Clause 10 - Enforcement

Health Bill – in a Public Bill Committee at 5:30 pm on 13th December 2005.

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Photo of Steve Webb Steve Webb Shadow Secretary of State for Health 5:30 pm, 13th December 2005

I beg to move amendment No. 76, in clause 10, page 6, line 15, at end insert—

‘()In making regulations for the purposes of this Part, the appropriate national authority shall consult with organisations representing those enforcing this legislation.’.

We continue with the subject of offences, but are moving on to enforcement. As the Committee will be aware, the clause deals with which national authorities have responsibility for enforcement and to whom those responsibilities may be delegated. There is talk of an authorised officer doing the enforcement.

The purpose of the amendment is to stress to the Minister that we are keen for regulations on how enforcement should take place to be drawn up in close co-operation with, as the amendment says,

“organisations representing those enforcing this legislation.”

We have in mind groups such as the Chartered Institute of Environmental Health and the Local Government Association—the front-line staff with the expertise from which we hope the Government will benefit. We had an exchange in which the Minister said that her instinct is that those people know all about fixed penalty notices. That was the tenor of her remarks. The response was that the associations have said that their people do not do that kind of thing and that this is new territory for them.

A number of issues are involved. I shall try not to repeat what has been said, but clearly some of it is germane to why we need to listen to organisations, certainly on safety. Let us imagine a crowded pub—we are getting slightly obsessed with pubs, but this is an obvious example—where people are fairly well oiled and more than one person is smoking. In a way, if there is just a lone smoker, enforcement is not so much trouble, because there will be much more peer pressure. However, it will be harder to approach a group of smokers, so in such a case we should assume that there would be not one environmental health officer, but two or more.

As I understand the clause, environmental health officers do not necessarily have police powers, such as the power of arrest or power to demand identification, but it would be helpful if we were slightly clearer about that. The Chartered Institute of Environmental Health is concerned that a spot fine will be ineffective

“unless it is linked to police powers to require the production of identification, detain and if necessary arrest offenders.”

It is referring to the risks to enforcement staff. Clearly, we do not want to put enforcement staff in a dangerous position, so I hope that when organisations make representations to the Minister, the Government take account of them.

In parentheses, I should say that when the amendment says, “shall consult with”, implicit is “and shall take notice of what they say”, but I do not think that we will be able to include that in the Bill. There are precedents in relation to the smoking ban issue in which consultations were held but notice was not taken of the results. We want the Government to listen to, and act on, what the organisations say. We are highlighting concerns about safety and shortages of enforcement officers.

A recent survey conducted by the Chartered Institute of Environmental Health has revealed a national shortage of some 700 environmental health professionals throughout England, Wales and Scotland. Presumably, several hundred more will be required to enforce the legislation, so the question is where those people will come from.

I do not imagine that people will queue up to reply to an advertisement for people willing to spend their Friday nights going into crowded pubs, approaching drunks and asking them to put out their cigarettes or giving them fixed penalty notices. I support the legislation, but the Government will have to learn more from what the people on the front line are saying if they are going to get this right and enforce it effectively.

I appreciate that there is time before the regulations are introduced, as the amendment implies, but I would be grateful for any assurance from the Minister that she will listen to the professional institutes now. Given the shortage of environmental professionals, we need to train new people to do these jobs, which clearly will take a long time, so the sooner the Government listen and act on the recommendations of those professional bodies, the better.

We have not yet got to the bottom of the issue of enforcement officers asking for proof of identity, as we assume they will have to do. As I said, the CIEH has said that its enforcement officers need those powers. I do not know what pubs you go into, Lady Winterton, but many of the people I go to pubs with do not carry identity. They may have a credit card with their name on it, or a driving licence, although obviously we encourage people not to drink and drive, or they may not. Until the happy day arrives when the Government require us to produce an ID card when we buy a drink, it is not clear how enforcement will work.

What is an environmental health officer meant to do if he asks the name of someone who is smoking and that person comes up with a name but cannot prove it? Car drivers, for example, have to produce documents, so the car is a fixed reference point from which to determine a driver’s identity, as we have discussed. In the case of an individual, however, the amendment probes the question of how confrontational the environmental health officer will have to be in such circumstances. If someone gives an implausible identity, will the officer have to ask for proof? What are the powers to do that? The professional bodies have strong views that I hope the Minister will take into account.

