LACORS Inplementation of smokefree legislation in...

Implementation of smokefreelegislation in England

Guidance for local council regulatory officers

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APPENDIX C

In offering this advice LACORS wishes tomake it clear that:

• legislation may change over time and the advice givenis based on the information available at the time theguidance was produced – it is not necessarilycomprehensive and is subject to revision in the lightof the further information;

• only the courts can interpret statutory legislation withany authority; and

• this advice is not intended to be definitive guidancenor a substitute for the relevant law and independentlegal advice should be sought where appropriate.

1 Purpose of the guidance 4

2 Background to the legislation 6

3 Overall approach and enforcement policy 8

4 Legislative requirements and offences 9

5 Enforcement agencies and authorised officers 12

6 Inspections 14

7 Application 16

8 Enforcement action 21

9 Operational procedures and data collection 26

10 Working with the media 29

Appendix 1 Evidence 30

Appendix 2 Definitions 31

Appendix 3 Media interview prompt sheet 33

Appendix 4 Offences and penalties 34

Appendix 5 Fixed penalty notice guide 35

Appendix 6 Example incident recording form for businesses 44

Appendix 7 RTPM contact details and smoking cessation information 45

Appendix 8 Key issues in relation to smoking shelters 47

Appendix 9 The ten reasons for smokefree legislation 48

Appendix 10 Application, exemptions and advice on good practice 49

Appendix 11 Summary of the Department of Transport consultation document 58

Contents

Implementation of smokefree legislation in England 3

The purpose of this guidance is to support councilregulatory officers in successfully implementing thenew smokefree legislation to be enforced in Englandfrom 06:00 on 1 July 2007.

The health case for this legislation is clear: makingenclosed workplaces and public places smokefree willprovide protection from a range of serious medicalconditions. This is because exposure to secondhandsmoke, in the long term, increases the risk of a non-smoker developing lung cancer and heart disease byaround 25 per cent, and in the short term – after just30 minutes – the blood becomes stickier increasingthe risk of blood clots and stroke. There are over fivemillion people with asthma in the UK and 80 per centfind that secondhand smoke worsens their symptomsand can trigger asthma attacks. See Appendix 1 forfurther evidence about the benefits of smokefreeenvironments.

It is the view of both LACORS, CIEH and TSI that thesmokefree requirements for England are bothsensible and comprehensive and that the task forcouncils in securing compliance will bestraightforward.

As with all legislation, there is always the opportunityfor local interpretation and application according tolocal circumstances. However, in the light of theextensive business and public interest that has beenexpressed about these requirements, it is particularlyimportant to ensure a consistent approach toimplementation so that both employees and membersof the public are properly protected and businessesacross England will consider that they are beingtreated fairly.

Throughout this guidance, the term ‘regulatoryofficer’ is used and is intended to mean all thoseofficers who have been authorised by a local councilto undertake the work of securing compliance withthe smokefree legislation. It is envisaged that these

will include those regulatory officers most experiencedin carrying out enforcement duties in relation toworkplaces and businesses, such as environmentalhealth officers and trading standards officers. It mayalso be appropriate to authorise:

• a variety of other council officers, for example streetwardens;

• staff recruited specifically for these duties assmokefree compliance officers; and

• staff of other appropriate organisations such ascommunity support officers.

Other specific definitions as set out in the legislationare covered in Appendix 2.

This legislation concerns the protection of publichealth from secondhand smoke, but it also raisesconcerns about smoking in general. For this reason itis envisaged that, upon the introduction of this


1 Purpose of the guidance

1 Guidance for businesses on going smokefree can be found at www.smokefreeengland.co.uk

It is intended that thesmokefree requirementswill bring benefits tocommunities by protectingthe health of people invirtually all enclosed andsubstantially enclosedworkplaces and publicplaces from the risks tohealth from exposure tosecondhand smoke

legislation, there will be many people who will wishto take the opportunity to quit smoking altogether.Where possible and appropriate to do so, regulatoryofficers are encouraged to promote Local NHS StopSmoking Services. These services offer advice,information and support to help people stop smokingand can also assist with coming to terms with notbeing able to smoke at work. For an on-line resourcecentre go to gosmokefree.co.uk

Details of local services and other support may alsobe obtained from the NHS Smoking Helpline on0800 169 0 169.

The overall co-ordination of tobacco control activities,including local Stop Smoking Service, is theresponsibility of the Department of Health’s RegionalTobacco Policy Managers (RTPMs) whose contactdetails can be found in Appendix 7. RTPMs canprovide advice and support to local councils.

This guidance has been developed by LACORS andthe Chartered Institute of Environmental Health inconsultation with the Department of Health, TradingStandards Institute, Tobacco Control CollaboratingCentre, individual councils and others. It will beamended and updated in the light of experience ofimplementation. LACORS welcomes both yourcomments and your suggestions for furtherclarification and future inclusions.

Sarah [email protected]

Jane [email protected]

Ian GrayChartered Institute of Environmental [email protected]


The Government’s White Paper Choosing Health:Making healthy choices easier2 published in 2004proposed action on secondhand smoke and set out aclear strategy to tackle smoking as well as to reducethe effects of smoking on others.

The Health Act 2006 Chapter 13 containing thesmokefree legislative provisions received Royal Assentin July 2006 and will come into force in England on1 July 2007. Similar legislation will be implemented inWales on 2 April 2007 and in Northern Ireland on30 April 2007. The Republic of Ireland and Scotlandare already smokefree, as are the Channel Island Statesof Guernsey and Jersey. There are minor differences inthe legislation across the British Isles however the vastmajority of requirements are the same.

The Government’s objectives for delivering smokefreelegislation are to:

• reduce the risks to health from exposure ofsecondhand smoke;

• recognise a person’s right to be protected from harmand enjoy smokefree air;

• increase the benefits of smokefree enclosed placesand workplaces for people trying to give up smokingso they can succeed in an environment where socialpressures to smoke are reduced; and

• save thousands of lives over the next decade (and forthe foreseeable future) by reducing both exposure tohazardous secondhand smoke and overall smokingrates.

It has been reported that across Scotland4 and theRepublic of Ireland5 that levels of compliance with thelegislation achieved within the first six months have

been as high as 95 per cent. Polls from both countriesalso indicate that the introduction of smokefreelegislation has been both popular and successful. Thefollowing are quotes from regulatory officers whohave first-hand experience of securing compliancewith smokefree legislation:

Republic of IrelandSmokefree since 29 March 2004

“‘Environmental Health Practitioners need tobe aware that the majority of people are infavour of smokefree legislation and theevidence from Ireland and Norway is that thepopularity of such controls increases once it isintroduced and working. However, we mustnot be complacent. Compliance building iskey. The public and business need to bereminded of the primary purpose of suchmeasures, that is the protection of workersfrom the very real health risks associated withsecondhand smoke. They also expect aconsistent and reasonable approach withregard to enforcement – in return they willwork with you in making smokefree work.Slainte.”Maurice Mulcahy MEHOA, MIOSH, FCIEHPrincipal Environmental Health OfficerHealth Service Executive, Galway, Republic of IrelandMember of the Board ASH IrelandCo-Chair Environmental Health Officers AssociationTobacco Control Committee

ScotlandSmokefree since 26 March 2006

“From the outset, my colleagues and I werevery pleasantly surprised at the high levels ofcompliance with the smokefree legislation.


2 Background to the legislation

2 www.dh.gov.uk/PublicationsAndStatistics/Publications/PublicationsPolicyAndGuidance/PublicationsPolicyAndGuidanceArticle/fs/en?CONTENT_ID=4094550&chk=aN5Cor 3 www.opsi.gov.uk/acts/acts2006/ukpga_20060028_en.pdf 4 www.clearingtheairscotland.com/ 5 www.otc.ie

Even in what we thought would be the mostchallenging sectors – working men’s pubs,social clubs and betting shops – there wasfull acceptance from day one. Occasionally,at the start, we would meet up with somerecalcitrance towards the initiative but thathas very largely disappeared and nowsmokefree is accepted as the norm.”John SleithFood and Safety Regulation Manager,Falkirk Council

“The introduction of the smoking ban inenclosed public places has been successfulin Scotland and fortunately the task ofenforcing the new legislation, carried out byEnvironmental Health, has been easier thanoriginally anticipated. During routine visitsand inspections to premises over this firstyear of the ban, environmental healthenforcement staff have generally been verywell received.”Evonne TennantChartered Environmental Health Officer,East Dunbartonshire Council

GuernseySmokefree since 2 July 2006

“There was great enthusiasm from everyenvironmental health practitioner for this

measure – we felt it would have an immensepublic health impact. Our visits were almostuniversally welcomed by staff in the hospitalitytrade, even among those who smoked, and ourcommitment together with their support madethe transition to smokefree workplaces aninstant reality.”Tony Rowe MCIEHDeputy Chief Environmental Health Officer, Guernsey

JerseySmokefree since 1 January 2007

“During the first two weeks of the ban mycolleagues and I visited over 200 premisesthroughout the island including restaurantsand cafes without incident. I can happilyreport that the sense of humour amongstthose enjoying a drink, particularly in St Helierduring the evening, was as lively and quickwitted as ever.”Robert Wareing-JonesHealth Protection Technician/Tobacco Control,Public Health Department, Jersey

These successes have been achieved largely as aresult of the supportive work undertaken by councilsand the national publicity campaigns prior to theimplementation dates to inform the public andbusinesses about how the legislation will affect themand to build compliance by helping them to preparethrough the Smokefree England campaign.

The Department of Health and Smokefree England areundertaking a national communications campaign,informing businesses and the public about thesmokefree legislation. For further information seesmokefreeengland.co.uk

The Department of Health is also providing guidelineson the new law to all businesses in England, whichwill include no-smoking signs for businesses to use.

Links to the Health Act and final regulations can alsobe found at smokefreeengland.co.uk


Smoking is recognised tobe the greatest single causeof preventable illness andpremature death in the UK,killing around 106,000(86,500 in England) peoplea year www.nice.org.uk/page.aspx?o=502811

Regulatory officers already work closely withbusinesses to ensure that compliance is achieved witha wide range of legislative requirements for examplein respect of food safety, occupational health andsafety and environmental protection. It is envisagedthat the approach taken to smokefree legislation willbe in the same manner as that usually adopted by thecouncil, i.e. on a risk based approach.

The experience of other countries has shown that thistype of legislation is widely supported, that high ratesof voluntary compliance can be anticipated and thatthere will therefore be only a minimal need to employenforcement measures.

Successful implementation of smokefreelegislation will therefore be measured by thenumber of premises that are meeting therequirements of the law and are smokefreeand/or where smoking no longer takes place,rather than by the number of enforcementactions taken by any individual authority.

The approach taken by regulatory officers tosmokefree legislation should be determined primarilyby the local council’s enforcement policy and this willneed to take account of several important factors:

• It may be important to raise awareness andunderstanding of the reasons for the introduction ofthe legislation i.e. that the health of workers and thegeneral public needs to be protected from thedamaging health effects that exposure to secondhandsmoke can cause. It is therefore recommended thatregulatory officers be equipped with the necessaryfacts to do this convincingly. See Appendix 9 for tenreasons for smokefree.

• The public will be well aware of the introduction ofthe legislation through extensive publicity that will beprovided through the Smokefree England campaignand general media coverage. This will serve toheighten the expectation of compliance by thebusiness community and may lead to increasednumbers of complaints concerning non-compliance.

• There will be occasions when the initial advisoryapproach to a business does not result in compliance,in which case any decision on enforcement actionagainst an individual or business will need to be takenin accordance with the principles of the enforcementpolicy in order to ensure that a fair, proportionate andconsistent approach is being taken.

• It is believed that enforcement, including issuingFPNs, against children under the age of 16 is notwarranted. There are more effective ways to deal withchildren who smoke, including requiring them toleave any smokefree premises or vehicle.

