Revisiting the 2006 Health Act

Yesterday saw some good news:

A prisoner suffering from poor health has lost his attempt to enforce the smoking ban in English and Welsh jails after the supreme court ruled that crown premises are effectively exempt from the enforcement of health regulations.

The unanimous judgment from the UK’s highest court will prevent the inmate, Paul Black, from calling the NHS’s smoke-free compliance line to report breaches of the ban.

Lady Hale, the president of the supreme court, said she was driven with “considerable reluctance” to conclude that when parliament passed the 2006 Health Act, prohibiting smoking in offices, bars and enclosed areas, it did not mean to extend it to government or crown sites.

The standard practice is that a statutory provision does not bind the crown unless legislation adopts words explicitly stating so or by what is known as “necessary implication”.

“Had parliament intended part 1 of chapter 1 of the 2006 act to bind the crown, nothing would have been easier than to insert such a provision,” Hale explained.

“The report of the health committee [at the time] does indicate that parliament was alive to the question of whether the smoking ban would bind the crown and aware of the case for further exemptions if the act were to do so.

As Simon Clark was pointing out yesterday:

The 2006 Health Act did of course allow exemptions and they included, in particular, “any premises where a person has his home, or is living whether permanently or temporarily (including hotels, care homes, and prisons and other places where a person may be detained).

It seems to me that, given this ruling from Britain’s highest court, any attempt by the government to ban smoking in prisons is dead in the water, at least for the time being. And in fact it would seem that the government should now have to roll back the the bans that it has already introduced in a number of prisons.

It also seems to me that, if the government wishes to ban smoking in prisons, it will need to go back to Parliament  with a new Bill in which the 2006 Health Act exemptions are removed. There will have to be another debate, and another vote. Chris Snowdon seems to agree on this:

Presumably, the government will act in the new year to amend the legislation and take us back to where we thought we were before.

So I’ve been wondering whether Theresa May’s Conservative government will, in effect, attempt to get even tougher on smoking than Tony Blair’s Labour government got back in 2006. And if they put a new Bill before the House, will MPs vote as enthusiastically as they did back in 2006 in favour of a prison smoking ban? And if MPs are going to vote to ban prisoners from smoking in their own homes, why not go the whole hog, and remove all the exemptions, and ban everyone from smoking in their own home?

I somehow suspect that Parliament may not be quite as enthusiastic to ban smoking in even more places than it did 10 years ago. The smoking ban was hailed as a great success back in 2006. But it seldom gets any mention these days. When Tony Blair was listing, a few months ago, his achievements as PM, the smoking ban didn’t even get a mention. Perhaps the closure of tens of thousands of pubs was a consequence of the ban that many MPs could not fail to notice. Perhaps also the appearance of a small but vocal smokers’ resistance movement (i.e. people like me) has not gone entirely unnoticed either.

I’ve never really understood why first David Cameron and then Theresa May have continued to support a smoking ban that most Conservative MPs voted against, particularly since it has emerged that David Cameron still smokes. The only explanation I have been able to come up with is that neither of them are/were Conservatives, but were in fact as radical as Blair and Brown and now Corbyn. It’s also why I expect to never see Theresa May take decisive steps to leave the EU: she has always been a Remainer.

Anyway, my take on it is that if the Government wants to ban smoking in prisons, it will have to go back to Parliament to get the mandate it never got in 2006, and which the Supreme Court has now ruled that it never had. But I’m no lawyer, and I wouldn’t be surprised if there is some other devious means whereby the government can proceed.

But aside from the matter of prisons (about which I have written to my MP several times), I’m now wondering why smoking is banned in hotels, given the 2006 Health Act specifically exempted them. Shouldn’t smokers staying in UK hotels now be able to light up in their own rooms? Same also for care homes and hospitals. One reason I never go anywhere is that I no longer feel welcome in any hotel. Might that change now?

