Business and Planning Act 2020 (Pavement Licences) (Coronavirus) (Amendment) Regulations 2021

Considered in Grand Committee

Moved by

That the Grand Committee do consider the Business and Planning Act 2020 (Pavement Licences) (Coronavirus) (Amendment) Regulations 2021.

My Lords, the regulations we are considering today were laid in draft before this House on 8 June. If approved and made, they will extend the temporary pavement licence provisions for 12 months to 30 September 2022 and will come into effect the day after they are made.

The temporary pavement licence provisions create a faster, cheaper and more streamlined consenting regime for the placement of removeable furniture, including tables and chairs, on pavements outside premises such as cafes, bars, restaurants and pubs. These measures have been popular and very successful in supporting businesses, making it easier for pubs, restaurants and cafes to facilitate al fresco dining with outside seating. It is vital that we continue to support the hospitality sector by extending these provisions for 12 months, as it has been one of the hardest hit as a result of the coronavirus.

The sole purpose of the regulations is to change the four references to the expiry date in the legislation from 30 September 2021 to 30 September 2022. The regulations do not change any other part of the pavement licence provisions, so the process for applying for a licence during the extended period will not change. Subject to the regulations being approved and made, businesses will be able to apply for a licence under the process set out in the pavement licence provisions in the Business and Planning Act for the extended period until 30 September 2022.

The regulations do not automatically extend licences that have been granted under the current provisions, so businesses will need to apply for a new licence if they wish to have one in place during the extended period. Local authorities are encouraged by guidance to take a pragmatic approach in applying the extended provisions, so that it is as convenient as possible for businesses to apply for a licence during the extended period. As the process for applying for a licence under the extended period will remain unchanged, I will briefly remind noble Lords of that process.

All licences are subject to a 10-working-day determination period, including a five-working day public consultation period, excluding public holidays, starting the day after the application is sent electronically to the authority. If the local authority does not determine the application before the end of the determination period, the licence will be deemed to have been granted for a year—or, if sooner, until 30 September 2022—and the business can place the proposed furniture, such as tables and chairs, within the area set out in the application for the purpose or purposes proposed.

Licence application fees will be set locally but are capped at a maximum of £100. Again, these fees are unchanged from what they are for licence applications under the current temporary provisions in the Business and Planning Act 2020. All licences will be subject to a national no-obstruction condition and smoke-free seating condition as well as any local conditions set by local authorities.

My Lords, my intervention this afternoon will be brief. I was most grateful to the Minister for finding the time yesterday to have a conversation with me about these regulations, and I was able to tell him that I have tabled a regret Motion relating to them, which will be debated in the Chamber presumably some time next week—I gather that it may be Wednesday. The rules relating to hybrid procedures in Grand Committee do not allow for regret Motions to be debated here.

I shall not take up the Committee’s time today by going through the arguments for my regret Motion. The wording of it is self-explanatory; it regrets that “these regulations were not revised to take account of the evidence of the benefits of 100% smoke-free pavement licences, which have been implemented over the last year in a diverse range of local authorities and which have received strong public support”. Your Lordships may recall that the House debated these regulations during the passage of the Business and Planning Bill almost a year ago. A cross-party amendment tabled by the noble Baroness, Lady Northover, and signed by the noble Lord, Lord Young of Cookham, the noble Baroness, Lady Finlay of Llandaff, and me received strong support across the Chamber. Our amendment was supported by the Local Government Association and a number of major local authorities. The LGA said 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”.

Despite the Government’s stated intention to make smoking obsolete in England and for us to be smoke free by 2030, Ministers did not accept our amendment a year ago. Instead, they inserted a requirement in legislation that

My Lords, I strongly support the remarks just now by the noble Lord, Lord Faulkner. We have, as he said, been here before when, last summer, the Government launched the “Eat out to help out” campaign. At that time, as the noble Lord, Lord Faulkner, said, my noble friend Lady Northover moved, with all-party support, to tie the extension of eating on the pavement to non-smoking areas. This was rejected by the Government because they did not wish to hinder the development of the initiative at short notice. This year, the same excuse will not be an acceptable reason for inaction, because a year has elapsed, but the Government prefer to listen not to local authorities or the Local Government Association, which has to make the permits work, in very many areas, including my own, in Oxfordshire, but instead to the voices of big business, brewers and the tobacco industry. They do not listen, necessarily, to the small shopkeepers and restauranteurs owners but to the very big interests behind them.

