Law & legal affairs: Your good health? The heady cocktail of law and libations

By STEPHEN MCGOWAN
Published on 21/01/2013 00:00

THE Scottish Government has recently announced extending licensing reform with a new consultation, Further Options for Alcohol Licensing.

The principal Licensing (Scotland) Act 2005 has undergone significant revisal through the Criminal Justice and Licensing (Scotland) Act 2010 and the Alcohol etc (Scotland) Act 2010, not to mention countless regulations.

The Alcohol (Minimum Pricing) Scotland Act 2012 had its days in court last week.

Among the most problematic changes has been the increasing role of “health” in the licensing system.

The 2005 act created a series of objectives to underpin the system, one of which is “protecting and improving public health”.

This has always been a concept met with confusion – how can the purveyor of a licensed drug have a legal obligation to not only protect, but improve the public’s health?

When the act was announced I fondly recall the Evening Times headline “The Death of the Pie and Pint: publicans forced to sell salads”.

It has not quite worked out that way. What we do have is a greater voice of health officials in licensing, especially since the NHS health boards were upgraded to statutory consultees.

It is not uncommon for NHS representatives to make comment at licensing board hearings. Typically their input is to challenge applications and object to the grant of licences.

Licensing boards are finding it difficult to deal with health objections and some of the decisions they have made on health grounds have been successfully overturned on appeal or reheard.

The typical scenario is where the health official presents statistical information painting a bleak picture of the nation’s relationship with alcohol. Something must be done and boards are often told that they are the protector of the nation’s health. There are a number of difficulties with this approach.

It is not sufficient to refuse a licence application on the single basis that the nation has a poor health record.

The law requires boards to make decisions on an evidential basis and each application must be taken on its own merits.

In other words, for a board to refuse an application based on health statistics, it has to be satisfied that there is evidence that these particular premises and this particular application will lead to detriment. That is a tall order.

How do you evidence a causal link between one pub and the drink-related A&E admissions of a local hospital, for example?

The difficulty for boards is that they have the unenviable task of doing their best while operating in a context of alliterative media headlines such as “Binge Britain” and “Alcohol Apocalypse”.

The new consultation is overtly driven by requests from alcohol health charities. Out of 21 proposals for reform only one may, charitably, be attributed to the trade.

The health bodies seem less than enamoured with the independence of local licensing boards and now seek to restrict that by asking for a “locked-in” licensing system based on health-led policy where local discretion is fettered, and where the only concern of a licensing board should be the policy which, incidentally, would be incapable of legal challenge.

My guess is that that sort of system will constrict business and investment, and lead to the good operators exiting Scotland.

Lessons must be learned. Temperance legislation failed because the public eventually rebelled against the naysayers and control-mongers and because the system was so restrictive operators stopped investing and upgrading, leading to run-down premises and disillusioned licensees.

Licensing boards must, of course, consider the adverse affects of irresponsible alcohol sale and consumption.

But they must also be allowed to exercise local knowledge and take into consideration the positive aspects of responsible sale and consumption: regeneration of premises, community benefits, job creation, tourism – and the human happiness which can be engendered through socialising with one’s fellows over a pint, a glass of wine or a dram.

• Stephen McGowan is a director and head of licensing (Scotland) of TLT