Liberty and law - challenging the smoking ban
Monday, July 9, 2007 
The following was posted by RedCat as a comment on another post. We removed it not because it isn't interesting in its own right but because it had nothing to do with the post in question and effectively killed the thread. If you want to raise lengthy issues that aren't mentioned in the blog posts feel free to drop me a note (click on Email Simon). I can't guarantee they will feature (as I keep saying, this is a blog not a message board) but they will be considered.
On this occasion - given the current interest in judicial reviews as a means of challenging the smoking ban - I'm sure many of you will find RedCat's analysis illuminating:
As someone who has just completed a post grad in Law I am interested in the judicial review of [the smoking ban]. However, a challenge through judicial review has certain problems. Any law made by Parliament cannot be overturned by the courts because of Parliamentary Supremacy (no matter how unreasonable the law).
However, any decision of any government body may be subject to judicial review. Since the Human Rights Act 1998 all new laws have to have a declaration of compatibility with this Act when they pass through Parliament, so this law will have been declared to be compatible with the Human Rights Act.
In judicial review a judge could decide to make a declaration of incompatibility - that is, the Act is not compatible with HRA 1998. If this were to happen then the Executive would be given the opportunity to amend the Act so that it was compatible, by removing anything incompatible. However, whether or not to do so would be the decision of the Executive so even if this Act is declared incompatible they would be unlikely to change it.
Unfortunately the courts do not have the power to force Parliament to change bad law. The only way that a law can be changed is by another Act of Parliament that repeals all or part of it. One way of attempting to challenge this law would therefore be for as many people who are against this law as possible to contact all the MPs who voted against it and ask each and every one of them to bring forward a private members bill asking for exemptions to the original law. Any such bill being passed would repeal the offending parts of the Health Act.
Another way forward would be a challenge to the European Court of Justice. Within European Union law each country signd up to the Treaty agrees to abide by certain rules. One of the areas covered is that of competition law. Within this area no government has the right to impede businesses from competing with other businesses of a similar type.
This protection prevents member states preferring home grown businesses over those of other member states. However, the law also provides that they cannot do anything to impede any business from competing on a level playing field by merit of any domestic law even when the businesses affected are only those within their own country.
A challenge could be made against this law on this basis. The fact that some pubs have the facilities to provide outside smoking areas while others are street locked and do not have the facilities is preventing the street locked bars from competing fully in the hospitality market. Their ability to compete is impeded directly by a domestic law which has not allowed for protective exemptions in the way that other member states have with their smoking legislation.
If this analysis is correct (I'm no expert but it's very similar to other advice I have seen) the best hope of a successful challenge lies with a wealthy publican or a millionnaire club owner (Dave West, perhaps?) whose business is under direct threat. I'm sorry to disappoint some of you, but challenging the legislation on the grounds of "smokers' rights" is not - and never has been - a serious option.
Reader Comments (49)
RedCat
This is of great interest, and with the comments of Simon reiterating what you have said. Why have freedom to choose taken this route, JR.
There may be legal problems about presenting a case on human rights (not having been involved with the F2C case I am not sure). However, I suspect most people with the resources to mount a case of this kind may not have felt very threatened by the legislation because they would also have had the resources to invest in proper outdoor areas, and may also have been flattered and courted by HMG (anybody with money generally is). Anyway to have someone like Dave West to take such a step, he needs to be there, and well informed, and committed. The Swallow Group nearly got it to court, not sure what went wrong there.
The HR approach may also have sprung from a feeling also that this is not only about business, and had a very strong social angle that had been completely overlooked by HMG when they had prepared the legislation.
Redcat; As many of my comments here and posts on my blog show I have never had any truck with the smoker's rights argument. As you say there has never been any such right. But there were once things called property rights. These are very watered down in the HR Act (You have the right to "enjoy" your property.) The Act is also loaded at every turn with exceptions which moree or less say "this right is applicable unless void by law".
I do not expect any legal action on any basis to succeed in getting the law scrapped. What they can do is draw some attention to the issue. Doing that with enough volume will inform a lot of people.