I am aware of the broader debate to be had on the clause as a whole, so I shall not persist with my argument. I hope that the Minister will assure us that she already has plans to listen to what the professional bodies are saying and to take action to deal with the very serious shortage of people to enforce the legislation.

I have another point to make in parenthesis. Mention has already been made of the public being able to ring a number and report a smoker. How far will the work of the professionals who must enforce the provision be reactive and involve going to a known problem area to deal with problems and report them? In which case, will they have sufficient numbers to overcome those problems and how far will this be proactive, involving touring the bars and pubs to see what they can find, which is a very different model of enforcement?

Again, I hope that the Minister will listen to what the professional bodies believe to be the most effective way of enforcing the legislation, which I want enforcing just as much as she does.

Photo of Eric Illsley Eric Illsley Labour, Barnsley Central

I call the hon. Member for Westbury, who has almost stood up.

Photo of Andrew Murrison Andrew Murrison Shadow Minister (Health)

I believe that I made my intentions clear this time, unlike on previous occasions when I may have been a little more subtle.

There is a great deal of sense in the amendment tabled by the hon. Member for Northavon. It is clear that Ministers have not adequately explored the implications of the Bill with various interested organisations, otherwise the Local Government Association, for example, would not have volunteered the fact that its members’ employees are not at all   familiar with fixed penalty notices. It was quite explicit about that. We might already have ironed out some of these issues if the Minister had consulted the LGA, the CIEH and the Health and Safety Executive a little more fully. I mention the HSE because the guidance notes do not restrict the definition of enforcement officers to environmental health officers. I am a little confused about who might be considered enforcement officers, even at this stage.

A number of organisations are potential consultees, and I hope the Minister will approach them before she makes any regulations. The amendment’s purpose is to reinforce in her mind the need to consult such organisations before she takes the regulations further.

That is all I want to say at this juncture. I am aware that we may, if we are very lucky, have a clause stand part debate, during which I would like to explore the clause a little further. I support the hon. Member for Northavon, whose point is extremely well made. It is regrettable that the amendment is necessary. It seems, given the representations on the Bill that we have received from various organisations, that, arguably, we have got off on the wrong foot, as it has been suggested that Ministers have not consulted as well as they should. They would be well advised to do better in future. With that in mind, I am inclined to support the hon. Gentleman.

Photo of Caroline Flint Caroline Flint Parliamentary Under-Secretary (Department of Health) 5:45 pm, 13th December 2005

The discussions are ongoing, and I have made that quite clear. There will be draft regulations, which I shall ensure are informed by discussions and consulted on before being subjected to the affirmative resolution procedure. There is no suggestion that all the issues have been resolved. Some areas have to be considered further, and details of those have to be provided.

When I mentioned fixed penalty notices, I was not suggesting that environmental health officers have the necessary experience in issuing them. However, I find it hard to believe that in our environment—with regard to local government and the steps taken to tackle antisocial behaviour in our communities—environmental health officers, trading standards officers, community support officers and those working for councils in partnership with the police and others are unaware of fixed penalty notices as a means of curtailing inappropriate activity in the community.

I hope that, as part of the discussions with the relevant organisations, there might be a debate with those within and outside councils on how fixed penalties are applied in the community. That might be helpful and give an indication of the issues and problems, as well as the opportunities, that fixed penalty notices provide.

I agree with the sentiment behind the amendment tabled by the hon. Member for Northavon, but it is unnecessary to include it in the Bill because we have already agreed to do this. Indeed, we are already doing it. That is one reason why we deferred to the independent consultants used by the Chartered Institute of Environmental Health when it devised a range of estimates of what the costs may be—between   £7 million and £20 million. That shows that we continue to listen to those who can support us in this area.

Consultations will continue to take place. A number of issues have been raised by hon. Members relating to points made in the briefing by the LGA and others. I will ensure that officials deal with those points and that they form the substance of continuing discussions with those organisations. As I have said, we all desire the draft regulations to be informed by those consultations and we will give a further opportunity for consultation once they are published.

