Business and Planning Act 2020 (Pavement Licences) (Coronavirus) (Amendment) Regulations 2022

Thursday 14th July 2022 Grand Committee

Considered in Grand Committee

13:56

Moved by

[Baroness Bloomfield of Hinton Waldrist]

That the Grand Committee do consider the Business and Planning Act 2020 (Pavement Licences) (Coronavirus) (Amendment) Regulations 2022.

Relevant document: 6th Report from the Secondary Legislation Scrutiny Committee

[Baroness Bloomfield of Hinton Waldrist (Con)]

My Lords, these regulations were laid in draft before the House on Thursday 16 June 2022 under Section 23(6) of the Business and Planning Act 2020 for approval by resolution of each House of Parliament. If approved and made, these regulations will extend the temporary pavement licence provisions for 12 months, to 30 September 2023, and will come into effect the day after they are made.

The temporary pavement licence provisions created a faster, cheaper and more streamlined consenting regime for the placement of removeable furniture, including tables and chairs, on pavements outside premises such as cafés, bars, restaurants and pubs. These measures have been popular and very successful in supporting businesses, making it easier for businesses such as pubs, restaurants and cafés to facilitate al fresco dining with outside seating. It is vital that we continue to support the recovery of the hospitality sector from the impacts of the coronavirus pandemic by extending these provisions for 12 months.

I turn to the details of the regulations. The sole purpose of the regulations is to change the four references to the expiry date of these temporary pavement licence provisions in the legislation, as amended, from 30 September 2022 to 30 September 2023. The regulations do not change any other part of the temporary pavement licence provisions, so the process for applying for a licence during the extended period will not change.

Subject to the regulations being approved and made, businesses will be able to apply for a licence under the process set out in the pavement licence provisions in the Business and Planning Act 2020 for the extended period, until 30 September 2023. The regulations do not automatically extend licences that have already been granted under the current provisions, so businesses will need to apply for a new licence if they wish to have one in place during the extended period. Local authorities are encouraged by guidance to take a pragmatic approach in applying the relevant provisions so that it is as convenient as possible for businesses to apply for a licence during the extended period.

As the process for applying for a licence under the extended period will remain unchanged, I will briefly remind noble Lords of this process. All licence applications are subject to a seven-day public consultation period, starting the day after that on which the application is made, and then a further seven-day determination period during which the local authority is expected either to grant a licence or to reject the application. If the local authority does not determine the application before the end of the determination period, the licence will automatically be deemed to have been granted in the form in which the application was made, and the business can place the proposed removable furniture, such as tables and chairs, within the area set out in the application for the purpose or purposes proposed.

Licence application fees will be set locally but are capped at a maximum of £100. Again, these fees are unchanged from what they are for licence applications under the current temporary provisions in the Business and Planning Act 2020. All licences will be subject to a national no-obstruction condition and smoke-free seating condition, as well as any local conditions set by local authorities.

The grant of a pavement licence covers only the placing of removable furniture on the highway. A pavement licence does not negate the need to obtain approvals under other regulatory frameworks, such as alcohol licensing. Once a licence is granted, or deemed to be granted, the applicant will also benefit from deemed planning permission to use the highway land for anything done pursuant to the licence while it is valid, such as using furniture to sell or serve food or drink supplied from, or in connection with relevant use of, the premises.

14:00

These regulations will enable food and drink hospitality businesses to continue to obtain a licence to place furniture on the highway outside their premises expediently and as cheaply as possible. As I stated, this extension is considered necessary and vital because it will provide businesses with much-needed certainty to help them recover economically from the coronavirus pandemic, and it will support them in planning for the extended period.

I will explain just how hard the sector has been hit. Evidence from trade organisations and other sources indicates that wider economic pressures faced by the hospitality industry continue, with the sector yet to return to pre-pandemic levels of trading by March 2022, according to the British Beer and Pub Association. I firmly believe that these regulations will provide essential economic support for many food and drink businesses by continuing to enable expanded outdoor capacity for serving food and drink. To support local authorities and businesses with the implementation of the regulations, we will publish an updated version of the pavement licence guidance when the regulations are made.

