Questions and Answers
Detailed guidance for businesses was issued in November 2005 and the Frequently Asked Questions below address more points that were raised regularly in the run up to the smoke free law coming into effect.
The flowchart may be useful as an illustrated guide to how your premises are affected by the legislation.
Anyone with doubts about the implications of the law for their business should seek their own legal advice or seek the assistance from the Environmental Health Department of their local council, who are responsible for enforcement.
- General Information
- Care and support services
- Hospitality sector
- Outdoors and shelters
- People working from home
- People working in other peoples' homes
- Prisons and young offenders' institutions
- Residential accommodation
- Sports stadia
- Theatres and broadcasting or film studios
- Vehicles and public transportation facilities
When will the ban come into effect?
6am on Sunday March 26, 2006.
What is the aim of the new law?
The law aims to protect the general public from the harmful effects of passive smoking. Breathing other people's smoke is called passive, involuntary or second-hand smoking. The non-smoker breathes 'sidestream' smoke from the burning tip of the cigarette and 'mainstream' smoke that has been inhaled and then exhaled by the smoker. Second-hand smoke (SHS) is a major source of indoor air pollution.
What does the law do?
The new law bans smoking in "no-smoking premises", by:
- creating an offence of permitting others to smoke in no-smoking premises;
- creating an offence of smoking in no-smoking premises;
- creating an offence of failing to display warning notices in no-smoking premises;
- setting out the powers of enforcement officers to enter no-smoking premises; and
- creating an offence of failing without reasonable cause to give one's name and address on request by an enforcement officer.
What do you mean by 'no-smoking premises'?
The full list of no-smoking premises can be found in Schedule 1 to the smoking regulations. They include premises like restaurants, bars, shops, cinemas, offices, hospitals, work vehicles and sports centres. Those premises will then be no-smoking premises if they are wholly or substantially enclosed. What that list of no-smoking premises has in common is that they all fall into one of the following four broad categories of premises, namely those:
- to which the public or a section of the public has access;
- which are being used wholly or mainly as a place of work by persons who are employees;
- which are being used by and for the purposes of a club or other unincorporated association; or
- which are being used wholly or mainly for the provision of education, health or care services.
Are there any exemptions to the law?
Only a few exemptions to the law have been made, mainly on humanitarian grounds. The exemptions are residential accommodation, designated rooms in adult care homes, adult hospices, designated rooms in psychiatric hospitals and units, designated hotel bedrooms, designated detention or interview rooms, designated rooms in offender accommodation premises, offshore installations, private vehicles, certain laboratory rooms, submarines and refuelling vessels. Nothing in the new law, however, obliges an employer or manager of exempted premises to permit smoking or to provide a smoking area.
Will the ban affect my business premises?
Most business premises will be affected. If they are one of the kinds of premises listed and are wholly or substantially enclosed then they will be no-smoking premises.
What do you mean by 'wholly or substantially enclosed'?
This is an area with a ceiling or roof that – except for doors, windows and passageways – is either wholly enclosed (whether premanently or temporarily); or is enclosed but for an opening which is less than half of the area of its walls. The legal definition can be found in the smoking regulations.
How will the new law affect my business premises?
If your premises are caught by the smoke-free law, you, your staff, customers and visitors will not be allowed to smoke in the enclosed areas of your premises.
Does this apply to my customers?
Will there be support for businesses?
Detailed guidance has been sent out to all businesses in Scotland. If you haven't received this, then call the Order Line 0845 300 3488 to get a copy, or view it on this website. The guidance includes samples of the signs which require to be displayed (which can also be obtained free of charge by calling the Order Line) and a sample smoke-free policy. It also sets out the steps that employers, managers or those in control of premises should take to comply with the law.
My workplace has designated or segregated areas for smoking. Is this not enough?
No, the legislation requires that any no-smoking premises must be completely smoke-free, unless an exemtion applies under the legislation. This is because only a complete ban on smoking in enclosed areas will reduce exposure to passive smoking. This means that the provision of smoking rooms inside workplaces will no longer be allowed.
My premises are well-ventilated. Does that not provide protection from passive smoking?
No. There is no safe level of exposure to second-hand smoke. Ventilation systems improve comfort by removing the smell and visibility of the smoke. They do not remove toxic carcinogens from the air.
My workplace is already smoke-free. Will I have to do anything?
You will have a duty to comply with the new law, inlcuding putting up the required no-smoking signs for 26 March along with other workplaces. See question 15 or, for more detailed advice, consult the business guidance.
I have a very small business with only a couple of employees who both smoke. Does this law still apply to me?
Yes, if your workplace is wholly or substantially enclosed.
