Section 1 — Offence of permitting others to smoke in no-smoking premises

Smoking, Health and Social Care (Scotland) Bill: Stage 3 – in the Scottish Parliament at 10:45 am on 30th June 2005.

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Photo of Trish Godman Trish Godman Labour 10:45 am, 30th June 2005

Group 1 deals with exempt places and the exclusion of tobacco retailers, theatre performances and rehearsals. Amendment 33, in the name of Brian Monteith, is grouped with amendments 34 to 37, 40 to 44, 46 to 50, 52, 54, 59, 66 and 62.

I point out that amendment 53 in group 3 will pre-empt amendment 54 in this group.

Photo of Brian Monteith Brian Monteith Conservative

Amendment 33 seeks to ensure that we separate public health concerns, which are a legitimate aspect of the bill, from the artistic performance that takes place on a theatre stage. We shall debate the principle of the bill at a later stage today. However, it strikes me and many other people as particularly odd that, in pursuit of public health goals, it is necessary to ban the smoking of tobacco or any other product such as herbal tobacco on stage.

There is no doubt that smoking features in the canon of Scottish plays, such as John Byrne's "The Slab Boys", and in plays by writers such as Terence Rattigan that portray the 1930s, 1940s, 1950s and even 1960s. In "Private Lives", Noel Coward holds a cigarette and stands conversing with Amanda and Elyot Chase, not necessarily smoking that cigarette but simply holding it.

I point that out to members because it has been suggested that there are alternatives to smoking on stage. However, the proceedings of a play are such that in setting the tone, in describing the characters and in setting the mood, people have to light up. People interact—somebody lights a cigarette for somebody else, perhaps in the dark so that the audience might see the lighter or the smoke. One might see Amanda or Elyot Chase in "Private Lives" standing with their cigarettes, not puffing at all, but the silver plume of smoke rises and signifies the whole scene. To use alternatives means that one cannot light up on stage—that interaction of the characters when one lights a cigarette for another cannot take place in the play. Standing with a cigarette in 1920s or 1930s fashion, not even consuming it but allowing the smoke to rise, cannot happen with alternatives if those alternatives require one to puff on them to generate the plume.

Photo of Carolyn Leckie Carolyn Leckie SSP

Does Brian Monteith have no imagination at all?

Photo of Brian Monteith Brian Monteith Conservative

I suggest to Carolyn Leckie that she should get out more and go to Scottish theatre.

Lorne Boswell, a spokesman for Equity, has said that, although Equity supports the general principles of the bill, it is not happy about the measure that we are discussing. Mark Thomson, the artistic director of Edinburgh's Royal Lyceum Theatre Company, who certainly has a livelier and more creative imagination than I have, has stated:

"I don't think smoking is cool, but this ban represents an editing and a censoring and it is completely unnecessary and hysterical."

I agree with that.

Photo of Brian Monteith Brian Monteith Conservative

No. I have taken an intervention and I must make progress.

The majority of theatre stages are large open spaces. There is no reason to believe that smoke in those cavernous spaces does any harm to the public. Indeed, if we are concerned about smoke and its interaction with the audience, we should be concerned about smoke machines—they do not burn tobacco, but they create fog, which is necessary for some plays.

Photo of Brian Monteith Brian Monteith Conservative

I hear in the comments from a sedentary position a messianic belief that brooks no other view. Members say, "We are right, despite any evidence. We shall censor the theatre and exclude smoking no matter what writers, directors or actors wish to portray." In India, where a similar ban has been introduced, it has been extended to films—smoking has been taken out of all films there.

Photo of Brian Monteith Brian Monteith Conservative

Presiding Officer, I am being heckled constantly by Mr Stewart Sutherland.

Photo of Brian Monteith Brian Monteith Conservative

I will not take the member's interventions. I certainly do not appreciate his heckling—he will have the opportunity to speak.