If these regulations are not introduced, there is a real risk that this will undermine the steps that food and drink hospitality businesses have taken to recover from the economic impacts that they have suffered. We seek to make permanent this measure through the Levelling-up and Regeneration Bill, and failure to extend this measure would result in an unnecessary gap in service and a return to the process under the Highways Act 1980, which would be confusing and costly for businesses and local authorities.

All of us in government have enjoyed al fresco dining at pubs, cafés and restaurants and can see the positive impact that it has on the vibrancy of our high streets. Since introducing a simplified route for businesses such as pubs, restaurants and cafés to obtain a temporary pavement licence, we have heard many examples of local businesses being able to increase their outdoor capacity quickly and at low cost. These draft regulations will allow al fresco dining and drinking to remain a reality for these businesses and provide much-needed continuity and certainty for another year, while we seek to make permanent the measure through the Levelling-up and Regeneration Bill.

I express my gratitude to local authorities for the huge effort that they made in this matter. Their hard work enabled businesses to thrive, while building vibrant high streets, leading to the success of these measures. I commend this instrument to the Committee.

[Lord Young of Cookham (Con)]

My Lords, I thank my noble friend for introducing the statutory instrument and putting it in context. As she said, it rolls forward the existing pavement licences regime for another year, prior to them being embedded in primary legislation in the forthcoming levelling-up and urban renewal Bill.

My noble friend did not mention one controversial issue: smoking. If she did, I must have missed it. This is the background to the controversy about the instrument. When it was initially introduced there was no provision for non-smoking areas associated with pavement licences. There were then very strong representation from a number of noble Lords that, like licences for inside pubs, those for outside should also be non-smoking. There was a debate, and we ended up with a typical House of Lords compromise, which I suspect did not satisfy the Government and certainly did not satisfy me—namely, that provision must be made for non-smoking areas on the pavements. That is in the statutory instrument and is being rolled forward.

I remind my noble friend that a regret Motion was carried in your Lordships’ House a year ago on the omission of 100% non-smoking provision in the licence. That should be a warning to the Government that, when the LUR Bill eventually comes forward, there will be similar representations that the legislation should be changed. I say in passing that I am very grateful to my noble friend Lord Greenhalgh, whom we much miss in these debates, for the briefing that he gave me last week.

There has been a significant change since we last debated this, in the form of the Khan review on smoke-free 2030 policies. The Khan review is quite unequivocal on this. It recommends that the Government

“amend the 2006 Health Act to prohibit smoking on all premises where food or drink is served.”

It actually goes a lot further, calling for the introduction of more smoke-free outdoor public spaces through a ban on smoking in all outdoor areas, not just pavement licences, where children are present. If the Government are serious about the Khan review and the ambition to make this country smoke free by 2030, they have to take on board the review’s recommendations when they draft the LUR Bill.

In the meantime, some local authorities have used the freedom that they have under the SI to introduce smoke-free pavement areas—for example, Manchester and Newcastle. There is no evidence at all that this has had any impact on trade. In fact, the reverse is the case: all the public opinion surveys after the initial ban on smoking in pubs indicated that more people visited pubs when they were smoke free, and 100% smoke free with a pavement licence is much easier to implement than the halfway house we have at the moment. You just have to put up one notice saying “No smoking”, and then there are no ashtrays and no two-metre gap between the smoking and non-smoking areas.

My noble friend mentioned that new guidance will be issued in conjunction with this SI. I ask for an assurance that, before that guidance goes out, there is consultation with the Department of Health, which obviously has an interest in this subject. Last year there was an instance where correspondence went out to Manchester from the department—I think it was then the MHCLG—that I do not think had been cleared with the Department of Health and sent a slightly confusing message. While welcoming this statutory instrument, I would be grateful for that assurance from my noble friend that there will be consultation with the Department of Health before the guidance is sent out.

