Clause 2 - Smoke-free premises

Health Bill – in a Public Bill Committee at 11:45 am on 6th December 2005.

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Photo of Steve Webb Steve Webb Shadow Secretary of State for Health 11:45 am, 6th December 2005

I beg to move amendment No. 40, in clause 2, page 2, line 17, at end insert—

‘provided that the part of the premises that is open to the public or (as the case may be) used as a place of work is segregated from the remaining premises to standards that the appropriate national authority may specify in regulations.’.

Photo of Eric Illsley Eric Illsley Labour, Barnsley Central

With this it will be convenient to discuss the following amendments: No. 46, in clause 3, page 2, line 40, at end insert—

‘provided that any area of a premises that is provided as not smoke-free at any time shall not share floor space unsegregated by a wall or door with any area that is smoke-free at the same time.’.

No. 48, in clause 3, page 3, line 5, at end insert—

‘(c)requirements for segregation of smoking and non-smoking areas, provision and maintenance of ventilation systems, and restrictions on deployment of staff in smoking areas.’.

Photo of Steve Webb Steve Webb Shadow Secretary of State for Health

This group of amendments touches on the issue of separation and segregation. As I said in my opening remarks, now that there is not to be a total ban, there will be parts of premises and categories of buildings where some smoking is allowed, which might be adjacent to areas in which smoking is not allowed. Therefore, we must consider how the distinction between smoking and non-smoking areas should be drawn, how to ensure that smoke in smoking areas is not detrimental to non-smoking areas, and how they should be separated.

Amendment No. 40 would amend clause 2(3), which concerns premises that are described in the explanatory notes as

“someone’s home as well as their workplace”,

such as someone’s home in which music lessons are given or from which financial services are offered.

Subsection (3) seems to say that areas into which the public may come or in which they are served will be smoke-free, but that other parts of the premises do not have to be smoke-free. Suppose that music lessons are given—or some other service is provided—in the front room of a house; that does not mean that the person who owns the house or provides the service from home cannot smoke in the kitchen. Amendment No. 40 is about the distinction between two parts of the same premises. Is it sufficient to say, “We provide music lessons in the front of the house, so there is no reason why we shouldn’t smoke in the back of the house,” considering that if the smoke travels it will be detrimental to people using the public place, which is a workplace, at the front of the house? What are the dividing lines? How are such places to be cordoned off?

On the theme of music lessons, I play the oboe in my spare time. My oboe teacher was a pipe smoker, and the small practice rooms in our school were constantly full of pipe smoke, although the teacher never smoked while I was in there. That probably was not an ideal environment in which to teach a pupil to play a wind instrument.

We are talking about a situation in which smoke from another part of the house or premises could waft in to where people are having a lesson or receiving a service. What segregation should there be? The amendment suggests that there should be some standard to determine that set down by the appropriate national authority. Clearly, circumstances will differ in private houses, but we want to avoid a situation in which the letter of the law is followed so that there is no smoking in the immediate place in which the service is provided, yet there is smoking elsewhere on the premises, which, because of the inadequate segregation, is detrimental to the public and anyone else who works in that environment.That is the thinking behind the amendment. [Interruption.] Excuse me; that is not a smoker’s cough, I assure you, Mr. Illsley.

Amendments Nos. 46 and 48, which would amend clause 3, concern similar issues. Amendment No. 46 is also about segregation, but in relation to pubs and similar environments. The amendment provides that areas designated as smoke-free should be substantially separated by a wall, door, or similar. Relevant issues that we touched on briefly in our previous discussion include the 1m-from-the-bar rule.

The Secretary of State said on 26 October that

“smoking in the bar area will be prohibited everywhere ... We shall consult further on the best method to achieve this, including on discrete smoking rooms or areas to protect staff.”

The amendment shows that whatever may come out of the process, we do not think that an arbitrary distance with no physical separation achieves the goal. I accept the Minister’s point that custom and practice—good form, decent employers, people who do not want their bar staff to have someone puffing a cigarette straight in their face—might have come up with the standard of one metre, but I hope that the Minister will accept that there is no health basis for it. Smoke circulates; the second that somebody opens the door to come into the pub, smoke wafts around. It is hard to say that a separation by distance will achieve the public health and safety goal that should be the purpose of the legislation. If the Government insist that there should be areas where smoking is permitted—we remain of the view that there should not—they should be clearly separated by some physical barrier.

I shall now move to amendment No. 48. There will continue to be places where workers will be exposed to second-hand smoke; the non-food pub is a classic example of that—albeit not within a metre of the bar. To say that people who work there will be thrown to the wolves might sound slightly hysterical, and I would never want to do that, but essentially they will be abandoned beyond the existing health and safety legislation. Workers in private clubs will, essentially, have to lump it. The amendment says that that is not good enough. If the Government insist on some   workers still being subject to second-hand smoke, we should none the less beef up the health and safety protection that they get. We suggest that even for them, there should be restrictions on the

“deployment of staff in smoking areas.”

One possibility is that the Government will come up with a “smoking carriages” idea: in pubs that do not serve food, smoking will be permitted in sealed rooms. But who has to work in those sealed rooms? Will cleaning staff have to go in? Will bar staff have to take the drinks away? What happens if a fight breaks out? Who will have to go in then?

Amendment 48 asks for clear restrictions so that workers know what they do and do not have to do in terms of deployment to smoking areas. Essentially, they are being asked to go into an unhealthy environment. It is not good enough to say that that will be done by negotiation with the employer. In the past I have given the example of Sunday trading, when people may have a theoretical right not to be forced to do something, but when the individual employee, relative to their employer, can be in a vulnerable position. If the Government were to say that the remaining workers have no protection beyond the existing health and safety rules, that would be unsatisfactory.

