Joint Committee On Human Rights Sixth Report


Bills drawn to the special attention of each Houses


Government Bills

1 Health Bill
Date introduced to the House of Commons

Date introduced to the House of Lords

Current Bill Number

Previous Reports

27 October 2005

HC Bill 69

None

Background

1.1 This is a Government Bill, introduced in the House of Commons on 27 October 2005.[1] The Secretary of State for Health, Patricia Hewitt MP, has made a statement of compatibility with Convention rights under s. 19(1)(a) of the Human Rights Act 1998. The Explanatory Notes which accompany the Bill set out the Government's view of the Bill's compatibility with Convention rights at paras 301-313.[2] The Bill received its Second Reading on 29 November, and is due to conclude its standing committee stage on 10 January 2006. The purpose of the Bill is to make a number of changes to protect the health of the public and improve the running of the NHS.

1.2 This Report provides our views on the main human rights issues in the Bill, which are raised by Part 1. On one point we have written to the Minister seeking further information[3] and we may report again on that matter when we receive the Minister's reply.

The effect of the Bill

1.3 Part 1 of the Bill makes provision for the prohibition of smoking in certain premises, places and vehicles.

1.4 Clause 2 provides for certain enclosed or substantially enclosed premises[4] to be smoke-free. All premises which are open to the public are to be smoke-free when they are open to the public.[5] Premises which are used as a workplace by more than one person, or where members of the public might attend to receive goods or services from the person working there, are to be smoke-free all the time.[6] Premises are to be smoke-free only to the extent that they are open to the public or used as a place of work,[7] and only in those areas which are enclosed or substantially enclosed.[8]

1.5 Clause 3 provides a power, by regulations, to exempt some premises, or areas of premises, from the prohibition on smoking which would otherwise apply to those premises by virtue of clause 2.[9] Three examples are given of the type of premises which it is envisaged can be exempted from the smoking ban:[10]

(1) premises where a person has his home, or is living whether permanently or temporarily (including hotels, care homes, prisons and other places where a person may be detained);

(2) licensed premises; and

(3) membership clubs.

1.6 The regulations providing for exemptions may provide that smoking is permitted in premises or areas of premises in specified circumstances, if specified conditions are satisfied, or at specified times.[11] The conditions can include a requirement that the proprietor designate smoking rooms where smoking is permitted,[12] and, in the case of licensed premises, restrictions on what else may be sold, offered for consumption or consumed there[13] (for example, restricting the food that may be prepared and served in premises where smoking is permitted).

1.7 Clause 4 empowers the designation, by regulations, of additional smoke-free places which are not made smoke-free by clause 2,[14] but only if the relevant authority is satisfied that, without such designation, persons present there would be likely to be exposed to smoke.[15] Such places need not be enclosed or substantially enclosed.[16] The Explanatory Notes to the Bill give as examples of the sorts of places which might be designated under this power sports stadia, other outdoor areas such as entrances or exits to public buildings, and bus shelters.[17]

1.8 Clause 5 provides a power, by regulations, to make vehicles smoke-free.[18] The type of vehicles which are to be smoke-free, and the circumstances and specified areas in which they are to be smoke-free, is left to be defined in the regulations, which can also provide for exemptions.[19] The Explanatory Notes suggest that it is intended to make business and public transport smoke-free, and to exempt private vehicles.[20]

1.9 The Bill imposes a duty on the occupier or manager of smoke-free premises to display no-smoking signs,[21] and makes it an offence to fail to comply with the duty,[22] subject to a defence that he did not know, or could not reasonably have been expected to know, that the premises were smoke-free, or that no-smoking signs were not being displayed as required, or that it was reasonable for him not to comply with the duty.[23]

1.10 The Bill makes it an offence to smoke in a smoke-free place.[24] It is a defence for the person to show that he or she did not know, and could not reasonably have been expected to know, that it was a smoke-free place.[25] A person who smokes in a smoke-free place may be given a penalty notice by an authorised officer of an enforcement authority who has reason to believe that the person has committed the offence.[26]

