Thursday 21 May 2009

Smoke, Mirrors, And Righteous Wriggling

There is a fantastic example of righteous blind-siding on The Publican site. Let's pick it apart piece by piece.

Licensees been warned they could face hefty fines if they follow in the path of a pub that allowed customers to light-up as part of a ‘research project’.

Kerry Fenton opened a smoke room in her pub the Cutting Edge in Worsbrough, South Yorkshire, after being told a legal loophole allows some pubs to use rooms as designated research centres.

So far, so good. It is true that pubs 'could' face hefty fines. Only 'could', of course - though it is worth noting that the pub in question didn't receive any fine whatsoever. Those not familiar with the case might like to read this for background before reading the other ill-informed nonsense presented in (not by) The Publican.

And Federation of Licensed Victuallers Associations chief executive Tony Payne said other pubs should beware of taking part in similar projects.

“I would warn licensees against this because they could end up being fined,” he said.

“This lady has had to withdraw it because of the legality and it could be considerably expensive for anyone else who does it.”

I wouldn't expect anything else from those entrusted with protecting pubs. They are experts in the practice of running away very swiftly in the face of a threat to their industry. They bravely fled when threatened by a few fake charities prior to July 1st 2007, and are still showing no sign of any balls. It's why pubs are being further hammered by this government with nothing but a bunch of backward cowards to protect them.

The above rubbish from Tony Payne is a perfect example. 'The lady' did not withdraw because of the legality, as it wasn't tested. Licensees 'could' end up being fined, but only after due process. They would be entitled to test the law in court first. Why are the LVA pouring cold water on such a case which could help their members?

I reckon it's cos they is stupid.

However Kerry is adamant that if she had been running a freehouse she would have carried on with the scheme.

Of course she would have. She was stopped not by Barnsley Council, despite the worldwide attention, but by her brewery.

Now answer me this. If the council were so confident with their right to take action in this instance, where is the court case? Where is the fine?

Just as in the G20 sleight of hand, the same methods occur here. The simple reason why Barnsley did not push for punitive measures despite video evidence which would, if they are so certain, lead to an open and shut case, is that they couldn't find anything in the Health Act to say that the landlady had done anything wrong.

However a Department of Health spokesperson disagreed: "Smokefree legislation does set out an exemption for bona fide research and testing facilities that may have a designated room that is not smokefree, provided specific criteria are met."

OK. I get what you are saying, so let's have a look at the criteria.

(3) In this regulation a “designated room” means a room which—

(a) has been designated in writing by the person in charge of the research or testing facility in which the room is situated as being a room in which smoking is permitted for research or tests specified in paragraph (2) and is a room for the use only of the persons who are required to supervise or participate in the research or tests;


(b) has a ceiling and, except for doors and windows, is completely enclosed on all sides by solid, floor-to-ceiling walls;


(c) does not have a ventilation system that ventilates into any other part of the premises or other premises (except any other designated rooms);


(d) does not have any door that opens onto smoke-free premises which is not mechanically closed immediately after use;


(e) is clearly marked as a room in which smoking is permitted.


According to the letter of the law, it is a research centre.

Sadly, the DoH spokesman then wanders into the realms of righteous wriggling.

"Simply renaming a pub would not appear to satisfy the requirements under the law.”

Err ... no. The law is exactly as stated above. It's on your bloody web-site for crying out loud, don't you read it? The requirements have been duly met. Please point out which part says that the research centre cannot be in a pub.

It gets better.

He added it was down to council’s to enforce the legislation and in this case Barnsley Council ruled that “clearly the smoking research room is in breach of non-smoking legislation.”

100% correct that is up to Barnsley Council to enforce the legislation. But they didn't. Because they couldn't. They may have ruled that it wasn't a research centre but it is by no means 'clearly' so from the wording of the law. They would have had to take it to a court to prove as such.

No amount of lies from some DoH civil servant changes that.

In both cases of pubs embarking on this approach to try to rescue their business, it was the brewery, and not the council, who stopped them. The exemption is still 'live' and certainly not covered adequately by the Health Act.

A challenge offered by a freehouse would be extremely interesting. There wouldn't be an easy way out for the council concerned. They would either have to turn a blind eye, or commit resources to an action that their own legal department would probably warn them against.

As a postscript, it's worth reminding you of the mendacious reasoning that was given for the free vote in the troughing Palace of Westmonster. To tackle the sticky problem that pub-goers enter a smokey environment at their own behest, it was couched as being to protect bar workers. Again, the Cutting Edge pub passes this test with flying colours. It's just not enough for those who don't like even hearing about people doing something legal of which they, personally, disapprove. All must bow down to the God of socialist maternalism.

After all, who wants to live in a country that allows this?

“Customers absolutely loved it. People started coming to the pub again and socialising together as a community, especially the older generation.”

That sort of thing just doesn't belong in Labour Britain, does it?


