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Baroness McIntosh of Hudnall: My Lords, I thank my noble friend for making this exemption possible. Despite the fact that, as he explained, it arose out of a technicality, it is none the less extremely gratifying that the arguments have been accepted and that the exemption, or notification of it, will be on the face of the Bill. We had not expected that and are grateful for it. I speak on behalf of my colleagues in the theatre industry and the wider entertainment industry when I say that.

I think that I can also say with confidence that those colleagues will in no way seek to find any loopholes or abuse the privilege that the exemption will give them. I hope that my noble friend and his colleagues in the department will seek the help of people in the industry in drafting the regulations so that they are as tightly constructed as possible, as well as being helpful to the industry and for the general purposes of the Bill.

Earl Howe: My Lords, I welcome these amendments and thank the Minister for responding so positively to the debate that we had in Grand Committee on the issue of theatrical and other sorts of performance. The concession is very much appreciated not only by me but, as the noble Baroness said, the theatrical community as a whole. I have a couple of questions. I take it that, in Amendment No. 7, paragraph (a) of new subsection (4A) means precisely what it says and that the list of performances mentioned there is not meant to be exhaustive. For example, opera is not mentioned. If a performance of "Carmen" were to include, as it often does, the factory of women smoking in Act One, that would presumably be covered by the exemption, as, I take it, would smoking in any other sort of performance, provided that it was appropriate in terms of its artistic integrity.

Secondly, I note that paragraph (b) in Amendment No. 7, which refers to rehearsals, states:

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I hope very much that they will so provide. Actors are professional people. They need to rehearse fully in order to give of their best. If they need to smoke as part of a performance they should be permitted to do so in rehearsal as well.

I very much welcome the fact that the Bill at least allows the possibility of rehearsals to be exempted, but has a decision been taken on this and, if it has not, will the Minister look as sympathetically as possible on this aspect?

Baroness Barker: My Lords, I, too, welcome the way in which the Government have taken on board some of the issues that were presented to the Minister during Grand Committee. Rather like the noble Earl, Lord Howe, I want to ask the Minister for clarification of whether paragraph (a) in Amendment No. 7 refers to places being used as locations for films.

Secondly, as the noble Earl, Lord Howe, said, will broader artistic performances be included when the regulations are made?

Lord Stoddart of Swindon: My Lords, like other noble Lords, I welcome these amendments very much. However, they drive a coach and horses through the arguments of those noble Lords who have said that a single whiff of cigarette smoke would be dangerous to them. In a performance—whether a rehearsal or not—it is not only the performer who would be smoking. His second-hand smoke would be inhaled by the ancillary staff as well as the fellow actors while he is smoking. Although I welcome the amendments, they show up the absurdity of some of the arguments that have been used during the debate this afternoon.

7.15 pm

Viscount Simon: My Lords, the noble Lord, Lord Stoddart of Swindon, referred to people smoking and second-hand smoke. I cannot take the risk of going to any performance whatever for that reason.

Baroness Morgan of Drefelin: My Lords, can the Minister reassure me with regard to this amendment? I would be concerned if the amendment were to result in the promotion of product placement. I am sure that that is not the desired effect, but I would like to hear from the Minister some recognition that product placement—people smoking in films and entertainment—should not be promoted. I am sure that he would agree with me on that.

Lord Warner: My Lords, the noble Lord, Lord Stoddart, mentioned a coach and horses. I do not think that Cinderella would qualify in terms of artistic integrity.

Lord Stoddart of Swindon: My Lords, Cinderella would be at far more danger from stoking the fire than having a whiff of cigarette smoke.

Lord Warner: My Lords, the noble Earl, Lord Howe, and others raised the issue of whether paragraph (a) in Amendment No. 7 is exhaustive—it
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is not. Opera would be included where it is part of the artistic integrity of the performance. The exemption in paragraph (a) applies to the performer not the place, so filming on location would be covered where appropriate.

I must say to my noble friend that I cannot conceive of any set of circumstances at the moment where product placement would qualify in terms of artistic integrity, but I am happy to put that in writing to her.

There is provision for rehearsals to be dealt with in the regulations. There will need to be full consultation with the industry in this area. I know that there are some concerns on the part of Equity, for example, that rehearsal rooms and other areas in the theatre should not cause their members to be exposed to second-hand smoke. There will have to be a full discussion with the industry about the precise phrasing of the regulations, but we stand by our decision to give exemption on the basis of artistic integrity in relation to particular performances.

On Question, amendment agreed to.

Lord Warner moved Amendment No. 7:

"( ) For the purposes of subsection (4A), the references to a performance—
(a) include, for example, the performance of a play, or a performance given in connection with the making of a film or television programme, and
(b) if the regulations so provide, include a rehearsal."

On Question, amendment agreed to.

Clause 4 [Additional smoke-free places]:

Lord Naseby moved Amendment No. 8:

"( ) The power to make regulations under subsection (1) is not exercisable so as to specify any place or description of place where a person has his home, or is living whether permanently or temporarily."

The noble Lord said: My Lords, we know that Clause 4 enables the making of,

Clause 2, subject only to the national authority being,

Responding to amendments to this proviso in Grand Committee, the Minister undertook to come back on Report with an amendment raising the threshold for using the power, which he has done. However, it is still arguable that Clause 4 could enable smoking to be prohibited in an individual's home, which is not a work or public place but, in terms of Clause 4(1), is not,

It is well known that banning smoking in the home is an objective of the most ardent anti-smoking activists. Indeed, we heard this afternoon from the noble Lord, Lord Clinton-Davis, that he falls into that category. So regardless of the formal expressions of the right to a private life expressed in Article 8 of the European Convention on Human Rights, which is in any event
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subject to the UK's continued adoption of the convention and—this is important—to the right not being claimed to be overridden by health reasons, it would be preferable to put beyond any doubt the fact that regulations made under Clause 4 may not designate an individual's home or accommodation as smoke-free.

In Grand Committee, the Minister said:

Unfortunately, he went on to say,

Can the Minister tonight be absolutely crystal clear to the House that everyone's home will be exempt indefinitely? I beg to move.

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