Children and Families Bill — Report (5th Day)

– in the House of Lords at 3:51 pm on 29th January 2014.

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Votes in this debate

Amendment 57B

Moved by Earl Howe

57B: Before Clause 80, insert the following new Clause—

“Regulation of retail packaging etc of tobacco products

(1) The Secretary of State may make regulations under subsection (6) or (8) if the Secretary of State considers that the regulations may contribute at any time to reducing the risk of harm to, or promoting, the health or welfare of people under the age of 18.

(2) Subsection (1) does not prevent the Secretary of State, in making regulations under subsection (6) or (8), from considering whether the regulations may contribute at any time to reducing the risk of harm to, or promoting, the health or welfare of people aged 18 or over.

(3) The Secretary of State may treat regulations under subsection (6) or (8) as capable of contributing to reducing the risk of harm to, or promoting, the health or welfare of people under the age of 18 if the Secretary of State considers that—

(a) at least some of the provisions of the regulations are capable of having that effect, or

(b) the regulations are capable of having that effect when taken together with other regulations that were previously made under subsection (6) or (8) and are in force.

(4) Regulations under subsection (6) or (8) are to be treated for the purposes of subsection (1) or (2) as capable of contributing to reducing the risk of harm to, or promoting, people’s health or welfare if (for example) they may contribute to any of the following—

(a) discouraging people from starting to use tobacco products;

(b) encouraging people to give up using tobacco products;

(c) helping people who have given up, or are trying to give up, using tobacco products not to start using them again;

(d) reducing the appeal or attractiveness of tobacco products;

(e) reducing the potential for elements of the packaging of tobacco products other than health warnings to detract from the effectiveness of those warnings;

(f) reducing opportunities for the packaging of tobacco products to mislead consumers about the effects of using them;

(g) reducing opportunities for the packaging of tobacco products to create false perceptions about the nature of such products;

(h) having an effect on attitudes, beliefs, intentions and behaviours relating to the reduction in use of tobacco products.

(5) Regulations under subsection (6) or (8) are to be treated for the purposes of subsection (1) as capable of contributing to reducing the risk of harm to, or promoting, the health or welfare of people under the age of 18 if—

(a) they may contribute to reducing activities by such people which risk harming their health or welfare after they reach the age of 18, or

(b) they may benefit such people by reducing the use of tobacco products among people aged 18 or over.

(6) The Secretary of State may by regulations make provision about the retail packaging of tobacco products.

(7) Regulations under subsection (6) may in particular impose prohibitions, requirements or limitations relating to—

(a) the markings on the retail packaging of tobacco products (including the use of branding, trademarks or logos);

(b) the appearance of such packaging;

(c) the materials used for such packaging;

(d) the texture of such packaging;

(e) the size of such packaging;

(f) the shape of such packaging;

(g) the means by which such packaging is opened;

(h) any other features of the retail packaging of tobacco products which could be used to distinguish between different brands of tobacco product;

(i) the number of individual tobacco products contained in an individual packet;

(j) the quantity of a tobacco product contained in an individual packet.

(8) The Secretary of State may by regulations make provision imposing prohibitions, requirements or limitations relating to—

(a) the markings on tobacco products (including the use of branding, trademarks or logos);

(b) the appearance of such products;

(c) the size of such products;

(d) the shape of such products;

(e) the flavour of such products;

(f) any other features of tobacco products which could be used to distinguish between different brands of tobacco product.

(9) The Secretary of State may by regulations—

(a) create offences which may be committed by persons who produce or supply tobacco products the retail packaging of which breaches prohibitions, requirements or limitations imposed by regulations under subsection (6);

(b) create offences which may be committed by persons who produce or supply tobacco products which breach prohibitions, requirements or limitations imposed by regulations under subsection (8);

(c) provide for exceptions and defences to such offences;

(d) make provision about the liability of others to be convicted of such offences if committed by a body corporate or a Scottish partnership.

(10) The Secretary of State may by regulations provide that regulations under subsection (6) or (8) are to be treated for the purposes specified in regulations under this subsection as safety regulations within the meaning of the Consumer Protection Act 1987.

(11) The Secretary of State may by regulations make provision amending, repealing, revoking or otherwise modifying any provision made by or under an enactment (whenever passed or made) in connection with provision made by regulations under any of subsections (6), (8), (9) or (10).

(12) The Secretary of State must—

(a) obtain the consent of the Scottish Ministers before making regulations under any of subsections (6), (8), (9) or (10) containing provision which would (if contained in an Act of the Scottish Parliament) be within the legislative competence of that Parliament;

(b) obtain the consent of the Welsh Ministers before making regulations under any of those subsections containing provision which would (if contained in an Act of the National Assembly for Wales) be within the legislative competence of that Assembly;

(c) obtain the consent of the Office of the First Minister and deputy First Minister in Northern Ireland before making regulations under any of those subsections containing provision which would (if contained in an Act of the Northern Ireland Assembly) be within the legislative competence of that Assembly.

(13) For the purposes of this section a person produces a tobacco product if, in the course of a business and with a view to the product being supplied for consumption in the United Kingdom or through the travel retail sector, the person—

(a) manufactures the product,

(b) puts a name, trademark or other distinguishing mark on it by which the person is held out to be its manufacturer or originator, or

(c) imports it into the United Kingdom.

(14) For the purposes of this section a person supplies a tobacco product if in the course of a business the person—

(a) supplies the product,

(b) offers or agrees to supply it, or

(c) exposes or possesses it for supply.

(15) In this section—

“enactment” includes—

(a) an Act of the Scottish Parliament,

(b) a Measure or Act of the National Assembly for Wales, or

(c) Northern Ireland legislation;

“external packaging”, “internal packaging” and “wrapper” have the meanings given by regulations under subsection (6);

“packaging”, in relation to a tobacco product, means—

(a) the external packaging of that product,

(b) any internal packaging of that product,

(c) any wrapper of that product, or

(d) any other material attached to or included with that product or anything within paragraphs (a) to (c);

“retail packaging”, in relation to a tobacco product, means the packaging in which it is, or is intended to be, presented for retail sale;

“retail sale” means sale otherwise than to a person who is acting in the course of a business which is part of the tobacco trade;

“tobacco product” means a product consisting wholly or partly of tobacco and intended to be smoked, sniffed, sucked or chewed;

“travel retail sector” means retail outlets in the United Kingdom at which tobacco products may be purchased only by people travelling on journeys to destinations outside the United Kingdom.”

Photo of Earl Howe Earl Howe The Parliamentary Under-Secretary of State for Health

My Lords, I am very pleased to have tabled government amendments that introduce regulation-making powers to enable the Government to bring in standardised tobacco packaging, if such a decision is made.

I would like to acknowledge the support and positive responses that we have had to the Government’s action on tobacco and its packaging. We have seen support in both your Lordships’ House and in the other place. I have also had discussions with a number of noble Lords. I was pleased as well to see the welcoming comments from the public health community. I wrote to all noble Lords on 17 December explaining the key elements of this new clause. I will summarise the main provisions.

Amendment 57B will provide the Secretary of State for Health with the power to make regulations to standardise packaging of tobacco products, should such a decision be taken by the Government. The regulation-making powers would enable Ministers to regulate internal and external packaging and any other associated materials included with a tobacco product.

This would include, for example, not just the outside and the inside of a cigarette pack but also the cellophane or other outer wrapper of a pack.

Ministers may also specify requirements for the products themselves, for example to regulate the appearance of, or branding on, individual cigarettes. The powers will extend to other forms of tobacco, such as hand-rolling tobacco. If standardised packaging is brought into place, we will think carefully about the type of tobacco to which the requirements should apply.

The amendment is clear that before deciding whether to introduce regulations, Ministers must consider that regulations may contribute at any time to reducing the risk of harm to those under 18 or promote their health or welfare. This includes harms that do not appear until later in life because, as we know, the harm to the health of a smoker may not be immediate but may manifest after several years of addiction. Ministers may also consider whether regulations may contribute to reducing the risk of harm to those aged 18 or over, so we could also take into account whether standardised tobacco packaging might help adults who want to quit.

The amendment sets out the elements of the tobacco packaging that could be regulated—for example, the use of colour, branding or logos, the materials used and the texture, size and shape of the packaging. It also sets out the aspects of the tobacco product itself that could be regulated. The Government would not necessarily use all these powers, and if we proceed we will need to decide which aspects to include in any regulations. However, it is prudent to take a comprehensive approach now so that we are prepared for possible future developments and do not inadvertently create loopholes that could be exploited.

The requirements would apply only to the retail packaging of tobacco products, which means the packaging that will or is intended to be used when the product is sold to the public. Manufacturers, distributors and retailers would still be able to use branding such as logos and colours on packaging, provided that they were used only within the tobacco trade—for example, on boxes used for stock management in a warehouse that were not seen by the public.

These provisions will apply on a UK-wide basis, provided that legislative consent Motions are passed by the Parliament or Assemblies of the devolved Administrations. The Governments in Wales and Scotland have already obtained the necessary Motions, and Ministers in Northern Ireland are progressing this.

The Government have also tabled two technical amendments, one making the regulations subject to affirmative resolution procedures and the other extending the provisions to the whole of the United Kingdom. If regulations are made, they will be enforced by local authority trading standards as safety regulations under the Consumer Protection Act. In reviewing the detail of the amendment, we have identified a small gap that we wish to address. As it is currently drafted, Ministers would not be able to take enforcement action if none was taken by a local authority. As a precaution, and in line with other tobacco control legislation, we think it sensible for Ministers to be able to do this and so intend to make a technical amendment to the new clause at Third Reading to allow for this.

I wrote to noble Lords on 27 January about the Government’s intention to table amendments at Third Reading on the proxy purchasing of tobacco and the sale of nicotine products, primarily e-cigarettes, to children. I hope that both measures will be welcomed by your Lordships. I recognise that these amendments come at a late stage in the Bill’s passage, and I apologise for this. I want to be able to give noble Lords as much information as possible, so have invited all Peers to a meeting to discuss the amendments on 3 February and would be happy to meet on an individual basis as well, so that there is time to consider them before the debate at Third Reading.

I shall summarise these amendments. We intend to create a new offence of the proxy purchase of tobacco, which is buying tobacco on behalf of someone underage. Nicotine is highly addictive and it is wrong in principle for adults to be buying cigarettes on behalf of children. We need to close common routes of supply to children. We know that proxy purchasing is a common problem and we need to take clear action to tackle it. There was considerable support for tackling proxy purchasing when it was debated in the Anti-social Behaviour, Crime and Policing Bill. We have also listened carefully to the views of retailers and their representative organisations on this issue.

In addition, we have decided to table an amendment to enable us to make regulations to prohibit the sale of electronic cigarettes to people aged under 18. E-cigarettes deliver nicotine, a highly addictive substance, albeit in a safer way than smoked tobacco. We know that some young people in England are using these products and there is nothing stopping their sale to people under 18. Some in the public health community are very concerned that e-cigarettes could act as a gateway into smoking tobacco, and that their use and promotion can undermine our efforts to reshape the social norms around tobacco use. The revised European tobacco products directive, which achieved political agreement in December last year, covers e-cigarettes but does not include an age of sale restriction. We therefore want to do this domestically through the Bill.

The amendments will apply to England but we are in discussions with the Welsh Government regarding the possibility of extending the provisions to Wales, subject to the necessary legislative consent Motion being secured.

I hope your Lordships will welcome these additional measures and understand why we are using the opportunity of this Bill to take these additional steps to try to protect young people from developing a lifelong addiction to smoking, with the major consequences this will bring to their health. Tobacco use is a leading preventable cause of death, accounting for nearly 80,000 deaths per year in England alone. Almost two-thirds of smokers take up smoking regularly before they are 18. We must take action to prevent young people taking up smoking in the first place.

The Government have tabled this new clause on tobacco packaging so that we can act without delay if it is decided to introduce standardised tobacco packaging. Health Ministers have commissioned Sir Cyril Chantler to carry out an independent review of the evidence on whether the introduction of standardised tobacco packaging is likely to have an effect on public health, in particular for young people. The review will report by March 2014.

The decision about whether to go ahead and introduce standardised packaging clearly and correctly rests with the Government. We will need to consider Sir Cyril’s report about the impact on public health alongside the wider issues raised by this policy. I will not pre-empt the outcome of the review, nor indeed of the decision-making process, but I can confirm that the Government will introduce standard tobacco packaging if, following the review, we are satisfied that there are sufficient grounds to proceed. I beg to move.

Amendment 57BA (to Amendment 57B)

Moved by Lord Hunt of Kings Heath

57BA: Before Clause 80, line 3, leave out “may” and insert “must”

Photo of Lord Hunt of Kings Heath Lord Hunt of Kings Heath Shadow Spokesperson (Health), Shadow Deputy Leader of the House of Lords 4:00 pm, 29th January 2014

My Lords, I shall speak also to my Amendments 61 and 57BB. I very much welcome Her Majesty’s Government’s change of heart as far as standardised packaging is concerned, and I certainly welcome the appointment of Sir Cyril Chantler to review the evidence. Sir Cyril is known to many of your Lordships and has made a significant contribution to the NHS. We can have complete confidence in his work.

My two amendments are designed to press the noble Earl on the comments he made in his final remarks and to encourage him to give the House an absolute assurance that should Sir Cyril Chantler conclude that the evidence is clear that standardised packaging is effective in reducing the risk of harm to children, the Government will speedily move to lay the regulations specified in his Amendment 57B. The noble Earl will know that at the moment line 3 of his amendment merely says,

“The Secretary of State may make regulations”.

I would have preferred to see the word “must”. To an extent, the noble Earl has already explained why it is to be “may”, but are there any circumstances where, on the assumption that Sir Cyril has concluded positively, the Government would not proceed to legislate?

Amendment 57BB concerns the proposal that it be an offence for any person who drives a vehicle to fail to prevent smoking in the vehicle where a child or children are present. I do this on the basis that the past 15 years have seen an impressive reduction in the amount of smoking in this country. Indeed, since the previous Government’s 1998 Smoking Kills action plan, smoking rates among children, who are, of course, the focus of this Bill, have fallen by more than half following a period of little progress lasting 20 years. I have little doubt that the ban on advertising was pivotal, but the fall was also due to a series of other concerned measures which included an increase in the age of sale, picture warnings on packs and an above-inflation increase in tobacco duty to reduce affordability.

I believe that we should continue the momentum and protect future generations from the dangers of smoking. That is why I welcome the Government’s agreement to legislate on standardised packages and the proposals that the Minister has outlined today in relation to proxy purchasing and the restriction of the sale of e-cigarettes to under 18 year-olds. However, the Government could do more by accepting my amendments and support the principle of a ban on the use of cigarettes when children are present in cars.

Children’s lungs are smaller and they have faster breathing rates, which makes them particularly vulnerable to second-hand smoke, especially within the close confines of a car. Members of the public are protected by smoke-free legislation when in public transport and work vehicles. However, large numbers of children remain exposed to high concentrations of second-hand smoke when confined in family cars. Indeed, around one child in five reports being regularly exposed to second-hand smoke in cars, with catastrophic health consequences. Figures released by the British Lung Foundation show that around 185,000 children between the ages of 11 and 15 in England are exposed to potentially toxic concentrations of second-hand smoke in their family car every day or on most days.

