Clause 3 - Exemptions

Health Bill – in a Public Bill Committee at 4:15 pm on 6th December 2005.

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Photo of George Young George Young Chair, Standards and Privileges Committee, Chair, Standards and Privileges Committee 4:15 pm, 6th December 2005

I beg to move amendment No. 57, in clause 3, page 2, line 30, at end insert—

'( ) No regulations shall be made that permit any premises not to be smoke-free despite section 2 for more than two years from the date that such regulations come into force.'.

Photo of Eric Illsley Eric Illsley Labour, Barnsley Central

With this it will be convenient to discuss the following amendments: No. 2, in clause 75, page 57, line 25, after 'section', insert '2 (5)'.

No. 3, in clause 75, page 57, line 25, after '4', insert '5'.

No. 4, in clause 75, page 57, line 25, leave out '6(8)' and insert '6'.

No. 68, in clause 75, page 57, line 45, at end add—

'(8) Any statutory instrument made under Part 1 of this Act will cease to have effect three years after it comes into force unless the instrument concerned has been laid before and approved for continuation by a resolution of each House of Parliament.'.

No. 54, in clause 79, page 59, line 40, at end insert—

'(5A) Part 1 and sections 72 and 73 so far as relating to offences under that Part shall come into force in relation to England at noon on 1st January 2007;'.

Photo of George Young George Young Chair, Standards and Privileges Committee, Chair, Standards and Privileges Committee

I begin by apologising to you, Mr. Illsley, and the Committee, for not being here for the beginning of the debate on these important issues. I was chairing a Select Committee sitting next door.

The clause deals with exemptions. The position that I took on Second Reading was that there should not be any exemptions, as they represent a fatal flaw in the Bill. I shall not rehearse those arguments, but I note that of the 21 interventions in that debate from Government Members, 18 expressed some impatience—I put it no stronger than that—with the Government's progress towards a smoke-free   environment. It remains to be seen how many of those 18 are represented in the Committee. It may be that the responsibility of articulating that view falls on the slender shoulders of Opposition Members.

I start from the position that there should not be any exemptions, but my amendment would give an element of compromise by putting a two-year cap on the exemption period, so that there would be, if not quite a sunset clause, a stubbing-out clause on smoking in public premises. I understand that there is not an enormous gap between my position with the amendment and that of the Secretary of State, who said on BBC's ''Sunday AM'' programme on 27 November:

''I have said several times before, I think it is only a matter of time before we get to a total ban.''

According to a report of a Labour party meeting—to which, obviously, I was not privy—by Matthew Tempest on 29 November:

''The health secretary, Patricia Hewitt, tonight held out an olive branch to critics of the government's partial ban on smoking in pubs, hinting that the prohibition could apply to all pubs by 2010.''

If one adds two years to the inception date of the Bill, which is likely to be 2007, my amendment would mean that the exemptions would have to stop by 2009—merely one year ahead of the timetable suggested by the Secretary of State. If we are to come to a satisfactory compromise and avoid a confrontation on Report, the Committee should consider agreeing to a settlement close to that proposed in my amendment or in the other amendments in the group.

If it is, indeed, only a matter of time before we get to a total ban, I do not see much advantage in leaving a period of uncertainty ahead for the industry and the health lobby. When the Minister replies, will she confirm that it is Government policy that it is only a matter of time before we get to a total ban? That might not be wonderful news for the Secretary of State for Defence, but it would at least produce some clarity of purpose and intention regarding Government policy on health. It would also be in the industry's interests to have some certainty about when the end of exemptions will be. The two-year extension to exemptions that I propose would give the industry some certainty and time to plan for the transition to a smoke-free environment, rather than leaving a further period of uncertainty, which is the current position with the time scale of two or three years followed by a review with an uncertain outcome.

I recognise that there may need to be consequential amendments to my amendment if one is to restore to the Bill the sensible exemptions in, for example, subsection (2)(a). Subsection (2)(b) is the particular object of my amendment to knock out the exemption for licensed premises.

This is a consensual bridge-building amendment that seeks to get the Government out of a difficulty in which they find themselves. I hope that the Minister will reply in the same spirit to my genuine attempt to solve the Government's problems and difficulties.

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

Just so we may be sure of my right hon. Friend's precise intention in amendment No. 57,   may I ask whether he seeks to remove all exemptions so that the regulations are not renewable but are simply struck out after two years?

Photo of George Young George Young Chair, Standards and Privileges Committee, Chair, Standards and Privileges Committee

That is exactly what the impact would be, but as I said towards the end of my remarks, there would need to be a consequential amendment to retain the exemptions that we have just been talking about in, for example, subsection (2)(a). If the Government said that they were entirely happy with the removal of exemptions for licensed premises, for example, and possibly the exemption in subsection (2)(c), but that a consequence of accepting my amendment would be that another one was needed to restore the exemptions in subsection (2)(a), I would be entirely happy with that as an outcome of this debate.

I do not need to add any more to what I have said. I hope that I will elicit the consensual response to which I believe my amendment is entitled.

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

I am grateful to my right hon. Friend for his clear expression of the purpose of his amendment. I confess that I do not agree that it would be desirable for it to be accepted, because it would remove the straightforward mechanism in clause 3 to set exemptions of the character that may be required. As he acknowledged, we agree that there may have to be exemptions; indeed, our debate on clause 2 tended to illustrate the nature of such exemptions.

If regulations were not made under clause 3, every time someone went home to work or the public visited that home, it would have to be treated as a smoke-free place where it would be an offence for anyone to smoke. I know that my right hon. Friend does not disagree that there would need to be consequential amendments, and I understand his point, but it would be simpler for us not to delete the power to make regulations that provide for exemptions and then have to reintroduce it in another form.

My right hon. Friend rightly says that he is aiming his target elsewhere, and that we will discuss later the nature of any exemptions that are appropriate. It would be more fruitful to focus on that. The amendments, as I see them, drive towards a separate set of issues. What will be the timetable for the use of regulations, of powers and of exemptions?

My right hon. Friend is absolutely right to say that his question is very valid. If the Government are aiming for a particular destination in 2010, should not they be clear about what precisely they are aiming for when they legislate in 2005? If they intend in 2009–10 to change substantially the basis on which all these measures are to be introduced, and they are already thinking about what they will do, it would be appropriate for them to put that into legislation now and for the intervening period to be regarded as a transitional one, rather than to legislate for one outcome while hinting to their Back Benchers and teasing them about what they will actually do in a year or two.  

The Government may talk about what will happen in 2009–10, but the Opposition may be rather confident that we will be in a position to determine what happens in 2009–10 and thereafter rather more than the current Government are. I look forward to that very much. I will not go further down that path, Mr. Illsley; we shall enjoy the sunshine while it lasts.

Other amendments in the group also go to the question of what is intended, in terms of the life of exemptions, the life of the structure of regulation and enforcement that the Government are proposing in the first place, and the nature of the review process that the Government have hinted at but not made explicit.

My amendments Nos. 2 to 4 and 68 relate to clause 75. We are debating clause 3, so it seems a bit premature to be talking about clause 75, but they are related in the sense that the impact of so much of this part of the Bill will be determined by regulations. They will deal with matters such as the definition of enclosed and substantially enclosed, which was the subject of a Liberal Democrat amendment. That debate illustrated the exact nature of those questions, which have been of considerable significance in the implementation of a smoking ban in Ireland, for example. As things stand, that is provided for in clause 2(5). Under clause 75(4)(a), the requirement for the affirmative procedure is limited to regulations made under clauses 3, 4, 6, 6(8), 7(5) and 9(6). It does not mention clause 2, yet as our debate on clause 2 shows, the definition of enclosed and substantially enclosed warrants the affirmative procedure, so that the matter is debated properly by this House when that power is exercised.

Amendment No. 3 relates to clause 5. We have not yet debated it, but the Minister has already illustrated the wide-ranging nature of the requirement on vehicles to be smoke-free. Presumably that will include not only vehicles used for carriage of the public, but vehicles used in the course of employment and perhaps vehicles that are carrying other people. The explanatory notes refer to cars being required to be smoke-free when a car-sharing scheme is in place. Those are wide-ranging additional powers that intervene in people's use of vehicles of all kinds, so it would be proper to have that power dealt with in regulations. Clause 5 contains almost nothing other than a statement at, at some point, the Government will decide which vehicles are to be smoke-free—cf later in brackets. If we are to produce legislation on the matter of smoke-free vehicles, it must go through the affirmative procedure.

