Monday, 13 April 2009

Electronic Ciggy - the first kerfuffle

I think I met the world's most ignorant person this evening. After taking a relaxing curry in a local restaurant I engaged the services of my e-cigarette to provide vital additional nourishment and after a few minutes muttering started from a nearby corner. It was the small loud Irish woman who had subjected her husband to a one-way torrent of speech from the moment they sat down more than an hour earlier. "He shouldn't smoke that in here", "it's illegal", "the owners could be in real trouble" mutter mutter mutter. The volume increasing to ensure my ear was caught.

Now, I know what you're thinking: "we do hope you had the sense not to try to debate with her, Mr Bigot". Oh dear. Yes, I know you should never argue with an idiot because they just drag you down to their level and beat you with experience. But (he bleats weakly in his own defence) everything she said gave the impression she thought I was actually smoking. You know, actually smoking a real ciggy not using an electronic one. Being a man of a kindly disposition it seemed only fair to soothe her bubbling blood pressure by explaining I was using an entirely lawful device. The troubled waters would be calmed, "oh goodness me, what a silly woman I am" she would say, we would have a laugh and peace would once again reign in the world of chicken tikka, tarka daal and lamb jalfrezi.

Well, of course you were proved right and I was proved wrong. She knew it was an electronic cigarette and then the defence of her position was made clear at ear-splitting volume and with even more deafening stupidity. I knew what was coming as soon as she started her oration with "I work in a pub". Her moral and intellectual superiority was established with her first line of attack. "Those things come with instructions telling you they are illegal for use in pubs and restaurants", well, no actually, as I told her. The leaflet I received told me how to put it together and how to charge the battery but nothing about the lawfulness or otherwise of its use. Clearly I had exposed myself as a blatant liar to this extraordinary person: "they all come with instructions saying it's illegal and you know it!".

What an interesting point she made. One that illustrates the true depths of idiocy in which some people live. I wasn't going to ask the obvious question, namely whether she had read all the instruction leaflets issued by all the manufacturers of these products, I wasn't even going to ask her whether she had read one because the overwhelming probability is that she hadn't read any of them. But that didn't stop her asserting as a fact something of which she knew absolutely nothing. Nor did it cross her pea brain for a moment that there was anything objectionable about calling a complete stranger a liar in a public place. Oh well, it's her life, she can live it like a slug if she wants to. It was just icing on her home baked cake of stupidity that she felt it appropriate to add that I was aware of the contents of all leaflets issued by e-cigarette manufacturers and that I would therefore also know the thing she claimed to know but of which she was wholly ignorant.

Then I thought I'd have a bit of fun and point out that the law prohibits smoking and requires something to be ignited, my e-cigarette does not produce smoke and does not involve ignition. She had to think a moment to answer this one and then her authority had to be asserted again. She took a deep breath: "Look, I work in a pub". My heart sank, how could my understanding of the law possibly be right compared to that of a loud-mouthed, peroxided barmaid of a certain age? While her answer was being delivered I wished her a merry wallow in her cretinous pit and went back to my table. Shortly afterwards she and her long-suffering husband left.

The manager of the restaurant came up to me and asked me to explain what an electronic cigarette is, he had never seen one before. So I took it apart, showed him the bits and explained how it worked (not in scientific detail, just my understanding of the process). He told me that his understanding of the law was that something had to be burned for the law to be broken and I was happy to confirm that it matched my understanding. I said I would try to remember to provide him with a copy of the relevant parts of the Health Act 2006 to put his mind at complete ease.

It's all in section 1 subsection 2 of that Act, which reads as follows: "(a) "smoking" refers to smoking tobacco or anything which contains tobacco, or smoking any other substance, and (b) smoking includes being in possession of lit tobacco or of anything lit which contains tobacco, or being in possession of any other lit substance in a form in which it could be smoked."

This is rather a good piece of drafting. It doesn't seek to change the ordinary meaning of the term "smoking" because that would just produce loopholes. For example, if it tried to define smoking as the inhalation of tobacco smoke it would be open to a Clintonesque defence by those (such as most cigar and pipe smokers) who seek to avoid inhalation. Instead it keeps the ordinary meaning and adds to it. The addition is in paragraph (b) which catches those who might try the cute defence that they had ignited a ciggy but had not taken it to their lips. Paragraph (b) has a further purpose, it stresses the need for a product to be "lit", meaning burning or smouldering, in order to come within the ban.

I don't approve of the smoking ban, but I do approve of good technical draftsmanship. It is a difficult skill and was executed well in this Act. The prohibition is against smoking as we all understand the term (with the extension I have mentioned). It does not include devices enabling the taking of nicotine by means other than combustion.

Section 1 is sitting in the tray of my printer, ready to be delivered to the restaurant tomorrow. I wonder whether the manager will be brave enough to show it to the fount of all stupidity on her next visit.


20 comments:

Leg-iron said...

There's only one sensible response to 'I work in a pub'.

It's 'Well, I drink in pubs so I pay your bloody wages, wench.'

I still haven't tried these electrickery fags. Are they any good?

(and why are word verifications so long late at night?)

TheFatBigot said...

Now, Mr Leg-Iron, the lecky ciggy is a difficult thing to assess.

If one approaches the task by comparing it to a real ciggy the answer, of course, is that it's not the same. But then it couldn't be.

If one asks whether it is a sound substitute in times of need the answer is "it depends". Our friend Mr Holborn found it overpowering. I find it generally too weak. The high dose cartridges are acceptable but the medium and low dose just don't do it for me.

