ADVANCE MEDIA BRIEFING: Government Consultation on Smoking in Workplaces

Friday 17 June 2005

<spanstyle=’font-size:20.0pt;font-family:arial’>Health Improvement and ProtectionBill

<spanstyle=’font-size:16.0pt;font-family:arial’>Smoking in Workplaces and EnclosedPublic Places





This brief gives detailsof what the consultation document is likely to propose in relation to smoking inworkplaces and enclosed public places and gives basic information on the issue.ASH is available to provide further briefing and advice on request.


CONTACT:               DeborahArnott       020 7739 5902

<spanstyle=’font-family:arial’>Ian Willmore             020 7739 5902         07887641344 (m)





<spanstyle=’font-size:11.0pt;font-family:arial’>1.     Action onSmoking and Health (ASH) welcomed the proposal in the White Paper on publichealth, published in November 2004, for legislation to end smoking in the greatmajority of workplaces and enclosed public places. This proposal was alsocontained in the Labour Party’s General Election manifesto (in Chapter 4 under“Healthy Choices for All”). A Health Improvement and Protection Bill wasincluded in the Queen’s Speech on 17th May 2005. The Bill hasflagship status.


<spanstyle=’font-size:11.0pt;font-family:arial’>2.     An end to allsmoking in workplaces and enclosed public places would protect non-smokers fromthe damaging effects of secondhand smoke, and would encourage many smokers toquit. The public health benefits of such legislation would be very substantialindeed and would certainly be a “legacy” issue of great importance – one key reasonwhy it is believed to have moved up Prime Minister Tony Blair’s list ofpriorities for the third term. 


Manifesto and WhitePaper


<spanstyle=’font-size:11.0pt;font-family:arial’>3.     The Labour Partymanifesto commitment read: “We recognise that many people want smoke-freeenvironments and need regulation to help them get this. We therefore intend toshift the balance significantly in their favour. We will legislate to ensurethat all enclosed public places and workplaces other than licensed premiseswill 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 pubsand bars will be free to choose whether to allow smoking or be smoke-free. Inmembership clubs the members will be free to choose whether to allow smoking orto be smoke-free. However, whatever the general status, to protect employees,smoking in the bar area will be prohibited everywhere.


Theserestrictions will be accompanied by an expansion of NHS smoking cessationservices to encourage and support smokers to improve their own health by givingup smoking.

Startingwith the poorest areas of the country we will introduce health trainers to helppeople maintain their healthy choices. By 2010, through this activity we planto reduce the health inequalities that exist between rich and poor.” <ahref=”#_edn1″ name=”_ednref1″ title=””><spanstyle=’font-size:11.0pt;font-family:arial’><spanstyle=’font-size:11.0pt;font-family:arial’>[1]


<spanstyle=’font-size:11.0pt;font-family:arial’>3.     Chapter 4,paragraph 77 of the White Paper sets a relatively long time-table to implementsmoking restrictions, as follows:

<spanstyle=’font-size:10.0pt;font-family:symbol’>·                          by the end of2006, all government departments and the NHS will be smoke-free;<spanstyle=’font-size:11.0pt’>

<spanstyle=’font-size:10.0pt;font-family:symbol’>·                          by the end of2007, all enclosed public places and workplaces, other than licensed premises(and those specifically exempted) will, subject to legislation, be smoke-free;<spanstyle=’font-size:11.0pt’>

<spanstyle=’font-size:10.0pt;font-family:symbol’>·                          by the end of2008 arrangements for licensed premises will be in place.


<spanstyle=’font-size:11.0pt;font-family:arial’>4.     The publichealth lobby on this issue <spanclass=msoendnotereference><spanclass=msoendnotereference>[2]<spanstyle=’font-size:11.0pt;font-family:arial’> has serious concerns about theproposed exemptions for pubs that do not serve prepared food and for privatemembership clubs. We believe that these exemptions cannot be justified onhealth and safety grounds, would significantly undermine the purpose of thelegislation, and would sharply reduce the impact of the legislation on healthinequalities. We also believe that the timescale for the proposed changes istoo long, and we will press for comprehensive smokefree legislation to comeinto force at least eighteen months before the date of the next GeneralElection (i.e. Spring 2007 at the latest). We believe that Patricia Hewitt, thenew Secretary of State for Health, is more sympathetic than her predecessorJohn Reid to the argument for comprehensive smokefree legislation and we expectpressure to grow during the consultation process for the exemptions to bedropped.


