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Smoking ban (Read 209602 times)
Belinda
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Re: Smoking ban
Reply #120 - Mar 22nd, 2006 at 2:36am
 
my thoughts are, what are the checks and balances on the councils' powers in making laws/regulations etc?

Does this alter the purpose of their employment beyond any reasonable recognition? For example, why are Environmental Health staff involved in enforcing legislation that is meant to be on personal health grounds, not those of environmental health (health and safety in the workplace).

Is there any limit to their 'lawmaking' powers? And of course why are smokers paying taxes for these people to enforce laws against them? The community are their employers and it should not be assumed that people in positions of authority can suddenly be given additional powers at public expense.

I know in this case we are talking about a public employer's rights against its employees, and not a council's rights in relation to local residents. However in the matter of lighting up at home while awaiting council care staff etc, Andy Kerr insisted that the legislation was not designed to reach into people's homes. But what does that then matter if councils (and other public bodies as employers) have unlimited powers to stop people from smoking and the Executive is doing nothing to encourage restraint. More seriously, is it clear to the public what is legislation and what is advice without any legal force?

As one of our Irish friends has pointed out in an earlier post, this is taxation without representation.



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Belinda
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Re: Smoking ban
Reply #121 - Mar 23rd, 2006 at 3:45pm
 
Michael says (lifted from other thread)

forget smoking being good or bad. is it not our right to smoke if we choose to . people have been smoking for centuries in most places . people have the right to choice so shouldnt the landlords of bars, clubs and resteraunts and bussinesses be able to say yes or no 
there is also a plan to ban smoking from parks aswell . THE question at hand is there anyway to fight this without violance I think there must be some sort of cival or human law to for[ lack of a better] word stop this . IT MUST BE violating either our human or cival rights. i personally think a lot of people are going to get hurt through this ...


I think this is a very important point, about how people can state that their rights are being violated since the goal posts defining our rights appear to be moving. This may be something on which we have to consult bodies like Liberty.
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highlander
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Re: Smoking ban
Reply #122 - Mar 25th, 2006 at 12:31am
 
Belinda, thought this may be of interest.

From Here

http://www.clearingtheairscotland.com/faqs/qanda.html#outdoors

We get this quote
"Outdoors and shelters

Does the ban extend to outdoors? Have heard that playgrounds and parks may be affected.

Smoking is prohibited by law only in wholly or substantially enclosed public places. Open air playgrounds and parks will therefore not be affected. Employers, including local authorities and the NHS can, however, determine whether their smoke-free policies extend to external areas, but they will not be subject to the law. We know, for example, that second hand smoke is particularly harmful to the health of children and young people, so local authorities may wish to consider efforts which not only protect the health of children, but help to denormalise smoking and stop young people from taking up smoking in the first place."

What is the point of smoke free policies that are not subject to the law? If they are not subject to law surely they can be ignored? Is this just to hoodwink the public?
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Belinda
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Re: Smoking ban
Reply #123 - Mar 25th, 2006 at 1:59am
 
Highlander, I raised precisely this point with my MSP in correspondence over a month ago and am overdue a reply.


'Since the "guidelines", advising people not to light up, are not enforceable ("there is no question of residential premises coming within the scope of the legislation" [quoted within the letter from Health Minister Andy Kerr to the Scotsman]), I really cannot see the point of them. If they are guidelines to remind people of their manners, this is interference in the professional relationship with the health care visitor and the resident. Provisions in guidelines of this kind that contradict the terms and intention of legislation are confusing. This is a serious fault with the implementation of the legislation. There is no need for any of this, ...'

I remain confused about the limits of council powers to make the laws locally. And what the checks are.
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Belinda
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Re: Smoking ban
Reply #124 - Mar 25th, 2006 at 2:06am
 
Above refers to guidelines advising councils to write to residents who receive services from council workers that they should not light up for at least an hour before their arrival. The possiblity remained open that council workers could refuse services to residents if they detected smoking had occurred in that time. The provision covered routine calls, not emergencies.
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highlander
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Re: Smoking ban
Reply #125 - Mar 25th, 2006 at 3:37am
 
Belinda,
Just found this link http://www.thecourier.co.uk/output/2006/03/23/newsstory8152483t0.asp

In case the link goes here is the full text. Looks like we were right!

Hospital smoking policy cannot be forced on public

By Marjory Inglis, health reporter

BANNING THE public from smoking in the grounds of hospitals is unenforceable, a Tayside health chief has admitted.

