G, R (on the application of) v Nottinghamshire Healthcare NHS Trust [2008] EWHC 1096 (Admin)

“In any case, premises are smoke-free only in those areas which are enclosed or substantially enclosed.”

“(1) The appropriate National authority may make regulations providing for specified descriptions of premises, or specified areas within specified descriptions of premises, not to be smoke-free despite section 2. (2) Descriptions of premises which may be specified under subsection (1) includes, in particular, any premises where a person has his home, or is living whether permanently or temporarily (including hotels, care homes and prisons and other places where a person may be detained). . . . (6) The regulations may provide, in relation to any description of premises or areas of premises specified in the regulations, that the premises or areas are not smoke-free (a) In specified circumstances, (b) If specified conditions are satisfied, or (c) At specified times, or any combination of those. (7) The conditions may include conditions requiring the designation in accordance with the regulations, by the person in charge of the premises, of any rooms in which smoking is to be permitted.”

“(1) A designated room that is used as accommodation for persons aged 18 years or over in the premises specified in paragraph (2) is not smoke-free. (2) The specified premises are – (a) Care homes as defined in section 3 (care homes) of the Care Standards Act 2000; (b) hospices which as their whole or main purpose provide palliative care for persons resident there who are suffering from progressive disease in its final stages; and (c) prisons.”

“(1) A designated room for the use of patients aged 18 years or over in residential accommodation in a mental health unit is not smoke-free. (2) In this regulation - “designated room” means a bedroom or a room used only for smoking which – (a) has been designated in writing by the person in charge of the mental health unit as being a room in which smoking is permitted; (b) has a ceiling and, except for doors and windows, is completely enclosed on all sides by solid, floor-to-ceiling walls; (c) does not have a ventilation system that ventilates into any other part of the premises (except any other designated room); (d) is clearly marked as a room in which smoking is permitted; and (e) does not have any door that opens on to smoke-free premises which is not mechanically closed immediately after use; and “mental health unit” means any establishment (or part of an establishment) maintained wholly or mainly for the reception and treatment of persons suffering from any form of mental disorder as defined in section 1(2) of the Mental Health Act 1983. (3) Paragraph (1) and (2) shall cease to have effect on 1st July 2008.”

“. . . for long stay mental health patients in an acute psychiatric state or terminally ill patients exceptions may be made on a case-by-case basis. However, no blanket exception will be allowed for particular categories of patients. . . . The policy should allow for flexibility in exceptional circumstances.”

“2. Acute Psychiatric State 2.1 This is not defined. It is a decision for the Responsible Medical Officer and Clinical Team to determine clinically. Nicotine withdrawal symptoms such as irritability, anxiety, low mood and increased appetite do not constitute an acute psychiatric state. 3 Terminal Illness 3.1 The diagnosis and prognosis of the illness will have been determined by a Consultant Physician, Surgeon or Oncologist following investigation. 3.2 An incurable illness is not necessarily a terminal illness, until the patient is in the terminal phase of the illness. 3.3 On receipt of the information that a patient has a terminal illness the RMO (Responsible Medical Officer), in consultation with the Clinical Team, may allow the patient to smoke if requested by the patient. 3.4 If the patient’s condition deteriorates to the extent that admission to a general hospital or a hospice is necessary, then the Smoke-free Policy operating in the receiving hospital will apply.”

“5.9 The patient may only smoke outdoors. The location to be chosen should be discrete as the sight and smell of a patient smoking may upset other patients. 5.10 The Nurse will retain the cigarette until the patient has been safely escorted outdoors, when the cigarette will be given to the patient and then lit by the Nurse who will retain the ignition source. 5.11 When the patient has finished smoking the Nurse will ensure that the cigarette is extinguished in a suitable ashtray and disposed of safely in an appropriate bin. 5.12 The staff and patient will return to the ward. 5.13 Once the decision has been made for the patient to stop smoking then the remaining cigarettes will be returned to the [patients’] Shop for destruction.”