In India, not only is smoking being taken out of films, but smoking scenes in old movies are being extricated. The messianic belief and the political correctness of those who wish to impose such censorship have nothing to do with public health.

We must accept that a case can be made for some exemptions, for example for specialist cigar retailers. Only 18 specialist cigar retailers operate in Scotland, although probably only 12 would fall under the terms of amendment 37. On behalf of those retailers, I point out that, for the conduct of their business, it is necessary to test products, not just for quality, but to check that they are not counterfeit. There is a difference between cigarette and cigar smoking. A market exists for counterfeit high-quality cigars, so retailers must check whether the goods that they receive are proper. I appeal for an exemption for that small number of retailers in the industry.

I am interested in members' responses, because I believe that the debate is detached from the genuine concerns about public health.

I move amendment 33.

Photo of Stewart Maxwell Stewart Maxwell Scottish National Party

Rarely have I heard such a litany of complete and utter nonsense. If actors are on stage performing a play, perhaps by Irvine Welsh, should they inject heroin or take other illegal drugs because that would be realistic and correct? Just perhaps, they should act and pretend that they are doing that. The audience, using their imagination, would understand and the theatrical impact and artistic integrity of the acting would not be disputed. It is unbelievable that it is beyond the wit and wisdom of the theatrical entertainment industry to produce fake cigarettes that produce smoke.

If one goes to the theatre, as I am sure Brian Monteith does, one can see 17th century France or watch explosions and war portrayed on the stage. Yet, for some reason, Brian Monteith believes that theatres are unable to produce a small puff of smoke from a small white tube. That belief is illogical and irrational. The Tories' arguments on the theatre are nonsensical. All workers have a right to enjoy their evenings and weekends in a place that is smoke free. It is wrong of the Tories to try to restrict that right to some workers. Exemptions in the bill are for humanitarian reasons.

Photo of Phil Gallie Phil Gallie Conservative

Stewart Maxwell will no doubt realise that workers' rights are the responsibility of Westminster. That apart, does he think that, given the forthcoming ban on smoking, smoking on stage gives the wrong message? If so, is he for censorship of the arts?

Photo of Stewart Maxwell Stewart Maxwell Scottish National Party

That is beyond belief. I am opposed to censorship of the arts, but we should at least allow the arts to use—

Photo of Stewart Maxwell Stewart Maxwell Scottish National Party

Allow me to respond to Phil Gallie's points.

We should at least allow the arts to use a small white tube such as the one that I am holding now, which is a theatrical prop that produces smoke. Its effect looks realistic to me and it does not take away from the integrity of the play to use a theatrical prop rather than a real cigarette. I do not know where Phil Gallie is going with that argument.

The main reason for rejecting the amendments is that they are nothing more than subterfuge and an attempt to hide behind an argument about artistic integrity. The cry of artistic freedom from the Tories is a cover for punching holes right through the bill, when it is in fact a bill about protecting public health. To be polite, I think that it is unreasonable of the Tories to try to use artistic freedom in that way. Artistic freedom is not the issue and it is in no way damaged by the bill. There is no censorship of the arts, which can carry on as normal.

On the amendments seeking to exclude more premises than are currently listed in the bill, I point out that the bill excludes certain premises on humanitarian grounds. A tobacco shop is not a place of residence; it is not a care home and it is clear that nobody lives there. In the case of the illicit trade in expensive cigars—I am sure that Brian Monteith knows more about such cigars than I do—if the owner of a cigar shop needs to test a cigar, why would it be beyond their wit and wisdom to step outside to smoke that cigar and test whether it is real? It seems perfectly reasonable to do that.

The Tory party has tried to wreck this bill and the Prohibition of Smoking in Regulated Areas (Scotland) Bill right from the start. It has never been interested in artistic integrity and artistic freedom, or the rights of workers and of the vast majority of the population who believe that their health should be protected. This is about wrecking the bill and punching holes in it. The Tories failed to do that with my bill; they failed to do it at stage 2 of this bill because they had no support from any member of the Health Committee; and they will fail to do it today. I urge members to reject the amendments.

