Licensing: Public Health Evidence and Causality

ON THE DEBATE OVER THE USE OF ACADEMIC STUDIES INTO ISSUES OVER ALCOHOL LICENSING AND PUBLIC HEALTH, AND THE PERCEIVED FRICTION OF “HEALTH EVIDENCE” vs “THE RULE OF LAW”

The purpose of this article is to analyse how and in what way a licensing board can deal with health information and health “evidence” in the context of a hearing under the Licensing (Scotland) Act 2005. I hope therefore that this will add to a constructive and positive debate on the use of health evidence at Scottish licensing boards.

The “Problem” of Causality

I wish to begin by considering the question of “causality”, an evidential lynchpin of licensing decisions. It is by now established that there is a difference between causation and correlation and this is very relevant in licensing decisions. The strength of evidence is a key part of a licensing board’s decision making. It should be apparent that “causal” evidence may attract more weight than “correlative” evidence. That causality is a higher level of evidential threshold was criticised in the Alcohol Focus Scotland publication “Review of Statements of Licensing Policy 2013 – 2016” as setting the bar “too high”. The presence of a causality test is also described by Alcohol Focus Scotland in public briefings as “unhelpful”. This appears to be because, anecdotally, licence applications are not being refused because there is no causal evidence of public health harms and therefore boards are unable to refuse. The causality test referred to in the Alcohol Focus Scotland statements is that noted in Scottish Government Guidance under the 2005 Act.

The Scottish Government Guidance to Licensing Boards was published in April 2007 and has yet to be updated. I should say that there is a clear issue of whether the guidance in general is fit for purpose. It was issued before the 2005 Act even came into force and licensing practitioners (including me) have been calling for an update for some time. I was appointed to a Scottish Government Working Group to update the guidance but after the group was established, it was mothballed because of impending changes to the Act – which have since shown no signs of abating. It is worth reminding ourselves that the 2005 Act has not really had any time to gestate whatsoever, with significant changes to it brought in by the Criminal Justice and Licensing (Scotland) Act 2010, the Alcohol etc (Scotland) Act 2010 and now the Air Weapons and Licensing (Scotland) Bill expected to come into force in 2015. On top of that we have had a number of very important case decisions which have advanced the law such as in Brightcrew v City of Glasgow Licensing Board [2011] CSIH 46 and Lidl UK GmbH v City of Glasgow Licensing Board [2013] CSIH 25.

(As I have said frequently before, it is now incredibly hard simply to find licensing laws in Scotland, let alone understand them. A consolidatory Act would be of benefit to all.)

The 2007 Guidance discusses causality in the context of assessing overprovision, but it should be remembered that as a fundamental rule of law it applies not just in assessing overprovision but in relation to any evidence presented to a board alleging detriment. The relevant section of the Guidance is from Para 47-50 which is in the following terms:

  1. The results of all consultation should be evaluated to identify robust and reliable evidence which suggests that a saturation point has been reached or is close to being reached, always provided that a dependable causal link can be forged between that evidence and the operation of licensed premises in a locality. Factors which the Licensing Board may take into account include:
    • the information provided by the chief constable;
    • subject to the constraints of data protection legislation, CCTV footage supplied by the chief constable or another source which illustrates disorder associated with the dispersal of customers in any locations;
    • evidence from the licensed trade that the density of licensed premises in the locality has resulted in levels of competition which have applied downward pressure on the price of alcohol;
    • evidence gathered from local residents of anti-social behaviour associated with licensed premises;
    • information from the local authority’s Environmental Health Department about noise complaints which can be attributed to the operation of licensed premises in a locality;
    • data supplied by the NHS Board or other health bodies, for example, local Accident and Emergency Departments or Alcohol Action Teams.
  1. It will not normally be appropriate to arrive at a decision based on one particular factor alone; but rather consideration should be given as to whether aggregated information and evidence from a number of sources points compellingly towards a particular conclusion.
  2. The Licensing Board should not take into account:
  • the manner in which individual premises in a locality are managed, since it is possible that well-managed premises may act as a magnet for anti-social behaviour, or may eject a substantial number of customers who collectively produce disorder and nuisance to a degree which is unacceptable;
  • any concerns as to the quality of management of individual premises, which should separately be addressed through other statutory mechanisms;
  • the need or demand for licensed premises in the locality. Commercial considerations are irrelevant to a policy which is designed to protect the wider public interest; or
  • the hours during which licensed premises in the locality trade, since these will be controlled through operating plans.
  1. The Licensing Board’s policy should be expressed in such a way that interested parties are left in no doubt as to the reasons for its adoption, including the evidence upon which the Board relied and the material considerations which were taken into account.

