EHJ September 2004, pages 272-274
Devolving the task of making no-smoking the norm to councils would only cause confusion and increase health inequalities. Marie-Claire Kidd discovers why a national ban on smoking in the workplace is the only way forward

The economic and philosophical arguments have, according to the smoke-free lobby, been won, and the health benefits are hardly in doubt. All that remains is to find the best way to outlaw smoking in public places in the UK. But this summer local authority and primary care trust representatives rejected what had been the race to become the UK's first smoke-free city in favour of a united front campaigning for a blanket, national ban.

Chief medical officer Sir Liam Donaldson had put the ball firmly in local authorities' court with a challenge to British cities to become the first to be smoke-free, a notion supported by health minister John Reid, public health minister Melanie Johnson and others. But in Sheffield on 22 July, a meeting of the council and primary care trust representatives closest to achieving smoke-free status in their districts pledged to work in harmony rather than in competition, agreeing that a national ban and a level playing field was the only way forward - and effectively returning the government's challenge to its doorstep.

Lack of political commitment to national legislation meant the onus had been on councils to use existing powers to enforce a local no-smoking policy. Section 2 of the Health and Safety at Work Act 1974 - which says that an employer must not harm the health of its staff - is the best weapon local authorities possess, but its clout with regard to passive smoking has yet to be tested.

Indeed, research by Smoke-free Liverpool - a consortium of representatives from Liverpool MDC, health organisations and the private sector, which aims to make the city smoke-free in 2008, the year it becomes European Capital of Culture - shows that the act could in fact be undermined by a code of practice developed by the government in 2000.

Andy Hull, head of environmental health and trading standards at Liverpool MDC, said: "The code of practice is hopelessly weak. It took the wrong tack and didn't go as far as prohibiting smoking, it's actually permissive of other solutions and shores up the ventilation argument.

"A QC has advised us it could undermine any case we brought against employers who permitted smoking as it has left them with a means of risk assessment. That's the last stated position of the government on the smoking issue. It isn't enough for me. It's an absolute scandal that people in poorly paid jobs are exposed to the biggest uncontrolled killer in the country. In Liverpool, it kills up to 100 people a year who've never smoked in their lives."

Nationally, 3 million people are exposed to second-hand smoke in the workplace, of whom about 1,000 die each year. Research also shows that far fewer young people will take up smoking if their workplace is smoke-free - around 300,000 16-year-olds start work each year, presenting a unique public health opportunity, according to Sir Liam Donaldson.

Ian Gray, CIEH policy officer for health development, described the Sheffield meeting as a turning point: "The position has been that Liverpool was likely to be first to become smoke-free because it has money to spend which it has tied to its Capital of Culture campaign in 2008," he said, "but what the delegates were saying was, 'we're not in competition with each other, what we should be doing is sharing and supporting'.

"It's a health and safety issue. All workers have rights to a safe place to work. If the government believes that second-hand tobacco smoke harms health in the workplace it has a duty to act," he said. "We want a whole movement towards being smoke-free. Everybody's view was however diligently we enforce voluntary measures, particularly in the hospitality sector, we're never going to achieve it. Another thing we don't want is adoptive powers councils can implement locally. Adoptive clean air acts were introduced in 1956 to deal with smogs and pollution, but some areas still haven't adopted them today, nearly 50 years later."

The hospitality industry is "vehemently opposed" to the idea of local authorities imposing their own bans. A British Hospitality Association spokesman said: "We would prefer a voluntary approach but if there's going to be regulation it should be at a national, not local, level. Local authority powers would just introduce a patchwork of different policies throughout the country and that would be unfair on traders."

CIEH insiders say the government's consultation, in preparation for its Choosing Health white paper, due for release this November, shows that over 70 per cent of the British public favour no-smoking becoming the norm.

But according to an Office for National Statistics survey released this July, only one fifth of people thought smoking should be prohibited in every pub. The survey, conducted last year, says that since 1996 support for smoking restrictions in restaurants had grown from 85 per cent to 87 per cent, and in other public places from 82 per cent to 90 per cent. In pubs support for restrictions grew from only 48 per cent to 56 per cent.

