Happy anniversary to the Business and Planning Act 2020 (Pavement Licences)!

Twelve months ago the Government introduced an emergency Business and Planning Bill.

Designed to help businesses recover from the impact of the first lockdown by reducing red tape, the Bill was very nearly hijacked by anti-smoking campaigners.

Coordinated by ASH and backed by the Local Government Association, an amendment was tabled and supported by a group of anti-smoking peers that, if passed, would have prohibited smoking in new licensed seating areas outside cafes, pubs and restaurants.

Thankfully the Government stood reasonably firm but to get the Bill through parliament without delay (ie before the 2020 summer recess) ministers had to respond with an amendment of their own.

I wrote about it at length because Forest effectively led opposition to a ban but the Government's compromise was to make it mandatory for proprietors to provide 'smoke free' seating in the new pavement areas. Smoking areas were allowed at the proprietor's discretion but unlike the 'no smoking' areas they were optional.

The aim – which could not be faulted – was to provide choice for smokers and non-smokers alike and put the interests of businesses first.

Worryingly however the Government's amendment did give local authorities a loophole to ban smoking in the new pavement areas. They could do this by making 'smoke free' a condition of being given a licence, although this was plainly not the Government's intention because choice was clearly the preferred option ahead of prohibition.

In the event only a handful of councils, including Manchester and Newcastle, have taken advantage of that opportunity but listen to ASH and you could be forgiven for thinking that outdoor smoking bans have been sweeping the country.

In fact, out of 340 local authorities in England, only five or six have imposed a complete ban on smoking in the new licensed pavement areas and this has obviously irked tobacco control campaigners, hence their ongoing campaign for national legislation.

Indeed, when the temporary pavement licence provisions came up for renewal this month the usual suspects were ready and waiting and although the sole purpose of the amended regulations was to change the expiry date from 30 September 2021 to 30 September 2022 the air was soon filled with a chorus of predictable complaints and allegations.

Specifically Lord Young of Cookham (the same peer who recently tabled a private member's bill to put health warnings on individual cigarette sticks) took aim at Business Secretary Robert Jenrick who emailed Manchester City Council last year pointing out that its proposal to set a local smoke free condition on the issue of pavement licences was “against the spirit of the emergency legislation passed by Parliament”.

Worse [said Lord Young] the letter went on to assert that if smoking were banned outside pubs and cafes: "It could lead to significant closures across the country."

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. The simple assurance which I seek from the Minister, whom I acquit from being in any way complicit in this misinformation, is that if further guidance is given to accompany this order, it does not contain any more inaccurate or misleading statements such as those that I have referred to.

Can you believe that?! An anti-smoking peer complains about misinformation on possible pub closures then claims that:

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.

If that is the case why did 11,000 pubs (one tenth of the entire pub estate in England in 2007) close in the decade after the introduction of the smoking ban?

That is a FACT, as explained in Forest's 2017 report 'Road To Ruin: The Impact of the Smoking Ban on Pubs and Personal Choice'.

No-one is claiming that every closure was a direct result of the ban but its impact is clear to everyone bar the most myopic tobacco control activist and it is not an exaggeration to say that banning smoking in outdoor pavement areas might drive many more smokers away with a subsequent loss of business for cafes, pubs and even restaurants.

Likewise, what to make of this from Baroness Wheatcroft:

I agree with the noble Lord, Lord Faulkner, on his regrets at the failure to insist that such eating and drinking areas be made smoke free. Why that should be the case is completely beyond me, since we all know that passive smoking causes great dangers. If we want these areas to be family friendly — or, indeed, friendly at all — having them filled with smoke is simply not sensible, and the Government have the power to stop it.

Where is the evidence that smoking outside is a threat to anyone, including children? As for pavement areas being "filled with smoke", what planet is she living on?

Unable to change the regulations, Lord Young, Baroness Wheatcroft and co were forced to settle for supporting a 'regret motion' tabled by Lord Faulkner of Worcester that read:

"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's 'regret motion' was agreed by 254 peers with 224 against. Listed by party or group the breakdown of votes was:

Members voting Content (ie in favour)
Bishops (1)
Conservative (7)
Crossbench (45)
Green Party (2)
Labour (116)
Liberal Democrat (74)
Non-affiliated (8)
Plaid Cymru (1)

Members voting Not Content
Conservative (194)
Crossbench (21)
Democratic Unionist Party (2)
Labour (1)
Non-affiliated (5)
Ulster Unionist Party (1)

Naturally ASH tried to spin this as some sort of victory (House of Lords vote on smoke free pavement licences as councils hail local successes) but the reality is that nothing has actually changed.

It is clear however that ASH and their acolytes in parliament will not let this issue drop. If and when the Government decides to make pavement licenses permanent rest assured they will demand that outside seating areas are 'smoke free'.

By then of course the 'temporary' regulations will have been in place for at least two years. Time enough, I would have thought, to make a judgement on whether they are working for the benefit of most proprietors and customers because ultimately that's what matters, not the constant bleating of tobacco control campaigners who refuse to compromise.

See: Business and Planning Act 2020 (Pavement Licences) (Coronavirus) (Amendment) Regulations 2021 debated on Thursday 8 July 2021

Business and Planning Act 2020 (Pavement Licences) (Coronavirus) (Amendment) Regulations 2021, debated on Wednesday 14 July 2021