Clause 9 - Offence of failing to prevent smoking in smoke-free place

Health Bill – in a Public Bill Committee at 5:00 pm on 13th December 2005.

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

Photo of Andrew Murrison Andrew Murrison Shadow Minister (Health) 5:15 pm, 13th December 2005

Clause 9 establishes the offence of failing to prevent smoking in smoke-free places. It could be called the “bang on the nose” clause, because it introduces the possibility of verbal or physical violence being visited on those whose job it is to run licensed premises.

When we discussed the level of management to which the proposal might apply the Minister gave us some comfort by saying that the person who had the potential to commit the offence of not having prevented smoking on the premises must be sufficiently high in the management chain for responsibility reasonably to be pinned upon them. However, the Minister was not sufficiently categorical, so if she will forgive me I will labour the point.

Many people who work in the sector are not particularly well paid. When they take on the job they do not expect to be given much management responsibility because that is not what they sign up to. Yet many of them are given high-falluting titles that suggest that they may have some sort of management function—I suppose the classic example would be the McDonald’s restaurants, where everyone is called an assistant manager. In practice, that means very little, but it implies that the person has some sort of management function and responsibility. Under the Bill, it is possible that individuals who are, in truth, at a very lowly level in an organisation will be blamed for having failed to stop somebody smoking, or at least interviewed about it. That would introduce a whole new angle on those jobs, which is not entirely appropriate.

I hope that the Minister can make it reasonably clear for the record how she expects the offence to work in practice and thereby protect people at the grass roots of the licensed trade and the hospitality sector from any possibility of being charged because they failed to tell someone to put their cigarette out. We should always remember that we are not talking about a normal situation, but situations in which a reasonable amount of alcohol may have been consumed, which may lead to more violence and a greater likelihood that, if challenged, an individual will react in an adverse fashion. By creating the offence, we potentially put people at risk.

We discussed the potential for enforcement officers to be at risk, but I suspect that as, regrettably, we now have 24-hour licensing, most of them will operate throughout the day, perhaps at lunchtime and probably earlier in the evening, rather than later which is when trouble tends to arise. There is a potential for inflammatory and difficult situations to arise in which junior, and perhaps quite young, people may be put at risk. It would be useful if the Minister commented on that matter and gave the Committee some assurance that those people will be protected.

It would be useful to discuss in which situations, other than those involving the licensed trade, the Minister thinks it would be appropriate for individuals to advise those who are smoking that they must put out their cigarettes. I am most concerned about the licensed trade but I suspect that other sectors will be involved, too. We do not want a Cambodian situation, in which we are all expected to tell others to act in a particular way for fear of being censured ourselves.

I am therefore concerned about the provisions, as is the LGA and the Chartered Institute of Environmental Health. With that in mind, it would be great if the Minister gave us a little reassurance that the offence created by clause 9 will not be used to criminalise those right at the bottom of an organisation’s management chain and that responsibility will be pinned at an appropriately high level in that chain.

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

I shall develop my hon. Friend’s point in relation to subsection (3), which makes it clear that the person whose job it is to ensure that a place is smoke-free can, in certain circumstances, commit an offence. My concern is not with the people right at the bottom of the management chain, but with those right at the top.

For the sake of argument, let us take the Palace of Westminster. These are premises in which people work and I am not aware that we exempted the Palace from the provisions of clause 2. There is therefore a duty on somebody who

“controls or is concerned in the management of smoke-free premises to cause a person smoking there to stop smoking” in the Palace of Westminster. The Palace is largely smoke-free, and so it should be. The Aye Lobby and the No Lobby are also smoke-free premises, and one should not to smoke in them. I am happy to say that when I vote with my party, which is 99 per cent. of the time, I do not see anybody smoking. More recently, however, I have voted with Government Members,   who have needed the support of Conservative Members from time to time, and I have seen people smoking. I have not bothered to do anything about that, because it would be churlish so to do, but as I understand subsection (3), the Serjeant at Arms, the Clerk or somebody else would be failing in their duty if they did not stop people smoking in the Lobby. The person who is smoking might not be charged with an offence, but the person whose job it is to ensure that the premises are smoke-free—this would apply anywhere, not only in the Palace of Westminster—commits an offence if he does not discharge that responsibility.

