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Smoking ban: Smoke signals from Scotland

13 September 2007

The English smoking ban has been in force for more than two months, while Scotland has been smoke-free for 18 months. Andrew Wade, partner at law firm Lawrence Graham, examines the Scottish experience and looks at what English hospitality premises can expect to encounter

In Scotland, staff at local authority health departments are in charge of making sure the ban is complied with. In the first year of the Scottish ban, 80,000 inspections were made by enforcement officers, but only one prosecution resulted and just 15 businesses were fined. However, a year on in Scotland, the number of non-compliant premises is increasing, as are the number of on-the-spot fines.

In Scotland, 175 smokers have been fined for non-compliance, far fewer than expected. Only one person has been charged with breaking the law. Opinion poll surveys suggest that the ban is proving very popular. Indeed, the minimum smoking age may even be increased from 16 to 18.

So can England expect the same trend? The surprisingly low number of prosecutions seems to bode well for English businesses. Self-policing rather than draconian enforcement measures have prevailed in Scotland. Likewise, English local authorities seem to be taking a softly-softly approach. The first steps will include advice, verbal warnings, letters and inspection reports - with formal action for non-compliance taken only when informal action is ineffectual.

It seems, though, that not everyone is prepared to stub out quietly. Nightclub owner Dave West has hired Cherie Booth to represent him in a legal battle, fighting for his human right to smoke. West has pledged to allow smoking on his premises and pay any fines imposed on him or his customers.

The Scottish smoking ban has led to establishments with high-quality outside areas attracting the smoking community in their droves. Although less critical over the summer months, winter will see those that have taken steps to cater for smokers reaping the rewards. The Scottish good weather lasted until late November last year - but as it became colder, the industry saw another decline in alcohol sales, and outside sofas, heaters and even TVs were set up under proper canopies in a bid to attract customers.

A word of warning: applications for planning permission to erect outside structures in Scotland have in some cases taken up to six months to approve. Interpretation of the law has varied between planning authorities, but the law has been vigilantly enforced. The same is likely to happen in England, so businesses should start applying now, in order to be ready before the winter chill sets in.

What about the property owners? The good news is that Scottish landlords have generally consented to such structures with minimum fuss. English landlords are likely to follow suit, particularly as this will help to protect their investment values. Again, though, the message to businesses is take action now to obtain consent.

The leisure industry in England is already experiencing a steady decline in alcohol sales, with beer taking the biggest hit. The industry has braced itself to be hit even harder after the smoking ban, but reports vary on how much Scottish alcohol sales have decreased. About 5-6% seems typical, with machine income harder hit, although the losses now seem to have bottomed out. The Scottish Licensing Association has claimed that a third of pubs have had to lose staff as a direct result of the ban.

One message, though, is clear: English proprietors must continue to do all they can to counteract the effects of the ban, as a decline in alcohol sales is almost inevitable.

There has been much talk of increasing food sales, and the Scottish experience has shown this has been a success. Customers previously kept at bay by smoky atmospheres are now being drawn back to Scottish pubs and restaurants. Larger kitchens, more catering staff and improved menus have helped greatly, and for some establishments, a more family-friendly atmosphere has helped too.

Restaurants have a clear opportunity here - coupled with the changing demographic of the eating-out classes, restaurateurs can capitalise on the effects of the ban. Restaurant owners must also be prepared to fight their corner against pubs and bars attempting to offset decreased alcohol sales with food.

One of the more unexpected effects of the Scottish ban was that it revealed smells that a smoky atmosphere previously disguised. Clubs probably suffered most in this respect, with reports of body odour hitting the dance floor. Once again, forewarned is forearmed, and owners should insist on high levels of cleanliness in their establishment, and consider installing ventilation systems to remove smells of stale beer and sweat.

Some novel ways are being used to try to avoid the impact of the ban. One Southampton pub owner tried, unsuccessfully, to claim diplomatic immunity by declaring that his pub was an embassy for the uninhabited Caribbean island of Redonda.

More generally, research shows that the English population is well-informed and to date has widely supported the ban. Compliance levels also seem high. Couple this with the lessons the English leisure industry can learn from the Scottish ban, and all the ingredients seem to be in place for a successful shift to a smoke-free England.

However, proprietors should remain responsive to the changes and not bury their heads in the sand. In the words of US author Peter F Drucker: "One cannot manage change. One can only be ahead of it."

What about hotels?

Hotels are not yet obliged to make all their rooms non-smoking. However, two large budget hotel chains, Premier Travel Inn and Travelodge, have announced that all their premises will be smoke-free from next January. Will other hotels follow suit, or will they take advantage of the fact that they remain among the few premises in which consumers can still smoke?

The law: a quick recap

Smoking in England is now banned in all public indoor places that are enclosed or "substantially enclosed" - meaning premises with a ceiling or roof (including retractable roofs) and fewer than half the perimeter walls having openings (not including windows or doors).

The English law provides that smoke-free premises must display at least one sign at their entrance showing the no-smoking symbol and containing the words "No smoking. It is against the law to smoke in these premises." The word "premises" can be substituted by an adequate description - eg, "this hotel". Free signs can be ordered by ringing the Smokefree England helpline on 0800 169 1697.

Anyone caught smoking faces a fine of £50, which could increase to £200 if the matter is taken to court. Those in control of non-smoking premises are liable for £2,500 fines if they don't take reasonable action to stop people smoking. Failure to display no-smoking signs in smoke-free premises incurs a fixed penalty of £200.

Under Scottish law, the notices must also display the name of a person to whom a complaint may be made in case of non-compliance.

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