We know that children exposed to second-hand smoke have a raised risk of lower respiratory infections, wheeze, asthma, middle ear infections and meningitis. Every year, exposure to second-hand smoke leads to an estimated 165,000 additional cases of these conditions among children. Many of those cases are serious, leading to an estimated 8,500 hospital admissions.

I was very surprised by research identified by the British Lung Foundation, which shows that a single cigarette smoked in a moving car with the window half open exposes a child in the centre of the back seat to around two-thirds as much second-hand smoke as in an average smoke-filled pub of days gone by. Levels increase to 11 times those of a smoky pub when the cigarette is smoked in a stationary car with the windows closed.

Some noble Lords will argue—as I heard the FOREST spokesman arguing this morning—that a car is a private space and that we should not legislate for what happens in such a space. However, there are more important principles than that, one of which is the need for child protection. Unlike most adults, children lack the freedom to decide when and how to travel, and they lack the authority most adults have to ask people not to smoke in their company. In those circumstances it is right for Parliament to step in to protect children.

I know that the Government argue that the most effective way to reduce smoking in cars carrying children is not through legislation. In his letter to us the noble Earl talked of two successful campaigns aimed at encouraging people to change their behaviour, and said that the evaluations are encouraging. From what I see—and they do not appear to be very robust evaluations—I am not aware that the scientific evidence of behavioural change has been published. Can he give an assurance that the evaluations spanned several months and not just immediately after the campaign? Can he also confirm that they took into account what was reported by children and not just adults? There is sometimes a discrepancy between what adults say they do and their behaviour as reported by children. Can he also confirm that the research includes actual measurement of behavioural change? I do not believe that marketing measures such as website visits effectively demonstrate behaviour change. Can the noble Earl also say why, if the Government are so keen on evaluation, Ministers forced NICE to abandon a project to give public health guidance for commissioners and providers on the development and implementation of policies on smoke-free homes, private cars and other vehicles?

The noble Earl will argue that this is best done through education. I understand that argument and I certainly accept that education programmes can achieve much. However, my contention is that we are now close to—

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

I have listened to the noble Lord very carefully and I cannot understand—perhaps he can explain it to me—why on earth he has joined the question of plain packaging with smoking in cars. They are two completely different issues. Is it expected that those of us who are concerned with both amendments now have to speak in one debate rather than two, on two particularly difficult and important matters?

Photo of Lord Hunt of Kings Heath Lord Hunt of Kings Heath Shadow Spokesperson (Health), Shadow Deputy Leader of the House of Lords

My Lords, a number of amendments have been grouped together. Some deal with standardised packaging, others with the issue of smoking in cars. My answer to the noble Lord is that we will deal with both issues in one debate. The House always has to trade off having separate debates on individual amendments or pulling them together. I, for one, think it is better that we have a wider debate; but of course the noble Lord is entitled to speak on both issues. I hope that he will do so because he always has interesting insights—although I do not always agree with him on this particular one.

In finishing, I want to come back—and anticipating the noble Earl’s response—to the issues around awareness campaigns. As I said, of course they can achieve much, but sometimes legislation also needs to be brought into the picture.

Photo of Lord Forsyth of Drumlean Lord Forsyth of Drumlean Conservative

The noble Lord said earlier in his speech that the principle of not legislating into private space and private family activity was one that should be breached on certain occasions. Could he explain why he is stopping at cars and not at living rooms in small flats, for example?

Photo of Lord Hunt of Kings Heath Lord Hunt of Kings Heath Shadow Spokesperson (Health), Shadow Deputy Leader of the House of Lords

My Lords, they are two different issues. I certainly do not propose that we legislate in relation to people’s homes. The differences lie, first, in the scale of the health issue. As I have already indicated, the amount of second-hand smoke that a young person is likely to inhale in a car generally will be very much higher than in a person’s home. Secondly, by and large there are usually rooms in a person’s home that are not used for smoking, so there is more of an element of choice. I accept that this is a continuum, but I assure the noble Lord that it is not my intention to propose a ban on smoking in people’s homes. There are specific circumstances that make the banning of smoking in cars while children are present a particular health issue.

Photo of Lord Cormack Lord Cormack Conservative

I am grateful to the noble Lord. Surely, my noble friend Lord Forsyth highlighted a very important point. He talked about small flats; there are small flats where there may be several children and only one living room. What is the logic of the noble Lord’s argument in that case? Personally, I do not think we should invade private space; that is my position and I may seek to defend it later. There is no logical difference between a single child in a car and four children in the living room of a small flat.

Photo of Lord Hunt of Kings Heath Lord Hunt of Kings Heath Shadow Spokesperson (Health), Shadow Deputy Leader of the House of Lords

My Lords, I do not accept that. Clearly, in relation to a child travelling in a car we are going to debate where the balance lies: whether a car should be regarded as a private entity in which the state ought not to intervene, or whether noble Lords consider that a child’s health becomes the paramount concern.

A private car is rather different from a home; the health damage to a young person inhaling smoke in a car generally will be much greater than in a person’s home. I do not want to repeat the point that I have already made to the noble Lord, Lord Forsyth, although I may be tempting him to intervene again. However, within a home there are likely to be opportunities for young people to avoid the smoke-filled parts of that home.

Photo of Lord Forsyth of Drumlean Lord Forsyth of Drumlean Conservative

I do not want to prolong the noble Lord’s speech; I am not making a debating point, but am genuinely interested in his logic. A child in a car—which I accept is a very confined space—will probably be in a car for a short journey. If children are in a living room, they are there all evening. Perhaps I should declare an interest; my late mother used to smoke 60 cigarettes a day. That is one of the reasons why I would never touch a cigarette. Surely, if a child is in a small living room in which continuous smoking is going on, that seems to me, without any evidence, to be as great a health hazard as being in a car. I am not advocating invading private space, but where is the evidence that supports what the noble Lord is saying—namely, that it is a much worse hazard being in a car, probably on a short journey, than being in a living room where smoking goes on all day?

Photo of Lord Hunt of Kings Heath Lord Hunt of Kings Heath Shadow Spokesperson (Health), Shadow Deputy Leader of the House of Lords 4:15 pm, 29th January 2014

My Lords, I do not have evidence on the length of the average car journey, though clearly short and long distances may be travelled during which smoking may take place. I suspect that we can argue that until the cows come home. However, I come back to the core argument that in a confined space, such as a car, a child is likely to be more damaged through inhaling second-hand smoke than they are in a person’s home. That is the reason for making a distinction between legislation affecting an individual vehicle and legislation affecting a person’s home.

Photo of Lord Scott of Foscote Lord Scott of Foscote Crossbench

I wonder whether the noble Lord can help me. Does “private vehicle” in the amendment include a motor boat? One drives a motor boat.

Photo of Lord Hunt of Kings Heath Lord Hunt of Kings Heath Shadow Spokesperson (Health), Shadow Deputy Leader of the House of Lords

No, my Lords, I do not think that that is covered in my amendment—although, of course, it is open to the noble and learned Lord to propose an amendment to increase the scope of the measure. I would give such an amendment all due consideration.

I refer noble Lords to an inquiry into smoking in private vehicles by the All-Party Parliamentary Group on Smoking and Health, carried out in 2011, which concluded that the evidence from smoke-free public places was that legislation would be necessary to reduce exposure to cigarette smoke in cars. That is the basic case I am making. At this stage, I am asking noble Lords to support the principle of a ban. If my amendment were accepted, I would be very happy to work on a cross-party basis to consult on the type of offence that should be put in place. I have not gone as far as the noble Lord, Lord Ribeiro, and his colleagues in terms of specifying the offence because I think that needs further consideration and discussion.

We would not be alone in legislating to protect children from the damage of smoking in cars. Seven other countries already do so, including four US states, 10 of the 13 Canadian provinces and all but one jurisdiction in Australia. As far as the public are concerned, a YouGov poll in 2011 found that 78% of adults in Great Britain agree that smoking should be banned in cars carrying children younger than 18 years of age. Just as significantly, perhaps, a British Lung Foundation survey in 2011 found that 86% of children want action to be taken to protect them from cigarette smoke in cars. I think that we should listen to the voice of children in this respect. I hope that noble Lords will support the amendment that I shall propose later.

In concluding, I should have pointed out to noble Lords my health interests in the register, including being chairman of a foundation trust, a consultant and trainer with Cumberlege Connections and president of GS1.

Photo of Lord Ribeiro Lord Ribeiro Conservative

My Lords, the amendment of the noble Lord, Lord Hunt of Kings Heath, is compelling but fails to acknowledge the impact of second-hand smoke on children in confined spaces or in the home, as we heard in an earlier debate. For this to happen, the public, particularly parents, have to be educated about the harm that second-hand smoke can do to young children’s lungs. The noble Lord identified some of those problems. That is why I believe that education and behavioural change are important.

As a doctor, I recognise the damage that second-hand smoke can cause, and in particular the long-lasting effect it can have on the lungs of young children. Just this Sunday, I was present at the birth of my first grandson out of six grandchildren.

Noble Lords:

Hear, hear.

Photo of Lord Ribeiro Lord Ribeiro Conservative

I greeted that event with jubilation. I would not want that grandson to go through life having his young lungs damaged by cigarette smoke. I am concerned about that. Cigarette smoke contains a cocktail of carcinogens: arsenic, cadmium, formaldehyde, benzene and in particular the fine particulate matter that comes out of cigarettes when they are smoked. This can cause long-term damage and illnesses.

My Amendment 62, which mimics the Private Member’s Bill that I took through this House in 2012, serves to make parents and the public aware of the risks and to provide educational programmes to rehabilitate them through smoke-free driving awareness courses. I believe strongly in education and behavioural change, rather than the imposition of punitive measures. It is about providing incentives to change behaviour, not dissimilar from the police driving course which noble Lords may have been offered if they have ever been unfortunate enough to have been caught speeding. There may be some in this Chamber who can endorse the benefits of that.

In that sense, my amendment is exploratory, seeking to obtain answers from the Government on two specific issues. The first is education to change behaviour, as I explained. Here, I applaud the Government for their successful advertising campaign launched last year, with its graphic films of children assaulted by smoke in the back of cars while parents in the front are oblivious to the damage being done behind them, probably because the driver has a window open and therefore assumes that all the smoke is going outside. I should like assurances from my noble friend that the Government will repeat that successful campaign and undertake an extensive evaluation of its effects. We must know that behavioural change is happening.

I am sure that the Government have taken note of the Welsh Government’s Fresh Start Wales campaign. I made reference to this at Second Reading and asked whether the Government would again consider mirroring what the Welsh Government were doing. That Government are due to report in the spring on the result of their campaign, following which they reserve the right to introduce legislation if no improvement in behaviour is apparent.

My second question to the Government relates to a national consultation, which should involve the public, the profession and the retailers, to decide whether legislation or non-legislative measures are required to protect children from smoking in confined spaces. I am pleased that my noble friend has asked Sir Cyril Chantler to undertake an independent review of the public health evidence on standardised tobacco packaging and its effects on public health. Might he perhaps also consider asking Sir Cyril, at the conclusion of this review in March, to undertake a similar review of the effects of second-hand smoke on children travelling in cars? There is plenty of evidence out there but what is now needed is the clinical evidence that shows that smoke causes long-term damage. We know that the long-term sequelae from smoking in adults are quite severe. If we can demonstrate that they start at a very early age, that will be very good evidence for taking action now rather than later.

My amendment provides the Government with measures to change behaviour. They may have started with good intentions—and I am sure that they have. Standardised tobacco packaging will reduce the risk of smoking and its damaging effects on children. I hope that the Government will take the view that legislation, although difficult, may need to be considered. However, for legislation to work, I understand that it must be proportionate and enforceable. In this respect, my amendment is probably defective, as it will be difficult to police and to enforce, much in the same way, I suppose, as is the case with the mobile phone offence, which is legislated for but is difficult to police.

I hope that my noble friend will provide me with some of the concessions that I seek. I do not think that they are small ones but they will help to ensure that over the next year, and certainly over the next three months when we hear the results of the Welsh review and Sir Cyril Chantler’s review—and it is to be hoped that he will extend that further—we will have more information on which to make a decision as to whether we should introduce legislation or non-legislative measures.

Photo of Baroness Finlay of Llandaff Baroness Finlay of Llandaff Crossbench

My Lords, I have put my name to Amendments 60 and 62. I will first address Amendment 60 on standardised packaging and move on to the amendment to which the noble Lord, Lord Ribeiro, has spoken so eloquently. I hope to avoid covering the ground that has already been covered. In terms of standardised packaging, those of us who contributed in Committee to a very powerful and widely supported debate across the House are grateful to the Government for having done exactly what they said they would; namely, take the proposal away and look at it. They have returned with an elegant amendment. Before finally legislating, it seems wise to have an independent review by Sir Cyril Chantler.

This is definitely a public health and a child protection measure. I should like to address that briefly but not repeat what was said previously. The Minister has already said how many children start smoking before the age of 18. That figure is particularly high in looked-after children, where about one-third report that they are current smokers. However, when looking at children in residential care, the figure rises to more than two-thirds. There is a real problem with very vulnerable children.

In 1999, the tobacco industry’s magazine, World Tobacco, said that,

“if your brand can no longer shout from billboards … it can at least court smokers from wherever it is placed by those already wedded to it”.

The problem is that we know that tobacco is a highly addictive substance, and that the products of tobacco damage health and do not have any positive benefit. Recently, a study published in the European Journal of Public Health has shown that,

“the removal of brand imagery from tobacco packaging reduces the appeal of tobacco products, including perceptions of brand attractiveness and smooth taste and perceptions of lower tar or lower health risk”.

Those perceptions are an illusion. The study was in the UK, and I am sure that it will be considered in the evidence review and that Sir Cyril will be an independent reviewer in every sense.

It is worrying that it has taken us so long to get to this point. Like other noble Lords who have put their name to this amendment, I sincerely believe that the day will come when we will see standardised packaging. That day is not far off, because research study after research study reports are reinforcing that standardised packaging is making cigarette packs less attractive to young people.

I have had discussions with Her Majesty’s Customs as regards illicit trade. It pointed out that it is not that difficult to detect counterfeit standardised packaging, just as it is not difficult to detect other counterfeit packaging. Indeed, the cover marks, number codes and security marks are the clue, rather than the bald, external appearance of the pack. It also is well aware that tobacco firms have been producing and exporting cigarettes far in excess of any known demand in a stated target market abroad, knowing that this excess production will be smuggled back into the UK. The tobacco companies appear to have been complicit with what has been termed the illicit trade. It seems logical that this move and the government amendment are because of child protection issues and the importance of preventing children from starting to smoke.

On tobacco and smoking in cars, the British Lung Foundation study, which was addressed by the noble Lord, Lord Hunt, included another set of figures which I hope the House will consider. One has to remember that the children responding in the study were of an age at which they could answer competently. When asked about being a passenger in a car, 31% said that they had asked someone to stop smoking but 34% said that they had not dared to ask because they were too frightened or too embarrassed. The child in the back seat, belted in, is effectively imprisoned in the vehicle for their own safety while travelling. They are stuck there. They have no control over what the adults do, and it is worth remembering that they do not feel able to do anything about it either. As was pointed out by the noble Lord, Lord Hunt, if they are in a house, they can move to another room or another area and the volume of space is much greater than in a car.

Photo of Lord Cormack Lord Cormack Conservative 4:30 pm, 29th January 2014

Would this amendment apply to open-topped cars such as sports cars where children would presumably not be at risk?

