Draft Restriction on Smoking (Amendment No. 2) (Jersey) Law 200-
European Convention on Human Rights
The Minister for Health and Social Services has made the following statement –
In the view of the Minister for Health and Social Services the provisions of the Draft Restriction on Smoking (Amendment No. 2) (Jersey) Law 200- are compatible with the Convention Rights.
(Signed) Senator S. Syvret
REPORT
This Law amends the Restriction on Smoking (Jersey) Law 1973. The Restriction on Smoking (Amendment No. 2) (Jersey) Law 200- provides a power for the States to make Regulations to prohibit or restrict smoking of tobacco or any other substance in a workplace.
In 2005 the States of Jersey agreed in principle to introduce a complete ban on smoking in all enclosed public workplaces throughout the Island. The Health and Social Services Committee sought and were granted States approval for a consultation exercise regarding such a ban. This consultation phase ended on 31st January 2006. Earlier this year I addressed the States Assembly and indicated my intention to press for an early introduction of the ban on smoking in all enclosed workplaces. This legislation provides the basis for achieving this.
Financial/manpower
considerations
There are financial and manpower implications arising from this legislation. Enforcement will require the appointment of a Tobacco Control Officer (to be located within the Health Protection Department) plus out-of-hours support for existing staff. This will require new funding of circa £50,000.
European
Convention on Human Rights
Article 16 of the Human Rights (Jersey) Law 2000 will, when brought into force by Act of the States, require the Minister in charge of a Projet de Loi to make a statement about the compatibility of the provisions of the Projet with the Convention rights (as defined by Article 1 of the Law). Although the Human Rights (Jersey) Law 2000 is not yet in force, on 28th March 2006 the Minister for Health and Social Services made the following statement before Second Reading of this Projet in the States Assembly –
In the view of the Minister for Health and Social Services the provisions of the Draft Restriction on Smoking (Amendment No. 2) (Jersey) Law 200- are compatible with the Convention Rights.
Explanatory Note
The effect of this Law is to provide a power for the States to make Regulations to prohibit or restrict smoking of tobacco or any other substance in a workplace.
This Law amends the Restriction on Smoking (Jersey) Law 1973.
Article 1 provides the interpretation of terms for this Law.
Article 2 amends the long title of the 1973 Law to include a reference to smoking substances that are not tobacco.
Article 3 amends Article A1 of the 1973 Law. Article A1 of the 1973 Law (was inserted by the Restriction on Smoking (Amendment) (Jersey) Law 2006. Article 3 provides an interpretation of terms for the amendments to the 1973 Law effected by this Law. It includes a definition of “volunteer” to apply It includes a definition of workplace and in Article 3(2) extends the definition of smoking to include the smoking of substances that are not tobacco.
A workplace is defined as being any of the following –
(a) premises in which; land on which; and place at which; a person carries out his or her work and is required to be in, on or at for that purpose;
(b) tent; temporary structure; and movable structure; in which a person carries out his or her work and is required to be in for that purpose;
(c) ship; and vessel; on which a person carries out his or her work and is required to be on for that purpose;
(d) vehicle, whether it is a motor vehicle or no; in which a person carries out his or her work and the vehicle is used solely for that purpose or in which a person is required to be for the purpose of carrying out his or her work, whether occasionally or otherwise, and the vehicle is used solely for that purpose; and
(e) a public transport vehicle in which a person carries out his or her work and is required to be in for that purpose. Public transport vehicle is defined as including a public service vehicle within the meaning of the Motor Traffic (Jersey) Law 1935 and that falls within a class of those vehicles that is set out in Article 5(1) of that Law and to which Article 5(2) of that Law applies. Those classes are an omnibus service, a char-a-banc service and a cab service.
Any place or thing mentioned in paragraphs (a) to (e) will be treated as a workplace if the work is carried out on, in or at the place or thing occasionally or otherwise and whether or not the public have access to the workplace. The Regulations can exempt any workplace from the application of the Regulations or a part of the Regulations under Article 1AB. They can also exempt a dwelling or a workplace or part of a workplace if it is not enclosed.
The definitions also include a definition of “volunteer” which describes a voluntary worker.
Article 4 inserts two new Articles, Article 1AA and 1AB, into the 1973 Law.
Article 1AA provides the States with the power to make Regulations to prohibit or restrict the smoking of tobacco or other substances in a workplace or in any of the premises, places or things listed in paragraphs (1)(a) to (h) to the extent that the premises, places or things are a workplace.
Under Article 1AA(1)(a) to (f), the Regulations may prohibit or restrict smoking tobacco or a substance that is not tobacco or the use of tobacco in any of the following only to the extent that each of them is a workplace : premises, land, place, place, public entertainment, tent, temporary structure, movable structure, vehicle (including a motor vehicle), public transport vehicle, ship and vessel. Article 1AA(1)(g) allows the Regulations to prohibit or restrict smoking tobacco or a substance that is not tobacco or the use of tobacco in any other premises, land, place or thing that is not specified in the previous sub-paragraphs. Article 1AA(1)(h) allows the Regulations to prohibit or restrict smoking tobacco or a substance that is not tobacco in a part of any of the matters specified in the previous sub-paragraphs.
