Micheál Martin (Cork South Central, Fianna Fail)

I thank the Senators for their comments. The background to this section is that the common denominator in these exemptions is that they apply to a dwelling place. We indicated in November that we would notify regulations to Brussels in the context of providing for such exemptions. When we had a three hour discussion on the then published regulations in the other House, many Deputies on all sides raised the point that exemptions from the regulations should be put in place in regard to institutions such as psychiatric hospitals, nursing homes and hotels. To give legal certainty to that, we have put these provisions in the Bill. I retained a team of senior counsel, through the Attorney General's office, to advise me every step of the way on this issue with a view to the future. I was advised that the most effective and robust way to protect the overall edifice of the smoke-free policy was to insert these provisions in this detail in the body of the Bill.

In the context of health and safety legislation, a clause has always been provided that allowed for a different approach to the implementation of such legislation in the prison environment because of other competing issues such as control, order and so forth. Such a clause has always been included in health and safety legislation.

The key point is that an exemption does not mean a free for all policy. Every employer and owner of a premises or nursing home still has an obligation to protect his or her employees from the harmful effects of environmental tobacco smoke. In regard to the health institutions that will come under the Department of Health and Children and the health boards, we will insist on a strong, robust provision under that heading in terms of protecting the employees and the other inhabitants of such residences. In other words, it is not a matter of saying that one is exempted from the legislation and can do what one likes. That is certainly not the case. Clear protocols will be established to protect employees in such a situation. Some of those institutions have already managed to do that. Even in the psychiatric area there are one or two examples where outdoor facilities have been created.

Under the original Bill and regulations, a dwelling, as in a private home and so on, was not covered. This created a dilemma in terms of someone living in a nursing home for the past five or ten years and whether that should be regarded as their home. In some of the community residences I visited recently no one can smoke in any of the communal areas. I spoke to the Mental Health Commission and there is no reason that shelters cannot be built with the 50% exposure in the garden, back yard or whatever to facilitate people smoking.

The Irish Hotels Federation's position to us is that approximately 75% of hotel bedrooms are now smoke free. Most guesthouses are entirely smoke free. Many of them do not want to facilitate or encourage smoking for other reasons — fire, damage to furniture, beds and so forth. I do not see a huge issue in regard to guesthouses, and I never did. I considered that they were ahead of the game, but the problem is consistency across the board. Once we go down the road we have to dot the i's and cross the t's in terms of making sure there is consistency with respect to legislation. The key point is that the presence of exempted areas do not absolve businesses or establishments from any responsibilities towards employees or inhabitants. Employers still have responsibilities and we will be pushing home that point strongly in terms of issuing of guidance and so forth.