<spanstyle=’font-size:11.0pt;font-family:arial’>5.     We expect theGovernment’s consultation paper to include the proposed exemptions, but to askfor views on the principles of such exemptions and their effect on healthinequalities, binge drinking (because of the perverse incentives they wouldgive pubs to cease serving prepared food) and other key issues including healthand safety.  All these issues are likely to provide the Government with goodgrounds for removing the exemptions from the final Bill.




<spanstyle=’font-size:11.0pt;font-family:arial’>6.     There is nouseful line to be drawn between pubs which “prepare and serve food” andthose which do not. From their public statements, Ministers appear to have onlythe vaguest idea how many pubs do not serve prepared food and no idea at allwhere such pubs are concentrated. It is also evident that no clear definitionof prepared food was arrived at before the White Paper was produced.


<spanstyle=’font-size:11.0pt;font-family:arial’>7.     Chapter 4,paragraph 79 of the White Paper suggests that between 10% and 30% of pubs will beexempted. There are about 55,000 pubs across the country, so this exemption maycover anything between 5,500 and 16,500 establishments.


<spanclass=articlebody1>8.     Privateclubs could also be exempt, following a vote of members.  There are 19,913registered clubs – clubs owned by the members – in England and Wales <spanstyle=’font-size:10.0pt;font-family:arial’>(Source:Department for Culture, Media and Sport Statistical Bulletin Liquor Licensing,England and Wales, July 2003-June 2004).


<spanstyle=’font-size:11.0pt;font-family:arial’>9.     Exempt pubswould be concentrated in poorer communities. These communities will have higherthan average smoking prevalence rates, and will be suffering from the sharphealth inequalities that the class distribution of smoking brings.<spanstyle=’font-size:11.0pt;font-family:arial’> Many membership clubs – for exampleLabour Clubs – will also be in such communities. Research undertaken byNorthamptonshire Primary Care Trust and local authorities in the country showsthat 54% of pubs and bars in Northamptonshire serve only drinks and would beexempt from the controls on smoking in public places.  In the borough of Corby,an area where mortality rates are significantly higher than the nationalaverage, 85% of pubs and bars would be exempt. ASH, Liverpool John MooresUniversity and others will be conducting and publishing further research onthis during the consultation period. We will be conducting specific research onpubs in Leicester (which includes Patricia Hewitt’s constituency).


<spanstyle=’font-size:11.0pt;font-family:arial’>10. Chapter 4,paragraph 77 of the White Paper noted the risk that some pubs may cease toserve prepared food in order to qualify as premises that can continue to permitsmoking. This fear is dismissed with the words “we believe that theprofitability of serving food will be sufficient to outweigh any perverseincentive for pub owners to choose to switch”. This assertion has beencontradicted by senior figures in the pub trade, for example, Tim <spanstyle=’font-size:11.0pt;font-family:arial’>Clarke, chief executive ofrestaurant and pubs group Mitchells & Butlers has warned that “theenforced specialisation between food and smoking risks commerciallyincentivising more pubs than the White Paper currently anticipates to removefood and retaining smoking throughout.” <spanstyle=’font-size:11.0pt;font-family:arial’><spanstyle=’font-size:11.0pt;font-family:arial’>[3]<spanstyle=’font-size:11.0pt;font-family:arial’>


<spanstyle=’font-size:11.0pt;font-family:arial’>11. The proposal toprohibit smoking in the “bar area” of exempted pubs would fail to provideadequate protection for employees or members of the public. Smoke drifts. Mostpubs currently have any separated smoking and non-smoking areas in the sameopen space.  Ventilation systems are not a suitable solution.  Thecancer-causing particulates in cigarette smoke, invisible to the human eye, aretoo small to be trapped by the filter and so are just re-circulated.  Eventobacco manufacturers Philip Morris admit on their website that, despite beingexpensive and difficult to maintain, ventilation systems are “not shown toaddress the health effects of secondhand smoke”. <spanstyle=’font-size:10.0pt;font-family:arial’><spanstyle=’font-size:10.0pt;font-family:arial’>[4]


Legal Challenges toExemptions


<spanstyle=’font-size:11.0pt;font-family:arial’>12. Any attempt toexempt a category of workplaces from smokefree legislation would be subject tolegal challenge. The date of “guilty knowledge” under the Health and Safety atWork Act 1974 (HSWA) has now clearly passed in relation to secondhand smoke.Therefore, employees made ill by such exposure in the workplace will have acase for damages against their employer, claiming negligence and citing abreach of the HSWA as evidence. This would remain possible in respect of anypremises exempted from a general prohibition on smoking. ASH has been workingwith the personal injury and trade union law firm, Thompson’s, to identify suchcases. We are also commissioning a QC’s opinion on the Human Rights Actimplications of the proposed exemptions.