Councils will therefore need to determine anappropriate enforcement approach for their area. Thefollowing text may be useful to form the basis of suchan enforcement policy:

‘Initially an educational, advisory and non-confrontational approach should be taken,both before and for a period of time after thelegislation comes into force. Subsequently, itwill become apparent which businesses aremaking efforts to comply and which are not.

‘Where non-compliance is due tomisunderstandings or a lack of diligence, thenfurther information, advice and guidance canbe provided. However, where it is evident thatserious efforts are not being made to comply,or the attitude is un-cooperative orantagonistic, then a decision to takeenforcement measures should be considered.

‘It is likely that enforcement actions willattract publicity and public attention and it isrecommended that each decision onenforcement action should be properlyconsidered and with clear justification. Wherea person is determined to flout the law arobust response will be appropriate.’


3 Overall approach and enforcement policy

The legislation which prohibits smoking in enclosedworkplaces and public places is Part 1 of the HealthAct 2006. Schedules 1 and 2 to the Act contain thepowers of authorised officers and the details of FixedPenalty Notices (FPNs).

The specific requirements are contained in severalseparate sets of regulations:

• Smoke-free (Premises and Enforcement)Regulations 2006;

• Smoke-free (Exemptions and Vehicles)Regulations 2007;

• Smoke-free (Penalties and Discounted Amounts)Regulations 2007;

• Smoke-free (Vehicle Operators and Penalty Notices)Regulations 2007;

• Smoke-free (Signs) Regulations 2007; and

• Merchant Shipping Act 1995.

Proposed regulations in respect of smokefreerequirements for ships and vessels are currently outfor consultation. It is expected that they will comeinto force from 1 October 2007. Further informationis available from [email protected] 020 7944 5427. The consultation is atwww.dft.gov.uk/consultations/open/smokingonvessels/smoking

Smokefree premises

To determine whether a workplace or public place isrequired under the legislation to be smokefree, itmust be:

• used as a place of work by more than oneperson (even if persons who work there doso at different times, or only intermittently);or

• open to members of the public; and

• in either case it must be enclosed orsubstantially enclosed.

Places of work

Premises that are places of work for more than oneperson will be required to be smokefree at all times inall enclosed and substantially enclosed parts, even ifpeople work there at different times of the day, oronly intermittently. A place of work used only by oneperson will also be required to be smokefree at alltimes if members of the public enter the premises, forexample to receive goods or services.

Premises that are open to the public

Premises that are open to the public will be requiredto be smokefree in all enclosed and substantiallyenclosed parts. Premises are open to the public if thepublic, or a section of the public, has access. It doesnot matter whether access is open to everyone, or ifaccess is restricted to certain members of the publicby way of invitation or payment – the premises willstill be required to be smokefree.

Definition of ‘enclosed’ and ‘substantiallyenclosed’ premises

Premises will be considered to be enclosed if theyhave a ceiling or roof and, except for doors,windows or passageways, are wholly enclosed,whether on a permanent or temporary basis.


4 Legislative requirements and offences

Premises are substantially enclosed if they have aceiling or roof, but there are permanent openings inthe walls which are less than half of the total areasof walls, including other structures which serve thepurpose of walls and constitute the perimeter ofpremises.

This is known as the 50 per cent rule – put simply:

• if 50 per cent of the walls or more are missingthen it is legal to smoke in the area; or

• if more than 50 per cent of the walls arepresent then it is illegal to smoke in the area.

When determining the area of an opening, noaccount can be taken of openings in which there aredoors, windows or other fittings that can be openedor shut.

A roof includes any fixed or movable structures,such as canvas awnings.

Tents, marquees or similar constructions willalso be classified as enclosed premises if they fall withinthe definition (note that tent/marquee side-panels willbe classed as rolled down even when they are rolledup).

In general if an opening or cover can be closed, the50 per cent rule will be calculated on the basis thatthose openings are closed.

Smokefree vehicles

Section 5 of the Health Act 2006 provides power forregulations to require vehicles to be smokefree. Avehicle means every type of vehicle other than aircraftand ships and hovercrafts in respect of whichregulations can be made under Section 85 of theMerchant Shipping Act 1995.

Regulation 11 of the Smoke-free (Exemptions andVehicles) Regulations 2007 provides that an enclosedvehicle shall be smokefree if it is used:

• by members of the public or a section of the public,whether or not for reward or hire; or

• in the course of paid or voluntary work by more thanone person, even if the persons who work there do soat different times or only intermittently.

If the vehicle has a roof which is able to be removedthen the vehicle must be smokefree when it is whollyor partly covered by a roof. A vehicle does not needto be smoke free when its roof is completely stowedaway so that it does not cover any part of acompartment in which persons may travel – when thevehicle is engaged in carrying persons.

Smokefree vehicles are required to besmokefree at all times.

Vehicles not covered by the 2007 Regulations

The Regulations do not apply to private vehicles thedefinition for which can be found in Appendix 2.This provides that vehicles will not be required to besmokefree if they are used primarily for the privatepurposes of a person who:

• owns it, or

• has a right to use it which is not restricted to aparticular journey (eg private leased cars).

Ships or hovercraft in relation to which regulationscould be made under section 85 of the MerchantShipping Act 1995 (relating to safety and health onships) are not covered by smokefree regulations. Thestatutory definition of a ship for these purposes isprovided in section 313 (1) of the Merchant ShippingAct 1995: ‘ship includes every description of vesselused in navigation’.

The Department for Transport is consulting on the UKGovernment’s proposals for extending the smokefreeprovisions of the Health Act 2006 to sea-going andinland waterway vessels. Therefore such ships orhovercraft will not be required to be smokefree until


appropriate regulations have been made by theSecretary of State for Transport (likely to be late thisyear).

Any ship or vessel that is not covered by theMerchant Shipping Act 1995 (MSA) does come withinthe provisions of smokefree legislation and should beenforced by local councils. For example, floatingrestaurants might not be covered by the MSA. TheMaritime and Coastal Agency can assist inestablishing if a particular ship or vessel is covered bythe MSA.

The regulations do not apply to aircraft. TheGovernment believes that provisions in the AirNavigation Order 2005 regarding smoking in aircraftare working satisfactorily. The Air Navigation Orderalso makes suitable provision regarding no-smokingsignage.

Offences and penalties

The table in Appendix 4 summarises the threeoffences under the Health Act 2006, their maximumfines and their respective defences, as well as theoffence of obstruction of officers. It also shows theamounts which will be applied as a fixed penalty foreach of the offences as set out in the Smoke-free(Penalties and Discounted Amounts) Regulations2007.


Enforcement authorities

Enforcement authorities responsible for this legislationare designated in the Smoke-Free (Premises andEnforcement) Regulations 2006 as lower tier localauthorities and port health authorities.

The following authorities are therefore theenforcement authorities for the smokefree legislationwithin the areas for which they have responsibility:

• a unitary authority;

• a district council in so far as it is not a unitaryauthority;

• a London borough council;

• a port health authority;

• the Common Council of the City of London;

• the Sub-Treasurer of the Inner Temple and the UnderTreasurer of the Middle Temple; and

• the Council of the Isles of Scilly.

An enforcement authority has enforcement functionsin relation to the premises and vehicles that arewithin:

• in the case of a port health authority, the district forwhich it is a port health authority; and

• in the case of other authorities, the area for which itis a local authority other than any part of that areawhich falls within the district of a port healthauthority.

The legislation allows that where an investigation isbeing undertaken, the enforcement functions can betransferred from one or more of the specifiedenforcement authorities to any other enforcementauthority under arrangements made between thetransferring and receiving authorities. An investigation

could therefore be started by the council where theoffence took place and then transferred to anothercouncil, for example the council functioning as theHome Authority. Such an arrangement must becarried out with the agreement of the receivingauthority.

Authorisation of Regulatory Officers

Councils will need to identify, select and possiblyrecruit appropriate regulatory officers to carry outduties to secure compliance with the smokefreelegislation. Existing officers who are experienced incarrying out enforcement duties in relation toworkplaces and businesses, such as environmentalhealth officers and trading standards officers, will beideal for this purpose and could incorporate this workinto their other inspection activities.

It may also be appropriate to authorise:

• a variety of other council officers, for example streetwardens;

• staff recruited specifically for these duties, such assmokefree compliance officers; or

• staff of other appropriate organisations, such ascommunity support officers.

Authorisation of officers will need to be made inaccordance with normal council procedures.

In addition, in the period leading up to theimplementation of the legislation on 1 July 2007,there will many existing council staff that can provideinformation and advice and who will not need to beauthorised in respect of enforcement activities.Similarly, it is appropriate for tobacco controlspecialists from the local primary care trust to beinvolved in providing information and advice on thenew law.


5 Enforcement agencies and authorised officers

Other agencies

An enforcement protocol between a variety ofagencies and regulators is being drawn-up. It will setout the commitments of other agencies:

• to inform businesses about the new legislation;

• to pass on intelligence to the appropriate council; and

• to alert councils to potential and actual breaches ofthe legislation.

Councils will need to be aware of the protocol andestablish a procedure for processing any informationor intelligence received from other regulatory bodies.It may be that this information can be treated thesame as that arising from the National SmokefreeCompliance Line.

Specific details on the enforcement protocol will bemade available in due course.

Inspectors of the Health and Safety Executive (HSE)will bring matters of concern to the attention of theemployer, particularly if it involves a number ofsmokers or if there is a failure to display no-smokingsigns. Should the employer resist acting on thisadvice, the inspector will then bring the matter to theattention of the appropriate council. Any complaintsreceived by HSE about smokefree issues will bereferred to the appropriate council.

Other action being taken by HSE in support of thenew legislation includes:

• providing Department of Health producedinformation on the smokefree legislation forbusinesses;

• updating current briefing for HSE InfoLine andWorkplace Health Direct;

• adding links on the smokefree legislation to relevantHSE webpages (e.g. respiratory disease and asthma);

• distributing literature on the smokefree legislation aspart of routine visits (e.g. on health based topics);and

• working in partnership with councils on healthpromotional matters as appropriate.

Funding

Funding for councils to assist with the costs ofimplementation of the smokefree legislation has beenprovided by the Department of Health. Details of thefunding provisions can be found in LAC (2006) 17 atwww.dh.gov.uk/assetRoot/04/14/17/46/04141746.pdf

The Department of Health has transferred funding tocouncils by BACS payment identified as ‘Departmentof Health grant for smokefree legislation 2006/07’.

The second phase of funding will be transferred assoon as possible in April 2007 in the same way.


Inspections carried out by regulatory officers will beeither:

• proactive, e.g. to advise businesses and to confirmcompliance with the legislation; or

• reactive, i.e. in response to a complaint.

In terms of reactive work councils will need todecide how they are to deal with complaints andintelligence they receive from a variety of sources –from the general public, National SmokefreeCompliance Line, other council staff and otherregulatory bodies.

For proactive inspections councils should devise ameans to generate lists from their premises databasewhich will allow the programmed visits to befocussed on premises:

• where it has previously been customary for people toassume that they can smoke;

• where the managers may not realise the law appliesto them (possibly SMEs);

• where the legislative proposals have been alteredduring the parliamentary process (e.g. in relation toprivate members’ clubs);

• where it can be anticipated that the management ofthe premises may have difficulty in securingcompliance;

• where it is likely that the management will wish tomake use of the exemption provisions for designatedbedrooms and designated smoking rooms;

• which are open to substantial numbers of people;

• where there is an absence of pre-existing voluntarilyadopted controls on smoking; or

• where regulatory officers do not usually visit as partof their routine inspections under other legislation.

Over a period of time, a risk based inspectionprogramme for premises can be developed, takinginto account factors such as:

• confidence in management;

• history of compliance with the requirements of thesmokefree legislation; or

• number of complaints received from the NationalSmokefree Compliance Phone Line and otherinformation sources.