1.11 The Bill also imposes a duty on any person who controls or is concerned in the management of smoke-free premises to cause a person smoking there to stop smoking.[27] It is an offence to fail to comply with the duty,[28] subject to a defence if the person can show that he took reasonable steps to cause the person to stop smoking, that he did not know, and could not reasonably be expected to have known, that the person was smoking, or on other grounds it was reasonable for him not to comply with the duty.[29]

The relevant human rights standards

(A) EUROPEAN STANDARDS

The European Convention on Human Rights

1.12 The European Convention on Human Rights does not contain an explicit "right to health" or "right to a clean environment". However, both the right to life in Article 2 ECHR and the right to respect for private life and home in Article 8 ECHR have been held by the European Court of Human Rights to impose certain positive obligations on the State.

1.13 Article 2, which protects the right to life, imposes an obligation on the State not only to refrain from taking life but also to take appropriate steps to safeguard life.[30]

1.14 Article 8, which protects the individual's right to respect for his or her private and family life and home, has been interpreted by the Court of Human Rights as applying where an individual is directly and seriously affected by environmental pollution.[31] The Court has also held that the positive obligations inherent in an effective respect for private life may involve the adoption of measures designed to secure respect for private life "even in the sphere of the relations of individuals between themselves", that is, measures which regulate the private sphere.[32] The State's responsibility can therefore arise from a failure to take measures to regulate private behaviour in order to protect individuals against harm caused by pollution in circumstances where it could reasonably be expected to act.

1.15 Article 14 ECHR guarantees the right to enjoyment of the Convention rights without discrimination on the basis of a list of enumerated grounds, or "other status". It applies wherever the State acts within the ambit of one of the Convention rights, even if it is not strictly speaking required to act in order to avoid a breach of the relevant right.

The European Social Charter

1.16 The European Social Charter provides that "all workers have the right to safe and healthy working conditions" and "everyone has the right to benefit from any measures enabling him to enjoy the highest possible standard of health attainable."

(B) UN STANDARDS

The International Covenant on Economic, Social and Cultural Rights

1.17 Article 12 of the International Covenant on Economic, Social and Cultural Rights ("ICESCR") provides:

1.18 This is reflected in the preamble to the Constitution of the World Health Organisation ("WHO"), which states that the enjoyment of the highest attainable standard of health is one of the fundamental rights of every human being without distinction of race, religion, political belief, economic or social condition.

The Convention on the Rights of the Child

1.19 Article 24 of the Convention on the Rights of the Child provides:

    "States Parties recognize the right of the child to the enjoyment of the highest attainable standard of health …"

The WHO Framework Convention on Tobacco Control

1.20 The WHO Framework Convention on Tobacco Control ("the WHO FCTC"), the first international treaty negotiated under the auspices of the WHO, entered into force on 27 February 2005. The treaty, which is the culmination of a process begun in 1995, has 168 signatories, including the European Community, making it one of the most widely embraced of all UN treaties. The UK signed the treaty on 16 June 2003 and ratified it on 16 December 2004. It is therefore legally bound by the treaty's provisions.

1.21 The Preamble to the Framework Convention states that the Parties are "determined to give priority to their right to protect public health". Article 3 sets out the objective of the Convention:

    "3. The objective of this Convention and its protocols is to protect present and future generations from the devastating health, social, environmental and economic consequences of tobacco consumption and exposure to tobacco smoke by providing a framework for tobacco control measures to be implemented by the Parties at the national, regional and international levels in order to reduce continually and substantially the prevalence of tobacco use and exposure to tobacco smoke."

1.22 Part III of the Framework Convention concerns measures relating to the reduction of demand for tobacco. Article 8 concerns protection from exposure to tobacco smoke. It provides:

    "8 (1) Parties recognize that scientific evidence has unequivocally established that exposure to tobacco smoke causes death, disease and disability.

(2) Each Party shall adopt and implement in areas of existing national jurisdiction as determined by national law and actively promote at other jurisdictional levels the adoption and implementation of effective legislative, executive, administrative and/or other measures, providing for protection from exposure to tobacco smoke in indoor workplaces, public transport, indoor public places and, as appropriate, other public places."