Photo of Baroness Finlay of Llandaff Baroness Finlay of Llandaff Crossbench

It is worth pointing out that the noble Lord, Lord Ribeiro, has already indicated that he will not press his amendment, which is quite specific, and the amendment in the name of the noble Lord, Lord Hunt, simply addresses the ability to bring forward regulation but does not specify what those regulations should be. I respectfully suggest to the noble Lord, Lord Cormack, that his question is an important one for us to have at a later stage, in the event that the House decides to support the amendment of the noble Lord, Lord Hunt.

My last point relates to my home country of Wales, where I am delighted that the problem of tobacco consumption has been taken seriously. The results of the Welsh campaign will be published fairly soon. But it is with regret that I have to note that at the end of the first year of the campaign, 22% of smokers still pointed out that smoking was allowed in their car at any time. There is a perception that if it is allowed it is okay. I am concerned over the results that will come forward from the education campaign, although I fully support the campaign itself.

I remind the House that we had a parallel debate over seat belts in cars. Yet the seat-belt wearing rate increased in the UK from 25% before legislation to 91% after legislation. That was introduced alongside awareness campaigns. We cannot have legislation without a large education and awareness-raising campaign. The efficacy relates to the education and awareness-raising campaign rather than to any kind of punitive measures that go alongside it.

Photo of Lord Faulkner of Worcester Lord Faulkner of Worcester Deputy Chairman of Committees, Deputy Speaker (Lords)

I added my name to Amendments 57BB, 60 and 62 and will speak briefly to those, but I start by congratulating the noble Earl on bringing forward his Amendment 57B and for overseeing a significant change in government policy on the subject of standard packaging. Like many of your Lordships, I was heartened when I heard the then Public Health Minister, Anna Soubry, around a year ago saying that the Government were minded to go down the standard packs route and then bitterly disappointed last summer when the plans were suddenly dropped. Various conspiracy theories were propounded at the time and I will not go into those now, but it looked as if the issue was dead, at least for the foreseeable future.

At that point, it seemed sensible to look at whether there was any possibility of adding a standard packaging amendment to another Bill, which might not immediately present itself as the most appropriate, in order to be able to give the House the opportunity to debate the issue and come to a view on it. With the help of staff in the Public Bill Office—about whom I cannot speak highly enough, as their help was invaluable in framing our original amendment in Committee and the subsequent amendment that we tabled for today—we were able to bring the issue to the Committee and approach the issue in an entirely cross-party and non-party way. The amendment that we put together was signed by the noble Baronesses, Lady Finlay and Lady Tyler, the noble Lord, Lord McColl, and myself.

Amendment 60 is an improved version of what we had in Committee, but the Government’s amendment today is a great improvement on that as well. I congratulate them on picking up a number of the points that were defective in ours and coming forward with one that, I think, is very effective. Tobacco control should not be a party-political matter; it should be the common concern of everyone who cares about the health and the well-being of the public. As we have heard from the Minister, smoking-related disease still kills more than 100,000 people across the UK and is by far the most common form of preventable death—it accounts for more premature deaths than the next six most common causes put together.

As most smokers start as teenagers, the teenage market is the one which the tobacco companies are anxious to promote, which it is the responsibility of all of us to try to prevent. Two-thirds of existing smokers report that they started before their 18th birthday, and around two in five before they were 16. The younger the age at which they start, the greater the harm is likely to be, because the early uptake of the habit is associated with subsequent heavier smoking—of the sort that the noble Lord, Lord Forsyth, experienced with his mother and her 60-a-day habit—high levels of dependency, a lower chance of quitting and a higher chance of death from smoking-related disease.

For the tobacco industry to keep its market, it is necessary for it to recruit new smokers every year. That is because older smokers die or quit—or indeed lose their lives prematurely as a result of their habit. Since most smokers start when they are young, it follows that, for the industry, young people are the most important target group of potential new consumers.

We know what the tobacco industry would do in this country to promote its products if the law and the authorities allowed. Indeed, we probably know more about the commercial strategies of the tobacco industry than about any other major industry in the world, in large part because so many previously confidential documents were made public as a result of the US master settlement agreement with the industry in 1998.

Given the restrictive legislation around marketing and advertising tobacco in the UK, the industry is left with few options to promote its products. Of these, the most important is now packaging. Packs can be used to market and advertise, to create brand identities and to help present an image of smoking that may indeed seem “cool” to a curious teenager. There are many diversionary arguments advanced by the tobacco industry and the front groups it funds so lavishly about why we should not proceed with standardised packaging. So we hear tobacco industry claims that the UK is being flooded with illicit tobacco and that standard packs will make the problem worse. But the level of illicit trade has fallen sharply since it peaked back in 2000, and the security features on existing packs will also be present on standard ones. Both our amendment and the Government’s would allow the Secretary of State to specify packaging requirements that would enhance and not reduce product security, and make smuggling and counterfeiting more difficult.

However, the tobacco industry’s real, core argument is quite simple. It is advancing the proposition that its claimed so-called “intellectual property rights” trump the requirements of public health—or to put it more sharply, that its right to design products designed to get children addicted is more important than the children’s right to be protected from that addiction and the health damage that it causes. I believe that the overwhelming majority of your Lordships, and indeed Members of the other place, reject the tobacco industry’s arguments and want to make cigarettes as unattractive to children and young people as possible. So, as I said at the beginning, I warmly welcome the Government’s amendment. I congratulate the Minister on bringing it forward and on his announcement regarding proxy purchasing of tobacco products by adults for young people, and the regulation of e-cigarettes, about which we shall hear more at Third Reading.

I am not going to speak about smoking in cars because the speeches on that subject by the noble Lord, Lord Ribeiro—with whom I agree, and whom I congratulate on his perseverance in taking a Private Member’s Bill through your Lordships’ House on this subject—and the noble Baroness, Lady Finlay, have covered the main points. However, I strongly commend the points that my noble friend Lord Hunt made about the desirability of moving towards a smoke-free atmosphere in cars where children are trapped and subject to appalling levels of second-hand smoke.

I am very happy indeed to support the government amendment. We shall not be pressing our own amendment on standard packaging, but I shall be supporting my noble friend.

Photo of Baroness Tyler of Enfield Baroness Tyler of Enfield Liberal Democrat

My Lords, my name is also attached to Amendments 60 and 62. I will speak briefly to them and try not to repeat some of the arguments we have already heard. I will also say how much I welcome government Amendment 57B. In Grand Committee, the strength of feeling across your Lordships’ House on the issue of standardised packaging of cigarettes was crystal clear, and the Government are to be strongly applauded for responding with their own amendment, which is very well founded and very persuasive. I, too, look forward to Third Reading, when the Government will introduce additional measures around proxy purchasing and e-cigarettes.

At the beginning of these debates, some noble Lords raised questions about the logic of including an amendment on the packaging of cigarettes in a Bill whose stated remit is children and families. To my mind, the relevance is unequivocal—this is the very nub of the issue, which is why we are discussing it today. Preventing the uptake of smoking among the young is primarily an issue of child protection. As we have already heard today, each year around 200,000 under-16s take up smoking. For some, it is the start of a lifetime of addiction which will result in debilitating health conditions and, for some in turn, premature mortality. As the noble Baroness, Lady Finlay, pointed out, many of those children will come from particularly deprived backgrounds. We have already heard about children in care and I would draw your Lordships’ attention to teenage mothers, who, according to an ONS survey, are six times more likely than the average mother to smoke throughout their pregnancy, to the detriment of both their own and their baby’s health.

Standardised packaging, bearing clear anti-smoking messages, is the first key step to reducing the attractiveness of this lethal habit to children and young people. As we have just heard from the noble Lord, Lord Faulkner, we should be absolutely clear that tobacco packaging and branding is not innocuous. It is undoubtedly, at the moment, targeted at the young—the industry documents released in the USA about this were very telling indeed, although I do not intend to repeat the details of that. Equally critically, the weight of evidence is mounting that standardised packaging does work to reduce the incidence of smoking. I was very persuaded by the Department of Health’s systematic literature review, which found that, compared to current cigarette packs, standardised packs are less attractive to young people, improve the effectiveness of health warnings and reduce the mistaken belief that some brands are safer than others. I eagerly look forward to the outcome of the review by Sir Cyril Chantler, who will look at all of this in the round. I will be very surprised if he does not come out supporting the various literature reviews that we have already seen.

Very recently, thanks to the noble Lord, Lord Faulkner, I had the privilege of meeting with Nicola Roxon, the former Australian Minister for Health who was instrumental in the implementation of standardised packaging there. I was very impressed as she explained to us the impact that standardised packaging was having as part of—this is absolutely critical—a wider anti-smoking strategy in no longer portraying smoking as cool and glamorous or cigarettes as a “must have” accessory, but instead portraying a much less desirable, and far more truthful, image.

It is revealing that hard data are already coming from Australia—something that I am sure Sir Cyril will want to look at. A study in Victoria, Australia, published in the British Medical Journal, concluded that when consuming cigarettes from the new packs, smokers are 66% more likely to think their cigarettes were of poorer quality, 70% more likely to say they found them less satisfying and 81% more likely to have thought about quitting at least once a day. Why is that? Because standardised packs carry powerful health messages that expose the reality of smoking. Frankly, having seen some of the images, it would take a very strong stomach or tightly closed eyes to be unaffected by them.

I will say a few words in support of Amendment 62 on smoking in cars, which my noble friend Lord Ribeiro has already covered very eloquently. For me the nub of the issue is that as a nation we have recognised the harm that passive smoking can do and we have made laudable strides in mitigating its effects, by banning smoking in public places, on public transport and in work vehicles. There is a glaring omission: every day children across England are exposed to dangerously high levels of smoke when travelling in the family car. According to the British Lung Foundation—this is a different statistic—more than 430,000 children every week will be exposed to it.

In Grand Committee, in all the debates and earlier this afternoon it came up that whenever proposals of this sort are put forward some will argue that this is extending the reach of the nanny state: this is private space, where the Government should not get involved. But clearly there are overriding reasons for acting now to safeguard that most precious commodity, the health of our children. We hear lots of people, generally from the tobacco industry, talking about the rights of smokers, but who is speaking up for the rights of the child? Every parent can smoke if they want to, but surely every child should have the right to be in a safe environment, which includes when they are in a car.

When I read through the statistics, the one that most brought it home to me was that to which the noble Lord, Lord Hunt, has referred—that within the confines of a stationary car with a roof and the windows closed, a single cigarette can create concentrations of smoke 11 times greater than in the average smoky pub. How many parents would knowingly want to expose their child to such a toxic atmosphere with such adverse long-term effects on health? The answer of course is very few. Let us never forget that there is huge public support for this ban. A recent survey found that 80% of the public support it and so do 86% of children.

In Committee, my noble friend Lord Howe raised concerns about enforcement, but it must be possible to find a way forward here. The police already have a number of duties with respect to private vehicles, including on seat belts, intoxication levels of the driver, mobile phones and the use of child-safety seats and restraints. Those are not always easy to enforce and we may not have got things quite right yet, but I do not see why that role, primarily undertaken by the police, cannot with careful thinking also be undertaken in relation to smoking in cars with children.

We have a precedent. Seven out of eight states in Australia have adopted this legislation and found a way of enforcing it. We can learn something from them. I like to think that we can take this forward on a cross-party basis. I agree that it is too important to become a party-political football and it should be an issue that we can all agree on.

This has been an interesting debate. Is it better to have legislation or a public-education campaign? The latter would probably be effective. My own view, backed up by the statistics on wearing seat belts given by my noble friend Lady Finlay, is that having the two together is the most effective. We are not talking either/or; it is a clear case of both/and. I hope that today we send out a message, loud and clear from this Chamber, that it is simply not acceptable to expose your children to second-hand smoke in the car.

Photo of Lord Patel Lord Patel Crossbench 4:45 pm, 29th January 2014

My Lords, I am delighted to take part in this debate. Before I start, I shall not miss this opportunity to chide both Front Benches. I have spoken about this in the past and tabled many amendments on different health Bills. The last time that I tried was with the Labour Government. The Minister taking the legislation through was not the noble Lord, Lord Hunt, but the noble Baroness, Lady Thornton. I did not succeed on that day in getting my amendment through. Obviously, the government Benches were not going to support me, but I did have the support of the noble Baroness, Lady Barker, who is not in her place and who was the Front Bench health spokesman of the Liberal Democrats. I did not have the support of the noble Earl, Lord Howe, at the time—hence I did not succeed.

However, I am delighted to congratulate the Government on having, in a step-wise fashion—and as a result of efforts made by many other noble Lords, including the noble Baroness, Lady Finlay, and the noble Lord, Lord Faulkner—reached a place where they can bring forward an amendment to address the public health evidence that plain packaging will make a difference to the uptake of smoking of cigarettes, in particular by children. I am particularly delighted that the government amendment includes not just external packaging but internal packaging. I remember my days as a young medical student, when one would rush out and buy Sobranie Black Russians because the cigarettes were wrapped in nice black paper with gold tips. At the same time, we would also buy a packet of Sobranie Cocktails to impress the ladies we were taking to dances because they came in multicoloured wrappers—so packaging makes a difference, even to a young medical student.

I am therefore delighted to see the Government’s amendment. I have no doubt whatever that Sir Cyril Chantler, whom I know well as a friend, will be absolutely meticulous in looking at the evidence. I am convinced by the evidence and I hope that he will be, too.

Let me turn to the issue of smoking in cars when children are present. I have taken the trouble to look at all the evidence about second-hand smoke in confined spaces. I have looked at the public health evidence from the Surgeon General of the United States, from Australia, from New Zealand and from Great Britain—both epidemiological and observational studies. The findings are quite interesting: undoubtedly, second-hand smoking is harmful. It is harmful to children—more so because their metabolic rate is higher, so any injurious substances that they inhale are bound to have a greater effect. It is harmful also to adults, particularly older people who have respiratory conditions or cardiac disease. It is harmful also to pregnant mothers who do not smoke, among whom there is a higher rate of still-births and infant deaths because of the epigenetic effects of the inhalation of injurious substances during their pregnancy. It is worse if they smoke during their pregnancy, but even if they do not, the effect of second-hand smoke is harmful to them.

There is further evidence, mentioned by the noble Lord, Lord Ribeiro, that some of the injurious substances in tobacco smoke persist on certain surfaces for a very long time. So this issue is not just about smoking when there are children in a car; it is also about making that car harmful to children because injurious substances persist. That also applies to any confined space. So the question is: what legislation will have the greatest public health effect? Will it be legislation that stops smoking in cars when children are present? Will it be legislation that bans smoking completely? Of course, it will be the latter, but that will not be possible—such legislation is too draconian. Could it be a good educational programme that teaches people that if you smoke in front of children, whether in a confined space or in an open space, or if children just see you smoking, that is wrong and harmful?

I was accused by my wife of smoking 20 to 40 cigarettes a day. All young doctors smoked in those days; it was the thing to do. Not all doctors smoke these days. When I saw my daughter, who was 11 months old, watch me lighting a cigarette, it was the day that I stopped smoking. She might object to me giving her age, but she is past 40—just, and she is a cancer doctor, so she understands these things. I felt that her observing me lighting a cigarette would be as harmful to her as her taking up smoking. The issue that we should therefore debate is what would have the greatest public health gain, whether for children—more importantly for children—or for young adults, older people and pregnant mothers.

