As has been widely reported, sections 1 to 12 of the Health Act 2006 came into force this morning, in effect introducing a ban on smoking in enclosed public places – including pubs, bars, caffs and restaurants as well as offices, galleries and so on.
Apparently a group called “Freedom2Choose” claims that the smoking ban breaches human rights legislation. How unspeakably tiresome! This is obviously wrong.
Parliament’s Joint Committee on Human Rights also claimed an earlier aspect of the government’s policy breached the Human Rights Act (see paras. 1.38-1.41 of its report, here), in one of its silliest moments. To think a smoking ban like this could be held in breach of human rights laws because of a failure to protect one category of workers, whereas to give no protection to any http://www.gooakley.com/ workers at all would be permitted… well, I’m not sure what the right word is for that kind of legal analysis. Amateurish, perhaps? Barrack-room? Daft? Anyway, even the JCHR in that report thought the smoking ban complied with human rights law in every other respect. And I’ve not noticed any human rights difficulty in Ireland, or indeed in France. Pah!
“Freedom2Choose” explain their judicial review claim here. I not only think they’re misguided and wasting their money. I also think this kind of nonsense is deplorable and should be stopped, or else human rights legislation truly is in danger of being discredited. One of the main reasons why the Human Rights Act is often criticised is the feeling that individuals and groups can use it to make any kind of far-fetched, ludicrous claim, in the attempt to overturn common-sense and necessary policies, and be taken seriously. The government responded last summer by launching a strategy to debunk “myths” like this that have Ray Ban outlet grown up about human rights.
But there will be no myth, and people’s fears about human rights law will not be misplaced or ignorant, if the courts have any truck at all with nonsense like this. I hope a strong-minded judge throws the claim out of the high windows of the RCJ – with a smash.
If he really has advised that this is “a serious challenge worthy of success” then I think Jaswinder Gill of Ormerod’s solicitors probably needs a holiday. I note his reasoning in
On no account should a total smoking ban be allowed ! That is pure fascism, those who are trying to enforce it are pure fascists, and as such are dangerous and should be fought tooth and nail as any dangerous fascist should.
The solution to the smoking/non-smoking problem is to have separate areas. That works perfectly well and there is no valid reason to change it. There is a lot of medical propaganda about smoking that is unproven or false, notably on the subject of passive smoking.
It is pure humbug. The rights of smokers are just as important as those of non-smokers and let no-one say otherwise. Hitler singled out the Jews in the 1930’s just like people are singling out smokers now. It is very very dangerous and these people must not be allowed to get away with this, if only because it is an open door to other things ………alcohol, fatty foods, car exhaust fumes etc etc. Rail Travel is dangerous, air travel, cars on the road.
You could argue that anything is dangerous and that it should be banned. The argument just doesn’t make sense. I have not one iota of doubt in my mind that these would-be banners are wrong and they must be stopped.
The other thing, the most hypocritical thing of all, is that if cigarettes were really as dangerous as they would have us believe, then their sale would be banned, wouldn’t it ? Ah yes, but there is too much money involved. Cannabis, which is not dangerous at all, is banned ? Why? No-one knows, but it does containes less dangerous products than tobacco.
All this goes to prove that the government are a load of hyprocrites and should in no case be listened to. It’s time the public stood up to these people who really take them for a bunch of idiots.
Well, gosh! I don’t think people in favour of the ban are pure and dangerous fascists, or that this has really got anything to do with Jews in Nazi Germany.
But more importantly, are you disagreeing with my legal analysis? That’s what this site is more interested in. If you’ve got a decent argument why the ban breaches human rights – let us know what it is.
Interesting. The first comment is word-for-word identical to (an equally anonymouns) comment left on Bill Sticker’s excellent blog “walking the streets”.
Do I detect a hint of organisation?
On the Human ights point, it seems to me that the right (to smoke – presumably) is, like every other human right, not absolute. In this case, the right of other people not to be put at risk from passive smoking takes precedence, in public buildings. In the same way, rights of freedom of expresion are limited by rights not to be threatened or libelled, for instance.
I can’t see that the human rights point is eitehr appropriate, or has a chance of success.
You’re right, Bagpuss. It seems to me that adopting any policy on smoking involves balancing rights against each other; and in fact, it’s arguably more pressing for the state to act to protect the article 2 right to life and health of the public, than it is to protect the dubious article 8 rights of smokers – dubious because I doubt what you do in a pub is “private life” and I don’t think pubs and taxis really are the “home” of landlords or cab-drivers in an article 8 sense. Anyway, it’s well within Parliament’s legitimate margin of discretion to strike the balance where it has decided to.
Oh My. “Hitler singled out the Jews in the 1930’s just like people are singling out smokers now”. Perhaps a Holocaust survivor who smokes would be the best person to assess whether that’s a reasonable statement as opposed to a ludicrous, hysterical and massively offensive and insensitive yelp of hyperbole. My guess is the latter. My guess is that Jews who survived the Nazis are unlikely to appreciate being told that what they went through is equivalent to not being allowed to smoke in pubs.
