Joint memorandum by the Local Government
Association (LGA) and Local Authorities Co-ordinators of Regulatory
Services (LACORS) (SP43)
INTRODUCTION
1. The Local Authorities Coordinators of
Regulatory Services (LACORS) is a local government central body
with the aim of making a major contribution to the development
of high quality, consistent and coordinated local authority regulatory
and related services across the UK. Our remit is to support, coordinate
and promote local authority regulatory services.
2. The Local Government Association (LGA)
represents authorities across England and Wales and exists to
promote better local government. We work with and for our member
authorities to realise a shared vision of local government that
enables local people to shape a distinctive and better future
for their locality and its communities.
3. This document is a coordinated submission
from LACORS and the LGA. The evidence is drawn from the LGA/LACORS
joint response to the Department of Health consultation on the
smokefree elements of the Health Improvement and Protection Bill
(a full copy of which we are happy to provide on request). In
compiling the response, the LGA and LACORS consulted member authorities,
receiving written responses endorsed by local councils and detailed
information from environmental health and trading standards services.
A focus-group debate involving a range of senior local authority
officers was also held.
EVIDENCE
4. Summary: A key priority for the LGA and
LACORS in examining the proposals has been an enforceable regime
that does not place unnecessary additional burdens on local authorities.
The evidence from member authorities is that the government's
preferred option (Option 4 in the consultation), which proposes
smokefree enclosed public places and workplaces with exemptions
for licensed premises not serving food, would be unenforceable.
Local authorities have also argued, using local evidence, that
the proposal would be likely to increase health inequalities by
leading to the concentration of smoking pubs in poorer areas.
This leads us to support smokefree enclosed public places and
workplaces (Option 2), without exemptions for licensed premises
not serving food, but with exemptions for certain residential
premises such as prisons and residential care units. This option
is the most straightforward and cost effective to enforce, and
would enable the highest level of compliance as it is the most
comprehensive and most easily understood. It also affords the
greatest protection to employees
5. Definitions: The definition of "smoking"
and of "enclosed" need to be simplified in order to
aid enforcement.
5.1 Using the definition of "smoking"
in the consultation, enforcement officers would only be able to
establish whether a product contained tobacco through testing
the product being smoked. The officer may be faced with a hostile
environment in which they must obtain a representative portion
of a smoked product for analysis. We estimate the cost to the
local authority would be around £120 per item tested. We
therefore suggest an extended definition of smoking to include
"any smoked lit product" or "smoking of any product",
in order to provide clarity for local authority enforcement staff
and for businesses aiming to ensure compliance.
5.2 The definition of "enclosed"
should be clear, precise and easily understood by enforcers, businesses
and the public. Ideally it should not require the use of a measuring
instrument and complicated calculations to decide if a structure
or premise is covered by the legislation. We therefore support
a simplified definition, for example, "any structure with
a roof and at least a single wall shall be defined as being enclosed".
This would then include sports stadiums and entrances to public
buildings and thus avoid the need for additional regulations to
deal with such premises in the future.
6. Timetable: For enforcement purposes,
a sufficiently long lead-in period is required to allow for advice
and information to be circulated to all those businesses likely
to be affected by the change in legislation, but we cannot see
a justification for licensed premises needing a longer lead-in
period, as proposed in the consultation. A lead-in period of a
minimum of 12 months would be required to run a national, regional
and locally coordinated publicity and education campaign to ensure
that businesses and the public, as well as enforcers, are well
prepared. This would assist in creating a clear national message,
which would help to make enforcement consistent and simple from
the outset. We therefore recommend that the timescale for implementation
of the legislation be brought forward to spring/summer 2007—provided
there is at least a year lead-in time for local authority services.
7. Exceptions: Given the clear direction
given to us by local authorities in preparing the LGA/LACORS response
to the DH consultation, we cannot support the proposal that licensed
premises that do not prepare and serve food should be exempt from
the legislation.
7.1 An exemption for licensed premises that
do not serve food would present potential difficulties for enforcing
authorities. The proposed definition of food given in the consultation
as "pre-packaged ambient shelf-stable snacks" is unclear
and lends itself to different interpretations. It presents an
alternative definition of food where a reasonable one already
exists within food safety legislation. The underlying principle
for any definitions in the legislation is that they should enable
businesses to comply easily and self-regulate, with enforcement
by local authorities as a secondary means of ensuring compliance.
The approach suggested in the consultation document would not
lend itself to this approach.
7.2 Data from a number of local authority
surveys suggests that the estimate of 10-30% of pubs choosing
to allow smoking rather than serve food disguises wide variations
in different parts of the country and may be an underestimate.