Photo of Donald Gorrie Donald Gorrie Liberal Democrat

I would like some clarity from the minister on the issue that Brian Monteith has raised. Although I am not in favour of punching holes in the bill, I am in favour of sensible dramatic representation. Section 4(1) states:

"In this Part, 'smoke' means smoke tobacco, any substance or mixture which includes it or any other substance or mixture; and a person is to be taken as smoking if the person is holding or otherwise in possession or control of lit tobacco, of any lit substance or mixture which includes tobacco or of any other lit substance or mixture which is in a form or in a receptacle in which it can be smoked."

My interpretation of that, which may be wrong because I am coming fresh to the bill, is that a person simulating smoking in the way indicated by Stewart Maxwell could be caught by the legislation. I would like the minister to make it absolutely clear that that is not the intention.

Photo of Donald Gorrie Donald Gorrie Liberal Democrat

If there is a better interpretation, I would like to hear it from the minister. I think that I understand English and that is what the bill says. That gives some substance to Brian Monteith's point on dramatic issues.

Photo of Stewart Maxwell Stewart Maxwell Scottish National Party

The section that Donald Gorrie just read out says that there has to be a "lit substance". The prop that I am holding is not lit. It is clear that smoke can be produced from something that accurately resembles a cigarette but which is not lit. The prop would not be caught by the bill, as it poses no health risk, so there is no problem.

Photo of Donald Gorrie Donald Gorrie Liberal Democrat

The section does not say anything about health risks; it talks about smoking any substance whatsoever. There may be occasions in plays when it is an important part of the drama that the actor puffs away at something. If the minister can make it quite clear that the actor and the manager will not be put in jail because of that, I will accept that. However, we need that clarification. As Brian Monteith has said, there is concern among people in theatrical circles who have nothing to do with Tory plots but who just want to put on plays in an effective and convincing manner. I would like that assurance.

Photo of Andy Kerr Andy Kerr Labour

I am disappointed by the start of the debate. This is the most major piece of public health legislation in a generation, but we have heard nothing but trivialisation and a fairly blatant attempt to undermine a bill that is well supported in Scotland. The bill is comprehensive and is based on the principle of protecting people from environmental tobacco smoke in enclosed public places. The Executive has been clear, consistent and fair in its consideration of exemptions from the smoking prohibition. We have made it clear that exemptions will be limited and granted only on humanitarian grounds. These amendments are completely unnecessary, as the bill already makes adequate provision for the definition of no-smoking premises.

I fail to understand why Brian Monteith believes that his approach could be any better. Yet again, he is advocating exemptions from the prohibition for a highly selective group of premises—his personal wish-list. Mr Monteith fails to grasp the fundamental point of the bill, which is to address a very real public health issue and to protect the public from the harmful effects of second-hand smoke. That includes theatre audiences and employees of theatres and retail premises, as well as passengers in airport departure lounges.

During the stage 1 debate, Mr Monteith warned of the development of so-called smokeasies—a subject to which he returned earlier today. It seems that he is now seeking to create those smokeasies to meet his own agenda, under the guise of specialist tobacco retailers. I am sure that he will protest that the exemption is merely to allow customers to test cigars before buying them. However, as Stewart Maxwell has pointed out, it would be simple for a customer to step outside the shop to test the product. I am concerned that, in the future, such retailers might decide to bring in a couple of comfortable chairs and perhaps provide some refreshments for customers who came to test the products, which would result in the type of smokeasy that Mr Monteith warned us about. How could we protect the staff and non-smoking customers who walked in off the street? Where would the protection of public health be in that scenario?