The amendment of the noble Lord, Lord Ribeiro, seeks more targeted education and some consultation to find the evidence. The amendment of the noble Lord, Lord Hunt, seeks to have on the statute that a regulation must be brought in. I was talking about regulations pertaining only to cars. The evidence that I have looked at would suggest that we should ban smoking in cars completely, because that way there would be no possibility of anybody smoking in cars and leaving injurious substances behind that may harm children. That may or may not be a better deal than that proposed by the noble Lord, Lord Hunt, but my plea is, “Let us look at what would be the best public health gain”.

Photo of Lord Cormack Lord Cormack Conservative

My Lords, I begin by congratulating my noble friend Lord Howe on his amendment. I wholly support what he said about packaging and about appointing Sir Cyril Chantler. I have the good fortune of knowing Sir Cyril. Like the noble Lord, Lord Patel, who spoke a moment ago, I believe that he is a man of impeccable integrity and great knowledge and I am sure my noble friend could not have chosen anyone better. I do not want to dilate on that subject.

I have smoked two cigarettes in my life. I was 15 years old; they were Woodbines and it was behind the bike shed. They were thoroughly disgusting—I have never smoked since and I never want to smoke. I am afraid I cannot say the same for my wife, although I think she has cut down a bit; she certainly does not smoke in my presence, either in the car or at home.

It is beyond doubt that we can and should accept everything that has been said about the dangers of smoking by the noble Lord, Lord Patel, and my noble friend—my friend in every way—Lord Ribeiro. We should do everything possible to deter people from smoking. I am sure I speak on behalf of everyone in congratulating my noble friend Lord Ribeiro on the birth of his grandson. I would be entirely in favour of the parents of the grandson of the noble Lord, Lord Ribeiro, being sent a note about the dangers of smoking. I would be entirely in favour of the parents of every newborn child being specifically warned about the dangers to children of passive smoking. I would be entirely in favour of increasing the taxes on cigarettes. I would be in favour of extra insurance premiums for people who smoke. I would not object to there being a column about smoking on car insurance forms, and, if you tick the smoking box, there being an extra premium that goes directly to the battle against smoking. I would be entirely in favour of all those things or permutations of them. There are many that we could all think of.

However, when it comes to the question of smoking in motor vehicles, my noble friend Lord Ribeiro introduced his amendment skilfully, tactfully and undogmatically. I have no argument with that, but I believe that his essential premise is wrong. To advocate any law that is going to be exceptionally difficult to police and enforce, and moreover brings the state into the private space of individuals, is to be deplored.

Photo of Baroness Howarth of Breckland Baroness Howarth of Breckland Crossbench

My Lords, can I just ask the noble Lord about the whole of the child protection law as it stands at the moment, which is in every private space to protect children from neglect, emotional harm and, indeed, abuse within their own homes.

I believe that this is actual harm. It is extraordinarily difficult to police every home, as we know from what happens to social workers and social services every time something occurs in a local authority because the policing has been so difficult. That does not stop us having legislation to ensure that in private place, the child is protected from harm. We have heard from the noble Lord, Lord Patel, just how harmful it is. Were it left to me, I would legislate in the private space of the home. Having been brought up in a two-bedroom house on a working class estate, I think that my lungs have suffered. I am just pointing out that we legislate for private space, because that point has been raised on a number of occasions.

Photo of Lord Cormack Lord Cormack Conservative 5:00 pm, 29th January 2014

My Lords, that was really a speech rather than an intervention. There is all the difference in the world between the physical or sexual exploitation of a child and smoking. Smoking is not an illegal activity. Some of us may wish that it were, but it is not. It would be wholly impractical, as the noble Lord, Lord Patel, made plain in his remarks, for us to outlaw smoking. That is a road down which we cannot go. Therefore, to invade the private space of individuals who are committing a perfectly legal act seems to me a step too far. That is why we should look at other means. I have mentioned taxation and increased insurance premiums; there are many routes down which we could go to make it more and more difficult for adults to smoke in the presence of children.

Most importantly, it is up to experienced people such as the noble Baroness and my noble friend Lord Ribeiro to ensure that there is a well informed education campaign so that no one is in any doubt that smoking is a harmful activity and that inhaling passive smoke is dangerous and injurious to health. I am with the noble Baroness and my noble friend on that all the way, but the invasion of personal space—prosecuting people for what is a legal activity—seems a step too far. That is why, while I welcome and applaud the amendment introduced by my noble friend Lord Howe—if there were a Division, although I am sure that there will not be, I would enthusiastically go into the Lobby to support him—I cannot support something that I believe is a step too far in the invasion of personal space, which would also be monumentally difficult to enforce. We have to bear in mind the responsibilities of the police, whose job it would be to stop the cars and ask the questions.

Photo of Lord Hunt of Kings Heath Lord Hunt of Kings Heath Shadow Spokesperson (Health), Shadow Deputy Leader of the House of Lords

Does not the noble Lord accept that, although there may be difficulties of enforcement, the very fact of passing a law combined with the kind of educational programme that he supports is likely to have a positive effect?

Photo of Lord Cormack Lord Cormack Conservative

No, frankly, I do not. I respect the noble Lord—he knows that—and we agree on many issues, but we will have to disagree on this one. I think it would make the job of the police even more difficult than it is at the moment and endanger what popularity they have with many law-abiding citizens. It is a burden that we should not place on them.

I repeat: let us do everything we can to educate; let us do everything we can to deter; let us have the plain packaging; let us listen very carefully to what Sir Cyril says in his report; but let us not take the ultimate step that the noble Lord advocates.

Photo of Baroness Masham of Ilton Baroness Masham of Ilton Crossbench

My Lords, I shall be brief. I congratulate the Government on having listened about packaging of tobacco. I also support the amendments to protect children from people smoking in vehicles. Apart from damaging children’s health, smoke gets in their eyes and is very unpleasant. There are also small babies and pregnant mothers whose unborn children need protecting. I hope that the noble Earl can give the House some assurance that there will be regulations that will protect these vulnerable babies and children. I would add that people with asthma, and all chest problems, should also be protected because this is really dangerous for their health.

Photo of Baroness Benjamin Baroness Benjamin Liberal Democrat

My Lords, I ask noble Lords to consider the following points as we debate these amendments. More than 800 children visit their doctors every day due to the serious effect of second-hand smoke exposure, according to research published by the Royal College of Physicians. The survey also highlights that 65% of parents who smoke admit to doing so in the car with their children and other people’s children present, and that 75% of smoking parents were shocked to hear that second-hand smoke affects the health of so many children. If they had not been asked that question they would not have been aware of this, so they really need to be educated.

Asthma UK has stated quite clearly that second-hand smoke is a major trigger for asthma attacks, making the symptoms even worse. It believes that if we take action to reduce second-hand smoke, we will be a step closer to a world where asthma begins to be no longer a daily struggle, or where no one dies from that condition. The children’s charity Sparks—I declare an interest as one of its trustees—spends millions of pounds on research to eradicate asthma among children, a condition which is growing daily. Sparks dearly believes that if we take action to protect children from second-hand smoke, that will be helpful to children. So let us give careful consideration to what action we should take to protect children from the result of second-hand smoking and act robustly in the best interests of the child.

Photo of Baroness Howe of Idlicote Baroness Howe of Idlicote Crossbench

My Lords, I very much support the aims behind Amendment 62, and indeed an awful lot of what the noble Lord, Lord Hunt, said about doing something really firm to prevent smoking in cars when children are present. This amendment certainly seems a sensible and straightforward way to ensure that all children have a healthy start in life, without the harmful influence of tobacco smoke in their young and still developing bodies.

We have heard that opponents of the proposed ban on smoking in cars have argued that legislation of activity in private vehicles would constitute an invasion of people’s private space. The noble Earl, Lord Howe, even said in Committee on this amendment that although smoke-free public spaces legislation has proven to be extremely successful in reducing people’s exposure to second-hand smoke,

“it does not automatically follow from that that it is right to extend the scope of legislation to cover private cars”.—[ Official Report , 20/11/13; col. GC 412.]

However, in the case of child protection, this may not be such a stretch of the imagination. My noble friend Lady Howarth absolutely spelt out that the issue of child protection is a perfect example of this distinction playing a secondary consideration to the well-being and health of the child. Children are protected by the law from abuse and neglect wherever they are.

I have heard about the impact that tobacco smoke has on the health of children. We have all heard about it. Their bodies are still developing and they are much more likely to be affected by smoke-related illnesses than their adult counterparts. A Royal College of Physicians report estimated that smoking around children causes more than 20,000 cases of lower respiratory tract infection; 120,00 cases of middle-ear disease; at least 22,000 new cases of wheeze and asthma; 200 cases of bacterial meningitis; and 40 sudden infant deaths—one in five of all SIDs.

We know that only a proportion of people continue to smoke around children, so the level of illness in children due to second-hand smoke is staggering. It would be difficult to impose such a law on the home—we have heard this already—but we can do something about children's exposure to smoke in cars. We also know that tobacco smoke pollution levels in vehicles can be 23 times greater than in a house. I am talking, of course, about a car with a roof on it. Moreover, when a child is strapped into the car, they do not have a choice about leaving the room—a choice possible, at least for some children, in their home—when adults are smoking.

More needs to be done to protect children from avoidable harm, whether this harm takes place in private vehicles or in public spaces. Moreover, there is also a precedent for banning smoking in vehicles. Cars are already recognised as potentially dangerous spaces for second-hand smoke exposure due to their confined spaces. This is why smoking has already been banned in all vehicles used for the purpose of work in the UK since July 2007. It is surely astounding that we cannot do something effective to protect children as well. There are no restrictions on smoking in private vehicles with children present. I believe fully that this needs to change.

Photo of Viscount Simon Viscount Simon Deputy Chairman of Committees, Deputy Speaker (Lords)

My Lords, the greater majority of people live in smoke-free homes, not because of the law, but because it is no longer acceptable to smoke in the home of a non-smoker. Equally, most smokers no longer allow smoking in their cars when children are present.

It is absolutely correct to protect children from second-hand smoke, but it is wrong to think that it is children who are most at risk from its catastrophic consequences. While it is estimated that there are 1 million children with asthma, adults with asthma outnumber them by four to one—and I am one of them. While open windows in cars have been mentioned by a couple of noble Lords, I would have an asthma attack on the motorway with my windows closed if there was someone smoking a cigar at some time somewhere ahead. Also, the greatest risk from second-hand smoke is to those with a pre-existing heart condition.

The objective of Amendment 57BB, therefore, must not be simply to protect children but rather to further change public attitudes and behaviour so that people no longer smoke in cars carrying any passenger. Just as the law focused on workplaces had a great effect on smoking at home, it is hoped that this amendment will reduce the harm caused to non-smokers of all ages.

As it is the noble Earl’s birthday today, I hope he will accept this amendment.

Photo of Lord Naseby Lord Naseby Conservative

My Lords, I want to make it clear that I have no interest to declare on this Bill. I have never smoked and I have no investments in any tobacco company. However, it remains a fact that 20% of our nation smokes. That 20% expects someone at least to speak up for the implications for it of any legislation that we in Parliament propose.

Perhaps surprisingly, the first dimension of the amendment that I draw to the House’s attention is a constitutional one. I think many noble Lords will know that in another place I was Chairman of Ways and Means, and there one had to be very careful about constitutional innovations—I shall put it like that. This amendment is a constitutional innovation. Leaving aside the detail about the standard packaging for a moment, the broad framework of the amendment defines what the regulation is to be and says that the Secretary of State, not Parliament down at the other end, may make those regulations. We need to be quite clear about this. The amendment goes on to say, in new subsection (12):

“The Secretary of State must”— not “may”—

“obtain the consent of the Scottish Ministers … the consent of the Welsh Ministers”,

and,

“the consent of the Office of the First Minister … in Northern Ireland”.

What it does not say is that the regulation needs to receive the consent of the House of Commons in the United Kingdom. Noble Lords may be very comfortable with that in relation to standard packaging, but I wonder whether they would be equally comfortable if it directly involved other packaged goods industries. One has in mind the sugar industry, the alcohol industry and the fizzy drinks industry, and there must be myriad others that interest groups outside would lobby to have contained or indeed restricted. I just put that on the record because it is a novel dimension to our constitution that I would like to have studied in a little more detail rather than have it sneaked in, if I may put it that way, in this Bill.

Photo of The Countess of Mar The Countess of Mar Deputy Speaker (Lords) 5:15 pm, 29th January 2014

Does the noble Lord realise that if the Secretary of State makes regulations, they will have to be done by statutory instrument? Statutory instruments are either affirmative or negative. In the case of a negative instrument we can pray against it, and in the case of an affirmative one we can debate it. Both Houses will have the opportunity to consider them.

Photo of Lord Naseby Lord Naseby Conservative

While it is true that there is an opportunity to debate a statutory instrument after the Statutory Instruments Committee has looked at it and decided that it wishes to do so, nevertheless—

Photo of Lord Naseby Lord Naseby Conservative

Let me just finish. Your Lordships know full well that there is absolutely no way that we may amend any statutory instrument; we either take it as it comes or we reject it. I am just pointing out that this is a change to the procedures of this House that we have had hereto. The noble Countess may disagree with me—it happens quite often in law that people disagree—but I have had advice. Perhaps she also had advice on her intervention. I leave that aspect; it is on the record now.

I turn specifically to the amendment and its contents. There are three aspects of it that I draw to the House’s attention. First is the matter of intellectual property rights. Such rights are a key dimension to any industry, particularly in the packaged goods world, where I had the privilege to work for some 20 years. Those rights are something that most of those industries have had for centuries. They distinguish between one product and another from a competitor; importantly, they produce a quality assurance for those who buy the product; and they provide for the businesses to have valuable assets that they can produce innovations from and so create competition. Those are assets to those companies that should not lightly be cast aside. There may be particular reasons why some of them should be confined at certain times in certain circumstances, but personally I think that society needs to tread very carefully.

In relation to this amendment, there is the legal situation. I am not a lawyer, but I have had a look and sought advice on the exact legal situation as matters stand at the moment. As I understand it, there are four constraints on Her Majesty’s Government. When my noble friend winds up, I hope he will be able to reassure me that all these issues have been dealt with. Otherwise, the Government will have to deal with them before this part of the Bill becomes law.

The constraints are: first, Article 34 of TFEU covering the free movement of tobacco products; secondly, Article 13(1) of the tobacco products directive which affects the free movement of goods; thirdly, it would produce a disproportionate and unjustified interference with a company’s property rights, which are specifically protected in the UK by, surprisingly, the Human Rights Act 1998 and in the EU by the European Charter of Fundamental Rights and would cut across the UK’s obligations made under international law, several World Trade Organisation agreements, particularly the agreement on trade-related aspects of intellectual property rights, and other agreements. Finally, I understand that fewer than five countries are taking action against the EU in relation to what this amendment addresses. My first question to my noble friend is, am I right in what I have been advised is the situation? If I am right, what action are the Government taking successfully to overcome what I see as considerable hurdles ahead?

I am not going to go through the whole of standardised packaging because this is not the appropriate time to do that but, in the round, as far as I see it as a marketing man looking at the evidence, there is as yet no real hard evidence. There are lots of assumptions and attitudes from surveys, but there is no hard evidence that consumption of cigarettes will fall if we have standardised packaging. Consumption is already falling without standardised packaging, and I am sure it will continue to fall in future, but I do not see any hard evidence that that will come.

