Health Bill [HL] — Report (2nd Day)

– in the House of Lords at 3:32 pm on 6th May 2009.

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Votes in this debate

Clause 9 : Direct payments for health care

Amendment 32

Moved by Baroness Barker

32: Clause 9, page 8, line 18, leave out "any review of one or more" and insert "a review of all"

Photo of Baroness Barker Baroness Barker Spokesperson for Health 3:33 pm, 6th May 2009

My Lords, I return to the subject of direct payments. Noble Lords who followed the Bill in Committee will remember that although this is a policy that has strong support around the House, a great many questions remain unanswered about how the policy will work in practice and, in particular, about the effects it will have on continuity of service for patients.

Last week, the noble Lord, Lord Darzi, very helpfully shared with the Committee the range of submissions that have been received from primary health trusts and strategic health authorities for the sorts of services that might be provided to patients using individual budgets and direct payments. I thank him for sharing that information. I am moving Amendment 32 and speaking to Amendment 33 at the same time, which I hope will help the House move more speedily through our deliberations. When the noble Lord, Lord Darzi, revealed that there had been applications for services as disparate as maternity care and palliative care, I think that it became apparent that the potential scope of direct payments and individual budgets within the NHS was perhaps far wider than many had believed up to that point. Many who are strong advocates of the policy of giving people either a notional budget or an actual sum of money believed that we were talking about a very limited number of treatments for chronic conditions.

From the information which the noble Lord has shared with us, it is now apparent that these pilots have the potential to bring about enormous change in the way in which health services are planned and delivered. Noble Lords who took part in our deliberations in Committee will have noted that I referred in great detail to the IBSEN report on research into the pilot projects for individual budgets in social care. That was an extensive piece of research: perhaps one of the biggest pieces of research into social care that the department has done in recent years. Yet that report, detailed though it was, still could not answer a great many fundamental questions about the effectiveness and cost-effectiveness of individual budgets.

As I said in Committee, individual budgets in social care may well bring about provider failure. In fact, it is almost certain that they will do so, although provider failure may be less of a problem in social care than it would be in the NHS when we are talking about the potential for acute services to decline. I should inform the House that the noble Lord, Lord Darzi, was kind enough to enable me to meet the officials who will be responsible for commissioning the research into the pilots in health. I am most grateful to him for that.

I understand that the department intends there to be extensive research and believes that particular attention should be paid to the different demographics of people who will have individual budgets and to different conditions, but I still maintain that this is a policy of such potentially profound impact that there is a need for these pilots to be thoroughly and completely researched. Moreover, they should not, as the social care pilots were, be the subject of an announcement well before the research is completed. I remind noble Lords that in December 2007, before the social care pilots had been finished, the then Care Services Minister, Ivan Lewis, announced that individual budgets would be the way forward for all social care. That was misguided.

Amendments 32 and 33 should be viewed together. Amendment 33 would require PCTs taking part in these pilot projects in health to commission information, advice and support services. Noble Lords who took part in Committee will realise that the inclusion of the word "support" in the amendment is indicative of the fact that I took on board the comment made by the noble Baronesses, Lady Campbell and Lady Wilkins, that people who have individual budgets and direct payments often require more than information and advice.

I also listened to the arguments made by the noble Lord, Lord Darzi, in Committee when he stressed that the department did not wish to be prescriptive in its requirements on PCTs, but I believe that it is important that the House lays down a marker that says that information, advice and support must be provided. Individual users of services are free to ignore such a service and not to use it, but we need to say at this stage that the success of individual pilots depends on people who have individual budgets, and their carers, being able to access support and guidance that will enable them to find their way around a very complex service.

I have one final word to say in support of these two amendments. It is important to say again, as I did the other day, that the pilots in social care were introduced at a time when health and social care funding was being dramatically increased. These pilots will be introduced at a time when public services are facing unprecedented levels of demand. At such a time it would be perfectly understandable if commissioners and providers of services sought to make economies, some of which would be false. It is of the utmost importance for this policy, and for the service users, to include these two factors in the pilots at this stage. I therefore beg to move.

Photo of Baroness Wilkins Baroness Wilkins Labour

My Lords, if the noble Baroness, Lady Barker, is speaking also to Amendment 33 then perhaps I may say that I totally support her comments on the importance of support, advocacy and advice. Ensuring that these pilots go well and that any future direct payments in health are a success will definitely depend on ensuring that this amount of support and advocacy are in the Bill. Without that, and, as the noble Baroness says, with the economic situation ensuring that cuts will be made wherever possible, I fear for the future. I totally support her Amendment 33.

Photo of Lord Darzi of Denham Lord Darzi of Denham Parliamentary Under-Secretary, Department of Health, Parliamentary Under-Secretary (Department of Health)

My Lords, Amendment 32, laid by the noble Baronesses, Lady Barker and Lady Tonge, would make it an explicit requirement to have an independent review of all direct payment pilots. There is no difference of principle here. We intend to commission a robust and comprehensive evaluation for the pilot programme as a whole. I know that the noble Baroness, Lady Barker, is concerned about the potential effect of personal budgets on other services, as we discussed last week on the first day of Report. We want this to be examined in detail and our recently published tender for evaluation makes that clear. When the time comes, we want the evaluation to help to inform our decisions about the future of direct payments and whether changes need to be made. However, I recognise the importance of the issues which have been raised both today and last week and I accept that there may be a case for being more explicit in the Bill about our intentions. I undertake to consider those concerns and to report back at Third Reading. I therefore hope that the noble Baroness will feel able to withdraw the amendment.

Amendment 33, which the noble Baroness, Lady Barker, also tabled, deals with the provision of advice, advocacy and support for recipients of direct payments for healthcare. It will allow the Secretary of State to require primary care trusts,

"to commission advice, advocacy and support services", from third parties such as the voluntary organisations. Our policy has always been that people should be properly supported. That is the core principle of personal health budgets, as I made clear in Committee and as we emphasised in our policy document, Personal Health Budgets: First Steps. Again, I am happy to consider these issues further in the light of this debate and the debate last week. I shall consult the noble Baroness and report back to your Lordships' House on Third Reading. With that commitment, I hope the noble Baroness will agree to withdraw that amendment.

Photo of Baroness Barker Baroness Barker Spokesperson for Health

My Lords, I really am most grateful to the Minister for agreeing to look at both of these amendments. I agree that they may be technically defective, but I am immensely gratified that he has seen the importance of both issues. I beg leave to withdraw the amendment.

Amendment 32 withdrawn.

Amendment 33 not moved.

Clause 12 : Innovation prizes

Amendment 34 not moved.

Clause 13 : Trust special administrators: NHS trusts and NHS foundation trusts

Amendments 35 to 37

Moved by Baroness Thornton

35: Clause 13, page 13, line 25, leave out from "Act" to end of line 26 and insert ", if required by directions given by the Secretary of State;"

36: Clause 13, page 13, line 27, leave out "that may be prescribed" and insert ", if required by directions given by the Secretary of State"

37: Clause 13, page 14, line 3, leave out "make regulations requiring" and insert "direct"

Amendments 35 to 37 agreed.

Amendment 38

Moved by Lord Darzi of Denham

38: Clause 13, page 15, line 8, at end insert "and of the reasons for it"

Photo of Lord Darzi of Denham Lord Darzi of Denham Parliamentary Under-Secretary, Department of Health, Parliamentary Under-Secretary (Department of Health) 3:45 pm, 6th May 2009

My Lords, the break between Committee and Report has allowed me to reflect on the debate we had on the unsustainable provider regime. I brought forward Amendments 38 and 39 in response to the insightful comments made by the noble Earl, Lord Howe. He said that there was a need for the Secretary of State to explain the reasons behind his final decision, particularly if he does not follow one or more of the trust special administrators' recommendations. It is worth stressing at this point, given the transparent process set out in the Bill, that we expect that it would be unusual for the Secretary of State to depart significantly from the trust special administrators' recommendations.

As I said in Committee, it was always intended that the Secretary of State would give reasons for his final decision. On reflection, I think that the noble Earl made a compelling case for including such a requirement in the Bill. I agree that the Bill will benefit from the clarification on the point to achieve a level of transparency that will help build confidence in this process.

These amendments would place a requirement on the Secretary of State to explain the reasons for his decision in the notice of his decision in proposed new Section 65K(2) and 65W(2). I hope noble Lords agree that this amendment increases the transparency of the scheme, and I thank the noble Earl for suggesting this important improvement. I beg to move.

Photo of Earl Howe Earl Howe Shadow Minister, Health

My Lords, I very much appreciate the care and attention that the noble Lord has devoted to the points made in Grand Committee. I welcome these amendments and am grateful to him.

Amendment 38 agreed.

Clause 15 : Trust special administrators: Primary Care Trusts

Amendment 39

Moved by Baroness Thornton

39: Clause 15, page 20, line 4, at end insert "and of the reasons for it"

Amendment 39 agreed.

Amendment 40 not moved.

Clause 18 : Prohibition of advertising: exclusion for specialist tobacconists

Amendment 41

Moved by Earl Howe

41: Clause 18, leave out Clause 18

Photo of Earl Howe Earl Howe Shadow Minister, Health

My Lords, with this amendment we move to perhaps the most controversial part of the Bill: Part 3. But I should like to bring us back—I hope briefly—to the debate that we had in Grand Committee on the provisions in Clause 18 relating to specialist tobacconists. Specialist tobacconists, as many noble Lords will know, are shops which, as their name implies, specialise in stocking cigars, pipe tobacco, snuff and other upmarket products for the connoisseur smoker. They are few in number: there are only about 50 such outlets across the country as a whole.

My reason for tabling this amendment is very straightforward. Section 6 of the Tobacco Advertising and Promotion Act 2002 includes an explicit exemption for specialist tobacconists from the legislation banning advertising. It does so subject to three conditions. These are that the advertisement has to be inside or fixed to the outside of the premises; it cannot be for cigarettes or hand-rolling tobacco; and—the part that concerns me most—it has to comply with regulations governing advertising in specialist tobacconists.

As regards this last condition, the actual wording of the section is very clear. It states:

"(1) A person does not commit an offence under section 2 if the tobacco advertisement ... complied with any requirements specified by the appropriate Minister in regulations in relation to tobacco advertisements on the premises of specialist tobacconists".

Clause 18 removes this explicit exemption by giving the Secretary of State the power to decide whether the exemption should remain. In other words, it removes the existing certainty for specialist tobacconists under the 2002 Act. Therefore, one very straightforward question needs to be asked. Why is this clause needed when Ministers already have a power under Section 6 of TAPA 2002 to specify requirements in relation to tobacco advertisements on the premises of specialist tobacconists?

We have had an assurance from the Minister that the Government have no intention of removing the exemption for specialist tobacconists altogether; rather, they say that they intend to use the regulation-making power in Clause 18 to—and I quote the Minister—

"maintain the general exemption but ... for example to prohibit advertisements outside specialist tobacco shops or in shop windows where these are in view of the general public, including children and young people".—[Official Report, 5/3/09; col. GC 352].

If that is the Government's intention I have no problem with it. Incidentally, I hope the Minister can also confirm that there is no intention of preventing specialist tobacconists from displaying tobacco products inside their shops. I only ask why it is necessary to disapply Section 6 of TAPA, which already contains a regulation-making power, and replace it with another regulation-making power which would ostensibly enable the Government to achieve exactly the same thing. The Minister was kind enough to write to me on the matter but I would be grateful if she would briefly place her comments on the record. I beg to move.

Photo of Baroness Thornton Baroness Thornton Government Whip, Baroness in Waiting (HM Household) (Whip)

My Lords, Clause 18 replaces the existing exemption from the tobacco advertising ban for specialist tobacconists with regulation-making powers, as the noble Earl outlined. Currently, such shops are allowed to advertise their specialist products provided the adverts are either inside or fixed to the outside of their shop.

The new regulation-making power would allow us to limit tobacco advertising to the inside of specialist tobacconists only—adverts would no longer be visible outside their shops. This is an important element of our approach to tobacco control. Along with Clause 19, these new powers will help to eliminate unsolicited tobacco promotion, protecting children and supporting those people who want to quit. The noble Earl, Lord Howe, is right that the 2002 Act provides regulation-making powers with respect to advertisements in or outside specialist shops. However, there is explicit provision in the 2002 Act for specialist tobacconists to have adverts fixed to the outside of their premises. Regulations made under the existing powers could only specify requirements about outside adverts, not prohibit them altogether.

We want to prohibit all tobacco advertising that is visible to people who have not chosen to see it. We propose using the new regulation-making powers provided by Clause 18 to ensure that advertising of specialist tobacco products is not visible outside specialist shops. However, the noble Earl is right that there is no intention to limit advertising inside shops within the current regulatory framework. We do not want to unfairly penalise specialist tobacconists. We recognise they are involved in a legitimate trade and need to be able to attract customers. They would still be able to use their window displays to inform customers about what they sell by advertising tobacco accessories, such as pipes, or by listing the tobacco products they sell. They would still be able to advertise specialist products inside their shops.

In reviewing Hansard, I have realised that in Committee I said that the clause would still allow advertising on the outside of specialist shops. While the existing primary legislation expressly permits advertising on the outside of shops, the new provision would only allow such advertising if regulations provided for it. I apologise for that and hope that I have made the position clear in my letter to the noble Earl, which I am happy to share with the rest of the House and place in the Library.

By removing unsolicited tobacco promotion, Clause 18 supports the Government's aim to provide an environment in which not smoking is the easy choice, and I commend this clause to the House.

Photo of Lord Naseby Lord Naseby Conservative

My Lords, is the noble Baroness nit-picking? She must have had the representations that Members of the Committee have had from the Imported Tobacco Products Advisory Council. The quotation in section 2 of the letter shows that in 2006 the TNS Omnibus survey indicates that in the UK 83 per cent of cigar smokers and 96 per cent of pipe smokers are aged 35 and over. What is the point of being allowed to advertise inside the shop if we cannot get people in from the outside? These are specialist, tiny shops, small in number. If they cannot get people into the shop, what is the point of being able to advertise within the shop? This is not correct.

Photo of Baroness Thornton Baroness Thornton Government Whip, Baroness in Waiting (HM Household) (Whip)

My Lords, I take it that the noble Lord was intervening to ask a question before I sat down. I repeat that we do not wish to unfairly penalise specialist tobacconists. We recognise that they are involved in a legitimate trade. Regulations and the Bill are intended to allow them to continue to do that and to be able to attract customers.

Photo of Earl Howe Earl Howe Shadow Minister, Health

My Lords, I am grateful to my noble friend for asking for that clarification; it was helpful to receive the Minister's last assurance. However, I am also grateful to her for the assurances that she was able to give in the main part of her remarks, and I beg leave to withdraw the amendment.

Amendment 41 withdrawn.

Clause 19 : Prohibition of tobacco displays etc

Amendment 42

Moved by Lord Borrie

42: Clause 19, page 23, line 15, at end insert—

"( ) No offence is committed under section 7A if—

(a) the products are displayed at a place where tobacco products are offered for sale,

(b) the display is that of one packet only of each tobacco product which is offered for sale, and

(c) the display complies with such requirements as may be specified in regulations."

Photo of Lord Borrie Lord Borrie Labour

My Lords, I also speak to Amendment 43. The government proposal in Clause 19—the most fundamental, significant proposal on tobacco in the Bill—is to prohibit entirely any and all displays of tobacco products in retail premises. The stated objective of Clause 19 is to protect children from the promotion of tobacco products and to support those adults who are trying to quit smoking.

Everybody will know that in both supermarkets and smaller retail shops there are, usually behind the counter, gantries. Gantries are units displaying tobacco products in retail outlets. The effect of the Government's proposal in Clause 19 is that all those gantries and displays would have to be covered up in some way. My view, expressed in Grand Committee, was that Clause 19 should be removed entirely from the Bill. That proposal is shortly to be discussed under Amendment 46, tabled by the noble Earl, Lord Howe.

The Government's case for Clause 19 is seriously flawed. It is, to a large part, dependent upon dubious and highly speculative evidence from various Canadian provinces and Iceland. It ignores the fact that the display must nowadays in Britain be heavily weighed down with health warnings, "Smoking kills" being the most prominent indication behind the counter that any customer can readily see. It also ignores the huge success, as vouched for by the Chief Medical Officer, Sir Liam Donaldson, of the ban on smoking in enclosed public spaces, in terms of both compliance, which is incredibly high, and improvements in public health.

Noble Lords will see that my Amendment 42 is a kind of compromise, intended to permit some form of limited display in shops where tobacco products are often for sale. The display under my amendment would be limited to one packet only for each tobacco product offered for sale in those particular premises. I got to that point in thinking about how some compromise might be achieved by studying closely the words of my noble friend Lady Thornton:

"This is not about preventing any viewing ever of a cigarette pack by a child. But there is a big difference between seeing a single cigarette pack and being exposed to a large, brightly lit and colourful gantry in your local corner shop next to your sweets".—[Official Report, 9/3/09; col. GC 391.]

The noble Baroness went on to admit that some adult customers—although not all the time and not all that often—need a chance to see a particular cigarette packet before buying it. The rest—most—usually just go to the one that they are used to and which is their normal purchase. I have carefully followed the words of the Minister in drafting Amendment 42. The draft assumes that the Government wish to impose some regulations on the size of the area covered by a display to avoid any possibility of the "brightly lit and colourful" display coming in via a backdoor when the Minister, quite properly, is concerned about that.

