Your freedom, his choice
Monday, July 12, 2010 Thanks to Peter Thurgood for drawing my attention to Nick Clegg's latest contribution to the Your Freedom project.
Nice to know there are some freedoms that have already been ruled out by the new Coalition Government - including the freedom to smoke in well-ventilated smoking rooms.
Amusing too that the deputy prime minister has chosen to utter the words "death penalty" and "smoking ban" in the same sentence, as if the two are inextricably linked.
What a plonker.
PS. Although the video above can also be found on YouTube HERE, comments have been disabled. I wonder why?
Simon Clark
Just seen the front page headline in today's Times: 'Clegg the executioner'. What is it with Nick Clegg and the death penalty? The death of the great British pub, perhaps?
Simon Clark
Great post by Dick Puddlecote: The Great Repeal Swindle. Must read. Ditto Leg-iron HERE.
Reader Comments (63)
Mr A -
Re your:
"something, somewhere is going on......................."
Well, THAT's what some of the 'potty-conspiracy-theorists' (not MY term, by the way) have been saying for years.
All this bloody nonsense is just ONE piece of a Global Jigsaw.
Just step back a few paces, and the rather nasty picture begins to emerge.
Welcome to the Post-Democratic Era, People !
Don't worry, though: you will STILL be able to vote on all the 'Pop Idol' derivatives that continue to grace our culture, and which shall undoubtedly do so for years to come.
They never had THAT in East Germany under nasty Erich Honecker....................
(Though they DID have 'elections', as I recall)
Well......letter sent via Writetothem.com. Let's see what happens.
Peter T -
Re:
"they will not start screaming just because one person lights up."
Problem is, Peter, what does Mr Landlord do when it's Mr Rabid Anti-Smoker who does the screaming ?
Whatever its intention, THIS is - in part at least - the EFFECT of the Act.
Which is why middle-aged women get 'thrown' from railway platforms.......................
(Remember that one ?)
Hate to say it, Mate - but it looks as though Cameron has been Nicked.
Well and truly.................................
Peter Thurgood wrote, "If the smoker refuses to stop, the only obligation of the landlord is to call the police, NOTHING ELSE. If they have complied with this, they are within their rights and CANNOT be fined."
Peter, are you sure on this? Some American laws have been phrased in a way that might make you THINK you have to call the police but upon more careful reading you realize that it is merely offered as an option that an owner MAY do if the person continues smoking.
And while my memory may be wrong, I think the suggestion to call the police at that point further indicated that the complaint would be for trespassing (i.e. remaining in the pub after you've been asked to leave) rather than smoking... which would seem to indicate that there's a weakness involved in simply calling about smoking. If indeed there's some legal reason why the complaint needs to be trespassing then it's clearly up to the owner's discretion: there are many cases where someone might ask someone to leave one's property without there being any formal legal obligation to call the police if the person refuses.
- MJM
As with Martin and Mr A, I am also extremely suspicious of the speed and worldwide enthusiasm for smoking bans. There is definitely something going on here which we - the great unwashed - cannot see. I wonder whether Simon, moving in the rarified cicles that he does, has heard anything about this?
I have mentioned on more than one occasion that my two local pubs have stopped displaying ‘no smoking’ signs. I could not understand why they have stopped since the Act states specifically that it is an offence not to display the signs. But read the following – direct quotations from the Health Act 2006:-
“It is the duty of any person who occupies or is concerned in the management
of smoke-free premises to make sure that no-smoking signs complying with
the requirements of this section are displayed in those premises in accordance
with the requirements of this section.”
“A person who fails to comply with the duty in subsection (1), or any
corresponding duty in regulations under subsection (2), commits an offence.”
IT IS A DEFENCE IF HE DOES NOT DISPLAY NOTICES (my insert)
“that he did not know, and could not reasonably have been expected to
know, that no-smoking signs complying with the requirements of this
section were not being displayed in accordance with the requirements
of this section.”
“that on other grounds it was reasonable for him not to comply with the
duty.”
We can see now why my local pubs have stopped displaying the signs:
1. The publican simply has to say that every time he puts up the signs, someone tears them down. How is he to know that someone has torn them down, unless he has someone constantly on guard? Unreasonable.
2. that everyone knows now, after three years, that smoking is banned in pubs. Therefore there is no longer any need to display the signs.
After three years, everyone knows, and that is a defence. Great!
Thus we see how cleverly the people who originally created the Act covered every contingency.