“Moreover, recent research shows that public support is moving rapidly and decisively in favour of a comprehensive ban on smoking in public places and workplaces” (paragraph 54). However, in its Sixth Report of Session 2005-2006, the Joint Committee on Human Rights of the Houses of Parliament considered the possible impact of the Health Bill on human rights. The Committee considered potential “interference with smokers’ article 8 rights” and appear to have contemplated that the article would be engaged. The report stated, at paragraph 1.37: “In view of the evidence relied on in support of the proposed prohibition, the fact that it does not extend to a person’s home, and that provision is made to exempt places which are peoples’ de facto homes, the interference with the private life of smokers is in our view likely to be upheld as being proportionate.”

“Epidemiological studies suggest chronic smoking is associated with agoraphobia, generalised anxiety disorder and panic disorder... smokers have higher rates of and experience more severe depression are more likely to think about suicide and have higher suicide rates”

“Finally, a 12-month ‘sunset clause’ was provided for residential mental health units, rather than no exemption at all, in order to allow sufficient time for these premises to prepare for the implementation of the smoke-free provisions. Given that, at the consultation stage, the proposal had been to provide an indefinite exemption for long-term residential mental health units, they had had less time to prepare for the smoke-free provisions coming into force than other bodies who had no expectation that they might be made exempt.”

“The consideration for the exemptions will be within the patient’s own Clinical Team and would have to demonstrate both some benefit to the patient in being able to be exempted from the policy, i.e. it might help to relieve the symptoms of the acute exacerbation of their mental illness, and it was technically feasible. For Rampton Hospital this can sometimes cause a significant difficulty because of the very nature of having a hospital on three floors and because of the variability of some patients.”

“67. . .it is a cardinal constitutional principle that the will of Parliament is expressed in the language used by it in its enactments. The proportionality of legislation is to be judged in that basis. The courts are to have due regard to the legislation as an expression of the will of Parliament . . . The court is called upon to evaluate the proportionality of the legislation, not the adequacy of the minister's exploration of the policy options or of his explanations to Parliament.”

“62. The legislation must not only have a legitimate policy objective. It must also satisfy a 'proportionality' test. The court must decide whether the means employed by the statute to achieve the policy objective is appropriate and not disproportionate in its adverse effect. This involves a 'value judgment' by the court, made by reference to the circumstances prevailing when the issue has to be decided. It is the current effect and impact of the legislation which matter, not the position when the legislation was enacted or came into force . . . 63. When a court makes this value judgment the facts will often speak for themselves. But sometimes the court may need additional background information tending to show, for instance, the likely practical impact of the statutory measure and why the course adopted by the legislature is or is not appropriate. Moreover, as when interpreting a statute, so when identifying the policy objective of a statutory provision or assessing the 'proportionality' of a statutory provision, the court may need enlightenment on the nature and extent of the social problem (the 'mischief') at which the legislation is aimed. This may throw light on the rationale underlying the legislation.”

“This additional background material may be found in published documents, such as a government white paper . . . In explanatory notes prepared by the relevant government department . . . The court would merely be placing itself in a better position to understand the legislation.”

“But proceedings in Parliament are replete with information from a whole variety of sources . . . Ministers make statements . . . issues are explored by select committees . . . and explanatory notes are provided with Bills . . . Resort to information of this kind may cast light on what Parliament's aim was when it passed the provision which is in question or it may not . . . But if it does, the court would be unduly inhibited if it were to be disabled from obtaining and using this information for the strictly limited purpose of considering whether legislation is compatible with Convention rights.”

“There may be good reasons to do with the safety of the patient or of other people why it would be inappropriate for the patient to leave the ward at particular times or at all.”

