Clause 22
Health Bill [Lords]
4:15 pm

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

I beg to move amendment 91, in clause 22, page 26, line 3, leave out ‘may’ and insert ‘shall’.

Amendment 91 would flush out more of the concerns that we, or rather I—we are on a free vote so I had better say “I”—have with the legislation. The evidence published to date, and the evidence produced by the Minister today, is insufficient to support a ban on point of sale displays. It is also clear that children use vending machines. I am not just speaking from the evidence produced by Cancer Research UK and ASH in videos showing young people going into licensed premises—close to where we are standing here today—putting coins in the machine and buying the product. In recent weeks, I, too, have seen young people come into licensed premises and purchase tobacco from vending machines. The important thing here is whether the existing legislation has been enforced correctly, because many of the premises in which I saw this taking place, and some of the premises in the recent DVD and video, were licensed premises, so those young people should not have been unaccompanied in the first place. We need to address that point.

We encourage more and more young people to come into the family-oriented pub or bistro. I am a keen supporter of the British pub industry and do everything I can to support pubs. At the same time, it is the responsibility of those running such establishments and providing vending machines to do everything that they possibly can to preclude young people from purchasing cigarettes. They clearly cannot get them from anywhere else at that time, otherwise they would not be paying such huge amounts for cigarettes through vending machines. There are myriad premises where that happens.

The legislation is already in place, and the assumption is that the proprietor and those working in a bar or a pub should be able to see the vending machine and whether a young person is approaching it. That is fine if they are serving only one man and his dog occasionally. But, in a busy, vibrant pub, which I am sure we all want our pubs to be, or a leisure facility, similar to Jarman Park in my constituency, which has myriad services from bowling to skating and swimming to nightclubs and cinemas, it is physically impossible for the administrators and owners to guarantee that every time under-18s walk to a vending machine to purchase cigarettes they can be stopped.

After considering the evidence, I have moved my position. I do not want vending machine operators to go bankrupt. I used to be a smoker, and given that it is so expensive I have no idea why anybody would buy cigarettes from a vending machine. However, it is a choice that people can make if they are over 18 and wish to purchase cigarettes. As is suggested, in a lot of places there are no alternatives.

Proprietors of public houses in particular do not want loose stock to sell across the counter. If they lose one packet of cigarettes—stolen or misappropriated by a member of staff or a customer—that is the profit margin on about two packets of cigarettes gone. They do not want that and we moved away from it some time ago. I want the vending machine manufacturers to have an opportunity to sell their legal product in such premises without young people having access to them. That can be done in numerous ways, but I do not think that it is the purpose of the Committee to stipulate to manufacturers and proprietors of vending machines how it should be done. It can be done with a token or an electronic key system, so a person has to go to the bar.

You will be surprised to hear me say this, Mr. Key, but I think that we need to look at our European friends and take guidance from them. Some 22 countries in Europe do not permit the sale of tobacco from vending machines at all. That is too draconian; it is a legal product and people should have the right to purchase it, but it should not be available to under-18s. The industry itself needs to come forward with proposals.

Patrick Hall (Bedford, Labour)

The hon. Gentleman referred to 22 European countries having banned tobacco sales from vending machines; why is this country different from others? Clearly the conclusion has been that devices to limit access by minors to tobacco products in vending machines have failed.

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

The hon. Gentleman raises a good point. If you look at the evidence, which we are all doing, you see that when those bans were imposed there was not the technology to do it another way. I was living in some of those countries when bans came in. When I was a British soldier in Germany in the ‘70s, the vending machines were still on the streets. That had been banned in this country years before. Interestingly enough, they took them off the streets in places where the British military were only because the old 5p was the same size as the deutschmark and they were losing a fortune from British soldiers spending 15p to buy a packet of cigarettes—that is the gospel truth. Frankly, as cigarettes were 25p in the NAAFI at the time, it seemed immaterial; I think that soldiers did it for the joy of doing it.