The affirmative procedure is contemplated for regulations made under clause 6(8), which deals with the fine to be applied for a failure to display no-smoking signs. However, elsewhere clause 6 requires regulations to be made on the display of signs, and, particularly in subsection (2), the duties to be imposed on those who are responsible for premises in respect of managing smoke-free premises, displaying no-smoking signs and controlling the entry of persons who have to enter smoke-free premises. So far, there is nothing in clause 75 that suggests that those regulations, when made, will be the subject of the affirmative procedure. I feel quite   strongly about that. If legislation is to be largely permissive and much of the structure has to be governed by regulations, those regulations should be based on an affirmative resolution.

I would be content if the Minister said that the regulations will be transferred to the affirmative procedure, at least the first time. That is not what I put in the amendment, but it is perfectly possible to say that the first time that regulations in respect of the powers are made, the affirmative procedure will be used. As we are all being consensual and congenial, I offer that as a positive suggestion that the Minister might embrace.

Amendment No. 68 relates to the argument made by my right hon. Friend the Member for North-West Hampshire (Sir George Young) about amendment No. 57, but is different because it is not only about regulations made under clause 3. I propose that all regulations made under this part of the Bill will cease to have an effect three years after it comes into effect unless they are re-approved. That is, in effect, a requirement for a comprehensive review and legislative renewal of the provisions after three years.

I freely confess that there is a case for sunset clauses on some but not necessarily all of the regulations, but it seems simpler at this stage to move the amendment to discover the Government's intention. If the Government intend to have a review at a specific moment, I shall be content if they tell us what the boundary of that review will be and set out in the legislation the requirement that it will take place in a transparent way at a transparent moment with clear boundaries on what is to be reviewed—for example, exemptions and the like. We need some sort of sunset clause arrangement, because we are dealing with something that is likely to be difficult to enforce and comply with. There is bound to be a need for review and change at some point.

The Government have to do more than contemplate the need for such a review. They have expressly made it clear that they wish at some point to have a substantial review, leading towards a different set of parameters on the nature of the smoking ban, but we ought to know now when that will happen and there is no substitute for stating that in explicit terms in the Bill. I hope that the Government will do that, either in the form suggested by my right hon. Friend the Member for North-West Hampshire, or in something of a general sunset clause of the type that I propose.

As for amendment No. 54, to which the hon. Member for Bristol, West (Stephen Williams) will no doubt speak in a moment, I am not persuaded that hastening the day to 1 January is necessarily the best approach. If one were in local government and contemplating the enforcement of the measures, one would not wish to do so on 1 January. I suspect that one would not want to do it in mid-winter, but that late spring or early summer would be more convenient times for the enforcement officers to start the process. More notice is needed than would be possible for 1 January 2007. Early summer 2007 is the earliest practical moment for all the requirements to have been communicated effectively to employers and premises   managers, along with all the things they have to do to comply.

Photo of Eric Joyce Eric Joyce PPS (Rt Hon Margaret Hodge MBE, Minister of State), Department for Work and Pensions 4:30 pm, 6th December 2005

I wish to focus on the comments made by the right hon. Member for North-West Hampshire. I broadly agree with the sentiments he expressed—I suspect that most of us do. He mentioned the Secretary of State for Defence, who probably feels the same way. However, the main thing is that one has to legislate with a high degree of consent. The right hon. Gentleman has already said that he would rather have no exemptions, but if we legislated on that basis, the Bill would not work. There is insufficient consent to enable us to have no exemptions. The difficulty about setting a clear date in the future, whether it is two years or one and a half years—in effect, putting in a sunset clause—is that if we did not have the necessary degree of consent by then, the legislation would be equally unworkable at that point. I agree that at some stage in the future we want no one to be smoking in public places—no one to be smoking anywhere, frankly. However, the amendments would introduce a degree of inflexibility which would make the legislation essentially unworkable.

My primary concern is that—contrary to what most people argue—there is an issue of displacement. When I talk to my constituents who attend clubs that will be exempted under clause 3—frequently the least well off constituents—I am told by them, not by academic research, that if they are not able to smoke and drink in their clubs, they will simply smoke and drink at home more. Similar legislation has gone through the Scottish Parliament and people will flag up that there has been a great deal of debate and academic research related to it. However, when as a constituency MP I speak to members of such clubs, they tell me that they will drink at home as a consequence of being displaced.

Photo of George Young George Young Chair, Standards and Privileges Committee, Chair, Standards and Privileges Committee

The hon. Gentleman is developing an interesting argument, but is it his thesis that although the legislation in Scotland has gone ahead without the consent to which he referred, it will work?

Photo of Eric Joyce Eric Joyce PPS (Rt Hon Margaret Hodge MBE, Minister of State), Department for Work and Pensions

I hear the right hon. Gentleman's point. Of course, this would not be the first time that legislation has been different in Scotland and in England. The Cabinet of which the right hon. Gentleman was a member implemented the poll tax, in effect, as a pilot in Scotland before it was implemented in England. I see no problem with legislation being different. I am in this Parliament to vote and speak on reserved matters, of which this is one, and my colleagues in Scotland are there to do the same for Scotland. I see no difficulty in there being two different legislative bases for action. However, the objective is the same in Scotland and in the rest of the UK.

Most people want to see the end of smoking in due course, but the key issue is whether there is workable legislation. I listened to the speech made by the hon. Member for South Cambridgeshire and I accept the general principle that there needs to be a review at some point, but if we bind the Government's hands with a sunset clause, we could end up with unworkable   legislation because there has not been enough education for there to be sufficient public consent.

Photo of Stephen Williams Stephen Williams Shadow Minister (Health)

I will first deal with amendment No. 57, which was tabled by the right hon. Member for North-West Hampshire and with which we have some sympathy. We have heard the Secretary of State say both on Second Reading and in the many interviews that she has given to the media that it is only a matter of time before there is legislation in England similar to the legislation in Scotland about which the hon. Member for Falkirk (Mr. Joyce) has just told us. The Government intend to introduce such legislation in Northern Ireland as well, and no doubt the Welsh Assembly will shortly introduce similar legislation in Wales. However, we are not clear what time frame the Government have in mind. When will they review the exemptions that they propose in the Bill?

It is a shame the Government cannot state clearly when they think people in England will have exactly the same public health legislation as the devolved legislative areas. That is important to business certainty, which has not yet been raised. One must assume that if this legislation is passed unamended and there are licensed premises and private members' clubs where smoking continues, the owners of those businesses or the trustees of the clubs may have to incur significant capital expenditure to bring their premises up to scratch—perhaps to create segregated rooms, if we go down that route, or to install new ventilation equipment. That could cost business in the UK quite a lot of money in capital expenditure. Some of that expenditure by small businesses will qualify for capital allowances, so there will also be a tax cost to the Treasury.

All businesses like to operate in a climate of certainty. If I ran a pub that did not serve food and, because I wanted smoking to continue in my premises, I spent quite a lot of money on installing ventilation equipment, I would want to know that the money would not prove to have been wasted two or three years later because of a Government decision that it was time for England to catch up with Scotland, Wales and Northern Ireland and have a full ban. I would have to rip out all the ventilation equipment, take down the partition walls and remove all the sealed doors that had been installed, to comply with the new law.

Photo of Eric Joyce Eric Joyce PPS (Rt Hon Margaret Hodge MBE, Minister of State), Department for Work and Pensions

That is just a straightforward business judgment. A businessman can decide for or against doing that now. Surely it is not Liberal Democrat policy to make capital investment decisions for business. Would the hon. Gentleman not allow businesses to make decisions for themselves?

Photo of Stephen Williams Stephen Williams Shadow Minister (Health) 4:45 pm, 6th December 2005

The hon. Gentleman makes an interesting point. It is a matter for the businesses concerned, but for most of my career before I came to the House I was an adviser to small businesses, so I know that what small business men want from Parliament is some certainty within which to operate,   and at the moment the Bill is not clear. We have heard from the Secretary of State that in future all the exemptions will be reviewed and the matter will be brought before the House again with a view to removing some or all of them. However, we do not know when that will be, and perhaps not all the exemptions will be removed. If I were a businessman I would be wary of incurring significant capital expenditure to protect my employees and customers from the effects of second-hand smoke if I thought that there was a chance that in two or three years the object of that expenditure would be scrap—probably not even scrap; who would want to buy second-hand smoke extraction equipment? There would not be a market for it.

We generally agree with amendments Nos. 2 to 4, which were tabled by the Conservative spokesman as opposed to one of the Conservatives' esteemed Back Benchers. All the new provisions in the Bill should be subject to proper parliamentary scrutiny. In the debate this morning I gave the Minister a simple example of different types of railway stations that may or may not be affected by the Bill and invited her to give us an idea of the Government's intention in respect of substantially enclosed public places, but she declined to give a clear response on an example that I thought would be quite easy to deal with. It is important that various examples be set out in the appropriate parliamentary forms, to be considered in depth in future.

