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Smoking in Public Places
A Consultation on Reducing Exposure to Second Hand Smoke
Evidence Report

CHAPTER FOUR - DISCUSSION OF KEY THEMES

4.1 Having presented summaries of each of the separate evidence strands, this chapter identifies the key issues that have emerged throughout the consultation. The principal findings from each of the evidence strands are pulled together to enable the implications for Scotland to be considered.

4.2 Note that throughout this report each strand of evidence is referred to using a shortened form of title for ease of reference. The reference titles were provided at the end of each summary in chapters two and three.

4.3 The key areas covered within this chapter are:

• Passive smoking and health: the scientific evidence about the health risks of passive smoking, the impact of ETS on health and the estimated impact of legislation on health in Scotland are addressed first. This is followed by a discussion of public perceptions about passive smoking and health, including views on ventilation and its effectiveness.

• Economic concerns: the evidence concerning the economic impact of exposure to ETS is discussed and data about the economic impact on the licensed trade and hospitality sector presented. This is followed by public opinions about the economic implications of legislation.

• Workplace issues: the findings from the workplace policies study are addressed and followed by a discussion about the opinions amongst the public about different aspects of workplace smoking policies and restrictions. Certain industries where employees are likely to be exposed to ETS are given further consideration.

• Socialising, leisure and relaxation: this section considers the close association between smoking and leisure and relaxation and discusses the view held by some respondents that pubs, clubs and other venues serving alcohol should be exempt from legislation. Opinions about restrictions in restaurants are also discussed.

• Rights and choices: this section discusses the differing points of view concerning the rights of the individual to smoke where and when they want, versus the rights of the general public to a smoke-free environment. A range of issues concerning individual choice and state control are addressed.

Research evidence

4.4 The first section (paragraphs 4.5 to 4.11) discusses the reviews of scientific evidence.

Evidence of the health risks of passive smoking

4.5 Issues relating to passive smoking and its impact on health were addressed in every strand of the consultation and evidence gathering exercises. The health implications of passive smoking were clearly summarised by Peter Boyle of the International Agency for Research on Cancer at the opening of the national conference. Dr Boyle also drew attention to the specific health risks facing children. These have been mentioned in the summary of the conference report in chapter three.

4.6 Both the morbidity and mortality report and the international review evaluated the scientific evidence on the relationship between passive smoking and health.

4.7 The international review found that the main health impacts of exposure to ETS were as follows:

• For both lung cancer and coronary heart disease (CHD) the excess risk associated with domestic exposure to ETS is about 25%. The range of estimates for workplace exposure were similar to domestic exposure and the risks appear to increase with extent of exposure to ETS.

• There appears to be an association between excess risk of stroke and exposure to ETS.

• Exposure to ETS has a detrimental effect on lung function and may be associated with poor respiratory health.

• Exposure to ETS in pregnancy can lead to low birth weight and poor gestational growth.

Implications of ETS for health in Scotland

4.8 The morbidity and mortality report estimated the number of deaths per year from exposure to ETS among adults in Scotland caused by the four principal smoking related diseases at 865. This figure does not include deaths per year from other smoking related diseases that might be also be attributed to ETS exposure among life-long smokers, nor the number of deaths amongst ex-smokers where no reliable information currently exists. Taking these into account, a total of between 1,500 and 2,000 deaths per year were estimated to be caused by ETS exposure among non-smokers (both life-long and ex-smokers).

4.9 Passive smoking represents the greatest risk to public health compared with other forms of "involuntary" exposure.

Impact of regulation on health

4.10 The international review assessed the impact of legislation in other countries for health and economics and sought to model what the impact would be for Scotland should there be a shift from the current situation to a legislative ban. The estimated effect of eliminating exposure to ETS in public places in Scotland was an annual reduction in the number of deaths from lung cancer and CHD of 219, with a possible additional reduction in deaths from stroke and respiratory diseases of 187. The full benefit may take between 10 and 30 years to be realised.

4.11 A number of other health benefits were identified by the research:

• A reduction in exposure to ETS, including the specific benefits noted above. Complete smoking bans are associated with greater reductions in exposure to ETS than other forms of restriction.

• Reductions in the number of cigarettes smoked by continuing smokers.

• Increases in the number of successful quit attempts.

• At a population level, the health gains in Scotland from reductions in active smoking may be at least as great as those from reduced passive smoking.

Public opinion and awareness of the health implications of passive smoking

4.12 Having outlined the factual evidence on the impact of passive smoking the next section of the report considers the views of the general public about the health implications of passive smoking. These views were obtained during the different strands of the consultation.

Health risks

4.13 Across the consultation activities members of the public expressed concern about the impact of passive smoking on public health. A number of those responding to the public consultation made specific reference to health risks, sometimes mentioning specific smoking related illnesses or identifying specific social groups that are particularly vulnerable.

4.14 Many respondents across the different consultation activities considered the health risks to be a valid reason for the introduction of legislative measures. A small number of respondents to the public consultation and some participants in the on-line discussion forum argued that it was the duty of the Scottish Executive to protect the health of the people of Scotland, including those working in the hospitality industry who were most at risk. Indeed it was felt that public health should not be jeopardised for the sake of minority interests and publicans' profit.