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

Will the Minister reassure me on this point? Clearly, representations have already been made and discussions have taken place, but my point is that I am not convinced that enough notice has been taken of what has been said. Given that organisations have already raised the point about the shortage of people to do the job, what are the Government doing about that?

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

On the surface, it is difficult to raise an issue about the shortage of people to do a job when it has not yet been determined how much work will be involved. It is common sense to recognise that in other jurisdictions where restrictions or bans have been brought into force the experience is that enforcement has not been as necessary as people might have thought.

There has been huge self-enforcement and compliance, and it is difficult to determine at this stage how many extra environmental health officers, trading standards officers or others may be necessary to enforce the legislation. A common-sense approach is important. In the lead up to the enforcement of the legislation, it is important that, within local communities, there are discussions with establishments that will be obliged to be smoke free as to their responsibilities under the law, where they can go for extra advice and how to sort out the signage. There should be discussions in local communities about how best to enforce the legislation.

On the point about compliance, I have to admit that some activity will be reactive, but, to be honest, I would suggest that quite often environmental health officers and others react to information that they are provided with in order to ascertain whether an establishment is flouting the law in an ongoing way. They have to deal with that in all sorts of areas—this will be just one of them.

In the same way, trading standards officers often have to respond to information and intelligence provided about selling cigarettes, alcohol or glue—and in the future, with the legislation that is coming in, knives—to those who are under age. That is nothing new, so I do not think that some of the points are particularly well made. However, I can assure the Committee that I will ensure that all the points are discussed. We may not agree with some organisations all the time, but that is part of the consultation process. We want to ensure that the Bill works and is effective, because it is in no one’s interest to have ineffective legislation.

On the point about identification, paragraph 2(e) of schedule 2 sets out the requirement for an individual to give information to an enforcement officer. Not giving correct information may be an offence. My advice is that that deals with the point about the provision of a name and address. I will seek further assurance on that and also take the time to look at how it applies in other circumstances, when fixed penalty notices are used for other reasons but operate in a similar framework. However, my understanding is that that provision basically provides that power or influence to an enforcement officer.

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

I accept that paragraph 2(e) of schedule 2 appears to give enforcement officers the power to ask for the information, but what will happen if the individual says that they cannot prove who they are? What is meant to happen then?

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

Again, that issue will have to be considered. The enforcement officer may want to ask the publican or others, if the person in question is with a group, whether they can confirm who the person is. I imagine that that is not the only time that we will be confronted with a situation in which people want to find a way to get around having to declare their identity to those who have a right to ask for it. Those issues must be thought through.

We need to be clear about the powers of the environmental health officer, or somebody else who may be designated to undertake the role, and take advice and find out what would happen in the other circumstances that, for different reasons, apply just as well. There may be other circumstances involving police officers, rather than environmental health officers, who may find that someone says, “I’m Bert Bloggs, but I can’t prove who I am.” We must have discussions with people about how they deal with such matters and, in doing so, ensure that the powers are proportionate and reflect the individual citizen’s rights under the law.

I hope that, given my assurances about the ongoing discussion on enforcement, the consultation in relation to draft regulations and the affirmative resolution procedure, the hon. Member for Northavon will withdraw his amendment and we can move on to the clause stand part debate.

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

I am only partially reassured by the Minister. I do not doubt for a moment her good faith, or that discussions have happened, and I do not even doubt that further discussions will take place, but I do not get a strong sense from her response, and some of her comments earlier this afternoon, that the Government understand that “consult” means “consult, take account of and act on”, not merely “be in the same room as”. A lot of issues need ironing out.

The Minister implied—I hope this is not an unfair paraphrase—that the law is not coming in for a couple of years so the Government cannot know how many environmental health officers will be needed. Given that it takes six years to train a dentist, an environmental health officer cannot be generated overnight. Forward planning is needed. The professional organisations we are talking about are   saying that now, but the Government are saying, “That is years down the track and it is absurd to talk about it now.” There is a disjunction.

Likewise, we all know what a fixed penalty notice is, but the professional bodies are saying something stronger—that they have no experience of dealing with them. The Minister seems to think that that is not a problem, because someone else in the council hands out fixed penalty notices, so environmental health officers should just talk to them. That response is complacent and the effectiveness of the ban that we Liberal Democrats want may be undermined if the Government are not obligated to listen and learn from the professional bodies.

