Andrew Murrison (Shadow Minister, Health; Westbury, Conservative)

Clause 8 continues the theme of offences and deals with fixed penalties for the offence of smoking in smoke-free places. The clause is closely aligned to schedule 1. I have a series of points and questions that I should like to put to the Minister, some of which have already been touched on. The clauses in this part of the Bill seem to merge into one another. If I am repetitive, I apologise. That is probably indicative of my discomfort with some of the remarks made.

I want to know more about enforcement officers. I am a little concerned about them, not least about their welfare. The Local Government Association, which represents the organisations that will employ those officers, is also concerned about that. We have discussed public health, and it can mean all sorts of things. I am very worried about the safety of enforcement officers, and I hope that the Minister will address that. They will put themselves in the line of fire in the course of the work that they will be expected to do. They may find themselves in situations in which one could expect tempers to be a little raw and in which one might expect trouble. I am not sure whether enforcement officers will much welcome the new duties that will be placed on them by the Bill, but we shall see.

It will be interesting to hear how the Minister expects fixed penalty notices to work. Does she expect teams of enforcement officers to circulate around licensed premises, seeking out smokers and licensees who are flouting the law, and handing out penalty notices? Does she expect existing enforcement officers—mainly environmental health officers—to perform those duties as an extra bolt-on job? Alternatively, will the enforcement officers rely merely on tip-offs from the public? It would be useful to get an idea of the scale of the operation. No doubt she will want to refer to the experience of other countries.

We have not entirely dealt with the problem of repeat offenders. Does it matter how many fixed penalty notices a person clocks up, or will it be £50 a time? I suspect that there will be some who regard that as a risk worth taking, especially if they enjoy a cigarette and are minded to pay £50, which, in some people’s minds, especially in wealthy parts of London, is not a great deal. They may spend considerably more than that on a night out, and may habitually flout the law and be quite happy to pay £50. They may even keep that amount in their back pockets, ready to pay the fine if an enforcement officer chances upon them, which will not happen very often, unless the Minister intends to embark on a wholesale recruitment campaign.

We are worried about training for enforcement officers. The LGA is much exercised about how that will take place. It is a complex new area and a   departure from the usual work of environmental health officers. The LGA points out that fixed penalty notices are not part of the weft and warp of the work of environmental health officers, and that they will require considerable training before they are expected to go forth and pin enforcement notices on people. It will be interesting to know what thought the Minister has given to that and what cost will be involved in that training. I seek assurance that that money will be found centrally and will not be an added burden on our hard-pressed council tax payers who, in my area and in the areas represented by my right hon. and hon. Friends, already face substantial hikes in the not too distant future. Such things, of course, mean that the charges go up and it is something over which poor old councils have no control.

I hope that the Minister has recognised the need to train environmental health officers and others who are expected to enforce the provision, that she has costed it and that she is prepared to find a sum of money from the centre that will allow councils or whoever to do the necessary training. It would also be useful to know a little more about how individuals will physically pay the penalty. We remember with some affection the Prime Minister’s notion that fixed penalty notices could be discharged by marching people off to a hole in a wall, where they would put their plastic in, take out fifty quid and give it to the constable. That did not last very long. I imagine that the Minister does not have that scheme in mind, but it will be useful to know what she does.

It will also be useful to know about identification. As I understand it, enforcement officers will march into establishments, spot someone smoking in a corner and say, “You’re nicked, mate, here’s your enforcement notice.” They will probably ask who he is, write it down and keep a receipt. That is all very well in the context of road traffic offences, because it is possible to find out who the person is—assuming that the car is not stolen—by phoning up the Driver and Vehicle Licensing Agency in Swansea. It will give chapter and verse on who the owner is, which gives a hold on the person.

That is not the case with enforcement notices in pubs. If I had one of those notices, I could say, “I’m Joe Bloggs and I live in Grimsby.” A notice would be written out in the name of Joe Bloggs from Grimsby, handed to me, and I would go on my way rejoicing. I would be highly unlikely to cough up the fifty quid by return of post and I would get away with it. I am sure that the Minister will have thought about how we confirm the identity of those who are subject to enforcement notices.

That is especially important because we are discussing a self-selected population. Far be it from me to say that people who smoke are more likely to commit offences than anyone else, but we are talking about people who have gone into a pub, ignored the notices and are, therefore, perhaps a little more likely than us to give a false identity in order to get away with not paying the £50 fine. With repeat offenders that is particularly important because after they have done it once, assuming that they can think up sufficient names   to give the enforcement officer without including Mickey Mouse, they can potentially get away with it time and time again.

