Clause 5 - Vehicles

Health Bill – in a Public Bill Committee at 10:35 am on 13th December 2005.

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Photo of Steve Webb Steve Webb Shadow Secretary of State for Health 10:35 am, 13th December 2005

I beg to move amendment No. 52, in clause 5, page 3, line 29, leave out ‘may’ and insert ‘shall’.

We wish to change just one word of the Bill. I have discovered that irony does not work in print, so I had better not say that the rest of the Bill is perfect because I do not wish to be misunderstood. We wish to change “may” to “shall”. In the context of smoking bans in vehicles, we suggest that, in clause 5(1), rather than stating that authorities may make regulations, we make it a duty on them to do so.

It may be that we misunderstand the meaning of “may”, but we want enclosed public places to be smoke-free, and many vehicles will be more enclosed than areas that are, for example, only 51 per cent. enclosed. Therefore, smoking in an enclosed carriage or vehicle is potentially far more injurious to the health of members of the public or employees who work in those environments. By inserting “shall” instead of “may”, we hope to rule out a situation in which the relevant national authority does not make regulations for vehicles to be smoke-free. In other words, the ban would not be complete if such regulations were not forthcoming. Essentially, we wish to place a duty on the relevant national authority, which includes this place in the case of England, to make regulations for vehicles to be smoke-free.

We want clarity on whether the Government were trying to allow for the possibility that relevant national authorities may not make regulations by using “may” rather than “shall”.

Photo of Andrew Murrison Andrew Murrison Shadow Minister (Health)

I hope that my intentions will be made plainer this time. I suspect that the Minister will say that the parliamentary draftsmen have insisted on using “may”, but I follow the argument made by the hon. Member for Northavon (Steve Webb). We have said throughout our deliberations that far too many powers are granted under regulation by the Bill, and that we would like to see more written into the Bill itself. However, we are quite clearly not going to get that. It would be good to hear what the Minister had in mind for the regulations that she may—or will—introduce, under the powers that she will have as a result of the Bill. It would be helpful if the Minister—as she has at other times during our proceedings—set out the situations that she sees as being the subject of regulation.

So while we are not going to get too hung up on “may” or “shall”, we certainly understand the concerns expressed by the hon. Member for Northavon, and we look forward to the Minister’s response.

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

This, of course, is the first amendment of a group within this clause, so we will have further discussion about the intention—

Photo of Ann Winterton Ann Winterton Conservative, Congleton

Order. I think that the Minister may be slightly confused. This is an amendment on its own, not part of a group.

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

I was referring to the fact that there are further amendments that apply to this clause, and that we will, therefore, have further discussions as the debate continues on types of vehicles, and so forth. I do not necessarily wish to have the debates on the further amendments during discussion of this one, which covers a technical point. I do not wish to steal anyone’s thunder in relation to further amendments to clause 5.

The hon. Member for Westbury was correct to say that when I saw the amendment in the name of the hon. Member for Northavon I asked officials what the significant reason was for using “may” rather than “shall”. I shall give a technical answer to that and at the same time try to elaborate a little more on the intention behind the clause.

Subsection (1) gives the Secretary of State or the National Assembly for Wales power to make regulations providing for smoke-free vehicles. We intend that public vehicles and vehicles for work use will be smoke-free. We believe that that will provide consistency with the protection from second-hand smoke in substantially enclosed public places and workplaces. The regulations will set out the descriptions of the vehicles that are to be smoke-free and the circumstances and specified areas in which they are to be smoke-free. Vehicles used at a place of work such as taxis, delivery vans, post vans, buses and   trains will be smoke-free unless they are for the sole use of the owner-driver. As I said earlier, I am sure that there will be more discussion on that when we come to later groups of amendments.

Whereas the clause provides a power to make such regulations, the amendment would place on us a duty to do so. I understand that it is normal practice to confer powers to make regulations in order to leave us some discretion as to when we introduce them, but I assure the hon. Member for Northavon that we intend to use the power to introduce regulations for smoke-free vehicles.

On a drafting point, advice from counsel is that if we were to say “shall” rather than “may”, we would also need to specify a deadline for the regulations to be made, which the amendment does not provide. If the purpose of the amendment is to seek clarity about our intention, I hope that I have reassured the hon. Gentleman about that intention.