Overall I'm very happy with it because it delivers the drug I crave and doesn't require me to stand in the street or huddle in a NuLabour leper colony.

The sooner this ridiculous ban is lifted and pubs have a chance to be pubs again the better, but it will never happen. That's the problem with progressive politics, once we have progressed to a new level of misery there is no going back to something people actually enjoy.

DrBoyde said...
This comment has been removed by a blog administrator.
TheFatBigot said...

I deleted the previous comment because it appeared to be spam.

Charon QC said...

EXCELLENT... this post has made my morning... there I was, wondering what to have a laugh about next.. and along comes TFB with this excellent tale.

I shall be referring to it on my blog immediatelly... well, after I have had a cigarette!

First rate....

Tom Paine said...

Present company honourably excepted, "...that didn't stop her asserting as a fact something of which she knew absolutely nothing...", did rather remind me of the blogosphere. My usual response to such people is to say "Madam it is against my principles to engage in a battle of wits with an unarmed person"

Peter Groves said...

I have no wish to enter into an argument with you, but I disagree with your praise of the draftsperson here, and I rather think the meaning of "smoking" is hopelessly open-ended. The draftsperson tells us what smoking includes, but doesn't tell us where it ends: I suppose that means that s1(2)(b) is not a definition strictu sensu but an elastic New Labour concept that can be stretched to catch anything they don't don't like.

Jimmy Bastard said...
This comment has been removed by the author.
TheFatBigot said...

Mr Groves, my view is that the drafting is deliberately and properly open ended. Everything that is described as "smoking" in ordinary everyday usage is included by the very fact that the Act does not try to be exhaustive.

If someone discovers that, for example, rhubarb leaves make a pleasant alternative to tobacco, the smoking of rhubarb leaves is included in the ban even though no one might think of including them in a list of proscribed combustible products.

"Including" in para (b) ensures that some things which might not normally be described as "smoking", or about which there might be doubt, are also caught.

Overall the Act covers those activities which, according to everyday usage, are described as smoking and other activities about which there might be doubt. The end result is, I believe, clear and fair even though the ban is an outrageous affront to what little dignity I have.

TheFatBigot said...

Mr Bastard, I no more mocked the woman for being Irish than for having dyed hair. Her nationality was merely descriptive but is of no relevance to the events I recalled, just as the fact it was a curry house rather than a Chinese restaurant or a greasy spoon is an irrelevant fact.

Whether I would describe you as a "big drunken Jock" rather depends on whether you are (i) big, (ii) drunk and (iii) Scottish and/or a gentleman's abdominal support. I suppose it would also depend on whether I were still able to type after you had beaten me to a pulp in the mistaken belief that I had committed an offence under section 7 of the Health Act 2006.

delcatto said...

Thank you TFB, I thoroughly enjoyed your latest missive. I don't smoke but my wife does and she has considered buying one of these 'sparkys' (easier to say).
I don't smoke but I still do not support this ridiculous and draconian law. I believe it should be left to the individual publican / restaurant owner as to whether their premises should be smoke free. I also believe it is up to individuals if they choose to frequent smoking / non-smoking premises.

Rush-is-Right said...

Here in (Turkish) North Cyprus one is allowed to smoke pretty much anywhere except a petrol station forecourt.

There are other advantages to living here.

I commend it!

Mark Wadsworth said...

You stinker!

I had taken to popping into shops to buy a newspaper or coffee or something clutching a smouldering roll-up, armed with the defence 'But I wasn't smoking - I was holding a smouldering roll-up' (smoking in common parlance meaning actually putting it to your lips, whether inhaling or not) but you have spoiled it with this:

(b) smoking includes being in possession of lit tobaccoDamn those draftsmen. It's not like tax laws which mean whatever you want them to mean.

Peter Groves said...

But is it not possible that using (or even possessing, perhaps) an electronic cigarette could come within the definition? The fact that the question can even arise demonstrates that the provision is not well-drafted.

TheFatBigot said...

And there you were saying you didn't want to argue with me, Mr Groves. It just shows that old lawyerly habits die very hard indeed.

I do not believe it is possible that using or possessing an electronic cigarette can come within 1(2)(a) or 1(2)(b).

Its use does not constitute "smoking" in any sense in which that words is used in ordinary language, in particular because it involves no smoke, therefore it falls outside 1(2)(a). And nothing is "lit", so 1(2)(b) cannot operate.

1(2)(b), in my view, clarifies that 1(2)(a) covers the activities we all recognise as smoking, namely, igniting a cigarette, cigar or pipe and puffing on it (whether the content of the item is tobacco, another legal product or an illegal product). Holding an unignited cigarette is not "smoking" in normal parlance. Holding an ignited cigarette might be but it might not, so 1(2)(b) steps in to clarifies that it is smoking for the purpose of this Act.

You assert that the question you pose arises and, therefore, the Act is not well-drafted. I disagree. Your proposition is circular, the question you pose arises only because you pose it. It does not arise on any permissible interpretation of the language of the Act.

Smoking cannot happen in the absence of smoke, to suggest otherwise is to enter the linguistic world of Humpty Dumpty.

woman on a raft said...

So legally, there's no smoke without fire?

TheFatBigot said...

Mrs Raft, you must stand in the corner for five minutes.

Stan said...

Don't worry FB - once they legalise cannabis they'll be lots of "cafes" for you to smoke in. OK - you'll have to roll your own and find a quiet corner to indulge your illegal activity, but no one will pay much attention.

Alan said...

One lovely local pub which I frequent has prominent stickers on the doors which proclaim the legality of using electronic cigarettes on their premises. Though I have never seen anybody doing so.

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