| Description | Draft smoking regulations |
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| ISBN | N/A (Web Only) |
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| Official Print Publication Date | |
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| Website Publication Date | August 26, 2005 |
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DRAFT Scottish Statutory Instruments
2006 No.
PUBLIC HEALTH
The Prohibition of Smoking in Certain
Premises (Scotland) Regulations 2006
Made - - - - 2006
Laid before the Scottish Parliament 2006
Coming into force at 0600 hours on 26th March
2006
The Scottish Ministers, in exercise of the powers
conferred by sections 3(3), 4(2), 4(3), 4(7), 40(1)(b) of,
and paragraphs 2, 4(1), 5(2) and 12 of schedule 1 to, the
Smoking, Health and Social Care (Scotland) Act 2005(
a) and all other powers enabling them in that
behalf, after consulting such persons as they consider
appropriate in accordance with section 3(3) of that Act and
after consulting such persons as they consider appropriate
on a draft of the regulations in accordance with
section 4(2) of that Act, hereby make the following
Regulations, a draft of which has, in accordance with
section 40(3) of that Act, been laid before and approved by
resolution of the Scottish Parliament:
Citation, interpretation and
commencement
1. -(1) These Regulations may be cited as
the Prohibition of Smoking in Certain Premises (Scotland)
Regulations 2006.
(2) In these Regulations-
"the Act" means the Smoking, Health and Social Care
(Scotland) Act 2005;
"adult" means a person aged 16 years or over;
"adult care home" means an establishment providing a
care home service exclusively for adults;
"adult hospice" means a hospice providing care
exclusively for adults;
"bar" means any premises exclusively or mainly used
for the sale and consumption of beverages, whether
alcoholic or not;
"car" means a mechanically propelled road vehicle
which is not-
(a) a goods vehicle;
(b) a motor cycle; or
(c) a vehicle of a type not commonly used as a
private vehicle and unsuitable to be so used;
"care home service" means a care home service within
the meaning of section 2(3) of the Regulation of Care
(Scotland) Act 2001(
b);
"club premises" means any premises which are used by
and for the purposes of a club or other unincorporated
association, whether for profit or not;
"council" means a council constituted under
section 2 of the Local Government
etc. (Scotland) Act 1994(
a);
"designated hotel bedroom" means a room in a hotel
which-
(a) is set apart exclusively for the sleeping
accommodation of travellers;
(b) has been designated by the person having the
management or control of the hotel as being a room
in which smoking is permitted;
(c) has a ceiling and, except for doors and
windows, is completely enclosed on all sides by
solid floor-to-ceiling walls;
(d) has a ventilation system that does not
ventilate into any other part of the hotel (except
any other designated hotel bedrooms); and
(e) is clearly marked as a bedroom in which
smoking is permitted;
"designated room" means a room which-
(a) has been 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;
"detention or interview room" means a room-
(a) within a police station which is used for
the purposes of interviewing or detaining
persons;
(b) within a police station which is used for
the purposes of cell accommodation;
(c) which is a legalised police cell; and
(d) within premises used by a person appointed
as an officer of Revenue and Customs under
section 2(1) of the Commissioners for Revenue and
Customs Act 2005(
b) for the purposes of interviewing or
detaining persons;
"domestic premises" means premises occupied as a
private dwelling (including any garage, outhouse, or
other appurtenance of such premises which is not used
in common by the occupants of more than one such
dwelling), and "non-domestic premises" shall be
construed accordingly;
"educational institution" means-
(a) a school within the meaning of
section 135(1) of the Education (Scotland) Act
1980(
c);
(b) a school care accommodation service within
the meaning of section 2(4) of the Regulation of
Care (Scotland) Act 2001;
(c) a college or other institution providing
further education within the meaning of section 1
of the Further and Higher Education (Scotland) Act
1992(
d) and section 1(5)(b) of the Education
(Scotland) Act 1980(
e);
(d) a university or other institution providing
higher education within the meaning of section 38
of the Further and Higher Education (Scotland) Act
1992(
a); and
(e) any other educational and vocational
institution;
"health care premises" means any premises provided
by the Scottish Ministers in accordance with the
provisions of section 36(1)(b) of the National Health
Service (Scotland) Act 1978(
b) and any other premises which are not a
hospital which are used for the purpose of providing
medical, dental, pharmaceutical, ophthalmic or
chiropody services to non-resident persons;
"hospice" means an establishment the whole or main
purpose of which is to provide palliative care for
persons resident there who are suffering from a
progressive disease in its final stages;
"hospital" means-
(a) any institution for the reception and
treatment of persons suffering from illness;
