Levelling-up and Regeneration Bill

Baroness Jones of Moulsecoomb Excerpts

Committee stage
Monday 22nd May 2023 Lords Chamber

[Lord Young of Cookham (Con)]

My Lords, I have enormous sympathy for the case made by my noble friend Lord Holmes and very much hope that the Government respond as positively as they can.

The background to my Amendment 459, to which Peers from other parties have added their names, is the arrangements made during the pandemic to support the hospitality industry. In the interests of progress, not all four of us will be speaking, and it is good to see today’s Marshalled List down to a mere 68 pages for this last day of our debate. Noble Lords may recall that during the pandemic, when it was not possible to go into enclosed premises such as pubs, arrangements were made to grant pavement licences. When the Business and Planning Bill, which introduced this concession, came before the House in 2020, I added my name to a cross-party amendment tabled by the noble Lord, Lord Faulkner, saying that a condition of licence would be that outdoor seating areas were required to be 100% smoke-free, paralleling the arrangements inside the premises.

Noble Lords across the House supported that amendment, but sadly it was not accepted by the Government, who instead inserted a requirement in the legislation that

“the licence-holder must make reasonable provision for seating where smoking is not permitted”.

Amendment 459 would reintroduce the requirement for all pavement licences to be smoke-free, which was the view of your Lordships’ House three years ago. This would contribute to the Government’s ambition to make England smoke-free by 2030—an ambition we are currently on track to miss by nine years, according to Cancer Research UK. The current temporary requirements, which are being made permanent in this Bill, would mean that councils have two options on smoking: to implement the national condition to provide some smoke-free seating, or to go further and make 100% smoke-free seating a condition of licence at local level.

Since then, two-thirds of the public, polled in 2022, did not think that the current legislation went far enough. They wanted smoking banned from the outdoor seating areas of all restaurants, pubs and cafes. Fewer than one in five opposed such a ban. That was a large sample, of more than 10,000 people, in a survey carried out by YouGov for Action on Smoking and Health.

Some councils are already doing what the public want, with 10 councils in England introducing 100% smoke-free requirements. These are a mixture of Conservative, Labour and Lib Dem-led councils in counties such as Durham and Northumberland, cities such as Newcastle, Manchester and Liverpool, unitary authorities such as Middlesbrough and North Lincolnshire, and metropolitan boroughs such as North Tyneside, South Tyneside and the London Borough of Brent. Therefore, in response to the point about practicality made by the noble Baroness, Lady Taylor, practicality has already been well established by those local authorities.

When we initially tabled our amendments, the then Secretary of State for Housing, Communities and Local Government wrote to Manchester City Council, the first council to introduce the requirement for pavement licences to be 100% smoke-free, warning it that this would damage local hospitality businesses and could lead to the loss of thousands of jobs. We do not know whether that letter had the approval of Health Ministers. However, the experience from Manchester and elsewhere shows exactly the opposite: that these bans have proved popular with the public, leading to high levels of compliance, and have not been shown to cause any decrease in revenues. At the time, I reluctantly agreed to the Government’s decision to include the current smoke-free seating requirements, which, while better than nothing, do not go far enough. The current system is not only much more complicated to implement than a blanket ban; it ensures that non-smokers and children continue to be exposed to tobacco smoke, which is both toxic and unpleasant. Of course, those who work for these establishments cannot go elsewhere and will continue to be exposed to smoke.

The Local Government Association of which, uniquely, I am not a vice-president, supports our amendment for 100% smoke-free pavement licences on the basis that

“it sets a level playing field for hospitality venues across the country and has a public health benefit of protecting people from unwanted second-hand smoke … If smoking is not prohibited, pavement areas will not become family-friendly spaces”.

