Issues arising from Health and SOcial Services’ Consultation document on the banning of smoking in enclosed workplaces
1. SUMMARY
Following on from the adoption of proposition P126/2005 - the restriction of smoking in enclosed workplaces, by the States on the 20th July 2005, a copy of which is attached as Appendix A, the Health and Social Services (H & SS) Committee issued a consultation document seeking comments on proposals to ban smoking in enclosed workplaces. The consultation period ends on the 31st January 2006.
The views of the Minister are sought on 2 proposals contained in the consultation document: the granting of exemptions to certain workplaces from the proposed legislation and the Health and Safety Inspectorate being identified as having enforcement responsibilities for the proposed legislation in certain workplaces.
2. BACKGROUND
The views of the Employment and Social Security (E & SS) Committee were sought by the H & SS Committee on the introduction of a ban on smoking in workplaces by Committee Act dated 13th April 2005. The response to this request, attached as Appendix B, was considered by the E & SS Committee at its meeting on the 21st April 2005, with Steve Harvey of Public Health Services, who is leading this project, being advised of the E & SS Committee’s views on the 22nd April 2005.
P126/2005 reflected the E & SS Committee’s views that “enforcement would be carried out within existing Health Protection resources”.
3. CONSULTATION
The consultation document which was issued by the H & SS Committee at the end of 2005, attached as Appendix C, sets out the reasoning for proposing a ban on smoking in enclosed workplaces and then goes on to seek views on five issues:
· Definitions;
· Exceptions;
· Signage;
· Offences, penalties and defences; and
· Enforcement.
4. RESPONSE
The Minister is asked for his views on two issues set out in the consultation document:
Exceptions and Enforcement.
4.1 Exceptions
The consultation document takes the stance that exposure to environmental tobacco smoke is harmful to health and refers to the responsibility of Governments to protect workers from involuntary and preventable risks to their health and lives. The document goes on to state that it would be unreasonable and irrational to offer protection to some workers but to exclude others.
Despite this stance, the document identifies that the Minister of Health will recommend exemptions from a total ban on smoking in certain enclosed workplaces, such as residential and nursing homes, prisons and psychiatric hospitals and seeks views on these proposals.
Whilst couched in terms which state that employers still have a duty of care to their employees, the type of approach being put forward is similar to UK proposals for exemptions which have attracted criticism by such bodies as the TUC and the RCN (Royal College of Nursing). They urge that any ban should be total and cover all workplaces if all employees are to be treated equally.
In view of this criticism, it is considered that the proposals to include exemptions may be challenged under Article 2 of the European Convention on Human Rights, which will be applied to Jersey under the proposed Human Rights (Jersey) Law 200-. Article 2 of the convention is an absolute right which provides that everyone’s right to life shall be protected by law. It is therefore recommended that legal opinion be sought on the application of Human Rights legislation to the issue of exemptions.
4.2 Enforcement
In the response made to the H & SS Committee, which was incorporated into P126/2005, the E & SS Committee commented that responsibility for enforcement of any proposed legislation should be carried out by officers of the H & SS Committee.
This reflected the view of the E & SS Committee that it was more appropriate for one States Department to be responsible for enforcement of any proposed legislation in order to ensure clear lines of accountability and consistency of approach.
The point was also made that the Health and Safety Inspectorate adopted a risk based approach to enforcement, in keeping with their stated enforcement policy, in contrast to the prescriptive approach which would be required for the enforcement of the proposed legislation to ban smoking in enclosed workplaces. This raises the issue of whether the proposals put forward for enforcement responsibility in the consultation document, are using existing resources most effectively.
The E & SS Committee were also aware of the existing workload placed on the Health and Safety Inspectorate and their inability to provide a commitment to the enforcement of legislation without consideration being given to the additional resource implications involved.
Despite this, the consultation document identify that the Health and Safety Inspectorate along with the Health Protection Department (Environmental Health Officers) of H & SS will have enforcement responsibilities. The division of responsibility for premises between each of the regulatory authorities is not included in the document, but it is understood that the intention is that Health Protection will have responsibility for premises which they inspect, i.e. food premises, and the Health and Safety Inspectorate all others.
