The Smoke-free Premises and Vehicles (Wales) Regulations 2020

Welsh Statutory Instruments

2020 No. 1211 (W. 273)

Public Health, Wales

The Smoke-free Premises and Vehicles (Wales) Regulations 2020

Made

26 October 2020

Coming into force

1 March 2021

The Welsh Ministers, in exercise of the powers conferred by sections 6(5), 10(6), 11(5), 15(1), 16(1), 17(1), 17(3), 18(2), 28(7) and 123(1) of, and paragraphs 5, 6 and 9 of Schedule 1 to the Public Health (Wales) Act 2017(1), make the following Regulations.

In accordance with section 123(2) of the Public Health (Wales) Act 2017, a draft of these Regulations was laid before, and approved by, resolution of Senedd Cymru(2).

PART 1 GENERAL

Title, commencement and interpretation

1.—(1) The title of these Regulations is the Smoke-free Premises and Vehicles (Wales) Regulations 2020.

(2) These Regulations come into force on 1 March 2021.

2.—(1) In these Regulations—

“the Act” (“y Ddeddf”) means the Public Health (Wales) Act 2017;

“vehicle” (“cerbyd”) does not include—

(a)

aircraft, nor

(b)

a ship or hovercraft in relation to which regulations could be made under section 85 of the Merchant Shipping Act 1995(3) including that section as applied by any Order in Council under section 1(1)(h) of the Hovercraft Act 1968(4).

(2) Expressions used in these Regulations have the same meaning as in the Act.

Meaning of “enclosed”, “substantially enclosed” and “not enclosed or substantially enclosed”

3.—(1) For the purposes of Chapter 1 of Part 3 of the Act—

(a) premises, or parts of premises, are enclosed if—

(i) they have a ceiling or a roof, and

(ii) except for doors, windows and passageways, they are wholly enclosed either permanently or temporarily;

(b) a vehicle, or part of a vehicle, is enclosed if—

(i) it has a roof, and

(ii) except for doors and windows, it is wholly enclosed either permanently or temporarily.

(2) For the purposes of Chapter 1 of Part 3 of the Act, premises, or parts of premises, are substantially enclosed if—

(a) they have a ceiling or a roof, and

(b) any openings in the walls have a total area which is less than half the area of the walls, including other structures which serve the purpose of walls and constitute the perimeter of the premises.

(3) In calculating the total area of any openings for the purposes of paragraph (2)(b), no account is to be taken of openings in which there are doors, windows or other fittings which can be opened and shut.

(4) In this regulation, “roof” includes any fixed or moveable structure or device capable of covering all or part of the premises or vehicle as a roof.

(5) For the purposes of Chapter 1 of Part 3 of the Act, premises or parts of premises are “not enclosed or substantially enclosed” if they are not enclosed or not substantially enclosed within the meaning of paragraphs (1) and (2).

PART 2 SMOKE-FREE PREMISES: EXEMPTIONS AND SIGNS

CHAPTER 1 Exemptions

Dwellings: exemptions

4.—(1) Premises used to any extent as a dwelling, or part of such premises, which would (but for this regulation) be smoke-free by virtue of section 7 or 8 of the Act are to be treated as not being smoke-free unless the premises come within paragraph (2) or (5).

(2) Premises come within this paragraph if they are smoke-free because they are workplaces within section 7(2)(a) of the Act and either condition 1 or 2 is met.

(3) Condition 1 is met if one or more of the persons who work at the premises do not live in the dwelling.

(4) Condition 2 is met if the persons who work at the premises all live in the dwelling and members of the public might attend the dwelling for the purposes of seeking or receiving goods or services from a person working from the dwelling.

(5) Premises come within this paragraph if they are smoke-free because they are workplaces within section 7(2)(b) of the Act.

Holiday or temporary accommodation: exemptions

5.—(1) Premises that—

(a) are not used to any extent as a dwelling, and

(b) consist of self-contained residential accommodation that would (but for this regulation) be smoke-free by virtue of section 7 or 8 of the Act,

are to be treated as not being smoke-free at any time during which they are being used as accommodation for holiday or temporary purposes.

(2) Paragraph (1) ceases to have effect at the end of the period of 12 months beginning with the day on which these Regulations come into force.

