Objections to the Government's
proposals
99. Interested parties have raised objections to
the Government's proposals for a partial ban on smoking on the
following main grounds:
- If SHS is a hazard to workers
sufficient to justify legislative action, then 100% of workers
should be afforded protection, and in particular bar workers,
who have some of the highest levels of exposure to SHS.
- Exempting membership clubs will allow smoking
in premises to which children have access.
- Employers have a legal duty of care to their
employees; a partial ban does not adequately discharge that duty.
- A partial ban would create considerable uncertainty
for bar staff that could be exploited by customers.
- Allowing some licensed premises and clubs to
continue to permit smoking will create unfair competition in the
licensed trade.
- Allowing smoking in 'drink-only' pubs and membership
clubs will widen health inequalities, as these establishments
are often concentrated in deprived areas.
- The continuation of smoking in some licensed
premises will hinder attempts to reduce the wider prevalence of
smoking.
- The adverse consequences of a comprehensive ban
advanced by the former Secretary of State, Dr Reid MP, are exaggerated
and have no evidentiary basis.
- Public opinion is moving rapidly in the direction
of support for a comprehensive ban.
- Legislation should be clear and simple to understand
if it is to be easily and efficiently enforced.
100. The moral case for a comprehensive rather than
a partial ban was put to the Committee by Mr Michael Ainsley,
of the GMB, who described the Government's proposal as the "coward's
way out" and, of SHS in the workplace, noted that "why
people want to expose themselves to it is amazing, but why somebody
should expose someone else to it is criminal".[92]
The Government accepts that workers should not be exposed to a
hazard but at the same time excludes those most at risk from protection.
Dr Edwards told the Committee, "What you are saying is that
you are having a regulatory proposal where the people at most
risk with the heaviest exposure are exempted, and that to me does
not make any sense whatsoever."[93]
101. The gaming industry also raised the issue of
the exposure of children to SHS. Mr Simon Thomas pointed out that
exempting membership clubs from a ban on smoking would create
an environment in which people could eat and smoke, and into which
children would be allowed; this, he suggested, would be "completely
against all of the principles of this smoking legislation".[94]
102. There is a strong legal case in favour of a
comprehensive rather than a partial ban. The duty of care which
employers have to their employees includes the duty to protect
them from the harmful effects of SHS. Representatives of the hospitality
industry told the Committee that they were apprehensive that workers
in exempted institutions could bring claims against their employers
under Health and Safety legislation, as the Health Bill would
effectively acknowledge that SHS posed a significant hazard to
workers' health.[95]
The Chief Executive of the British Hospitality Association (BHA),
Mr Bob Cotton, whose members employ 600,000, stated that over
90% of his members preferred a comprehensive to a partial ban
on smoking in licensed premises.[96]
103. The issue of unfair competition within the hospitality
industry was also of particular concern. Mr Rob Hayward, Chief
Executive of the British Beer and Pub Association (BBPA), highlighted
the problem:
If you are saying certain premises [can allow
smoking], specifically a venue as against another one further
down the street, that will cause the problems that John [Hutson,
Chief Executive of J.D. Wetherspoon] has just referred to, because
people will migrate, so that is not the route that we would prefer.[97]
104. Considerable unease was also expressed with
regard to the proposed exemption for membership clubs. Mr Bish,
Chief Executive of the ALMR, described the idea as "totally
inappropriate" and lacking in "consistency or [
]
logic". He went on:
It is not equitable, it is not fair on the staff
who would work in the club, and it is not fair on the businesses
that, as it were, are just down the road competing for the same
trade. You would end up with a non-smoking, local community pub
and a smoking club just down the road, and there will be a migration
of customers.[98]
105. This concern was echoed by representatives of