4.15 Respondents referred to their own experiences with regards to health, particularly if they themselves suffered from certain conditions such as asthma which were aggravated by ETS or if they had friends or family who had been affected by such conditions. The concerns about health were mirrored amongst children and young people responding through the youth consultation.

4.16 Not surprisingly, the health organisations offering detailed responses to the public consultation gave information about the specific diseases that are caused or aggravated by ETS exposure, as did some local authorities. The point was made by organisations in several different parts of the public consultation that legislation would be needed to protect the public from the health implications because of the failure of voluntary measures. Health organisations drew attention to additional health benefits of the introduction of legislation such as a reduction in the number of cigarettes smoked and an increase in the number of successful cessation attempts.

Scepticism about the health risks of passive smoking

4.17 However, a key finding of the research and consultation activities which emerged particularly in the focus groups and the workplace policies research was that although most of the population was well aware of the dangers associated with active smoking, there was often scepticism and confusion about passive smoking and its implications for health. There was doubt about the scientific evidence attributing morbidity and mortality to passive smoking.

4.18 The real level of risk associated with passive smoking did not appear to be clearly understood amongst many of the general public.

4.19 A small number of respondents to the public consultation also felt that there was not sufficient evidence of the dangers of passive smoking or disputed the evidence, some claiming that the dangers have been exaggerated. These individuals argued that there was a need for more research into the health risks of second hand smoke. A small minority of respondents in the focus group research also denied that active or passive smoking were proven beyond doubt to cause death and illness. Other respondents admitted awareness of the dangers of smoking but chose to ignore the scientific evidence or hoped that it would not affect them.

4.20 A fairly common response to the argument that the population should be protected from the damaging impact of active and passive smoking was to draw attention to other forms of environmental pollution that are believed to be potentially damaging to health. In the consultation responses, respondents identified a range of potential hazards (exhaust fumes, alcohol, drug abuse and fatty foods) that they felt could arguably be of greater concern to public health than passive smoking. This argument was also expressed in the focus groups and the regional public seminars.

At risk groups: children and young people

4.21 Participants across all strands of consultation activity frequently identified babies and children as a group that is more vulnerable to ETS, and as such needs to be protected. There was some awareness that there are specific health issues for young children, although there was limited knowledge of the precise conditions affecting children. One view expressed in the public consultation was that banning smoking in enclosed public places would benefit children's health. A small number of respondents however, suggested that such legislation could increase smoking in the home with negative implications for children's health.

4.22 It was also recognised across the consultation that babies and children lack choices over their behaviour. They cannot choose their own environment but depend on adults to protect them from harm. It was often thought that steps should be taken to enforce greater restrictions on smoking in places where children are likely to be present.

4.23 Amongst a range of different types of organisations responding to the public consultation there was concern that the health of children in particular be protected. Indeed, even some organisations that were not in support of a total ban felt that more needed to be done to protect children.

At risk groups: lower socio-economic groups

4.24 Some of the health organisations submitting lengthier responses to the public consultation also highlighted the high mortality and morbidity rates from smoking related diseases amongst the lower socio-economic groupings, and the health gap between different social classes that currently exists. One view was that the introduction of legislation would help smokers give up and in turn this would help to reduce death and illness amongst the poor. However other health organisations felt that more needs to be done to tackle the underlying factors responsible for high levels of smoking amongst lower income groups.

4.25 There was also recognition amongst some of the consultation respondents that the legislation would reduce NHS costs as a result of the reduction in mortality and morbidity rates.

Ventilation and health

4.26 Another issue related to health was the use of ventilation and extractor systems. This was raised and discussed to quite considerable degree in several of the consultation activities, particularly those attended by representatives of the licensed trade and hospitality sector such as the national conference and the public seminars. It was also discussed in the public consultation.

4.27 Some publicans and business owners requested that the Scottish Executive give consideration to ventilation as an alternative measure to reduce exposure to second hand smoke in places such as pubs, clubs and restaurants. However, this is not an aspect of the official Five Point Plan presented by the SVCSG ²³.

4.28 Sound international research evidence was referred to at the national conference to indicate that ventilation is not capable of removing the harmful carcinogens from the air. In the public consultation health organisations also emphasised this finding. The suggestion of introducing ventilation was not something that health experts considered to be a satisfactory alternative.

4.29 However, the various consultation activities indicated that there is a lack of understanding amongst the public about the effectiveness of ventilation systems. Many respondents in the consultation appeared to assume that ventilation improves air quality to some degree and some believed that this could be an adequate solution to overcome the problem of passive smoking in enclosed public places. For example, some respondents to the public consultation mentioned the use of ventilation as an alternative solution to reducing exposure to second hand smoke, and suggested improvements to ventilation systems, financial assistance to improve ventilation or the introduction of mandatory standards for ventilation systems.

4.30 However, there were also some comments about the ineffectiveness of ventilation including those from some voluntary organisations and health organisations who drew attention to the scientific evidence demonstrating that ventilation is not a solution to the problem of ETS.

4.31 The workplace policies study also revealed that there was widespread belief that ventilation reduced the health risks of passive smoking.