This seems so obvious that I suspect the Minister will have thought about it and, in the regulations that she will put before us at some point, will have a way of determining identity for enforcement officers. Otherwise, the provision stands at risk of becoming a laughing stock. That is important. I know she is thinking about fixed penalty notices for traffic offences, which is when they are most commonly used.

Caroline Flint (Parliamentary Under-Secretary, Department of Health; Don Valley, Labour)

No.

Andrew Murrison (Shadow Minister, Health; Westbury, Conservative)

Well, it will be useful to know what model she is using. Fixed penalty notices for traffic offences are where most people come across such fines, and it is then easy to determine who the individual is for the reasons that I have described. However, in this case, that does not seem to apply in the same way. There is less of a lever on who the person is and it will be far more difficult to determine and verify that. How will the Minister get around that?

Perhaps the Minister can give us an idea of the cost of the fixed penalty notices. I am sure that she has some idea of the total cost of the system, and I suspect also that she has benchmarked the system that she will propose against those that apply in other countries. I hope so. Perhaps she can give us an idea of the cost of the infrastructure that will be necessary to introduce fixed penalty notices.

Stephen Williams (Shadow Minister, Health; Bristol West, Liberal Democrat)

The hon. Gentleman has covered rather well the ground on which I would have touched, and I shall not repeat anything that he has said. The one thing that he did not mention was paragraph 14 of schedule 1, which is activated by the clause. It refers to the rights of somebody who is issued with a fixed penalty notice to elect a trial instead of paying the fine immediately. If somebody were to elect a trial, and they were to be found guilty of the offence of smoking in a public place, with no reasonable defence—such as not having seen the signs—what would be the penalty? Would it be the original fixed penalty or, as I understand is often the case when somebody elects to go to court, might the magistrate or judge impose a higher fine or another type of sentence as a deterrent?

Steve Webb (Shadow Secretary of State for Health, Health; Northavon, Liberal Democrat)

Will my hon. Friend reflect on the fact that if a series of fixed penalty notices is issued, the person who issues each notice has no idea about the record of the recipient—in effect, it will always be a first offence. In court, presumably, a judge might have regard to the fact that somebody is a serial offender, and might reflect that in sentencing. Might that discourage people from going down that track?

Stephen Williams (Shadow Minister, Health; Bristol West, Liberal Democrat)

I thank my hon. Friend for that helpful intervention. He builds on the idea that we should like some thoughts from the Minister as to what a judge or magistrate would consider to be an appropriate fine or community-based sentence in such circumstances.

Caroline Flint (Parliamentary Under-Secretary, Department of Health; Don Valley, Labour)

We have had a helpful discussion. Speaking as a constituency MP, I remind the Committee that fixed penalty notices are used in a variety of situations, such as for drinking alcohol in certain circumstances. I was pleased to see recently in one of my local papers that fixed penalty notices had been issued to people, including children, who had been dropping litter in the street. That is all part and parcel of the Government’s effort to tackle antisocial behaviour and to find a means of dealing with it in a reasonable but practical way that does not tie up the courts with activities that most of us would agree are unhelpful for communities. We are not setting a precedent in using fixed penalty notices.

Of course there is the risk that people will give misleading information about their identities. Police officers, community support officers and environmental health officers have to deal with that all the time. Clearly, part of the process will be to ask for evidence of identity. That is nothing new and enforcement officers will have to be trained to deal with it. They know how to do it in other circumstances and, therefore, even though this is about smoking, they will apply their experience to it as they would in other situations.

Some specific questions were asked about the cost of enforcement.

Andrew Murrison (Shadow Minister, Health; Westbury, Conservative)

Will the Minister give way?

Caroline Flint (Parliamentary Under-Secretary, Department of Health; Don Valley, Labour)

I shall, but I hope that the hon. Gentleman will allow me to make progress, because I do not really want to take additional questions while I am still answering earlier ones.

Andrew Murrison (Shadow Minister, Health; Westbury, Conservative)

The Minister said that enforcement officers are familiar with fixed penalty notices. However, will she note the comments of the Local Government Association? [Interruption.] The Minister sighs, but—

Caroline Flint (Parliamentary Under-Secretary, Department of Health; Don Valley, Labour)

I am not. I am breathing. It is hot.

