Select Committee on Health First Report

7  Exemptions for licensed premises

The Government's proposals

93. Appearing before the Committee, the Secretary of State for Health defended the exemptions of clubs and some pubs from the smoke-free provisions of the Bill on the grounds of public support. [84]

    The manifesto commitment [to introduce a partial ban for licensed premises] was based on a very, very extensive public consultation that you will be aware of which was reflected in the position we put forward in the Choosing Health White Paper, and that is what we are legislating for in this Bill.[85]

94. The Minister for Public Health expanded on this reasoning, explaining:

    We had to look at a way forward which would address public health issues, would give more choice for people to work and enjoy social time in a smoke-free environment, give more choice to workers […] every worker in England will benefit to a certain degree from our proposals, but balanced with that was what we also had in terms of what the public thought.[86]

She later explained to the House of Commons that "we have had to grapple with the problem of reconciling health issues with what the public want", arguing that public opinion was an important factor in ensuring compliance.[87] The rationale, therefore, appeared to be that the exemptions for some licensed premises were necessary to satisfy public opinion.

95. The responses to the Government's consultation on the smoke-free elements of the Health Bill give a different picture. There were more than 57,000 responses to the consultation, around 50,500 being from individuals and over 4,000 from owners or operators of licensed premises, with the remainder coming from organisations such as NHS trusts, primary care trusts and trades unions. On the specific issue of exemptions for licensed premises which do not prepare or serve food, the Government received 41,833 responses. Over 90% of these did not support of the proposal for exemptions. 41,641 responses were received on the subject of an exemption for membership clubs. Again, the vast majority of respondents did not agree with the proposal to exempt such establishments.[88]

96. In response to the argument that workers in establishments intended to be granted exemptions would be exposed to the harmful effects of SHS, the Government proposed introducing an 'exclusion zone' of perhaps a metre around the bar area in which smoking would be prohibited. Caroline Flint stressed that "there will be protection for those bar workers [in exempted premises] as well, because we are consulting on how we can make the area around the bar smoke-free".[89]

97. The data from opinion polls undermines the Government's case for a partial ban. The ONS Omnibus survey for 2004 demonstrated that 64% of respondents supported restrictions on smoking in pubs, while a YouGov poll conducted in December 2005 on behalf of ASH showed that 71% of respondents in England and Scotland supported legislation to make all workplaces, including pubs, bars and restaurants, smoke-free.[90]

98. In addition, the Government's proposals for 'protecting' bar staff in 'smoking pubs' are completely ineffective. There is no evidence to suggest that creating a smoke-free area of a metre around the bar would in any way mitigate the harmful effects of SHS. The Deputy Chief Medical Officer, Dr Fiona Adshead, admitted to the Committee:

    The recommendation that there should be a prohibition on smoking within a metre of the bar was not based on evidence of protecting health; it was essentially about trying to reduce the amount of noxious exposure, the irritant effect of smoke, within that distance […] it is not a recommendation that was put forward on health evidence grounds.[91]

Workers in exempted establishments will therefore be exposed to a hazard at work to which comparable workers in other establishments will not.

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:

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 establishments—bingo halls, seaside arcades, adult gaming centres—which 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 food—a 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.

84   For licensed premises which do not prepare or serve food and for membership clubs in respect of which a club premises certificate (according to the Licensing Act 2003) is in force. Back

85   Minutes of Evidence taken before the Health Committee, The Responsibilities of the Secretary of State for Health, 27 October 2005, HC 623, Session 2005-06, Q 10 Back

86   Q 545 Back

87   HC Deb, 29 November 2005, col 236 Back

88 Back

89   Q 547 Back

90   See Annex 2 for details. Back

91   Q 6 Back

92   Q 367 Back

93   Q 72 Back

94   Q 360 [Mr Thomas] Back

95   Q 285 ; see also Ev 1, Volume II. Back

96   Q 283 Back

97   Q 325 Back

98   Q 301 Back

99   Q 352 Back

100   Q 72 Back

101   Q 85 Back

102   Qq 289-91 Back

103   Anti-smoking bill will push 400 M&B pubs to stop food, 1 December 2005, Back

104   'Laughable' ban on smoking will fail, says M&B, 1 December 2005, Back

105   Q 410 [Cllr Rogers] Back

106   Q 448 Back

107   Q 113 Back

108   Qq 578-80 Back

109   Department of Health, Consultation on the Smokefree Elements of the Health Improvement and Protection Bill, June 2005, p 20 Back

110   ibid., p.33-34 Back

111   Minutes of Evidence taken before the Health Committee, The Government's Public Health White Paper (Cm 6374) , 23 February 2005, HC 358-i, Session 2004-05, Q 8. Back

112   ibid. Back

113   Q 571 Back

114   Q 36 Back

115   HC Deb, 29 November 2005, col 153 Back

116   Q 553 Back

117   See Annex 2 Back

118   Q 406 Back

119   Q 407 Back

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