Health Bill

– in the House of Lords at 5:24 pm on 19th June 2006.

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Votes in this debate

Consideration of amendments on Report resumed.

[Amendment No. 2 not moved.]

Photo of Lord Naseby Lord Naseby Conservative

moved Amendment No. 3:

After Clause 2, insert the following new clause—

"DEFINITIONS OF "ENCLOSED" AND "SUBSTANTIALLY ENCLOSED"

(1) For the purposes of section 2—

"enclosed" means having a ceiling or roof and, except for doors, windows and passageways, being wholly enclosed, whether permanently or temporarily;

"substantially enclosed" means having a ceiling or roof and, except for doors, windows and passageways, being substantially closed, whether permanently or temporarily.

(2) In determining whether premises are "substantially enclosed", no account is to be taken of openings in which there are doors, windows or other fittings that can be opened or shut.

(3) Premises shall be taken to be "substantially enclosed" if—

(a) the opening in the premises has an area, or

(b) if there is more than one, both or all of those openings have an aggregate area, which is less than thirty per cent of the area of the walls, including other structures serving the purposes of walls, which constitute the perimeter of the premises.

(4) Where an opening is in, or consists of the absence of, such walls or other structures, or a part of them, their area shall be measured for the purposes of subsection (3) as if it included the area of the opening."

Photo of Lord Naseby Lord Naseby Conservative

My Lords, Amendment No. 3 is essentially probing in nature. In a sense, it is quite tightly drawn. Since we had a pretty free-ranging debate on the previous amendment, I will keep specific to this particular amendment, in the hope that your Lordships will follow suit. The key point about this amendment is that, originally, the conditions for the erection of any form of building or attachment to premises were on the face of the Bill. It was then withdrawn from the Bill and put into regulations—and, of course, we do not yet know what the regulations are. In addition, we have Clause 4, which gives the Government virtually a blank cheque. That is because they can designate anywhere, in effect, non-smoking.

In addition, the definition of these attachments has been changed. Originally it was put down, in consultation terms, as 70 per cent of the notional roof and wall area, and now we are told it is to be 50 per cent only of the notional roof and wall area. I am sure the Government will recognise that no one in the commercial world will spend a penny on planning any form of extension or new building, unless they know the conditions beforehand. While the Minister in Grand Committee maintained that the trade was broadly well aware of what the regulations were about, there has been evidence since—particularly, one has to say, from the smaller licensed premises—that it is singularly unaware. That is a concern, because it is the smaller licensed premises—either in the rural or perhaps the more industrialised areas of our country, where perhaps they even have no car park—that will face real problems in providing anything outside the main pub.

Any trader will almost certainly have to obtain planning permission. It is quite likely that a significant number will have to get listed building consent. If you go for planning permission, at a minimum, that has to go out for consultation, in whatever field you are in. At that point there can be objections, or the committee can decide to delay it for another two months, three months or whatever it may be. Just because you put in for planning permission and you are told your case is coming up in two or three months' time, there is no certainty that you will know at the end of that time whether your proposals have been successful.

In Grand Committee, the Minister also described the example of Scotland and stated in broad principle that it had been successful. The more one digs, however, the easier it is to see that the big boys were successful and those who hit the most difficulties were the small boys. In addition, since Grand Committee we have heard about the experiences of not just the licensed trade but others with the Licensing Act 2003. We have heard about the genuine difficulties that it has caused by the continually changing interpretations between one local authority and another.

All this leads one to believe that, if the Government believe in joined-up government, as I genuinely believe they do, one must give the trade time to undertake the changes—there is no argument about the changes going through now; they seem likely to go through. The combination of a failure to provide clarity through essential definitions in the Bill—in other words, they are still in the regulations—and the insistence of Ministers on bringing the smoke-free provisions into force in 2007, one year earlier than was originally proposed, will cause great difficulty. I wish to be objective about this. If 25 per cent of people want to smoke, and if landlords and other owners of licensed premises want to make provision for these customers, it seems only sensible to give them a reasonable length of time in which to do it. My amendment tries to give the Government a means of achieving that.

I hope that the Minister will be able to tell us either that the regulations are imminent, in which case that is some progress, or, if they are not, perhaps that he will seriously consider whether he is nailing his flag to the mast of the middle of 2007. He will recognise that there are genuine difficulties. Whether it is late 2007 or early 2008 does not really matter: the most important dimension is to get this right and to ensure that smaller publicans, in particular, who do not exist on a very large margin of income, have an opportunity to amend their premises to meet these needs. I beg to move.

Photo of Lord Monson Lord Monson Crossbench

My Lords, this amendment broadly brings the Bill back to the Government's original position, as set out in their consultation document of 20 June 2005—almost exactly a year ago today. Members of the licensing trade believe that the original scheme was less inimical to their profitability and viability and less inimical to the well-being of their customers, 45 per cent of whom apparently smoke to a greater or lesser degree, than the altered formula in the Bill. Why did the Government change their mind?

A clue to the Government's reasoning emerged in Grand Committee on 24 April, when the Minister extolled the desirability of ensuring "consistency with Scottish legislation". Why should there be such consistency? After all, just a few moments earlier the Minister had spoken of the desirability of allowing the Welsh to make their own decision on what precisely constitutes "enclosed" and "partially enclosed" spaces. Why are the English, alone in the United Kingdom, treated in such a cavalier fashion by this Government, or, perhaps I should say more accurately, in such a Cromwellian fashion?

If the Government are unwilling to accept this amendment, will they, as an alternative, consider accepting my Amendment No. 46—we are likely to come to it next Monday—which provides for the regulations to be subject to the affirmative resolution procedure? Technical though they may be, too much is at stake both in terms of the continued viability of many licensed premises and the comfort and well-being of literally millions of their customers to allow these regulations to be nodded through under the negative procedure.

Photo of Lord Warner Lord Warner Minister of State (Reform), Department of Health, Minister of State (Department of Health) (NHS Reform)

My Lords, Amendment No. 3 seeks to put definitions of "enclosed" and "substantially enclosed" into the Bill. The Government cannot accept the amendment for two reasons, which I shall explain in a moment, but, first, perhaps I may clear up where we were before we came forward with this Bill.

It is true that in the consultation document to which the noble Lord, Lord Monson, alluded, we proposed a definition based on that in South Australian legislation, using a figure of 70 per cent but including the roof and wall area in the calculation. There was not strong support for that, but neither was there strong support for any other specific definition. However, we need to set out a clear definition to allow premises owners to understand which parts of their premises are smoke-free. I agree with the noble Lord, Lord Naseby, that a degree of certainty is very important. That is why we decided instead to use the same definition as will operate in Scotland—that is, "substantially enclosed" means walls and equivalents making up more than one half the area of the perimeter walls of the premises.

As I said in Grand Committee, the Government are satisfied that the right place for this definition is not in the Bill but in regulations. We can see from the way that the amendment is drafted that the definition is likely to be complex and technical therefore we believe that it is best suited to regulations. We also believe that it is important to maintain the flexibility to be able to amend the definition in the unlikely event that problems arise with the initial definition. That will be much easier, of course, if these definitions are in secondary legislation.

Furthermore, the Bill allows for regulations pertaining to "enclosed" and "substantially enclosed" to be specified by the appropriate national authority. By including a definition in the Bill, we would preclude Wales from being able to define "enclosed" and "substantially enclosed" in a way that best suited its own circumstances. I note that the Delegated Powers and Regulatory Reform Committee was content with this approach. And so that the noble Lord, Lord Monson, does not raise his hopes too much, I should tell him that we are unlikely to be sympathetic to his Amendment No. 46.

Secondly, the Government have already made it clear that we intend the definitions of "enclosed" and "substantially enclosed" to follow, in general, those used in Scottish legislation. Given that a number of people working in the industry will be operating premises in both England and Wales, I should have thought that they might welcome some consistency in the definition between Scotland and England. That will probably be helpful to the industry. We certainly think it is desirable to be consistent with Scotland in this respect so as to make implementation as straightforward as possible.

Amendment No. 3 proposes that a place should be considered substantially enclosed if it has a roof or ceiling and an opening, or aggregate openings, of less than 30 per cent of the area of the walls. The Scottish definition, however, refers to less than 50 per cent of the area of the walls being open. As I said, not only do we intend to follow the Scottish model for reasons of consistency but we are also taking into account the comments that we received during the public consultation exercise undertaken last year before publication of the Bill. We believe that 50 per cent is the right measure, as smoke will still linger in places which are more enclosed. A 50 per cent measure is also likely to be more easily understood by those implementing and enforcing the arrangements than 30 or any other percentage.

I can tell the noble Lord, Lord Naseby, that our regulations will be published very soon. From the discussions that we have had with Scottish officials, we are not aware of any issues of great concern on this matter in Scotland. However, if the noble Lord would like to write to me about specific concerns, I should be happy to consider them.