Photo of Steve Webb Steve Webb Shadow Secretary of State for Health 10:45 am, 13th December 2005

I do not know whether I am reassured by that reply or not. I take the Minister at her word when she says that the Government intend to introduce the necessary regulations, which is the main thing that we are concerned about. I can only speculate on whether, if the amendment had said, “The regulations shall be brought in at the same time as the coming into force of the Bill” or something like that, the Minister would have accepted it. However, given that it appears to be incomplete, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Photo of Andrew Murrison Andrew Murrison Shadow Minister (Health)

I beg to move amendment No. 9, in clause 5, page 3, line 30, after ‘vehicles’, insert

‘used for the carriage of the public for payment.’.

Photo of Ann Winterton Ann Winterton Conservative, Congleton

With this it will be convenient to discuss the following amendments: No. 8, in clause 5, page 3, line 37, after second ‘vehicle’, insert

‘used for the transport of the public.’.

No. 78, in clause 5, page 3, line 37, after second ‘vehicle’, insert

‘used for the carriage of children, the public and for persons in the course of their employment’.

No. 51, in clause 5, page 3, line 37, after ‘train’, insert ‘bus, coach’.

Photo of Andrew Murrison Andrew Murrison Shadow Minister (Health)

Amendments Nos. 9, 8 and 78 have been tabled to tease out the difference between private and public space, a theme that has run throughout our deliberations. The Bill appears to give the Secretary of State powers to institute a blanket ban on smoking in anything to do with transportation, and we must consider how that applies to private transport.

Most people would regard their cars as their own personal space. Certainly the way in which people drive suggests that that is the case, in London particularly. Whether that is a reasonable proposition or not, I think that most people would see a clear difference between smoking in their cars and smoking, for example, in a train or bus. We can perhaps discuss the public health implications of somebody driving and smoking at the same time. I would hazard a guess   that the chances of people killing themselves or others because they are distracted by their wretched cigarette are probably greater than the chances of doing themselves damage from inhaling the smoke, but that is perhaps a secondary issue. The fact is that there is a distinction between private vehicles and public vehicles, although it is not clear cut. In a private vehicle, a person may expose others to their smoke and perhaps we should consider that. In a sense, the matter is analogous to smoking in one’s own home. If people are not harming others through their actions, it should be seen in the same light. I can see how one could argue that the Bill is drafted in such a way that it allows a ban on smoking in one’s own home, but we understand that exemptions will be made under clause 3.

In a similar vein, we expect that the blanket ban on smoking in all forms of transportation to be subject to exemptions, and I hope that the Minister will make explicit what those exemptions will be. I am sure that they will include private vehicles, which are an extension of an individual’s private space.

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

Does the hon. Gentleman think that his amendment is too tightly drawn even for his own wishes? For example, if an employer provides transport for employees at no cost to them, that would not be caught by the amendment, but I expect the hon. Gentleman would want there to be a ban in such a situation. If a school bus were provided to take children to school for free with an adult escort, we would not want that adult to smoke in front of the children, but he or she would not be caught by the hon. Gentleman’s amendment.

Photo of Andrew Murrison Andrew Murrison Shadow Minister (Health)

I am grateful to the hon. Gentleman for that and because he is eagle-eyed he will probably have spotted that amendment Nos. 8 and 78 are very similar. Amendment No. 78 is slightly better because it contains a reference to children. I am grateful to him for bringing up that point because another theme of our argument has been that children are in a special category and should be particularly protected from the ill effects of tobacco smoke, not only because it is bad for their health, but—probably more important in terms of public health—because it sends them the wrong message. We shall return to that point when we discuss a couple of new clauses tabled by my colleagues.

I agree with the hon. Member for Stafford (Mr. Kidney). In a sense, amendment No. 78, which was tabled after amendment No. 8, is an updated version and would deal with some of his concerns. The amendments are intended to set it on record that there is a clear difference between public and private. I am sure that the Minister intends that there should be such a distinction and I suspect that when she responds, she will make that distinction plain. The only purpose of my amendments is to act as a prompt for the Minister to make that distinction clear in order that we have some written record—although not binding because it will simply be recorded in Hansard—that the   Minister’s intention is not to introduce regulations at a later date that will ban smoking in all forms of transport. I cannot believe that that is her intention.