Amendment No. 54, which I tabled with my hon. Friend the Member for Northavon, deals with when the regulations should come into force. We suggested noon on 1 January 2007 for a reason alluded to by the hon. Member for Falkirk, who is just leaving. To some extent we are legislating while public opinion is moving. The hon. Gentleman and other hon. Members feel that public opinion is not yet in favour a smoking ban in England. That is a timid political position. The experience in Ireland, about which I have read quite a lot recently, is that as the time at which the legislation would come into force approached, support for it grew and afterwards it grew even more. Now no one can really contemplate returning to a situation in which smoking in public places is tolerated. I understand that the smoking ban was the most popular development in Ireland in the period in question.

I am sure that all members of the Committee have friends who have tried to give up smoking. They will have taken particular opportunities and chosen particular times to do so, such as their or their partner's birthday or some other important anniversary, or the start of the new year, which is the usual time to make resolutions. As I have never smoked, my resolution will probably be to cut down on puddings, because one thing that I have done since I came to this place is eat more than I should and as the Liberal Democrats' public health spokesperson I am probably not setting a good example. Still, many of our friends have always said that their No. 1 new year's resolution is to give up smoking.

Bringing the Bill into force at a time when usually not much else is going on in the news provides a good   opportunity. The media often thrash around for stories at that time of year. This is an opportunity for the Government to run a major campaign that will bring the public with us. We could suggest a resolution for 2007: ''If you want to improve your own health and the general public health of the country, make it your new year's resolution to give up smoking in 2007.'' We picked noon because it would be impractical to start at the turn of midnight 2006–07, which is likely to be the first time when the full extent of our new 24-hour licensing laws will be seen. Bar managers, the police and others will have other things on their minds at that point. However, by noon on new year's day, people will be thinking about what they can do to improve their health in the coming year, particularly if they are nursing a hangover from the night before. That would enable many members of the public to resolve positively on 1 January 2007 that the best thing that they can do for their health is give up smoking.

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

We have had an interesting debate, and I shall try to deal with all the points that have been raised in relation to each of the amendments. Amendment No. 57 proposes that regulations made under clause 3 to allow premises not to be smoke free should not be in force for more than two years. My first comment to the right hon. Member for North-West Hampshire would be that exemptions also apply, in subsection (2)(a), to places that are essentially a person's home. I am sure that he would agree that it is not necessarily worth revisiting those issues. We have spoken about residential care homes, prisons and hotels. I hope that when we come to discuss the exemptions in those areas and the regulations that will cover them, we will all agree that they are common-sense measures. Every country that has either a full ban or a partial ban has exemptions, and I understand that Ireland, Scotland, Wales and Northern Ireland intend to seek similar exemptions.

We might wish to change some of the exemptions in future but, like my hon. Friend the Member for Falkirk, I believe that putting a two-year time limit on regulations is not the best way to achieve that. It does not give us enough flexibility. If changes are deemed to be appropriate, they will be made when the time is right. My right hon. Friend the Secretary of State made that clear on Second Reading when she said

''we intend to monitor the impact of the ban, with the exceptions, from day one and to complete that review within three years. As I said, the Bill provides for a complete ban, but exceptions can be made by regulation. If, in the light of that review and monitoring, the Government and Parliament decide that they no longer want some or all of those exceptions, it will not require further primary legislation. It would be a simple thing to change.''—[Official Report, 29 November 2005; Vol. 440, c. 153.]

As has been said in this debate, one of the reasons why my right hon. Friend and I introduced the legislation is that public opinion has moved on. It was clear from the ''Choosing Health'' White Paper that people wanted the Government to legislate in this area. The earlier document ''Smoking Kills'' advocated self-regulation, but we feel that although there are some good examples of self-regulation, there are not enough to justify continuing with that approach. That is why we have introduced this Bill.  

Having said that, it is fair to record that opinion is changing. That is acknowledged by representatives of the hospitality sector, bars and pubs. While there is not currently a majority in favour of a complete ban in all licensed premises, it is clear that opinion is shifting and our measures will add to the appetite for change. However, it would not be right to tie ourselves to the limits outlined in the amendment.

Amendments Nos. 2, 3 and 4 propose that regulations defining the terms enclosed and substantially enclosed and the regulations on smoke-free vehicles and no-smoking signs should be subject to the affirmative procedure. A judgment always has to be made on when the affirmative procedure is appropriate for statutory instruments. The Committee will see that we consider the affirmative procedure to be appropriate for the regulations providing for the exemptions to permit smoking in enclosed and substantially enclosed premises, the regulations that will extend smoke-free provision to other smoke-free places, and the regulations that will set the penalties.

The rationale behind our decision on which areas should be dealt with under the affirmative procedure and which under the negative procedure has been partly influenced by what parliamentary counsel told us about custom and practice. I understand that the negative procedure should be used when the regulations are technical and uncontroversial and can be dealt with adequately via detailed consultation. I remind the Committee that, even for measures taken under the negative procedure, we will consult as usual—and, I hope, achieve consensus.

I will reflect on what has been said and seek further counsel on the definition of enclosed and partially enclosed. I will also take on board and consider the proposition made by the hon. Member for South Cambridgeshire that we should have a one-off affirmative procedure in the first instance. I do not know whether that is allowed, but I shall seek guidance.

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

I can tell the Minister with some certainty that it is possible to use the affirmative procedure when regulations are first made and to use the negative procedure thereafter. By way of an offer, if it might help, I would not insist on that in respect of the order-making power in clause 6, which defines where signs must be displayed and so on. However, as the Minister might expect, I feel strongly about the definition of enclosed and substantially enclosed, not least because a number of other issues hang on it. I cannot for the life of me understand why the regulations relating to vehicles should be regarded as non-controversial. We may be involved in details, but I am sure that the subject of vehicles will give rise to controversy. If we can do what I suggest—at least the first time—on regulations relating to clause 5 and clause 2(5), that would satisfy me.

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

As I said, we have had a useful debate and I will consider that proposal. I have a note telling me that lawyers advise that it would be possible for the first regulations to be made under the affirmative procedure and then to use the negative procedure.  

Amendment No. 68 proposes that statutory instruments made under part 1 should be subject to the affirmative resolution procedure every three years. I assure the Committee that changes to the arrangements will be made only after appropriate consultation with interested parties. I am a little concerned that the amendment seems to be an over-burdensome process for changing what would sometimes be minor or technical policy details. However, in the spirit of our earlier discussions, I shall think about when the affirmative procedure should apply and the proposition that it should apply in the first instance with the measures subsequently being subject to the negative procedure.

Amendment No. 54 suggests that the smoke-free provisions should commence at noon on 1st January 2007. We have stated our intention that the legislation should come into force in summer 2007. The amendment would bring forward the date for general workplaces by approximately six months and for licensed premises by approximately 18 months from the dates proposed in ''Choosing Health''. I must tell the hon. Member for Bristol, West that although introducing such measures on 1 January of any year is an attractive idea, I am not persuaded. The total ban in Ireland has not meant that people have completely given up smoking—anybody who has visited Ireland will know that people now go out in front of pubs or into pub gardens to smoke.

We have thought about this issue, and both the industry and the anti-smoking lobby took a common-sense approach to it in our consultation over the summer. They said that their preferred time was in the spring or summer. As ASH said in its response,

''it would be easier to win public consent for the new legislation if on the day of introduction it did not require smokers to go and smoke outside in Winter weather.''

The proposed date will give people more time to prepare for the changes and will—if we have a good English summer—be more attractive to the public and those managing the transition in business.

On the point made by the hon. Member for South Cambridgeshire, I hope that I can correct any misinterpretation. I have had a look at the explanatory notes, and our intention is certainly not that private car shares should be smoke-free. I do not think that the explanatory notes say otherwise, although I stand to be corrected. Our intention is that the provisions should apply to business and public transport vehicles, which would be smoke-free.

On that basis, I hope that the Committee will reject the amendments.

Photo of George Young George Young Chair, Standards and Privileges Committee, Chair, Standards and Privileges Committee 5:00 pm, 6th December 2005

This has been a good-humoured and helpful debate. I accept, as the Minister says, that amendment No. 57 is a bit of a blunderbuss, which knocks out all the exemptions and then has to put some of them back in. In dismissing my argument, however, the Minister has raised my hopes that she will not be able to deploy the same defence when we   reach amendment No. 55, which is targeted specifically at licensed premises.

It was helpful to have on the record a commitment to have a three-year review, although that is not, of course, in the Bill. Will the Minister confirm that it is a matter of time before we have a total ban and that that is not subject to the outcome of the review? There is a potential inconsistency in saying on the one hand that a total ban is a matter of time—the Secretary of State said that it could all be over by 2010—and on the other hand that we will have a review after three years to look at the issue, because the outcome of that review might be that the Government do not want a total ban. It would be helpful if we could be told—not necessarily in this debate, but on the next group of amendments—whether this is a one-way street and it is simply a matter of time, or whether the issue is subject to an open-ended review that might come up with a different result.