You are right that parliament is sovereign as far as making laws go. But purely as a matter of practicality they cannot enforce laws that are not truly acceptable to the majority of the population. The government certainly wishes to have this law. If we can convince very large numbers of people that it is a bad law then it will not be enforced. If that happens the government has to either scrap it, ammend it, or look very stupid.
Nick Hogan is already making the local council look very stupid. Lots more of the same would be a very good thing.
But any arguments that propose exemptions will get nowhere as they appear to accept the government's basic premise in making the law; SHS is highly dangerous.
The legal bits of a challenge are best left with the legal people but I note major changes that could encourage Government to consider amendments namely the removal of Patricia Hewitt and transfer of Caroline Flint out of Health.
The new Health Minister and Minister for Science both voted against the bill and I hope are better fitted to question the bias of the previous Health Ministers just as they humiliated their predecessor John Reid.
I am guessing that Freedom2Choose are going the route of Judicial review because this is an obvious first step in a challenge to any law. Clearly there are incompatibilities between the Health Act 2006 and the HRA 1998 in respect of Articles 1 and 8. As such a judge may make a declaration of incompatibility, but as I have said, a judge cannot overturn a piece of Primary legislation. An Act of Parliament is also not prevented from being law by merit of being incompatible with HRA. If a judge does make a declaration of incompatibility there will certainly be a moral victory, but that does not mean the law will change.
The European Court of Justice however, can force our Parliament to revise domestic law. This happened in the case of Factortame when certain provisions in the Merchant Shipping Act were found to be incompatible with European Competition Law. European competion law prevents domestic legislation from impeding competion as I said in my original post.
Also, this is clearly not an avenue by which smokers would be able to mount a legal challenge over their right to smoke. This is an avenue by which publicans could mount a case on the basis that their ability to compete within the UK hospitality industry has been impeded (therefore those mounting the case would need to be publican's with street locked pubs or those unable to get planning permission for outside areas). The case would not have to be brought by an individual, it could be a group of publicans all in this postion.
Redcat.
I have read your article and agree that those MPs who voted against it should be contacted. However, I do not agree with the idea that we seek them to put forward a private members bill to amend this act. What I would suggest that they sign a motion asking the HMG when they will be taking legal action against the Tobacco Companies with regards to claiming back moneies used to treat smoking related illnesses. This might sound as if I am taking the other line in this arguement. However, since the BMA, Sir Liam Donaldson and every other parrot in Parliament and Science faculties claim to be able to prove that SHS kills and causes all forms of related illnesses then this would be step forward for us. We all know their views are based on Junk Science and this has no legal preference over Scientific Fact.
The HMG and NHS should have done this before this Law even reached its Reading stage. If they don't attempt this action, this should prove to all of us that the Act was forced through Parliament for an entirely different reason.
Alun,
It may indeed do that, but will have no legal effect. Parliament can make any law - the classic example is that if they made a law to say that all blue eyed babies should be killed at birth this would be the law regardless of the abhorrence of it.
There are only a very few ways that an Act of Parliament can be changed - amendment by the Executive under certain circumstances, repeal by a further Act of Parliament or as in the Factortame case repeal of part of an Act when the UK Parliament is forced to do so by the ECJ because the law is in conflict with the European Communities Treaty.
Contacting all the MPs who dissented and asking them to bring forward a private members bill is a long shot and is more about making sure that these MPs are aware of the public opinion against the ban. A challenge by affected publicans to the ECJ actually has a chance of working as there is a fair bit of precedent to show when the ECJ have been willing to interfere where the rights of businesses are impeded and in this case there is a lot of evidence of the risk to businesses based on what has already happened in Scotland and Ireland.
RedCat.
I understand what you mean. Unfortunately, in the smoke room on the Forest site you will notice that a brewery in Wales has reported no ffect in its business due to this ban. On looking at some of the postings, no one seems concerned but expects someone to take action. By accepting the inconvenience of going outside to smoke I feel it only plays into the hands of those who have forced this upon us. In no manofesto was there any suggestion to such draconian action. As you know, this didn't stop such action through Parliament.If we chose to boycott by not patronising such places then,I feel some thought may come from Parliament in reducing this ban. Not totally removing it but removing such abuse of paliamentry abuse.