Linked to Amendment 42, but on a somewhat different topic, is Amendment 43. Tobacco products are often displayed in places such as nightclubs and casinos where access to the premises is usually forbidden to anyone under the age of 18, and that is strictly controlled. No child could conceivably be influenced to take up smoking through tobacco products displayed in places where he or she has no access. Surely the Government will not justify the application of the ban to nightclubs by the need to protect adults who want to quit smoking. That would be a very tenuous argument for this application to nightclubs.

There may be people—perhaps even in this House—who have doubts about the effectiveness of the exclusion of those under 18 years old from nightclubs, but I emphasise the controls that the Licensing Act 2003 imposed, whereby the relevant premises licence or club premises certificate restricts access to individuals aged 18 or over. I also refer to the new system of licensing for door supervisors. Noble Lords may have referred to them in their time as bouncers but I believe that "door supervisors" is preferred by those concerned at present. Licensing was introduced for them in 2006 and I am indebted to my noble friend Lady Henig, who is chairman of the Security Industry Authority, for enabling me to appreciate the much improved image of door supervisors among the public and the police. There is greater trust now in their effectiveness because they have to undergo criminal record checks and training in health and safety, conflict resolution and awareness of drugs. With entry so comprehensively restricted for nightclubs and casinos to those over 18, surely there can be no question whatever of the display of tobacco products in such premises having any influence on children. I beg to move.

Photo of Lord Walton of Detchant Lord Walton of Detchant Crossbench 4:00 pm, 6th May 2009

My Lords, I very well appreciate that the noble Lord, Lord Borrie, has tabled this amendment as an attempt at compromise. However, the problem is that if one takes what he proposes literally, it would create enormous difficulty because since 1998 tobacco manufacturers have increased their ranges threefold within brands or brand families, with a popular brand such as Benson & Hedges increasing its brand family from four in 1998 to 12 in 2008. The amendment would persuade tobacco manufacturers to increase even further the number of different brands and brand variants available to maximise their brand presence in store. It would also make enforcement very difficult, even impossible, as it would mean that trading standards officers would have to check that only one pack of each branded variant was displayed. If prominent and colourful displays were still allowed, that would do very little to reduce attractiveness to children. I am afraid that I cannot support the amendment.

Photo of Baroness O'Cathain Baroness O'Cathain Conservative

My Lords, I, too, cannot support the amendment. I want to home in on the point which the noble Lord, Lord Walton of Detchant, has just made. By extending brand families, one encourages more people to try each new part of those families. I have hands-on practical experience of that but through launching a product which is good for you as opposed to one that kills. When I was head of the Milk Marketing Board for England and Wales we decided to launch semi-skimmed milk. We launched semi-skimmed, skimmed and homogenised milks; I think about eight to 10 different types were launched. They gave consumer choice. Not one of them encouraged children to try something on which they could get hooked, and thereby create a health hazard for them for the rest of their lives. Let us not forget that 65 per cent of adults who smoke started smoking when they were children. It is children who are enticed into these CTN shops, as they are called—confectioners, tobacconists and newsagents. There are sweets there; they are just on the corner; they are a nice place for kids to meet friends after school. The children see these cigarettes and are tempted.

We all know what it is like to be tempted. I cannot even go into a cake shop because I know exactly what will happen. The reality is that these children think it is smart. The reason I do not go into a cake shop is because I do not think it is smart to eat too many cakes. Children are subjected to peer pressure. They think it is clever to go behind what we used to call the bike shed. They are impressionable. It is not the Marlboro Man any longer; it is something about being with their group and daring one another. Which one of us has not been subjected to, "Come on, don't be so lily-livered, don't be so stupid. Try it"? They try it. Perhaps they do not like the first few cigarettes, but then they get hooked. We all know that most adults do not want to smoke, but they are addicted. If you hook them at the age of 12, 13, 14, or 15, my goodness, you have got them pretty well hooked for life.

What damage are we doing to the health of the nation? The amendment is just a mid-way stop between the Government's position and a free-for-all. I actually support the Government in this. I am sorry to say this, as I have the highest respect for him, but I think the noble Lord, Lord Borrie, is wrong.

Photo of Lord Judd Lord Judd Labour

My Lords, I have a great respect and, indeed, affection for my noble friend Lord Borrie, but on this amendment he fails to carry me. I find myself strongly behind the Government. We all know that packaging has become one of the principal techniques by which marketing is undertaken. It has much more effect in many ways than any other kind of advertising. In particular, new techniques are now being introduced which I find rather disturbing, such as the concept of power walls, where a carefully prepared display of different packets from different manufacturers makes a very attractive montage for the young. It also seems to me that the tobacco industry is surprisingly candid about just how important this is for it, the comments of the spokesman for Japan Tobacco International about Camel cigarettes really making the point. He said:

"The limited edition Camel packs have a fresh design in keeping with the brands long-standing reputation for innovation. Popular with style conscious adult smokers, Camel offers a high profit return for retailers so should be well stocked at all times".

The Camel pack was also described as being popular with "adult student populations", although I am not entirely sure how it is possible to target that particular adult section of the student community without affecting others.

The evidence is there. Our neighbours Ireland, lately in Finland, and particularly in 11 of the 13 Canadian provinces have taken legislative action in this respect and seen a very significant fall in the number of young people smoking. I believe the Government are absolutely right on this and they have my full-hearted support.

Photo of Baroness Tonge Baroness Tonge Spokesperson for Health

My Lords, I agree with everything that has been said about the effect this amendment will have on young people. If tobacco products and cigarette packets are on display, they will be encouraged to smoke. For me there is no doubt about that. I do, however, understand the spirit in which this amendment was tabled.

I would like to put on record that we have heard from retailers arguments about the cost of adapting their shops, the chances of crime being increased while they are reaching for cigarettes that have to be hidden away, or the increase in smuggling, and I do not really see how this amendment will help in any way. They still have to reach for the main bulk of their supplies of cigarettes, even if they have only one packet of each brand on display. I do not think that this will help retailers. It certainly will not help to discourage young people from smoking. Therefore, I urge the noble Lord to rethink.

Photo of Lord Naseby Lord Naseby Conservative

My Lords, I support the noble Lord, Lord Borrie, who has great experience of the world of competition. He will be aware, as am I, that the incidence of smoking among 11 to 15 year-olds has reached an all-time low. That is to be greatly welcomed. I imagine that the health education programme will continue on that front. Two sets of figures have been published. One set shows that 6 per cent of 11 to 15 year-olds have smoked one cigarette a week. Another government-supported survey shows a figure of 2 per cent. The Government are to be congratulated on the success of reducing the incidence of smoking among young people.

It remains a legal product. No Government have yet been brave enough to ban it. If it is banned, that is fine; but if it is a legal product, is your Lordships' House so arrogant as to suggest that there should be no product development and no line extension? What was the Milk Marketing Board doing? Line extensions. That is a perfectly normal situation for a consumer product company. If we are by the back door suggesting that we want to kill off the tobacco companies by preventing them developing any form of line extension, why do we not say so openly? If it is not that, those tobacco companies that produce different variations of their products are, I believe, justified in offering them to the consumer. That is what consumer choice is about.

Some people are so dedicated to anti-tobacco—I understand that stance—that they would rather that nothing was offered. I repeat that, so long as this product of tobacco, cigarettes and so on, is offered legally to the consumer, it is a very brave Parliament that says that there shall be no line development of any product in that field. I support the amendment proposed by the noble Lord, Lord Borrie.

Photo of Baroness Howarth of Breckland Baroness Howarth of Breckland Crossbench

My Lords, I support the Government's position and not the amendment proposed by the noble Lord, Lord Borrie. I am intrigued by the arguments made by the noble Lord about the tobacco trade. Clearly, there are two issues here. One is the large manufacturers, and the other is the plight of small businesses. We have all had a large number of letters from small businesses, and they deserve our understanding and sympathy.

My own village shop is absolutely crucial to the life of my village, and the whole community circulates around it. However, I doubt very much indeed whether this Bill will make our shop close. It is there for a wide range of goods and services. No one has yet banned the National Lottery, which seems to be a great joy for a large number of people in my village. I do not think that small businesses are going to suffer. We have heard a great deal about the costs of these gantries, with inflated stories on one side, and understanding that there are people who want to deliver these on the other. If noble Lords have not seen illustrations of these, I would encourage them to do so.

Why do I take this view about the benefits of the provision? Other noble Lords have not spoken a great deal about research into smoking among children. I have looked with interest at Professor Hastings' research, as well as the work in Canada—it is my field—and I know that we do not have longitudinal research. However, we have strong indicative research into the effects on the perception of gantries among children. I am continually bemused by the attitude of the industry. If gantries do not have any effect, as companies keep on telling us, why are they so keen to keep them? Why are they keen to carry on developing lines, as the noble Lord illustrated? We have a double argument here: it is important, yet it has no effect. Even if we cannot prove the effect on children, we can prove the risk, because, as noble Lords have said, children start smoking early. Most people who smoke may be 32 or over, but they have usually started very early and it is our duty to help our children to stop smoking.

We may not know other things, but we know from research that cancer kills. We know of the link between smoking and cancer. We know that smokers start early. We strongly suspect the link between advertising and consumption—otherwise, why the universal ban on advertising after all the arguments we went through some years ago? If we care about the lives of our children, why are we not enforcing the precautionary principle? I spent years in the Food Standards Agency worrying about the precautionary principle in relation to BSE and vCJD. We are now invoking the precautionary principle in relation to swine flu: one case closed down a whole school. When we know as much as we do and still do not emphasise the precautionary principle on behalf of the lives of our children and their future, we are abdicating responsibility. Therefore I support the Government and oppose the amendment.

Photo of Lord Stoddart of Swindon Lord Stoddart of Swindon Independent Labour 4:15 pm, 6th May 2009

My Lords, I congratulate the noble Lord, Lord Borrie, on producing these two amendments, which are worthy of great consideration. Indeed, I have considered them closely; but I have come to the conclusion that they do not go far enough. We shall come to further amendments that do go far enough.

Clause 19 is a restraint in trade. It prevents retailers and all purveyors of tobacco exhibiting their wares as any other trade can do. I believe that is an unacceptable imposition on thousands of small and medium-sized shopkeepers who sell tobacco. Therefore I am opposed to Clause 19 per se.

The Government argue that it will not affect retailers because it will not cost much to hide the displays of tobacco. However, everything that we have heard from independent people and retailers themselves shows that the cost will be very high, and in some cases prohibitive. It will not only cause inconvenience and perhaps danger to tobacconists, but will also put them at risk of going out of business.

The Government will say that that is rubbish, but that is exactly what they said when they banned smoking in public places. We warned them that public houses would close down all over the country, but they said, "Of course, they won't. The people who don't smoke will flock to the restaurants and public houses as they have never flocked before". But the truth is that we now have in Parliament a group for the protection of public houses because so many have gone out of business, robbing many of our communities of a social meeting place. Whether that was the Government's objective, I do not know. They do not seem to like criticism and they certainly do not respond to reasonable argument.

Retailers sell not just tobacco but all sorts of other things that we are told by the medical people and other health experts are very bad for us. Many retailers also sell alcoholic liquor. In my view, that is the most dangerous drug that people can consume. Yet, it is perfectly all right to display alcohol in fancy bottles with very attractive labels. Presumably children will see those, but will they take to drink and become alcoholics because they have seen a bottle on display in some retailer's shop? I do not believe it.

We are told from time to time that foods such as chocolate are bad for us. Chocolate products are about all you can see when you go into some retailers, so we are encouraging children to eat chocolate which the experts tell us is bad for us. Full-cream ice-cream is supposed to make you fat, yet in most retailers' shops cornets and so on are on display. There are all sorts of ways you can fill yourself up on ice-cream. Cream cakes and all sorts of other sweets are supposed to be bad for us.

Where are the Government going? Will they stop at cigarettes or tobacco products, or will they go for all those things in the future? I warn all those who like eating chocolates, who like a little drink now and again or who like ice-cream that they may be next on the list. Before very long, if retailers are treated in the same way as they have been treated over tobacco, they will have nothing to display at all. Their shops will be the most boring places to go into.

I do not like going into the medical aspects, but I might do so on the next amendments. I keep newspaper cuttings, particularly on this subject. The Daily Mail on 27 February had a big headline stating:

"Our lifestyles are killing us".

The report states:

"Almost 78,000 Britons develop cancer needlessly each year because of their unhealthy lifestyles. Researchers found that they could have avoided the disease by eating better, drinking less alcohol and exercising more".

There is nothing about cigarettes, as a matter of fact.

Thus, 78,000 people are at risk from eating and drinking and not having exercise. There is nothing about smoking. But then today, I read an article in the Daily Mail headed,

"Why smokers are burning fat as well as cigarettes".

The article states that when cigarette smokers stop smoking, they become fat. If they smoke cigarettes, they will not become fat. So what we really ought to do is to nullify the whole thing—because the figures are just about the same at around 80,000—by suggesting to fat people that they should smoke cigarettes in order to keep slimmer.

That is a logical thing to say, having read these articles. It to illustrate the fact that the anti-tobacco people concentrate on this one product which is supposed to be bad for us, but we really must be careful, because similar campaigns will be taken up against things that perhaps some of us like. I do not drink much alcohol, but other people enjoy it very much. We must be careful that the anti-smoking lobby, when it has completely got its way, does not turn on other people's delights. Although I congratulate the noble Lord, Lord Borrie, on bringing this amendment forward, I believe that subsequent amendments will more effectively help the small retailers who are at risk of going out of business.

D

A great deal of logic and common sense - well said sir!

Submitted by David Wright

Photo of Baroness Thornton Baroness Thornton Government Whip, Baroness in Waiting (HM Household) (Whip)

My Lords, like other noble Lords, I recognise the sentiment behind the amendments of my noble friend Lord Borrie. I assume that it is to achieve our public health objectives while minimising burdens on business; that is a laudable aim but, I fear, misplaced here. These amendments would seriously undermine the effect of removing tobacco displays. There would be only a partial display ban, which would not achieve the public health benefits but would increase the regulatory burden—something which I know would be of concern to my noble friend.

We know that the future of the tobacco industry depends on recruiting and retaining people to smoke. When we carried out our consultation on the future of tobacco control last year, we asked what, if anything, should be done about tobacco displays. There were three options: to retain the status quo, to introduce limited restrictions and to remove tobacco displays altogether. As noble Lords will be aware, we received overwhelming support for a complete prohibition. As may be expected, the tobacco industry opposed the ban, and many of those retailers who responded were also against change. But relevant here—

Photo of Lord Naseby Lord Naseby Conservative

My Lords, was there any consultation on limited display?

Photo of Baroness Thornton Baroness Thornton Government Whip, Baroness in Waiting (HM Household) (Whip)

My Lords, I have just said that one of the options was limited restrictions, or limited display.

Photo of Lord Naseby Lord Naseby Conservative

My Lords, what consultation was there on that middle area?

Photo of Baroness Thornton Baroness Thornton Government Whip, Baroness in Waiting (HM Household) (Whip)

My Lords, if the noble Lord would allow me to continue my remarks, he might learn.

Most relevant here is that there was very little support from anyone for a partial ban, or limited display. The main reason given was that it would not achieve the public health objectives. Display by its very nature constitutes promotion, and removing it completely is the only sure way to prevent tobacco promotion. There are also concerns that a partial display ban would increase the regulatory burden, making the legislation harder for a shop to comply with and for local authorities to enforce.

In their consultation response, the local authorities' co-ordinators of regulatory services, known to the rest of us as trading standards officers, supported completely removing display prohibition. They argued that complete prohibition,

"presents a clear message to retailers and potentially would be more straightforward to enforce for local councils".

Under Amendment 42, it would be lawful to display tobacco products if only one packet of each product were on view. However, the amendment would not achieve the public health objectives to which I have already referred, and I should like to consider the practical implications were it to be accepted.

We may learn from New Zealand, where partial limitations on tobacco displays were introduced in 2003. Research there found that more than two-thirds of stores were not compliant with the regulations and, worryingly, that compliance was worst in lower socio-economic areas, where we know that children are even more likely to take up smoking. The experience in New Zealand supports what common sense should tell us—that a partial display ban would be a compromise, leading to fewer benefits and greater burdens.

I emphasise that in removing tobacco displays it is not our intention to penalise the retail trade. The Government are certainly not blaming shopkeepers for selling tobacco, which, as many have pointed out, is a legal commodity. Indeed, the tobacco industry has an obligation to make profits for its shareholders, and that means that it needs to find ways to encourage people to start smoking and to stop people giving up. We believe that a partial display ban would provide a clear incentive for the tobacco industry to make the most of what display it has left by developing new products to fill that display space.

We have already seen a dramatic increase in the number of brand variants in response to the advertising ban. For example, Marlboro Red and Marlboro Gold are brand variants but, under my noble friend's amendment, each would qualify as a separate product because they have slightly different ingredients and different packaging.

We know from the trade press that the number of brand variants for 15 of the most common brands in the UK increased from 74 in 1998 to 95 in 2003—an increase of 28 per cent over five years. However, in the five years following the ban on tobacco advertising, the number of brand variants increased from 95 in 2003 to 172 in 2008—a much larger increase of more than 80 per cent. In other words, in just 10 years, the number of brand variants more than doubled.