On a technical point relating to Amendment No. 3, although the amendment puts the definition in the Bill, there is no amendment to remove the power to make regulations defining "enclosed" and "substantially enclosed" in Clause 2(5). That means that, in theory, we could make regulations giving a different definition from the one that the amendment would put in the Bill, and that would clearly be absurd and unworkable. I hope that, on the basis of that explanation, the noble Lord will not seek to press his amendment.

Photo of Lord Monson Lord Monson Crossbench

My Lords, before the Minister sits down, can he explain why the Government believe that there should be consistency between definitions in English and Scottish legislation but not between definitions in English and Welsh or Welsh and Scottish legislation?

Photo of Lord Warner Lord Warner Minister of State (Reform), Department of Health, Minister of State (Department of Health) (NHS Reform)

My Lords, I thought that I had explained that there was no common view in the consultation on any particular definition. I set that out very clearly. In those circumstances, we thought that it made more sense to be consistent with Scotland, and that will also help providers of services on either side of Hadrian's Wall, if I may put it that way.

Photo of Lord Naseby Lord Naseby Conservative

My Lords, I am grateful to the Minister, particularly for giving me the opportunity to write to him about some of the issues that have been raised since Grand Committee. I appreciate that offer very much and shall certainly follow it up.

The noble Lord, Lord Monson, is right in a sense. It would be singularly farcical if the measure were identical for England and Scotland but the Welsh Assembly decided to have a separate approach, and the Government may want to consider that.

The key issue remains the experience in Scotland, where, because a number of licensees happened to be within one local authority area, there was a logjam of planning permissions and all that went with them, such as listed building consent, and then, on top of that, some local authorities decided to change the Licensing Bill provisions. I hope that the Government will take seriously, and reflect upon, that logjam.

I am not going to press this to a Division this evening. I have made my points, and will continue to make them in writing to the Minister. Given that this is a Health Bill, I hope that the Government will recognise that, if it were the responsibility of the Secretary of State for Trade and Industry, he would be pulling his hair out by now having realised that it was not exactly joined-up government. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 3 [Smoke-free premises: exemptions]:

Photo of Lord Warner Lord Warner Minister of State (Reform), Department of Health, Minister of State (Department of Health) (NHS Reform) 6:00 pm, 19th June 2006

moved Amendment No. 4:

Page 3, line 2, leave out "consumption of alcohol" and insert "sale by retail of alcohol for consumption"

Photo of Lord Warner Lord Warner Minister of State (Reform), Department of Health, Minister of State (Department of Health) (NHS Reform)

My Lords, this is a purely technical amendment. Strictly speaking, licences do not authorise the consumption of alcohol; they authorise the sale of alcohol for consumption. The amendment corrects that minor drafting inaccuracy.

On Question, amendment agreed to.

Photo of Lord Pendry Lord Pendry Labour

moved Amendment No. 5:

Page 3, line 4, leave out paragraph (b).

Photo of Lord Pendry Lord Pendry Labour

My Lords, I make no apology for moving this amendment, despite the fact that we have already had a lengthy debate. If my amendment is carried, it would reverse a decision made in the other place. The vote in the other place was free of the Whips. If my amendment is taken to a vote here, it is my understanding that it would similarly be a free vote.

I am, however, aware that there are some people in this House who do not believe that your Lordships could ever contradict the other place, given the free vote there. In some circumstances, that could well be right. In the amendment before your Lordships today, however, there is a powerful reason why this House should express its opinion, irrespective of the decision in the other place.

As originally introduced, the Bill enabled Ministers to make regulations exempting the smoke-free provision premises having premises licences or club premises' certificates under the Licensing Act 2003. In that regard, it sought to implement the policy explicitly stated in the Government's 2004 White Paper, Choosing Health and the Labour Party's 2005 election manifesto. I hope to carry my newly discovered comrade, the noble Lord, Lord Tebbit, with me when I refer to that manifesto. Lest there be some ambiguity, it said:

"We recognise that many people want smoke-free environments and need regulation to help them get this. We therefore intend to shift the balance significantly in their favour. We will legislate to ensure that all enclosed public places and workplaces other than licensed premises will be smoke-free. The legislation will ensure that all restaurants will be smoke-free; all pubs and bars preparing and serving food will be smoke-free; and other pubs and bars will be free to choose whether to allow smoking or to be smoke-free. In membership clubs"— this is the important part for the amendment—

"the members will be free to choose whether to allow smoking or to be smoke-free. However, whatever the general status, to protect employees, smoking in the bar area will be prohibited everywhere".

As originally drafted, the Bill did not indicate exemptions. Instead, it gave examples of the descriptions of premises that could be exempted by regulations, and the conditions under which they might be exempted. The clause was, however, replaced on Report in another place by the clause now in the Bill, tabled by the current Secretary of State for Health. It specifically prohibits licensed premises—pubs, bars, restaurants and genuine membership clubs—being exempted from the smoke-free provisions by regulations. I believe that that was a mistake, as I now hope to make clear.

There was no need for this amendment, because Clause 3 enabled Ministers to make, or not make, any regulations they wished, subject to the approval of Parliament. The existing Clause 3 prohibits certain exemptions. It removes a freedom which could easily have been controlled by separating smoking from non-smoking facilities in those premises. It diminishes choice and has been instigated by what I always believed was a basic tenet of the Government; that they espouse choice. It ostracises smokers, leaving them with no enclosed public place in which they can smoke. Inevitably, those who choose to continue to smoke will often do so at home, where children may be present. It invades the freedom of clubs to establish their own rules. That is an important and longstanding freedom. It also happens to ban a club or association of people, such as the Lords and Commons Cigar and Pipe Smokers Club, from a meeting in their own enclosed place, other than in someone else's home.

As much as I would like my amendment to do, it does not go as far as restating the original Clause 3 of this Bill. That would now probably be too much to ask. My amendment is therefore a compromise. It is of fundamental importance, however. It is concerned with freedom and continuing to enable people, who freely and willingly choose privately to associate with each other, to establish their own rules of association. As the former Health Secretary John Reid explained, the original Clause 3 of the Bill, in so far as it could apply to pubs and bars, sought to provide a degree of balance of rights and choice by enabling a limited provision for smokers. At that time, there was never any question about prohibiting an exemption for genuine membership clubs, recognised as being in a very special position.

I wish to quote something:

"The justification for exempting private clubs is that adults choose to become members of such clubs . . . Private clubs are exempted on the basis that their members are adults who choose to sign up to the regulations of that club. They have a say in the running of the club . . . so they have a say in determining whether smoking should be allowed at all or in certain areas. Many clubs already apply rules in that area, including no smoking in bars".

Those are not my words; they are the words of the already much-quoted Caroline Flint, MP, the current Minister for Public Health, speaking in Standing Committee E on the Bill in another place on 8 December 2005.

What caused the change of heart and policy? The personal views of the Secretary of State for Health, Patricia Hewitt, may have played a strong part, but it has also been claimed that the change in policy was to reflect public opinion. That claim is false. The public have consistently opted for the accommodation of smokers and for choice. The most authoritative poll indicating this was not commissioned by ASH, which wishes a complete ban, or FOREST, which takes the opposite view, but the government-commissioned poll from the Office for National Statistics; not the poll from Norway, as my noble friend Lord Faulkner referred to earlier, but our own Government's poll. In its last annual poll on smoking, the Office for National Statistics' data show that only 31 per cent of people opted for a ban on smoking in public places, but 47 per cent—the majority—would prefer accommodation for smokers in separate areas or rooms. Why, then, was there a sudden change of policy on genuine membership clubs, which are universally recognised, including in legislation, as being in a special position and quite different from retail premises which the public may freely enter?

It seems that there were two decisive factors, both misguided and wrong. First, anti-smoking activists argue at every opportunity that, by exempting membership clubs, the employees of those clubs would not have the same protection from second-hand smoke as employees of other establishments. That would be easy to deal with, by making it a condition of exemption that no employee should be required to work in a place where smoking is permitted, and by applying the rule that the Government originally promoted of not permitting smoking close to a bar.

The Government also suggested in their consultation on the proposed smoke-free provisions of the Bill that the regulations made under the Bill might require an annual vote of the membership on the smoking policy in any club. But I suspect that the second factor was, in reality, perhaps more influential: the objection of the large pub groups and operators who argued that to exempt genuine membership clubs would be anti-competitive and that the playing field would not be level as they claimed.

The fact is that pubs and genuine membership clubs are like apples and pears; they do not operate in the same marketplace. Anyone can walk into a pub, but people cannot walk off the street into a club. There are rules of membership. Very often clubs have distinct affiliations and membership requirements. Many of them are institutions of great local and social importance. Most Members of this House are members of clubs of one kind or another. Some would even regard this place as a club of sorts. It is certainly somewhere where we determine our own rules of operation. Let us not think that all clubs are as exclusive as this place or Boodles, the Reform, the Garrick or White's. There are more than 20,000 clubs throughout the country, many with small membership numbers, that play a vital and invaluable role in the local society for a great many people. People place great store by and take great pride in their ability to participate in the making of their club rules and in managing their club. This Bill starts to dismantle that ability. In my view, that is wrong and should be resisted, particularly by this House.

