Mixed smoke signals

You may also have heard a rumour about the enforcement officers who will be out on the prowl, ensuring that we all comply. If you believe what you hear, these mysterious characters will slip into bars undetected, hunting down those who refuse to stub out their fags in pubs, clubs, bars and restaurants. They will, allegedly, be armed with secret cameras and trapping devices and may be forced to pin suspects against a wall or follow them home if they so much as think about taking a drag.

But then you meet John Rafferty, whose message is: disbelieve the hype. A retired policeman, Rafferty is now an environmental health officer for Edinburgh City Council, and from next week he will head up the council's new team of smoking and health enforcement officers. Together with three colleagues, he will work exclusively on the smoking regulations, carrying out investigations into non-compliance and following up any public complaints.

Although in the long term there will only be four permanent members of staff working on the ban, they will be supported by the council's existing team of 146 environmental health officers who conduct regular health and safety checks around the city's establishments, and in the first few weeks, many of them will be joining Rafferty's team on the streets. By law, they will be allowed to issue 50 spot fines to individuals, and a maximum penalty of 2,500 to businesses found to be permitting smoking indoors.

"We've learned from Ireland [where a similar smoking ban was implemented in March 2004] that the best way to begin these changes is to have a strong public presence," says Rafferty. "From next Sunday, we will be popping into bars and clubs and making sure that managers are coping. But we won't be slapping fines on anyone without giving them an adequate warning, and we're not really interested in following smokers home. We're planning a very 'softly softly' approach, because you can't change a nation's culture overnight. We just want to ensure the public know exactly what's expected." For that reason, Rafferty is spending this week visiting affected businesses to discuss the finer details with them. When I meet with him, he is on his way to address the Edinburgh Restaurateurs Association.

Immediately it becomes apparent that the restaurateurs have not been given detailed information on what is expected. Rafferty explains that the official booklets commissioned by the Scottish Executive have mistakenly not been distributed as widely as planned. But he is quick to assure the managers that he has no wish to rule with an iron fist.

"If we never have to give out a fixed penalty notice, we will be delighted," he says. "I will probably not visit many restaurants unless we have a complaint. The smoking checks will fall under routine health and safety checks because we don't want to burden you with more bureaucracy. If everything is fine, you won't see us for another year."

Even so, there are concerns remaining over the way this ban will be enforced. For example, what provisions are managers allowed or required to make for the cigarette butts left by 'pavement smokers' outside their restaurants. And that is not the only worry.

"I think the biggest issue will be [catering] staff who want to smoke after their shift," says Gill Calverson, owner of Cafe St Honore in Thistle Street Lane North-west. "But what if we do have a die-hard smoker on the premises who simply refuses to put out his cigarette? Are we, as the managers, still liable for a fine?"

Rafferty explains that if managers have taken due care to display appropriate signage, and if they have asked the customer to extinguish their cigarette, they will have fulfilled their legal requirement.

"In that instance, you should treat the customer as you would any other troublesome client," he says. "If you have asked them to leave, and they refuse, you are well within your rights to call the police. If the matter is not urgent but simply a general concern, you should call me and we will try to work out a plan."

Rafferty himself is working hard to apply this law sensibly and reasonably. But on a wider scale there has been dissatisfaction at the way the ban has been handled.

Malcolm Duck, chairman of the Edinburgh Restaurateurs Association (ERA), says that although he understands why the council is targeting business managers rather than individual smokers, they are only adding to an existing burden of bureaucracy.

"There is so much legislation now that if you were to try and plough through all the rules, you would never open your doors," Duck, owner of the Duck at Le Marche Noir restaurant, says. "Just taking health and safety alone, the details change every week, so how are we meant to keep abreast of them?

"Big businesses have entire HR departments to cope with these things, but there is no such support for small businesses." It doesn't help that ERA smoking ban meetings with Rafferty have often been the first occasion that many of the organisation's members have heard detailed instructions.

Emma Butler is the manager of Hectors, a bar and restaurant in the Stockbridge area of Edinburgh. Although she has received the Executive's leaflet, she has been offered no specific business advice on the new law.

"It has not been well-communicated to us," says Butler. " I know there will be all sorts of issues which stem from our customers having to go outside, because if they try to take drinks with them, that will break licensing laws."

These issues could, Duck argues, have been resolved beforehand if business managers had been offered more consultation.

"The basic problem is that the Scottish Executive brought this ban in too fast," he says after the ERA meeting. "There is still a huge amount of confusion over what is and what is not expected of us, and although Rafferty's briefing today was very helpful, we only got that information because we invited him ourselves. The Executive should have allowed five years for us all to work up to this, but instead we are being shown pictures of what is required a week before the ban comes in."

That being said, Graham Bell, the chairman of the Chamber of Commerce, is quick to point out that the Scottish Executive has taken other provisions to get information to proprietors.

"There is a substantial number of people in the hospitality sector who are not clear on what's involved, and the majority of queries we've been getting are about outdoor provisions," says Bell. "But if people go to the Scottish Executive's website, they will find all the questions and answers they need. It is a proprietor's duty to be informed because the main target of this legislation is the protection of employees, but that advice is out there if they know where to find it."

As hard as Rafferty and his team are working with managers to prepare for the ban, the buck will stop with bar staff and their managers. Anyone who goes to pubs will appreciate that for the bar staff, trying to force their customers to do anything at 11pm at night is a challenge at best: theirs will not be an easy task. Are managers worried about the aggression and even violence that may ensue?

"We have talked to staff about how to handle this," says Butler, "but they are already trained in dealing with customers who have drunk too much, so it is mostly an extension of our existing policy. It's always best to remain calm and not to engage in anything, and if the customer does cause a fuss, staff must get the help of a manager. But we will certainly be relying on public compliance."

Over in Glasgow, the NHS has unveiled a series of posters and pamphlets, advising bar staff of how to deal with smokers who refuse to stub out.

The key visual aid is a poster depicting a four-step guide to dealing with customers who choose to ignore the ban. First, bar staff should draw the customer's attention to the "No Smoking" signs and ask them to either desist or to take their cigarette outside.

If they refuse, then staff will explain that the law states that the premises must be smoke free to protect staff and customers from passive smoking.

Should the customer remain defiant, staff now have the right to ask them to leave the bar, warning that they face a fine.

Lisa Buck, senior health promotion officer for Scotland's Health at Work, says that beyond this point, the issue will become one of public order.

"Once staff have exhausted all the points on this card, it becomes an issue for the bar security, and these people will be dealt with in much the same way if they were being abusive."

Glasgow Council has 120 health and safety officers who will enforce the new ban along with their other duties. There is a further team of five officers, however, tasked specifically with investigating reports of the law being broken.

Back in Edinburgh, Rafferty and his team are in for a busy few weeks. Their service will operate round the clock, and to begin with they will be out and about making their presence known. They won't be handing out fines and they're unlikely even to get shirty with bar managers. But they are there to insist that Scotland cleans up its act and they will take action, eventually, if we the public don't.

"All we're trying to do is to improve the health of the nation," says Rafferty. "And smoking is the obvious place to start."