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

I beg to move, That the clause be read a Second time.

New clause 1 seeks to bring the law protecting young people from tobacco into line with the law protecting young people from alcohol. The Government, supported by myself and the Opposition, have amended legislation to make it illegal for people under the age of 18 to purchase tobacco products. That was a sensible thing to do and will help to discourage young people from smoking. I am sure the Minister will say that that was in the thoughts of the Government when they introduced the relevant provisions in the Bill.

The problem is that, unlike the proxy purchase of alcohol—it is a criminal offence to buy alcohol knowingly to pass it on to a minor, or an individual under the age  of 18, as the legislation states—it is not a criminal offence at all to purchase tobacco knowingly and willingly to pass it on to a person under the age of 18. I assumed that this was just a slip of thought, or a missed opportunity, when the Government introduced the legislation, so I looked for such a provision when the Bill was introduced in the other place, but it was not there. I decided, therefore, that it would be sensible to table an amendment with my hon. Friend the Member for Eddisbury, to change the law in order to protect young children.

The Committee has heard me speak about evidence several times during the past few weeks. The evidence is there: “Smoking, Drinking and Drug Use among Young People 2006” showed that 89 per cent. of young people either being bought tobacco products or being given tobacco products by an older person. Interestingly, that was before the legislative changes, so it related to young people aged 16 or younger being given tobacco products by adults.

On the assumption that if 89 per cent. of young people are having tobacco products purchased on their behalf, or sold to them by someone, the tobacco products are not necessarily all coming through tobacconists, I would have liked to discuss the whole issue of black-market products, counterfeit products and “cheap whites”—products imported into this country and sold very cheaply, mainly from the eastern bloc. Those amendments and new clauses were not selected, but perhaps we will be able to come back to that area.

New clause 1 is a very simple new clause. It will bring our legislation up to date. It will make it a criminal offence for a person who owns a shop to knowingly sell tobacco to a minor, and it will make it a criminal offence to proxy purchase, which is the key to the new clause. That would make it much easier for the authorities to pick up on those who are preying on young people—either people selling from an ice-cream van, which used to happen when I was a young fellow outside the school, or people selling black-market products or any other tobacco products, whether legal or illegal. To knowingly do that would be a criminal offence, and that would make it a recordable crime so that we could stamp down on this. I hope the Government and the Minister will support new clause 1.

Sandra Gidley (Romsey, Liberal Democrat)

I very much support the sentiments behind this new clause, because it seems odd to me as well that the proxy purchase of alcohol is a criminal offence, whereas the proxy purchase of tobacco does not seem to be one. I have not had a chance to check whether the hon. Gentleman has copied exactly the legislation that covers alcohol, but I have a slight concern that this new clause may not be tight enough. Subsection (2B) of the new clause states that a defence is that,

“he had taken all reasonable steps to establish the individual’s age, or that from the individual’s appearance nobody could have reasonably suspected that the individual was aged under 18”.

I do not know about the hon. Gentleman—he may be better at these things than I am—but I find it incredibly difficult to work out people’s ages, particularly when young girls glam themselves up. So a defence on appearance seems to be quite an easy get-out.

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

Of course I am more than happy for amendments to be made by the Government, if they were willing to accept this new clause on Report and  tidy it up, but it is framed around the alcohol legislation. To touch on the point that the hon. Lady has raised: if someone is fraudulently going out of their way as an under-18-year-old with fake ID, or whatever, to actually break the law—whether to purchase alcohol or cigarettes—it is very difficult for the individual who is running the business to know that that is a piece of fake ID. Siblings often exchange ID.

The new clause was designed not only with people who run legitimate businesses in mind, but also to make sure that anybody—whether they run a legitimate business or are in a black-market situation—realises that not only are they breaking the law to do with duty and the sale of tobacco products, but they are committing a criminal offence if they sell to a minor.