The Licensing Act 2003 recognises, as did the previous licensing regime and other legislation, that membership clubs are significantly different from licensed premises. Clubs holding a club premises certificate are run by their members, who choose freely to associate with each other. They are run principally for the benefit of their members under their own rules. There is accountability to the members of the club who determine how the club is managed and operated. They are clubs that are quite separate and distinct from other licensed premises that may be called clubs.

In the absence of any obligation to impose an absolute prohibition on smoking in order to protect non-smokers, it is for the members of the club with a club premises certificate to determine the smoking policy of the club. We in this House should do whatever we can to make that possible. My amendment would not exempt membership clubs from the smoke-free provisions; it would simply make it possible for them to be exempted by regulations. Any exemption and conditions would be matters for Ministers to determine. I beg to move.

Photo of Lord Walton of Detchant Lord Walton of Detchant Crossbench

My Lords, I confess that as a lover of the more delicate nuances of the English language, I was a little dismayed earlier when the noble Lord, Lord Tebbit, accused me of using sloppy terminology. At least he did not go as far as Disraeli, who referred to Gladstone as someone who was inebriated by the exuberance of his own verbosity.

I confess that in referring to the report of the noble Lord, Lord Wakeham, I should have used a word a little less pejorative than "inconceivable". As I said at the time, I believe that it is remarkable—in fact, astonishing—that, in talking about the effects of second-hand smoke, a report produced by such an outstanding committee of your Lordships' House should include the remark,

"the main harm, if there is one".

Today we have heard much about the effects that second-hand smoke may have on those who are exposed to it. The scientific evidence is incontrovertible. In response to what the noble Lord, Lord Skidelsky, said, there are more than 50 peer-reviewed publications in major journals, many of them supported by very well organised statistical evidence.

Photo of Lord Vinson Lord Vinson Conservative

My Lords, in talking about passive smoking, can the noble Lord clarify whether he is talking about someone popping into a smoky room with a plate of sandwiches and coming out again and going in at the end of the evening to clear up for five minutes, or is he talking about someone living perpetually in a smoky atmosphere during working hours? The nature of the malady is completely affected by the duration that one is subjected to an amount of smoke. The noble Lord is talking about the kind of people referred to under this amendment, who will pop in and out, delivering a plate of sandwiches in a club, as though they were going to have their lives threatened by living in a continuously smoky atmosphere. But here we are talking about very intermittent contact with smoke—casual exposure to passive smoking and not continuous exposure to passive smoking. I believe that scientifically the two things are quite different.

Photo of Lord Walton of Detchant Lord Walton of Detchant Crossbench 6:15 pm, 19th June 2006

My Lords, I have in my documentation—I shall not go into it in detail—evidence to show that research that is being undertaken in London has demonstrated that anyone in a London cab, who may be exposed to smoking as the cab is stopped in a traffic jam, is exposed to a significant number of particles of smoke. Even walking past someone who is smoking in the road exposes one to a minimal amount of exposure to particles. But no one can argue that that kind of exposure is harmful.

However, while I would support, without any reservation whatever, the right of any individual to smoke as much as he wishes when alone and not in the proximity of any other persons, I do not believe that we have the right to smoke in the presence of other people in any kind of enclosed space, such as a restaurant, a pub or a private club, and to impose that health risk on other individuals, not least the staff.

There are 20,000 licensed members clubs in England, covering a wide range of interests from sport and recreational clubs to political and working men's clubs. Exemptions for private members' clubs would be unworkable and unjust for all the same reasons as exemptions for pubs. Once the health and safety case and public health benefits are accepted, it is not possible to allow an effective compromise for private members' clubs as the staff of those clubs must be protected.

In Grand Committee I said that I had carried out a very limited range of inquiries. I had inquired about the feelings of the staff in two London clubs—namely, the Athenaeum and the Oxford and Cambridge Club. They said that unequivocally they would wish to see those clubs smoke free. I also inquired at two golf clubs, one of which is my own golf club in north Northumberland, Bamburgh Castle Golf Club, which the noble Lord, Lord Vinson, knows very well. It has a large bar where food, including sandwiches, is served, and a dining room which, at the moment, is smoke free as smoking is banned there. There is no other room in which anyone can smoke and there is no way in which the bar can be divided without doing irreparable damage to it. A very large number of other clubs are in exactly the same situation.

It is unacceptable that members of clubs should have the right to vote to damage the health of members of their staff. Children are often present in such clubs and are at particular risk from second-hand smoke. Many private clubs are, in effect, bars competing with pubs in their local areas. Exempting them from smoke-free legislation would also create unfair competition and was strongly opposed by the pub and hospitality trade as well as by the health lobby when the Bill was debated in the Commons. I believe that we owe it to the staff of private members' clubs throughout England to stand by the clause that the Commons debated and included in the Bill and to reject the amendment.

Photo of Lord Tebbit Lord Tebbit Conservative

My Lords, I would not want the noble Lord, Lord Pendry, to think that I have fully joined his club. I do not find it inconceivable that the Government should have ratted on their manifesto commitment. That sort of thing goes on all the time. What I find not inconceivable—for inconceivable is not a pejorative word, but simply a statement of fact—but unusual and surprising is that the Government, who have been lecturing us, on this side of the House in particular, on the duty of the House of Lords not to vote against a manifesto commitment of the Government, are now arguing that we should vote against a manifesto commitment of the Government. The noble Lord, Lord Pendry, was extraordinarily kind to his own side in not putting down an amendment to put the Bill back to what the Government promised the electors they would do. I think he is very modest indeed and despite his modesty, I will support him up hill and down dale on this issue.

Let us put aside all the technicalities, the arguments about passive smoking, how good or bad it is for you and all the rest of it. Let us stick to the constitutional issue, which the Leader of the House and many other noble Lords on that side have pushed on us time and time again—that this House should not object to a Labour Party manifesto. I must confess that I might do at some time in the future, but not tonight.

Photo of Lord Lester of Herne Hill Lord Lester of Herne Hill Advisory Team On Legal Matters, Cross-Portfolio and Non-Portfolio Responsibilities

My Lords, about 40 years ago, I failed to persuade the Law Lords that working men's clubs should be treated as public places for the purpose of colour bars. As a result of that, in the Race Relations Act 1976, the Government, whom I served, decided to overrule the Law Lords and ensure that a colour bar was unlawful, whether in a private members' club or otherwise. What I learnt from that experience is of some relevance today; it is the great difficulty in distinguishing between those clubs that are very private indeed—such as the Garrick Club, to which I used to belong—and clubs that are not very private but are still clubs in law, such as working men's clubs. There are thousands of working men's clubs and they are, in practice, but not in law, indistinguishable from pubs. If this amendment were passed, we can be quite sure that there would be a drift from pubs to working men's clubs.

Photo of Lord Naseby Lord Naseby Conservative

My Lords, I have been a member of working men's clubs in Northampton. Some are large, some are very small. Believe me, one is not automatically allowed to join them. On occasion, they are every bit as difficult to get into as I believe the Garrick is.

Photo of Lord Lester of Herne Hill Lord Lester of Herne Hill Advisory Team On Legal Matters, Cross-Portfolio and Non-Portfolio Responsibilities

My Lords, I am sure that is right, and it simply illustrates the difficulty. There are big clubs and little clubs; there are clubs that are bogus and some that are genuine; there are clubs that are really private; there are clubs that are snobbish and social and some that are not. But in law, they are identical. Were we to pass this amendment, we would simply add to the real practical difficulties that the noble Lord, Lord Walton, indicated.

Photo of Lord Skidelsky Lord Skidelsky Crossbench

My Lords, I support this amendment. I wish that I could persuade your Lordships, even your medical Lordships, to think about risk in a statistical manner. I know that this is a very boring subject which has nothing to do with manifesto commitments, but it is the essence of the rationale of the Bill. I accept that there is a risk from exposure to environmental tobacco smoke. The question is how big the risk is.

Let me go very briefly through just one argument. It is generally estimated that the risk of lung cancer among the general population is 1 per 10,000, which is 0.001 per cent. It has been argued that the risk among non-smokers exposed to environmental tobacco smoke goes up by 25 per cent. When that is bandied around, it sounds like a large number and looks like a significant increase. It is a significant increase in the risk, but from a very low base: a 25 per cent increase on 1 in 10,000, or 0.0025 per cent. If I now take the Minister's argument, accept that ventilation systems are not perfectly effective and assume that they are only 50 per cent effective, the risk of getting lung cancer from ETS falls to 0.00125 per cent. Let us look at it in millions, which may be a bit easier to understand. The risk of getting lung cancer among the general population is 100 per million. A 25 per cent increase in the risk brings it up to 125 per million. A 50 per cent reduction in the risk because of improved ventilation brings it down to 112.5 per million, and that is the risk of getting lung cancer, not dying from it. This is ordinary, simple statistical thinking.

