England's proposed anti-vaping policy casually tramples over basic rights
There is no "right to vape", but property owners have the right to decide their vaping policy unless the government can justify overriding them. It has failed to make a case.
I responded to the Department of Health and Social Care consultation on Smoke-free, heated tobacco-free and vape-free places in England (closed 8 May 2026).
The short version is that the Department has failed to make a credible case for central government intervention through legislation. The government ignored the superior alternative option of letting the owners and managers of properties, including local authorities, and education and healthcare providers, decide policy based on their specific and evolving circumstances. The key policy question is not what the policy should be in any particular place, but who should decide.
However, why use three sentences when a much longer response is possible? I have divided my response into two parts:
Part I: My overall perspective on the proposals and the Impact Assessment, with a general comment, then setting out ten flaws in the case. I filed this as an attachment to my online responses.
Part II: My online responses to the consultation questions as presented by the Department, recognising that most are framed to ignore what I consider to be the better option.
For me, this will be a test of whether the government is serious about public health and about policymaking more generally. So far, it does not look promising.
Part I: Overall perspective
New policy on smoking and vaping in public
In summary (in my words), in England, the government has proposed to use new powers in the Tobacco and Vapes Act 2026 to:
Extend smoking bans to cover certain outdoor areas (education, playgrounds, health facilities - with exemptions for where people live within such institutions)
Ban the use of heated tobacco products in the same indoor and outdoor places where smoking is banned.
Ban vaping in the same indoor places as smoking (with exceptions for some places where people live), and the same outdoor places as smoking, except certain healthcare facilities.
In addition, there are proposals to define boundaries and introduce signage. The government has produced two documents available on .gov.uk to explain and justify the proposals.
Open consultation: Smoke-free, heated tobacco-free and vape-free places in England 13 February 2026
Consultations stage impact assessment (IA), 13 February 2026.
There is a consultation to solicit public views: access online here (closed 8 May 2026)
What is wrong with the new policy proposals?
Generally: a violation of property rights without good cause
In a well-managed economy and free society, the government generally intervenes only when it has a compelling case to do so: typically to provide security, uphold a wide range of rights and manage conflicts between them, address market failures, or promote equity and cohesion. To justify intervention, the government should show that the expected benefits outweigh the costs, consider alternatives, and assess the likely unintended consequences. To do this, it has to be clear where the problem lies, what it hopes to achieve, how its intervention will work, and show that it has considered less costly or intrusive alternatives to achieve the same aims. All this is set out in detail in the Treasury Green Book and Better Regulation Framework, which are supposed to guide UK regulation.
The key question is not what the policy should be in any particular place, but who should decide: the government or the property owner. The right to decide defaults to the property owner - a form of property rights - unless and until the government can demonstrate a rationale for intervention to override the owner’s preferences using the framework above.
The government’s current Better Regulation Framework states:
5.5. An essential first step in considering any form of regulatory intervention, which is expected to generally only occur when there is a market failure, is to identify the policy aims and what outcomes an intervention is intended to achieve. Identifying this early helps to ensure that the eventual policy approach and decision best addresses those aims, rather than defaulting to legislation being the answer.
The government’s guidance on policy appraisal, HM Treasury’s Green Book, sets out how policy appraisal should formulate a rationale for intervention.
The Better Regulation Framework also recognises that alternative forms of action can provide a more elegant solution.
5.6. Departments must ensure that they consider fully the possible use of alternatives to regulation (‘alternatives’) in the early stages of policy development. The use of alternatives can help to solve policy problems more quickly and encourage greater compliance. It can also help to minimise burdens on businesses and consumers, and promote competitive markets.
In fact, the government’s policy from 2016 has been an alternative to regulation: to provide advice to property owners and managers to help them make decisions that suit their preferences and serve their service users, clientele, or customers.
Use of e-cigarettes in public places and workplaces: Advice to inform evidence-based policy making. Public Health England (2016)
This guidance took a wise, pragmatic approach, stressing that “one size-fits-all” is unlikely to work well:
PHE has produced this guide in consultation with public health partners and other stakeholders.* It is deliberately non-prescriptive, because no one-size-fits-all answer exists to the issue of e-cigarette use in public places and workplaces. Instead, by setting out some key principles for an approach that fits with our current knowledge and protects against the unintended consequences of being either too permissive or too prohibitive, it can help organisations develop their own policies. [PHE Guidance, 2016]
But when the government intervenes, the discretion of property owners and managers is overridden by sweeping decisions passed down from a remote executive in Whitehall. We move from a bottom-up, nuanced approach to a top-down, dirigiste approach that does not allow for widely differing circumstances or accommodate diverse populations. It may also suppress imaginative solutions and innovation in tackling smoking in particular populations.