The situation has changed, and other countries in Europe and around the world have moved to the technology that we are talking about. We have to address whether we are going to stop law-abiding businesses selling their legal product to British over-18s. If we can do that, there is no need for a total ban. If we cannot, I will be one of the signatories to the amendment on a subsequent Health Bill, but I want to give businesses the opportunity, with the technology that we have today, to keep going and sell their legal products. If they cannot do that, we may have to go down another avenue.

Andy Slaughter (Ealing, Acton and Shepherd's Bush, Labour)

Some hon. Members had the opportunity earlier this afternoon to see the British Heart Foundation film that showed young children going into pubs and buying cigarettes. It was clear in some cases that it was done, if not with the active encouragement of the staff, with their knowledge. They clearly did not think that it  was their responsibility to stop it. Even if there are safeguards, they can be got around. As the example involves machines, if the staff who are responsible for the machines do not feel any responsibility, will that not stand in the way of the safeguards the hon. Gentleman is describing?

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

I have seen the video and think that the British Heart Foundation is doing some effective lobbying. I did not need to see it, however, because I have seen that happen in real life.

Two aspects of the hon. Gentleman’s comments must be addressed. First, it is a criminal offence to allow that to happen. If people are allowing children to purchase cigarettes, we should check whether they are also allowing them to drink, because they probably are. Such people should not have licences and should be dealt with by existing legislation, rather than by passing more legislation. Secondly, the vending machine, or a smaller version, could be behind the bar. That way, checks would have to be made. Rather than saying, “Slap! Bang! You’re out of business,” we should look at measures that were not available when most European bans came in.

We know that people do not want to ban tobacco sales altogether—we should be honest about that. I agree with the Liberal Democrat spokesman that we did not have an honest debate on the legislation on smoking in public places. Other Committee members served with me on that Public Bill Committee. Health and safety legislation was used as a back-door method to ban smoking in public places. It was not designed to preclude people from smoking, but to protect people from passive smoking in their place of employment. We should be honest about that.

Stephen O'Brien (Shadow Minister, Health; Eddisbury, Conservative)

My hon. Friend is giving an important introduction to this broad area that will be discussed again on Report. For those of us who have both smoked and given up twice, the only thing that keeps us from starting again is the prospect of having to give up again. I started relatively late, but it is clear that vending machines are an easy source for those who are too young to buy cigarettes. At that stage, people are not fussed about whether they are getting value for money; they just want access to cigarettes.

My hon. Friend is making the important point that we should consider measures to ameliorate the problem, rather than be draconian and impact on the freedom to choose. Vending machines tend to be on the corridor on the way to the gents, which is out of sight of almost everybody. That means that people are able to get cigarettes without any kind of penalty or fear.

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

I thank my hon. Friend. I started smoking when I was 16 years old, as did the rest of the battalion I was serving with in the British Army. Cigarettes in the Army are still almost tax-free, particularly when one is serving abroad. On the ships of the Royal Navy, people are given a quota and still encouraged to use it. Under the previous smoking legislation, we considered why we continue to allow people to smoke in prison, even though there are already so many public health risks and it is a place of work for prison officers. There are a couple of other amendments on these issues, Mr. Key, but I will not discuss them for so long.

The key is accessibility. If people are breaking the law or ignoring existing legislation, they are sure to get around this legislation as well. Such people earn money when people purchase cigarettes because they get a percentage of the profits. If people are happy to sell cigarettes to under-18s, they will do so under the counter in future, if they do not do so already. That would certainly be true in the part of Northern Ireland that I come from.

According to Government figures, one in five cigarettes sold in this country are counterfeit or sold on the black market with no duty or safety measures. Do we really want to drive that market even further before we give vending machine manufacturers and operators the opportunity to sell their products legally to people of the correct age? That is why I have put forward this proposal. I stress that I will bring the amendment back on the Floor of the House and push it to a vote.