The amendment would provide a clear incentive for companies to develop new brand variants so that they could increase the number of their products on view and have a greater impact than their competitors. That could result in larger displays. For example, a recent report of 153 visits to retailers in seven different regions showed that the smallest tobacco gantry typically held approximately 75 cigarette packs facing forward. As I have just explained, there are now 172 different brand variants on the UK market, so even all the current brands would require a display of at least double the size for a small corner shop.

We could use proposed new paragraph (c) in the amendment to limit the size of displays through regulations, but that would be likely to result in only the market leaders being displayed. My noble friend is an expert on competitive business, so he will know that that would give them an unfair competitive advantage. I am sure that it is not his intention but, sadly, under the amendment we would be forced to choose between allowing, and indeed encouraging, tobacco displays to get larger or giving an unfair competitive advantage to the market leaders. From an enforcement perspective, local authorities would be faced with the burden of having to check every tobacco display in every retail outlet to ensure that only one packet of each of these many variants was on display at any one time. Therefore, I urge my noble friend to withdraw Amendment 42.

Amendment 43 would allow tobacco displays in licensed or club premises where access was restricted to individuals aged 18 or over. We believe that this amendment misses altogether the second public health objective of our policy—that is, to support people who smoke but want to quit. Research clearly shows that displays undermine the efforts of smokers who want to quit. A recent study in Australia found that more than a third of people who had tried to quit in the past year were tempted to buy cigarettes when they saw tobacco on display. Of those, 68 per cent went on to buy cigarettes, giving up on their commitment to quit and having to start all over again.

We know that displays prompt impulse purchases, tempting people who want to give up smoking to buy cigarettes and carry on smoking, even when they wish to stop. Allowing displays in areas accessible only to adults would not protect and support adults who want to quit. Therefore, I am afraid to say to my noble friend that I am not prepared to accept this amendment.

In conclusion, let us not be naive: displaying products increases sales. The industry will say that display is about competition for market share, and that it is about differentiating brands from those of competitors, enabling vigorous competition and communicating with the adult smoker. However, displays do not help smokers to change brands and they are attractive to children and young people. Display undermines efforts to quit and encourages young people to smoke. Smoking is not a lifestyle choice but it is an addiction. Taking away tobacco displays will not stop smokers buying their cigarettes, but it may enable and empower young people and smokers who are trying to quit to make a healthy choice, which is something we should support.

There is no need for tobacco to be displayed and there is real harm in it being displayed. Removing displays completely is the only sensible measure to ensure that our children are protected and that people who want to give up a most addictive and dangerous substance are supported in doing so. For these reasons, I cannot accept the amendment and I hope my noble friend will feel able to withdraw it.

Photo of Lord Borrie Lord Borrie Labour 4:30 pm, 6th May 2009

My Lords, I am most grateful to all those who took part in this debate, despite the fact that most of them did not agree with the purport of my amendment. I am particularly sorry that the Minister produced a large number of arguments, only some of which, in my view, hold much validity, and many of which were highly speculative in referring to the practice and experience of other countries. But I am grateful to her for her serious consideration of the matter.

My proposal was, as I indicated, a compromise to give the Government the opportunity to come up with a less draconian proposition than is embodied in Clause 19. I obviously did not make myself sufficiently clear to the noble Lord, Lord Stoddart of Swindon, but I actually prefer the notion that we should vote down Clause 19 rather than pursue a compromise. As my compromise did not achieve more than a small amount of agreement, I intend to withdraw my amendment and look forward to the further debate we shall have in a short while. I beg leave to withdraw the amendment.

Amendment 42 withdrawn.

Amendment 43 not moved.

Amendment 44

Moved by Earl Howe

44: Clause 19, page 23, leave out lines 16 and 17

Photo of Earl Howe Earl Howe Shadow Minister, Health

My Lords, I shall also speak to Amendment 45. Before we debate Clause 19 as a whole, I would like to turn noble Lords' attention to a particular provision that it contains, which we debated at some length in Grand Committee. I refer to the provision which deals with so-called "requested displays" of tobacco. A requested display is defined in new Section 7B as being,

"a display to an individual following a particular request by the individual to purchase a tobacco product, or for information about a tobacco product".

The individual concerned must be 18 years old or over. In an earlier debate we heard from the Minister that this provision is there,

"because it is right that customers should be able to see and handle a product before buying it".—[Official Report, 5/3/09; col. GC 358.]

Leaving aside that some of us think that that is exactly what tobacco displays facilitate—they enable you to see a product before buying it—the provision gives rise to all sorts of practical issues. To what extent would a retailer risk breaking the law if a customer asked to see a packet of cigarettes and had a child standing next to them? In a supermarket, where one might have several requests to display cigarettes in quick succession, how problematic would it be for a shopkeeper to comply with those requests when there are children standing around? And how long a period is reasonable for viewing a packet of cigarettes before deciding whether or not to buy it?

All these questions are being asked. At the moment, we do not have any detailed answers because the draft regulations have not been published. That is regrettable because what is at issue here is how workable the regulations will actually be. Ministers may give us assurances now that it will not be an offence to make a requested display to an adult who happens to have a child with them, but we cannot know what difficulties may arise until we have seen the regulations.

Overprescriptiveness is another trap. It could be, for example, that the regulations will attempt to lay down a specific time limit for a requested display. If they do, I do not think that would either workable or enforceable. Nor could one envisage a rule that specified a maximum size for a requested display, because one could easily imagine a customer wanting to view more than one product at a time. Why should they not do so?

The Bill would prohibit someone under 18 being able to view a packet of cigarettes after making a request to do so. As the Bill is worded, a retailer could face a fine of £20,000 or six months in jail if he showed a packet of cigarettes to a young person, even though he ultimately refused the sale. That seems extraordinarily draconian and shows why the practical detail of the regulations really will matter.

There are systems installed in the tills of some shops which prompt staff to check for age, but they will kick in only once the product has been displayed and scanned. Making it an offence even to show the product will not allow the age verification system to cut in at an early enough point. It is perhaps worth saying that there is no parallel to these provisions anywhere else in the law in situations where there is a bar to selling to under-18s. Alcohol, knives, pharmaceuticals and fireworks may not be sold to minors, but merely displaying those products to minors is not illegal.

If requested displays are to constitute an exemption to the general display ban—and I emphasise that the devil will lie in the detail as regards the workability of the rules—they cannot surely be the only exemption. What happens, for example, when new stock is being delivered to the shop? The goods have got to come into the premises, at which point they may be visible to customers. They then have to be loaded on to the shelves. What is a retailer supposed to do? In many shops, the shelves can be restocked only during operational hours when customers may well be about. Will the regulations make allowances for this? We just do not know.

Another candidate for exemption surely has to be duty-free sales of tobacco at airports. I have been informed that there have been discussions between Department of Health senior representatives and their counterparts from the aviation industry, who are concerned about the negative impact of the proposed tobacco display ban on airport retail revenues. I understand that these discussions are focused on the possibility of establishing a specific regime that will allow duty-free retailing to continue funding our aviation industry without undermining the objectives of the Government's policy. Is the Minister aware that when Canada framed similar legislation, it none the less recognised the unique nature and importance of duty-free and therefore decided to exempt duty-free retail shops from the display ban? It would be helpful if the Minister could confirm that the discussions to which I referred are taking place and that the Government recognise the need to prevent the loss of essential revenue to UK airports, which are already under extreme pressure due to the current recession.

I do not think that Ministers have quite realised how complex it will be for retailers to comply with the requested display regulations and how near-on impossible it will be to enforce them. If she is unable to fill us in today on exactly how the provisions will work, the only thing we can do is put down a marker for the other place to explore these issues when the Bill reaches it. On the other hand, we may be pleasantly surprised by the answers that we receive today. In the hope that we may be, I beg to move.

J

I am disappointed that Lord Howe is suggesting that duty free sales at airports should be exempt from health motivated regulations relating to tobacco sales. He rightly points out that aviation depends upon such sales but he is wrong to regard such support as a good thing. It is a distortion of trade akin to a subsidy in favour of an industry that significantly contributes to global warming and the depletion of vital oil reserves. It is also in conflict with Conservative policy on aviation, environmental protection, public health and sustainability. I hope he will reconsider this issue urgently.

Submitted by John Byng Read 1 more annotation

Photo of Baroness Thornton Baroness Thornton Government Whip, Baroness in Waiting (HM Household) (Whip)

My Lords, I realise that the concept of requested display may require some clarification and I should like to explain our intentions. I note that the noble Earl seeks to expunge Clause 19 from the Bill but I hope that my explanations will help him reconsider.

The prime effect of Clause 19 is to make any display of tobacco products an offence but we need to make sure that shopkeepers are still able to sell cigarettes to their customers. It should not be an offence to show adults a product before they buy it or as they make their purchase. The requested display provisions mean that retailers would not commit an offence in such circumstances. We believe that this is a straightforward matter: an adult should be able to see a product before or when they are buying it. So, this clause is a very important safeguard for retailers. Without it, retailers may constantly risk committing an offence just by serving customers. Therefore, we felt that it was important for all concerned that this safeguard is in the Bill.

The noble Earl raised the issue of the regulatory process. I can assure him that we expect that a huge amount of care and detail will go into framing the regulations that will accompany this Bill. Specifically, I assure him that we are already working with representatives of the airport duty-free tobacconists to ensure that regulations take account of their particular circumstances. Officials have already had two meetings with these stakeholders. Draft regulations that cover tobacco sold in airport duty-frees will be publicised for consultation as soon as is practicable after Royal Assent. We are of course working with many other retail organisations on this; we have done throughout the framing of this Bill and will continue to do so as we frame our regulations.

In practice, we expect that most people will continue to do as they have always done—simply to ask for their brand irrespective of whether they can see it before buying it. This is because we know that cigarette brands enjoy some of the highest levels of brand loyalty. People rarely switch brands and we know that displays currently influence the choice of brand for only about 1 per cent of people. However, since children are not legally able to purchase tobacco there is no reason for them to see a display, let alone purchase from it. In the main, the requested-display provisions would make little change to the way in which most shops sell tobacco in practice. Retailers will continue to sell tobacco to adults and when someone who looks underage asks to buy tobacco, retailers will challenge them for proof of age as they do now. Many responsible retailers already use good practice when dealing with potential sales of age-restricted products, such as alcohol and cigarettes, and challenge customers who look under 21 or 25.

In practice, requested displays would mean that, first, adults could see the product before they buy it; secondly, that retailers could continue to sell tobacco to adults; and thirdly, that tobacco promotion through display would be stopped. These amendments would increase the number of occasions on which a retailer would be committing an offence, and we believe that, on that basis, they should not be accepted. I know that the noble Earl was seeking clarification about this issue and on that basis I hope he feels able to withdraw the amendment.

Photo of Earl Howe Earl Howe Shadow Minister, Health 4:45 pm, 6th May 2009

My Lords, I am grateful to the Minister for her reply as far as it goes. I can of course see why the safeguard was thought to be a good idea. But if the detail of the regulations will be available only after Royal Assent, we are, to all intents and purposes, working in the dark as regards their workability. Of course the Government consult on regulations—I appreciate that—but it would have been helpful if Parliament had been able to consider the proposal in the round at this point.

I am still worried about the potential for inadvertent displays to a child following an attempt by a child, let us imagine, to request to see a particular brand of cigarettes, and that that kind of inadvertent breach of the law could attract a hefty fine even where the retailer wakes up to the fact of what is going on and does not sell the product. I hope the Minister will take on board that these penalties have to be proportionate to the damage done in that kind of situation.

However, I wanted to put certain remarks on the record, I wanted to ask certain questions, I am grateful to the Minister—she has probably gone as far as she can go—and I think this is the right point to withdraw the amendment.

Amendment 44 withdrawn.

Amendment 45 not moved.

Amendment 46

Moved by Earl Howe

46: Clause 19, leave out Clause 19

Photo of Earl Howe Earl Howe Shadow Minister, Health

My Lords, we come now to the overarching issue presented by this clause and to what is, undoubtedly the most difficult and argued over part of the whole Bill. I am no advocate of smoking and I am conscious of the apparent anomaly that, as a health spokesman for my party, I should be proposing the removal from the Bill of a measure which appears, on the surface, to be conducive to public health. I do so, however, in the complete conviction that this measure is misconceived and that it will do considerably more harm than good, and I shall almost certainly ask the House to express its opinion about it.

The Government have proposed that displays of tobacco products should be banned in all retail premises. They have done so for one main reason; they believe that tobacco displays are directly instrumental in the take-up of smoking by young people. Their case is that tobacco displays have become de facto advertisements. They pray in aid research published by Cancer Research UK and others, and they believe that a display ban will send out an important public health message.

I believe that the Government's position is wrong for two main reasons: the evidence base, and the likely damage that will be done to small shops. I have looked at the evidence base very carefully indeed, and I do not believe that a ban on the display of cigarettes in shops can be plausibly linked to the take-up of smoking by the young. Of the places around the world in which a display ban has been tried, Canada and Iceland are most normally cited. The province of Saskatchewan in Canada has had a display ban since 2002. In Saskatchewan, it is absolutely true that youth smoking has declined since the ban was brought in. The trouble is that the figures for the rest of Canada show that in provinces in which there has been no display ban, including provinces with quite similar characteristics to those of Saskatchewan, the rate of decline has been considerably steeper.

Youth smoking has gone down throughout Canada in the past few years; but in places such as Quebec, British Columbia, Ontario and Nova Scotia, which until very recently had no display ban, the rate of decline in youth smoking has been much steeper than in places in which a ban has been in force. That fact makes it very difficult to conclude, even tentatively, that the display ban in Saskatchewan was responsible for the decline in smoking.

Iceland introduced a display ban in 2001. Various statistics are available, some of which suggest that there has been a decline in smoking prevalence among the young since the ban was brought in, but what tends not to be mentioned is that, simultaneous to introducing the display ban, the Icelandic Government did three other things; they put up the price of cigarettes, introduced restrictions on smoking in public places, and introduced a positive licensing system for retail sales. Again, therefore, one cannot point to the display ban and say that it has brought about an improvement in smoking prevalence among the young. The statistics, in any case, do not tell a clear story.

A clear story is what Cancer Research UK maintains we have in the research that has been done into the link between brand awareness among young people and smoking behaviour. Noble Lords may have attended a presentation by Professor Gerard Hastings, which suggested that the causal link between displays, brand awareness and smoking was absolutely unarguable. I hesitate to criticise Professor Hastings, but I must. In the 1990s, the Department of Health commissioned two separate studies of their own into the reasons why adolescents smoke: one was by Elaine Goddard; and the other was by Clive Smee, who was then chief economic adviser to the DoH.

Goddard's study was, and remains, the only longitudinal study in this area—that is, it followed the same students over three years in adolescence when they were likely to become smokers. It is one of the largest studies that has ever been done on adolescent smoking in the UK. Goddard found that the major predictors of whether an adolescent became a smoker are socio-economic; in other words, they are very largely to do with one's family circumstances. Importantly, she found that brand awareness was not statistically significant as a causal factor. Smee's study confirmed that. He found that being aware of tobacco advertisements does not reliably predict becoming a smoker and that there is no statistically significant relationship between tobacco advertising and adolescent smoking prevalence. So the Department of Health's own research contradicts twice over the claim that advertising causes children to smoke; and if it is true of advertising then, a fortiori, it must be true of displays.

Where does Professor Hastings mention those two studies in the evidence that he presents? He does not. He omits them. I have to say that I am deeply troubled by that if what we are meant to be considering is a balanced and dispassionate analysis of the research. Moreover, the studies that he cites provide no evidence that anyone at all who participated in a study started smoking because of tobacco brand awareness or retail displays. All that Hastings reports is what he calls an intention to smoke at age 18. For many participants this involves being asked to project several years into the future and to say whether they will become a smoker. Hastings then takes these projections and links them to brand awareness, but that is where it ends: the research does not offer a single instance where one of the subjects has become a smoker because of their awareness of tobacco brands or displays. He assumes that if the adolescents say that they intend to be smokers in a few years' time then they will be. The advice I have had is that social scientists routinely warn against this type of research. It is highly unreliable, because what people do is often at variance with what they say they intend to do.

But that is not all. The link that Hastings draws between tobacco display, brand awareness, prevalence and susceptibility to smoking has a confidence factor of between 1.02 and 1.17. Those figures are very low. They are well within the margin of error for being a chance finding. It is not a genuine association for statistical purposes. The association is even weaker because it fails to take into account potentially confounding factors, by which I mean the accepted and recognised causes of adolescent smoking. There are several of these: whether your family smokes, whether you live with a lone parent, how affluent you are, and so on. You cannot associate smoking with one particular causal factor, like tobacco displays, unless you have established that other factors, which may be more relevant, can be ruled out. So, for a whole raft of reasons, the research cited by the Government is shot through with weakness and leaps of logic.

I turn to my second and equally serious reason for opposing this clause—namely the damage that it is likely to inflict on small shops. There are about 50,000 corner shops in the UK, and the organisations representing those outlets have told me of their acute worry that a point-of-sale ban on the display of tobacco will do serious harm to their trade. The level of concern is very high. A year ago, the Tobacco Retailers Alliance had 16,000 members. The figure now is 26,000. These shops depend on tobacco sales for a large proportion of their turnover. It is not a high-margin business; the point is that it creates footfall. People who come in to buy cigarettes typically buy other things as well, which carry a higher profit margin. If those people cease to patronise small shops, the effect on trade in those outlets could well be terminal.