There are a number of issues raised by these proposals for enforcement:
· It is not possible to gauge the increased workload on the Health and Safety Inspectorate as there has been no evaluation of the number of premises involved. However, as exposure to environmental tobacco smoking is an emotive issue, it is felt that any suggestion that these proposals will be self policing is subject to question;
· It is considered that further consideration is needed to be given to identify the manner in which the legislation would be enforced, ideally by one of the agencies within the Health and Social Services Department ; and
· Categories of premises where the proposed legislation is likely to have a major impact, such as offices, are at present considered to be low risk and are therefore not subject to planned inspections by the Health and Safety Inspectorate. Any suggestion that the enforcement of the proposed law could be included within current visits to premises by the Inspectorate does not take this into account.
It is therefore considered that until these issues have been evaluated by Health and Social Services, it is not possible to provide any commitment to the enforcement of this proposed legislation by the Health and Safety Inspectorate.
5. RECOMMENDATION
In view of the impact of smoking related diseases, and the acceptance of the States of P126/2005, it is recommended that the Minister should support a response to the consultation document supporting the intention of banning smoking in enclosed workplaces.
It is further recommended that the Minister support a response on exemptions and enforcement setting out the comments contained in this paper.
Colin Myers
Director of Health and Safety
16th January 2006
Appendix a
STATES OF JERSEY
r
Restriction on smoking in enclosed workplaces
Lodged au Greffe on 22nd June 2005
by the Health and Social Services Committee
STATES GREFFE
PROPOSITION
THE STATES are asked to decide whether they are of opinion -
(a) to agree, in principle, that smoking should be prohibited in enclosed workplaces; and
(b) to charge the Health and Social Services Committee to consult on the detail of the Law and then to bring forward for approval the appropriate legislation to give legal effect to the decision contained in paragraph (a).
HEALTH AND SOCIAL SERVICES COMMITTEE
REPORT
Restriction on smoking in enclosed workplaces – in principle proposition of the Health and Social Services Committee
Having monitored the development of anti-smoking legislation in other jurisdictions, and having observed the effectiveness of such legislation in practice, the Health and Social Services Committee has now decided to seek to prohibit smoking in enclosed workplaces.
The Health and Social Services Committee is committed to tackling smoking on health grounds and to this end it has lodged the Draft Restriction on Smoking (Amendment) (Jersey) Law 200-. If approved, this Law will, amongst other measures, ban smoking in places that serve food for consumption on the premises. At the time of the debate, during which ‘in principle’ approval was gained for these measure, it was argued that the ban should be extended to all enclosed public places. However, at that time, the concept of banning smoking in such places as bars and nightclubs was comparatively novel and largely untested in western jurisdictions. Since that time we have seen the broad and successful adoption of such laws in jurisdictions such as Ireland and New York. Notwithstanding significant doubts expressed during the introduction of these measures, they have proven to be a practical and workable means of providing significant protection to the health of the public.
The Committee therefore propose that the necessary work be undertaken to extend smoking restrictions in Jersey to enclosed workplaces (broadly in line with the Irish legislation introduced in 2004). If this proposition is approved the department would carry out a detailed consultation exercise in order to determine the best approach for the legislation to take.
Developments
As members will appreciate, this topic is dynamic and recent global developments, most notably in Ireland, have demonstrated how a wider ban, that focuses on enclosed workplaces, can gain political and public acceptance and work in practice.
In Ireland most enclosed workplaces became smoke-free by law on 29th March 2004, under provisions in the Public Health (Tobacco) Acts, 2002 and 2004. Since then offices, shops, factories, bars, restaurants and other enclosed workplaces have been smoke-free. In effect, Ireland has banned smoking in virtually all workplaces. The purpose of such legislation is to protect workers and members of the public from exposure to tobacco smoke.
Passive smoking
Some of the immediate effects of passive smoking include eye irritation, headache, cough, sore throat, dizziness and nausea. Adults with asthma can experience a significant decline in lung function when exposed, while new cases of asthma may be induced in children whose parents smoke. Short-term exposure to tobacco smoke also has a measurable effect on the heart in non-smokers. Just 30 minutes’ exposure is enough to reduce coronary blood flow.