I have several concerns about the clause, but I hope that you will grant a clause stand part debate, Lady Winterton, so perhaps it would be appropriate if I left my further remarks until then.

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

My understanding of the remarks made by the hon. Member for Westbury is that the three amendments are different permutations—A, B or C—or different ways of expressing an understandable view that he would not want the clause to prohibit smoking in private vehicles. I have some sympathy with that point. As the hon. Member for Stafford said in an intervention, the reference to payment in amendment No. 9 is not the right test. With regard to the harm done by passive smoking, just as it does not matter where food is served, it does not matter whether one pays for the journey or not. That seems to be a red herring.

Amendment No. 8 offers a general description of “transport of the public”, whereas amendment No. 78 refers to:

“children, the public and for persons in the course of their employment”.

As the hon. Member for Westbury acknowledges, the latter formulation is better than the former. I suspect that adding the word “children” is for effect, as children are part of the public. Even so, there would be no harm in adding it. I broadly agree with the thrust of what he said, which is that we want to be clear about what comes within the scope of the clause.

My question is about privately hired coaches. My parents are active members of an organisation called the University of the Third Age. One of the things that they do all the time is go on coach trips. They regularly hire a coach. If it is a private transaction—a private hire of a coach—can the members decide whether they want to smoke, as member of private clubs can? That would worry me, as the coach driver is an employee who would be exposed to smoke. My parents do not smoke, but their friends do. We could go on to debate whether it would be all right if the window were open and so on, but, in principle, a coach driver in such circumstances ought to have some protection. We worry about bar staff in an enclosed place. Yes, the driver can open a window, but perhaps he cannot if it is a rainy, horrible day. One can think of all sorts of arguments along those lines.

Therefore, simply saying “the public” or

“persons in the course of their employment” does not cover all circumstances. The purpose of the coach trip is to convey not the coach driver but the passengers. I am worried that the coach driver would not be covered by amendment No. 78. It is not a works bus, but I am not clear what the implication is.

Our amendment No. 51 simply takes the list of examples in the clause and chucks in a few more, to use a technical term. We have added buses and coaches to

“train, vessel, aircraft and hovercraft”.

Can the Minister explain what a vessel is? Does “vessel” imply sea-going? I am slightly confused by that. I also wonder about the omissions. Do buses and coaches already come under some other legislation? Are we to take that as read?

Lists of examples worry me. We had them in a previous clause, and the right hon. Member for North-West Hampshire (Sir George Young) pointed out the need to be consistent and have all the examples or none of them. They do not add anything to the Bill. The same thing applies in this clause. I suppose the argument is that one could put something in the Bill and some quibbling lawyer—no disrespect to the hon. Member for Stafford—could come along and say that it was obvious that “vehicle” did not mean train, but one could have understood it to mean trains. Putting something in a Bill pre-empts that kind of thing. However, if we are going to do that, the list should be very long. We have already dealt with submarines. Amendment No. 51 would add buses and coaches.

I wonder what the basis was for deciding which things would be included and which would not. Our amendment adds a few things. The Minister may say, “Yes, it’s a fair cop. We should have put them in,” and, for the first time ever, I would have contributed words to the law of the land.

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

Amendments Nos. 8 and 9 would restrict the vehicles that must be smoke-free to those that are used by the public. To be absolutely clear, regulations made under clause 5 will provide for smoke-free business and public transport. I said on amendment No. 52 that vehicles for business and public use should be smoke-free. We believe that that will provide consistency with the protection from second-hand smoke in enclosed and substantially enclosed public places and workplaces. I cannot accept amendments Nos. 8 and 9, as they would restrict the intention behind the clause.

Photo of Andrew Murrison Andrew Murrison Shadow Minister (Health)

I apologise for interrupting the Minister’s flow at such an early stage. Would businesses that deliver goods be included? What about travelling salesmen? Would it be the Minister’s intention to include sole operators—individuals travelling around in vehicles—and prevent them from smoking? I suspect not.

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

As I indicated earlier, if a vehicle is for sole use, it would be down to the individual, but if the vehicle were used by others in the business—perhaps a workmate or someone who works for the individual—it should be smoke-free. In fact, I am pleased to say that the Road Haulage Association stated in response to the consultation this summer that

“most of our members do have smoking policies that prohibit smoking in shared vehicles”.