It is all very well for people like Professor Hastings to say, as he does, that footfall will not suffer because smokers will still know where to go to buy their cigarettes. With due respect to him, he has never run a corner shop. If you talk to the shopkeepers, as I have, they will tell you that as much as 50 per cent of their turnover can come from passing trade. These are not customers who would know in advance that a particular shop sold cigarettes or their favoured brand of cigarettes. On the other hand, they will know that they can buy their favourite brand from the local supermarket. It will be easier to go elsewhere. The fear is that the all-important tobacco sales will migrate away from small shops and quite simply make them unviable.

I would say to your Lordships that these fears are not dreamt up from nowhere. In Iceland, since the tobacco display ban came into force, 30 per cent of small shops have closed. In Canada, where the display ban is now in force almost everywhere, dozens are closing every week. That means permanently closing. I have the figures beside me. In Ontario alone, where the ban was introduced only in June 2008, 765 convenience stores have closed permanently; that is 8.6 per cent of the total.

So, I do not think that it is any exaggeration to say that this measure massively threatens the existence of small shops. These shops often play a very important part in the life of local communities. The shopkeepers whom I have met have said to me that they regard this clause as the biggest threat that they have ever faced. They cannot understand why the Government would allow this to happen. They regard themselves as the Government's best ally in preventing kids from getting hold of cigarettes. People who sell cheap smuggled cigarettes in the back of car parks do not care how old their customers are. It is ironic therefore that a measure designed to reduce youth smoking may actually serve to foster it, if more kids seek out tobacco from sources where no questions are asked. Again, that is what is now happening in Canada.

None of us likes the idea of children smoking. I am sure that we would all approve of measures that were likely to make a real difference to it. But the policy here is not evidence-based. It is policy based on weak scientific data, and it is policy where the unintended collateral damage is likely to be unacceptable. For that reason it should be rejected. I beg to move.

Photo of Lord Naseby Lord Naseby Conservative 5:00 pm, 6th May 2009

My Lords, I am not going to repeat a word of what was said by the noble Earl, my colleague on the Front Bench, other than to agree totally with every word, and to hope that your Lordships have listened carefully to his contribution. I want to concentrate on one point—the cost of implementing the clause. I had the privilege of serving on the Grand Committee. On 9 March at col. GC 394, the noble Baroness made it clear to the Committee, as was entirely appropriate, that she had been chair of the All-Party Retail Group before joining the Government and had worked for the Co-op. She went on to explain that the cost for the change was minimal and would be:

"15 Canadian dollars—around £8.40—per square foot of display covered".—[Official Report, 9/3/09; col. GC 395.]

In other words, that is £120. The convenience stores viewed that figure with some incredulity. Furthermore, we on the Committee wondered why on earth anybody would take a quotation from a Canadian company when of course the change would have to be done in the UK.

Noble Lords have had representations from a large number of stores indicating that in their judgment the costs would be £1,500 to £2,000. We have on the record what the Minister said, and I think most noble Lords—certainly those of us who took part in the Grand Committee—will have received a letter dated 23 April from the Department of Health headed "Frequently asked questions". Question 2 says that it is going to cost retailers thousands of pounds to remove displays. The Minister, in this case the noble Lord, Lord Darzi, signs this letter, which states:

"Removing displays need not be costly—in Canada, even professional covers cost as little as £120 for an area measuring 1 metre by 1.3 metres", et cetera.

I was amazed to read—I hope the Minister is able to answer on this point—in the Evening Standard of 1 May that:

"The Ministry of Health asked anti-smoking organisation ASH (which is hardly a disinterested party)"— hear, hear—

"to check on the cost, and it claimed the figure for the gantries was just £120. This figure was sent by health minister Lord Darzi to every member", of your Lordships' House. However, all of a sudden, 4 Solutions in Canada woke up to what is happening. It has issued a statement pointing out that the individual costs would be approximately £480—roughly speaking, four times the cost cited by the noble Baroness, Lady Thornton, who has experience of this world. She is a former retailer herself and knows all about the retail world.

Furthermore, 4 Solutions went on to say that the figure,

"did not include any of the insulation costs, which would be around £1000. They also pointed out the costs of the gantries for all the outlets in Britain could be over £30 million".

That is a huge difference from what the Grand Committee was told. It was on the basis of what the Grand Committee was told that we have the clause before us. My question to the Minister is: was she totally misled by 4 Solutions, was she totally misled by ASH, or has she in effect totally misled the House? This is a serious point, as my noble friend on the Front Bench rightly pointed out. Here we are in a recession: 50,000 outlets have been affected by one of the key footfall creators, and the Government are facing costs not of £120 to implement the Bill but possibly the best part of £2,000, which comes out of their net profit. It is not a turnover point but a net profit. We are talking about a substantial amount of turnover to provide the figure. I hope that the noble Baroness has a good answer to this point. I am making a serious challenge to her. I am not alleging that she has misled the House, but I hope she has a good answer on whether the figure is £120 or closer to £2,000.

Photo of Baroness Cumberlege Baroness Cumberlege Conservative

My Lords, like my noble friend Lord Howe I am no advocate of smoking. Until recently I was a trustee of Cancer Research UK. Before that, I was a member of the Imperial Cancer Research Fund, which was one of two partners that joined in a successful merger. Cancer Research UK is the biggest cancer charity in the world, bigger than those in the United States or anywhere else. To sustain that, it has to raise over £1 million every working day. As a result, it performs world-class research. The commitment that scientists and fundraisers have, both those who are professionally employed and the volunteers and the management, is inspiring, as is the commitment of the public who support cancer research.

I resigned because I have taken on the chair of the Association of Medical Research Charities and I felt that there was a conflict of interest. Quite a while ago, I visited Finland researching community nursing. We were taken to a remote part of the country. It was a vibrant town, quite large, and in the middle was an enormous wood pulp processing factory. It dominated that community. It spewed out fumes and the noise was considerable. We said to our hosts, "Why do you allow this enormous factory to dominate this area and do physical harm to your inhabitants?". They said, "We thought a lot about it, and decided that it comes down to a balance of harms. We decided that employment is more important to the well-being of this community than the minimal effect that this can have on their physical health. Unemployment brings poverty, loss of self-respect, depression and mental illness, so it is more harmful to us to do away with this factory than to put up with the fumes and noise".

I tell that anecdote because this debate is a judgment on the balance of potential harms. Nobody can deny that smoking kills. Nobody can deny that it is better for children, especially young teenagers—we know that young girls are particularly susceptible—not to start smoking. We know that it costs the nation a huge amount of money to treat smokers. We have had a policy of attrition. Step by step, we have tried to reduce the number of smokers. To some extent, that has been fairly successful.

I am not opposed to a policy of attrition, especially if it is based on sound evidence. Indeed, I supported the banning of smoking in public places because the evidence was robust and the practice was affecting a lot of other people. I am grateful to the noble Lord, Lord Stoddart, for mentioning in an earlier debate something that I did not know: what effect the ban had on the number of pubs that closed as a result. We now know that they are closing at a phenomenal rate. We do not know whether it is the smoking ban or cheap alcohol in the supermarkets, but every pub that closes is, on the whole, a tragedy for the local community. They are places where people want to meet, relax and have some enjoyment. They combat loneliness and depression in that community. They are part of the thread that holds the community together, as are shops.

In my community we have 2,000 people. We have fought really hard to keep the post office open, and we have succeeded. A few months ago, we fought really hard to keep our chemist shop open, and we succeeded. We keep a wary eye on the butcher, the baker and the two corner shops. They sell everything. They are our lastminute.com. More than that, they know us. They are not fearful to challenge would-be teenage smokers. They know the kids and the parents, on the whole. As my noble friend Lord Howe has said, they also get a passing trade. However, they are far more effective than the local supermarkets in challenging teenagers. Supermarkets simply process the shoppers who attend. What is more, we walk to our local shops. We do not pollute the atmosphere by having to drive. Our corner shops service particularly those who are old and infirm. They are part of a vibrant community that we need. We need an economic base if we are to support clubs, societies and everything from toddlers' groups, and the lonely mothers who go there, to youngsters who are bored. We have Scouts and Brownies and all the rest of it—and tea dances for elderly people.

Listening to the debates in Grand Committee, and reading the enormous quantity of briefing that we have had from all parties and talking to parents of teenagers who smoke, I have come to a conclusion based on evidence. I am very grateful to my noble friend Lord Howe for setting out the spurious evidence—at least not robust evidence—which underpins some of the suggestions which have been put to us. In no way do I want to impugn the integrity of those who wish to ban the displays, but I believe that the evidence is rocky. I am not sure that banning displays will really make a difference. Parents tell me that their children rarely buy cigarettes over the counter and, if they do, they are pretty good at trading IDs. They are much more likely to get cigarettes passed around by friends. Sadly, sometimes it is their friends' parents who buy the cigarettes or they use vending machines, which is another debate. Parents tell me that they feel that banning displays will not make any difference; in fact, it will heighten the desire of children, especially those who are going through a rebellious period, to get what they perceive as forbidden fruit.

On the balance of harm, I do not think that the banning of displays will have much effect, if any, on reducing teenage smoking but it will increase unemployment among shop owners at a time when we should cherish every single job. It will result in a poorer quality of life for those who rely on corner shops, and harm and increase the vulnerability of already fragile communities which we want to thrive and prosper—communities which we should value and cherish.

Photo of Baroness Northover Baroness Northover Spokesperson for International Development, Liberal Democrat Lords Spokesperson (International Development) 5:15 pm, 6th May 2009

My Lords, I oppose these amendments. If I were in any doubt about the Government's proposals, that doubt would have been blown away by the incredible lobbying which has poured on us on this subject. I have been amazed at the professional quality of some of the lobbying letters which I have received, beautifully set out and specifically researched, showing an amazing grasp of obscure political comments, targeting, in my case, all the Liberal Democrats in my office, sticky labels and all. What is it about these letters that reminds me so strongly of the best paid public affairs outfits? Excuse my cynicism. If I am wrong, then a small shopkeeper from Chiswick who wrote to me and my colleagues this morning has a very bright future at the very top of a public affairs agency. He need not worry about what happens on the loss of his business.

We know the damage caused by smoking. I hope that argument has moved on; all now recognise that fact, although sometimes I wonder. All apparently wish to ensure that children do not start smoking. We have heard about the research and different practices in different countries. We are extremely familiar with the technique of the tobacco industry in confusing and casting doubt on research, even on that of Sir Richard Doll. Like the noble Earl, Lord Howe, I heard the presentation of Professor Hastings and that of Dr Gilmore. They made very persuasive cases. If we were to accept that the case has been inadequately made, what of the counterargument that damage would be caused by agreeing to this proposal? Here the argument is that banning point of display would damage small retailers and make it expensive or even dangerous for them to adapt their shops. It is extremely clear that, as in Canada, the tobacco industry will cover the cost of adaptation, which itself is not great, as it still has the incentive for these shops to continue to sell cigarettes. It may be a cost to the industry, but that is hardly a factor that we should consider.

All the proposals for how this can be achieved have very clearly shown that adaptation can be done without danger to the shopkeeper. That was fully addressed in Committee. The industry has been assiduous in stirring up small shopkeepers. We know that the information given on the impact on shops is very alarmist and that, too, was fully answered in Committee. What is the balance here? Do we go for the public health precautionary principle or for the case put by the industry? I understand the discomfort of the noble Earl, Lord Howe, on the position that he is in.

All the royal colleges, Cancer Research UK and myriad medical charities urge us to support the Government on this. On the other side, there is a campaign paid for and orchestrated by the tobacco industry, even if its involvement has had to be dragged from it against its wishes.

Smoking is an addiction. Our responsibility is to do all we can to protect children from starting to smoke in the first place. So for the sake of my kids and their peers, I will be supporting the Government on this.

Photo of Lord Faulkner of Worcester Lord Faulkner of Worcester Labour

My Lords, I am delighted to follow the noble Baroness, Lady Northover, because I agree with every word that she has said. I am delighted also that she has brought us back to the fact that this is a health measure we are considering. This is not an economic argument about small shops but about whether the health of our people, and particularly the health of children and young people, is going to be enhanced by what the Government are proposing.

I too was convinced by Professor Gerard Hastings; I shall say more about that in a moment. But first, I want to declare an unpaid interest, as a member of the board of trustees of Action on Smoking and Health. I shall answer the points made by the noble Lord, Lord Naseby, at the end of my remarks.

I agree wholly with the noble Baroness about the tactics of the tobacco lobby. It is attempting to use smoke and mirrors in order to confuse us—and it is spending a fortune in doing so. A major part of its campaign is to cast doubt on the evidence base. To those of your Lordships who have received representations from groups such as Responsible Retailers or the save our shops campaign, I offer one sentence of advice: be aware of who is behind these bodies.

I have received letters and e-mails from the Tobacco Retailers Alliance, to which the noble Earl referred, which is funded entirely by the Tobacco Manufacturers' Association. That association, in turn, is funded by three of the world's largest tobacco companies: British American Tobacco, Imperial Tobacco and the Gallaher Group. The same Tobacco Retailers Alliance also runs the save our shops campaign and Responsible Retailers.

Hiding behind front organisations is something that the tobacco industry has done for years. Another favourite trick is to fund pieces of work by apparently respectable research organisations, and then—provided that the findings are what it wants to hear—trumpet the results. Many of your Lordships may have received from the Tobacco Retailers Alliance two reports from a body called the Centre for Economic and Business Research. I checked with the CEBR, which eventually confirmed in an e-mail to me that the reports were produced for and paid for by the clients—in other words, the tobacco industry. I think it would be in the research organisation's interest, if in the list of clients that it publishes on its website—there are 33 of them—it would somewhere refer to the fact that the tobacco industry is one of those clients.

I suggest that there are two questions that need answers. First, is there an evidence base for the prohibition of point-of-sale displays? Secondly, are the measures that the Government are proposing proportionate to dealing with the problem? I believe that the evidence does exist. It is rigorous and it stands up to scrutiny. There is an interesting report from Channel 4 called FactCheck, which describes itself rightly as:

"Impartial, empirical, reliable and dispassionate".

It goes on to say:

"Channel 4 FactCheck scrutinises the claims and counter claims of those in the public eye".

In this case it looked at the evidence base for the prohibition of point-of-sale displays and advised that it,

"points pretty firmly the government's way".

Also, on the evidence base, the all-party Health Committee in the other place stated in its report on health inequalities:

"Smoking remains one of the biggest causes of health inequalities; we welcome both the Government's ban on smoking in public places, and its intention to ban point of sale tobacco advertising, as evidence indicates that both of these measures may have a positive impact on health inequalities".

This issue of health inequalities is important, because the evidence points to the fact that smoking accounts for half of the differences in life expectancy between social class 1 and social class 5. It is imperative that we act to protect children; otherwise there will be a lasting legacy of inequality.

I turn to the evidence from the research conducted by Professor Gerard Hastings. I, too, went to the presentation, which I know that the noble Earl went to. I am disappointed that he was not impressed by what Professor Hastings had to say, because I believe that every other Member of your Lordships' House who was there—with perhaps two exceptions—was convinced by him. His research on point of sale is based on a long-term study called the Youth Tobacco Policy Survey. This survey has taken place five times since 1999, and over a nine-year period almost 5,900 children between the ages of 11 and 16 from a variety of social backgrounds have taken part. There have been a number of peer-reviewed papers from this work, and Professor Hastings's report of last August on point-of-sale displays forms an extension of previous papers. Crucially, this report encompasses not just one but four separate survey waves, of almost 4,500 young people between 1999 and 2006.

These are rigorous research techniques and, not surprisingly, the tobacco industry has tried to discredit them. In doing so, it has used exactly the same tactics that it used when it attempted to dispute that smoking causes cancer—Professor Doll's original findings—that advertising increases tobacco use, that nicotine is addictive and, most recently, that second-hand smoke is harmful to health. It stuck to its script, which has been revealed in internal tobacco industry documents, that it would claim,

"that cause and effect relationships have not been established, that statistical data do not provide the answers and that much more research is needed".

It is simply attacking this research because the implications of protecting young children and preventing 60,000 child smokers from being recruited each year are bad for business if you are a tobacco company that is desperate to recruit new young customers as you kill off the older ones.

There is more evidence. At the recent World Conference on Tobacco or Health, further evidence was submitted from New Zealand based on research with 25,000 young people. They found that 15 year-olds most exposed to point-of-sale displays are almost three times more likely to try to start smoking. It was identified that exposure to point of sale is a greater risk factor than even parental smoking.

I will say one word on proportionality. The Government have already given ground on their original proposals and will bring in the prohibition of point-of-sale displays two years later, in 2013, for smaller retailers, compared with 2011 for the larger ones. This will give an adequate lead-in time for retailers to prepare.

We know that low-cost solutions exist which are in widespread use in other countries, and these are entirely feasible in the UK as well. The recommended supplier to the Canadian Convenience Stores Association has produced a number of quotes—separately, not at the request of ASH, to ASH and to the Department of Health—for the cost of covers for a retail display gantry of the size found in a typical small shop in the UK. The covers are lightweight PVC, which the company stated should last a minimum of seven years. They are designed to fit behind the security shutters and be simple enough for the retailer to fit himself if he wants to.

