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Business and Planning Act 2020 (Pavement Licences) (Coronavirus) (Amendment) Regulations 2021

Volume 813: debated on Wednesday 14 July 2021

Motion to Approve

Moved by

That the draft Regulations laid before the House on 8 June be approved.

Relevant document: 6th Report from the Secondary Legislation Scrutiny Committee. Considered in Grand Committee on 8 July.

Moved by

At end insert “but that this House regrets that the Regulations were not revised to take account of the evidence of the benefits of 100 per cent smoke-free pavement licences, which have been implemented over the last year in a diverse range of local authorities and which have received strong public support”.

My Lords, when the Business and Planning Bill came before the House in 2020, a cross-party amendment was tabled saying that a condition of licence would be that outdoor seating areas were required to be smoke free. It was signed by the noble Baroness, Lady Northover—who I am delighted to see in her place—the noble Baroness, Lady Finlay of Llandaff, who cannot be here today but has said she strongly supports this amendment to the Motion, the noble Lord, Lord Young of Cookham, and me.

Commenting on our amendment, the Local Government Association said

“it sets a level playing field for hospitality venues across the country and has a public health benefit of protecting people from unwanted second-hand smoke … If smoking is not prohibited, pavement areas will not become family-friendly spaces.”

Noble Lords in all parts of the House supported our amendment, but it was not accepted by the Government, who instead inserted a requirement in the legislation that

“the licence-holder must make reasonable provision for seating where smoking is not permitted.”

Two-thirds of the public polled earlier this year did not think that the legislation went far enough and said they wanted smoking banned in the outdoor seating areas of all restaurants, pubs and cafés. Fewer than one in five opposed a ban. This was a large sample of more than 10,000 people carried out by YouGov for Action on Smoking and Health.

A growing number of councils under Conservative, Labour and Liberal Democrat control have recognised that smoke free is what the public want and have taken action to make it happen. These include cities such as Newcastle and Manchester, counties such as Durham and Northumberland, unitary authorities such as Middlesbrough and North Lincolnshire, and metropolitan boroughs such as North Tyneside, Gateshead and the London Borough of Brent.

These regulations were debated in Grand Committee last Thursday. One of the most telling contributions was by the noble Lord, Lord Young of Cookham. He is unable to be in the Chamber today but is aware that I plan to mention his speech. Noble Lords who read it in Hansard will see that he took apart the various government assertions about smoke-free pavement licences, including the scare that if smoking were banned outside pubs and cafés

“it could lead to significant closures across the country”.

The noble Lord, Lord Young, said about that:

“In spite of repeated challenges, not one shred of evidence was ever produced by the department to substantiate that assertion, frequently made by the smoking pressure group FOREST. Such evidence as we have from the introduction of the smoking ban in 2007 showed that more people said that they went to the pub more often than said that they went less often.”—[Official Report, 8/7/21; col. GC 387.]

In a letter to Manchester City Council last August, the Secretary of State urged it not to burden businesses with more red tape. The reality is that far less red tape is involved in implementing Manchester’s 100% smoke-free seating, which requires only putting up one no smoking sign. As every venue in the city is the same, the policy is clear to the public and businesses.

Sir Richard Leese, the leader of Manchester City Council, says:

“Since the pandemic, more and more businesses in the city are expanding outside where the public increasingly expect and enjoy smokefree spaces. By introducing smokefree pavements across Manchester, we are welcoming everyone back to our vibrant cafes, bars and restaurants, while driving forward our vision for a smokefree future.”

Manchester’s experience is repeated across the country. Norma Redfearn, the elected Mayor of North Tyneside, which also has 100% smoke-free pavement licences, says:

“We have found that implementing entirely Smokefree seating has been easy and simple for businesses to follow. We have worked closely with our business community to support them with its implementation, they have not raised any serious concerns about it and there have not been any compliance issues.”

There is good evidence from Canada, where smoke-free patio areas have been required by a number of provinces, that they are popular and easy to enforce and improve the health of hospitality workers, with no evidence of an adverse impact on business. If smoking is allowed, passers-by, customers and, above all, staff, who have no choice, will be exposed to significant amounts of tobacco smoke. Where patio smoking bans—similar to pavement licences here—were implemented in Canada, second-hand smoke exposure went down by up to a quarter. Where there was no ban, it went up. Hospitality workers in places where smoking was allowed on patios in Canada were found to be exposed to significant levels of toxic chemicals.