Anonymous said...

There was nothing wrong with the smoking research centre.

People chose to go there only if they wished.

Non-smokers were also provided for - no arguement there.

Takings were up - more jobs and tax.

Let's face it - Labour obviously do NOT want to get this country working again. There are hundreds of thousands of jobs in the hospitality sector - a simple amendment to the ban to cater for everyone would safeguard the majority of them.

Instead, they listen to quangos rather then their citizens.

Mind you, the citizens will have the last say, as it is the citizens that will refuse to vote them in for a long, long time after the damage they've caused economically and socially to our communities.

Anonymous said...

Why haven't any freeholders created a research centre.

Showing their cowardice like they did when the ban was introduced, like lambs to the slaughter.
Publicans deserve what they have got.

Dick Puddlecote said...

Why haven't any freeholders created a research centre.As I understand it, there are two freehouses doing just that. One in Hampshire and one in Sussex. The councils won't touch them. :-)

Eclipse said...

I left a comment on the publican site pretty much to this affect.

Amazing! it hasn't even shown up!


Unknown said...

This experiment may have been short lived and a lot of publicans may shirk away from doing the same for fear of persecution but it did show glaringly that PUBS NEED SMOKERS TO SURVIVE and it stamps out firmly the idea that non smokers would/could fill the vacum left by the Smoking Ban Experiment!

DAVID said...

Perhaps air filtration/ventilation manufacturers would like to test equipment in an authentic environment?

marley said...

Of course some real research into this would not be welcome by the fakirs from ASH et al. It might mean the truth becoming exposed and upsetting the lying scheming bigots who wrought this ban upon us. Also the dimwitted in HMG who fell for those lies would have another embarrassing incident unleashed upon them - Tossers!

Unknown said...

Dick I wish both those pubs well.

Have you heard anymore about Dave West from the Hey Jo club in London...I spoke to him sometime ago and he was still allowing people to smoke in his club.

Is he still taking legal action?

PS I'm pissed off with having to create an account everytime I want to leave a comment!

Dick Puddlecote said...

Chris: Dave has ended his protest after intimidatory tactics by the police. They turned up night after night, hinting that his licence would be blocked by them should he carry on.

He has too much money for the council to allow him to go through a court, so other methods had to be found

Unknown said...

Dick, Thank you for your answer about Dave West…I did suspect as much since he had regular visits from Westminster Council and the police, not long after the ban had been in place.

Now, to your post. I’ve read this post over and over again with increasing enjoyment. You really have done your work on this. You’ve shown us elements of the Health and Safety Act with regard to smoking exemptions – and here is where I’m quite intrigued.

It’s in the drafting of the legislation, which is so loosely based, that perhaps there is not one pub or bar in the country that cannot easily fulfil the criteria requested by the law – and this is my point.

Strangely, when setting up a smoking research facility, you are not compelled to wear facemasks, any form of breathing apparatus – or even install any specialized type of ventilating system. Why ever not? Wasn’t the legislation brought in to supposedly protect the people working in an environment where people may be smoking…so where is the ‘protection’ for the people carrying out the smoking research?

In other words…would not the research facility, according to the law – be any different from any pub or bar that allowed smoking prior to the ban?

Which brings me to this. Would I be wrong in thinking that the civil servants who drafted this bill, knew this, and perhaps did not necessarily support the ban? This therefore leaves this gaping loophole (that they must have known would be spotted), which can and should be exploited.

Leaving the Pubco’s out of this, free houses would have carte blanche to punch a massive hole in the smoking ban.

I’m only sorry that Forest hasn’t run with this one. Will they leaflet free houses?

In the meantime Dick, please keep us up to date with the other two pubs and their progress.

TheFatBigot said...

I wish it were so, Mr Puddlecote, but I don't think it is.

The exemption applies to a "designated room in a research or testing facility". So the starting point is that the premises in which the designated room is contained must be a research or testing facility. A pub is not a research or testing facility, it is a pub. Even if this fundamental problem can be overcome, there is another difficulty.

The designated room is only "not smoke-free" while research or testing is being conducted. But that does not mean any research or testing, it means the specific types of research and testing listed in para 9(2) of the 2007 Regulations. Filling in a questionnaire is not included in para 9(2).

You address para 9(3) but not para 9(2). A room used for anything that could be described as "research" or "testing" might come within 9(3), but unless the type of research or testing falls within 9(2) there is no exemption from the smoking ban.

In fact it is plain from the wording of the 2007 Regulations that smoking is permitted in a "designated room" only insofar as smoking is a necessary part of the research or testing. If, for example, a test were being done on the effect of "first-hand" cigarette smoke on people with certain heart defects, those people would be permitted to smoke. But it would not allow the tester or any observer to light up simply because they happened to be in the room at the time.

Irrational and oppressive legislation usually contains no simple loopholes. So it is with the smoking ban.