Legally indefensible smoking ban will fracture our Union
The bill outlawing smoking for anyone born after 2008 is contrary to EU law under the Windsor framework and arguably in conflict with the Good Friday agreement
Robert Buckland
Tuesday March 24 2026, 7.20pm, The Times
The bill to ban smoking for anyone born after 2008 is in its final parliamentary stages. But none of the remaining debate will deal with a key flaw: its application to Northern Ireland. Royal assent will not be the end of the story but the starting gun for litigation, given the legislation is constitutionally incoherent and legally indefensible.
The generational ban is contrary to EU law. The EU’s tobacco products directive, which applies in Northern Ireland under the Windsor framework, requires that tobacco remains legally available to adults. Seven EU member states — Croatia, the Czech Republic, Greece, Italy, Portugal, Romania and Slovakia — have formally objected to the bill.
The bill is also arguably in conflict with the Good Friday agreement, which guarantees the right to equal opportunity in all social and economic activity across the border with Ireland. Dublin has considered and rejected a generational ban, opting instead to raise the minimum purchase age from 18 to 21. A legal challenge could be brought under the Windsor framework to disapply the relevant parts of the bill in Northern Ireland. Northern Ireland’s courts have already shown they will strike down UK legislation, such as the Rwanda Act, that conflicts with the framework. I can see history repeating itself.
The government will then face a choice: accept a two-tier UK where 21-year-olds in Belfast can buy cigarettes but their counterparts in Birmingham cannot or return to parliament to unpick a flagship policy. The tobacco industry, whatever one’s view of it, will have both the resources and the legal standing to bring such challenges.
Yet this is not about the industry but whether the government is willing to pass legislation it knows to be vulnerable, simply because it is politically inconvenient to confront the constitutional reality of the Windsor framework. None of this required a crystal ball. The legal fault lines were visible from the outset.
Good public health policy must be built on legally sound foundations or it will collapse. The government should have either amended the bill to ensure Windsor framework compatibility — perhaps through a UK-wide fixed age-of-sale at 21, which would have achieved much of the same policy objective — or been transparent with parliament about the legal risks. Instead, it chose to plough ahead.
A costly legal reckoning now feels inevitable, causing further embarrassment for a government that is struggling to fulfil some of its most basic legislative and parliamentary functions.
Sir Robert Buckland is a barrister and former lord chancellor
