Legal Q&A: potential smoking ban in beer gardens

Q:       What is the law around where customers can smoke under a shelter?  I know it cannot be fully enclosed, but what are the legal requirements to make a smoking shelter legal?​

A:        It is illegal to smoke in all public “enclosed” or “substantially enclosed” areas.  To ensure that a shelter is not “enclosed” or “substantially enclosed” the gaps in the “walls” must be at least half of the area of the shelter’s perimeter. 

Should you leave the roof off then the shelter could be entirely enclosed by walls, but if there is a roof on the shelter then more than half of the area around it forming the walls or perimeter must be open to the air.  You cannot include doors or windows that shut as being part of the area open to the air.

Q:       Do I have to display no smoking signs?​

A:        One smoking sign must be displayed in the public trading area, with the size and position of the notice at your discretion.  No smoking signs in Wales must be in both English and Welsh.

Q:       Do the restrictions on smoking also apply to e-cigarettes?​

A:        The laws around where customers can and cannot smoke do not apply to e-cigarettes, and this is entirely down to the choice of the pub whether you allow e-cigarettes.

Q:       Can I simply stop people from smoking in my pub, and ask them to leave if they do?​

A:        Yes, it is entirely in your power to insist upon your pub being completely smoke free, and if customers decide to ignore that request then you are quite within your rights to ask them to leave.

Q:       I have permission to put tables and chairs outside from my Local Authority, do I need to make sure part of that area is set aside for non-smokers?​

A:        The Business and Planning Act 2020, which was introduced to enable greater use of outdoor areas on the public highway imposed a “smoke-free seating condition” so that the holders of all Pavement Licences granted by local authorities must make reasonable provision for seating where smoking is not permitted. 

Therefore, there should be areas clearly marked as smoking and non-smoking areas, and it would not be sensible to put ashtrays on furniture in a designated no-smoking area.  Licence holders should provide a minimum of 2 metres distance between the non-smoking and smoking areas wherever possible.

• Jonathan Smith​ is a partner at Poppleston Allen​​​