Adult care homes and adult hospices: designated rooms

6.—(1) A room in premises consisting of an adult care home or an adult hospice that would (but for this regulation) be smoke-free by virtue of section 7 or 8 of the Act is to be treated as not being smoke-free if conditions 1 and 2 are met.

(2) Condition 1 is that the person in charge of the premises—

(a) designates the room as one in which residents of the adult care home or adult hospice who are aged 18 or over (and no other persons) are permitted to smoke, and

(b) keeps a record of all rooms that have been so designated.

(3) Condition 2 is that the room—

(a) has a ceiling and, except for doors and windows, is completely enclosed on all sides by solid floor to ceiling walls,

(b) does not have a ventilation system that ventilates into a smoke-free part of the premises,

(c) does not have doors which do not mechanically close immediately after use if they open into smoke-free areas, and

(d) is clearly marked as a room in which smoking is permitted.

(4) The person in charge of the premises may withdraw a designation at any time.

Research and testing facilities: designated rooms

7.—(1) A room in premises consisting of research and testing facilities that would (but for this regulation) be smoke-free by virtue of section 7 or 8 of the Act is to be treated as not being smoke-free if conditions 1, 2 and 3 are met.

(2) Condition 1 is that the person in charge of the premises—

(a) designates the room as one in which smoking is permitted, and

(b) keeps a record of all rooms that have been so designated.

(3) Condition 2 is that the room is used for tests and research which relate to—

(a) emissions from smoking,

(b) developing products for smoking with lower fire hazard,

(c) fire safety testing of materials involving products for smoking,

(d) development of smoking or pharmaceutical products that could result in the manufacture of less dangerous products for smoking, or

(e) smoking cessation programmes.

(4) Condition 3 is that the room—

(a) has a ceiling and, except for doors and windows, is completely enclosed on all sides by solid floor to ceiling walls,

(b) does not have a ventilation system that ventilates into a smoke-free part of the premises,

(c) does not have doors which do not mechanically close immediately after use if they open into smoke-free areas, and

(d) is clearly marked as a room in which smoking is permitted.

(5) The room is to be treated as not being smoke-free only when used for the purposes of the tests and research referred to in paragraph (3).

(6) The person in charge of the premises may withdraw a designation at any time.

Mental health units: temporary exemption

8.—(1) A room in premises consisting of a mental health unit that would (but for this regulation) be smoke-free by virtue of section 7 or 8 of the Act is to be treated as not being smoke-free if conditions 1 and 2 are met.

(2) Condition 1 is that the person in charge of the premises—

(a) designates the room as one in which patients of the mental health unit who are aged 18 or over (and no other person) are permitted to smoke, and

(b) keeps a record of all rooms that have been so designated.

(3) Condition 2 is that the room—

(a) has a ceiling and, except for doors and windows, is completely enclosed on all sides by solid floor to ceiling walls,

(b) does not have a ventilation system that ventilates into a smoke-free part of the premises,

(c) does not have doors which do not mechanically close immediately after use if they open into smoke-free areas, and

(d) is clearly marked as a room in which smoking is permitted.

(4) The person in charge of the premises may withdraw a designation at any time.

(5) In this regulation, “mental health unit” means premises, or part of premises, maintained wholly or mainly for the reception and treatment of persons suffering from a mental disorder as defined in section 1(2) of the Mental Health Act 1983(5) but does not include an adult care home.

(6) Paragraphs (1) to (5) cease to have effect at the end of the period of 18 months beginning with the day on which these Regulations come into force.

Hotels, guesthouses, inns, hostels and members’ clubs: temporary exemption

9.—(1) A bedroom in premises consisting of a hotel, guesthouse, inn, hostel or members’ club that would (but for this regulation) be smoke-free by virtue of section 7 or 8 of the Act is to be treated as not being smoke-free if conditions 1 and 2 are met.

(2) Condition 1 is that the person in charge of the premises—

(a) designates the bedroom as one in which smoking is permitted, and

(b) keeps a record of all rooms that have been so designated.

(3) Condition 2 is that the bedroom—

(a) has a ceiling and, except for doors and windows, is completely enclosed on all sides by solid floor to ceiling walls,

(b) does not have a ventilation system that ventilates into a smoke-free part of the premises,

(c) does not have doors which do not mechanically close immediately after use if they open into smoke-free areas, and

(d) is clearly marked as a room in which smoking is permitted.

