Clause 6 - No-smoking signs

Health Bill – in a Public Bill Committee at 12:15 pm on 13th December 2005.

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Photo of Steve Webb Steve Webb Shadow Secretary of State for Health 12:15 pm, 13th December 2005

I beg to move amendment No. 49, in clause 6, page 4, line 22, leave out from ‘he’ to end of line 30 and insert

‘took all reasonable precautions and exercised all due diligence not to commit the offence’.

Photo of Ann Winterton Ann Winterton Conservative, Congleton

With this it will be convenient to discuss amendment No. 50, in clause 6, page 4, line 31, leave out subsection (7).

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

On the assumption that there will be a whole or partial ban in various sorts of premises, the way in which that is indicated to those who work there or are customers there is important. I suspect that we shall come to the wider issues of signage later, but the amendments deal with the basis on which somebody charged with failing to ensure that signs are displayed can offer a defence.

To follow the logic of that, subsection (6) sets out the circumstances in which a person charged with an offence under subsection (5) can offer a defence. Subsection (5) says that it is an offence to fail to comply with the duty in subsection (1), and subsection (1) explains that the duty is

“to make sure that no-smoking signs complying with the requirements of this section are displayed ... in accordance with the requirements of this section.”

Therefore, the offence is failing to ensure that proper signage is displayed.

Amendment No. 49 deals with the fairly convoluted formulation of subsection (6), which sets out the basis on which people can offer a defence, such as

“he did not know, and could not reasonably have been expected to know”.

The amendment offers a much simpler formulation. It takes out paragraphs (a), (b) and (c) and simply says:

“took all reasonable precautions and exercised all due diligence not to commit the offence.”

That seems to us to be a simple and all-embracing way to put it.

I looked at the explanatory notes to the Bill, which suggest various instances in which paragraphs (a), (b) and (c) might be appropriate. Paragraph (a) says that it is a defence if someone could not reasonably have been expected to know that the premises were smoke-free. The example given is where there is a dispute about what wholly or partially enclosed means. My understanding is that we are talking about proprietors, whose duty it is to put up signs; we are not talking about punters—customers—smoking where they should not. We are talking about the failure of owners, proprietors, managers and so on to make sure that there are signs.

I find the paragraph a bit odd, in the sense that premises do not change much. One could imagine a marginal case in which the proprietor thought that a percentage threshold in the regulations was about 49 per cent. and the inspector thought that it was 51 per cent. They may be the sort of circumstance that the Government have in mind here, but it seems to us an unnecessarily convoluted way of putting it. That sort of case would be caught under our formulation, which deals with whether reasonable precautions were taken and due diligence shown. There is nothing in that kind of example that does not fall within our simple formulation.

The same is true of subsection (6)(b), which says that a proprietor could not reasonably have known that no-smoking signs were not being displayed. The example given in the explanatory notes is where the signs have been vandalised. In other words, the proprietor, acting in good faith, has put the signs up and somebody has come along and pulled them down; he did not know that and could not reasonably have been expected to know that. Again, that seems to me to come under the scope of due diligence. One might reasonably expect a proprietor to put the signs up and check from time to time that they are still there, so again I do not see why we need this complex formulation.

I am also a little confused about paragraph (c). The explanatory note suggests that while it might be a fair cop to say, “The vandals have just taken the sign down”, to say six months later, “They took it down six months ago,” would not be. We want the clause to provide a simple principle that will be applied if action is taken, and the principle of due diligence and reasonable precaution seems to us to be preferable, simpler and widely used elsewhere.

Linked with amendment No. 49 is amendment No. 50, which removes subsection (7). As I understand it, subsection (7) is about the burden of proof. It seems to say what one would expect. In other words, if someone says, “It wasn’t reasonable for me to have known about this because the vandals took the sign down last night and I haven’t been round yet”,   subsection (7) says that the court will accept that unless the prosecution proves beyond reasonable doubt that it was not the case. I simply assumed that the court had to prove its case beyond reasonable doubt and that the proprietor or landlord was innocent until proven guilty.

We propose to remove subsection (7) so that the Minister will tell us what it adds to the stock of human knowledge. What does it add to the procedure? What does it gain us? As ever, we want simplification and briefer legislation. Our amendment would achieve that, and we look forward to the Committee accepting it.