Note that the sentence in red italics which refers to causality is emphasised in this way by the Guidance, not by me for the purposes of this article (I have merely changed the colour!) By italicising the sentence it is therefore clear that the issue of proving a causal link is a very important one to the Government. Here is a key point: this axiom is not a creation of the Scottish Government for the purposes of this Guidance. The reason it exists in the guidance is because of decades worth of licensing jurisprudence – the case law and decisions which underpin the rule of law. It may be that the causality test is “unhelpful” to those who wish to see applications refused, but that is not the point. The point is that licensing boards must observe the correct legal tests in their decision making.

It does not appear to me that this evidential burden is somehow balanced in favour of the trade. Firstly, the Guidance makes it clear that commercial considerations such as demand should not be taken into account, but secondly the existence of a causality principle is not about promoting the alcohol industry: it is about observing the rule of law. I do not espouse the view that a licensing board should close its mind to health evidence or academic studies, simply that in considering what weight to attach to that evidence or those studies it must do so within a legal framework.

The Rule of Law

So what is that legal framework? It may be worth noting at this point the five grounds of appeal under the 2005 Act:

  • That the board erred in law
  • They based their decision on an incorrect material fact
  • They acted contrary to natural justice
  • They exercised their discretion in an unreasonable manner
  • And, in the case of review hearing, that the decision was disproportionate

A licensing board therefore has a very difficult job to do. They must weigh up such evidence as is presented to them, and then consider whether to grant the application or not, but in doing so must not err in law, must not base their decision on incorrect material facts, must not contrary to natural justice, must not exercise their discretion unreasonably and in the case of a review hearing must act proportionately (there is an argument that proportionality could apply to other decisions but that is a discussion for another day). This brings me to the next point about the rule of law. The 2005 Act is not a refusing Act. The Act is there to regulate the sale of alcohol but it also recognises that there is a place in Scottish society for the grant of new licences. Section 23(4) of the Act states:

The Board must, in considering and determining the application, consider whether any of the grounds for refusal applies and—
(a) if none of them applies, the Board must grant the application, or
(b) if any of them applies, the Board must refuse the application.

If no ground of refusal applies, the board MUST grant the application. And the opposite is also true. It is therefore neither a granting or a refusing Act. It is neutral, based on the merits or demerits of the particular application. To put it another way, it is directory not discretionary for both grant or refusal depending on whether a ground of refusal applies. This is not the same in every licensing regime in Scotland. Under the Gambling Act 2005, for example, a licensing board “must aim to permit” the grant of a new gambling licence (see s.153 Gambling Act 2005): the default position is therefore that the gambling licence should be granted. Clearly, that is not the case in the alcohol licensing system. A balance requires to be struck. This balance must be underpinned, therefore, by properly evidenced reasoning and that is where the requirement for causal evidence comes into play: and has penetrated licensing decisions for decades.

Evidence and Case Law

In Deejays Nightclub v Aberdeenshire Licensing Board [2007] CSOH 188, the board had rejected a regular extension application for a nightclub in Fraserburgh under the old 1976 regime seeking 2am opening, following police objections about vandalism. The court, in upholding the subsequent appeal says: “Here the issue, thrown into stark relief by the vandalism offences report, is whether the material put before the board does show any causative link between the premises being open and the incidents of vandalism reported. By causative link I do not mean necessarily that the applicants are to be considered at fault. It may be…that the vandalism occurs simply because at certain times a large number of people, possibly the worse for wear, are leaving the premises. The question at issue here is not whether, if such causative link is shown, the applicants can show in respect of individual cases that they were not at fault. Rather, it is whether the material put before the board demonstrates any causative link“. And then: “It is plain from looking at the vandalism offences report that it provides no evidence of any causative link between vandalism and the applicants’ premises. The report states that during a period of one year from 1 June 2006 to 31 May 2007 there had been 161 reported vandalism offences “in proximity to” the applicants’ nightclub. This is shown graphically by the superimposition of a series of rings on a town plan of the area, with the applicants’ premises at the centre. The locations of the incidents are marked and are mainly within the shaded area next out from the bulls eye. The top segment of the town plan covered by these circles is made up of sea and industrial and commercial estates. Unsurprisingly the vandalism incidents are marked mainly in the lower part. I am told, however, and it was not disputed before me, that almost all the licensed premises in Fraserburgh are within the same area. Accordingly, that geographical spread shows nothing of any relevance“.