I accept that pubs, clubs, cafes and other businesses could be affected but perhaps someone can offer a solution.
My idea for getting those MPs to sign a motion was to challenge the likes who quote Junk science as a means of frightening the public into submission. By my idea, this might prevent the wasted expense of any legal confrontation. Besides this, if they refuse to take this action it would create further backing of our cause from more tolerant members of society and make them wonder what else the HMG is planning.
Lastly, there was an item on one of those sites in the USA which pointed out that a labority there that dealth with Anthrac, Bubonic Plague and various sinister viruses used the same filtratuion system that Colin Grainger had mentioned in another posting on this site. Since this worked effectively for such viruses surely, it can cope with tobacco smoke.
What we need is a couple of rich entrepreners, they buy a large house, they serve drinks to cliental, although this would just be friends. A fund is setup for the upkeep of the property, visitors donate as they wish. This would not come under the ban. Just like having a party in your own house. In effect a pub. No licence required for giving your friends a drink. No laws broken, smoking allowed.
RedCat
Although the suggestion of mine above is rough, would it be illegal.
Andrew,
The Times yesterday had a letter from a man in Wandsworth who was having a marquee in his garden and was told by the council that it would have to be smokefree because by inviting guests he made it a public place. He asked the same question as you yourself have posted.
Michael
But what if he was entertaining in his own home. You can entertain 2 people, or 100 if your house is large enough.
Michael
I find that decision by the council remarkable. If I'm sitting in my own garden and put up a small marquee, that is in my garden, if I had a mansion and erected the marquee inside the house, how would that stand.
I have read the young legalist's post with interest.
Personally, I am a middle aged woman caring for three very elderly/ill individuals. I am not the stuff of which radicals are made! However, having been brought up short recently by several personal incidents (not all of which had to do with smoking) I have spent what spare time I have doing a little research.
I am not cowed by all the rules/regulations/laws which have proliferated whilst I have been fully occupied elsewhere - I am terrified!!! It appears to me that people are now criminals just waiting to be criminalised. The legal framework is in place. All that is required for utter totalitarianism is a certain personality type being elected to power.
Historically there is always a swing from liberalism to puritanism, then back again. I just didn't think I would live through both ticks of the pendulum.
Anyway, I have thought very carefully about what is happening and have decided to embark on a course of civil disobedience. When I come up against a restrictive law I am going to flout it. This includes such heinous crimes as skelping a grandchild who well deserves it and boycotting a Boots store which now has a rule forcing me to travel 20 minutes to purchase a sleeping aid.
I am only one person and I can't do much - but I will do what I can. If I might misquote, I believe I have been one of "the best [who] lack all conviction". The worst that can be done to me is immaterial. Being jailed would only provide me with a rest.
My whole point in drivelling on like this is that if people like me can be pushed too far on all fronts then the legal/political situation really is approaching desperate. The persecution of certain groups within any given society is ALWAYS a huge red warning sign.
As an aside, I am not one of the WHO's lower income uneducated yobs who smoke. This appears to be the picture of smokers which is being busily promoted. Don't they wish!
Hi again all,
Andrew - it would be perfectly legal to do what you describe in a house - provided that all the people there were invited guests and that the alchohol provided was free of charge. It would also be legal to have a marquis in your garden and do the same - provided you were not charging. My mother in law holds an annual barbecue at her house every year in support of the choir that she is a member of; because this is to raise money for the choir tickets are sold, because of this smoking WOULD be prohibited in the marquis in the garden, but this would not be the case if the barbecue was a ticket free event.
Linda - civil disobedience has always been a method of challenging unpopular or bad law - this was certainly the case with the poll tax. However, from the research I have done on this it does appear that there is legal basis for challenge to this law and the ECJ is there to keep member states in line when they act 'ultra vires' beyond there powers. By the way, I am not such a young legalist, I am 36 and was previously a journalist, editor and English teacher before taking a career change!
I know there are some pubs that are not reporting much of a loss of business, but some are - in fact the pattern supports the idea of the ECJ challenge - in my home town for example street locked pubs with no outside space are reporting a loss of business whilst those with outside areas have reported an increase - this supports the fact that the legislation is unfairly impeding their ability to compete within a free market.