What I do see is that it will be very bad for CTNs—confectionary, tobacco and newspaper shops—of which there are well over 100,000 in the United Kingdom. About 20% to 25% of their business is dependent on tobacco products. It is exceedingly bad news for them. It is pretty bad news for the 60,000-odd people employed in the industry. It is exceedingly good news for the counterfeiters, and we see increasing evidence of the number of counterfeit products. It is no good the noble Lord shaking his head—these are facts. We have facts on the importation of counterfeit products.

Photo of Lord Faulkner of Worcester Lord Faulkner of Worcester Deputy Chairman of Committees, Deputy Speaker (Lords)

The figures on counterfeiting reached a peak in 2000 and have been steadily falling year by year. If the noble Lord had listened to my remarks earlier, he would have heard that I said that there is no reason why standard packaging should not be at least as secure as existing branded packs.

Photo of Baroness Howarth of Breckland Baroness Howarth of Breckland Crossbench

My Lords, I would like to ask a short question.

Photo of Baroness Northover Baroness Northover Lords Spokesperson (Women & Equalities), Baroness in Waiting (HM Household) (Whip), Lords Spokesperson (Department for International Development)

My Lords, I remind noble Lords that we are on Report. Noble Lords have one opportunity to speak. They can intervene to ask a question to seek elucidation from somebody who is speaking. Providing that is what noble Lords do, those interventions are all right. They must seek clarification from, or ask a question of, the person who is speaking.

Photo of Lord Naseby Lord Naseby Conservative

I reassure the House that I do not intend to speak for very much longer. I respond to the noble Lord opposite by pointing out that the latest figures for Australia indicate an increase of 13% following the introduction of standardised packaging for counterfeit and illegal cigarettes. Therefore the most current evidence—perhaps he can get up to date—is a little more relevant. To finish on standardised packaging, if 20% of our nation smokes legitimately, and we have a legitimate industry, do people not have a right to choose between one pack which they like the look of as opposed to another pack?

I will finish with Australia. I, too, welcome Sir Cyril Chantler as chairman. I also know him quite well and have known him for a very long time. He will already be able to see two results. One is that standardised packaging has done absolutely nothing to the prevalence of smoking in Australia, and the other, as I have just mentioned as evidence to the noble Lord opposite, is the worrying fact that the illegal market has increased by 13%, up to an all-time high in Australia of 13% of all consumption.

I draw the House’s attention to a book in the Library which refers to the situation in the United Kingdom during the war. It is called Black Market Britain, 1939-55, by Mark Roodhouse, and it features, among other evidence, what happened to the cigarette market during the time of the black market. I refer to that book because if we go down the route of standardised packaging, a black market will undoubtedly emerge.

I wish Sir Cyril well; we await his report with interest, and I am sure that it will be balanced and thorough. However, whatever that report produces, I ask that first, the Government will give adequate time to this House to have a short debate on it, and secondly, and perhaps more importantly, that the industry will have a reasonable amount of time—and by that I mean some weeks and not days—to look at the evidence that is provided by Sir Cyril and to put its view to the Secretary of State on its interpretation.

Finally, I will wind up on a couple of other questions, specifically on proposed subsection (4)(d) of Amendment 57B on,

“reducing the appeal or attractiveness of tobacco products”.

I submit that that has little to do with the packaging. Proposed subsection (8)(d), which refers to,

“the shape of such products”— as opposed to the package—does not have anything to do with the packaging, and proposed subsection (8)(e) would even more insidiously apply to,

“the flavour of such products”.

Given that by nature all cigarettes are different, as tobacco is a vegetable product and they all taste different, I do not see how on earth the Secretary of State can intervene regarding the flavour of tobacco. I have already mentioned the contrast between the consent of Wales, Scotland and Northern Ireland and our own home Parliament.

Photo of Baroness Howarth of Breckland Baroness Howarth of Breckland Crossbench

My Lords, I apologise to the noble Baroness for intervening earlier. I wanted to ask a short and straightforward question of the Minister. Should the noble Earl’s amendment be accepted—I hope it is because I greet it hugely; noble Lords will know how much it means to me—can he tell us in his summing up what the timetable is likely to be as regards when the research would take place and how long it might take? If, when that was completed, the outcome was positive—I recognise that because it is research it could go either way—when would the Government be likely to bring in the legislation? I recognise that we are moving towards an election and I hope that the Minister would want to get this on the statute book before he might or might not leave office. We already have legislation on not displaying cigarettes, but I still go in to my local tobacconist and see displays of cigarettes, so I wonder what is happening about that.

Photo of Lord Storey Lord Storey Liberal Democrat 5:30 pm, 29th January 2014

My Lords, I want to speak to Amendments 57B and 62. First, on Amendment 57B, the Government are to be congratulated. The package that they propose—if I dare to use the term “package”—of proxy purchase, e-cigarettes and looking at the whole question of standardised packaging of cigarettes and tobacco products is to be welcomed. I think it will result in thousands of people being saved from getting respiratory and lung diseases; it will save literally thousands of lives. I congratulate the Minister and the Government. I want also to thank those cross-party noble Lords who put down the original amendment, because they initiated this debate.

On Amendment 62, I said in Committee and say again: some noble Lords have mentioned their grandchildren. Can you imagine carrying your grandson or granddaughter in a carry-cot, putting that child into a metal box—a car—and allowing somebody to pump cigarette fumes into that metal box? You would not do that at all; you would not allow that to happen. Whatever our concerns are about personal space or civil liberties or whatever it is, this is about the rights of a child; the rights of a baby. A baby cannot say, “Well, actually, I don’t mind”; a child cannot say, “Actually, I don’t mind”. In fact, research—certainly from talking to children—shows that they do mind. As we have heard, we can see when we look at the figures that children are particularly vulnerable to second-hand smoke. Why? Because they have small lungs, because they have faster breathing, and because they have a less developed immune system. That makes them more susceptible to respiratory problems: asthma, bronchitis and lung malfunction. Knowing that, and that passive smoking results in more than 165,000 new episodes of all sorts of diseases associated with lungs and respiration—and I am talking about children here—are we serious about allowing children and babies to be strapped in a car where that happens? Surely not; all the other arguments pale into insignificance.

We seem to cite lots of surveys here. Interestingly, in 2010 a survey that directly asked 11 year-olds and 15 year-olds found that one in five reported being exposed to second-hand smoke in cars.

A number of people have said, “How are we going to make this happen? The police are very busy; can we really make it happen?”. I have two answers to that. Do noble Lords remember when seat-belt legislation was suggested? People got up and said, “Oh no, this is an attack on my civil liberties; oh no, we will solve the problem by advertising”. It was the “clunk click” advertisement, was it not? Oh—perhaps we had better move on from that. With the “clunk click” advertisements, in fact, something like 24% of people started to belt up in cars. Legislation was then brought in and we found that 97% of people then put on a seat belt. We do that automatically; we do not think about it, or sit in our cars saying, “This is an infringement of our liberties; we shouldn’t be doing this”; we do it. Why do we do it? Because it saves lives: it saves our lives and the lives of other people who are travelling in the car.

Interestingly, a study conducted in Scotland—we talk about Scotland a lot in this Chamber, thank goodness—suggested that air quality inside a smoker’s car was comparable to industrial smog in cities such as Beijing or Moscow, even when the driver has the window open. Are we seriously suggesting that children and young people should be subjected to air quality which is akin to that in Beijing or Moscow? Of course, we are not. Research by Aberdeen University found that 7% of 11 year-olds experience smoking in cars. That is why I am pleased that one of my colleagues in Scotland, the Liberal Democrat MSP, Jim Hume, is introducing a Private Member’s Bill looking at safeguarding children by banning smoking in cars. That is now going out to public consultation.

I end by making two further brief points. It is easy to find all sorts of reasons why you cannot do something. We could ask, “What about cars that are convertible? What about yachts? What about this? What about that?”. However, if you believe in something and think that it is right, you get on and do it. My only regret regarding the amendment is that it was initially an all-party amendment. When I listen to the news, I hear that it is a Labour initiative. I am sorry that it has been politicised and has become a party-political issue; I hoped that it would not be.

Photo of Lord Hunt of Kings Heath Lord Hunt of Kings Heath Shadow Spokesperson (Health), Shadow Deputy Leader of the House of Lords

The noble Lord has made an impassioned speech. My understanding was that the original cross-party amendment had been degrouped and would be taken only late at night. I therefore brought forward this amendment to enable the House to make a decision. I agree with him about the cross-party nature of the debate.

Photo of Lord Storey Lord Storey Liberal Democrat

I respect what the noble Lord says and thank him for it.

The Minister is a listening Minister. I hope that he will reflect on what has been said and accept the amendment because it is important to take the whole House with him on issues such as this. I hope that he will look again at continuing the advertising campaign but, perhaps more importantly, that he will consider a review of this issue so that we can go forward on it together.

Photo of Lord Scott of Foscote Lord Scott of Foscote Crossbench

My Lords, I wish to add a word on the amendment about smoking in cars when children are present. I do not wish to say anything about standardised packaging because I thoroughly support the amendment on that. However, so far as smoking is concerned, the support for the relevant amendment is focused on smoking in motor cars. However, that is not what the amendment says. It refers to “a private vehicle”. Motor cars are a very common—perhaps the most common—species of private vehicle, but there are all sorts of other private vehicles that one must take into account as well. The word “drives”, commonly used in relation to motor vehicles, comes from the driving of carriages and ponies and traps. Suppose that somebody has a pony and trap, and has a child in the trap, why on earth should he or she not smoke? If this amendment were confined simply to motor cars, I would have no objection to it at all; indeed, I think that I would support it. However, in relation to all private vehicles, it simply goes too far. I do not believe that was intended and I think the wording should be modified accordingly.

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

My Lords, I think the score is about 10 or 11 to one in favour of the amendments. I will be the second noble Lord to speak against both amendments. I shall take a little while to do so.

Noble Lords:

Oh!

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

If we consider this in terms of the time given to the “fors” and the “againsts”, as I have already said, it is about 11 to one, and it is going to be about 11 to two. I intend to make the points that I intended to make before this debate started.

First, I declare my interest. I am an associate member of the Lords and Commons Pipe and Cigar Smokers’ Club. I am an associate member because I do not smoke, but I believe that users of a legal product should be allowed to enjoy it without continuous harassment by government and an army of lobbyists such as ASH, which is subsidised, and the BMA. Smokers, unfortunately, are treated as social lepers, although let us not forget that they contribute some £10.5 billion per annum to the Treasury. If they are such lepers, perhaps we should not accept their money.

In my view, the amendment of the noble Earl, Lord Howe, is perhaps one of the most extreme Henry VIII pieces of legislation that I have ever seen, and I am sorry to see that it is in his name. I want to take the House back in history to 4 February 2009. Let us hear what the noble Earl said then, when we were discussing the ban on tobacco displays:

“The Bill’s proposals to outlaw point-of-sale displays of tobacco products are unjustified and repressive. The evidence to back them up is flimsy, and the data has been hyped. In 2002, when tobacco advertising was banned, the Government said that they had no plans to interfere with the right of retailers to display a perfectly legal product in shops. We must be absolutely sure of our ground before removing that right”.—[Hansard, 4/2/09; col. 749.]

I believe that the noble Earl was right then and is wrong today because he is going further than the previous Government dared to do. Not only have we banned the display of cigarette packets and what have you but now plain packaging will be banned as well, and that seems quite an absurdity.

The new clause proposed in Amendment 57B is so detailed as to be almost incomprehensible. The Government are now proposing to intervene in the nooks and crannies of design and, indeed, even in the fabric of cigarette and other tobacco packets. There are 19 ways in which the Government are going to intervene and tell the tobacco manufacturers how they can display their products. That, I believe, is going much too far. In passing, I suppose that I ought to note that the display legislation is not yet fully operative—small retailers will not be banned from displaying these products until 2015. So here we are, before the ban even comes into force, going even further than the previous Government did, which at the time the noble Earl, Lord Howe, opposed.

We have heard a lot in the past few days about cutting regulation but the Government are also increasing regulation, of which this amendment is the nastiest example. I do not have time to go into the complete detail, although I should go through the whole amendment but I will not.

Whether these measures will discourage young people from taking up smoking is doubtful. Youngsters take up smoking for a whole range of reasons, not just because of the packaging. There is no real evidence that plain packaging will prevent youngsters starting to smoke. There has been no proper consultation about it. Indeed, we were informed by the noble Earl that there will not be any consultation on this matter. This proposal will set a precedent for other products, such as alcohol, sweets and products containing sugar, and fatty foods that are causing an obesity crisis which is costing the health service even more than smoking. I certainly oppose the government amendment.

As I pointed out earlier, I am surprised that smoking in private vehicles is being discussed with plain packaging. It is a completely different issue which should be discussed separately. We are saying that children will be at risk from second-hand smoke but surely noble Lords realise that a car must have air input and output. PN10s from diesel and petrol fumes pass through cars. Therefore, children in cars ingest dangerous fumes even where there is no smoking. What are we going to do? Are we going to ban cars from the road? It really is quite ridiculous.

Furthermore, it will be very difficult to enforce this type of legislation. We are not yet able properly to enforce not using mobile phones in moving vehicles. Anyone who travels along a motorway knows perfectly well that practically every lorry driver is using a mobile phone, yet we know that very few of them are prosecuted, let alone fined, for doing so. Enforcement will be extremely difficult.

What will be the next step? People against smoking will not stop at smoking in cars. They will want to stop smoking in homes where there are children. Noble Lords will say that that will not happen but there have already been proposals to do that. That would be an amazing interference in people’s lives. I am against the extension of bans on smoking. Let me add that I was born in south Wales in the Rhondda Valley, in a small three-bedroom terraced house. My sister and I lived with our parents and grandparents. My step-grandfather, grandmother, mother and father smoked. I have to say that it has not done me very much damage. In May, I shall be 88 years of age.

People may well think that I have gone on too long. However, what has certainly not done me any damage was the fact that the whole of my family smoked, as indeed did most people in the Rhondda, because that was the only thing that could relieve the awfulness of the slums and unemployment that they were suffering at that time. I am sorry that these amendments have been tabled. I know that if there is a vote we shall be very heavily outvoted, but we shall see.

Photo of Lord Walton of Detchant Lord Walton of Detchant Crossbench 5:45 pm, 29th January 2014

My Lords, different views have been expressed by a number of noble Lords and I shall speak very briefly. The accumulated evidence relating to plain packaging of cigarettes that has arisen over the past few years is incontrovertible, and for that reason the Government’s amendment is extremely welcome.

So far as smoking in cars is concerned, there is no doubt whatever that passive smoking is extremely dangerous. The concentration of the effects of passive smoking within an enclosed space such as a motor car is particularly dangerous for children. Again, the medical evidence on this is incontrovertible. The point made by my noble and learned friend Lord Scott, on the issue of people smoking in a pony and trap, is an interesting one but could readily be dealt with by regulations under the amendment to restrict the provisions to enclosed motor cars and so forth.

I listened exceptionally carefully to the very erudite and persuasive speech by the noble Lord, Lord Cormack, whose views I normally fully support and accept. Unlike him, who was disgusted by smoking two Woodbines behind the bike sheds, I first smoked a Woodbine in a mining village in County Durham at the age of 10 and I enjoyed it. By the time I was a teenager, I was a regular smoker. When I was in the Army in the late 1940s as second in command of a hospital ship, I could get a can of 50 Senior Service for one shilling and eight pence, which lasted me two days, so I was a heavy smoker. It took me a long time to get over it.