In the longer term, passive smokers suffer an increased risk of a range of smoking-related diseases. Non-smokers, who are exposed to passive smoking in the home, have a 25% increased risk of heart disease and lung cancer. A major review by the Government-appointed Scientific Committee on Tobacco and Health (SCOTH) concluded that passive smoking is a cause of lung cancer and ischaemic heart disease in adult non-smokers, and a cause of respiratory disease, cot-death, middle-ear disease and asthmatic attacks in children. A more recent review of the evidence by SCOTH found that the conclusions of its initial report still stand, i.e. that there is a “causal effect of exposure to second-hand smoke on the risks of lung cancer, ischaemic heart disease and a strong link to adverse effects in children”. A review of the risks of cancer from exposure to second-hand smoke by the International Agency for Research on Cancer (IARC) noted that “the evidence is sufficient to conclude that involuntary smoking is a cause of lung cancer in never smokers”. A study published in the British Medical Journal, in June 2004, suggests that previous studies of the effects of passive smoking on the risk of heart disease may have been under-estimated. The researchers found that blood cotinine levels among non-smokers were associated with a 50-60% increased risk of heart disease.
In terms of deaths from second-hand smoke, whilst the relative health risks from passive smoking are small in comparison with those from active smoking, because the diseases are common, the overall health impact is large. Professor Konrad Jamrozik, formerly of Imperial College London, has estimated that domestic exposure to second-hand smoke in the U.K. causes around 2,700 deaths in people aged 20-64 and a further 8,000 deaths a year among people aged 65 years or older. Exposure to second-hand smoke at work is estimated to cause the death of more than 2 employed persons per working day across the U.K. as a whole (617 deaths a year), including 54 deaths a year in the hospitality industry. This equates to about one-fifth of all deaths from second-hand smoke in the general population and up to half of such deaths among employees in the hospitality trades.
Regarding risk to young children – almost half of all children in the U.K. are exposed to tobacco smoke at home. Passive smoking increases the risk of lower respiratory tract infections such as bronchitis, pneumonia and bronchiolitis in children. One study found that in households where both parents smoke, young children have a 72% increased risk of respiratory illnesses. Passive smoking causes a reduction in lung function and increased severity in the symptoms of asthma in children, and is a risk factor for new cases of asthma in children. Passive smoking is also associated with middle-ear infection in children as well as possible cardiovascular impairment and behavioural problems.
Infants of parents who smoke are more likely to be admitted to hospital for bronchitis and pneumonia in the first year of life. More than 17,000 children under the age of 5 are admitted to hospital in the U.K. every year because of the effects of passive smoking. Passive smoking during childhood predisposes children to developing chronic obstructive airway disease and cancer as adults. Exposure to tobacco smoke may also impair olfactory function in children. A Canadian study found that passive smoking reduced children’s ability to detect a wide variety of odours compared with children raised in non-smoking households. Passive smoking may also affect children’s mental development. A U.S. study found deficits in reading and reasoning skills among children even at low levels of smoke exposure.
Exposure to passive smoking during pregnancy is an independent risk factor for low birth weight. A recent study has also shown that babies exposed to their mothers’ tobacco smoke before they are born grow up with reduced lung function. Parental smoking is also a risk factor for sudden infant death syndrome (cot death).
Conclusion
The harmful effects of passive smoking are well-documented and demonstrated by a significant volume of scientific work. The fact is that a significant majority of people do not smoke, and a significant majority of those who do smoke, actually wish to give it up. Obviously this measure will be unpopular in some quarters and is likely to receive opposition from some businesses. However, now that there is clear evidence from other jurisdictions that such a ban can work, and even have business advantages, the Committee believes the States should signal its intention through supporting this proposition. Adoption of an ‘in principle’ proposal will give businesses and the wider community a sufficiently long lead in time before the measures come into effect.
Financial and manpower statement
Consultation and development of the proposals will be carried out within existing departmental resources. If approved, some law drafting time will be required to prepare a Jersey law based on the Irish legislation. Enforcement would be carried out within existing Health Protection resources.