It also said that it had

“no objections to the main aim of the policy, to make virtually enclosed workplaces smoke free”.

I felt reassured that that organisation appreciated the need to encourage smoke-free policies, particularly in lorries and trucks. The cabs of lorries will be smoke-free unless they are for the sole use of an owner-driver. In relation to the hon. Gentleman’s examples, I   imagine that the same logic would apply in other circumstances in which someone is the sole owner-driver but uses their car to go about their business.

Photo of Andrew Murrison Andrew Murrison Shadow Minister (Health) 11:00 am, 13th December 2005

The Minister uses the phrase “owner-driver”. Does that mean that, if a lorry is driven by one person exclusively, but not owned by that person, it would be covered by the ban? If there are two individuals in the lorry—a driver and his mate—who both smoke, are they both not allowed to smoke because there are two of them? Are we talking about banning smoking all the time, or is the ban time-limited? A vehicle will probably have a change of usage. One week, one individual may drive it; next week, two people may drive it.

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

The hon. Gentleman raises an important point. In those circumstances, we will look to employers to ensure that the vehicle is smoke-free. The problem arises when different employees use the vehicle; when somebody goes off shift and somebody else enters the vehicle. I will think about what he has said, but my inclination is that where a vehicle may be shared with other workers—not necessarily at the same time—the vehicle should be maintained as smoke-free if it fits the definition of public transport or a vehicle used for a business purpose.

Even if someone vacates a vehicle, smoke can linger and may affect those travelling later. We could get into a lot of complicated situations. We might have to start defining how long the cab should be vacant and whether it should be cleaned before another person uses it. I am not of a mind to increase the regulatory burden on businesses in that respect. As I have said, the Road Haulage Association has made constructive comments about smoke-free policies in its vehicles, in relation to vehicles that may be driven by smokers or non-smokers at one time or another.

Photo of Andrew Murrison Andrew Murrison Shadow Minister (Health)

We have opened up quite a fruitful line of debate. Vehicles are pretty unique in that the ventilation tends to be extremely good. Cleansing the internal atmosphere of the cab of a lorry can be straightforward. One either winds down the window, or puts the ventilation on and completely changes the environment. One might be left with a horrible yellowing of the vehicle and a slight smell, which is unpleasant and a nuisance. I suspect that the Minister is touching on concerns related to nuisance and amenity, rather than public health. I would be grateful if she would explain why we cannot ensure the health of subsequent users of a vehicle that has been used by a smoker by means of adequate ventilation or winding down the window.

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

Winding down the window may depend on the temperature outside and whether it is raining or snowing. We cannot conclusively say that just winding down the window will help people to deal with the smoke in the cab of a lorry. We are pursuing a smoke-free policy for certain vehicles for the same reasons as we are applying the policy to buildings. It is a combination of the health imperative and the fact that we are talking about environments in which   people work. Given the comments that have been made during the consultation period, I do not believe that the policy that we are pursuing goes against the grain for organisations for which employing people to drive vehicles is their bread and butter. I believe that the policy has been welcomed. We believe that a vehicle that is passed from one employee to another should be smoke-free.

If we apply the Opposition’s logic to rooms as opposed to vehicles, an employee who is a smoker who works in a particular office where someone else will come along to work a different shift could be told, “You can smoke while you’re there on your own, but when somebody else comes in for their shift, there is no smoking.” If we started to draw those lines, all sorts of management issues could arise, which would require unnecessary and burdensome regulation to define the point between the smoker working there and the non-smoker coming on to his work roster. Would one expect an employee to fumigate or clean a vehicle? It is not as simple as winding down a window.

Photo of Nadine Dorries Nadine Dorries Conservative, Mid Bedfordshire

Just for clarity, is the Minister saying that a commercial vehicle owned by a business or an organisation, whether or not it passes from employee to employee, would be a smoke-free environment? I am thinking of employees who smoke and drive a lorry, van or other vehicle all day. One person whom I know smokes and drives a lorry all day. Under this provision, he will no longer be allowed to smoke in that vehicle. He is in it for eight hours a day and, while he is there, the environment in the vehicle is his, not his organisation’s. Is the Minister now saying that second-hand smoke has a residual effect that causes harm? Is she saying that if somebody has smoked in a vehicle and somebody else gets into it at some stage, there will be residual effects from the driver’s smoking? That would take us into a new category.