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Lord Pendry: My Lords, the debates on this amendment and the previous one have brought out some good arguments on both sides. I begin by saying to the noble Lord, Lord Faulkner, that I happen to know who gave the Guardian that leak. As the noble Lord, Lord Stoddart, said, when we are bereft of secretarial assistance in this place, we are sometimes only too happy to take up someone who posts you something with which one agrees as an individual. I hope that not too much store is put by that.

I am bothered by the manifesto commitment. The Labour Party's policy was derived from months of discussion within the party. The ministry poll went out to all kinds of people. They may not have been Labour supporters; they may not support anyone. They came up with a different conclusion. I have never believed in vox populi, vox dei, but it would appear that my Front Bench does. The Labour Party, through its own machinery, determined this policy in its manifesto commitment and it should be unravelled only within the party itself. I do not expect all noble Lords opposite to agree but that point about manifesto commitments must be recognised. This has been a
 
19 Jun 2006 : Column 573
 
healthy debate and, as a result of a number of views that have been made in favour of the amendment, I would like to test the opinion of the House.

6.55 pm

On Question, Whether the said amendment (No. 5) shall be agreed to?

Their Lordships divided: Contents, 97; Not-Contents, 157.

Division No.
Division No. 2>
CONTENTS
Astor of Hever, L.
Baker of Dorking, L.
Beaumont of Whitley, L.
Blaker, L.
Boothroyd, B.
Bowness, L.
Bridgeman, V.
Brooke of Sutton Mandeville, L. [Teller]
Brougham and Vaux, L.
Buscombe, B.
Byford, B.
Campbell-Savours, L.
Carnegy of Lour, B.
Carter of Coles, L.
Cobbold, L.
Cope of Berkeley, L.
Courtown, E.
Davies of Coity, L.
De Mauley, L.
Desai, L.
Dixon, L.
Dixon-Smith, L.
Dundee, E.
Eden of Winton, L.
Erroll, E.
Evans of Parkside, L.
Falkner of Margravine, B.
Farrington of Ribbleton, B.
Feldman, L.
Fookes, B.
Fyfe of Fairfield, L.
Gilbert, L.
Golding, B. [Teller]
Hanham, B.
Hannay of Chiswick, L.
Harris of High Cross, L.
Henley, L.
Higgins, L.
Hogg of Cumbernauld, L.
Home, E.
Hooper, B.
Howe of Aberavon, L.
Hurd of Westwell, L.
Hylton, L.
Jones, L.
Jopling, L.
Lamont of Lerwick, L.
Lawson of Blaby, L.
Lindsay, E.
Lloyd of Berwick, L.
Lofthouse of Pontefract, L.
Luke, L.
Lyell of Markyate, L.
MacGregor of Pulham Market, L.
MacLaurin of Knebworth, L.
Mar, C.
Mason of Barnsley, L.
Mayhew of Twysden, L.
Monson, L.
Montgomery of Alamein, V.
Montrose, D.
Moonie, L.
Morris of Bolton, B.
Naseby, L.
Noakes, B.
Northbrook, L.
Northesk, E.
Palmer, L.
Peel, E.
Pendry, L.
Phillips of Sudbury, L.
Reay, L.
Rees-Mogg, L.
Renton, L.
Richard, L.
Russell-Johnston, L.
Seccombe, B.
Selborne, E.
Selsdon, L.
Sharples, B.
Shaw of Northstead, L.
Shephard of Northwold, B.
Skelmersdale, L.
Skidelsky, L.
Snape, L.
Steel of Aikwood, L.
Stoddart of Swindon, L.
Tebbit, L.
Temple-Morris, L.
Trumpington, B.
Turner of Camden, B.
Ullswater, V.
Vinson, L.
Waddington, L.
Wade of Chorlton, L.
Wakeham, L.
Windlesham, L.