Photo of Andrew Murrison Andrew Murrison Shadow Minister (Health) 12:30 pm, 13th December 2005

On the face of it, the hon. Gentleman’s amendment seems reasonable. I am a little concerned, however, that it will clobber proprietors. I wonder what consultations he undertook before tabling his amendments with those whose business it is to run licensed premises, who might be quaking at the thought of the amendments being accepted because of the prospect of their suddenly becoming criminals.

I am not sure that I agree with the hon. Gentleman. He seems to be introducing an unwarranted level of ambiguity and to be trying to remove a defence that individuals might rely on. I am thinking of large operators, who are responsible for a number of sites. With the best will in the world, it will be extremely difficult for them to police the signs erected all over the place as a result of the legislation. Once again, we have to consider the fact that we might give lawyers a field day.

I know where the hon. Member for Northavon is coming from. He is pursuing his vehemently anti-smoking line, but probably to the nth degree. This is the first time I shall be complimentary about the Bill. It attempts, in a reasonable way, to provide a defence for people acting in good faith to comply with the legislation. Imposing penalties on operators while removing that defence, which is reasonably elegantly laid out in the Bill, seems unhelpful and will almost certainly upset proprietors, particularly those of licensed premises and those who work remotely, perhaps managing a number of premises. They would be quite concerned about the amendments were the Committee to accept them.

The hon. Gentleman says that he has tabled an amendment that would delete subsection (7) in order to tease the Minister on what it would mean were it removed. It is all very well to say that—we all do it—but he knows full well that it would remove the defence on which individuals might reasonably rely. Members of my party would be reluctant to see that subsection removed, and I am sure that the Minister is about to tell us why it should remain.

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

As has been said, subsection (6) sets out the defences available when a person is accused of not complying with a requirement to display no- smoking signs in smoke-free premises, additional smoke-free places under clause 4 and smoke-free vehicles. When there is an offence we clearly have to be mindful of a person’s opportunity to have a defence.   We have discussed the clause with our legal advisers and the Home Office with regard to these offences, which include a person not knowing or not being reasonably expected to know that he or she was not complying with the requirements set out in regulations. Ireland has gone for a total ban and there have been very few prosecutions, which is encouraging from the outset. I am hopeful that the same will apply in England. That said, we need to have some offences to cover breaches of the law. We need to engage with that in relation to the risk consequences and what the defence will be.

Amendment No. 49 would change the defence to having taken

“all reasonable precautions and exercised all due diligence”.

Lawyers have advised me—I am not a lawyer—that that could allow a slightly broader range of defences, or, in other words, make it a little easier to defend oneself against prosecution for the offence. However, I suppose that one can speak to lots of different lawyers and they will supply lots of different viewpoints. In reality, the difference is small. Subsection (6)(c) already provides a general defence that on other grounds it was reasonable for a person not to comply.

We decided on the defences in subsection (6) to ensure that defences were available if a person genuinely did not know that he was not complying with the requirements. I am sure that we can think of different scenarios. Someone who worked in an establishment might not have been informed that they should check the notices every day. A defence could be that a notice had fallen down but the person was not aware of it. However, the prosecution could then look at the notice and say, “Well, even though it did fall down, it did not comply with the regulations,” so there would be a defence for one aspect but not the other. We want to ensure the greatest possible chance of a successful prosecution where an offence has been committed. I feel satisfied that the subsection achieves that aim so I am not persuaded of the case for revising the defences.

Subsection (7) specifies that the prosecution must prove beyond reasonable doubt whether an offence has been committed under clause 6 where a person provides evidence to support a defence. My understanding is that that is in line with offences under other health legislation. If the hon. Member for Northavon is interested, I would be pleased to give him examples of those areas, but I have not got them to hand at the moment. That was one of the issues in applying the clause in this way.

Amendment No. 50 would remove subsection (7). That would make it less clear what burden of proof the prosecution had to discharge. It is important for everyone’s sake that that is made plain in the Bill. If the case is not proved beyond reasonable doubt, all the defendant has to do is give some evidence. He does not have to prove the evidence. The provisions are fit for purpose, but, as I have said before, I hope that prosecutions of this kind will be few and far between, based on the success in other countries and presumably in other jurisdictions of the UK.