I do not entirely accept the arguments about public opinion. A higher percentage of people smoke in Scotland than in England, but Scotland is going ahead at a faster pace than England, so I do not quite understand the ingenious argument that the hon. Member for Falkirk deployed regarding public opinion. Nobody has explained why England is on a slower track than other parts of the United Kingdom on this important public health measure. Having said that, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

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

On a point of order, Mr. Illsley. The Minister was right to question whether the explanatory notes refer to a car chare scheme. I was wrong about that. I was recalling an extract from the Library research paper—I attach great weight to such research papers—which says that, under clause 5(2)(d),

''A private car used in a car share scheme would have to be smokefree during those times that other passengers are carried.''

The Library might be wrong about that, but it was the research paper that I was relying on. I have no doubt that we will clarify the issue when we come to it. Forgive me, Mr. Illsley, but I did not want to mislead the Committee.

Photo of Stephen Williams Stephen Williams Shadow Minister (Health)

I beg to move amendment No. 44, in clause 3, page 2, line 31, leave out from beginning of line to 'premises' in line 33 and insert

'specified premises may be only those'.

Photo of Eric Illsley Eric Illsley Labour, Barnsley Central

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

No. 74, in clause 3, page 2, line 31, leave out 'Examples of'.

No. 55, in clause 3, page 2, line 32, leave out 'the following' and insert 'paragraph (a)'.

No. 6, in clause 3, page 2, line 34, after 'hotels', insert 'hospitals'.

No. 37, in clause 3, page 2, leave out lines 36 and 37.

No. 58, in clause 3, page 2, line 37, at end insert

'provided that such premises or specific areas of such premises shall be smoke-free whenever any person, for whom they are a place of work, is present.'.  

No. 67, in clause 3, page 2, line 37, at end insert—

'(d) HM ships and submarines'.

No. 34, in clause 3, page 3, line 5, at end insert—

'(c) in the case of retail premises, conditions requiring that the premises are held solely for the sale of specialist tobacco products and requisites.'.

No. 39, in clause 3, page 3, line 6, leave out subsection (5).

I call Steve Webb—sorry, Stephen Williams.

Photo of Stephen Williams Stephen Williams Shadow Minister (Health)

Thank you, Mr. Illsley. Believe me, there is scope for confusion even in our own party about that, particularly as we also represent fairly neighbouring constituencies.

This group of amendments deals with what is perhaps one of the most controversial parts of the Bill: the exemptions both for public houses that do not serve food and for private members clubs. Although I am a relatively new Member of Parliament, many who are more senior say that it is quite extraordinary to use, as in subsection (2), the word ''examples'' in legislation.

This is the second Standing Committee on which I have served since the election in May. The first considered the Finance Bill. That was a much fatter Bill with intricate detail that was sometimes hard to follow. I cannot imagine the Treasury solicitors allowing to pass out of their door a draft Bill that contained the word ''examples''. It is an open invitation to the lawyers, the tax profession, the accountants and many others who make their living out of finding holes in legislation. As the right hon. Member for North-West Hampshire and the hon. Member for South Cambridgeshire said this morning, it will be a bonanza for lawyers who want to pick holes in the Bill, particularly as the licensed trade is particularly profitable at the moment and can afford to engage the finest legal minds in the country.

Amendment No. 37 would tighten the clause by deleting from subsection (2)

''(b) licensed premises,

(c) premises in respect of which a club premises certificate is in force.''

Most of the debate will be about licensed premises. The Minister included that subsection to allow for public houses and other premises that do not serve food. This is a puzzle. I have yet to hear any reasonable explanation why the Government think that the fact that someone has a bowl of soup, a more substantial meal or no meal in front of them affects their ability to breathe in second-hand smoke. There is clearly no relationship in health terms between whether one has a meal while one is in a pub having a drink or not. If there is smoke in the pub while one is simply drinking, one will still have to inhale it.

The reason for having this exemption is much more to do with social rather than health matters. Yet the Bill is a health Bill. My hon. Friend the Member for Northavon said on Second Reading last Tuesday that it was thought that the Bill would be entitled the health improvement Bill. The word ''improvement'' has been dropped. Surely the reason for dropping that word is that the Government are unable to prove, if this   exemption for public houses that do not serve food is allowed to stand, that there will be an improvement in people's public health. We will be interested to hear the Minister explain why the Government think that the health of someone who is having a meal should be protected but not that of someone who has gone out in a social environment, but is not having a meal.

Then there is the question of employees who may work for the same pub chain. Some of the chain's outlets may offer a lunchtime menu and others may not. There will be a disparity between the conditions of employment of different employees of a large pub chain. In one part of the business, they will have full protection under the law because the pub in which they work serves food, but, in another part of the same business, employees in a pub where food is not served will have lesser protection. Those employees may be earning the same salary with the same holiday entitlement and identical conditions of employment, but, due to the exemption in the Bill, they will have different protection under the law. That is very strange.

My background before coming here, as well as being a tax consultant, included studying for a degree in social and economic history. I am rather pleased that we are in this room, Mr. Illsley, where, above your head, hangs a rather famous painting of Gladstone's first cabinet. My university dissertation concerned the chap who is in the middle of that painting, Henry Austin Bruce, the first Lord Aberdare, who was vice-president of the local government board, which was the precursor of the Department of Health. He is one of the Minister's predecessors. All of the legislation that he and subsequent Ministers produced to create advancements in public health have had universal benefits. We have never before treated members of the public or classes of employees within the same business differently. This is a very unusual precedent for the Government to set.

On club premises, the same arguments apply. If smoking is harmful, why is it any less so if one's income and employment derives from the fact that one is a bar tender in a private members' club instead of a public house in the same street in any town or city in the country? If one works in a public house, why are one's public health needs any different from colleagues who work in the ''Prince of Wales'' club down the road? We cannot see any reason to differentiate. If this legislation is designed to protect employees and the public, why would one's health needs be any different depending on the establishment in which one has a drink or a meal?

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

Does my hon. Friend share my concern that the exemption for private clubs might create a loophole whereby other licensed premises that the Bill is intended to cover might convert themselves into members' clubs in a tokenistic way? Is he concerned that, if we retain the exemption, the wider force of the Bill may not be as effective as we had hoped?

Photo of Stephen Williams Stephen Williams Shadow Minister (Health)

My hon. Friend makes an excellent point. I can already think of many clubs where one can take out temporary membership for one evening for all sorts of reasons such as hiring a DVD   or a video. It is already possible for clubs to operate a policy whereby one can become a temporary member to enjoy the benefits of full membership. I am sure that it is quite possible that the ''Prince of Wales''—to use the example that I just mentioned—may have a register on the bar where people can pay 50p to become a temporary member of the ''Prince of Wales'' club, as opposed to the former ''Prince of Wales'' pub, solely so that the premises can take advantage of the exemption proposed in clause 3(2)(c).

My hon. Friend the Member for Cheltenham (Martin Horwood) said on Second Reading last Tuesday that he has already heard of a Cheltenham pub manager who has suggested in public that he proposes to do precisely that so that he can find a way around the legislation. That establishment has always had the character of a public house and has never had exclusive membership benefits. Its character will change solely so that it can circumvent this public health legislation.

Amendment No. 39 is simply a consequential measure if the exemptions are removed. I am sure that all of our constituents are puzzled as to why a Bill that purports to be a public health measure differentiates in these rather odd ways. They simply cannot understand why it makes a difference to the health of customers or employees whether one is eating a meal or whether one is in a private members' club, and the exemptions need to be removed.

Photo of George Young George Young Chair, Standards and Privileges Committee, Chair, Standards and Privileges Committee 5:15 pm, 6th December 2005

I rise to speak briefly to amendment No. 74, which would delete ''Examples of''. It would be helpful if the Minister gave us an example of any other primary legislation that has the words ''examples of'' in it. I certainly remember when trying to get Bills through the House that Members tabled amendments giving specific examples of organisations whom they would like to be consulted. The briefing was quite firm that it would not be appropriate to put examples into primary legislation as that was redundant and would create undesirable precedents. It would be very helpful if the Minister could resolve the question of whether this has happened before by saying where I might look for the words ''examples of'' in primary legislation.

We are left with some procedural difficulties, as everything in subsection (2) is simply an example, and it appears that the final regulations could exempt any other categories of workplace or enclosed public place that the Government choose, whether or not they are listed in clause 2. In other words, the Bill is consistent with ending smoking in any, all or no groups of workplaces. It follows that it is not absolutely clear what will be the consequence of, for example, accepting amendment No. 55.