I will not withdraw the amendment, because I wish to test the view of the Committee.

Question put, That the amendment be made:—

The Committee divided: Ayes 7, Noes 8.

Division number 3 Nimrod Review — Statement — Clause 10 - Enforcement

Aye: 6 MPs

No: 7 MPs

Ayes: A-Z by last name

Nos: A-Z by last name


Question accordingly negatived.

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

Photo of Andrew Murrison Andrew Murrison Shadow Minister (Health)

We are somewhat concerned about the implications of clause 10(4) and we seek clarification from the Minister of what she means by it. It seems that she wants to abrogate the powers that would be given to the enforcement authority under certain circumstances and give them to the national authority. We want to know what those circumstances might be. We understand that they will apply to a set of cases or situations, or on an individual basis. That leads me to think that she might wish to use subsection (4) if, for example, a local authority was not enforcing the legislation in a way the Government felt appropriate.

We have heard about resources being handed down from the Department of Health—between £7 million and £20 million—to local government to carry out this work. As we understand it, that will not be ring-fenced. Therefore, the Government might take the view that they need to have a handle on how the money is being used and whether it is being used to enforce the legislation. How will they do that? How will the national authority have that handle on enforcement authorities—on local government?

The Minister may say that that is how the Government intend to do things. This could be simply the big stick. If not much enforcement was going on, however, the national authority might decide that it needed to take the powers. If that is the case, perhaps she would let us know. What measures will she take to audit the enforcement action taken by local authorities? That is obviously linked with this matter, and presumably Ministers will be interested in that.

The Minister more or less said that all this will be reviewed at some point. Presumably one of the things that she will examine is the enforcement activity that is occurring so that she can ensure that local authorities are enforcing, rather than using the money for other things.

Photo of Andrew Lansley Andrew Lansley Shadow Secretary of State for Health 6:00 pm, 13th December 2005

This may not have any bearing on the matter, but although subsection (4) gives the national authority—meaning the Secretary of State or the Welsh Assembly—the ability to act as its own enforcement authority, as far as I can see, the clause does not require such enforcement activity to be undertaken by a person who has qualifications as prescribed by the regulations. Subsections (5) and (6) relate to the “authorised officer” of an enforcement authority but would not bite on persons acting on behalf of the Secretary of State or the Welsh Assembly.

Photo of Andrew Murrison Andrew Murrison Shadow Minister (Health)

My hon. Friend, as ever, makes a good point. No doubt the Minister will try to establish who in the national authority, in the circumstances referred to in subsection (4), would be entrusted with taking enforcement action, local government presumably having failed in some way. It is not at all clear what those circumstances would be. Hopefully, the Minister will be able to give us some sort of clue.

I am concerned about something else. We understand that a sum of money will be handed to local government for the purposes of enforcing the legislation, and we have identified after a fashion where that money is coming from, but the risk is that local government, faced with the demands that we know it labours under, will use the money for something else. It would be interesting to know where in the great scheme of spending priorities the Minister feels this will lie.

I can think of all sorts of pressing things that exercise my environmental health department. I am in constant dialogue with my local authority. I regularly raise things relating to noise and such issues with the chief executive of my district council. Environmental health officers spend a great deal of their time addressing issues at the behest of people such as myself and other members of the general public. A great deal of their time is spent on firefighting: responding to various concerns raised by individuals. That, inevitably, is where all the money will end up being spent. My worry is that it will all be rusticated to local government and spent on other things. We might not get much enforcement or it might be done in a piecemeal way.

The Minister presumably has some idea how much enforcement there should be. I know that it is difficult to assess, because enforcement will vary from area to   area, but she has so far refused to say how many extra environmental health officers or enforcement officers she envisages being employed, where they will come from and how we will train them. She really needs an indicative figure for enforcement activity so that she has an idea how many officers will be required, but she has so far given no idea what that figure might be. Clearly, one cannot be precise, and we do not expect her to be, because the Bill will not be enforced for some time yet. Nevertheless, she must—at least, she should—have some idea of the figure given the assessment that enforcement will cost between £7 million and £20 million. Admittedly, that assessment is rather wide, but the Minister must have made some calculations to come up even with that. Staff costs will be the cost driver and must translate into the number of environmental health officers or enforcement officers she envisages being employed to carry out the work. I therefore ask her to be a little more specific and particularly to address subsection (4), which deserves some explanation.

