Tuesday, 29 July 2014

Welsh Government - A Duty Of Care on Personal Vaporisers

So, the arguments and the controversy over the Welsh Government's proposed ban on the use of Personal Vaporisers (eCigs) in public places continues.

The Public Health White Paper consultation period ended on 24th June 2014. Surprisingly little has been heard coming out of the Welsh Government since that time - probably because they all about to go into their extensive summer recess.

In this blog, I am not going to go into the complete lack of evidence that there is any harm caused by Vaping. I, and many others, have covered that subject in previous blogs.

But this lull in the battle for the rights of vapers has given me plenty of time to think about how the Health Minister - Mark Drakeford - is slowly backing himself into a corner. Potentially, he is also leaving himself open to legal challenge and it is the legal challange that I am going to investigate here.

The Welsh Government brought in the ban on smoking in public places back in 2007. The rationale for the ban on smoking in public places was to protect non-smokers from inhaling the toxic fumes from cigarettes in the form of second hand smoke. However, by doing so, the Welsh Government have taken it upon themselves to have a 'Duty Of Care' in the eyes of the law. By taking the decision on whether to allow smoking away from the owners of such places (e.g. in a Pub), it meant that the owners of those places were simply obeying the law, therefore abdicating their 'Duty Of Care' in this matter to the Government.

Now the Welsh Government are at it again. Mark Drakeford wishes to ban the use of Personal Vaporisers in Public spaces and treat them exactly the same as tobacco cigarettes. Therefore, he is relieving owners of such public spaces of any duty of care (other than to enforce the law) and giving that duty of care to the Welsh Government.

So, let us look more closely at what that will mean in practice and in law.

If Mark Drakeford does bring in a ban on the use of Personal Vaporisers in public spaces, he will be forcing Vapers outside with the smokers. I accept the fact that 'some' Vapers are dual-users. That is, some people will use Personal Vaporisers in ADDITION to smoking normal tobacco cigarettes.

However, Vapers who use Personal Vaporisers EXCLUSIVELY are NON-SMOKERS. They do NOT expose themselves, or anyone else, to the carcinogens of tobacco cigarettes.

Given that the smoking ban was introduced to protect non-smokers from the effects of second-hand smoke, then by forcing Vapers outside with the smokers the Welsh Government is forcing some non-smokers (i.e. Vapers) to inhale second hand smoke from tobacco smokers. They are effectively abdicating their Duty Of Care to non-smokers who choose to use Personal Vaporisers.

Because the ban on smoking in public places is enshrined in law, then it becomes a matter of human rights. Vapers have as much right NOT to be exposed to the effects of second hand smoke as any other non-smoker. Thereby, by forcing Vapers outside with tobacco smokers, the Welsh Government will find itself in violation of the law - most likely the European Convention on Human Rights laws.

Furthermore, I do not believe that Mark Drakeford has thought through the consequences for his potential ban should any company produce a Personal Vaporiser that gains a Medical License. Any medically licensed Personal Vaporiser would automatically be immune from a ban in public spaces as it would be considered a medicine. It is already known that some companies are going down the path of seeking to produce a Personal Vaporiser that can get a Medicinal License. It may take some time before that happens, but it WILL happen at some point in the future. 

If Mark Drakeford cannot tell the difference between a tobacco cigarette and a Personal Vaporiser, then he has no chance whatsoever of telling the difference between a non-Medicinally Licensed Personal Vaporiser and a Medicinally Licensed one.

Of course we do not currently know if the Welsh Government will move forward with such a ban, let alone what format any such ban may take. But at the very least, any ban on the use of Personal Vaporisers in public spaces MUST take into account the rights of Vapers to also NOT be exposed to second hand smoke. He could mandate it by insisting that owners of public spaces provide areas that separate vapers from smokers. However, the majority of Pubs (for example) would be unlikely to be able to afford the expense of ANOTHER area outside separate from smokers. But then, if it becomes law that Personal Vaporisers cannot be used in Public Spaces, then the Duty Of Care will NOT lie with the owners of that public space, it will still reside with the Welsh Government.

So Mr Drakeford, before you plunge too far into your ideological and evidence-less based crusade into banning Personal Vaporisers from Public Spaces, think through the LEGAL implications of imposing such a ban.

Vapers are non-smokers and have the same rights as other non-smokers. Any ban on Personal Vaporisers in Public Spaces is highly likely to be in contravention of the ECHR as a result.

You took on a Duty Of Care when you banned smoking in public spaces. You cannot then abdicate such a Duty Of Care if you also impose a ban on Vaping in Public Spaces.