Everyone has a right. This includes the right to eat whatever food one wants to eat in peace. However, the exercise of such license may infringe on the rights of other persons. To resolve this issue, the courts of law will interpret the laws. For example, a man wants to kiss a beautiful woman watching the Big Ben clock. The woman refuses to be kissed. There is now a conflict of rights here.
Further, the employees and the customers of the public place or workplace must always be protected. Many nonsmokers hate the smell of second-hand smoke. The U.S. Surgeon General issued his famous Report that smoking causes disease and death in 1964. The following paragraphs explain the reasons for the validity of the ‘smoke-free public place and work workplace.’
House of Lords Committee on the Constitutional Reform Bill, written evidence from the Secretary of State for Constitutional Affairs and Lord Chancellor 14(2004), stated that the rule of law is the focus of democracy in the U.K. as well as the shared values of E.U. member states. For, the rule of law creates an atmosphere of transparency, fairness and predictability in the performance of business and contracts as well as personal safety, protection of the individual and property. The Judiciary safeguards the rights of individuals are protected. The E.U., where the U.K. is a member state, is a supranational organization where treaties are considered law. The decisions of the European Court of Justice will prevail if it conflicts with the decisions handed down by the member states’ courts of justice.
For, the GREEN PAPER issued by the E.U. Commission entitled Towards a Europe free from Tobacco Smoke: Policy Options at E.U. Level states the legal framework on Environmental Tobacco Smoke exposure and its relation to health considerations.The reports declare that passive smoking(inhaling the smoke exhaled by smokers) can cause respiratory diseases, including lung cancer. Also, second-hand smoke (SHS) is a significant source of exacerbation for people who have asthma. This chronic obstructive pulmonary disease includes lung cancer, allergies, and other related disorders, which makes them live a secluded life. Also, SHS is dangerous for young children and infants, as well as pregnant women. For it has been proven to cause lower birth weight, pre-birth death, and forced births of children less than nine months. The green paper bans smoking in all public places and workplaces, including bars and restaurants.
Furthermore, this smoking ban has already introduced in Ireland in March of 2004 and Scotland in March of 2006. The smoking ban took effect in Northern Ireland, England, and Wales recently in the summer of 2007. This smoking ban covers only enclosed public places like restaurants, bars, and includes ALL workplaces.The U.K.’s Health Act of 2006, chapter 28 Sec 55, states that a person caught smoking in a smoke-free place, if convicted, shall be levied a fine of £ 100. Also, the employers can not claim that there is a ‘scientific uncertainty’ that the employees of the company will be at risk if they are exposed to Environmental Tobacco Smoke (ETS). For, volumes of literature show the stark reality that is polluting smoking and ETS are dangerous to a person’s health. Thus, the employer can not claim that exposing the employees to SHS would cause health problems, thereby winning his case in court.
The employer is Compulsorily instructed by law to assess if such smoking is usual in their place of business. And, the employers are required to see that such secondary smoke will cause health problems to the company employees. This includes employees working in bars and restaurants. The basis for a guilty verdict is for the employer to just simply foresee that there will be some kind of health risk that SHS causes to the workplace employees because implementing a healthy workplace is the primary duty of the employer. Also, the test to determine what the reasonably functional healthy working condition must be had already been settled. The Edwards v National Coal Board case decision was that the health risk that the employees have to work with must be equated to the ‘sacrifice’ involved. The sacrifice here means the trouble, time, and money that the employer has to exert that is necessary to lessen the probability of the employees falling ill from work-related illnesses. Failure to do is a breach of the employment contract based on the HSWA1971 s2(1). Also, the smoke-free workplace is required under Regulation 3 of the Management of Health and Safety at Work Regulation 1999. The regulation specifically states that all employers must make a suitable and sufficient assessment of the risks to the health and safety of their employees to which they are exposed while they are at work.
This includes an assessment of the risks to the health and safety of persons not in their employment but arising from doing business with the company. This consists of the customers and other visitors that frequent the bars, restaurants, schools, and other public places. Thus, the employer must use their assessment of health risks as well as hazard risks to put into place the required safety measures that will decrease the possibility of falling victims of health risks. This requirement falls under Part II of the Fire Precautions (Workplace) regulations of 1977. To reiterate, the legal issue on the relation of work and leisure to the corresponding degree of exposure to Environmental Tobacco Smoke or second-hand smoke. This case stated that health risk includes the possibility of danger and not just actual threat. Also, the employee who will file a claim against the company does not have to prove that the employer had violated his duty to create a healthy work environment that caused the complaining employee to be exposed to Environmental Tobacco Smoke. Further, the employee does not have to prove that the Environmental Tobacco Smoke was the main cause of his unhealthy condition. This occurred in the where the employee filed for a claim for pneumoconiosis, which was acquired due to prevailing unhealthy work conditions. The employee claimant had proven that the breach of duty present was an influential factor that caused him to be sick.
Furthermore, the no-smoking law is designed to protect the public peace by prohibiting SHS, and other forms of toxicomania must be distinguished from a law that prohibited activity without reference to individual conduct or any real participation in a breach of public peace. The law represents a relationship between the state and its residents. This runs in contradiction with the right of the individual to smoke anywhere he or she wants. Along this line, some people argue that too many laws like the no-smoking policy irritates people .
