Statement by the Taoiseach to Dáil Eireann - Smoking Ban

The smoking ban is contained in Statutory Instrument No. 481 of 2003. It was notified to the European Commission the 24th day of April 2003. There was no objection to this smoking ban by the Commission or any Member State. Accordingly, on the 16th October 2003 the Minister for Health and Children signed an Order which provided that the ban would commence with effect from the 26th day of January 2004. The legal basis for the ban on smoking having passed through the required European process, is now rock solid. It is the law and will be effective as and from its commencement date.

Subsequently, it was decided that there should be exemptions to the ban, in addition to the dwelling. These exemptions were required to be notified to the European Commission. The specific exemptions are as follows:

(a) prisons,

(b) outdoor places,

(d) hospices,

(e) nursing homes,

(f) sleeping accommodation in hotels, guest houses, B&Bs, and accommodation provided for educational or charitable purposes,

(g) the Central Mental Hospital.

Some exemptions have been, according to European law, notified to the European Commission. The first notification was on the 3rd November 2003 (and related to prisons and outdoor places) and the second notification will be made tomorrow. Under European law there is a three-month period under which other Member States can raise objections to the exemptions. In this regard it is of significance that no objections were made to the ban as previously notified.

Because of the hiatus between the commencement date chosen by the Minister for Health and Children i.e. 26th January 2004 and the expiry of the three-month minimum period for all of the exemptions an adjustment is required. This is an adjustment to the date of commencement of the ban. The new date that will be chosen by the Minister for Health will reflect with the expiry of the period stipulated by European law. In these circumstances the ban, together with the exemptions, is expected to be in operation by the end of February 2004.

It is important to emphasise that the ban and exemptions are made under the Tobacco code of legislation. That legislation is separate and distinct from the Health and Safety Act. They are, to put it simply, two separate codes.

Legal advice has been received from the Office of the Attorney General that the 1989 Health and Safety Act may not encompass the banning of environmental tobacco smoke in the workplace. In order to remove this legal uncertainty it has been decided that primary legislation is required. In this regard I would point out that a review of the Health and Safety Act 1989 is currently at an advanced stage. The Heads of a Bill have been issued. Therefore, amendments to the legislation are already envisaged. That proposed Bill will provide a vehicle for such amendments as are necessary to remove any legal uncertainties. It is, of course, the case that this initiative under the Health and Safety Act will not affect implementation of the smoking ban.