As an employer, or person in control of premises affected by the law, what will I have to do to comply?
Employers, managers and those in control of no-smoking premises need to display no-smoking notices and to take reasonable measures to ensure that staff, customers/members and visitors are aware of the new law and that they do not smoke in their premises. We recommend the following minimum action–the display of no-smoking notices (as specified in the legislation and guidance) so that they are clearly visible to all employees, customers and visitors while they are in the premises or approaching them; developing and implementing a smoke-free policy; removing all ashtrays from premises; informing anyone smoking that he/she is committing an offence; requesting that they extinquish their smoking material immediately or leave; and refusing service (if your business provides a service for customers or members). Further details can be found in the business guidance on this web-site. Signs which comply with the legislation can by ordered, free of charge, by calling 0845 300 3488.
What do I do if someone ignores the ban and smokes on my premises?
You will be expected to take all reasonable measures, outlined above to ensure that the person stops smoking. If he/she refuses, implement your normal procedure for anti-social/illegal behaviour in the premises. In all cases where physical violence or intimidation is threatened or encountered, seek the assistance of the police.
Need to comply with the law, unless they are working from their home.
Do I have to provide an outside smoking shelter for my staff?
No. Nothing in the new law obliges an employer or manager of no-smoking premises, or exempted premises, to permit smoking or to provide a smoking area.
I don't want staff congregating outside my premises to smoke. What should I do?
You may wish to discuss with your staff how best to meet your wishes, whilst acknowledging their needs. As a first step, review your existing smoking policy in consultation with staff. Advice can be obtained from the national helpline of the Scottish Centre for Healthy Working Lives on 0800 019 2211, or log onto www.healthyworkinglives.com for further information.
All those providing care and support services should refer to the guidance issued to local authorities, NHS organisations and care service providers in December 2005.
Services may find the flowchart helpful in determining whether their premises are caught by the smoke-free law. As further clarification 'adult care home' under the act means an establishment providing a care home service excluseively for adults. 'Care home service' means a care home service within the meaning of section 2(3) of the Regulation of Care (Scotland) Act 2001.
If in any doubt about how the law applies to your premises, proprietors should seek their own legal advice or seek assistance from the local environmental health department in the local authority area in which their service is situated.
The Enforcement Protocol, setting out the key principles of the enforcement approach.
Who will enforce the law?
Environmental Health Officers have the power to enter all 'no-smoking premises' in order to establish that the smoke-free legislation is being enforced in accordance with the law. Environmental Health Officers can also give out fixed penalty notices to people whom they believe are committing, or have committed, an offence under the legislation.
Will my business be subject to checks?
Environmental Health Officers have powers to enter no-smoking premises in order to check whether an offence has taken place or is being committed. Officers of the council will, in general terms, have access to premises to which the public has access.
What penalties will there be for those who break the law?
Those in control of no-smoking premises could be liable to a fixed penalty fine of £200 if they do not take reasonable action to prevent someone smoking on the premises, or if they do not provide adequate No Smoking signs. Individuals who smoke in no-smoking premises will be laible to a fixed penalty fine of £50. Refusal to pay or failure to pay may result in prosecution and a fine of up to £2,500.
Will fixed penalty notices be applied at the time of the offence, or at a later date?
That will be up to the enforcement officers. The aim will be to be non-confrontational.
What should I be doing now?
You should discuss the implications of the new law with your staff and consider carefully the detailed guidance provided to ensure that you are in a position to comply with the law from 6am on March 26, 2006.
What is the compliance line?
If someone is smoking in no-smoking premises, there should be signs on display which will tell people who they can make a complaint to. If this doesn't resolve the problem, then people can call the national compliance line 0845 130 7250 to register their complaint. The line will be manned 12 noon until 12 midnight, seven days a week, including public holidays. Calls will be charged at local rate. All complaints to the compliance line will be passed to the local environmental health department and will be followed up.
What happens if people make false complaints to the compliance line?
Environmental Health Officers (EHOs) have considerable experience of handling complaints on a wide range of issues and will use their professional judgement in all instances. All valid complaints will be followed up by EHOs, who will decide on the appropriate level of enforcement action to be taken. If employers can demonstrate that they have taken all reasonable precautions to comply with the law, they have nothing to fear from bogus calls.
Places permitted exemptions under the legislation can be found in Schedule 2 to the smoking regulations. The exemptions are mainly restricted to a 'Designated room' for smoking. 'Designated room' means a room which –
- (a) has beeen designated by the person having the management or control of the no-smoking premises in question as being a room in which smoking is permitted;
- (b) has a ceiling and, except for doors and windows, is completely enclosed on all sides by solid floor-to-ceiling walls;
- (c) has a ventilation system that does not ventilate into any other part of the no-smoking premises in question (except any other designated rooms); and
- (d) is clearly marked as a room in which smoking is permitted.