RedCat
Having once been a journalist, why do you think the current journalism is biased.
RedCat
The council have still not taken action against Nick Hogan. Are they afraid??
Andrew, having once been a journalist I am more than aware of the biases that exist in that particular industry - also you will generally see more bias in the national press, local papers have reported on a number of the issues.
I have no idea why the council have not taken action against Nick Hogan!
But RedCat - WHY is there media bias on this issue? Do you know?
RedCat; Why Bolton council haven't taken action on Nick Hogan yet is quite likely because they are in consulation with the government about how to handle it. It is a hot potato for them. The mere fact of having someone openly flout the ban on their patch is a challenge. The government are trying to convince us how popular the law is yet here is obvious evidence that it isn't.
Nick Hogan isn't just flouting the law he is challenging it and he has a lot of grass roots support. This could blow up in the faces of Bolton Council. They have to do something but they don't want Nick to get to court. If they do nothing then they look ridiculous.
GerryH; Why the media bias? How much revenue do they get from tobacco advertising these days? So why should they say anything nice about tobacco? The national media is highly dependent on having good access to MPs for their stories. Would that be threatened by challenging the majority of MPs? Doesn't the Guardian sell primarily to members of the ruling class establishment who are very much behind the ban? Don't they sell huge amounts of advertising for public sector jobs? Isn't the BBC funded and controlled by government?
There is obviously much more to study about how the media works but bear in mind that a government without a well oiled propaganda machine wouldn't last 5 minutes.
Bernie, thanks for that. Illuminating! What about the Telegraph though? They appear to be more prepared to report non-PC articles where the smoking ban is concerned.
What is the difference between the Telegraph and the remainder of the press?
Can anyone tell me how often you have to apply for your licence to be renewed (publican).
Well done, Linda Bastable!
After 53 years of a blameless life, I too am a social outcast. After the shock and anger had abated a little, I began to see a whole new world of possibilities, I have bought a nice broad brimmed hat to evade the cameras (for no good purpose) and I shall wear gloves if they make fingerprinting compulsory. I shall now proceed to act in a suspicious manner when ever possible.
I have already boycotted a motorway service station whose smoking customers were to be found trying to shelter under a very young tree.All those huge car parks and they couldn't provide the space for a small shelter.
I too, have decided to flout all these petty and badly written laws, I am currently working out how to sell the grey squirrel that sits in my walnut tree,it need only be a technical sale of course.
I have also noticed that all the legislation is now in place for a totalitarian state, I especially note that they have started with a carbon copy of Hitlers anti tobacco campaign. The nazi doctor who invented the concept of passive smoking also said coffee was carcinogenic, equally without proof. So I suppose thats next.
The kids are so weighed down with debt that they can no longer do the protesting, so I suppose its down to us.
I strongly suspect that the whole smoking ban is just a practice run to see how far the government can manipulate the public.
They will drown beneath our laughter.
RedCat
I have heard that some people are being stared at by the public for smoking. From a legal standpoint, is there not a case for government policy leading to a form of racial hatred towards smokers. Can this be taken to court.
The Telegraph appears to be a bit schizo. They want to have the ear of the Conservative Party. The Conservative Party is no longer interested in the conservative voters. The party believes it must kowtow to the ruling class and Cameron has done a very good job of doing that. But the Telegraph does to some degree still reach real conservative voters and the paper wants to retain it's appeal there.
Many local papers are also beholden to local councils for advertising revenue.
Murdoch has his own interests that he needs government support for.
Good for the civilly disobedient!
I've taken to tearing down the ubiquitous No Smoking signs whenever I get an opportunity. I've had one out of a church, where it seemed a disgusting insult to parishioners who would never dream of smoking in it..I've found that the sticky signs come away quite easily. Carrying a knife to slide under them speeds their removal.
It's also become the custom since 1 July among some drivers to drive with one's headlights on in full daylight. I do that too (when I can remember - it quite often takes another driver to remind me to switch them on).
I still drink at my local pub, but only ever outside in its garden. The pub is almost dead these days, but I keep going to it.
I'm sure that there are any number of things that can be done, by individuals, with a little bit of imagination.
idlex - what does driving with headlights on during the day mean? What message is being sent out?