In many cases it will be appropriate to incorporateboth proactive and reactive inspections as part ofother compliance work, e.g. health and safety visitsincluding Fit3 and food hygiene inspections.

Approaches to inspections

Regulatory officers may carry out visits in a number ofdifferent ways in relation to ascertaining compliancewith the smokefree legislation. It will be a decision forthe officers to choose the most appropriate course ofaction once all factors have been taken into account,i.e. which action will be likely to be the most effectiveand ensure the safety of the officer.

• Official visit Officer announces themselves uponarrival and shows their authorisation in writing to theperson in charge of the premises, prior to carryingout an inspection of the premises to assesscompliance.

• Covert visit Officer assesses compliance byobservation from within the premises, andsubsequently at the end of the period of surveillancethey announce themselves and show theirauthorisation in writing to the person in charge of thepremises and, if necessary, carry out an inspection ofthe premises.

• Covert visit and leave Officer assesses complianceby observation from within the premises and thenleaves without announcing themselves. Officer returns


6 Inspections

at an appropriate time when they announcethemselves and discuss their findings with the personin charge of the premises and, if necessary, carry outan inspection of the premises.

In enforcing the Health Act 2006 there will becircumstances where an authorisation is necessaryand proportionate under the Regulation ofInvestigatory Powers Act 2000 (RIPA) andcircumstances where it is not. Councils shouldconsider the following issues:

• Article 8 of the Human Rights Act Before anauthority considers RIPA they should first considerwhether someone monitoring smoking withinlicensed premises could be an invasion of a person'sArticle 8 rights (ie the right to respect for private andfamily life under the Human Rights Act). LACORSbelieves such surveillance should not be an invasionof these Article 8 rights as it is in accordance with thelaw and necessary for the protection of the publichealth.

• Intrusive surveillance LACORS considers that covertsurveillance within smokefree premises would not beintrusive surveillance within Part II of RIPA as it is nottaking place in residential premises.

• Directed surveillance LACORS believes informationgiven in a smokefree place will generally not beprivate information as such information is given in apublic place. Therefore, surveillance would notgenerally require directed surveillance authorisationwithin Part II of RIPA.

• Covert Human Intelligence Source (CHIS)LACORS believes that it is very unlikely for an officerto establish or maintain a personal relationship toobtain information. If such a relationship wasestablished or maintained an officer could be a coverthuman intelligence source (CHIS) and would requireauthorisation under RIPA. This is not an approachLACORS would advise and strongly believe that itshould not be necessary for an officer to establish ormaintain such a relationship.

The need to take enforcement action should notresult in the personal safety of officers beingcompromised and this should already be an explicitconsideration in the council’s existing health andsafety policy and procedures. There might be timeswhen enforcement authorities need to workcollaboratively with the police to effectively enforcethe legislation.

Therefore, when dealing with each particularcircumstance, regulatory officers must exercise theirown judgement as to the best course of action. Forexample, in a situation where a covert inspection isbeing carried out, if an officer perceives a threat ofviolence or abuse, they should not engage with themanager at that stage, but return at a safer time,such as the next day with support if appropriate.

It should be emphasised that the experience ofregulatory officers engaged in securing compliancewith the smokefree legislation in other countries isthat violent behaviour and even the threat of violentbehaviour is an extremely rare occurrence.


• carry the following words in characters that can beeasily read – ‘No smoking. It is against the law tosmoke in these premises.’

Substitute words can be used for ‘these premises’provided that they refer to the name and type of theparticular premises to which the sign relates e.g. ‘thishotel’. Businesses can also display their own design ofno-smoking signs provided that the minimumrequirements are met.

There are some situations where a smaller sign maybe displayed as an alternative to the A5-sized signdescribed above. A sign that consists only of theinternational no-smoking symbol in red and blackwith a minimum diameter of 70mm can be displayedat entrances to smokefree premises where:

• they are located within other smokefree premises thatcarry the A5-sized sign at entrances, e.g. a bar withina train station, or a shop within an indoor shoppingmall; or

• they are only for use by members of staff, providedthat the A5-sized sign is displayed on at least oneentrance to the premises.

The above descriptions are the minimumrequirements for no-smoking signs in smokefreepremises. Businesses are free to keep any pre-existingno-smoking signs in place where these are additionalto the minimum requirements and to provide asmuch additional signage in whatever format andlanguage they consider appropriate to inform peopleand support compliance. For example further signsmay be appropriate in toilets.

Signs that meet the requirements set out inthe regulations are to be made available tobusinesses free of charge by the Departmentof Health. These are downloadable from theSmokefree England website atsmokefreeengland.co.uk

Compliance at smokefree premises

Businesses will be receiving an information pack fromSmokefree England on the requirements of thelegislation and the actions they need to take tocomply. Further information can be found atsmokefreeengland.co.uk

A business is considered to be complying withthe legislation if smoking is not taking place inenclosed or substantially enclosed workplacesor public places and the required signage isproperly displayed.

Regulatory officers will need to carry out anassessment to determine whether owners, occupiers,managers or any person in control of smokefreepremises are making reasonable efforts:

• to prohibit people from smoking on their premises,

• to prevent them from doing so, and

• to detect when breaches have occurred.

These efforts will include a combination of compliancewith specific legal requirements and activities whichrepresent good practice – see Appendix 10.

Signage for premises

All premises that are required by law to besmokefree will also be required to display theprescribed no-smoking signs at each entrance foruse by people. The detailed requirements are setout in the Smoke-free (Signs) Regulations 2007.

Signage must be displayed in a prominentposition and meet the following minimumrequirements:

• be a minimum of A5 in area (210mm x 148mm);

• display the international non-smoking symbol at least70mm in diameter;


7 Application

Note – it needs to be recognised that many premisesare already smokefree and may have been so for aconsiderable period of time. They may not realise,therefore, that they will now legally have to displayno-smoking signs.

Good practice for premises

Appendix 10 contains further advice on goodpractice in various premises and circumstances.

Management controls

It is recommended that persons in control ofsmokefree premises:

• develop a smokefree policy (preferably in writing inconsultation with employees);

• adopt procedures (again, preferably in writing) fordealing with any people who smoke or attempt tosmoke within the premises;

• train staff in both the smokefree policy and thewritten procedures and their roles and responsibilitiesfor implementation;

• keep a written record of any incident where anindividual smokes on the premises in contravention ofthe legislation, together with the action taken by anymembers of staff and the outcome; and

• for premises with exemptions, keep a written recordof any rooms designated as rooms in which smokingwill be permitted in accordance with the legalrequirements.

Smokefree policy and procedures

People who are in charge of a smokefree premiseshave legal responsibilities to prevent people fromsmoking in their premises. It is strongly recommendedthat owners and managers establish and implement awritten policy and procedures to demonstrate theircompliance with the law. A sample smokefree policyis included in the Department of Health’s guide onthe new law that has been sent to all business, andcan also can be downloaded atsmokefreeengland.co.uk This can be adapted bybusinesses and organisations for their individual use.

The procedures for dealing with an individualsmoking within smokefree premises should includethe following actions:

• Draw the attention of the person to the no-smokingsigns in the area and inform them that they arecommitting an offence by smoking.

• Politely ask them to stop smoking and offer thema safe method of extinguishing their smokingmaterials. Alternatively direct them to the nearestplace where they are able to smoke legally.

• Advise the person smoking that their actions couldresult in them receiving a FPN as well as the person incontrol of the premises being prosecuted andreceiving a fine of up to £2,500.


ABOVE A5 statutory signLEFT Simple sign –international no-smokingsymbol

• If the person continues to smoke then refuse themservice, if appropriate, and ask them to leave thepremises.

• If they refuse, implement the normal procedures fordealing with anti-social behaviour or unlawfulactivities on the premises.

• Maintain a written record of all such incidents, theaction taken and outcomes.

• If physical violence is threatened by the personsmoking, notify and/or seek assistance from thepolice.

The policy should identify the role of all members ofmanagement and staff who have responsibility for itsimplementation and review.

Employers are to be encouraged to develop asmokefree policy in collaboration with staff and theirrepresentatives.

Staff training

Employers and managers should ensure that all staff,including new members of staff, are trained inrelation to the smokefree policy.

The training for staff should include:

• awareness of their responsibilities in dealing with anypersons smoking and those of other members of staffand managers;

• challenging assertively; and

• safeguarding personal safety.

Good practice would include reinforcing the policy onan ongoing basis as well as keeping a record of whichmembers of staff have received this training, whenthey received it and what it included.

Recording incidents

Where an incident of smoking has been reported tothe regulatory officer it will be important to be ableto demonstrate that appropriate action was taken atthe time. For that purpose a documented recordshould be kept on the premises stating:

• date and time of incident;

• where person was smoking;

• action taken by staff (including name of staffmember);

outcome; and

• name (if known) and description of person who wassmoking.

Businesses should be encouraged to contact theirlocal council after any incident to inform them of theoccurrence. See Appendix 6 for example incidentrecording form.

Ashtrays and receptacles forsmoking-related litter

Ashtrays and other such receptacles should notnormally be present inside smokefree premises exceptin designated bedrooms and designated smokingrooms where these are permitted in premises withexemptions. However:

• it may be appropriate for a suitable receptacle to bekept behind a reception desk, serving counter or barin order to safely extinguish any lit smoking materialsthat are discovered; and

• external bins and ashtrays may need to be broughtinto premises when they are closed for business.

In some circumstances it will be advisable to providesuitable receptacles where smoking is permittedoutdoors and in areas that are not substantially


enclosed in order to minimise smoking-related litter.Where this is the case, then it should be borne inmind that the siting of receptacles may welldetermine where people smoke and therefore carefulsiting may avoid obstructions of footways and thedrift of secondhand smoke into nearby buildings.There may be planning considerations if receptaclesare to be attached to external building walls,especially on listed buildings.

Shelters

There is no legal requirement for owners ofpremises, managers of staff, or anyone elseto provide an outdoor shelter for theiremployees, customers or residents to smoke in.

However, any shelter that is erected for such apurpose should not be constructed so as to besubstantially enclosed as described in the definitionsin Appendix 1. Shelters may require planningpermission and building control consent; their sitingand use may affect the licensing conditions of abar/restaurant if customers are drinking outside; theymay increase noise levels in the open air and theymay also adversely affect street cleanliness.Addressing all of these issues in a ‘joined-up’response will require the council to act in aco-ordinated manner and a properly developedcorporate policy may be needed for this purpose.

Anyone intending to erect such a shelter should beadvised to discuss their proposal with the appropriatecouncil staff at the earliest opportunity.

See Appendix 8 for key issues in relation to shelters.

Compliance in smokefree vehicles

All vehicles that are legally required to besmokefree will also be required to display no-smokingsigns in each enclosed compartment of the vehicle inwhich people can be carried. The detailedrequirements are set out in the Smoke-free (Signs)Regulations 2007.

As a minimum, the no-smoking signs must includethe international no-smoking symbol (a blackcigarette with a red circle, with a red bar across it)with a minimum diameter of 70mm.

The no-smoking signs must be displayed in aprominent position and in each compartment.

A compartment includes each part of thevehicle which:

• is constructed or adapted to accommodatepersons; and

• is or may from time to time be wholly or partlycovered by a roof.

It is the legal responsibility of any person withmanagement responsibility for the smokefree vehicleto make sure that the required no-smoking signs arein place.

Most public transport is already smokefree and thereplacement of pre-existing no-smoking signs isconsidered unneccessary, as long as the basicno-smoking sign requirements are met.

There is also no wish to create conflict with thecurrent requirements for no-smoking signs in theRepublic of Ireland and Scotland or those that willbe incorporated in Wales and Northern Ireland orelsewhere in the British Isles. Signs that complywith the Scottish, Northern Irish and Welshrequirements would automatically comply inEngland.

Ships

See Summary of the Department of Transportconsultation document in Appendix 11.