This is important because it reminds us of the requirement to look at the specific premises and the alleged detriment arising from that specific premises. It is also an early pre-2005 Act warning about the use of general or generic statistics. The debate can be widened out to consider the role of policy. A licensing board must remain open to the individual merits of an application. It must not, in adopting a policy, fetter its own discretion. There are numerous cases on this point including Elder v Ross and Cromarty Licensing Board 1990 SLT 307 and Aitken v City of Glasgow District Council 1998 SCLR 287.

We have but one significant appeal decision which looks at the public health objective under the 2005 Act – that is Galloway v Western Isles Licensing Board [2011] LR 814 (although I understand that an appeal against the East Dunbartonshire Licensing Board which related to a health objective refusal was settled towards the end of 2014). Galloway specifically deals with the issue of a refusal based on the health objective. In this case, an application seeking Sunday opening which was refused on the grounds that, in short compass: more licensed hours = more availability = more harm (albeit there appears to be an underlying reasoning based on religion). The case discloses a number of points:

  • It is not for the applicant to demonstrate that greater availability would not be inconsistent with the public health objective: ” it is clear from the passage from the Statement of Reasons which I have quoted above..that having apparently decided that granting the application would result in the increased availability of alcohol, (which the Board says would not be consistent with protecting and improving public health) the Board has qualified that by saying that the applicant had not demonstrated that such increased availability would be consistent with that licensing objective. That qualification leads me to the view that the Board has introduced into its exclusive decision-making process a requirement on the applicant which has no basis in the statutory formula. It discloses a clear error of law“.
  • Licensing boards must base their policies on causality: “it is essential that when applying its licensing policy a Licensing Board must find and demonstrate a causal link between the particular mischief apprehended and the general terms of the policy itself”.
  • In order to make a decision based on health evidence, it must be focused on the particular premises: “The Board did not focus (as it should have done) on the Club itself, its members and guests and its activities; and it failed to explain how granting the application would be detrimental to public health. Now I accept that a part of the Board’s Licensing Policy is to protect and improve the health and welfare of patrons of licensed premises; and of course such a policy is laudable. But to apply that general policy to a particular application without examining its specific merits (or demerits) amounts to an arbitrary application

So the requirement for boards to have causal evidence is not simply because it is in Government guidance. It exists in the underlying jurisprudence and has done for some time.

We can then turn to look at the wider debate on the presence or absence of evidence at hearings under the 2005 Act, as in the decision in Ask Entertainment Pub Ltd v Aberdeen City Licensing Board 2013 SLT (Sh Ct) 94. This case supports the ongoing requirement of a board to make decisions based on bald facts and not supposition or conjecture, which again require the board to be able to forge a link, or what is referred to in this case and others as a “nexus” between the alleged harm and the sale of alcohol from a particular premises. Similar lines can be drawn to the earlier case, another appeal following revokation of a licence under the 2005 Act, Melville v City of Glasgow Licensing Board 2012 LR 907. Melville deals with the awkward situation when a board is faced with two competing and conflicting versions of what the facts are. In this case, whether a pub was open outside of its licensed hours or not. The board accepted the police version that it was, and rejected the licence holder and customer testimonials that it wasn’t. In doing, so they fell into error, the Sheriff saying: “Neither account can be said to be more likely than the other. Each version is as likely as the other. On the material before me, without having heard from the witnesses, I cannot resolve which of these two irreconcilably different accounts should be preferred“. The quality of the evidence is therefore central. The better quality the evidence is, the more robust a decision made by a board based on that evidence is.

