1.1    On 17 October 2005 the Minister for Health, Social Services & Public Safety announced that comprehensive controls on smoking in enclosed public places and workplaces would be introduced in Northern Ireland, in April 2007.  An earlier public consultation on the draft Smoking (Northern Ireland) Order 2006 (the Order), which ended on 5 May 2006, provided the opportunity for comments including views on premises that might be exempt from the smoke-free legislation.  [The Order was made on 14 November 2006 and it was subsequently announced that the smoke-free legislation would come into force with effect from 30 April 2007].

1.2    The Order gave the Department the power to make regulations in a number of areas including the definition of ‘enclosed’ and ‘substantially enclosed’ signage requirements, exemptions and the amount of fixed penalty notices.  To make the April 2007 deadline, and while the Order was going through its Parliamentary process, a public consultation exercise was carried out on the draft regulation

2.1    The consultation document and questionnaire provided an opportunity for comments on the wording and effect of two sets of draft regulations proposed under the Order.  These were as follows;

-the draft Smoke-free (General Provisions ) Regulations (Northern Ireland) 2007; and

-the draft Smoke-free (Exemptions,Vehicles, Penalties and Discounted Amounts) Regulations (Northern Ireland) 2007.

2.2    The questionnaire contained seven specific questions to highlight a number of key areas within the proposed draft regulations on which the Department particularly welcomed views.  The 6 week consultation period ended on 3 November 2006.

2.3    The consultation questionnaire attracted 89 responses.  These came from a wide variety of sources including local councils, HPSS Boards and Trusts, the education, voluntary and community sector, trade unions, political parties, hospitality sector, tobacco manufacturers and the general public.  The main comments received to the consultation questions have generally been positive and are summarised below:

2.4    Over three quarters of respondents 77% were broadly content with and agreed the proposed signage requirements.  Respondents agreed that the issue of signage is crucial.  A number of respondents believed that the proposed signage requirements are an unnecessary burden.  Some major stakeholders expressed concern that overall signage requirements may also be too onerous and costly (major costs are related to erection of signs and their maintenance).  Other contributors suggested that there should only be signage at the main public or principal entrance while a small number proposed that signs needed to be in a prominent place not just public entrances.

2.5    Other issues raised by respondents included having (NI) signage requirements set similar to Scotland, adding some wording to signs to show to whom a complaint can be made, allowing a ‘sunset clause’ with signs not mandatory two years after the legislation implementation date, a deviation to signage requirements at performance venues, informing partially sighted/blind persons and a notice period of nine months after the implementation date before the full provisions are brought into force.

2.6    78% of respondents to this question were in favour of the proposals for smoke-free vehicles.  Many respondents were particularly concerned about how the legislation would apply to private vehicles that are used occasionally for work purposes and wanted further clarification.  The view was expressed that vehicles used primarily for private purposes by a person should not be required to be smoke-free.  The issue of company cars and hire/lease vehicles was also raised in relation to who has responsibility for applying the legislation.  A number of respondents suggested there was inconsistency between Regulation 2 & Regulation 9 in respect of stowable roofs (vehicles/premises).  Many key stakeholders indicated that consistency across the UK was an important factor and if possible NI signage regulations should be harmonised with the Scottish regulations.

2.7    In addition, some respondents wanted minimum dimensions set for signage the same as in Scotland and a form of wording added to the no-smoking symbol.  Reference was made the durability & visibility of signs and concern expressed about signage provision for partially sighted/blind persons.

2.8    Overwhelming majority of respondents (87%) were in favour of the proposals for private accommodation.  A large number of those were concerned about the protection of health care staff having to visit private homes in the course of their work and felt there should be some form of regional policy to protect such workers in these situations.  Some respondents referred to the risk of legal action under health & safety/human rights provisions if employees carrying out their normal duties in private homes are not protected from second-hand tobacco smoke.  In addition a number of stakeholders were concerned about the exclusion for certain types of work in private accommodation and the need for balance between protection of workers coming in and rights of a person in their own home.  A small number of respondents suggested that departmental guidance should be issued to residents of shared private accommodation.