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

Naturally, none of us wants lots of prosecutions. Will the Minister comment on the point raised by the hon. Member for Westbury. Who will be prosecuted? Will it be the local landlord, or the senior manager of the region? That has some implications for who provides the defence and who could reasonably be expected to have done what. Will she clarify who will be in the dock?

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

Subsection (1) states:

“It is the duty of any person who occupies or is concerned in the management of smoke-free premises to make sure that no-smoking signs” comply with the requirements. I suggest that that is not necessarily the licensee. It could be someone managing an establishment or someone who, in their job description, has responsibility for ensuring that certain aspects of running the premises are carried out. For example, in other areas of legislation, responsibilities relating to the sale of alcohol are set out. Those responsibilities could apply to the owner or manager of the premises, but they could also apply to the bar staff. That is my interpretation, but I am happy to follow it up to ensure that I am correct.

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

The hon. Member for Westbury accused me of wanting to impose draconian penalties on the nation’s landlords, but the Minister now accuses me of being soft on errant landlords. Perhaps that means that I have got it right. It certainly was not our intention substantively to alter the severity or otherwise of the penalties. From what the Minister said, the difference between our formulation and the Government’s is slight. I prefer ours, but that may be a matter of taste.

I am puzzled by subsection (7). Although I am not a lawyer, it seems that the default position is not that one is innocent until proven guilty—that the onus is not on the prosecution to prove that what one says is not so. I am surprised that it has to be spelt out each and every time that an offence is created. One ought to be able to say, “The prosecution has to prove it, guv’nor.” It surprises me, but perhaps that is the way of the world. I am surprised that it has to be spelt out; if that is so, we will have to leave it in the Bill.

As I said, my preference is for the formulation in amendment No. 49. However, it is a fairly marginal difference, and we certainly do not intend to lessen the penalty for a failure to display those signs. 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. 62, in page 4, line 36, leave out from ‘exceeding’ to end of line 37 and insert

‘level 1 on the standard scale’.

Photo of Ann Winterton Ann Winterton Conservative, Congleton

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

No. 63, in clause 7, page 5, line 14, leave out from ‘exceeding’ to end of line 15 and insert

‘level 1 on the standard scale’.

No. 64, in clause 9, page 6, line 6, leave out from ‘exceeding’ to end of line 7 and insert

‘level 1 on the standard scale’.

Photo of Andrew Murrison Andrew Murrison Shadow Minister (Health)

This is a straightforward set of amendments; I shall not detain the Committee.

The Bill pretty well gives the Secretary of State the ability to set the penalty for offences under clause 6. In other parts of the Bill, the point on the standard scale to which offences are pegged is set out explicitly. The purpose of the amendments is not to be didactic about the level at which the offences should be pegged on the standard scale—we suggest level 1—but to press the Minister to include in the Bill the point on the standard scale at which it is appropriate that those offences should rest. It seems inappropriate that the House should allow the Secretary of State to set the level of the offence. Given that the level is clearly established elsewhere in the Bill, it seems appropriate that clause 6 should do the same.

The amendments suggest that the clause be altered to reflect level 1 on the standard scale. They are not meant to suggest that level 1 is necessarily where it should be, but rather to press the Minister to make clear in the Bill where she feels it is appropriate for the offence to rest, having regard to proportionality and ensuring that other offences are not degraded by virtue of pegging the offence at an inappropriately high level. That is what we intend. I would be grateful if the Minister would say why a level is not stipulated in the Bill, and perhaps consider whether it would be appropriate to do so, particularly as clause 6 seems exceptional in that its offences do not come with what I might call a tag to show the penalty that should accrue to those who offend.

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

As the hon. Gentleman has said, amendments Nos. 62 to 64 are designed to specify in the Bill the fine levels for the offences of failing to prevent smoking in smoke-free places, smoking in a smoke-free place and failing to display no-smoking signs in smoke-free premises.