(4) The person in charge of the premises may withdraw a designation at any time.

(5) Paragraphs (1) to (4) cease to have effect at the end of the period of 12 months beginning with the day on which these Regulations come into force.

Grounds of schools that provide residential accommodation to pupils: designated areas

10.—(1) Before an area within paragraph (2) may be designated under section 10(5) of the Act as an area in which smoking is permitted and so treated as not being smoke-free, conditions 1 and 2 must be met.

(2) An area is within this paragraph if it is an area in premises consisting of grounds that adjoin a school that provides residential accommodation to pupils that would (but for this regulation) be smoke-free by virtue of section 10 of the Act.

(3) Condition 1 is that the person in charge of the premises specifies persons or descriptions of persons (“permitted persons”) who may use the area but a child may not be specified.

(4) Condition 2 is that the area—

(a) is no more than 8.25 square metres,

(b) is at least 10 metres away from any other premises that are smoke-free by virtue of the Act (other than the premises within paragraph (2)), and

(c) is clearly marked as an area in which a permitted person may smoke.

(5) The person in charge of the premises must keep a record of all of the areas which have been designated under section 10(5) of the Act and of permitted persons.

(6) The person in charge of the premises may vary or withdraw a designation at any time.

Hospital grounds: designated areas

11.—(1) Before an area within paragraph (2) may be designated under section 11(4) of the Act as an area in which smoking is permitted and so treated as not being smoke-free, conditions 1 and 2 must be met.

(2) An area is within this paragraph if it is an area in premises consisting of the grounds of a hospital(6) that would (but for this regulation) be smoke-free by virtue of section 11 of the Act.

(3) Condition 1 is that the person in charge of the premises specifies persons or descriptions of persons (“permitted persons”) who may use the area but a child may not be specified.

(4) Condition 2 is that the area—

(a) is not more than 8.25 square metres,

(b) is at least 10 metres away from any other premises that are smoke-free by virtue of the Act (other than the premises within paragraph (2)), and

(c) is clearly marked as an area in which a permitted person may smoke.

(5) The person in charge of the premises must keep a record of all of the areas which have been designated under section 11(4) of the Act and of permitted persons.

(6) The person in charge of the premises may vary or withdraw a designation at any time.

Duty to prevent smoking in school grounds, hospital grounds and public playgrounds

12.  A person who controls or is concerned in the management of premises which are smoke-free by virtue of section 10 (school grounds), 11 (hospital grounds) or 12 (public playgrounds) of the Act must take reasonable steps to cause a person smoking there to stop smoking.

CHAPTER 2 Signs

Smoke-free premises which are workplaces or open to the public: signs

13.—(1) This regulation applies to premises that are smoke-free by virtue of section 7 or 8 of the Act.

(2) At least one sign must be displayed for the purposes of section 17(1) of the Act and it must contain a legible graphic representation of a burning cigarette enclosed in a circle with a bar across the circle which crosses the cigarette symbol.

(3) This regulation does not apply to premises used to any extent as a dwelling.

School grounds, hospital grounds, and public playgrounds: signs

14.—(1) This regulation applies to—

(a) premises that are smoke-free by virtue of section 10 of the Act and that adjoin the school concerned (“school grounds”),

(b) premises that are smoke-free by virtue of section 11 of the Act (“hospital grounds”), and

(c) premises that are smoke-free by virtue of section 12 of the Act (“public playgrounds”).

(2) At least one sign must be displayed at the premises for the purposes of section 17(1) of the Act and it must—

(a) contain a legible graphic representation of a burning cigarette enclosed in a circle with a bar across the circle which crosses the cigarette symbol,

(b) be displayed—

(i) in the case of school grounds, hospital grounds and public playgrounds within clearly marked boundaries, in a prominent position at or near the main entrance, or if there is more than one main entrance, each of them, and

(ii) in the case of public playgrounds not within clearly marked boundaries in a prominent position near the playground, and

(c) include the appropriate warning text.

