New Smoke Free Legislation - Assignment Example

One month after the introduction of the new smoke free legislation, which came into force on July 2007, Councillor Geoffrey Theobald, Chairman of the Local Authorities’ Coordinators of Regulatory Services, said: "The high level of compliance is testament not only to the businesses, landlords and members of the public who have wholeheartedly embraced the new law - but also to the council environmental health officers who have carried out their work with a light touch, an even-hand, and a commitment to advising people rather than punishing them." Department of Health (2007) Smokefree England - One month on August, 2007 Available at: http://www.smokefreeengland.co.uk/media/smokefree-england-one-month-on.html> (accessed 27th October 2007). In view of the statement above outline, briefly, the current legislation relating to the smoke free environment in England and consider whether it is effective and in line with an individual’s human rights. Government plans to tackle the issue of smoking and to try to encourage people to quit led to the introduction in July 2007 of 6 relevant pieces of legislation aimed at businesses and public places1. The Health Act 2006 gives a definitive list of all those places that are covered by the No Smoking Ban and describes in detail the definition of public places so as to give clarity to all persons that the Act applies to. Penalties for anyone in breach of the new regulation are in the form of fixed penalties notices. Payment of the fixed penalty will mean that the person issued with the notice can avoid having the conviction entered against them. If the person refuses to pay or tries to prevent the officer from carrying out his duties then a summary conviction will follow2. Where an individual is caught smoking in a smoke-free place they could receive a fixed penalty notice for £50 or a fine of up to £200 and a summary conviction. The ban on smoking applies not only to public places but also to vehicles that are used for business uses such as company cars, taxis or business vehicles including delivery vans3. Although the level of compliance is high many still feel that this is an infringement of their human rights and that the government are wrong to enforce the ban on people4. Data published by the Department of Health in August 2007 after inspections had been carried out around the UK revealed that 97% of those inspected were smoke free within 2 weeks of the legislation coming into force5. In a report published by the NHS in November 2007 they report 98% compliance and 75% of adults supporting the ban6. The Minister of State for Health, Dawn Primarolo had predicted that the level of compliance would be high based on similar results when the ban was enforced in Scotland and Ireland7. According to Ms Primarolo the high level of compliance is a testament to all those who have been involved in instigating the ban and she is convinced that the ban will make the country a healthier place to socialize and work8. The impetus behind the ban has been fuelled by cancer support groups as well as documented evidence of the harm that smoking either from direct experience or secondhand smoke can cause to individuals9. Alongside the ban all those that have been required to make their place a smoke free area have been required to erect signs to alert patrons and staff to the fact that the area is now a no smoking area10. Licensed premises have demonstrated a high usage of the new signs whereas other premises have not been as compliant. It is thought by those enforcing the regulations that the reason behind this is that these premises are unaware of the fact that the signs apply to all work premises and not just to ones to which the public have access11. Failure to display a sign can lead to a summary conviction and a fine of up to £1,000 or alternatively a fixed penalty notice for £200. In the first 2 weeks of the ban coming into force the officers enforcing the ban only had cause to issue one fixed penalty notice to an individual who refused to comply with the ban12. Within the same time scale the enforcement officers have also issued 142 written warnings to individuals and premises who have not taken the appropriate action to make their environment a smoke free place. Graham Jukes, the Chief Executive of the Chartered Institute of Environmental Health believes that the levels of compliance show an acceptance of the new legislation13. Under the new legislation Employers’ are now faced with the obligation of making their workplace a smoke free premise. The law requires employers to take all reasonable steps to ensure compliance and has provided the employer with an obligation to take disciplinary action against employees who smoke in work premises14. It is likely that the legislation will allow an employer to dismiss an employee if they are caught smoking in the workplace. In line with these obligations employers have a duty to ensure that ‘no smoking’ is prominently displayed and guidance has been given in The Smoke-free (Signs) Regulations 2007 in respect of the size and dimensions that must be complied with. Employers not displaying the signs can face charges against them. If a sign was previously in place but has been removed the employer can rely on the defence that he did not know the sign had been removed. If the employer refuses to enforce the ban employees could leave the employment and then claim for constructive dismissal. Those who fail to implement the smoking ban can be fined up to £2,500 and receive a summary conviction. The government is hoping that the new legislation will be fair and proportionate and will only be applicable for the most serious breaches of the Act. Primary responsibility for enforcement is likely to be assigned to the local authority15. Under the new legislation a few places have been given an exemption from the ban. The Smoke-free (Exemptions and Vehicles) Regulations 2007 has allowed exemptions for bedrooms in hotels and for hospices, care homes and prisons. Within hotels the exemptions are generally limited to designated rooms and therefore smokers are not necessarily free to wander around the hotel smoking. Performers are also entitled to smoke during their performance where the integrity of the performance dictates that it is appropriate16. Despite the comments from those involved in the implementation of the legislation that compliance is high and that