So our third amendment would set out in clause 3 requirements for segregation and ventilation. As I understand it, the ventilation required to get rid of all the particulates would be something of a whirlwind, which is not credible. There should at least be some regulation so that if staff have to go in and clean, or take glasses away, they know where they stand. If this is a Health Bill about the health of workers, they need enforceable rights. They need to know where they stand, what they can be reasonably expected to do and how often. It is not a private matter or a free collective bargaining issue. It is about their health and safety, and we believe that the amendment would provide the opportunity to protect workers who have otherwise been neglected by the Bill.

I will now draw together the threads of the three amendments. Our focus is on concepts of separation and segregation in the imperfect world that the Government want to take us to. We want to deal with the fact that smoke drifts, and that a 1 m exclusion zone, or anything else of that kind, will not work. We want to give the workers who will, residually, still suffer from the Government’s timidity some rights to protect their health.

Photo of Andrew Murrison Andrew Murrison Shadow Minister (Health) 12:00 pm, 6th December 2005

There was a great deal of sense in the hon. Gentleman’s remarks. I am not usually kind to the Liberal Democrats—he has probably noted that—but on this occasion he has made a useful contribution and opened up an important debate. It is a debate on which the Minister has failed. We are considering a workplace. In general we are concerned, with respect to workplaces, about occupational exposure standards, airborne contaminants and the levels of those that are regarded as safe, and the Control of Substances Hazardous to Health Regulations. I know   that my right hon. Friend the Member for North-West Hampshire (Sir George Young) is keen on that issue and he will return to it in his amendments.

We are dealing with a workplace that appears to be poorly regulated in comparison with other workplaces, and it is appropriate for us to consider that and decide how we might improve the occupational health of the people who work there. I declare an interest in that before I was elected to this place I was a consultant occupational physician. As I read the Bill, I was staggered by the lack of consideration that the Minister has given to what would be regarded, in an occupational setting, as frankly minimal standards in the matter of what it is or is not reasonable to expose workers to.

We have heard nothing from the Minister about COSHH or about occupational exposure standards. The debate about segregation—physical segregation and segregation by time of exposure, distance and ventilation—seems not to have been considered by the Minister at all; or, if it has, that has been merely en passant. In particular I am concerned that the Minister has not adequately explored the question of ventilation and that perhaps it has not been considered among the possible exemptions of which she gives examples. She might consider ventilation for clubs, for example, that might be exempted under the regulations. Perhaps we might also have occupational exposure standards for tobacco smoke to protect workers in those places.

I am alarmed by the poverty of imagination and the Minister’s ability to ignore, in the Bill, normal occupational hygiene measures and language. It is almost as if the Minister is telling us that we are dealing with a workplace, but that it is not quite a workplace in the normally accepted way of thinking. If she went to any industrial complex she would find occupational hygienists measuring air flow, airborne contamination and the rest of it to the nth degree, yet there is no reference to those practices in the Bill.

I urge the Minister to think seriously about bars and clubs as workplaces rather than just giving us polemic about protecting workers’ rights. I urge her to consider how proper workplace standards might be applied to people who work in those pubs and clubs. If she did that, she would, I think, come up with a very different Bill, which would, for example, mention such things as the Health and Safety Executive, COSHH and occupational exposure standards. There is nothing in the Bill about them and no reference, even in the guidance notes, to any of them, although they are the weft and warp of normal occupational hygiene. She has ignored them and all that we have are illogicalities. No serious thought is given to how to separate workers from a potentially noxious substance. There is the 1 m from the bar rule, but we know—the Minister has admitted—that it has no basis in fact. There is no evidence base for it. It has been plucked out of the air.

There is a reference to smoking at the bar. I suppose that we can understand that someone who does not smoke and who is serving behind the bar might find that offensive so, anecdotally, there is a reason for specifying smoking at the bar in the Bill or the   guidance, but there is no evidence. No one has gone out and done any serious measurements relating to exposure to tobacco smoke which would inform the Bill; everything is anecdotal. We should not be legislating on the back of anecdote. We need to legislate on the basis of evidence, but there is a poverty of evidence in the Bill so I hope very much that the Minister will take a more serious look at the issue. Perhaps we could have rather less polemic and rather more evidence. If she provides that, we will end up with a Bill that is considerably better than the current one.

Photo of Caroline Flint Caroline Flint Parliamentary Under-Secretary (Department of Health)

Clause 2(3) covers premises that are only partly public and workplaces, for example, where services that the public use are housed in someone’s private residence. The example of a music teacher was given. Another example might be a GP who has his surgery in his home, or a pub where the tenants live on the premises. In respect of those examples, subsection (3) provides that any area of the property to which the public have access will have to be smoke-free. As was outlined and as is clear in the Bill, smoking will still be allowed in private areas of the premises, as the Bill is concerned only with public places and workplaces.

I understand the intention behind the amendments tabled by the hon. Member for Northavon, but I am concerned about putting those measures in the Bill. One effect of amendment No. 40 would be to require public smoke-free areas of the premises to be segregated from the private areas of the premises if smoking was ever to take place in the private areas. I understand that the provision the hon. Gentleman is challenging us to move towards has not been felt to be absolutely necessary in Scotland or Ireland. Although I acknowledge his point, there are issues for people who use their private premises as a workplace regarding the responsibility on them for ensuring that the public have access only to smoke-free areas. The amendment would provide a power to make regulations specifying the requirements for that segregation. I do not believe that that is a matter on which we should legislate in the Bill. It is up to the individuals living in the private spaces to decide how they will fulfil their obligation under the Bill to ensure that the public areas of the premises are smoke-free.