Something has happened over recent weeks since the company was willing to give evidence to the Department of Health and to anyone else who asked for it, such as ASH. It appears that the Canadian Convenience Stores Association has been putting pressure on it to attempt to get it to backtrack on the ease and the low cost of providing displays in the United Kingdom. Noble Lords must make up their own minds whether they think that such pressure has been applied. I have no direct evidence of it, but something very strange has happened. The fact remains that the displays are in use in Canada, they have been installed properly in retail outlets and they are working fine there.

Photo of Lord Naseby Lord Naseby Conservative

My Lords, is he saying that 4 Solutions' statement that the gantries will cost £450 and not £120, and that this figure does not include fitting costs estimated at £1,000, is absolute rubbish?

Photo of Lord Faulkner of Worcester Lord Faulkner of Worcester Labour

My Lords, on the contrary; there are very interesting negotiations to be had with any company prepared to supply these gantries. The company in Canada may be one of those that will tender for the contract. However, the experience of retailers working with the tobacco industry is that the industry will be more than ready to pay for these displays, because it wants to go on selling its products in these shops; so the retailers do not have anything to worry about.

We must avoid continuing the situation that Professor Hastings described in his letter to the Times on 27 April, in which he described corner shops being turned into shrines to tobacco. He also observed that the industry had duped small shopkeepers into doing its dirty work. I hope that noble Lords do not fall for a line that is coming directly from the tobacco lobby.

Photo of Lord Palmer Lord Palmer Crossbench

My Lords, this clause has a strong whiff of the Hunting Act: I do not think that a single noble Lord will have his mind changed by the debate on the clause this afternoon. I am convinced that there is not one Member of this House who does not support the intention of Her Majesty's Government to stop young people from starting to smoke. However, the provisions in Clause 19 are not the answer.

We have all been inundated by letters from both sides of the argument. Like other noble Lords, I have been moved to tears by some of them. Small independent retailers, many of whom are from an ethnic minority, fear deeply for their livelihoods. Some busy retailers to whom I have spoken recently sell a packet of cigarettes every 30 seconds. If tobacco products are kept out of sight under the counter, the poor retailer will have to start performing like a circus juggler.

Noble Lords may remember that, during the course of the last Health Bill, I introduced an amendment to prohibit the sale of tobacco. The logic behind this was that if we should not smoke, we should not be allowed to purchase tobacco. As I said at Second Reading, I then discovered that 27 per cent of all cigarettes smoked in the United Kingdom are illegally purchased, doing the Treasury out of more than £3 billion annually. This is where many young people buy their tobacco, and this is where Her Majesty's Government should be legislating, rather than depriving legitimate retailers of their livelihoods, earned by selling what is, after all, a legal product. If Clause 19 remains part of the Bill, it will be an expensive nightmare for retailers to implement. It will not achieve what Her Majesty's Government want. I support the Motion of the noble Earl, Lord Howe, that Clause 19 should not stand part of the Bill.

Photo of Baroness O'Cathain Baroness O'Cathain Conservative

My Lords, I believe that the protection of children should be at the heart of this legislation, and that proposals on the prohibition of point-of-sale displays for cigarettes represent a golden opportunity to improve the nation's health in a spectacular way, by preventing ill health through reducing the impact of tobacco marketing on young people.

Not even tobacco firms now deny that smoking causes cancer, heart disease, strokes and a host of other conditions. However, let us not forget that for decades they spent millions on producing such denials; and that while so doing, they suppressed scientific and medical evidence. Prevention is better than cure; and the proposal to put tobacco out of sight will help to prevent our children and young people from taking up smoking, from becoming unwittingly addicted and from putting themselves at greater risk in later life of ill health and premature death.

I reiterate my firm belief that the protection of children should be at the heart of the legislation. To rob future generations of the chance to grow up free from the influence of tobacco marketing is just wrong. Let us remember that we have the awesome responsibility to formulate legislation that improves the health of future generations rather than the continuation of the burden of ill health which arises from tobacco.

In removing tobacco products from sight, we will be joining the growing number of other countries that are putting their children first; they are Australia, Canada, Iceland, Ireland, New Zealand and Thailand. I will admit that tobacco remains a legal product, but it is addictive and deadly, which is why its marketing has been subject to legal controls for many years—for example, through the ban of advertising on television or in cinemas. The proposal to prohibit tobacco displays is simply a further step in Britain's journey as our awareness of the complex and enduring interaction between marketing and its impact on children increases. The prohibition of point-of-sale displays should also be seen as part of a comprehensive tobacco strategy, which was discussed in Grand Committee and welcomed on all sides.

This opportunity to secure better public health should be welcomed not weakened. It will be a sad day for us and, more importantly for our nation's children if this House rejects the proposals to save future generations from the lethal addiction to tobacco.

Photo of Baroness Coussins Baroness Coussins Crossbench

My Lords, I shall make two brief points in opposing this amendment and in supporting the Government. First, even if the evidence on tobacco is incomplete or ambivalent, it is reasonable to err on the side of caution, such as by banning point-of-sale displays or, indeed, the availability of vending machines. Tobacco is not like other products, such as alcohol or foods high in salt, sugar or fat. For those products, there is a genuine role for education and advice to encourage sensible consumption that is balanced or moderate. We know what healthy eating looks like, what the sensible drinking message says, but there is no sensible smoking message. The nature and scale of the harm caused by tobacco means that there is no such role for consumer education. Perhaps there is conflicting evidence about the effectiveness of this proposed measure. Perhaps Saskatchewan and Iceland are not the perfect comparatives for the UK, but the certainty of the scientific knowledge that we have about the harm caused, together with the common sense that many of us feel, particularly as parents, lead me to support the Government.

Secondly, I agree that this is not the only measure that we need if we want to influence young people's behaviour. It is about far wider cultural change and about socio-economic factors that have been mentioned. The ban on smoking in public places has shown that there is an interesting and useful relationship between legislation and culture change—often bringing about culture change more quickly than might have been expected. Very few people would now think it was either right or normal to smoke in a pub or a restaurant. I believe that it will not be long before the general public will also regard tobacco displays in shops and vending machines in the same negative way. I feel strongly that we should help this trend on its way by supporting the measure.

Photo of Lord Judd Lord Judd Labour

My Lords, the point that strikes me most forcefully in this argument is not only that we are protecting children—I am with the noble Baroness opposite completely on this—but that we are dealing with a killer. Tobacco is a killer, and we need to put it as bluntly and starkly as that.

The problem with all the rationalisations we have been hearing, particularly from the Opposition Benches, is that it results in confused messages being sent to vulnerable people in society. The message that this is a killer and that we will do nothing to promote it, directly or indirectly, is not clear-cut. The message is that, in certain conditions and in certain ways, we can promote it.

I simply ask noble Lords to look at the neurosis which the nation has worked itself up to on Mexican flu. Would we be hearing such rationalisations in that kind of sphere? Of course not: we would be saying that the nation must combine in making sure that what is necessary is done. I wish we could hear a united voice at this juncture.

I want to express one caveat about the general strategy. It has already been mentioned by noble Lords this afternoon. I believe that those who share the strong view I just expressed would be very foolish if they supposed that we could win the battle simply by prohibitions of this sort. There must be a comprehensive social strategy.

I take one example, and I want to challenge the Opposition very specifically on this. My own daughter worked with a team dedicated to persuading pregnant women and young mothers not to smoke. It was a pioneer project for the National Health Service and the Lambeth Borough Council. She was determined that this project should succeed, and, indeed, the team won a refunding, which was illustration that it was making progress. I am not altogether certain that she would be very happy with me talking about this, but her comments made such an impression on me that I am going to. She confided in me that one of the realities she had to face was that, for many of the young women within her sphere of responsibility, about the only break they got in a tough, unacceptable life was their fag. If that is the case, it seems to me that we have to address the issues of deprivation, disadvantage, and overstressed single parents. When I hear those arguments coming powerfully from the Opposition Benches, I will begin to listen to them in their other rationalisations.

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

My Lords, I think the argument put forward by the noble Earl, Lord Howe, against this clause was unassailable. He was, in fact, correct in everything he said, and he produced facts which we have not previously heard. Before I go any further, I should declare that, although I do not now smoke, I am a member of the Lords and Commons Pipe and Cigar Smokers Club. They tolerate me as an associate member.

One of the reasons I am opposed to such legislation is my belief that smokers, shopkeepers and the people who make cigarettes and tobacco products have been under a vicious attack for a very long time. Since I believe in individual freedom and democracy, I also believe that this attack has been unfair and, in many cases, not backed by real medical evidence and science. I will not, however, go into that now.

We have been assailed by a great deal of lobbying: we have had glossy magazines and letters from all sorts of people on both sides of the argument. In a democracy, where we have a free Parliament—at least, I hope that it is still free—people are entitled to lobby and they are entitled to be believed and given the benefit of the doubt that they are lobbying in good faith. It is altogether unfortunate that the noble Lord, Lord Faulkner, and others should have attacked the tobacco industry in the way that they did. The tobacco industry feels that it is under attack but, after all, it is an industry and it is entitled to use the profits that it gets from smokers to protect its own interests and those of smokers.

As I said, the tobacco industry uses its own money, but ASH, of which the noble Lord, Lord Faulkner, is a member, uses taxpayers' money to promote its non-smoking agenda. Indeed, I can read out the figures. From 2005-06 to 2007-08, it received £556,400, and in the years before that it received more than £2 million. In addition, to help it with No Smoking Day, a further £750,000 of taxpayers' money was used by anti-smoking organisations. If the noble Lord, Lord Faulkner, wishes to intervene, he may do so.

Photo of Lord Faulkner of Worcester Lord Faulkner of Worcester Labour 5:45 pm, 6th May 2009

My Lords, I am most grateful to the noble Lord for allowing me to do so because he made exactly the same point in Grand Committee. On that occasion, I said that,

"the government grant to ASH is spent entirely on quit programmes and education programmes. None of the campaigning to which the noble Lord, Lord Stoddart, objects so much is funded by the Government. That comes from voluntary sources such as Cancer Research UK and the British Heart Foundation".—[Official Report, 11/3/09; col. GC 467.]

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

My Lords, that is a pretty poor defence, if I may say so. If ASH really wants to be as pure as it wants the tobacco industry to be, it should refuse the government grants and, indeed, repay the grants that it has already received.

It is not only retailers and the tobacco industry that have lobbied your Lordships; I instance Unite, which is a very large trade union that pays a lot of money in affiliation fees to the Labour Party. It, too, is concerned about this legislation. I shall not take the House through the whole document that I have before me but will quote just the Executive Summary:

"The UK tobacco industry is highly profitable for the Treasury, generating tax revenue of £10 billion".

By God, how we need that money at the moment; we should not refuse it. Unite did not say that; those are my own words. The second point is:

"There are currently 6,500 people working in the tobacco sector and supports a supply chain of 80,000 people in the UK alone".

Thirdly, it says:

"The tobacco sector is the top contributor to the UK's balance of trade, and exports goods worth £984 million".

The fourth point is:

"The illegal trade in tobacco products is costing the UK tax payer and the public sector £4.3 billion".

Fifthly, it says:

"Since 1970 job losses in the sector have amounted to 40,000 in the UK alone. Unite believes there would have been government intervention if this had happened in any other manufacturing industry", which now represents only 11 per cent of total GDP. Those final words are mine.

"The UK has one of the highest tobacco taxation levels in the world and this is clearly driving the growth in illegal unregulated tobacco products"; and,

"There is a clear and insidious link between the illegal counterfeit tobacco trade and organised crime".

I will not go on. I think that that is quite enough.

There have been attacks on the glossy magazines. I shall conclude my remarks by quoting in full a letter from ordinary tobacconists which appeared in the Daily Telegraph on 4 May 2009. It states:

"Ban on display of tobacco

SIR - The House of Lords will be voting on Wednesday to decide whether small shops like ours can continue to display tobacco products or not.

This is a matter of the greatest importance to 50,000 small convenience stores for which tobacco represents on average a third of trade. The Department of Health has suggested that hiding tobacco would reduce youth smoking, but sufficient evidence to support this theory has not been presented.

We are already struggling in the recession. A ban on the display of tobacco would deal us a new body blow.

Politicians talk about wanting to help hard-working families during the downturn. Not many people work harder than the proprietors of Britain's small shops. Unlike the banks, we are not asking for bail-outs. All we ask is that any restrictions on our businesses are proportionate, evidence-based and absolutely necessary.

The government of New Zealand has abandoned plans to ban tobacco displays, because it does not believe that the evidence exists to justify the burden this would place on small businesses.

The Lords have a chance to ask the Government to think again about this ban".

And I am going to read out the signatories:

"Ken Patel, Shopkeeper from Leicester; Mahendra Jadeja, Shopkeeper from London; Solly Khonat, Shopkeeper from Blackburn; Parminder Singh, Shopkeeper from Birmingham; Debbie Corris, Shopkeeper from Whitstable; John Abbott, Shopkeeper from Darlington; John McKeown, Shopkeeper from Ballymena; Fiona Barrett, Shopkeeper from Glasgow; Dev Aswani, Shopkeeper from Swansea; Paddy Paddison, Shopkeeper from Devon".

Let them speak for me.

Photo of The Earl of Onslow The Earl of Onslow Conservative

My Lords, my father died aged 57 and we always said that on the morning that he died, on the announcement of his death, both tobacco and drink shares went through the floor. We all know that smoking is the most disgusting habit ever—you cough up globules of green gunge; it makes you smell; and it probably kills you. But it is legal. My difficulty is that I have enormous sympathy with what my noble friend Lady O'Cathain said; I know that she is so right about stopping young children going to the green-gunge stage. Equally, the Government are raking in tonnes of money. Surely it would be more logical and more intellectually honest to say, "Smoking is banned. It does so much harm and therefore we should ban it altogether", than to hit small shopkeepers. So I find myself seeing both sides of the question. I do not wish an iota of harm to the signatories to the letter read out by the noble Lord, Lord Stoddart of Swindon. Equally, I agree with the noble Baroness, Lady O'Cathain. So just to be really helpful, I do not know which way I am going to vote today.

Photo of Baroness Finlay of Llandaff Baroness Finlay of Llandaff Crossbench

My Lords, last week a friend my age died of lung cancer. Two months before he died he tried to give up smoking. He had started when he was 14. That is the problem: to the young brain nicotine is particularly addictive and young people remain addicted. It is very tempting when people trying to give up see large displays in their corner shop. It tips them over into having another cigarette and keeps the bargaining going.

The evidence is strong. We know that 340,000 children try cigarettes every year, 60,000 of whom go on to become fully fledged smokers. We know that those who are exposed to power wall displays are three times more likely to try smoking than are children who are not. That is why we want those big displays to go. It is worth noting that all these displays look remarkably similar. They are not put up by individual shopkeepers on their own; they are a matched design. We have not seen any statement from tobacco manufacturers that they will not support the costs of installing the display covers or the dispensing equipment that allows the shopkeeper to remain facing the shop when he is selling a packet of cigarettes to a customer. We know that shops are vulnerable and such equipment means that the shopkeeper does not have to take his eye off the ball.

It is bandied around that pubs have gone to the wall because of the ban on smoking in public places. I commend to your Lordships the BBC Wales programme entitled "Week In Week Out", which launched a very good investigation into what is actually driving some publicans to the wall. The reasons are tied up with the franchise agreements into which they are locked by their contracts, meaning that the profit margin on all their products is incredibly narrow. It is false to blame a ban on smoking in public places as the sole cause for pubs going under.

This is a public health measure for the next generation. This amendment must be resisted.

Photo of Lord Walton of Detchant Lord Walton of Detchant Crossbench

My Lords, I, too, oppose the amendment for very similar reasons. I propose to speak very briefly because much of what I shall say has already been said.

Under peer pressure, I began to smoke at the age of 11 in a mining village in Durham County. By the time I was in the Army in the 1940s, I was smoking 25 cigarettes a day. I remember very well the agonies that I went through when the health problems caused by smoking arose and I tried to get rid of that addiction. We do not want that to happen to our children today.

Tobacco is the only product that if used according to what the manufacturers suggest, will kill one in two long-term users. The noble Lord, Lord Stoddart, asked why we are attacking the tobacco industry. We are doing so because it sells a lethal product. Tobacco remains the single largest preventable cause of cancer in the UK, and each year smoking-related diseases kill 87,000 people in England alone. I cannot forget a comment in the world tobacco industry journal which said, "If your brand can no longer shout from billboards or cinema screens, at least court smokers from retailers' shelves". And that is what these gantries are doing.

I am very much attached to my local convenience store in the village where I live in north Northumberland, and I have talked to the owner. He agrees that the provision would cause problems, but he believes that the problem is sufficiently important for him to go along with the idea of concealing his display.

Two nights ago, fairly late at night, I turned on the television and immediately switched to Ceefax, if only to find out the county cricket scores. I saw a great line across the top of the screen which said: "News: Children say, 'Please hide tobacco on the shelves'". Some of your Lordships may have seen the story. It was a very sketchy item, but it was obviously based on a study of children who felt that the display of cigarettes would attract them to smoking. That was the idea. I do not know its statistical validity, but at least it was an important contribution.