As was said in reply to Mr Monteith's amendments on theatres at stage 2—and as has been ably demonstrated today—it is not beyond the wit and wisdom of those who are involved in the dramatic arts to come up with an alternative to smoking on stage, which addresses the points that Mr Monteith has made about the prohibition somehow shackling and undermining our arts community. It must be remembered that we are seeking to present smoking—including smoking in a dramatic performance—as not being a normal social activity, so I ask our arts community to think again about that. We are trying to denormalise smoking, and—as has been demonstrated—there are alternatives to the smoking of real cigarettes on stage.

The issue has been raised of what we should use on stage instead of whisky. Should we use cold tea? Of course we should, or we could use another similar product. That is what we do; we get round these issues by being creative. That is what the arts industry is about and it will of course get round them. I hope that we proceed with the rest of the amendments in a slightly more mature way that represents to Scotland why the Parliament is so confident that the bill is so important to our communities. I therefore ask Brian Monteith to withdraw amendment 33.

Photo of Brian Monteith Brian Monteith Conservative

I have absolutely no intention of withdrawing amendment 33. People who are portrayed as smoking dope in a play quite often have to roll it up and then light it. Stewart Maxwell's example of a prop would not apply in that case. People getting together to light a cigarette could not use that prop, because they would create smoke by lighting it, which is the point that Donald Gorrie made. People wishing to portray a cigar or pipe would not be able to use that prop. Stewart Maxwell could not speak in a play while puffing on that prop to create the smoke. On the consumption of heroin, or tea that is meant to be whisky, the point is that holding a cigarette and allowing it to smoke is in itself part of a scene—one does not have to consume it, just as one does not have to consume heroin. The alternative that is being suggested is a nonsense.

Not allowing the exemptions that I am suggesting is draconian and disproportionate. We have heard no argument that shows what effect allowing the exemption for theatres will have on public health, except that we want to denormalise smoking. If that is not censorship, what is? The Parliament wants to denormalise smoking on the stage; it wants to censor it from the stage. That is why amendment 33 should be supported.

Photo of Trish Godman Trish Godman Labour

The question is, that amendment 33 be agreed to. Are we agreed?

Members:

No.

Division number 1

For: Aitken, Bill, Brocklebank, Mr Ted, Brownlee, Derek, Davidson, Mr David, Douglas-Hamilton, Lord James, Fraser, Murdo, Gallie, Phil, Johnstone, Alex, McGrigor, Mr Jamie, Milne, Mrs Nanette, Mitchell, Margaret, Monteith, Mr Brian, Munro, John Farquhar
Against: Adam, Brian, Alexander, Ms Wendy, Arbuckle, Mr Andrew, Baillie, Jackie, Baird, Shiona, Baker, Richard, Ballance, Chris, Barrie, Scott, Boyack, Sarah, Brankin, Rhona, Brown, Robert, Butler, Bill, Canavan, Dennis, Chisholm, Malcolm, Craigie, Cathie, Crawford, Bruce, Cunningham, Roseanna, Curran, Frances, Curran, Ms Margaret, Deacon, Susan, Eadie, Helen, Ewing, Mrs Margaret, Fabiani, Linda, Ferguson, Patricia, Finnie, Ross, Fox, Colin, Gibson, Rob, Gillon, Karen, Glen, Marlyn, Grahame, Christine, Harvie, Patrick, Henry, Hugh, Home Robertson, John, Hughes, Janis, Hyslop, Fiona, Jackson, Dr Sylvia, Jamieson, Cathy, Jamieson, Margaret, Kane, Rosie, Kerr, Mr Andy, Lamont, Johann, Leckie, Carolyn, Livingstone, Marilyn, Lochhead, Richard, Lyon, George, MacAskill, Mr Kenny, Macdonald, Lewis, Macintosh, Mr Kenneth, Maclean, Kate, Macmillan, Maureen, Martin, Paul, Marwick, Tricia, Mather, Jim, Matheson, Michael, Maxwell, Mr Stewart, May, Christine, McAveety, Mr Frank, McCabe, Mr Tom, McFee, Mr Bruce, McMahon, Michael, McNeil, Mr Duncan, McNeill, Pauline, McNulty, Des, Morgan, Alasdair, Muldoon, Bristow, Mulligan, Mrs Mary, Murray, Dr Elaine, Neil, Alex, Oldfather, Irene, Peacock, Peter, Peattie, Cathy, Pringle, Mike, Purvis, Jeremy, Radcliffe, Nora, Robison, Shona, Robson, Euan, Rumbles, Mike, Scott, Eleanor, Scott, Tavish, Smith, Iain, Smith, Margaret, Stephen, Nicol, Stevenson, Stewart, Stone, Mr Jamie, Swinney, Mr John, Tosh, Murray, Turner, Dr Jean, Wallace, Mr Jim, Watson, Mike, Welsh, Mr Andrew, White, Ms Sandra, Whitefield, Karen, Wilson, Allan
Abstentions: Gorrie, Donald