There are so many different examples that we could give in relation to smoke-free places, whether partially or wholly, that we could find ourselves in a difficult situation, trying to cover all bases in the Bill. The provision in the Bill for regulations will give us a chance to produce draft regulations, discuss the issues and approve the regulations at a later date. I understand the hon. Gentleman’s concern and intention, but specific requirements for segregation, as outlined in the amendment, would be over- burdensome on this occasion.

Photo of Steve Webb Steve Webb Shadow Secretary of State for Health

The Minister will notice that amendment No. 40 does precisely what she has said should be done: it would not put in the Bill provision for precisely how things would work, but would give the national authority the power to make regulations.   If we do not make regulations, presumably the issue will be decided by the courts and we will have a situation in which someone says, “I teach in the front end of my very big front room, which is smoke-free. I smoke occasionally at the far end of my front room, but that’s such a long way away that I am not breaching the rules.” Surely if we do not specify matters in regulations systematically, they will be decided ad hoc in the courts.

Photo of Caroline Flint Caroline Flint Parliamentary Under-Secretary (Department of Health)

The intention is clear from what we are saying about places to which the public have access being smoke-free. It would be incredibly burdensome to go into greater detail on buildings that are part private and part public, a few examples of which have been cited. We might specify to someone, for example, whether they should have double doors, what sort of doors they should have and so on. There are balances to be struck. Obviously, hon. Members will raise issues in Committee and I shall reflect on them outside Committee, but I am not convinced at the present time. I understand that, in both Ireland and Scotland, the proposed measure was felt to be unnecessary; it was felt unnecessary to be more prescriptive.

Photo of Andrew Murrison Andrew Murrison Shadow Minister (Health)

Does the Minister agree that if she treated places in which people might be exposed as workplaces, the dilemma to which she refers would be avoided? Surely that is the crux of the matter.

Photo of Caroline Flint Caroline Flint Parliamentary Under-Secretary (Department of Health)

I will try to cover all the contributions that have been made, and if I do not I shall be happy for hon. Members to intervene. However, I shall be grateful if hon. Members will give me a chance to answer their points rather than constantly repeating them. The point made by the hon. Member for Westbury applies in different ways to all the amendments put forward by the hon. Member for Northavon. Rather than both of us repeating ourselves, I shall come to them in due course.

On amendment No. 46, clause 3(3) sets out in detail how we might regulate to provide for exemptions from the prohibition on smoking in closed public places and workplaces. They might apply to whole premises or to areas of premises, and the exemptions will apply only if specific conditions are met. We will set out those conditions in regulations. Amendment No. 46 is an attempt to specify in the Bill the sort of conditions that we have clearly said, both during the consultation process and when introducing the Bill, that we intend to put into regulations.

In many respects, particularly in relation to clause 3, we have put headline issues into the Bill to show intent—to help people to understand what the Bill is all about. The regulations will have to deal with the wide variety of ways in which the law might be interpreted. That is why regulation-making powers will be an important part of the next stage of the process. When drawing up and consulting on the regulations, we shall consider carefully the underlying point made by the hon. Member for Northavon in relation to amendment No. 46. As we have made clear previously and as he highlighted, smoking rooms may be one way of delivering in regulations the commitment that we have made to prohibit smoking   in the bar areas of exempted premises. However, I do not feel that we should deal with that in detail in the Bill. I hope that he will allow us to complete our consultation and propose draft regulations with a view to making it clear how the protection of bar areas should be enforced.

Clause 3(4) sets out examples of the sorts of conditions that may be considered when setting out the circumstances in which premises or areas of premises are not smoke-free. We have given the examples of restrictions on what is sold or consumed in such premises or areas of premises apart from alcohol, and the designation of smoking rooms. Amendment No. 48 would add to that list of conditions. In particular, it would add the segregation of smoking and non-smoking areas, ventilation requirements and restrictions on staff in smoking areas. Again, although I understand the intention of the amendment, I am not sure that it is helpful to put into the Bill all the possible considerations that will go towards forming the regulations on exemptions.

We will have an opportunity to discuss whether the listed criteria are exhaustive or too narrow. We believe that the way in which the clause is drafted makes the key considerations sufficiently clear. For example, there are further amendments concerning ventilation. There is a huge debate to be had on the contribution of ventilation, and on what it extracts from the air and what it leaves behind. If we were to go down that route, how prescriptive should we be about what sort of ventilation should be provided? So far, having heard the many views on the subject, we think that we have gone in the right direction.

The hon. Member for Westbury expressed disappointment that the Bill does not focus more on health and safety, and he referred to the Control of Substances Hazardous to Health Regulations, which apply to substances that are generated by some work activities. The Bill is neither employment legislation nor health and safety at work legislation. We have been clear about that, both in terms of the outcome of the “Choosing Health” White Paper and in our consultation over the summer. The Bill intends to reduce the number of places in which smoking can occur. Employees should have the same rights with their employers under employment and health and safety legislation as they currently have. That is proper and should be applied regardless of whether a workplace is smoke-free or allows limited smoking.

This morning, some of the focus has been on bar workers. There are other situations to debate—for example, when people go to give services in somebody’s home. I do not think anybody is saying that a pensioner who smoked would have to introduce ventilation or give up smoking before a service—either a home help or something else—that they needed was provided. There would have to be a way to handle such a situation.