However, the main point is that, given that the risk of lung cancer among the general population is so low, the increased risk is statistically insignificant. Technically, it falls within the margin of statistical error; that is, it is too low to register on the statistical radar screen. Now, on the basis of a statistically insignificant risk, people are to be forbidden by the state to set up genuine membership clubs that allow members to smoke. Even on the wildly unrealistic assumption made by the noble Lord, Lord Faulkner, that membership clubs that allow smoking will be staffed entirely by non-smokers, the risk to non-smoking staff is so minute as not to be worth thinking about, at least by the Government. I accept that the avoidance of premature death is of high moral significance, but it should not necessarily be the object of public legislation. That is going over the top, which is why I support the amendment wholeheartedly.

Photo of Lord Turnberg Lord Turnberg Labour

My Lords, I have just calculated that 125 more people will die every year in this statistically small segment of the population. One in 10,000 is not a small number when one takes the country as a whole.

Photo of Baroness Finlay of Llandaff Baroness Finlay of Llandaff Crossbench

My Lords, I shall not treat this debate as another Second Reading or Committee stage, but I shall reply very briefly to the noble Lord, Lord Skidelsky. Those of us in medicine listen to statistics, and I shall quote David Cohen, who is a professor of health economics. He has developed a model that predicts the effects of eliminating exposure to environmental tobacco smoke in public places in Wales, which has a population of only 3 million. It estimates an annual reduction in deaths from lung cancer and coronary heart disease of 253, with a possible additional reduction of deaths from stroke and respiratory diseases of 153.

Lung cancer is not an orphan cancer. The number of cases involved is not small, and it has one element that other cancers do not have: an appalling prognosis. If any noble Lord has lung cancer, I am sorry to have to tell him that his chances of survival are extremely bad. One of the problems that doctors see with patients who are exposed in the workplace and who have not been exposed at home is that, if they get lung cancer and die young, it is a tragedy for society and for the community.

I was extremely grateful to the noble Lord, Lord Lester of Herne Hill, for intervening in the debate on this amendment and saying more eloquently than I can what is on my mind. It would be in the interest of the tobacco industry to persuade pubs and all kinds of other places to become the type of membership club that already abounds in our city centres for young people at night. In them, a membership card comes with going through the door and buying the first drink, which is a little bit more expensive than all the other drinks that come later. One is then a member and has a card, which states on the back what one can and cannot do. The place fulfils all the regulations for being a club, but is not one in historic practice like the clubs with long histories that other noble Lords have alluded to. We saw that happen in Cardiff city centre. People wanted to make a place slightly more elite, and so it became a membership club, but it was a pseudo-membership club. It was a lovely place to go, but it did not fulfil any of the criteria of somewhere like the Garrick. This amendment would mean an enormous loophole in the legislation that would make it unworkable. I cannot support it.

Photo of Lord Monson Lord Monson Crossbench 6:30 pm, 19th June 2006

My Lords, I shall make three extremely brief points in favour of this excellent amendment. First, many small clubs, in particular those in rural areas, have no paid employees. Members of the club committee take it in turn to dispense drinks on a voluntary basis. If there are no employees who might be put at some risk, why—with the consent of the membership, of course—should smoking not be allowed?

Secondly, in those mainly larger clubs that employ staff—who must by definition be agreeable to working among smokers—those employees will be at no greater risk than prison officers, nurses and other staff in residential care homes, and chambermaids and room service waiters in hotels, all of whom will continue to be exposed to other people's smoke with the full approval of the Government as the Bill stands.

Finally, only just over 56 per cent of honourable Members representing English constituencies voted for the banning of smoking in clubs. The majority was inflated by the votes of Scottish, Welsh and Northern Irish MPs, none of whose constituents have any direct interest in the matter.

Photo of Lord Rosser Lord Rosser Labour

My Lords, I oppose the amendment. The measure has been presented, in part, as an attack on choice and freedom. I am sorry if my noble friend Lord Pendry considers that it will have an adverse effect on this House's Cigar and Pipe Smokers' Club. It might stop club members smoking, but I think that my noble friend said that it would stop them meeting, which it will not.

In other areas, we do not have choice. We do not have a choice on how fast we can drive on the roads. We do not make our own decisions on the quality of tyres on our cars or on whether we should use seat belts. Perhaps those who argue that this measure is an attack on choice would be opposed to those provisions. We do not have freedom to employ someone and then decide for ourselves the health and safety standards that should apply, if any. We do not have the freedom to pay an employee however little we want. We do not have the freedom—I am not sure whether this applies in private clubs—to ignore food and hygiene regulations. We do not have the freedom to ignore fire regulations. The reality is that one person's choice, or expression of choice as he or she would see it, leaves another person open to risk or imposition. To argue that the choice or freedom goes in only one direction is a little misleading. That applies to this amendment. Frankly, it is special pleading dressed up in the flag of a very selective choice for some people, when it could potentially be to the serious disadvantage of others.

If one accepts the overwhelming medical evidence and opinion—I appreciate that there are Members of your Lordships' House who obviously do not—that exposure to second-hand smoke causes health problems, including premature death, what is the case for denying the protection to those who are employed in the 20,000 licensed members' clubs that we have been told about and for discriminating against them in this way? As has been said, many private clubs have bars that compete with local pubs. Exempting them from this legislation would create unfair competition and would, apparently, not be supported by the pub and hospitality trade.

It seems that it is a case of where you wish to stand on this issue. Do noble Lords wish to stand on the side of club members who can smoke elsewhere—in their homes or in the open air—or on the side of employees who cannot carry out their work elsewhere and in respect of whom employers owe a duty of care? Yes, it is an issue of choice. The vote will show where Members of your Lordships' House decide to make their stand.

Photo of Lord Gilbert Lord Gilbert Labour

My Lords, I had not intended to engage your Lordships' attention in this debate until I heard three quite extraordinary speeches from the Benches behind me. The first was made by a noble Lord who clearly is a medical expert. I would not dream of challenging his medical views one iota; it would be a presumption to do so. However, it seemed to me that the noble Lord displayed, at the same time as great medical knowledge, a rather limited acquaintance with the way in which British society runs. He said that we did not have the right to "impose" our smoke on other people. No one has to join or work in a club; no one has to work here; no one is imposing on anyone at all. The quite extraordinary concept that driving along a motorway is in any way comparable with going into a members' club leaves me speechless. I am only sorry that my noble friend's amendment is less ambitious than I would have loved it to be, but I totally support it.

Photo of Lord Faulkner of Worcester Lord Faulkner of Worcester Labour

My Lords, it will not surprise your Lordships to know that I oppose this amendment. I hope very much that the House will reject it. I should declare my interest as a trustee of the Roy Castle Lung Cancer Foundation. As many of your Lordships are aware, Roy Castle was a much loved and popular entertainer who contracted lung cancer from the effects, so he and his widow believed, of working in smoky clubs. He never smoked, but he contracted lung cancer and tragically died of it. When he set up the Lung Cancer Foundation, he was determined that as much as possible should be done not only to treat people who are diagnosed with lung cancer, but also to persuade people that others should not die in the same horrible way as he did.

We are not talking about a small section of the British community—the private membership clubs. As my noble friend Lord Pendry pointed out, there are something like 20,000 of them. An estimate was given by a Conservative MP on 14 February that the number of employees who work in those clubs is 165,000 or more. That was not denied by the Secretary of State, so we can imagine that it is a realistic figure. Clubs are not run by one or two volunteers in country areas. They are serious places of employment. In many localities, they are run alongside the local pub, wine bar and restaurant.

We must bear two things in mind. First, taking account of the debate that we had on the earlier amendment and the very decisive decision that your Lordships took about the risks of second-hand smoke and the undesirability of maintaining smoking in restaurants and pubs, as well as the provision for private areas for smokers, we must ask whether we have a right to say that that law does not apply to private members' clubs. My noble friend Lord Rosser alluded to a number of examples where the law naturally applies to private members' clubs. The House is indebted to the noble Lord, Lord Lester of Herne Hill, for pointing out the excellent work that he did to ensure that our race relations legislation applies equally to private members' clubs. I only regret that the Private Member's Bill that I introduced in your Lordships' House to eliminate sex discrimination in private members' clubs did not get passed in the other place. However, I remind noble Lords that it went through your Lordships' House.

The main issue is whether employees are entitled to protection. The special nature of clubs was the basis of a letter that I received from the secretary of the clubs trade association, which said that they are special places and deserve a special place in British society. Up to a point that may be so. However, is anyone suggesting that if a club is infested with asbestos, the club management can say to the people who work there, "Don't worry about this; you do this at your own risk and we will not allow the normal health and safety legislation to apply to you when we ask you to take it out"? Of course, we would not do that. Given that your Lordships are clearly of the view that second-hand smoke is dangerous, the protection of workers in clubs is also important.

