No butts, no doubts, no regrets

In the run-up to the Scottish Executive’s announcement on the smoking ban, much has been said in the media about the idea of smoking as a “human right”, which the Executive is supposedly about to trample on with heavy-handed proposals. Most of this has been political rhetoric rather than legal argument (one campaign group was quoted by a newspaper as making the rather baffling statement that they were “looking at the competition laws to see whether EU Human Rights legislation can be used here”), but that does not mean that the argument does not deserve consideration. Consideration should show, however, that it deserves to be rejected.

The licensee’s right

Article 1 of the First Protocol to the ECHR provides that every person “is entitled to the peaceful enjoyment of his possessions”. Could (for example) the licensee of a public house, fearing that his or her business might be affected, argue that the proposed ban violates this right?

A possessor is protected in two ways: first, against deprivation of possessions, and secondly, against “control of use” of property by the state. In both cases, however, the interference may be justified by the state. The proposed ban does not raise any question of “deprivation” of property: at most, the ban is a “control of use”. (Although deprivation can be established by an owner being deprived of “all meaningful use” of the property (see Fredin v Sweden (No 1) (1991) 13 EHRR 784, paragraphs 41-45), that is clearly not the case here.)

Although a smoking ban might be viewed as a “control of use”, the First Protocol explicitly preserves the right of a state to “enforce such laws as it deems necessary to control the use of property in accordance with the general interest”. There should be little difficulty in justifying a smoking ban on this basis, as the protection of public health is clearly in the general interest (see, e.g. Pinnacle Meat Processors Co v United Kingdom (1999) 27 EHRR CD217). A control of use (in contrast to deprivation) generally does not create any right to compensation on the part of the property owner (see D Anderson, “Compensation for Interference with Property” [1999] EHRLR 543).

The smoker’s right

A smoker might, perhaps, plead that his or her right to private life (under article 8 of the ECHR) has been infringed. However, such an argument would be unlikely to get off the ground given the decision of the Privy Council in Whitefield v General Medical Council [2002] UKPC 62. In that case, the GMC imposed various conditions upon the practice of a doctor who was suffering from severe depressive illness and the harmful use of alcohol. One of the conditions was that he “abstain absolutely from the consumption of alcohol”.

The Judicial Committee would have been prepared to hold that this restriction was justifiable under article 8(2), which allows the right to privacy to be interfered with where “necessary in a democratic society” for (amongst other reasons) “the protection of health or morals, or for the protection of the rights and freedoms of others”. However, it was not even necessary to go that far. According to the Committee:

“There is no authority to support the proposition that a ban on the consumption of alcohol is, per se, an interference with the right to respect for private life under Article 8(1). The appellant is not prevented from going to his local public house or engaging in his social life while drinking non-alcoholic drinks. Thus their Lordships are not persuaded that there is a breach of Article 8(1)” (at paragraph 27).

If being prohibited from drinking in a pub does not bring article 8 into play, it seems inconceivable that being prevented from smoking in a pub (or any other public place) falls to be treated any differently.

The non-smoker’s right

In any case, rights cut both ways here. The state has a positive obligation to protect life under article 2 of the Convention. If it is accepted that passive smoking is a risk to public health (although the smoking lobby might dispute this), then it might be argued that article 2 requires a ban on smoking in public places. A similar argument seems to have found favour in India, where the Supreme Court, after noting that article 21 of the Constitution of India provides that no-one shall be deprived of his life without due process of law, asked:

“why a non-smoker should be afflicted by various diseases including lung cancer or of heart, only because he is required to go to public places? Is it not indirectly depriving of his life without any process of law? The answer is obviously – ‘yes’. Undisputedly, smoking is injurious to health and may affect the health of smokers but there is no reason that health of passive smokers should also be injuriously affected. In any case, there is no reason to compel non-smokers to be helpless victims of air pollution” (Deora v Union of India (2001)).

The Supreme Court went on to hold that article 21 required the government “to take effective steps to ensure prohibiting smoking in public places”.

While it might be thought unlikely that a court applying the ECHR would be prepared to go quite this far, the possibility cannot be ruled out. In LCB v United Kingdom (1998) 27 EHRR 212, the applicant’s father had been present during nuclear tests on Christmas Island some years before her birth. She claimed that the UK Government had failed to warn her parents of her father’s alleged exposure to radiation, which would have led to earlier diagnosis and treatment of her illness. The European Court of Human Rights concluded that its task was “to determine whether, given the circumstances of the case, the State did all that could have been required of it to prevent the applicant’s life from being avoidably put at risk” (paragraph 35).

On the facts of LCB, the state was held to have indeed done all that could have been required of it. In particular, it was not clear that LCB’s father had been dangerously irradiated, or that there was a causal link between irradiation of a father and a child subsequently conceived – indeed, the evidence seemed to be against her on both points. It is not difficult, however, to see how the case might provide a basis for an argument that a ban on smoking in public places is not only compatible with the ECHR, but required by it. The message for those who want to test the smoking ban against the ECHR is clear: be careful what you wish for.

