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THE SMOKING, HEALTH AND SOCIAL CARE (SCOTLAND) ACT 2005 (PROHIBITION OF SMOKING IN CERTAIN PREMISES) REGULATIONS 2005: DRAFT

ANNEX A

Scottish Statutory Instruments

2005 No. [ ]

PUBLIC HEALTH

The Smoking, Health and Social Care (Scotland) Act 2005 (Prohibition of Smoking in Certain Premises) Regulations 2005

Made - - - -

Laid before the Scottish Parliament

Coming into force

The Scottish Ministers, in exercise of the powers conferred by sections 3(3), 4(2), 4(7) of, and paragraphs 2, 5(1), 6(2), 13 and 14 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 34(4) of that Act, hereby make the following Regulations, a draft of which has, in accordance with section 34(3) of that Act, been laid before and approved by a resolution of the Scottish Parliament:

Citation, interpretation and commencement

1. –  These Regulations may be cited as the Smoking, Health and Social Care (Scotland) Act 2005 (Prohibition of Smoking in Certain Premises) Regulations 2005.

(2) In these Regulations —

"the Act" means the Smoking, Health and Social Care (Scotland) Act 2005;

"adult" means a person who has attained the age of 16 years;

"adult care home service" means an establishment providing a care home service exclusively for adults;

"adult hospice" means a hospice providing care exclusively for adults;

"alcoholic drink" means a drink consisting of or containing alcohol;

"bar" includes any premises exclusively or mainly used for the sale and consumption of alcoholic drink;

"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;

(a) 2005 asp [ ]
(b) 2001, asp 8

"council" means a council constituted under section 2 of the Local Government etc. (Scotland) Act 1994^(a);

"designated hotel bedroom" means a bedroom in a hotel which has been designated by the person having the management or control of the hotel as being a bedroom in which smoking is permitted;

"designated police room" means —

(a) any interview room within a police station;

(b) any detention room within a police station;

(c) any cell accommodation within a police station; and

(d) any legalised police cell;

"educational institution" means —

(a) a school within the meaning of section 135(1) of the Education (Scotland) Act 1980^(b);

(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^(c) and section 1(5)(b) of the Education (Scotland) Act 1980;

(d) a university or other institution providing higher education within the meaning of section 38 of the Further and Higher Education (Scotland) Act 1992; and

(e) any other educational and vocational institution;

"employee" has the same meaning as in section [ ] of the Act; [NB it is intended that the following meaning of "employee" be inserted into the Bill at Stage 2, in relation to the use of the word "employees" in section 4(4)(b) of the Bill, namely — ""employee" means a person who performs any work for or supplies any service to an employer and includes a volunteer and a person who is self employed."]

"health centre" means premises provided by the Scottish Ministers in accordance with the provisions of section 36(1)(b) of the National Health Service (Scotland) Act 1978^(d);

"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 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 apartments set apart exclusively for the sleeping accommodation of travellers;

(a) 1994, c.29
(b) 1980, c.44
(c) 1992, c..37
(d) 1978, c. 29

"illness" includes mental disorder within the meaning of the Mental Health (Care and Treatment) (Scotland) Act 2003^(a) 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 of the Prisons (Scotland) Act 1989^(b);

"no-smoking notice" means a notice displayed in accordance with section 3(1) of the Act;

"oil rig" means any offshore installation within the meaning of section 1 of the Mineral Workings (Offshore Installations) Act 1971^(c);

"premises" includes -

(a) any land;

(b) any building or part of a building;

(c) any structure or part of a structure, whether moveable or otherwise;

(d) any installation on land (including the foreshore and other land intermittently covered by water), any offshore installation within the meaning of section 1 of the Mineral Workings (Offshore Installations) Act 1971, 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

(e) any tent, marquee or stall;

"private vehicle" means any vehicle which is used primarily for the private purposes of the person who owns it or of a person otherwise having the right to use it, provided always that such right to use a vehicle does not, in relation to a 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;

"public transportation vehicle" means any vehicle available to the public as a means of transportation;

"public transportation facilities" includes waiting rooms, ticket offices and terminal buildings provided in connection with 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;

"residential premises" 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 hotel accommodation 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 a secure accommodation service;

(a) 2003, asp 13
(b) 1989, c.45
(c) 1971, c. 71

"restaurant" includes a café, bistro and snack bar and 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(10) 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; and

"vehicle" includes any train, bus, taxi and any vessel (whether navigable or not), boat or hovercraft.