Photo of Trish Godman Trish Godman Labour

The result of the division is: For 13, Against 93, Abstentions 1.

Amendment 33 disagreed to.

Amendments 34 to 37 not moved.

Photo of Trish Godman Trish Godman Labour

Amendment 38, in the name of Brian Monteith, is grouped with amendments 39, 45, 51 and 60.

Photo of Brian Monteith Brian Monteith Conservative

Although one never knows in this type of debate, amendment 38 is possibly a less contentious amendment than the previous one that we discussed. I lodged it in order to reverse the wording of the bill in order to reflect the idea that one is innocent until proven guilty. The amendment's purpose is to ensure that clear language is used. The bill says:

"It is a defence for an accused charged with an offence under this section to prove" that they took reasonable precautions to ensure that the offence was not committed or that they could not reasonably prevent someone from smoking in the premises. However, that suggests that the defendant is already guilty. We seek simply to change the tone of those words so that it is clear that the defendant is innocent. I seek to hear what arguments the Executive has for avoiding such a simple but necessary change.

I move amendment 38.

Photo of Stewart Maxwell Stewart Maxwell Scottish National Party

If only that were the case. The amendment—which, again, met with no support on the Health Committee—is not about clarifying the bill or making it fairer for those who might be prosecuted under this law; it is a wrecking amendment. Its intention is to make it much more difficult to carry out a prosecution. Indeed, it is clear that it is designed to make it almost impossible for enforcement authorities to achieve a successful prosecution, which would completely undermine the purpose of the legislation. I ask the chamber to reject the amendment.

Photo of Andy Kerr Andy Kerr Labour

The only commendable thing about amendment 38 is the member's persistence in bringing the matter that it relates to back to us for our consideration despite the fact that, as has been mentioned, he received no support for his position at stage 2.

Photo of Brian Monteith Brian Monteith Conservative

Is the minister aware that there were no votes on the amendments that dealt with this matter at stage 2, which means that there is no record of whether there was support for them or not? In fact, at least one member of the committee supported my position. To say that there was no support is highly inaccurate.

Photo of Andy Kerr Andy Kerr Labour

The point is that nobody pressed the amendments on this subject, which means that there was no support for them other than from the Conservatives, who have been unique in their approach to this legislation.

As we made clear during the stage 2 consideration of the amendments relating to Mr Monteith's position, amendment 38 is a full attack on the enforcement of the bill. It would undermine the provisions by making it more difficult for those enforcing the bill ever to win a case in court. I do not want to waste Parliament's time any further by explaining the defences that there are in part 1 of the bill. Suffice it to say that the amendment seeks to make it even easier to prove the defences and, in so doing, move the balance back towards encouraging evasion, which clearly would undermine the public health benefits that the bill will provide. I appeal to Brian Monteith to withdraw the amendment.

Photo of Brian Monteith Brian Monteith Conservative

The minister is loose with his words, as I clearly indicated in my intervention, and I must say that loose words make bad law. Amendment 38 seeks to tighten up the bill and ensure that it is clear that people are innocent before being proven guilty. Stewart Maxwell is right to say that the amendment might make it more difficult to obtain a prosecution, but that reasoning could apply to every crime. Why not make everybody guilty until they prove their innocence? That way, there would certainly be many more convictions. However, that is not desirable.