I’m not qualified to judge whether the smoking ban is in contravention of Human Rights law, but I would imagine that the Government bothered to explore this as part of their framing of the Health Act, and predict that the challenge will fail very quickly.
I welcome any exposure for Freedom to Choose even from those who use the , no argument I am an expert. ‘But more importantly, are you disagreeing with my legal analysis?’It is the same one ultimately that has led to the hysteria over passive smoking. If a doctor says it it must be true. Just remember however the medical profession are responsible for over 100,000 needless deaths in hospitals a year. try telling the family of someone who goes in for a minor operation and dies. With regard to Human Rights, it is explicit in Human Rights law that no on individual rights should be at the expense of another. It is emcumbant when laws are made that these principles are upheld. It is a requirement that all potential breaches be justified. The reason behind smoking bans is a LIE, there is no proof that ETS has harmed anyone beyond being an irritant. Even Professor Britton of ASH has said so in an email to me. The HSE say there is no evidence to bring any prosecutions, and lets remember it was introduced to protect worker health. Or does our legal eagle believe that the fact ‘it might’is justification to deprive 12million people of the right to privacy. If he/she does then I would venture to suggest that they refrain from Human Rights Law.
Robert Feal-Martinez
http://www.freedom2choose.co.uk
I welcome your contribution too, Robert, even if you do seem a bit needlessly hostile to me. Never mind. I haven’t actually claimed there’s no argument because I’m an expert, however: and here we are having that argument.
If you could persuade a court of what you say – that passive smoking isn’t a risk to health – then you might have a chance of successfully arguing that a restriction on article 8 rights was not justified.
Even then, though, you’d need to actually show article 8 was in play, and as I explained in a previous comment I doubt it is, really, as private life and the home are not in any real sense affected by the ban.
And the fact is that, even if you turn out to be right about passive smoking, your is very much a minority view as things stand; and unfortunately for you the courts will indeed rely on medical experts to tell them what the current state of science is.
So all in all, I reckon this judicial review is very steeply uphill for you. Why not save your money?
If Richard Gordon disagrees, you’re welcome to share his advice with us – if you e-mail it to me, I’ll post it on the site.
My comments weren’t intended to be hostile. The point I was making is that ‘if’ the only evidence to base this ban on is without foundation and as said the very agency responsible for protecting workers says so in Operational Circular OC 255/15, published 7/8/2006 post enactment of ACT. In addition to this the WHO’s research in 1998 says the same, and The largest spousal study by Enstrom and Kabet (35k couples over 39 years) published BMJ 2003 also concluded no proof. Then the whole premise for the ban is flawed. As for Article 8. The evidence we will present involves individuals as well as F2C as a collective group. We are confident that ‘if’ we receive a fair hearing and permitted to present our evidence then we can win. We are not seeking to overturn the ban after all. We are seeking a Regulated Indoor Air Quality Standard using ventilation/filtration which would make indoor air 99.97% clear of all harmful toxins. Creating air quality superior to outside. If this is about worker health, and even if it were to be about the wider public good, F2C’s solution is the best on offer, bans have been shown to increase smoking levels, and only remove 80% of toxins (Edinburgh and Dundee University research for SE. Our case has also been shown to 2 other QC’s who concur that have a case.
Okay, Robert – sorry to have misread your tone.
You are trying to overturn the ban, Robert: you can’t possibly succeed except by showing it’s somehow unlawful and needs to be suspended, which is beyond difficult, really, especially if it’s the primary legislation you’re attacking. Or is it some regulations made under the Act that you’re aiming at? It’d still be uphill, but might make a bit more sense if somehow you could frame your case that way.
The only other way is getting a declaration of incompatibility with a Convention right, I guess, which wouldn’t it itself make the ban unlawful, but would be a big coup for your campaign. I’m afraid the problem with that is the article 8 link – I note in your last comment you didn’t explain how you’re going to make that link.
And how come you’ve gone to other QCs, Robert? I suspect Freedom2Choose of shopping round for a silk who’ll give you less pessimistic advice than you’ve already had.
On the 2nd of April 2007 came the end of my social life, as I knew it. The smoking ban came into effect in Wales.
Little did I know then the effects it was going to have on me as a smoker. Almost overnight I became a Leper. Not allowed to smoke in the pub anymore I was banished to the outside to have a cigarette.
Growing up my parents taught me never to stand outside a pub drinking and smoking because only ladies of the night stood outside pubs. Now, at 50 years of age everything I was taught has gone. The government brought in a smoking ban, which puts me in the position of having to stand outside the pub and what a horrible feeling that is. My husband is a non-smoker and he agreed prior to the ban that he would join me outside so I would not feel vulnerable. The first evening I went outside it was freezing but my husband kept to his promise but by the time we were ready to go home we not on good terms. We were cold and angry and ended up having words.
We have been lucky over the last couple of weeks, the weather has not been too bad in the day, but in the evening it has become really cold. The worst time is when it is raining. Some pubs have put table and chairs outside which is fine when the weather is nice but not all premises have bothered to put any form of heating or shelter up to keep us warm and dry, their attitude is that’s it is your choice to go outside, nobody makes you. (But they do). My husband no longer comes outside with me, it is too cold he say’s and he does not like it, so I am stood there, all on my own.
