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Disabling the public interest: alcohol strategies and policies for England

2004; Wiley; Volume: 99; Issue: 9 Linguagem: Inglês

10.1111/j.1360-0443.2004.00803.x

1360-0443

Robin Room,

Homelessness and Social Issues

In March 2004, two important documents on alcohol policy were published by the British government. One is an Alcohol Harm Reduction Strategy for England (UK Cabinet Office 2004). This document has received more attention, but is arguably of less import. As we shall see, what it offers is a recipe for ineffectiveness at the national level. The second document, the kind which only a lawyer could love, is entitled Draft Guidance issued under Section 182 of the Licensing Act 2003 (UK Ministry of Culture, Media & Sport 2004). The consequences of this document are likely to be much more serious for public health and safety, as it is intended to eviscerate any possibility of effective action on alcohol issues at the local level. In the same month, then, the Blair government has managed to accomplish not only a missed chance at the national level but also a thoroughgoing neutralization of local powers to control the alcohol market in the interests of public health and safety. This deliberate effort to disable the public interest applies directly only to parts of the United Kingdom, but it is of wider significance. As will be discussed, the same government also holds important powers for the whole of the United Kingdom, and there is nowhere else to look for policy decisions on such matters. Further, the UK government has an important voice in the European Union, and in this context has generally sided, as in the Strategy, with British alcohol industry interests at the expense of public health and safety. More generally, in an international context the effort is worth holding up to the light for detailed examination as a textbook case of how industry interests can be brought to bear, through an ideologically friendly central government, to thwart local efforts to deal with the problems which enthusiastic and unchecked alcohol marketing can bring at the street level. In 1998, the government of the United Kingdom stated that it was ‘preparing a new strategy on alcohol’ (UK Department of Health 1998, §9.14), and the next year added that ‘we expect to publish our strategy . . . early in the year 2000’ (UK Department of Health 1999, §2.23). In 2003, a PowerPoint presentation entitled the Interim Analytical Report was published on the web (UK Cabinet Office, 2003). As noted, the strategy has now finally been published (UK Cabinet Office 2004). Prepared by the Prime Minister's Strategy Unit, the strategy carries a foreword signed by Tony Blair himself. Although originally billed to be a National Strategy, the final document is a strategy only for England. This presumably partly covers any embarrassment from the fact that, by the time it appeared, every other part of the United Kingdom, including the Isle of Man, already had its alcohol or its drug and alcohol strategy. The downshifting of focus may also reflect that the strategy, as we shall discuss, largely avoids recommending any measures (such as changes in excise tax or in blood–alcohol level for drink-driving) which would require action at a broader level than England. This begs the question of the need still for an alcohol strategy for the United Kingdom, covering the aspects of alcohol policy which can be enacted only by the UK government. Both England and the rest of the United Kingdom are in trouble with respect to alcohol. The Interim Analytical Report and the Strategy itself each document this as best they can, given the spotty nature of available British statistics of alcohol consumption and alcohol-related harms. A further accounting can be found in a recent report from the Academy of Medical Sciences (2004; it should be noted that I was a member of that report's working group). The Strategy's proposals for how to respond to a bad and worsening situation can best be described as bathetic. If one takes the listing at the back of Alcohol—No Ordinary Commodity (Babor et al. 2003), for instance, where preventive measures are ranked roughly on the evidence of their effectiveness, there is an almost total correspondence between the measures proposed in the Strategy's recommendations and the measures which are ranked in the listing as ‘ineffective’. They are all there in the Strategy: school education, voluntary advertising codes, even a half-hearted discussion of alternative entertainment for youth. Conversely, the Strategy eschews almost all the strategies ranked as ‘effective’. For those from the effective end of the list which it does advocate—for instance, brief interventions in primary health care—no new resources are provided, and the problem of actually getting health workers to conduct brief interventions (Roche & Freeman 2004) is not addressed. Concerning drink-driving, the one concrete initiative mentioned is a designated-driver publicity campaign run by an alcohol industry group; again the Strategy chooses a measure for which there is no evidence of effectiveness. The