4.32 There was also a great deal of discussion concerning the economic implications of the legislation. This was particularly evident at the national conference and the regional public seminars where the representatives of the licensed trade and hospitality sector were present. There was also some awareness of the arguments relating to the possible negative economic impact of legislation amongst those responding to the public consultation.

4.33 The licensed trade and hospitality sector were extremely concerned about the impact that the legislation might have on their businesses, claiming that it could be seriously damaging, leading to bankruptcy and closure of many pubs and clubs.

Economic evidence of the impact of legislation on the licensed trade and hospitality sector

Insights from other countries

4.34 The economic consequences of legislation were discussed at the national conference in some detail. Speakers from different countries or regions where smoking legislation has recently been introduced provided insights into the respective situations. It was acknowledged that there had been similar fears about the economic consequences in other countries prior to legislation being introduced. Nevertheless, there was no evidence to date to indicate that the introduction of legislation had caused an economic downturn in the licensed trades and businesses in any country or area.

4.35 This conclusion is backed up in the international review. The review of studies of the impact of smoking restrictions on the hospitality sector (hotels, bars and restaurants) using objective data such as sales tax and employment failed to find any statistically significant effect. These studies demonstrated that the negative impacts that were feared had not occurred in the locations studied.

4.36 The failure to find significant impacts on revenues in these business sectors did not rule out the possibility of a small negative effect on business but it did weigh against a large negative impact being experienced.

Implications for the licensed trade and hospitality sector in Scotland

4.37 The annual effect on the hospitality sector in Scotland was estimated to lie in the range of-104m to +299m with a central estimate of +97m. The net effect on the Scottish economy would be smaller than this as any change in spending would be redistributed to or from other sectors of the economy. Nonetheless, the evidence indicated a positive net effect for the hospitality sector.

Estimated total economic impact

4.38 The international review study factored in estimated savings in the NHS, productivity gains from reductions in sickness absence, smoking breaks and savings on fire damage and cleaning costs. The report noted that the full savings on NHS costs and sickness absence might take between 10 and 30 years to be realised.

4.39 The international review estimated the total economic impact of eliminating exposure to ETS by applying financial values to the health gains and adding these to the economic impacts. The central estimate for the full annual effect was +335m. This is equivalent to +124m when discounted to take account of the timing of effects with a net present value over 30 years of + 4,620 million.

Debate concerning the economic implications of legislation

4.40 There was some debate over the available economic data and some respondents (often representatives from the licensed trade and hospitality sector) both at the national conference and the regional public seminars expressed a view that in countries where legislation has been introduced some businesses have suffered. These respondents referred to anecdotal evidence which has been obtained through contacts with business owners in certain countries who have reported that their takings are down since the introduction of legislation. This led some respondents to interpret a more negative picture than that claimed by economists.

4.41 As noted at the national conference, prevailing economic trends and conditions impacting on the economy were taken into account in the economic analyses. For example, in the case of New York, businesses were facing a decline at the time the legislation was introduced which economists stated was because of the impact of September the 11 ^th. Similarly, bar sales in Ireland were also down when the legislation was introduced and this trend continued after the legislative change. Nonetheless, some interpreted these trends as evidence of an economic decline directly caused by the introduction of legislation.

4.42 The situation in Ireland was a subject of particular controversy with conflicting views on the true impact for the economy. In addition to debates amongst speakers and representatives of the licensed trade and hospitality sector, there were also differing views from respondents at focus groups and from respondents to the public consultation about the economic implications of legislation in Ireland. Some believed that the legislation had been introduced successfully without having a detrimental impact on businesses. Others were sceptical about the success of legislation and believed that businesses were suffering.

4.43 The participants contributing to the national conference and regional public seminars also pointed out that the figures that were available were for the first six months of economic activity since the legislation was introduced in March 2004. There was concern that inclement winter weather will create a greater challenge to these businesses. It is believed that smokers will be reluctant to go outside to smoke, and so less likely to go to the pub.

Level playing field

4.44 Concerns were expressed in several strands of the consultation that legislative action should aim to create a level playing field to ensure equal conditions for all businesses. This concern was often expressed in response to proposals for introducing designated or separated smoking areas as an alternative solution. It was noted that this could negatively affect smaller venues that do not have facilities to provide a smoking room or area. There were fears that the smaller venues would suffer in a competitive market, if customers selected those pubs that had the space to offer a smoking room or area. Similarly, some organisations responding to the public consultation commented that the ban should be all inclusive so that no one business was given an unfair advantage.

4.45 The economic implications prompted the licensed trade and hospitality sector to request that compensation or subsidies be offered to landlords should the legislation have a negative impact on their trade. These were also reiterated at the national conference and the regional public seminars. Other suggestions were for the government to offer guidance to businesses on how to deal with the economic challenges that pub owners might face to prepare them for the changes before they occur. An alternative perspective was offered by one speaker at the conference emphasising the business opportunities that going smoke-free might have for publicans and restaurant owners. Smoke-free pubs and restaurants might attract a new clientele, those who previously avoided such places because of the smoky atmosphere.

The views of the public

4.46 Across the consultation there were mixed views on economic consequences. Of those responding to the public consultation, some cited the potential negative economic consequences as a reason that they did not support the legislation.

