters worse? Or is that just a guess?

Holyrood’s Local Government and Communities Committee has been taking evidence on communities’ engagement with the licensing process. And a submission by a licensing board precisely captures the problem here: “Statistical data may be relevant to public health harm, but it is difficult to establish an evidential link to the operation of specific premises”.

While commending the Scottish Government for attempting to address alcohol-related harm through the licensing system, the board considers there’s a case for abandoning the ‘public health’ objective.

It’s not going to happen.

But a Sheriff has already ruled in a licensing appeal that there was no factual basis for an off-sale refusal on ‘public health’ grounds based on information supplied in an NHS objection.

Of course, boards have the option to reject an application on the overprovision ground – altogether a more straightforward exercise – but one which leaves the value of a ‘health objective’ in real doubt.

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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Jack Cummins is unable to enter into personal correspondence on readers’ questions. The advice offered in SLTN is published for information only. No responsibility for loss occasioned by persons acting or refraining from action as a result of material contained in SLTN can be accepted by the author or publisher.