Business and Planning Bill

Baroness Wilcox of Newport Excerpts

Report stage & Report stage (Hansard) & Report stage (Hansard): House of Lords
Monday 20th July 2020 Lords Chamber

[Baroness Pinnock (LD) [V]]

My Lords, I draw the House’s attention to my interests as set out in the register as a councillor and a vice-president of the Local Government Association.

We on these Benches support the Bill’s intentions to provide some additional business opportunities for construction companies and pubs, bars and cafés, which are often smaller, independent businesses on our high streets and have had their trade curtailed by the coronavirus restrictions.

This group of amendments in general provide for cafés and pubs to apply to extend their sales on to the pavement in front of their premises for a temporary period. In Committee we had an extensive debate about the consequences for people with disabilities, in particular those with a sight impairment. I thank the Ministers—the noble Earl, Lord Howe, and the noble Lord, Lord Greenhalgh—for the meetings following Committee to discuss these issues of concern.

My noble friend Lord Shipley has succinctly described the purpose of our Amendment 20, to which I also have my name. Our intention is simply to ensure that in the granting of licences, pavements do not become a hazard for pedestrians. The noble Lord, Lord Holmes, has raised similar concerns and tabled a number of amendments to seek clarification and prevent pavements becoming inaccessible. In particular, we have been concerned about tables and chairs on the pavement gradually spilling over into the area set aside for pedestrians. This is the reason for the suggestions we have made about the requirement for a simple barrier to mark off the area of the pavement licence. I hope that most businesses will make this simple provision.

On another issue, the noble Lord, Lord Holmes, has made an important point in his Amendments 23 and 24: the principle of inclusive design should be the starting point when changes to the built environment are made. I hope the Government take note.

The amendment in the name of the noble Lord, Lord Hain, to aid a partnership approach between employers and employees and their trade union representatives states a principle we can easily support. It is good that the Government have listened to these concerns and have tabled several amendments seeking to ensure that pavements are kept clear for pedestrians. Although these amendments do not go as far as we and others have argued, they go a long way to satisfy those of us worried about the potential consequences.

If the Government’s Amendment 16 passes, there will be provision for the Secretary of State to make conditions on pavement licences by regulation. I thank the Government for sending an update of the guidance, which shows their willingness to safeguard the interests of pedestrians. We accept that the Government have moved a considerable distance in resolving these issues and look forward to the Minister’s response.

[Baroness Wilcox of Newport (Lab) [V]]

My Lords, I draw attention to my interests in the register. It is right that the House is again afforded the opportunity to consider the implication of pavement licences. The various amendments in the name of the noble Lord, Lord Holmes, highlight the need for inclusive design. I agree with him and am pleased that the Government have also tabled amendments on this theme. The noble Lord, Lord Cormack, and the noble Baroness, Lady Pinnock, raise similar concerns, and I am glad that the House has debated them today.

I hope that, in addition to the Government’s amendments, the Minister offers further non-statutory assurances to make certain that accessibility issues are resolved. As my noble friend Lady Kennedy of Cradley noted, applications should not be granted if people are forced to cross a road; they should be able to pass by without incident. Pavement licences, when granted, can result in vibrant social spaces, but relevant stakeholder consultation is essential, as is the role of local authorities in ensuring compliance—as raised by my noble friend Lord Harris of Haringey. I agree with him that resources will need to be made available to local authorities for the extra work that this will entail.

My noble friend Lord Hain returned to the issue of trade union engagement, and he has the support of these Benches in so doing. As he said, consultation and co-operation have become the name of the game. I associate myself with the remarks of my noble friend Lady Chakrabarti in that respect. It should be the norm and statutorily implemented.

The House is aware from previous stages of the Bill that amendments in my name and that of the noble Lord, Lord Kennedy, have been raised about the concerns of trade union members. This amendment would ensure that local authorities consult employees and their unions when determining pavement seating applications. In recent weeks, I have spoken to members of Wetherspoon staff represented by the BFAWU, and it is clear that they are often left in the dark on decisions that have enormous ramifications for their working conditions. I hope the Minister will assure the House that he has at least engaged with trade unions in drafting the legislation and that he continues to during its implementation.