My noble friend Lord Pendry referred to the Labour Party election manifesto. At the end of last week, he was kind enough to write to us on these Benches drawing our attention to that. I suspect that some of my colleagues were a little surprised to discover on reading Friday's Guardian that the organisation and circulation of that letter had been funded by the Tobacco Manufacturers' Association, which is not a body one normally associates with Labour Party policy. But, if we put that to one side for a moment, the party manifesto needs to be addressed. The noble Lord, Lord Pendry, was right to refer to it.

The House must take account of what the Government did once they had been re-elected and once they had decided to embark on legislation on smoking and health. They had already given a commitment that they would consult on these provisions, and they consulted over the course of last summer. This test of public opinion, I would stress to your Lordships, is crucial. Fifty-seven thousand people responded to that consultation. According to the Department of Health, the vast majority of them—four-fifths—called for the proposed policy in the Labour Party manifesto to be changed to a complete ban on smoking in all enclosed public places and workplaces. The Department of Health added that the vast majority of those responding believed that, as membership clubs are workplaces, there should be no exemptions.

Photo of Lord Tebbit Lord Tebbit Conservative

My Lords, will the noble Lord give way?

Photo of Lord Tebbit Lord Tebbit Conservative

My Lords, I am most grateful to the noble Lord because he has come up with another very useful and new doctrine which I hope will be adopted by the Government—that is, that if a large number of people in opinion polls say that they are against a proposition which was in the Labour Party's manifesto, it should be dropped.

Photo of Lord Faulkner of Worcester Lord Faulkner of Worcester Labour

My Lords, it is not a suggestion that a commitment should be dropped. The Government very sensibly consulted on how the policy should be implemented, and when they discovered that the proposal to exempt private members' clubs and, indeed, pubs that do not serve food, had absolutely no support whatever, it was not surprising that the House of Commons was given the opportunity, on a free vote, to come to a view on whether that policy should survive. As your Lordships know, the decision to remove this exemption—

Photo of Lord Russell-Johnston Lord Russell-Johnston Liberal Democrat

My Lords, I am sorry to interrupt. On what basis was this consultation carried out? Was it done in such a way that all views were tested, or was it done selectively?

Photo of Lord Faulkner of Worcester Lord Faulkner of Worcester Labour

My Lords, I am sure my noble friend Lord Warner will be delighted to share with the House the basis on which the department conducted the consultation when he replies to the debate, or perhaps now.

Photo of Lord Warner Lord Warner Minister of State (Reform), Department of Health, Minister of State (Department of Health) (NHS Reform)

My Lords, I am always keen to help the House be better informed on this subject. Those who attended the Grand Committee, which is not very many in this House who are speaking with great authority on this subject, would have learnt that we consulted a wide range of stakeholders and interests after the election, many of whom reflected the views of a much larger group of people. There were 57,000 replies. These were replies not from individuals but from major organisations. I can satisfy the noble Lord's thirst for knowledge in this area by sending him a copy of those documents so that he is better informed on this issue. As my noble friend Lord Faulkner is saying so eloquently, they demonstrate that a very large number of people and organisations in this country took a different view from that which had prevailed when the manifesto was drafted.

Photo of Lord Faulkner of Worcester Lord Faulkner of Worcester Labour

My Lords, that more or less brings me to the end of what I want to say. The outcome of that consultation was the vote in the other place on 14 February. There was a majority of 384 to 184, and 276 Labour Members of Parliament—all of whom had been elected at the May elections, all of whom perhaps can be regarded as the guardians of the manifesto—voted for it. They outnumbered the "Noes" on the Labour side by five to one. I hope we will have exactly the same result in this House if this goes to a Division today.

Photo of Lord Stoddart of Swindon Lord Stoddart of Swindon Independent Labour

My Lords, I wish to speak very briefly on this and to take up the point raised by the noble Lord, Lord Tebbit. As regards the remarks of the noble Lord, Lord Faulkner, about the noble Lord, Lord Pendry, and getting assistance from the TMA, he will realise that many of the briefings which have been provided to Members on all sides of the House have been from ASH and other anti-smoking organisations which have been subsidised to the extent of £2,691,848 by the Government over the past five years. That is a yearly average of £538,369 from the public purse. We all get help from time to time from various organisations and the TMA is just as entitled as the Government to subsidise briefings that are made in relation to discussions in this House.

My point about the remarks of the noble Lord, Lord Tebbit, concerns the manifesto commitment. I really must say something in support of the Government here because they did in fact try to honour their manifesto commitment. The original Bill they put before the House of Commons was, of course, honestly in accordance with their manifesto commitment. So the Government did their best. But, I am afraid, the House of Commons—and this was carried by Labour Members of Parliament—decided otherwise.

The noble Lord, Lord Faulkner, and others at the Committee stage tried to persuade me and others that a manifesto commitment could be overturned by Back-Bench Members of the House of Commons. But I have to remind the House that Back-Bench Members are just as committed to the manifesto as Front-Bench Members. I just want to correct the noble Lord, Lord Tebbit, and to say that the Government did at least try to uphold the manifesto commitment. It was unfortunate that it was spoilt by the Secretary of State for Health, who, after recommending the Bill to the House of Commons, actually voted against it. That is a great pity.

Photo of Lord Warner Lord Warner Minister of State (Reform), Department of Health, Minister of State (Department of Health) (NHS Reform)

My Lords, I was so taken aback by the support for the Government of the noble Lord, Lord Stoddart, that I almost dozed off. I apologise.

Amendment No. 5 would reinstate the possibility of exempting membership clubs from the smoke-free provisions, as a number of noble Lords have said. I have to remind noble Lords that the issue of whether or not private members' clubs should be exempt from the smoke-free provisions was the subject of a free vote at the Report stage in the other place. The clear view that was expressed there was that private members' clubs—and, of course, other licensed premises—should be treated in the same way as other public places and workplaces. On the first vote, the majority in favour of extending the ban to membership clubs was 200; on the second vote on whether the ban should extend to membership clubs and all other licensed premises the majority grew to 284. In short, the House of Commons took the view that the legislation should go further than the position in the Labour Party's manifesto in the interests of the public health.

I am not trying to disguise that fact. That was the decision that was taken in the other place. It is the Government's firm view that that was the right decision, both in terms of public health and in reflecting public opinion.

A number of noble Lords have referred to the issue of why the situation changed. My noble friend Lord Faulkner cited the change in public opinion reflected in the post-election consultation. We have always said as a Government that we would listen to public opinion on the smoke-free provisions in the Bill. That is why we offered a public consultation after the election. Our original proposals offered a balance between minimising the risk to workers and non-smokers whilst retaining some places for smoking. However, as I said earlier, we listened to many different views inside and outside Parliament and the growing opinion in England in support of a more comprehensive set of measures.

When the Labour Party's manifesto was drafted, public support for smoke-free pubs and bars was not as strong in England as to warrant comprehensive legislation. It was, as I think a number of noble Lords have said, both today and at the Committee stage, about 50 per cent in favour of a ban. A large majority of the population in England now support a law to make pubs and bars entirely smoke free. While only about half the population supported entirely smoke-free pubs and bars in England in April-May 2004, in under two years—that is, by the end of 2005—that proportion of support for a complete ban had risen to two-thirds and looked as though it was continuing to rise.

It shows great credit that the Government are prepared to listen to that changing mood on something which a number of noble Lords have said is about culture. The culture of public attitude is changing on this issue. I accept that it may not be changing in one or two places in this House quite as quickly as public opinion, but it is changing in this particular area. The other place voted to create a level playing field in the hospitality sector both in economic terms and, importantly—as a number of noble Lords have said—in terms of protecting the health of workers and patrons.

As the noble Lord, Lord Walton, made clear, this amendment would create unfair competition for a large section of the hospitality industry. All pubs, bars and restaurants would have to become smoke-free, while the membership club next door could continue to permit smoking. Private clubs with bars frequently compete with pubs in their local area. It is understandable then that the pub trade is strongly opposed to this amendment. In an editorial on 26 January, the Morning Advertiser—the newspaper of the pub industry—recommended that,

"the 20,000 members clubs in England and Wales must operate on the same lines as our pubs. If they do not, the Government will have created an explosive situation that could tear communities apart in many regions of the country. The trade must now switch its focus to persuading the Government that only a total ban is fair".

The amendment would also result in disparities in protection from second-hand smoke for workers or patrons in membership clubs compared with those in other hospitality venues. Work in a membership club is similar, if not identical, to work in other hospitality venues. That is the reality of the position in most clubs, as a number of noble Lords have correctly identified. Yet this amendment would mean that a person working behind the bar in a membership club would be expected to breathe hazardous second-hand smoke while a person working behind the bar in a pub would be protected under the law. That is the situation that we would create if we passed this amendment. I know which side of the argument I and the rest of the Government want to stand on.