Let us say for the sake of argument that the Committee decided to delete subsection (2)(b) and thereby remove licensed premises from the examples that may be specified as an exemption, as that would only be an example and the Government can still exempt any category of workplace, whether or not it is   listed. Would accepting amendment No. 55 have any impact at all? Indeed, how is it possible to amend the clause, given the way in which it is drafted?

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

Those of us who want a more comprehensive ban, as the right hon. Gentleman does, have wrestled with this issue. I hope that the Minister responding to his remarks will assure Members of the House that if they should express their view by means of these deletions but they do not want exemptions either for private clubs or for pubs that do not serve food, the Government will respect their wishes and not say, ''Ah, but technically we have only changed some examples. We can do it anyway.''

Photo of George Young George Young Chair, Standards and Privileges Committee, Chair, Standards and Privileges Committee

Clearly, given the range of views that have already been expressed and the strength with which some of them are held, it would be wholly unacceptable if there was no opportunity at all for those views to be expressed in a Division that had impact and was binding on the Government. This is a difficult part of the Bill to debate and seek to amend, because what I seek to amend is only an example.

Amendment No. 55 would delete from the exemptions in paragraphs (b) and (c). I described my last amendment in the previous group as something of a blunderbuss, but the combination of amendments Nos. 74 and 55 are much more finely targeted, as they leave in the exemptions in paragraph (a) and knock out the exemptions in paragraphs (b) and (c), subject to the qualification that I made a moment ago.

I shall not repeat the arguments that have been advanced for including premises that do not sell food in the ban on smoking. There is a strong argument for legislation that is simple, clear and easily understood, and for legislation that is easy to enforce. I am concerned about the health inequalities that will flow from the Bill, and I believe that employees are entitled to consistent protection in whatever licensed premises they work in.

I hope that the Minister is able to rebut the arguments advanced by the hon. Member for Bristol, West on Second Reading, which go to the heart of the Government's position that there is a logical distinction between premises that sell food and those that do not—a distinction that is not seen so clearly, to put it mildly, by those who have criticised the Bill.

Finally, may we have the assurance, for which we have asked repeatedly, that there will be an opportunity on Report, if not now, for a meaningful Division, so that the House can express its view on whether there should continue to be a distinction relating to licensed premises?

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

I am grateful for the opportunity to say a few words about the amendments in my name and those of my hon. Friends, but let me begin by expressing my sympathy with the points made by my right hon. Friend the Member for North-West Hampshire about amendment No. 74. The essence of what we are debating is that during the passage of the legislation we should be as specific as possible about the exemptions that Parliament proposes, rather than using language that implies that the premises mentioned are nothing more than illustrative   examples. The phrase ''Examples of'' should be deleted.

If there is to be a legislative ban, we should have a debate here and, if necessary, on Report, the purpose of which would be to set the parameters for the exemptions that Parliament proposes. A number of us argue that there should be more exemptions rather than fewer at this stage; others argue for fewer rather than more. However, it is for Parliament to say in the first instance what the parameters are, rather than passing the legislation and the matter being wholly left over for a discussion at some later point when orders are brought before the House. We know that orders receive less time and less prominence and provide less opportunity for hon. Members to participate in discussions. I therefore entirely agree with amendment No. 74.

Amendment No. 6 would insert the word ''hospitals''. That seems entirely counter-intuitive. The last place we want there to be smoking is in the NHS. Indeed, by the end of next year, the NHS ought to be smoke-free; that is the intention. But, and it is an important ''but'', leaving aside the question whether the places mentioned are only examples, if we do not insert ''hospitals'', I am not sure what the situation would be in special hospitals and other places where people in effect live. I am talking about places that are undeniably hospitals, not hotels or care homes. I am not an expert on the relationship of smoking to courses of treatment or therapies for those with mental health problems, but from listening to those who do know about such matters, I have no doubt that the sudden interruption of people's ability to smoke can have significant adverse impacts on continuing therapy or on their ability to live in a residential environment in a hospital for a period while they are being treated.

The purpose of the amendment is to allow us to explore with the Minister the Government's intention in respect of mental health patients who are obviously resident in hospitals. In some cases, patients are being detained. That may well have an impact. The Government may intend that it should have some bearing on whether they can smoke, but I am not sure that I understand where in the Bill such an exemption would apply, if it were not to be inserted where we propose.

Amendment No. 67 relates to ships. We may be wrong on this amendment or perhaps we are trying to put it in the wrong place. It may be more appropriate in relation to vehicles as distinct from premises. Perhaps none of Her Majesty's ships constitutes premises unless it is land-based. My hon. Friend the Member for Westbury, who understands these things far better than I do, knows about Her Majesty's ships and submarines and thought that it would be extremely difficult if they were not exempted, so on his behalf I ask the Minister to let us know whether it is intended that those ships and submarines should be smoke-free. If not, where is the exemption intended to be placed?

Amendment No. 34 relates to specialist tobacconists. The Minister will recall that the matter of specialist tobacconists was raised by my hon. Friend the Member for Hammersmith and Fulham   (Mr. Hands) on Second Reading, and I have separately received correspondence from my hon. Friend the Member for Cities of London and Westminster (Mr. Field). Such tobacconists are more likely to be found in central London than in most other places. They are very small in number but they have distinct requirements, and their view—I represent, rather than endorse them—is that in order to carry on their business, they have to enable their customers to use smoking requisites, such as pipes, on their premises. If that cannot happen, it will have a significant economic impact on that small number of businesses. The question is whether there is scope for an exemption for them. Those are the amendments for which I have responsibility.

However, I should like to say something about the amendment that was tabled by the hon. Member for Bristol, West, which would remove licensed premises and those in respect of which a club premises certificate is in force. It is my view, as the hon. Gentleman knows, that we shall have a free vote on the matter, but also that it would be appropriate to take out either of those exemptions, although, as we shall discuss, not all licensed premises should be exempt by any means, and the circumstances in which licensed premises should be able to allow smoke should be closely circumscribed. It is not even my view that all clubs should be exempted. As we shall see when we come on to the next group of amendments, even clubs that admit children should not be able to have smoking in those premises while children are present.

However, as the Bill is drafted, if one wants to arrive at the compromise that I would support, it is necessary to have a general exemption for pub and club premises, if that were qualified substantially. I cannot endorse the view that we would delete licensed or club premises from the possible scope of exemptions.

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

This is an interesting group of amendments, some of which seek to extend the list of examples of all the types of premises for which exemptions should be made. Others seek to narrow, and state in the Bill, the types of premises for which exemptions may be made.

Before I address each of the amendments, however, I should like to make a few comments. It is important to recognise the context of some of our discussions earlier today. I think that I am right in saying that, apart from Ireland—of course, Scotland is pursuing its own policy—pretty much every country in the world, including the United States, did not go for a full ban when they were considering restricting smoking in public places. On a general note, I can confidently say that in most countries—California, New York, Norway, and others, including those countries looking to restrict public smoking in public places, such as Italy and other EU countries—the tendency has been to go for banning smoking in workplaces, followed by banning in restaurants, followed by a final ban in bars that are licensed for drinking only. I do not feel in any way that our proposals are somehow an exception to the rule. All those other countries, including Australia and the United States, went   through the same sort of deliberations that this Government are going through. That involved advancing the argument that we want to reduce the exposure to smoke, and in doing so, sending out a strong message about the dangers of second-hand smoke, while at the same time, recognising that smoking is not an illegal activity, and that choosing health is an important part of encouraging people to give up smoking.

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

There was a rounded discussion in the Government on all those different issues. Certainly, my right hon. Friend the Secretary of State has listened to what people said. She herself has said that she takes the view that, in future, a total ban is on the cards, that some of the exemptions will be reviewed within three years and that we will be monitoring and reviewing the legislation from day 1. She has also said that we had a clear commitment in our manifesto, which was based on one of the largest ever public consultation exercises in relation to public health.

To refer to a point that was made earlier about the 1 m-from-the-bar rule, I quote from a document produced by the Government of South Australia's Department of Health, which says:

''From 6 December 2004, smoking will not be permitted within one metre of service areas (such as bars and other counters) . . . This is part of an initiative by the State Government to make all enclosed venues completely smoke-free by 31 October 2007.

What will this do?

This law is aimed at increasing the comfort of employees and increasing the public's awareness of the negative effect that passive smoking has upon staff.''

Neither the Government nor the Department of Health is alone in seeking to advance that cause in way that is understood and supported.

As I have said on many occasions, one of the reasons why the voluntary ban has been so successful is that it is in tune with public opinion. This morning, in response to a point that had been made by the hon. Member for Bristol, West—I cannot remember whether he was present for my response—I said that that is one of the reasons why I have never made a claim about health in relation to when people eat as opposed to when they do not eat. Again, my comment reflected a clear steer from the public about the areas in which they would prefer a smoke-free atmosphere. It is clear from the attitudinal surveys that have been carried out that the number of people—smokers and non-smokers—who want to eat in a smoke-free atmosphere is considerably higher than the number who support a complete ban in premises licensed just for drinking.