Scotland, Wales andNorthern Ireland


<spanstyle=’font-size:11.0pt;font-family:arial’>13. On 29thApril 2005, the Scottish Parliament voted in favour of legislation which wouldend smoking in all workplaces and enclosed public places, with very tightexemptions for residential care, prison cells etc. This legislation is now inits Committee stage and is expected to come into force in Spring 2006.


<spanstyle=’font-size:11.0pt;font-family:arial’>14. On Tuesday 24thMay 2005, the National Assembly for Wales voted in favour of calling for powersto introduce comprehensive smoking restrictions covering all workplaces. Weexpect the Government to offer such powers in the consultation document, inadvance of other discussions now taking place on the devolution settlement.Comprehensive legislation covering Wales will add greatly to the pressure forsuch legislation in England.  


<spanstyle=’font-size:11.0pt;font-family:arial’>15. In NorthernIreland, the Government held a public consultation, which is believed to haveproduced overwhelming backing for smokefree legislation. The Secretary of Statefor Northern Ireland could introduce such legislation in the province by Order.It is not yet clear what the consultation document will propose in this regard.


Other Issues


<spanstyle=’font-size:11.0pt;font-family:arial’>16. Dr Reid andministerial colleagues have sometimes suggested that the reason for theproposed exemptions is to prevent displacement of smoking from workplaces andpublic places to the home. This concern is groundless.<spanstyle=’font-size:11.0pt;font-family:arial’> A Parliamentary answer dated Monday24th January from Public Health Minister Melanie Johnson, to aseries of Written Questions on this point from David Taylor MP, shows that theGovernment has no research evidence to back this assertion. <ahref=”#_edn5″ name=”_ednref5″ title=””><spanstyle=’font-size:11.0pt;font-family:arial’><spanstyle=’font-size:11.0pt;font-family:arial’>[5]<spanstyle=’font-size:11.0pt;font-family:arial’> Research by Dr Fong and others forthe International Tobacco Control Policy Project shows that smoking in homes inIreland has decreased since the smoking legislation came into effect. <ahref=”#_edn6″ name=”_ednref6″ title=””><spanstyle=’font-size:11.0pt;font-family:arial’><spanstyle=’font-size:11.0pt;font-family:arial’>[6]<spanstyle=’font-size:11.0pt;font-family:arial’> In New York, a survey by the City’sDepartment of Health and Mental Hygiene showed that in 2004 <spanstyle=’color:black’>124,000 fewer non-smokers reported exposure to second-handsmoke in their homes compared with 2002, (a 34.5% decline). <ahref=”#_edn7″ name=”_ednref7″ title=””><spanstyle=’font-size:11.0pt;font-family:arial’><spanstyle=’font-size:11.0pt;font-family:arial’>[7]


<spanstyle=’font-size:11.0pt;font-family:arial’>17. The tobacco lobby and sections of the hospitality trade oftenclaim that smoking restrictions are bad for business. The objective evidencedoes not support this claim. For example, in March 2004, a report on the impactof the legislation was issued by the New York City Department of Finance, theDepartment of Health and Mental Hygiene, the Department of Small BusinessServices, and the Economic Development Corporation. It concluded that:  “Oneyear later, the data are clear. . . Since the law went into effect, businessreceipts for restaurants and bars have increased, employment has risen,virtually all establishments are complying with the law, and the number of newliquor licenses issued has increased—all signs that New York City bars andrestaurants are prospering.”


