Back Good morning Minister, guests and delegates. I am delighted to be here today to represent the FSB in Scotland. Although the Minister has spoken about the smoking ban in Scotland and you’ve seen a video of case studies, I’d like to give you some background as to our involvement.
The Scottish Executive was keen to get a really good cross-section of business in Scotland to discuss the issue of the smoking ban. Really, to ensure a sound decision was going to be made. We joined ministerial and sub-working groups to input our members’ views.
The issue was first raised, actually, in 2001 but it was not until the Scottish Elections in 2003 that the idea was picked up by SNP MSP, Stuart Maxwell. He quickly moved on this and early in 2004 the Bill was introduced. In discussing our response to the issue, we felt we shouldn’t be encouraging additional legislation which we feared would actually be more costly, difficult to enforce on a range of small businesses. We favoured sticking to the voluntary approach and urged continued support for the Code of Practice. We had widely expected the Scottish Executive not to support Maxwell’s Bill at all. Banning smoking in public places seemed an unthinkable step in Scotland at that time, despite the growing interest and newly introduced Irish example. But to give credit to the Scottish Executive, they embarked on possibly the most extensive public consultation exercise undertaken since devolution. The skill of the exercise was actually astonishing. But it was evident at a very early stage there was growing public support for a ban, certainly in food areas. And I think that was actually spurred on by the public’s acute awareness of Scotland’s poor health record. We felt a principled opposition was correct. So we decided to conduct our own consultation and particularly in the hospitality sector. This revealed, surprisingly, that there was in fact overall support for banning smoking in areas where food was served, although two-thirds were against it in pubs.
By the end of 2004 the Scottish Executive decided really to take the big bold step, outright ban in public places, because it was far easier to implement. From a small business perspective, the devil can so often be in the detail with this type of legislation. There’s usually little to be fought for during the passage of primary legislation but much more concentration is required over the formulation of regulations and secondary legislation which determines so many critical and practical aspects, such as signage in this case.
So what issues arose for us? Firstly in relation to fines, we disagreed with the level of fine being far higher for committing people to smoke in premises as opposed to actually knowingly smoking in a prohibited area. We felt that the onus should be on the individual to take the full responsibility. The Scottish Health Minister, Andy Kerr, stated that it was unlikely that a business owner would be fined if there was evidence they had tried and failed to stop the smoker. Provision had to be there if the business owner continually failed to enforce the law. I’m really not sure whether council enforcement would take the Health Minister’s approach.
It’s interesting to note that the Leader of North Lanarkshire Council, Jim McCabe, recently smoked three cigarettes in his own office during the course of an interview with a political journalist. His excuse was, he was a long term smoker and was finding it difficult to give up the habit. Will he be fined? We have to wait and see. There’re lots of apologies but to date, no action. The Scottish Executive expects this incident to be fully investigated and expect the Council to respond appropriately in terms of enforcement. Andrew McPherson who’s talking later, may be able to shed some light on this, whether in actual fact there are two sets of rules.
With regards to signage, we were concerned about the difficulties of trying to interpret what was meant as adequate signage inside a property. But also there are additional signs that could be purchased. It was not good enough to use printed paper; they had to be laminated. There were also additional problems whether certain buildings in conservation areas would be permitted to attach signs outside. Little consideration was given to the fact that a very large proportion of small businesses work from home. So, while most of them are exempt because the premises are largely domestic, there’s an added complication for those who may have public offices attached to them, or within the house. So they have a problem with putting the sign up on the front door. I must confess I haven’t really got to the bottom of that one yet.
There’s also the ongoing debate about the definition of a wholly enclosed space, and how Planning and Licensing Departments react to gazebos creating smoking areas, and general alterations to the outside of buildings. The ruling gets quite strict here. The object is to stop people smoking; not to help create comfortable environment for smokers. Much of the initial discussion rightly focussed on licensed premises, but very quickly other types of businesses realised that they, too, would be affected. This led to questions like, ‘I only have two employees and neither they, nor the public, are allowed access to my office in the premises - can I still smoke there’?