Andrew Murrison (Shadow Minister, Health; Westbury, Conservative)

Well, the hon. Lady is breathing very heavily.

It is important that the Minister notes the comments of the LGA. It says:

“fixed penalty notices are not a matter that typically local authority enforcement staff are familiar with.”

That is fairly categoric. Clearly, the LGA feels that it is an issue, and I think that the Minister is being a little dismissive in saying that EHOs or enforcement officers are familiar with the process because they pin enforcement notices on people like litter. That is certainly not my constituency experience. Her comments suggest that she is being complacent.

Caroline Flint (Parliamentary Under-Secretary, Department of Health; Don Valley, Labour)

I am certainly not being complacent, because we are still in active discussion with the bodies that represent environmental health officers and others in local government on the issues of training—I shall answer those points shortly—and enforcement costs. It is fair to say, more and more, that within our communities—certainly in Doncaster—local   government and different branches of a local authority work with others in partnership to bear down on antisocial behaviour. That work could be in the form of community support officers or neighbourhood wardens and looking at ways in which different approaches can be used to tackle some of the antisocial behaviour that we see in our communities—not only that carried out by children, but importantly, that carried out by adults.

In that context, I do not think that the debate is unusual. It may be unusual for individual EHOs to have been involved and potentially tasked with the issuing of fixed penalty notices, but the discussion about safer communities tackling the antisocial behaviour that constitutes a degrading of our environment is something that I am sure that local environmental health officers are only too well aware of as a result of their job and working in partnership with others who have a role in supporting the quality of the environment in our communities. That could be affected by fly-tipping, abandoned cars, graffiti or litter. We have an excellent project in Doncaster called the FLAG—fighting litter, abandoned cars and graffiti—scheme, which is marshalling the support of people across the authority with community first officers to tackle some of the abuses that are linked to fly-tipping, abandoned cars, graffiti and so forth. We shall be discussing that with different organisations.

In the partial regulatory impact assessment, we have estimated the annual cost of enforcement as between £7 million and £20 million. That was based on estimates provided by consultants acting on behalf of the Local Authority Co-ordinators of Regulatory Services—LACORS. We have listened to them, and the figures were based on their assessment. They, too, will find it difficult, until the law is brought in, to determine an absolutely precise amount. We are looking, with the Local Government Association and LACORS, at how best to support local authorities to ensure that they get the appropriate amount to fund them to take on their new responsibility. That includes discussing staff training needs, and who will do the training and who will pay for it. We anticipate—this is recognised by the officers that will be affected by the legislation, as well as the local authorities—that there will be initial training costs, and a peak of enforcement costs in the first year or so. I hope that thereafter costs will diminish as smoke-free becomes more of the norm. We will agree a final funding amount to ensure that the local authorities have the proper resources to enforce the legislation. How local authorities go about the business of enforcement is partly for them to determine.

Andrew Murrison (Shadow Minister, Health; Westbury, Conservative)

I could see that the Minister was about to move on from the issue of who is going to pay for enforcement, and she says that the cost is between £7 million and £20 million. Can she confirm that that sum will be met out of the existing Department of Health budget? If so, what is the opportunity cost? What will the Department of Health not be doing that it would have been doing, had it not been faced with that £7 million to £20 million cost?

Caroline Flint (Parliamentary Under-Secretary, Department of Health; Don Valley, Labour)

Well, of course, in introducing this Bill, we have undertaken the partial RIA and have had to make our case across government. The measures will come into force in summer 2007, so it is not appropriate to answer that question, because we are talking about future costs. However, we are taking the issue into account and I can assure the hon. Gentleman, as we have assured colleagues in other Departments and the associations, that we are working to ensure that we can fund appropriately the work in this area.

It would be difficult and ridiculous for me to prescribe from the centre how each local authority, working with its environmental health officers, should go about enforcing the legislation. We are not giving local authorities a prescriptive model whereby a certain number of environmental health officers must be out on the streets at a given time of day, checking on who might be committing offences. It is for local authorities to take such decisions.

We want, however, to set up a national compliance line, mirroring arrangements in Ireland and, I understand, Scotland, to allow the public to report incidences of the law being broken. That service will aim to offer additional support for building and maintaining compliance with the legislation. In those circumstances, all complaints will be passed to the appropriate local enforcement agencies. That will be especially useful in identifying and acting to stop deliberate and repeated flouting of the legislation in specific enclosed public places. Obviously, the clause will also act as an indicator of compliance.

