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

Lord Faulkner of Worcester Excerpts

Wednesday 14th July 2021 Lords Chamber

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[Lord Faulkner of Worcester]

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”.

[Lord Faulkner of Worcester (Lab)]

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.

--- Later in debate ---

[Lord Greenhalgh (Con)]

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.

[Lord Faulkner of Worcester (Lab)]

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.