4.47 In the focus groups some respondents were convinced that if smoking was not permitted in pubs, the majority of people would not go to them. This view was particularly likely amongst smokers who felt that they themselves would probably stay at home so that they could smoke indoors. The same respondents also assumed that the knock on effect would be an increase in the costs of alcohol in pubs to compensate for the loss of trade.

4.48 In both the public consultation and the focus groups there was a concern that the legislation would have a negative impact on the social fabric of local communities, particularly in rural areas.

4.49 On the other hand, some respondents to the public consultation believed that there would be no negative impact. Likewise, some focus respondents did not believe that there would be a negative impact on trade and this view appeared to be strongest amongst non or ex-smokers. These respondents argued that regardless of whether they smoke or not, many people go to the pub to meet friends, socialise and get out of the house. They do not go to the pub just to smoke, nor just to drink alcohol. Some even felt that the legislation could result in an increase in trade as those who currently avoid pubs and clubs due to their dislike of smoky environments, would return to them.

Worker productivity

4.50 Economic considerations from the perspective of worker productivity were identified in the workplace policies study. On one hand, it was felt that a ban on smoking in public places (and hence the workplace) would have a positive impact on worker productivity as less time would be lost due to smoking breaks and illness.

4.51 An alternative view was that productivity could be compromised by denying smokers their "nicotine fix" to enable them to concentrate and work effectively. It was also suggested that, by obliging smokers to leave work premises to have a cigarette, more time could be lost.

4.52 Protecting the health of workers and the rights of workers to smoke-free workplaces were themes that emerged in each of the strands of the consultation. In other countries, including Ireland, restrictions and bans on smoking have been implemented through workplace health and safety legislation.

4.53 Workplace legislation covering Scotland is reserved to the Westminster government. Any legislation restricting smoking in public places in Scotland would be for the protection of the public in general as opposed to the protection of workers in the workplace. The effect is expected to be similar regardless of the approach as most public places are also workplaces.

Smoking Policies in the Workplace

4.54 One aspect of the evidence gathering exercise was to obtain data concerning the state of workplace policies on smoking. The workplace policies study found that three in four workplaces (77%) reported having a workplace policy that restricts or bans smoking by employees at work. Almost half (48%) banned smoking by employees anywhere on the premises. This indicates that, in the absence of legislation, voluntary action is currently protecting employees to some degree in the majority of workplaces from the impact of passive smoking.

4.55 However, the workplace policies research also established that there were evident differences in the types of employee policies that were currently applied to different industries.

4.56 The types of workplaces that were most likely to implement a complete ban on smoking were the smaller, indoor-based, non manual sectors such as retail and wholesale, finance and real estate, and social and personal services. In contrast, workplaces from the manufacturing and leisure and hospitality sectors, traditionally manual, indoor, site based organisations were more likely to have policies which restricted smoking by employees to smoking rooms or designated areas. The traditionally manual, outdoor, off site sectors such as transport, construction or agriculture were least likely to have any policy for employees.

4.57 The research also revealed that one third (33%) of employees were required to work in areas where smoking was not banned and therefore where they could be subjected to the effects of ETS. For those working in the licensed trade and hospitality sector the figure was markedly higher at 66%. This indicates that there is a double standard in terms of a smoke-free working environment. The white collar office worker is most likely to be afforded the highest level of protection from ETS whilst manual workers are less likely to enjoy such protection. Workers in the hospitality sector are also more likely to be required to work in a smoky environment.

Violation of smoking policies in the workplace

4.58 For the most part, the workplace policies study found that smoking policies were enforced in an informal fashion, usually by word of mouth. Although the quantitative findings indicated a view that there was minimal violation, the qualitative research importantly revealed that in practice there was violation of existing smoking policies.

4.59 In some cases where survey responses had stated there was a complete ban, in reality it was discovered that businesses allowed smoking in certain areas. There were in effect unwritten rules regarding where smoking was allowed, such as outside the rear of buildings, at fire exits or in company car parks. It would seem that policies are sometimes applied flexibly rather than rigidly in many employment contexts.

4.60 A similar finding was obtained in the focus group research through discussions with employees from certain industries. Respondents perceived three types of workplace policies: workplaces where policies existed and were respected, workplaces where policies existed but were violated and workplaces where no policy existed.

4.61 Policies were most likely to exist and be respected in workplaces where the policy was generally recognised as acceptable and desirable, for example in offices and workplaces where food is prepared. Policies were most likely to be violated in some manufacturing and industrial sites, factories and construction sites and some transport businesses. Respondents working in these sectors admitted violating or ignoring rules about smoking.

4.62 The workplace policies research also found that violations of smoking policies were most likely to occur in workplaces with restrictions rather than complete bans.

Public opinion about workplace protection

4.63 In the public consultation relatively few respondents commented specifically about the need to protect employees in the workplace. However, a number of organisations responding to the public consultation emphasised the need for a workplace ban based on the rights of workers to a smoke-free environment. A small number of organisations also stated that more should be done to protect the health of workers.