Paul Ballard, one of the architects of NHS Tayside’s smoking policy which includes strictly no smoking in hospital grounds, said the health authority would rely on the goodwill of the public to adhere to the health authority’s policy and foster a “culture of no smoking.”

However, Mr Ballard agreed that staff caught flouting the policy could ultimately be sacked, but he did not believe it would be necessary to take disciplinary action that far.

Last month, health bosses approved a smoking policy that will go beyond the requirements of the national ban on smoking in public places that will come in to force on Sunday.

From November 23, NHS Tayside’s policy will ban smoking on all sites, including private cars parked in the grounds. That particular move proved highly controversial and met with resistance from staff groups but health bosses overruled staff advisers and approved the policy in full.

The only exemption from the smoking ban will be hospital in- patients who will be allowed to smoke in designated shelters in the grounds. All members of staff, out-patients and visitors will be covered by the ban.

But Mr Ballard agreed members of the public could only be asked not to smoke in the grounds when the policy came in to effect. It had no legal basis—as the requirements of the ban in enclosed public places coming in to force did have.

He said that from Sunday environmental health officers could “have a wee wander” round hospitals and make sure signs were in place, smoking shelters complied with the new legislation and nobody was smoking inside the buildings.

“In terms of the November launch of our extended policy, people smoking in NHS grounds which is what our policy covers, that is not a legal requirement,” said Mr Ballard.

“All we can do (if a member of the public is smoking in the grounds, either out in the open or in a car) is go up to people and say ‘We would be very grateful if you would not do that because it is contrary to NHS Tayside’s smoking policy’.

“If the person says ‘Fine, but I am still going to keep on smoking’, there is nothing else we can do.

“We cannot fine them because it is not part of the national legislation.”

Mr Ballard said the extended smoking policy was part of the health authority’s drive to “set an example” and to contribute to fostering “a no smoking culture” where it became the norm for people to choose not to smoke and live in a smoke free environment.

“Basically the less people who are smoking in sight of other people, the more we will contribute to that,” said Mr Ballard, NHS Tayside’s consultant in health promotion.
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micheal1489
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Re: Smoking ban
Reply #126 - Mar 25th, 2006 at 4:24am
 
i have totally lost the plot with all the arguements,[I AM NOT A LAWYER DOCTER OR ANYTHING ELSE I AM JUST ME ] .but please tell me this is this a facsist country or SCOTLAND i have read some interesting things on theese pages but you all seem to keep losing the plot . if there is a TOP 4 LAWYER out there please help whith two simple questions .1 ] freedom of association seems a possibility , but what about freedom of choice doese this exist in this country and can i use it ? there must be away . I am slightly fishing but if i get what i need i will fight this ,thakyou
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Belinda
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Re: Smoking ban
Reply #127 - Mar 25th, 2006 at 8:37am
 
This is very interesting - do you know the position re council directives? as to how legally binding they are ...? If you find any similar evidence about this please post it on!
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Re: Smoking ban
Reply #128 - Mar 25th, 2006 at 6:01pm
 
Belinda wrote: "I think this is a very important point, about how people can state that their rights are being violated since the goal posts defining our rights appear to be moving. This may be something on which we have to consult bodies like Liberty. "

Belinda, American Supreme Court Justice William Douglas said it best and it struck me so strongly that I saved it for the final quote in Antibrains:

"As nightfall does not come at once, neither does oppression.  In both instances there is a twilight where everything remains seem-ingly unchanged.  And it is in such twilight that we all must be aware of change in the air – however slight – lest we become unwitting victims of darkness. "

Look to America to see your future if you don't stop the crazies now before they get a real foothold: it'll move through the following stages indoors:  theaters, offices, restaurants, bars, clubs, condominiums, apartments, and finally private homes where children under 21 might live or visit.

Outdoors they'll play the "Save The Children" propaganda trick to grab playgrounds with nonsense stories about poisoned toddlers eating butts, perimeters around playgrounds with tales of children imitating adults they see, beaches  by using litter as an excuse, then parks, then 25 foot zones from businesses or from "normal human beings in public" and then finally streets altogether.

Of course if you can't smoke at work, in the park, at the bar, on the streets, or in your apartment you've then arrived at the Prohibition they keep saying is NOT their goal: they lie.  Of course you will always have clandestine smoking and this will give the government that golden card governments always want: make sure a good bit of the population is always engaged in a criminal activity and you can always control their behavior with threats.