NOT-CONTENTS
Acton, L.
Adams of Craigielea, B.
Addington, L.
Adonis, L.
Ahmed, L.
Alli, L.
Alton of Liverpool, L.
Amos, B. [Lord President.]
Anderson of Swansea, L.
Archer of Sandwell, L.
Ashton of Upholland, B.
Attlee, E.
Avebury, L.
Bach, L.
Barker, B.
Barnett, L.
Bassam of Brighton, L.
Bhattacharyya, L.
Billingham, B.
Blackstone, B.
Borrie, L.
Brookman, L.
Chandos, V.
Chidgey, L.
Clark of Windermere, L.
Clinton-Davis, L.
Cohen of Pimlico, B.
Corbett of Castle Vale, L.
Cotter, L.
Crawley, B.
Cumberlege, B.
Currie of Marylebone, L.
Dahrendorf, L.
David, B.
Davidson of Glen Clova, L.
Davies of Oldham, L.
Dean of Thornton-le-Fylde, B.
Dholakia, L.
Dubs, L.
Dykes, L.
Elder, L.
Evans of Temple Guiting, L.
Falkland, V.
Faulkner of Worcester, L. [Teller]
Fearn, L.
Finlay of Llandaff, B.
Foster of Bishop Auckland, L.
Gale, B.
Gibson of Market Rasen, B.
Giddens, L.
Goldsmith, L.
Gordon of Strathblane, L.
Graham of Edmonton, L.
Grocott, L.
Hamwee, B.
Harris of Haringey, L.
Harris of Richmond, B.
Harrison, L.
Haskel, L.
Haworth, L.
Hayman, B.
Henig, B.
Hollis of Heigham, B.
Hooson, L.
Howarth of Breckland, B. [Teller]
Howarth of Newport, L.
Howe of Idlicote, B.
Howells of St. Davids, B.
Hoyle, L.
Hughes of Woodside, L.
Hunt of Kings Heath, L.
Jay of Paddington, B.
Jenkin of Roding, L.
Jones of Cheltenham, L.
Jordan, L.
Kennedy of The Shaws, B.
King of West Bromwich, L.
Kirkhill, L.
Laird, L.
Layard, L.
Lea of Crondall, L.
Lester of Herne Hill, L.
Lipsey, L.
Listowel, E.
Lockwood, B.
McColl of Dulwich, L.
Macdonald of Tradeston, L.
McIntosh of Hudnall, B.
MacKenzie of Culkein, L.
McKenzie of Luton, L.
Mackie of Benshie, L.
McNally, L.
Maddock, B.
Masham of Ilton, B.
Massey of Darwen, B.
Maxton, L.
Mitchell, L.
Morgan, L.
Morgan of Drefelin, B.
Morris of Yardley, B.
Newby, L.
Nicol, B.
Northover, B.
Norton of Louth, L.
Oakeshott of Seagrove Bay, L.
O'Cathain, B.
O'Neill of Clackmannan, L.
Ouseley, L.
Patel, L.
Peston, L.
Pitkeathley, B.
Quin, B.
Ramsay of Cartvale, B.
Randall of St. Budeaux, L.
Rea, L.
Redesdale, L.
Rennard, L.
Roberts of Llandudno, L.
Rogan, L.
Rooker, L.
Roper, L.
Rosser, L.
Rowlands, L.
Royall of Blaisdon, B.
Sainsbury of Turville, L.
Sawyer, L.
Scotland of Asthal, B.
Scott of Needham Market, B.
Sewel, L.
Sharp of Guildford, B.
Shutt of Greetland, L.
Simon, V.
Smith of Clifton, L.
Smith of Leigh, L.
Soley, L.
Stone of Blackheath, L.
Symons of Vernham Dean, B.
Thomas of Walliswood, B.
Thomas of Winchester, B.
Thornton, B.
Tonge, B.
Tope, L.
Triesman, L.
Truscott, L.
Tunnicliffe, L.
Turnberg, L.
Turner of Ecchinswell, L.
Tyler, L.
Wall of New Barnet, B.
Wallace of Saltaire, L.
Walton of Detchant, L.
Warner, L.
Warwick of Undercliffe, B.
Whitaker, B.
Williamson of Horton, L.
Woolmer of Leeds, L.
Young of Norwood Green, L.


Resolved in the negative, and amendment disagreed to accordingly.

 
19 Jun 2006 : Column 574
 

 
19 Jun 2006 : Column 575
 

7.05 pm

Lord Warner moved Amendment No. 6:

Page 3, line 9, at end insert—

"(4A) For the purpose of making provision for those participating as performers in a performance, or in a performance of a specified description, not to be prevented from smoking if the artistic integrity of the performance makes it appropriate for them to smoke—
(a) the power in subsection (1) also includes power to provide for specified descriptions of premises or specified areas within such premises not to be smoke-free in relation only to such performers, and
(b) subsection (3) does not prevent the exercise of that power as so extended."

The noble Lord said: My Lords, the amendments in this group all relate to making exemptions in regulations for those participating as performers in a performance where the artistic integrity of the performance makes it appropriate for them to smoke. Amendments Nos. 6 and 7 are the key amendments. Amendments Nos. 15, 17, 18, 19 and 21 are consequential amendments.

Both my noble friend Lady McIntosh and the noble Earl, Lord Howe, set out the case during Grand Committee for such an exemption. Just as my colleague Caroline Flint did in the other place, I, too, gave a reassurance that it was the Government's intention to make an exemption for artistic performances but that the detail, as with all proposed exemptions, was a matter for the regulations. However, the work conducted by departmental officials to ensure that such an exemption could be forthcoming revealed some technical problems which meant that it was not possible to remain silent on the face of the Bill yet still make the appropriate exemptions. Let me explain.

Clause 3(1) provides a general power to exempt premises from the smoke-free provisions. Although we have given a broad description of the main types of premises that will be exempt in subsection (2)—premises where a person has his home, or is living, whether permanently or temporarily—we intend to make exemptions for a small number of other, more unusual, premises. The general power is there specifically to cater for unusual circumstances without having to try and come up with a comprehensive list. A list would be inflexible and would provide no scope for making any further exemptions should a good case be made for exempting a particular set of premises in the future. So other than the broad description in subsection (2), we have deliberately tried to avoid listing any special case. However, when considering exemptions for artistic performances, it became clear that it would not be possible to rely on this general power in all circumstances because of the prohibition in subsection (3) on making any exemptions for licensed premises.

Many theatres and other performance spaces carry on their activities under just one licence. That licence is likely to cover not only the whole of their premises but also their alcohol sales and theatrical performances. In these circumstances, therefore, the prohibition in subsection (3) comes into play. In other words, it would be unlawful to make an exemption.
 
19 Jun 2006 : Column 576
 

With Amendment No. 7, we have relaxed that prohibition so far as is necessary to allow certain performers to smoke during a performance in all possible venues. So although we were keen not to list "special cases" on the face of the Bill, I hope that my noble friend Lady McIntosh will appreciate our efforts to make absolutely sure that our promises to make exemptions for artistic performances can be upheld.

I felt it was important to explain these technical obstacles, as I am sure my noble friend and the noble Earl, Lord Howe, will appreciate, but no doubt welcome, the somewhat different shape this clause has now taken. Of course, the detail of the exemption will still be a matter for the regulations. Amendment No. 7 simply clarifies that performances include such things as plays or a performance given in connection with the making of a film or television programme. It also makes it clear that exemptions can be made in the regulations for rehearsals.

Amendments Nos. 15, 17, 18, 19 and 21 are consequential amendments. I beg to move.

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