Jurisdiction: Wales
Commencement: 1st March 2021
The Smoke-free Premises and Vehicles (Wales) Regulations 2020 prohibit smoking in certain premises, places and vehicles. Premises must be smoke free if they are open to the public or used as place of work.
These Regulations prohibit smoking in certain premises, places and vehicles. Premises must be smoke-free if they are open to the public or used as place of work. They also make requirements around ‘no smoking’ signs.
They are made in relation to the Public Health (Wales) Act 2017 (‘2017 Act’) which also sets out provisions around smoking and apply in Wales. These Regulations revoke and replace The Smoke Free Premises etc (Wales) Regulations 2007 (‘2007 Regulations‘) and come into force on 1st March 2021.
Some new elements from the 2007 Regulations around smoking are brought into force which are needed to implement the provisions on smoke-free hospital grounds, school grounds, and public playgrounds in the 2017 Act. This is to contribute to the continuing decline in the uptake of smoking by children and young people.
The definition of ‘smoking’ is set out in section 4 of the 2017 Act, which is smoking tobacco or anything which contains tobacco, or smoking any other substance. Smoking includes being in possession of lit tobacco or of anything lit which contains tobacco, or being in possession of any other lit substance in a form in which it could be smoked.
The smoking ban established in 2007 banned smoking in almost all ‘enclosed and substantially enclosed’ public places, workplaces and work vehicles throughout Wales. These Regulations define ‘enclosed and substantially enclosed’.
Premises are enclosed if:
- they have a ceiling or a roof; and
- except for doors, windows and passageways, they are wholly enclosed either permanently or temporarily.
A vehicle, or part of a vehicle, is enclosed if:
- it has a roof; and
- except for doors and windows, it is wholly enclosed either permanently or temporarily.
Premises are substantially enclosed if:
- they have a ceiling or a roof, and
- 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.
Therefore, any building open to the public or used as a workplace, must be smoke-free if more than 50% of the building is enclosed.
Note that many employers permit smoking on site provided that it is restricted to designated smoking shelters. An appropriately designed smoking shelter is designed so that it is less than 50% is enclosed, therefore avoiding being defined as ‘substantially enclosed’ within the meaning of these Regulations.
Since the smoking ban was brought into force in 2007, exemptions have been in place for certain types of premises where smoking is allowed. The Regulations list types of premises that do not need to be smoke-free and some of these have been removed or updated from the 2007 Regulations:
Private accommodation
Private accommodation (i.e. dwellings / houses) is exempt from the requirement to be ‘smoke-free’ unless the dwelling is used as a place of work by somebody who doesn’t live there or members of the public might visit the dwelling for goods or services.
Holiday and temporary accommodation
Examples of this type of accommodation include static caravans, chalets, cottages, flats and apartments provided via short-term lets for holiday rental or temporary purposes. The 2007 Regulations allowed holiday and temporary accommodation to be exempt from the requirement to be smoke-free; however, from the 1st March 2022 this exemption is removed. This is because the smoking ban is embedded in Wales to the extent that the current exemption is not widely used. Removal of this exemption extends the workplace protection from the harm of second hand smoke to all workers in these premises.
Adult care homes and adult hospices
The 2007 Regulations provided an exemption for adult care homes and adult hospices that permitted the manager of the premises to designate a room for smoking for use by those over 18 years of age. This exemption has been retained in these Regulations but with the additional condition that the designated smoking room is only for use by residents of the adult care home or adult hospice.
Research and testing facilities
An exemption is in place for facilities undertaking research and testing relating to smoking. A designated room that does not have to be smoke-free can be designated as long as it is used for testing and research relating to:
- emissions from smoking;
- developing products for smoking with lower fire hazard;
- fire safety testing of materials involving products for smoking;
- development of smoking or pharmaceutical products that could result in the manufacture of less dangerous products for smoking; or
- smoking cessation programmes.
Mental health units
The exemption that allows designation of a room in which patients and residents of mental health units may smoke is removed. The removal of this exemption applies 18 months from when these Regulations come into force, which is 1st September 2022.
Hotels, guesthouses, inns, hostels and members’ clubs
From 1st March 2022, the exemption that permits the designation of bedrooms where smoking is allowed in hotels, guesthouses, hostels, inns and members’ clubs is removed. This is because the smoking ban is embedded in Wales to the extent that the current exemption is not widely used. Removal of this exemption extends the workplace protection from the harm of second hand smoke to all workers in these premises.
Hospital grounds, school grounds and public playgrounds are required be smoke-free. Those involved in the control or management of these premises must take reasonable steps to stop anyone smoking. Smoking areas can be implemented at hospital grounds and grounds of a school that provides residential accommodation, and the conditions these areas must meet are:
- the person in charge of the premises specifies persons who may use the area; and
- the area is no more than 8.25m2, is at least 10 metres away from any other premises that are smoke-free and is clearly marked as an area in which a permitted person may smoke.
Premises that must be smoke-free (premises which are workplaces or open to the public) must display at least one ‘no smoking’ sign. This 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.
School grounds, hospital grounds and public playgrounds must also display ‘no smoking’ signs. 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 and include appropriate warning text which is stated in regulation 14 in both English and Welsh. A sign must be displayed in a prominent position at the main entrance of school grounds, hospital grounds and public playgrounds within clearly marked boundaries. If there is more than one main entrance, a ‘no smoking’ sign must be displayed at each of them. For public playgrounds without clearly marked boundaries a sign must be displayed in a prominent position near the playground.
Vehicles that must be smoke-free are enclosed vehicles that are used wholly or mainly in the course of paid or voluntary work and used:
- by more than one person (even if the people who use it do so at different times or intermittently); or
- to transport members of the public.
This applies to all vehicles, other than aircraft, ships or hovercraft.
When children are present in a vehicle, regardless of what it is being used for, it must be smoke-free.
Vehicles that are required to be smoke-free must have a ‘no smoking’ sign displayed. 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.
These Regulations designate the police as the enforcement authority in relation to the requirement for vehicles to be smoke-free when a child is present. Local authorities are enforcement authorities in relation to premises, places and vehicles in their areas. Fixed penalty notices can be issued for non-compliance. A fixed penalty notice must be in the form set out in Schedules 1 and 2, depending on the offence.
The Legislation Update Service is the best way to stay up to date automatically with legislation in England, Wales, Scotland, Northern Ireland and the Republic of Ireland.
Sign up for your free trial to get instant access.