Smoking

The legislation

The legal provisions for what is commonly referred to as 'the smoking ban' are contained in Chapter 1 of Part 1 of the Health Act 2006 ('the Act') and in a number of different sets of Regulations. The Regulations are referred to as ‘secondary legislation’. The Regulations on smoking are made by the ‘appropriate national authority’ under powers given to the authority under the Act (which is referred to as the ‘primary legislation’).

The ‘appropriate national authority’ means the Secretary of State in England and the National Assembly in Wales. The National Assembly passed The Smoke-free Premises etc. (Wales) Regulations 2007, which came into effect at 6am on 2 April 2007, and cover a broad range of issues connected with the smoking ban. In England, the Secretary of State for Health made a number of different sets of Regulations, each covering specific matters:

• The Smoke-free (Premises and Enforcement) Regulations 2006;
• The Smokefree (Exemptions and Vehicles) Regulations 2007;
• The Smokefree (Vehicle Operators and Penalty Notices) Regulations 2007;
• The Smokefree (Signs) Regulations 2007; and
• The Smokefree (Penalties and Discounted Amounts) Regulations 2007.

The Secretary of State for Health also published The Penalties and Discounted Amounts Regulations 2007, applying to both England and Wales.

Meaning of smoking

Section 1 of the Act states that 'smoking' refers to 'smoking tobacco, or anything which contains tobacco, or smoking any other substance' and includes 'being in possession of lit tobacco, or anything lit which contains tobacco, or being in possession of any other lit substance in a form which could be smoked'. This means that smoking includes the smoking of cigarettes, pipes, cigars, herbal cigarettes and waterpipes, often known as hookah or shisha pipes.

Smoke-free premises

The Act introduced laws to ban smoking in certain premises, places and vehicles. It requires ‘enclosed and substantially enclosed’ premises open to the public to be smoke free – section 2. Under its power to make Regulations, the appropriate national authority has a discretion to make a public place which is not covered by section 2 into a smoke free place anyway. It may also use Regulations to provide for exemptions from the requirement to be smoke free.

The Act states that premises are to be smoke free if they are 'open to the public'. This more or less means what it says - any premises to which a member of public has access. If the premises are used as a place of work, they must be smoke free all of the time. Otherwise, they only have to be smoke free when open to the public. The Act’s definition of a place of work is basically any premises used by more than one worker (even if different workers work there at different times of day) or where members of the public might attend to receive goods or services.

Premises are to be smoke free only in those areas which are ‘enclosed’ or ‘substantially enclosed’ and the Act allows the appropriate national authority to specify in Regulations what these terms mean. Separate Regulations have been passed in England and Wales but they are very similar to each other. They state that premises are ‘enclosed’ if they have a ceiling or roof and except for doors, windows or passageways, are wholly enclosed on a permanent or temporary basis. They are ‘substantially enclosed’ if they have a ceiling or roof but there are permanent openings in the walls which are less than half of the total areas of walls. Openings in which doors, windows or other fittings that can be shut are not permanent openings. A roof is a roof even if it can be removed – for example, a canvas awning. Tents and marquees are also treated as premises.

Any place that is not smoke free under section 2 can still be required to be smoke free if the appropriate national authority decides to makes Regulations. These places do not have to be enclosed or substantially enclosed but can only be made smoke free if the national authority believes there is a significant risk that if the premises were not designated as being smoke free, people there would be exposed to significant quantities of smoke. Examples of such places might be sports stadia and bus shelters.

Exemptions and no smoking signs

Exemptions

Section 3 of the Act gives the appropriate national authority a discretion to make Regulations that provide for certain exemptions from smoking ban. The Act suggests exempt premises should include hotels, care homes, and prisons and other places where a person may be detained. Separate Regulations have been made for Wales and for England but in each case, the exemptions are provided not for particular premises but for designated ‘smoking rooms or bedrooms’ in specified premises.

The Wales and England Regulations each state particular types of premises which can be exempt from having to be smoke free. These include hotels, guesthouses, inns, hostels, members' clubs, care homes, hospices, prisons and certain research and testing facilities. The owners or managers of these premises are allowed to provide designated smoking rooms but are not obliged to do this.

As for mental health facilities, there is a striking difference between Wales and England. The Welsh Regulations provide for a permanent exemption to mental health units. This means that, unless the National Assembly changes the regulations, the managers of a hospital are allowed to provide designated smoking rooms (though not obliged to do so). But in England, the Regulations grant only a temporary exemption from mental units 1^st July 2008, a year after implementation of the Act in England.

The Westminster Government argued that the decision to exclude English mental health units from permanent exemption was down to its commitment to make the NHS smoke free and its wish to ensure that such a commitment includes mental health patients. It suggested that as mental health patients face health inequalities there should be more concern about their physical needs as well.

No-smoking signs

The Act states that any person who occupies or manages smoke free premises must ensure that no-smoking signs are displayed. The law also covers what the signs must look like and how they must be displayed.

Offences and human rights issues

Offences

A number of offences are created under the Act for failure to comply with the new laws. These include:

• smoking in smoke free premises or vehicles
• those who control or manage smoke free premises or vehicles permitting others to smoke in the premises or vehicle
• people who occupy or manage smoke free premises or vehicles not displaying the required no-smoking signs at the premises or within the vehicle, and
• obstructing an ‘enforcement officer’ acting in the exercise of his or her functions under the Act.

The penalty for an offence is a fine and the level of fine for each offence is set out in The Smoke-free (Penalties and Discounted Amounts) Regulations 2007 which cover both England and Wales. A fixed penalty can be given for an alleged offence of smoking in a smoke free place. The fixed penalty is £50 with a discounted amount (for paying on time) of £30. The maximum fine on conviction for an offence of smoking in a smoke free place is currently £200. The maximum fine on conviction for failing to prevent smoking in a smoke free place is currently £2500.

Human rights issues

There are potential human rights issues arising from the new legislation especially for people who are detained against their will. Article 8 of the European Convention on Human Rights provides that a person is entitled to a private life without unjust interference from public authorities. Public authorities should not interfere with a person’s private life unless they have good reasons for doing so and if those reasons are not justified then there may be recourse in law.

Prior to implementation of the legislation in England, a patient at Rampton high security hospital issued proceedings in which he is challenging the hospital's smoking policy. Terrence Grimwood is arguing that the refusal to permit cigarettes in the hospital's buildings or grounds breaches article 8. He claims that since some people will be in Rampton for the rest of their lives and the average stay is seven or eight years, the hospital is the patients' home. Mr Grimwood is also challenging the legality of the Regulations, saying they discriminate against detained psychiatric patients.

Further advice and information

This legal briefing relates only to the law of England and Wales in force at the date of writing. It provides a brief outline of the law and is no substitute for detailed advice.

For further information about the work of Mind's legal unit, please refer to our Introduction to the Legal Unit.

For more general information about mental health problems, you can ring the Mind infoline on 0300 123 3393. For legal queries, you can ring the Legal advice service on 0300 466 6463.  The lines are open Monday to Friday 9.00am to 6.00pm.

Published 2007
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Mind Legal Unit is grateful to Erica Carroll, who worked in the Unit for a period during 2007, for her research on the smoking ban.