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11 Responses to Revisiting the 2006 Health Act

  1. smofunking says:

    Hotels were included in the smoking Apartheid exemption, although many people aren’t aware of it. It remains up to the proprietor as to whether they accommodate tobacco enthusiasts to light up in their rooms.
    Unfortunately most of them took the easy way out and used it as a ruse to screw smokers by imposing a smoking surcharge (£100 seems to be the going rate for fumigating a hotel room) on credit/debit cards, which would usually appear a couple of days after the customer’s departure.
    In fact, it isn’t just smokers. Non-smokers have also been accused of lighting up in their rooms and hit with an unexpected penalty.

    • Xopher B says:

      I have found it hard to find ‘smoke-friendly’ hotels and have often been told that it’s illegal to smoke in them – a brief informative narrative followed where I explained the legislation. The good news is that one or two do consider smokers – look out for Wyndham group hotels. Their Days Inn Hotels provide rooms for smokers although they may be a fiver more expensive. They also run the Ramada chain so that’s another possibility

  2. Jack Ketch says:

    PMT.May has already made very clear that after BrexSShite (so about 2030?) both the HoL and the Supreme Court will be castrated for their crimes (ie opposing her). One of the first new laws will undoubtedly be a smoking ban without ‘loopholes’. -with smoking outside hospitals being a criminal offence.

  3. Tony says:

    I don’t know for sure but I suspect ASH threatened hotels in the same way they threatened the pubs. In other words sent each of them a threatening letter from their lawyers.

    • Rose says:

      Protecting workers in licensed premises from the effects of secondhand smoke

      “These statistics were sufficiently compelling for Action on Smoking and Health (ASH), the anti-smoking lobbying group, to write to leading hospitality industry employers suggesting that the date of ‘guilty knowledge’ had now been passed and consequently employers were vulnerable to serious legal risks if they continued to knowingly expose employees and others to second-hand smoke. So far, no claims from non-smokers have yet succeeded before the courts (though there have been a number of out-of-court settlements) but it can be merely a matter of time before there is a success.”

      “Repace Associates calculated that they would have to create tornado-like levels of airflow to reduce exposure to the de minimis levels demanded of exposure used by the US Occupational Safety and Health Administration”

      “In a legal opinion obtained by ASH, (in Clive Bates time) J. Melville Williams QC suggests that not only has the date of guilty knowledge passed for employers, but also for the Health & Safety Executive and Commission.”

      So the “date of guilty knowledge” had passed for the government too.

      “Section 2(2)(e) of the 1974 Act places a specific duty on the employer in respect of employees:
      ‘to provide and maintain a safe working environment which is, so far as is reasonably practicable, safe, without risks to health and adequate as regards facilities and arrangements for their welfare at work.’

      The key factor in personal injury claims under the 1974 Act is not whether the employer in fact knew about the risks of particular substances or practices in the work place, but whether they ought to have known in the light of knowledge available at that time. This is the concept of ‘guilty knowledge’”.
      http: //
      Now unavailable

      But it would be difficult to make any compensation claim stick

      “The Green Paper ‘Towards a Europe free from tobacco smoke: policy options at EU level’, refers to the estimates of mortality attributable to passive smoking in the EU reported by Smoke-free Partnership in Lifting the Smoke-screen: 10 reasons for a smoke-free Europe.

      These estimates are based on the international evidence on the level of risk posed by exposure to environmental tobacco smoke (ETS) and the estimated proportion of the population exposed rather than individual cases of deaths due to passive smoking.

      The nature of the epidemiological evidence on all risk factors, be they chemical or other, is such that it does not allow to identify the victims at individual level but only populations”.
      http: //

      As acknowledged by the HSE
      9 “The evidential link between individual circumstances of exposure to risk in exempted premises will be hard to establish. In essence, HSE cannot produce epidemiological evidence to link levels of exposure to SHS to the raised risk of contracting specific diseases and it is therefore difficult to prove health-related breaches of the Health and Safety at Work Act”

      Click to access 255_15.pdf

      Perhaps no one mentioned that to the present government.

