Open Letter to UK Rail Service Providers

Subject: Open Letter to UK Rail Service Providers
From: Katherine Devlin
Date: 20 May 2015

Dear Sir/Madam,

It has been brought to our attention that an announcement was made on a rail service to the effect that the use of ecigs was banned on the train as a “legal requirement”. Furthermore, in response to an email of complaint from a Scotrail customer, published in part on the Rail UK Forum, Scotrail stated:

“We have taken legal advice on this matter and believe we are within our rights to exclude e-cigarettes under the existing railway bylaw that refers to a “lighted item”. The bylaw does not require the nature of the lighting to be an actual flame. In addition, the definition of “cigarette” in the bylaw is not restricted to a classic tobacco cigarette but covers any cigarette. There is no reference in fact to tobacco in the bylaw itself.”[1]

We do not believe that this is the case, since the Railway Byelaws clearly state:

“No person shall smoke or carry a lighted pipe, cigar, cigarette, match, lighter or other lighted item on any part of the railway on or near which there is a notice indicating that smoking is not allowed.”[2]

We would suggest that there is a clear inference that “lighted” in this context is a direct reference to the past tense of the verb ‘to ignite or cause to ignite’, rather than to the verb ‘to illuminate or cause to illuminate’. Electronic cigarettes involve no combustion, so are never ‘lit’ or ‘lighted’ within this definition. In addition, there is no definition of either “cigarette” or “tobacco” in the Railway Byelaws, and the intention of the cited paragraph is very clear in referring to any item which is alight, i.e. burning. There is a clear and obvious link between “lighted pipe, cigar, cigarette, match, lighter…” in that they all involve combustion, and the Byelaw makes it very clear that this is linked to areas where “smoking is not allowed”. This simply cannot be deemed to include an electronic cigarette, which does not involve combustion and therefore cannot produce smoke when used.

This is confirmed in Electronic cigarettes: time for an accurate and evidence-based debate, a paper published in the journal Addiction on 5th May 2014, the authors state:

“unlike ordinary tobacco cigarettes, the current e-cigarettes on the market operate with ‘no tobacco, smoke, or combustion’.”[3]

However, if any rail operator wishes to apply the alternative definition, i.e. anything that emits light is prohibited, we would hope that it would be applied in a consistent manner, and that consequently, all light-emitting products would also be prohibited, including laptop computers and mobile phones.

If a person using an electronic cigarette is not discommoding other passengers, it could indeed be argued that demanding that they cease to use their electronic cigarette, in the absence of any legal justification, directly contradicts article (8) of section 6 of the byelaws:

“6. Unacceptable behaviour


(8) No person shall molest or wilfully interfere with the comfort or convenience of any person on the railway.”

Of course, any rail operator has the right to decide what their policies shall and shall not include. However, in the context of the Railway Byelaws, which are prescribed standards that railway staff and passengers can reasonably expect to be upheld, unless such byelaws are over-ridden by national laws, it would seem that rail operators are not entitled to “wilfully interfere with the comfort or convenience of any person on the railway” by requiring them to desist from using their electronic cigarette if they so wish. Since no national law has been passed banning the use of electronic cigarettes in public places, then not only is it demonstrably not the case that the banning of electronic cigarettes on rail services is a legal requirement, it is in direct contravention of the existing Railway Byelaws.

We hope that you will want to reconsider any such policy in any event, particularly in light of a recent briefing from ASH (Action on Smoking and Health), who said:

“ASH supports regulation to ensure the safety and reliability of e-cigarettes but, in the absence of harm to bystanders, does not consider it appropriate to include e-cigarettes under smokefree regulations.”


“The fact that electronic cigarettes look similar to conventional cigarettes has been said to risk confusion as to their use in public places, such as on public transport. However, given that the most distinctive feature of cigarette smoking is the smell of the smoke, which travels rapidly, and that this is absent from electronic cigarette use, it is not clear how any such confusion would be sustained.”[4]

We would be very happy to provide any further information you might need, and hope that you will reconsider and look into this issue further. We remain confident that you will want to offer the best balance of comfort and convenience for all your passengers.

Yours faithfully,

Katherine Devlin