The Government additionally intends to make public health a licensing objective in cumulative impact areas only, but in this particular article I want to focus attention on the effect of the transfer from the NHS to local authorities.
Since 2012, primary care trusts (PCTs) and local health boards have been able to object to licence applications in England and Wales under one of the existing four licensing objectives, but not public health (unlike in Scotland).
The fact is, however, that in the vast majority of cases they have not chosen to do so. Health authorities, thankfully, have historically been more concerned with saving lives and making people better than collating large databases of evidence that can be used against licensed premises to restrict or remove their right to trade.
Neither have PCTs been used to dealing with the licensing system; I remember many occasions when we, acting for clients, were simply unable to find a person or an address to send a copy of an application to, as no one in the NHS wanted to accept service of this strange ‘licensing application’.
Often, we had to send an additional copy to the licensing authority for onward transmission ‘to whom it may concern’. But there was also the legal and logical conundrum surrounding how an authority, whose responsibility is health, can make representations about an application when health is not one of the four licensing objectives.
In short, in the few months since PCTs have been able to make representations in licensing applications few have done so.
The LGA document is a signal that things are perhaps about to change. From April 2013 it will be the designated public health official at the local council, and not a department in the NHS, who will be able to make representations. What does this matter to operators? Well, to quote the LGA, this transfer from NHS to local government “is one of the most significant extensions of local government powers and duties in a generation and represents a unique opportunity to change the focus from treating sickness to actively promoting health and wellbeing. Alcohol licensing is an area that is worth exploring with these new roles”.
At present, the only authorities that actively involve themselves in the licensing process are the police, environmental health, trading standards and (rarely) child protection, but I can just see the newly appointed public health official at the council wanting to flex his or her muscles and seeing the licensing process as an ideal way of doing so.
Public health is about the promotion of wellbeing for the populace. A GP treats the patient, a public health officer treats the population.
Public health touches upon lifestyle, diet, housing, demographics — it is part of Mr Cameron’s ‘big society’. It is by its nature a general concept, not a specific one.
This does not sit easily with the requirement for licensing authorities to treat each application on its own merits. What sort of data can a public health authority produce that can be sufficiently specific to defeat, for example, an application for an extra hour’s licensable activities?
In Leeds, the NHS is working with Yorkshire Ambulance Service to include a question in the pro forma used by ambulance crews, asking where the patient last purchased or obtained their alcoholic drink. But what does that evidence go to?
It says nothing about whether the individual had pre-loaded on cheap supermarket booze or engaged in a pub crawl before ending up for one last drink at your pub.
Such evidence is almost always going to be far too general in nature, and in any event will have to be dressed up as an objection on crime and disorder or public safety grounds in order not to be rejected as irrelevant.
But my point is this — such evidential difficulties will not prevent certain local authorities using their new powers as public health officials to create yet another hurdle for licensees to overcome; preparing and co-ordinating health data into formats less susceptible to legal challenge and promoting a wider health agenda without sufficient regard to the individual merits of operators.