15
JUN

Landmark Legal Challenge To National UK Ban On Smoking Now Imminent

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Proposed Judicial Review in relation to the Health Act 2006 (“the HA”) and the Smoke-free (Exemptions and Vehicles) Regulations 2007 (“the Regulations”).

Freedom 2 Choose is an unfunded volunteer group of licensees and members of the public operating on donations. It is important to understand that their campaign is not about the promotion of smoking; many of the members are not and have never been smokers. Fundamentally, F2C are about fighting against injustice and erosion of freedom and personal liberties. Freedom 2 Choose has a petition of 16,500 signatures and is still growing in number with online support from public hitting about 35,000 approximately.

A pre-claim letter before action was sent on 12th June 2007 by the solicitor on behalf of Freedom2choose to The Attorney General and The Secretary of State for Health referring to a proposed judicial review of the compatibility of certain Convention rights guaranteed by the Human Rights Act 1998 (“HRA”), namely:

a) Article 1 of the First Protocol as they involve a restriction on the peaceful enjoyment of possessions. The provisions amount to a control on the use of property. Those restrictions are disproportionate.

b) Article 8 by a failure to respect the right to privacy of all those individuals who wish to make use of the facilities of public houses and social and members clubs and to smoke there and constitutes an infringement of their rights under Article 8(1) ECHR and that restriction is not justifiable. Here we rely on the decision of the Court of Appeal in R (Countryside Alliance) v Attorney General [2006] (legal challenge against fox hunting), which raises identical human rights issues. This case is currently awaiting to be heard by the House of Lords.
In simple terms, our various client groups which Freedom2Choose represent, wish to live their personal lives as they choose without interference from the State.


c) The interpretation or validity of regulation 11 of the Regulations prohibiting smoking in taxis for hire to the public. It is argued that the Regulations are unclear, ambiguous and contrary to the intention of Parliament and therefore must:
either be interpreted so that it does not prohibit the driver of the vehicle from smoking at a time when the vehicle is not, in fact, carrying members of the public or: ,if it is not capable of being so interpreted, then the Regulation is incompatible with Article 8 ECHR and Article 1 of the First Protocol.

Time Frame for Government Response to Letter before Action

We have requested a response with 14 days. In the absence of an adequate response, we shall proceed with a full legal challenge in the High Court on grounds of fundament infringement of these rights prior to 1st July 2007. This will be a legal test case with significant wider public interest.

For further information, please contact:

Jaswinder Gill
Human Rights Lawyer (0208 774 9570) Jaswinder.Gill@ormerods.co.uk
Partner
Ormerods Solicitors
15.06.07

Jun 15, 2007 2:44 pm   Email to a Friend

Comments

Rob Hodsdon on Jul 31, 2007 1:29 pm

I have always enjoyed a pint and a cigarette in the evenings, after a hard day it gave me a lot of satisfaction, also my wife enjoys coming out with me even though she had to give up drink five years ago, now when she comes out she cant smoke or drink,
loads of fun for her, this ban is a total infringement on our rights

N Jones on Jul 09, 2007 8:41 pm

Good luck Freedom2choose.co.uk. . If anyone is reading this please join our fight and sign the petition online to get the smoking ban amended in the UK.

irene on Jul 01, 2007 4:49 pm

there is no reason why extractor fans cant be put into sections of pubs & restraunts. the government dont seem to realise the billions they will loose in tax if people gave up. i would like to know what they would tax to compensate.

BRITISH PROTESTANT ASSOC on Jul 01, 2007 3:51 pm

We are starting up but maybe our ideas will seem a little too severe for some people.These people are trying to take over British society in more ways than one and we want them treated as Terrorists,and the only thing they understand is force.We want them out of Britain but we want the Labour party arrested for treason and tried in a Protestant British court.
B.P.A.

