Friday, 22 May 2009

Getting around the smoking ban, or not

The landlady of a pub in Yorkshire tried to evade the smoking ban by nominating a room in her pub as a research facility. As I understand it she placed questionnaires about smoking in the room in the hope that that would make it a research facility and allowed patrons to smoke provided they completed a form. The owners of the pub put a stop to it (here). Donning my curly horsehair wig I want to explain why I think they were right to do so. It really pains me to write this.

The smoking ban operates by defining certain types of premises as "smoke-free". If your premises fall within the description it is an offence to smoke there and to allow smoking there. The general rule is that work premises are "smoke-free", although exceptions may be made. The power to make exceptions is contained in section 3 of the Health Act 2006. Exceptions may be made by providing that "specified descriptions of premises" are not "smoke-free". In other words, where premises of a certain description are identified as being not "smoke-free" people may smoke there without it being a criminal offence and those in charge of the premises will not commit a crime by permitting smoking. One of the descriptions is "A designated room in a research or testing facility". The landlady of the pub in Yorshire tried to get into this description.

There is a specific provision in sub-section 3 of section 3 aimed at restaurants, pubs and clubs with a licence to sell booze. When exempt premises are being described, the description may not include the fact that it is licensed to sell booze. In other words, there may be no exemptions for restaurants, pubs and clubs by reason of them being restaurants, pubs or clubs. That does not necessarily mean that a room within a restaurant, pub or club cannot be exempt under any circumstances, but it cannot be exempted by reason of it being part of licensed premises, although it might be exempt despite being part of licensed premises.

This sub-section is important because it emphasises that the ban is intended to apply to all licensed premises. That does not mean that licensed premises, or a room in licensed premises, cannot be exempt but it sets the scene. Any attempt to circumvent the smoking ban in restaurants, pubs and clubs must be genuine and not just a ruse.

The exemption relied upon in the case under discussion is that relating to "research and testing facilities". It is created by Clause 9 of The Smoke-free (Exemptions and Vehicles) Regulations 2007. Clause 9 paragraph (1) says "A designated room in a research or testing facility is not smoke free while it is being used for any research or tests specified in paragraph (2)". This makes clear that the premises must be a research or testing facility and the designated room must be part of that facility. No doubt there could be a research or testing facility comprising a single room that is not part of a larger unit, but apart from that situation the "specified description of premises" requires the premises to be fairly described as a "research or testing facility". A pub is not a research or testing facility except in the loose sense of it being somewhere people can research and test their liking for and hepatic tolerance of alcoholic beverages. Although people do in fact research and test their liking for and hepatic tolerance of booze in pubs, pubs are not "research and testing facilities" in any real sense. A room in a pub is, therefore, not part of a research and testing facility, it is part of a pub.

The only way a room in a pub can be a "research and testing facility" is if it ceases to be just a room in a pub and becomes a stand-alone "research and testing facility". I have no doubt that this could happen, although it would be a rather strange arrangement. For example, a scientist might need to set-up a laboratory and might hire a room in a pub for that purpose. In that situation the room is essentially separate from the pub, it ceases to be a room in a pub and has its own identity as a research and testing facility. In that situation the room would cease to be part of the pub and would have a status of its own. That is different in substance from a room in a pub being used for some sort of research whilst retaining its essential character as a room in a pub. Say a room is used for a wine tasting evening, that might fairly be described as an exercise in research and testing, yet in substance it is still a room in a pub rather than a research and testing facility.

I don't intend to get bogged-down in analysing the type of research and testing that allows smoking to take place in premises that would otherwise have to be "smoke-free". The details are in paragraph (2) of Clause 9, to which I have provided a link. What is not stated in terms in that paragraph, but is implicit in each of its sub-paragraphs, is that smoking must be part of the research. Just because a laboratory tests the reaction of a piece of cloth to a smouldering cigarette does not allow those working in the lab to get through twenty Benson & Hedges while they are awaiting results from their experiment. Similarly, an organisation that invites people into its office to answer questions about their smoking habits does not trigger the exemption and should not expect the completed forms to be covered in cigar ash. A laboratory in which people smoke so that their physiological reactions to ciggies can be measured does not give carte blanche to the examiners to smoke before, during or after the tests. To suggest otherwise is to ignore the clear purpose of both the primary legislation (the Health Act 2006) and the Regulations made under that primary legislation.

As for the room in the pub containing written questionnaires, frankly it's just a ruse. It is research of a sort but it doesn't make the pub a "research and testing facility". Filling in a form does not require smoking to take place while pen is in hand. As always it is necessary to look not at the form of what is happening but at the substance. The substance is that the room is part of the pub, nothing more, as such it is covered by the smoking ban. Were it a genuine "research and testing facility" the landlady would soon find a condition imposed on her licence preventing her from selling or supplying booze to those using the room and she could have no complaint about that.

Nice try, madam, better luck next time.


Mark Wadsworth said...

It was worth a try though!

Mr said...

Bad laws are the worst form of tyranny. Burke, Edmund

If the law is a bad law, there is always the contingent right to take action that you would not otherwise take.James Callaghan

This is a bad law, and typifies why the legal profession is held in contempt - you've justified your position with what is equivalent to "it was within the rules". Ducking and diving around the rules is viewed by the public with disdain; for the legal profession it's meat and drink.

Sorry FB, but your brethren have been complicit in the stitch up of the public with this law and others.

In Germany they also introduced the smoking ban, the public and publicans complained and the ban was partially repealed.

Could you ever see that happening here? Where's the lawyers willing to work pro bono for the good of the nation?

james c said...


'Filling in a form does not require smoking to take place while pen is in hand.'

I would have thought a questionnaire could be constructed which could be completed only by those consuming certain substances.

For example, one might wish to investigate the effects of nicotine and alcohol in the enjoyment of a pub environment.

Such a study would of necessity be of long duration in order to achieve statistical significance.The results are surely a matter of public interest and the landlady (or investigator) deserves government funding and payment for the brave volunteers.

@OrthoticsLondon said...

Filling in a questionnaire is not a smoking activity, which is why this woman was badly advised (by one of her customers according to another article).

If she, as the person in charge of the facility had authorised in writing that room to be used as a testing and research facility for evaluating the fire safety of different brands of cigarette- or different cigarette rolling techniques, then this would comply with SI 2007/765 Pt.2 Regulation 9. The SI also insists on a smoking permitted sign in that area and a notice showing a copy of the written authorisation.