One hundred per cent smoke-free seating is easy to understand, simple to implement and popular with the public. Unfortunately, the Government’s compromise did not meet any of those tests. Revising the regulations to require 100% smoke-free pavement licences would have been a positive step towards delivering the Government’s vision of a smoke-free 2030 for England. Sadly, that opportunity has been missed this year, which is why I have tabled this amendment. Let us hope that we have another chance soon to get this right. I hope your Lordships will agree with me and vote for this amendment if I seek to test the opinion of the House. I beg to move.

I have received requests to speak from the noble Baronesses, Lady Northover and Lady Blake. I will call them in that order.

My Lords, I strongly support the amendment of the noble Lord, Lord Faulkner, which he very effectively introduced. The Government claim that they want the UK to be smoke free by 2030, but they have a funny way of going about this.

Years back, despite the efforts of the tobacco industry, working cross party we introduced into the United Kingdom the provision that public places such as pubs and restaurants should be smoke free. Was that not a transformation? It made sense during the pandemic that pavement licences should be granted, as people needed to be more distant from each other. Most people welcomed these new arrangements. Pavements were often widened to accommodate them. Does the Minister agree that the key thing to remember here is that these areas are simply extensions of the areas inside and need to be smoke free as well—for people’s health, for them to be family-friendly and to move closer to the smoke-free aim that the Government apparently have?

We ran into all the usual tobacco industry-briefed objections last year and—surprise, surprise—it turned out that the noble Lord’s department had not properly consulted the Department of Health on the matter and had to scurry to do so. Has it fully done so this time?

The objections from the tobacco industry are so familiar to the Department of Health. The noble Lord, Lord Young, took these objections apart last week. I wish we had a stronger weapon than an amendment to an SI that was going to be just slipped through, having been debated in Grand Committee, where noble Lords cannot vote and would knock out the whole SI if we did. This SI will barely have been registered by most in your Lordships’ House. Thank goodness the noble Lord, Lord Young, noticed and flagged it to the rest of us.

If this amendment is lost, the Minister should not take that as the will of this House. I am fully confident that if and when we debate this in legislation, there will be overwhelming cross-party support in this House for helping to tackle the terrible scourge of smoking. The department should be very wary of the briefings and influential lobbies that push it in another direction. I hope I do not hear very familiar objections voiced by the Minister in a minute. On these Benches we strongly support this amendment and are very grateful to the noble Lord, Lord Faulkner, for tabling it. I hope he calls a vote.

My Lords, I pay tribute to my noble friend Lord Faulkner for bringing this really important issue into the Chamber. His very well-informed and passionate speech does not need too much adding to.

I want to bring in a slightly different dimension. My noble friend and the noble Baroness, Lady Northover, both referenced the speeches in Grand Committee, which were really well put together; I recommend that everyone have a look at them in Hansard. We should also look at what we have learned over the last 18 months of the devastating impact of the coronavirus. We have been on an incredibly steep learning curve in understanding how the virus has impacted on the people who live in our communities. We have a duty, surely, to look at all the evidence before us.

Covid-19 is often described as a cruel virus and it has exposed health inequalities in the most vicious way. Surely we must learn from the knowledge that those suffering from underlying health conditions have been disproportionately affected by the virus. Smoking is a major contributory factor to those health conditions. Do we not have a responsibility to do everything in our power to reduce exposure to the impact of smoke inhalation? I am referring to both the customers and the staff in the premises we are talking about.

I would also like to emphasise the points that the noble Lord, Lord Young, made in Grand Committee about the lack of evidence and the lack of consultation with local authorities, which would have demonstrated that there has just not been the evidence that we should be concerned about the impact on the businesses we are talking about.

We have an opportunity to make an improvement to the provisions in the Building and Planning Act 2020. Of course, the irony is that the Act was brought in specifically to deal with the impact of coronavirus. I hope we will recognise the public health improvement outlined in my noble friend Lord Faulkner’s amendment and that we will all come together to show our support accordingly.

I thank the noble Lord, Lord Faulkner, for tabling this amendment and I thank noble Lords for an interesting debate on this matter. I will take this opportunity to respond to the noble Lord’s amendment. In Grand Committee I was not able to answer fully all the questions noble Lords raised on smoking issues relating to the temporary—I emphasise that—pavement licence extension regulations. I welcome the opportunity to address these issues in greater detail.

