Clause 6 - No-smoking signs
Health Bill
12:15 pm
Steve Webb (Shadow Secretary of State for Health, Health; Northavon, Liberal Democrat)
On the assumption that there will be a whole or partial ban in various sorts of premises, the way in which that is indicated to those who work there or are customers there is important. I suspect that we shall come to the wider issues of signage later, but the amendments deal with the basis on which somebody charged with failing to ensure that signs are displayed can offer a defence.
To follow the logic of that, subsection (6) sets out the circumstances in which a person charged with an offence under subsection (5) can offer a defence. Subsection (5) says that it is an offence to fail to comply with the duty in subsection (1), and subsection (1) explains that the duty is
“to make sure that no-smoking signs complying with the requirements of this section are displayed ... in accordance with the requirements of this section.”
Therefore, the offence is failing to ensure that proper signage is displayed.
Amendment No. 49 deals with the fairly convoluted formulation of subsection (6), which sets out the basis on which people can offer a defence, such as
“he did not know, and could not reasonably have been expected to know”.
The amendment offers a much simpler formulation. It takes out paragraphs (a), (b) and (c) and simply says:
“took all reasonable precautions and exercised all due diligence not to commit the offence.”
That seems to us to be a simple and all-embracing way to put it.
I looked at the explanatory notes to the Bill, which suggest various instances in which paragraphs (a), (b) and (c) might be appropriate. Paragraph (a) says that it is a defence if someone could not reasonably have been expected to know that the premises were smoke-free. The example given is where there is a dispute about what wholly or partially enclosed means. My understanding is that we are talking about proprietors, whose duty it is to put up signs; we are not talking about punters—customers—smoking where they should not. We are talking about the failure of owners, proprietors, managers and so on to make sure that there are signs.
I find the paragraph a bit odd, in the sense that premises do not change much. One could imagine a marginal case in which the proprietor thought that a percentage threshold in the regulations was about 49 per cent. and the inspector thought that it was 51 per cent. They may be the sort of circumstance that the Government have in mind here, but it seems to us an unnecessarily convoluted way of putting it. That sort of case would be caught under our formulation, which deals with whether reasonable precautions were taken and due diligence shown. There is nothing in that kind of example that does not fall within our simple formulation.
The same is true of subsection (6)(b), which says that a proprietor could not reasonably have known that no-smoking signs were not being displayed. The example given in the explanatory notes is where the signs have been vandalised. In other words, the proprietor, acting in good faith, has put the signs up and somebody has come along and pulled them down; he did not know that and could not reasonably have been expected to know that. Again, that seems to me to come under the scope of due diligence. One might reasonably expect a proprietor to put the signs up and check from time to time that they are still there, so again I do not see why we need this complex formulation.
I am also a little confused about paragraph (c). The explanatory note suggests that while it might be a fair cop to say, “The vandals have just taken the sign down”, to say six months later, “They took it down six months ago,” would not be. We want the clause to provide a simple principle that will be applied if action is taken, and the principle of due diligence and reasonable precaution seems to us to be preferable, simpler and widely used elsewhere.
Linked with amendment No. 49 is amendment No. 50, which removes subsection (7). As I understand it, subsection (7) is about the burden of proof. It seems to say what one would expect. In other words, if someone says, “It wasn’t reasonable for me to have known about this because the vandals took the sign down last night and I haven’t been round yet”, subsection (7) says that the court will accept that unless the prosecution proves beyond reasonable doubt that it was not the case. I simply assumed that the court had to prove its case beyond reasonable doubt and that the proprietor or landlord was innocent until proven guilty.
We propose to remove subsection (7) so that the Minister will tell us what it adds to the stock of human knowledge. What does it add to the procedure? What does it gain us? As ever, we want simplification and briefer legislation. Our amendment would achieve that, and we look forward to the Committee accepting it.