It is quite clear that, unless the burden of proof is reversed in the bill, questions are raised about the bill's compatibility with the right to a fair trial under article 6.1 of the European convention on human rights and the right to a presumption of innocence under article 6.2. For that reason, the minister should be aware that the United Kingdom Government has dealt with similar situations in other pieces of legislations by the use of amendments that are similar to amendment 38. There is a precedent for it. There must be a concern that people will be presumed guilty until they are proved innocent. That is the wrong way round in Scots law. Whether it means that there are more or fewer convictions, a fair trial is required.

Photo of Trish Godman Trish Godman Labour 11:15 am, 30th June 2005

The question is, that amendment 38 be agreed to. Are we agreed?

Members:

No.

Division number 2

For: Aitken, Bill, Brocklebank, Mr Ted, Brownlee, Derek, Davidson, Mr David, Douglas-Hamilton, Lord James, Fergusson, Alex, Fraser, Murdo, Gallie, Phil, Goldie, Miss Annabel, Johnstone, Alex, McGrigor, Mr Jamie, Milne, Mrs Nanette, Mitchell, Margaret, Monteith, Mr Brian, Munro, John Farquhar
Against: Adam, Brian, Alexander, Ms Wendy, Arbuckle, Mr Andrew, Baillie, Jackie, Baird, Shiona, Baker, Richard, Ballance, Chris, Barrie, Scott, Boyack, Sarah, Brankin, Rhona, Brown, Robert, Butler, Bill, Canavan, Dennis, Chisholm, Malcolm, Craigie, Cathie, Crawford, Bruce, Cunningham, Roseanna, Curran, Ms Margaret, Deacon, Susan, Eadie, Helen, Ewing, Fergus, Ewing, Mrs Margaret, Fabiani, Linda, Ferguson, Patricia, Finnie, Ross, Gibson, Rob, Gillon, Karen, Glen, Marlyn, Gorrie, Donald, Grahame, Christine, Harvie, Patrick, Henry, Hugh, Home Robertson, John, Hughes, Janis, Hyslop, Fiona, Jackson, Dr Sylvia, Jamieson, Cathy, Jamieson, Margaret, Kane, Rosie, Kerr, Mr Andy, Lamont, Johann, Leckie, Carolyn, Livingstone, Marilyn, Lochhead, Richard, Lyon, George, MacAskill, Mr Kenny, Macdonald, Lewis, Macintosh, Mr Kenneth, Maclean, Kate, Macmillan, Maureen, Martin, Paul, Mather, Jim, Matheson, Michael, Maxwell, Mr Stewart, May, Christine, McAveety, Mr Frank, McCabe, Mr Tom, McFee, Mr Bruce, McMahon, Michael, McNeil, Mr Duncan, McNeill, Pauline, McNulty, Des, Morgan, Alasdair, Muldoon, Bristow, Mulligan, Mrs Mary, Murray, Dr Elaine, Neil, Alex, Oldfather, Irene, Peacock, Peter, Peattie, Cathy, Pringle, Mike, Purvis, Jeremy, Radcliffe, Nora, Robison, Shona, Robson, Euan, Rumbles, Mike, Scott, Eleanor, Scott, Tavish, Smith, Iain, Smith, Margaret, Stephen, Nicol, Stevenson, Stewart, Stone, Mr Jamie, Swinney, Mr John, Turner, Dr Jean, Wallace, Mr Jim, Watson, Mike, Welsh, Mr Andrew, White, Ms Sandra, Whitefield, Karen, Wilson, Allan
Abstentions: Tosh, Murray

Photo of Trish Godman Trish Godman Labour

The result of the division is: For 15, Against 91, Abstentions 1.

Amendment 38 disagreed to.

Amendment 39 not moved.