(3) The “appropriate warning text” is—

(a) for school grounds, “It is against the law to smoke in these school grounds/Mae ysmygu yn nhir yr ysgol hon yn erbyn y gyfraith”;

(b) for hospital grounds, “It is against the law to smoke in these hospital grounds/Mae ysmygu yn nhir yr ysbyty hwn yn erbyn y gyfraith”;

(c) for public playgrounds within clearly marked boundaries, “It is against the law to smoke in this playground/Mae ysmygu yn y maes chwarae hwn yn erbyn y gyfraith”;

(d) for public playgrounds not within clearly marked boundaries, “It is against the law to smoke within 5 metres of this play equipment/Mae ysmygu o fewn 5 metr i’r cyfarpar chwarae hwn yn erbyn y gyfraith”.

PART 3 SMOKE-FREE VEHICLES

Smoke-free vehicles

15.—(1) A vehicle which is enclosed, and any part of a vehicle which is enclosed, is to be treated as being smoke-free if paragraph (2) or (3) applies.

(2) This paragraph applies if the vehicle is one that is used wholly or mainly in the course of paid or voluntary work and it is used—

(a) by more than one person (even if the persons who use it do so at different times or intermittently), or

(b) to transport members of the public or a section of the public.

(3) This paragraph applies if the vehicle is not within paragraph (2) and it is used—

(a) in the course of paid or voluntary work and more than one person is present in the vehicle and one of those is present for the purpose of receiving goods or services from the person using the vehicle, or

(b) for social, domestic or other private purposes and more than one person is present in the vehicle and one of those persons is a child.

(4) A vehicle which is smoke-free by virtue of paragraph (2) is smoke-free all the time.

(5) A vehicle which is smoke-free by virtue of paragraph (3) is smoke-free only when the vehicle is being used as described in that paragraph.

Smoke-free vehicles: exemptions

16.—(1) A vehicle is not to be treated as being smoke-free by virtue of regulation 15(3)(b) if it is a caravan or motor caravan that is—

(a) stationary and not on a road, or

(b) stationary, is on a road and is being used as living accommodation.

(2) In this regulation—

“caravan” (“carafán”) means a trailer which is designed for road use and provides mobile living accommodation;

“motor caravan” (“carafán fodur”) means a motor vehicle which is constructed or adapted for the carriage of passengers and their effects and which contains, as permanently installed equipment, the facilities which are reasonably necessary for enabling the vehicle to provide mobile living accommodation for its users;

“road” (“ffordd”) has the meaning given by section 192(1) of the Road Traffic Act 1988(7).

Duty to prevent smoking in a smoke-free vehicle

17.  The following persons must take reasonable steps to cause a person smoking in a vehicle which is treated as being smoke-free by virtue of regulation 15 to stop smoking—

(a) a driver or operator of a vehicle which is treated as being smoke-free by virtue of regulation 15, and

(b) a person who is concerned in the management of such a vehicle.

Smoke-free vehicles: signs

18.—(1) The driver, operator and person who is concerned in the management of a vehicle which is treated as a smoke-free vehicle by virtue of regulation 15(2) must make sure that a sign is displayed in the vehicle in accordance with paragraph (2).

(2) The sign must contain a legible graphic representation of a burning cigarette enclosed in a circle with a bar across the circle which crosses the cigarette symbol.

PART 4 ENFORCEMENT

Enforcement authority: police

19.  The chief officer of police for a police area is authorised to act as an enforcement authority in relation to vehicles in its area that are smoke-free by virtue of regulation 15(3)(b) (vehicles being used for social, domestic or other private purposes where a child is present).

Fixed penalty amounts

20.  The fixed penalty amounts specified for the purposes of paragraph 6 of Schedule 1 to the Act are—

(a) in respect of an offence under section 17(5) of the Act (offence of failing to display a sign), £200,

(b) in respect of an offence under section 5(1) of the Act (offence of smoking in smoke-free premises or in a smoke-free vehicle), £100, and

(c) in respect of an offence under section 6(6) of the Act in relation to a vehicle being used for the purposes mentioned in section 27(4) of the Act (offence of failing to prevent smoking in vehicle being used for social, domestic or other private purposes where a child is present), £100.