In addition, we note the concern expressed by colleagues in local
authorities around the potential increase in number of "wet"
pubs as businesses seek to avoid any smoking restriction.
7.3 We acknowledge that there is a need for
some exceptions to restrictions on smoking in enclosed premises,
notably in residential care, mental health care, accommodation
(halls of residence) and prisons, but with clear guidelines restricting
smoking to the room of the individual (where it is not shared)
or a designated smoking room. Government will, however, need to
carefully consider the position of staff working in such environments,
for example, prison officers and care workers.
8. Offences, penalties and defences: We
recommend that penalties for non-compliance, and defences to charges,
reflect the hazard to health that second-hand smoke poses and
that these are brought into line with other similar offences.
Drawing on responses from local authorities, we consider that
the level of fines proposed is too low and unlikely to act as
a deterrent. A more serious and effective deterrent would be afforded
if these fines were higher in the first instance and set on an
increasing scale for repeat offences up to Level 5 (£5,000).
By way of comparison:
— Sale of tobacco to underage person:
Level 4; £2,500.
— Failure to display statutory
(tobacco) notice in retail outlet: Level 3; £1,000.
— Sale of alcohol to underage person:
Level 3; £1,000.
8.1 In addition, the use of fixed penalty
notices is not a matter that, typically, local authority enforcement
staff are familiar with. This presents a training need that, in
turn, presents an additional cost to the authority. The practicalities
of issuing a fixed penalty notice need to be considered—particularly
if the proposed definition of smoke/smoking is allowed to stand.
Issuing fixed penalty notices to people under the influence of
alcohol will increase risks to enforcement officers, which should
also be taken into consideration.
8.2 Local authorities have indicated that
the defences could be improved upon. Based upon the comments received,
we advocate the inclusion of what is a standard defence in consumer
protection legislation—that of "taking all reasonable
precautions and exercising all "due diligence" to avoid
committing an offence. This defence is well understood by local
authority enforcement staff.
9. Enforcement: We support the proposal
that this new legislation should be a matter for local authorities
to enforce. Each authority should be able to determine who, within
their authority, enforces the legislation.
9.1 We would, however, seek further clarification
of whether this legislation will become a duty for local authorities
to enforce or alternatively a power to act. Similarly, further
explanation is sought in respect of premises where currently health
and safety enforcement activity is undertaken by Health and Safety
Executive (HSE) inspectors and not local authority staff. With
Hampton and Better Regulation in mind, this could result in such
premises being subject to a greater number of inspections, from
more sources.
9.2 Enforcement of the new legislation will
undoubtedly give rise to cost implications for each local authority.
Every authority who responded to the LGA/LACORS on this issue
supports the implementation of Option 2 (completely smokefree
enclosed places) as the costs associated with the enforcement
of Option 4 (with exceptions) will be significantly greater for
each authority. Respondents also indicated that Option 2 was likely
to become self-regulating, whereas Option 4 would require more
proactive enforcement.
9.3 Whichever option is finally selected,
prior to the commencement of the new legislation, local authorities
will require adequate funding to allow for the effective training
of existing officers and/or for the recruitment of additional
enforcement staff. We welcome the commitment to applying the New
Burdens Doctrine to cover such costs and would be happy to work
with the government in identifying costs.
10. Health inequalities: We believe that
the proposal for smokefree enclosed public places and workplaces,
with exceptions for pubs serving food, is likely to exacerbate
health inequalities linked to smoking and exposure to second-hand
smoke. Evidence from local authority surveys suggests that the
government's estimate of 10-30% of pubs choosing to allow smoking
rather than serve food certainly disguises wide variations across
England and may be an underestimate. Newcastle City Council's
research shows that currently 47% of pubs and clubs in the city
would be exempted from the legislation. In Northamptonshire, 54%
of pubs would be exempt, with the figure as high as 85% in Corby
Borough Council (from research by a partnership between the eight
local authorities and three Primary Care Trusts in the county).
The Association of North East Councils puts the figure of exempted
pubs at 52% for the whole region, with Easington having the highest
proportion of pubs that would be exempt (81%), and South Tyneside
the lowest (20%). Moreover, the local surveys tend to show that
the pubs that do not serve food or would stop serving food in
order to continue smoking are concentrated in deprived areas.
For example, according to research conducted by Manchester's Health
Inequalities Partnership (part of Manchester City Council's Local
Strategic Partnership), the proportion of premises currently not
serving food or intending to stop serving food, if Option 4 in
the consultation is pursued, is twice as high in the relatively
more deprived North Manchester Primary Care Trust area than in
South Manchester Primary Care Trust.
September 2005
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