2.9   Responses to this question were almost equally divided with 48% of respondents in agreement with the proposed exemptions and conditions while 52% disagreed.  Many respondents against proposed exemptions in such settings expressed the view that this could be exploited and may weaken the effectiveness of legislation.  Some stakeholders expressed concern about health & safety aspects (protection from second-hand smoke) for workers/staff if such exemptions were granted.  A high number of respondents in favour of exemptions wanted these qualified in some way, such as:- an exemption only for a designated bedroom, restricting the number of rooms to be designated, ensuring smoking rooms placed together, setting the percentage of rooms within premises which can be designated, defining “designation” in regulations and reviewing any exemptions within three years.

2.10   Some 55% of respondents were in favour of the proposed exemptions with 45% against.  A small number of the respondents against stated that no exemptions of any kind should be granted and pointed out that they saw this as a possible loophole.  It was also suggested that exemptions in these establishments are a form of encouragement for clients/patients to continue smoking.  Slightly over one third of respondents specifically referred to the need for measures to protect workers in such facilities/premises if exemptions are granted with some also calling for minimum requirements to be set in terms of ventilation for staff supervising clients/patients.  Some respondents suggested that if exemptions are allowed these should also be kept under constant review and from the outset it should be made clear that exemptions do not apply to staff or visitors.

2.11    Other respondents raised issues such as re-defining the term “long term”, a case by case protocol applying in Mental Health Units, using the recommendations of the Kings Fund–Clearing the Air Report in respect of Mental Health Units, replicating the exemptions as in Scotland & Republic of Ireland and that any proposed exemptions should not apply to children’s & young people’s homes.

2.12    Overwhelming majority of respondents (91%) were in agreement with granting an exemption for research & development facilities.  Many respondents also expressed concern about protecting staff working in such establishments from the dangers of second-hand smoke.  While only a small number of respondents were against granting an exemption some of these also wanted any exemption tightly controlled/framed and to ensure that the area designated exempt does not permit other staff or visitors to smoke.  One stakeholder suggested that the proposed exemption should be widened to include facilities owned by tobacco companies/entities working on their behalf for purposes of consumer testing of tobacco products.

2.13   There was almost total support for the proposals on smoke-free vehicles with (95%) of respondents in agreement.  A high percentage of those were very concerned about how the smoke-free legislation would apply to private vehicles that were used occasionally for work purposes.  Many requested that the proposed regulations dealing with private vehicles/part-time work vehicles should be clarified or amended.  A number of respondents intimated that rented/hire vehicles should be designated either smoking or non-smoking in the same way as is proposed for hotel rooms. Other issues raised included the removal of the exemption in relation to convertible vehicles, the position of public service drivers expected to enforce the ban in their vehicles and the use of a Scottish protocol.

3.    Exemptions for Workplaces

A number of respondents expressed concern about proposed exemptions in respect of specialist tobacconists and places of performance/recording of live entertainment.  It was pointed out that these areas are essentially workplaces and exemptions cannot be supported on any grounds that include a consideration of protection of workers& members of the public.  

4.    Specialist Tobacconists.

Respondents were totally against granting an exemption for specialist tobacconists as there is no reason or case for this.  It was felt there is no convincing argument that smoking in such premises is any more essential to their business than smoking in licensed premises & members’ clubs.

5.    Performers

Respondents were all opposed to an exemption for performers.  The point was made that performers and any audiences etc also need protection from second-hand smoke.  It was suggested that the Department follows the Scottish example and does not allow any exemption.  Some respondents stated that all enclosed performance venues should be classified as smoke-free ie smoke-free applies to premises rather than individuals.

6.    Specified Conditions for Premises with Designated Rooms for Smoking

Respondents suggested that additional requirements are needed to protect workers from second-hand smoke by effectively isolating the designated smoking room from any work room or public space.  It was proposed that the Department, along with interested parties, should develop a Code of Practice and compliance with it used to check if employers have properly exercised their duty of care to employees. Other respondents intimated that the Department should instigate an awareness campaign to encourage such premises to become smoke-free voluntarily and review after three years.