STATES OF JERSEY
r
Restriction on smoking in enclosed workplaces (P.126/2005): comments
Presented to the States on 19th July 2005
by the Finance and Economics Committee
STATES GREFFE
COMMENTS
The Committee notes that the costs of consultation and development of the proposals included in this Report and Proposition will be met from within existing resources.
APPENDIX B
Response on issues raised from item A12 of the Health and Social Services Committee meeting dated 4th February 2005
The Health and Social Services Committee have requested the Employment and Social Security Committee’s comments on the introduction of a ban of smoking in work places, in view of the Committee’s responsibility for health and safety at work.
Background
The Health and Social Services Committee’s report entitled A Tobacco Strategy for Jersey (P.109/2003) was adopted by the States on the 11th November 2003. Amongst a number of measures which were included in the report was the intention to restrict smoking in workplaces, States’ buildings and other public places and the introduction of legislation to ban smoking in public eating places.
At its meeting of the 4th February 2005, the Health and Social Services Committee received an update on legislation being drafted in support of the Tobacco Strategy.
During the course of discussion, mention was made of the declared intention of Senator E P Vibert to lodge an amendment to any proposition lodged by the Health and Social Services Committee, with a view to seeking a total ban on smoking in public places. It was also recorded that it was believed that Senator Vibert supported a ban on smoking in all work places and, in reference to this issue; the views of the Employment and Social Security Committee were therefore sought.
Call for ban on smoking
There is an increasing call for banning smoking as a result of the increased understanding of the medical effects of smoking to both smokers and non-smokers (passive smoking). In addition to the potential medical consequences, there appears to be a growing view that individuals simply do not like being in a smoky atmosphere either at work or in a social context.
The Committee will, however, be aware of the extreme differing views on this issue with, on the one hand, the pro-smokers’ corner, supported by such pressure groups as the Freedom Organisation for the Right to Enjoy Tobacco Smoking (FOREST), which supports the rights of individuals to make their own decision, and, in the anti - smoking corner, Action on Smoking and Health (ASH) which believes that smoking is a bad thing and should be discouraged and banned.
There is little common ground between the two extremes, necessitating, if smoking is to be banned in any particular location, legislation which is easily understood, robust and enforceable.
The use of legislation to impose a ban on smoking in the work place
It is worthwhile to consider the manner in which legislation may or may not be used to implement a ban on smoking in the work place, comparing the legislation for which the Committee have responsibility, the Health and Safety at Work (Jersey) Law, 1989, and the present position in Guernsey and Ireland.
Health and Safety at Work ( Jersey ) Law,1989.
The Health and Safety at Work (Jersey) Law, 1989, which is the principal occupational health and safety law in the Island, includes a general duty on employers to ensure, so far as is reasonably practicable, the health and safety of his employees at work. This requires a risk based approach which, in respect of smoking, may be achieved by means other than a complete ban, for example the establishment of high efficiency extractors or the provision of a segregated area for smokers. Guidance on the recommended risk based approach that employers could take to satisfy their legal requirements under the Health and Safety at Work (Jersey) Law, 1989, was the subject of guidance, Passive Smoking at Work, issued by the Inspectorate in 2003 following discussions with the Health Promotion Unit.
It could be argued that the Tobacco Strategy for Jersey targets a public health issue, with the stated intention being to reduce the harm to individuals and the community from the effects of smoking. In this context, reference to a work place is simply an identification of an area where controls on smoking can be implemented with all persons, not just persons at work, subject to restrictions on smoking.
It is therefore considered that the use of the Health and Safety at Work (Jersey) Law, 1989, to impose a smoking ban in work places could be subject to legal challenge and would not provide the robust or easily enforceable legal framework that would be required
Guernsey
The Committee may be also aware, through reports in the media, of the intention of the States of Guernsey to ban smoking. It is understood that, whilst this proposal has been accepted in principle, following the normal process of legislation enacted by the States of Guernsey, no detailed legislation has yet been considered. The Guernsey Health and Safety Executive (who carry out a similar function to the Health and Safety Inspectorate) have stated that health and safety at work legislation would not be an appropriate means for introducing this detailed legislation.
