Legal implications if outdoor smoking ban came into force

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Leaked documents seen by The Sun​ ​revealed the indoor smoking ban could be extended to pub gardens, outside of nightclubs, restaurant terraces, outside sports stadiums, children’s parks, pavements by universities and hospitals as well as shisha bars.

According to The Sun​, the plans mentioned vape-free areas but it was not clear if the ban would include electronic cigarettes. 

Concerns were sparked​ from across the sector on the impact this could have on pubs should be ban come into force.

Licensing solicitors Poppleston Allen warned if the ban became law, there could be ‘significant implications’ for the sector.

Policy amendments

Associate solicitor Suraj Desor highlighted how currently, licensees have a common law right to ban smoking in their outside areas as this is at their discretion.

He stated operators would need to adapt their smoking and management policies to prevent customers smoking in outside areas.

This could mean additional staff monitoring as well as their existing obligations as well as no smoking signage within beer gardens.

Desor questioned where customers would go to smoke if it is not permitted in the beer garden, suggesting it could mean they go to the street outside, which could be near local resident’s houses or flats.

This that could open up a can of worms with complaints from the residents about noise generated by smokers and smoke entering properties through open windows, combined with the possibility of formal enforcement action against licensees in areas outside of their control, Desor outlined.

Operational adjustments

Furthermore, it could also mean customers go in and out of the premises more frequently to smoke – something that could result in operation adjustments when it comes to monitoring or searching.

It could particularly be the case if the licence premises has a condition that customers can’t take drinks off the premises or where the licence has a last entry and it is not caveated to permit an exception for existing customers who have gone outside to smoke and then re-enter the venue.

Moreover, the licensing specialist said the ban could mean crowds congregate at the last moment before entering pubs for one last cigarette, which could lead to issues of nuisance or public safety.

Desor said the devil will be in the detail as to how the restrictions are implemented and called for any proposal to be thought through very carefully about the impact on hospitality businesses from an economic and operational point of view.

He also questioned whether the potential ban would achieve its aim of making the nation smoke free or if it would relocate smoking elsewhere such as on streets and in homes.