Clause 21
Health Bill [Lords]
4:00 pm

Michael Penning (Shadow Minister, Health; Hemel Hempstead, Conservative)

I beg to move amendment 89, in clause 21, page 24, line 16, leave out ‘requested’.

The Committee will realise that we have reached a clause that, to be frank, is controversial. There are many different views across the House about how a product that is legal in this country can be sold while, at the same time—and I say this from a personal perspective—we cut the number of people, especially the young, who take up smoking and continue to smoke.

I was a member of the Health Committee when we looked carefully at evidence relating to the legislation to ban smoking in public places. I began that evidence session feeling very sceptical about banning smoking selectively. By the end of it, on the basis of the evidence, I was a signatory, with other hon. Members of the Committee, to the idea of a total ban on smoking in public places. It is probably obvious that I have no side with the tobacco industry. I would be happy if everybody ceased smoking tomorrow morning. It would be great for their health and great for the NHS, but probably not so great for the Treasury.

With that in mind, I emphasise the term “evidence based”. I have said to the organisations lobbying brilliantly on behalf of this legislation that my concern is not that I want fewer people to smoke—particularly children—and to have access to tobacco. That is a no-brainer for everybody, I am sure. It is that I wonder whether the legislation will work and whether it is too onerous on legal organisations that sell tobacco as part of their income stream.

I also wonder whether the legislation would provide more of a driver for the black market. Currently, at least one in five cigarettes is either counterfeit or sold on the black market with no duty paid and no one taking the slightest bit of interest in the age of the person buying that product. Age is something that I believe newsagents, tobacconists and clubs should take notice of, and in most cases they do.

That said, I will not press any of the matters related to tobacco to a vote in Committee. That is a matter for the whole House to decide on. Her Majesty’s Opposition will have a free vote, so they can express their personal views. I hope that the Government take a similar view, as, to be fair, they did on the legislation to ban smoking in public, when we had a free vote.

This is a probing amendment, which deals with the prohibition of tobacco displays. I said earlier that I doubt not the Government’s intentions, which I think are honourable, but the evidence base behind the provision. It is, perhaps, a bit early to use some of the evidence that the Minister has sent out in her letters—today, for instance. That, sadly, has left no option for her to be open-minded, as we all were about the previous legislation. Instead, it is dismissive of evidence counter to that being used by the Government.

Amendment 89 seeks to provoke the debate on the statutory definition of a requested display. For people who sell tobacco on their premises, what that means is of great concern; they want to know when and if they are breaking the law. “Requested display” relates to retailers and staff as set out in the Bill, but it is very vague. It needs to be defined, I am sure the Minister will agree. It needs a bit more tweaking, even if the legislation is passed, so that people have confidence that their display is not breaking the law under new section 7B.

An individual who wants to see the legal product that they are going to buy may have a child with them in the shop. Under the clause, is it going to be illegal for them to see the product? I hate to think that we will have a situation where mums and dads who, sadly, still smoke leave Johnny or Mary outside the door unaccompanied while they go in and purchase their cigarettes. It will not always be possible for people to accompany the children while their parents are in the shop purchasing their cigarettes, which are a legal product. My point is that the parents—and the tobacconists—will be concerned about whether they are breaking the law if an under-18 is with them during that purchase. That needs to be set out and defined carefully, because, if we are not careful, people may unintentionally break the law or put their children at risk.

Someone may, for instance, ask to see a new brand at a tobacco kiosk in the middle of a large supermarket with significant footfall. If the new brand is presented to them before they purchase and a minor walks past, will that be an offence under the Bill? Under the wording at present, it appears that it will. People will commit an  offence unintentionally, and the effect on the proprietor will be onerous, whether it be a large supermarket or a smaller corner shop.

There is a whole debate to be had as to whether it is physically possible for someone who is the only person working in a shop at a particular moment to know what is happening out of their eyeshot when someone asks to see a product. Shoplifting is a real problem for small businesses, and the Association of Convenience Stores asked me to look into that.

The arguments about the content of the amendment are for the Floor of the House. What I am trying to probe with my comments now is what is actually an offence in respect of a requested display. It is difficult to see from the wording of the Bill exactly what is an offence.

John Pugh (Southport, Liberal Democrat)

I thoroughly appreciate the attitude taken by Conservative Front-Bench Members on how to deal with this issue. It is such a big topic for parties, and people within parties, that it is probably best discussed largely on the Floor of the House. Therefore, fewer amendments will be put to the vote during debates in Committee. In fact, there are variations within parties and even within health teams. One of the reasons I am on this Bill is that I reduced the variation that might otherwise have occurred if other personnel had been put on it.

When the ban on smoking in public places was introduced, the argument was largely about secondary or passive smoking, and the rights of people not to be affected by other people’s smoke, but I think that there was a sub-text to it. I was well aware of a definite attempt to marginalise smoking as an activity. That is what the legislation succeeded in doing, and I do not think that it was necessarily a bad thing, but it would be more honest when people are presenting their argument to do so in precisely those terms. The more that smoking is seen as a rather strange activity that people engage in in little huddles outside buildings on cold days, the less people will smoke, the better public health will be, and the less cost there will be for the NHS.

This clause and successive clauses largely set out the possibility of regulation that is justified by the suggestion that we can stop children smoking by altering displays, or that we can stop people who have given up smoking restarting. Evidence has been amassed to that effect, but, as the hon. Gentleman just said, there is evidence moving in both directions. Frankly, some of it looks a bit flaky; at any rate, it is inconclusive.

I do not think that one buys cigarettes on impulse. Someone might walk into a service station and suddenly buy a packet of crisps, a chocolate bar or a drink they had not expected to buy, but they would not suddenly come out with cigarettes, not having previously intended to go in there for that precise purpose. I think that the public health arguments are not as honestly or as plainly put here.

