Prohibition by stealth

I shall be keeping one eye on the House of Lords this afternoon.

The Levelling-Up and Regeneration Bill is currently at the committee stage, having started in the House of Commons in May last year.

According to the Government:

The Levelling Up and Regeneration Bill, introduced to Parliament on May 11 last year, will put the foundations in place for delivering this agenda and ensuring all parts of the country share equally in our nation’s success.

In particular, the Government aims to give 'local leaders and communities the tools they need to make better places'.

A weakness of the Government's levelling-up concept is that it's open to a wide range of interpretations, so it's no surprise that a small group of anti-smoking peers have grasped the opportunity to pursue their own narrow agenda.

For example, two (identical) amendments concerning pavement licences (to serve food and drink) would make it a condition that:

... where the furniture to be put on the relevant highway consists of seating for use by persons for the purpose of consuming food or drink, the licence-holder must ensure that smoking or vaping does not affect others.

An explanatory statement adds that:

This amendment would allow a local authority to require that furniture is removed from the highway when it is not in use, as well as imposing a condition to require the licensee to prevent smoke-drift affecting those in the vicinity.

A third amendment goes even further and states, bluntly:

Pavement licences may only be granted by a local authority subject to the condition that smoking is prohibited.

In case there is any doubt, the accompanying statement declares:

The purpose of the amendment is to ensure that all pavement licences are smoke free.

If this sounds familiar it's because a very similar tactic was adopted when the Government introduced the Business and Planning Bill in the summer of 2020, the aim of which was to reduce red tape and help businesses recover from the impact of the first Covid lockdown.

The hospitality industry had suffered very badly during lockdown and with restrictions still in place that limited the number of customers who could be accommodated indoors, the Government wanted to encourage new outdoor seating areas that nevertheless had to be licensed.

It seems a lifetime ago now but you may recall that a handful of anti-smoking peers attempted to hijack the Business and Planning Bill in much the same way they are now targeting the Levelling-Up and Regeneration Bill.

I won't go over it again – you can read about it here (Business and Planning Bill – amendment to ban smoking in outside pavement areas withdrawn as Government backs choice) – but I think we can chalk up what happened as a small but important victory.

Twelve months later, still dwelling on their defeat, Lord Faulkner of Worcester tabled a 'regret motion' 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.

Sadly for Lord Faulkner, expressing regret was all he and his chums could do because the regulations (which appear to have worked rather well) remained unaltered.

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

And so to this afternoon and the Levelling-Up and Regeneration Bill. We don't know for sure whether peers will get as far as amendments 458, 459 and 461, but I'll let you know.

Nothing however will be decided today because after the committee stage the Bill has to go to the report stage (also in the Lords), and then a third reading.

After that it will go back to the House of Commons where the Government and MPs will consider the amendments that have been voted on and passed by peers before, eventually, the Bill receives Royal Assent.

You can see, though, how easy it is for prohibition (in this case a ban on smoking in licenced pavement areas outside pubs, cafes and restaurants) to be introduced by stealth with little or no public discussion or debate. (Did you know about these amendments?)

If the amendments progress rest assured we will make as much noise as we can, just as we did with the Business and Planning Bill in 2020.

I'll keep you posted.

See also: Tobacco control campaigners try to hijack Health and Care Bill (October 2021).