As far as I am aware, many employers in the public sector, and some in the private sector—we could be talking about someone coming to read the gas meter—   would expect that smoking would not take place in front of the worker when they visited premises. That raises—

Photo of Caroline Flint Caroline Flint Parliamentary Under-Secretary (Department of Health)

I will just finish the point, which was about different workplaces and the complexities involved. Our main aim in this Bill is to legislate to improve access to choice about the places in which people can work and socialise in a smoke-free atmosphere.

Photo of Andrew Lansley Andrew Lansley Shadow Secretary of State for Health

Clause 2(2) is about premises that are used as a place of work. The Minister will correct me if I am wrong, but there is a difference between places that are open to the public, which are smoke-free to that extent and for that period of time, and premises used as a place of work, which are smoke-free to that extent but all the time. The provision includes the phrase:

“They are smoke-free all the time.”

I am not quite sure what that means. Does it mean all the time that they are a place of work or all the time for ever? Where is the boundary? If a plumber and his mate come to work in my bathroom, it is a place of work for them and more than one person is involved. I hope that my bathroom would always be smoke-free, but that is not the point. Does that turn my home into a place that must be smoke-free all the time that they are there or smoke-free for ever?

Photo of Caroline Flint Caroline Flint Parliamentary Under-Secretary (Department of Health)

To draw a distinction, we are dealing with situations involving a public place or a workplace. I made a point about where services come into someone’s home. We are not defining the person’s home as a workplace. The hon. Member for Westbury raised points about employees and access to smoke-free environments. We are legislating in relation to workplaces. As I understand it, where part of a premises is a workplace, that should be smoke-free—I will clarify this, if necessary—and a workplace should be smoke-free at all times. The provision does not include situations where people invite a plumber in to do some work in their home.

Appropriately, this is a public health Bill that reflects public opinion as well as health evidence. It is not primarily a narrow worker-protection matter. We are aiming to increase substantially the number of smoke-free public places and workplaces. As I said, I am not sure whether using ventilation or air-quality standards for workers would contribute to that. Therefore, on this occasion, I cannot agree to the amendments tabled by the hon. Member for Northavon. However, I listened to what he said and some of his points will form part of our decisions and deliberations in bringing forward the draft regulations.

Photo of Steve Webb Steve Webb Shadow Secretary of State for Health

I am grateful for the Minister’s sympathetic tone and for the fact that she recognises some of the issues raised in the amendments. Our discussions this morning have already helped me in one important respect: I have noticed something that I failed to notice on Second Reading, which is that the   Bill that provides for smoke-free public places does not at any point define “smoke-free”. That is a pretty central problem because, to develop the point made by the hon. Member for South Cambridgeshire, if a home is used as a workplace and we agree that the bit that is used to serve the public has to be smoke-free—

Photo of Steve Webb Steve Webb Shadow Secretary of State for Health

But does that mean no smoke ever? Does it mean that, as soon as somebody has smoked there once, one assesses the residual particulates and says, “There is still some damage to be done, so it is not smoke-free”? If it is adjoining and not segregated from somewhere else in the house where there is a chain smoker puffing away like billy-oh and someone opens the door and it all wafts in, is that still smoke-free? If the Government and the regulations do not decide what the definitions are, the courts will and that is always the second best solution. If we in this House have a view about those matters, we should be defining them now, rather than leaving them, literally, as a grey area for someone else to intervene on.

Photo of David Kidney David Kidney PPS (Mr Elliot Morley, Minister of State), Department for Environment, Food and Rural Affairs

To assist the hon. Gentleman, I should point out that we spent rather a long time on clause 1, which deals with what “smoke-free” means. Clause 1(2) specifies that it has to have something to do with smoking about it.

Photo of Steve Webb Steve Webb Shadow Secretary of State for Health

Yes, but it does not say when. It says “smoke-free” means that one cannot be

“in possession of lit tobacco”.

However, let us think about the ban on pubs that serve food: if they serve food at lunchtime but not in the evening, one still cannot smoke there. The point, presumably, is that smoking in the evening will affect the smoke-free status at lunchtime. There is a temporal aspect to this: it is not just that one cannot do it at the time, but that there is a knock-on effect for the future from smoking at some point of time. It is not intended to be a nit-picking point, but a fundamental one. If we think that passive smoking is deleterious to people’s health, it does not have to be passive smoking in somebody’s face; it could be at a distance or at a different time in the same place. At present, it is unclear what is prohibited and what is not. That is why we want some things on the face of the Bill, as the amendments suggest.

The Minister said on amendment No. 46 that some of the issues that we have raised will be brought up in regulations, and that is welcome, but what we are trying to do is to rule things out from the start. One of the things that we want to rule out from the start is the idea of distance as an adequate protection against second-hand smoke. Beyond extreme examples, if we are talking about credible premises and say that a few more metres is enough, given the circulation of air and smoke, a distance-based criterion for exclusion is a non-runner. That is what we were trying to do with amendment No. 46.

On amendment No. 48, the Minister said that clause 3 has examples of the main themes for the Government. However, the rights of workers are fundamental, as the Bill is about protecting the worker’s health. The Government can say that they have included the big things, such as food and private clubs, but that they will deal with workers’ health in regulations. The Minister essentially said—she will correct me if I am wrong—that workers who continue to face smoking environments because of the Government’s exemptions will have no additional protection beyond existing health and safety legislation.

Caroline Flintindicated dissent.