People have talked about Canada and other countries. It is important to realise that the president of the Canadian Convenience Stores Association, who has been arguing that many stores have closed in Canada, is a former executive of the Canadian tobacco giant RJR-MacDonald, which may well have influenced his attitude. I support many of the things that the noble Baroness, Lady Northover, and the noble Lord, Lord Faulkner, and others have said. We must oppose the amendment. This provision is a crucial public health measure to help our children not start smoking.

Photo of Lord Rea Lord Rea Labour 6:00 pm, 6th May 2009

My Lords, there is one point that needs to be addressed. A number of noble Lords—among them the noble Lord, Lord Naseby, and the noble Earl, Lord Onslow—have said that if tobacco is so bad, the answer is to ban it. They should know that banning a highly addictive substance has no effect in reducing consumption; in fact, it may even increase it. The use of cannabis or ecstasy is very widespread although both are illegal, and it shows little sign of stopping. It is better to restrict the sale of a product such as tobacco as much as possible and, in addition to the other measures that the Government have passed, to reduce all forms of promotion, as this Bill will do. The product should also be highly regulated and, I suggest, available only through licensed outlets. At the same time, the danger of tobacco—and of cannabis, for that matter—should be widely explained and publicised, and facilities for encouraging people to quit should be made widely available. That, and not banning it, is the way to deal with it.

Photo of Lord Patel Lord Patel Crossbench

My Lords, I refer to two questions that came up earlier in the debate. One is whether there is any evidence that display at point-of-sale is advertising. We had a lengthy discussion about that in Grand Committee. It is accepted—there is plenty of evidence—that the industry uses display at point-of-sale as a means of advertising. The next question is whether that will affect people, particularly children, and influence whether they take up smoking. The evidence for that was questioned. I, too, was impressed by the evidence presented by Professor Hastings. I did not find it scientifically lacking. The paper that Professor Hastings published is a peer-reviewed piece of research which found that exposure to point-of-sale displays had a significant effect on young people. On the basis of the precautionary principle, it is completely appropriate to introduce a ban on point-of-sale display of tobacco. The evidence shows that the intention to smoke is strongly linked to taking up smoking. The other evidence quoted was by Smee. Smee was the author of a review which showed the link between advertising and smoking, which was the basis for the Government's introduction of a ban on tobacco advertising a few years ago.

Now I come to the issue of whether or not small shopkeepers will lose their jobs. This is getting a bit personal. Although I expected the Gallery to be full of Patels today, it is not, because they are all busy selling cigarettes. Before this debate I telephoned my nephew, who runs a small shop selling, among other things, cigarettes. They were among the Patels who were thrown out by Idi Amin when he threw all the Asians out of Uganda. I asked him, "Today we are going to discuss this amendment, and if the amendment is defeated, you will not be able to display tobacco. Is that going to matter to you?". He said, "Yes, it is". I asked, "Are you going to lose a lot of business?". He said, "I will, but I don't know how much". I asked him if he was going to go bust and he said, "You must be joking".

Of course there might be small shops with small revenues for whom the sale of tobacco might be significant, but I believe that they are resourceful enough to find a means of making sure that they do not lose out on selling all products, including tobacco. I believe that it is right that tobacco display at the point of sale should be banned.

Photo of Baroness Tonge Baroness Tonge Spokesperson for Health

My Lords, I am afraid that I am totally unconvinced by the retailers' campaign. I will not repeat the arguments, but I thought that they were very ably put by my noble friend Lady Northover. I, too, am a cynic and I have seen many such campaigns before. I am more convinced by the arguments of Professor Hastings, and particularly his surveys of young people's behaviour, which is backed up by my observations of the behaviour of my own children and their friends and, indeed, the behaviour of the young people I dealt with when I was in clinical practice. It is also backed up—I do not think that anyone has mentioned this so far—by every medical body, medical college, NHS federation, nursing college and cancer research campaign. Every medical organisation you can think of is backing the Government's position. That should not be dismissed lightly. If you have any doubt at all in your own minds, my attention was drawn to something that I found in my background reading: British American Tobacco's guidelines on marketing. Those state that point-of-sale displays set out,

"to generate interest and excitement about the brand and to stimulate trial and re-purchase".

To generate interest and excitement—that is what point-of-sale display is for. It is drug pushing, is it not? That is what it is about. They are pushing their product and they do not consider the consequences. The argument that we all have individual freedom and we must not interfere with individual freedom is all very well, but when the Government, with our taxes, are paying for a free health service at the point of delivery, is it not then the duty of that same Government to ensure as little disease as possible, so that our taxes are used wisely, so that they use their money on preventative measures too?

Finally, I will just share with you my advice—I do not know whether they took it, I think they did—to my own children when they were experimenting with smoking. They asked me why it was such a bad idea: Granddad had lived till he was 90 and he was all right and he smoked 60 a day—you know the story. I used to say, "That is fine; he was very lucky then, though he does have a much higher risk of Alzheimer's disease". Smokers do have a much greater chance of developing Alzheimer's disease. I said, "When you are pregnant, dear, you are likely to damage your unborn child and make it much smaller and weaker than it otherwise would be. If you are lucky and you carry on smoking, you will probably die of a nice, swift heart attack—cardiovascular disease. It kills you but it need not be that painful. It can be quite quick and there are treatments nowadays, so there is a lot of hope. If you attend the doctors and the surgeons and they do lots of things to you, there is hope; but cardiovascular disease is something that could happen. If you are not so lucky, of course, you will get cancer of the lung, which is a very nasty business indeed. Again, there is hope. Some people can be cured, but the treatments are often pretty awful. They make you very ill and you are unlikely to live a normal life afterwards. If you still think that it is worth it, you should consider what is most likely to happen to you if you carry on smoking, even moderately". The noble Lord, Lord Stoddart, mentioned all the things that are bad for us, and indeed they are, but they are not necessarily bad for us in moderation, whereas smoking, I am afraid, is bad for us in moderation, too. "If you carry on smoking, you will almost certainly get chronic obstructive pulmonary disease, emphysema and bronchitis. You will gradually suffocate for lack of oxygen and eventually drown in your own green sputum, as we have already heard. That is what will happen to you. It is your choice. You make up your own mind, but those are the options if you carry on smoking. I am easy about it". None of my children now smokes.

Photo of Baroness Howarth of Breckland Baroness Howarth of Breckland Crossbench

My Lords, I make one very brief point in the hope of winning at least two votes from the Floor of the House—those of the noble Earl, Lord Onslow, and the noble Baroness, Lady Cumberlege. I address the noble Baroness directly because of her comments about the balance between potential harm and condoning exploitation in a visit. That is what this is about; we cannot condone potential exploitation because of another potential harm that we know is not a killer, because we know that smoking is a killer. I am a great respecter of the noble Earl, Lord Howe. In fact, I would have liked to have been persuaded by him because he is so persuasive, but I wish only that I could persuade him that this is a strategic health issue.

The noble Baroness, Lady O'Cathain, argued clearly for children, and the noble Baroness, Lady Northover, pointed out that it is not the small shopkeepers who will pay for the new displays. When I talked to another noble Baroness earlier, who is not in the Chamber but will vote in a particular way, she said, "I am not particularly in favour of this but I will vote for it, because we are at a point in history at which we will move to these kinds of gantries being seen as an historical incident, and we will move further towards less and less smoking and towards it becoming less attractive". I hope that noble Lords will support this.

Photo of The Earl of Listowel The Earl of Listowel Crossbench

My Lords, I wish to speak for half a minute before the Minister replies. As vice-chairman of the All-Party Group on Children and Young People in Care, I remind your Lordships that, according to the Office for National Statistics, two-thirds of children in public care smoke. For many years, I have talked to professionals who work with such children, and it is very clear that what all children benefit from but which children in public care particularly need is a consistent, unified voice from adults. It is not helpful to have prominent displays of brightly lit tobacco products in stores that children visit, often daily, when one is trying to tell them that tobacco is a poison and addictive and should never even be tried once.

C

I would like to thank The Earl of Listowel for remembering the most vulnerable groups, which he advocates for very well. Young people in care are highly likely to become adicted to cigarettes early on having often come from families who did not protect them from such things!. Earl Listowel is right, we much protect all children from these dangerouse substances.

Submitted by Careleaver Waif & Stray

Photo of Baroness Barker Baroness Barker Spokesperson for Health

My Lords, I shall set out very briefly the formal position of noble Lords on these Benches and to address one or two points that have not been covered in the debate so far. I will not take very long, because there is a danger that we will not reach two measures that most definitely will have a positive impact on youth smoking—banning vending machines, and plain packaging—if we continue this debate for a great deal longer.

I came to this debate as someone who strongly supported the tobacco advertising Bill of my noble friend Lord Clement-Jones. I also advocated the ban on smoking in public places. I, like the noble Earl, Lord Howe, came to the debate wanting to see evidence of what works. Perhaps my biggest disappointment has been that we have been bombarded from all sides of the argument by evidence which, as the noble Lord, Lord Borrie, rightly said, is dubious and highly speculative. I listened very carefully when the noble Baroness, Lady Howarth, started to talk about indicative evidence. I wanted evidence that this measure would work.

We on these Benches supported a number of amendments in Committee from my noble friends, such as an amendment to have a comprehensive strategy, and we supported the ban on vending machines, but we wish to see the evidence on point-of-sale displays. I have found the case made by small shopkeepers far from compelling. I have not met them, but I have read every single piece of lobbying that has come to me. Much of it is overstated, so I am not going to rely on their evidence.

The evidence from Canada and Iceland is extremely weak, and that is the main evidence that has been used by the cancer charities. I am afraid that the fact that it is not convincing has not necessarily been put to me by tobacco manufacturers, who I have the pleasure of not meeting. The NHS Confederation itself said that those studies cannot prove causation. That is a key stumbling block for me because of something that has not been mentioned so far. People have drawn parallels with other products, and I have found many of those parallels spurious. What has concerned me is the number of young people who make their way to finding distributors of other addictive drugs. The policy of "out of sight" has not worked for other drugs such as cannabis and heroin. Noble Lords have not mentioned the fact that, between 2001 and 2007, sales of smuggled tobacco in Canada increased by 2,000 per cent.

The one organisation that I have met is ASH. I have been trying to find evidence not only that this strategy will deter young people from buying products in shops but that it will not drive them into the hands of the illegal trader. For me, that is a major consideration. Having thought about this every day for several months, I have on balance come to the conclusion that the noble Earl, Lord Howe, is right. My colleagues, as noble Lords have heard, disagree strongly with me. It is their right to do so. I respect them, and I respect Members on other Benches who disagree with those on their Front Benches. We will have a free vote. I do not know what the outcome will be; the noble Earl, Lord Onslow, may yet swing it. I simply hope that when any Government present serious public health proposals to this House in the future, they can do so on the basis of independent and reliable evidence. That is what we have missed all the way through.

Photo of Baroness Thornton Baroness Thornton Government Whip, Baroness in Waiting (HM Household) (Whip) 6:15 pm, 6th May 2009

My Lords, we all knew that today would be a hard fought and passionate debate, and so it has been. The Smoking Kills White Paper of 1998, the Tobacco Advertising and Promotion Act 2002 and the "smoke-free" legislation of 2006 have educated people about the harms of smoking, have controlled tobacco advertising and have stopped people smoking in public places. These measures have been spectacularly successful in reducing the number of people who smoke; we now have the lowest smoking rates on record.

There was no way of knowing how far-reaching the good effects would be when we passed legislation on advertising and for smoke-free public places. The noble Lords, Lord Clement-Jones, Lord Walton of Detchant and Lord Patel, my noble friend Lord Faulkner, the noble Baronesses, Lady Howarth, Lady Finlay, Lady Emerton and Lady O'Cathain, and many other noble Lords fought hard against hostility, scepticism and misinformation to win these great reforms. We are asking noble Lords to do this again this evening.

The success of the past means that, since 1998, 2.4 million fewer people have been smoking and countless lives will be saved as time moves on. However, this success also means that the future of the tobacco industry depends increasingly on recruiting new people to smoke and keeping them smoking. We know that two-thirds of people who have smoked regularly started smoking before they were 18. We also know that if they had not started smoking before age 21, there is a very good chance that they would never have become addicted smokers.

It is to help ensure that our children and young people do not become addicted smokers at an early age that we want to remove tobacco promotion through cigarette displays. We do not want cigarettes in our corner shops alongside the sweets, the magazines, the soft drinks and the newspapers. The noble Earl completely failed to address that point, or the point about how susceptible children are to promotions; advertising, sponsorship and celebrity association are all tools that marketing agencies use to promote a product and to encourage young people to use it, to want it and to feel uncool without it.

It is true that we have stopped tobacco advertising; why, then, do we need to go further? It is because the tobacco displays in our shops constitute promotion in themselves. In 2002, when we debated the Tobacco Advertising and Promotion Bill, we were prepared to leave tobacco displays in stores alone, but we have since seen them develop with lighting, colours and features designed to draw the eye such as clocks and tower cases. There are glass containers strung from the ceiling, and transparent counter-top boxes on which you place your change. Display is enough to cause a problem on its own, without those fancy trimmings; it, along with in-store product positioning, is a central feature of marketing. Being close to the till is a prominent and highly valued position, which is exploited to great effect.

Cancer Research UK has clearly identified the role of tobacco displays in prompting young people to smoke in the UK. Even when the role of other, important factors that noble Lords have mentioned—including parental smoking, sibling and peer smoking, gender, age and social background—is taken into account then brand awareness, based on packaging and point-of-sale display, drives smoking among children who have never smoked before. The noble Earl tried to cast doubt on the research that has been mentioned; I will respond briefly to that. The Smee and Goddard reports were both conducted in the 1990s before measures were taken to limit tobacco promotion and, since 1998, we have had smoking prevalence fall from 11 per cent to just 6 per cent among 11 to 15 year-olds. The noble Earl, Lord Howe, is correct that smoking uptake does not depend on a single factor; that is why we need to continue to educate, to provide services for stopping smoking and to prevent tobacco promotion.

The Cancer Research UK report is based on a long-term study, which several noble Lords have mentioned. I shall not go into detail on that, but there is no doubt that a study that, over nine years, involved 5,900 children between 11 and 16 is one that we need to take extremely seriously. We have a responsibility to protect young people from tobacco promotion.

Photo of The Earl of Onslow The Earl of Onslow Conservative

My Lords, before the noble Baroness continues, could she possibly help me to make up my mind? By how much does she reckon that banning those displays will reduce tobacco smoking?

Photo of Baroness Thornton Baroness Thornton Government Whip, Baroness in Waiting (HM Household) (Whip)

My Lords, as I continue my remarks it may, perhaps, help the noble Earl, who was not here for the first part of the debate. I shall not repeat every detail that all noble Lords said earlier about the policy, but the national statistics on youth smoking show that, from 2002 to 2007, the proportion of children between 11 and 15 who ever smoked fell from 42 to 33 per cent, and the number who smoked regularly fell from 10 to 6 per cent. We know that our tobacco control strategy has been effective so far; we want to go further.

We also know that nicotine is highly addictive. It is easy for people to become addicted to smoking and, once addicted, someone who smokes is not making a choice to smoke—they are hooked. Research clearly shows that seeing a tobacco display when you are trying to quit makes it much harder to give up. It prompts impulse purchases, tempting people who want to give up smoking to buy cigarettes and carry on smoking against their will. We have a responsibility to do everything that we can to support those people who want to give up. We are satisfied that there are benefits to removing displays: it will remove the promotion of smoking to children and support those people who want to quit. We are convinced that removal is the right and responsible decision.

What, however, are the downsides? Plenty of information has been given to Peers suggesting that removing tobacco displays will be a doomsday, for all sorts of reasons. For example, we have heard a great deal about how covering tobacco displays in shops will make life difficult for customers who want to choose their brand, yet 90 per cent of smokers know exactly which brand they wish to buy before entering a shop and, as I have said in a previous debate, brands enjoy incredibly high brand loyalty. Whether a huge, well lit and colourful display is available will not deter the smoking customer, who will still make the additional purchases that are so important for the small shopkeepers. For those who want to check prices when buying tobacco products, the retailer will still have prices on show in their shop.

On the cost, over the past few months we have seen the tobacco industry and tobacco company-funded retail organisations attempting to panic shopkeepers about this proposed change. We are working closely with retailer groups, such as the Association of Convenience Stores and the British Retail Consortium, to ensure the most straightforward and cost-effective solutions can be found to remove tobacco displays. Frankly, I say shame on the tobacco industry scaremongers for unnecessarily panicking decent, honest shopkeepers who serve their communities well.

I turn to the points made on this issue by the noble Lord, Lord Naseby. We have not misled the House but given information in good faith, based on quotes received by the Department of Health from the vice-president of a Canadian company with experience of how Canada removed tobacco displays. The company told us that the cost of a permanent solution for a single business with 25 square feet of display, with magnetic flaps applied to existing gantries, was £8.47 per square foot. It would total £212 to remove that much display. The same quoted costs should be as little as £120 for a minimal display of around 14 square feet in a very small, independent newsagent. Those costs have been used to illustrate that other countries have used low-cost solutions; they are not, for example, the basis for the analysis of our impact assessment, which uses a more generous figure of £1,000 per shop, but have been used to combat the alarmist figures circulated by the tobacco industry.