The feeling of being segregated from my husband and my friends is awful. I know the choice is mine to go outside for a cigarette, but when you have been smoking for many years and have been used to smoking with your friends and family in the pub it is a very lonely and sad feeling especially when you look through the window and see them looking back at you and laughing, but the saddest thing is that you laugh back, trying not to show the feeling of hurt and anger inside you.
I thought that this country had rules regarding segregation and discrimination. I feel that smokers are being discriminated against. Surely it would have been better if the bar had been made a smoking bar and the lounge non-smoking. This way everyone is protected and the non-smokers would have their smoke free environment.
I am not against certain places being non-smoking. Restaurants and cafes should be non-smoking as there is nothing worse than someone smoking when you are trying to eat. People have respected the new law banning them from smoking in enclosed public places even if they are unhappy about it. No one wants to see the Landlord incur the heavy penalty that the government have set, but how long before the ban starts to affect businesses. I live in a rural part of Mid Wales and the pubs have been struggling financially for a long time already but managing to keep their heads above water. The smoking ban is going to put a lot of pressure on them and they forecast that their takings will drop dramatically come the winter. How long before they call time and close the doors permanently. I know of 3 pubs that have closed already since the smoking ban came in, one in New Radnor, Newtown and one in Kington, coincidence – maybe, but it is a known fact that businesses are struggling and the ban is putting even more pressure on small businesses.
I will be having my 50th birthday this weekend, and instead of choosing to have a party at a local venue, I have invited my 30 guests to a barbecue at my house, thus depriving the local business of the booking fee and the bar takings. I now only go out one evening a week and I only do that to keep my husband company or I would not even bother. How many other people have opted to stay home or have stopped going out?
Before discussing the human rights aspects, I would like to take issue over what I see as a misinterpretation on your part. You say
“I also think this kind of nonsense is deplorable and should be stopped, or else human rights legislation truly is in danger of being discredited. One of the main reasons why the Human Rights Act is often criticised is the feeling that individuals and groups can use it to make any kind of far-fetched, ludicrous claim, in the attempt to overturn common-sense and necessary policies, and be taken seriously.”
In so doing you appear to be making the assumption that the law is something more than a set of rules (I refer you to Ted Honderich’s work in this field). Human rights are supra-law; in essence they are a manifestation of liberalism seeking to assert itself against democracy qua majoritarianism. In addition, they are an attempt to place justice in a superior position to temporal legislation that is culturally biased (I refer you to the work of Iris Marion Young in this field). Your use of the terms commonsense and necessary requires definition in order for your point to have merit. I suspect that the definition you may offer would be culturally biased and prejudiced in favour of statute rather than liberal values. The whole point of human rights is to offer a remedy for injustice and illiberalism.
There would appear to be a human rights argument on both sides. In favour of the stated purpose of the Health Act (section 1) is the claim of a human right to a safe working environment. As Mr Feal-Martinez has informed you, the evidence is that there is no scientifically statistically significant link between health risk and exposure to environmental tobacco smoke. The statement of the Health and Safety Executive in OC 255-15 evidences this. Against the Act there would appear to be several arguments:
Firstly, Article 4 says that ‘no one shall be required to perform forced or compulsory labour’. The Health Act enshrines the requirement for certain people to actively police the prohibition of smoking without remuneration and under threat of coercive action by the state.
Secondly, Article 8 seeks to give protection to the private domain. The issue is that many of the places where the Act seeks to prohibit smoking are in fact private domains. There is much public misunderstanding of the status of a public house just because of the use of the word public. Historically and legally it is a private domain and the public merely denotes a right to sell alcohol to the public. I do not think it is within parliament’s margin of discretion to strike this notion. I presume you are in fact referring to the margin of appreciation and would point out that this is applicable in cases where there is a general appreciation of cultural norms within a given society. Clearly the cultural norm in this case places the benefit with the public house owner.
There would also seem to be a supplementary case under Article 14, which is a general bar to discrimination. The issue here being that smoking of tobacco is not an illegal activity whereas the effect of the Health Act is to discriminate against those who choose to smoke.
Finally, I would be interested in your opinion as to the right of those prosecuted under the act to seek shelter under a counter claim of estoppel on the grounds that an assurance was given in the Labour Party manifesto that the prohibition of smoking would be subject to limitation of scope.
Legal, re your comment about us shopping around. Wrong again. One of our supporters is a retired Barrister and highly successful author, he obviously still has friends in the profession and he offered to run the case by them, for free, an offer we couldn’t refuse, it just enabled us to re-affirm the position. I think you also failed to properly read my last post where I state very clearly we are not seeking to overturn the ban. The regulations can be amended by the Secretary of State without reference to Parliament hence our proposal for a Regulated Indoor Air Quality Standard for all work places that will realise air quality at 99.97% clear of all toxins.
Robert Feal-Martinez