In Grand Committee, the noble Lords, Lord Faulkner, Lord Bradshaw and Lord Shipley, and the noble Baroness Lady Wheatcroft, all challenged me on the passing of these regulations and the potential passive smoking impacts. The impacts of passive smoking are very much a key concern and a top priority for this Government, which is why we should look to tackle this issue strategically. We will be a publishing a new tobacco control plan later this year, setting out our ambitious plans for England to be smoke free by 2030. The tobacco control plan will consider areas of regulation to strengthen in support of this aim.

In the very short term, it is right that we act to support hard-hit hospitality businesses to boost their capacity and continue their recovery. For this 12-month extension of the pavement licence provisions, the Government consider local and business-led discretion over implementing smoke-free policies to be the most appropriate approach. Businesses are able to introduce their own smoke-free policies if they wish to go further than the regulations require.

As the noble Lord, Lord Faulkner, mentioned, local authorities are also able to set their own local smoking conditions where appropriate and where local decision-makers believe it is reasonable to do so. A number of local authorities have already implemented such local smoking ban conditions within outdoor seating; these include the city of Manchester, as mentioned by a number of noble Lords, Newcastle, North Tyneside, Durham and Northumberland. This makes it clear that local conditions can be implemented where it is appropriate and desired locally.

I also remind noble Lords that the pavement licence guidance sets out ways in which the requirement for provision for seated and non-seated smokers could be met, such as displaying clear no smoking signs, the removal of ashtrays from smoke-free areas, and a minimum two-metre distance between smoking and non-smoking areas wherever possible.

The noble Lord, Lord Faulkner, referenced international comparisons. I emphasise that the UK is a world leader in tobacco control, and it is important that we share our learnings on the journey towards a smoke-free 2030. We must also learn from the successes of other countries. We will be closely monitoring the outcome of the Canadian approach. International studies of smoke-free parks and beaches, including in New Zealand and Canada, have found evidence through litter collections of continued smoking, suggesting that successfully enforcing any restrictions will involve considerable resource, including training people, such as park staff, in enforcing new policies.

I hope noble Lords will recognise that there is a real commitment in government to a smoke-free United Kingdom, but at this stage we are looking for an extension for a year. This is a temporary pavement licence extension of provisions that have worked incredibly well, as many noble Lords commented in Grand Committee. I emphasise that this Government are committed to reducing the smoking impacts of outdoor eating and drinking, both in terms of these regulations and, importantly, in future policy. Therefore, I ask the noble Lord, Lord Faulkner, to withdraw his amendment.

My Lords, I shall be very brief. I thank the noble Baroness, Lady Northover, and my noble friend Lady Blake for their splendid speeches and strong support for my amendment.

The noble Baroness, Lady Northover, reminded us of the transformation that smoke-free legislation has brought about in our society. There is no need for us to go into detail about that now because that is no longer an issue between the parties or, indeed, with the British people; it is accepted. That is one of the reasons why I find it so inexplicable that the Government did not take advantage of the pavement licences provision to extend that smoke-free regime to cover the outside areas. As the noble Baroness, Lady Northover, said, the pavement outside a pub or a café is essentially an extension of the indoor rooms of those premises, and the people who go there, particularly those with children, are entitled to enjoy a smoke-free environment.

My noble friend Lady Blake referred—very tellingly, I think—to the impact of smoking on people with severe health conditions, perhaps brought on by Covid. Limiting the exposure of those people to second-hand smoke is particularly important and we should be doing all in our power, including making pavement licence areas smoke free, to achieve this.

I thank the Minister for his speech and the considered way in which he has approached this issue, and I recognise that he has repeated the Government’s commitment to a smoke-free Britain by 2030. That is good news. But I ask him and other noble Lords to reflect on whether the adoption of smoking as part of the pavement licence helps that process or makes it more difficult. I think most people would argue that it is making it more difficult. It is an unnecessary obstacle.

I am pleased that the Minister also referred to passive smoking concerns and the fact that the Government now accept them. Again, this is another reason why pavement licences should be smoke free.

Interestingly, the Minister did not answer the point made by the noble Baroness, Lady Northover, about consultation with the Department of Health over these regulations. We did not get an answer to that question a year ago or last week in Grand Committee, and we have not had one today. It is fair to say that the Department of Health takes a rather different view of these matters from that of the Ministry of Housing, Communities and Local Government.

The Minister also did not refer to the extraordinary letter that the Secretary of State in his department wrote to Manchester City Council last August attempting to talk it out of its proposals with a series of arguments that, as the noble Lord, Lord Young of Cookham, demonstrated last week in Grand Committee, were completely spurious.

The House should have an opportunity to express a view on the regulations and on my amendment. I therefore wish to test the opinion of the House.

Motion, as amended, agreed.