Going back to the specific issue of overprovision and evidence, it may be instructive to consider looking further afield, as one might consider decisions such as Brewdog Bars Ltd v Leeds City Council, unreported, 6 September 2012, in which the court held that if an applicant could demonstrate that the application would not add to perceived problems in an agreed cumulative impact zone (the English equivalent of overprovision zone), then the licence should not have been refused. The Brewdog case reminds us that the individuality of the applicant and the application should always be considered; and although an English case it does link to the Scottish approach of having a “rebuttable presumption” against the grant of a licence in an overprovision zone: in other words, that a new licence can be granted on cause shown. And just like the Scottish case law, this type of consideration in English decisions is not new – in Lees-Jones v Chester Licensing Justices [2001] LR 642 the question of amenity and detriment is considered and the case reminds us of the need for licensing authorities to consider the range of controls on issues resultant from a vibrant night-time economy, not simply licensing controls, as relevant.

There is a rich thread of case law which creates clear precedent on how a licensing board should deal with evidence and on what legal basis decisions can therefore be made. Licensing boards have a difficult job. But as we have decided licensing boards are to be the regulators of the licensing system then we must also accept that they are subject to the rule of law. Much of the media coverage of the powers of a licensing board is ignorant to the vires of a Board. In addition, the increasing role of health in the licensing arena has placed a considerable amount of public pressure on licensing boards, with calls for boards to take actions which are beyond their powers, or even personal attacks on board members by responsible authorities. The very nature of what a licensing board is, or should be, is being called into question here.

The Purpose of a Licensing Board

In my mind, there is a difference between licensing policy and alcohol policy. What is often entirely overlooked in the wider public rhetoric surrounding alcohol is that the licensing system is not simply designed to control licence numbers, nor is it simply to ensure that alcohol is sold responsibly (although each of these is incredibly important): it also is a framework to administer the business environment in which operators must exist. In other words, the global aim of licensing may be to ensure public safety and standards, but licensing regimes must also by their very nature allow for the operations which are licensed to be able to go about their business successfully within the approved regulatory environment. Not every licence process is about how the alcohol is actually sold or consumed: transfer applications; minor variations to reconfigure the layout of a premises; major variations to allow activities not connected to the sale of alcohol such as early opening for breakfasts, or to allow a grocer shop to open at 6am to sell milk and newspapers.

My point here is that licensing boards are both the administrators and the regulators of the licensing regime. They must shoulder that burden fairly. To ask a licensing board to look only at the negative aspects, or demerits, whilst ignoring the merits such as job creation, tourism, community, amenity and the human happiness which responsible alcohol consumption can bring, perhaps betrays an oversight as to why successive Parliaments have over centuries entrusted licensing to local elected bodies: accountability to local people and interests; and therefore the recognition that responsible licensed premises can be a positive aspect of our society. I say that a licensing board must apply s.23(5); but in doing so it should be open to hearing submissions about the positive aspects of a case so long as those submissions are not legally incompetent in some way, such as a time barred representation.

The Scottish courts recognise this balancing act. Lord Hodge, sitting in the Court of Session in relation to the ongoing minimum pricing appeal, said [2012] CSOH 156: “The industries which the petitioners represent include companies which make a substantial contribution to the national economy and their products when used responsibly contribute to human happiness. But the abuse of alcoholic drinks and the harm which the abusers cause to themselves and others is a matter of general public concern both in this jurisdiction and throughout the United Kingdom“.

The Scottish Government also recognises this balancing act, in addition to numerous public statement on the benefits of licensed industry, as well as in the licensing guidance, which contains the following:

  • Para 19: benefit of later hours to the night time economy
  • Para 23: relationships with other strategies including tourism
  • Para 25: tourism needs to be taken into account when formulating local policy
  • Para 51: positive benefits for the locality in introducing new licensed premises
  • Para 52: some premises may have benefits to the local economy

This balancing act: the weighing up of the good and the bad, is done with regard to deeply imbedded principles such as considering the probative value of evidence; sufficiency of evidence; causality of evidence; and I argue that the detractors of these totems are either ignorant to the “legal DNA” of Scotland’s licensing boards, or simply do not agree that licensing boards should make the decision. 