Photo of Steve Webb Steve Webb Shadow Secretary of State for Health

Let me re-phrase that. The Minister seemed to imply that that was in some sense sufficient for those workers and that they would get no more protection than that. If we have decided that other workers need more protection because we are doing their health harm, I cannot see how it is sufficient not to put in the Bill something that guarantees those workers’ safety. In many ways, the workers who are still going to be exposed to second-hand smoke after the Bill is enacted are in the worst position of all. We ought to worry about those people and not just say, “We’re helping some people, so blow the rest.” There should be something quite explicit, up front in the Bill to guarantee the rights of the workers who are still going to be exposed. That is our concern.

Photo of Andrew Murrison Andrew Murrison Shadow Minister (Health)

Does the hon. Gentleman accept that insisting on occupational exposure standards would do just that and put people who work in bars on the same footing as somebody who works in any other workplace?

Photo of Steve Webb Steve Webb Shadow Secretary of State for Health

Indeed; it is all to the good, to the extent that there are existing standards off the shelf that will do the job, so what we are requesting becomes all the more reasonable—and we on these Benches are always reasonable.

Photo of Andrew Lansley Andrew Lansley Shadow Secretary of State for Health

Before we conclude this debate, I have to say that I am worried, as is often the case, that we are starting to expose things but that we will move on and find it difficult even to refer back.

Does the hon. Gentleman agree that we have not established the position in relation to people’s homes that are treated as places of work for a period? What happens then? It is fairly straightforward that if those places are open to the public, they are smoke-free to the extent that they are open to the public, either geographically or in time. Where they are places of work, it is clear that they are smoke-free to the extent that they are places of work geographically, and the hon. Gentleman’s amendments are designed to try to clarify that to a greater extent. However, that has rather exposed the sentence:

“They are smoke-free all the time.”

The hon. Gentleman and I do not understand what “all the time” means. Does it mean all the time that people are in a place of work, or all the time beyond that point—through the night, the weekend, the rest of the year or the rest of eternity? When does it stop?

Photo of Steve Webb Steve Webb Shadow Secretary of State for Health

The hon. Gentleman highlights an ambiguity. I presume that it is not just the time when a premises is in use.

If hon. Members can imagine going into a waiting room in a doctor’s home and nobody was smoking there at the time but a chain-smoker had been there all through the night, they might feel that the spirit of the Bill had not been fulfilled. I presume that the provision works over time, as well.

On the hon. Gentleman’s issue of the plumber in his bathroom—whom I am sure we will get to know better as the weeks go by—

Photo of Steve Webb Steve Webb Shadow Secretary of State for Health


My understanding is the other way round. None of that falls within the scope of the Bill. It is the hon. Gentleman’s house, not a premises that is open to the public. If I am getting it wrong, I am sure that the Minister will come back to us.

Photo of Caroline Flint Caroline Flint Parliamentary Under-Secretary (Department of Health)

I will try to be helpful.

The exemptions proposed in clause 3(2)(a) specify the sort of places where smoking can continue. The exemptions include

“premises where a person has his home”,

so it will depend partly on, for example, whether a separate room in the home is used only for music lessons or as a doctor’s surgery. If that were so, it would be smoke-free. Hon. Members are moving towards dealing with a family room where lessons occasionally take place. In those situations, we would not expect a total ban to apply. However, that is an important point and we will look at when we draft regulations.

This is about a proportionate response. It raises the issue of all the different ways in which someone can have a home and a workplace. In some cases—for example, a general practitioner’s surgery—it will be obvious what the workplace is and what it is used for. People do not have their Sunday lunch in the surgery. However, that is different from a music teacher offering piano lessons or, in the hon. Gentleman’s case, oboe lessons, in their front room.

I will reflect on the issue. I think that there is a point, but it is about being proportionate, which is something that we should cover in regulations.

Photo of Steve Webb Steve Webb Shadow Secretary of State for Health

I am grateful for that.

This group of amendments has raised some valuable issues and has, therefore, contributed healthily to our deliberations. I shall not divide the Committee, so I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Photo of Steve Webb Steve Webb Shadow Secretary of State for Health

I beg to move amendment No. 41, in clause 2, page 2, line 21, at end insert

‘provided that any area of premises which is more than one half enclosed shall not be defined other than as enclosed or substantially enclosed.’.

Photo of Eric Illsley Eric Illsley Labour, Barnsley Central

With this it will be convenient to discuss the following amendments:

No. 69, in clause 2, page 2, line 21, at end insert

‘having regard to the excess health risk conferred on an individual by virtue of the enclosure.’.

No. 45, in clause 3, page 2, line 37, at end insert

‘provided that no employee of such a club or of any business or organisation providing goods or services to that club shall enter any area of the club that is enclosed or substantially enclosed at any time that such premises are specified not to be smoke-free.’.

Photo of Steve Webb Steve Webb Shadow Secretary of State for Health

I feel that the Committee has not benefited enough from my voice this morning.

Two different sets of issues are raised by amendments Nos. 41 and 45, tabled by my hon. Friend the Member for Bristol, West and me, and by amendment No. 69, tabled by the Conservatives. With amendment No. 41 we are moving on to enclosed and substantially enclosed public places. Clearly that is an important definitional issue. I hope that when the Minister responds to this group of amendments we will get much clearer idea of the Government’s thinking on how this will be implemented.

We have to get our heads around what the percentage threshold used to define “substantially enclosed” should be. Those of us who want a comprehensive ban want it to be at the lower end of the scale, and those who want a fairly limited ban want it to be at the higher end of the scale. If we say that something is substantially enclosed only if it is 70 per cent. enclosed, many fairly enclosed public places would still allow smoking. If the threshold is 50 per cent., more places would be brought in.