My hon. Friend the Member for Westbury said that it might be quite difficult for people to enforce the provision, but they will none the less commit an offence, and the clause goes on to specify what sort of offence that might be. It would be helpful if the Minister reassured us that she has thought the provision through, that it is in line with existing legislation for places where smoking is already banned, such as on railways, airlines and buses, and that it is broadly in line with the responsibilities that other countries have placed on management when introducing provisions such as those in clause 9.

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

I have a couple of observations to make. The tenor of Conservative Members’ remarks was that the clause could be too severe, particularly in relation to junior members of staff. I share the view that we do not want new, inexperienced junior members of staff to be put in a difficult position or to be unduly penalised. I therefore hope that the Minister will repeat the comments that she made at the start of the sitting, when she said that that is not what the clause means in terms of management and responsibility.

However, there is a contrary argument. Some suggest that the penalty is not severe enough and that it should be more severe. The rationale for that view is that in the Bill the manager of a premises who fails to prevent smoking is liable for a penalty of up to £200, whereas the maximum penalty in the Irish Republic is £2,000 and there is also a power to close the premises for three months, which is clearly very serious. The question is how seriously do we want licensees, landlords and managers to take the responsibilities in the clause?

We shall come to other enforcement issues, but there will clearly not be many enforcers and they will not be present much of the time, so the chances of being caught are pretty slim. My philosophy of criminal justice—I am sure that you have been dying to hear it, Lady Winterton—is that it is the fear of being caught, not the penalty, that is critical to ensuring compliance. In the present case, however, there is a low likelihood of being caught, because there are few officers who have to cover a lot of ground, perhaps late at night, so people will know that there are times when they will get away with the offence. If we combine a low likelihood of their getting caught with the fact that the penalty will be a couple of hundreds pound at the most, it makes me wonder whether the action to cope with the offence is sufficiently serious. Just as we want smokers and potential smokers to be subject to a cultural shift,   so we want managers to be subject to a cultural shift so that the offence of breaching clause 9 provisions is taken seriously and the punishment is not regarded as a token slap on the wrist so that people feel that they can commit the offence again.

As for the point made by the right hon. Member for North-West Hampshire, I worry less about the Division Lobbies in the Commons than about other premises because few enforcement officers will be allowed to carry a sword to enforce the law. Royal palaces are probably excluded from the Bill anyway, so that is not a particular concern. In ordinary circumstances, however, I am worried that little enforcement will take place.

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

I am about to finish by saying that if the fine is a slap on the wrist, we might not achieve the cultural shift that we want.

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

Members of the Committee will be aware that, from Easter this year, virtually all parts of the House of Commons were designated smoke-free. The palace is Crown property, so it is not covered by legislation. That said, if the right hon. Member for North-West Hampshire finds himself in that position again, I am sure that the Serjeant-at-Arms would be willing to send a letter to all MPs reminding them of the non-smoking areas in the House of Commons. I hope that that might be enough to encourage compliance with the rules under which we are asked to work.

I take the point made by the hon. Member for Westbury. Let us imagine that we are in a public place such as a supermarket, a small shop, a café or restaurant, a pub or even a leisure centre and someone comes into the building, perhaps worse the wear for drink, and makes a nuisance of himself. He might not be under the influence of anything, but he is making a nuisance of himself. Dropping litter, vandalising parts of the building and smoking in a smoke-free establishment are challenges that are faced daily by people who work in such environments and they must be dealt with in different ways. Organisations such as the Union of Shop, Distributive and Allied Workers have a campaign in respect of violence and abuse towards shop staff, which I very much welcome and commend. It is the reason why it has been engaged with the Government on anti-social behaviour issues.