[The Minister of State, Home Office and Ministry of Housing, Communities and Local Government (Lord Greenhalgh) (Con)]

My Lords, the pavement licensing clauses in the Bill will provide vital temporary flexibility to aid the recovery of the 158,000 hospitality businesses that employ almost 2 million people over the summer months. That is the importance of this legislation, as raised by my noble friends Lord Naseby and Lord Sheikh, and the noble Baroness, Lady Pinnock.

Noble Lords have voiced concerns over accessibility, which the Government agree is paramount. While the Government have sought to address accessibility from the outset, through robust conditions such as the no-obstruction condition, guidance and enforcement procedures, we have reflected on the strong feeling in this House and recognise that more needs to be done.

In response—and what has been described by “a huge step forward” by my noble friend Lord Holmes—the Government have tabled Amendments 6, 16, 21 and 87, in the name of my noble friend Lord Howe. First, the Government have tabled Amendment 6 to Clause 3, which would insert a new subsection after subsection (6). New subsection (6A) provides that, when local authorities are determining whether furniture put on the highway would be, or already is, an unacceptable obstruction, they must have specific regard to the needs of disabled people and to any recommended distances required for access by disabled people, as set out in guidance issued by the Secretary of State. This puts in the Bill a requirement that a local authority, when deciding whether to grant an application and to exercise its enforcement powers, must have in mind the needs of disabled people and for clear access, as set out in the Government’s guidance.

Secondly, as well as the amendment to the Bill, I appreciate that there has been some confusion over the application of inclusive mobility guidance, so we are going to sharpen the focus. Inclusive mobility draws on a wide range of stakeholder inputs and remains the key piece of design guidance for the pedestrian environment. In response to the noble Lord, Lord Low, work led by DfT is under way that will update inclusive mobility next year. However, we recognise that businesses applying for licences may need clearer direction.

That is why our guidance will make clear that, in most circumstances, 1,500 millimetres or 1.5 metres of clear space should be regarded as the minimum acceptable distance between the obstacle and the edge of the footway. We will also address other concerns raised—specifically, provision of clear barriers to demarcate seating, explicit reference to duties on local authorities under the Equality Act and style of furniture. In response to the noble Baroness, Lady Bowles, that is the framework within which we are asking local authorities to operate.

We have also set out, in the House, the circumstances when local authorities can use their power to revoke, including where there is a breach of condition or there are risks to health and public safety, as well as highways obstruction. In response to the noble Lord, Lord Addington, there are robust enforcement procedures and local authorities can revoke licences when they give rise to these risks. They will need to have regard to the public sector equality duty under the Equality Act, when devising and implementing the new licensing regime, to eliminate discrimination and harassment. In response to the noble Baroness, Lady Grey-Thompson, disabled people can complain to the local authority, so authorities can act and revoke the licence for breach of a condition, which would be taken immediately. The idea of using markers, as raised by the noble Earl, Lord Clancarty, will also be considered in the guidance. That was a good point.

In drafting the guidance, we have consulted key stakeholders, including the RNIB and the Guide Dogs for the Blind Association, as well as the Local Government Association. These are the relevant stakeholders requested by the noble Baroness, Lady Kennedy. Since these measures will come into effect immediately on Royal Assent, it is important that we publish final guidance now, so that local authorities and businesses have regard to these vital considerations of accessibility without delay, as soon as these measures are implemented. However, we have made clear that any new national conditions will be subject to the negative procedure, as I will turn to shortly.

Finally, as a third step, we will be communicating the publication of the guidance to local authorities to make sure that they have sight of it as soon as possible. In so doing, we will point to existing examples of best practice on accessibility, as suggested by the RNIB.

With these steps, the Bill now makes clear that authorities must take the needs of disabled people and recommended distances into account, while guidance will set out further detail on what this entails. This provides very clear direction to local authorities and leaves scope for them to respond to their own local circumstances, while complying with their existing duties under equalities legislation. That delivers the certainty referred to by the noble Lord, Lord Shipley, with a degree of local discretion. I have to say, I note that my noble friend Lord Blencathra reserves the right to bulldoze through any obstruction in his armoured wheelchair.