The Local Government Association is clearly very concerned, and the Liberal Democrat amendment, which I think was taken verbatim from the one suggested in the briefing note with which we were all provided, underscores the association’s worries. The LGA talks about clarity and the fact that things that are clear are easier to enforce, as my hon. Friend the Member for South Cambridgeshire (Mr. Lansley) said. The association makes a plea for clarity and says that greater clarity would lessen the burden on its members and make the provisions largely a matter of self-regulation—a subject that we discussed earlier. The Minister has more or less admitted that had we erased the distinction between food and non-food, as the Opposition proposed, the Bill would have been not only better, but far easier to enforce. The light touch to which she referred would then have been appropriate and all that was necessary to enforce the measure.

The LGA is concerned about better regulation and mentions the Hampton review of March 2005. To what extent has the review been factored in? How much thought has the Minister given it in the context of clause 10? We have covered fixed-penalty notices reasonably exhaustively, but they are important. The LGA, which is right at the front on this issue, is clearly of the view that FPNs, as the Minister put it, are new to its members, who employ environmental health officers. That is what the association says, and we must take it at face value. There will clearly have to be something of a culture change so that environmental health officers and enforcement officers are comfortable with the measure and particularly with FPNs. I am worried about the implications for enforcement officers of pinning FPNs to individuals, and the hon. Member for Northavon was correct to note that they will be putting themselves in the line of fire. We assume that more enforcement officers will be required to enforce the legislation. It would be remarkable were that not to be the case. We know from constituency experience that there are often difficulties with environmental health departments. It is difficult to get an EHO to investigate a complaint   about noise or whatever, or to survey the hospitality sector in our constituencies to ensure, for example, that food safety is of a proper standard.

Where will all the EHOs come from, especially as we are changing the job spec somewhat? Although I suspect that EHOs are used to confronting individuals from time to time, to challenging people’s behaviour and to giving people bad news, I doubt whether many are welcome visitors to premises. Nevertheless, clause 10 moves them up a league, because they will, according to the Bill, be expected to face down difficult situations in tandem with those who will be responsible for the day-to-day management of premises.

One not only expects to recruit more EHOs in a fairly tight time frame but to change dramatically the nature of the job. It would be good to hear that the Minister has adequately thought that through. Is she content that she has consulted sufficiently with organisations such as the Charted Institute of Environmental Health and the Local Government Association to ensure that the legislation is as accurate and watertight as possible?

Will the Minister speak about the new burdens doctrine, with which she will be familiar? To what extent will local government not be involved in funding any new costs? That is the intention of the doctrine, but it appears that, despite the moneys been volunteered in the guidance, there is a risk that that £7 million to £20 million may be a little on the light side, if it is to be enforced properly and if I have read subsection (4) correctly. Indeed, subsection (4) leaves it more or less up to the Secretary of State to determine any duty imposed. If the national authority insists on the increase in enforcement that that relatively small sum of money will allow, the cost will apply to our council tax payers at a time when many constituents are heartily fed up with a tax that has rocketed so much since 1997. I ask the Minister to pay particular attention to clarifying subsection (4).

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

I will attempt to answer several points raised in the debate. On the number of enforcement staff that we estimate will be required in order to enforce the legislation, I refer hon. Members to page 53 of the explanatory notes:

“It is proposed that local enforcement officers dealing with smoke-free enclosed public places and workplaces. Based on consultation response we estimate this might be between 220 and 318 enforcement staff initially, tailing off as legislation becomes embedded.”

I hope that that indicates that we take seriously views expressed by different organisations, just as we have taken on board their independent comments on the different costs. We shall continue to discuss how the legislation will work in practice and how the funding should follow. Of course, monitoring raises issues. We must evaluate the Bill’s success in practice, and one way to do that may be the number of prosecutions. A high number will suggest non-compliance and raise the question whether we should do more to alert the public to the legal state of play. A low number would presumably be some indication of a high level of self-enforcement.