Strategy mentions that the United Kingdom's blood alcohol limit of 0.08% is among the highest in Europe, but does not broach the idea of reducing the limit to 0.05% to match most of the rest of Europe, nor other effective measures such as intensive random breath-testing. Again, the Strategy steers away from any measure with a reasonable track-record of effectiveness. The Strategy acknowledges that ‘there is a clear association between price, availability and consumption’ (p. 23). However, it eschews any proposals either on excise taxes or on controls of availability, with the explanation that ‘our analysis showed that the drivers of consumption are much more complex than merely price and availability’. While this statement is true (although no back-up analysis for it is offered), it is irrelevant: that the aetiology of emphysema is more complicated than just cigarette smoking is not an argument against doing something about the smoking. The Strategy also mentions ‘evidence [which] suggested that using price as a key lever risked major unintended side-effects’. No such evidence is given, but presumably potential rises in cross-channel purchases and smuggling are what is meant. A discussion of these issues would have been a good opportunity to raise the issue of whether the United Kingdom should attempt to change EU rules on alcohol in the Single Market which undercut public health. Indeed, an indication of the parochial quality of the Strategy is that the European Union (EU) is mentioned only once (in connection with seeking permission from the EU to require warning labels on alcoholic beverage containers; p. 33). After implying that price and availability policies would be unpopular, the Strategy offers its capping argument for looking away from price and availability: ‘measures to control price and availability are already built into the system’ (p. 23). The idea the Strategy can thus ignore a whole arena of action because it is ‘already built into the system’ is a breathtaking contradiction with the Strategy's general thrust, which points out how fragmented alcohol issues are between government departments, with ‘no clear focus for policymaking’ (p. 82). A document cannot be accepted seriously as taking ‘a strategic approach to addressing alcohol issues’ (p. 82) if it rules out of consideration some of the most effective available strategies. Having offered its arguments for steering away from price and availability, the Strategy continues: ‘So we believe that a more effective strategy would be to provide the industry with further opportunities to work in partnership with the government to reduce alcohol-related harm’ (p. 23). No evidence is offered of why this would be ‘a more effective strategy’; again, the evaluation research literature would not support the belief. My reading of the sentence is that it must have been written with a wink, essentially as a statement that ‘our political masters decided that the Strategy's approach would be to work with the alcohol beverage industry, and vetoed recommendations on matters like price and availability which would upset the industry’. This reading of the sentence is supported by the most ludicrous item in the Strategy—the model of actors and responsibilities for reducing harms from drinking (pp. 24–25). Three sets of actors are named. The first are ‘individuals and families’, who are responsible through ‘their own choices about what they and those for whom they are responsible drink, where and how’, including being responsible for actions while intoxicated. The third actor is ‘government’, which is responsible for informing consumers, ‘supporting those who suffer adverse consequences’, protecting others from the drinker, ‘ensuring a fair balance between the interests of all stakeholders’ and ‘providing the right strategic framework’. Also mentioned is ‘protecting against harms caused by the supply of alcohol where appropriate, and for regulating to the minimum necessary to achieve this’. (One can guess which qualifiers in this sentence were insisted upon by industry interests.) Between the individual and family and the government is another actor, the ‘Alcoholic drinks industry’, which is assigned responsibilities for giving accurate information and warning about consequences of drinking, for ‘supplying its products in a way which minimizes harm’ and for working with national agencies and local partners. So much for civil society. No other intermediate actor is mentioned in the chart, whether professions, institutions, voluntary associations or—notably—local governments. There is simply the individual drinker or family, the government and the alcoholic beverage industry. It is a telling and indeed a rather totalitarian picture, and an utterly inadequate representation of reality in a complex society such as the United Kingdom. As noted, in the same month another major British alcohol policy document was released, the Draft Guidance issued under Section 182 of the Licensing Act 2003 (UK Ministry of Culture, Media & Sport 2004). This document was also the result of a long process of consideration. In May 2001, the Home