An open and shut case

MA legal editor Peter Coulson and Poppleston Allen partner Graham Cushion give their assessments on how the law has been observed, what difficulties have arisen and what problems lie ahead

From the legal perspective, the Health Act 2006, which introduced the ban, has worked more or less as the Government intended. The only problems of interpretation have involved whether the premises are "open to the public", and the meaning of "substantially enclosed" in respect of smoking shelters or extensions.

The original assumption was that outside opening hours, the bar might be used by the licensee and his family and smoking would be allowed.

This proved not to be accurate, because the Act provided that if this was an area which the public attended to receive goods or services, or if it was used as a place of work by more than one person, the bar had to be smoke-free all the time.

Local enforcement officers reported that after initial problems with the location and placing of signs, most public house were compliant with the law, whatever they felt about its correctness. The number of prosecutions was remarkably low, both for individual smokers and for those managing premises. Some flirted with the idea of suggesting that they could not prevent smoking due to intimidation from errant customers, but this was not seen as a valid or reasonable defence.

The greatest problems occurred over the exact meaning of the regulations covering smoking areas or shelters. The law requires at least 50% of the wall area of any structure, which has a ceiling or roof (even a retractable one), to be open to the air, no account being taken of doors or windows or other fittings that can be opened or shut. Some structures with fold-down sides or sliding windows were found to be too enclosed to comply with the regulations, which was particularly galling for those licensees or operators who had spent several thousand pounds on a purpose-built shelter.

Others were told that the open sides were too close to the side walls of their beer garden or yard to count as being properly open to the air.

The main problems, which still continue, concern planning permission and noise or disturbance to neighbours from smokers congregating in shelters or outside the premises. A curfew on smokers drinking outside has also caused conflict with customers. These issues will continue to arise as the ban continues into its second year.

A problem with no obvious solution

The most notable impact of the ban seems to be the amount of time that a smoking customer now spends outdoors. This time is spent either on his own or with other smokers in a purpose-built external terrace, or, more commonly, out on the street.

Here lies the big issue for licensees, one that may well grow out of control and, in the long term, force more pubs out of business than the ban itself.

The situation is not helped when Westminster, in particular, wants to see smoking banned immediately outside premises as well. They made this point in the consultation to the Health Act, but their view was not supported. Don't assume this will go away.

Within city centres particularly, premises are unlikely to have a large exterior space in which to erect some form of shelter. While there may have been a degree of tolerance of customers on the street in the summer, it is a different ball game when such a situation occurs all year round — a recipe for angry neighbours and potential loss of licence.

Operators need to face the fact that if half their clientele is outside at any given time, they are going to have to make sure they are being supervised in the same way as they would if inside. This is because there's a constant duty to promote the licensing objectives.

Setting that aside, there are all the associated problems of having congregations of people outside the premises. Noise is a massive issue, with many premises having residents nearby. Not surprisingly, they are not shy about making complaints. This is a subject that I have a real issue with and one that will make the headlines. How long will it be before a proactive council like Westminster takes the view of a few residents and closes down a venue responsible for generating noise from smokers?

Even though there is no breach of the health legislation in doing so, there have been complaints from residents about smoke entering their dwellings from a pub's outside area. This is undoubtedly a statutory nuisance in the same way that noise is and can be dealt with under the Environmental Protection Act, but it may also be the trigger for review proceedings.

Add litter into the equation and it's all a right mess! Operators may find themselves held to account for cigarette butts outside their premises, which, while being the by-product of their own customers, might equally have been dropped by passers-by.

I suppose the good news is that little issue has been taken with the legality of smoking solutions erected by those lucky enough to have space to do so.

Without a doubt it is the issue of nuisance that is making life very difficult for the operator.

The main problem seems to be the lack of an obvious solution.