[The Earl of Clancarty (CB)]

My Lords, I spoke in support of these measures when they were first presented two years ago, and I am glad that they have been extended for another year. It is worth emphasising how important the hospitality trade is. In 2019 it was worth £59.3 billion and represented 3% of total UK economic output. From the point of view of levelling up, the trade is important across the whole country. But as the Minister says, hospitality has by no means recovered to pre-Covid levels. This is not just about the pandemic, although that is part of it: we now have the energy and cost of living crisis and the prospect of further rail strikes. But we should not forget what the pub group Mitchells & Butlers said last autumn—that Brexit was still

“an important event for the market”

in terms of workforce shortages, which have run into the thousands for that group alone. This is shades of what the noble Baroness, Lady Randerson, was talking about in the earlier SI on airports. There are also supply and cost of product problems, and transport costs as well. So what measures, alongside this welcome if relatively modest measure, are the Government taking, or considering taking, to help the hospitality trade? The trade clearly needs considerably more help, not least to save more pubs from closure.

Clearly, it is important that pavements can be accessed properly by all users, including those with disabilities. It is worth repeating what I said to the noble Lord, Lord Greenhalgh, two years ago: this is about not just access but predictability of access, so that street furniture is put out as precisely as possible, in the same place as the day before, to enable that access. That is a really important point, which I hope will appear in the new guidance. Will businesses clearly be able to refer to such guidance? Will this be checked after licences are awarded?

We are getting better at al fresco dining in this country. Of course, the weather at present is perfect for it, and I hope that we will enjoy the rest of the summer in this way and that the hospitality trade benefits from this as well.

[Baroness McIntosh of Pickering (Con)]

I too give a warm welcome to my noble friend for stepping into the breach and presenting the regulations this afternoon. I join my noble friend Lord Young in congratulating my noble friend Lord Greenhalgh on all he achieved in his position. We have been extremely fortunate to have him. I do not think a day or a week passed without him making some contribution and he was extremely knowledgeable and skilled in his field, so I look forward to his many further contributions from the Back Benches—for the moment.

I will give a plug and a thank you to the Liaison Committee, which allowed us to do a follow-up report on the Licensing Act 2003, which is like the mother Act of many regulations, including those before us this afternoon. We published the report on Monday and it seems to have been extremely well received. I was fortunate enough to meet UKHospitality at a beer dinner last night, where I was able to discuss it briefly, and I hope we will have the opportunity to discuss our recommendations and conclusions.

One of the witnesses, Kate Nicholls, was in fact from UKHospitality and was extremely powerful. I pay tribute to her for the work that she has done; I think the Government have appointed her as the first ever disability ambassador for hospitality. She will have a great role to play on pavement licences. We are fortunate that we are able-bodied and able to walk around quite freely—if you can pass the crowds on the pavement at the moment. But I think anybody who is hard of sight, or with a disability and needing a mobility scooter, is very mindful of the obstructions that street furniture and other things can cause.

We had a debate on airport slot allocations earlier. I would say that the airline, retail and hospitality sectors have definitely been the most damaged by the Covid crisis, which is still ongoing, so I warmly welcome the provisions that my noble friend has set out today. Looking back to 2003, when I had been an MP for, I think, six years—I am looking at my former Chief Whip—we were full of expectation that there was going to be a café culture and that we would be able to take young children and older family members into cafés to order coffee, wine or soft drinks. That never really took off under the Licensing Act 2003 in the way that the then Government intended.

However, we should pay tribute to the original regulations that my noble friend referred to, which came in in 2020, as she stated. Under the temporary provision, the process for applying for a licence was capped at £100—I think it still is—so everybody knows and the local authorities are onside. Perhaps even more importantly, a licence is automatically deemed granted if the authority does not make a decision on the application before the end of the determination period.

The two things I welcome most warmly in what my noble friend said are, first, the fact that the regulations today will extend the provisions right up to 30 September 2023 and, secondly, the commitment to make that a permanent feature in the levelling-up Bill. I am really looking forward to tackling that Bill as I have many other ideas, and I hope that my noble friend will enter into the spirit of that. With those few remarks, I welcome the regulations before us.

[Baroness Northover (LD)]

My Lords, on behalf of my noble friend Lady Pinnock, who cannot be here today, I can say that we welcome the ability of cafés, restaurants and so on to have spaces outside on pavements. She leads in this area and wanted to make that clear. It has been a welcome development, pandemic or no pandemic. However, my noble friend’s particular concern is that businesses should pay rent for these spaces because the spaces are publicly owned and maintained by council taxpayers.