In a press notice on 27 October 2005, the British Institute of Innkeeping stated that the pub trade,

"strongly opposes the proposal that members' clubs are exempt from the ban. If the basis for banning smoking is to protect staff working in licensed premises, those working in members' clubs deserve the same protection. Allowing smoking in members' clubs would lead to a migration of drinkers from local pubs into the members' clubs, which could essentially become smoking clubs. This loss of custom to small licensed premises could drive them out of business".

That is the industry and not some nanny state speaking on these issues.

The Bill will ensure a level playing field for the hospitality industry, equal protection from harm for all workers in the hospitality industry and consistency with smoke-free legislation in Scotland. A bit of consistency in that area is no bad thing.

Photo of Lord Pendry Lord Pendry Labour

My Lords, the debates on this amendment and the previous one have brought out some good arguments on both sides. I begin by saying to the noble Lord, Lord Faulkner, that I happen to know who gave the Guardian that leak. As the noble Lord, Lord Stoddart, said, when we are bereft of secretarial assistance in this place, we are sometimes only too happy to take up someone who posts you something with which one agrees as an individual. I hope that not too much store is put by that.

I am bothered by the manifesto commitment. The Labour Party's policy was derived from months of discussion within the party. The ministry poll went out to all kinds of people. They may not have been Labour supporters; they may not support anyone. They came up with a different conclusion. I have never believed in vox populi, vox dei, but it would appear that my Front Bench does. The Labour Party, through its own machinery, determined this policy in its manifesto commitment and it should be unravelled only within the party itself. I do not expect all noble Lords opposite to agree but that point about manifesto commitments must be recognised. This has been a healthy debate and, as a result of a number of views that have been made in favour of the amendment, I would like to test the opinion of the House.

On Question, Whether the said amendment (No. 5) shall be agreed to?

Their Lordships divided: Contents, 97; Not-Contents, 157.

Division number 2 Private Parking: Ports and Trading Estates — Health Bill

Aye: 95 Members of the House of Lords

No: 155 Members of the House of Lords

Ayes: A-Z by last name

Tellers

Nos: A-Z by last name

Tellers

Resolved in the negative, and amendment disagreed to accordingly.

Photo of Lord Warner Lord Warner Minister of State (Reform), Department of Health, Minister of State (Department of Health) (NHS Reform) 7:05 pm, 19th June 2006

moved Amendment No. 6:

Page 3, line 9, at end insert—

"(4A) For the purpose of making provision for those participating as performers in a performance, or in a performance of a specified description, not to be prevented from smoking if the artistic integrity of the performance makes it appropriate for them to smoke—

(a) the power in subsection (1) also includes power to provide for specified descriptions of premises or specified areas within such premises not to be smoke-free in relation only to such performers, and

(b) subsection (3) does not prevent the exercise of that power as so extended."

Photo of Lord Warner Lord Warner Minister of State (Reform), Department of Health, Minister of State (Department of Health) (NHS Reform)

My Lords, the amendments in this group all relate to making exemptions in regulations for those participating as performers in a performance where the artistic integrity of the performance makes it appropriate for them to smoke. Amendments Nos. 6 and 7 are the key amendments. Amendments Nos. 15, 17, 18, 19 and 21 are consequential amendments.

Both my noble friend Lady McIntosh and the noble Earl, Lord Howe, set out the case during Grand Committee for such an exemption. Just as my colleague Caroline Flint did in the other place, I, too, gave a reassurance that it was the Government's intention to make an exemption for artistic performances but that the detail, as with all proposed exemptions, was a matter for the regulations. However, the work conducted by departmental officials to ensure that such an exemption could be forthcoming revealed some technical problems which meant that it was not possible to remain silent on the face of the Bill yet still make the appropriate exemptions. Let me explain.

Clause 3(1) provides a general power to exempt premises from the smoke-free provisions. Although we have given a broad description of the main types of premises that will be exempt in subsection (2)—premises where a person has his home, or is living, whether permanently or temporarily—we intend to make exemptions for a small number of other, more unusual, premises. The general power is there specifically to cater for unusual circumstances without having to try and come up with a comprehensive list. A list would be inflexible and would provide no scope for making any further exemptions should a good case be made for exempting a particular set of premises in the future. So other than the broad description in subsection (2), we have deliberately tried to avoid listing any special case. However, when considering exemptions for artistic performances, it became clear that it would not be possible to rely on this general power in all circumstances because of the prohibition in subsection (3) on making any exemptions for licensed premises.

Many theatres and other performance spaces carry on their activities under just one licence. That licence is likely to cover not only the whole of their premises but also their alcohol sales and theatrical performances. In these circumstances, therefore, the prohibition in subsection (3) comes into play. In other words, it would be unlawful to make an exemption.

With Amendment No. 7, we have relaxed that prohibition so far as is necessary to allow certain performers to smoke during a performance in all possible venues. So although we were keen not to list "special cases" on the face of the Bill, I hope that my noble friend Lady McIntosh will appreciate our efforts to make absolutely sure that our promises to make exemptions for artistic performances can be upheld.

I felt it was important to explain these technical obstacles, as I am sure my noble friend and the noble Earl, Lord Howe, will appreciate, but no doubt welcome, the somewhat different shape this clause has now taken. Of course, the detail of the exemption will still be a matter for the regulations. Amendment No. 7 simply clarifies that performances include such things as plays or a performance given in connection with the making of a film or television programme. It also makes it clear that exemptions can be made in the regulations for rehearsals.

Amendments Nos. 15, 17, 18, 19 and 21 are consequential amendments. I beg to move.

Photo of Baroness McIntosh of Hudnall Baroness McIntosh of Hudnall Labour

My Lords, I thank my noble friend for making this exemption possible. Despite the fact that, as he explained, it arose out of a technicality, it is none the less extremely gratifying that the arguments have been accepted and that the exemption, or notification of it, will be on the face of the Bill. We had not expected that and are grateful for it. I speak on behalf of my colleagues in the theatre industry and the wider entertainment industry when I say that.

I think that I can also say with confidence that those colleagues will in no way seek to find any loopholes or abuse the privilege that the exemption will give them. I hope that my noble friend and his colleagues in the department will seek the help of people in the industry in drafting the regulations so that they are as tightly constructed as possible, as well as being helpful to the industry and for the general purposes of the Bill.

Photo of Earl Howe Earl Howe Shadow Minister, Health

My Lords, I welcome these amendments and thank the Minister for responding so positively to the debate that we had in Grand Committee on the issue of theatrical and other sorts of performance. The concession is very much appreciated not only by me but, as the noble Baroness said, the theatrical community as a whole. I have a couple of questions. I take it that, in Amendment No. 7, paragraph (a) of new subsection (4A) means precisely what it says and that the list of performances mentioned there is not meant to be exhaustive. For example, opera is not mentioned. If a performance of "Carmen" were to include, as it often does, the factory of women smoking in Act One, that would presumably be covered by the exemption, as, I take it, would smoking in any other sort of performance, provided that it was appropriate in terms of its artistic integrity.

Secondly, I note that paragraph (b) in Amendment No. 7, which refers to rehearsals, states:

"if the regulations so provide".

I hope very much that they will so provide. Actors are professional people. They need to rehearse fully in order to give of their best. If they need to smoke as part of a performance they should be permitted to do so in rehearsal as well.

I very much welcome the fact that the Bill at least allows the possibility of rehearsals to be exempted, but has a decision been taken on this and, if it has not, will the Minister look as sympathetically as possible on this aspect?

Photo of Baroness Barker Baroness Barker Spokesperson in the Lords, Health

My Lords, I, too, welcome the way in which the Government have taken on board some of the issues that were presented to the Minister during Grand Committee. Rather like the noble Earl, Lord Howe, I want to ask the Minister for clarification of whether paragraph (a) in Amendment No. 7 refers to places being used as locations for films.

Secondly, as the noble Earl, Lord Howe, said, will broader artistic performances be included when the regulations are made?

Photo of Lord Stoddart of Swindon Lord Stoddart of Swindon Independent Labour

My Lords, like other noble Lords, I welcome these amendments very much. However, they drive a coach and horses through the arguments of those noble Lords who have said that a single whiff of cigarette smoke would be dangerous to them. In a performance—whether a rehearsal or not—it is not only the performer who would be smoking. His second-hand smoke would be inhaled by the ancillary staff as well as the fellow actors while he is smoking. Although I welcome the amendments, they show up the absurdity of some of the arguments that have been used during the debate this afternoon.

Photo of Viscount Simon Viscount Simon Deputy Speaker (Lords) 7:15 pm, 19th June 2006

My Lords, the noble Lord, Lord Stoddart of Swindon, referred to people smoking and second-hand smoke. I cannot take the risk of going to any performance whatever for that reason.