SMOKING SHOULD BE BANNED
I HATE ALL SMOKERS, AND THIS SITE DISGUSTES ME.
I WANNA KILL ALL SMOKERS
DIE SMOKERS DIE
Bernie.
It is not the goverment that funds the BBC but us fools that pay a licence fee. However, they do control them. Like everything else that happens in this country - we have no say in what happens. Remember, 60 million population in this country but less than 1% dictates what we have to do. They chose to send our troops out to Iraq claiming to remove a dictator. Now they have forced us to suffer from a Dictatorship. Can anyone answer the question I have asked on other postings I have made regarding how they arrive at a figure of about 1 in 4 people smoke.
Lastly, I would suggest that the Ban Smoking pillock of our society has a brain scan on the NHS to see if he or she has one.
Looks like we have a psycho on this site.
Alun C.
They did not say that they invaded Iraq to remove a dictator but to find and destroy weapons of mass destruction [WMD]. When they did not find any they said it was for 'Regime Change' and their PR machine went into overdrive.
Just someone looking to provoke a reaction. Best ignored.
Joyce. Driving with your headlights on in the daytime used to be a form of protest against the Vietnam war in the USA.
I first encountered it out driving on 1 July, when the very first car that came down my narrow lane, in full sunlight, had its headlights on. I assumed it was some sort of mistake by the driver. But when I got to the end of the lane and found another car with its headlights on, the penny dropped. This was a protest. And it was quite obvious what was being protested.
It made me realise that there were a lot of angry people around. And since I was angry, I turned my headlights on too.
And I hope that psycho's post gets left up. It demonstrates well the hatred that fills anti-smokers. It's a hatred that will come back and hit them in their own faces pretty soon.
Can anyone answer the question I have asked on other postings I have made regarding how they arrive at a figure of about 1 in 4 people smoke. Alun C
It's probably just made up. Most of the numbers you hear about smoking are pure inventions. Read this from Numberwatch.
A lot of constructive comments have been aired on this site, most of us thinking along the same lines, that this curse can be destroyed by a campaign having co-ordination and legal funding. So we need leadership,legal brains,and sufficient funds.This can all be achieved by just a few individuals with determination and a positive approach.So how can it be achieved? Well,for what it's worth, is my proposal:- A meeting should be arranged in a club, somewhere central like Manchester,(bolton maybe) invitations sent to 100 or so landlords/club secretaries,A W Thompson,reps from Forest a d Bolton EN,requestig attendance and a modest donation to start a legal fund, just enough for initial expenses. The agenda would be something like this:- To form a strong working comittee from the guests, To decide on a name for the legal fund, and to open a bank account in that name with the cash so far collected. Our comitte's first task will be to use the fund to contact every licensee in the UK, explaining the aims of the campaign, and supply a wad of leaflets to hand to thier customers, telling them that help is at hand, and asking for a donation- A cheque for say a fiver payable to the fund. I know that cheques are a bit old hat, but this really is an essential part of the plan. I shall explain why in a later comment. This is the only way that we can reach all the people we need to reach. The millions of innocent victims who'se wellfare we have at heart, and since they need us as much as we need them why should they not subscribe? Obviously we would heve our own website just like this one, to keep us up to date and involved. Once the fund starts to swell we could afford to co-opt lawyers on to the comittee to advise us on a host of issues, not least the likely cost of our greatest objective:- A magistrate's guilty verdict against a licensee or a smoker, then WHAM! The apeal court and the jury. So, who is going to start the ball rolling? Well someone had the drive to organise the protest marches, It's not difficult to arrange a meeting and send off a few invitations and we shall soon have all the elements I mentioned :- Leadership, publicity, legal brains and a healthy legal fund. So does all this sound feasable so far? Anything to add? Please let me know, I shall be back soon with the next stage of the plan:- The devious way we manage the funds, and how we start to demolish their house of cards.
In regard to the smoking ban and the effect on traditional public houses. This does not include restaurants or food pubs but small local pubs. Since the ban these pubs have been virtually empty and the fear is that pubs such as these will go out of business and a great British tradition will die.
