This document outlines the key principles of the enforcement of the smoking provisions of the Smoking, Health and Social Care (Scotland) Act 2005 as agreed by the Royal Environmental Health Institute of Scotland, the Society of Chief Officers of Environmental Health, the Convention of Scottish Local Authorities (COSLA), the Crown Office and Procurator Fiscal Services, the Association of Chief Police Officers in Scotland (ACPOS) and the Scottish Executive Health Department.
The Smoking, Health and Social Care (Scotland) Act 2005 provides for 4 main offences: permitting others to smoke in no smoking premises; smoking in no smoking premises; failing to display warning notices in no smoking premises; and failing without reasonable cause, to give one’s name, and address on request by an enforcement officer.
The Act allows for an individual to discharge any liability to conviction by payment of a fixed penalty. It also provides for an authorised local authority officer to enforce the legislation and issue fixed penalty notices. These “enforcement officers” encompass all local authority officers who may be engaged in enforcement work associated with the smoking controls including Environmental Health Officers, Technical Officers and Licensing Officers.
Enforcement officers will assess whether premises comply with the legislation. Enforcement officers will do so by determining whether owners, occupiers, managers, or persons in control of premises have taken all reasonable precautions to avoid people smoking. Annex A sets out more detail.
Enforcement officers will work closely with businesses, building compliance with legislation through education advice and presentation. Enforcement action is taken forward only when the seriousness of the situation warrants it. The approach to enforcement is non-confrontational focused on raising awareness and understanding to ensure compliance. Any enforcement action undertaken must be fair, proportional and consistent. Enforcement action should be considered against individuals smoking in no-smoking premises where the owner, occupier, manager or any other person in charge can demonstrate that they have taken all reasonable precautions against these individuals smoking on their premises.
Inspection will either be proactive ie to confirm compliance; or reactive in response to a complaint. The initial focus of inspections should be on premises:
- Which are open to substantive numbers of people.
- Where there is an absence of pre-existing self imposed smoking controls.
- Where enforcement officers do not usually visit as part of their routine inspections under other legislation.
A risk based inspection programme for premises is likely to evolve as officers become more familiar with the new requirements. The development of such a programme could include factors such as:
- Confidence in management.
- History of compliance with the requirements.
- Number of complaints received from the Compliance Phone Line.
Enforcement officers may carry out a number of different types of inspections in relation to smoking controls – examples are listed below. These options are not mutually exclusive. Officers should choose the most appropriate course of action once all factors have been taken into account.
a. Official inspection – officers announce themselves and show appropriate identification to person in charge of premises, prior to assessing compliance with the provisions.
b. Covert – officers will assess compliance by observation within the premises, and subsequently announce themselves and show appropriate identification to person in charge of premises, at the end of the period of surveillance.
c. Covert and leave – As above, but the officers wait until the following day to discuss their findings with the manager of the premises.
Any covert inspection should comply fully with each local authority’s policy in relation to the Regulation of Investigatory Powers (Scotland) Act 2000 (RIPSA).
The personal safety of officers should not be compromised by enforcement action.
All complaints should be assessed by an enforcement officer and action taken appropriate to the nature of the complaint.
Assessment of Compliance
Enforcement officers will require to carry out an assessment to determine whether or not owners, occupiers, managers or any person in control of no-smoking premises have taken “all reasonable precautions” to avoid people smoking. These precautions will include a combination of compliance with specific legal requirements (in bold text) and activities which would be considered good practice by organisations in demonstrating that they are taking all reasonable precautions (in italics).
All businesses and organisations should have received guidance from the Scottish Executive on the implications of the new legislation and how to comply. Sample signs were included. Further copies of the guidance and signage can be obtained from www.clearingtheairscotland.com
Issues for officers to assess are:
Signage for premises
“No smoking” signs must be conspicuously and permanently displayed to be visible to and legible by persons in and persons approaching no-smoking premises.
The minimum signage requirement for premises is a no-smoking notice which:
- is at least 230mm by 160 mm in size;
- states that the premises are no-smoking premises and that it is an offence to smoke there or knowingly to permit smoking there;
- displays the international “No Smoking” symbol (at least 85mm in diameter);
- displays the name of the person to whom a complaint should be made in the event of non-compliance; and
- is displayed in such a manner that it is protected from tampering, damage, removal or concealment.
Any additional notices required to make sure everybody on the premises is made aware that smoking is not allowed are required to:
- state that the premises are no-smoking premises and that it is an offence to smoke there or knowingly to permit smoking there; and
- display the international ‘no smoking’ symbol, at least 85 mm in diameter;
Signage for Vehicles
No-smoking signs should be displayed in or on any vehicles that are affected by the ban in such a way that the signs can be seen and read by persons who are in the vehicle, as well as persons approaching the vehicle in question. The reference to vehicles includes trains, buses, taxis, private hire cars and any vessel, boat or hovercraft. There’s no legal requirement on the size of these signs but they must:
- state that the vehicle is no-smoking and that it is an offence to smoke there or knowingly to permit smoking there;
- display the international no-smoking symbol; and
- display the holder of a particular post (e.g. the manager) to whom a complaint may be made by anyone who observes someone smoking.
Ashtrays and other such receptacles should not be present in a no-smoking premises.
It is recommended that those in control of no-smoking premises:
- Develop a smoke-free policy, (preferably written).
- Develop a procedure for dealing with any people who smoke (preferably written).
- Communicate to staff in both the policy and written procedure.
- Keep a written record of any incident (and outcome) where responsible member of staff confronts an individual for smoking on the premises.
Smoke-free policy and procedures
It is strongly recommended that owners and managers establish and implement a written policy and procedures to demonstrate their compliance with the law. A sample smoke-free policy was provided as part of the Scottish Executive’s guidance to businesses. This can be adapted by individual businesses and organisations for their use, if they wish.
The procedures should contain items similar to the following:
- Draw the person’s attention to the “No Smoking” signs in the area and inform them that he/she is committing an offence by smoking. Politely ask them to stop smoking.
- Direct them to the nearest place where they are able to smoke legally.
- Advise the person smoking that their actions could result in the person in control of the premises receiving a Fixed Penalty Notice of £200 or being prosecuted and receiving a fine of £2,500.
- Refuse the person service.
- If the person continues to smoke, ask them to leave the premises.
- If he/she refuses, implement normal procedures for anti-social/illegal behaviour on the premises.
- Maintain a written record of all such incidents and outcomes.
- If physical violence is threatened by the person smoking, notify and/or seek assistance from the Police.
The policy should identify members of management and/or staff who have responsibility for its implementation and review.
Employers and managers of no-smoking premises should ensure that all staff, including new members of staff, are aware of the no-smoking policy. All staff working in no-smoking premises should be aware of which member of staff or management present is the responsible person for dealing with any persons smoking.
Record of incidents
In order to assist any future defence of “due diligence”, each premises should keep a documented record of any incidents.
Businesses should be encouraged to contact their local Environmental Health section after any incident.
Owners, occupiers, managers or other persons in charge should only be reported to the Procurator Fiscal after repeated failure to comply with the legislation. Again, this should be reserved for serious or persistent contraventions, and an educational and non-confrontational approach should be used whenever possible.