Ireland
As an indication of the approach that could be taken, it may be useful to consider the situation in Ireland where the widely publicised ban on smoking in Ireland has been achieved through the introduction of legislation under the Public Health (Tobacco) (Amendment) Act 2004. This legislation prohibits smoking in “specified places”, the definition of which includes enclosed work places. It should however be noted that even with this specific legislation, it has been felt necessary to provide a number of exemptions from a ban on smoking in various categories of work places including dwellings, hotel bedrooms, prisons, nursing homes and hospitals.
It is therefore considered that, should it be decided that a ban on smoking in the work place is desirable, the use of health and safety at work legislation would be inappropriate. It is also important to appreciate that, even with specific legislation in place which places a ban on smoking in work places, such as the public health legislation introduced in Ireland; the ban has not been applied to all work places.
Enforcement of smoking bans in work places
The enactment of specific legislation placing a ban on smoking in work places is only one part of an overall strategy being introduced to restrict smoking in the Island. Aside form the introduction of suitable legislation, there is the issue of enforcement of this legislation which will be a key to its’ successful implementation.
It is considered that, in view of the need to ensure that any enforcement of the legislation is an integral part of the other measures set out in the Tobacco Strategy, it is essential that any enforcement of legislation be developed, influenced and resourced under the control of the Health and Social Services Committee. As a consequence, it is recommended that enforcement responsibility for legislation be carried out by officers of the Health and Social Services Department.
Recommendation
It is advised that, in view of the impact of smoking-related diseases, and the States acceptance of the Tobacco Strategy for Jersey in 2003, the Committee should support the introduction of legislation aimed at banning smoking in workplaces. However, the Committee should clearly identify that health and safety at work legislation would not be an appropriate legislative vehicle for introducing such a ban.
It is also recommended that any future legislation introducing a ban on smoking in the work place should be seen as being part of the overall Tobacco Strategy and any enforcement responsibilities for future legislation carried out by officers of the Health and Social Services Department.
Colin Myers
Director of Health and Safety
April 2005
APPENDIX C
Consultation regarding banning smoking in enclosed workplaces
Introduction
In July 2005 The States of Jersey supported, in principle, the intention of the Health and Social Services Committee to consult (ahead of coming back to the States with detailed proposals) on banning smoking in enclosed workplaces.
This paper outlines the key principles that will be followed in drawing up Jersey legislation to achieve a smoking ban in enclosed workplaces and raises some consultation questions.
Consultation process
The consultation phase will end on January 31st 2006. Comments are welcome from anybody and should be sent, by this date, to:
Steve Harvey
Public Health Services
Le Bas Centre
St Saviour’s Road
St Helier
JE1 4HR
s.harvey@health.gov.je
Background
There is solid scientific evidence, supported by almost all reputable scientific bodies both internationally and nationally, that environmental tobacco smoke is harmful to health, and particularly that it causes significant and measurable morbidity and mortality amongst those who are involuntarily exposed to it.
Governments across the Western world have accepted a collective responsibility through their Health and Safety legislation to protect workers from involuntary and preventable risks to their health and lives. This would appear to be an absolute responsibility. It would be both unreasonable and irrational to offer protection to some workers but to exclude others. On this basis, workers in the hospitality industry, whether bar or restaurant staff, deserve equal protection with other workers – particularly since their circumstances mean that they are often restricted in their choice of other work.
Voluntary measures and Approved Codes of Practice have been rejected as offering too little real protection, whilst ventilation systems have been shown to be largely ineffective and impossible to police. Partial bans would still leave many workers exposed to the real dangers of environmental tobacco smoke.
Recommendations
The Minister of Health will recommend:
- Legislation be enacted to provide a total ban on smoking in enclosed work
- Exemptions such as residential and nursing homes, prisons and psychiatric hospitals be proposed to the States and that these may be amended in future
- A ‘lead in’ period is given to allow employers to introduce legislation to ban smoking in enclosed workplaces.