That is why Dr Javed Khan’s independent review of smoke-free 2030 policies, commissioned by the Department of Health and published last year, recommended that smoking be prohibited on all premises, indoors and out, where food or drink is served, as well as a ban on smoking in all outdoor areas where children are present. This 100% smoke-free pavement seating has strong cross-party support from Peers across this House. When the regulations were extended in 2021, the noble Lord, Lord Faulkner, tabled an amendment to regret that the regulations were not revised to take account of the evidence of the benefits of 100% smoke-free pavement licences. That amendment was agreed by 254 votes to 224.

Last year, the Government announced several new tobacco control measures and said that in place of the long-promised tobacco control plan to deliver a smoke-free 2030, tackling smoking would be core to the major conditions strategy currently in development. The measures announced today are welcome but fall far short of the comprehensive approach that Dr Khan made clear was essential if we are to achieve a smoke-free 2030. When my noble friend sums up, can she confirm that the Government intend to bring forward further measures to reduce smoking in the upcoming major conditions strategy? We should now take this opportunity, provided by this amendment, to move towards implementing Dr Khan’s recommendations for all hospitality venues to be smoke-free indoors and out—a small but important step towards a smoke-free 2030.

[Baroness Jones of Moulsecoomb (GP)]

My Lords, last week, my esteemed colleague, the noble Lord, Lord Holmes, asked whether I would support his amendments on pavement accessibility. I trusted him completely so I said, “Yes, of course, I would love to support them”. Then I read them and, actually, they are quite tough and strict in places, but the more I read them, the more I liked them. I particularly liked Amendment 450, which is about taking bits of the road—I love that idea—and reducing the space for traffic, as well as Amendment 459 in the name of the noble Lord, Lord Young of Cookham, and others, because that is so tough on smoking and I loathe smoking. I support many of these amendments. Obviously, I support all the amendments from the noble Lord, Lord Holmes. There is, perhaps, some space to bring in the fact that cars park on the pavement. I hate pavement parking and I hate loads of rubbish bins being heaped up on the side of pavements because they inhibit free access.

My local shopping street has gone absolutely bananas with this, and it has changed the whole feeling of the street—it is so much more friendly. At the moment, only the Co-op, Iceland and Boots, I think, do not have tables and chairs outside them, with people eating, drinking and having fun. I am all in favour of this section and look forward to Report, when I would be happy to vote on many of them and perhaps even sign up to them as well.

[Lord Blencathra (Con)]

My Lords, it is always a delight to follow the noble Baroness, Lady Jones of Moulsecoomb. She did say that some of my noble friend’s amendments were quite tough but that she liked them. I think the Committee would agree that the noble Baroness is quite tough and we rather like her as well. I congratulate my noble friend Lord Holmes of Richmond on the initiative he has undertaken in tabling these important amendments. He is to be congratulated by all disabled people, fighting our corner—or narrow strip of pavement, as the case may be.

--- Later in debate ---

[Lord Moylan (Con)]

My Lords, it is normal to say what a pleasure it is to speak after a previous speaker, but it is impossible to speak after my noble friend and provoke as much of the Committee’s interest as he has.

I will speak in support of the amendments in the name of my noble friend Lord Holmes of Richmond to which I have added my name, and I do so on the basis of too many years spent on a local authority, much of it responsible for administering legislation that relates to the management of our highways. Much of that legislation dates to the 1980s, but one of the duties in it goes back to the Middle Ages and really to the beginning of having local authorities at all: that is the obligation on the local authority to keep the King’s highway clear. The reason for that is simple: if you operate commercial premises and are a frontager on the highway, you are very attracted by the prospect of trading from that highway, because you can expand your premises rent-free. That makes a great deal of sense commercially.

For centuries, it has been the sad task of local authorities to try to push back people who are trying to trade on the public highway because—here I make two points—the public highway is, first of all, a public asset. It is maintained at public expense primarily for the benefit of the public and not for the private use of frontagers. Secondly, my noble friend Lord Holmes referred to the purpose of the highway, but he was not quite as precise as I would have liked. There is a precise understanding in law of the purpose of the highway—that it allows people to go to and fro. Any use of the public highway for the purpose of trading—in this case we are discussing trading in front of refreshment businesses, restaurants and cafés, but the same applies to shopkeepers—can exist only as a concession by the local authority. In my experience, this is generally a contentious matter with local people and one should be very cautious about granting such licences.

