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Alcohol gets a health kick

11 April 2012
Alcohol gets a health kick

It is interesting to see that Westminster is again ruminating on the idea of introducing a public health objective to the Licensing Act 2003. Up in Scotland, we have "enjoyed" such an objective since 1 September 2009 and the introduction of the Licensing (Scotland) Act 2005.

There is much cross-over between the separate Scottish and English licensing systems and this is another example of one government potentially borrowing from another.

The full public health objective in Scotland is entitled Protecting and Improving Public Health. The wording has always been controversial. It is rather odd that the licensed seller of alcohol should have a legal duty to protect and improve public health through the sale of alcohol.

When this objective was first announced, it made headlines in the Scottish press, with one Glasgow paper headlining The Death of the Pie and Pint! and rumbles about pubs being forced to sell salads.

The reality is that most licensing boards simply don't know what to do with the public health objective - far less the trade.

But now things have cranked.

The NHS has been given a statutory role in the Scottish licensing process and, alongside the likes of the police, now appear at licensing boards and submit objections across Scotland.

They famously tried to do so in Glasgow last year, and failed spectacularly, by objecting to a supermarket's licence variation which actually sought to reduce the amount of alcohol on display. But they are learning!

One of the difficulties is in using general health-harm statistics to prevent licences. It is very difficult for a licensing board to simply say that "alcohol is bad" therefore a new restaurant or hotel should not be permitted to open.

There is in fact case law on this point. In Galloway v Western Isles Licensing Board 2011 the Sheriff held that for a licensing board to be able to properly deal with health-harm statistics those stats would have to be tied to the specific premises and the specific application. In other words, general bleating about the state of the nation's relationship with alcohol will just not cut it.

But the NHS is here to stay in Scottish licensing, and we must all get used to it. The licensed trade is now under more scrutiny than when regulated under the temperance legislation of the early 20th century.

Stephen McGowan is director of Licensing at Lindsays and author of Licensing and Gambling Law in Scotland

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