Office published its proposals on alcohol licensing ‘reform’ (UK Home Office 2001), the culmination of a review and consultation process dating back to 1998. A notable feature was a provision to eliminate any national closing hours for pubs and nightclubs. After an intervening election, legislation based on the proposals was finally passed in 2003. The Draft Guidance, which must be passed by Parliament, begins the process of actually implementing the new legislation. After the election, responsibility for alcohol licensing matters was transferred to the Ministry of Culture, Media and Sport. This transfer, which of course further fragmented government responsibility for alcohol matters, has tended to provide the industry with a more reliable governmental ally (alcohol licensing falls under the ‘tourism’ section of the ministry's portfolio). A 2002 speech by the Culture Secretary to an alcohol trade group, for instance, essentially promised that the reforms would increase alcohol sales: ‘the reforms would be good for the economy, opening the way to new and more diverse markets, providing new investment opportunities and creating new employment’ (UK Ministry of Culture, Media & Sport 2002). A major change in the new licensing law is the abolition of the centuries-old system of ‘licensing justices’ and their replacement by a licensing committee drawn from the local elected council. This can be seen as a positive change in terms of governance and accountability, making the licensing authorities responsible to the community which elects them. However, this is precisely what has greatly worried alcohol industry interests, which fear that such local authorities may be less co-optable: ‘They have a vested interest in the people that vote for them’, a board member of the Restaurant Association complained (Restaurant industry speaks out . . . 2002). As troubles with drinking in the core city area have increased, a number of British municipal governments have become activist in their licensing policies, and some have been looking to charge the trade for the extra policing, street-cleaning and late-night transport that later closing hours would require (BISL hits out . . . 2002). The trade became worried that the shift in structure might mean a more restrictive rather than a weakened licence regime, including in some places a reduction rather than an increase in opening hours. The task for industry interests, thus, has been to lobby the central government to impose severe constraints on what actions local licensing boards can take, in the form of ‘guidance’ from the central government on how the boards can act. The March 23 document gives evidence of the trade's very considerable success in this effort. From the perspective of an outsider, the result is astonishing. The instructions on what may and may not be carried out are, after all, directed at local councillors who have presumably been elected to their positions as people of experience and judgement. It is hard to imagine such an audience anywhere taking kindly to the tone of the guidance, which in its admonitions sometimes reads as if directed at fractious kindergarteners. As for the substance, the consistent intent is to tie the hands of any local regulation. First of all, the document is firm on the limits of the legitimate uses of the licensing power, which are limited to ‘the prevention of crime and disorder; public safety; the prevention of public nuisance; and the prevention of children from harm’ (p. 15). ‘There is no power for the licensing authority to attach a condition [to the licence] which is merely aspirational: it must be necessary. For example, conditions may not be attached which relate solely to the health of customers rather than their direct physical safety’ (p. 65). ‘The public safety objective [of licensing] is concerned with the physical safety of the people using the relevant premises and not with the public health, with is dealt with in other legislation’ (p. 92). Secondly, licensing authorities are enjoined to look no further than the door of the premises in question in terms of causal chains which might result in conditions on the licence. ‘Conditions attached to licences cannot seek to manage the behaviour of customers once they are beyond the direct management of the licence holder and his staff or agents’ (p. 90). ‘Conditions [on licences] relating to public nuisance caused by the antisocial behaviour of customers once they are beyond the control of the licence holder . . . cannot be justified . . . Beyond the vicinity of the premises, these are matters for personal responsibility of individuals under the law’ (p. 95). Thus, also, ‘noise from customers in the street beyond the premises cannot be taken into account’ by police in considering a temporary closure of premises (p. 123). Thirdly, licensing authorities may not impose conditions which affect the prerogatives of licencees as employers. ‘No conditions relating to the management competency of designated premises supervisors should normally be attached to premises licences . . . It will normally be the responsibility of the premises licence holder as an