Public sector premises

Councils will be expected to make their ownarrangements to ensure compliance by their staff,


members of the public and contractors whilst on theirpremises and working on their behalf.

To that end the council should make a robuststatement that compliance with the smokefreelegislation is a strict requirement of all those actingon its behalf and that there may be consequences forpeople who breach the law:

• regulatory officers can issue other local councilofficers with FPNs in respect of smoking offences oncouncil premises or elsewhere;

• councillors who smoke in breach of the law can bereported to the Standards Board for England; and

• contractors can incur penalties for default and eventermination or non-renewal of contracts.

It is considered that all of the above are effectivemeasures and in addition, the council would expectthat all of its staff will comply with the law whilst atwork. Failure to comply with the law could possiblybring the council into disrepute and could also bedealt with under the council’s normal disciplinaryprocedures and incur the appropriate sanctions.

Crown properties are not covered by the smokefreeprovisions in the Health Act 2006. The NHS is notexempted from the legislation (except the specificarrangements for residential mental health units until1 July 2008).

All central government and NHS buildings have beensmokefree since the end of 2006, meeting thecommitments the Government set out in the 2004White Paper Choosing Health.

The Prison Service will introduce strict controls onsmoking in prisons, which will apply to both publiclyand privately provided prisons through the PrisonService Order that will be implemented in all prisonsfrom 1 April 2007. Broadly, the Order will require allindoor areas to be smokefree, with the exception ofcells occupied solely by smokers, and for

arrangements to be in place to minimise the dangersof secondhand smoke.

Establishments or units holding prisonersunder 18 years of age must have an entirelysmokefree environment within their buildings.

Exemptions

There are very few exemptions permitted by thesmokefree legislation and they are limited to specifiedareas in certain categories of premises, including:

• private dwellings;

• sleeping accommodation for guests and clubmembers;

• other residential accommodation;

• performers;

• specialist tobacconists;

• offshore installations;

• research and testing facilities; and

• a time limited temporary exemption for mental healthunits (then required to be smokefree from 1 July2008)

Definitions of what these exemptions mean are setout in the Smoke-free (Exemptions and Vehicles)Regulations 2007. In all cases there are particularconditions that must be met and regulatory officerswill need to be aware of these and assess compliancewith these when deciding whether an exemption hasbeen properly implemented. Appendix 10 providesdetailed explanations of these exemptions.


Regulatory officers have the following enforcementoptions available to them:

• verbal warning;

• written warning;

• FPN or legal proceedings against an owner, occupier,manager or any other person in charge of no-smoking premises for failing to display no-smokingsignage (section 6(5) offence);

• FPN or legal proceedings against an individualsmoking in no-smoking premises (section 7(2)offence); and

• legal proceedings against an owner, occupier,manager or any other person in charge of no-smokingpremises for failing to prevent smoking in a smokefreeplace (section 8 (4) offence) – fixed penalty is notavailable for this offence.

None of these offences are indictable and thereforeFormal Cautions (now known as simple cautions)cannot be given, neither can injunctions be obtained.Councils are also advised against creating additionalquasi-legal procedures such as ‘warning notices’ asthese have been previously discredited.

There are no formal appeal provisions against theservice of a FPN. However, Part 4 of the FPN, as setout in the Smoke-free (Vehicle Operators and PenaltyNotices) Regulations 2007, relates to the making of arequest for a court hearing. Part 1 also allows for anamed contact in the council to be identified towhom the recipient can direct questions about theservice of the FPN. The council should appoint anappropriate person to be able to deal with suchquestions and, if appropriate, to decide upon thecancellation of the FPN.

As with all council enforcement measures, all actiontaken should be fair, proportional and consistent anddecided upon with reference to the EnforcementConcordat at

www.cabinetoffice.gov.uk/regulation/documents/pst/pdf/concord.pdf and theenforcement policy statement of the particularcouncil.

Figure 1 sets out the enforcement flowchartfor the offence of failure to display correctno-smoking signage The policy adopted by acouncil for signage penalties should recognise this asa technical infringement and should perhaps continuewith the educational approach for longer than mightnormally be the case before taking enforcementaction. It should be borne in mind that manybusinesses are already smokefree and may have beenso for a considerable period of time and may notrealise the need to display signs. It may also be thecase that the signage has been removed and notbeen replaced rather than never provided in the firstplace. However where advice has been given and aproprietor is clearly not complying then a FPN shouldbe served.

Figure 2 sets out the enforcement flowchartfor the offence of smoking in a smokefreeplace There are practical difficulties in takingeffective enforcement action against an individualsmoking in smokefree premises or vehicles (i.e.serving a FPN). Therefore, as an initial stage theregulatory officer might wish to be satisfied that theowner, occupier, manager or any other person incharge can demonstrate that all reasonable stepshave been taken to prohibit individuals from smokingon their premises and to detect and deal with illegalsmoking when it does occur. (For guidance onmanagement controls and signage, see Section 7 onApplication).

To ensure that enforcement action against individualssmoking in a smokefree premises or vehicle iseffective, councils could consider targeting individualsas part of a pre-arranged programmed activity,organised in liaison with local police officers to givesupport if necessary. Regulatory officers are advised toensure they organise any such activities with theirlocal police service well in advance in order to ensure


8 Enforcement action

that the work coincides with availability of policeresources. The programmed activity should befocussed on premises which have demonstrated thatall reasonable steps have been taken and that, despitethese efforts, certain individuals continue to smoke insmokefree places.

See Section 6 on Inspections in relation to RIPA.

If regulatory officers experience a situation where theperson they wish to serve with a FPN does notprovide their name and address on request, then theofficer should advise the person that such a refusalconstitutes an offence of obstruction under theHealth Act 2006 for which they may be prosecuted.Further action at this time may not be possible,however a detailed description of the individual mayenable subsequent identification and the serving ofan FPN at a later date.

It should be noted that there is no restriction on thetime lapse between the commission of the offenceand the service of the notice but if there is any delayit will need to be justified. Officers will also need tobe aware that the statutory limitation of six monthswill still apply for undertaking summary proceedings.The six months begins from when the offenceoccurred not from when the FPN is served.

Figure 3 sets out the enforcement flowchartfor the offence of failing to preventsmoking in a smokefree place Councils shouldconsider initiating legal proceedings against owners,occupiers, managers or other persons in charge ofsmokefree premises or vehicles only after repeatedefforts to secure compliance with the legislation orwhere there have been serious or persistentcontraventions.

Regulatory officers should therefore initially take aneducational and non-confrontational approachwherever possible. As an initial stage the regulatoryofficer might wish to be satisfied that the owner,occupier, manager or any other person in charge candemonstrate that all reasonable steps are being taken

to prohibit individuals from smoking on theirpremises and to detect and deal with illegal smokingwhen it does occur. (For guidance on managementcontrols and signage, see Section 7 on Application).



Commend goodpractice and discuss any

improvements with proprietor(e.g. additional signage)

First visitLegislation complied with?

Following visitLegislation complied with?

Advise what isrequired and

provide or directto signage

YES

Issue verbal warning andconfirm in writing


Serve FPN

Begin legal proceedings


Figure 1 Enforcement flowchart – failure to display correct no-smoking signage

NO

NO

NO

YES

YES

YES NOMINOR

NON-COMPLIANCE

BLATANTNON-COMPLIANCE NO


Commend goodpractice and discussany improvements

with proprietor



Issue verbalwarnings to boththe proprietor and

the individual

YES


Figure 2 Enforcement flowchart – smoking in a smokefree place

NO

Serve FPNto appropriate person

YES

NO

YES NO

NOGO TO FIGURE 3

As stated in the overall approach, councils shouldtake an educational approach in the first instance butat a certain point this should be reinforced through astronger enforcement approach.

There may be instances where regulatory officers mayfind smoking taking place in the same premises on

several occasions. It would therefore be a matter toraise with management about the controls they havein place – therefore use figure 3. Alternatively officersmay come across the same individual either at thesame premise or different premises who refuses tosmoke outside, at which point it may be appropriateto serve an FPN on the individual.

IN THE CASE OFA PERSISTENTOFFENDERBEGIN SUMMARYPROCEEDINGS


Commend goodpractice and discussany improvements

with proprietor



Issue verbalwarning and

confirm this inwriting

YES


Figure 3 Enforcement flowchart – failure to prevent smoking in a smokefree place

NO

Non-compliance –issue final warning

YES

NO

YES

Ongoing non-complianceBegin legal proceedings

NO

Co-ordination of council services

Many indirect issues arise from the implementation ofthe smokefree legislation that will involve inputs from,and co-ordination between, several council serviceareas. These issues include noise pollution, planningand building control, licensing provisions andmanagement of the street scene. Councils areexpected to demonstrate a corporate approach fromall council services so as to ensure that messages tobusinesses and the public are comprehensive andconsistent.

To support lead officers in encouraging their councilto adopt a corporate approach to the implementationof the smokefree legislation, a model briefingpresentation has been developed and is available foruse and can be downloaded fromwww.www.lacors.gov.uk/lacors/ContentDetails.aspx?authCode=508B63C&id=15453

Staffing arrangements

Council staff with regulatory responsibilities forsecuring compliance with the smokefree legislationmust be provided with the correct authorisation anda valid means of identifying themselves.

In addition, as this work might on occasions becomeconfrontational, staff could be supported withadditional training on assertive behaviour andawareness of personal safety including when workingalone and out of normal office hours.

Database

It is likely that there will be a need to make changesto the council’s regulatory premises database toincorporate the additional and wide range ofpremises covered by smokefree legislation. Sometypes of premises will not have been previouslysubject to inspection by council staff and there willtherefore be no information on history, plans, keycontacts etc. Councils may need to work with otheragencies to develop their database to record

compliance with smokefree legislation e.g., HSEenforced premises.

Smokefree legislation also applies to a wide range ofvehicles and there may be a need to work with otheragencies to obtain information about the numbersand types of vehicles and fleet operations in the localarea. For example, information about the vehiclesoperated by haulage companies, minicabs taxi firmsand other public transport systems, especially wherethe registered office is based locally.

Recording and reporting on activities

The activities of councils in relation to securingcompliance with the smokefree legislation need to beproperly recorded.

Data will be used by the Department of Health toprovide assurance about the work of the enforcingauthorities and the level of compliance as a way ofunderstanding the success of the new law. The datawill be proactively used for communication reasonson the work of enforcing authorities and the level ofcompliance.

Individual councils can also use the data locally toshow how well businesses are doing in their area incomparison with national figures and to continue toget messages to businesses and the public aboutwhat they need to do.

Information on data requirements will becommunicated to councils by LACORS.

Home authority, lead authorityand LOPP schemes

It may be appropriate for the authority with the leadcontact with a large/multi-site organisation to discusswith the company their smokefree policies and theirapproach to ensuring compliance with the smokefreelegislation especially for smokefree public transportvehicles. A brief explanation of the three differentschemes is set out below.


9 Operational procedures and data collection

Home authority

Businesses will generally build up a relationship with,and receive advice and information from, oneparticular local authority. This is usually the localauthority where the business headquarters are based.In relation to trading standards and food safetymatters, local government has developed a voluntaryscheme where that authority is referred to as theHome Authority i.e. ‘the local authority where therelevant decision making base of a business islocated’. Further information is available from theLACORS website at www.lacors.gov.uk

Lead authority and LOPP

The Lead Authority Partnership Scheme (LAPS)is a voluntary partnership set up between a localauthority (the Lead Authority) and a large/multi-site/national organisation. The scheme aims to raise thestandard of health and safety management within apartner organisation or business and encourageconsistency of enforcement across those councils thatengage with it.