The government is treating those who smoke as second class citizens having to go outside for a cigarette come rain or shine, especially considering the amount of tax the government gets on smoking products. Smoking is still permitted in bars in the House of Commons, whose members have a freedom of choice denied to the electorate.
It should be a landlord’s right to choose if the majority of their customers and staff want either a smoking or a non smoking pub, it’s the element of choice that has been lost. Many people will simply stay home and smoke, as in Scotland where beer sales have fallen by 11% but smoking itself has increased by 5%.
why don't forest advertise the prime ministers e-mail petition which can be found on the downing street website? This would enable smokers to let thier MP know how they feel like being treated like societies cast outs. This petition is merely asking for the freedom of landlords to choose between having a smoking or non smoking pub.
The Falmouth incidents on Forest main news site, is what I told everyone would happen. Sorry not trying to blow my own trumpet, but it was obvious people would congregate outside pubs, with their drinks. This will lead to all kinds of disorder. All the anti smokers living nearby will soon change their tune, when they can't sleep.
Barnie - you can have my cheque whenever you are ready - have saved a fortune since the ban as it has been too cold for me to sit outside the pub even though I do want to support my local publican. He has provided chairs and tables outside under a covered area which is open both ends but has already had the local authorities round saying that it is not open enough!!
You can have my cheque too Bernie
Sorry if I've missed out any releveant points made by other people's comments but posting at work.
However, one reason for F2C's Judicial Review is that if the government (and parliament) are shown to have created an unreasonable and unjust law, then even if they decide not to change it they and the smoking ban will be further discredited, and particularly so, if during the process of the JR it can also be used to discredit the junk science without which smoking bans would never have been possible.
To continue from my July 11th comment- Thankyou Wendy & carolyn
Managing the fund's bank account:- The days of confidentiality between bank and customer have long gone. All accounts can be accessed by certain gov't dep'ts,but this can easily be overcome. As I said, all donations must be by cheque made payable to the fund.Also, they would all bear the same date and be endorsed with the donors name and address. Our comittee would not deposit the cheques as rhey are recieved, but would leave the account balance constant, and each withdrawal would be matched with the a same deposit, (if we had to pay a lawyer,say £1650 on Aug 20th, then £1650 would be deposited a few days before, and the comittee would hold on to the rest. So whilst everyone knows of the funds existance only the comittee will know it's real potential.
So now, on to the confrontation:-
Once the campaign is well under way,the comittee would select a suitable licenced club, join forces with it's own comittee, and declare it a DESIGNATED SMOKING AREA. then invite the authorities around on the opening night to dish out their fixed penalties, (or arrest the steward).
So,how would they react, knowing full well that the members and staff are protected by our comittee,our lawyers and our fund? Should they dare to slap a penalty on one single member he would refuse to pay the fine and opt to face the magistrates (accompanied by our lawyer of course) I don't know how he would plead, but he was cought red-handed before a club full of witnesses, none of who are going to deny it.
Over to the poor magistrate- He knows full well that a guilty verdict would be suicidal as it would lead them directly to the appeal court and the jury (This remember, is our main objective). On the other hand, how could he find him not guilty? Some dilemma!
So back to the authorities:- What can they do? They could revoke the club's license, but this would be just as suicidal, It would lead them once again to the appeal court. They would just have to concede that we are untouchable and leave us alone, which would of course send a clear message to thousands of other clubs to follow our lead, each club having the same level of protection as the first.
I see no need to speculate any further.Their house of cards would be, by this stage, crumbling about their ears.
So, can anyone see any flaws in this proposal?Have I missed any vital points? If not,what are we waiting for? We have nothing to lose!
With respect to all posters here, a great deal of thought and discussion has gone into the JR. The analysis by our law student in relation to the ACT is quite correct, however the regulations are open to variation without reference to Parliament. The Secretary of State has the power to amend the regulations. It has been evident at every stage of our campaign that efforts have been made to subvert we are doing, which is why, only a trusted few are fully privy to the detail and strategy of Freedom to Choose. Rest assured with a brilliant lawyer and equally good QC every conceivable option and avenue has been looked at. Nothing has been ruled out or ruled in. FOREST had the opportunity to assist F2C but instead wanted to 'assimilate' us. Something the membership did not and still do not want. FOREST sadly have shown they are no longer up for a fight as evidenced by Simon's other blog.www,freedom2choose.co.uk are.