Photo of Steve Webb Steve Webb Shadow Secretary of State for Health 5:30 pm, 6th December 2005

That is the nub of the issue. I hope that the Minister will forgive me if I put this bluntly, but the Government's delay will cost lives. That is the Government's own assessment—their own regulatory impact assessment says that more lives will be lost if   the full ban is delayed. The Government say that a full ban is inevitable and that when such bans are introduced they are extremely popular and no one would ever turn the clock back. However, they seem unwilling to lead public opinion and their unwillingness to do so will cost lives. Is that not the case?

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

I think that our proposals will save lives. There are lots of examples in which Governments could pass laws that could save lives by banning all sorts of activities that are not illegal. Each Government and each party in government has to make a choice about whether to take particular action. I believe that at this stage we have got the balance right.

Our proposals build on our previous actions. The Government have not been doing nothing. We have introduced more restrictions on, for example, tobacco advertising, and greater controls on the sale of cigarettes with the particular aim of protecting younger people. We have done more to ensure that our health service is a service for health and not just for sickness, by providing services on the NHS to help people give up smoking, and we will continue to do so. The provisions build on a pretty good record since 1997 in dealing with an issue about which previous Governments have not been inclined to do as much as we have done, despite the fact that similar evidence was available to them.

Photo of Eric Joyce Eric Joyce PPS (Rt Hon Margaret Hodge MBE, Minister of State), Department for Work and Pensions

The hon. Member for Northavon assumes that this is simply a matter of arithmetical calculation—that as soon as the legislation is passed it will be effective and we can start counting the saved lives. The objection to his argument is that such legislation would not be effective and that we will save more lives by passing effective legislation at the right time and not pretending that the moment that we pass ineffective legislation, we start saving lives. The point is that the premise is disputed.

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

I agree with my hon. Friend. It would be nice to think that passing legislation was the be-all and end-all, but we know that that is not true. A package of measures is needed to tackle health inequalities. As I said this morning, the biggest determinant of health inequalities is poverty—poverty of income, environment, aspirations and expectations. We are tackling that problem on a number of fronts across Government to challenge the status quo that has prevailed for generations.

Clause 3(1) gives the appropriate national authority the power to make exemptions in regulations for certain premises or specified areas of them to be smoke-free. It is necessary to leave that as a general power to make exemptions in order to fulfil our obligations under the European convention on human rights, particularly article 8, which deals with the right to respect for private life. There will be a significant number of areas where it is necessary to introduce an exemption in order to ensure ECHR compatibility and that is why we have not attempted to list all such premises in the Bill. However, we have always been clear about what types of premises we intend to exempt.  

Subsection (2) reinforces that by listing as examples three categories or descriptions of premises for which exemptions may be made. I cannot tell the right hon. Member for North-West Hampshire whether the use of the term ''examples of'' is a new device, but the Bill has been prepared with the expert advice of our parliamentary counsel, and even if it has not been used before, that is no reason not to use it in this Bill. The thrust of his question is valid—in some respects, subsection (2) is not necessary. However, we thought it right to show the thrust of our policy on exemptions. Judging by today's discussions we need to address in greater depth the various areas of exemption and how exemptions will apply, and we will do that through regulations. We do not intend to stray beyond the three categories and we have made that clear through the inclusion of subsection (2), but we feel that there should be some flexibility in the clause to enable us to meet our ECHR obligations. In order to respond to unique and unusual circumstances, the drafting also future-proofs this important legislation by allowing us to adapt to changing circumstances.

I have been given examples of legislation in which examples are given, which is helpful. Section 42(2) of the Child Support Act 1991 states:

''Those regulations may, for example, provide for'' and section 90 of the Highways Act 1980,

''Regulations under this section may make different provision for different cases as, for example, for road humps and highways of different descriptions.''

[Hon. Members: ''Hear, hear!''] I thank the officials for their speedy intervention to help our deliberations.

Amendments Nos. 6 and 67 would add to the list of examples of premises that may be exempt—amendment No. 6 would add hospitals and amendment No. 67 would add Her Majesty's ships and submarines. As I have explained, the power to make exemptions is not confined to the descriptions set out in subsection (2). Nevertheless, in the case of Her Majesty's ships and submarines the amendment is unnecessary because such premises would be exempt from the legislation. The provisions in part 1 do not bind the Crown and thus do not apply to submarines or to Royal Fleet Auxiliary Service ships. I can inform the Committee that we are in discussions with the Ministry of Defence on issues arising from this Bill. Those of us who are involved in some of the services' parliamentary schemes will know that considerable work has been done in the MOD on how smoke-free places can become part and parcel of its operations where that is appropriate. Discussions continue on that subject.

On hospitals, as the hon. Member for South Cambridgeshire said, we have committed to a smoke-free NHS in advance of this legislation coming into force by the end of next year. The legislation will apply to the NHS, none the less. I am pleased to have had the opportunity in the past six months or so to visit two hospitals that have already gone smoke-free. I understand that a number of others are pursuing that path. Having said that, we have always acknowledged that it may be necessary to introduce certain exemptions for patients who are detained in hospital against their will and for whom   the hospital is in reality their home. Such situations are already covered by the broad definition in clause 3(2)(a), so there is no need to add hospitals specifically to the list.

I would be a bit concerned about hospitals in the general sense being defined in the clause as open to exemption. We are discussing premises where there is a residential aspect or a detaining aspect under mental health legislation, which may lie partly on hospital grounds or be part of a hospital service. We are discussing with people in mental health services how the provisions should apply. Some people feel that where the service is a day service, for example, it should be smoke-free on the same basis as everywhere else, but that where there is a residential element—in some cases a residential element that does not even allow a person to leave the building—flexibility is needed.

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

Does the Minister agree that there is some difficulty in that where people are detained under the Mental Health Act they may be able to smoke, but when they submit themselves voluntarily to treatment they are not able to smoke? Far from either of us saying what the right approach would be, we need to be sure that there is some flexibility to allow the clinical circumstances of patients to be taken into account. There is an interaction between people's habituation and dependence on nicotine or tobacco on the one hand and their access to and compliance with therapy on the other. We have to be prepared for that.

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

It is for those very reasons that we are consulting with mental health colleagues in the Department of Health and further afield. A number of submissions were provided as part of the consultation over the summer. That issue it demonstrates some of the complexities of legislating and why it is sometimes difficult to put all these issues on the face of the Bill.

Amendment No. 34 is designed ensure that an exemption for specialist tobacconists can be made. I have a number of letters on this issue. I assure the hon. Member for South Cambridgeshire that clause 3 already gives such a power under subsection (1) and there is therefore no need for the amendment. I have considered the measure and, subject to consultation and approval by the House, I am minded to include a specific exemption in regulations for specialist tobacconists. We have to be very clear about how we would define such premises. I have never been in one but I understand that people might visit one of that very small group of retailers to try out a pipe. The definition in the Tobacco Advertising and Promotion Act 2002 is:

''A specialist tobacconist is a shop selling tobacco products by retail . . . more than half of whose sales on the premises in question derive from the sale of cigars, snuff, pipe tobacco and smoking accessories.''

I am sympathetic to the amendment, although I would not encourage anyone to take up smoking.

Amendments Nos. 44, 74, 55, 37 and 39 all seek to narrow, and in some cases fix on the face of the Bill, the types of premises for which exemptions may be made. Amendments Nos. 44 and 74 would both to limit the exemptions that may be made under subsections (1) to those premises that fall under the   descriptions set out in subsection (2)(a) to (c). That is achieved by removing the reference to ''examples'' from the subsection. I have already explained why it is important to have flexibility about what exemptions can be made on ECHR grounds. The amendments would remove that important flexibility and the ability to respond to unusual circumstances. We will need to be able to respond as public opinion and common practice change. Under the law we demand testing facilities for tobacco products as a health and safety measure. In film and theatre, we have a role in deciding what should be allowed in the course of a production in which smoking might be part and parcel of the creative performance. There are some interesting cases in which we need flexibility.

Amendment No. 37 seeks to narrow further those places for which exemptions may be made to those that fall under 3(2)(a)—in other words only places that act as an individual's private dwelling or are clearly private space. People have views on our position on licensed premises. We do not have agreement on that point, so hon. Members can understand why I will not accept that amendment.

Amendment No. 39 is consequential. However, it would fail to achieve its desired effect because although only subsection (a) would remain, it would still be just an example of the type of place for which exemptions could be made. We feel that it is important that the broad thrust of our policy on exemptions should be on the face of the Bill.

