By MARK DUELL FOR MAILONLINE and SHAUN WOOLLER, HEALTH CORRESPONDENT FOR THE DAILY MAIL
Hospitality bosses reacted with fury today after five councils in England banned smoking on pavements outside pubs, cafes and restaurants with others considering joining them by using Covid al fresco dining laws as the Government tries to make the UK smoke free by 2030.
Newcastle City Council, Manchester City Council, Durham County Council, Northumberland County Council and North Tyneside Council have all banned smoking on the pavements where outdoor hospitality venues have tables.
And Oxfordshire County Council is set to follow suit under plans for the first smoke-free county, with employers expected to asked to enforce smoke-free spaces outside shops, offices and factories to help staff kick their habit.
A seventh local authority, Gateshead Council, does not have an official policy on smoking outdoors, but all the licences it grants to venues with pavement areas say they must be smoke-free – unless they can guarantee enough separation between a smoking and non-smoking section.
The rules being implemented by councils do not apply to pre-existing beer gardens and outdoor areas in place before the pandemic.
Councils in England can ban smoking at all hospitality venues under an exception within the Business and Planning Act 2020 which has provision for ‘pavement licences’.
This law states that venues must provide a ‘smoke-free seating’ area, but also gives councils the provision to make 100 per cent smoke-free seating a condition of licence, if the council can demonstrate there is ‘reasonable justification’ to do so. This means councils imposing their own local condition need to set out their reasoning, including why it would benefit public health.
Enforcement action taken against a venue breaching this ban can include revoking their licence, although it is not technically illegally for someone to smoke in a non-smoking area outside a pub. The Government said last July that it will ‘not ban outdoor smoking’.
But hospitality chiefs said staff could ‘well do without the risk of conflict that could arise when challenging customers breaching the rule’, and warned councils against ‘burdening us with more red tape at the worst possible time’.
And Simon Clark, director of the smokers’ lobby group Forest (Freedom Organisation for the Right to Enjoy Smoking), told MailOnline: ‘It’s very clear that the Government does not want to ban smoking in outdoor al fresco dining areas, so for any council to effectively introduce a ban goes against the spirit of the legislation.
‘The interesting thing is how few councils have actually done it. I’m only aware of five councils who have actually done it, so it suggests that the vast majority of councils are acting in accordance with the spirit of the legislation and they support the idea of choice.
‘What the Government was trying to come up with with these compromise amendments is that they’re very much on the side of business. There’s absolutely no justification for central government or local authorities to get involved on public health grounds.’
He also said it was ‘no business of local councils if adults choose to smoke’ – and it follows a failed attempt last summer to push through an amendment in the House of Lords to make pavements smoke-free.
And Mark Oates, director of campaign group We Vape, told MailOnline: ‘The Government should be mandating councils to use safer alternatives to smoking such as e-cigarettes in all smoking cessation centres.
‘Instead it has failed to act in this regard and passed on draconian powers to local authorities to ban people smoking outdoors. Most pubs currently don’t differentiate between smoking and vaping and so there is little doubt that this ban will also include vaping.
‘Despite the Government saying they would ‘not ban outdoor smoking’ they have instead created a postcode lottery where punters won’t know whether they can smoke or vape outside a pub or workplace.’
Emma McClarkin, chief executive of the British Beer and Pub Association, told MailOnline today: ‘The pandemic has been the worst period our pubs have ever had to endure – months of closure followed by periods of severely reduced trading. We would encourage all local authorities to work with the sector in helping us get back on our feet, not burdening us with more red tape at the worst possible time.’
Kate Nicholls, chief executive of UKHospitality, said: ‘This damaging decision would be a hugely disproportionate step and will inevitably deter customers from pubs, bars and restaurants – businesses that already find themselves in a very fragile state following months of closure and over a year of severely disrupted trading.
‘It would impose a burden on our hardworking staff, who can well do without the risk of conflict that could arise when challenging customers breaching the rule especially now, when they are already coping with the extra burden of Covid regulations and maintaining social distancing. Venues already cater for non-smokers and smokers alike, so making people walk 10 metres away from a venue, simply displacing the smoke, is illogical.’
She later added: ‘Regardless of where, how or why this legislation came about, the bottom line is that venues have enough on their plate at the moment, in simply striving to stay afloat. As such, we strongly urge local authorities to put the futures of their high street and local jobs above moving outdoor cigarette smoke outside of one type of venue to another’.
And Nik Antona, national chairman of the Campaign for Real Ale, told MailOnline: ‘As restrictions on pubs lift and they are able to welcome back customers once more, we are wary of outdoor smoking bans being imposed on hospitality businesses.
‘Especially as we look down the long road to recovery for the industry from the Covid crisis, we would hope that the Government and local councils want businesses to trade and bring in as many customers as possible. Of course, non-smoking areas in pub gardens for customers who would prefer it are important, but this should be up to the licensee as the person who understands their customers’ needs best.’
Another organisation which campaigns for vaping said it ‘seems fashionable again to attack smokers instead of helping them’ and the five councils ‘don’t care about the individual smoker’s health, they care about looking good’.
A Wetherspoon spokesman said: ‘We already have quite a large number of non-smoking beer gardens. Our other beer gardens have smoking and non-smoking areas. This proposition has come out of the blue, and we have no policy on it, but we will discuss the issue with our pub teams and customers in the coming weeks and months.’
The pubs industry has suffered a torrid period since the indoor smoking ban in England became active in July 2007, with 11,400 fewer venues open one decade later amid claims that the two were closely linked.
Pubs are said to have suffered financially from the ban because smokers are known to drink more, with previous US studies estimating that 85 to 90 per cent of adults who are alcohol-dependent are also nicotine-dependent.