We must now move on to the ‘duties’ of publicans as regards ‘allowing’ smoking.
Here is what the Health Act 2006 says (these are extracts – the full text is complex):-
“Offence of failing to prevent smoking in smoke-free place
(1) It is the duty of any person who controls or is concerned in the management of
smoke-free premises to cause a person smoking there to stop smoking.
A person who fails to comply with the duty in subsection (1) commits an offence.”
Note the words – ‘cause ….to stop smoking’ – what on earth does that mean?
The ban came into existence with that phrase in the law. Why did no MP ask in the House what that phrase meant? Why did no MP ask why that particular clause did not simply say, “It is the duty of any person……to stop a person who is smoking from doing so”. What is the reason for the strange, roundabout way of expressing it? The answer, ‘of course’ (as Clegg would say), is that no MP had actually observed it. Nobody knew.
It is scandalous.
Just a little more from the Act:-
FOR PUBLICANS (my insert)
“It is a defence for a person charged with an offence to
show—
(a) that he took reasonable steps to cause the person in question to stop
smoking, or
(b) that he did not know, and could not reasonably have been expected to
know, that the person in question was smoking, or
(c) that on other grounds it was reasonable for him not to comply with the
duty.
If a person charged with an offence under this section relies on a defence in
subsection (5), and evidence is adduced which is sufficient to raise an issue
with respect to that defence, the court must assume that the defence is satisfied
unless the prosecution proves beyond reasonable doubt that it is not.”
With regard to this section, we must again observe the use of the phrase, “to CAUSE the person….to stop smoking”. Reading this bit in conjunction with the previous injunction to ‘cause’ a person to stop smoking, there is only one real interpretation, and that is that a publican is required to use FORCE to make a person who is smoking to stop.
But note the last paragraph (I honestly believe that the Civil Servants who wrote this Act must have been giggling their head off and falling about laughing when they wrote this last paragraph). Re-phrasing the wording, it says:-
“If the prosecution (assuming that a publican did not FORCE a smoker to stop) can ‘raise an issue………’ For Heavens sake! What on earth does ‘raise an issue mean in English law? Please stop laughing…” If the prosecution can ‘raise an issue’, then the prosecution’s case, if it is reasonable, must be accepted! Thus we see that the paragraph actually states THE OPPOSITE of what it seems to be saying! If I was the person who wrote that paragraph, I would be thinking, “Wow! How on earth have I got away with it? Great!”
One last thing if I may (I know that I have gone on a bit). Here is a copy of a little post that I made on the Your Freedom thing:-
Do you know what would be a really good idea? In view of Clegg's decision not to take any notice of suggestions which he does not like (such as the restoration of capital punishment and repeal/amend the smoking ban), maybe the decision as to what ideas are most popular and most worthy should be taken out of the Government’s hands. It is true that the Government instigated the Great Repeal Idea, but that does not mean that the Government have a right to censor it as they feel.
My suggestion would be appoint a panel composed of Members of the House of Lords to examine the ideas and decide upon which ideas should be brought before parliament for debate. It makes no sense for the Deputy Prime Minister to discount whatever ideas he feels like discounting. Having asked the People what laws they wish to see repealed or amended, it makes no sense arbitrarily to exclude those which any particular Minister, MP or group of MPs (the parties), just feels like excluding. For once, the People have had a chance to speak. It would be the most undemocratic thing to deny the People their 'day in court', so to speak.
I am sorry to go on so, but these matters are complex. But I agree with many other posters here. One way or another, if the Gov does not amend the ban, then civil disobedience is going to be the only way. But there is a rub – I am damned if I am going to risk my own freedom in order to bail out the pubs who will not help themselves. NoWay! The lead has to come from the small pubs section. In this country, we lack a ‘small bars’ scenario, such as they have in Spain – little bars which provide for local people. Such a sector cannot exist with a smoking ban. There is a problem with organising civil disobedience, and that is CONSPIRACY – a difficult thing.
Part 1 of Chapter 28 of the Health Act 2006 was a bodged job. It is riddled with uncertainties. THAT is why the powers-that-be do not want the ban to be re-examined. We must try as best we can to ensure that it is re-examined.
I intend to do my bit to chip away at the irrationality of the Act by asking Clegg and others one simple, rational question, which deserves one simple, rational response:
"Why should smoking be banned in PRIVATE clubs ?"
That's all.
Junican – You bring up a good idea and a valid point.