Employees in the licensed trade and hospitality sector

4.64 The findings of both the focus groups and workplace policies study indicated that there was an assumption that employees of pubs, bars and restaurants could be classified differently from other employees. This was because a number of jobs in the industry were casual, part time and temporary and therefore passive smoking was not thought likely to be of any great significance to the long term health of the employee. Amongst respondents in the public consultation who were in favour of exemptions, their concern that smoking should continue to be allowed in pubs and other licensed premises outweighed their recognition of the rights of employees to a smoke-free environment.

4.65 There was a view expressed in the focus groups that these employees were expected to tolerate smoky environments as it was part and parcel of the job. Some respondents pointed out that many employees in such jobs smoked themselves, and those that did not were aware of the risks before they took the job; they could choose not to take the job if they did not want to work in a smoky environment.

4.66 However, some employees working in pubs, bars and restaurants who participated in the focus group research indicated that being subjected to hours of intensely smoky environments was far from pleasant and a real concern for their health. This was particularly the case amongst non-smoking employees. Despite the view that they could avoid these jobs, it was also evident that for some of these employees their job in a bar, pub or restaurant suited their life circumstances. Indeed these jobs provided them with the best source of income in relation to the time they had available for working or the time of day that they were available for working. In this sense, they did not have the real degree of choice that some might imagine.

Transport and construction

4.67 Comments from employees working in the transport and construction industries in the focus groups revealed that these are employment sectors where it has traditionally been acceptable for employees to smoke in the workplace. It would appear that this is still often likely to be the case. The workplace policies research also indicated that these industries were least likely to have an employee smoking policy and this was backed up in the focus group research. The fact that construction work occurs predominantly in outdoor settings on a building site has perhaps delayed the introduction of smoking policies, as they have not been considered to be necessary.

4.68 It was also apparent that where sites had smoking policies covering their offices and indoor facilities, these were likely to be violated by employees. Indeed, it appeared that supervisors were often likely to turn a blind eye to violations of smoking restrictions.

4.69 In the transportation industry there were potentially variable interpretations of whether the cab or driving seat of a lorry or van could be considered an enclosed public space and this meant that some drivers would smoke there. Smoking in the cab or driving seat appeared to be considered to be perfectly acceptable, even if non-smoking colleagues were present.

4.70 It was evident that some respondents participating in the focus groups perceived a differential between different types of workplaces. This reflects the distinctions that were identified in the workplace policies study detailed earlier. Again there was awareness amongst some focus group respondents that white collar workers are afforded the highest level of protection whereas workers in manual sectors are least likely to be protected from ETS. Additionally, the differential also relates to whether or not a working environment for one person is also a leisure environment for another. This situation applies to those working in pubs and other licensed premises who are often required to be subjected to the second hand smoke of their customers.

Workplaces that are also a home: hospitals, care homes and prisons

4.71 The consultation also obtained views on locations that, as well as being a workplace, are also a home such as care homes, hospices, hospitals and prisons. There are implications for health visitors, nurses and indeed any worker who enters another persons' home as part of their job.

4.72 These workplaces were the subject of debate across the different strands of the consultation and were given specific attention in the regional public seminars as well as being mentioned in the public consultation. Some respondents to the public consultation argued that they should be exempt from the legislation if it is introduced, precisely because they are "home" to some people. Indeed there was some recognition of the needs and rights of people in these residencies.

4.73 However, many felt that allowing smoking in long-stay care facilities, and so on, would put workers in danger of the effects of second hand smoke. There were also concerns about worker equality and it was noted that, if these locations were to be exempted, some workers would not have the same rights as others.

4.74 A small number of organisations responding to the public consultation felt that care homes or prisons should not be defined purely as enclosed public places, rather than being treated as exemptions. They emphasised that there was a need for serious consideration to be given to these types of places in the designing of the legislation.

4.75 Comments from respondents in the focus groups also indicated that in some hospitals, sometimes different policies apply to the NHS staff working in the hospitals and to patients admitted to hospitals. In some hospitals, employees are not allowed to smoke anywhere on the hospital premises including both inside and in hospital grounds, but patients are permitted to smoke either in a smoking room or outside. In other hospitals, smoking is permitted outside only, and patients have to be escorted to the hospital entrance.

4.76 Comments from respondents in the focus groups indicated that there were mixed views on whether or not smoking should be tolerated at all in hospital environments. On the one hand, some people believed that hospitals should set a good example. They also pointed out the paradox that many people admitted to hospital are suffering from smoking related illnesses, and yet they continue to smoke at the doorway of hospitals. Some people were very concerned by groups of people standing smoking at every entrance to a hospital. On the other hand, there was concern that banning smoking entirely would only result in subversive violation with smokers using fire escapes, toilets and cupboards illegally posing a risk to themselves and other people.

4.77 There was some discussion about prisons. Those responding to the public consultation from prisons were less keen on the idea of a ban, with only 63% stating that they would support a law to make enclosed public places smoke-free. Some respondents suggested segregation of smoking and non-smoking areas (for both inmates and staff), including cells, cell blocks and wings.

4.78 In the public consultation occasional mention was also made of hotel rooms which some respondents felt should be exempt as they are effectively private space, whilst others noted that staff are required to enter these environments and therefore deserve protection from ETS.