The human rights implications of the Bill

1.23 The main human rights issues are raised by Part 1 of the Bill. They are:

(1) whether the positive obligation on the State to take measures to protect the lives and health of non-smokers under Article 2 and 8 ECHR, or under Article 8 of the WHO Framework Convention, requires the State to legislate to prohibit smoking;

(2) whether the Bill's provisions controlling smoking in enclosed public places and workplaces are a proportionate interference with smokers' right to respect for their private life and home under Article 8 ECHR; and

(3) whether the envisaged differential protection for workers depending on their workplace, and for members of the public depending on whether their local pub serves food or they attend a membership club, has an objective justification so as to be compatible with Article 14 ECHR in conjunction with Article 8.

(1) THE STATE'S POSITIVE OBLIGATION TO PROTECT LIFE AND HEALTH

1.24 The first human rights compatibility issue raised by the Bill is whether there is any positive obligation imposed by human rights law to regulate smoking and, if so, the extent of that obligation.

1.25 In 1998 the European Commission of Human Rights[33] considered a complaint from a non-smoker that Germany's laws failed to provide non-smokers with effective protection because of the extent to which he was exposed to smoking in public buildings, on public transport and in other spaces.[34] The case raised the question whether the German state was obliged, under either Article 2 or 8 ECHR, to enact legislation prohibiting smoking in public with a view to protecting non-smokers.

1.26 The Commission observed that the choice of the means calculated to secure compliance with the Convention in the sphere of private relations is in principle a matter that falls within the States' "margin of appreciation." In other words, there are different ways of ensuring respect for the Convention rights and the nature of the state's obligation will depend on which aspects of the Convention rights are at issue. The Commission noted that German law contained provisions limiting the advertising of tobacco products and prohibiting smoking in certain public areas, and that the German authorities had given preference to a public information campaign on the injurious effects of smoking. It concluded:

    "The Commission finds that bearing in mind the competing interests of the applicant as a non-smoker and of the interests of other individuals to continue smoking and the margin of appreciation left to the national authorities, the absence of a general prohibition on advertising of tobacco products and on smoking does not amount to a failure on the part of the German state to ensure the applicant's rights under Articles 2 and 8 of the Convention."

The Commission therefore rejected the complaint as inadmissible.

1.27 Under s. 2 of the Human Rights Act 1998 UK courts are required to "take into account" Commission decisions on admissibility when determining issues of compatibility. They are therefore not strictly binding, but a domestic court should usually follow decisions of the Strasbourg institutions. Although only an inadmissibility decision of the Commission, and decided seven years ago, before any of the more recent evidence of the health effects of passive smoking was available, the decision in Wockel v Germany is likely still to represent the position under the Convention. The Court has very recently reiterated that where the State is required to take positive measures to protect against harm from environmental pollution, the choice of means is in principle a matter that falls within the States' margin of appreciation. There are different avenues to ensure respect for private life, and the Court has often preferred to refrain from revising domestic environmental policies.[35]

1.28 We therefore conclude that the Strasbourg case-law does not require the UK to introduce a total prohibition on smoking. A failure to prohibit smoking completely would be unlikely to be found to be a breach of the UK's positive obligations under Article 2 or 8 ECHR.

1.29 Nor does the WHO Framework Convention require the UK to introduce a total prohibition. Article 8 of that treaty requires states to adopt and implement effective legislative, executive, administrative and/or other measures, providing for protection from exposure to tobacco smoke in indoor workplaces, public transport, indoor public places and other public places as appropriate. This does not require states to introduce a complete smoking ban, without exemptions. We therefore consider that a partial ban of the kind proposed in the Bill would not breach the UK's obligations under the WHO FCTC.

1.30 However, the ECHR standards provide a floor of protection, not a ceiling. The national authorities of a State are at liberty to go further than the positive obligations under the Convention require, provided that in doing so they do not violate Convention rights. Parliament would therefore be entitled under the Convention to take the view that the evidence of harm to the health of non-smokers is such as to warrant a prohibition in the UK, provided it does so in a way which is compatible with other Convention rights.

