Essential Info: Scottish Smoking Ban
Research shows that more than 13,000 people in Scotland die every year from the effects of smoking and within that number around 1,000 deaths could be attributed to passive smoking, that is breathing in other people’s tobacco smoke. This is also known as environmental tobacco smoke (ETS) or second-hand smoke.
The Smoking, Health and Social Care (Scotland) Bill was introduced to Parliament on December 17, 2004, formally proposing that smoking should be banned in enclosed public places such as workplaces, pubs and restaurants.
The Bill was approved by Parliament on June 30, 2005 and came into force on March 26, 2006.
When did the ban come into effect?
6am on Sunday March 26, 2006.
What is the aim of the new law?
The law aims to protect the general public from the harmful effects of passive smoking. Breathing other people's smoke is called passive, involuntary or second-hand smoking. The non-smoker breathes 'sidestream' smoke from the burning tip of the cigarette and 'mainstream' smoke that has been inhaled and then exhaled by the smoker. Second-hand smoke (SHS) is a major source of indoor air pollution.
What does the law do?
The new law bans smoking in "no-smoking premises", by:
- creating an offence of permitting others to smoke in no-smoking premises;
- creating an offence of smoking in no-smoking premises;
- creating an offence of failing to display warning notices in no-smoking premises;
- setting out the powers of enforcement officers to enter no-smoking premises; and
- creating an offence of failing without reasonable cause to give one's name and address on request by an enforcement officer.
What do you mean by 'no-smoking premises'?
No-smoking premises generally fall into one of these four categories:
- to which the public or a section of the public has access;
- which are being used wholly or mainly as a place of work by persons who are employees;
- which are being used by and for the purposes of a club or other unincorporated association; or
- which are being used wholly or mainly for the provision of education, health or care services.
Are there any exemptions to the law?
Only a few exemptions to the law have been made, mainly on humanitarian grounds. The exemptions are residential accommodation, designated rooms in adult care homes, adult hospices, designated rooms in psychiatric hospitals and units, designated hotel bedrooms, designated detention or interview rooms, designated rooms in offender accommodation premises, offshore installations, private vehicles, certain laboratory rooms, submarines and refuelling vessels. Nothing in the new law, however, obliges an employer or manager of exempted premises to permit smoking or to provide a smoking area.
What do I do if someone ignores the ban and smokes on my premises?
You will be expected to take all reasonable measures, outlined above to ensure that the person stops smoking. If he/she refuses, implement your normal procedure for anti-social/illegal behaviour in the premises. In all cases where physical violence or intimidation is threatened or encountered, seek the assistance of the police.
Do I have to provide an outside smoking area for staff?
No. Nothing in the new law obliges an employer or manager of no-smoking premises, or exempted premises, to permit smoking or to provide a smoking area.
Who will enforce the law?
Environmental Health Officers have the power to enter all 'no-smoking premises' in order to establish that the smoke-free legislation is being enforced in accordance with the law. Environmental Health Officers can also give out fixed penalty notices to people whom they believe are committing, or have committed, an offence under the legislation.
What penalties are there for those breaking the law?
Those in control of no-smoking premises could be liable to a fixed penalty fine of £200 if they do not take reasonable action to prevent someone smoking on the premises, or if they do not provide adequate No Smoking signs. Individuals who smoke in no-smoking premises will be laible to a fixed penalty fine of £50. Refusal to pay or failure to pay may result in prosecution and a fine of up to £2,500.
Will fixed penalty notices be applied at the time of the offence, or at a later date?
That will be up to the enforcement officers. The aim will be to be non-confrontational.
What happens if people make false complaints to the compliance line?
Environmental Health Officers (EHOs) have considerable experience of handling complaints on a wide range of issues and will use their professional judgement in all instances. All valid complaints will be followed up by EHOs, who will decide on the appropriate level of enforcement action to be taken. If employers can demonstrate that they have taken all reasonable precautions to comply with the law, they have nothing to fear from bogus calls.
Exemptions
Places permitted exemptions under the legislation can be found in Schedule 2 to the smoking regulations. The exemptions are mainly restricted to a 'Designated room' for smoking. 'Designated room' means a room which –
- (a) has beeen designated by the person having the management or control of the no-smoking premises in question as being a room in which smoking is permitted;
- (b) has a ceiling and, except for doors and windows, is completely enclosed on all sides by solid floor-to-ceiling walls;
- (c) has a ventilation system that does not ventilate into any other part of the no-smoking premises in question (except any other designated rooms); and
- (d) is clearly marked as a room in which smoking is permitted.
Hotels, bed and breakfasts etc.
Hotels, boarding houses, guest houses, bed and breakfasts, inns and hostels which have two or more bedrooms set apart for the sleeping accommodation of guests are covered by the new law. However, as a proprietor you will have the ability to designate one or more bedrooms where the occupants can smoke. The designated room should have a ventilation system which does not ventilate into any other part of the no-smoking premises and should be clearly marked as a room in which smoking is permitted. You are not, however, required to designate any rooms for smokers, if you do not wish to do so. Communal areas of your hotel will require to be smoke-free.