Similarly, with organisations involved in theLarge Organisations Partnership Pilot (LOPP)colleagues are requested to inform the AccountManager of issues of national significance identifiedduring inspections. Account Managers are also willingto discuss planned inspections with enforcingauthorities to get an idea of the priorities proposed inthe improvement/engagement plans. Furtherinformation is available from the HSE website atwww.hse.gov.uk

Complaint handling

Experience from other countries that haveimplemented smokefree legislation shows thatcontacts with the Smokefree England campaign lineand National Smokefree Compliance line will comprisethe following:

Requests for information These will be minimalif the advisory visits, media campaign, direct mailingarrangements etc are successful. These enquiriesshould be resolved fairly quickly as enquirers obtainthe necessary information.

Requests for advice Even where advice materialhas been received it may not be well understood andenquirers will also want to know how the legislationapplies in their particular circumstances. Again, theseenquiries should also be resolved fairly soon asenquirers receive clarification and follow-up advice.

Hoax calls Some people will want to test the systemto see if complaints are dealt with seriously.

Complaints of non-compliance These may wellprovide useful intelligence which would not easily beobtained by other means. Whilst in themselves theydo not constitute evidence of any offence, they willneed to be followed-up in order to substantiate theallegation or otherwise.

Councils will deal with all complaints, including thosefrom the National Smokefree Compliance line, inaccordance with their existing corporate complaintprocedure and the usual data protection policies thatapply.

There may be complaints which fall outside the scopeof the legislation. For example, where smoking istaking place on the pavement outside a window andthe secondhand smoke is blowing back into theroom. It is beyond the scope of this document toprovide guidance on how such matters should bedealt with.


Councils will also need to ensure that they are able torespond effectively to any complaints in relation tooffences committed by their own staff i.e. by having asuitable policy and internal disciplinary procedures inplace.

To assist compliance, a freephone line will beoperational from 1 July 2007. Call centre operatorswill be trained to understand the basics of thelegislation and to identify offences. This informationwill then be forwarded to an identified personwithin each council. The number to call will be0800 587 1667.

Administration of exemptions

There is no requirement for a business owner, oranyone else:

• to make use of the exemptions permitted under thesmokefree legislation; or

• to seek consent from, or even to provide notificationto, the council that use is being made of anexemption.

It will therefore be important that the councilrecord details of any exemptions in place that itsofficers become aware of, the nature and extentof the exemption, and the manner in which thespecific conditions attached to exemptions are beingmet. This information will assist in the followingways:

• ensuring future compliance with the conditions ofexemptions;

• responding to future applications for alterations tothe premises, change of use, etc;

• prioritising proactive visits;

• responding to complaints; and

• ensuring consistency of approach.

In relation to the latter point, it will be importantfor staff to be able to ensure that the requiredstandards are consistently met in relation to thespecific conditions attached to exemptions. Thiswould be best addressed by the adoption of acouncil policy setting out its required standards,based on this guidance and other reference material(see Appendix 10).

Ongoing training

An online training resource for all officers engaged insmokefree legislation activities will be availablethrough TS Desk Companion, an e-learning productprovided by the Trading Standards Institute.Information on the online resource will be providedfor councils in the near future atwww.tsi.org.uk/tsdesk


This simple message is at the heart of the SmokefreeEngland campaign being run by the Department ofHealth. It underpins the key themes that goingsmokefree:

• is needed to protect the health of workers and thepublic;

• is wanted by the majority of people; and

• is workable as has been proven by experience of othercountries.

This message and the national campaign materialscan be used by councils in support of their ownmedia messages and local campaigning. Resourcescan be downloaded and ordered fromwww.smokefreeengland.co.uk/campaignpartners

There can be no doubt that there will be mediainterest in this legislation and the success orotherwise of its implementation.

Councils will be in the spotlight for maybe severalweeks or months around the time of implementation.If well prepared and well briefed, this may be seen asa great advantage for the council – good newsstories, enhanced profile are to be welcomed butconversely, if the implementation is not managed welland the spokespersons are not well briefed this couldequally well have quite damaging consequences forthe council. From recent experiences in Scotland,councils may for example be questioned about theallocation of resources for this particular activity. Forthis reason it is recommended that you get to knowyour local press journalists and radio/TV interviewersor at least ensure that your council’s media orcommunications team are known to you.

There are some key messages around the benefits ofgoing smokefree that councils can use for example:

‘This is about the freedom to breathe safe,clean air at work and thereby protecting publichealth. It is estimated that over 600 people dieeach year from illnesses caused by breathing inother peoples tobacco smoke in the workplacein the UK – that is two people per day.’

There will be other local messages that you will wantto use and it will be important to plan for the mediainterest in this area. Where possible prepare goodnews stories in advance. For example numbers ofpremises that have gone smokefree early, levels ofcompliance, low number of complaints etc.

Where possible, use local data (available from yourRegional Tobacco Policy Manager) to support yourstory and remain focused on the issues particularlywhere a radio or TV interview is planned (seeAppendix 3 – media interview prompt sheet).

In the lead-up to 1 July 2007, you can also getfurther support for your media activities from theSmokefree England campaign team on020 7492 0980 or by email [email protected]

You can also get support and advice from yourRegional Tobacco Policy Manager.


10 Working with the media

‘Smokefree protects healthand is positive for business’

The new smokefree law is being introduced to protectemployees and the public from the harmful effects ofsecondhand smoke.

Secondhand smoke is a serious health hazard, andthere is no safe level of exposure. Every time someonebreaths in secondhand smoke, they breath in over4,000 chemicals. Many are highly toxic. More than50 are known to cause cancer.

Medical and scientific evidence shows that the peopleexposed to secondhand smoke have an increased riskof medical conditions such as lung cancer, heartdisease, asthma attacks, childhood respiratory disease,sudden infant death syndrome (SIDS) and reducedlung function.

Scientific evidence also shows that ventilation doesnot eliminate the risks of health of secondhandsmoke in enclosed places. The only way to provideeffective protection is to prevent people breathing inthis smoke in the first place. This is why theGovernment has introduced the new smokefree law.

It is estimated that the law will save thousands oflives over the next decade, and help create cleanerand healthier environments for everyone to work in orvisit.

• Secondhand smoke contains over 4,000chemicals – over 50 are known to cause cancer

• Around 85 per cent of secondhand smoke isinvisible and odourless

You can find out more information about the newlaw on the Smokefree England website atsmokefreeengland.co.uk

For further information seewww.smokefreeengland.co.uk/files/smokefree-is-needed-fact-sheet-final--30.11.pdf


Appendix 1 Evidence

Definition of ‘enclosed’ and ‘substantiallyenclosed’ premises

Premises will be considered to be enclosed if theyhave a ceiling or roof and, except for doors, windowsor passageways, are wholly enclosed, whether on apermanent or temporary basis.

Premises are substantially enclosed if they have aceiling or roof, but there are permanent openings inthe walls which are less than half of the total areasof walls, including other structures which serve thepurpose of walls and constitute the perimeter ofpremises. When determining the area of an opening,no account can be taken of openings in which doors,windows or other fittings that can be open or shut.This is known as the 50 per cent rule.

A roof includes any fixed or movable structures,such as canvas awnings. Tents, marquees orsimilar will also be classified as enclosed premises ifthey fall within the definition.

No-smoking symbol

A symbol which consists solely of a graphicrepresentation of a singe burning cigarette enclosedin a red circle of at least 70 mm in diameter with ared bar across it.

Smoking

Refers to smoking tobacco or anything whichcontains tobacco, or smoking any other substance,and includes being in possession of lit tobacco or ofanything lit which contains tobacco, or being inpossession of any other lit substance in a form inwhich it could be smoked. This includes smokingcigarettes, cigars, herbal cigarettes and pipes(including water pipes, shisha, and hookah).


Appendix 2 Definitions

ABOVE An example ofsubstantially enclosed premises

ABOVE An example ofnon-substantially enclosed premises


Compartment

This includes each part of the vehicle which

• is constructed or adapted to accommodatepersons; and

• is or may from time to time be wholly or partlycovered by a roof.

Private vehicle

See regulation 11(5) of the Smoke-free (Exemptionsand Vehicles) Regulations 2007 – this means a vehiclewhere is it used primarily for the private purposes of aperson who:

• owns it; or

• has a right to use it which is not restricted to aparticular journey.

Council

By using the term council in this guidance we meanall authorities defined by the Smokefree (Premises andEnforcement) Regulations 2006 as enforcementauthorities.

Work

The term ‘work’ includes voluntary work.

Authorised officer

This means any person ( whether or not an officer ofthe authority) who is authorised by it in writing,either generally or specifically, to act in matters underChapter 1 of the Health Act 2006, Smoke-freePremises, Places and Vehicles.

Use the space below to write the three main points that you wish to convey in your interview

1

2

3

Write some national statistics or evidence in the space below

Write some local statistics or evidence in the space below

Write the standard/corporate line in the space below (to be used in every interview if possible)


Appendix 3 Media interview prompt sheet


Offence under theHealth Act 2006

Section 6(5) Failure todisplay no-smoking signin a smokefree premiseor vehicle (occupier ormanager)

Section 7(2) Person whosmokes in a smokefree placeor vehicle (any personsmoking)

Section 8(4) Personhaving management orcontrol of smokefreepremises or vehicle failsto stop a person fromsmoking there (manageror person in control)

Section 11 Any personwho intentionally obstructsan authorised officeror who fails to giveassistance when requestedto do so or who gives falseor misleading information

Appendix 4 Offences and penalties

Defence under theHealth Act 2006

Section 6(6) It is a defencefor the person charged toshow that they did not knowand could not have reasonablybeen expected to know thatthe premises were smokefreeor that they did not know andcould not have reasonably havebeen expected to know thatno-smoking signs complyingwith the requirements were notbeing displayed in accordancewith the requirements or thaton other grounds it wasreasonable for them not tocomply with this duty.

Section 7(4) It is a defencefor the person charged toshow that they did not knowand could not reasonably havebeen expected to know that itwas a smokefree place.

Section 8(5) It is a defencefor the person charged to showthat they took reasonable stepsto cause the person in questionto stop smoking or that theydid not know and could notreasonably have been expectedto know that the person inquestion was smoking or thaton other grounds it wasreasonable for them not tocomply with the duty.

FPN

IF PAID IN 29 DAYS

£200

£50

Notapplicable

Notapplicable

FPN

IF PAID IN 15 DAYS

£150

£30

Notapplicable

Notapplicable

Max. courtawarded fine

IF FOUND GUILTY

Level 3 onstandard scale– currently upto £1000




Schedule 1 to the 2006 Health Act sets out the FixedPenalty Notice scheme that applies to the Act. A FixedPenalty Notice is a notice offering a person theopportunity to discharge any liability to conviction forthe offence by payment of a fixed penalty.

As set out in the Smokefree (Vehicle Operators andPenalty Notices) Regulations 2007, a Fixed PenaltyNotice must:

• identify the offence to which it relates and givereasonable particulars of the circumstances alleged toconstitute that offence;

• state the name and address of the enforcementauthority on whose behalf the officer was actingwhen the notice was issued;

• state the amount of the penalty and the period withinwhich it may be paid;

• state the discounted amount and the period withinwhich it may be paid;

• state the consequences of not making a paymentwithin the period for payment;

• state the person to whom and the address at whichpayment may be made (this must be the local councilfor the area where the alleged offence wascommitted, or a person acting on behalf of thecouncil);

• state the method or methods by which payment maybe made; and

• state the person to whom and the address at whichany representations relating to the notice may bemade.

The arrangements required under these regulations isincluded below.

Officers will need to ensure that a notice has beenproperly served. This may require serving immediately

on the spot, or if a person is seen smoking in theirwork vehicle the officer may have to contact thecompany to find out who was driving – this will thenrequire the company to pass over the information.Officers in Scotland have used a fax system to requestthe information. Where that information is notprovided then notices have been served on theindividual care of the company’s address. If a notice issent recorded delivery – again a record of this mustbe kept by the officer.