Article 1AA(2), without prejudice to the generality of the places referred to in Article 1AA(1), lists a number of places to which the Regulations can apply. This includes a licensed premises, a club, a premises registered under the Tourism (Jersey) Law 1948 or the Places of Refreshment (Jersey) Law 1967, a cinema, theatre, concert hall, place of public entertainment or place normally used for indoor public entertainment and a hospital or other similar premises.
Article 1AA(3) provides the ancillary powers to allow for making different provision for any place (or a part of a place) to which the Regulations would apply. It also allows, in Article 1AA(3)(b), Regulations to provide for different workplaces and to make different provision for a workplace that is comprised of employees, self-employed persons or voluntary workers. In Article 1AA(3)(c) allows the Regulations to make different provision for a workplace on the basis of the number of employees, self-employed persons or volunteers who work in the workplace to which the Regulations apply. The Regulations can also, under Article 1AA(3)(d) apply to a workplace, or a part of a workplace, on the basis of whether there is public access to the workplace or not, as the case may be.
Article 1AA(4) allows the Regulations to impose a duty that relates to the prohibition or restriction in the Regulations. The persons on whom the duty may be imposed are any person, proprietor, person for the time being in charge of a workplace, a manager of a workplace or other person concerned in the management of the workplace or an occupier of the workplace to which the Regulations apply. The duty can include, under Article 1AA(4)(b), or a duty to take all reasonable steps to ensure compliance with the Regulations, a specific Regulation and to ensure compliance with the Regulations by any other person in the workplace.
Article 1AA(5) allows the Regulations to make different provision for the different persons on whom the duty may be imposed. Article 1AA(6) allows the Regulations to specify a period of time to which the prohibition is to apply. Article 1AA(7) allows the Regulations to apply to volunteers, self-employed persons and volunteers. A volunteer is a voluntary worker.
Article 1AB(1) allows the Regulations that prohibit or restrict smoking tobacco or any other substance to exempt a workplace or other places from the prohibition or restriction on smoking. The power to do so is made in general terms but Article 1AB(2) specifically allows the Regulations to exempt a dwelling or any part of any matter that is listed in Article 1AA(1) and (2) that comprises a dwelling.
Article 1AB(3) allows the Regulations to exempt a part if it is a workplace.
Article 1AB(4) allows the Regulations to exempt a workplace that is not enclosed or any part of a workplace that is not enclosed and the Regulations can provide for the meaning of enclosed.
Article 1AB(5) allows the Regulations to exempt a workplace on the basis of whether employees, self-employed persons, voluntary workers work in the workplace; on the basis of the number of employees, self-employed persons or volunteers that work in the workplace; and on the basis of whether the public have access to the workplace.
Article 1AB(6) allows the Regulations to provide differently for the different parts of any workplace when specifying exemptions from the prohibition or restriction on smoking. This includes the power to provide differently in respect of the exemptions for the diverse types of workplaces (and the parts of them) that are covered by Articles 1AA(1) to (3) and also for the exemptions generally and the specific exemptions that may be made for dwellings, places that are not enclosed and the workplaces of employees, self-employed persons and voluntary workers.
Article 5 amends Article 1D of the 1973 Law. Article 1D (inserted by the Restriction on Smoking (Amendment) (Jersey) Law 2006) provides for supplemental provisions for the making of Regulations generally under the 1973 Law. The effect of this Article is to apply Article 1D to the Regulations. Article 1D(1) allows the Regulations to include a requirement to display notices in premises. This is amended by Articles 5(a) to (f) to allow Regulations made under Articles 1AA and 1AB to provides for a notice on the prohibition or restriction on smoking in premises or workplaces or the exemption from the prohibition.
Articles 5(g) to (j) amends Article 1D(3). Article ID(3)(a) allows Regulations made under the 1973 Law to provide for the liability of any person who contravenes the Regulations to pay for any food or beverages supplied to or ordered by the person in any premises to which the Regulations apply. This is amended to allow such a provision to be made in Regulations made under Article 1AA and 1AB.
Article 1D(3)(b) is amended by substituting an amended version of the sub-paragraph to allow Regulations made under 1AA and 1AB to provide for the liability of any person to contravenes a provision of the Regulations to pay for any goods or services that have been supplied to the person or order by them and whether or not the goods have been consumed or the service has been supplied.
Article 6 amends Article 2 of the 1973 Law (which was amended by the 2006 Law). Article 2 of the 1973 Law allows Regulations to provide for a person who contravenes a specified provision of the Regulations to be guilty of an offence and to provide a penalty for it. The amendment allows Regulations made under Article 1AA and 1AB to also provide for an offence for contravention of a specified provision of the Regulations and a penalty in respect of it.
Article 7 inserts a new Article 2B into the 1973 Law. It is a general provision for an offence under the 1973 Law or Regulations made under it. The provision deals with the circumstances in which a limited liability partnership or body corporate has been proved to have committed an offence with the consent or connivance of or to be attributable to the neglect of a partner of the partnership, a director, manager, secretary or other similar officer of the body corporate or any person purporting to act in such a capacity. Article 2B(1) provides for that person to be guilty of the offence also and liable in the same way as the partnership or the body corporate. Article 2B(2) provides that where the affairs of the body corporate are managed by its members then the principle in Article 2B(1) will apply to a member of the body corporate as if the member was a director.
Article 8 provides for the name of the Law and that it will come into force 7 days after it is registered.