1.31 The Framework Convention also provides, in Article 2:

    "2(1) In order to better protect human health, Parties are encouraged to implement measures beyond those required by this Convention and its protocols, and nothing in these instruments shall prevent a Party from imposing stricter requirements that are consistent with their provisions and are in accordance with international law."

1.32 We conclude that although neither the ECHR nor the WHO Framework Convention require the UK to introduce a total smoking ban, it would be at liberty to do so under both of those instruments provided that in doing so it does not act incompatibly with any other provisions in those treaties.

(2) THE INTERFERENCE WITH SMOKERS' ARTICLE 8 RIGHTS

1.33 The Explanatory Notes to the Bill state that the Government has considered whether taking measures of the kind provided for in the Bill to control the use of products which are lawfully on sale to persons over 16 would breach the rights in Article 8 to respect for private and family life.[36] The Notes state that it was not felt that, even if such rights were engaged, there would be any breach of such rights, because any interference with such rights is justified on the grounds of protection of health.

1.34 We consider that the Bill's provision for the prohibition of smoking in certain premises, places and vehicles does engage the Article 8 rights of smokers to respect for their private lives, and therefore calls for justification under Article 8(2). It is true that the prohibition serves the legitimate aims of the interests of public safety, the protection of health and the protection of the rights and freedoms of others in Article 8(2). The question is whether the interference with smokers' Article 8 rights in pursuit of those aims is proportionate. The Explanatory Notes do not address this question, but merely assert that the interference is justified on grounds of protection of health. A proper consideration of the proportionality of the interference with smokers' Article 8 rights requires consideration of the weight of the evidence of the dangers of exposure to tobacco smoke, in order to assess the importance to be attached to the aim in the balancing exercise, and the scope of the exemptions which are envisaged.

1.35 The evidence relied on by the Government to justify the partial smoking ban is set out in the regulatory impact assessment which accompanies the Bill.[37] It is estimated that the total number of averted deaths could be as many as 2,500 a year, and the saving to the NHS in health costs could be as much as £100m a year.

1.36 The prohibition on smoking does not extend to a person's home (unless it is also a place to which the public have access or a workplace for more than one person). The exemptions envisaged also include "premises where a person has his home, or is living whether permanently or temporarily (including hotels, care homes and prisons and other places where a person may be detained)." A person who wishes to smoke will therefore still be able to do so in the privacy of their own home, including where that home is a prison, long term residential care home, or other place where they are living permanently.

1.37 In view of the evidence relied on in support of the proposed prohibition, the fact that it does not extend to a person's home, and that provision is made to exempt places which are people's de facto homes, the interference with the private life of smokers is in our view likely to be upheld as being proportionate.

(3) DISCRIMINATION

1.38 The proposed exemptions from the smoking ban for licensed premises not serving food and for membership clubs raises an issue about discrimination in the protection of people's health and safety. The effect of such exemptions will be that both employees and members of the public attending such premises will not be afforded the protection from exposure to smoke which the law will afford to those working at or attending other enclosed premises.

1.39 Such differential treatment engages human rights guarantees against non-discrimination. Article 14 ECHR applies where the State acts within the ambit of a Convention right. Therefore, even if a smoking ban is not strictly speaking required by Articles 2 and 8 ECHR, if the State chooses to introduce one in order to protect life and health, it must not discriminate in the protection afforded to people without a reasonable and objective justification for doing so.

1.40 Exempting licensed premises not serving food and membership clubs from the smoking ban has two discriminatory effects. First, it treats employees at such premises less favourably than employees at premises which are not exempt.[38] Such differential treatment would be likely to be treated as being within the "other status" limb of Article 14 and therefore requiring justification.[39] Second, it treats members of the public who attend such premises less favourably, and this may be indirectly discriminatory on the basis of lack of wealth or social condition, because the evidence suggests that both pubs not serving food and membership clubs tend to be in the most deprived areas.[40] Such differential treatment requires objective justification.[41]

1.41 The proposed exemptions for licensed premises not serving food and for membership clubs gives rise to differential treatment of employees and members of the public which requires objective justification if it is to be compatible with Article 14 ECHR in conjunction with Articles 2 and 8. No justification has been provided by the Government in any of the documentation accompanying the Bill. We have therefore written to the Minister pointing out the nature of the discrimination problem and asking what is the objective justification relied upon for these proposed exemptions.