A “special tribunal”: quasi-judicial features of a licensing board

The licensing board has been considered a “special tribunal” for over one hundred years and more (Lundie v Falkirk Magistrates (1890) 18 R 60). A licensing board is not a judicial body, but is considered to be administrative body with quasi-judicial features. As such, it is under a legal duty to deal with all parties fairly and equally: this, for the avoidance of doubt, includes the applicant. This was even so prior to the creation of licensing boards under the 1976 Act. Before Clayson, the administration of licensing was dealt with by licensing “courts”, but the licensing court was a court covering a particular burgh, and made up of elected councillors and justices of the peace. Before the onset of the Licensing (Scotland) Act 1976, there were 67 separate licensing courts in Scotland. The origin of these courts goes back to at least 1756 and they evolved principally as local government evolved. The Guest Committee, a predecessor of Clayson, stated clearly that licensing was an administrative and not a judicial system. As Clayson later put it: “although [licensing] decisions are not judicial, it is desirable that they should be approached in the judicial spirit“. The Clayson considerations remain entirely valid.

Since that time, a significant change which has tugged at the edges of the licensing board is the Human Rights Act 1998 (and, of course, s.29 of the Scotland Act 1998) in relation to Article 6(1) of the ECHR, known generally as the right to a fair trial. The more exact wording is “…everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law“. It has been established for some time that a licence is a property right (Tre Trektorer Aktibolag v Sweden (1989) 13 EHRR 309). It is also clear that Article 6 does not just apply to civil or criminal courts in the traditional sense but also to administrative bodies, and this would include a Scottish licensing board.

So the licensing board has to be independent and impartial – independent from Government, from the health professionals, and from the trade. And as I state earlier in this article, the Board also has to act lawfully as regards the legal principles underpinning the right to appeal: they may not “err in law”, base their decision on an incorrect material fact, act contrary to natural justice, exercise their discretion in an unreasonable manner, and in the case of a sanction resulting from a review hearing, or act disproportionately in a review. In all of these tests, the Board has a duty to make decisions based on an evidential basis; and such evidence must be probative; and the decision reached must journey through an independent assessment of any evidence, and not blind acceptance of assertion or speculation.  

Lets examine the quasi-judicial nature of the board a little more closely. In Kieran v Adams 1979 SLT (Sh Ct) 13, which considered an appeal following rejection of a Sunday opening application under the old 1976 Act Sheriff Principal Reid says: “The proceedings before the licensing board are, no doubt, administrative in character although they require to be conducted in a quasi-judicial way“. Why might this be so? It is “administrative” because the board are the ultimate administrators of a licensing system within which businesses must be able to operate; and quasi-judicial because the board, in dealing with hearings, must act under the above strictures and ultimately must weigh up all submissions placed before it in a way which provides an equality of treatment to all parties, including the applicant.

I argue above that the Licensing Act is not a “refusing” Act. It is not the job of the board to look to refuse applications. It is about a neutral application of the positive and the negative and a consideration of whether grounds for refusal apply under s.23(5). The Licensing Act is by its very nature open to consider grant and as such that reflects Parliament’s acceptance that alcohol should and can be sold and enjoyed responsibly. The inherent discretion to consider both positive and negative aspects of an application put forward to them at the hearing has perhaps been most recently affirmed in Tesco Stores Ltd v City of Glasgow Licensing Board 2013 SLT (Sh Ct 75): “While s.23 does not permit discretion in applying the tests (“must grant”; “must refuse”) it does not prescribe what the board must do in “considering” the test. To this extent, the 2005 Act is no more prescriptive, in relation to the approach to decision making, than previous licensing legislation, and the pre-2005 authorities still apply“. To put it another way, boards cannot ignore the “equality of treatment” principle, as it refers back to the underlying principle of natural justice to which they are bound.

Public Health Representations

At the Institute of Licensing National Training Event in Birmingham (November 2014) I spoke on the use of the public health objective in Scottish licensing. I observed that health practitioners are new to the licensing environment. It is different to the academic environment because of the application of the rule of law. A licensing hearing is not a forum or hustings. I also observed that health representations were becoming better advised and there was already a difference when comparing current practice and the early attempts by public health to object to new licences. I also noted that some public health practitioners are beginning to realise that their representations need to be directed and targeted. Presenting general statistics on health harms without acknowledging the specifics of an application is not, in my view, the correct approach. It becomes “white noise” and I have seen a number of boards criticise health representations on that very point. I welcomed a constructive and reasoned debate.