Fixed penalty amounts: discounted amounts

21.  The discounted amounts specified for the purposes of paragraph 9 of Schedule 1 to the Act are—

(a) in respect of an offence under section 17(5) of the Act (offence of failing to display a sign), £150,

(b) in respect an offence under section 5(1) of the Act (offence of smoking in smoke-free premises or in a smoke-free vehicle), £75, and

(c) in respect of an offence under section 6(6) of the Act in relation to a vehicle being used for the purposes mentioned in section 27(4) of the Act (offence of failing to prevent smoking in vehicle being used for social, domestic or other private purposes where a child is present), £75.

Form of fixed penalty notices

22.—(1) A fixed penalty notice must be in the form set out in Schedule 1 in respect of an offence under section 17(5) of the Act (offence of failing to display a sign).

(2) A fixed penalty notice must be in the form set out in Schedule 2 in respect of an offence under—

(a) section 5(1) of the Act (offence of smoking in a smoke-free vehicle or in smoke-free premises), and

(b) section 6(6) of the Act (offence of failing to prevent smoking in vehicle being used for social, domestic or other private purposes where a child is present).

(3) Paragraphs (1) and (2) do not prevent an enforcement authority from including on a fixed penalty notice form—

(a) information about the method of payment,

(b) information to facilitate financial and administrative processing of the forms, and

(c) coats of arms, logos or other devices to represent the authority.

PART 5 CONSEQUENTIAL AMENDMENTS AND REVOCATIONS

Amendment of the Smoke-free (Penalties and Discounted Amounts) Regulations 2007

23.—(1) The Smoke-free (Penalties and Discounted Amounts) Regulations 2007(8) are amended as follows.

(2) In regulation 1—

(a) for paragraph (2), substitute—

“(2) These regulations only apply to premises, places and vehicles in England.”;

(b) in paragraph (3), omit “and in Wales on 2nd April 2007”.

Amendment of the Regulation and Inspection of Social Care (Wales) Act 2016 (Consequential Amendments to Secondary Legislation) Regulations 2018

24.  Omit paragraph 16 of Schedule 1 to the Regulation and Inspection of Social Care (Wales) Act 2016 (Consequential Amendments to Secondary Legislation) Regulations 2018(9).

Revocations

25.  The following regulations are revoked—

(a) the Smoke-free Premises etc. (Wales) Regulations 2007(10);

(b) the Smoke-free Premises etc. (Wales) (Amendment) Regulations 2015(11);

(c) the Smoke-free Premises etc. (Wales) (Amendment) Regulations 2016(12).

Eluned Morgan

Minister for Mental Health, Wellbeing and Welsh Language, one of the Welsh Ministers

26 October 2020

SCHEDULES

Regulation 22(1)

SCHEDULE 1

Regulation 22(2)

SCHEDULE 2

EXPLANATORY NOTE

(This note is not part of the Regulations)

These Regulations revoke and replace the Smoke-free Premises etc. (Wales) Regulations 2007(13).

Chapter 1 of Part 3 of the Public Health (Wales) Act 2017 (“the Act”)(14) makes provision restricting smoking in workplaces and public places (among other places). “Smoking” is to be read in accordance with section 4 of the Act.

These Regulations exempt certain premises from the requirement to be smoke-free under the Act and set out the circumstances in which vehicles are to be treated as being smoke-free. “Premises” has the meaning given by section 28 of the Act. The Regulations also make provision about displaying signs and provision relating to enforcement.

Regulation 3 defines “enclosed” and “substantially enclosed”. Under the Act, the requirement to be smoke-free is imposed in relation to workplaces and premises open to the public that are enclosed or substantially enclosed.

Regulation 4(1) provides that premises used to any extent as dwellings are not to be treated as being smoke-free unless regulation 4(2) or 4(5) applies (certain dwellings which are used as places of work).

Regulation 5 provides that holiday and temporary accommodation are to be treated as not being smoke-free. This regulation applies to premises that are not dwellings (because any such premises fall within regulation 4). This regulation ceases to have effect 12 months after these Regulations come into force.

