TOBACCO CONTROL LAWS

R (N), et al. v. Secretary of State for Health, et al

Smokers, who were, or had been, detained at a mental health facility, appealed a Division Court ruling in which they challenged a government regulation banning smoking in mental health facilities based on the right of privacy in the home and the right to protection against discrimination against mentally ill persons. Specifically, their argument focused on the difference between the exemptions granted to prisons versus the exemptions granted to mental health units, which were only temporary. Agreeing with the Division Court and dismissing the appeal, the Court concluded that the smokers are not protected under the European Convention on Human Rights because the smoking prohibition does not have a sufficiently adverse effect on a patient's physical or moral integrity and the "right" or "freedom to smoke" does not engage these rights under the Convention.

N, R (on the application of) v. Secretary of State for Health, HRLR 31, Supreme Court of Judicature Court of Appeal (Civil Division) (2009).

  • United Kingdom
  • Jul 24, 2009
  • Supreme Court of Judicature Court of Appeal (Civil Division)
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Parties

Plaintiff

  • R (E)
  • R (N)

Defendant

  • Nottinghamshire Healthcare NHS Trust
  • Secretary of State for Health

Third Party

  • Equality and Human Rights Commission

Legislation Cited

Health Act 2006

Smoke-free (Exemption & Vehicles) Regulations 2007 (SI 2007/765)

International/Regional Instruments Cited

Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights)

Related Documents

None

Type of Litigation

Challenge to Government Policies Relating to Tobacco Control/Public Health
Tobacco companies or front groups may challenge any legislative or regulatory measure that affects their business interests. Unlike public interest litigation, these cases seek to weaken health measures. These cases frequently involve the industry proceeding against the government. For example, a group of restaurant owners challenging a smoke free law as unconstitutional.

Tobacco Control Topics

Smoke Free Measures
Measures to reduce or eliminate exposure to tobacco smoke. (See FCTC Art. 8)

Substantive Issues

Right to Health
A violation of the right to the enjoyment of the highest attainable standard of health. Public health advocates may claim the public’s right to health is violated by weak tobacco control measures, industry tactics, or an organization’s or smokers’ actions.
Right to Equal Protection
A violation of the right to equal protection under the law, or another form of discrimination. The industry may claim that regulations discriminate against tobacco companies or tobacco products. Smokers may claim that addiction is a health condition, so regulations discriminate against them based on their health condition. Facilities subject to smoke free laws may claim that smoke free (SF) exceptions (e.g., hotel rooms, mental hospitals, etc.) unfairly discriminate against SF businesses because the law should apply to all locations equally.
Right to Life
A violation of the right to not be killed by another person. Arguments may also be similar or tied to right to health arguments.
Right to a Healthy and Safe Environment
A violation of the right to live in a safe and healthy environment.
Right to Self-Determination
Smokers’ rights groups may claim that governments interfere with consumers’ freedom of choice when they regulate tobacco use.
"Right to Smoke"
The tobacco companies and some individual plaintiffs argue that there is a right to smoke.
Right to Privacy
This is the right to a private personal and family life without intrusion from the government.
Ultra Vires Regulation
Subsequent regulations exceed the scope of the originating law.

Type of Tobacco Product

None

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