the gaming industry, who suggested that to exempt membership clubs
would inevitably lead to a migration of customers away from those
gaming establishmentsbingo halls, seaside arcades, adult
gaming centreswhich were not membership clubs. Sir Peter
Fry, Chairman of the Bingo Association, suggested that a partial
ban on smoking with an exemption for membership clubs would lead
to the closure of around 150 bingo halls nationwide but the figure
would be reduced if there were a total ban.[99]
106. Health inequalities were emphasised by a number
of different groups. Professor Dame Carol Black, President of
the Royal College of Physicians, told the Committee that "preventing
smoking in public places is the most certain way of narrowing
the mortality gap that we see in cardio-respiratory disease between
those of high and low income".[100]
She further told us that, because licensed premises which do not
prepare or serve food are concentrated in less affluent areas,
workers and customers in such establishments would be disproportionately
exposed to the harmful effects of SHS. "This partial ban
would simply disadvantage the poor in this country and it would
make the gap between good health for the poor and for the rich
even larger."[101]
Representatives of the hospitality industry gave varying estimates
of the number of pubs which would stop serving food in order to
be allowed to permit smoking; Mr Bish of the ALMR suggested that,
after the implementation of a partial ban, some 20% of pubs (amounting
to 12,000 establishments) would not serve food, while Mr Hayward
of the BBPA suggested a figure of 34%.[102]
Mr Tim Clarke, Chief Executive of Mitchells and Butlers, a chain
owning around 2,000 pubs, has indicated that perhaps 20% of the
chain's establishments would stop serving food in order to allow
smoking, and that these would be concentrated in the North and
Midlands. "These proposals effectively incentivise some pubs
to take out fooda retrograde step reversing the progress
of a generation."[103]
He went on to describe the Government's proposals as "laughable"
and "ridiculous".[104]
107. The Local Government Association (LGA) presented
data to the Committee which demonstrated the extent to which 'drink-only'
pubs were concentrated in areas of deprivation: 'In the North East, the most deprived local authority area is Easington, and 81% of pubs there do not serve food. In the least deprived area of the North East, this figure is 23%; while in Southwark, 47% of pubs in the most deprived areas
did not serve food while only 18% of pubs in the least deprived
areas did not do so.[105]
Clearly, then, the workers and customers most exposed to the harmful
effects of SHS as a result of the Government's proposals would
be those in the most deprived areas of the country.
108. It has also been argued that, while a comprehensive
ban on smoking in public would contribute to an overall reduction
in smoking prevalence, a partial ban of the sort contained in
the Health Bill would not have the same effect, due to the continued
presence of social smoking in some premises and the apparently
mixed message from central government. The Chief Medical Officer
told the Committee that the partial ban "loses out on the
opportunity to reduce the prevalence of smoking" and "signals
to the public that a drink and a smoke go hand-in-hand when all
the efforts on smoking and tobacco control have been aimed at
de-normalising smoking".[106]
Professor Dame Carol Black, emphasised the merits of a comprehensive
ban: "If [
] you really put a lot of effort and energy
into providing them [smokers] with all the facilities to give
up and you add on top this legislation [
] I think we would
see a decrease in smoking".[107]
109. Mr Nick Adkin, Programme Manager on Tobacco
at the Department of Health, suggested that a partial ban could
be as effective as a comprehensive one in reducing smoking prevalence.
A comprehensive ban would reduce smoking rates
by 1.7 percentage points. Our policy will reduce smoking rates
by up to 1.7 percentage points [
] it could be as good.[108]
110. The figure of 1.7 percentage points was calculated
as part of the partial Regulatory Impact Assessment contained
in the Department of Health's consultation document.[109]
However, that calculation was based on a complete ban on smoking
in public; it is not clear on what basis Mr Adkin reaches the
conclusion that a partial ban could have an effect up to the same
level.
