The BBC reported (and the rest of the mainstream media copied the story, often without attribution), about the enforcement of forthcoming Smoking Ban in England:
Last Updated: Thursday, 15 February 2007, 21:38 GMT
By Nick Triggle
Health reporter, BBC News
Thousands of council staff are being trained to police the smoking ban in bars, restaurants and shops in England.
Ministers have given councils £29.5m to pay for staff, who will be able to give on-the-spot £50 fines to individuals and take court action against premises.
They will have the power to enter premises undercover, allowing them to sit among drinkers, and will even be able to photograph and film people.
Ian Gray, policy officer for the Chartered Institute of Environmental Health and chief trainer for the government course, said he expected most councils would take a "softly, softly approach" at first.
"But there will be some occasions where action has to be taken and I am sure the compliance officers will not shy away from that," he added.
"These officers do not have to identify themselves when they go into premises and they can even film and photograph people to gather evidence although this may not be appropriate in many cases.
"There will be two ways of doing this, either staff can go in and identify themselves to the landlord, but they don't have to."
We are generally supportive of the smoking ban, and, judging by the way similar bans have been introduced in other countries, feel that it will be easy enough to enforce in pubs, clubs, offices etc.
However, we are totally opposed to the idea of undercover snooping and photography aimed at individual smokers and non-smokers alike.
We think that this sort of snooping on people, rather than inspections of licensed premises and places of work, is ultra vires.
In our view this constitutes Directed Surveillance under the Regulation of Investigatory Powers Act 2000, which, if conducted by an authorised public body, must be cleared by the Office of the Surveillance Commissioners, in each individual investigation.
This is totally disproportionate to the Fixed Penalty Notice fine of £50 (discounted to £30 if you pay up promptly), which is to be used to enforce this ban.
You are not supposed to get a Criminal Record if you are served with a Fixed Penalty Notice However, the forthcoming, yet delayed, police intelligence systems like the Information Management, Prioritisation, Analysis, Co-ordination and Tasking (IMPACT) programme, together with various Government data sharing plans, could record such snooping details about Fixed penalty Notices in an "intelligence" database, rather than an "official criminal record" database. Similarly, such Fixed Penalty Notice data is likely to end up on the various Childrens Act 2004 "risk factor" databases on children and their parents.
There are, however, massive practical problems with the abuse of Fixed Penalty Notices in this way.
Local authorities i.e.
17. Any county council or district council in England, a London borough council, the Common Council of the City of London in its capacity as a local authority, the Council of the Isles of Scilly, and any county council or county borough council in Wales.
are permitted to conduct Directed Surveillance according to the Regulation of Investigatory Powers Act 2000 section 28 (b), if authorised by
"Assistant Chief Officer, Assistant Head of Service, Service Manager or equivalent"
However this can only be for
"(b) for the purpose of preventing or detecting crime or of preventing disorder;"
but not for section 28 (e)
(e) for the purpose of protecting public health;
Which is what the smoking ban is supposed to be about.
The Enforcement Authorities are listed in
SI 2006 No. 3368 The Smoke-free (Premises and Enforcement) Regulations 2006:
3.—(1) Each of the following authorities is designated as an enforcement authority for the purposes of
Chapter 1 of Part 1 of the Act—
(a) a unitary authority;
(b) a district council in so far as it is not a unitary authority;
(c) a London borough council;
(d) a port health authority;
(e) the Common Council of the City of London;
(f) the Sub-Treasurer of the Inner Temple and the Under Treasurer of the Middle Temple; and
(g) the Council of the Isles of Scilly.
(d) a port health authority;
(f) the Sub-Treasurer of the Inner Temple and the Under Treasurer of the Middle Temple;are mentioned in any RIPA schedules,
Therefore these Enforcement Authorities have no legal protection from being sued under the Human Rights Act if they conduct Directed Surveillance i.e. it will not be "in accordance with law" , which would otherwise invoke the exemption on Article 8 the right to Privacy, under the European Convention on Human Rights.
Even if they were allowed to do so, we contend that it would not be Proportionate to use Directed Surveillance techniques and technologies identical to those used against Serious Organised Criminals or Terrorists or Foreign Intelligence Agents, to persecute individual smokers, and to snoop on innocent people who are not smoking in a public place.
Similar restrictions on the proportionality of the use of Covert Human Informants i.e. informants and infiltrators, apply under RIPA section 29 so any "undercover" snooping would have to be by the actual "authorised enforcement officers" themselves.
Since the Police seem to have successfully evaded the unpopularity of having to enforce this smoking ban against individuals, the powers of a Police Constable are not available to the "enforcement officers".
They have to show their written authority, when they serve a notice on someone, either for failing to ensure that premises are smoke free, or for breaches of the no smoking sign red tape regulations, and also when they harass an individual smoker.
How is it possible for a member of the public to know that an undercover "smoking inspector" is really who they claim to be ?
Who is personally familiar with the signatures of every Local Authority senior managers, in every place that someone may travel to in the UK ?
The Department of Health have published a draft Fixed Penalty Notice form, which asks for the Name and Address of the person on whom it is being served.
The authorised enforcement personnel, have no statutory powers under the Health Act 2006 , unlike a Police Constable, to demand that someone identifies themselves correctly to them.
Why should anyone bother to give any name and address at all ?
If someone "obstructs" the "authorised enforcement officer" by giving a false name and address, they do not have any investigative powers to follow this up.
Fixed Penalty Notices for offences involving vehicles or premises are one thing, but they are entirely different when applied to individual people.
The "smoking inspectors" must never be allowed to demand to see your National Identity Card or to demand to check your biometrics against the National Identity Register.