employer, and not the licensing authority, to ensure that managers appointed at the premises are competent and appropriately trained and licensing authorities must ensure that they do not stray outside their powers and duties’ (p. 91). Fourthly, existing licences are to be treated essentially as an inalienable property right, which must be protected from ‘frivolous or vexatious’ complaints (p. 66) or even regular compliance checks—characterized dismissively in terms of a ‘culture of annual inspections’ (p. 35). This applies even to provisional licences issued prior to construction or alteration of premises, even though ‘a great deal of time may pass’ (p. 70) before the premises are opened. ‘It will be important for investment and employment opportunities’ that no new complaints are considered when the premises actually open (p. 70). While licensing authorities are allowed to adopt ‘special policies relative to cumulative impact’ which restrict the granting of new on-premises licences in a designated area, ‘cumulative impact’ may only be taken into account when a new licence or change in an existing one is being considered; it cannot be taken into account even in a review of an existing licence (p. 66). Such policies ‘should never be used as a ground for revoking an existing licence [even] when relevant representations are received about problems with those premises’ (p. 26). Fifthly, licensing authorities should not interfere with the free operation of the market. The old criterion of ‘need’ used by the licensing justices is no longer a legitimate consideration. ‘ “Need” concerns the commercial demand for another pub or restaurant or hotel. This is not a matter for the licensing authority . . . “Need” is a matter for planning committees and the market’ (p. 23). Sixthly, citizen input concerning problems from a prospective or current licence is strictly limited. The requirement for advertising that an application has been made is limited to one copy posted on the premises (p. 59). Not only ‘vexatious and frivolous’ but also ‘repetitious’ communications are to be excluded from consideration including, for example, ‘communications which would have been made when the application for the licence was first made and which were excluded then by reason of the prior issu[ing]’ of a provisional licence (p. 72). It is recommended that the ‘decision on whether a complaint is irrelevant frivolous vexatious, etc.’—and thus not to be considered further—should be delegated to staff of the licensing committee (p. 38). This recommendation reflects that political accountability is regarded as an unnatural conflict of interest. Thus decisions on considering a complaint ‘should not be made on the basis of any political judgement which would undermine a natural approach to the issue. This may be difficult for ward councillors receiving complaints from residents within their own wards’ (p. 67). Finally, and above all, the document's language is tilted firmly towards maximum permissiveness in licensing. For instance, on ‘hours of trading’ it recommends in general that shops, stores and supermarkets be allowed to sell alcohol at any time which they choose to open. The document persists, without offering evidence, in the official British government position that ‘fixed and artificially early closing times’ are ‘a key cause of disorder and disturbance when large numbers of customers are required to leave premises simultaneously’. This position flies in the face of the research literature (Babor et al. 2003, pp. 122–123) and experience (‘UK fears . . .’ 2002). Around-the-clock opening in Reykjavik, for instance, produced net increases in police work, in emergency room admissions and in drunk driving cases. The police work was spread more evenly throughout the night, but this necessitated a change in police shift to accommodate the new work at 6 a.m. (Ragnarsdottir et al. 2002). One answer to the problem of disorder when the pubs close at the same time, it would seem, might be staggered closing times. But no: licensing authorities should also not seek to engineer ‘staggered closing times’ by setting quotas for particular closing times . . . In the Government's view, this would only serve to replace the current peaks of disorder and disturbance . . . with a series of smaller peaks, . . . and would not be necessary to promote the licensing objectives. The general principle should be to support later opening so that customers leave for natural reasons slowly over a longer period (p. 82). I found myself pondering for a moment the possible meanings of ‘for natural reasons’. ‘Above all’, the document enjoins, ‘licensing authorities should not fix predetermined closing times for particular areas’ (p. 81); this would ‘directly undermine a key purpose of the 2003 Act’ (p. 26). Nor are licensing authorities allowed to reduce permitted opening hours in the transition to the new licensing regime, even in the case of premises with permission to open for extended hours. Here the language becomes even more directive: ‘a licensing authority is prohibited from attaching conditions . . . which would have the effect of