Photo of Baroness Morgan of Drefelin Baroness Morgan of Drefelin Labour

My Lords, can the Minister reassure me with regard to this amendment? I would be concerned if the amendment were to result in the promotion of product placement. I am sure that that is not the desired effect, but I would like to hear from the Minister some recognition that product placement—people smoking in films and entertainment—should not be promoted. I am sure that he would agree with me on that.

Photo of Lord Warner Lord Warner Minister of State (Reform), Department of Health, Minister of State (Department of Health) (NHS Reform)

My Lords, the noble Lord, Lord Stoddart, mentioned a coach and horses. I do not think that Cinderella would qualify in terms of artistic integrity.

Photo of Lord Stoddart of Swindon Lord Stoddart of Swindon Independent Labour

My Lords, Cinderella would be at far more danger from stoking the fire than having a whiff of cigarette smoke.

Photo of Lord Warner Lord Warner Minister of State (Reform), Department of Health, Minister of State (Department of Health) (NHS Reform)

My Lords, the noble Earl, Lord Howe, and others raised the issue of whether paragraph (a) in Amendment No. 7 is exhaustive—it is not. Opera would be included where it is part of the artistic integrity of the performance. The exemption in paragraph (a) applies to the performer not the place, so filming on location would be covered where appropriate.

I must say to my noble friend that I cannot conceive of any set of circumstances at the moment where product placement would qualify in terms of artistic integrity, but I am happy to put that in writing to her.

There is provision for rehearsals to be dealt with in the regulations. There will need to be full consultation with the industry in this area. I know that there are some concerns on the part of Equity, for example, that rehearsal rooms and other areas in the theatre should not cause their members to be exposed to second-hand smoke. There will have to be a full discussion with the industry about the precise phrasing of the regulations, but we stand by our decision to give exemption on the basis of artistic integrity in relation to particular performances.

On Question, amendment agreed to.

Photo of Lord Warner Lord Warner Minister of State (Reform), Department of Health, Minister of State (Department of Health) (NHS Reform)

moved Amendment No. 7:

Page 3, line 19, at end insert—

"( ) For the purposes of subsection (4A), the references to a performance—

(a) include, for example, the performance of a play, or a performance given in connection with the making of a film or television programme, and

(b) if the regulations so provide, include a rehearsal."

On Question, amendment agreed to.

Clause 4 [Additional smoke-free places]:

Photo of Lord Naseby Lord Naseby Conservative

moved Amendment No. 8:

Page 3, line 25, at end insert—

"( ) The power to make regulations under subsection (1) is not exercisable so as to specify any place or description of place where a person has his home, or is living whether permanently or temporarily."

Photo of Lord Naseby Lord Naseby Conservative

My Lords, we know that Clause 4 enables the making of,

"regulations designating as smoke-free any place . . . that is not smoke-free under",

Clause 2, subject only to the national authority being,

"satisfied that, without the designation, persons present there would be likely to be exposed to smoke".

Responding to amendments to this proviso in Grand Committee, the Minister undertook to come back on Report with an amendment raising the threshold for using the power, which he has done. However, it is still arguable that Clause 4 could enable smoking to be prohibited in an individual's home, which is not a work or public place but, in terms of Clause 4(1), is not,

"smoke-free under section 2".

It is well known that banning smoking in the home is an objective of the most ardent anti-smoking activists. Indeed, we heard this afternoon from the noble Lord, Lord Clinton-Davis, that he falls into that category. So regardless of the formal expressions of the right to a private life expressed in Article 8 of the European Convention on Human Rights, which is in any event subject to the UK's continued adoption of the convention and—this is important—to the right not being claimed to be overridden by health reasons, it would be preferable to put beyond any doubt the fact that regulations made under Clause 4 may not designate an individual's home or accommodation as smoke-free.

In Grand Committee, the Minister said:

"Premises that are to be exempt will remain exempt indefinitely".

Unfortunately, he went on to say,

"but we will review the legislation, including exemptions, after three years".—[Official Report, 24/4/06; col.GC22.]

Can the Minister tonight be absolutely crystal clear to the House that everyone's home will be exempt indefinitely? I beg to move.

Photo of Lord Monson Lord Monson Crossbench

My Lords, when the noble Lord, Lord Naseby, first tabled this amendment I thought that perhaps he was being slightly paranoid but, having heard the noble Lord, Lord Clinton-Davis, this afternoon, I very much see what the noble Lord is getting at. There may be more people than we think who believe with the noble Lord, Lord Clinton-Davis, that smoking should be banned in the home.

I really wanted to speak about Amendment No. 9, which is a government amendment, which for some strange reason has been grouped with Amendment No. 8. I do not know why because they seem to bear no relation to one another but, as I take it that the Minister does not want to degroup it, I shall discuss it now. Amendment No. 9 is certainly an improvement on the present wording, so it is welcome as far as it goes. But the amendment uses the words "significant quantities of smoke" when it should really refer to "significant risk to health". There is considerable difference between the two; let me illustrate this with an example.

The noble Lord, Lord Renton, is one of the most assiduous and energetic contributors to your Lordships' deliberations, as I am sure your Lordships will acknowledge. When he is not in the Chamber or the Division Lobby—and I saw him in the Lobby this afternoon—he keeps himself hale and hearty by walking along to the Truro Room, there to inhale deep lungfuls of second-hand tobacco smoke while carrying out his preparation and research. Clearly, the noble Lord, Lord Renton, is exposed to "significant quantities of smoke" but, equally, this does not appear to pose a significant risk to his health, as the noble Lord is in his 98th year. Will the Minister take that on board with a view to accepting an amendment to improve the wording as I have suggested at Third Reading?

Photo of Baroness Howarth of Breckland Baroness Howarth of Breckland Crossbench

My Lords, I briefly ask a question about the amendment tabled by the noble Lord, Lord Naseby. I am an ardent anti-smoker, as anyone who heard me speak in previous stages of debate on this Bill, in Committee and at Second Reading, will know, but I decided that the arguments had been so thoroughly gone through there that I would not join in this debate. However, I want to ask about this because it is a new area. Should the Government accept the noble Lord's amendment, although given the Minister's mood this afternoon that seems unlikely, I would like to be assured that nothing in the amendment would mean that any worker going into a home was put in difficulty in terms of their employment.

As the Minister will know, the domiciliary care organisations are extremely concerned about what will happen to protect home care workers going into homes where they will be exposed to second-hand smoke. While I am sure that no doctor, paramedic or social care worker would wish to put any vulnerable person in their care at risk, it is essential that we understand the complexities and the difficulties that that will cause for some workers in relation to second-hand smoke. I want to make sure that this amendment, were it accepted, would not complicate that already complicated issue.

Photo of Lord Tebbit Lord Tebbit Conservative

My Lords, I have two points on which I should like some guidance from the Minister because I am not sure that I am reading this legislation correctly. One relates to an issue that the noble Baroness has just raised. Is a private home in which carers are employed bound to be a smoke-free zone? That is to say, are carers protected?

I must say that in the case of my own home I rather turn around from the position from which I have spoken today, in that we have more trouble with carers who smoke in our smoke-free home than there is any risk to carers to carers coming in and having to breathe smoke from cigarettes that my wife and I have smoked—because neither of us smokes. I do not know where the legislation lies there, and I should be grateful for some clarification. It might help other people as well.

Secondly, Clause 2(2) says:

"Premises are smoke-free if they are used as a place of work . . . by more than one person"— and then there are some caveats or enlargements, and,

"where members of the public might attend for the purpose of seeking or receiving goods or services".

Then they fall into the smoke-free category.

As I understand it now, a flat used by two whores or two rent boys is no longer regarded as brothel that should be closed down, but is a place of work. Will it be the effect of this Bill, if it is enacted as it is, that while most things could go on in such premises, some of which some of us might regard as distinctly unhealthy, the one thing that would be prohibited would be smoking? Even more, I understand that such premises do not have to give access to medical officers of health. As I understand the Bill—and I stand to be corrected and am sure that the Minister will have enormous fun in correcting me if I am wrong, the anti-smoking inspector will have the right to go there to ensure that in the aforesaid whore's or rent boy's bedroom there is a notice that says "no smoking". Now I think that there are worse things than smoking that might be going on—but I should just like to know whether my reading of the legislation is correct.

Photo of Baroness Finlay of Llandaff Baroness Finlay of Llandaff Crossbench

My Lords, I want to explain to the noble Lord, Lord Naseby, why I think that there is a real problem with the amendment that he has tabled in relation to Wales. The National Assembly for Wales had a committee on smoking in public places which was chaired by Val Lloyd, AM, and reported in May 2005. The committee worked out the areas that it would like to make exemptions for. The places that the National Assembly for Wales designated and the wording of the amendment are in conflict. The amendment states that it would be,

"any place or description of place where a person has his home".

The exemptions outlined in the report from the Assembly include,

"designated areas in long-stay hospital units . . . designated areas in residential and nursing homes . . . designated areas of prisons".

