Smoke-free Scotland - Guidance on smoking policies for the NHS, local authorities and care service providers

Appendix 1 Further detail on the legislation

There are three sections to this Appendix. Section 1 deals with the legal requirements, Section 2 is a list of those premises classified as no smoking premises under the law and Section 3 is a list of the exemptions to the law.

Section 1 The legal requirements

The Smoking, Health and Social Care (Scotland) Act 2005 & The Prohibition of Smoking in Certain Premises (Scotland) Regulations 2006

Part 1 of the Smoking, Health and Social Care (Scotland) Act 2005 prohibits smoking in certain 'wholly or substantially enclosed' places. It sets out the offences relevant to the Act, the penalties for non-compliance, the requirements for display of no smoking notices and gives powers to authorised officers of the appropriate council to enforce the law.

The Prohibition of Smoking in Certain Premises (Scotland) Regulations 2006, made under the Act, set out the premises prescribed as no smoking and those premises (or parts of premises) which are exempt. They also make further provision in relation to the display of no smoking notices.

A copy of the Act and the Regulations can be obtained from www.clearingtheairscotland.com , or by contacting the Scottish Executive's Tobacco Control Team at St Andrew's House, Edinburgh EH1 3DG, tel 0131 244 5660 or e-mail info@clearingtheairscotland.com

Frequently asked questions from businesses and responses can also be found on the web site and you can e-mail for further information if your query is not shown.

Some relevant definitions, as set out in the Act or Regulations, are given below:

'No smoking premises' - these are premises which are 'wholly or substantially enclosed' and which are set out in Schedule 1 to the Smoking Regulations (listed at Section 2), subject to any exemptions set out in Schedule 2 (listed at Section 3).

The kinds of premises which can be defined within the regulations as no-smoking premises are limited under the Act to one of 4 categories of premises, namely:

• Premises to which the public or a section of the public has access
• Premises which are being used wholly or mainly as a place of work
• Premises which are being used by and for the purposes of a club or other unincorporated association; or
• Premises which are being used wholly or mainly for the provision of education or of health or care services.

'Smoke' means smoke tobacco, any substance or mixture which includes it or any other substance or mixture; and a person is to be taken as smoking if the person is holding or otherwise in possession or control of lit tobacco, of any lit substance or mixture which includes tobacco or of any other lit substance or mixture which is in a form or in a receptacle in which it can be smoked.

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 or offshore;

(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 and passageways, 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.

In relation to exempted premises (see Section 3 of this appendix), the Regulations also provide the following definitions:

'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.

'Designated hotel bedroom' means a room 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.

Section 2 "NO SMOKING PREMISES"
(as listed in Schedule 1 to the Regulations)

Those premises which fall within the scope of the legislation, having been classed as

"no smoking premises", are

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.

Section 3 Exemptions
(as listed in Schedule 2 to the Regulations)

Those premises (or parts of premises) which are exempt from the legislation are:

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.