“61. As the court has had previous occasion to remark, the concept of 'private life' is a broad term not susceptible to exhaustive definition. It covers the physical and psychological integrity of a person . . . It can sometimes embrace aspects of an individual's physical and social identity . . . Elements such as, for example, gender identification, name and sexual orientation and sexual life fall within the personal sphere protected by article 8 . . . Article 8 also protects a right to personal development, and the right to establish and develop relationships with other human beings and the outside world . . . Though no previous case has established as such any right to self-determination as being contained in article 8 of the Convention, the Court considers that the notion of personal autonomy is an important principle underlying the interpretation of its guarantees.”

“The applicant in this case is prevented by law from exercising her choice to avoid what she considers will be an undignified and distressing end to her life. The court is not prepared to exclude that this constitutes an interference with her right to respect for private life as guaranteed under article 8(1) of the Convention. It considers below whether this interference conforms with the requirements of the second paragraph of article 8.”

“More generally, to interpret the words “private life” and “home” as including certain professional or business activities or premises would be consonant with the essential object and purpose of article 8, namely to protect the individual against arbitrary interference by the public authorities.”

“62. The Government again stressed that the handcuffing had had no adverse effects on the applicant’s physical or moral integrity and that in any event, these had not been such as to amount to an interference with his right to respect for private life within the meaning of article 8. 63. According to the Court’s case law, the notion of “private life” is a broad one and is not susceptible to exhaustive definition; it may, depending on the circumstances cover the moral and physical integrity of the person. The Court further recognises that these aspects of the concept extend to situations of deprivation of liberty.”

“Mental health must also be regarded as a crucial part of private life associated with the aspect of moral integrity. Article 8 protects a right to identity and personal development, and the right to establish and develop relationships with other human beings and the outside world . . . The preservation of mental stability is in that context an indispensable pre-condition to effective enjoyment of the right to respect .”

“Article 8 of the Convention protects the individual's right to respect for his private and family life, his home and his correspondence. A home will usually be the place, the physically defined area, where private and family life develops. The individual has a right to respect for his home, meaning not just the right to the actual physical area, but also to the quiet enjoyment of that area. Breaches of the right to respect of the home are not confined to concrete or physical breaches, such as unauthorised entry into a person's home, but also include those that are not concrete or physical, such as noise, emissions, smells or other forms of interference. A serious breach may result in the breach of a person's right to respect for his home if it prevents him from enjoying the amenities of his home (see Hatton v UK[2003] ECHR 36022/97 at para 96).”

“It is plain that “private life” is a broad term, and the court [ECtHR] has wisely eschewed any attempt to define it comprehensively. It is relevant for present purposes that the court saw mental stability as an indispensable precondition to effective enjoyment of the right to respect for private life (Pretty). . . . Elusive though the concept is, I think one must understand “private life” in article 8 as extending to those features which are integral to a person’s identity or ability to function socially as a person. Professor Feldman, writing in 1997 before the most recent decisions, helpfully observed (“The Developing Scope of article 8 of the European Convention on Human Rights” [1997] EHRLR 265, 270). “Moral integrity in this sense demands that we treat the person holistically as morally worthy of respect, organising the State and society in ways which respect people’s moral worth by taking account of their need for security.”

“My Lords, in choosing these examples of people who give expression to their personality in different ways and arguing that article 8(1) is engaged in those circumstances, I have taken my cue from the idea that article 8(1) protects those features of a person’s life which are integral to his identity. For those for whom it is a core part of their lives, hunting, too, can be said to be integral to their identity. Therefore, but for one point, to which I shall return shortly, I would have held that the legislation banning hunting did interfere with their private life for purposes of article 8(1). Confining the protection of article 8(1) to those for whom an activity is a core part of their lives may be to set the bar too high”

“The huntsmen and women are taking part in what they know is not just a private activity, but a much admired public spectacle. I therefore conclude that they are not entitled to the protection for their private life in article 8(1).”