I hope, therefore, that my noble friends Lord Blencathra, Lord Holmes and Lord Cormack, the noble Baronesses, Lady Pinnock and Lady Thomas, and the noble Lord, Lord Shipley, will accept government Amendment 6, and not press their amendments on this matter.

As I set out at Second Reading, the Government have accepted the recommendation of the Delegated Powers and Regulatory Reform Committee and tabled an amendment to replace the Secretary of State’s power to publish national conditions on pavement licences with a power to specify any national conditions for pavement licences in regulations, subject to the negative resolution procedure. This should provide a robust level of scrutiny of any national conditions. I hope that noble Lords will accept government Amendments 16 and 87.

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Moved by

[Baroness Wilcox of Newport]

11: Clause 5, page 4, line 37, at end insert—
“(2A) Conditions under subsection (2) may include that smoking is prohibited in either the entire area or part of the area covered by a pavement licence.(2B) A condition to prohibit smoking under subsection (2) may only apply if the local authority has first consulted local businesses and residents prior to the publication of such a condition.(2C) Conditions under subsection (2) may not prohibit the use of electronic cigarettes in the area covered by a pavement licence.”Member’s explanatory statement
This amendment would allow local authorities to prohibit smoking in areas covered by pavement licenses, provided they have first consulted local businesses and residents. This would not prohibit e-cigarettes.

[Baroness Wilcox of Newport [V]]

My Lords, tobacco is the leading cause of preventable death in the world. Although fewer than one in five adults in the UK now smoke, the Government must do all in their power to aid this remaining population to quit. We are in a fortunate position, in that in recent months, a million people in Britain have stopped smoking. The Government would do well to consider the recommendations of Action on Smoking and Health for how this can be built on.

The health risks of smoking are, of course, not restricted to smokers. The House will clearly be aware of the dangers of second-hand smoke, including in outdoor areas of pubs, bars and other premises to which the Bill relates. The Bill, as introduced by the Government, was a missed opportunity. In creating new outdoor areas, there should have been provision from the outset for smoke-free areas. On this basis we tabled Amendment 11, which would create a power for local authorities to prohibit smoking in certain areas covered by pavement licences after due consultation.

I am pleased that the Government sought to rectify their omission by tabling Amendment 13 to allow for smoke-free areas. It has the support of these Benches, but the amendment alone is not enough. The Government must take a firmer line on public health and consider how they can reduce the dangers of second-hand smoke more widely. In future legislation, I hope they will focus on doing so from the outset, for if they do not, we will again.

The amendment in the name of the noble Baroness, Lady Northover, would create a condition that pavement licences can be granted only if smoking is prohibited. While I fully sympathise with her reason for tabling this effort, I am afraid that we cannot support the present draft. As it stands, it might have enormous unintended consequences. It does not clarify that the prohibition of smoking should apply to the area covered by pavement licences, and without the definition of smoking it might unintentionally ban e-cigarettes. I understand that there are also concerns that other errors might lead to judicial review. If not for these errors we could consider the amendment, but in its present iteration I am afraid we cannot.

The noble Baroness is right to press for the Government to consider the implications of second-hand smoke, but when the hospitality industry is already suffering as it is, this attempt at some form of blanket ban, attached in haste to emergency legislation, would have consequences that I am sure are unintended. I hope the noble Baroness will reflect on this, support the efforts to create smoke-free zones and join us in holding the Government to account on their widespread failures to reduce smoking.

Finally, I ask the Minister to confirm that the Government’s amendment will not be their only effort to eliminate the dangers of second-hand smoke during this crisis. The initial drafting of the legislation served as a missed opportunity to tackle smoking. I am afraid that that is somewhat characteristic of their attitude over the past decade. I will press the Government on three specific issues. Will they halt the planned cuts to smoking cessation services across England? Will they properly fund the devolved Governments, including the Labour-led Welsh Government, to support their efforts in stopping people smoking? Will they engage and equip local authorities to play their significant part in what remains an enormous challenge to public health? I beg to move.