That being said, the definition of “requested display” as an entity in law is a little obscure to me. I share some of the reservations of Conservative Front-Bench Members about it and would support the amendment.

Gillian Merron (Minister of State (Public Health), Department of Health; Lincoln, Labour)

It is a pleasure to serve under your chairmanship, Mr. Key.

I thank hon. Members for their comments because it is helpful to probe the intent behind the clause, and certainly the considerations that have been put are useful. Perhaps I could clarify that the amendment, if passed, would allow retailers openly to display tobacco to all adults, which of course is not the intention of the Bill. It would also require shops either to create separate adult-only areas just to display tobacco or to remove tobacco displays entirely. I am seriously concerned that that would put small shops at a serious competitive disadvantage. They would be far less able to afford to create such areas, whereas supermarkets and superstores would have no such problem. Even if we put aside the competitive disadvantage, the amendment would ignore the second and important part of our policy, which has perhaps not been aired, but which is to support those who already smoke but want to quit.

Michael Penning (Shadow Minister, Health; Hemel Hempstead, Conservative)

I completely agree with the Minister that we must make every effort to help people who want to quit smoking. May I take her back to what she said about display? I understood that the Bill’s purpose was to prevent young people from seeing tobacco advertised in a shop in a display, and then illegally purchasing it on impulse. The Minister has just said that its purpose is to prevent adults from seeing tobacco advertised in a display. That is an imbalance. Is the purpose of the legislation to prevent under-age people from smoking, or not?

Gillian Merron (Minister of State (Public Health), Department of Health; Lincoln, Labour)

Of course, it is both, and we will discuss that. It is important not to ignore the second part, which is that we have a duty to support those who want to quit, but we also have a huge duty not to allow young people to be recruited into the ranks of smokers, which is what the tobacco industry wants.

A range of research studies has considered the effect of tobacco displays on people who are trying to quit. Cancer Research UK’s 2008 report—I have placed a copy in the Library— summarised some of the published papers. Based on previous research, Cancer Research UK says that display

“stimulates impulse purchases and undermines the efforts to quit.”

If hon. Members want more evidence, I refer to the youth tobacco policy survey, which was set up to measure the impact of restrictions on tobacco advertising on children in the UK. The study began in 1999 and took place five times over seven years with nearly 6,000 adolescents with an average age of 13 taking part. Several papers have been published based on the data collected. The survey showed a decreasing level of awareness of tobacco among young people where tobacco advertising has been banned.

Michael Penning (Shadow Minister, Health; Hemel Hempstead, Conservative)

I referred at the outset of our discussion on this part of the Bill to the work of Cancer Research UK, Action on Smoking and Health and other contributory organisations that are working so hard. However, it is obvious that they will be selective about the evidence that they put forward and will choose what supports their argument. They will not choose evidence that contradicts what they are trying to do, which would be ludicrous. Quoting one side of the argument does not give a balanced view.

Advertising has been banned for a considerable time, and we do not want to go through the Formula 1 debacle at the outset of the Labour Government. The Minister is referring to evidence about advertising, which does not exist in this country, unless the display of a legal product in a shop is deemed to be advertising, in which case it is covered by existing legislation.

Gillian Merron (Minister of State (Public Health), Department of Health; Lincoln, Labour)

Perhaps I may make myself clear. I was referring to studies by MacFadyen et al in 2001, who studied 15 and 16-year-olds in the north-east of England, Grant et al in 2007, and a range of others. Information is widely available, and I am happy to provide it. The Cancer Research UK report pulls together a range of surveys. I could refer to international evidence, but I thought it best to stick to UK evidence on this occasion.

I turn to the more general point about why we allow requested displays. As the hon. Gentleman rightly said, tobacco remains a legal product, and those who smoke should be able to see or handle the product before they agree to buy it. The requested display provision means that shopkeepers may show tobacco products to people who want information or who want to buy the products. However—this is the key—workability is important, and showing tobacco to one person, as the hon. Gentleman has said, may mean that others catch sight of it. I am well aware of the concerns about that. I reassure the hon. Gentleman and other members of the Committee that we will use regulations under new section 7B (3) to make sure that no offences are committed when shopkeepers are selling, or showing, tobacco to a customer and other people see it.

We are working closely with retail organisations such as the Association of Convenience Stores, the National Federation of Retail Newsagents and others—for example, the local authority co-ordinators of regulatory services—to develop practical and workable regulations, which will keep the cost of covering up displays to a minimum. It is quite appropriate for those details to be made through regulations, because we need to work through them, and work with stakeholders to develop regulations that will be both effective and workable. We need to talk to the retailers and to the trading standards officers about how the provision will work in practice and what detail should be in the regulations for consultation later this year.

The requested display provision is needed to make sure that people can see a legal product before they buy it, but it needs to be requested only to give power to those adults who want to quit smoking. I hope that with this clarification of why we need to cover up tobacco displays for everyone, and why requested displays need to be part of the Bill, that the hon. Gentleman will, as he indicated at the beginning, not press the amendment.

Michael Penning (Shadow Minister, Health; Hemel Hempstead, Conservative)

I have listened to this short debate and suggest that the debate on Report is going to be much longer than the Minister expects. [Interruption.] From a sedentary position I hear the hon. Member for Bristol, North-West saying, “You can say that again”. Yes, that will be from both sides of the argument, to be fair, and I hope—hint, hint to the Government Whips—that there is sufficient time on the Floor of the House to have a sensible debate about the whole issue and the effects of the legislation on law-abiding citizens who are going  about their lawful business. With that in mind, as I indicated at the start, I will withdraw the amendment at this stage, but will return to it on Report. I beg to ask leave to withdraw the amendment.