14:15

That links to a point which other noble Lords have made and that my noble friend Lady Janke, who is standing aside because the last SI went through so fast that she did not make it here in time, wanted to emphasise. It concerns narrow pavements and those with pushchairs or wheelchairs, or people with mobility issues. We now have permanent structures being installed in the footway—business extensions, in effect—and councils do not seem to have the power or resources to remove them, even in conservation areas; for example, my noble friend is very familiar with Clifton in Bristol in this regard. Businesses use lengthy legal processes to resist. Will the Government issue guidance on the duty of local authorities to enforce regulation and restraint? That ties in with what my noble friend Lady Pinnock intended to say about resources, which could therefore be tackled in that way.

I turn to the reason I wanted to speak in this debate, following on from the noble Lord, Lord Young—the Minister may not be surprised to hear this. I want to come on to what I see as the major deficiency in these regulations, which the noble Lord, Lord Greenhalgh, said would be sorted if they were extended; he certainly told me that after the first regulations were put in place. When the regulations were first introduced, the then Minister pointed out that his father, Professor Roger Greenhalgh, a noted vascular surgeon, had a deep understanding of the public health importance of what I am about to say. The Minister shared that understanding of the public health implications of what he was introducing.

Once again, however, the Government have extended these regulations without revising them to require that all pavement seating is 100% tobacco-smoke free. This would have contributed to the Government’s ambition to make England smoke free by 2030, an ambition which we are currently on track to miss by seven years. Fewer than one in seven adults now smokes—a welcome development that has been very hard fought for—and people dislike being exposed to tobacco smoke. The ban on smoking in public places was introduced against a cacophony of warnings from the tobacco industry, but not only did those warnings not come to pass; people really liked the fact that pubs, cafés and restaurants had become smoke free. They felt clean and welcoming.

What we have done here is to extend the inside of pubs, restaurants and cafés to the outside. These outside areas are equally public places where smoking should quite simply be banned, with no ifs, buts or exceptions. Research shows that this is popular and some councils are doing what the public want, with 10 councils in England introducing 100% smoke-free requirements. These bans have proved popular, with high levels of compliance, and have not been shown to decrease revenues.

However, as the noble Lord, Lord Young, said, under the current legislation, councils have two options on smoking: to implement the national condition to provide some smoke-free seating, or to go further and make 100% smoke-free seating a condition of licences at local level. It is a more complicated system than a blanket ban and means that non-smokers and children will continue to be exposed to second-hand smoke. The Minister will not need to be told that scientific evidence indicates that there is no risk-free level of exposure to second-hand smoke and that exposure is linked to all sorts of health problems including cancer and heart disease, as the noble Lord, Lord Greenhalgh, acknowledged.

As the noble Lord, Lord Young, said, there is strong cross-party support in the House, as there has been for 20 years, for reducing the harm that tobacco causes and, in this case, for 100% smoke-free pavement seating. As he said, the noble Lord, Lord Faulkner, tabled an amendment, which was passed despite the Minister’s party having a heavy Whip on that vote.

As we have heard, only last month Dr Khan published an independent review of smoke-free 2030 policies, commissioned by the Department of Health and Social Care, which recommended the prohibition of smoking on all premises where food or drink is served, as well as a ban on smoking in all outdoor areas where children are present. This statutory instrument is therefore a missed opportunity to implement Dr Khan’s recommendations and continues a challenge that was introduced in rushed circumstances.

As we have heard, the current pavement licensing conditions will apparently be made permanent in the Levelling-up and Regeneration Bill. We cannot vote on these regulations because we are in Grand Committee and, anyway, SIs cannot be amended. I therefore urge the Government to amend the upcoming Bill to require that pavement seating is 100% smoke free. If they do not, I and others will put forward an amendment when the Bill comes to the Lords. The best thing would be if those working on the Bill, knowing that it will be amended, sorted it out in advance. That would mean one fewer thing to worry about when the Bill reaches this House. Clearly, the noble Baroness, Lady McIntosh, will raise a number of other issues too—so pick this one off and sort it out. There is always the challenge of whether government is joined up.

