The Government published its White Paper on public health:”Choosing Health: Making Healthier Choices Easier” on 16th November 2004[1].
Chapter 4, paragraph 76 of the White Paper states:
“We propose to regulate, with legislation where necessary, in order to ensure that:
· All enclosed public places and workplaces (other than licensed premises …) will be smoke free;
· Licensed premises will be treated as follows:
- all restaurants will be smoke-free
- all pubs and bars preparing and serving food will be smoke-free
- other pubs and bars will be free to choose whether to allow smoking or to be smoke-free
- in membership clubs the members will be free to choose whether to allow smoking or to be smoke-free
- smoking in the bar area will be prohibited everywhere.”
The proposal was also put in somewhat clearer terms in the Labour Party’s General Election manifesto, which stated:
“We recognise that many people want smoke-free environments and need regulation to help them get this. We therefore intend to shift the balance significantly in their favour. We will legislate to ensure that all enclosed public places and workplaces other than licensed premises will be smoke-free. The legislation will ensure that all restaurants will be smoke-free, all pubs and bars preparing and serving food will be smoke-free; and other pubs and bars will be free to choose whether to allow smoking or be smoke-free. In membership clubs the members will be free to choose whether to allow smoking or to be smoke-free. However, whatever the general status, to protect employees, smoking in the bar area will be prohibited everywhere.
These restrictions will be accompanied by an expansion of NHS smoking cessation services to encourage and support smokers to improve their own health by giving up smoking.
Starting with the poorest areas of the country we will introduce health trainers to help people maintain their healthy choices. By 2010, through this activity we plan to reduce the health inequalities that exist between rich and poor.” [2]
Although ASH and public health experts have welcomed the Government’s commitment to end smoking in the great majority of workplaces and enclosed public places, the proposal to exempt pubs which do not serve prepared food (“wet led” pubs) and private membership clubs has been described as “confused, probably unworkable and certainly undesirable”.
The proposal is confused because there is no useful line to be drawn between pubs which “prepare and serve food” and those which do not. From their public statements, Ministers appear to have only the vaguest idea how many pubs do not serve prepared food and no idea at all where such pubs are concentrated. It is also evident that no clear definition of prepared food was arrived at before the White Paper was produced.
Chapter 4, paragraph 79 of the White Paper suggests that between 10% and 30% of pubs to be exempted. There are about 55,000 pubs across the country, so this exemption may cover anything between 5,500 and 16,500 establishments. Private clubs owned by the members could also be exempt, following a vote of members. There are 19,913 registered in England and Wales [3]
It is likely that many exempted pubs and clubs will be in poorer communities. These communities will have higher than average smoking prevalence rates, and will be suffering from the sharp health inequalities that the class distribution of smoking brings. Many membership clubs – for example Labour Clubs – will also be in such communities. For example, an analysis of local licensed premises carried out by environmental health officers for Councils and NHS Primary Care Trusts in Northamptonshire showed that 54% of pubs and bars in Northamptonshire serve only drinks and would be exempt from the controls on smoking in public places. In the borough of Corby, an area where mortality rates are significantly higher than the national
average, 85% of pubs and bars would be exempt [4]. The proposal to exempt some pubs and membership clubs therefore threatens to undermine key objectives of the White Paper – to reduce smoking prevalence rates and tackle health inequalities.
Chapter 4, paragraph 77 of the White Paper notes the risk that some pubs may cease to serve prepared food in order to qualify as premises that can continue to permit smoking. This fear is dismissed with the words “we believe that the profitability of serving food will be sufficient to outweigh any perverse incentive for pub owners to choose to switch”. This assertion has been contradicted by senior figures in the pub trade, for example, Tim Clarke, chief executive of restaurant and pubs group Mitchells & Butlers has warned that: "the enforced specialisation between food and smoking risks commercially incentivising more pubs than the White Paper currently anticipates to remove food and retaining smoking throughout." [5]
The proposal to prohibit smoking in the “bar area” of exempted pubs would fail to provide adequate protection for employees or members of the public. Smoke drifts. Most pubs currently have any separated smoking and non-smoking areas in the same open space. Ventilation systems are expensive, hard to maintain, and as even Philip Morris has admitted, do not provide good protection from the health effects of secondhand smoke. (“While not shown to address the health effects of secondhand smoke, ventilation can help improve the air quality”)[6]
Any attempt to exempt a category of workplaces from smokefree legislation would be subject to legal challenge. The date of “guilty knowledge” under the Health and Safety at Work Act 1974 (HSWA) has now passed in relation to secondhand smoke. The evidence, not least from the two SCOTH reports (1998 and 2004), is now sufficiently strong and sufficiently well known for any employer to be expected by the courts to know of the risks associated with exposure to secondhand smoke. Therefore, employees made ill by such exposure in the workplace will have a case for damages against their employer, claiming negligence and citing a breach of the HSWA as evidence. This would remain possible in respect of any premises exempted from a general prohibition on smoking.
Chapter 4, paragraph 77 of the White Paper also sets a relatively long time-table to implement smoking restrictions, as follows:
· “by the end of 2006, all government departments and the NHS will be smoke-free;
· by the end of 2007, all enclosed public places and workplaces, other than licensed premises (and those specifically exempted) will, subject to legislation, be smoke-free;
· by the end of 2008 arrangements for licensed premises will be in place”.
This timescale – around eighteen months longer than is proposed in Scotland – is too long and arises mainly from the excessive complexity of the proposed legislation. A simple piece of legislation ending smoking in all workplaces would be easier and quicker to introduce, as well as being subsequently easier to publicise and enforce.
Paragraphs 8 and 9 of the Regulatory Impact Assessment, published with the White Paper estimate that the ending smoking in all workplaces and enclosed public places would reduce overall smoking prevalence rates by 1.7%. 0.7% of this effect is estimated to result from the direct effect of ending smoking in employees’ own place of work, and 1% from more places outside smokers’ own place of work going smoke free. The RIA gives no assessment of the reduction in prevalence rates that would be achieved if the Government’s proposed exemptions were adopted, however it does assess the health benefits to non-employees (“customers”) of this option as worth £150 million a year, as opposed to £350 million for the full ban. In total, the RIA assesses the net benefits of a full ban at £1,344 to £1,754 million a year, compared to £998 to £1,486 million for the Government’s preferred option.[7]
The Government should drop its proposed exemptions from smokefree legislation, and opt for the comprehensive model which has been adopted in Scotland and has already proved such a success in the Irish Republic.
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