New Railway Byelaws - "electronic cigarettes" purportedly banned

[soil]

Have these points been tested in court - either at a level that sets precedent, or sufficiently often to show that lower courts share your view?

How would they be tested in court when it's not law yet?

== Doublepost prevention - post automatically merged: 8 Dec 2025 ==

Vapes do not contain tobacco therefore they don't fall under the laws from pre-vaping which related specifically to the use of devices which heat tobacco. Whilst vapes heat the liquid, it is not a tobacco liquid. This is why they're not subject to the current smoking ban as set out in the Health Act 2006.

No, the Health Act defines smoking as producing smoke
“smoking” refers to smoking tobacco or anything which contains tobacco, or smoking any other substance, and

(b)smoking includes being in possession of lit tobacco or of anything lit which contains tobacco, or being in possession of any other lit substance in a form in which it could be smoked.

"Heated tobacco" is not covered, and will be a separate category in the Tobacco & Vapes Act.

Vape will be defined as "a device which vaporises substances, other than tobacco, for the purpose of inhalation through a mouthpiece"

As you say, vaping is not smoking. But the prohibition of smoking is not the only reason why a Byelaw may be issued.

Vaping very clearly is a nuisance- it is annoying, it causes inconvenience to others, and there is growing evidence that it causes harm to others too.

It might be a nuisance, but my point is that this is sloppy & shoddy drafting:
* it's not smoking, so should not be part of a smoking byelaw: at a bare minimum create a new byelaw
* given the impending ban on "vapes", it's silly to talk about "electronic cigarettes"
* similarly given the impending ban on "vapes" it would make sense to bring this in at the same time.

While vaping is certainly annoying, it's vanishingly unlikely that it's causing an actual health hazard on the railways.

 

[Bletchleyite]

* given the impending ban on "vapes", it's silly to talk about "electronic cigarettes"

"Electronic cigarette" is the formal name for a vape. The word "vape" is colloquial.

While vaping is certainly annoying, it's vanishingly unlikely that it's causing an actual health hazard on the railways.

Many things that don't cause a health hazard and are purely a nuisance are banned, of course. For instance playing devices out loud, though you'd never know given the lack of enforcement.

 

[z444z]

What are people’s thoughts on whether this ban would (or even legally could) ban dry herb vaporisers used to administer legally prescribed medical cannabis?

 

[Starmill]

The classic example of double yellow lines painted around a car spring to mind

Presumably the intention is not to punish any driver who parked legitimately but for an extended period without being aware of planned works but simply provide for a legal means to relocate the vehicle safely using an appropriate means if it has been parked when works were planned. I can see why this is needed, and like many provisions of this kind I expect it will be used very sparingly.

Indeed, rarely vehicles actually are relocated. I have seen it happen at a car park recently for an extended closure, the car park was being used as a temporary bus station.

 

[Bletchleyite]

What are people’s thoughts on whether this ban would (or even legally could) ban dry herb vaporisers used to administer legally prescribed medical cannabis?

I don't know, but I hope it does. There are few smells I find more unpleasant than cannabis, so I'd consider it grossly antisocial to use one of those anywhere near anyone - if you must do it go outside the station a long way from the entrance.

If the specific rules don't ban it it could probably be prosecuted under 6(8):

No person shall...
molest or wilfully interfere with the comfort or convenience of any person on the railway
(https://www.gov.uk/government/publications/railway-byelaws/railway-byelaws)

That's the one Merseyrail use (or did use) for feet on seats (curiously not the one about soiling the railway - I guess so they can still get you if your feet didn't leave a visible trace of muck), so it's clearly quite wide in its applicability.

 

[z444z]

I don't know, but I hope it does. There are few smells I find more unpleasant than cannabis, so I'd consider it grossly antisocial to use one of those anywhere near anyone - if you must do it go outside the station a long way from the entrance.

That’s a personal opinion which I understand and respect but wasn’t what I was asking for. The smell from a dry herb vaporiser typically used for prescription cannabis is nothing like smoking it either in strength or nature of smell, it’s a very different thing. It may not always be practical or possible for a user, often a disabled person, to exit the station or train, and trying to do so could lead to a medical episode such as a seizure which could have been avoided had the medication been administered when the user wanted to.

Byelaw 6(8) is extremely vague and could be used to prosecute nearly anything you want, but I very much doubt someone using legally prescribed medication to manage a condition or even to avoid a (potentially disruptive to the railway) medical episode would pass the public interest test.

 

[Bletchleyite]

Byelaw 6(8) is extremely vague and could be used to prosecute nearly anything you want, but I very much doubt someone using legally prescribed medication to manage a condition or even to avoid a (potentially disruptive to the railway) medical episode would pass the public interest test.

I think that would depend on whether the person could indeed go somewhere else and whether failure to administer there and then would risk a medical episode or not. This will clearly depend on the individual involved. The law requires reasonable adjustments to be made for disability which will generally be based on what was reasonable for the disability the individual has, it doesn't require a blanket policy for everyone (though the railway can of course, at its option, choose to apply one if it makes things easier and doesn't itself break the law).