there has been little opposition to the ban, there are many smokers that are not in favour of the legislation and feel that this is an infringement of their civil rights17. Before the enforcement of the legislation an action group named Freedom to Choose launched a campaign asking smokers to oppose the ban18. In line with their campaign the group has launched a legal challenge in the High Court. It is their contention that the ban contravenes the European Convention on Human Rights. A judge will be asked to decide whether the group has a case to answer which should be allowed to go to a full trial. Petitioning for a judicial review of the new legislation the action group has submitted a petition signed by all those who are opposed to the ban to the Royal Courts of Justice19. In bringing their case before the court the group are relying on Art 1 of the First Protocol of the ECHR which centres on the right to peaceful enjoyment of possessions. They are also contending that the ban is a breach of the right to privacy afforded by Article 820. The group is hoping to convince the government that a total ban is not necessary and that the harm of second hand smoke can be reduced by the use of ventilation systems. The group also believes that having separate smoking areas in pubs will reduce the chances of non-smokers being harmed by secondhand smoke21. As the group is a newly formed group the legal action is being funded through public donations and public events. One of their greatest concerns is that jobs will be lost as a result of the ban22. Since the ban began several bingo halls have been forced to close due to loss of revenue. Mr Goulden Gala bingo’s chief has predicted that 200 bingo clubs could close as a result of the ban. The problem is blamed on the loss of revenue that has previously been generated during the intervals at the bingo sessions. During these intervals many play table top or cash bingo which is a faster version of the main game. Clubs have reported that as much as 45% of all the money taken at the clubs is generated during the intervals. Under gambling rules these games can only be played during the intervals which are when most of the players are now heading outside for a cigarette. The manager of Premier Bingo in Kirkcaldy Mike Lowe has reported that approximately 40% of his patrons go outside for a cigarette during the break; this loss of revenue is likely to cause more clubs to close as people opt to stay at out and play online games of bingo where they can smoke without having to leave the room. In Ireland the British Beer and Pub Association has reported a 16% drop in trade since the ban was introduced there in March 2004. A UK wide ban could lead to 75,000 job losses according to the association23. Similar problems have been recorded by pubs in Scotland since the ban in 2006. Some publicans are experiencing losses of almost £2000 per month as a direct result of the ban24. At present the test case is still waiting to be heard but the action is likely to fail as the ban on smoking is not a blanket ban and there are still going to be areas in which the smoker can smoke. Where the workplace is also the family home a partial exemption can exist. In a residential home or hospices of offshore platforms the legislation will allow smoking either in a bedroom or a designated smoking room. Employees will not be allowed to use these facilities. The usage of these areas will be restricted to residents and their guests25. On offshore platforms an exception will apply to employees due to the obvious inherent dangers of smoking outside. Workers who have to visit people in their home cannot insist that the person they are visiting should not smoke whilst they are there as the ban does not apply to the private homes of smokers. It has been suggested for those that have regular contact with smokers in their own home that agreements be reached between the visitor and the homeowner in relation to desisting from smoking whilst the visiting worker is present26. Although the ban on smoking has been effective in that most companies have complied with the ban the knock-on effect could be far more devastating in respect of job losses. Those who are fervent smokers are not going to stop smoking just because a ban is now in force. As smoking at home and in the street has been exempted from the ban the effect has just been to force smokers outside of the pubs for a cigarette or they have gone home rather than frequent a pub. Those that go outside are more likely to decide to leave the pub early especially if the weather is particularly bad. Although not many would leave for this reason the loss of trade for the pub for those that do leave early could cause the pubs to reduce the number of staff needed on duty27. References Awareness , attitudes and compliance three months after the commencement of smokefree legislation – a summary report, 2 November 2007, NHS, Have you been defying the smoking ban?, Telegraph, Monday, July 02, 2007 Health benefits justify smoking ban job losses, Personnel Today, 18 January 2005 Smoke ban plan could breach human rights, MPs warn, Guardian, Wednesday January 11, 2006 Smoking ban is killing our trade, Fife Trade, 03 August 2006 Support growing for full workplace smoking ban, Manchester Evening News, 30/12/2005 http://www.freedom2choose.org.uk/ http://www.dh.gov.uk/en/Policyandguidance/Healthandsocialcaretopics/Tobacco/DH _076227 http://news.bbc.co.uk/1/hi/health/6929605.stm http://www.dac.co.uk/whatsnew/uploads/employmentbulletinjune2007.pdf http://www.smokefreeengland.co.uk/media/smokefree-england-one-month-on.html http://news.bbc.co.uk/1/hi/uk/6252016.stm; http://www.freedom2choose.org.uk/ http://www.morningadvertiser.co.uk/news_detail.aspx?articleid=45667&categoryid=9 001 http://www.freedom2choose.org.uk/ http://news.bbc.co.uk/1/hi/business/4016645.stm http://news.bbc.co.uk/1/hi/business/4016645.stm http://www.smokefreeengland.co.uk/faq/exemptions.html http://www.smokefreeengland.co.uk/files/guidance-for-people-working-in-the- home.pdf http://news.bbc.co.uk/1/hi/business/6665391.stm Legislation Health Act 2006 s9 Human Rights Act 1998 The Smoke-free (Exemptions and Vehicles) Regulations 2007 The Smoke-free (Penalties and Discounted Amounts) Regulations 2007 The Smoke-free (Premises and Enforcement) Regulations 2006 The Smoke-free (Signs) Regulations 2007 The Smoke-free (Vehicle Operators and Penalty Notices) Regulations 2007 Read More