restricting opening hours to more limited hours than the current “permitted hours”’ (p. 142). On the other hand, any idea of the public house having responsibilities as a place of public accommodation seems to be gone: ‘there is no obligation . . . to remain open for the entire period permitted . . . If, for example, a public house has no trade on a particular evening, the licence holder is entitled to close the premises’ (p. 83). The end result of the Guidance, if it goes into effect, will be a frustrating charade: the new local licensing authorities will be charged with issuing and renewing liquor licences, but will be almost powerless to use the licensing power to influence the number, character or mode of operation of the alcohol sales outlets in their jurisdiction. Unfortunately, for local jurisdictions to have little power to influence alcohol licensing is also not uncommon elsewhere. For instance, the brewer-dominated legislature in California (Morgan 1980) made sure that there was little local input when the California liquor licensing system was set up. In such cases, the usual fallback for communities in exercising some local control over alcohol sales outlets has been through their planning and land-use controls. In California, for instance, cities have made good use of Conditional Use Permits, which essentially impose controls on hours and conditions of sale through the planning permit system (Wittman & Shane 1988). The UK Guidance recognizes that the local planning process is also involved in local control of alcohol sales outlets. In fact, it makes the remarkable argument that local authorities should provide ‘that planning, building control and licensing regimes will be properly separated to avoid duplication and inefficiency’ (p. 33)—although it is hard to see how separating functions is supposed to avoid inefficiency. However, the leader of the Westminster City Council has recently put forward cogent arguments that the limited local planning powers in England cannot work as a satisfactory substitute for licensing powers (Milton 2003). A study done for the Deputy Prime Minister's Office of the functioning of ‘Use Classes Order’, a deregulatory measure adopted by the Thatcher government in 1987 to constrain local planning, gives support to this argument, reporting that ‘the survey amongst local authorities highlighted the extent of concern’ about shifting uses within planning use categories. ‘The greatest concern (reported by 85% of the respondents)’ is about shifts within the category for on-premise eating and drinking places, in particular ‘the concentration of public houses that has taken place in many different centres. This phenomenon reflects a market trend that has been facilitated’ by the central constraints on local planning. ‘It is reported by planning authorities to have significantly changed the character of many [town] centres and to have given rise to difficulties because of the number of people gathered in one area and affected by alcohol, particularly in the late evening’ (UK Ministry of Culture, Media & Sport 2001, §§5.20–21) As the report on the Use Classes Order recognizes, there is a problem in British towns and cities with alcohol and the ‘night-time economy’ (Chatterton & Hollands 2003; Hobbs et al. 2003). The planning powers of English local governments have been constrained so they cannot easily provide a solution. The Guidance on the new Licensing Law attempts to ensure that liquor licensing cannot provide a solution either, and there is certainly nothing in the Strategy which is likely to have much effect in reducing these problems. The consistent picture which emerges is of a central government which is determined to be toothless with respect to alcohol policy, and which furthermore bends substantial effort to defanging any attempts by local government to adopt effective alcohol policies. This is a debacle which England has come to at the end of 6 years of efforts on the Strategy and on the Licensing Bill. The one redeeming feature of the situation, indeed, is that the processes took so long, because this gives some credence to the occasional press reports that there has been substantial dissension within the government along the way. What is going on? Several things, I think. Westminster itself is a very wet environment, and is thereby congenial to alcohol industry interests. In recent years, some media reports have taken notice of the situation. The supply of beer to Westminster was reported to have doubled between October 2001 and June 2002. A member of parliament noted ‘a rather dramatic change in the Westminster lifestyle. The commons chamber remains empty most of the time, while the multitude of drinking dens are crammed full . . . I have noticed there are now more people than before who find difficulty in walking along the corridors in a straight line’ (Wainwright 2002). Media commentaries have also referred obliquely to drinking habits among ministry staffs. Thus a newspaper commentary on Home Office proposals to abolish trial by jury wondered, ‘is it just the booze talking?’ and suggested that the Home Secretary was ‘surrounded by the rakes of the Home Office’ (Cohen 2002). Alcohol industry interests are extremely strong in Parliament and in the government. The Parliamentary Beer Group is the biggest ‘industry group’ at Westminster, with 275 Members of Parliament (Wainwright 2002), and industry interests appear to have as strong an influence on this government as they did on the Conservative governments which preceded it. In March 2002, for instance, the government announced that it was reneging on its proposal dating from 1998 to reduce the blood–alcohol limit (BAL) for drinking-driving from 0.08% (80 mg/100 ml) to the general level of the European Union, 0.05%. Prior to this decision, the Road Safety Minister ‘had several meetings with the Portman Group, which is funded by the drinks industry and strongly opposes reducing the limit’. The Department of Transport ‘drew on research commissioned by the Portman Group’. A House of Lords Committee noted that ‘the department's position coincides with that of the alcohol industry but is opposed by local authorities, the police, the British Medical Association, the Automobile Association, the Royal Society for the Prevention of Accidents, the Transport Research Laboratory and the Parliamentary Advisory Committee for Transport Safety’ (UK House of Lords Select Committee 2002). The chair of the House of Lords Committee, a Labour peer, noted that he ‘was surprised by the apparent influence of the drinks industry’ (Webster 2002). The factors involved also include general ideological affinities of the Blair government. New Labour has a strong tendency to define social problems in individual terms, without attention to the social context. Violence in pubs and outside them on the street tends to be seen as a matter of ‘drunken yobs’, and the solutions are primarily individualistic: banning orders forbidding individual ‘troublemakers and drunks’ from entering pubs, or a law for the police to ‘levy on the spot fines for drunken, loutish and antisocial behaviour’ (Blair 2000). This last idea, from the Prime Minister, met with police opposition, but shows up again in the Strategy as a raft of individual-orientated solutions to be enforced by the criminal justice system—Fixed Penalty Notices, Acceptable Behaviour Contracts, and Anti-Social Behaviour Orders (p. 57). Trouble in the ‘night-time economy’ is thus defined solely in terms of ‘bad apples’, steering attention away from the social and commercial contexts in which the trouble arises. Also, as Anthony Sampson (2004) notes, New Labour ‘has proved more sympathetic to big business than any postwar government except Margaret Thatcher’s . . . It remains ironic that it has been left to New Labour to embrace the business world more warmly than any of its predecessors’. It would be hard to think of a more cogent illustration of Sampson's point than the performance of the Blair government on alcohol issues. Near the end of the Strategy, under the rubric ‘ensuring the scheme is working’, there is an attempt to bare the government's teeth: We are keen to allow the industry to demonstrate its willingness to abide by best practice. We propose that participation in the [collaborative] scheme should initially be voluntary . . . [After the next election,] if industry actions are not beginning to make an impact in reducing harms, Government will assess the case for additional steps, including possibly legislation. However, in the light of the last 6 years, it is hard to give much credence to this threat. There was a time, not so long ago, when Labour was capable of better on alcohol policy. It is instructive to compare the new Strategy with the report on Alcohol Policies produced in 1979, in the final months of the last Labour government, by the government's Central Policy Review Staff. The report was typeset but never published in Britain, finding publication eventually in Sweden, beyond the reach of the Official Secrets Act (Bruun 1982). Like the Strategy, the CPRS review noted the fragmentation of alcohol issues across government—16 UK government departments, by the CPRS's count for the late 1970s—and called for mechanisms for better coordination. However, the similarities of the reports do not extend much further than that. The CPRS review drew on the then-emerging scientific literature showing a relation of alcohol consumption levels to levels of harm in the population, and did not evade the implications. It proposed that ‘the Government should announce a positive commitment on countering the rise in consumption levels and on the reduction of alcohol-related disabilities’ (p. viii). It saw the use of alcohol taxes as an explicit instrument of alcohol policy, with the levels at a minimum being kept level with changes in the retail price index. ‘Liquor licensing should not be further relaxed’, it stated; ‘its purpose should be clarified and in respect to under age drinking its enforcement improved’. Furthermore, ‘the momentum on drinking and driving should be renewed and legislation prepared’ (p. ix). A quarter-century onward, the CPRS review still provides a better foundation than the 2004 document for a British strategy on alcohol.