1   HC Bill 69 Back

2   Bill 69-EN Back

3   See paragraph 1.41 and Appendix Back

4   The appropriate national authority will be able to specify in regulations what "enclosed" and "substantially enclosed" mean: clause 2(5). The appropriate national authority is the Secretary of State in relation to England and the National Assembly for Wales in relation to Wales: clause 75(1). Back

5   Clause 2(1). Premises are "open to the public" if the public or a section of the public has access to them, whether by invitation or not, and whether on payment or not: clause 2(7). Back

6   Clause 2(2). "Work" includes voluntary work: clause 2(8) Back

7   Clause 2(3) Back

8   Clause 2(4) Back

9   Clause 3(1) Back

10   Clause 3(2) Back

11   Clause 3(3) Back

12   Clause 3(4)(b) Back

13   Clause 3(4)(a) Back

14   Clause 4(1) Back

15   Clause 4(3) Back

16   Clause 4(2) Back

17   EN para. 41 Back

18   Clause 5(1). "Vehicle" means every type of vehicle, including train, vessel, aircraft and hovercraft: clause 5(3) Back

19   Clause 5(2) Back

20   EN para. 42 Back

21   Clause 6(1) Back

22   Clause 6(5) Back

23   Clause 6(6) Back

24   Clause 7(2) Back

25   Clause 7(3) Back

26   Clause 8(1) Back

27   Clause 9(1) Back

28   Clause 9(3) Back

29   Clause 9(4) Back

30   See for example McCann v UK (1996) 21 EHRR Back

31   See for example Hatton v UK (2003) 37 EHRR 28 at para. 96; Fadeyeva v Russia, App. No. 55723/00, 9 June 2005, at paras. 68-70 Back

32   See for example Lopez Ostra v Spain (1995) 20 EHRR 277 at para. 51 Back

33   The first tier of the old two-stage process before the introduction of a single European Court of Human Rights. Back

34   Wockel v Germany (1998) 25 EHRR CD156 Back

35   Fadeyeva v Russia, op cit., (June 2005) at paras. 96 and 104, referring to earlier decisions in Hatton v UK, op cit., and Powell and Rayner v UK (1990) 12 EHRR 355 Back

36   EN para. 303 Back

37   Partial Regulatory Impact Assessment - Smokefree Aspects of the Health Bill Back

38   See the evidence of Ian Gray, of the Chartered Institute for Environmental Health, to the Health Committee on 24 November 2005, at QQ 409-410, demonstrating the departure from the principle of non-discrimination in health and safety protection: "We provide services and protection for everyone in the workplace. How will we explain to people who work in pubs and clubs that they are not protected when the office worker down the road is? … It is a fundamental principle of health and safety practice that we protect everyone equally; we have never picked and chosen. The whole history of public health legislation is that it protects everyone as best it can; it does not select people for exemption." Back

39   Examples of the sorts of differences of treatment which have been held by the European Court of Human Rights to be within the scope of Article 14 include different treatment of owners of non-residential as opposed to residential buildings in relation to eviction orders; different treatment of people injured at work compared to people injured outside the workplace in relation to entitlement to bring proceedings for personal injury; and different treatment of companies who had already brought legal proceedings compared to those who had not in relation to exemption from retrospective regulations. Back

40   See evidence of the Chief Medical Officer and others to the Health Committee on 24 November 2005 at QQ 410, 411, 448 and 468, that the proposed exemptions will therefore exacerbate health inequalities. Back

41   The envisaged exemption for places which are de facto homes is justified by the need to act compatibly with the Article 8 rights of the smoker. Back


 
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