Levelling-up and Regeneration Bill

Lord Holmes of Richmond Excerpts

Report stage
Wednesday 13th September 2023 Lords Chamber

Moved by

[Lord Holmes of Richmond]

248: Schedule 20, page 459, line 8, at end insert—
“1A In section 1 of the 2020 Act (pavement licences), in subsection (5), at the end insert—“or any part of a vehicular highway which is adjacent to such a highway.””Member's explanatory statement
This amendment enables the pavement licence to include part of the carriageway, where the carriageway is adjacent to, for example, an eligible pavement. This would enable a licensing authority to grant licences which occupy part of the highway shared between space for pedestrians and vehicles.

[Lord Holmes of Richmond (Con)]

My Lords, I shall also speak to the other amendments in this group that are similarly in my name, and I will give more than a nod to the other amendment in the group.

When it comes to pavements and pavement licences, the Bill has done nothing for pedestrians, those with access needs or those who simply want to rely on the primary purpose of the pavement. The primary purpose of the pavement is to get from A to B, be that for work, leisure, hospital appointments or whatever it may be—to go about one’s business on a clear, uncluttered, maintained pavement. I will not speak to all the amendments in this group but I ask the Minister to respond to all of them because each in turn raises important points when it comes to our ability, as members of our local communities, to use the pavements in our area.

The amendment that I want to spend most time on is Amendment 252, which addresses the consultation period when businesses seek to acquire a pavement licence to run part of their business on the pavement in front of their properties. The Government argue that this consultation period has been doubled from seven days to 14 from the Business and Planning Act we passed during Covid. In fact, what has happened is not a doubling of the consultation period but a halving of it, from 28 days in the Highways Act, which was always the period before Covid.

The seven-day consultation period is the wrong comparator to look at. When we debated the Business and Planning Act, it was clear that we were considering the balance between the needs of businesses and those of the local community. The need of businesses at that time was to acquire a pavement licence and to be able to have a business at all, as a consequence of the social distancing rules under Covid. That is in no sense the comparator now, which is simply, as it was pre Covid, for a business to extend its services on to the pavement, thus having additional business, not just a business or no business.

So it seems completely clear, fair and equitable, balancing the needs of businesses with those of all the members of the community, that the consultation period should revert to what it was pre Covid, in order to enable all members of the community to engage in a consultation when such pavement licences are sought. There are obvious and particular accessibility needs for certain groups within a community, and it is self-evident that to halve that consultation period from 28 days to 14 effectively excludes many people from participating in that consultation. Effective exclusion from consultation does not in any sense sound like levelling up.

In Amendment 252 I propose what I believe is a fairer compromise: to take the 28 days down to 21. The Minister may well argue, “What’s the difference between 14 days and 21?” It may well be the difference between individuals and large sections of our community being able to participate in that consultation and their being effectively excluded from such participation.

I will touch briefly on Amendments 256 and 257, which are linked in respect of the question of access and enabling people to travel from A to B, as the pavement was always intended to do. What is the Government’s problem with simply requiring businesses that may well have gained a licence to tidy up and pack away furniture from the pavement when it is not in use? Similarly, when it is in use, there should be some form of reasonably costed demarcation, be it tactile markings or physical barriers, to surround that seating area, which would benefit both those using the pavement and those using the seating area.

I fear that the Minister does not have much for me today, but I am afraid that in those circumstances the Bill will lead to a less accessible pavement. It will lead to people finding it increasingly difficult and sometimes impossible to access their local area and get where they need to go. It will mean local authorities missing out on potential income from the additional profits that businesses will be able to make on those pavements—when I say “those pavements”, I think we all agree that they are our pavements that our taxes have paid for.

I urge the Minister to think again and strongly to consider the amendments, not least the ones concerned with accessibility and the one that refers specifically to consultation, which would enable all the members of our community to participate fully in the question of whether they believe a pavement licence is good for their local community. I beg to move.

[Lord Young of Cookham (Con)]

My Lords, I commend the speech of my noble friend Lord Holmes of Richmond. Obstructions on the pavement are an issue not just for those with a visual impairment but for a wide variety of other users of the pavement. He rightly calls for a better balance between the needs of business on the one hand and the needs of pedestrians on the other, and he deserves a sympathetic response from the Minister.