Regulations 6 to 9 provide that rooms in adult care homes, adult hospices (regulation 6), research and testing facilities (regulation 7) and mental health units (regulation 8) and bedrooms in hotels, guesthouses, inns, hostels and members’ clubs (regulation 9) which meet certain conditions may be designated as rooms in which smoking is permitted. But a designation of a room in a mental health unit ceases to have effect 18 months after these Regulations come into force and a designation of a bedroom in a hotel, guesthouse, inn, hostel and a members’ club ceases to have effect 12 months after these Regulations come into force. Sections 10 to 12 of the Act provide for hospital grounds, school grounds and public playgrounds to be smoke-free. Regulations 10 and 11 provide the conditions which must be met before an area in the grounds of a school that provides residential accommodation and in hospital grounds may be designated as an area in which smoking is permitted.

Regulation 12 provides that a person who controls or is concerned in the management of smoke-free premises has to take reasonable steps to cause a person smoking there to stop smoking.

Regulation 13 requires signs to be displayed in premises which are workplaces or open to the public and specifies their content.

Regulation 14 requires signs to be displayed in school grounds, hospital grounds and public playgrounds and specifies their content.

Regulation 15 provides that certain vehicles are treated as being smoke-free. Vehicles used wholly or mainly in the course of work by more than one person or to transport members of the public are smoke-free all the time. Other vehicles which are not smoke-free all the time are smoke-free only when a person in the vehicle is receiving goods or services from another person also in the vehicle and when a child is in the vehicle. Regulation 16 provides an exemption from this. In these Regulations, a “child” is a person aged under 18 (see section 28 of the Act).

Regulation 17 provides that a driver, an operator or a person who is concerned in the management of a smoke-free vehicle has a duty to prevent smoking in that vehicle.

Regulation 18 requires signs be displayed in certain smoke-free vehicles and specifies their content.

Regulation 19 designates the chief officer of police for a police area as an enforcement authority in relation to vehicles which are smoke-free by virtue of being used for social, domestic or other private purposes where a child is present. Local authorities are already enforcement authorities under section 18 of the Act in relation to premises, places and vehicles in their areas.

Regulation 20 provides the fixed penalty amounts in respect of certain offences, and regulation 21 provides the discounted penalty amounts in respect of certain offences. Regulation 22 introduces the form of fixed penalty notices the enforcement authorities must use.

The Welsh Ministers’ Code of Practice on the carrying out of Regulatory Impact Assessments was considered in relation to these Regulations. As a result a regulatory impact assessment has been prepared as to the likely costs and benefits of complying with these Regulations. A copy can be obtained from the Public Health Division, Welsh Government, Cathays Park, Cardiff CF10 3NQ.

(1)

2017 anaw 2.

(2)

The reference in section 123 of the Public Health (Wales) Act 2017 to the National Assembly for Wales now has effect as a reference to Senedd Cymru by virtue of section 150A(2) of the Government of Wales Act 2006 (c. 32).

(3)

1995 c. 21. Section 85 was amended by the British Overseas Territories Act 2002 (c. 8), section 2 and by the Merchant Shipping and Maritime Security Act 1997 (c. 28), section 8.

(4)

1968 c. 59. Section 1(1)(h) was amended by the Constitutional Reform Act 2005, Schedule 11 paragraph 1(2) and by the Supreme Court Act 1981 (c. 54), section 152. The Supreme Court Act 1981 was renamed the Senior Courts Act 1981 by the Constitutional Reform Act 2005 (c. 4), section 59.

(5)

1983 c. 20. Section 1(2) was amended by the Mental Health Act 2007 (c. 12), Schedule 10, paragraph 2.

(6)

“Hospital” is defined by section 28 of the Act as having the meaning given by section 206 of the National Health Service (Wales) Act 2006 (c. 42), and a mental health unit (within the meaning given by regulation 8(5)) falls within that definition.

(7)

1988 c. 52. The definition of “road” was amended by the Road Traffic Act 1991 (c. 40), paragraph 78 of Schedule 4.

(8)

S.I. 2007/764.

(9)

S.I. 2018/48 (W. 15).

(10)

S.I. 2007/787 (W. 68).

(11)

S.I. 2015/1363 (W. 133).

(12)

S.I. 2016/118 (W. 55).

(13)

S.I. 2007/787 (W. 68) amended by S.I. 2015/1363 (W. 133), S.I. 2016/118 (W. 55) and S.I. 2018/48 (W. 15).

(14)

2017 anaw 2.