The licensed trade: going up in smoke?

Sunday 26 March saw the coming into force of the Smoking, Health and Social Care (Scotland) Act 2005. This bans smoking in virtually all workplaces. While it will affect all businesses to a greater or lesser degree, the licensed trade is expected to be the sector most affected, and its members face an uncertain future. Addressing the Scottish Licensed Trade Association conference in Fife, Tadg O’Sullivan of the Vintners’ Federation in Ireland, where a similar ban was introduced two years ago, claimed that the ban had led to 600 closures and the loss of 12,000 jobs.

As ever, it is dangerous to rely on the press for legal advice. Many solicitors will be asked for clarification of the legal position, as the official guidance has been criticised for being inadequate.

Exemptions for healthcare!

In summary, the law will ban smoking in most public places which are wholly or substantially enclosed. It does not apply to residential accommodation or to private vehicles. With unintended irony, most of the Act’s exemptions relate to medical establishments, including adult hospices, adult care homes and designated rooms in psychiatric hospitals. Other exemptions include specified areas of offshore installations, and designated detention or interview rooms.

Some hotel keepers had their hopes raised by the inclusion of designated hotel bedrooms among the exemptions. This, however, is a fairly restricted exception. The room itself must be set apart exclusively for the sleeping accommodation of travellers. In other words you cannot simply set aside one of your bedrooms as a smokers’ lounge. It requires to be clearly marked as a room in which smoking is permitted and must have a ventilation system which does not ventilate into non-smoking parts of the premises.

How enclosed is enclosed?

Issues have arisen over the use of the phrase “substantially enclosed”. This was introduced into the bill at a very late stage, and caused consternation among those in the business of providing outdoor shelters. Assuming the premises have a roof, they are substantially enclosed if the open area is less than one half of the wall area. Thus a shelter with walls on three sides (such as a traditional bus shelter) is substantially enclosed. It should be noted that one has to consider any other structures serving the purposes of walls. A structure erected against a gable wall, fence or hedge could well fall foul of the legislation. Even if the proposed structure complies with the 2005 Act, other considerations will apply. It may well require planning permission and a building warrant. If it is part of licensed premises, licensing board consent will be required, and factors such as public nuisance may come into consideration.

In no-smoking premises offences include smoking and permitting others to smoke. Remarkably, failing to display warning signs – not just in the premises, but where they may be read by anyone approaching the premises – is also an offence. It is intended that the law will be policed by environmental health officers. Some police forces have gone on record to say that they have more pressing things to do with their time. Failure to give one’s name and address to an enforcement officer is also an offence.

The one person business

The law will apply to all business premises. This will apply even if there is only one occupant of those premises, even if he or she is a smoker. Long distance lorry drivers will have to stub out their cigarettes in their cabs when coming north. Trawlers will be no-smoking areas until out of UK waters. One wonders if the enforcement officers have suitable resources to check this. The Special Fag Service, perhaps?

For some time there have been murmurs of a possible challenge under EHCR. A registered club in Edinburgh and a national hotel chain have been brave enough to take on the Executive, and a judicial review is underway. I could envisage a successful challenge in the case of the one man business, whose owner can’t smoke in his own workshop, but I cannot see the ban being overturned in the case of places which are actually frequented by non-smokers. All the literature stresses that concerns about passive smoking are what have brought this to the statute book; however, I await the outcome with interest.

For more information generally, log on to www.clearingtheair.scotland.com.

Tom Johnston,Young & Partners LLP, Dunfermline