Equal rights for all employees

4.79 A comparison of different types of workplaces indicates that there are different standards and a subconscious ranking of employees in terms of their rights to a smoke-free environment. Employees in certain industries are not accorded equal treatment.

4.80 One concern that was expressed in several strands of the consultation activity was that all employees should have the right to a smoke-free environment across all employment sectors. There was a concern that new legislation that made certain work spheres exempt, would continue to reinforce the differences in standards that already exist between employees working in different types of industry. This theme is taken up again in the section on rights and choices.

Employer responsibilities and litigation

4.81 There did not seem to be a strong sense that employers should be responsible for their workers' health and the possible effects of passive smoking in many strands of the consultation. This was certainly not evident amongst the employees in the workplace study nor amongst those responding in the focus groups.

4.82 However, some health organisations and local authorities responding to the public consultation suggested that employers have a duty to protect workers from ETS. Some also quoted the number of estimated deaths caused by exposure at work and others stated that reducing or eliminating workers' exposure is in keeping with Health and Safety legislation.

4.83 In some of parts of the consultation (the focus groups and the national conference) the concern about future litigation by employees who become ill or by relatives of employees who die from a smoking related disease caused by exposure to ETS was mentioned. This was occasionally referred to in the responses to the public consultation.

4.84 For many smokers responding to the public consultation and participating in the focus groups it was evident that smoking and socialising go hand in hand. Smoking and alcohol consumption were also identified as activities that are closely related to each other. Indeed smoking for many is a way of relaxing and winding down after work.

4.85 Smoking is considered to be a central part of the social life of many smokers. This reflects the finding that the public house is the place that some people would like to be exempt from a smoking ban. This section therefore gives some consideration to smoking in pubs, bars and other licensed premises.

Pubs and Clubs

4.86 In contrast to the majority of enclosed public places, pubs and other licensed premises are the last few places where smoking continues to be allowed. The voluntary charter that was introduced to encourage landlords and pub owners to introduce a smoking policy of some sort (separated, designated or smoking everywhere) has had some success, but seven out of ten pubs continue to allow smoking throughout.

4.87 Although smoking is less popular than in previous years, the habit continues to be strongly associated with drinking, relaxation and socialising for most smokers. This association was evident in several of the evidence strands. The workplace policies study indicated that although some employees (smokers) accepted smoking restrictions in their own place of work (an office), they were reluctant to see the same restriction applied to restaurants or bars because they wanted to be able to smoke in these places when relaxing after work. Either they did not perceive pubs and clubs to be a place of work or they did not feel that this factor was particularly important. In the focus groups there was also a lack of realisation or acknowledgement that pubs and clubs are workplaces for some people as well areas for relaxation and entertainment.

4.88 Every strand of the consultation indicated that there was a strong association between smoking and alcohol consumption. Moreover, some smokers participating in the focus groups admitted that they were likely to smoke more when in the pub. It was also found through discussions in the focus groups that there was a small number of individuals who did not smoke regularly during the day, but who smoked when in the pub, drinking with friends.

4.89 There was also a belief that a smoky atmosphere was an integral part of the traditional pub atmosphere with some respondents in the focus groups expressing a romantic or nostalgic image of the smoky pub. The notion of a smoke-free pub was a concept difficult for many focus group respondents to grasp, regardless of their smoking status, perhaps because it is something that they have never known or experienced.

4.90 These assumptions and beliefs meant that many respondents in all strands of the consultation thought that pubs, bars and clubs should be exempt from any smoking legislation. In several strands of evidence the pub was identified as a venue where smoking should continue to be allowed if nowhere else. The omnibus survey showed that respondents most commonly identified the pub as a place that should be exempt from legislation. Just over half (57%) of respondents in support of legislation spontaneously mentioned the pub when asked if they thought there should be exemptions. This was also mentioned by a number of young people responding in the youth consultation. Amongst respondents responding to the public consultation, the areas most frequently mentioned as places where there should be exemptions was again pubs, bars or other places where alcohol is consumed.

4.91 A relatively common suggestion made in the public consultation was for segregated areas in social venues such as pubs and restaurants to offer options to both smokers and non-smokers, rather than a complete ban.

4.92 Many people would like smoking banned in places where food is served. By extension, this would in fact include pubs that serve food. Whilst this might be considered to be contradictory, it could be explained by the following observations:

• Some pubs do not serve food.

• Those pub that serve food often do so only in a specific part of the pub and at a specific time of day.

• The main motivation for a pub outing for many people (especially young people) is to drink alcohol rather than eat.

4.93 Many people continue to view pubs as a different type of social venue in comparison with restaurants or other venues where food is served. Nonetheless, some respondents would also like some sort of restrictions to be enforced in pubs serving food, although they did not necessarily believe that this should amount to a complete ban. Restricting smoking in areas where food is served was also one of the points on the Five Point Plan presented by the SVCSG.

Smoking in restaurants

4.94 The situation in restaurants is somewhat different to that in pubs as there are now more voluntary restrictions in place. Although smoking is still permitted in many restaurants, a number are now smoke-free and many have smoking policies restricting where smoking is permitted.