We understand that the same company also provided quotes to the charity ASH, and my noble friend has answered that point. The costings given to ASH were not the basis of the letter to Peers from my noble friend Lord Darzi, or for the information given through debates and in other government briefings provided for Peers. The information given by the Government relates to the quotes received directly by us in good faith. I add that we understand that, in Canada, tobacco companies continue to pay for the tobacco gantries even after the display ban—meaning that the covers cost nothing to the retailer.

Photo of Lord Naseby Lord Naseby Conservative

My Lords, can we be quite clear that this is the 4 Solutions company of Canada, which is now quoted as saying that it costs £420, and that that does not include the fixture of the particular gantry? Is that correct?

Photo of Baroness Thornton Baroness Thornton Government Whip, Baroness in Waiting (HM Household) (Whip)

My Lords, I am giving the information that we were given when we asked how much it would cost to cover those gantries, and that is the answer which we passed on to noble Lords. Other noble Lords have pointed out that the Canadian company, although not owned by the tobacco industry, has as its major customers the tobacco companies and that there may be a conflict of interest. However, we are committed to finding low-cost solutions to this; we are certainly not in the business of frightening shopkeepers about it. We are also giving them a great deal of time for enforcing this.

There are a number of different ways in which tobacco displays could be removed from sight. Regulations would be designed to enable retailers to find the solution that suits them best. We would have a full public consultation on draft regulations. We will not force tobacco under the counter. I repeat that nothing here forces tobacco under there. That is more scaremongering. Solutions could include keeping the same tobacco shelving by simply adding covers, which could be cheaply designed while remaining professional in appearance, with the new blank space offering the opportunity for retailers to sell advertising space for other products at a key place by their tills. Even with the generous high estimate in our impact assessment, this policy remains cost-effective because the consequences of smoking are so dire.

We have been in the vanguard of tobacco control. Removing tobacco displays is the next important step in tackling the harms caused by smoking. Canada, Iceland and others have already done it. The Republic of Ireland has just agreed to do it from July this year. Further, I was delighted to hear today that Western Australia has just committed to removing displays.

I finish by commending the work of organisations such as Cancer Research UK, ASH and the British Medical Association, which have worked hard to provide us with the evidence we need to tackle smoking. Removing tobacco displays is another important step towards a tobacco-free world, one where children are protected and people who want to quit are supported to do so.

I thank noble Lords who have spoken in support of this policy. I have to confess that I am disappointed and regret the position taken by the noble Baroness, Lady Barker, but I urge her colleagues to follow the exhortations of the noble Baronesses, Lady Northover and Lady Tonge. I therefore commend Clause 19 to the House.

Photo of Lord Cotter Lord Cotter Spokesperson for Innovation, Universities and Skills, Spokesperson for Business, Enterprise and Regulatory Reform, Shadow Spokesperson (Business, Innovation and Skills), Shadow Spokesperson 6:30 pm, 6th May 2009

My Lords, those of us who are very concerned about children who smoke do not feel convinced about removing displays. What does she say about a matter raised in the debate—cigarettes that are smuggled into the country, which we believe are the real source of the problem? Will she deal with the issue of illegal sales of cigarettes over the counter and the lack of severe penalties?

Photo of Baroness Thornton Baroness Thornton Government Whip, Baroness in Waiting (HM Household) (Whip)

My Lords, we have taken the illicit trade of tobacco very seriously and have made great progress in dealing with it. It remains a priority for the Government. We have published our Tackling Tobacco Smuggling Together, we have seized 14 billion illicit cigarettes and over 1,000 tonnes of hand-rolling tobacco, so far we have broken up 370 criminal gangs, and we have successfully prosecuted 2,000 people. We will continue to do this. We believe that using that issue in this argument is a red herring.

Photo of Earl Howe Earl Howe Shadow Minister, Health

My Lords, this has been a very good debate. I thank those noble Lords who have taken part from whichever perspective. I am particularly grateful to the noble Baroness, Lady Barker, for presenting the official view of her party with such persuasiveness. Like her, I take a simple view of this sort of proposal, which is that a Government can only justify imposing costs and burdens on business if the evidence is unarguably there to do so. I believe that in this case the evidence is very weak.

I say to the noble Lord, Lord Faulkner, that the research I quoted, which directly contradicts the Government's position, was commissioned by the Department of Health. It was not anything to do with the tobacco companies. Many things drive young people to smoke. I agree with the noble Lord, Lord Judd, that social deprivation is one of the major things. I simply do not believe that tobacco displays have been shown to be remotely equivalent as an influence on behaviour.

Those whose business it is to campaign on cancer and health matters are naturally on the side of any measure that might have the slightest effect of reducing smoking prevalence. I understand that but, if we look at what is being said by Ministers, there is more than a flavour of the ends being used to justify the means. I do not think it is right to do that here. The Government could take all sorts of measures that would have nothing like the same damaging effect on small businesses, but which nevertheless usefully contribute to the anti-smoking drive. A ban on proxy purchases by adults for children would be one of them. However, they have rejected those alternatives and chosen instead to take a route that brings with it what I see as unacceptable collateral damage. The evidence from Canada is there, including the evidence that children are turning ever more frequently to smuggled tobacco. I agree with the noble Lord, Lord Cotter, that that is what we really should be worrying about.

It is already illegal to sell cigarettes to children—it is a criminal offence—so deterring them from buying cigarettes in shops is an aim with questionable dividends in terms of child health. I believe that we should think about the people and the communities whom this measure will affect most if small shops start to disappear, as I fear they will. I also believe that we owe it to ourselves to sign up to a policy only if the evidence supports it. I do not think it remotely succeeds in doing so. I therefore think it is right for me to test the opinion of the House.

Division on Amendment 46

Contents 110; Not-Contents 204.

Amendment 46 disagreed.

Division number 1 Health Bill [HL] — Report (2nd Day)

Aye: 108 Members of the House of Lords

No: 202 Members of the House of Lords

Ayes: A-Z by last name

Tellers

Nos: A-Z by last name

Tellers

Clause 20 : Power to prohibit or restrict sales from vending machines

Amendment 47

Moved by Baroness Finlay of Llandaff

47: Clause 20, page 25, line 3, leave out "may" and insert "shall"

Photo of Baroness Finlay of Llandaff Baroness Finlay of Llandaff Crossbench 6:47 pm, 6th May 2009

My Lords, we have heard the arguments about health for children and those against having temptations for children. I now want to address vending machines. It is said that less than 1 per cent of tobacco sales are from vending machines. The British Heart Foundation estimated that in 2006, more than 46,000 children acquired their cigarettes from vending machines. Forty-five million cigarettes were sold to 11 to 15 year-olds through vending machines. There are 22 countries in Europe that have already taken the step of banning vending machines. Banning vending machines will not restrict smokers' choice at all; in fact, it will support those small shopkeepers on whose behalf we have previously heard arguments.

If someone is desperate to get their packet of cigarettes and there is not a vending machine in the club, they will go to the small local corner shop, most of which are open until late at night. However, the reality is that among adults, only about one in 20 uses a vending machine. Underage children and teenagers can easily obtain cigarettes from vending machines. They are meant to be installed in the eyesight of whoever is manning the bar in a pub, but "within the eyesight" sometimes means not facing the majority of customers and serving the majority of customers.

There have been several studies of young people going in and flagrantly buying cigarettes from vending machines. It has been argued, "If the ID was enforced more closely, they could be monitored more closely". The reality is that all one has to do is to type "Fake ID" into Google and it can be bought for £25. It looks remarkably like any normal ID. Someone serving in a pub or bar with many customers will not be able to tell the difference. Indeed, when I was shown a so-called European driving licence, I did not spot that it was fake until my nephew quite cannily pointed out how I could recognise that it was. However, if that was flashed up at somebody who was busy serving, believing it would be completely understandable. We know that age verification is not sought in any case.

I can see no argument for maintaining vending machines. It has been said that the vending machine manufacturers might feel under threat, but they would not be. They can easily put other things in boxes of that size. I have a couple of commercial suggestions for them: a "his and hers" refresher pack; his containing aftershave, a toothbrush, some breath freshener and deodorant; hers containing deodorant, a personal wipe and a toothbrush. They could also contain other things or become lucky-dip vending machines. There is no sound commercial argument for maintaining cigarette vending machines, but there is a sound health argument to remove a large source of cigarettes for the underage when we know that 17 per cent of children get their cigarettes through vending machines.

Photo of Lord Walton of Detchant Lord Walton of Detchant Crossbench

My Lords, I will tell your Lordships a story about what happened recently in a survey in the north-east of England. Child smokers as young as 11 were found to be able to buy cigarettes easily from vending machines. The tests were carried out by trading standards officers across the north-east using a range of volunteer purchasers aged from 11 to 16, who went into bars, pubs, amusement arcades, bowling alleys and other outlets across the region. On most occasions the children were able to buy cigarettes from machines unchallenged by bar or other staff. The staff even helped on some occasions, when the children were having difficulty getting the money to stay in the slot. One 15 year-old was given change by the staff to ensure that he could buy from the machine.

The results were 99 attempts made and 58 successful purchases. The North East Trading Standards Association has recently called for cigarette vending machines to be banned, and undertook this work to show just how easy it is for children to buy this dangerous product even though the legal age of sale for tobacco in the UK is now 18. Surveys show that 17 per cent of regular smokers aged 11 to 15 usually buy their cigarettes from vending machines, whereas, in contrast—as my noble friend has said—in 2008 only one in 20 adult daily smokers said that they had bought cigarettes from vending machines in the previous six months.

The evidence makes it clear that the measures in law to control the purchase of cigarettes from vending machines are being widely flouted. This comes from studies undertaken in Newcastle, the county of Northumberland, Middlesbrough, south Tyneside, Durham, Sunderland, Gateshead, Hartlepool and Stockton-on-Tees. I cannot but say that the evidence to ban the sale of cigarettes from machines is compelling. I support the amendment.

Photo of Lord Faulkner of Worcester Lord Faulkner of Worcester Labour

My Lords, I can bring your Lordships a little closer to home than the noble Lord, Lord Walton. Yesterday, I hosted a meeting in a Committee Room upstairs on behalf of the British Heart Foundation, which showed a film that had been shot in three pubs very close to your Lordships' House. The identities of the pubs were carefully concealed and, in them, there were two 14 year-olds, a boy and girl from a school in Luton, who were commissioned to see if it was possible to buy cigarettes from the vending machines in each of those pubs.

The answer, of course, was that it was very easy indeed. The children succeeded in each pub. The bar staff on the premises had no interest whatever in the fact that the children were in there and buying cigarettes; indeed, they may not have even seen them doing it because the vending machines were not directly in their line of sight. When the boy found it a little difficult to put money into the machine, a customer helpfully said, "I shouldn't do that, it thinks you're underage". Indeed he was, but he had no difficulty in getting the cigarettes out.

I am a little disappointed by the Government's timidity on this issue. The Bill gives us an opportunity finally to remove vending machines from Britain. If we did so, we would be complying with the WHO Framework Convention on Tobacco Control and following the example of 22 other countries in Europe. It is a great pity that this opportunity has not been taken, and I am afraid that I must tell my noble friend the Minister that, if the noble Baroness pushes this to a vote, I shall be voting with her.

Photo of Baroness Barker Baroness Barker Spokesperson for Health

My Lords, I do not wish to detain the House for long, not least because there is yet one more important item on the agenda which I sincerely hope that we can get to.

Unlike the previous debate, the evidence base here is quite clear; in fact, I will add to it. A wholly unscientific poll of every adult smoker I have spoken to in the past month has come up with a 100 per cent result: they all think that vending machines are a complete anachronism. They belong to the time when the whole of Wales shut on a Sunday. Well, it no longer does, and all they therefore are is, as other noble Lords have said, a way for young people to get around that scrutiny and supervision which some of us believe is important in cigarette transactions. I hope that the Minister will accept the amendment; if she does not, I assure the noble Baroness, Lady Finlay, that I and all my colleagues will be with her in the Lobbies.

Photo of Lord Patel Lord Patel Crossbench

My Lords, my name is on the amendment, which I strongly support. I see no reason why we carry on with vending machines that dispense cigarettes to children. The film that the noble Lord, Lord Faulkner, mentioned is compulsive viewing, showing two children so easily obtaining cigarettes from vending machines near the Houses of Parliament.

Photo of Lord Turnberg Lord Turnberg Labour

My Lords, I have a simple view of this. If one starts from the position of wanting to protect children from the effects of smoking, we should make it more difficult for them to obtain cigarettes. Vending machines are an easy way in, as we have heard. I cannot think of any rational reason why we should not get rid of them.

Photo of Baroness Thornton Baroness Thornton Government Whip, Baroness in Waiting (HM Household) (Whip)

My Lords, this group of amendments would compel the national authorities in England, Wales and Northern Ireland to ban tobacco vending machines. The amendments would also require the Government to consult those people affected by such a ban. As I stated in Grand Committee, the Government recognise that there is a serious problem with young people accessing tobacco. Noble Lords will know how sympathetic I am to the amendment.

Noble Lords will also know that we raised the age of sale for tobacco to 18 in 2007, and may be aware that, from 1 April this year, trading standards authorities have new powers to tackle underage sales. From now on, those caught persistently selling tobacco to children could be prevented from selling tobacco to anyone for up to a year. We continue to work closely with trading standards officers and the business community to raise the profile of this issue and to ensure that retailers and vending machine operators are fully informed about their duties under the law.

We know that most vending machines do not have age check mechanisms in place and often they are sited away from the bar or where staff cannot see them, meaning that no one is supervising their use. Although we know that vending machines are easily accessible to young people, the Government believe that we should take a staged response to the problem. Age-restriction mechanisms applied to vending machines could prevent underage access to cigarettes, while maintaining the source of cigarettes for adults.

We are committed, as we have just illustrated, to protecting children from the harms of tobacco. We are already working with key stakeholders such as the National Association of Cigarette Machine Operators and trading standards to develop regulations. We would specify how vending machines need to be operated and managed to prevent underage sales and we are committed to consulting on draft regulations as soon as possible after Royal Assent.

We understand the concerns of those who are unconvinced by age-restriction mechanisms. We are already looking to the experience abroad and to new mechanisms being trialled here in the UK to ensure that the most effective approach is taken to tackle this problem. Should it become necessary, we are committed to using the power in this Bill to prohibit cigarette vending machines altogether. We intend to introduce requirements on vending machines from October 2011 and to measure their efficacy over a period of two years. Should underage sales from vending machines remain a problem after that period we will move to ban them.

The Government are committed to protecting our children. I welcome the support we have received in this House and I hope that, in the light of our commitments, the noble Baroness will feel able to withdraw the amendment.

Photo of Baroness Finlay of Llandaff Baroness Finlay of Llandaff Crossbench

My Lords, I would like to have been able to thank the Minister for her reply, but I cannot. I am not at all convinced. What she has outlined is lamentably weak, particularly in the light of the recent victory. Therefore, I feel I must test the opinion of the House. I cannot see an argument put forward here to maintain these anachronistic vending machines.

Division on Amendment 47

Contents 86; Not-Contents 134.

Amendment 47 disagreed.

Division number 2 Health Bill [HL] — Report (2nd Day)

Aye: 84 Members of the House of Lords

No: 132 Members of the House of Lords

Ayes: A-Z by last name

Tellers

Nos: A-Z by last name

Tellers

Amendments 48 to 53 not moved.

Clause 21 : Power to prohibit or restrict sales from vending machines: Northern Ireland.

Amendments 54 to 59 not moved.

Amendment 60

Moved by Lord Patel

60: After Clause 22, insert the following new Clause—

"Plain packaging of tobacco products etc.

(1) The Secretary of State may make regulations imposing such requirements as he considers necessary prohibiting or restricting the sale or supply of tobacco products otherwise than in packages or packaging which comply with the regulations.

(2) The regulations made by the Secretary of State in subsection (1) may impose such requirements the Secretary of State considers necessary or expedient with respect to any one or more of the following particulars—

(a) the colour of the packages or packaging;

(b) the shape and material of the packages or packaging;

(c) distinctive marks displayed on the packages or packaging;

(d) trade marks or registered trade marks displayed on the packages or packaging;

(e) the labelling in any respect of packages, packaging or tobacco products, or associated with packages, packaging or tobacco products;

(f) the contents inside the packages or packaging, in addition to tobacco products; and

(g) any other particulars as may be prescribed by the Secretary of State.

(3) Regulations made under this section may provide that packages or packaging of any such description, or falling within any such class, as may be specified in the regulations shall not, except in such circumstances (if any) as may be so specified, be of any such colour or shape, or display any such mark or trade mark, or any other particulars as may be so specified.

(4) No person shall, in the course of a business carried on by him, sell or supply, or have in his possession for the sale or supply, any tobacco product, package, or packaging in such circumstances as to contravene any requirements imposed by regulations under this section which are applicable to that tobacco product, package, or packaging.

(5) Any regulations made under this section may provide that any person who contravenes the regulations shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding a level on the standard scale specified in regulations made by the Secretary of State.

(6) Before making any regulations under this section, the Secretary of State shall consult such persons as are likely to him to be substantially affected by those regulations.