Sandra Gidley (Romsey, Liberal Democrat)

I had almost concluded my comments. To sum up, we have great sympathy for the spirit of these amendments. We have to take action on this if we are serious about tackling the problem of under-age smokers because most under-age smokers receive their cigarettes from black-market, under-the-counter sources. I have some concerns, however, that in some ways the amendments do not go far enough.

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

As we have heard, the new clause would create an offence for a proxy purchase of tobacco. I welcome the sentiments that have been expressed by the hon. Gentleman and the hon. Lady. I share these sentiments and welcome the concern. The hon. Member for Romsey asked whether the amendment was the same as the provision in the Bill in respect of alcohol. I can confirm that it is not and I refer the hon. Lady to the Licensing Act 2003, section 149, which provides clarification as to what the purchase of alcohol by or on behalf of children would do, as opposed to the amendment before us. This might be helpful to the Committee.

It is already illegal to sell tobacco to young people under the age of 18. Last year 200,000 children smoked regularly in England and we have to ask ourselves where they are getting their cigarettes from. I welcome the support of the hon. Member for Hemel Hempstead for the change in the law that we have already seen. We have the largest survey of the smoking habits of children from 2006, before the age of sale was raised to 18. The survey found that, of children aged 11 to 15, 34 per cent. usually bought their cigarettes from a shop, and that was the single largest source of tobacco for people under age. It did not, however, tell the whole story and the Committee may find it helpful if I set out other aspects. Over a fifth were given cigarettes by friends and just over one in 10 by family members; and 18 per cent. said they often bought cigarettes from other people. That gives us some idea of the scale and extent of the problem that we are all committed to tackling.

In total, other people were the most usual source of cigarettes for just over half of children. That is completely unacceptable. The proposed amendment, however, would  not address this particular problem. It would apply only when an individual specifically purchased tobacco on behalf of a child. What would not be taken into account—I am concerned about this—are cases where, for example, friends share a pack of cigarettes. That would not count. Parents giving a cigarette from their own pack would not count either. Unless it was possible under this amendment to prove at the time that the person who had bought the pack intended to sell it on to a child, it would not count as a proxy purchase offence. While that was not the intention of the amendment, that is where it takes us.

I would like to place it on the record that I know that the majority of shopkeepers take seriously their responsibilities to stop under-age sale and I would like to thank them for their efforts in this regard. We need to ensure, however, that children cannot get hold of tobacco. Although the intent behind it is understandable, this amendment in respect of proxy purchasing would be both difficult to enforce and ineffective. Perhaps I could explain therefore what I think we should be doing.

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

I cannot understand the logic; perhaps the Minister could elaborate. If the Government use the logic that the Minister has just used that such a provision would be difficult to enforce, my reply is that this part of the legislation is exactly the same as other parts. If an adult purchases alcohol in an off-licence or a licensed premises, takes it outside and either sells or gives it to a person under the age of 18, that is a criminal offence. If that is not enforceable, why is it on the statute book? All we are asking for is for that to be duplicated for tobacco.

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

Perhaps I could refer the hon. Gentleman to the full section 149 of the 2003 Act. I would like to say why the two areas are different. To reassure the hon. Gentleman, I completely understand his intent. Perhaps he will allow me to elaborate on where we want to go with this issue.

We can deal only with the amendment that is before the Committee, and it does not replicate the defence in the 2003 Act of proxy purchasing provision. Instead, the amendment replicates the defence used in the Bill’s tobacco display provisions, which are more prescriptive on what a person must do to qualify for a defence. As I said, we can only deal with what we have before us.

Supply of tobacco to children is a much bigger problem, which is one that, I assure the Committee, I intend to examine in our new tobacco control strategy, which will be published later this year. We had some 100,000 responses to our consultation, which will set us up very well to be able to move forward on the issue. I want to be able to assess how we can help people to understand how dangerous and addictive tobacco is, and how important it is to stop children from accessing it.