Specifically, ten flaws define failure to make a case
I will list ten flaws:
First, there has been no evaluation of the existing smoking and vaping policies, and therefore, no data to inform decision-making. Just because there is no law governing vaping in public does not mean it is permitted everywhere: it clearly is not. On the contrary, many public and private-sector property owners exercise control and communicate their policies through signage. Is anybody forced to sit in a vapey environment? Do most pubs ban vapes already? How common is it for workplaces to allow vaping? Are there schools that allow smoking? Does anyone distinguish between heated tobacco use and vaping? Is outdoor use already limited to specific areas (e.g. on hospital grounds) that non-users can avoid? The point is that we do not know for sure because the government has not evaluated the current policy approach and therefore lacks a strong evidentiary basis for its new policy. The government’s Magenta book on policy evaluation states:
High quality evaluation evidence can enable decision-makers to better target their intervention; reduce delivery risk; maximise the chance of achieving the desired objectives; and increase our understanding of what works. Without robust, defensible evaluation evidence, government cannot know whether interventions are effective or even if they deliver any value at all.
Routine, high-quality evaluation is part of a culture of continual improvement and should be core to the work of all government departments. It will also provide the source of information for others to learn from (across public services and communities).
Second, there is no adequate definition of the problem. Related to the lack of evaluation, there is no account of “market failure” or other rationale in workplaces or public places, and no sense of who is at risk and to what extent. In outdoor settings, it is possible to observe elevated increases in particulate matter from tobacco, vapes or HTPs. But so what? These exposures are low and transient. In indoor settings, exposures from vapes and HTPs are qualitatively and quantitatively different from those from smoke. Tobacco smoke contains far more persistent and toxic particulate matter than vapes of HTPs. No comparative framework has been established: how do these exposures compare to indoor smoke exposures (the basis of current policy) or the aerosols from cooking? How does vaping or HTP use compare to outdoor exposures from barbeques, garden bonfires, or background air pollution? There is little in the IA to establish materiality.
Third, the purported benefits of the proposed policy have no scientific justification. No effort has been made to quantify the benefits or even to explain qualitatively how they might arise. The proposals relate to smoking outdoors and vaping or heated tobacco use indoors or outdoors. However, the documentation provides no indication that these exposures pose meaningful risks warranting state intervention. The fact that the public appears supportive in surveys is not a reliable guide: most people do not have professional policymaking skills, and do not usually think in terms of situations outside their experience, consider trade-offs, understand the risks, or recognise likely unintended consequences.
Fourth, the government’s preferred option has an estimated cost of £531.8 million. No convincing justification has been provided for imposing this burden on the public (the public ultimately pays as taxpayers, consumers, employees, or shareholders). Nor is it clear, even in loose qualitative terms, how the benefits would be expected to add up to exceed this sum.
Fifth, the government recognises potential unintended consequences but then ignores them. The government notes that vaping is used for smoking cessation, which is the primary public health objective and the basis of the government’s targets.
Vapes are often used as a cessation aid, however, and therefore policies which reduce the appeal of vaping products may however have unintended consequences. An unintended consequence of our proposal to limit the locations where an individual can vape, for example, could be a reduction in people using vapes as a smoking cessation aid. [Impact Assessment]
It is quite possible that this unquantified cost will overwhelm the also unquantified and poorly specified benefit. Given the health benefits arising from an indoor and partial outdoor vaping ban are likely to be small (no case has been made that they will amount to much), then only small changes in smoking prevalence (with far greater risks) arising from anti-vaping measures will dominate a realistic cost-benefit analysis. In the Impact Assessment for the Tobacco and Vapes Bill, the government estimated the impact of policies on smoking. It attributed large monetary values to them (around £70,000 per person quitting smoking). But in this case, it has not even made the attempt. There are currently around 5.4 million smokers in the UK, so each 1% (54,000) dissuaded from switching would be equivalent to about £3.8 billion in a cost-benefit analysis. Almost all of the impacts of any vaping policy arise from its effect on smoking, given the respective risks of smoking and vaping.
Sixth, the unjustified equivalence of heated tobacco use and smoking. The policy treats heated tobacco use no differently than smoking, whereas it is closer in public health terms to vaping. The IA recognises that vapes may displace smoking (see above), but the same is true for heated tobacco products. The policy on outdoor use on hospital grounds carves out an exception for vaping (rightly). Yet, it does not extend this exception to heated tobacco use, even though the same rationale applies to vaping (below) and heated tobacco:
“This is to balance the need to protect medically vulnerable people while still helping adult smokers quit, and vaping can play a role in helping people to stop smoking.”
Policy on heated tobacco use should be aligned with vaping, not smoking.