Principles that will inform the Jersey legislation
The need for a law to ban smoking in enclosed workplaces is based on four premises:
- There is a significant risk to health from exposure to environmental tobacco smoke
- Unless by their own choice, no one should, therefore, be exposed to such smoke
- All places where people are working should be free from environmental tobacco smoke
- Ventilation is not an effective alternative to legal restrictions on smoking in enclosed public places and worksites
The following principles will also inform the drafting of legislation:
Enclosed workplaces are likely to be defined as places or premises covered by a fixed or movable roof, which is surrounded by one or more walls or similar structures (inclusive of windows, doors, gates or other means of access to or egress from that part) for more than 50% of their perimeter, and which are being used wholly or mainly as a place of work by persons who are employees.
For clarity of law drafting and ease of enforcement, there should be as few exemptions as possible. In particular, clubs and other incorporated associations should be included within the legislation in order to protect their paid employees. However, there will be a need for some exemptions, as in Ireland, where premises such as residential homes, psychiatric hospitals and prisons are exempt.
It is proposed that Jersey exemptions should be set out within the proposed law, which will be able to be amended as opinion may change in the future on what exemptions there should be.
It is the intention of the Health and Social Services Committee to keep exemptions to a minimum, but as the draft legislation will be debated by the States it will be for members to determine the final exemption list.
Given that the majority of the population are non-smokers, the law is effectively self policing. However, Health Protection Officers and Health and Safety Officers should act as information sources for employers and proprietors on the implementation and monitoring of the law as a normal part of their inspection duties.
Some questions for consultation
1. Definitions
“Smoking” means being in possession of ignited tobacco or being in possession of a pipe or other smoking equipment in which tobacco is ignited.
A place is to be regarded as “enclosed” if it is fully enclosed (completely enclosed on all sides by solid floor to ceiling walls, windows, or solid floor to ceiling partitions with an exception for doors and passageways) or substantially enclosed, (that is at least partially covered by a roof and has walls such that the total area of the roof and wall surfaces exceeds 50% of the total notional roof and wall area).
Is this sufficiently clear? If not, how might it be improved?
2. Exceptions
Whilst some areas may be exempted from the legislation, it is important to bear in mind that all employers still have the right to enforce the legislation; the exemption only confers the right not to be penalised for non enforcement.
Every employer has a duty of care to an employee and these exemptions do not constitute a right to smoke in an enclosed workplace. Health and safety are still a priority, but the exemptions will allow employers the option of making smoking provisions for employees.
The following facilities (which are deemed places of residence for some people) are among premises that may be exempt from the legislation:-
· Long-stay adult residential care homes
· Psychiatric hospitals and units
· Adult hospices
· Residential premises or living accommodation, including a bedroom or living area being used as the person’s principal place of residence in a hotel, bed and breakfast or hostel
· Prisons or other places of detention.
Views are invited on this list.
Health and Social Services invites views on whether the legislation presents any practical difficulties in your workplace.
3. Signage
It is proposed that “No smoking” signs must be displayed at all entrances and in conspicuous areas, including toilets and staff rooms. Special provision will be made for listed buildings and vehicles. Signs must be at least A4 in size, display the International “No Smoking” symbol and state that it is illegal to smoke on the premises. They might also include information on the maximum fine and a phone number to call if the law is being broken. It would be the responsibility of the owner, manager or other person in charge to ensure that the premises no smoking status is clearly highlighted.
Views are invited on this proposal.
4. Offences, penalties and defences
Three types of offence are proposed:-
· Knowingly smoking in smoke-free premises
· Not displaying the prescribed no smoking notice in smoke-free premises
· Failing to act to prevent smoking in smoke-free premises.
Views are invited on this general approach.
Specific, special defences will apply only to the offence of failing to prevent smoking and displaying no smoking signage. Defendants will have to produce evidence that they were not aware, and could not reasonably be expected to have been, that the contravention was occurring. Alternatively a defendant must show they requested the person smoking to stop and told them they were committing an offence.
Views are invited on these defences.
5. Enforcement
The legislation will be enforced by the Health Protection Department and the Health and Safety Inspectorate. They will have power to inspect premises and bring prosecutions.
Views are invited on these enforcement arrangements.
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