What do you mean by 'ventilation system' in respect of designated rooms?
If hotel bedrooms have mechanical ventilation, this should be used. However, an openable window which allows good natural ventilation, will suffice, assuming that within a hotel bedroom, there would only be one or two people smoking. Hotel bedrooms which do not allow good natural ventilation due to other health and safety issues (e.g. windows which are not fully openable), should not be designated as bedrooms in which smoking can take place. The inspecting officer will use his or her professional judgement to determine whether smoke can be adequately dispersed.
As outlined in guidance issued to the NHS, local authorities and care sector providers at it is recommended that designated rooms in adult care homes and psychiatric hospitals and psychiatric units should have some form of forced air ventilation that vents to the outside of the building. Designated rooms in these premises are intended for the use of residents only, not for staff or visitors. Staff should not normally be required to work in these designated smoking rooms. If they have to enter them, then their time of exposure to second-hand smoke should be kept to a minimum. Staff with pre-existing conditions exacerbated by second-hand smoke e.g. asthma, should not be asked to enter them at all.
Hotels, bed and breakfasts etc.
Hotels, boarding houses, guest houses, bed and breakfasts, inns and hostels which have two or more bedrooms set apart for the sleeping accommodation of guests are covered by the new law. However, as a proprietor you will have the ability to designate one or more bedrooms where the occupants can smoke. The designated room should have a ventilation system which does not ventilate into any other part of the no-smoking premises and should be clearly marked as a room in which smoking is permitted. You are not, however, required to designate any rooms for smokers, if you do not wish to do so. Communal areas of your hotel will require to be smoke-free.
Not caught by the smoke-free law.
Private clubs, e.g. rugby clubs, snooker clubs, golf clubs, working men's clubs etc.
Premises which are being used by and for the purposes of a club or other unincorporated association, and which are wholly or substantially enclosed, are affected by the new law. Members and staff of private clubs deserve the same protection from the health effects of second-hand smoke as much as anyone else.
Caught by the smoke-free law. Some publicans are concerned at what will happen if they cannot stop someone smoking in their pub. However, the vast majority of the population are law abiding citizens and we envisage high levels of self-compliance. The reasonable measures which you will be required to take are outlined above. If you take all reasonable measures to prevent smoking and the customer will not extinguish his or her cigarette or leave the premises, you will not be liable under the legislation. There will also be a national call-line where you can report the incident.
What about a marquee?
The definition of premises includes any tent, marquee or stall. They would therefore be caught by the legislation, if wholly or substantially enclosed.
Will pubs lose their licence if they allow smoking in their premises?
They may do. Failure to comply with the law will be taken into account in licensing decisions under the new licensing regime which is also being brought into effect.
Does the ban extend to outdoors? Have heard that playgrounds and parks may be affected.
Smoking is prohibited by law only in wholly or substantially enclosed public places. Open air playgrounds and parks will therefore not be affected. Employers, including local authorities and the NHS can, however, determine whether their smoke-free policies extend to external areas, but they will not be subject to the law. We know, for example, that second hand smoke is particularly harmful to the health of children and young people, so local authorities may wish to consider efforts which not only protect the health of children, but help to denormalise smoking and stop young people from taking up smoking in the first place.
Am I obliged to provide external smoking shelters for any of my staff or customers who smoke?
No. You may wish, however, to review your smoking policy, and discuss with your staff how best to meet their needs within the new legislation. If your staff want help to stop smoking, advice on where to go for assistance is outlined in the business guidance.
I want to provide external smoking shelters where my staff or customers can smoke. How should I go about this?
You will need to ensure that what you are proposing complies with the law i.e. is not wholly or substantially enclosed within the legal definition of that phrase (see Q7 above). You should therefore seek legal and local planning advice on any proposed structure, in case what you have in mind would fall within the smoke-free legislation as being "wholly or substantially enclsoed" and/or would require planning or building consent.
Am I required to provide stubbing out bins outside my premises?
No, but you may wish to do so to prevent litter. If so, you will need to seek advice from your local planning department as planning or building consent may be required.
What about my existing smoking shelter? It's more than substantially enclosed.
This must comply with the law with effect from March 26. However, you may wish to discuss this issue, in advance, with your local environmental health officer.
What about bus shelters?
Councils and transport operators are required to comply with the law, like all other businesses. If bus shelters are 'wholly or substantially enclosed', then they must display the appropriate signage.