I imagine that in a number of circumstances, common sense will prevail, so if someone walks into an establishment and attempts to smoke a cigarette, cigar or pipe, the people running the establishment will ask the person to desist. Doing things on a voluntary basis seems to work well on most occasions, and I do not have a huge concern that that will not work similarly well in future. Clearly, however, if someone did not desist from smoking, having been asked to do so, the people in the establishment would obviously want to see further action or would call for advice and support from the relevant section of the local authority.

Andrew Lansley (Shadow Secretary of State for Health, Health; South Cambridgeshire, Conservative)

I am sorry to persist with the question of the financial effects, but it seems perfectly proper to ask and to answer now the question of how the funding mechanism will work if enforcement costs fall on local authorities. Perhaps the Minister can tell us whether that will be achieved by way of an additional specific grant from the Department of Health or a PES—public expenditure survey—transfer between the Department of Health and the ODPM and whether we are talking about an addition to local authorities’ formula grant. Has a mechanism been decided on? By extension, presumably the Department of Health, when considering budgets for 2006–07, is already contemplating how what we are discussing is to be provided for and whether it has implications for other measures inside the Department.

Caroline Flint (Parliamentary Under-Secretary, Department of Health; Don Valley, Labour)

We are still in discussion with the Local Government Association and other organisations on the level of funding and the process whereby funding would be provided. Clearly, we will not seek to have the legislation enforced unless that is resolved. We have given that commitment to those organisations and to other Departments in seeking their support for the Bill.

Andrew Lansley (Shadow Secretary of State for Health, Health; South Cambridgeshire, Conservative)

Were the enforcement to be not for the ban that the Government propose but for a more comprehensive ban on smoking in public places, would the enforcement costs be greater or less?

Caroline Flint (Parliamentary Under-Secretary, Department of Health; Don Valley, Labour)

If I recall the RIA correctly, the enforcement costs were said to be less if there were a total ban, but there would still be enforcement costs, because people could still flout the law. Certain establishments, even under a total ban, would seek to circumvent the law in one way or another.

As I have said, there have been just under 30 prosecutions in Ireland. That is a small number, given the size of Ireland, but my understanding is that those prosecutions relate more to establishments that have tried to circumvent or have ignored the law. It would be fair to say that those prosecutions and the levels of fines issued against those establishments made it clear that breaking the law would not be tolerated. It is also to be hoped that they have acted as a deterrent. Up until the end of May 2005, there had been 28 court prosecutions.

A number of questions were asked about individuals who smoke in smoke-free places. The hon. Member for Bristol, West asked whether the fine that would be issued to someone who appeared in court would be confined to £50. My understanding is that, if someone were to appear in court, the fine could be up to level 1, for which the fine is £200. In those circumstances, the court could take into account evidence that it was not a first offence.

I suggest, however—I do not know in what circles the hon. Member for Westbury moves—that for most people out on a Thursday or Friday night a £50 fine is a bit of a risk. People do not necessarily have £50 in their back pocket to pay a fixed penalty notice for the pleasure of lighting up a cigarette. I might be wrong about that, but people do not necessarily have that sort of money to burn—or to smoke. Fifty pounds is a significant amount. I hope that, in many circumstances, the situation will not come to that. People who make a mistake will be asked to put out the cigarette or to leave, and that will be the end of the matter. That would be a common-sense approach to take. If it becomes more of a problem, fixed penalty notices will be issued or people may have to attend court.

I hope that I have answered the question from the hon. Member for Bristol, West. We must continue our discussions on enforcement. Enforcement officers will have to produce their written authority if required. That is an important safeguard for individuals, who will not agree to a fixed penalty notice if someone simply tells them to pay it. The enforcement officer must produce identification.

Likewise, I think I am right in saying that people will have 29 days to pay. If a person accepts and pays a fixed penalty notice, he or she will not get a criminal record. That is a further deterrent to people who seek to go to court, perhaps to waste the court’s time. As well as receiving a fine, they will have a criminal record as a result of that court appearance. I hope that the clause will add to the mix of carrots and sticks to encourage people not to smoke in smoke-free places. It also makes clear the consequences should they do so.

As I have said, fixed penalties must be covered in the legislation, but it is my heartfelt hope that, as has happened in other countries and drawing on our experience of voluntary smoke-free places, many of the provisions will not be used in practice.