Company vehicles were also a source of confusion. A single occupant, the driver, a smoker, with no provision for carrying passengers. It’s a very difficult situation to police. A sensible approach needs to be taken here as the enforcement of the law of banning the use of mobile phones while driving is still not effective in any way whatsoever, and will it ever be?
The Scottish Executive set up a range of implementation groups which were immensely helpful. We greatly appreciated the opportunity to be heavily involved in drawing up the guidance and support material for the businesses, as well as having a good point of contact for any questions that would come up. There was only a slight friction here related to the Guide being sent out six months in advance. That’s in advance of the legislation. We believed that the Guide should state clearly and simply what a business must or must not do, to comply with the law. Some officials interpreted the Guide as a tool for advising businesses about a range of actions which would make them less likely to breach the law, such as adopting a Smoking Policy in the workplace. It’s difficult to get public sector employers to understand that the larger proportion of business in the country is small business. Ninety-three per cent of all businesses in Scotland have less than ten employees. Not the huge office block and factory that you would imagine. We’d have been convinced that the purpose of guidance should be to help business understand what they’re required to comply to the law. It should not be seen as an opportunity to encourage them to do things on a wish-list, which are not included in the legislation. For us, overall awareness within businesses was greatly helped by the massive public awareness campaign run by the Scottish Executive in the run-up to the ban and, being completely honest, we didn’t receive many queries once the ban was in force.
How are we progressing? Well there was a fair amount of trepidation about the impending ban and the seismic shift that would occur in people’s behaviour and leisure activity. Little of this has actually been borne out. With few exceptions, the ban has quickly become self-policing and people barely talk about it now, less than a year in; it’s simply become an accepted way of life. Indeed, many people have remarked that they find it strange when you see people smoking when they’re in pubs and restaurants in England and nearly all mentioned the smell of smoke.
The downside to the ban is where businesses are unable to provide a smoking area, to the side or rear of the premises. The penalty for this is, of course, huddles of people outside doorways of most pubs, cafés, offices and shops. Police have created problems here, moving people on, citing obstruction on the pavement, with obvious results. On a positive note, the pubs and cafés have introduced the Continental theme of tables and chairs and umbrellas outside. It’s a pity in Scotland that we don’t have the weather to make it comfortable.
A fairly limited amount of fines were handed out in the first six months, though one particular local authority, which was Renfrew, had clearly decided to take an enthusiastic approach to enforcement, with a large number of fines dished out in that one area. To my knowledge, there’s only been one prosecution for the inappropriate lack of signage on business. Nick Adkin referred to that one this morning. But I know if you walk down any high street, you’d reveal a large number of businesses without signs. Arguably, signage outside every public building is no longer necessary, since it’s taken for granted that one cannot smoke inside buildings and perhaps it’s good that a sensible approach has been taken to the enforcement here. Cigarette ends outside premises have created problems when no bins or walled ashtrays are provided. This has been picked up by some councils where you’re more likely to be fined for throwing a cigarette end away than any other litter.
The very serious concern as a result of the smoking ban is a downturn in trade for certain sectors, notably pubs. Particularly the small business in a traditional town centre location, with no outside ground. We’re now seeing closures resulting in loss of jobs and financial hardship for the businesses that rent or lease the property. The lucky ones are the property owners who are able to sell for development, and it’s usually flats. I would definitely caution when viewing statistics that tell you all is well and trade is up and more people are going out to pubs. That’s not what the people in the trade say. They wonder where this information’s coming from because they’re not actually being asked to comment. The perception is that brewery output figures are being used as a justification for these stats. But no mention is made of the rise in off-sales for home consumption. Large sporting events, normally viewed in pubs by groups, are moving to homes on a rota basis, buying alcohol from off-sales. It would be interesting to see what evidence there is from Ireland now on that one.
In conclusion, I would say that the implementation of the ban in Scotland has gone relatively smoothly and is basically self-policing. From a business perspective, awareness is key. They know the ban is coming, they need to know what it means for them, what they need to do, and when they need to do it, spelt in clear and simply language. You must consider the range of scenarios that will arise from a vast range of business sectors, remembering that most businesses are small and have limited time to wade through pages of guidance. Good luck.
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