We conducted a consultation over the summer in which one question was about the level of fines. We proposed a fixed penalty of £50 for the offence of smoking in smoke-free places. On a summary conviction for the offence of failing to prevent smoking in smoke-free premises and the offence of failing to comply with signage requirements, we said that we intended to prescribe in regulations a fine up to level 1, which is at present up to £200. We intend that the regulations will prescribe a fixed penalty of £50 for the offence of smoking in smoke-free premises. That is the same amount as for the offence of consuming alcohol in a designated place. The next level of penalty is £80, which covers offences such as behaviour likely to cause harassment, alarm or distress. It is not appropriate to put the smoking offence in that category. The hon. Gentleman is nodding, so he agrees. We accept that the appropriate fine for a smoker who did not pay a FPN would be a fine not exceeding level 1 on the standard scale.

That said, a large number of respondents to the consultation felt that the penalty amounts were too low, particularly in relation to the offences of failing to   prevent smoking in smoke-free places and failing to display no-smoking signs in smoke-free places. Comparisons were made with the €3,000 fine in Ireland. The point was made that if fines were too low and there was no escalation for repeat offences, some businesses might prefer to pay fines as a business cost to secure revenue from smokers.

In the light of that, we have been in further discussions with the Home Office on the appropriate fine levels for those two offences. The Home Office has advised us that it feels that the fine for the offence of failing to prevent smoking in smoke-free premises should be at a higher level. I am considering that advice in some detail and I will set out our final intentions on Report. Based on what has come forward quite recently from the Departments, I am considering the matter further. It is important to show that we are serious about where the ban will apply. People running establishments will need to be mindful of that. As I have said, I hope that the need for prosecution will be such that prosecutions are few and far between.

Photo of Crispin Blunt Crispin Blunt Opposition Whip (Commons) 12:45 pm, 13th December 2005

Will the Minister be clear about what she will do on Report? There is a feeling among Opposition Members that the maximum limit on the scale of the penalties should appear in the primary legislation; it should not be left to regulation to impose that maximum limit. Does the Minister propose to return on Report, having finished her consideration in the Department, and to amend the Bill, which would be the preferred course of action, or is she saying that she will simply make an announcement? We may not reach this matter on Report. I am sure that she will find a way to get it on the record, but we may have limited time. Can she explain whether she will give a verbal assurance or place the maximum limit in the Bill?

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

I am not minded to place it in the Bill, because in line with other areas in which penalties apply, there are issues about the flexibility to make changes based on experience. I do not want to set a precedent in this area that would not necessarily apply to other areas in which regulations are used. In terms of discussion in the House, these matters would form part of an affirmative resolution process.

On the other point made by the hon. Member for Reigate, about what happens if there is not enough time on Report, I am actively considering the issue. I shall reflect on what has been said and on what I can achieve by way of a clearer steer on where we are going with it. I hope that that will suffice for now. I do not want the matter to be left for Report, as this part of the Bill might not be reached and people would not have another chance to discuss it. As I said, the issue will be subject to draft regulations, at which time wider views will be expressed, and to the affirmative resolution procedure.

It is my wish—and everybody’s wish, I am sure—that the measures in the Bill will be self-enforcing, and that there will be little need for prosecution. Having said that, we must be serious about the proposals and, clearly, we should not leave loopholes for people to take advantage of, or allow repeat offences for which   there can be no taking into account the fact that the offending involves more than one mistake—a repeat offender situation. It is important that the fines reflect that. As I said, I am considering what came out of the consultation, and discussing the appropriate level of fine with the Home Office.

Photo of Andrew Murrison Andrew Murrison Shadow Minister (Health)

We have had a useful debate. The Minister admits that she does not expect a raft of prosecutions under clause 6, but that is slightly at odds with the notion that we should not peg the offence at a particular level. Indeed, the likelihood of offences is related to the point at which one pegs the penalty. I hope that that is the case, otherwise it would make a mockery of our justice system. There is a disconnect somewhere that we will have to explore at a later stage.

I am grateful to the Minister, up to a point, for the reassurance that she has given, although I believe that the concerns of my hon. Friend the Member for Reigate are well founded. Overall, this is a rather small part of the Bill, so I am not inclined to detain the Committee on it too long or to press the amendment to a Division. Nevertheless, we have identified an area that needs further work, and I am pleased that the Minister will think about it. We must get the proportionality right. I believe that most people would say that level 2 is probably inappropriate for this offence, on the basis of the description that the Minister gave of level 2 offences.

