The House of Lords Select Committee on the Licensing Act 2003 decided not to recommend the adoption of “The Promotion of Health” as a licensing objective. I am not altogether convinced that the promotion of health has no such role to play. Here is the written evidence I gave to the Committee.
It is anomalous that local health bodies are responsible authorities, but the promotion of health is not a licensing objective. I have seen many representations made by local health bodies, the content of which is (or should be) irrelevant because of a missing licensing objective upon which to hang it. It is a matter of impression, but I cannot help but suspect that such representations play a part in the decision-making of the licensing authorities. If so, that is an unhappy situation: if the promotion of health is to have any role in licensing it should be unequivocally permitted to do so, and not be required to creep in through the back door.
There is growing evidence of the damage to health that the consumption of alcohol, even in moderation, is capable of causing. I take it as a given that that evidence is not fanciful. Furthermore, a frequently cited justification of cumulative impact policies is that an increase in ‘outlet density’ – the number of premises selling alcohol in a given area – results in an overall increase in consumption. This note assumes that there is some truth behind that assertion.
It follows from the above propositions that an increase in outlet density is likely to result in an increased risk of alcohol-related health issues. A liberal licensing regime (such as we have) that focuses solely on crime & disorder, public safety, nuisance and the protection of children, and fails to weigh in the balance the true extent of proven alcohol-related health issues, may be thought to border on the irresponsible.
It is in relation to the wider issue of outlet density (and the control of it), rather than premises-specific issues on an individual application, that I think that ‘promotion of health’ has the more meaningful role to play as a licensing objective.
Just as a ‘cumulative impact’ objection may have no specific criticisms of an individual application, but maintains that if granted a licence the premises will add to the general mêlée of alcohol-related incidents, so a ‘health’ objection might legitimately be that any addition to an already burgeoning pool of licensed premises is inevitably going to contribute to a general deterioration in public health. That consideration may or may not be determinative of an application: but it is, to my mind, remarkable that it isn’t even in the balance.
The 2003 Act pays insufficient heed to the consequences of an excess of supply over demand. It has failed to acknowledge the possibility that one of those consequences may be the undermining of public health. With the greatest respect to those who have voiced a contrary conclusion, my own observation is that market forces do not necessarily curb the proliferation of licensed premises. (This is particularly apparent in the licensing of betting shops, but is also true of alcohol-licensed premises.) More than one operator may have his eyes on a single market, and they will seek licences to operate in competition with each other to attract that market. The initial result is an excess of supply over demand – but the over-abundant supply often attracts new demand, which not only satisfies the excess supply but, again, is competed for in the opening of yet more licensed premises. Such an escalating cycle was recognised by the High Court in a series of betting and casino cases (because ‘demand’ was a statutory requirement in previous gambling legislation) and it was given the label “stimulated demand”.
The ‘promotion of health’ is capable of being premises-specific. In a recent review of a nightclub, evidence was given of significant numbers of young people being treated for alcohol poisoning in the A&E department of a local Hospital; and they could be identified as having been to the club in question because of the ‘re-entry stamp’ on their wrists, bearing the club’s name. The evidence was adduced as an indication that there were likely to have been sales of alcohol to persons already the worse for wear; and (even by that somewhat tenuous route) it was less than helpful to the licensee’s case: but how much more damning – indeed, it would have been unanswerable – had there been a ‘promotion of health’ licensing objective. It would have been unnecessary to find fault in the licensee or his bar-staff. The alcohol poisoning alone should have been more than sufficient for the review to succeed.
Deprivation of sleep is a frequent complaint of residents who are woken up by departing customers of a late-night pub/club. It raises an obvious health issue that is not addressed by the current licensing objectives. “Public nuisance” is too easy to negate with the old chestnut of an argument: “you can’t expect the peace and quiet of the countryside if you choose to live in a town or city”. But I cannot imagine that argument being successfully mutated into: “you can’t expect to keep your health if you live in a town or city.”
The potential relevance of ‘the promotion of health’ to applications for/against individual premises licences exists, as exemplified above: but it is limited in scope. In relation to the wider issues touched on in the preceding paragraphs, however, I believe there is considerable force in the arguments for its adoption as an additional licensing objective.
16 November 2016