In the early stages we shall, like other countries, set up a national compliance line, by which organisations and individuals will give us information and intelligence about compliance with the law. We shall also engage in continuing discussions with organisations that represent the enforcement authorities, local authorities and the people who will carry out enforcement duties about how the measure works in practice. That is important and would be an essential part of the process, regardless of whether we imposed a total ban or allowed exemptions. Ireland has had to do the same thing as part and parcel of establishing how the law works.

It is wrong to suggest that the discussions under our proposals would not happen under a total ban, with no exemptions. We should still, in that case, have had to follow up matters of signage and enforcement, including appropriate fines for individuals or those who run establishments. We should, regardless, have needed conversations about which bodies should become enforcement authorities and the implications for their work load. It is wrong to suggest that those discussions result only from the approach in the Bill.

Photo of Andrew Murrison Andrew Murrison Shadow Minister (Health)

The Minister is being very good. I am grateful for the figure of 220 to 318, which I should have read for myself, but I am intrigued to know where those folk will come from, as I understand that being an environmental health officer is a graduate profession and that considerable post-graduate experience is required to qualify. As the Bill’s enforcement provisions will come into force in 2007, it seems that there will, at the crucial early stage that the Minister mentioned, which is also mentioned in the guidance notes, not be sufficient trained EHOs to do the work. What will we do about that?

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

Those matters are part of the discussions, but also part of the way in which local authorities work in partnerships on environmental health issues. It is intended that enforcement officers will in practice be mainly local authority environmental health officers, but others such as trading standards officers or those responsible for health and safety may be appropriate according to local circumstances. That is an aspect of the discussion that we need to engage in, and in part it will be influenced by the structuring of different local authorities and how they work together.

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

I am curious. Was the Secretary of State’s decision that the provisions would be put into force in summer 2007 and not 2008 made after discussion with the Local Government Association or the Chartered Institute of Environmental Health?

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

I stand to be corrected, as I am relying on memory, but I think that many responses to the consultation—I think some were from local government—wanted the timetable brought forward. I shall check, but many organisations that wanted a total ban also thought that the date should be brought   forward. There is clearly work to be done, and we shall have an opportunity to discuss the issues in full as the Bill and the draft regulations pass through Parliament.

I remind the hon. Member for South Cambridgeshire that although we seem to have concentrated on licensed premises, a great deal of the Bill is concerned with non-licensed public places, to which a total ban will apply. They include cafés, shopping malls and other areas in which enforcement will be required. Our earlier proposal was that a later date should apply to licensed premises, but that has been presented slightly differently in the Bill. We want to work with people in good faith, and it is my understanding from the Local Government Association and those who represent environmental health officers that there was a desire for the Government to legislate. It is not, therefore, the case that individuals and organisations did not want the measures, albeit some of them might have wanted a total ban. Rather, they consider the issue important for environmental health and for the health and culture of the communities in which they work. There are clearly many issues to be sorted out, and we shall endeavour to do that.

The Hampton review, to which the hon. Member for Westbury referred, is considering simplifying inspection enforcement by establishing a new enforcement officer role and a single visit to deal with a range of enforcement issues. One aspect of that is to think about any dual relationship between those working in trading standards and the environmental health officer role. We are considering the issues involved in risk-based inspection. I think that I was frank about the fact that many people who work with the public, whether in the private or the public sector, in an accident and emergency department, in Woolworth’s, in a café, in a pub or on the council tax counter of a local authority, constantly have to review the way in which they deal with people for whom they might not be providing good news, or whom they might be asking to desist from an activity. We should all appreciate that such things have to be considered by those who encounter the public.

That is one reason why we are discussing the training necessary for people who are to carry out that role in relation to smoking. I do not say that there will not be instances in which people become aggressive, but I have found, as, no doubt, have other Committee members, that often, even in an environment that is not non-smoking, somebody who is smoking can be asked politely to do so in another area or not to do so at all. For the most part the voluntary agreement has worked pretty well for a number of years.