111. The partial Regulatory Impact Assessment attempts
a cost/benefit analysis of the four options based on consultation
responses. The analysis of health benefits puts the value of averted
deaths from secondhand smoke for customers as £75 million
for voluntary action, £350 million for a full ban, £0-£350
million for local powers, and £150-£250 million for
a ban with the food/non-food exception. The RIA sets out how these
figures were derived in Annex C. Based on the report's own assumptions
the difference between a full and a partial ban is up to 200 preventable
deaths a year. [110]
112. Giving evidence to the Committee in February
2005, the then Secretary of State for Health, Dr Reid MP, had
advanced several arguments in favour of a partial ban rather than
a comprehensive ban, most prominent among which was the contention
that to ban smoking in all licensed premises would lead to increased
levels of smoking in the home.[111]
Dr Reid admitted at the time that the basis for his contention
was "anecdotal"[112],
and the Committee has now heard evidence from various different
parties which suggest that Dr Reid's view is, in fact, wrong.
Caroline Flint admitted to the Committee:
On the [
] point in terms of is there a
displacement, in terms of the evidence we have got, in particular
there have been two reports in the last six months [
] which
had done some work looking at this issue about whether there was
displacement to the home, which did not show that there was evidence
that smoking restrictions did displace into the home [
]
I am happy to say, as far as I am aware, there is no current evidence
that would suggest there is a move to more smoking in the home
as a result of restrictions or bans.[113]
Similarly, Dr Adshead told the Committee that "there
is not any current evidence that would support that view".[114]
113. The issue of public opinion was one on which
the Government placed particular emphasis. Presenting the Bill
to Parliament for its second reading, the Secretary of State remarked:
We are responding to the clear wish of the public
to be protected from other people's smoking in public places,
especially restaurants, on the one hand, and on the other hand
allowing people who want to have a cigarette with a drink to do
so.[115]
114. However, the Public Health Minister admitted
that support for a comprehensive ban was probably already of the
order of 50% of the population, and further conceded that "there
is a movement in terms of public opinion", noting that support
had grown from around 20% in 2003 to 31% in 2004 and by 2005 stood
at 49%.[116] Evidence
from a recent YouGov poll suggests that support is now even higher,
standing at between 66 and 71%.[117]
It is not clear, therefore, why the Government has chosen to defend
the partial smoking ban on the grounds of public opinion.
115. The final argument proposed in favour of a comprehensive
rather than a partial ban was that the former would be simpler,
more intelligible and therefore easier to enforce. This was the
view of representatives of the hospitality industry, the gaming
industry, the trades unions, the Health and Safety Commission
(HSC) and the Local Government Association (upon whom the regulatory
burden would chiefly fall), the Chartered Institute of Environmental
Health (CIEH) and the Chief Medical Officer, as well as a spectrum
of opinion which the Committee heard during its visit to the Republic
of Ireland. Mr Bill Callaghan, Chairman of the HSC, was clear:
If you have simple regulation, that is much [more]
easily enforced and I would say you are going to get good self-regulation.
A clear regulation where everyone knows what is going to happen
is going to be much simpler to enforce than on which has a degree
of complexity.[118]
Councillor David Rogers, Chairman of the Community
Well-Being Board of the Local Government Association, added that
the LGA had estimated that a ban with the proposed exemptions
would cost 50% more to enforce than a simpler, more comprehensive
ban.[119] We address
in more detail issues of compliance and enforcement in the next
chapter.
116. The
Government's proposals for a ban which exempts 'drink-only' pubs
and membership clubs are unfair, unjust, inefficient and unworkable,
because:
- all workers should
be protected from SHS;
- children, who have access to clubs,
should not be exposed to SHS;
- it is likely that a partial ban
will be disputed in the courts by bar workers;
- a partial ban will create unfair
competition;
- a partial ban will widen health
inequalities;
- public opinion now supports a comprehensive
ban;
- legislation should be clear and
simple if it is to be easily enforceable.
117. A
broad range of opinion has argued that a comprehensive ban would
achieve the Government's stated aims in a much more satisfactory
fashion than a complex partial ban, and that from the commercial
perspective of the hospitality and gaming industries, a comprehensive
ban is also the preferred option. We find it hard to understand
how the strong evidence base, clear public support, and the results
of the Department's own Regulatory Impact Assessment can be ignored.
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