Self-catering accommodation
Not caught by the smoke-free law.
Private clubs, e.g. rugby clubs, snooker clubs, golf clubs, working men's clubs etc.
Premises which are being used by and for the purposes of a club or other unincorporated association, and which are wholly or substantially enclosed, are affected by the new law. Members and staff of private clubs deserve the same protection from the health effects of second-hand smoke as much as anyone else.
Pubs
Caught by the smoke-free law. Some publicans are concerned at what will happen if they cannot stop someone smoking in their pub. However, the vast majority of the population are law abiding citizens and we envisage high levels of self-compliance. The reasonable measures which you will be required to take are outlined above. If you take all reasonable measures to prevent smoking and the customer will not extinguish his or her cigarette or leave the premises, you will not be liable under the legislation. There will also be a national call-line where you can report the incident.
What about a marquee?
The definition of premises includes any tent, marquee or stall. They would therefore be caught by the legislation, if wholly or substantially enclosed.
Am I required to provide stubbing out bins outside my premises?
No, but you may wish to do so to prevent litter. If so, you will need to seek advice from your local planning department as planning or building consent may be required.
What about bus shelters?
Councils and transport operators are required to comply with the law, like all other businesses. If bus shelters are 'wholly or substantially enclosed', then they must display the appropriate signage.
People working from home
Not caught by the smoke-free law.
People working in other peoples' homes
Peoples' homes are not caught by the new legislation. However, it is recognised that there are instances where people have to visit a residential property to do their job. The guidance for local authorities, NHS organisations and care service providers offers practical advice on how to reduce staff exposure to second hand smoke in these circumstances. For example, workers have the right to ask, not tell, someone not to smoke when they are providing a service to them in their own home. We are confident that those receiving treatment will respect that.
Sports stadia
Due to the variation in the design of stadia in relation to the seating or standing area of the ground, some stadia may be substantially enclosed while some are not. We would suggest that stadia owners take their own legal advice on whether their stadium is caught by the legislation as well as talking to the enforcement officers from their local authority. All wholly or substantially enclosed areas within the stadia complex will require to be smoke-free.
Theatres and broadcasting or film studios
Theatres and broadcasting/film studios will be no-smoking premises under the law, so it will be an offence to smoke in them, including on-stage, from 26 March. Those performing in and attending theatrical performances have the same right to protection from the harmful effects of second-hand smoke as others. It should be noted that the law applies to any product which can be smoked, so the smoking of herbal cigarettes is also prohibited. For those theatrical or film performances which require to protray smoking, other artifical products will need to be used.
Are vehicles caught by the smoke-free law?
All cars, whether used for business or private purposes, are exempt from the law, unless they are being used as a private taxi. So company cars will not be caught. All other vehicles, i.e. vans and lorries, used primarily for business purposes and any public transportation vehicles will be affected by the new law.
What if the driver is on his/her own in the van/lorry cab?
Vehicles in which one or more persons use for work are caught by the new law.
What about lorries and vans travelling to Scotland from England and other countries?
The law applies to no-smoking vehicles travelling in Scotland, irrespective of their origin, and the required no-smoking signage should be displayed. Articles and features have been placed in relevant trade magazines to inform transport operators of the change in the law in Scotland.
Public transport and public transport facilities: buses, taxis, trains
All public transport must comply with the smoke-free law. This includes when the driver is in the cab on his own. Public transport facilities like bus stations and train stations should also be 'no smoking' premises, if they are wholly or substantially enclosed. Bus shelters are also caught by the smoke-free law and should display the appropriate signage if they are wholly or substantially enclosed.
Planes and airports
Aeroplanes do not come within the scope of the legislation. They are currently 'no smoking' premises under aviation law. Airports in Scotland, however, now come within the scope of the law and should be completely smoke-free, if wholly or substantially enclosed.
Vessels and offshore installations
The smoking legislation will apply to certain vessels covered by the Merchant Shipping Act 1995. See below.
- Pleasure craft/ floating bars and restaurants
From 26 March 2006 smoking on these vessels will be illegal if they operate in Scottish waters, or travel between Scottish ports. - Ferries
Domestic ferries will be subject to the Scottish smoke-free law e.g. those that ply between the mainland and islands; but not those that ply between Scotland and other countries, including Northern Ireland. - Cruise liners
International liners cruising in Scottish waters or docking in Scottish ports will not be subject to the smoke-free law. - Fishing boats
The legislation does not extend to fishing vessels because of the health and safety risks on board these vessels. - Offshore installations
Law applies to offshore installations within Scottish waters, but they are permitted an exemption for designated room/s on board. - Supply vessels to oil rigs Will not be caught by the smoke-free legislation, irrespective of whether they are operating within Scotland's 12 mile limit or beyond.
Source: www.clearingtheairscotland.com [04-06-2006]