The question I would put to the noble Lord and the noble Earl is this: the noble Lord, Lord Cormack, took a great deal of time to talk about the difficulty of policing this amendment if it were carried into law. But is it any more difficult for the police to recognise someone smoking in a vehicle containing children than it is to recognise someone who is not wearing a seatbelt or using a mobile phone illegally? I do not believe that it is. For that reason, I support the amendment.

Photo of Baroness Hughes of Stretford Baroness Hughes of Stretford Shadow Spokesperson (Education)

My Lords, this has been an important but very long debate. However, my name is attached to three of the amendments in the group and I beg the indulgence of the House to make a few comments in, I hope, concluding the debate before the Minister responds. I want to thank the Minister in particular for his role in responding to the widespread support for standardised packaging within and beyond the House. The crucial role that he personally played in the Government conceding on this measure is recognised across the House. I am also grateful for his commitment on the record today that it is the Government’s clear intention to implement these measures as soon as possible, subject to the outcome of the evidential review. I hope that he can further confirm that the action will follow very swiftly in response to the questions raised by my noble friend Lord Hunt and the noble Baroness, Lady Howarth, about the timetable.

The Government’s intention to bring forward at Third Reading measures to ban proxy purchasing of cigarettes and e-cigarettes, taken together with this amendment on standardised packaging, will make a significant difference to the exposure to and take-up of cigarettes by young people. However, there is one other distinct and significant health hazard to children from smoking that we should include in this package of measures, and that is in relation to smoking in private vehicles and enclosed vehicles.

Our Amendment 57BB would simply enable the Government to bring forward regulations to make it an offence to expose children to tobacco smoke in cars, once the Government, with others, had reviewed the detailed implications and practicalities that such a measure would entail. That process of review and developing regulations would take account of all the questions raised across the House today about what if, would it mean this and would it mean that. It is an enabling amendment.

When it was first proposed by the noble Baroness, Lady Finlay, in Grand Committee, I was profoundly struck by the power of her argument about the particular vulnerability of children in this very enclosed situation and the impact on their health and development at their immature stage. It is obvious. I have heard no dissent in the House today about why passive smoking by children in cars is a very bad thing and ideally should not happen. I will not rehearse those arguments, which have been very well made again today by Members across the House.

However, I want to focus briefly on concerns that have been expressed about the amendment and the arguments against it. There have been three main arguments. One is the basic libertarian argument that people should be free to do what they like in their cars because they are private spaces and should not be fettered. But when we are considering freedoms, as we have done in our history, there is always a balance. Freedom for some is often at the expense of freedom for other people. The balance we are considering here is between the freedom for adults to smoke in cars when they like and the freedom for children not to breathe in that smoke in a situation from which they, by definition, as several noble Lords pointed out, cannot escape.

When responding to the noble Baroness, Lady Howarth, the noble Lord, Lord Cormack, for whom I have great respect, as he knows, said that there is a difference between smoking, which is a legal activity, and other things that we have prohibited in the home in relation to children. But the things that we were talking about then, such as neglect of children and the beating of children, have not always been illegal in the home. They were made illegal because they are particularly harmful to the well-being of children. We take it for granted now that such things are illegal but they were not always. We invaded that private space because of the need to protect children. The same argument applies. Because of the degree of damage that we know smoking in cars causes, we should apply the same argument here.

Photo of Lord Cormack Lord Cormack Conservative

I have been thinking a lot during this debate. Is not the answer to make it obligatory for all new cars to have a smoke alarm fitted?

Photo of Baroness Hughes of Stretford Baroness Hughes of Stretford Shadow Spokesperson (Education)

That particular measure would not deal with the issue of prohibition, so I cannot see how it would necessarily help. The alarm may go off, but if it is still legal for adults to smoke with children in the car, there would be no consequence to its going off. There are precedents, because this is a child protection issue, for our proceeding along this route.

The second argument was: if cars, why not private homes? There have been contributions today that have made it clear, citing research by the British Lung Foundation and other bodies, that there are real and qualitatively different levels of risk to children from the smoke in a confined space, from which they cannot escape, compared to that in homes. Yes, children will be harmed in some homes where space is limited. That is undoubtedly true. But the potential for children to escape those spaces is clearly there in a home situation. They can go outside as well. In a car, the toxicity levels and the fact that the child is trapped make that a distinctly different situation, of which we should take account with this amendment.

The third argument has concerned the difficulty of enforcement.

Photo of Lord Forsyth of Drumlean Lord Forsyth of Drumlean Conservative

I know that people want to make progress, but just on this point about private space—where the noble Baroness is making the distinction between a motorcar where the children cannot escape and, say, a room in a small flat where there are smokers—what about a baby in a carry-cot? They cannot move to another room.

Photo of Baroness Hughes of Stretford Baroness Hughes of Stretford Shadow Spokesperson (Education) 6:00 pm, 29th January 2014

No, that is true. I know that the noble Lord is very exercised by these issues, and I respect his point of view. A baby of itself could not move to another room. However—we have these arguments in many ways—the fact that we cannot remove the harm to all children in all situations presented by passive smoking is not an argument in itself for not taking the action that we could take to reduce the harm to the majority of children in the most dangerous situations. That is the argument in support of this amendment.

The third argument we heard was about enforcement. Again, we had some helpful contributions which I was going to make myself, but I shall just mention them. This is primarily not about enforcement, and we have precedence here with the ban on using mobile phones in cars, the mandatory use of seat belts and the ban on smoking in public places. All of those were hotly contested before legislation came in. I particularly remember the ban on smoking in public places because I was involved in it. That measure not only established smoke-free common areas for people but, equally importantly—and it is true of the other two measures—precipitated the biggest reduction in smoking we have seen: a significant and beneficial change in behaviour on a massive scale. That is the issue here, as the noble Baroness, Lady Tyler, pointed out. I have no doubt that this would precipitate a very significant change in behaviour in relation to smoking in cars with children. Particularly when we see so much public support for the measure, I think that we could anticipate that.

I say again that Amendment 57BB is enabling. It would entail further discussion about the practicalities and the detail of the regulation. We fully accept the need for that and welcome it. However, it is an important measure for children and I hope that the House will support it.

Photo of Earl Howe Earl Howe The Parliamentary Under-Secretary of State for Health

My Lords, this has been a fascinating and very helpful debate and I am very pleased with the support that I have heard for the government amendments on standardised packaging. I would like, if I may, to commend noble Lords for their continued work in supporting tobacco control. We all want to drive down rates of smoking in this country and, in particular, to stop young people from taking up smoking in the first place. Let me address the points on standardised packaging first.

The noble Baroness, Lady Finlay, the noble Lord, Lord Faulkner, and my noble friends Lady Tyler and Lord McColl tabled a revised amendment following discussion in Grand Committee, and I see that they reflected the comments that I made in redrafting it. I particularly welcome their support for the Government’s amendments and can reassure them that our amendments would achieve all of the things that they seek to do.

My noble friend Lord Naseby raised a number of legal issues. I would like to reassure him that we have given very careful consideration to the legal situation. We believe that the government amendment gives us sufficient room to proceed with the regulations, should we choose to do so, and introduce standardised packaging, if that is what is decided. He queried the fact that the amendment is drafted in such a way that the devolved Administrations and Assemblies have to give consent, but it is the Secretary of State and not Parliament who gives consent in England. We do of course want Parliament to have a say, which is why we have introduced Amendment 63B to make the regulations subject to the affirmative procedure.

The noble Lord, Lord Stoddart—whose robust state of health I very much welcome—indicated that there has been no proper consultation on standardised packaging. In fact, in 2012 the Government ran a full public consultation and received almost 2,500 substantive responses and well over half a million postcard and petition responses. The consultation asked 15 specific questions and invited comments on the consultation stage impact assessment, which was also published. So it was a very thorough exercise.

The noble Lord, Lord Stoddart, suggested that this was the thin end of the wedge, if I can put it that way, and might herald similar measures in relation to junk food. I think we need to remember that tobacco is a uniquely harmful consumer good. Tobacco kills one in two long-term smokers. There is no safe level of smoking. That is why we have a range of specific legislation and an international treaty around tobacco control.

My noble friend Lord Naseby referred to illicit tobacco. We received a wide range of responses to the question in the consultation on illicit tobacco. They are summarised in the consultation report. In 2000, around 21% of the UK cigarette market was illicit. The latest estimate from HMRC, for 2012-13, is that this has dropped to around 9%. It is too high, I concede, but we are heading in a positive direction.

The noble Baroness, Lady Howarth, asked about the timetable for the regulations. I emphasise here that I do not want to pre-empt any decision that the Government may make on whether to proceed with standardised tobacco packaging, and I know that the noble Baroness understands that; but equally for that reason, it would be premature to set out a detailed timetable. What I can confirm is that the regulations would be subject to the affirmative procedure to ensure an appropriate opportunity for parliamentary scrutiny in both Houses. She may like to be aware that before being laid in Parliament, any draft regulation that seeks to regulate tobacco packaging would need to be notified to the European Commission and member states. There is a process that goes with that, which would mean that we would not be able to lay regulations instantly after taking a positive decision. I am happy, however, to reiterate the Government’s commitment to make a decision quickly when we receive Sir Cyril Chantler’s independent report. Tabling these amendments is, I hope, evidence of our commitment to act without delay if we decide to go ahead. But the Government, as I am sure she appreciates, must rightly consider the wider issues raised by this policy, and I can assure her that we will do so.

I can understand the intention of the noble Lord, Lord Hunt, in tabling both of his amendments, Amendments 57BA and 61, which seek to compel Ministers to introduce standardised packaging. However, I am sure that he will not be surprised to hear me say that we cannot accept provisions that tie our hands in this way. One of the amendments imposes an arbitrary timetable for government action, and both pre-empt Ministers’ proper and careful decision-making, involving consideration of all the relevant issues. Litigation by the tobacco industry is always a risk when introducing tobacco control legislation. Indeed, the World Health Organisation says that one of the six main forms of tobacco industry interference in public health is the intimidation of Governments with litigation or the threat of litigation. Government must have time and space to give proper consideration to the wider issues raised by standardised packaging of tobacco, and demonstrate that it has done so. Doing so will also reduce the risk of successful litigation. I do appreciate the desire to go faster but we must follow the proper decision-making process to enable us to arrive at the right policy decision. It is right that we should wait for Sir Cyril’s report. Once we do, I say again, we will make a decision quickly.

The noble Lord, Lord Hunt, asked me to put on the record that we will definitely introduce the regulations should the case be made and should we be persuaded of the case that Sir Cyril presents. I hope that I have been clear about that. I will repeat the comments made by my honourable friend the Minister for Public Health when she announced the review:

“The Government will introduce standardised tobacco packaging if, following the review and consideration of the wider issues raised by this policy, we are satisfied that there are sufficient grounds to proceed, including public health benefit”.—[Official Report, 28/11/13; col. WS96.]

I thank the noble Lord, Lord Faulkner, the noble Baroness, Lady Finlay, and my noble friends Lady Tyler and Lord McColl for having made clear their intention not to press their amendment on standardised packaging. I hope that the noble Baroness, Lady Hughes, and the noble Lord, Lord Hunt, will do the same with theirs.

I turn to smoking in cars. Since we considered the issue at the previous stage of the Bill, I have met a number of noble Lords who support the idea of legislating to stop smoking in cars with children present. I have also listened very carefully to the debate as it has proceeded this afternoon. One thing is clear from those meetings and the debate—we all want to eradicate smoking in cars carrying children. None of us wants to see children continuing to be exposed to harmful second-hand smoke, whether in the home or the family car. However, although we agree on the destination, I have to acknowledge that there are differing views on the most effective route. As your Lordships will know, the Government believe that encouraging positive and lasting behaviour change by making smokers aware of the significant health risks of second-hand smoke will be more effective than resorting to the use of legislation—which is of course a blunt instrument—to tackle the problem. I believe very clearly that we should consider resorting to the use of legislation only if our work to promote positive changes in behaviour is shown not to have had the desired effect.

When we debated this issue in Grand Committee, a good deal of time was spent considering the practicalities of enforcing an offence of smoking in cars carrying children. I do not propose to rehearse those arguments in detail again today. Nevertheless, I want to encourage your Lordships to reflect on just how difficult it would be to enforce such a provision. My noble friend Lord Cormack referred to this. In my view, there would be substantial challenges in enforcing any such legislation, particularly with respect to vehicles travelling at speed. Currently, local authorities enforce smoke-free legislation, but they do not have the powers or the means to require moving vehicles to pull over. We would need therefore to set up a complex and probably resource-intensive enforcement regime, which would need to involve the police. These remaining questions of how to achieve effective enforcement undermine the credibility of the measures that have been proposed. If it were known that there was little chance of enforcement action, I have to ask whether individuals would comply with the law.

Photo of Lord Hunt of Kings Heath Lord Hunt of Kings Heath Shadow Spokesperson (Health), Shadow Deputy Leader of the House of Lords

I am most grateful to the noble Earl. Would he accept that my amendment has been drafted in a way that allows your Lordships to vote on the principle but then allows for work to be done, hopefully cross-party, and for the Government to bring in regulations, during which some of these matters could be talked out thoroughly?

Photo of Earl Howe Earl Howe The Parliamentary Under-Secretary of State for Health

I have noted the way the noble Lord’s amendment has been drafted. However, we need to be very careful before accepting it, for the reasons that I am explaining now. One of the points made about enforcement was that we could make a useful comparison with seat-belt legislation. I understand why that comparison has been made but it needs to be borne in mind that we are not comparing like with like. Seat-belt legislation is a road safety measure which is properly enforced by the police; smoking in cars is a public health matter and the police have no public health role or functions. That is part of the reason that the issue is so complex. Before launching into the kind of amendment that the noble Lord, Lord Hunt, invites us to accept, we need to take stock of these questions. There is no point in putting something on the statute book if it is impractical to implement.

Photo of Baroness Masham of Ilton Baroness Masham of Ilton Crossbench

Can I just ask the noble Earl whether the police have a duty in respect of alcohol abuse and violence in the streets?

Photo of Earl Howe Earl Howe The Parliamentary Under-Secretary of State for Health

My Lords, the police obviously have public order responsibilities, which they can enforce—but not public health responsibilities, which is rather a different issue.

Photo of Lord Faulkner of Worcester Lord Faulkner of Worcester Deputy Chairman of Committees, Deputy Speaker (Lords)

With the growing number of jurisdictions now adopting measures of the sort that are proposed in the amendment, will the Minister at least give an assurance that the department will look at the experience in countries where smoking in cars when children are present has been banned and look particularly at the way in which it is being enforced there, and by whom?

Photo of Earl Howe Earl Howe The Parliamentary Under-Secretary of State for Health 6:15 pm, 29th January 2014

I am coming in a minute to talk about consultation, which is one of the questions that my noble friend Lord Ribeiro asked, and I hope I can at least utter some words of comfort to the noble Lord, Lord Faulkner, as regards his question.