(b) any maternity home; and
(c) any institution for the reception and
treatment of persons during convalescence or
persons requiring medical rehabilitation, and any
institution for providing dental treatment
maintained in connection with a dental school,
and includes clinics, dispensaries and out-patient
departments which are not health care premises which
are maintained in connection with any such home or
institution;
"hospital unit" means any part of a hospital which
is treated as a separate unit;
"hotel" means a hotel, boarding house, guest house,
inn or hostel containing at least two rooms or
apartments set apart exclusively for the sleeping
accommodation of travellers;
"illness" includes mental disorder within the
meaning of section 328 of the Mental Health (Care and
Treatment) (Scotland) Act 2003(
c) and any injury or disability requiring
medical or dental treatment or nursing;
"legalised police cell" means a police cell within
the meaning of section 14(1) of the Prisons (Scotland)
Act 1989(
d);
"no-smoking notice" means a notice displayed in
accordance with section 3(1) of the Act;
"offender accommodation service" means an offender
accommodation service within the meaning of
section 2(10) of the Regulation of Care (Scotland) Act
2001;
"offshore installation" means any offshore
installation within the meaning of regulation 3 of the
Offshore Installations and Pipeline Works (Management
and Administration) Regulations 1995(
e);
"premises" includes-
(a) any building or part of a building;
(b) any structure or part of a structure,
whether moveable or otherwise;
(c) any installation on land (including the
foreshore and other land intermittently covered by
water), any offshore installation, and any other
installation (whether floating, or resting on the
seabed or the subsoil thereof, or resting on other
land covered with water or the subsoil thereof);
and
(d) any tent, marquee or stall;
"private hire car" means a hire car other than a
taxi within the meaning of section 23(1) of the Civic
Government (Scotland) Act 1982(
f);
"private vehicle" means-
(a) any car which is used for the private
purposes of the person who owns it or of a person
having the right to use it; and
(b) any other vehicle which is used primarily
for the private purposes of the person who owns it
or of a person having the right to use it,
provided always that such right to use a vehicle
does not, in relation to a car or other motor vehicle,
include a reference to a person whose right to use the
vehicle derives only from having paid, or undertaken to
pay, for the use of the vehicle and its driver for a
particular journey nor does it include a reference to
any public transportation vehicle;
"psychiatric hospital" means a hospital the whole or
main purpose of which is to treat persons with a mental
disorder within the meaning of section 328 of the
Mental Health (Care and Treatment) (Scotland) Act 2003,
and includes a state hospital;
"psychiatric unit" means a hospital unit the whole
or main purpose of which is to treat persons with a
mental disorder within the meaning of section 328 of
the Mental Health (Care and Treatment) (Scotland) Act
2003;
"public house" includes an inn, ale-house,
victualling house or other premises in which alcoholic
drink is sold by retail for consumption either on or
off the premises;
"public transportation facilities" includes train
stations, bus stations, bus shelters, waiting rooms,
ticket offices and terminal buildings provided in
connection with any public transportation vehicle;
"public transportation vehicle" means any vehicle
available to the public as a means of
transportation;
"residential accommodation" means so much of any
premises as is for the time being occupied or used by
any person for residential purposes or otherwise as
living accommodation, (including that within a hotel,
sheltered housing or offender accommodation service
premises that is occupied or used as a person's
principal place of residence), but not including a
reference to so much of any premises as constitutes any
common area to which the person has or is allowed
access in connection with the person's use or
occupation of any accommodation, nor including a
reference to an adult care home, an adult hospice, a
psychiatric hospital, a psychiatric unit or premises
providing a secure accommodation service;
"restaurant" means-
(a) a café, coffee shop, bistro, fast food
establishment or snack bar; and
(b) any other premises exclusively or mainly
used for the sale and consumption of food;
"secure accommodation service" means a secure
accommodation service within the same meaning of
section 2(9) of the Regulation of Care (Scotland) Act
2001;
"sports centre" means any gymnasium, health spa,
swimming pool, roller or ice rink, bowling alley and
other similar premises used to engage in sports,
athletics or recreational activities or to witness
sports, athletics, recreational or similar
activities;
"state hospital" means a state hospital provided
under section 102(1) of the National Health Service
(Scotland) Act 1978;
"taxi" means a hire car within the meaning of
section 23(1) of the Civic Government (Scotland) Act
1982; and
"vehicle" includes any train, bus, taxi, private
hire car and any vessel (whether navigable or not),
boat or hovercraft.