(7) For the purposes of this Act—

"package" shall mean the packet, container, wrapping or other receptacle which contains or is to contain the tobacco products;

"packaging" shall mean all products made of any material to be used for the containment, protection, handling, transporting, delivery, sale and presentation of the packages;

"tobacco product" shall include cigarettes, cigars and any other product containing tobacco and intended for oral or nasal use and smoking mixtures intended as a substitute for tobacco, and the expression "cigarettes" includes cut tobacco rolled up in paper, tobacco leaf, or other material in such form as to be capable of immediate use for smoking, and cigarette papers, tubes and filters;

"trade mark" and "registered trade mark" shall have the same meaning as in section 1 of the Trade Marks Act 1994 (c. 26).

(8) Regulations made by the Secretary of State under this section—

(a) may make different provision for different cases; and

(b) may contain such incidental supplemental, consequential and transitional provision as the Secretary of State thinks fit.

(9) The powers of the Secretary of State under this subsection shall be exercisable by statutory instrument which shall be subject to the affirmative resolution procedure."

Photo of Lord Patel Lord Patel Crossbench 7:11 pm, 6th May 2009

My Lords, my apologies, but it appears that someone has inadvertently removed my papers. My amendment relates to plain packaging. In summary, the amendment is about providing the Secretary of State with powers to make regulations which will restrict the use of branding, including the shape and colour of tobacco products and their packaging. The pack will retain the brand name of the product displayed in a standard font and the volume of the product; for example, "20 cigarettes". The pack will retain features required by statute, including health warnings, tar and nicotine yields and a duty stamp.

Before making these regulations, the Secretary of State shall consult with affected parties. The regulations will be subject to affirmative resolution. The measures are necessary because the current branded packaging constitutes a highly effective form of tobacco advertising. Tobacco branding is particularly potent in the recruitment of young people into a lifelong and lethal addiction. Design features including colour-coding give the misleading and illegal impression that one type of cigarette is less harmful than another.

I reintroduced the amendment because since Committee plenty of new evidence has emerged from a variety of sources. I have also amended it in response to the objection of the noble Lord, Lord Stoddart, that it should provide for an affirmative instrument. Greater clarity has been provided by the Minister on the forthcoming tobacco control strategy which could include a planned review of the evidence. The Committee stage of the debate coincided with the World Conference of Tobacco or Health on the very day Members debated plain packs, and new research was presented that showed that plain packs are an effective means of controlling sales to children.

There are other issues relating to plain packs, which I believe the new amendment addresses. I hope that the Minister agrees to include it in the tobacco control strategy. If young people and smokers are to be given a real, free and informed choice about whether they should smoke or not, we should prohibit the branding which misinforms and inhibits choice. I beg to move.

Photo of Lord Borrie Lord Borrie Labour

My Lords, I express opposition to this amendment from the noble Lord, Lord Patel. In Grand Committee, when the noble Lord, Lord Patel, introduced a plain packaging proposal, which was similar to, but not exactly the same, as this Amendment 60, he admitted that:

"Large, bold, written health warnings are effective in motivating smokers to quite, and new picture warnings may be even more effective".

He went on to say:

"However, tobacco branding lessens the impact of the warning message, as colourful branding detracts attention from health warnings".—[Official Report, 11/3/09; col. GC442.]

I find that last sentence very difficult to accept. It seems to me a major assumption that the brand detracts seriously from the health warnings. The phrase, for example, "Smoking kills", which when looking at the gantry one sees again and again because it is on each packet, and the visually unpleasant pictorial warnings are far more vivid than any logo or brand, whether coloured or not. Even the Government—at least when last in Grand Committee—who seemed only too willing to impose further restrictions on the promotions of tobacco products, have not been impressed by evidence that the introduction of plain packaging would reduce the number of young people taking up smoking.

Since the Tobacco Advertising and Promotion Act 2002 banned most methods of promoting and advertising tobacco, brand differentiation is one of the few methods left to compete in the market place—apart from reductions in price. Presumably, neither the noble Lord, Lord Patel, nor his colleagues who favour this amendment, would want competition to consist entirely in lowering prices. That, of course, would encourage young people to buy. At Grand Committee, the noble Lord, Lord Naseby, and I expressed concern that Amendment 60, or something like it, expressly opened up the possibility of prohibiting by regulation the use of trademarks on cigarette packets—and trademarks are specifically mentioned in subsection (2) of Amendment 60.

To obtain a trademark on any product you have to pay application fees, you have to pay registration fees, you have to pay renewal fees; all paid to the state. In return, you get a property right, which of course is absolutely useless unless you can affix the trademark to the relevant product. In Grand Committee, I quoted an expert on intellectual property law, Mr Christopher Morcom QC, who expressed concern that such a proposal would contravene international law, European law, and British national law. Since our debates in Grand Committee, he wrote a letter to the Times, 24 April 2009. The last sentence in his letter reads:

"The House of Lords should have none of it".

Photo of Lord Naseby Lord Naseby Conservative

My Lords, I very much support the noble Lord, Lord Borrie. Although I shall not repeat what he has said, I totally concur because the legal dimensions of this are, frankly, awe-inspiring or frightening, whatever the right phrase is. We do not need to cover them again; they were clearly placed on the record in Grand Committee.

I will mention a couple of other new dimensions. First, the very existence of a brand, whether it be a cigarette or anything else, gives the customer a reassurance of quality. We know already that, roughly speaking, a third of our tobacco products are imported from somewhere or other and, without a brand, my friends, you will find that the importation of other products in plain packaging will dramatically increase. Canada has already seen that since the display ban the importation of products to Canada has risen to 50 per cent of the market. From a health point of view, relating just to tobacco, it is important that those who decide to purchase know that they are getting a product of guaranteed quality and not a bit of grass that has been put together somewhere in the world.

The other dimension that I want to mention concerns looking at what other countries have done. Occasionally in this country, we need to look at what others do. Both the Canadian and Australian Governments, having weighed up the legal advice, have decided that they are not going down this route. The reasons for that are partially because of the points that the noble Lord, Lord Borrie, raised; partially for the reasons that I have just given; and not least that because companies right across the consumer goods market value their brands—and they have a tremendous value—any Government tempted down this route will find themselves having to pay enormous compensation for the loss of a brand.

Photo of Baroness Golding Baroness Golding Labour

My Lords, I will speak briefly to oppose the amendment. I do not know what is worrying the noble Lord, Lord Patel, about what is already on the packages. Is it the phrase:

"Smoking seriously harms you and others around you"?

Is it, "Smoking kills"? Is it, "UK duty paid", which is in large letters, to prevent smuggling? Is it:

"Smoking causes ageing of the skin", with a lurid picture provided by the Government? Is it:

"Smoking can cause a slow and painful death", with a lurid picture of someone's neck falling out, which is also provided by the Government ? Is it:

"Protect children—don't make them breathe your smoke", with another lurid picture?

What is the noble Lord objecting to? Is it the tar content, which is on the packet? Is it the nicotine content, which is on the packet? Is it the carbon monoxide content, which is on the packet? Is it just that the brands display their brand name, and do so, as they are entitled to do? What is bothering the noble Lord?

Photo of Baroness Barker Baroness Barker Spokesperson for Health

My Lords, since the amendment stands also in my name, perhaps I might, with the leave of the noble Lord, Lord Patel, answer that question on his behalf. It is none of those things, which would remain on a plain package—the health warnings and all of that. It is the use of colours and effects on packets to make them attractive to young people and to imply some kind of value and quality. That is what packets do. That is the distinction. I happen to have lost my point earlier. I think that those signs that were put on to tobacco packets as a result of the Bill introduced by my noble friend Lord Clement-Jones should remain. I happen to think that having them on display is far more effective than what the Government have provided.

I say to the noble Lord, Lord Borrie, that I am not going to take him on in areas of law; I cannot do that. The reason why I was happy to put my name to the amendment tabled by the noble Lord, Lord Patel, was because it gives the Government a power for a future date. It anticipates the fact that there will be a great many technical and legal arguments which will have to be settled. The noble Lord is absolutely right, and the noble Lord, Lord Naseby, is right, that any Government who were to go down this road without having taken due legal advice about TRIPS and about advertising would be unwise. I want to see us have the power to do this, and I want to see the British Government have the power to do this, not because we have to comply with some treaty or some piece of European legislation, but because we believe that it is right, as part of our comprehensive tobacco strategy. I have no problem with making the packaging as unattractive to young people as possible; it is important that we do that.

Photo of Lord Faulkner of Worcester Lord Faulkner of Worcester Labour

My Lords, on this amendment, I am happy to follow the noble Baroness and to say that I agree with what she said. I disagree with those who are opposed to the amendment proposed by the noble Lord, Lord Patel. The reason I do so is because we have to understand how important to tobacco promotion the pack has become. The Tobacco Journal International in its fourth issue of 2008 wrote:

"An increasing focus has been put on the ever more elaborate design of cigarette boxes. Exclusive packaging is an instrument to communicate brand image and differentiate premium, high-priced brands from value cigarettes; while the cost of production is roughly the same for both and, according to analysts, the difference in quality is barely perceptible, the profit margin of premium brands is considerably higher than that of low-priced cigarettes".

There are a number of examples of tobacco companies that have chosen to introduce new brands in a way that appeals to particular markets. Camel Natural Flavour is a youth-oriented brand variant which was launched in 2007. In speaking to the trade press, Gallaher's communications manager said:

"Camel is the smoking style statement for young adult smokers".

A new range of Silk Cut cigarettes is,

"aimed at females and will initially feature a limited edition to make it stand out on the shelf".

These are now an important part of tobacco advertising and promotion. I support very much the concept that there should be required to be plain packaging.

To pick up the point made by my noble friend Lord Borrie about Mr Christopher Morcom, I do not dispute that he is a very distinguished trademark lawyer, but he is not an entirely objective witness. The tobacco papers to which a number of us have had access show, for example, that in 1993 he made a direct appeal to British-American Tobacco for financial support for the Bach Choir. A gentleman called Mr Clarke from BAT said:

"I am ... anxious to help Christopher if at all possible as he is currently the best and most experienced trade mark lawyer in practice at the Bar at the moment and I want to keep him sweet".

When people have close connections with the tobacco industry, it is important that we are aware of those connections when they are speaking up on its behalf. That very much applies to his letter to the Times.

Photo of Baroness Thornton Baroness Thornton Government Whip, Baroness in Waiting (HM Household) (Whip)

My Lords, I welcome the intention behind the amendment, which is to protect children from the marketing of tobacco products and to make completely clear the relative safety or otherwise of tobacco products.

As I said in Grand Committee, the Government's position on this issue was set out by the Secretary of State's Written Ministerial Statement made in the other place, which stated:

"We believe that more needs to be done to develop our understanding of how the packaging of tobacco products influences smoking by both adults and young people. The Government will therefore keep tobacco packaging under close review".—[Hansard, Commons, 9/12/08; col. 47WS.]

Evidence presented during the tobacco consultation suggests that the packaging of tobacco products may encourage young people to start smoking and may undermine health messages about the dangers of smoking. We want to strengthen and build on this evidence base.

We are committed to introducing a new tobacco control strategy by the end of the year. In Committee, I mistakenly said that the strategy would be for both England and Wales. I take this opportunity to clarify that the new tobacco control strategy will, unfortunately, be for England only.

Further action on tobacco control in Wales is being addressed through the Welsh Assembly's Our Healthy Futureframework.

In England, the Government will outline in the new tobacco control strategy what further steps we might take to protect children and people who smoke from misleading or promotional messages. Introducing plain packaging for tobacco products will be something that we will look at. I hope that the noble Lord, Lord Patel, will feel able to withdraw his amendment in the knowledge that, should the evidence lead us to plain packaging, the Government will bring it to Parliament.

Photo of Lord Patel Lord Patel Crossbench 7:30 pm, 6th May 2009

My Lords, I thank the Minister for her comments, and the noble Baroness, Lady Barker, for putting her name to my amendment. I also thank all other noble Lords who spoke in favour of it.

The comments about intellectual property rights made by the noble Lord, Lord Borrie, were mistaken. The World Intellectual Property Organization, the director-general of trade for the European Commission and the DTI have all commented that these arguments are wrong. The noble Baroness, Lady Golding, asked what I want on the package; but what I do not want is more important. I do not want fancy colours, fancy packaging and holograms that detract from the important messages that she referred to.

I thank the Minister for her answer and look forward to a tobacco strategy that includes evidence-gathering and consultation on plain packaging. On that basis, I beg leave to withdraw the amendment.

Amendment 60 withdrawn.

Amendment 61

Moved by Baroness Northover

61: After Clause 22, insert the following new Clause—

"Guidelines for engagement with tobacco industry

(1) Within two months of the passing of this Act, the Secretary of State shall establish a review of the government's policies on engagement with the tobacco industry.

(2) This review must assess the extent to which the United Kingdom conforms to Article 5.3 of the World Health Organisation's Framework Convention on Tobacco Control and its accompanying guidelines.

(3) The Secretary of State must publish any updated policies within six months of the passing of this Act."

Photo of Baroness Northover Baroness Northover Spokesperson for International Development, Liberal Democrat Lords Spokesperson (International Development)

My Lords, the Framework Convention on Tobacco Control is an international treaty of the WHO to which the UK is a party. Article 5.3 seeks to protect public health policy from tobacco industry influence. The amendment seeks to ensure the implementation of Article 5.3, which states that when parties are setting and implementing public health policies related to tobacco control, they shall,

"act to protect these policies from commercial and other vested interests of the tobacco industry in accordance with the national law".

The amendment received widespread support in Committee. The Minister said that she considered the UK Government to be bound by it, and explained the practice of the Department of Health in an encouraging way. However, it is not clear that other departments are as aware of their responsibilities. Furthermore, additional evidence has emerged about the use by the tobacco industry of proxy organisations to lobby on its behalf. We have seen much evidence of that in the long debate this afternoon.

It is not just the Department of Health that is covered by the treaty, but other departments such as DBERR and the Treasury. The Foreign Office—the only department with a published policy on the matter—has demonstrated that such guidelines need not be onerous. I am encouraged and grateful to have received this morning a letter from the Minister telling me that the Secretary of State, Alan Johnson, wrote last week to all his colleagues, including the Prime Minister, reminding them of their obligations under the treaty.

Engagement with the tobacco industry should be limited to areas where it is strictly necessary; for example, to regulate tobacco products and the industry itself. The engagement must be transparent, and I would like a legal obligation on the industry to declare when something is industry-financed, as is the case with the Save Our Shops campaign. Before I hear from opponents that this is grossly unfair, let me counter one or two points.

The amendment does not prevent the tobacco industry speaking to the Government, but it does define the terms of engagement. The tobacco industry has been shown to subvert the public policy process and public health objectives. As such, it must be obliged to work within a transparent framework when communicating with the Government. This is an agreement that we have already signed up to. The amendment is designed to drive forward not the principle, which is already agreed, but its implementation. I beg to move.

Photo of Baroness Thornton Baroness Thornton Government Whip, Baroness in Waiting (HM Household) (Whip)

My Lords, I welcome the sentiment of this amendment. The Government are fully committed to implementing the articles and guidelines of the World Health Organisation's Framework Convention on Tobacco Control. The UK Government's policy on engagement with the tobacco industry is to abide by the guidelines for implementation in Article 5.3.

We take seriously our responsibilities under the FCTC. Indeed, we have already contributed as a partner country to the development of guidelines for Articles 8 and 11, which concern protection from second-hand smoke and the packaging and labelling of tobacco. We continue as partners in the development of guidelines for implementing Articles 9 and 10, which regulate the contents and disclosures of tobacco products, and we are formally facilitating the development of Article 14 guidelines on demand reduction measures concerning tobacco dependence and cessation.

Article 5.3 guidelines were agreed at the third conference of the parties to the FCTC in November last year, and the UK worked with EU counterparts to refine, improve and gain consensus for the final guidelines. The UK Government abide by their responsibilities under the guidelines for implementing Article 5.3.

Guidelines for implementing all FCTC articles are available on the Department of Health website, alongside an update on progress since the third conference of the parties. However, after discussion with the noble Baroness, and to raise awareness across all departments of government of the responsibility to abide by Article 5.3 guidelines, the Secretary of State for Health has written to his counterparts across Whitehall to remind them of their obligations, providing a copy of the guidelines and giving contact details of Department of Health officials who can provide further advice on implementation.

I hope that with this reassurance and the determination that we have shown, the noble Baroness, Lady Northover, will withdraw her amendment.

Photo of Lord Naseby Lord Naseby Conservative

My Lords, will the Minister confirm that what she has stated abides by the five principles of the Better Regulation Commission—that regulation should be proportional, accountable, consistent, transparent and properly targeted? Do those principles inform the criteria for the new missive that has gone to all departments?

Photo of Baroness Thornton Baroness Thornton Government Whip, Baroness in Waiting (HM Household) (Whip)

My Lords, I am happy to make available to the noble Lord both the contents of the letter and the guidelines, so that he can see that they are proportionate and that they allow appropriate discussions with the tobacco industry to take place.

Photo of Baroness Northover Baroness Northover Spokesperson for International Development, Liberal Democrat Lords Spokesperson (International Development)

My Lords, this provision is clearly proportionate. It is something that we have already signed up to; I was pressing on the question of implementation. I am extremely encouraged by the reply of the noble Baroness and I beg leave to withdraw.

Amendment 61 withdrawn.

Consideration on Report adjourned until not before 8.37 pm.