I also hesitate to support the Minister’s contention that there would be a perverse incentive at level 1 for people simply to take the fine on the chin and say, “It’s cheaper than providing adequate signage.” The Minister said that she does not expect many cases to be brought for the offence, and I also suspect that that will be the case. It would be extraordinary for a company or a licensee to go to the trouble of turning up in court, with all that that means in local publicity and so on, in order to circumvent the expense of providing signage. In summary, I agree with the Minister that repeat offences must be dealt with seriously. We have no doubt that that would be the case, given what is in the Bill.

I am not prepared at this stage to press the matter. I hope that we will reach this part of the Bill on Report and have time to debate it, and that the Minister will come back with some answers as to why she cannot peg the penalty at the appropriate level. On reflection, and given the Minister’s description, that would seem to be level 1. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Question proposed, That the clause stand part of the Bill.

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

I think that this is the appropriate point at which to ask a general question about the clause, which creates a duty to display no-smoking signs. The clause makes sense in the narrow context of the Bill, but a rather awkward issue arises if one stands back and puts the Bill into perspective.

The Bill is a stage on a journey, at the beginning of which smoking was the majority activity and was permitted everywhere. At the end of the journey is a presumption that smoking is not a permitted activity and that non-smoking is the norm. We are moving down that path, and as we do so, we preclude smoking as an activity from more and more places. It therefore makes sense to indicate where smoking is banned as one goes down that path.

There comes a point, however, when the see-saw begins to tilt and non-smoking is the presumed activity. At the moment, it seems that the clause will be there for ever and a day, whereas I want there to be smoking signs. In other words, I want there to be a presumption that one cannot smoke anywhere, and that signs are put up in the minority of places in which smoking is still permitted, thanks to the Secretary of State for Defence. It appears that we cannot change the terms of trade or the centre of gravity without primary legislation to change the clause.

It is illegal to perform many activities in public, but there are no signs that say so. I remember signs in France that said, “Défense de Cracher”, which means no spitting. There are no such signs in this country; they are not needed. Will the Minister say at what point we have reached the critical stage where we do not need no-smoking signs because non-smoking is the norm, and where we need instead signs that say “Smoking”? When we have reached that paradise, which I hope will not be too far in the future, will we need primary legislation to amend the clause by deleting the “No” at the beginning of the title of the clause so that it reads “Smoking signs”? Is there another way around this that does not enshrine in legislation the fact that no smoking is the protected activity and that allows us to take that step forward?

It would be helpful if the Minister could say a little about the stage at which no smoking is the norm and we do not need all these signs that will pop up everywhere.

Photo of Crispin Blunt Crispin Blunt Opposition Whip (Commons)

I reinforce my right hon. Friend’s views. Stocksigns, a company in my constituency that makes signs, enjoyed a rare bonanza when the fire regulations insisted on a vast increase in fire exit signs and the rest, and I realise that the mouths will be watering at the prospect of the regulations being enforced if that means that we are to identify every place in the country as a no-smoking area and if a duty is to be laid on establishments everywhere that are non-smoking, which will be a significant majority of establishments of one form or another.

I can only say that unnecessary, bossy signs are a disagreeable part of the environment, and I sincerely hope that the Government will include a sunset clause in the regulations when they introduce them. It should not take very long to reach the tipping point that my right hon. Friend mentioned if, as he says, the Bill and this measure are another stage on the journey that he described. We are quite near that tipping point already, and no-smoking signs will be unnecessary very shortly. I therefore hope that a sunset clause will appear in the regulations.

Photo of Andrew Murrison Andrew Murrison Shadow Minister (Health)

My right hon. Friend the Member for North-West Hampshire and my hon. Friend the Member for Reigate (Mr. Blunt) are absolutely right that we risk the clutter of yet more signs, and although I do not want to deprive my hon. Friend’s constituents the business that appears to be coming their way, allowing for smoking signs rather than non-smoking signs would be a sensible way ahead. I am very sure that outside bodies that deal with sensitive sites in particular would also be interested in that—

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

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