(3) A reference to premises includes any premises within
premises.
(4) These Regulations shall come into force at
0600 hours on 26th March 2006.
Display of no-smoking notices
2. -(1) At least one no-smoking notice
displayed in no-smoking premises that are not a vehicle
shall-
(a) be a minimum size of 230mm by 160mm;
(b) display the international "no smoking" symbol,
consisting of a graphic representation of a burning
cigarette enclosed in a red circle with a red bar
across it, at least 85mm in diameter; and
(c) display the name of the person to whom a
complaint may be made by any person who observes
another person smoke in the no-smoking premises in
question and state that a complaint may be so made.
(2) The remainder of no-smoking notices displayed in
no-smoking premises that are not a vehicle and any
no-smoking notices displayed on or near no-smoking premises
that are not a vehicle shall display the international "no
smoking" symbol, consisting of a graphic representation of
a burning cigarette enclosed in a red circle with a red bar
across it, at least 85mm in diameter.
(3) A no-smoking notice displayed in no-smoking premises
that are a vehicle shall-
(a) display the international "no smoking" symbol,
consisting of a graphic representation of a burning
cigarette enclosed in a red circle with a red bar
across it; and
(b) display the holder of a particular post to whom
a complaint may be made by any person who observes
another person smoke in the no-smoking premises in
question and state that a complaint may be so made.
(4) A no-smoking notice shall be displayed by the person
having the management or control of the no-smoking premises
in such a manner that it is protected from tampering,
damage, removal or concealment.
(5) The requirements in paragraphs (1) to (4) as to the
manner of display, form and content of no-smoking notices
are to be treated for the purposes of section 3(1) of the
Act as if incorporated in it.
"No-smoking premises"
3. -(1) The premises or classes of
premises prescribed(
a) under section 4(2) of the Act as being
"no-smoking premises" for the purposes of Part 1 of the Act
are the premises or classes of premises specified in
Schedule 1 to these Regulations, being premises or classes
of premises which are wholly or substantially enclosed.
(2) The premises or parts of premises or classes of
premises or parts of premises prescribed under section 4(2)
of the Act which are excluded from the definition of
"no-smoking premises" are the premises or parts of premises
or classes of premises or parts of premises specified in
Schedule 2 to these Regulations.
(3) For the purposes of section 4(2) of the Act-
(a) "premises" includes-
(i) any building or part of a building;
(ii) any structure or part of a structure,
whether moveable or otherwise;
(iii) any installation on land (including the
foreshore and other land intermittently covered by
water), any offshore installation, and any other
installation (whether floating, or resting on the
seabed or the subsoil thereof, or resting on other
land covered with water or the subsoil
thereof);
(iv) any tent, marquee or stall; and
(v) any vehicle.