Many venues have improved their food offering and family friendly appeal since the ban in an attempt to survive, with the number of jobs at pubs and bars actually rising 6 per cent between 2008 and 2018. The Office for National Statistics said this may be because the greater focus on food requires more waiting and kitchen staff.
In Oxfordshire, officials will work with the NHS and other local organisations to end smoking near hospitals, play parks and school gates. People will also be discouraged from smoking at home and in their car.
It is part of the push to make the county smoke-free by 2025 – five years ahead of the national target – in proposals in the Oxfordshire Tobacco Control Strategy discussed by the county’s health improvement board last week.
People eat and drink at outside tables in London’s Soho in April following the easing of lockdown restrictions in England
The policy document says ‘reducing the visibility of smoking’ will make it seem more abnormal, so children are less likely to start.
And it adds: ‘By compelling smokers to remove themselves from defined areas to smoke, there is increased chance that they will consider stopping.’
Ansaf Azhar, Oxfordshire’s public health director, told the meeting: ‘It is not about telling people not to smoke – it is about moving and creating an environment in which not smoking is encouraged and they are empowered to do so.’
Some 12 per cent of Oxfordshire’s population currently smoke but rates are higher among those on lower incomes or with mental illnesses, the homeless and travellers.
Bosses will make it easier for people to access quit-smoking drugs and therapies to bring this figure down, the board papers reveal.
They say: ‘To be smoke free by 2025, smokers need supportive environments to quit and young people need environments where being smoke free is the easy option.
We will be working closely with workplaces, communities, and our smoke free partner organisations to support the implementation of smoke-free indoor and outdoor places, and to improve access to nicotine replacement and pharmacotherapy for those who need it most.’
When will the ban come into force?
The proposal
What the council hopes to achieve by 2025?
Local Regulation and Enforcement
‘Smoke-free’ areas
Supporting Smokers to Quit
The Government wants England to be smoke-free – meaning only 5 per cent of the population smokes – by 2030.
But the Oxfordshire Tobacco Control Strategy aims to achieve this goal by 2025.
The local authority will tackle sellers of illicit tobacco and take action to reduce the sale of tobacco-related products and electronic cigarettes to people who are underage.
Dr Adam Briggs, the public health official leading the strategy, said smoking is the leading cause of preventable deaths in Oxfordshire, costing the public purse £120million a year.
He told the meeting: ‘We have got a condition that is entirely a commercially driven cause of death and disease. It is impossible to be on the wrong side of history with tobacco consumption.’
Last year, data from the charity Action on Smoking and Health (ASH), found 2,132 people died from smoking-related causes in Oxfordshire between 2012 and 2017.
ASH also said 23 tonnes of waste, or enough to fill 421 wheelie bins, is gathered in the form of cigarette butts in Oxfordshire each year.
It was also estimated that smoking-related house fires cost the Oxfordshire economy £2.7million.
Oxfordshire County Council said on Tuesday: ‘Oxfordshire has set itself an ambitious aim to be smoke-free by 2025.
‘Creating healthy, smoke-free environments – including considering proposals for hospitality outdoor seating to be 100 per cent smoke-free – is just one small part of a wider range of county-wide plans.
‘At present there are no timeframes for smoke-free pavement licensing proposals and nothing has yet been agreed.
‘Any decision on this would be ultimately the responsibility of our individual district councils in Oxfordshire.
‘Our tobacco control strategy further outlines our smoke-free 2025 plans, which includes creating healthy and family-friendly smoke-free spaces, helping people stop smoking in the first place, and supporting those who wish to quit.’
Mr Clark, director of the smokers’ lobby group Forest (Freedom Organisation for the Right to Enjoy Smoking), criticised the plans.
He said: ‘It’s no business of local councils if adults choose to smoke, and if they smoke outside during working hours that’s a matter for them and their employer not the council.
‘Nor should it be the role of councillors to force smokers to quit by extending the indoor smoking ban to any outdoor area where there is no risk to non-smokers.’
He added: ‘The public will want local authorities to help local businesses bounce back from the impact of the pandemic. They will also be expected to focus on issues like employment and housing.
‘Reducing smoking rates to meet some idealistic target is not a priority for most people and council policy should reflect that.’
He also said: ‘At any time banning smoking outside is not justified but to do it in the wake of a pandemic when restaurants and pubs have suffered so badly, anything that would drive more customers away would be utterly foolhardy.
‘But ultimately it has to be the choice of the pubs and restaurants, they know who the customers are, they know whether or not they would ban smoking.
‘I’m sure some would, if most of their customers are non-smokers, but there are others who think their customers who are smokers and non-smokers can co-exist happily.’
And Mark Oates, director of campaign group We Vape, said: ‘It now seems fashionable again to attack smokers instead of helping them, which is all these five councils are doing.
‘They don’t care about the individual smoker’s health, they care about looking good. Smokers need to be educated in the alternatives, not treated like exiles.
‘Public Health England and Cancer research UK have publicly stated between them vaping is 95 per cent safer than smoking, doesn’t hurt people nearby and we know it is far more effective at quitting tobacco than any other nicotine replacement method. It is a fact.
‘So by ignoring this and not advising on far healthier alternatives and instead forcing smokers down the road or wherever they can push them, they are blindly rejecting science for some PR stunt.’
Professor Chris Whitty, England’s chief medical officer, told a recent conference more than 90,000 people died from tobacco related diseases in 2020, compared with 75,000 from Covid.
He added: ‘One in five people who die from cancer will die from [lung cancer]. The reason that people like me get very concerned and very upset about it is that this cancer is almost entirely caused for profit.’