That's your future if you don't stop them.

Michael J. McFadden
Author of [i][b]Dissecting Antismokers' Brains[/b][/i]
[url]http://www.Antibrains.com[/url]
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Belinda
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Re: Smoking ban
Reply #129 - Mar 29th, 2006 at 3:05pm
 
It occurred to me last night that a problem with councils enacting directives against smoking in open areas is that they are acting as effectively both 'legislators' and enforcers, since police do not have involvement in enforcement. I think this runs counter to our tradition of separating legislative, judicial and administrative functions of the state. If the police are not involved that is one problem. Further, if on-the-spot fines turn into court cases, the penalties escalate and that seems to me to penalise somebody for insisting that the state functions adequately with all checks and balances in place?



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Belinda
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Re: Smoking ban
Reply #130 - Apr 4th, 2006 at 7:53pm
 
Thanks to Michael McFadden for the following canny observation made on another site.


'Laws in democracy customarily stand or fail on the basis of popular support and cooperation. In dictatorships the state requires on snitches and secret enforcers and rewards citizens acting as vigilante enforcers.

Scotland is a democracy: enforcement of its laws should stay in the hands of its law enforcers. And if information is being disseminated to wrongly pressure citizens into thinking they are liable for penalties if they don't volunteer to be conscripted police then that misinformation should be corrected.'

This is an excellent point and I will look at comparing the guidelines in the official website www.clearingtheairscotland.com with the legislation to see if the guidelines do actually reflect what is in the legislation.
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Belinda
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Re: Smoking ban
Reply #131 - Apr 12th, 2006 at 2:47am
 
The following is included in the guidelines entitled 'Smoke-free Scotland' addressed to NHS, local authorities and care service providers, ie providers of statutory services. In Section 2 (How to comply), managers are urged to ... 

‘Consider if it is appropriate to refuse service to individuals who are contravening the law, depending on the nature of the service being provided’.

This is surely expecting people to take the law into their own hands. Either smoking is a crime or it is not. Even if it is a crime because the government says it is in a certain situation, that does not entitle a health authority to withdraw services as a penalty.

This really seems a little bit messy.
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Council guidelines
Reply #132 - Apr 12th, 2006 at 6:33pm
 
This is impossible to understand!  on one hand, the scottish executive has said that the smoking ban only exists in enclosed public spaces.  Surely your own home, whether it is bought or rented from a council or the likes, is personal space and therefore does not even come under the legislation.
I wonder how they would decide to withhold the services if they appeared at my door - enter council plumber - 'Can't help you madam.  I smell smoke and it seems you might have smoked in your own home in the last hour'.  Have these people got ESP or something that will let them know when the last f*g was stubbed out.
What a nonsense.  But thanks for highlighting it. 

Just another chapter of the debacle which is the smoking ban.
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highlander
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Re: Smoking ban
Reply #133 - Apr 13th, 2006 at 1:31am
 
I asked clearing theairsotland the legality of e.g local authorities and NHS banning smoking outdoors.

Here is the response.

"You are correct in stating that the smoke-free legislation only covers
'wholly and substantially enclosed' public places.  However, proprietors
of premises can develop smoke-free policies which go beyond the scope of
the legislation, if they wish to do so, although this should done  in
consultation with staff and customers/patients.  More comprehensive
policies would not, of course, be subject to proceedings under the law,
as it would not be an offence to smoke in these areas, only 'company'
policy.  So any signage should not say that it is an offence to smoke in
these areas.
The NHS and local authorities, of course, have a clear obligation to
provide leadership on this issue.  We issued guidance on smoking
policies to these organisations December last year which you can view on
the Clearing the Air web-site at
http://www.clearingtheairscotland.com/faqs/pdf/Smoke%20Free%20Scotland.p
df"

So, it's almost deliberate muddying of waters in the pursuit of "smoke free"

I further asked whom should i contact if i had concerns about the above. I was advised to take it up with my MSP or, the chief executive of whichever authority these policies were being applied to.


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Re: Smoking ban
Reply #134 - Apr 14th, 2006 at 9:53am
 
Belinda wrote: "I further asked whom should i contact if i had concerns about the above. I was advised to take it up with my MSP or, the chief executive of whichever authority these policies were being applied to. "

In other words, "Don't BOTHER us!  Just don't smoke if someone, ANYone, tells you not to!"

  :/
Michael

Michael J. McFadden
Author of "Dissecting Antismokers' Brains"
http://www.Antibrains.com
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