I will focus for a moment on why the Government prefer to achieve behaviour change without recourse to imposing the law. We believe that our approach is making a distinct impact, both in terms of raising awareness and, more importantly, changing behaviour. There is a very simple point to be made here, which was made by my noble friend Lady Tyler. I cannot believe that any parent would want, knowingly, to expose their child or children to harm. I am convinced that smoking in family cars and the home is much more likely to be due to a simple lack of understanding among smokers about how damaging to health second-hand smoke can be. Our social marketing campaigns remind us that more than 80% of cigarette smoke is invisible. Our campaigns have used the strap-line:

“If you could see what’s really there you wouldn’t smoke”.

That is why we are focusing our efforts on raising awareness of the harm caused and on encouraging smokers to modify their smoking behaviour.

The noble Baroness, Lady Masham, referred to pregnant women and whether we would regulate to protect them. I understand of course how vulnerable the child is when still in the womb, and the noble Baroness rightly raised the issue of how harmful second-hand smoke can be, especially for people with respiratory conditions such as asthma.

Photo of Baroness Hughes of Stretford Baroness Hughes of Stretford Shadow Spokesperson (Education)

Does the Minister not agree that the impact of the legislation prohibiting smoking in public places, to protect the public and people working in common areas, had a much greater and more immediate impact than all the public awareness work that was done before then?

Photo of Earl Howe Earl Howe The Parliamentary Under-Secretary of State for Health

I am the first to say that legislation passed by the previous Administration has had a marked and profound effect and has been widely welcomed. However, we are now dealing with something that we know can be influenced by public marketing campaigns. I shall mention how effective those have been in a moment.

With regard to pregnant women, there is a need to encourage everybody to be aware of the risks to health from second-hand smoke. We are achieving high levels of awareness as well as changing attitudes and behaviours. Almost three-quarters of those surveyed said that our campaigns had made them realise that smoking out of an open door or window was not enough to protect children from second-hand smoke. More than a third of those who saw the adverts reported that they had taken action to reduce their children’s exposure to second-hand smoke after seeing them. Those results emerged from the evaluation of last year’s campaign and the campaign that we ran in 2012.

I have to say that I am slightly surprised to hear how strongly the Opposition feel about creating legislation to end smoking in cars, because that is at odds with the position that they took on this issue when in government. The 2010 tobacco control strategy included commitments on smoking in cars that align entirely with my Government’s current approach. That strategy said:

“By increasing the level of awareness of the harms of secondhand smoke, particularly to children, we will encourage people to voluntarily make their homes and private cars completely smokefree”.

That is the stance that the party opposite took when in government and, to pay a little tribute to them, we have followed their lead. Your Lordships will recognise that there is a long way to go. Achieving behaviour change in public health takes time but we are heading in the right direction and the key is maintaining the momentum we are generating.

That is why I am pleased to announce that the Government will run another smoke-free homes and cars campaign this year, as explained in my letter to noble Lords earlier this week. We are finalising the details with colleagues in Public Health England, but our intention is that the campaign will take place in the spring. In addition to a mix of TV and digital advertising, we will work with local and commercial partners to spread the message through their networks. The campaign will be designed to maximise the potential of social media in making our messages clear and accessible to as many people as possible. I hope that that serves to reassure your Lordships that the Government are working hard to make progress in this important area. Our approach is to change smoking behaviour in both the home and family car.

In addition to the campaign activity, we will look at what more we might do to speed up the pace of change. Some local authorities are taking forward excellent work with their local communities to promote not only smoke-free homes and cars but also smoke-free environments such as playgrounds. Working with Public Health England, we will encourage more of this good practice to denormalise smoking, particularly in settings where children are present. I have asked Public Health England to look at what more we can do to spread this good practice.

This year’s smoke-free homes and cars campaign will be the Government’s third successive one, as I mentioned. At its conclusion, we will undertake a complete analysis of the progress that we have made through the campaigns. At that point the Government will give careful consideration to whether our action has had a meaningful impact in reducing smoking in cars carrying children. If health Ministers are not satisfied with the progress made, we will give serious consideration to what more can be done. I can tell my noble friend Lord Ribeiro that we will, if need be, conduct a public consultation so that we can understand how others feel about this issue, and to enable us to consider further the practicality and likely effectiveness of other measures to tackle smoking in cars carrying children, including legislative measures. I do not rule out legislation if our current course does not deliver the desired effect.

The Government take this matter extremely seriously, particularly the issue of reducing the uptake of smoking by young people. We have tabled the amendment today on standardised packaging. We intend to make proxy purchasing of tobacco an offence and prohibit the sale of electronic cigarettes to people under 18. If the Government are not satisfied with progress after this year’s smoke-free homes and cars campaign, we will give serious consideration to what more could be done, including a public consultation. I hope that that indicates our seriousness of purpose.

On the amendments that have been tabled by the Opposition I repeat what I said in Grand Committee. If we cannot credibly enforce the law, the law loses credibility. I appreciate the strength of feeling on this matter. I can assure noble Lords that we will continue to work with all interested parties to protect children from second-hand smoke. I hope that in the light of the assurances that I have given that the noble Lord will not press his amendment on that topic.

Amendment 57BA (to Amendment 57B) not moved.

Amendment 57B agreed.

Amendment 57BB

Moved by Lord Hunt of Kings Heath

57BB: Before Clause 80, insert the following new Clause—

“Protection of Children’s health: offence of smoking in a private vehicle

The Secretary of State may bring forward regulations making it an offence for any person who drives a private vehicle to fail to prevent smoking in the vehicle when a child or children are present.”

Division on Amendment 57BB

Contents 222; Not-Contents 197.

Amendment 57BB agreed.

Division number 1 Children and Families Bill — Report (5th Day)

Aye: 220 Members of the House of Lords

No: 195 Members of the House of Lords

Ayes: A-Z by last name

Tellers

Nos: A-Z by last name

Tellers

Amendment 57BC

Moved by Baroness Jones of Whitchurch

57BC: Before Clause 80, insert the following new Clause—

“Welfare of children: housing benefit

(1) The Housing Benefit (Amendment) Regulations 2006 are amended as follows.

(2) In regulation B13 (determination of maximum rent (social sector)), inserted by regulation 5 of the Housing Benefit (Amendment) Regulations 2012—

(a) in paragraph (5), at beginning insert “Subject to paragraph (5A)”; and

(b) after paragraph (5) insert—

“(5A) The relevant authority shall make a determination that the restriction to one bedroom under paragraph (5) does not apply if it is in the interests of the welfare of a child or the children living in the dwelling to make such a determination.””

Photo of Baroness Jones of Whitchurch Baroness Jones of Whitchurch Shadow Spokesperson (Culture, Media and Sport), Shadow Spokesperson (Education) 6:37 pm, 29th January 2014

My Lords, the amendment is about the impact of the bedroom tax on children. I refer noble Lords to my housing association interests recorded in the register.

This simple amendment would allow local authorities to put the welfare of the child first when assessing the appropriate occupancy level in a home. Many aspects of the bedroom tax are unfair and unjust, and we have raised them repeatedly in this House. This amendment picks on one simple theme which has quite rightly dominated our consideration of the Bill so far: that the interests and the welfare of the child should always come first. This issue has united us around the Chamber, and I hope that noble Lords will support the continuation of this principle, reflected in this amendment.

We already know that the bedroom tax hits families hard. The chief executive of the National Housing Federation has described the policy as,

“an unfair, ill-planned disaster that is hurting our poorest families”.

It has resulted in an estimated 150,000 families with children being hit so far, forced out of their homes or pushed deeper into poverty and debt. We know from consistent research that children who are forced to move home, away from settled communities and their schooling, suffer health problems and have poorer educational outcomes. Meanwhile, families who stay put suffer an average loss of income of £14 a week, with much higher losses for many, impacting on their ability to feed and clothe their children.

The bedroom tax also has a disproportionate impact on disabled adults and children. Housing association studies have shown that a significant proportion of those affected are either disabled themselves or care for someone who is disabled. Many of them live in homes with adaptations, making it difficult and expensive to move. Others use their spare room for bulky medical equipment or facilities for visiting carers.

There are other adverse welfare implications of the bedroom tax. Recently, there was publicity for the very sad case of the Hollow family, whose 11 year-old son, Caleb, died in a car crash. After a year, the family were told that they had to move to a smaller property, causing added distress to Caleb’s siblings, who were still grieving for their lost brother and who now face the further disruption of a house move or a slide into poverty.

There is also the ongoing issue of the impact on foster carers. When we debated it in Committee, we welcomed the Government’s concession to allow one additional room in their home as long as they had registered as a foster carer or fostered a child within the previous 12 months. However, the reforms still apply to foster carers who have two or three bedrooms for fostered children. Foster carers could be deterred from providing foster care for more than one child at a time, so that more children would be more likely to be separated from their siblings. Given that there is already a shortage of foster carers in the UK, these reforms are likely to mean fewer new recruits coming forward and children’s well-being suffering as a result.

The application of these policies has seen local authorities and housing associations being put in an impossible position, trying to minimise the impact of badly designed policies on local people. As we know, there is often a mismatch in accommodation so that there are simply not enough smaller units even if tenants wish to move.

Meanwhile, under this Government, housing completions are at their lowest peacetime level since the 1920s. Local authorities find themselves trapped trying to implement an unworkable policy with little flexibility. Quite often, their only solution for tenants who are unable to downsize is to move them into the private rented sector, with all the additional housing benefit costs and the poorer standards that this entails.

The Government’s main response so far to the increasing number of tales of poverty and distress has been to set up the discretionary fund to support the most vulnerable families. However, alarmingly, the Local Government Association has reported a dramatic increase in the number of people requesting emergency financial help, with 81% of councils experiencing a sharp increase in the number of applications to the discretionary housing payments scheme, most of which are being made to stop people losing their homes. This demand is so great that councils report it is outstripping the money made available by the DWP, forcing them to make cuts to services in other areas. Anyway, these funds are, by their very nature, temporary, require regular reapplications and provide no ongoing stability for the families concerned. The Government have also issued guidance to local authorities on the application of the rules concerning children’s disability but again they have no obligation in law and the Minister will know that children’s charities remain concerned about the provisions and continue to challenge them.

We believe that our amendment gives local authorities the flexibility they need, based on their local knowledge and their local circumstances, to operate the bedroom tax rules to put the welfare and the interests of the child first. We believe that this would be welcomed by all those trying to implement this unwieldy and unjust policy. It would allow them to make an informed judgment of the options available to individual families in their local area to avoid some of the perverse outcomes that arise from the rules and to guarantee that the interests of the child are safeguarded. We believe that this is a simple but important amendment, in keeping with the spirit of the remainder of the Bill, and I urge noble Lords to support it.

Photo of Baroness Meacher Baroness Meacher Crossbench

My Lords I support Amendment 57BC, tabled by the noble Baroness, Lady Jones of Whitchurch, to which I have added my name. She eloquently set out the case for the amendment and I will not repeat her comprehensive and cogent arguments. I have no doubt that the Government will regard the amendment as too wide-ranging. It provides for a determination setting aside the bedroom tax, potentially for a very large number of families. For a considerable number of families a move into new and smaller accommodation will be contrary to the interests and the welfare of the child. At the lower level of harms—if one can call them lower level—a house move may involve the children having to change school at the same time as they move home. Other children will move away from a grandparent or somebody else who looks after them when their parents are working. These sorts of changes could have very serious consequences for very sensitive children—not necessarily just disabled ones. At its most serious, a move may deprive a family of the basic space they need in order to continue managing a severely disabled child, or indeed an adult, in the family and therefore keeping the family intact. I want to focus on this to avoid duplication.

We know that families with a disabled child have been disproportionately disadvantaged by the bedroom tax, although the Government accept and have made changes to ensure that a disabled child should at least have a room of their own. That was certainly progress. The Minister always tells us that the discretionary housing payment is the answer to all possible problems. It will no doubt help many families with a short-term problem, if they are able to move into smaller accommodation—that is a big if—without serious consequences for a child or for the family as a whole, but where there is a short delay before the move can take place. I guess that would work pretty well. I accept that discretionary housing payments can be a helpful safety net for some people in the short term. That is how I think I see it working.

However, to illustrate a point, let us take the case of Mary Jane—not her real name—who is blind and unable to walk or talk. Mary Jane’s mother has what might be described as a spare room. It is not a spare bedroom and not actually a spare room at all. It is a vital sensory haven for her very severely, multiply disabled daughter. The room contains a ball pool: a plastic space full of balls of different textures and sizes in which her daughter can sit and have a little bit of pleasure in life—not very much but a little. The room is also a storage space for Mary Jane’s wheelchairs and other aids that enable her to be moved round the house because, of course, her mother cannot lift her.

This family cannot reasonably move into smaller accommodation. One can never envisage a time when they could. If they were forced to do so, how long would it be before Mary Jane was being admitted to residential care, at considerable cost to the taxpayer? Instead, this mother has been asked to find an extra £570 bedroom tax per year for her essential space. I emphasise “essential”. We are not talking about a luxury here. That is the point of my remarks. For a small number of families extra space is not a luxury. Yes, Mary Jane’s mother has now been awarded a discretionary housing payment that should cover the shortfall, apparently, for the start of the year. However, what is that to this mother who has the most enormous stresses to start with and now wonders whether she is going to be able to stay in her home with a little bit of extra space? She will have to claim these payments—as I understand it but I think the Minister has questioned this—or may have to claim them over and again with no certainty about whether or when she might be turned down. These payments are discretionary and will continue to be so. This is for very good reasons for many families but for these families it is a disaster.

First, does the Minister believe that it is right to cause that degree of uncertainty and inevitable stress for a committed carer who is, in fact, saving the taxpayer very large amounts of money every year? This one claimant already says that she has had to cut back on absolutely everything, including food. Presumably that was before she got this discretionary payment but then she is thinking, “My God, when this comes to an end, what will we do then?”.

Secondly, if the Minister is not willing to amend the bedroom tax and turns away this amendment, has he calculated the costs and benefits of these provisions for families with a disabled child, taking account of the inevitable number of children who will over time be placed in residential care? What will be the balance of costs and benefits? Is there not an argument—rather a strong one I suggest—to do something about this?

Finally, will the Minister agree to take this matter away and come back at Third Reading with a proposal to protect some families at least? I understand that the Government are not very happy about a wide discretion or a dismissal of the bedroom tax but it feels very concerning to leave it as it is. These are three serious questions and I hope the Minister will answer them today.

Photo of Lord Storey Lord Storey Liberal Democrat 6:45 pm, 29th January 2014

My Lords, obviously we should be supporting any family in the situation described by the noble Baronesses, Lady Jones and Lady Meacher. The noble Baroness, Lady Meacher, rightly pointed to the support that can be received from the discretionary housing subsidy. What I do not understand is why, for example, in my local council in Liverpool, last year £337,000 of government discretionary housing payments were left unspent and returned. The sad thing is that, in every year since 2001-02, a large sum of money has been returned.

I do not understand why the Local Government Association is telling the noble Baroness, Lady Jones, that demand is outstripping provision when currently, after six months, Labour councils have spent only 29% of the allowance. In 2012-13, in England as a whole 37% of discretionary housing subsidy was left unspent. Should we not encourage those councils to use that money to do the same things that both noble Baronesses have suggested? If there is money available, it must be used for that. It is a disgrace, when children are in difficult situations—whether they need support because of physical handicap or whether they are in appalling conditions and need that support—to leave 37% of that money unspent across the whole of England.