I am sure the Minister will know how the tobacco industry has long pushed back on tobacco control. But it was in the UK, because of the cancer registries developed because we had a comprehensive health system, that Sir Roger Doll was able definitively to connect smoking with cancer—something the industry knew well but kept closely to itself. We have had long battles to curb smoking and, through cross-party support, progress has been made. The Department of Health is now very switched on in this area, but the department that deals with local government clearly did not have this expertise. In the pandemic, with the Government needing to restrict the number of people inside premises but trying to ensure that businesses remained viable—all very laudable aims—pavement licences were granted. It is extremely clear that pressure was put on the department, persuading it that there would be an economic hit if these were smoke free. I hope we do not hear that from the Minister today. We tried to ensure that these areas, which are an extension of the inside to the outside, were smoke free. It became clear that the local government department had not consulted the relevant part of the Department of Health until after the proposals had been laid.

There was a certain amount of scurrying around, supported by the noble Earl, Lord Howe, when we pressed the case; we were told that things had to be rushed through. But we are not in a rush now, and we forced the department properly to engage with the Department of Health. What consultation was there over this element of this SI with the Department of Health and, in particular, with the part of it that deals with smoking and public health—not simply a ministerial write-round? Will the Minister make sure that the levelling-up Bill, when it comes forward, has been updated so that it is in line with what the Government say they want to do on public health and so that the siren voices, which have been so powerful here, do not help to lure staff, adults and children on to the very obvious rocks that the tobacco industry presents to us? I look forward to her reply and, if she cannot for some reason fully reply—I would understand that—to her writing to us.

[Lord Khan of Burnley (Lab)]

My Lords, over recent years, hospitality businesses across the UK have struggled, but the problems they face did not begin during the pandemic. As the cost of living bites, it is important that the Government support local businesses in any way possible. Even minor steps such as these regulations are welcome. Labour therefore does not oppose these regulations to extend pavement licences, but instead calls on the Government to minimise the unintended consequences. That means monitoring the impact on local residents and pedestrian access, particularly for those with disabilities and mobility issues—a point raised by the noble Baroness, Lady McIntosh.

Guide Dogs UK and the RNIB both raised concerns about the shortened timeframe for consultation when the temporary changes on pavement licencing were introduced. The department must work with both groups to resolve concerns. The Government should also work closely with local authorities to enforce safeguards in cases where businesses are blocking pavements and ensure that councils are properly resourced to fulfil their responsibilities.

Aside from the specific provisions of this instrument, Labour wants the Government to bring forward further support to help the hospitality industry, and that includes making sure that people have more disposable income to support local businesses.

Several noble Lords—particularly the noble Earl, Lord Clancarty, and the noble Lord, Lord Young of Cookham—mentioned that the hospitality industry has not recovered to pre-pandemic levels. I have a few questions to follow up on some excellent contributions made by noble Lords in this debate.

During the two years since this has been in place, how many licences have been rejected and what were the main reasons for those rejections? On hospitality and local councils, has there been any feedback between the department and local authorities on what have been the major impacts? That is a very broad area, but I am sure that the Minister could comment on whether the issues are Brexit or pandemic-induced—a point made earlier. The noble Baroness, Lady Northover, made a powerful contribution and added to the point made by the noble Lord, Lord Young of Cookham about the complexities and confusion around smoking and non-smoking areas. I hope for some clarification from the Minister.

The Minister also gave many examples of increasing capacity at minimum cost and short notice. In particular, has the department assessed how much value there has been in footfall to different hospitality sectors and has there been an economic measurement of increased revenue for businesses? Has work been done on that area?

I look forward to hearing the Minister’s response. I am sure that in forthcoming proceedings on the Levelling-up and Regeneration Bill there will be many contributions and amendments, but it is a good start to hear the issues raised today.

[Baroness Bloomfield of Hinton Waldrist]

I thank noble Lords for all their contributions, which have given us an interesting debate on the draft regulations before us today—a meatier debate than I expected at the outset. We have been discussing an essential extension of the temporary pavement licence provisions in the Business and Planning Act 2020 for 12 months to 30 September 2023. As previously outlined, the regulations continue our support for the hospitality sector’s economic recovery from the coronavirus pandemic, as well as supporting businesses in times of rising costs and expenses. They are vital to provide certainty for the businesses in their planning for al fresco dining for the next year.