(b) "wholly enclosed" means-
(i) for premises other than a vehicle or part of
a vehicle, having a ceiling or roof and, except for
doors, windows and passageways, wholly enclosed,
whether permanently or temporarily; or
(ii) for premises that are a vehicle, or part of
a vehicle, having a top or roof and, except for
doors, windows or exits, wholly enclosed, whether
permanently or temporarily;
(c) "substantially enclosed" means-
(i) for premises other than a vehicle or part of
a vehicle, having a ceiling or roof and, except for
doors, windows and passageways, substantially
enclosed, whether permanently or temporarily;
or
(ii) for premises that are a vehicle, or part of
a vehicle, having a top or roof and, except for
doors, windows or exits, substantially enclosed,
whether permanently or temporarily,
and in determining whether premises are
"substantially enclosed", no account is to be taken of
openings in which there are doors, windows or other
fittings that can be opened or shut;
(d) premises shall be taken to be "substantially
enclosed" if-
(i) the opening in the premises has an area;
or
(ii) if there is more than one, both or all
those openings have an aggregate area,
which is less than half of the area of the walls,
including any other structures serving the purpose of
walls, which constitute the perimeter of the
premises;
(e) where an opening is in, or consists of the
absence of, such walls or other structures or a part of
them, their area shall be measured for the purposes of
paragraph (d) as if it included the area of the
opening; and
(f) "has access" means has access whether on payment
or otherwise, and whether as of right or by virtue of
express or implied permission.
Fixed penalty time limits, amounts and payments
4. -(1) The time limit prescribed under
paragraph 2 of schedule 1 to the Act relating to the
offence after which a fixed penalty notice may not be given
shall be 7 days.
(2) The amount of the fixed penalty prescribed under
paragraph 4(1) of schedule 1 to the Act is-
(a) £200 for an offence under section 1 of the
Act;
(b) £50 for an offence under section 2 of the Act;
and
(c) £200 for an offence under section 3 of the
Act.
(3) The discounted amount prescribed under
paragraph 5(2) of schedule 1 to the Act for a fixed penalty
is-
(a) £150 for an offence under section 1 of the
Act;
(b) £30 for an offence under section 2 of the Act;
and
(c) £150 for an offence under section 3 of the
Act.
Application by councils of fixed penalties and account
keeping
5. -(1) Paragraphs (4) and (5) apply in
relation to the application by councils of fixed penalties
paid under Schedule 1 to the Act.
(2) Paragraphs (3) and (6) apply in relation to the
keeping of accounts, and the preparation and publication of
statements of account, by councils in relation to fixed
penalties under schedule 1 to the Act.
(3) Councils shall keep an account of their income and
expenditure in respect of the administration and
enforcement of section 5 of, and schedule 1 to, the
Act.
(4) At the end of each financial year any deficit in the
account shall be made good out of the council's general
fund, and (subject to paragraph 5 below) any surplus shall
be applied to purposes connected with the improvement of
the amenity of the area of the council or any part of that
area.
(5) If the council so determines, any amount not applied
in any financial year, instead of being or remaining so
appropriated, may be carried forward in the account kept
under paragraph 1 above to the next financial year.
(6) Each council shall, as soon as possible after the
end of each financial year, prepare and send to the
Scottish Ministers a statement of account to include the
account of their income and expenditure kept under
paragraph (3) above and an account of any action taken by
them, pursuant to paragraph 4 or 5 above, in respect of any
deficit or surplus in their account for the year.
Authorised to sign by the Scottish Ministers
St Andrew's House,
Edinburgh
2006
SCHEDULE 1 Regulation 3(1)
NO-SMOKING PREMISES
1. Restaurants.
2. Bars and public houses.
3. Shops and shopping centres.
4. Hotels.
5. Libraries, archives, museums and
galleries.
6. Cinemas, concert halls,
theatres, bingo halls, gaming and amusement arcades,
casinos, dance halls, discotheques and other premises
used for the entertainment of members of the
public.
7. Premises used as a broadcasting
studio or film studio or for the recording of a
performance with a view to its use in a programme
service or in a film intended for public
exhibition.
8. Halls and any other premises
used for the assembly of members of the public for
social or recreational purposes.
9. Conference centres, public halls and
exhibition halls.
10. Public toilets.
11. Club premises.
12. Offices, factories and other
premises that are non-domestic premises in which one or
more persons work.
13. Offshore installations.
14. Educational institution premises.
15. Premises providing care home
services, sheltered housing or secure accommodation
services and premises that are non-domestic premises
which provide offender accommodation services.