Seventh, the unequal treatment of utility gains and losses. The options appraisal specifies an unquantified benefit: “Utility of individuals who do not smoke, use heated tobacco products, or vape.“ However, there is no symmetrical inclusion of a utility loss to individuals who smoke, use heated tobacco products, or vape. People likely respond to such bans by excluding themselves from areas where they apply or by being forced to undergo temporary withdrawal, which may be uncomfortable and destabilising. Such utility losses are likely far larger than utility gains arising from not catching a whiff of smoke.
Eighth, wholly unconvincing evidence of material risk or benefit from intervention. Though the government leads with evidence related to indoor passive smoking exposure, that is not the subject of the proposal. The proposal relates to either much safer products with far less toxic aerosols (vapes and heated tobacco), or to outdoor rather than indoor exposure, where dispersal is more rapid and complete, or to both. Furthermore, most of the outdoor exposures would be transient. The evidence base that justified indoor bans drew on toxic and lingering cigarette smoke sustained over many years or decades.
The evidence presented for extending smoking restrictions to outdoor settings (IA 20-22) does not even attempt a health case. It simply argues that some people may encounter secondhand smoke in some outdoor settings. It is impossible to see a health rationale in this evidence, though there may be other justifications.
The evidence presented for treating heated tobacco in the same way as smoking (IA 23-25) ignores the very large difference in the toxicity and persistence of HTP aerosol and cigarette smoke, and the fact that heated tobacco provides a harm reduction option similar to vaping and preferable to some smokers.
The evidence presented on vaping restrictions (IA 26-30) does more to confirm the case against restrictions than to make the case. There is extensive evidence that shows that vape aerosol is far less toxic and persistent than cigarette smoke, and the evidence presented in these paragraphs confirms that. Nothing in the IA suggests that vapes (indoors or outdoors) present a material risk. Rather, it confirms orders-of-magnitude lower risk. If there is an issue, it relates to nuisance and decorum, and such matters are not best addressed in Whitehall.
Ninth, the consultation ignores the most competitive alternative option: decentralised decision-making by property owners. Though this might be the “business as usual” case, Option 1 is expressed as though the only way that smoking, vaping or heated tobacco use can be controlled is through laws handed down from central government.
Option 1 (‘Business as Usual’): Smoking is not permitted in the majority of enclosed or semi-enclosed workplaces and public places in England as well as private vehicles with an individual under the age of 18 years old. There are some exemptions to these locations.
Yet this is clearly not the case: national law is not the only deciding factor. There are already many places where vaping is banned, despite no law requiring it. The decisions currently lie with the owner and operator. The Impact Assessment and consultation questions never express the alternative as decentralised decision-making by property owners, businesses, and local authorities, education or healthcare providers. Suppose the consultation questions had been expressed:
“Who should decide the outdoor smoking policy at a hospital: the NHS and the team running the hospital, or ministers and civil servants in central government making irreversible, one-size-fits-all decisions implemented through legislation subject to minimal scrutiny in Parliament?” [my illustrative wording]
Tenth, propose a better alternative for consultation. There is a way to advance an agenda that supports public health and national smoke-free goals. I would express this as follows:
The scientific evidence does not support the use of centralised law-making to override the rights and localised discretion of the owners and managers of properties to define policies for vaping and heated tobacco policies (indoor and outdoor) and smoking (outdoor) as they see fit.
These decisions should be taken by property owners and managers, businesses, and public service providers (health, education, local government) in line with their views of the needs and opportunities, and with flexibility to adjust in light of experience. There is no need to pass laws and control everything from Whitehall.
A high value should be placed on flexibility to address specific circumstances and to adjust in the light of unexpected, adverse behavioural responses. Passing laws may lock in harmful, perverse consequences that were not anticipated when the law was passed.
The central government can play a role by providing advice and guidance, keeping abreast of evolving science, and standardising signage (via British Standards). If the government wishes to intervene by law, it could set a date by which decentralised policies must be in place, with appropriate signage. The government could also commit to evaluating the policy every three to five years to assess the case for change.
Part II: My responses to consultation questions
These are the answers I included in the boxes left for comments. They are consistent with the position staked out above.
Making outdoor places smoke-free
These decisions should be made by the bodies running the healthcare, educational, and local authority facilities to which they apply, and they should have full discretion in this. I notice with dismay that you have not drawn attention to this option, implying that unless the government passes these regulations, then smoking will be permitted everywhere.
Most and possibly all will impose such restrictions, but what if they have a reason not to? Should they be overruled? Not everything has to be done by law and from Whitehall. As a matter of principle, the government needs a good rationale for this dirigiste intervention, rather than just wanting to be seen doing something. The evidence presented in the Impact Assessment does not make a credible case for imposing outdoor smoking bans by law on health or other grounds.