 

[z444z]

The law requires reasonable adjustments to be made for disability which will generally be based on what was reasonable for the disability the individual has, it doesn't require a blanket policy for everyone

The duty to make reasonable adjustments is anticipatory, and a blanket ban on vapes without an exception for medical devices could definitely constitute indirect discrimination (putting rules or arrangements in place that apply to everyone, but that put someone with a protected characteristic at an unfair disadvantage - gov.uk)

 

[Bletchleyite]

The duty to make reasonable adjustments is anticipatory, and a blanket ban on vapes without an exception for medical devices could definitely constitute indirect discrimination (putting rules or arrangements in place that apply to everyone, but that put someone with a protected characteristic at an unfair disadvantage - gov.uk)

Based on the fact that it is often necessary to register in advance to bring many things that are normally banned but medically necessary into football matches, gigs and other large events, I think the railway has a lot of leeway to work with here in how it would seek to manage such an issue were it to come to the fore. Very few people are prescribed medical cannabis, however, so it is only a very small number of people who would be affected by this, so it's probably in fact a non-issue, particularly if they do use the drug very subtly rather than the way many vapers behave, blowing clouds of candy floss into peoples' faces.

I suspect any enforcement would be left to reasonableness - a bit like the old adage of wild camping (which is unlawful in most of England and Wales) - "if you got caught you were doing it wrong".

 

[z444z]

Based on the fact that it is often necessary to register in advance to bring many things that are normally banned but medically necessary into football matches, gigs and other large events, I think the railway has a lot of leeway to work with here in how it would seek to manage such an issue were it to come to the fore. Very few people are prescribed medical cannabis, however, so it is only a very small number of people who would be affected by this, so it's probably in fact a non-issue, particularly if they do use the drug very subtly rather than the way many vapers behave, blowing clouds of candy floss into peoples' faces.

I suspect any enforcement would be left to reasonableness - a bit like the old adage of wild camping (which is unlawful in most of England and Wales) - "if you got caught you were doing it wrong".

Good points, thanks for the discussion

 

[soil]

"Electronic cigarette" is the formal name for a vape. The word "vape" is colloquial.

Actually, the legal term will be "vape", because the Tobacco & Vapes Act will be law, and it doesn't refer to "electronic cigarettes". Using different language for no good reason is bad.

== Doublepost prevention - post automatically merged: 8 Dec 2025 ==

What are people’s thoughts on whether this ban would (or even legally could) ban dry herb vaporisers used to administer legally prescribed medical cannabis?

This is an issue, yes.

The Tobacco & Vapes Bill excludes from the definition of "vape" "medical devices" (Medical Devices Regulations 2002) “medicinal product” (Human Medicines Regulations 2012).

My understanding is that conventional vapes are never medical devices, but prescribed medical cannabis would be. It's not likely to be legal to ban such a product from use - while annoying or smelly, the issue is that they are legally only prescribed for severe pain so if a genuine medical device, then there is not likely to be grounds to ban their use inside.

 

[z444z]

The Tobacco & Vapes Bill excludes from the definition of "vape" "medical devices" (Medical Devices Regulations 2002) “medicinal product” (Human Medicines Regulations 2012).

My understanding is that conventional vapes are never medical devices, but prescribed medical cannabis would be. It's not likely to be legal to ban such a product from use - while annoying or smelly, the issue is that they are legally only prescribed for severe pain so if a genuine medical device, then there is not likely to be grounds to ban their use inside.

This is very useful, thank you.

Just a little clarification though, while it’s only available on the NHS for extreme cases of epilepsy, MS and a couple other conditions, it can be prescribed privately for pretty much anything as long as certain criteria are met. Parkinson’s, Tourette’s and anxiety/depression are common ones.

 

[Tetchytyke]

I can’t imagine they would be banned if they are legitimate medical devices issued and being used under a legitimate medical prescription, whether that’s an NHS or private prescription.

 

[island]

The byelaws are subject to a reasonableness test and must be within the powers in the enabling act.

It is therefore not in fact possible for them to make arbitrary bans on the basis that it's "r land", particularly given that this creates a criminal offence.

The Act allows the railways to ban "smoking". Vaping is not smoking.

The principle of expressio unius est exclusio alterius applies, which suggests that the ban is ultra vires, given that the Act expressly permits railways to regulate smoking, and not "smoking and vaping".

I am afraid this line of argument is hopeless.

Section 46 (1) gives a railway operator the power to make bye-laws regulating, inter alia, "the conduct of persons while on relevant assets". Section 46 (2) by using the words "in particular" after "may include" is clearly intended to expand, not to limit, the scope of subsection (1). Even if it were not, as is mentioned in post 30, the "prevention of nuisance" is wide enough to cover it. Vaping is clearly a nuisance.

Prescribed nicotine inhalers which do not result in the creation of obnoxious-smelling vapour do not seem to me to be within the ban, and I am sure officers of the railway as well as prosecutors, and in extremis magistrates, are capable of applying common sense if a case involving some form of bona fide prescribed medical device arises (though it seems to me that such cases are liable only to arise as part of the Railforums standard minority).

 

[Krokodil]

If the specific rules don't ban it it could probably be prosecuted under 6(8):

No person shall...
molest or wilfully interfere with the comfort or convenience of any person on the railway
(https://www.gov.uk/government/publications/railway-byelaws/railway-byelaws)

That will certainly cover vaping, but it would help to have an explicit ban (and one for shoes on seats) to avoid smart alecs trying to argue over the wording.