16. Hospitals, hospices, psychiatric
hospitals, psychiatric units and health care premises.
17. Crèches, day nurseries, day
centres and other premises used for the day care of
children or adults.
18. Premises used for, or in
connection with, public worship or religious
instruction, or the social or recreational activities
of a religious body.
19. Sports centres.
20. Airport passenger terminals and any
other public transportation facilities.
21. Public transportation vehicles.
22. Vehicles which one or more persons
use for work.
23. Public telephone kiosks.
SCHEDULE 2 Regulation 3(2)
EXEMPTIONS
1. Residential accommodation.
2. Designated rooms in adult care
homes.
3. Adult hospices.
4. Designated rooms in psychiatric
hospitals and psychiatric units.
5. Designated hotel bedrooms.
6. Detention or interview rooms which are
designated rooms.
7. Designated rooms in offshore
installations.
8. Private vehicles.
EXPLANATORY NOTE
(This note is not part of the Regulations)
These Regulations make further provision under Part 1
of, and schedule 1 to, the Smoking, Health and Social Care
(Scotland) Act 2005 ("the Act") in relation to the
prohibition of smoking in certain wholly or substantially
enclosed premises.
Regulation 1 contains the citation, commencement and
interpretation provisions to be applied to the Regulations,
and gives the time and date (at 0600 hours on 26th March
2006) on which they will come into force.
Regulation 2 makes provision in relation to the display
of no-smoking notices, providing further requirements in
addition to those already stipulated under section 3(1) of
the Act. Paragraph (1) of regulation 2 sets out the
requirement that at least one no-smoking notice within
no-smoking premises that are not a vehicle must be a
minimum size and must display certain specified details.
Paragraph (2) provides that all other no-smoking notices on
no-smoking premises that are not a vehicle, as well as any
no-smoking notices on or near no-smoking premises that are
not a vehicle, must still display the international
no-smoking symbol. Paragraph (3) makes separate provision
in relation to no-smoking premises that are vehicles by
requiring certain specified details to be displayed.
Regulation 3(1) gives effect to Schedule 1 to the
Regulations, which sets out the premises or classes of
premises which are prescribed under section 4(2) of the Act
to be no-smoking premises for the purposes of Part 1 of the
Act, being premises or classes of premises which are wholly
or substantially enclosed.
Regulation 3(2) gives effect to Schedule 2 to the
Regulations, which sets out the premises or parts of
premises or classes of premises or parts of premises which
are prescribed under section 4(2) of the Act to be excluded
from the definition of "no-smoking premises" in accordance
with section 4(3) of the Act, that is those which are
excluded from the list of "no-smoking premises" in
Schedule 1 to the Regulations.
Regulation 3(3) defines and elaborates the meaning of
certain expressions ("premises"; "wholly enclosed";
"substantially enclosed"; and "has access") used in
section 4(4) of the Act, as provided for under
section 4(5).
Regulation 4 prescribes time limits, amounts and
payments in relation to fixed penalties under schedule 1 to
the Act. Paragraph (1) prescribes the time limit under
paragraph (1) of Schedule 1 to the Act after which a fixed
penalty notice may not be given as being 7 days.
Paragraph (2) prescribes the amount of the fixed penalty
under paragraph 4(1) of schedule 1 to the Act for offences
under section 1 (£200), section 2 (£50) and section 3
(£200). Paragraph (3) prescribes the discounted amount of
the fixed penalty under paragraph 5(2) of schedule 1 to the
Act for offences under section 1 (£150), section 2 (£30)
and section 3 (£150).
Regulation 5 provides for the application by councils of
fixed penalties and account keeping.
These Regulations were notified in draft to the European
Commission in accordance with Article 8 of the European
Parliament and Council Directive 98/34/
EC laying down a procedure for the
provision of information in the field of technical
standards and regulations and of rules on information
society services (
O.J. No. L 204, 21.7.1998, p.37), as
amended by the European Parliament and Council
Directive 98/48/
EC (
O.J. No. L 217, 5.8.1998, p.18).
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