7.    Crown Properties (MOD) and Prisons

Many respondents expressed disappointment that prisons may not come under the smoke-free legislation and indicated certain restrictions should apply in this setting.  It was stated that non-smoking inmates and prison staff have a right to be protected from second-hand smoke.  The issue of juvenile prisons was raised and it was felt such prisons should be completely smoke-free.  One respondent suggested that regulations should be amended to reflect that smoking in prisons could be dealt with using both prison rules and the provisions of the Smoking Order.  It was also suggested that Prison Rules could be amended as was done in Scotland.  In relation to MOD establishments most respondents wanted these to be smoke-free especially where civilian workers are employed.  Only one respondent suggested that the regulations do not apply to the MOD including the definition of military premises, sleeping accommodation on military premises, naval ships and signage in military vehicles.

8.    Reflux Smoke

Respondents expressed concern about exposure to second-hand smoke where smokers congregate in doorways and in the open air areas such as seated sections in stadia etc.  It was suggested that the Department should address the issue of reflux smoke through appropriate guidance to business.  Respondents also felt that the Department may need to provide additional powers for enforcement officers if this becomes a major problem after legislation is introduced.

9.    New Burdens Doctrine

All respondents were concerned about the issue of resources to meet additional costs of enforcement as the new burdens doctrine provides that this expense cannot be funded by reducing existing services.

10.    Defences

Respondents expressed concern about the nature and breath of defences available and suggested that the steps a person needed to take to be able to avail of statutory defences should be in the regulations.  It was stated that those in control of premises or vehicles have to understand that a duty has been created to prevent smoking.  Respondents also suggested that in relation to liquor licences if a person in charge persistently fails to take reasonable steps to secure compliance then this should be taken into consideration in granting/renewing their licence.

11.    Smoking Shelters-Enclosed/Substantially Enclosed

A high number of respondents provided comments on the issue of “enclosed/substantially enclosed” smoking shelters and suggested that further clarity is needed to prevent disruption.  Many were concerned about the location of smoking shelters and the need for adaptations to existing structures so they could be used.  Some respondents suggested that there is a need to define the perimeter of premises as including other structures within 1.5metres which effects ventilation.  One respondent stated that clear scientific evidence/risk assessment was required to justify the definition of substantially enclosed and if proved time should be allowed to phase out current shelters.  

Some respondents stated that they felt there was inconsistency between the regulations as they apply to premises and to vehicles.  It was also suggested that central guidance should be considered for planning, licensing and enforcement authorities on certain aspects of the regulations. The point was made that the aim should be to make the requirements more flexible & workable in the business environment.

12.   Separation of Legislation to Devolved Areas

Respondents suggested harmonisation of all aspects of legislation but particularly in relation to vehicles and implementation dates.  The point was made that separation of legislation causes problems for business.

13.   Date of Introduction of Legislation

Respondents indicated that the date of legislation coming into force is too early.  It was suggested that there should be a notice period of nine months from finalisation of regulations before the full effect is brought in.  Some concern expressed about the possible loss of business and allowing more time so that external facilities can be created which comply with the final regulations.

14.   Future Reviews of Smoke-free Legislation

Respondents in favour of review & evaluation of the Smoke-free legislation and suggested that the Department should commit to this. It was intimated that this may be valuable in refining and improving the effectiveness of legislation.

15.    Planning Guidance

Respondents expressed concern about planning permission for external smoking shelters as it was expected there would be a flood of applications when the regulations are finalised.  It was suggested there may be merit in publishing guidance stating which structures require planning permission & which don’t.  

16.    Penalties

Respondents expressed concern about the level of penalty applied to licensees as compared to an individual smoker.  All see this as disproportionate and unfair.  Seeking assurance, similar to England, that maximum fine is only applied to repeat offenders and that this is stated in supplementary guidelines.  Respondents suggested that the offences should be reworded to focus on “allowing” someone to smoke rather than “failing to prevent” them doing so.

17.    Use of Pavements

Respondents raised the issue of smokers having to go outside premises onto pavements.  This viewed as a potential major problem in NI as local councils don’t have responsibility for pavements/footpaths.  It was suggested that the Department needs to consider this with other Departments who have responsibility for pavements/roads.