I am grateful to noble Lords for raising a number of important points in relation to how this will operate, and I welcome this opportunity to respond. I have heard loud and clear the contributions of both the noble Baroness, Lady Northover, and my noble friend Lord Young on the issue of smoking and smoke-free areas and I acknowledge that they are both very well informed on the subject. To be fair, I merely touched on the issue of smoking in my opening remarks—certainly not in any great depth.

As they both know, all licences are subject to the smoke-free seating condition, which requires that the licence holder must make reasonable provision for seating where smoking is not permitted. The pavement licence guidance recommends that a minimum two-metre distance should be provided between non-smoking and smoking areas wherever possible. My noble friend is quite correct that local authorities can also apply their own local conditions to licences, and both Newcastle City Council and Manchester City Council have entirely banned smoking in areas that have been granted pavement licences.

14:30

I can confirm that we are working with the Department of Health on that guidance. The Government are carefully considering the 15 recommendations set out in the Javed Khan independent review to support the Government’s ambition for England to be smoke-free by 2030. The new tobacco control plan, due to be published later this year, will set out a comprehensive package of new proposals and supporting regulatory changes. I have heard loud and clear your Lordships’ request that we consider amending the LUR Bill. All I can promise to do is to take those concerns straight back to the department; it is beyond my pay grade to make any such undertaking from this Dispatch Box.

The noble Earl, Lord Clancarty, and my noble friend Lady McIntosh were particularly concerned about the impact on disabled people and access issues. Ensuring pavements remain accessible to everyone, including the disabled, is a condition of temporary pavement licences. Licences can be revoked where this condition is not met. The pavement licence guidance makes clear that, in most circumstances, 1.5 metres of clear space should be regarded as the minimum acceptable distance between the obstacle and the edge of the footway, and this will continue to apply under the extended provisions.

In framing the guidance, we worked closely with the RNIB and the Guide Dogs association to refine it to ensure that local authorities consider the needs of the blind when setting conditions and making decisions. Local authorities must consider the need for barriers to be put in place to separate furniture from the rest of the footway, so the visually impaired can negotiate around the furniture with ease. We are updating guidance to emphasise to local authorities that extra care should be taken to ensure that national and local requirements on accessibility are still being met.

The noble Baroness, Lady Northover, asked on behalf of the noble Baroness, Lady Pinnock, about the possibility of local authorities charging for the use of the pavements. Unfortunately, the Business and Planning Act 2020 does not give local authorities a specific power to charge ongoing rent for use of pavements. This measure supports businesses by making it significantly cheaper to gain a licence compared to the previous route, while fully funding local authorities’ costs for providing this service. We are not looking to impose additional costs on businesses at a time of rising costs.

I know that the noble Earl, Lord Clancarty, was also concerned what else we are doing to help businesses through what is a particularly difficult time, with both rising costs and lack of staff. We believe that these temporary measures benefit businesses by offering a cheaper and faster route to obtaining outdoor eating licences, and this cuts costs for businesses and enables additional seating. Not only do the measures assist in the economic recovery from the effects of the coronavirus pandemic but they support businesses during this time of rising costs. We must not forget the amount of support that we gave the hospitality industry throughout the pandemic, such as the furlough scheme and the Eat Out to Help Out scheme.

The noble Lord, Lord Khan, asked how many licences were rejected. The department does not have that specific data but, anecdotally, refusals are for many reasons, including fire safety, access for disabled people and the lack of safe functioning of the area. We approved 25,382 licences. I hope that has dealt with the questions.

To conclude, extending the temporary pavement licences provisions through the regulations is necessary to support hospitality businesses. This is particularly important when we consider just how badly hit by the pandemic the sector has been, and these temporary pavement licence measures have already been very successful in supporting the sector in its economic recovery. Extending the provisions will enable this success to continue and provide much-needed certainty to businesses in their planning for the coming year. I commend the regulations to the Committee.

Motion agreed.

Committee adjourned at 2.34 pm.