Amendment No. 55 is intended to be considered alongside amendment No. 74 and the combined effect of the amendments would be to restrict—

Sitting suspended for a Division in the House.

On resuming—

Photo of Caroline Flint Caroline Flint Parliamentary Under-Secretary (Department of Health) 12:00 pm, 6th December 2005

Amendment No. 55 is intended to be considered alongside amendment No. 74. The combined effect of those amendments would be to restrict exemptions to only those premises that fell under the descriptions in subsection 2(a) to (c). Amendment No. 55 would ensure that the same exemptions would apply to all licensed premises and all membership clubs. Therefore, the flexibility to make differing exemptions for premises under clause 3(2)(a)—those that act as an individual's dwelling or that are clear private spaces—would remain intact.

I urge the Committee to reject the amendments. As we said in ''Choosing Health'', opinion on restricting or banning smoking in most public places and workplaces is strongly in favour of action. However, pubs and bars are viewed differently. Our policy reflects the views of the public whose support for smoke-free pubs is significantly lower than for other hospitality venues, such as restaurants and cafés. People view smoke and food differently from smoke and drink. As I said earlier, that is an approach that   many countries that have introduced restrictions and bans have understood only too well.

As a result, we have concluded that the link to the preparation and serving of food is the fairest way of delivering our health and choice objectives. Therefore, I must urge the Committee to reject the combined effect of amendment Nos. 74 and 55. As for membership clubs, we believe that they should be able to choose whether to allow smoking or be smoke-free in recognition of the fact that they are private establishments run by the members for the members. Those clubs have always been treated differently from other licensed premises because they are non-profit-making organisations in which, ultimately, the members make the decisions.

There is specific licensing legislation that qualifies those clubs. I disagree with the hon. Member for Bristol, West that it would be simple for licensed premises—or, for that matter, Blockbuster—to set themselves up in such a way as to be exempt from the legislation.

Amendment No. 58 seeks to maintain the exemption for membership clubs, but to restrict smoking to areas where no employee of the club is required to be present. I have already explained why we are treating membership clubs differently. At the end of day, it is for those clubs to decide whether to allow smoking and, if so, under what conditions. As we discussed earlier, even when smoking is allowed, it will sometimes be necessary for employees to enter a space that is defined as a smoking area. For those establishments that are exempt from the full ban, we are—in line with our manifesto—consulting on a way in which we can protect employees and reduce exposure to smoke around the bar area. Even so, there could still be situations when we would expect members of staff to enter a smoking area for reasons of common sense. For example, if a fight broke out and someone was the worse for wear due to drink, under other responsibilities as employees and licensees, staff would have to take action.

Our manifesto stated that, whatever the general status of a licensed premise, including membership clubs, we would look to protect bar staff by prohibiting smoking in the bar area. We are consulting on that and will consult fully on draft regulations, which will be subject to the affirmative resolution procedure.

In this group, there are amendments, on the one hand, to add to the list of examples of premises for which exemptions may be made and, on the other, to limit the type of premises for which exemptions may be made. In clause 3(2), we have made clear the type of premises for which we intend to make exemptions. I suggest that we have got the drafting exactly right and that we have struck the correct balance between making clear our intentions and leaving the flexibility to fulfil our European convention on human rights obligations and to respond to unique and unusual circumstances. As I have said before, this is a total-ban Bill with provision for exemptions to be made. That allows us, in secondary legislation, to come back and review the situation as the provisions of the legislation are put into practical implementation.  

Photo of Stephen Williams Stephen Williams Shadow Minister (Health)

I shall sum up some of the points that have been raised in this wide-ranging discussion. I am glad that the officials were able to help the Minister by giving her examples from previous legislation. However, as my hon. Friend the Member for Northavon said earlier from a sedentary position, the Child Support Agency legislation is not a happy precedent. As a city and county councillor who often had to deal with residents' concerns about road humps, one-way systems and so on, I would say that legislation in that regard is not a particularly happy precedent either.

The Minister and the right hon. Member for North-West Hampshire mentioned health inequalities. The Minister talked about other public health measures that this Government and previous Governments have introduced, such as adverts and provision on the size of warnings on cigarette packets, but we have now had decades of anti-smoking legislation and we have got ourselves into a position in which some sections of the population have reduced their smoking habit to what is probably an irreducible minimum. For instance, the incidence of smoking in some wards in my city of Bristol can be as low as 12 per cent.; in other communities nearby, the incidence can be 50 per cent. Those decades of health warnings and increasingly high taxation have not had sufficient impact on certain sections of the population, and they tend to be those that are in poverty.

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

Is the hon. Gentleman aware that 95 per cent. of deaths from smoking are caused by smoking in the home? The logic of his argument is that we should ban smoking in the home. I am sure that he does not support that view and that he recognises that, to tackle these issues, we must have a package of measures, of which the Bill is one.

Photo of Stephen Williams Stephen Williams Shadow Minister (Health)

I certainly recognise that we need a package of measures, and this package would be a complete package if it included a full ban, rather than a ban that is run through with many exemptions.

The Minister said that people smoke in the home. I have said that many people resolve to give up smoking, perhaps on new year's day or on another anniversary—we have already had that discussion—but their resolution often falls at the first hurdle when they are in a social environment. If the social environment for smoking were taken away, the overall incidence of smoking would fall and therefore the incidence of smoking in the home and in front of children and non-smoking family members would obviously fall as well. That is an incidental benefit of a full ban, but none the less it is a benefit.

The health inequalities in this country suggest that high levels of taxation—in effect, a cigarette tax is a tax on the poor—and endless health warnings and adverts have not had the impact that we would like and that we need to consider firmer legislation, such as for a full ban, to help people in the relevant communities. My hon. Friend the Member for Northavon said that the consequence of not having a full ban would be lost lives. Perhaps at some future point residents of England will have the same protection as residents of Falkirk and other parts of Scotland, but for the time being they will not. Health   inequalities will be perpetuated in the short term and there is a risk that they will be widened in the long term.

I asked the Minister—I am sure that she and her colleagues have been asked this many times—to tell us why she thinks that someone's having food in front of them alters the impact that smoke has on them. She could not give us a good public health reason.

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

I have answered that question several times today. I have not said, and nor has my right hon. Friend the Secretary of State for Health, that that there is a difference purely on health grounds in terms of when a person is eating and exposed to smoke and when they are not eating. We have said that when we asked people about further Government legislation to restrict smoking in public places, they felt strongly that, based on choice, they wanted restrictions in areas where they were eating. I ask the hon. Gentleman not to continue to put words into my mouth. I think that I have been honest and up front about the provisions. The Bill is about health and choice.

Photo of Stephen Williams Stephen Williams Shadow Minister (Health)

It appears that choice has triumphed over health in that particular example. The choice is whether one wants to be led by public opinion. I am sure that the quote from the Defence Secretary will go into political folklore—I believe that he was quoting his mother when he said that the only remaining working-class pleasure in some parts of Glasgow was the enjoyment of smoking. The Government should address the question of whether they want to take the advice and anecdotal opinions of focus groups and market research or whether they should follow the advice of their own chief medical officer, Sir Liam Donaldson, who has made it clear that for the Bill to have the maximum possible benefit, it should provide for a full rather than a partial ban.

I return briefly to the question of food. I do not want get into a discussion about binge drinking, but it is certainly beneficial for people's health to eat while they are drinking. An unforeseen consequence of the implementation of a partial ban may be that there will be an increase in binge drinking in certain establishments to which people will go to drink but will not have the opportunity to have a meal to absorb some of the drink.

The Minister said that we have to move with public opinion. She specifically mentioned California and other examples from around the world where anti-smoking legislation has been introduced in the past. As I understand it, the legislation in all those examples was introduced from the early 1990s onwards. We are now in 2005, and I think that public opinion in other parts of the world, and certainly in this country and in England in particular, has moved ahead. Why does she think that public opinion in Scotland, where a Labour-Liberal Democrat coalition has been able to introduce a comprehensive ban from 26 March next year, or public opinion in the Republic of Ireland, is so different from public opinion in England? I would guess that if a comparison was made between the different nations of these isles—to use a historically neutral term—it would probably be found that support for a smoking ban is stronger in England   than in Scotland, Wales, Northern Ireland or the Republic of Ireland.

Photo of Eric Joyce Eric Joyce PPS (Rt Hon Margaret Hodge MBE, Minister of State), Department for Work and Pensions

There is no evidence at all that public opinion is any stronger or weaker in Scotland. The fact is that there has been a consultation in Scotland and throughout the rest of the UK, and the Scottish Executive have made their judgment based on that consultation. I should like to think that the hon. Gentleman would agree that the UK Government should also make their own judgment. The question is how to respond to the consultation, not what the results of the consultation tell us.