So there is a real conflict with the amendment, with nothing specifying that Wales would be exempt. Wales has waited a long time to be able to have provisions to make is own regulations.

Photo of Lord Naseby Lord Naseby Conservative

My Lords, of course it is perfectly within the powers of the Welsh Assembly to provide its own amendments to the regulations, so I do not know that England should necessarily be dictated to by the situation in Wales.

Photo of Baroness Finlay of Llandaff Baroness Finlay of Llandaff Crossbench 7:30 pm, 19th June 2006

My Lords, I think that the problem is that we are now dealing with the primary legislation; the secondary legislation comes later. The National Assembly for Wales, as I understand it, would be bound by this clause. Perhaps the Minister could clarify that. I understand that it will not be until after the Government of Wales Bill has passed that the Assembly will be able to put forward an Order in Council to have the powers to overturn the primary legislation aspect to the Bill. That is a long way down the road. We are still debating the Government of Wales Bill and the Order in Council procedure is not well worked out. I am greatly reassured by seeing nods from my fellow Welsh Peers.

Photo of Lord Stoddart of Swindon Lord Stoddart of Swindon Independent Labour

My Lords, I would like to make a comment on each of the amendments. The first one, tabled by the noble Lord, Lord Naseby, is troubling—there is no doubt about that. A person's home is a person's home. In English parlance, it is his castle. I am extremely worried that some people may consider it not as his home but as their place of work. It really will cause enormous difficulties if there are people, particularly old people, who have smoked all their lives and depend on a cigarette for comfort but need the attention of the social services or doctors. Unless they stop smoking, which may kill them—and it could kill them, make no mistake about it—they will not get the attention that they need. That is a serious point, which needs clearing up. I hope that the noble Lord, Lord Warner, will be able to clear it up, perhaps not at this stage, but later.

The other point was raised by the noble Lord, Lord Monson. He makes the very reasonable point that we should be talking about people in the open air being exposed to significant risk of harm from smoke. If they are not at risk of harm from smoke, we are talking about something of a different order. I am pleased that the Minister has tabled this amendment, but I think that he could go a bit further. There has been mention of second-hand smoke being harmful in open-air situations, but I do not know of any study that says that a whiff of somebody else's smoke out in the open air is dangerous. I wonder whether the noble Lord would look at this provision and put in the caveat that people have to be at risk of harm from other people's smoke.

Photo of Earl Howe Earl Howe Shadow Minister, Health

My Lords, I am sure that none of us would wish to restrict the ability of the National Assembly for Wales to formulate its own legislation in this area. That aside, I would like to support my noble friend on the thrust of his amendment. I hope that we shall hear some robust reassurances from the Minister about private homes and domestic premises. I very much welcome Amendment No. 9, which responds extremely satisfactorily to the concerns that I and others raised in Grand Committee on the otherwise rather open-ended wording of Clause 4.

Photo of Lord Warner Lord Warner Minister of State (Reform), Department of Health, Minister of State (Department of Health) (NHS Reform)

My Lords, I begin by responding to Amendment No. 8, tabled by the noble Lord, Lord Naseby. This amendment seeks to ensure that the smoke-free provisions in the Bill cannot extend to private residential dwellings. Let me begin by reassuring noble Lords, as I tried to do in Grand Committee, that this Bill is about protecting people from exposure to second-hand smoke in enclosed and substantially enclosed public places and workplaces. That is what Clause 2 does. We have no intention of making people's private spaces smoke-free by law.

Clause 4 provides a power to make additional places smoke-free. These will be places that will not be enclosed or substantially enclosed, as defined by regulations under Clause 2, but where there is a risk of harm from second-hand smoke due to the inevitable close grouping of people. Examples might be sports stadiums, bus shelters and entrances to public buildings or workplaces. The Delegated Powers and Regulatory Reform Committee noted that the power in Clause 4 to designate additional smoke-free places could potentially be used to prohibit smoking in domestic premises. In my response to that committee, and during the debate in Grand Committee, I made it clear that the Government will implement smoke-free legislation in line with human rights requirements, including the right to respect for private life in Article 8 of the European Convention on Human Rights.

Photo of Lord Tebbit Lord Tebbit Conservative

My Lords, I think that I heard the Minister say that this legislation did not apply to private homes. That is, of course, true in general. Am I correct in saying that if, for example—and to use a rather less contentious example than earlier—physiotherapists offer services to people coming to their homes, that part of the private home used for physiotherapeutic treatment would be a smoke-free zone? Am I right in that reading of the legislation?

Photo of Lord Warner Lord Warner Minister of State (Reform), Department of Health, Minister of State (Department of Health) (NHS Reform)

My Lords, the noble Lord may just have to contain himself until I complete my peroration on this subject, in which I will try to cover some of the circumstances to which he has alluded. I will answer his question if he can wait patiently until I explain the structure of the legislation.

The approach that we have adopted is, as I have said, consistent with the example of an exemption from the requirement to be smoke-free given in Clause 3(2). The example in the Bill refers to enclosed work and public premises being exempt where they are a person's home, or a place where a person is living permanently or temporarily. Furthermore, the power in Clause 4 to designate additional smoke-free places will be tightly regulated and subject to the affirmative resolution procedure.

The provision in Clause 3 deals with a range of areas where people may be living permanently or temporarily but which are regarded as their home. A good example of this might be a pub or shop where a person lives in a flat above. In those circumstances, the shop is an enclosed public place and the flat above is a domestic residence, exempt from the provisions of Clause 3. In cases where people are, effectively, regularly conducting a business from their premises, that is regarded as business premises, but it will be up to people to make their own arrangements and to make these decisions.

The noble Lord, Lord Tebbit, raised a number of more common experiences as well as a more titillating experience, down which path he tried to tempt me. I say to the noble Lord—and to other noble Lords fascinated by such subjects—that we are not legislating for every conceivable set of circumstances. We are certainly not legislating for carers going into a person's home where they will be exposed to smoke. The noble Lord, Lord Tebbit, has mentioned his own experience in that area. I have no direct experience of some of the other circumstances to which he alluded. We cannot prescribe for all possible sets of circumstances in this legislation. I am not sure that the enforcement officers of the legislation will be so encouraged to move into some of those premises to carry out their public duties. As I said, we cannot legislate for every possible circumstance and it will be a matter for case-by-case agreement and common sense between the people involved.

However, I acknowledge the concerns raised in Grand Committee about the broad power in Clause 4 to make additional places smoke-free and the desire to strengthen the constraints on the Government's use of the power. That is why I have tabled Amendment No. 9, which raises the threshold for the exercise of this power to cases where, and I think it worth quoting,

"in the authority's opinion",

—the Secretary of State in the case of England and the National Assembly for Wales in the case of Wales—

"there is a significant risk that, without a designation, persons present there would be exposed to significant quantities of smoke".

We think that that wording makes it absolutely clear that the power cannot be used in cases where the exposure to second-hand smoke is unlikely or only very limited. I hope that that provides noble Lords with the reassurance that we are limiting our ability to use this provision under Clause 4 in the way that I have indicated.

I cannot say that we are tempted to go further down the path urged by the noble Lord, Lord Monson. We have taken a lot of advice on this from parliamentary counsel and we think that this is the right way of framing the restraint on our powers under Clause 4.

Photo of Lord Naseby Lord Naseby Conservative

My Lords, I think that this debate demonstrates the value of a Committee stage. There were deep concerns in Committee. I am pleased that the Minister has listened to them. As my noble friend said from the Front Bench, Amendment No. 9 is greatly to be welcomed. What the Minister said this evening has reassured me to a degree. I just hope that my worries will not materialise. The matter is now firmly on the record.

Photo of Lord Tebbit Lord Tebbit Conservative

My Lords, it occurs to me that Members of the House who are active smokers—and mention was made earlier of the cigar and pipe smokers or some such organisation of this House—had best see if they can vote for a Speaker of the House who is a smoker, since his apartments here would be his private home. He could then entertain them and smoking could continue in this building for many years to come.

Photo of Lord Naseby Lord Naseby Conservative

My Lords, I am not sure that it is for any noble Lord to advise what others should do in a free vote on the Speakership.

I am reasonably reassured. The Minister was quite clear. Let us hope that if a case does arise, that can be used in evidence. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Photo of Lord Warner Lord Warner Minister of State (Reform), Department of Health, Minister of State (Department of Health) (NHS Reform)

moved Amendment No. 9:

Page 3, line 27, leave out from "if" to end of line 28 and insert "in the authority's opinion there is a significant risk that, without a designation, persons present there would be exposed to significant quantities of smoke."

On Question, amendment agreed to.

Photo of Baroness Royall of Blaisdon Baroness Royall of Blaisdon Government Whip

My Lords, I beg to move that further consideration on Report be now adjourned. In moving the Motion, perhaps I may suggest that Report stage begin again not before 8.44 pm.

Moved accordingly, and, on Question, Motion agreed to.