James Chalmers, Lecturer in Law, University of Aberdeen

No smoke without getting fired?

From March 2006 smoking in enclosed public places in Scotland will be unlawful. Individuals who light up in an enclosed public space could be fined £100. It is well publicised that licensees and landlords in Scotland could be fined around £2,000 if they allow individuals to light up on their premises and that public houses could potentially lose their licence. Perhaps less publicised is the fact that employers too will have an obligation to prevent employees smoking on their premises. As a result, from 2006 the staff smoking room will be a thing of the past.

For a number of employers this will not affect their workplaces, as no-smoking policies have already been introduced. Whilst the Scottish Executive is one such employer, the new Scottish Parliament building does have a “smoking room” for staff. Unsurprisingly, there are strong calls for the parliament to close the smoking room and introduce a no-smoking policy well before the ban takes effect.

So how do employers go about introducing a no-smoking policy within the workplace prior to March 2006 and what if employees object to this? Fortunately this is not a new issue, but one which the courts have already considered on a number of occasions. In the case of Dryden v Greater Glasgow Health Board in 1992 the Employment Appeal Tribunal required to consider whether an employee had been constructively dismissed by the introduction of a no-smoking policy in her workplace, when she herself was a smoker. Ms Dryden smoked around 30 cigarettes per day and argued that there was an implied term within her contract to the effect that smoking would be permitted within the workplace and she would not be able to work if she were denied the opportunity to smoke. Both the employment tribunal and the Employment Appeal Tribunal disagreed with Ms Dryden, stating that there was no implied term in the contract of employment to the effect that she would be entitled to smoke during working hours and that employers are entitled to make rules for the conduct of their employees in the workplace. The no-smoking policy was introduced for a legitimate purpose and its introduction could not support a claim for constructive dismissal, despite the fact that it had significant implications for Ms Dryden.

What of individuals who smoke regardless of their employer’s policy? Provided the new policy is publicised to all employees and the implications of breaching the policy are clearly explained, disciplinary action can be taken. In the case of Bendall v Paine and Betteridge an employee had been told on a number of occasions over a number of years merely to put out his cigarette. He was then dismissed for smoking. The tribunal held that Mr Bendall had been unfairly dismissed, as he did not have sufficient notification that he could be dismissed for smoking. In the case of Trusthouse Forte (Catering) Ltd v Adonis a smoking policy had been introduced and a notice had been posted informing all employees that anyone caught smoking in the no-smoking areas would be dismissed for gross misconduct. Shortly after the notice was posted, however, new disciplinary rules were issued to employees confirming that smoking in a non-designated area was an offence for which a warning could be issued. The employee in that case accordingly successfully argued that he was unfairly dismissed as he felt he would only receive a warning, at most, for smoking in a no-smoking area. Accordingly, any change in an employer’s policy should be well publicised to employees in a consistent manner, ensuring that employees are well aware of the sanctions which will be imposed by the employer if employees breach the policy.

Melanie Kerr, Employment Partner, Harper Macleod LLP, Edinburgh

No more licence to kill

In spite of the efforts of the licensed trade, it now seems certain that a ban on smoking in public places will be in force some time early in 2006. What effect this will have on the country’s health, and on one of its most important industries can only be a matter for speculation, but there is some evidence elsewhere.

While the ban will affect all public places, the impact will be strongest in pubs, clubs and hotels. The Executive can say that it is being consistent in its approach. The Nicholson Committee, which reported on proposed reforms to liquor licensing legislation, was enjoined to have regard to public health issues. The effects of passive smoking may cause disagreement among experts; however no one can be in any doubt that high levels of tobacco use are a major contribution to Scotland’s appalling health record. Those who play the freedom of choice card tend to have it trumped by those who claim that servers in pubs where smoking is allowed have no such freedom of choice, and should not be obliged to put their own health at risk.

It is for this reason that a successful attack under the human rights legislation is unlikely – it is always possible to point to those who will undoubtedly benefit from a ban, as also to the national good.

Messages from elsewhere are mixed. Not for the first time does Holyrood find itself at odds with Westminster. A similar ban proposed for south of the border will bypass pubs which do not sell food. Early reports of the Irish experience are depressing for the licensed trade, but good news for health chiefs. One hears anecdotal evidence of pub turnovers down by up to 30% in some areas, with more definite evidence that cigarette sales (and Government revenues from tobacco) are down by some 25%.

The New York experience suggests that while trade initially dipped, it came back again; however, whether downtown Manhattan can fairly be compared to rural Scotland is doubtful. The trade here had been introducing a voluntary code on smoking. The Executive view was that that was too little: we must wait and see whether it will be too late now to stop significant business closures in this sector.

Tom Johnston, Partner, Young & Partners, Business Lawyers, Dunfermline and Glenrothes