My broad understanding is that in the Irish case the threshold is half. If half of an area is enclosed, it qualifies as substantially enclosed and therefore falls within the scope of the legislation. Indications from the Government are that they would be looking more towards a 70 per cent. threshold. I am a little bit hazy as to how one defines percentages in this context. Are we talking about the floor area or the volume? That is far from straightforward, so this is a probing amendment to try to ascertain the Government’s thinking.

Essentially, we want to avoid loopholes. One could imagine a veranda area of a pub which, if the threshold was set fairly high and two panes of glass were removed, would fall outside the scope of the ban and people could still smoke there. Whatever threshold is chosen, there will be arbitrary lines of that sort. Clearly, we would want the spirit of the legislation to be observed, which must mean public areas that have a significant character of being enclosed. That for me has the feel of more than half rather than more than two thirds. This is obviously subjective.

We have talked a little about the evidence base. The whole debate is about something that is relatively new. Comprehensive bans do not go back much further than the late ’90s, certainly in places such as California. But there have been partial bans going back a lot further than that. What evidence will the Government use to determine the sorts of threshold that they want to use to define “substantially enclosed”? Clearly there will be a lot of concern in the pub and entertainment industry. They will want clarity. Whatever figure we choose, they will want something that is clearly defined. I hope that the Minister will give us some answers that will tell the people who will have to make preparations to implement the Bill what they have to do. That is the nub of amendment No. 41.

Amendment No. 45 relates to a different set of issues and to people who work in private clubs. We are concerned about the workers—I am sounding like a real old leftie—and the requirement for them to enter enclosed or substantially enclosed places when those premises are not smoke-free. All these debates interact with each other. In a private club with a semi-enclosed area, will the bar staff, cleaners or whoever have to go in there while people are smoking? Obviously we would prefer workers in private clubs to be completely protected, but if they are not to be protected, should they not at the very least be protected from “in your face” second-hand smoke?

We hold to the view that there is a much bigger longer-term danger of general exposure. But clearly, going in while people are smoking is key. I guess that the link with the idea of semi-enclosed public places is that if there is a draught, some openness or some ventilation, over time the impact of second-hand smoke might be diminished by the fact that the place would not be 100 per cent. enclosed. We want to protect workers when they would be most exposed, which is when people are actually smoking. I accept that these are two slightly different sets of issues.

To sum up, we are trying to get a clear definition of “substantially enclosed”, which we would like to be much more comprehensive than the Government envisage, and we are trying to ensure that workers in private clubs who are going to be exposed to second-hand smoke are not exposed to it at the point at which it will do the most damage.

Photo of Andrew Murrison Andrew Murrison Shadow Minister (Health) 12:30 pm, 6th December 2005

This is an interesting group of amendments. It is particularly interesting that amendment No. 45 is grouped with amendments Nos. 69 and 41, because it introduces a new range of issues relating to private membership clubs.

However, I would like to direct my remarks chiefly to amendment No. 69, tabled in my name and those of my party colleagues. Its purpose is to underscore the need to insist on an evidence base for the provisions of a Health Bill. The guiding star for my hon. Friends and me has been this question: how will the Bill improve people’s health? We are not as interested in nuisance,   amenity or courtesy, because although those matters are important, this is a Health Bill, and we believe that they should be dealt with in other legislation.

What we want to focus on above all is the impact on health of both second-hand smoke and smoking in general. Amendment No. 69 insists that when we define what is enclosed and what is not, we ask how it will affect public health, based on the evidence available to us.

We are intrigued by amendment No. 41, and we agree that there is considerable ambiguity; indeed, ambiguity runs through the Bill. A lot is left to the imagination, but that has to do with the Bill’s structure and the fact that much will be contained in regulations, the contents of which we are not certain about.

We need more clarification of what is in the Minister’s mind when she talks about “enclosed” and “substantially enclosed”. We share the dismay of the hon. Member for Northavon that the Bill does not contain something a little more specific that gives us some clue what is in the Minister’s mind. In the guidance notes and elsewhere, she has referred to examples of stadiums to which regulations may apply. That touches again on the distinction between public health issues and amenity or nuisance issues. I underscore the fact that we believe that such matters should be determined by considerations of improving public health, rather than of nuisance or amenity.

It is difficult for us to see how smoking in a stadium would have a significant impact on an individual who happened to be there for a while. It clearly would not, except under very specific circumstances; my hon. Friend the Member for South Cambridgeshire referred to one or two of them. We also need to consider what a bus shelter is. It is substantially enclosed, but it is not clear whether people waiting for a bus in the rain would be prevented from smoking in a bus shelter.

If I am not careful I will trespass on the ground of the former Secretary of State for Health, who is now the Secretary of State for Defence, and his interpretation of the legislation and where the Government should be going. Far be it from me to encourage divisions between Ministers, but his philosophy on this issue is profoundly different from that of the present Secretary of State for Health.

I would like some clarification about what is enclosed, what is not enclosed and what is substantially enclosed. I accept the Minister’s argument that it would be inappropriate to put down chapter and verse to the nth degree; that would be impossible. However, the Bill leaves far too many questions unanswered. I entirely share the concern expressed by the hon. Member for Northavon that it will be a bean feast for lawyers. I look around the room, Mr. Illsley, and I see no lawyers, so I can be as mean as I like about them. They will be eyeing up the Bill with anticipation, and we must do what we can to deprive them of whatever livelihood they might derive from it.

