Earl Howe (Con)

My Lords, in moving Amendment 192A I will speak also to Amendment 194A standing in my name. In Committee, I raised a question relating to Clause 136, which I make no apology for raising with the Minister again. Under the Health Act 2006, Ministers have a regulation-making power to exempt performers and performances from the smoking ban, where doing so is justified by the artistic integrity of the performance. That provision in effect creates a presumption of legality that empowers producers, directors and performers to make a reasoned judgment about whether smoking is intrinsic to the artistic content of the work. I contend that Clause 136 turns that structure on its head. Instead of a power to permit smoking for artistic reasons, it substitutes a power only to create a defence to the criminal offence in Section 7(2) of the 2006 Act. That offence is clear. It says: “A person who smokes in a smoke-free place commits an offence”. In other words, under the current law, you do not commit an offence unless and until you are convicted of it, whereas, under the exercise of the power in the Bill, you have committed an offence unless you can prove in court that you have not. Those, it seems to me, are two very different things. While the Government maintain they are merely rephrasing the current law to create the same legal effect, I have not been persuaded by their explanation. The burden of proof has clearly been reversed. Let us not forget that we are talking about theatres. Many of them are small and many of them are already operating on narrow margins. Some are fringe venues that are not organisations with legal departments on retainer. Yet, as the Bill stands, a theatre director who permits an actor to smoke on stage is thereby immediately in legal and financial jeopardy, because he has rendered himself liable to arrest for an offence from which he can be absolved only by arguing his artistic case before a judge. That cannot be right. It cannot be right to oblige every director of a Noel Coward play to commission legal advice to protect himself in the event of his subsequent arrest. If Clause 136 remains as it is, I hope the Minister will tell me that its provisions will be the subject of guidance to the enforcement authorities, because that at the very least is what is required.