Clause 3 - Exemptions
Health Bill
9:45 am
George Young (North West Hampshire, Conservative)
It would be interesting to know whether that was a legitimate defence, were an employee to bring the case that I have just described. My understanding is that it may not. Notwithstanding that, the employer has an overriding obligation not to expose his employees to that risk. I say that, conscious that the hon. Member for Stafford (Mr. Kidney) has a legal qualification, which I am spared.
Amendment No. 60 requires the Government to set a maximum permitted occupational exposure limit on second-hand smoke in exempted premises. In effect, the amendment is saying that the health and safety risk is unavoidable, so the amendment is a fallback position; however, it would require the Government to quantify and justify the risks to which they were exposing workers as a result.
Amendment No. 61 prevents the Government from exempting any premises until second-hand smoke has been listed as a hazardous substance under the COSHH regulations. Second-hand smoke is carcinogenic, and to my mind it should already be listed under COSHH. COSHH requires employers to prevent or adequately control the exposure of their employees and other persons who may be affected by hazardous substances. In addition, the regulations require
“the maintenance, examination and testing of control measures”,
the provision of information and other requirements.
I suspect that when the Minister gets to this amendment, she may find at the head of her brief, “Resist”. I understand that the Department’s position is that the amendment should be resisted on the grounds that the COSHH regulations list dangerous substances only if they are the product of a work process rather than an incidental hazard in the workplace. I understand that that may be where she is coming from. That is wholly illogical.
Let us part for a moment from the provisions in the Bill that ban smoking in public places and look at the COSHH regulations. If, for the sake of argument, I was an employee in a research laboratory that was testing the damage done by second-hand smoking and I went into a room where there was a machine that was smoking and emitting second-hand smoke, I would have all the protection that flows from COSHH, because the second-hand smoke would be the product of a work process. On the other hand, if I am confronted with exactly the same risk and I go into a room where a real person is smoking—and I do so as an employee of the landlord—although I am exposed to the same risk, I am not covered. That is because the smoke in the second circumstance is deemed to be an incidental hazard in the workplace, whereas in the first it is a direct product of the work process.
Either second-hand smoke is a carcinogen or it is not. Perhaps the Minister will clarify that. If she agrees that it is, perhaps she will agree that the COSHH regulations should list it as a dangerous substance. Those who are exposed to the risks from second-hand smoke would then have the protection that flows from the COSHH regulations.
I hope that the Minister will accept that there is some tension between the objectives of the Bill and the existing protection available to everybody under the Health and Safety at Work, etc. Act 1974 and that she will explain to the Committee how she proposes to navigate her way through these apparently conflicting provisions.