I also want to look—the hon. Gentleman made reference to this—at what other countries have done to tackle under-age access to tobacco. For example, we are not aware of any countries that have proxy purchasing for children as an offence, as we have before us today. But we know laws against the supply of tobacco to children exist in Latvia, Italy and Ontario. That means—it is  important for me—that anyone giving or providing tobacco to a minor is committing an offence. I am keen that we find the right way forward through legislation, information, education and whatever other means necessary to tackle the problem.

What we are doing is important because supply of tobacco to children is a very much bigger problem. It does not matter who is providing it or for whatever reason, whether it is retailers, friends or family—it is wrong to supply those under the age of 18 with cigarettes, and we should act to protect children from that. I hope that with the reassurances that I have given, and with the expression of understanding of what we are seeking to do, the hon. Gentleman will be able to withdraw his amendment.

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

It is new clause 1, rather than an amendment.

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

I beg your pardon.

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

What has been missing from the Minister’s comments is how we got into the position in the first place. The legislation was changed and it became a criminal offence for the under-18s. But she seems to have forgotten the proxy purchase issue, which was addressed—[Interruption.] The Minister, from a sedentary position, is saying no. The matter has been missed, because it is missing—it is not on the statute book. What we are trying to do—I freely admit that it may not be perfect—is to bring us from a position of nothing to a position of protecting young people, in a Bill which the Government say is evidence-based to protect children from starting to smoke.

I had hoped that the Minister would say in her comments, “It is not perfect, so we will draft an amendment on Report. We will come back with that, and we will ban it in the Bill. We will send a message out there to shopkeepers.” The Minister is right in saying that the vast majority of them are doing a fantastic job of enforcing the law and vetting who purchases tobacco. But with one in five in the nation buying black-market products, and two in five in some parts of the country—I understand that in some inner-city areas, the most deprived areas, it is even higher than that—where no one is taking a blind bit of notice about their age because they are just trying to make a fast buck, we need to have another criminal offence similar to that in the alcohol legislation. That is where the Bill should be.

The Minister says, “We are going to have a review, we will look at the matter and we will come back in the autumn with a strategy,” but the Bill could have contained a lot of other things that would have helped, not least nicotine replacement therapy or the whole issue of the black market or of cheap whites—loads and loads of pieces of legislation. The truth, I believe, is that because the new clause is coming from the Opposition Benches, whether those of the Liberal Democrats or Her Majesty’s official Opposition, the Government have closed ranks: “No, we’ll sort this out in good time.” I would be more than happy to withdraw new clause 1 if the Minister said to me that, on Report, she would bring back provisions that tighten up the minor areas—although I do not completely agree with the way that the Minister referred to them.

For instance, supplying alcohol to one’s children is completely different in legislation. One can supply wine to them at 14—it is not illegal to supply alcohol to one’s children. That is completely different, which is why it was not in the new clause. The comparisons do not work. I am really very sad for the young people of this country who are having their lives blighted by people proxy purchasing for them. Proxy purchasers can make an awful lot of money by selling to young people and encouraging young people to start smoking, getting them addicted. New clause 1 would take a huge leap forward into protecting the public health of young people.

I am hugely disappointed that the Minister has not come before the Committee today, knocked my new clause down but said, “We will address this on Report—there is plenty of time to address it—and we will protect young children.” I cannot press the new clause to a Division in the Committee, because I am advised by the Clerks that if I do, the House will be restricted from voting on it on a free vote, which would also be important. I hope that in the meantime, before Report, both Ministers, the Secretary of State and their advisers see sense and table an amendment to the Bill that protects young people from proxy purchase. If not, I shall move a similar amendment on Report.

I beg to ask leave to withdraw the clause.

Robert Key (Salisbury, Conservative)

Is it your pleasure that the clause be withdrawn?

Gillian Merronrose—

Robert Key (Salisbury, Conservative)

Does the Minister wish to speak?