Amendment 258, in my name and that of the noble Lords, Lord Faulkner and Lord Hunt, and the noble Baroness, Lady Northover, would introduce the requirement for all pavement licences to be smoke-free and so to contribute to the Government’s worthy ambition to make England smoke-free by 2030—an ambition we are currently on track to miss by nine years, according to Cancer Research UK. The House has previously expressed strong support for such a measure. Under the current pavement licensing rules, councils have two options on pavement smoking: to implement the national condition to make reasonable provision for seating where smoking is not permitted, or to go further and make 100% smoke-free seating a condition of licences at local level.

I have previously welcomed the current requirement, secured only after pressure from Members in both Houses who objected to the original proposal, which had no provision for non-smokers. But, although where we are is better than what the Government originally proposed, it does not go far enough.

When this amendment was debated in Committee, my noble friend Lord Howe defended the current arrangement, stating that

“it is important to allow local areas to make the decisions that are right for them”.—[Official Report, 22/5/23; col. 661.]

I note in passing that, when I asked for that flexibility this morning on planning fees, my noble friend robustly rejected it. Although I understand the principle behind this position, in practice it places a significant burden on councils, which must provide reasonable justification for introducing a smoke-free condition on a case-by-case basis.

This is the point made by local councillors from the London Tobacco Alliance, who this week have written to the Secretary of State for Levelling Up, Housing and Communities, calling on the Government to introduce a national 100% smoke-free pavement licence condition. This would reduce the amount of bureaucracy faced by councils and help to protect non-smokers, especially children and of course those who work in the hospitality industry, from toxic tobacco smoke.

This amendment is also supported by the Local Government Association, the cross-party national membership body for local authorities, which has said that 100% smoke-free pavement licensing

“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”.

Under the current system, implementation of smoke-free conditions is highly inconsistent across the country, meaning that non-smokers, children and hospitality staff will continue to be exposed to second-hand smoke. That is why Dr Javed Khan OBE’s independent review of Smokefree 2030 policies, commissioned by DHSC and published last year, recommended that smoking be prohibited on all premises, indoors and out, where food or drink is served, as well as a ban on smoking in all outdoor areas where children are present.

This recommendation has strong public support, with two-thirds of the public polled in 2022 saying 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. Some councils are doing what the public want, with 10 councils in England introducing 100% smoke-free requirements. The experience of these councils shows that smoke-free seating has proved popular with the public, leading to high levels of compliance, and has not been shown to cause a decrease in revenue.

When South Tyneside Council surveyed opinion on 100% smoke-free seating among local café proprietors, it did not receive a single objection. A number of proprietors were very supportive of the more consistent approach, which is easier to comply with and requires little or no enforcement. The director of public health in South Tyneside said:

“Creating and supporting smokefree environments benefits individuals, the wider community and businesses—supporting those trying to quit the habit, promoting positive role modelling for children and young people, and reducing the harm from second-hand smoke”.


This amendment is an opportunity to implement Dr Khan’s recommendations and take a small but important step forward towards a smoke-free 2030. I hope that my noble friend, who took a keen interest in preventative medicine when he was a Health Minister, feels able to support this modest but popular amendment. If, by any chance, the dreaded word “resist” is at the top of his folder, can he say whether primary legislation is required if, in the future, the House wants to revisit this issue if we do not achieve this progressive measure this evening?

--- Later in debate ---

[Lord Holmes of Richmond (Con)]

My Lords, I thank everyone who has taken part in this debate. It is clear that there is cross-party support for these measures concerning pavement licences and, indeed, smoke-free areas on such granted licence areas.

I thank my noble friend the Minister for his response; he gave me nothing, but he did it in a very charming way. It is always a pleasure working with him.

It is clear from our deliberations in Committee and on Report that the levelling-up Bill is riddled with inconsistencies and is incoherent as a totality. In some parts of the Bill, the Government say there should be a national approach; in other parts, when it comes to smokers, not so. Only this afternoon in the previous but one group, we heard a full-throated commitment from the Minister and, indeed, the Government to the polluter pays principle but here—not so.

When it comes to pavement licences and the use of the pavement, I am afraid that there is little that speaks to levelling up; it is more holding back and tripping up. However, with the cross-party support I believe we have for the measures—reasonable, balanced, equitable measures—proposed in my amendments, I believe that we will be returning to these issues. For now, I beg to withdraw the amendment.

Amendment 248 withdrawn.