I referred to the July 2014 issue of the Journal of the Institute of Licensing, in which Frances Carbery from the Public Health team in Bury discusses her experiences of appearing at a licensing committee. She says: “I have learnt that solicitors are paid to do a job, the same as I am, and while we have different agendas, in some ways we are similar. As a public health professional, I look for evidence to support decisions that reduce health inequalities and improve quality of life. A solicitor also uses evidence to support his or her case. We have a different understanding of evidence, but ultimately we both want our evidence to be strong enough for the right decision to be made by the licensing panel” (“Public Health Impact in Bury” (2014) 9 JoL 41″).

That “different understanding” of evidence is what fascinates me because this issue and debate is in its infancy. It is only now that licensing boards in Scotland are starting to pay real attention to the public health objective and public health evidence. Public health practitioners are getting more familiar with the licensing system. We are all on a journey, one which may be signposted by academic studies, research, and other evidence which may be “for” or “against” depending on the subject matter and your own personal view.

Academic Studies at Licensing Hearings

The question of relevancy in relation to academic studies and licensing decisions is therefore one which this article cannot hope to answer but perhaps spark debate. It is clear that there is a sizeable body of academic research in relation to alcohol and also (but perhaps less so) in relation to how the licensing system affects health harms. It also seems to me that the robustness of research can vary greatly and that there are studies which reach different outcomes on the same topic. How any of this might assist a licensing board remains to be seen: one might argue that studies can be presented to argue both sides of a debate. Ultimately, and as a matter of law, academic studies are of lesser evidential value than material fact because there are always limitations on studies for any number of reasons, whereas a material fact is black and white: it either is or it isn’t.

A recent example of disparity in relation to academic studies and licensing law in Scotland is the alleged effects of the introduction of the “multi-buy” ban condition on 1 October 2011. The multi-buy ban is a mandatory premises licence condition which was imposed on Scottish licences by virtue of the Alcohol etc. (Scotland) Act 2010 and was designed to ban alcohol deals such as “3 bottles of wine for a tenner” or “buy two get one free”. It was noticed at the time that some retailers replaced their 3 bottles of wine for a tenner with individual bottles at £3.33, and so on.

However we now have two studies into the effect of this ban on alcohol sales, and they reach different conclusions. The earlier study, Nakamura et al “Impact on alcohol purchasing of a ban on multi-buy promotions: a quasi-experimental evaluation comparing Scotland with England and Wales” (2014 Apr;109(4):558-67. doi: 10.1111/add.12419. Epub 2014 Jan 12) is from April 2014 and found that: “there was no significant effect of the multi-buy ban in Scotland on volume of alcohol purchased either for the whole population or for individual socio-economic groups“, concluding, “Banning multi-buy promotions for alcohol in Scotland did not reduce alcohol purchasing in the short term. Wider regulation of price promotion and price may be needed to achieve this“.

The more recent study, from December 2014, Robinson et al “Evaluating the impact of the alcohol act on off-trade alcohol sales: a natural experiment in Scotland” (2014 Dec;109(12):2035-43. doi: 10.1111/add.12701. Epub 2014 Sep 12) reached a different conclusion: “[t]he introduction of the Alcohol Act in Scotland in 2011 was associated with a decrease in total off-trade alcohol sales in Scotland, largely driven by reduced off-trade wine sales“.

It does seem to me that the more recent study can perhaps be said to be more robust as it deals with a longer period of time but better minds than mine could comment further on that. Both are simply studies: both have limitations and caveats; and there will always be more studies. One can take from them what one wishes and that, I argue, underlines my point above about any comparison between academic study and material fact for evidential value.

Clayson’s Rebuke: the Quality of Research

Studies into alcohol have been published for decades. It is not correct however to say that it is only now that such studies are influencing policy. What might be correct is that the quality of the information is better. Clayson, in his report which led to the Licensing (Scotland) Act 1976, dedicates the whole of Part VI of his report to “The Need for Research”, scathingly concluding “this absence of knowledge is insupportable and [the] opportunity it gives for tendentious opinion is itself a contributory factor to the serious problem of misuse of alcohol in Scotland” (Report of the Departmental Committee on Scottish Licensing Law – Dr Christopher Clayson – August 1973). I have a copy of a health paper by the then Scottish Home and Health Department entitled “Scottish Licensing Laws”, by Ian Knight and Paul Wilson, which was published in 1980, no doubt commissioned as a result of the Clayson rebuke and makes for interesting reading. For example, in relation to 11pm closing instead of 10pm, the authors conclude there was “no statistically reliable evidence of an overall increase (or decrease) in consumption after the extra hour“, but that there is evidence of additional Sunday consumption following the relaxation of Sunday restrictions.

