Legal Opinion: Introduction of no-smoking law raises prospect of litigation

Saturday will be the last day for smoking in an enclosed public space. Robert Verkaik, Law Editor, considers the possibility of legal actions against the ban
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Five years ago, it was unthinkable that the Government would be able to bring in legislation to ban smoking in all enclosed public spaces. The Irish and some American states may have done it, but there seemed little appetite for a similar measure in Britain. Many MPs didn't even think that Labour would be able to honour its modest manifesto pledge for introducing partial smoking restrictions.

But the Prime Minister's decision to offer MPs a free vote on the policy seemed to radicalise the Commons. In February this year they went the whole hog, rejecting exemptions for pubs and clubs that serve food, and brought in a ban to end smoking in all enclosed public places.

From 1 July, pub landlords, club-owners and anyone else in charge of a public building can expect a £2,500 fine for failing to stop smokers lighting up. Anyone caught smoking in a public place faces a £50 fine. Managers of premises which fail to display no-smoking signs will be subject to £200 fines. This means an end to designated smoking rooms and to staff smoking in their own offices. It will be illegal to light up even if the smoker is the only person on the premises.

Those hoping for a few months' grace to let the new law bed down may be in for a surprise. Environmental health officers will have powers to enter smoke-free premises and impose on-the-spot penalty notices on offenders.

Few now expect the new regime to be introduced without any legal challenges. Alan Chalmers, employment partner at the law firm DLA Piper, warns that employers may be forced to ban smoking breaks for workers who want to pop outside for a cigarette. "There has never been a right to smoke at work and employers are not required to provide facilities for their staff to smoke outside, even if smoking has previously been permitted in the workplace," he says. "The smoking ban may lead to an increase in complaints from non-smokers that smokers get extra breaks. If smoking breaks are allowed, employers should have a policy making it clear what is acceptable and what is not."

There are also cultural concerns raised by the ban. Sunday is expected to be the last day of the shisha café, a place where customers smoke the Arabic water-pipe in which fruit-scented tobacco is burnt using coal, passed through an ornate water vessel and inhaled through a hose. The last five to 10 years have seen a rapid growth in the number of these cafés across the country, particularly in Manchester and Birmingham.

On Monday night, the journalist and broadcaster Andrew Neil was the guest speaker at a special event organised by the pro-smoking group Forest to mark the introduction of the ban. He was joined by Antony Worrall Thompson and David Hockney. Forest, which describes the ban as illiberal and draconian, said the event was "possibly the last opportunity for you to eat, drink and smoke at major indoor public event anywhere in the UK".

Unless of course lawyers for Forest, or any other affected group, can find a suitable test case that can overturn the ban.