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

Yes. I am sorry that I was not quick enough off the mark, Mr. Key. I am sorry to disappoint the hon. Gentleman, but I shall reiterate some of my points. We can only go on what the new clause before us says; it would be difficult to enforce and would not do the job required. I can confirm that I will examine the full range of effective measures that we can take in the tobacco control strategy. I feel that we will get a better job done when we have that.

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

This is the second time that the Minister has said that it would be difficult to enforce measures against the proxy purchase of tobacco, but the alcohol legislation on the statute book specifically has such measures. Why would it be more difficult to enforce measures against the proxy purchase of tobacco than to enforce the existing legislation on alcohol?

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

I had thought that we had talked about the difference, but I shall have to go through it again. New clause 1, which is before us and is all that the Committee can deal with, is rather different from the provisions on alcohol. There has been reference to alcohol and tobacco being different. There are some limited legal circumstances in which alcohol can be drunk by under-18s, as we know if we look at the detail of the legislation, whereas tobacco should always be out of reach.

I very much welcome the zeal with which the hon. Gentleman puts his case, because—as I have heard in  the Chamber as well as in Committee—not all right hon. and hon. Members on the Opposition Benches share his zeal. On tobacco display, on one of the points on which I had hoped—hope—for greater support, our proposals are there because we want to protect children from the addiction of smoking, which damages their health so badly.

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

Will the Minister give way?

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

New clause 1—

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

Does that mean no?

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

I am asking the hon. Gentleman to be a little patient.

New clause 1 as drafted does not do the job. I have given an assurance that we are very keen to tackle this issue, but doing it by creating an offence of proxy purchase, which does not exist in any other country and so we have little to draw on, would mean having to prove the intention to sell it on to a child. That would be the only way to count it as a proxy purchase offence.

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

I will not be long, but yes, I do speak on this subject with zeal. If the Minister looks at Hansard and at the time I spent on the Select Committee with her hon. Friends, she will find that I was much more zealous there, particularly with the Secretary of State when she tried to bring forward a piece of legislation that was fundamentally flawed. But the key to being an Opposition Member is that we have a free vote—a conscience vote. Why is there not a free vote on the Government’s Benches? If the hon. Lady wants to talk about zeal, she should let her Back Benchers have a vote.

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

Mr. Key, I am sure you know that these matters are subject to the usual channels. I am glad to hear that the hon. Gentleman will be withdrawing or not pressing new clause 1, and I hope we can make progress.

Sandra Gidley (Romsey, Liberal Democrat)

What I am struggling to understand is that the Minister sounds sympathetic, the Bill has been some time in preparation and the issues have been raised numerous times in debate on the Floor of the House, possibly in an Opposition day debate initiated by the Conservative party, yet we do not have any attempt by the Government to address a very real problem. Why is that? Why so slow?

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

To reiterate once again, I believe that it is right to draw together all the concerns and we will address them, whether it is through legislation, information, guidance or a connection in the tobacco control strategy. I should have thought that hon. Members would be glad that we will be responding to a very full consultation, which has included retailers, those who do and do not smoke, and those who have to deal with the scourge of smoking. I do not want legislation that does not do the job. I want, as we all do, legislation that will do the job. If the hon. Lady feels that the approach taken in the  new clause is the right way, doubtless she will pursue the matter. I am disappointed that it appears we will not be testing it in Committee.

Sandra Gidley (Romsey, Liberal Democrat)

The Minister almost seems to be making a good argument to defer the whole Bill until we have the tobacco strategy. I cannot see why the Government have cherry-picked some of the things that they like and that they think are a quick fix, and yet again thrown into the long grass measures that would make a real difference.

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

The new clause would not make the real difference that we all seek. As I have said, we will address the matter in full on all levels later in the year through the tobacco control strategy, and it will be informed by the consultation’s 100,000 responses. It appears that new clause 1 will not be promoted and I welcome that, but I hope that the spirit in which I welcome that is understood.

Robert Key (Salisbury, Conservative)

Because I had put the question that the clause be withdrawn, and the Minister by speaking indicated that she did not wish to see it withdrawn, the Committee must now come to a decision.