Nicholson was not blind to such considerations. His report “Review of Liquor Licensing Law in Scotland” (2003), which led to the 2005 Act, deals with health research and analysis and numerous studies between Paragraphs 2.2 and 2.13. In the latter paragraph however, Nicholson says “We have encountered difficulty in obtaining reliable Scottish data on matters such as [public health and disorder], and we venture to hope that in future such data may be compiled [in Scotland] is a systematic way“. The lack of probative data was an issue for Clayson and for Nicholson. But times and technology have moved on even since Nicholson. We now have online access to the Scottish Index of Multiple Deprivation (SIMD) which has been available since 2004 and most recently the index from 2012. The index can be viewed here. The index does not provide all the answers but is useful in providing some information about which areas are affected by deprivation in relation to health, crime and other factors. It might be described as another “tool”. Further research on the alleged link between overprovision and health harms (to pick just one topic in this sphere) is on the way and no doubt there will be research on other specific issues as well.

Some licensing boards have certainly had regard to datazone information from the SIMD in relation to the formulation of their overprovision policies so it is clear that this type of information is being presented to them in consultation or otherwise. The quality of health evidence also varies across the country. There are 32 licensing boards and each has its own foibles, procedures, and approach. Some licensing boards are more likely to listen to health evidence than others. This scattergun approach applies also to the NHS health boards, a statutory consultee under the 2005 Act and, like any person, able to object or make representations to licence applications. Each NHS health board has a different approach. Some object to any new licence application citing local health statistics. Some object to new licence applications but in a more temperate way, having regard to the specific nature of the application. Some make no representation at all. In some areas, a representative from the NHS sits alongside Police Scotland and Licensing Standards Officers at just about every hearing. In other areas, no one from the NHS health board has ever appeared.

Thinking again about Clayson’s rebuke, what might also be correct to say is that licensing boards, rather than Government, are now being asked to consider, and are referring to, more of this type of information more than ever before. Licensing boards are different animals to Government however and the legal framework within which they must exist is constructed with a unique and interesting apparatus. Government can take high-level policy approaches: licensing boards by their nature and by the legal system within which they operate must consider the fine detail and the local issues. It is also worth remembering that there are factors involved in any particular licence application beyond perceived health harms (if any). Even if there are alleged harms, what other factors might be at play? In addition to this, what about the positives that an application might bring to an area through increased employment, better public safety through local amenity and so on?

West Dunbartonshire Licensing Board, for example, amended its now famous policy on overprovision, which is probably still the most robust in Scotland, to acknowledge that the grant of a licence could bring public health benefits through increased employment. They did so having regard to Waddell & Burton “Is Work Good for your Health and Well-Being” (2006) and other research, not because a licensing solicitor said so. 

Some conclusions

Public health is central to licensing, but licence applications should not be viewed through the prism of the public health objective alone. There are five licensing objectives under the 2005 Act and each has an equal footing.

A licensing board must listen to all submissions and then decide upon the weight to place on the evidence it has heard to reach a decision.

In reaching a decision a licensing board must be mindful that it may have to provide the reasons for reaching that decision, and that the decision must be lawful.

The direction of travel in considering a licence application is ultimately governed not by academic studies, media or popular opinion but by the rule of law, and therefore those principles which underpin it: such as causality, sufficiency, probativity, reasonableness, natural justice, and proportionality.

 

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About Stephen McGowan

Leading Scottish licensing solicitor at TLT. Chairman of BII Scotland.
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3 Responses to Licensing: Public Health Evidence and Causality

  1. Jo says:

    Stephen. This could certainly make my application at North Ayrshire more interesting a week on Monday!! Jo

  2. Pingback: Martin McColl Ltd v Aberdeen City Licensing Board 2015 | Stephen McGowan's Licensing Blawg

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