4.95 There was quite strong support across the consultation for restrictions on smoking in places where food is served, as many smokers, and the majority of non-smokers, dislike a smoky environment around them when they are eating. In the public consultation responses restaurants were identified by some respondents as places that should not be exempt from the legislation. Some of those respondents, who were against a total ban, felt that there should be restrictions in places where food was served. Similarly, in the focus groups, some respondents who were against a total ban were willing to accept its introduction in restaurants and other places where food is served such as pubs and cafes.

4.96 Those who were least willing to make restaurants smoke-free were smokers. In the omnibus survey around a quarter of smokers who were in support of a law, thought that restaurants should be exempt, whereas only 16% of all respondents in the omnibus survey were of this opinion.

4.97 There was also a tacit acknowledgement from some smokers participating in the focus groups that they may need to accept restrictions on smoking in some public places if they are to avoid an outright ban everywhere. For these respondents, the provision of smoke-free areas in restaurants and other places serving food were a more acceptable compromise than a ban in pubs.

Smoking in other public places

4.98 It should be remembered that the consultation was concerned with smoking in all enclosed public places, and it was not intended that the debate should focus solely on pubs and clubs. The new legislation would apply to all enclosed public places. However, there was awareness amongst respondents in all strands of the consultation that in most public places smoking bans or restrictions have already been enforced through voluntary means.

4.99 Respondents throughout the consultation were aware that smoking policies currently apply in the following enclosed public places:

• Public transport (trains, aircraft and buses, although in some cities smoking still occurs on buses)

• Cinemas

• Leisure/sports facilities

• Shops and shopping malls

• Offices

• Hospitals (as noted earlier, policies vary between hospitals).

4.100 In these places, smoking is either completely banned or tolerated only in designated areas.

4.101 Many people viewed these current restrictions as going quite a reasonable way to ensuring that most of the public are not affected by ETS and in themselves were considered to be adequate measures. This view may be one reason to explain why, throughout the consultation, there was less discussion surrounding the implications of a change in legislation in these areas compared with the discussion on pubs and clubs.

4.102 In the focus group research it emerged that, on the whole, respondents' views of where it is and is not acceptable to smoke mirrored the restrictions on smoking that currently apply. This suggests that the majority of people tend to accept established norms and rules.

4.103 The acceptance of established norms and rules was also backed up in other parts of the consultation. The point was sometimes made that people quickly accept changes that might have been difficult to conceive before being introduced. It was felt that in time people would get used to new legislation about smoking restrictions or bans. The situation was often compared with other legislation such as the enforcement of seatbelts, and drink-driving restrictions that induced scepticism before being applied but which people quickly complied with and where the majority accept as the norm.

4.104 However, there was also evidence of violations of current smoking restrictions. In certain cities, for example, it was found that smoking still occurs on the top deck of buses. Some smokers participating in the focus groups admitted smoking in the cinema if they felt they could do so without being caught.

4.105 A small number of respondents to the public consultation and in the focus groups wanted legislation to include more than enclosed public places. Suggestions were made to include doorways, bus stops, the street and private vehicles carrying children to protect the public more effectively from ETS.

4.106 Across the consultation, it emerged that for some smokers the provision of a smoking area was felt to be very important. In the focus groups some smokers pointed out their concerns that the limited smoking provision that is currently available to them in many of the enclosed public places that are now largely smoke-free, such as those listed above, would be taken away if legislation to ban smoking was introduced. For example, smoking areas are sometimes provided in airports and stations, smoking carriages are provided on some trains and smoking rooms are available in hospitals. In the public consultation, a relatively large number of those respondents who expressed support for further action went on to identify areas where provisions should be made for smokers.

4.107 Rights and choices issues were key themes that emerged frequently in the different strands of consultation activity and were a point of discussion.

Smokers' rights versus non-smokers' rights

4.108 In many parts of the consultation, negative perceptions about smoking, smokers and the tobacco industry were expressed. It was clear that the habit is losing the glamorous image it had in the past and is increasingly viewed as an anti-social and undesirable habit. For some respondents, their distaste for the habit and/or concern for health were felt to be adequate justification for legislation to ban or restrict smoking in public places. Nevertheless, other respondents were concerned to balance the rights of smokers with those of non-smokers, regardless of strong negative perceptions of smoking and smokers.

4.109 Across all the strands of the consultation, there were conflicting views about the rights of smokers versus those of non-smokers, and disagreement over whose rights should take precedence. Some respondents to the public consultation felt that because of the health implications of passive smoking, the rights of non-smokers' to smoke-free air in all enclosed public places should be prioritised. This view was also promoted by health organisations responding to the public consultation. There was also a view expressed in the public consultation and the focus groups that smokers can choose to smoke whereas passive smokers have no choice. A small number of respondents to the public consultation also felt that smokers' rights have always been given greater consideration and that voluntary schemes work in favour of smokers. Legislative action is therefore required due to the limitations of voluntary approaches.

Smokers' rights

4.110 However, some respondents were careful to consider smokers' rights. In the omnibus survey, one of the principal reasons given by almost half of respondents who were not in favour of legislation to restrict smoking in public (48%) was the right of smokers to smoke in public places. In the public consultation amongst those who were not in favour of legislation, some respondents gave "freedom of choice" as their reason.