[Baroness Northover (LD)]

My Lords, I shall speak to Amendment 15 in my name and that of my colleagues, the noble Lords, Lord Young of Cookham and Lord Faulkner of Worcester, and the noble Baroness, Lady Finlay of Llandaff. There has been an anti-smoking cross-party coalition in the Lords for almost two decades. That cross-party approach reflects the House at its best. Since Sir Richard Doll’s report all those years ago, we have known that smoking kills, and in an appalling fashion. Nevertheless, as we know, it has been an uphill battle to set in place anti-smoking measures. The noble Earl, Lord Howe—I am glad to see that he is in his place, even if he is not on the Front Bench—has long been part of that coalition. This issue does and should arch over mere party concerns, though that is not always the case. It is extremely disappointing when that manifests, because our opponents are funded and united.

However, I was very glad that when we raised this as the sole amendment on this issue in Committee the Government responded. I was in the Chamber, and I admit that I directed much of what I said to the noble Earl, given his track record on this issue. I hugely commend those of other parties who have had the determination to stand against the pressure on them for the sake of public health.

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[Lord Greenhalgh]

My Lords, we would do well to remember that the pavement licensing clauses in the Bill provide vital temporary flexibility to aid the recovery of hospitality businesses over the summer months, and that we need to proceed quickly to achieve that. Noble Lords have voiced some concerns and requested clarity in relation to the position on outdoor smoking under these temporary fast-track licences. I am not going to go into the respective roles of the hard cop and the soft cop in achieving the Government’s amendments, as my noble friend Lord Young put it. However, in recognition of the mood across the House the Government have tabled Amendments 13, 14 and 25 to provide the clarity that local authorities, businesses and customers need.

It is important to recognise that we are winning the battle against smoking: Great Britain has one of the lowest rates of smoking in Europe, at 13.9% of adults. Fewer than one in six adults smoke today and, as we heard from the noble Lord, Lord Rennard, over 1 million people have given up during the lockdown, as was mentioned by my noble friend Lord Bethell earlier today.

This Government have taken great strides in reducing the harms caused by smoking. We committed to doing so in the prevention Green Paper. We will publish the prevention guidance response in due course and set out our plans to achieve a smoke-free England by 2030 at a later date. I am delighted that the noble Baroness, Lady Wilcox, supports that mission. I emphasise to her that there has been no stop in providing smoking cessation support. The Government continue to provide those programmes of work, which address smoking harms nationally and are delivered locally through the tobacco control plan for England and the NHS long-term plan’s commitment to provide smoking cessation support in hospital settings.

In the debate noble Lords expressed their support for the temporary, urgent and necessary reforms brought forward in the Bill to support the businesses hardest hit by this pandemic—our pubs, cafés and restaurants—and to protect jobs in those sectors. We recognise that the Covid restrictions mean that customers are encouraged or required to eat and drink outside, and that clarity is critical as we support businesses to recover. That is why the Government have tabled an amendment requiring proper provision for non-smoking seating via a smoke-free seating condition. This amendment does not prevent the portion of businesses which wish to cater for smokers from doing so. It requires proper provision for non-smoking seating. This means that customers who want to choose to sit in smoking or non-smoking al fresco dining areas will be able to do so.

The Government’s position means that all businesses eligible for pavement licences can share the benefits of this new fast-track licence, while ensuring provision for non-smoking seating. Of course, businesses can already make their own non-smoking policies for outside spaces to reflect customer wishes without the need for regulations, and the Government support that. I say to my noble friend Lord Balfe that a blanket ban can be imposed by businesses themselves. Our guidance will further reinforce this point, making it clear that the licence holder has to make reasonable provision for seating free of smoking.

The guidance is available on the GOV.UK website and was circulated to noble Lords and noble Baronesses before this debate. It includes clear no-smoking signage, displayed in accordance with the Smoke-free (Signs) Regulations 2012. No ashtrays or similar receptacles are to be provided or left on furniture where smoke-free seating is identified. Licence holders should aim for a minimum two-metre distance between non-smoking and smoking areas, wherever possible. That is the framework, so I do not see the confusion raised by the noble Lord, Lord Carlile.

It is also worth reiterating that businesses must continue to have regard to smoke-free legislation under the Health Act 2006, and the subsequent Smoke-free (Premises and Enforcement) Regulations 2006. This is restated in our guidance, as it is absolutely right to stress it, and the Government are committed to working towards a smoke-free society by 2030, as I have said.