There is no fixed time in which officers must servethe notice but to avoid any allegation of abuse ofprocess, it is recommended that any notice is servedwithin a reasonable time period and any delay willneed to be justified. Officers will also need to beaware that the statutory limitation of six months willstill apply for undertaking summary proceedings. Thesix months begins from when the offence occurrednot from when the notice is served.

Payment periods

The full amount of the fixed penalty as stipulated inthe notice will be payable and must be paid within 29days beginning with the day on which the notice isgiven.

However, a discounted amount is payable instead ofthe full amount if payment is made before the end ofthe period of 15 days beginning with the day onwhich the notice is given (if the last day does not fallon a working day, the period for payment of thediscounted amount is extended until the nextworking day).

Failure to pay a Fixed Penalty Notice

If a person on whom a notice has been issued fails topay the amount set out at the end of the 29 dayperiod then the council may institute legalproceedings for the offence to which the penaltynotice relates.


Appendix 5 Fixed penalty notice guide


Requesting a court hearing

Where a person has received a FPN they can givenotice in writing to the council requesting a Courthearing in respect of the offence for which they havereceived the notice. Legal proceedings may then bebrought against them before the end of the penaltypayment period. If the person changes their mind andthen pays the discounted or penalty amount, then theproceedings may not be continued.

Withdrawal of notices

There is no right of appeal against the service of anotice but the person on whom the notice is servedmay ask questions or put forward information thatthey feel, relevant to the issue of the notice. Shouldsuch information suggest that for example a noticehas been incorrectly issued then the council may givenotice in writing to the person and withdraw the FPN.If any monies have already been paid, these must berepaid.

Template notices are provided in the Smoke-free(Vehicle Operators and Penalty Notices) Regulations2007.


X commits an offence

Issue FPN

FPN flowchart Applicable to offences relating to failure to displaycorrect no-smoking signage and smoking in a smokefree place

X does not pay FPNX pays FPN

Council withdrawsFixed Penalty Notice

X requestscourt hearing

Court finds againstX and imposes fine

Court finds for X andFPN no longer applies

OR

Report for legalproceedings


Template notices

SCHEDULE 1 Regulation 3(2)

Form 1 - Failing to display prescribed no-smoking signs or failing to display no-smoking signs in a prescribed manner

[NAME OF ENFORCEMENT AUTHORITY][ADDRESS OF ENFORCEMENT AUTHORITY]

HEALTH ACT 2006:SECTION 6 (FAILURE TO DISPLAY NO-SMOKING SIGNS IN ACCORDANCE WITH REQUIREMENTS MADE BY OR UNDER SECTION 6)

FIXED PENALTY NOTICEPENALTY AMOUNT £200

PART 1RECIPIENT COPY

Penalty notice number:

Full name of alleged offender

Address of alleged offender

Postcode

Date of birth (if known) Male/female (circle one)

I, (name), an authorised officer of [name of enforcement authority]under section 10 of the Health Act 2006, have reason to believe that you committed an offence under section 6 of the Health Act 2006(failure to display no-smoking signs in accordance with requirements made by or under section 6) in premises, a place or vehicle in relationto which [name of enforcement authority] has enforcement responsibilities.

The circumstances alleged to constitute the offence are that at:

(time) on (date)

you, at/on the following premises, place or vehicle (where alleged offence took place, including address, if any):

being premises, a place or vehicle to which the provisions of section 6 of the Health Act 2006 applies, allegedly (details of offence):

This notice offers you the opportunity of discharging any liability for conviction for that offence by the payment of a fixed penalty of£200 (two hundred pounds). No proceedings will be taken for this offence before the expiration of the period of 29 days beginningwith (insert the date on which this notice is given). You will not be liable to conviction for the offence if you pay the fixed penalty within that period. In this Form this period is referred to as the 29 day period.

You can pay a discounted amount of £150 (one hundred and fifty pounds) if you pay within the period of 15 days beginning with (insert the date on which this notice is given). If the 15th day is not a working day, you may pay on the next working day. ‘Working day’ means any day which is not Saturday,Sunday, Christmas Day, Good Friday or a day which is a bank holiday in England and Wales under the Banking and FinancialDealings Act 1971. In this Form this period is referred to as the 15 day period.

Information for the immediate attention of the person who has been issued this penalty notice is at Part 2 of this notice. Details about howto pay this fixed penalty are at Part 3 of this notice. Details about how to request a court hearing in relation to this alleged offence are atPart 4 of this notice. If you have any questions, or if you wish to discuss this notice, please contact [insert name and address ofenforcement authority and contact details].

Signature of authorised officer Date of issue


PART 2INFORMATION FOR THE IMMEDIATE ATTENTION OF THE

PERSON WHO HAS BEEN ISSUED WITH THIS PENALTY NOTICE

You have received this notice because the authorised officer of [name of enforcement authority] named in Part 1 of this notice has reasonto believe that you have committed the offence of failing to display a no-smoking sign in accordance with requirements made by orunder section 6 of the Health Act 2006. Within the 29 day period specified in Part 1, you must either pay the penalty or request thatthe matter be heard by a court. You may not do both.

If you fail to do either, [name of enforcement authority] as an enforcement authority by virtue of section 10 of the Health Act 2006, maypursue this matter in court. A person found guilty of the offence of smoking in a smoke-free place is liable on summary conviction to afine not exceeding level 1 on the standard scale (a).

(a) Currently £200 – see section 37 of the Criminal Justice Act 1982 (c.48) as amended by section 17 of the Criminal Justice Act 1991 (c.53).

PART 3PAYING THE PENALTY

The amount of the fixed penalty is £200 (two hundred pounds). It must be paid within the 29 day period which is specified in Part 1.

You can pay a discounted amount of £150 (one hundred and fifty pounds) if you pay within the 15 day period specified in Part 1.

If you choose to pay the penalty, no further action will be taken in respect of the alleged offence described at Part 1 of this penaltynotice. The payment of the penalty involves no admission of guilt and will not result in a record of criminal conviction being madeagainst you.

Payment may be made by completing Part 3A below and returning it with payment to the address stated in that Part, or by completingPart 3A below and paying in person at [name of enforcement authority]. Acceptable methods of payment include cash, cheque, postalorder or money order.

Cheques, postal orders or money orders should be made payable to [name of enforcement authority]. If you choose to pay this penaltyin cash by post, this must be sent by registered post, and proof of posting must be retained. If you require a receipt for the payment ofthe penalty, you must ask for one at the time of payment, and if paying by post, you must provide a stamped, self-addressed envelope.

WARNING – LATE PAYMENT WILL NOT BE ACCEPTEDYOU WILL NOT BE SENT A REMINDER

PART 3APAYMENT OF FIXED PENALTY ISSUED UNDER SECTION 6 OF THE HEALTH ACT 2006

(FAILURE TO DISPLAY NO-SMOKING SIGNS IN ACCORDANCE WITHREQUIREMENTS MADE BY OR UNDER SECTION 6)

This slip must accompany all payments

To: [Name and address of enforcement authority where payment should be sent]

Penalty notice number

I enclose the amount of: £150 (if the payment is made within the 15 day period specified in Part 1)(tick one box) £200 (if the payment is made within the 29 day period specified in Part 1)



Postcode

Signature x Date of issue

Template notices


PART 4REQUESTING A COURT HEARING

If you choose to request a court hearing, you must within the 29 day period do so by completing Part 4A and sending it to [name ofenforcement authority], or by writing to [name of enforcement authority] at the address stated on Part 4A, giving your details, thepenalty notice number (which can be found in Part 1 of this notice) and an address at which a summons can be served on you. Thesummons will tell you when and where to attend court. Only the recipient of this penalty notice (the person named at Part 1) mayrequest a court hearing.

PART 4AHEALTH ACT 2006: FAILING TO DISPLAY A NO-SMOKING SIGN IN

ACCORDANCE WITH REQUIREMENTS MADE BY OR UNDER SECTION 6

REQUEST FOR ALLEGED OFFENCE TO BE DEALT WITH BY A COURT OF LAW

To: [Name and address of enforcement authority]


I wish to be dealt with by a court of law for the alleged offence.



Postcode


Template notices


SCHEDULE 2 Regulation 3(2)

Form 1 - Failing to display prescribed no-smoking signs or failing to display no-smoking signs in a prescribed manner

[NAME OF ENFORCEMENT AUTHORITY][ADDRESS OF ENFORCEMENT AUTHORITY]

HEALTH ACT 2006:SECTION 7 (OFFENCE OF SMOKING IN A SMOKE-FREE PLACE)

FIXED PENALTY NOTICEPENALTY AMOUNT £50

PART 1RECIPIENT COPY

Penalty notice number:



Postcode

Date of birth (if known) Male/female (circle one)

I, (name), an authorised officer of [name of enforcement authority]under section 10 of the Health Act 2006, have reason to believe that you committed an offence under section 7 of the Health Act 2006(smoking in a smoke-free place) within premises, a place or vehicle in relation to which [name of enforcement authority] has enforcementresponsibilities. Section 7(1) to the Health Act 2006 provides that smoke-free places include smoke-free premises and smoke-free vehicles.

The circumstances alleged to constitute the offence are that at:

(time) on (date)

you, at/on the following premises, place or vehicle (where alleged offence took place, including address, if any):

being premises, a place or vehicle to which the provisions of section 7 of the Health Act 2006 applies, allegedly (details of offence):

This notice offers you the opportunity of discharging any liability for conviction for that offence by the payment of a fixed penalty of£50 (fifty pounds). No proceedings will be taken for this offence before the expiration of the period of 29 days beginningwith (insert the date on which this notice is given). You will not be liable to conviction for the offence if you pay the fixed penalty within that period. In this Form this period is referred to as the 29 day period.

You can pay a discounted amount of £30 (thirty pounds) if you pay within the period of 15 days beginning with(insert the date on which this notice is given). If the 15th

day is not a working day, you may pay on the next working day. ‘Working day’ means any day which is not Saturday,Sunday, Christmas Day, Good Friday or a day which is a bank holiday in England and Wales under the Banking and FinancialDealings Act 1971. In this Form this period is referred to as the 15 day period.

Information for the immediate attention of the person who has been issued this penalty notice is at Part 2 of this notice. Details about howto pay this fixed penalty are at Part 3 of this notice. Details about how to request a court hearing in relation to this alleged offence are atPart 4 of this notice. If you have any questions, or if you wish to discuss this notice, please contact [insert name and address ofenforcement authority and contact details].

Signature of authorised officer Date of issue

Template notices


PART 2INFORMATION FOR THE IMMEDIATE ATTENTION OF THE

PERSON WHO HAS BEEN ISSUED WITH THIS PENALTY NOTICE

You have received this notice because the authorised officer of [name of enforcement authority] named in Part 1 of this notice has reasonto believe that you have committed the offence of smoking in a smoke-free place as described in Part 1. Within the 29 day periodspecified in Part 1, you must either pay the penalty or request that the matter be heard by a court. You may not do both.

If you fail to do either, [name of enforcement authority] as an enforcement authority by virtue of section 10 of the Health Act 2006, maypursue this matter in court. A person found guilty of the offence of smoking in a smoke-free place is liable on summary conviction to afine not exceeding level 1 on the standard scale (a).

(a) Currently £200 – see section 37 of the Criminal Justice Act 1982 (c.48) as amended by section 17 of the Criminal Justice Act 1991 (c.53).

PART 3PAYING THE PENALTY

The amount of the fixed penalty is £50 (fifty pounds). It must be paid within the 29 day period which is specified in Part 1.

You can pay a discounted amount of £30 (thirty pounds) if you pay within the 15 day period specified in Part 1.

If you choose to pay the penalty, no further action will be taken in respect of the alleged offence described at Part 1 of this penaltynotice. The payment of the penalty involves no admission of guilt and will not result in a record of criminal conviction being made againstyou.

Payment may be made by completing Part 3A below and returning it with payment to the address stated in that Part, or by completingPart 3A below and paying in person at [name of enforcement authority]. Acceptable methods of payment include cash, cheque, postalorder or money order.