Many U.K. establishments have complied with the no smoking in public places and workplaces regulation entitled Statutory Instrument 2006 No. 3368 The Smoke –free (Premises and Enforcement) Regulations 2006. In fact, ‘data was obtained from 88,899 inspections, which includes 1,090 hotels, 6,783 restaurants, and 9,568 licensed premises. Compliance officers found that 97 per cent of premises met the requirement to prohibit smoking in enclosed premises and 79 per cent displayed the correct no-smoking signage. In smoke-free cars, enforcement was even higher, with estimates of 98% and 84% respectively. “ The proof is shown below, and the graph appendix shows that this is valid.. For the WHO, shows that tobacco smoke is the biggest contributor to the ill health of a nation.
Source: WHO’s Global Burden of Disease Study 2004
The employer’s right to privacy to allow smoking in the workplace and enclosed public places like restaurants will violate the smoke-free regulation.The right to privacy and the right to smoke, which are personal rights, is not absolute. Because the English Tort Law has declined to recognize that invasion of personal privacy is an independent tort. Also, the Court of Appeals affirmed in the infamous case of Kay v. Roberson that the English Law on the right to privacy is not absolute. Likewise, this new law on free smoking that protects the public’s Health is different from other laws that involve a person’s violation of the law on public peace. Public refers to a person’s right to do what he or she wants in public, provided it does not violate the rights of others.
In the case of Ms. Margaret DelaHunty, she filed a case against two smoke manufacturers for her addictiveness to cigarettes resulted in her having cancers. The court decided that her cancer was contributed to by her willingness to smoke several cigarettes even though she knew that cigarette smoking was dangerous to her Health. This case was filed in the appeals court. She had already lost her case in the lower court and was raising the issue a court level higher. The judge decided against her favor and threw out of the courtroom her appeal. Also, this court found that she had admitted that she already had cancer long before she smoked the products of these two cigarette companies, for she was already addicted to a prior cigarette brand before shifting to the smoking products of these two companies being charged in courts. She stated that her cancer appeared after she had been smoking cigarettes of a former brand . This case only shows that she willingly contributed to cancer because she did not heed the warning printed on each cigarette box, stating that “the surgeon says that smoking is dangerous to your health.”
In a recent June 2004 EU Case decision stated that ” Particularly if it bans the promotion of tobacco products for oral use pursuant to Article 8 of Directive 2001/37 on the approximation of the Member’s rules , regulations and administrative provisions States concerning the manufacture, presentation, and sale of tobacco products constitutes a restriction referred to in Articles 28 EC and 29 EC, it is justified on the grounds of the protection of human health, and cannot, therefore, be regarded as having been adopted in breach of the provisions of those articles. This decision is in line with the results of the studies performed by the International Cancer Research Agency, oral tobacco produces especially large quantities of carcinogenic substances; … these new products cause cancer…’
The above data shows that the right of the individual to smoke in public places will be relegated to the backseat. For, the law that prohibits smoking in public places covers the entire EU population. The law on smoke-free public places and work environments are primarily focused on keeping the whole population healthy. For a healthy workforce will make the economy run faster and better as compared to a smoke –infested employee who has contracted lung disease. Also, the right to privacy is not absolute when the public’s welfare is at stake. The case of Ms. Margaret Delahunt shows that she had willingly accepted the risk that she would be a future victim of cancer if she smokes a cigarette or two. She read the warnings on the cigarette boxes stating the danger that smoking would bring to her and went on smoking. Thus, she should not now file a case stating that two cigarette companies will pay her for her lung cancer. Also, the EU case above closes the issue. The Green Paper discussed above shows that the EU Commission’s paper Towards a Europe free from Tobacco Smoke: Policy Options at EU Level states the legal framework on Environmental Tobacco Smoke exposure, and its relation to health considerations is a major contributory factor to cancers on people who do not smoke. For many of these people inhaled their smoke from a co-worker in a tight air-conditioned workplace. Also, second-hand smoke can be inhaled in public places like air-conditioned trains and air-conditioned restaurants, hotels, and the like.
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Table Of Cases
Case C-434/02. European Court reports 2004 Page I-11825
- Constitutional Court of the Slovak Republic, Decision II. US 94/95, 13 December 1995, (1995) 3 Bulletin on Constitutional Case-Law 34.
- Hughes v Lord Advocate  Appeals Cases 837).
- Wilsons & Clyde Coal Co Ltd v English  Appeals Cases 57). Section 2 of the Health and Safety at Work Act 1974 (HSWA)
- Edwards v National Coal Board ( 1, All England Law Reports 743)
- Court of Appeal in R v The Board of Trustees of the Science Museum ( 3, All England Law Reports 853)
- Constitutional Court of the Slovak Republic, Decision II. US 94/95, 13 December 1995, (1995) 3 Bulletin on Constitutional Case-Law 34.
- Notably by D. J. Serpp in his important article “‘English Judicial Recognition of a Right to Privacy'”, ( 1983) 3 OJLS 325; also by myself, “‘Should there be a Law to Protect Rights of Personal Privacy?'”, ( 1996) 5 EHRLR 450.
- [ 1991] FSR 62 Bonnington Castings v. WardlawAppeals Cases 613
- Appeal No. 472/2004 Delahunty vs Player & Wills (Ireland) Ltd and Gallaher (Dublin) Ltd. Irish Court of Appeals. ( 1 IR 304,  IESC 21; From Supreme Court of Ireland Decisions