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Smoking in theatres

September 2006 - Media, Entertainment & Sport. Legal Developments by Harbottle & Lewis LLP.

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Scotland's smoking ban caused controversy at the Edinburgh Festival Fringe this August when actors, producers and theatre managers threatened to rebel against it, claiming that it limited their freedom of artistic expression.

Scotland's smoking ban

Smoking any lit substance in the majority of public places and workplaces, including theatre stages and film/broadcasting studios, has been prohibited in Scotland since this March, when the Smoking, Health and Social Care (Scotland) Act 2005 came into force. The ban does not exempt actors on stage or even on screen. Councils are entitled to impose a £50 fine for individuals who flout the legislation and a £200 penalty for the person in charge of no-smoking premises who allows others to smoke there. Refusal or failure to pay the fine may result in prosecution and a further fine of up to £2,500, and premises owners can lose their licence if they continue to permit the flouting of the ban.

Whilst the Scottish smoking ban has been well received locally, with support for it apparently rising from 56% to 78% since the Act came into force in March, it became embroiled in controversy during the Edinburgh Festival Fringe this August when actor and comedian Mel Smith became the first actor at the Edinburgh fringe to flout the legislation, by smoking a cigar during a photo call. He declared that he would defy the ban and smoke a Romeo y Julieta cigar whilst playing Sir Winston Churchill in Mary Kenny's play Allegiance at the Assembly Rooms in the interests of historical accuracy. Smith also stated that he would pay any fines that he incurred for smoking during the performance. Ultimately, however, a threat from Edinburgh Council that it was sending environmental health officers to watch the performance and that the venue could lose its entertainment licence, meant that the actor stopped short of actually lighting a cigar on stage.

This incident has highlighted the British theatre industry's unease about the smoking ban imposed by the Scottish Executive. Scottish smoking regulations are now some of the strictest in the world. Whereas in New York theatrical productions are exempt from smoking controls and in the Republic of Ireland actors are permitted to smoke herbal cigarettes on stage, in Scotland the law applies to any product which can be smoked, so the smoking of herbal cigarettes is also prohibited. For those theatrical or film performances which require smoking to be portrayed, other artificial products will need to be used.

Opponents of the ban have argued that, in the majority of cases, theatres are large open spaces with high ceilings, meaning that any smoke is dissipated and the risks associated with passive smoking are minimised. However, to date the Scottish Executive has taken an absolutist approach to clean air and remains unwilling to make an exception for theatrical performances. The official line from the Scottish Executive is that the purpose of the ban was to protect the public from the harmful effects of second-hand smoke and ‚Äėthose performing in and attending theatrical performances have the same right to protection from the harmful effects of second-hand smoke as others'.

Censorship?

To its opponents, Scotland's smoking ban unnecessarily and unjustifiably restricts the freedom of producers, directors and performers to perform fully and interpret accurately the artistic intentions of writers, for example, in the plays of Oscar Wilde, Anton Chekhov and Noel Coward, where smoking is cited as a stage direction, or for the portrayal of characters like Sherlock Holmes or historical figures like Churchill, where smoking may be a definitive and inseparable part of an individual's persona. During the Edinburgh Festival Fringe emotive language was used to criticise the Scottish Executive's absolutist approach to the ban. Mel Smith made comparisons with Adolf Hitler and Nazism, and Tomek Borkowy, the manager of the Hill Street Theatre in Edinburgh, was quoted as saying that the ban reminded him of the censorship he had experienced whilst living in Poland during the Cold War.

Are the allegations that the ban constitutes of censorship overstated? It is, after all, an actor's job to evoke all kinds of things on stage, like sex or drug-taking, without actually doing them. If the stage directions for a play require that an actor is required to stab another actor, they would not use a real knife, and audiences do not expect the blood drawn to be real blood. Surely it is possible to simulate smoking on stage? However, unlike the Republic of Ireland, where herbal cigarettes can be smoked, the only alternative in Scotland is for actors to use fake cigarettes which puff out talcum powder. These fake cigarettes, sold in joke shops, are felt to be wholly unconvincing. Several productions in the festival were, as a result, re-directed to accommodate the ban. An example of this was The Unprotected, which transferred from the Liverpool Everyman to the Fringe. In this play, the characters all smoke and fake cigarettes were felt to be an unacceptable substitute for the real thing. Accordingly, director Nina Raine redirected the play with characters abandoning their cigarettes and instead drinking endless cups of tea.

Smoking ban in England and Wales

So what is the situation across the border? The Government's Health Bill, which contains proposals to prohibit smoking in enclosed or substantially enclosed public places and workplaces in England and Wales, is currently making its way through Parliament. A smoking ban is expected to come into force in summer 2007. As in Scotland, it is proposed that the prohibition will relate to the smoking of any lit substance, including herbal cigarettes. The Theatrical Management Association (TMA) in conjunction with the Society of London Theatre (SOLT) (the trade associations representing the interests of those engaged in the production and presentation of theatrical productions in the United Kingdom), together with the actors' union Equity and other representatives from the British theatre industry, have been lobbying the government for the ban to include an exemption for smoking on stage as part of a theatrical production. The TMA has recently reported to its members that the government has agreed to an amendment to the Bill which will provide that regulations will be made to exempt smoking by a performer during a performance or rehearsals for a performance if the ‚Äėartistic integrity' of a performance makes it appropriate for the performer to smoke. The Bill still has to complete its passage through Parliament and the regulations under it will be subject to public consultation. However, it seems likely that the ban in England and Wales will include an exemption for smoking on stage.

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