“The content of this right has been described as “elusive” and does not lend itself to exhaustive definition. This may help to explain why the right is expressed as one to respect, as contrasted with the more categorical language used in other articles. But the purpose of the article is in my view clear. It is to protect the individual against intrusion by agents of the state, unless for good reason, into the private sphere within which individuals expect to be left alone to conduct their personal affairs and live their personal lives as they choose.”

“(1) Fox-hunting is a very public activity, carried out in daylight with considerable colour and noise, often attracting the attention of on-lookers attracted by the spectacle. No analogy can be drawn with the very personal and private concerns at issue in Brüggemann and Pretty, nor with the interception of private telephone conversations (admitted to be an interference within article 8) in PG and JH, nor with the disclosure in Peck of closed circuit television pictures of the Complainant preparing to commit suicide. It is not of course to be expected that there will be a decided case based on facts indistinguishable from those of the case in issue, but none of the decided cases is at all close. With their references to notions of privacy, personal autonomy and choice and the private sphere reserved to the individual, they are in my opinion so remote from the present case as to give no guidance helpful to the Claimants.”

“I judge the HR claimants’ complaints in this case to be far removed from the values which article 8 exists to protect.”

“The right to respect for our private and family life, our homes and our correspondence, guaranteed by article 8, is the right most capable of being expanded to cover everything that anyone might want to do.”

“As yet, however, as Lord Bingham of Cornhill has shown, the Strasbourg jurisprudence has not gone so far in its interpretation of the rights protected by article 8 . . . Article 8, it seems to me, reflects two separate but related fundamental values. One is the inviolability of the home and personal communications from official snooping, entry and interference without a very good reason. It protects a private space, whether in a building, or through the post, the telephone lines, the airwaves or the ether, within which people can both be themselves and communicate privately with one another. The other is the inviolability of a different kind of space, the personal and psychological space within which each individual develops his or her own sense of self and relationships with other people. . . Article 8 protects the private space, both physical and psychological, within which individuals can develop and relate to others around them. But that falls some way short of protecting everything they might want to do even in that private space; and it certainly does not protect things that they can only do by leaving it and engaging in a very public gathering and activity.”

“The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any such ground as sex, race, colour, language, political or other opinions, national or social origin, association with a national minority, property, birth or other status.”

“According to the court’s case-law, ‘Article 14 complements the other substantive provisions of the Convention and its Protocols. It has no independent existence, since it has effect solely in relation to the enjoyment of the rights and freedoms safeguarded by those provisions. Although the application of Article 14 does not presuppose a breach of those provisions – and to this extent it is autonomous – there can be no room for its application unless the facts of the case fall within the ambit of one or more of the latter.’”

“As the language of this article makes clear, and as has often been held, this is not a free-standing provision. But nor does it require that any other article should be shown to have been violated. It is enough that there should have been discrimination on a proscribed ground within the ambit of another article of the Convention.”

“I cannot link this treatment to any personal characteristic of any of the claimants or anything which could meaningfully be described as “status”.”

“The Strasbourg case-law does not, and could not, spell out any simple bright-line test for determining how close must be the link between the alleged discrimination and the rights granted by the substantive article.”

“Nor does it lead to the conclusion that precisely the same sort of approach is appropriate, whatever substantive article is in point. That is particularly important, I think, in considering the ambit of article 8.”

“The Strasbourg court has however shown itself to be well aware of the dangers of any unrestrained or unprincipled extension of article 8.”