Cheques, postal orders or money orders should be made payable to[name of enforcement authority]. If you choose to pay this penalty incash by post, this must be sent by registered post, and proof of posting must be retained. If you require a receipt for the payment of thepenalty, you must ask for one at the time of payment, and if paying by post, you must provide a stamped, self-addressed envelope.

WARNING – LATE PAYMENT WILL NOT BE ACCEPTEDYOU WILL NOT BE SENT A REMINDER

PART 3APAYMENT OF FIXED PENALTY ISSUED UNDER SECTION 7 OF THE HEALTH ACT 2006

(OFFENCE OF SMOKING IN A SMOKEFREE PLACE)

This slip must accompany all payments

To: [Name and address of enforcement authority where payment should be sent]


I enclose the amount of: £30 (if the payment is made within the 15 day period specified in Part 1)(tick one box) £50 (if the payment is made within the 29 day period specified in Part 1)



Postcode


Template notices


PART 4REQUESTING A COURT HEARING

If you choose to request a court hearing, you must within the 29 day period do so by completing Part 4A and sending it to [name ofenforcement authority], or by writing to [name of enforcement authority] at the address stated on Part 4A, giving your details, the penaltynotice number (which can be found in Part 1 of this notice) and an address at which a summons can be served on you. The summons willtell you when and where to attend court. Only the recipient of this penalty notice (the person named at Part 1) may request a courthearing.

PART 4AHEALTH ACT 2006: OFFENCE OF SMOKING IN A SMOKEFREE PLACE UNDER SECTION 7

REQUEST FOR ALLEGED OFFENCE TO BE DEALT WITH BY A COURT OF LAW

To: [Name and address of enforcement authority]


I wish to be dealt with by a court of law for the alleged offence.



Postcode


Template notices


Appendix 6 Example incidentform for use by businesses

Date Description of incident Action taken Outcome Name ofand time (e.g. where person smoking, and by whom manager

description of person)

RTPM contact details (correct as at March 2007)

North East Ailsa Rutter [email protected]

North West Brenda Fullard [email protected]

Yorkshire & Humber Pat Hodgson [email protected]

East Midlands Kath Childs [email protected]

West Midlands Paul Hooper [email protected]

East Beelin Baxter [email protected]

London Andrew Hayes [email protected]

Jo Locker [email protected]

South East Helen Atkinson [email protected]

South West Fiona Andrews [email protected]


Appendix 7 RTPM contact detailsand smoking cessation information


Support available for anyone who wants tostop smoking

It’s estimated that 70 per cent of smokers want togive up smoking, and the new smokefree law mightprovide them with an extra reason to do so. Ifbusinesses would like to help staff and customersbecome non-smokers, there is excellent free supportavailable from the NHS. This includes:

Local NHS Stop Smoking Services

To find your local service:

• call the NHS Smoking Helpline free on0800 169 0 169;

• visit gosmokfree.co.uk;

• text ‘GIVE UP’ and your full postcode to 88088; or

• ask at your local GP practice, pharmacy or hospital.

Employees

Employees can speak to their local NHS Stop SmokingService about support for their employees during oroutside working hours.

NHS Smoking Helpline

Individuals can speak to a specialist adviser by calling0800 169 0 169 (lines are open daily from 7am to11pm).

gosmokefree.co.uk

This is an online resource for all the advice,information and support needed to stop and staystopped.

Together

This support programme is free to join, and isdesigned to help individuals stop smoking using both

medical research as well as insights from ex-smokers.You can choose to receive emails, text messages,mailing packs and phone calls. For more informationcall the NHS Smoking Helpline on 0800 169 0 169or visit gosmokefree.co.uk

New guidance from the National Institute for Healthand Clinical Excellence (NICE) will advise employers onhow to help employees stop smoking. Visitwww.nice.org.uk for more information.

The smokefree legislation does not require thecreation of shelters for smokers and an owner of apremises cannot be compelled to make suchprovision.

However, it is likely that some businesses will want tobuild shelters to accommodate people who work onor visit their premises and who can no longer beallowed to smoke inside their buildings.

Furthermore, the smokefree legislation does not dealwith how smoking shelters should be constructed orsited. Since that is the case, it is not possible forLACORS to specify how such shelters should beconstructed or sited. Some organisations have askedfor national planning guidance to be issued regardingsmoking shelters. It is the view of LACORS andsupported by Communities and Local Governmentthat it would not be possible to produce meaningfulplanning guidance at a national level that wouldadequately cover the range of considerations thatmight be important at a local level.

Therefore the approval of such shelters, or otherwise,will necessarily be a matter for local determination byregulatory officers liaising with planning officers andothers to ensure that any shelter that is used forsmoking is not substantially enclosed and can be usedby smokers without offences being committed.

However, the following can be offered as generalguidance. Where businesses do want to erect sheltersthey will need to give consideration to the following:

• local planning requirements;

• building control requirements;

• licensing requirements in terms of outside hours/use of the street;

• noise issues, especially at night and adjacent toresidential areas

• provision of suitable litter receptacles to help keep thestreets/outside areas clean; and

• the use of any temporary covers that may cause thestructure to be classed as substantially enclosed.

The siting of the shelter is also important and it istherefore recommended that:

• it should not be sited too close to sheltering walls orother structures which may prevent proper air-flowthrough the shelter since this would not only beagainst the spirit of the legislation and commonsensebut could also effectively render the structuresubstantially enclosed and raise the prospect ofoffences being committed when it is used bysmokers; and

• it should be sited so as to ensure as far as possiblethat secondhand smoke will not be likely to drift intosmokefree areas of premises and give rise tocomplaints.

For the above reasons it is advised that before anyfinal decision is made on type and location of ashelter, businesses should seek the advice from theirlocal council.

Whilst regulatory officers will wish to provide advicewhere possible on the provision of smoking shelters,the main focus of their attention will be to ensurecompliance with the smokefree legislation in thoseenclosed and substantially enclosed areas whichconstitute the workplaces and ‘indoor’ public placesand that work must take priority.


Appendix 8 Key issues inrelation to smoking shelters


1 Second-hand smoke exposure kills and harms health

2 Every worker has the right to be protected from exposure totobacco smoke

3 Scientific evidence shows that ventilation does not protectagainst exposure to tobacco smoke

4 Smokefree laws do not result in negative economic effects

5 Freedom of choice includes the responsibility not to harm others

6 The public supports smokefree legislation

7 The public complies with smokefree legislation

8 It has been done elsewhere. It can be done everywhere

9 It is a cost effective public health intervention

10 Comprehensive smokefree policies work

Appendix 9 Ten reasons to go smokefree6

6 Lifting the smokescreen: 10 reasons for a smoke free Europe http://dev.ersnet.org/uploads/Document/46/WEB_CHEMIN_1554_1173100608.pdf

Requirements

A General advice notes

A1 Designation of non-smokefree rooms

A2 General duty of care under Health and Safety atwork (HSW) etc Act 1974

A3 Ventilation of designated non-smokefree rooms


Appendix 10 Application, exemptionsand advice on good practice

The application of the smokefree requirements, exemptions and advice on good practice

Advice and good practice

If a designated room does not meet the requiredconditions and people are permitted to smoke in itthen an offence will have been committed. The adviceto the persons in control of such premises shouldtherefore be that the council should be consulted onthe suitability or otherwise of individual rooms beforethe decision is made on designation.

The employer of staff who are expected to carry outwork in designated rooms will still have a generalduty of care under the HSW Act. The employershould consider what needs to be done to minimiseexposure of the employee to secondhand smoke or tomitigate its effects upon the employee – for exampleby specifying the time periods during which thedesignated room will be available for use or bystipulating when the room must be vacated each dayin order to allow sufficient time for the room to beventilated prior to cleaning and housekeepingactivities being carried out.

A method of ventilation is likely to be throughopenable windows to the external air. Therefore theadvice of the council may be that the windows in aroom intended to be designated as a non-smokefreeroom should be fully openable. In respect of windowswhere opening restrictors or other security measuresare considered to be necessary, the requirementshould be that any such restrictors can be released byan adult occupant or house-keeping staff.


1 Private dwellings

These requirements are intended to achieve a balancebetween allowing people to smoke in their ownresidential space and protecting others from exposureto secondhand smoke.

1a The following parts of a private dwelling arerequired to be smokefree – any parts of a dwellingwhich are used solely as a place of work for:

• more than one person who does not live at thedwelling;

• a person who does live at the dwelling and anyperson who does not; or

• any person whether they live at the dwelling or not,if people who do not live at the dwelling come togive or receive goods or services.

1b The following parts of a private dwelling arerequired to be smokefree:

• any parts of premises that are used in common bymore than one premise and are used as aworkplace by more than one person or is a placethat is open to members of the public.

The general principle is that the person living in thedwelling is free to decide whether the premisesshould be smokefree or not unless the dwelling is alsoused for work purposes by others or visited by thepublic (note the person may be an employed homeworker and one who works with someone else if theyboth live in the dwelling).

The effect of this requirement is that the exemptioncan only be claimed by a self-employed personworking at home alone and where clients or membersof the public are not admitted. It is considered thatthese conditions will rarely apply.

Visited by the public means at any time that thepremises are being used for work purposes – i.e.when they are open for business.

In respect of premises which are only open to thepublic for limited specified periods and which are nototherwise a workplace e.g. ‘stately homes’ then therequirement to be smokefree only applies for thatperiod.

This requirement applies both to self-containeddwellings within a single structure as well as tohouses in multiple occupation, halls of residence,nursing homes etc.

The areas that may be required to be smokefree couldinclude: common entrances halls, stairwells and lifts ina block of flats; communal kitchens, bathrooms orlaundry rooms in halls of residence; and the ‘commonparts’ of an HMO but only where it is used as aworkplace by more than one person or open tomembers of the public.

The question of whether work is carried out will be aquestion of fact and degree. For example in halls ofresidence there might be daily cleaning, whereas insome houses in multiple occupation there may be noregular cleaning arrangements other than thatarranged by the occupants themselves.

1c There is no restriction on people smoking in anypart of their private dwellings used for work, if thework is undertaken solely to:

• provide personal care for someone living in thedwelling;

• assist with the domestic work of the household inthe dwelling;

• maintain the dwelling; or

• install, maintain or remove any service provided tothe dwelling for the benefit of people living there.

There is no restriction on people smoking in self-contained residential accommodation for temporaryor holiday use such as a holiday cottages, caravans,lodges or flats so long as it is rented in its entirety forprivate residential use, as well as any other structuressuch as garages or sheds that are for the exclusive useof persons living in the dwelling.


This exemption means that there is no requirement tobe smokefree whilst there is a nanny, cleaner, carer,builder or service engineer present.

However, the householder and person providing theservice should be encouraged to come to an agree-ment about where and when smoking can take place.

The employer of staff carrying out work in privateresidential accommodation will still have a generalduty of care under HSW Act. Therefore:

• where the contract of employment providesaccommodation within the home of the employer itwould be sensible for the smokefree status of theaccommodation, or different parts of theaccommodation, to be specified; and

• where the employed person is required to visit,attend or carry out services or treatments for aperson in their own home, then the employershould consider what needs to be done to minimiseexposure of the employee to second-hand smoke orto mitigate its effects upon the employee.Comprehensive guidance for this purpose has beenissued by the Royal College of Nursing.www.rcn.org.uk/publications/pdf/protecting_community_staff_smoke.pdf

It is important that potential hirers are clearly advisedat the time of booking on the smokefree status of theaccommodation they intend to occupy.

Owners may choose to require their premises to besmokefree and these regulations will not affect theirright to require this. As a deterrent, the owner mightwish to retain a deposit against cleaning a propertyshould smoking in contravention of the condition ofthe hire have taken place. In order to comply with theUnfair Terms in Consumer Contracts Regulations1999, the amount of such a deposit should not bemore than the costs of the cleaning.