sheridan on Jun 26, 2007 8:20 pm

The proposed legislation is draconian and oppressive.
Theauthorities has bowed to the pressure of the anti smoking brigade by imposing a blanket smoking ban in all public areas. Why?. If I wish to smoke in a pub or club with like minded people why should I be denied that chose.
Alternatively if people decide to frequent smoke free premises that is their choice also.
A child of 5 could work out the solution to the problem. Namely ;
Have ENCLOSED adult only smoking areas and non smoking areas so people could chose.
I can hear the anti smoking brigade (ASB) saying 'Well what about the employees they will be taken in passive smoke'. Answer 'Employ those who smoke in smoking areas'. Quite simple really.
What right have the authorities for example to deny people in psychiatric hospitals or elderly peoples homes the right to smoke in the privacy of their own room should they choose to do so.
Why should a patient in hospital not be permitted to continue smoking in enclosed but well ventilated smoking rooms where it does not impact on anybody else.
Hospital stay can be stressful for people at the best of times which is significantly compounded if they are prevented from smoking. If the patient is incapacitated where are earth are they supposed to go.
'Outside' some of you may say.
Well unfortunately patients, even if they were able to do so, are not permitted to smoke in hospital premises well away from other patients outside in the open air.
The authorities are not seeking to prevent Motorist from using their cars that travel near hospitals which create significantly more air pollution than outdoor cigarette smoke.

What right have people to tell me not to smoke if my choosing to do so does not impact on other people. The ban is more likely to mean those who used to enjoy a cigerette in a pub or club will instead stay at home within the confines of the home. This may serve to encourage younger people to smoke whilst polluting the air of the very people that the ban is seeking to protect.
The smoking ban in this respect is misguided and it is questionable whether it will reduce the numbers of cigerette smokers.
The proposed legislation is both oppressive and patronising because it makes the assumption that the the authorities know best and can thereby impose their will against the majority who oppose the ban.

When I started smoking there were no health warnings on cigerette packets and I remember being informed that smoking was good for you. The Government seemed happy enough then to take the massive extra tax revenue generated from smokers at that time. Yet it would not surprise me in a few years time that the state will refuse to treat these very people for any illness associated with smoking.
If the authorities want to deter smoking it should provide more information to young people and dissuade people from getting addicted in the first place. This will reduce peer pressure which is often a major reason why people start smoking. A ban in enclosed public places is not the answer for the reason I have given and is represive.
I am not promoting smoking but feel strongly that people should make their own informed decisions and have the freedom to choose instead of being criminalised

Colin Grainger on Jun 23, 2007 10:11 am

Thank you Ed Turner and D. Simmonds for your support.

Ed, I am in Scotland where the EHO's (Environmental Health Officers) dress just like you and I. They are required to identify themselves when they issue you with an FPN (Fixed Penalty Notice). They are also empowered to carry out covert and overt surveillance. This is all very nice, but in some circumstances may be terrifying. Can you imagine if you are a young lady walking home from a night out, only to discover that two guys (they hunt in packs here, for "protection") are following you? If you refuse to give them your name and address, they are allowed to follow you to your car (to note down the registration number) and they can follow you home so that they can send your FPN through the post.

Most of the UK bans are similar. They are modeled on the Irish ban. All EHO's have similar powers. Welcome to Soviet United Kingdom. We have managed to re-introduce the Stasi.

Deep joy.


If you want to get involved, there are several thousand pubs planning to defy the law on July 1st. For details visit www.freedom2choose.co.uk or www.forces.org There are also 5 separate legal challenges to the legislation, and the opposition are scared silly.

The fat lady aint singin' just yet....

Ed. Turner on Jun 23, 2007 8:11 am

my friends and I wholly support your crusade of freedom to choose.
We have been unable to find out how the council officers who have to impose fines on "illegal smoking" will be dressed i.e. will they have a uniform (such as traffic wardens) or will they be dressed normally and just produce a badge when catching a smoker and them inflicting a £50 fine

mandy vincent on Jun 20, 2007 5:09 pm

No-one was ever denied the freedom to open smokefree venues, good luck to freedom2choose.co.uk

D. Simmonds on Jun 19, 2007 7:19 pm

Non-smokers have the right to socialise in premises where the owner is willing to accomodate them. To deny Smokers equal rights is to deny them a social life permanently. Surely reasonable accomodation within the premises is the answer even if seperation is required.

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