  4. waltc says:

    Even tho not forced by law, hotels (and in fact rental apartment buildings) would, as owners, still be able to ban smoking. And given that most nonsmokers have been trained to believe that someone smoking in another unit is nonetheless killing them, and given that in the short span of a generation the human nose has evolved to bloodhound levels in order to detect the killer aroma, the general public will still vocally demand such bans.

  5. jaxthefirst says:

    “ … did not mean to extend it to government or crown sites.”

    That was a bit of a surprise. I knew about the specific exemption for Royal palaces, like Buck House and the Palace of Westminster, but “government sites?” If so, does that mean that all Civil Service offices (for example), and maybe local government offices, too, could in theory still allow smoking inside, such as in smoking rooms? If that’s the case, then why don’t they? Because I know for certain that staff are definitely not allowed to smoke in Civil Service offices, and (as has been stated on here and elsewhere many times) some local council offices have actually imposed outside bans, too. Obviously, they are workplaces, but so too is the Palace of Westminster and Buck House, which remain exempt nonetheless.

    I’ve never really understood why first David Cameron and then Theresa May have continued to support a smoking ban that most Conservative MPs voted against.

    I think they recognise that smoking is one of those “hot potato” political issues which invoke very strong feelings from both sides and so they are doing what politicians always do – taking the easy option – and simply ignoring it. I don’t think any of them (apart from the real antis amongst them) actually want to change the status quo in any way, whether positively or negatively, because they don’t want the flack that will come their way whichever way they jump. In many ways, I think it’s become even more of a twitchy issue in recent years because, emboldened by the success of the anti-smoking movement, there are now so many new prohibitionist movements using the anti-tobacco template (sometimes quite brazenly so) towards a whole host of other vices, that there are growing numbers of non-smokers who have noticed the similarity in tactics (it’s always easy to see these things once they become, or threaten to become, personal), and are gradually becoming aware of how one-sided and unfair the whole anti-tobacco debate has been from the start. Not all, by a long shot – most remain in blissful ignorance of what’s coming their way, largely because they continue to believe their own self-invented mantra that “there’s no such thing as passive [insert their favourite vice]” (the answer to which, of course, is a simple: “Yet.”) But there are now many more non-smokers I know who refer to the ban as “terrible,” “really awful,” “dreadful” or, at the very least, “a real shame” than there ever were before the ban came in or even in its very early days.

    I’m now wondering why smoking is banned in hotels, given the 2006 Health Act specifically exempted them.

    Well, as Smofunking says, smoking isn’t completely banned in hotels (apart from communal areas). But just because hotels are allowed to provide smoking bedrooms doesn’t mean that they are obliged to do so – and most of them, as also pointed out, have decided to go the goody-two-shoes (and profitable) route and not offer smoking rooms at all. Sadly.

  6. Pingback: Hot And Cold Potatoes | Frank Davis

  7. RdM says:

    I wouldn’t be surprised if there is some other devious means whereby the government can proceed.

    It might be hoped that the UK Government doesn’t proceed in the sleazy fashion that the NZ one did, creating retrospective legislation without select committee or submissions oversight with a supplementary order paper, which also prohibited any proceedings brought against the Crown “questioning the validity” of the new rules forbidding smoking in prisons…there were concerns.

    I perhaps summarise badly, it’s late here, and I’m cooking a late dinner (I always think of Spain, in the antipodes) with a last glass of wine, but here are a couple of all too brief summary links:

    And meanwhile, I find myself listening again to some early Pink Floyd… Meddle.
    More (another Pink Floyd film soundtrack title) later… ;=})

    Some more commentary later, maybe. It was a heavily imposed rule, against usual practise.
    They can do anything they like – but do they really like what they do?
    Questions… to be answered!


    • RdM says:

      A law student considered this, and I think her(?) paper worth reading, a free download, as part of her degree;- even though she buys into the ‘addictive’ meme, understandably.

      Amazing that it’s only been viewed 104 times and the (free) pdf only 14 times
      (the last one was me)

      I’m sure that there’s much more to be found and read and considered, discussed, yet!

      There had well better better be, else we enter into some kind of hell…
      Law needs to live.

  8. Pingback: More on Smoking in Prisons | Frank Davis

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