Amendment No. 45 touches on a new range of concerns to do with private membership clubs. We would draw a distinction between public and private   space. To some extent, I accept the Minister’s concern that the Bill is a compromise between the desire to improve public health and the desire to maintain individuals’ right to do as they wish. However, those two meet on the question of private membership clubs, which are dealt with in clause 3. Such clubs are not public spaces but, I submit, an extension of private space. None the less, we must consider work-related matters. People work there, and my comments on occupational exposure standards, the Control of Substances Hazardous to Health Regulations 2002, the Health and Safety Executive and the rest still pertain to private membership clubs. Nevertheless, they are distinctly different from pubs that serve food—and, indeed, those that do not. In that context, it is right that they should be considered slightly separately.

We also have to consider what is trivial exposure. That is where I probably disagree with the hon. Member for Northavon, although the amendment is well made. The Minister cited the example of someone being called into a smoking room—perhaps because of an altercation—who had not been habitually exposed to such an environment. Unless that person had an unusual medical complaint, that could be regarded as a relatively trivial exposure, but I am not sure whether the Minister intends such trivial exposure to be covered by the Bill.

Similarly, the amendment would remove the possibility of those working in private membership clubs being exposed to tobacco smoke. That is a purist way of looking at things, and I am not sure that it has any grounding in evidence. I accept that it is unpleasant to go into a room full of smokers—it is not something that I would want to do—but workers should have an element of choice. Those who work in private membership clubs, or in the hospitality sector in general, are less likely to have an aversion to tobacco smoke, but that does not mean, as has been said before, that we should not give them protection from second-hand smoke. However, when we are considering relatively trivial exposure to second-hand smoke, it is practically and realistically germane to the argument.

A conflict arises between the need to protect public health and protecting the occupational health of employees. The question is where to draw the line. Insisting that nobody, under any circumstances, should come within a million miles of a whiff of tobacco smoke is unrealistic. I am not entirely convinced of the logic of the hon. Gentleman’s amendment. However, measures can be taken, such as insisting on proper ventilation, even in private membership clubs. That would get round some of the concerns that he rightly expressed.

If we can put in place measures that would reduce occupational exposure to smoke to an acceptable level, even in private membership clubs, which I maintain should be exempt, that would be a positive thing. However, I see nothing in the Bill that would enable that to happen, or make it more likely. I insist that proper occupational exposure standards for people who work in environments where there will be   exposure to second-hand smoke would be a positive way forward. It would improve the occupational health of people in the hospitality industry overall, and in the context of the amendment, it would improve the occupational health of people who work in private membership clubs.

I suspect that that suggestion might make me terribly unpopular with a range of private membership clubs, such as working men’s clubs and even Conservative clubs, so I must be a little careful about how far I take it. However, most people would accept that reducing employees’ occupational exposure is a good thing. I am concerned that nothing in the Bill makes reference to the part that ventilation and engineering can play in reducing occupational exposure in the categories that the Minister is minded to exempt by regulation.

Photo of Stephen Williams Stephen Williams Shadow Minister (Health) 12:45 pm, 6th December 2005

In order to tease out what is meant by the words “substantially enclosed”, I invite the Minister to take an imaginary journey with me from Paddington station, heading west. I should say that Paddington station is substantially enclosed. It has a train shed covering the entire station concourse. Every platform has a roof over it. However, it has, of course, a big opening at the front to enable the trains to come in, and quite a large opening on to the ramp at the hotel end, to allow people to exit to get taxis or go on to the highway. Is that substantially enclosed under the Bill?

At my constituency destination of Bristol Temple Meads the station is partially covered by a roof. Platform No. 3, the main platform, has a complete roof over it, but all the other platforms are just traditional platforms. Under the Bill, would the entirety of Bristol Temple Meads be a substantially enclosed, smoke-free public place or not? If I were to go through the Severn tunnel to Cardiff central station I should find that it had no roof over it at all. It just has traditional platforms. Would it be substantially enclosed or not? Will we, under the Bill, have to carry out an assessment of every railway station to see whether it is substantially enclosed under the regulations?

The hon. Member for Westbury mentioned stadiums. If I were watching either Bristol rugby club or Bristol Rovers football club at the Memorial stadium in my constituency, and people were smoking around me, I might, because of the wind blowing about in the stadium, still be covered in cigarette smoke and still have to breathe it in, whether or not there was a roof. However, the Millennium stadium in Cardiff has a retractable roof. If it is over the stadium, the stadium is clearly completely enclosed by any definition, but if it is open it is not at all enclosed. There will be many anomalies under the Bill, even between railway stations and different types of stadiums, and people could drive a coach and horses through the legislation. Will the Minister give some commonly understood examples of what she thinks would be a substantially enclosed public space falling within the Bill, and what would be the opposite?

Photo of Caroline Flint Caroline Flint Parliamentary Under-Secretary (Department of Health)

The point raised by the hon. Member for Bristol, West about train stations is interesting, because one of the reasons for making King’s Cross station smoke-free had nothing to do with health; the reason was safety, after the King’s Cross fire. Voluntary measures have been undertaken for a variety of reasons.

Before I deal with the points raised by the hon. Members for Northavon and for Westbury, I should mention that the speech of the hon. Member for Bristol, West was quite helpful. It made it clear that it would be difficult to specify in the Bill the different scenarios and buildings. To be fair, that has proved the same in Ireland and Scotland, which is why we will consult on draft regulations and on how we can add detail about smoke-free areas through regulations. There are several factors to take into account. Exposure is one, and another is the building itself, including matters such as its size and the size of openings. We are not trying to be difficult but, even in Ireland, where there is a total ban in certain areas and there are exemptions in others, there have been complications with definitions. So that we do not become tied up in a bureaucratic tangle, such matters are best dealt with through regulations.