I am not complacent about problems faced by employees who have to deal with the public in bars and elsewhere. They might have to ask a person to desist from doing something or to curtail a certain activity. Clearly, it should be a company’s policy to advise its staff on the action that they should take and on where they should seek advice and support—even from security staff—to deal with situations when it is likely that the person in question will not go away quietly.

Photo of Andrew Murrison Andrew Murrison Shadow Minister (Health)

The Minister has given us some examples of situations in which there may be potential problems, such as when people are violent or the worse   for wear because of alcohol. Does she accept that some people naturally appear to be aggressive and intimidating? That might be a cause for someone to back off. People are different: some are assertive, some are not. What assessment can be made of both the person committing under an offence under the Bill and the person who is smoking? To what extent will subsection (4)(c) be a defence if the offender, the smoker, is a big intimidating individual and the person who would be criminalised under the clause is not particularly assertive?

Photo of Caroline Flint Caroline Flint Parliamentary Under-Secretary (Department of Health) 5:30 pm, 13th December 2005

I think that I said that in my opening remarks that there may be occasions when someone under the influence of anything can act aggressively. Another factor is that we come in all shapes and sizes, and people who may look as if they could be aggressive turn out not to be and others who may look as meek as lambs can turn nasty if asked to desist from doing something. Employees who deal with the public have to face such situations every day, but we do not suggest that people should put themselves in danger when trying to ensure good order. That is important.

As I said earlier to the hon. Member for Northavon, the responsibility lies mainly with those who control or manage smoke-free premises. It would be a defence for a defendant to show that he had taken reasonable steps to stop a person smoking—that he had requested a person to stop smoking, but the person simply continued—or that he did not know and could not reasonably be expected to have known that a contravention had occurred. A person could be given false information by an employee; or a scenario could occur in which a friend of the employee’s—I hope it would not happen—decided to look away and not pass on information to the employer, but another customer decided to refer the matter to the local authority. In such situations, the manager might be held to account for something of which he was not aware, but he could not be held responsible for it. I can think of other examples. For instance, staff sometimes have to give priority to other legal duties. For example, while a shoplifting episode or something else is happening in a store—perhaps someone is having a heart attack—the staff dealing with that situation could fairly claim in defence that they could not at the same time handle the fact that someone had walked in with a cigarette. In such situations, one has to apply common sense.

The hon. Member for Westbury spoke about alcohol, but there will be exemptions for bars that do not serve food. That will give those who want a drink the option to have a cigarette at the same time. It is not necessarily the case that people have no choice: they have the choice of going somewhere else. It is fair to say that choice could help to dampen concerns about aggressive individuals being asked to smoke elsewhere. That is an important point to make, because the hon. Gentleman made a lot about the mix of alcohol and smoking in bars and the fact that it might be a problem to tell someone who had had a drink that they could not smoke. We have discussed at length the fact that we are exempting bars that serve only alcohol, so there   is a choice. Smoking is not totally cut out. I hope that I have covered all the points made by the hon. Member for Westbury.

As for the points made by the hon. Member for Northavon, I said earlier that I was still considering the question of deterrence. Part of our consultation dealt with those who control or manage establishments. The view was expressed that the fines should be higher and I am reflecting on that. I must also take account some of the other questions raised about the fine. A fine of up to £200 is proposed; that is the amount on which we consulted. I would be very interested to hear the views of members of the Committee—if they do not want to say now, they can let me know informally—on whether it is sufficient, especially as some may feel that it is a price worth paying given the takings on Friday and Saturday nights. That is a valid point. If we think of the thousands of pounds that can be made over the weekend in some licensed establishments, it may seem that it is worth risking some of the fines. I am thinking about that.

I am also thinking about repeat offences. I would prefer there to be few repeat offences. I hope that offenders will realise the error of their ways, decide that the fine is not a price worth paying, and deal with the issue themselves. Again, I would welcome the views of others on that, either in Committee or outside it. I hope that the Committee will let clause 9 stand part of the Bill.

Question put and agreed to.

Clause 9 ordered to stand part of the Bill.