Now is not the time to prevent businesses catering to their customers, or to use a temporary provision on pavement licences to ban smoking outdoors. Now is the time to support our hospitality industry and ensure that all businesses eligible for pavement licences can share the benefits of this new fast-track licence. This point was made by my noble friend Lord Blencathra. The noble Baroness, Lady Wilcox, is to withdraw her Amendment 11 and I thank her for her support for our amendment, which seeks to achieve what she set out in her amendment.

However, I fear that Amendment 15 in the name of the noble Baroness, Lady Northover, is not the way to proceed and would be unfair to businesses. While undoubtedly not its intention, it would create confusion. The effect is to create an unfair playing field between businesses applying for these new licences, which need to abide by the condition, and those with existing licences, which do not. This point was made by several of my colleagues. Her amendment also cuts across the ability of business owners to make their own non-smoking policies for outside space, without the need for regulations. Of course, there are cases where the regulations are already clear. The existing power, set out in the Health Act 2006 and subsequent Smoke-free (Premises and Enforcement) Regulations 2006, made it illegal to smoke in public in enclosed, or substantially enclosed, areas and workplaces. The Bill changes none of this.

On the other hand, the Government’s amendment has the proportionate approach advocated by the noble Lord, Lord Clement-Jones. He said that we needed proportionality and this is what we deliver with this amendment. It rightly requires proper, fair provision for non-smoking seating, while not undermining business owners whose customers include smokers. It supports our hospitality sector in continuing to operate, while following the Covid restrictions necessary to protect public health. I thank my noble friends Lady Neville-Rolfe, Lord Sheikh, Lady McIntosh, Lord Lansley and Lord Young for supporting the government amendment, as well as the noble Baroness, Lady Falkner. I therefore urge noble Lords to support government Amendments 13, 14 and 25, which will ensure that consumer choice remains. The noble Baroness, Lady Wilcox, has already indicated that she will withdraw her Amendment 11, but I ask that the noble Baroness, Lady Northover, does not move her Amendment 15 when called.

On a couple of points of clarification, the guidance being issued is joint guidance from the MHCLG and DHSC. It will not be subject to parliamentary scrutiny, in response to the noble Lord, Lord Faulkner. In response to the noble Lord, Lord German, there will be no physical barrier between non-smokers and smoking areas but a two-metre gap. I hope that answers the questions raised in the debate.

[Baroness Wilcox of Newport [V]]

My Lords—[Inaudible.]

[The Deputy Speaker (Lord McNicol of West Kilbride) (Lab)]

Unfortunately, Lady Wilcox, we cannot hear you. Can we try again?

[Baroness Wilcox of Newport [V]]

Deputy Speaker, can you hear me now, please?

[The Deputy Speaker]

Yes, carry on.

[Baroness Wilcox of Newport [V]]

Thank you. I thank all noble Lords who have spoken in this debate for the many important and apposite points raised. The Government could have gone further in the development of their amendment, as I noted, and thus we tabled our own amendment. I may be one of the most recent Members of your Lordships’ House but I believe it is one of the prerequisites of our work to make those changes. For the record, the Welsh Health Minister, Vaughan Gething, made a manifesto commitment before the introduction of legislation that will follow, under normal process, regarding Wales’s public spaces and smoking in the next Senedd term. We will keep these matters under review and, no doubt, return to the issue within longer-term legislation in the future. I therefore now beg leave to withdraw the amendment standing in my name.

Amendment 11 withdrawn.

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[The Deputy Speaker]

I call the noble Baroness, Lady Pinnock. I think we have a problem with the noble Baroness’s sound, so I suggest we move on to the noble Baroness, Lady Wilcox of Newport.

[Baroness Wilcox of Newport [V]]

My Lords, this amendment has the noble aim of boosting local tourism and raises questions about the package travel regulations. We are still awaiting the Government review of the package travel rules and I am reluctant to accept the Minister’s previous suggestion that we cannot consider this issue until we have left the EU. The Government should do whatever is possible to support the domestic tourism industry through this tough time, so I would welcome it if the Minister were able to expand on what support they will offer.