Last year I wrote to Lord Stoddart of Swindon through the ‘theyworkforyou’ website, and I think it would be worthwhile asking him why members of the Lords can’t scrutinize the Freedom Website and decide which laws could be debated with regard to being repealed or amended –. He is firmly against the ban, and a good ally. I shall be asking him to write to Nick Clegg on this subject.
Looking at the act above one thing does stand out.
“It is a defence for a person charged with an offence to
show—
(a) that he took reasonable steps to cause the person in question to stop
smoking, or
Doesn’t that simply mean if you told someone to stop smoking then the landlord had taken sufficiently reasonable steps to comply with the law, therefore how can he be prosecuted?
Where did Nick Hogan go wrong then?
Okay, I take it back. I apologise publicly and profusely and eat double servings of humble pie in front of my peers.
I've just heard back from my MP. The reason I hadn't heard from him for a while was because he took the time to respond properly on headed note-paper rather than just banging off an email. Anyway, he said he'd be "delighted" to sign the EDM and thought a review was long overdue. He hasn't signed yet but that is undoubtedly a good sign - besides, are they on holiday at the moment? Whatever, I take back all my comments about Blue Labour etc - sometimes they really can surprise you (and in a good way, too!).
I wouldn't start celebrating too quickly if I were you Mr A. Haven't you heard about the latest initiative to "reform or abolition" Early Day Motions?
Read it here
"Doesn’t that simply mean if you told someone to stop smoking then the landlord had taken sufficiently reasonable steps to comply with the law, therefore how can he be prosecuted?"
Read my earlier post Chris, this is exactly what I have been saying. And this is why I say we need to educate the publicans to their rights regarding this riddiculous law.
I do not know of one single publican or restauraeur that knows the true definition of this law; they have all been led down the preverbial garden path by the government on this, leading them to believe that they will lose everything if just one person is seen smoking on their premises.
I repeat THEY WILL NOT!
I have reading with great interest all your posts, as I check the website regularly for any hope that this grossly unreasonable and unfair Act will be amended or revoked.
There are two issues which really rankle with me:
1. Why on earth did the Publicans and Restauranteurs never come together and challenge such a law which would eventually break them?
2. Why is the Act so important that all debate is stiffled at every turn?
We have the technololgy to effectively wipe out mankind tomorrow but I can't have a cigarette with my drink in the comfort of my Local because of the, so called, dangers of second hand smoke!
I'm beginning to agree with some the authors on this site that there must be another agenda but for the life of me I can't see what it might be.
The eventual closure of all establishments selling alcohol - another ban?
To prevent the gathering of the people where they can discuss issues in private?
Using your website is almost the only chance I have of sharing my views and concerns - but I know it will not be private - I'm sure all this is monitored.
However, I needed to join in with some of my views - I look forward to reading more of yours.
KInd regards...
Pensioner Ellie
@ Chris
Nick Hogan made two errors:
1. He put up a notice which, if effect, said, “You can smoke if you want to, but it is at your own risk”. By saying ‘you can smoke if you want to’, even though he then qualified that statement, he was saying IN WRITING (!) that he would not fulfil his legal duty to ‘cause a person to stop smoking’.
2. There were ashtrays on the bar and the tables. What does that say about his intention to ‘cause people to stop smoking’? Plates or saucers would have sufficed.
@ Peter T
As we know, Peter, the devil is in the detail. “…that he took reasonable steps to cause the person to stop smoking”. How else can this phrase be interpreted other than TO MAKE the person stop smoking? If we add the words ‘in the premises’, there is an implication that ‘a reasonable step’ would be to make the person leave the premises, and then to bar them ‘sine die’ ‘pour encourage les autres’ (Eh..not often one gets to use a bit of latin and a bit of French side by side, is it?) If you were the publican with a potential fine of £5000, how would you interpret it?
But you are quite right – no one, prior to the Act seems to have given the matter much thought. But this is not surprising since the Gov had said that they would not ban smoking in ‘wet led’ pubs and private clubs. Also, I believe that there had been some sort of ‘informal advice’ from..was it the Health & Safety Exec?... which suggested that publicans would only be required to put up the notices. (I am not sure about that.)
I would have thought that, before the Act, a barrister would have advised that publicans would have little to fear. However, after the Act was changing at the last minute and the full implications became clearer, I would imagine that a barrister would advise considerable caution. By then, of course, it was too late for publicans to mount any sort of campaign.
And so we see that the whole business of the way in which the ban was introduced becomes more and more heinous and undemocratic day by day.