All such caution was thrown to the wind as a result of the Covid pandemic. The Government switched from a carefully balanced system, where local authorities which understood their communities had a clear say in the matter and knew from experience how to balance various demands, to one in which the advantage was given heavily in favour of the commercial frontager, who has the right to do this. The Bill, in effect, seeks to make that even more expansive and practically to continue it permanently. I think this is a dangerous thing to do. It is and should very much be a matter for local authorities, which understand their local communities. The balance should be adjusted back to where it was before—more on the neutral part of the scales rather than heavily weighted, as it is now.

What harms arise? First, it is impossible for me to add to the harms that arise to people with various disabilities, about which we have heard. I cannot and do not intend to add anything to what my noble friends Lord Holmes and Lord Blencathra said from their own experience, but there are other harms as well. To some extent, they arise from the conceptual model that arises when we talk about “the high street”. We talk about the high street as if it were a distinct thing or use but, in most urban areas, if you lift your eyes above the gaudy shopfront, you will see lots of other things happening in the high street above ground, many of which are people living there. If you are overlooking a pavement and there are licences that allow people out on the pavement, you will suffer a harm directly in relation to that.

Some harms are quite acceptable. If the closing hours and hours of operation are sensible, perhaps you can live with that. You want to get on with your neighbours and do not want local businesses to fail, but you are entirely dependent on the licensing regime and the attitude of local councillors as to what hours should be allowed. You are also exposed to poor management and exposed, outside your window—here I speak from a degree of experience—to people talking loudly and having parties, some of which are louder than others. It is impossible to expect any management to control that properly; they simply cannot go around doing that. However well intentioned, they have to work with noisy and difficult people.

We need to get back to understanding what the highway is for, what a public asset is, paid for at public expense, and what its primary purpose is. We need to understand that local authorities are probably the best determinants of this and we need to reset the dial, so that they have the chance to do that.

I cannot sit down without referring to the amendment in the name of my noble friend Lord Young of Cookham. No chance goes by in your Lordships’ House for him to propose something restrictive of smoking without him dashing at it very much like a ferret up a trouser leg. Here we are again with yet another restrictive amendment proposed on smoking, and it is purely vindictive and entirely punitive. He endeavours to put a gloss of public interest on it, and maybe he thinks he is contributing to people giving up smoking. I gave up smoking last year and I assure your Lordships that at no point in my consideration did the possibility of being denied access to a pavement café arise, nor would I have given it any weight had it come into my mind. There were other reasons why I gave up smoking last year.

One of the problems with these vindictive approaches is that the people who make them simply do not understand smokers. The noble Baroness, Lady Jones of Moulsecoomb, who I think said that she “loathed smoking”, possibly does not want to understand them; she just wants to give vent to the loathing. I do not know. My noble friend offered a few other reasons. The first was generosity in favour of the business success of the premises. He said that they would be much happier, attract more business and be family friendly. I do not think that that is sufficient reason to impose restrictions on a lawful activity, because it is not the business of this House to make businesses successful. That is their job: we set a framework and they try to make the businesses successful. That is not our motivation nor should it be, in my view.

I very much hope that the Minister who, in the course of this Committee, has developed a great deftness at turning away suggestions made by Members of your Lordships’ House, maintains that deftness in respect of this amendment and finds a way of saying that this is not an appropriate place for the Government to pursue yet more vindictive legislation against smokers.

[Baroness Jones of Moulsecoomb (GP)]

I did not say that I loathe smokers—both my parents were smokers. I loathe smoking because of the impact it had on my parents, both of whom died from smoking-related disease.

[Lord Moylan (Con)]

I did say—and I think Hansard will show—that the noble Baroness said she loathed smoking. I was careful not to say that she loathed smokers. I hope she did not mishear that, because it would have been a mishearing.