Does the Minister recognise that, during the pandemic, many smokers have quit, but it is very easy for such people to resume smoking? Then there is the effect of passive smoking on those around, on the staff and on children. Can we afford to inflict a rise in the number of smokers on our population already cursed by Covid? The proposed regulations, with their ambivalent attitude to smoking, will make the difficulties that local authorities have with enforcement worse, and will be mightily unpopular with the majority of actual users.

My Lords, it will come as no surprise to my noble friend the Minister, who may remember our debate on pavement licences a year ago, that I have every sympathy with the speech of the noble Lord, Lord Faulkner. As he said, I supported the amendment then moved by the noble Baroness, Lady Northover, saying that pavement licences should be given only if smoking were prohibited, and I will not repeat the arguments I made then. That amendment was withdrawn, but on Report the Government tabled their own concessionary amendment requiring proper provision for non-smokers and, although it was not what the movers wanted—nor, indeed, what the majority of the speakers in the debate had asked for—the concession was accepted. My noble friend then said that joint guidance would be issued by his department and DHSC.

That joint guidance was non-contentious. I want to focus this afternoon on paragraph 11.2 of the Explanatory Memorandum, which refers to updated guidance from the department to help local authorities implement the provisions of this order. I do this because, on 8 August last year, after the guidance I referred to was published, the Secretary of State emailed Manchester City Council, stating that its proposal to set a local smoke- free condition on the issue of pavement licences was

“against the spirit of the emergency legislation passed by Parliament”.

It was not: the legislation expressly said that local authorities could set a local condition such as Manchester proposed. Indeed, in Committee on the Bill my noble friend said:

“Therefore, local authorities can exercise their condition-making powers to impose no-smoking conditions”.—[Official Report, 13/7/20; col. 1482.]

Worse, the letter went on to assert that if smoking were banned outside pubs and cafes:

“It could lead to significant closures across the country.”

My Lords, last year in the debate on this in this House, I said that I was very much in favour of this measure, and I am in favour again of a year’s extension, not only for the businesses themselves but because extending bars and restaurants on to the street, even if temporarily, generally represents an enhancement of our public space by increasing the sharing of public space. In a sense, it is good for the vitality of our high streets.

However, although the measure clearly is good for the businesses concerned, particularly during the pandemic, as is the intention of the regulations, the question must be: how have communities reacted as a whole, including non-smokers and the disabled? Have the Government made a formal overall assessment of the effect of this measure? Will they do so? The local authorities are making these decisions, but these are two separate things.

I am in favour of the shared space principle which hovers in the background of this. It is not directly a debate on shared space but I miss the wisdom of Hans Monderman, who died too young at the age of 62, 13 years ago. Others have carried his work forward, but it would be interesting to know how he would have dealt with today’s concerns of the blind and partially sighted in this and other instances. His guiding principle was negotiation between users in the space itself, which of course makes the solution to the organisation of space particularly challenging when some users cannot rely on visual clues. A shared space is not properly a shared space unless it can be shared by all. The space that a blind person has been used to will get altered at certain times if part of a pavement is used by, for example, a bar or restaurant. It will then be important for that space used to be geographically predictable on a day-to-day basis, the territory precisely marked out, to a few inches at the most. It is not just about there being enough space for all pedestrians, including the disabled, to negotiate or navigate without having to walk into the road.

I welcome the regulations and this opportunity to debate them. I declare my interests as set out in the register, as chair of the Proof of Age Standards Scheme board, and having chaired the House’s ad hoc committee reviewing the Licensing Act 2003. I echo some of the concerns expressed by the noble Earl, Lord Clancarty, and am very grateful to the Guide Dogs for the Blind Association briefing that he shared with me today. I absolutely share the concern expressed by my noble friend the Minister about the hit that the hospitality industry has taken, which is very well set out in paragraph 7.7 of the Explanatory Memorandum, with £8.2 billion of trade having been wiped out, the decrease in turnover which he referred to, and the reported 2,000 pubs estimated to have closed down forever.

