Quick Guide to Scotland's Smoking Legislation
Scotland’s law on smoking has changed with the passage of the Smoking, Health and Social Care (Scotland) Act 2005 and the Prohibition of Smoking in Certain Premises (Scotland) Regulations 2006.
If you control or manage a business in Scotland, here are answers to some key questions you should know:
Q. When did the law come into effect?
A. The law came into effect from 6am on 26 March 2006.
Q. Who does the law concern?
A. Smokers and those who manage or control most public premises.
Q. What does the law do?
A. The law makes it an offence to smoke in most public premises. The law also makes it an offence for those who manage or control most public premises either to (1) knowingly permit a person to smoke there; or (2) fail to conspicuously display proper no-smoking notices.
Q. What kinds of premises does the law apply to?
A. With a few exemptions, the law prohibits smoking in public places that are “wholly or substantially enclosed”. This includes offices, factories, restaurants, bars and public houses, shops, hotels, casinos, dance halls, discotheques, club premises, sports centres, and public telephone kiosks. A full list of premises that fall within the scope of the legislation is set forth in Schedule 1 to the Regulations. A list of premises exempted from the legislation are detailed in Schedule 2 to the Regulations.
Q. What is meant by the term “wholly or substantially enclosed”?
A. This is an area with a ceiling or roof that – except for doors, windows and passageways – is either wholly enclosed (whether permanently or temporarily) or is enclosed but for an opening which is less than half of the area of its walls.
Q. Does the law apply to vehicles?
A. Yes. The law applies to vehicles used for business purposes, including light and heavy goods vehicles, and public transport such as taxis, buses, trains and ferries. However, it does not apply to vehicles used primarily for the private purposes of the person who owns it or has the right to use it.
Q. Does the law allow businesses to designate areas where staff may smoke?
A. There a number of exemptions where enclosed areas are allowed to be designated for smoking, such as designated hotel bedrooms. These are detailed in Schedule 2 to the Regulations. It is important to note that these exemptions are limited and in some cases certain pre-conditions must be met before an exemption can apply. Significantly, the exemptions do not include restaurants, bars, clubs, offices or factories.
For outdoor designated smoking areas to comply with the new law, they must not be “wholly or substantially enclosed”.
Q. What penalties does the law impose?
A. Individuals may be fined a fixed penalty of £50 for smoking in no-smoking premises. The manager or person in control of a no-smoking premises may be fined a fixed penalty of £200 for either allowing others to smoke in the premises or failing to display warning notices. Refusal to pay or failure to pay may result in prosecution and a fine of up to £2,500.
Q. What measures should Scottish businesses take to comply with the law?
A. The Scottish Executive has recommended that all businesses and organisations to which the law applies take the following steps:
- Display the required “no-smoking” signs in such a way as to make staff, customers and visitors aware that they must comply with the new law.
- Remove all ashtrays.
- Develop and implement a smoke-free policy with staff to ensure that infringements by employees, customers, members, etc., are dealt with under agreed procedures.
- Inform those smoking at the premises that they are committing an offence and request that they extinguish their smoking material immediately or leave.
- In the case of businesses that provide a service for customers or members, refuse service to individuals who smoke in violation of the law.
Q. What sort of “no-smoking” signs must be displayed to comply with the law’s warning notice requirement?
A. The Scottish Executive has issued a guidance indicating the following minimum requirements for the display of “no-smoking” notices on premises affected by the new law:
- The sign must be at least 230mm by 160mm in size.
- It must state that the premises are no-smoking premises and that it is an offence to smoke there or knowingly to permit smoking there.
- The sign must display the international “no-smoking” symbol, at least 85mm in diameter.
- The sign must display the name of the person to whom a complaint may be made by anyone who observes someone smoking.
Q. How many “no-smoking” signs must be displayed on a premises?
A. It is up to the manager or person in control to decide on the number of notices required to make sure everybody on the premises is made aware that smoking is not allowed.
Q. What sort of “no-smoking” signs must be displayed on vehicles?
A. For vehicles affected by the ban, “no-smoking” signs must displayed in such a way that the signs can be seen and read by persons who are in the vehicle, as well as persons approaching the vehicle. There is no legal requirement on the size of these signs. The signs must:
- State that the vehicle is no-smoking and that it is an offence to smoke there or knowingly to permit smoking there.
- Display the international “no-smoking” symbol.
- Display the holder of a particular post (e.g. the manager) to whom a complaint may be made by anyone who observes someone smoking.
For more information, including sample “no-smoking” signs, see Clearing the Air Scotland.
The information contained in this article is given for general information only and does not constitute legal advice on any specific matter.