John Pugh (Southport, Liberal Democrat)

The problem with the amendment is that it does not go far enough. The line that we will take both on Report and in Committee is that cigarette vending machines are out of order and that we support the British Heart Foundation’s attempt to eradicate them totally. Let me briefly explain why.

Cigarette vending machines are anachronistic and date back to the times when shops closed at 6 o’clock, and desperate smokers looking for a cigarette could only get them from a vending machine. On Sundays, too, it was hard to get a supply of cigarettes. As a result, the machines came into being.

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

I apologise for taking up the hon. Gentleman’s time, but what a load of tosh. I have never heard so much rubbish in my entire life. If someone goes into any pub in this country, they are highly unlikely to be able to purchase cigarettes in any other way. To say that it is something to do with the machines being used late on a Saturday night and that they are an old-fashioned anachronism is completely wrong. Whether we like it or not, it is the only way in which cigarettes can be purchased in most premises these days. That is because of the stock issue, to which I alluded earlier.

John Pugh (Southport, Liberal Democrat)

Clearly, it would be a disincentive for people to smoke if they had to leave the premises to get cigarettes. On a personal note, my son recently gave up smoking. The most difficult situation for smokers when they have given up is after they have had a few pints and they are relaxed, so if we are looking at a measure that will prevent people from going back to smoking, banning the machines is probably the best one.

The machines are not just anachronistic, but slightly odd—after all, we do not have alcohol-dispensing machines with controls on them. There must be some reason why the Europeans, having explored the logic, have gone down the route of largely abolishing them. We were talking about flaky evidence and evidence pointing both ways, but the evidence here is entirely clear cut. The machines represent a small section of total cigarette sales, but one in six child smokers use them. There is no doubt that the evidence shows that children disproportionately use them. The evidence also shows that attempts to get round that by having token systems or monitoring and other such measures simply do not work.

We have talked about displays before. One of the great arguments for not having displays is that it will stop people from going back to smoking and it will stop children from smoking. Vending machines encourage people to go back to smoking because, in the pub, they can be found very easily. They are clearly used by children and will continue to be used no matter what controls are brought in, because children, when they want to smoke and get round legislation, are very canny at doing so.

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

I appreciate the points that have been made, but I will answer them under the next set of amendments or on clause stand part, should debate on that.

The direct effect of amendment 91 is that it would compel the Governments of England and Wales to regulate vending machines. I can confirm that it is the intention of this Government to introduce new regulations on vending machines to ensure that under-age sales are prevented. The Department is already working with key stakeholders in the vending machine business and enforcement agencies to develop draft regulations that will allow practical, effective and cost-effective solutions to the problem. We will have the draft regulations ready for consultation as soon as we can, and we are committed to commencing them from October 2011.

I confirm that Welsh Ministers will consult with relevant health and business organisations and with members of the public in Wales before determining how detailed regulation on the sale of tobacco products from vending machines will be taken forward under their jurisdiction. The effect of the tobacco provisions in the Bill is to devolve powers on tobacco displays and vending machines to the relevant national authorities. We note that the amendment will cut across that intention, thereby imposing a legislative imperative on the Welsh Assembly Government. Under the principle of devolution, we believe it is appropriate to leave it to them to decide how and when to use their powers. I therefore hope that the hon. Member for Hemel Hempstead will not pursue the amendment.

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

Reading through the other amendments, this is almost a stand part debate. I appreciate your leniency, Mr. Key, in allowing it to happen.

Having listened to the Minister, I think that my probing amendment has done its job. We have heard more from the Minister in the past five minutes than is written anywhere on the face of the Bill about the Government’s proposals. On the next set of amendments I shall tease out a fraction more, but I beg to ask leave to withdraw the amendment.

Robert Key (Salisbury, Conservative)

I am of the opinion that we have explored the matter fully and it will not be necessary to have a clause stand part debate.