Amendments Nos. 41 and 69 would add further qualifications to those set out under subsection (5), which gives regulation-making powers to define “enclosed” and “substantially enclosed”. That is a matter on which we consulted during the summer. People voiced different opinions and we are thinking about what they said. I hope that what I have to say next will clearly set out to the hon. Member for Northavon where we should move through regulation.

I understand what the hon. Gentleman tried to do by restricting the definition of “enclosed” or “substantially enclosed”, so that a definition in the regulations could not specify a figure below a half. Rather than putting such matters in the Bill, I believe that they will be properly dealt with in regulations. The amendment would put an arbitrary limit on the definition.

When we consulted in the summer, we proposed a definition that was based on south Australian legislation that used a measurement of 70 per cent., but included the roof and wall area in that calculation. Worries were expressed about that definition during the consultation. There was also an uncertain view about what else we should be doing. However, while I cannot in principle accept the amendment for the reasons that I have outlined, I am minded to follow the definition drawn up for regulations under Scottish legislation. That would set “substantially enclosed” as when openings had an area less than half the area that constituted the perimeter. I am inclined down that route at the moment. We are still discussing the issues and we will publish draft regulations.

I turn now to amendment No. 45. I shall come back to amendment No. 69. I agree with several points made by the hon. Member for Westbury about amendment No. 45. It would create a situation in which people working in membership clubs and workers providing goods or services to those clubs were not allowed to go   into areas where people were smoking. Such a rule would have consequences, for example, if there was an altercation or something else happened that the club staff had to attend to. If a fight broke out or a person was selling drugs on the premises, it would be ridiculous to prevent staff from taking action in line with their other duties and responsibilities because smoking was taking place in an area.

A decision to prohibit exposure to smoking in the bar area applies equally to private membership clubs. Such matters will therefore form part of our consultation. The hon. Member for Westbury asked what more could do to reduce exposure to second-hand smoke in those areas where smoking is not completely banned. We should deal with protection around the bar area by regulation. I am not sure that the amendment is helpful.

Amendment No. 69 suggests that, in drawing up definitions of “enclosed” and “substantially enclosed”, we should have

“regard to the excess health risk conferred on an individual by virtue of the enclosure.”

I am not sure whether it was the intention of the hon. Member for Westbury, but the amendment seems to suggest that there might be a threshold of excess health risk from second-hand smoke that could allow smoking to continue in enclosed premises and that the level of risk could be monitored under the regulations.

On several occasions, the hon. Gentleman has referred to an air quality standard that should be met, or a ventilation standard. I am not convinced that either of those options offers meaningful protection from second-hand smoke. Neither am I convinced that it is helpful, considering the direction in which we are moving in relation to smoke-free places, to come up with an arbitrary or debated conclusion on what is an adequate level of ventilation. There are many different views on that. No one is saying to private members’ clubs, nightclubs or pubs that serve only drink that they should not have ventilation on their premises. It is appropriate that they should decide that; it is not for us to try to define or regulate such matters in the Bill.

Photo of Andrew Murrison Andrew Murrison Shadow Minister (Health)

I just want to clarify something. The purpose of my amendment is to impress on Ministers the need to base their definition in this matter on public health grounds and the evidence base, rather than on considerations—such as nuisance or amenity—of the sort that might be influencing the Liberal Democrats’ thinking when they talk about Paddington station or stadiums in Cardiff.

Photo of Caroline Flint Caroline Flint Parliamentary Under-Secretary (Department of Health)

As I said earlier, in bringing forward the Bill we considered evidence from several sources, including evidence on the dangers to people’s health of exposure to second-hand smoke. At this point, we as a Government feel that we can act on what people told us, which was to restrict smoking in more public places and workplaces. That is the intention of the Bill. It is not a narrowly defined piece of health and safety legislation. We have been clear about that. It is about increasing people’s opportunities to work and socialise in more smoke-free environments. Every worker who does not work in a smoke-free environment will be   better protected when the legislation is passed. Even organisations that support a total ban recognise that the Bill takes us forward a step, and that it will reduce the number of deaths and illnesses caused by second-hand smoke.

Photo of Steve Webb Steve Webb Shadow Secretary of State for Health

This has been a fruitful discussion. It is helpful to get some indication from the Minister of her latest thinking. We are heartened that there is some indication of a drift from 70 per cent. to 50 per cent. Although that is not a firm commitment, we see it as a move in the right direction that is in the spirit of our amendment, so we welcome that.

I move briefly to the Minister’s response to my hon. Friend Member for Bristol, West. We are not asking for a schedule 93 to the Bill containing a list of train stations, but we want to know what we are legislating for. We want to know whether public places such as Paddington station will be caught by the Bill. It is hard to assess whether one supports a measure if one has little feel for what will come within its scope. We are not asking for chapter and verse in the Bill, but I hope that the Minister will give us more of a feel in later sittings of the scope of what we are talking about, recognising that the fine detail will come later.

On the issue of private clubs, I accept the Minister’s point that we cannot completely stop workers from ever going into a smoky environment. What we are driving at with the amendment is whether they have to do so routinely as a condition of employment, although I accept that that is not fully conveyed by the drafting of the amendment.

The hon. Member for Westbury makes a good point with amendment No. 69 about assessing the extent of exemptions and interventions against some health benefit criteria. The Minister keeps telling us that this is not a narrow health and safety Bill, but a lot of me wishes that this bit of it were, as that would keep us focused and would get rid of some of the arbitrary exemptions. We have made some progress and have heard about some encouraging developments from the Minister, so we will not seek to press the Committee to a Division. Therefore I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

It being One o’clock, The Chairman adjourned the Committee without Question put, pursuant to the Standing Orders.

Adjourned till this day at five minutes to Four o’clock.