Not caught by the smoke-free law.
Peoples' homes are not caught by the new legislation. However, it is recognised that there are instances where people have to visit a residential property to do their job. The guidance for local authorities, NHS organisations and care service providers offers practical advice on how to reduce staff exposure to second hand smoke in these circumstances. For example, workers have the right to ask, not tell, someone not to smoke when they are providing a service to them in their own home. We are confident that those receiving treatment will respect that.
The smoke-free legislation does not apply in prisons or young offenders' institutions as they are governed by the Prisons Scotland Act 1989.
Prison rules were changed on 26 March to ensure that they were subject to the same smoke-free regulation as other sectors of society i.e. no-smoking in communal areas, with smoking allowed only in prisoners' cells. To back up the changes, the Scottish Prison Service are developing operational guidance to look at issues such as the sharing of cells. The Service are also currently undertaking a new programme of cessation support to help those prisoners who smoke and who wish to give up.
Peoples' homes are not caught by the legislation. Common stairs in tenements and apartment blocks are typically the common property of all the proprietors and as such are also not caught by the smoke-free law. There is also an exemption for "residential accommodaiton" under the smoke-free legislation to cover situations where people live on premsies that will be no-smoking, for example pub landlords who live on the premises, so that the private part of the premsies that they actually live in will be exempt.
Due to the variation in the design of stadia in relation to the seating or standing area of the ground, some stadia may be substantially enclosed while some are not. We would suggest that stadia owners take their own legal advice on whether their stadium is caught by the legislation as well as talking to the enforcement officers from their local authority. All wholly or substantially enclosed areas within the stadia complex will require to be smoke-free.
Theatres and broadcasting/film studios will be no-smoking premises under the law, so it will be an offence to smoke in them, including on-stage, from 26 March. Those performing in and attending theatrical performances have the same right to protection from the harmful effects of second-hand smoke as others. It should be noted that the law applies to any product which can be smoked, so the smoking of herbal cigarettes is also prohibited. For those theatrical or film performances which require to protray smoking, other artifical products will need to be used.
Are vehicles caught by the smoke-free law?
All cars, whether used for business or private purposes, are exempt from the law, unless they are being used as a private taxi. So company cars will not be caught. All other vehicles, i.e. vans and lorries, used primarily for business purposes and any public transportation vehicles will be affected by the new law.
What if the driver is on his/her own in the van/lorry cab?
Vehicles in which one or more persons use for work are caught by the new law.
What about lorries and vans travelling to Scotland from England and other countries?
The law applies to no-smoking vehicles travelling in Scotland, irrespective of their origin, and the required no-smoking signage should be displayed. Articles and features have been placed in relevant trade magazines to inform transport operators of the change in the law in Scotland.
All leased cars are exempt. Other vehicles hired for private purposes will not be caught by the smoke-free legislation. Those being used primarily for business purposes should, however, be smoke-free and should display the appropriate no-smoking signs.
Public transport and public transport facilities: buses, taxis, trains
All public transport must comply with the smoke-free law. This includes when the driver is in the cab on his own. Public transport facilities like bus stations and train stations should also be 'no smoking' premises, if they are wholly or substantially enclosed. Bus shelters are also caught by the smoke-free law and should display the appropriate signage if they are wholly or substantially enclosed.
Planes and airports
Aeroplanes do not come within the scope of the legislation. They are currently 'no smoking' premises under aviation law. Airports in Scotland, however, now come within the scope of the law and should be completely smoke-free, if wholly or substantially enclosed.
Vessels and offshore installations
The issue of what ships are caught by the legislation is complex due to the reservations under the Scotland Act relating to the health and safety of Merchant Shipping Act vessels. The smoking legislation will apply to certain vessels covered by the Merchant Shipping Act 1995. See below.
- Pleasure craft/ floating bars and restaurants
From 26 March 2006 smoking on these vessels will be illegal if they operate in Scottish waters, or travel between Scottish ports.
Domestic ferries will be subject to the Scottish smoke-free law e.g. those that ply between the mainland and islands; but not those that ply between Scotland and other countries, including Northern Ireland.
- Cruise liners
International liners cruising in Scottish waters or docking in Scottish ports will not be subject to the smoke-free law.
- Fishing boats
The legislation does not extend to fishing vessels because of the health and safety risks on board these vessels.
- Offshore installations
Law applies to offshore installations within Scottish waters, but they are permitted an exemption for designated room/s on board.
- Supply vessels to oil rigs Will not be caught by the smoke-free legislation, irrespective of whether they are operating within Scotland's 12 mile limit or beyond.