Robert Feal-Martinez, Chairman of F2C
I went out last saturday just a week after the ban came in I notice that people was also taking drinks out side but if you leave your drink inside you must have some one you trust to watch your drink the reason why i'am saying this is because a few people who left there drinks had there drinks spiked so you must take your drink with you
the pub i always go into is a old fashion sort of pub where the young and old meet and we also have a singer on and the pub starts to sing and a good natter but i did notice some of the older people who just was not there they is a old man who lost his wife some years ago and he is 89 and still likes to come out for a drink and a smoke but he did not come also another old man who is in a wheelchair who is about 73 who comes in for a drink and a smoke was also not in i saw them this week and ask why they both gave me the same anwers
1, was they did not want to be a burden to anyone when they want to go outside for a smoke the gentleman at 89 does not like asking people to take a chair outside ever time he wants a smoke the other gentleman said the also in this pub you have to stand on the pavement and like they said if a fight broke out they could not get out of the way and would get hurt the gentle man at89 said i fought for this country for Freedom now like a lot of pensioners are being treated by this government like we are lepards he said i have smoke since i was 15 years old and smoking has not affected my hearth in any way so i will stay at home and wait for god to take me because that what this government want's me to do
Emma, the cruel, cold hearted way the elderly are being treated and ignored in this situation is beyond belief! What the hell sort of country are we now living in.There is no excuse for this. This just cannot go on.
What sort of country?
A healthist state.
Very similar to a fascist state.
Gordon Brown really ought to sort out the priorities of this country.
I hear every day of more and more people - well educated, hard-working, decent, generous, socially-conscious people - exactly the sort of people that GB says he wants more of, upping sticks and moving abroad because they simply can't bear to see what's happening to the tolerant country they loved, and cannot stand to be treated as though they are imbeciles and 'unclean'.
All that will be left are the morons who cannot think for themselves and want to be told what to do, and those who seek to control them.
I don't fancy any government's chances of building a 'great nation' out of that population.
Don't the words 'buidling a tolerant and inclusive society', grate?
Perhaps the word 'denormalisation' should be overused, said in a sarcastic voice so to disempower the people using it?
I have to amend the latter part of my July 13th comment as follows- From "I don't know which way he would plead" should now read-He must plead not guilty to retain his option of an appeal.
So the magistrates hands are tied. He cannot return a guilty verdict as this would lead to a disastrous appeal hearing, and by returning a not guilty verdict, since our member member was caught red-handed and has nothing to support his plea, the magistrate has effectively overturned the legislation and conceded that no offence has been commited.
Let's now consider the liability of a manager to prevent his customers from smoking on the premises- Who then is the manager? The secretary is the license holder, but he is not a member, only a paid employee of the members with no powers to prevent his employers from smoking, especially as the law has ruled that can do so.The same applies to the steward,so what about the chaiman? Easy, There doesn't have to be a chairman.
Back to the authorities, How do they handle all this? Quite simply they don't. They would have envisaged this nightmare scenario and would not have issued the penalty in the first place.
As it is now established that our club is untouchable, the path is clear for thousands of similar clubs to follow our lead,provided that our campaign is there to support them.
In response to a post earlier in the thread that I think was posted by Andrew...? You ask wheher people who dislike smokers and give them grief could be prosecuted under racial abuse laws. The answer is no, smoking is not a race. However, everyone in this country is protected by the freedom from harassment act if a hate campaign were mounted against them by an individual and also by general criminal law for example if they were threatened that would be assault and they could report the person to the police.
To Robert Feal Martinez - I am very pleased to see the Judicial Review in process and hope very much that the judge will make a declaration of incompatibility with the human rights act. I am concerned that the secretary of state will just let the declaration stand and take no action to amend the Health Act as is his right to decide though. Are Freedom To Choose considering taking the legal battle further and going to the ECJ on the basis of Competition law if this is the case? It may be a worthwhile step if no practical results are achieved at an earlier stage as there is precedent to show the ECJ can force the UK Parliament to alter its legislation.