However, I hope that my noble friend the Minister will give me—and, more importantly, the vulnerable users of pavements—an assurance this afternoon as we extend the licensing provisions in the regulations before us today. Specifically, if we are allowing only 10 days before a licence application, which I accept is a new application this time, will be agreed, what consultation will there be for particularly vulnerable pavement users in this regard? Will he put my mind at rest that it is not an issue of licence by default? There is a concern, which I hope he will address this afternoon, that there is no time for consultation in a 10-day period. Will he confirm that the original timeframe of 28 days will be reverted to when the regulations cease to have effect?

Can the Minister give me an assurance that local authorities will have regard to the Equality Act provisions and similar provisions in the issuing of licences under the regulations? I am concerned that there is no right of appeal, and I would like to understand whether, in the rush to grant the licence—and I do not know whether he has any evidence of this under the present licence system—if it was felt that street furniture was put in an inappropriate or hazardous place, that could be reviewed and the local authorities have the power to go and inspect that. I am asking for balance in the way in which the licences are issued between the rights of the pub or business to ply its trade, which we are all in support of, and the rights of more vulnerable users—visually impaired and others—to go about enjoying the pavements in the normal way.

My Lords, the café society that Covid has generated is to be welcomed. It brings colour and life to our streets, and will continue to do so, providing useful spaces for those who are not ready to ditch all Covid precautions come 19 July and would prefer to do their wining and dining outside and away from terribly crowded areas in future. Therefore, I welcome the idea of extending the speeded-up process for securing a licence that is incumbent in these regulations. However, I agree with the noble Lord, Lord Faulkner, on his regrets at the failure to insist that such eating and drinking areas be made smoke free. Why that should be the case is completely beyond me, since we all know that passive smoking causes great dangers. If we want these areas to be family friendly—or, indeed, friendly at all—having them filled with smoke is simply not sensible, and the Government have the power to stop it.

We know the difficulties that hospitality businesses have faced during the pandemic, and anything that can be done to enable them to do more business and build back their finances is to be welcomed, but that should not entail bringing in unnecessary smoking. However, there are specifics related to the licences which I wonder whether the Minister would look at. Several aspects of pavement licences concern me. First, while we are allowing smoking, there continues to be a ban on fire pits and gas heaters, which seems illogical to say the least. One can wander along the streets in skiing resorts, for instance, where fire pits are perfectly common, and they do not seem to cause any great trouble. I also wonder whether it is right that the Metropolitan Police should continue to insist that management teams in restaurants and pubs with outside seating undergo counterterrorism training. Is that really necessary? The risks seem very slender.

Finally, can the Minister reassure me that local authorities are not using pavement licences, which are reasonably priced at £100, as a means of generating other income by unreasonably charging for excess refuse, street cleaning and other things that they judge to be a nuisance? There have been suggestions of restaurants and pubs being charged excessively for that sort of thing.

My Lords, I want to flag three areas where the Government should look further at these regulations than merely extending them to 2022.

The first is the timeframe placed on local authorities to process, publicise and determine licences: a mere 10 working days. This has been incredibly onerous on council resources and should be extended to between 15 and 25 working days. With businesses shortly to reopen without restrictions, it is only fair to offer more time to councils and residents.

The second aspect is the cost of a licence, which has been set at a maximum of £100. I gather that most councils have charged this in full. For uncontested licences, it may cover their administrative costs, but it does not if an application is contested and senior officers and licensing teams need to be involved. Kensington and Chelsea Council told me that it would usually charge £512 for a table and chairs licence under the previous regime, which was calculated based on cost recovery. While the process has been streamlined under these regulations, it has not cut councils’ costs by 80%. Effectively, councils are struggling with this loss of income. In some cases, there is a double loss of income where a licence is granted for tables and chairs in parking bays, as there is an additional loss of parking revenue. If this regime is to be extended until September 2022, councils would welcome the discretion to set higher application fees where appropriate. In addition, local authorities would often recover their monitoring costs to ensure compliance with licences, often around £300 a year per premises. The regulations make no provision for this, yet monitoring is still needed.

My third comment may be too radical for some, but it has been suggested to me that the Government might be bolder and look at a British Summer Time pavement licensing scheme to operate annually but not in the winter, or trial these regulations on a more permanent basis in the central activities zone boroughs of, say, Westminster, Camden and Kensington and Chelsea.

The new regulations are much less cumbersome than the three regimes they replace, but the work being done by Westminster City Council to make pavement licensing cost-neutral needs to be taken on board, and a longer timeframe for processing, consulting and determining pavement licences is key to helping residents feel involved.