A spokesman for the BMA, which delivered 4,500 letters from doctors reporting their experiences of treating patients affected by passive smoking to prime minister Tony Blair said: "What we don't know is whether people who were surveyed were told designated smoking areas do not work."

Interestingly, the ONS found the proportion in favour of restrictions at work rose from 81 per cent to 86 per cent and the number of employees saying smoking was not allowed at their workplace increased from 40 per cent to 50 per cent.

The government has two possible courses of action if it is to make no smoking a national policy - it could give clarification to the Health and Safety at Work Act and instruct the HSE to implement that, or make new primary legislation to deal specifically with second-hand smoke.

Tessa Jowell, culture secretary and minister for licensing, said she wanted more smoke-free zones in eating and drinking places, but a succession of health ministers have made similar appeals for voluntary compliance, and fewer than one per cent of bars have introduced no-smoking bans. Six years ago when Ms Jowell was public health minister, she promised "tougher action" if voluntary action failed.

In June, health secretary Dr Reid famously dismissed the demand for smoke-free public places as "an obsession of the learned middle class", adding that people in "sink estates" had "very few pleasures in life, and one of them is smoking". Dr Reid, who used to smoke 60 a day until he gave up less than two years ago, said it was best to provide people with information and let them decide what to do for themselves.

Dr Reid has since suggested a phased strategy, which would see a period of public education followed by gradual introduction of smoking restrictions. The Irish government spent several years educating the public before it banned smoking in public places in March. The Norwegian government started phasing in smoking restrictions in the late 1980s, stipulating that 25 per cent of all tables in bars and restaurants must be non-smoking. Over 15 years it increased the percentage, first to 50 per cent, then 75 per cent, and finally, this June, to an outright ban.

The Local Government Association, which has been criticised by local authority representatives for not putting its weight behind the smoke-free campaign, supports the Norwegian model, but Ian Willmore, public affairs manager for Action on Smoking and Health (Ash) said: "We certainly don't think it should take 10 years here. We're not saying it has to come in on Thursday but it should be introduced with some speed."

Amid whispers that a national ban on smoking in the workplace could be included in Tony Blair's third-term election manifesto, the Labour Party's national policy forum meeting in July agreed: "In view of the clear medical evidence of the dangers of passive smoking and widespread public support for measures to reduce exposure to second-hand smoke, Labour will give serious consideration to a range of clear and enforceable measures on smoking in the workplace to protect employees and the public, including legislation for a ban".

Ian Willmore said: "This isn't perfect from our point of view, but not bad either. We want a commitment to legislation and that's edging in that direction but it's not explicit. But we understand there was some reluctance on the part of the health secretary and public health minister to go even this far."

EHO Paul Hooper heads the Health Development Agency's new tobacco control centre, which will focus on the practical issues of smoking cessation and tobacco control. He said tobacco companies were lobbying for a voluntary code at local and national level, and the industry's "front organisations", such as Air and Forest, were providing research to back up their agenda.

"The problem from the tobacco companies' point of view is that they'll lose a lot of money if people smoke less or less people take up smoking. That's why they're using every means possible to undermine the movement. If they can delay it, then they'll do that.

"Forest, Air and the Tobacco Manufacturers' Association have all sent documents to PCTs and local authority chief executives rubbishing the work that's been done to show there's support for this sort of initiative. They've got a perfect right to communicate this but the fact they're doing it now shows that they're worried. We're taking it as a compliment."

Meanwhile local authorities continue promoting awareness, leading local debate, developing partnerships and taking measures to reduce the incidence of smoking and create smoke-free public environments, and CIEH guidance advises them to continue to work towards a smoke-free zone.

Andy Hull said: "I'm pleased the HDA has set up the collaboration centre and made a fresh start on this. I think the time is absolutely right now, 85 per cent of people in Liverpool want us to do this.

"We're doing it because we're listening to what the public want and we're protecting their health, which is what we were set up to do in the first place. We won't stop working towards being smoke-free locally, but we'll also be lobbying nationally, and we're looking to the LGA to get behind us."