[Intl-tobacco] Ireland: Legal problems delay smoking ban

[Robert Weissman]

Legal problems delay smoking ban
The Post
 November 2, 2003

 Sean Mac Carthaigh, Political Correspondent

 The government has become bogged down by legal wrangles over the
smoking ban, and it will not now be fully operational until mid-February
at the earliest. The Minister for Health, Micheal Martin, has still not
sent his revised regulations to the European Commission, despite
claiming ten days ago that he had. Under EU rules, the government must
submit regulations to Brussels a full three months before they come into
force.

 It has emerged that Martin deliberately sent flawed and unenforceable
regulations to Brussels in mid-October, in order to start the
three-month countdown in time to finish in the month of January 2004.
"The smoke-free regulations will apply to all enclosed places of work
other than a private dwelling. An amendment to the regulation is being
notified to the EU to confirm this," Martin claimed on October 23.

 In fact, this crucial change to the regulation has not yet been
finalised, and is this weekend still being scrutinised by the Attorney
General. The Department of Health believes it is not required to give
another three months notice to Brussels for an "amendment" to the first
law.

 Meanwhile, an entirely separate set of smoking regulations, relying on
different laws and proposed by the Minister for Labour Affairs, Frank
Fahey, will come before the cabinet onTuesday.These too must be sent to
Brussels three months before their imple-mentation, pushing back the
date to February at least.

 The government believes the second set of regulations, plus the
amendment, are necessary. However, last Friday it was still refusing to
release the text of either. It is understood that there is still
confusion over precisely which agencies will enforce which set of
regulations - and which regulations will effectively not be enforced at
all.

 Sources say prisons are unlikely to be exempt from the smoking ban,
even though a jail cell could be regarded as a "dwelling", because they
are also workplaces for the state's 3,300 prison officers. "It will
apply to prisons, but under a provision in the Health and Safety Act
1989, if the threat from enforcing it is greater than the threat to
health, officers may choose not to enforce it," a Department of Health
source said.

 However, it was not clear whether this provision would indemnify the
state against compensation claims by prison officers for environmental
tobacco smoke. Another quandary lies in the issue of whether to allow
people who work in the homes of others, such as decorators or cleaners
to sue their employers for smoking at home.