A useful role for the government would be to address a coordination and efficiency challenge, which is to standardise signage and definitions so that policies are compatible and signage is recognisable.
Exemptions to outdoor smoke-free places
Decisions about smoke-free outdoor areas and exemptions should be made by the bodies that run these facilities. Again, the government implies that Whitehall knows best and has an omniscient awareness of how these bans play out in practice. The advantage of defining the policy as a matter for local discretion is that unexpected adverse consequences can be addressed responsively. It is a big stretch to imagine that civil servants and ministers will be able to foresee the consequences in thousands of circumstances, have the wisdom to anticipate all eventualities, including adverse behavioural adaptations, and then discover the flexibility to reverse course by changing the law when the unexpected happens. The great advantage of local discretion over nationwide legislation is its flexibility and adaptability.
Heated tobacco-free indoor and outdoor places
Again, the consultation question ignores the most obvious alternative: using more flexible local discretion rather than directive legislation handed down from Whitehall. I have two further points to make.
First, the government lacks a credible rationale to intervene: decisions about smoking, vaping, and heated tobacco use should be made by the owners or operators of the relevant facilities, applying local discretion with flexibility to respond to adverse behavioural adaptations. The case was made successfully for legislating for indoor smoking bans, but this was based on the toxicity and persistence of indoor cigarette smoke and exposures to high levels of combusted particulate matter over years or decades. It is not realistic to employ policy-by-heroic-analogy to extend such bans to a qualitatively different type of exposure from a very different, and smoke-free, nicotine product.
Second, heated tobacco products are much more realistically placed in the same category as vapes. They produce vapour from a humectant with far lower toxicity and persistence than cigarette smoke, and like vapes, they have the potential to displace smoking and greatly reduce risk. For some people who smoke, these products may be preferable to vapes as an alternative to smoking (like heavier smokers). The decision to equate heated tobacco with smoking smacks of an activist-appeasing loathing of tobacco, rather than a pragmatic determination to address smoking, which is the main public health problem.
Exemptions to heated tobacco-free places
I do not believe that these issues should be addressed centrally, but rather at the discretion of the employer, operator, or property owner, possibly with the government acting in an advisory and standardising role (the approach taken to date with vaping). Legislation is a blunt and inflexible instrument, and though it has been justified for smoking in indoor, publicly accessible places, no credible justification has been made for extending these provisions to outdoors or heated tobacco or vapes indoors.
For example, suppose evidence emerges that heavy smokers admitted to hospital can be persuaded to try a heated tobacco product but would find vapes unsatisfactory. Should the hospital be denied the opportunity to encourage that person to quit because that would not only require them to leave the hospital building but also the hospital grounds?
Vape-free indoor and outdoor places
As I have argued so far, these policies should not be made through inflexible laws handed down from Whitehall. The issue is ultimately one of property rights. The right to determine what happens in a given space defaults to the owner or manager, absent a credible rationale for the government to override their preferences. No credible rationale has been provided.
There are countless reasons why a property owner might wish to accommodate vaping indoors in some settings: for example, to facilitate smoking cessation, to avoid forcing people vaping to go outdoors, to save time, to avoid signalling that smoking and vaping are equivalent, to attract a clientele that includes vapers, to make indoor provision for people who vape in a particular area or room, to avoid implying that vaping and smoking have equivalent risks, to engage people suffering various forms of disadvantage without alienating them.
Local discretion devolved to owners and operators also allows for innovation in public health, flexibility to reflect different circumstances, and adaptability to changing circumstances or knowledge that improves over time.
Again, the government can play an advisory and standardising role.
Boundaries to where smoking, heated tobacco use and vaping are restricted outdoors
Extending a smoke- or vape-free boundary into an adjacent property using a fixed-distance (10 metres) perimeter-extension rule neatly illustrates the absurdity of rules made in Whitehall, far from the settings where they are to be applied. It should be obvious that this could be a cause of conflict and a violation of the private property rights of neighbours. Extending areas in this way also suggests a level of risk-aversion that has reached the molecular level of exposure. This provides a good example of why parliament should fully scrutinise measures like this, rather than implementation through regulations.
Alternative approach: the right to control what happens within the boundary of a property is limited to the property and should be at the discretion of the property owner, not specified in law unless there is a case for intervention, which there is not.
I do not believe that the government should specify which places are vape- or heated-tobacco-free or which outdoor places are smoke-free - that should be for the owners or operators. However, it is important that people know the status of their current location. For that reason, there is a good role for specifying signage requirements and standardising signage to ensure it is recognisable, for example, through British Standards.
Implementation period
I do not support a legislative solution for determining which places are vape- or HTP-free and which outdoor places are smoke-free. However, a six-month period for owners or operators to clarify where these behaviours are banned is a reasonable requirement.
