Sad Irish eyes

As a smoking ban moves closer in the rest of the British Isles, Dublin solicitor Joe Kelly documents the full impact of the ban introduced in Ireland last year.

On March 29 2004, Ireland became the first country in the world to implement a blanket smoking ban for all enclosed workplaces. Despite vehement protests and extensive lobbying by various organisations, including the Irish Hospitality Industry Alliance, the Licensed Vintners' Association (LVA) and the Vintners' Federation of Ireland (VFI), the minister for health and children proceeded with the ban.

One year on, the effects are visible across the country: from a proliferation of open-air "beer gardens" to the now-familiar groups of smokers congregating outside the doors of pubs and clubs. The ban is clearly being enforced by publicans - but it appears that sales are down as a result.

A year-on-year drop in alcohol consumption in on-licensed premises of approximately two-and-a-half per cent may not be completely attributable to the smoking ban - but it is unlikely to be mere coincidence either.

The ban is born​

The smoking ban had its roots in the report on the effects of second-hand smoke in the workplace, published by the Irish Department of Health and Safety in 2002. Finding that smoking has serious health implications for employees who are frequently in its presence, the report suggested legislation banning it in any place of work.

Using his authority under the Public Health (Tobacco) Acts 2002 to 2004, the minister for health and children activated the section of that legislation which deems it an offence for an individual to smoke a tobacco product in a "place of work" or other "specified place" last March.

Under the legislation, "place of work" includes any place where work is carried out, including temporary and moveable structures and vehicles, vessels and aircraft. "Specified place" overlaps somewhat with the definition of "place of work" and includes, among others, licensed premises, theatres, cinemas and registered clubs.

However, there are some significant exceptions. Smoking can take place in the following:

• Open air locations, where more than 50 per cent of the perimeter is entirely unenclosed (hence the popularity of open-air beer gardens)
• Guest bedrooms in hotels and B&Bs
• Nursing homes and hospices
• Prisons
• Private dwellings.

Smoking in a place of work or other specified place is a criminal offence, punishable by a fine of up to £3,000.

Occupiers, managers and other persons in charge of workplaces or other specified places where smoking occurs are also deemed to be guilty of an offence, and they too can be liable for a fine of up to £3,000.

Perhaps more significantly, evidence of breaching the smoking ban can be used as a ground for objecting to the renewal of a liquor licence, and can ultimately lead to the loss of the licence.

One year on​

Almost immediately after the implementation of the smoking ban, publicans reported a decline in sales and there were knock-on reductions in staff. Last July the LVA reported that Dublin pub sales were down by up to 16 per cent since the implementation of the ban, and that pub employment levels were down by 14 per cent, resulting in the loss of 2,000 jobs in the Dublin area.

An LVA survey reported that 63 per cent of Dublin publicans described the smoking ban as having a "major impact" on their business.

Despite the apparent decline in sales, statistics have consistently shown that compliance rates with the ban have been high across the country. In June 2004, the Office of Tobacco Control (OTC) reported 97 per cent overall compliance with the smoking ban, and a 96 per cent compliance rate in pubs. Attempts to flout the ban, such as a highly publicised protest by two publicans in Galway last July, were crushed by a government threat of immediate action. Unsurprisingly, the protest collapsed.

On the first anniversary of the advent of the smoking ban, the OTC released a report on its progress. It found that from 34,957 inspections carried out in hospitality workplaces (restaurants, hotels and licensed premises), compliance levels averaged 94 per cent. Licensed premises averaged 90 per cent compliance while restaurants averaged 99 per cent.

Here to stay​

Despite the initial controversy it sparked, the smoking ban has been accepted in Ireland with surprisingly little disagreement. Recent polls suggest that the vast majority of Irish people support the ban, including smokers. Ninety-eight per cent of people surveyed in a recent TNS/MRBI survey felt that workplaces were healthier since the ban was implemented, including 94 per cent of smokers.

An Irish Cancer Society survey found that one in 10 smokers had quit following the ban.

Despite the apparent downturn in pub sales, the smoking ban is clearly here to stay. The ban presents new challenges to Irish publicans and favours those who have adapted to the change. There is some anecdotal indication that the sales of food in pubs has increased.

Do the early experiences of the licensed trade in Ireland illustrate the effects that a smoking ban could have in other parts of the British Isles? Time will tell.

• Joe Kelly is a partner in the litigation and dispute resolution department of A&L Goodbody, Dublin, and is also head of the firm's leisure and licensing department.

Where next?​

• England:​ The Health Improvement and Protection Bill, which is expected to set out proposals for a ban on smoking in all pubs serving food before the end of 2008, is expected shortly.

Wales:​ After voting overwhelmingly for a blanket ban last week, the Welsh Assembly is expected to implement it within two years if it is given the power to do so by Westminster.

Scotland:​ The Scottish Executive has agreed to implement a blanket smoking ban from spring 2006.

Northern Ireland:​ There is a growing pressure for a blanket smoking ban, although a decision has yet to be made.

Pictured: A sign informs customers of the law at Doheny and Nesbitts pub in Baggott Street, Dublin.​