Photo of Baroness Lister of Burtersett Baroness Lister of Burtersett Labour

My Lords, as of August 2013, there were more than 235,000 children—nearly a quarter of a million children—living in households whose benefits have been cut because of the bedroom tax. We do not know how many children have had to move, disrupting their schooling—a point that has already been made—their friendships and the social networks which enable their parents to get by with childcare and other things. When I asked the Minister earlier today about the implications of this for the Government’s child poverty strategy, I did not get a direct answer. Inevitably, these families are being pushed further into poverty; there are no two ways about it.

There have been a number of reports in newspapers about the struggles that many families face trying to get by. I will not read all of them but simply read from the initial comments from the UN special rapporteur on adequate housing, who put the case very well. She said:

“The right to housing is not about a roof anywhere, at any cost, without any social ties. It is not about reshuffling people according to a snapshot of the number of bedrooms at a given night. It is about enabling environments for people to maintain their family and community bonds, their local schools, work places and health services allowing them to exercise all other rights, like education, work, food or health”.

She continued:

“Of the many testimonies I have heard, let me say that I have been deeply touched by persons with physical and mental disabilities who have felt targeted instead of protected; of the grandmothers who are carers of their children and grandchildren but are now feeling they are forced to move away from their life-long homes due to a spare bedroom or to run the risk of facing arrears; of the single parents who will not have space for their children when they come to visit; of the many people who are increasingly having to choose between food and paying the penalty. Those who are impacted by this policy were not necessarily the most vulnerable a few months ago, but they were on the margins, facing fragility and housing stress, with little extra income to respond to this situation and already barely coping with their expenses”.

The amendment will not solve the problem, but it will go some way to alleviate the problems that those families face. Families are really struggling as a result of this measure, and I hope that we can support the amendment to do something for some of those very vulnerable children.

Photo of Lord Martin of Springburn Lord Martin of Springburn Crossbench

My Lords, briefly, I agree with everything that has been said. There is often criticism in my native city of Glasgow that the housing estates are too big, but those of us who know those housing estates know that there are excellent communities within them. In fact, those of us who have lived in big cities think of them not as a big city but as a collection of villages and communities. Many of the housing estates that I know of and are excellent were built just after the war, when the soldiers came home from the forces. The families were regarded as big. I came from a family of five living in a tenement, and in those days that was a small family—there were families of eight or nine.

Noble Lords are right to say that there can be a big impact on children if they have to move away from the communities that they enjoy. Most of us have happy memories of the childhood communities we lived in and the support of the extended families who were there. We could end up taking young children out of their school, as has already been stated, and away from their community facilities into a strange area.

I go back to where I was raised in the city of Glasgow. If a family is in an underoccupied house, that can mean that the house has a garden and a back and front door, which is regarded as significant for a family. To go to the proper size of house that the Government suggest could mean that they are forced to take a tenement flat. It has a big impact on a young person to go from a house with a garden to a tenement flat.

When I have spoken to the Minister, he has been very courteous to me and told me that he will give me a reply on this matter, but he has always mentioned the waiting lists and how long they are. The implication is that, if you have a long waiting list, you will fill the vacant accommodation. That is not necessarily the case. Anyone who has been a constituency MP or a councillor will know that people will come to you to say, “I’ve been on the waiting list for 10 or 12 years”, but when you say, “I can get you a house tomorrow”, they say, “Oh, but I’m not taking a house in this area or that area; I want this particular area”. Those who are on the waiting list exercise a great element of choice.

I personally have no housing problem either in London or in Glasgow, but I dare say that, legally, there would be nothing to stop me going to the local housing association in Westminster and saying, “I want to put my name on the waiting list”. By the same token, I could do that in Glasgow. Being on a waiting list does not mean that the person on the list is in need. I do not think that the waiting list is necessarily the best measure to use when saying that we can solve the problems caused by people being forced out of their so-called underoccupied houses.

Photo of Baroness Hollis of Heigham Baroness Hollis of Heigham Labour

My Lords, briefly, I think that the Minister has a choice when he responds to the amendment, which was so effectively moved by my noble friend. He can say either that children of a certain group—disabled children, children in poverty or whatever—are exempt from the application of the bedroom tax to the tenancy, or he can say, on the contrary, we will leave it to local authorities to exercise their discretion, so that the response you get is a lottery based on where you live, and you have all the problems associated with what is effectively means testing.

The advantage of the first path is that you can perfectly easily have ways of ensuring that certain families with children do not come into the category of the bedroom tax as such. You could say that children on disability living allowance, for example, would simply be exempt, but discretionary housing payments apply to other people, which may include disabled people and so on. If that is the way which the Minister wishes to go, that would be the clean and clear way to do it.

If the alternative is to rely on discretionary housing payments, as the Minister keeps doing, then two or three things follow from that. First, that depends on the initiative of the family to go in for, effectively, a local means-testing regime. What we know at the moment, and the Minister will know this as well as anybody in this House, is that what happens with a means-testing regime is that more than a third of pensioners, for example, who are eligible for means-tested benefits do not apply and therefore do not get them. We know that many families who are entitled to council tax benefit—again, it is something like 40%—do not apply and do not get it. He is dependent on the ability of that family to touch resources to which that family may have no access. That money therefore does not get drawn upon and, as a result, that family goes short and hungry.

Secondly, if you are relying effectively on the means-testing principle, you are relying on the insecurity of the local authority. I can tell the Minister why that money is not being spent. Something like 18 or so months ago, my own local authority, Norwich, ran out of its discretionary housing payment money by November. The Minister is very fond of quoting at me on the Floor of this Chamber—he has now done so twice—what has happened in Norwich. After November, other families in distress who needed the support could not access any more money because it had gone.

As a result, local authorities across the country are trying to calibrate need, knowing that demand fluctuates in the course of the year, particularly after Christmas when the energy bills go up and the debts begin to fall in. That is why so many local authorities are being extremely cautious and careful about how they spend that discretionary money. It is not that they wish to withhold it, but they are terrified of being in a situation where so many of them have been in the past.

I know that the Minister has fought for additional moneys. Every time that he fights for additional moneys, at the end of the day it will not make a penny of savings on this whole damned policy. It is a lousy policy. By the time he has got to £180 million, taking into account arrears, voids, administrative costs, eviction costs and the costs of those who go into the private rented sector, which increases their HB, he will find that there will be no savings left but he will have put hundreds of thousands of families—two-thirds of them disabled and about a third to a quarter of them with children—through the stress and insecurity which the noble Lord, Lord Martin, has just described to us from the Cross Benches.

The Minister has a choice. He can either go back and change the housing benefit regulations following this amendment, so that children are taken out of its application, or he can rely on his principle of means testing, knowing that it has failed repeatedly. We have a Pensions Bill at the moment which is taking means testing out of the system because we know of its inadequacy. The Minister is now importing that back into the relief of children in poverty, which he does not need to do. I hope very much that he will listen today to the powerful speeches made on behalf of children because his policy is a cul-de-sac. It is a dead end and the sooner that it is abandoned, frankly, the better.

Photo of Lord Freud Lord Freud The Parliamentary Under-Secretary of State for Work and Pensions 7:00 pm, 29th January 2014

My Lords, as one would expect, this has been an interesting debate with some impassioned and important contributions, which I welcome. Let me start by reminding the House of the fiscal environment that led to this measure’s introduction. In the final year of the previous Government, borrowing had risen to £150 billion. In cash terms, over the previous 10 years, expenditure on housing benefit had nearly doubled to £24 billion. Left unreformed, annual expenditure on housing benefit would have exceeded £26 billion per year by the end of this Parliament. Nearly four years on, the range of economic indicators are showing that our policies are working and have led to the number of workless households, the number of lone-parent workless households and the number of children in workless households all being the lowest since comparable records began in 1996.

I will not spend a huge amount of time responding to the policy issues raised because we have already spent a lot of time in this House dealing with the policy as a whole. I want to deal with the issues raised by the nature and form of this particular amendment.

The Housing Benefit (Amendment) Regulations 2006 are secondary legislation, which contain detailed provisions that set out how local authorities should administer housing benefit. It is very unusual to seek to amend secondary legislation through primary legislation in this way. The amendment itself is imprecise and ambiguous, unlike the rest of Regulation B13. For example, under proposed new paragraph (5A) it is unclear what “restriction to one bedroom” or the concept of,

“in the interests of the welfare of a child”,

means in this context. Because of this, the amendment may have unintended consequences that go far beyond those desired by the noble Baroness.

The effect of the amendment is potentially to allow local authorities to determine that the removal of the spare room subsidy does not apply where the household contains children, as it is not in the interests of their welfare. So this amendment is likely to add around £160 million a year to the housing benefit bill, reducing the savings from the policy to around £330 million a year. It would extend only to the social sector and so reintroduce the inequity in treatment between housing benefit claimants that we have sought to remove with the implementation of this change. Applying the spirit of the amendment to the local housing allowance to re-establish fairness is likely to more than double the cost of making this amendment to around £460 million a year. This amendment does not deliver the intended outcome. If accepted, we do not intend to amend it and it will be sent to the other place in its current defective state.

It may be helpful if I remind noble Lords that we have already taken account of the interests and welfare of children in developing this policy. In March, we amended the regulations to allow an additional bedroom for foster and kinship carers. We have also made £5 million of discretionary housing payment funding available specifically for foster carers who require further additional rooms to allow them to foster two or more children, including groups of siblings. The discretionary housing payment data for the first six months indicate that foster carers are applying for and receiving payments, as intended. In March, we also issued guidance to local authorities indicating that they should allow an additional bedroom for disabled children who would ordinarily be expected to share a room but are unable to do so because of their disability. This was put into a regulatory framework in October. We have provided £180 million of discretionary housing payment funding for this year, and £165 million for next year, to enable local authorities to support the most vulnerable families affected by the reforms. This funding is already meeting the need that the noble Baroness seeks to address through this amendment.

Perhaps I might pick up on two of the vital points raised by the noble Baroness, Lady Meacher, on the costs and benefits for children who go into residential care as a result of the removal of the spare room subsidy. We have not looked at this specifically. The independent evaluation of the policy will look at the effects on families. We are not currently aware of any evidence to support the assumption that this would be an outcome of the policy.

Picking up the example that the noble Baroness raised about Mary Jane and focusing on the uncertainty that that family had with that poor girl, I am aware that some local authorities, following the introduction of the policy, have understandably taken a very cautious approach to awarding discretionary housing payments, as they assess the level of need in their area. I have instructed my officials to amend the guidance to local authorities to encourage them to make longer-term awards where the circumstances are unlikely to change. The revised guidance is being prepared and will be shared with the local authority associations in draft before being issued for the start of the financial year.

At this stage, we have not seen anything to suggest that this policy is having a detrimental impact on the welfare of children living in affected households. We are closely monitoring the effects of the policy and have commissioned an independent two-year evaluation which—among other things—will look at the effects on families. The interim findings are due to be published in spring this year.

I hope I have been clear. I have already reflected on the noble Baronesses’ amendment. I cannot undertake to reflect further between now and Third Reading. If the noble Baroness wishes to test the opinion of the House, she should do so now.

Photo of Baroness Jones of Whitchurch Baroness Jones of Whitchurch Shadow Spokesperson (Culture, Media and Sport), Shadow Spokesperson (Education)

My Lords, I very much thank all noble Lords who have spoken. I also thank the Minister. I welcome him to this Bill for, I think, the first time. Some of us are long veterans of this Bill. We have been debating it since last June. Our focus has, perhaps, been very different from the values and priorities that the Minister has been enunciating this evening. We have been very much focused on the child welfare issues and have seen those as a priority in the progress of the Bill. We have reached quite a lot of cross-party and cross-Chamber consensus on all of that.

Once again the Minister put great emphasis on the discretionary housing payment scheme. The fact is, in ways that were never foreseen when the original bedroom tax was introduced, it has already had to be increased and increased. This very much demonstrates that the policy, as originally planned and thought out, was not working and is still not working. It is making the evaluation of the costs very difficult. Indeed, the savings that were originally envisaged are now not being met. The whole policy is being turned on its head.

In all the calculations that I have heard the Minister cite, he does not take into account some of the extra costs. Noble Lords around the Chamber have given us examples, including the whole issue of managing evictions, debt, arrears, the extra costs to local authorities of going back to people to try to collect those debts and arrears, and the more ill defined, but nevertheless very much present, extra social problems that arise from some of these issues.

I am very pleased to hear that there will be an evaluation but, in the mean time, we are trying to deal with some of the problems that exist now. I say to the noble Lord, Lord Storey, who said that some of the discretionary fund was not always being used, that, for that very reason, the discretionary fund is not always the answer to those families. It is quite traumatic to go through that means-testing process. There is also an administrative on-cost for the local authorities that are trying to administer it. This is a murky area. It is not surprising that money in and money out are not always working effectively with the administration of that scheme.

Meanwhile, we have to respect the fact that the Tory-led Local Government Association is saying that there is a problem here and that other budgets are having to be raided to cope with the surge of applications. It is not me who is saying that; it is the Local Government Association. The chair of the Local Government Association’s finance panel says:

“This will have a significant impact on local government budgets, which are already stretched to breaking point by the deepest cuts in the public sector”.

Again, those are not my words; they come from the chair of the LGA finance committee.

However, this is not about the funds. It is about child welfare and about localism—a word that this Government do not seem to use very much any more. It is also about trust. Our amendment would trust local authorities to manage their housing stock and the vulnerable families within them most effectively. The noble Lord, Lord Martin, began to illustrate that. The housing stock and the experience of people living in Glasgow are very different from that of people living in the Welsh valleys, London and other urban areas. It is very difficult for local authorities to operate a blanket scheme when the housing stock, the availability of alternative stock and so on are so different. We are trying to build in extra flexibility to enable local authorities to respond to the real needs of the families and children in their locality.

At the moment, those local authorities are trying to manage the sometimes perverse impact of that national policy on their local families. For example, they have to move families whose homes have been adapted to smaller homes, which in turn will need to be adapted all over again; or push families into the more expensive private rented sector as those smaller properties are not available, leaving behind sometimes larger properties that nobody wants to live in, which then remain empty. These are perverse events that were not foreseen but are now happening on the ground.

Ultimately, it comes back to what is in the best interests of the child. I know, from my experience as a trustee of Shelter for many years, that enforced moves and disruption can have a devastating effect on children’s health and their schooling, particularly if they are suffering from other complex problems. We have talked a little about disability, but it is not just about disability. There can be complex family problems, personal problems, things to do with special educational needs and services that they need in the locality. We have debated these on other occasions. There could be all sorts of other local services that they rely on to get by. We are in danger of cutting off those people with those problems by expecting them to move unnecessarily.

We have united across the House throughout the Bill on the need to put children’s welfare first. This is a very simple amendment that follows that logic through. It would enable local authorities to ensure that they too abide by that principle in implementing the rules of the bedroom tax. If the Minister did not like our drafting, it was open to him to come back with an alternative, but he has made it clear that he is not prepared to do so. On that basis, I have not been convinced by the Minister on this issue. I therefore wish to test the opinion of the House on this amendment.

Division on Amendment 57BC

Contents 154; Not-Contents 185.

Amendment 57BC disagreed.

Division number 2 Children and Families Bill — Report (5th Day)

Aye: 152 Members of the House of Lords

No: 183 Members of the House of Lords

Ayes: A-Z by last name

Tellers

Nos: A-Z by last name

Tellers

Consideration on Report adjourned until not before 8.29 pm.