  1. In Ireland,the Vintners Federation of Ireland and other groups have claimed that thesmokefree law has reduced pub takings by “20-30%”. This claim is false. <spanstyle=’font-size:11.0pt;font-family:arial’>The retail sales index for bars volume inIreland (2000=100) shows the following
  • 2001 100.5 (+0,5%)
  • 2002   97.6 (-2,8%)
  • 2003   93.5 (-4,2%)
  • 2004   89.4 (-4,4%)

Thefigures also show thatthe value of bar sales in Ireland decreased by 3.3% in the year following theintroduction of smokefree legislation (April 2004 to May 2005). The declinein volume at drinking places in Ireland is a function of changing social habits- not smoking laws. <spanclass=msoendnotereference><spanclass=msoendnotereference>[8]


Public Opinion


<spanstyle=’font-size:11.0pt;font-family:arial’>19. Public supportfor a ban on smoking in public places has grown steadily in recent years. AMORI poll of more than four thousand people commissioned by ASH and publishedin June 2004 showed that four out of five (80%) of those polled support a lawto ensure that all enclosed workplaces must be smokefree. The MORI pollrevealed that support for a smokefree workplace law is strong across all socialclasses: (86% of social class AB support the proposal, falling to 72% of socialclass DE. Even regular smokers supported a new law: the poll shows support from59% of daily smokers and 68% of infrequent smokers.  Supporters of allpolitical parties were in favour: 81% of people intending to vote Laboursupport the law, 83% of people intending to vote Conservative and 85% of peopleintending to vote Liberal Democrat. [9]


<spanstyle=’font-size:11.0pt;font-family:arial’>20. Evidence fromIreland, Australia and the US shows public support for smoking bans become evenstronger once people get used to working, shopping and eating out in smokefreecomfort.  Support for the smoking ban in Ireland was at 59% before thelegislation but has since risen to 93% (including 80% of smokers) according toa poll conducted for the Office of Tobacco Control<spanstyle=’font-size:11.0pt;font-family:arial’>. <spanstyle=’font-size:11.0pt;font-family:arial’><spanstyle=’font-size:11.0pt;font-family:arial’>[10]


<spanstyle=’font-size:11.0pt;font-family:arial’>21. ASH will becommissioning further opinion poll surveys during the consultation period.

<spanclass=msoendnotereference><spanclass=msoendnotereference>[1]<spanstyle=’font-size:9.0pt;font-family:arial’><ahref=”http:”” 7=”” 4=”” 15010=”” 1=”””” manifesto_13042005_a3=”” flash=”” manifesto_2005.swf”=””>

<spanclass=msoendnotereference><spanstyle=’font-size:10.0pt;font-family:”times new=”” roman”‘=””>[2]<spanstyle=’font-size:9.0pt;font-family:arial’> Key participants include CancerResearch UK, the British Heart Foundation, the BMA, the Chartered Institute ofEnvironmental Health, the Royal Colleges of medicine, Asthma UK, ASH and thewider public health community. The TUC and key Unions including the GMB arealso likely to play an active role during the consultation period in lobbyingagainst exemptions from smokefree workplaces.

<spanclass=msoendnotereference><spanclass=msoendnotereference>[3]<spanstyle=’font-size:9.0pt;font-family:arial’><ahref=”http:”” 0150business=”” 0200news=”” tm_objectid=”14936209&method=full&siteid=50002&headline=smoking-ban-threat-to-food-in-smaller-pubs-name_page.html””>

<spanclass=msoendnotereference><spanstyle=’font-size:10.0pt;font-family:”times new=”” roman”‘=””>[4]<spanstyle=’font-size:9.0pt;font-family:arial’><ahref=”http:”” en=”” policies_practices=”” public_place_smoking.asp”=””>

[5] <ahref=”http:”” pa=”” cm200405=”” cmhansrd=”” cm050124=”” text=”” 50124w52.htm#column_190″=””>

<spanclass=msoendnotereference><spanstyle=’font-size:10.0pt;font-family:”times new=”” roman”‘=””>[6]<ahref=”http:”” assets=”” downloads=”” geoffreytfong.pdf”=””>

<spanclass=msoendnotereference><spanclass=msoendnotereference>[7]<spanstyle=’font-family:arial’> <ahref=”http:”” html=”” doh=”” pr=”” pr062-05.shtml”=””>

<spanclass=msoendnotereference><spanclass=msoendnotereference>[8]<spanstyle=’font-size:9.0pt;font-family:arial’> <ahref=”http:”” economic_report.htm”=””>

<spanclass=msoendnotereference><spanclass=msoendnotereference>[9]<spanstyle=’font-size:9.0pt;font-family:arial’> <ahref=”http:”” html=”” workplace=”” shssurveys.html”=””>

<spanclass=msoendnotereference><spanclass=msoendnotereference>[10]<spanstyle=’font-size:9.0pt;font-family:arial’> The Office of Tobacco Control (2005)“Smoke Free Workplaces in Ireland:  A One Year Review”.  Report of the Officeof Tobacco Control.