Photo of Stephen Williams Stephen Williams Shadow Minister (Health)

We will have to agree to differ on where we find opinion to be strongest for a full ban on smoking. However, there will be absurd cross-border incidents in the future. I am glad that my hon. Friend the Member for Northavon has just returned to the Room because if, as we suspect, the Welsh Assembly goes for a full ban on smoking in Wales, that will lead to the absurd example of people who wish to smoke in pubs crossing just a mile over the border into his constituency of Northavon so that they can carry on doing so in England.

The Minister said that it is not a simple matter to set up a club. I am not a great expert on what, constitutionally, it takes for a premises to reconstitute itself as a club. However, I understand that all one needs is a rule book and a register of members to be put in place, which seems fairly straightforward to me. The Minister did not give us any evidence of why it was not a simple matter.

I also mentioned that the provisions will introduce unfair competition between different parts of the licensed trade—for example between a club and the ''Prince of Wales'' pub—which is surely not desirable.

The Minister said earlier that she thinks that the drafting of the Bill is ''exactly right''. I wrote those words down with astonishment when she said them. I doubt if anyone would agree with her. The House will have a full discussion of many of the issues that we have touched upon on Report. I therefore beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Photo of Andrew Lansley Andrew Lansley Shadow Secretary of State for Health 6:15 pm, 6th December 2005

I beg to move amendment No. 35, in clause 3, page 2, line 40, at end insert—

'( ) Regulations made under subsection (1) shall not provide for premises or areas of premises not to be smoke-free if they are premises or areas of premises to which children have access.'.

At no point does the Bill refer directly to the interests of children. The Minister said that the Bill was about health and choice, so let us start with health. I referred earlier to the report of the Scientific Committee on Tobacco and Health, but I did not say that one section of the report discusses the impact of environmental tobacco smoke on children. It refers to the World Health Organisation international consultation on second-hand smoke and child health in 1999. The committee stated that the WHO had found that second-hand smoke  

''is a real and substantial threat to child health, causing a variety of adverse health effects including increased susceptibility to lower respiratory tract infections such as pneumonia and bronchitis, worsening of asthma, middle ear disease, decreased lung function, and sudden infant death syndrome.''

My starting proposition is that, to avoid those risks, children should not be exposed to second-hand smoke.

We know that the exposure of children to second-hand smoke is most prevalent in the home. The Minister will agree that although we would like to reduce its prevalence generally, and thus secure the benefits of reducing the exposure of children to second-hand smoke, we should not use the Bill directly to prevent smoking in homes where children are present, even though that outcome may be desirable. That is a private choice to be made by parents about a private space for which they are responsible.

Notwithstanding the fact that we should not intrude into private space, the question raised by the amendment is whether we should try to ensure that, in all the circumstances in which premises might be smoke-free by virtue of part 1, exemptions should not be permitted in relation to those premises if they are premises to which children have access.

The Minister may tell me that the amendment is technically flawed. I accept that it depends on one's understanding of the structure of the Bill. If in clause 3 we remove any possibility of exemptions in relation to

''premises to which children have access'', it might mean that we would remove the exemption for private homes. I do not think that that will be so, but I might have misunderstood how the Bill works. I understand it to mean that private homes are not places to which the prohibition applies unless they are places to which the public have access or are places of work. If that is so, the amendment would still have force. The question will be whether a prohibition applies by virtue of clauses 1 and 2. If, under the circumstances set out in the Bill, premises have to be smoke-free because the public have access or because they are places of work, clause 3 cannot be used to make them places in which smoking is permitted if children have access to them. That is my intention, but as is often the way, the amendment may not be structured in a way that would allow that to happen. I accept that. However, I have set out my proposition.

Whatever the views of the adults around them, it is not right for people to expose children to second-hand smoke. Parents in public places should be able to expect their children to be free of smoke. I have to confess that I do not smoke and pretty much nobody in my family smokes, so my children are not exposed to smoke unless they are in public places. In most of the public places to which I go, I do not expose my children to second-hand smoke if I can avoid it, but sometimes it seems unavoidable. That always irritates and offends me far more than my own exposure to second-hand smoke. If my view is any measure of public opinion, I attach more importance to protecting my children from second-hand smoke than to protecting myself. I confess to the Minister that I have not asked that question in opinion research and I do not know whether she has asked it or has seen the question come up. If it were   asked, I would not be surprised if many members of the public shared my view that we should simply remove the possibility of exposing children to second-hand smoke in any public place.

That is the intention of the amendment. Before other members of the Committee chide me about it, I accept that to some extent it cuts across some of the other points that I might make. There is a compromise or balance to be struck. We have made it clear in what I said on Second Reading and what we said before the election that, notwithstanding that the balance would not require private clubs to be exempt, we were prepared to accept smoking rooms as long as there are places to which non-smokers have access and we were prepared to accept that premises to which children have access should not permit smoking. In the same way as non-smokers should be able to live in a smoke-free environment unless they choose to do otherwise, children should in all circumstances be able to live in a smoke-free environment.

The amendment would have a direct impact on clubs. We could not have clubs that both continued to allow smoking and allowed children to have access. Admittedly, there could be clubs with smoking rooms, but smoking rooms, whether in pubs or clubs, would clearly have to be rooms into which children were not allowed.

Although the amendment cuts across some of the exemptions and circumscribes them, I suspect that it might help the pub trade. If we proceed in the way proposed, it will have to contend with pubs being smoke-free to a substantial extent in circumstances where clubs are allowed greater flexibility. However, if clubs cannot at the same time be smoking establishments and offer access to children, that might give the many pubs whose commercial advantage lies in serving food and being places where families can go with children an offsetting commercial benefit compared to the private club.

That is the purpose of the amendment, and I hope that the Minister will be able to accept it.

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

On first reading, one has huge sympathy with the amendment, which deals with an important set of issues that are not covered by the Bill. I congratulate the hon. Gentleman on tabling it and sparking off this debate. He was refreshingly honest—I hope that this is the shape of the Conservative party to come—in admitting that, almost in one day, he is looking in two different directions at once, which is something that I find difficult to do myself.

In Ireland a direct effect of the full ban has been much less smoking: fewer people smoke, which must mean that fewer people smoke at home. Clearly there is an issue of displacement, but such has been the overall drop in smoking that it is inconceivable that fewer children in Irish homes are not subjected to second-hand smoke. Were the hon. Gentleman to adopt the more comprehensive ban strategy, his legitimate, proper concern for the welfare of children would be better achieved, because it would have the knock-on effect of reducing the overall incidence of smoking and would thereby lower rates of smoking at   home without any need to interfere in the private space of parents, which he understandably does not want to do. The hon. Gentleman is rightly concerned about children, but he is missing an opportunity to benefit them by reducing overall smoking prevalence through a total ban. I urge him to reconsider his position on that matter.

I should like to ask the hon. Gentleman a question, for clarification, about enforcement and definitions of access. Is he talking about clubs? Clearly, he does not want people smoking when a child is in the room, but does he want to stop people smoking if there is ever a child in the room, even if there is not one currently in the room? I was slightly unclear about what he was saying. I accept that there is an issue about smoke-free rooms and so on, but the hon. Gentleman implied that if the clubs ever allowed children access, that would trigger an across-the-board prohibition of smoking. Is that what he is saying?

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

Certainly my intention is that if children have access to any part of a licensed premises or private club, it would be required to be smoke-free. There might be rooms, as there are in pubs, to which children do not have access, and in those circumstances the exemptions might continue to apply.

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

I am grateful for that. I suppose that that raises issues of signage and knowing what the club rules are. One can see enforcement complexities if a club has a general exemption, but some parts of it are not exempt. That is potentially messy. I would prefer the rule to be more clear cut, and I am sure that those who will have to enforce the law would prefer that, too.

In another context the hon. Gentleman would argue that a private club is a private space and that members choose to be members; clearly nobody forces anyone to be a member of a Conservative club, for example. If they choose to be members, they choose whatever arrangements that the club has agreed. Accordingly, if parents choose to bring their children in, have they not done so knowingly in an act of free choice in what the hon. Gentleman regards as a private space?

Is it not inconsistent to say that there should be an exemption for private members' clubs, because they are private spaces that can define their own rules, but then say that when it comes to children, the fact that the parents could take their child elsewhere, to a club that does not allow smoking, is irrelevant and we will stop them from having that choice?

The hon. Gentleman seems to be saying that we should not be obliging people in private clubs to adopt one rule, because that is a matter of choice, but on this matter, he is saying that there should not be a choice, but an absolute rule. I do not object to the amendment, but it is inconsistent with his view that private clubs, as he frankly acknowledged, are a private space where different rules should apply.

Debate adjourned.—[Gillian Merron.]

Adjourned accordingly at twenty-eight minutes past six o'clock till Thursday 8 December at Nine o'clock.