4.111 In some strands of consultation activity, there was some feeling that smokers' rights were increasingly being ignored. In the focus groups many smokers complained of a lack of provision for their needs and a feeling of being victimised. Such views were not always polarised in line with smoker status. In the focus groups some non-smokers were also supportive of the rights of smokers to smoke in public places and this was also evident in the responses to the public consultation

4.112 The workplace policies study also found that attitudes to smoking at work were underpinned by a concern for fairness and choice and there was strong support to ensure that the rights of both smokers and non-smokers would be respected. This was true despite the evident dislike of smoking expressed by non-smoking respondents. Smokers' rights were also acknowledged amongst some young people responding in the youth consultation and again this recognition stood alongside a strong dislike for the habit.

4.113 Another point made in the public consultation was that no individual should be involuntarily exposed to second hand smoke, a view that would not necessarily imply the need for a complete ban on smoking in public places. Instead, it would mean that all smoking areas should at least be clearly identified and there should always be a non-smoking area.

4.114 Across the consultation as a whole, opinions were divided between three broad view points. Some respondents felt that smoking should be banned because of the health implications and/or because they felt that the habit was anti-social. For these respondents, the rights of the general public to fresh air outweighed smokers' rights. In contrast, some respondents felt that banning smoking would be dictatorial and that smokers' rights should not be forgotten, therefore there should be smoking provision of some sort offered to smokers in all enclosed public places. Finally, some respondents felt that freedom of choice should be equally applied to all individuals: both the rights of smokers and non-smokers should be taken into account and a balanced view should be used in designing the legislation.

4.115 Some organisations replying to the public consultation that did not support a law supported a balanced approach that they felt would allow freedom of choice for all. The consensus among the replies from these organisations was that there were alternatives to a ban, including the use of segregated areas with proper ventilation systems, or voluntary schemes such as those already in existence.

4.116 There was also a concern expressed in some parts of the public consultation that any new legislation should not ostracise smokers. The introduction of the legislation must be emphasised as being "anti smoking in public places" rather than "anti-smokers".

Workers' rights

4.117 As outlined in section 4.3 earlier, there was concern for equality of rights amongst all employees regardless of the industry in which they worked. Current workers in particular types of jobs are more likely to be protected from the impact of second hand smoke, through a workplace smoking policy, than workers in other industries. In the national conference and the focus groups the rights of employees in the licensed trade and hospitality sector were often mentioned. Some organisations responding to the public consultation also felt that legislation should aim to ensure equitable rights in all jobs.

Tobacco as an addictive and legal substance

4.118 Some respondents to the public consultation and focus groups noted that tobacco is not illegal, despite being a highly addictive drug. They pointed out that members of the public are freely able to purchase cigarettes and they are also required to pay a government tax when they do so. It was therefore felt to be unjust to ban smoking completely in all enclosed public places without at least offering some sort of provision to smokers such as a smoking room or area. Many smokers also felt that they lack choice about whether or not they smoke as they are addicted to cigarettes.

Non-smokers ability to choose to avoid smoky places

4.119 There was also a view expressed in several strands of the consultation activity that enough was already being done to restrict smoking in public places and that the majority of public places were now smoke-free through voluntary action. A fifth (20%) of respondents in the omnibus survey who were not in favour of legislation stated that they felt that enough was already being done. In the national conference and public seminars, representatives of the licensed trade and hospitality sector drew attention to voluntary measures in place. Some respondents in the focus groups also felt that there were already many restrictions in place.

4.120 A fifth (20%) of respondents in the omnibus survey also stated that non-smokers could choose to avoid smoky places. This view was also evident to some degree in other strands of the consultation such as the focus groups and the public consultation.

4.121 On the other hand, a view arising relatively frequently in the public consultation was that voluntary action to date has failed to result in an adequate number of smoke-free zones. It was felt that voluntary schemes do not work, particularly not in the licensed trade and hospitality sector, where business owners are very reluctant to take risks, and therefore non-smokers' choices are limited

State control

4.122 Related to theme of rights and choice was the view that such legislation was excessive government interference in the behaviour of the population and this view was expressed in all strands of the consultation activity. Some respondents felt that introducing such legislation would in effect deny the human right of choice.

4.123 Some felt that this would be the starting point for an onslaught of legislation aimed at controlling the behaviour of the population. Others felt that this was evidence of a nanny state that is overly protective instead of letting people make their own choices concerning behaviour that could have dangerous consequences. Many felt that individuals should be responsible for their own health.

4.124 However, there were often comments from other organisations and some individual respondents to the consultation who felt that tackling the dangers of passive smoking was more important than smokers' rights. Whilst they recognised that smokers should be allowed to smoke, they felt that they should not be allowed to smoke in places that could cause harm to other people.

4.125 There was also a view amongst a small number of organisations responding to the public consultation that business owners should have the right to make their own policies without government interference. At the national conference and regional public seminars it was suggested that some licensed trade businesses could opt to become smoke-free if they wished to but the decision should not be forced upon them. Greater steps could be taken to encourage them to become smoke-free through the use of incentives.

4.126 On the other hand, a small number of respondents to the public consultation, and those participating in the on-line discussion forum, argued that it was the government's duty to protect the health of the people of Scotland.

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