(3) A reference to premises may include premises within premises.

(4) These Regulations shall come into force on [ ] 2006.

Display of no-smoking notices

2. –(1)   A no-smoking notice 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 or, in relation to vehicles, the holder of a particular post to whom a complaint may be made and that a complaint may be so made.

(2) 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.

"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 enclosed.

(2) The premises or parts of premises or classes of premises or parts of premises prescribed under section 4(3) 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, the following expressions shall have the following meanings respectively assigned to them —

(a) "premises" includes -

(i) any land;

(ii) any building or part of a building;

(iii) any structure or part of a structure, whether moveable or otherwise;

(a) Section 35 of the Act defines "prescribed" as meaning prescribed by regulations made by the Scottish Ministers

(iv) any installation on land (including the foreshore and other land intermittently covered by water), any offshore installation within the meaning of section 1 of the Mineral Workings (Offshore Installations) Act 1971, 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);

(v) any tent, marquee or stall; and

(vi) 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; and

(c) "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
 2005

DRAFT

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, 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 or vehicles in which more than one employee works.

13. Educational institutions.

14. Premises providing secure accommodation services.

15. Hospitals, hospices and health centres.

16. Creches, day nurseries, day centres and other premises used for the day care of children or adults.

17. Premises used for, or in connection with, public worship or religious instruction, or the social or recreational activities of a religious body.

18. Sports centres.

19. Airport passenger terminals and any other public transportation facilities.

20. Public transportation vehicles.

DRAFT

SCHEDULE 2

Regulation 3(2)

EXEMPTIONS

1. Residential premises.

2. Adult care homes.

3. Adult hospices.

4. Psychiatric hospitals and psychiatric units.

5. Oil rigs.

6. Private vehicles.

7. Designated hotel bedrooms.

8. Designated police rooms.

DRAFT

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 enclosed premises.

Regulation 1 contains the citation, commencement and interpretation provisions to be applied to the Regulations, and gives the date (xxxxx 2006) on which they 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 as to the minimum size, content and manner of display of such notices.

Regulation 3(1) gives effect to Schedule 1, which sets out the premises or classes of premises which are to be no-smoking premises for the purposes of Part 1 of the Act, being premises or classes of premises which are wholly enclosed. These are: restaurants; bars and public houses; shops and shopping centres; hotels; libraries, archives, museums and galleries; cinemas, concert halls, theatres, bingo halls, casinos, dance halls, discotheques and other premises used for the entertainment of members of the public; 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; halls and any other premises used for the assembly of members of the public for social or recreational purposes; conference centres, public halls and exhibition halls; public toilets; club premises; offices, factories and other premises or vehicles in which more than one employee works; educational institutions; premises providing secure accommodation services; hospitals, hospices and health centres; crèches, day nurseries, day centres and other premises used for the day care of children or adults; premises used for, or in connection with, public worship or religious instruction, or the social or recreational activities of a religious body; sports centres; airport passenger terminals and any other public transportation facilities; and public transportation vehicles, the majority of which terms are defined in regulation 1.

Regulation 3(2) gives effect to Schedule 2, which sets out the premises or parts of premises or classes of premises or parts of premises which are excluded from the definition of "no-smoking premises" for the purposes of Part 1 of the Act. These are: residential premises; adult care homes; adult hospices; psychiatric hospitals and psychiatric units; oil rigs; private vehicles; designated hotel bedrooms; and designated police rooms, all of which terms are defined in regulation 1.

Regulation 3(3) defines and elaborates the meaning of certain expressions ("premises"; "wholly enclosed"; and "has access") used in section 4(4) of the Act, as provided for under section 4(5).

Regulation 5 provides for the application by councils of fixed penalties and account keeping.

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