“83. My Lords, in my opinion that is not the effect of the Strasbourg case-law which I have attempted to summarise. The European Court has taken a more nuanced approach, reflecting the unique feature of art 8 to which I have already drawn attention: that it is concerned with the failure to accord respect. To criminalise any manifestation of an individual's sexual orientation plainly fails to respect his or her private life, even if in practice the criminal law is not enforced (Dudgeon v UK 4 EHRR 149 and Norris v Ireland 13 EHRR 186); so does intrusive interrogation and humiliating discharge from the armed forces (Smith v UK 29 EHRR 493 and Lustig-Prean vUnited Kingdom 29 EHRR 548). Banning a former KGB officer from all public sector posts, and from a wide range of responsible private-sector posts, is so draconian as to threaten his leading a normal personal life (Sidabras v Lithuania 42 EHRR 104). Less serious interference would not merely have been a breach of article 8; it would not have fallen within the ambit of the article at all. 84. Similarly the cases in which article 14 has been considered in conjunction with the family life limb of article 8 were all (whichever way they were ultimately decided) concerned with measures very closely connected with family life: Petrovic vAustria 33 EHRR 307 (parental leave), MataEstevez v Spain (social security benefit for surviving spouse) and Fretté vFrance 38 EHRR 438 (adoption). By contrast Logan v United Kingdom 22 EHRR 178 (the CSA case) is an example of unsuccessful reliance on a much more remote link (financial resources to visit absent children).”

“The prohibition of discrimination in article 14 thus extends beyond the enjoyment of the rights and freedoms which the Convention and Protocols require each state to guarantee. It applies also to those additional rights, falling within the scope of any Convention article, for which the state has voluntarily decided to provide.”

“As Lord Bingham of Cornhill said in R (Clift) v Secretary of State for the Home Department [2007] 1 AC 484, para 13, expressions such as “ambit” are not precise and exact in their meaning. As he put it: “They denote a situation in which a substantive Convention right is not violated, but in which a personal interest close to the core of such a right is infringed.”

“The question is whether, applying these principles, the Act is incompatible with article 14. In my opinion the argument that it is fails on both points. For the reasons already given, I do not think that article 8 or article 11 is engaged. Article 14 would be if the claimants could show that their case nevertheless fell within, or was at least close to, the core of the values guaranteed by either of those articles. But this is not something that can be plucked out of the air. It must be related to a right that, as it was put in Stec v United Kingdom (2005) 41 EHRR SE 295, para 39, the state has decided voluntarily to provide. Having done so, it cannot limit access to that right, restrict it or take it away on grounds that would conflict with any of the core values. That however is not this case. [The Hunting Act] is not directed at anything that the state itself has provided or seeks to provide. Its sole purpose is to restrict an activity in which persons can engage if they wish but in which the state itself is not involved at all.”

“33. Parliament, however, cannot have intended that in the discharge of this extended interpretative function the courts should adopt a meaning inconsistent with a fundamental feature of legislation. That would be to cross the constitutional boundary section 3 seeks to demarcate and preserve. Parliament has retained the right to enact legislation in terms which are not Convention-compliant. The meaning imported by application of section 3 must be compatible with the underlying thrust of the legislation being construed. Words implied must, in the phrase of my noble and learned friend Lord Rodger of Earlsferry, ‘go with the grain of the legislation’. Nor can Parliament have intended that section 3 should require courts to make decisions for which they are not equipped. There may be several ways of making a provision Convention-compliant, and the choice may involve issues calling for legislative deliberation.”

“If a provision requires the public authority to take a particular step which is, of its very nature, incompatible with Convention rights, then no process of interpretation can remove the obligation or change the nature of the step that has to be taken.”

“[The court] can read in and read down; it can supply missing words, so long as they are consistent with the fundamental features of a legislative scheme; it can do considerable violence to the language and stretch it almost (but not quite) to breaking point. The court must “strive to find a possible interpretation compatible with Convention rights. (R v A (2002) 1 AC 45, 67, para 44, per Lord Steyn). But it is not entitled to give it an impossible one, however much it would wish to do so).” (Emphasis added by Lord Millett)

“Article 14 prohibits, within the ambit of the rights and freedoms guaranteed, discriminatory treatment having as its basis or reason a personal characteristic (‘status’) by which persons or groups of persons are distinguishable from each other.”

“In matters of general policy on which opinions within a democratic society may reasonably differ widely the role of the domestic policy maker should be given special weight.”