2 Accommodation let for temporary or holiday use


In hotels, guest houses, inns, hostels or members’clubs designated bedrooms need not be smokefreeif they are designated as such in writing by theperson in charge.

Each designated bedroom has to meet specifiedrequirements in relation to ventilation, separation andsignage (see table of requirements for designation ofrooms for smoking).

A designated bedroom cannot be a dormitory, orother room for accommodation that is made availableunder separate arrangements for persons to share atthe same time.

In care homes, hospices, prisons and mental healthunits that provide residential accommodation –designated bedrooms, or designated rooms used onlyfor smoking, need not be smokefree if they aredesignated as such in writing by the person in charge.

The designated rooms can only be used by personsover the age of 18 years.

Each designated bedroom or designated smokingroom has to meet specified requirements in relationto ventilation, separation and signage (see table ofrequirements for designation of rooms for smoking).

See general advice notes A1 and A2 and A3.

The person in control of the premises must designatethe bedrooms in writing and it is good practice forthat person to prepare a list of designated bedroomsthat can be produced for inspection when requestedby the regulatory officer.

The only rooms which can be designated arebedrooms and not other parts of a suite or roomswhich are used in common with other bedrooms or inother parts of the building, even if all bedrooms aredesignated.

In deciding upon the proportion of bedrooms inwhich to permit smoking, the person in charge needsto be aware that only a quarter of the adultpopulation smoke and many people who do smokewill prefer smokefree bedrooms.

Designated bedrooms are intended only be used byguests and not by staff who wish to smoke.


A designated smoking room should be provided onlyfor that singular purpose. Therefore it is advisable thatthe room does not contain any recreationalequipment or material or furniture, other than thatnecessary to meet the mobility needs of individualswhilst they are using the room to smoke.

Designated smoking rooms are primarily provided forthe use of residents and their visitors only.

Note: In the case of a mental health unit thedesignation is limited to premises providing residentialaccommodation (not day facilities) and expires on1 July 2008.

3 Sleeping accommodation in hotels, guest houses, inns, hostels and members clubs

4 Accommodation in care homes and secure institutions

5 Performers

Persons participating in a performance are not to beprevented from smoking if the artistic integrity of theperformance makes it appropriate for that person tosmoke.

Parts of premises in which a person performs is notsmokefree in relation to that person only during thetime of the performance.

This exemption does not extend to rehearsals or topersons other than the particular performer whoshould be identified in the script.

If a performer smokes in smokefree premises whenthe artistic integrity of the performance does notrequire smoking to take place, then both theperformer and any person that controls or managesthe premises could be committing an offence.

6 Specialist tobacconists

Specialist tobacconists need not be smokefree for thetime they are used for persons sampling cigars andpipe tobacco.

Specified requirements similar to those for adesignated smoking room have to be met in relationto ventilation, separation and signage (see table ofrequirements for designation of rooms for smoking).

The requirements to prevent smoking will cover theduties of the directors to ensure that therequirements set out in the regulations for performersare followed.

See general advice note A2.

This provision does not exist in the legislation forScotland where smoking on stage has been thesubject of challenges and media interest. The absenceof any definition of ‘performance’ and of criteria fordetermining ‘artistic integrity’, together with theobvious conflict between opinions about ‘artisticintegrity’ and the rights of employees to smokefreeworkplaces, will ensure that there will bedisagreements about whether smoking should beallowed or disallowed. It has not been possible toidentify any clear guiding principles for localauthorities to take into account in determining thesematters and it will be necessary for each case to bedecided on its merits.

This issue may arise with performers in public housesand smaller venues etc. and it should be raised withlandlords/owners when discussing smokefreerequirements.

Specialist tobacconists are defined in section 6(2) ofthe Tobacco Advertising and Promotion Act 2003.These shops are small in number and are businesseswhere over half their sales come from cigars, pipetobacco and related specialist tobacconists materials.

The exemption is only for the sampling of cigars andpipe tobacco and not for cigarettes or rolled tobacco.

The exemption applies to the whole shop providedthe specified conditions are met.

A list of specialist tobacconists in England is availableon the LACORS website.



7 Offshore installations

A designated room used solely for smoking inoffshore installations need not be smokefree if it isdesignated in writing by the person in charge.

Each designated smoking room has to meet specifiedrequirements in relation to ventilation, separation andsignage (see table of requirements for designation ofrooms for smoking).

8 Research and testing facilities

A room in a research or testing facility need not besmokefree during the time that it is being used forresearch or tests if it is designated in writing by theperson in charge.

Each designated room has to meet specifiedrequirements in relation to ventilation, separation andsignage (see table of requirements for designation ofrooms for smoking).

Note that these could include research facilities inschools.

This exemption is intended for oil platforms andoffshore installations where smoking in the open airwould create a risk.


Local councils with such facilities in their area mayfeel that securing compliance with these requirementsshould be taken into account by the Health andSafety Executive in establishing the overall safetystandards for such facilities. This would includeconsiderations of how best to protect employees fromexposure to secondhand smoke, arrangements tominimise accidental exposure of the employees or tomitigate effects and regular health screening.

The research or tests must relate to:

• emissions from tobacco and other products usedfor smoking;

• development of products for smoking with lowerhazard or fire safety testing of materials involvingproducts for smoking;

• development of smoking or pharmaceuticalproducts that could result in the manufacture ofless dangerous products for smoking; or

• smoking cessation programmes.

9 Smokefree vehicles

Enclosed vehicles are required to be smokefree at alltimes if they are used:

• by members of the public or a section of thepublic, whether or not for reward or hire; or

• in the course of paid voluntary work by more thanone person, even if those people use the vehicle atdifferent times, or only intermittently.

Vehicles that are required to be smokefree and thathave a removable or stowable roof will not berequired to be smokefree when they are conveyingpersons during the time that the roof is completelyremoved or stowed.

Vehicles will not be required to be smokefree if theyare used primarily for the private purposes of aperson who:

• owns it, or

• has a right to use it which is not restricted to aparticular journey.

The Smoke-free (Vehicle Operators and PenaltyNotices) Regulations 2007 set out the persons whowill have legal duties to cause any person who issmoking on a smokefree vehicle to stop smoking,namely:

• the driver;

• any person with management responsibilities forthe vehicle; and

• any person in a vehicle who is responsible for orderor safety on it.

This will mainly apply to convertible cars and opentop tour buses that are making a journey.

A privately owned vehicle used by the owner inconnection with their work and only occasionally forconveying other people in connection with workactivities will not be required to be smokefree.

A vehicle which is on hire for long term personal usedoes not have to be smokefree (unless the hirecompany specifies smokefree as a rental condition orthe company employing the driver restricts the use ofthe vehicle to a particular journey).

A pool car which is available for general work use fora particular journey is required to be smokefree.

A rental vehicle being delivered to a customer isconsidered to be a work vehicle and would berequired to be smokefree.



10 Ships and hovercraft

It is intended that the requirements of the smokefreeregulations will, where appropriate, apply to allvessels, both passenger and non-passenger ships,including fishing vessels, that come within the scopeof the Merchant Shipping Act 1995 and that similarlegislation will be apply to hovercraft. Therequirements would only apply whilst the vessels areoperating within the 12-mile UK territorial limit,unless they are in transit and will not be calling at aUK port.

11 Aircraft

This legislation does apply to aircraft.

It is not proposed to extend the smokefree provisionsto any vessel which is operated by self-employedseafarers with no employed crew and/or payingpassengers on board, or to private vessels which arenot carrying any fare paying passengers or anyemployed crew on board. This would mean that theprovisions would not apply to vessels used primarilyfor private purposes, nor to private vessels such asyachts, motor cruisers, and small private fishingvessels, unless they are carrying at least one payingpassenger, or are operating with crew employedunder a contract.

Where a boat is moored and for example used forother purposes, the council will need to check withthe Maritime and Coastguard Agency (MCA) as towhether the vessel falls under the jurisdiction of theMCA or is for the council to investigate.

The Government believes that provisions in the AirNavigation Order 2005 regarding smoking in aircraftare working satisfactorily. The Air Navigation Orderalso makes suitable provision regarding no-smokingsignage.

Conditions required to be met fordesignated rooms

The chart below details the conditions that must bemet for designated rooms in specified premises, as setout in the Smoke-free (Exemptions and Vehicles)

Regulations 2007. A tick on the chart means that thecondition must be met in order to designate a roomfor smoking. If all required conditions are not met inany designated room in specified premises, the roommust be smokefree under the provisions in the HealthAct 2006.


Types ofpremises

Accommodation forguests and club

members (hotels,guest houses, inns

hostels or members’clubs), not including

dormitories

Other residentialaccommodation

(only care homes,hospices and

prisons)

Offshoreinstallations

Research and testingfacilities (limited tothose engaged inresearch or tests

specified inregulations)

Mental Health unitsthat provideresidential

accommodation(exemption alloweduntil 1 July 2008)

Specialisttobacconists shops(as defined in the

Tobacco Advertisingand Promotion Act

2002)

Type of roomthat can bedesignated

Guest bedrooms,set apart exclusively

for sleepingaccommodation

Bedrooms or roomsused only for

smoking

Rooms used only forsmoking

Rooms used forspecified research

or tests

Bedrooms orrooms used only

for smoking

Entire shop forsampling of cigarsor pipe tobacco

Room has a ceilingand, except for

doors and windows,is completely

enclosed on all sidesby solid floor-to-

ceiling walls

4 4 4 4 4

Room does not havea ventilation systemthat ventilates into

any other part of thepremises (except any

other designatedrooms)

4 4 4 4 4 4

Room does not haveany doors that open

onto smokefreepremises, which are

not mechanicallyclosed immediately

after use

4 4except prisons

4 4 4 4

Room is clearlymarked as a room in

which smoking ispermitted 4 4 4 4 4 4

The Department of Transport has published itsconsultation on the Proposed Restrictions on Smokingon Sea Going and Inland Waterway Vessels.

www.dft.gov.uk/consultations/open/smokingonvessels/smoking

The smokefree provisions are designed to protectemployees at their work place, as well as the public.Therefore, it seems inconsistent if the crew ofmerchant ships and inland waterway vessels, or theirpassengers, are not likewise protected. TheGovernment’s view therefore is that all vessels withinthe scope of the Merchant Shipping Act 1995 shouldbe covered by similar smokefree provisions as thoseset out in the Health Act in England, providing thateither at least one paying passenger and/or someonewho is employed under a contract of employment ison board.

It is intended that the smokefree regulations willapply to all vessels, both passenger and non-passenger ships, including fishing vessels, that comewithin the scope of the Merchant Shipping Act 1995and that similar legislation will apply to hovercraft.The requirements would only apply whilst the vesselsare operating within the 12-mile UK territorial limit,unless they are in transit and will not be calling at aUK port.

Similar to the requirements of the Health Act, whilstall common enclosed areas of the vessel must besmokefree, the vessel operator may permit residentcrew members and guests to smoke in an entirelyprivate space that is essentially residential, and whichdoes not have ventilation which is shared with, ordischarges into, the smokefree common areas of thevessel.

It is not proposed to extend the smokefree provisionsto any vessel which is operated by self employedseafarers with no employed crew and/or payingpassengers onboard, or to private vessels which arenot carrying any fare paying passengers or anyemployed crew onboard. This would mean that the

provisions would not apply to vessels used primarilyfor private purposes, nor to private vessels such asyachts, motor cruisers, and small private fishingvessels, unless they are carrying at least one payingpassenger, or are operating with crew employedunder a contract.

The consultation period began on 14 February 2007and will run until 11 May 2007. The CharteredInstitute of Environmental Health Port HealthSpecial Interest Group will be interested in anyintended responses to this consultation and thesecan be directed to Ian Gray, CIEH Policy Officerat [email protected]

Appendix 11 Summary of the Departmentof Transport consultation document

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