BLOG: Just how useful are licensing laws for improving public health?

Despite legal changes in Scotland, councils are struggling to use public health as an argument against new pubs and off-licences.  We need to reconsider the role of licensing in the context of other ways to achieve the same ends, suggests Niamh Fitzgerald.

The public health armoury available to reduce the harm caused by alcohol seemed greatly strengthened when the law in Scotland was changed in 2005.  The legislation demanded that alcohol licensing decisions should protect and improve public health.  This extra requirement was additional to licensing authorities’ traditional duties to prevent crime and public nuisance, protect public order and keep children safe.

However, a series of interviews with those involved in trying to influence such decision-making suggests that, ten years on, reality is failing to match expectations of this legislation.  This is not the first study to find that the apparently emboldened law may be quite weak in practice.  Some felt that it risked becoming meaningless.  It is not clear that everyone has the same understanding of what the public health objective is supposed to achieve.  In Scotland, licensing is often seen in health circles as part of a “whole population approach” – an attempt to reduce alcohol problems by tackling drinking across the population, rather than focusing on minority groups.  This approach relies on a holy trinity of “evidence-based measures” – price (increases), availability (reductions), and marketing (controls).  However, councils, through their independent licensing boards, are not finding it easy to use the public health licensing objective as an argument to cut local availability of alcohol.

The new law is operationally weak because it is insufficient for a council simply to say that it believes the interests of public health are best served by denying a licence.  If public health is to be used as a reason for declining a licence application, a council must have good evidence that issuing a licence poses a risk to public health.  That’s not easy to do.  How does one prove that one more pub, among so many others, will add to public health harm?  Yet the burden of proof seems to rest with those arguing for public health.  They would be in a stronger position if responsibility lay instead with applicants – if they had to prove that an extra licence would not be detrimental to public health.  Some have attempted to use licensing policy to shift this burden.

Councils also face potential challenges from licence applicants who can hire top lawyers to represent them at both the often formal and legalistic licensing meetings, and later in court, should they disagree with a decision.  The annual turnover of a supermarket chain can be greater than the GDP of Sweden, so legal advice at the supermarket’s disposal will inevitably exceed that available to a local authority.  Local politicians don’t like – and cannot afford – to end up in court.

This weak legal position compounds the fact that some councils have still not really got to grips with the idea of licensing being about public health.  It is much easier to convince local politicians with arguments that sit in traditional licensing territory – that a pub is a risk to public order, if it is serving drunks and there are fights in the streets.  Many councillors, keen to please their voters, are less convinced that it’s their job to reduce drinking in general – they may fail to buy into the public health objective at all.  Many public health professionals believe that the public will support their position. However, it is unclear how the public really feel and what the longer term impact might be of mobilising the public to get involved in local licensing decisions.

What is to be done?  A war chest, to fend off legal challenges, might bolster the law and encourage local authorities to use it more ambitiously.  But, perhaps, we should also re-examine the purpose and limitations of alcohol licensing.  In an era of increasing online sales and home-drinking, what can be realistically expected from action on licensing, even with more robust legislation?  Are there better ways to wield the big three weapons of price, availability and marketing?  Raising prices via minimum unit pricing may be a more reliable policy.  Or, if the goal is to reduce the presence of alcohol in our public spaces, diminishing its cultural symbolism, then restricting advertising on bus shelters, hoardings and on television after 10pm might be much more effective (and more achievable).  All these considerations call, perhaps, for a re-evaluation of the role we envisage for alcohol licensing in pursing improved public health.

Although the details of the evidence are messy, it makes sense that a reduction in the numbers of licensed premises will reduce some of the opportunities to purchase or drink alcohol.  It may also make a statement about the normality and cultural acceptance of drinking.  But perhaps, in the short-term, we have been expecting a bit too much from this change in the law.  Action on alcohol licensing may sometimes seem like the most effective policy option available to local public health professionals. However, they should not lose sight of what can be done locally in relation to other approaches that may prove stronger, more effective levers for reducing alcohol-related harm.

Dr Niamh Fitzgerald is a Lecturer in Alcohol Studies, Institute for Social Marketing, University of Stirling.

She will present on “Using alcohol licensing to achieve public health objectives: limits and limitations” at a seminar hosted by SPHR@L on 20th May 2015 at the London School of Hygiene and Tropical Medicine.