On enforcement, and looking at the risk while simplifying the role, we are aiming to see whether a useful way can be found for the work to be spread among a range of enforcement officers. While it is intended that enforcement officers will be mainly local authority environmental health officers, others could play a role as well.

The hon. Member for South Cambridgeshire referred to subsection (4). My understanding is that it is to be used as a reserve power that might be exercised   in a particularly difficult case or when the national authority is not satisfied with the action taken by the enforcement authorities. That sounds pretty tough in that we will have to specify the circumstances in which it will apply. However, I understand that there are similar powers under the Tobacco Advertising and Promotion Act 2002. Clearly, lawyers advising the Government about Bills have suggested that a fall-back power will sometimes be needed if the designated enforcement agency is not carrying out its role.

Photo of Andrew Murrison Andrew Murrison Shadow Minister (Health)

I may have interrupted the Minister prematurely, but I hope that she will give us some examples, because at the moment she is asking us to accept at face value her assurance that there is some precedent relating to the Tobacco Advertising Act. We need some concrete examples. We are simple folk who need a pen picture of the kind of circumstances in which a national authority might take to itself the powers that it has given to local government.

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

That might happen, I suppose, if there was sufficient evidence to suggest that people were getting away with not enforcing the law or that smokers were not abiding by it. I will seek further guidance, but I presume that the measure will apply in circumstances in which it becomes apparent that an enforcement agency is failing in its duty to act appropriately. As I said, hypothetical situations that spring to mind are those in which evidence has been given—through complaints, for example—that prosecutions are not being undertaken or that people have raised issues that have not been followed up, or in which an enforcement agency refuses to act, even given evidence of abuse of the law, which I doubt would happen. I reiterate that the clause gives similar powers to those given in other legislation, particularly in relation to tobacco advertising and promotion. I shall seek to find out more about that and will write to the hon. Gentleman on this issue, if he agrees to that.

Photo of Andrew Murrison Andrew Murrison Shadow Minister (Health)

I should be interested to know more. When the Minister writes, will she let me know what qualifications the individuals who will exercise the authority, having taken it from the local government bodies that were meant to exercise it, will have? I am afraid that we are no further forward after the Minister’s comments. I simply do not envisage a situation in which subsection (4) will be necessary. Will she let me know in her letter what qualifications those who would exercise the power from the centre in this hypothetical situation, which I hope that she will describe rather better in her letter, will have?

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

I confirm what I said earlier—it is pleasing to know I was right—which is that in the consultation the Trading Standards Institute, the local government association and other organisations concerned with representing environmental health all suggested bringing forward the date to spring or summer 2007. I acknowledge what some of those organisations said about enforcement and preparation, but that did not seem to get in the way of   their feeling that the legislation should be brought forward. There is a willingness to work to make it a success.

Other examples regarding enforcement authorities are situations in which such authorities consistently fail to enforce, or in which particular companies or industries refuse to comply and it is too difficult for single enforcement authorities to deal with those matters.

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

I am sorry to hold the Minister up. I am sure that she will be able to describe to us how the measure will work when she has had the chance to think about it, but there is a possible difficulty with the fact that enforcement authorities might be both local authorities and the Health and Safety Executive. The circumstances that she described might not be encompassed within any one enforcement authority or small group of local authorities, but it might be perfectly reasonable to use the power to transfer the case to the HSE. We are not sure that it is necessary in all those circumstances to have this reserve power, as other mechanisms are available.

Photo of Caroline Flint Caroline Flint Parliamentary Under-Secretary (Department of Health) 6:30 pm, 13th December 2005

I will seek guidance on that, and am happy to write to hon. Members about it. Part of the objective of Bills and regulations is to cover our bases for eventualities that we hope will not occur but for which we must be prepared. I hope that I have satisfied the Committee as to our continuing dialogue about enforcement. Our best example are those countries that already restrict or ban smoking. Their enforcement costs have been pretty limited and the arrangements have worked well. We will be looking at training for individuals, whoever they may be. Clearly, if someone has not been trained to issue a fixed-penalty notice, we would want to ensure that he has the appropriate training along with those other individuals who have currently been given those powers in the communities we represent.

Question put and agreed to.

Clause 10 ordered to stand part of the Bill.

Schedule 2 agreed to.