Clause 7 - Offence of smoking in smoke-free place

Health Bill – in a Public Bill Committee at 4:15 pm on 13th December 2005.

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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

It is a pleasure to be of service to the Liberal Democrats to ensure that there is a debate on clause stand part. Clause 7 introduces the offence of smoking in a smoke-free place. I welcome that. The Minister said in an earlier debate that she did not envisage a raft of prosecutions. I hope that she is right. I hope that this will be self-enforcing. But it would be helpful if she could tell us a little about the experience overseas where this offence has been created. Has there been a raft of prosecutions or has it on the whole been self-enforcing?

It might also help if the Minister would tell us what the experience has been in this country where there has been an offence of smoking in a smoke-free place, such as on public transport. Has this been self-enforcing or have there been problems in enforcing it? I seem to remember a few years ago when Connex trains made the whole of its fleet smoke-free that a number of people, none the less, insisted on smoking. How was that resolved? Were there prosecutions?

Finally, in subsection (3) there is a defence for a person charged with an offence under subsection (2). It would be helpful to know whether that defence is compatible with the defences that exist in those cases where it is already an offence to smoke, for example on the train. In other words, is there some case law that underpins subsections (3) and (4) based on the experience in this country or has the Department branched out and created what in its view is a defence, which may or may not be the same as the defences that can currently be exercised by those who smoke on an aircraft or a train?

I hope that this has enabled the Liberal Democrats to assemble some coherent thoughts on clause stand part. I welcome the clause. It is a step in the right   direction but it would be helpful to have some reassurance that this will not cause enormous difficulties in the way that it is enforced.

Dr. Murrisonrose—

Stephen Williams (Bristol, West) (LD) rose—

Photo of Andrew Murrison Andrew Murrison Shadow Minister (Health)

I was rather hoping to heighten the Liberal Democrats’ discomfiture by coming in at the end to give them more time to marshal their thoughts—a need evidenced by their cunning point of order. Self-enforcement is very important. I hope that the Minister will tell us to what extent she believes the measure will be self-enforcing. The Local Government Association is certainly concerned. It is greatly exercised by the question of who will deal with enforcement in relation to the offences under the Act. Its briefing, which I hope all members of the Committee have read and inwardly digested, states that it hopes—I think it expects—that the measure will be largely self-enforcing, and that it therefore hopes that the burden on its members will be minimised. However, we are not sure about that, and the best litmus test will be what happens in other countries, to which the Minister referred extensively in her earlier remarks.

It would be useful to know which countries the Minister has benchmarked us with, and particularly—I suspect that we shall deal with this on later clauses—what the cost was. We expect her to be able to tell us at some point where the money will come from. Given the likelihood of increases in council tax, I hope that she will tell us that the money will be found from pockets other than those of our hard-pressed constituents. We look forward to hearing news about that, perhaps under later clauses, but some remarks at this juncture about self-enforcement, to assuage the concerns of the Local Government Association, would be most welcome.

Photo of Eric Illsley Eric Illsley Labour, Barnsley Central 4:30 pm, 13th December 2005

Mr. Williams, you were pipped at the post a minute ago, but I have pleasure in calling you now.

Photo of Stephen Williams Stephen Williams Shadow Minister (Health)

Thank you, Lady Winterton.

I, too, want to discuss subsection (3). I wonder what the defences might be. Perhaps the Minister could expand on the topic. I imagine that not seeing the signs would not be accepted, but perhaps someone might say, by way of a defence, if the matter went as far as court, or if they were challenged by an enforcement officer or someone else, “I was in a pub with which I was not familiar and I did not see anyone eating.”

I know that the big thrust of the Bill is to distinguish between pubs where someone can have a meal and those where they cannot. However, if, for example, I went on holiday to Cheshire, and went into one of the splendid establishments in Congleton, I should not necessarily know whether it had a menu or offered food. At this time in the afternoon, one would not normally expect to see anyone having a meal in any   pub in the country. If someone lit up next to me, I should not necessarily have the confidence to say, “Do you know it is illegal to smoke in this pub?” unless I had checked for the right signs in the right places or asked the landlord whether there was a menu for evening or lunchtime food to satisfy myself that I was in a pub where, even though meals were not being served at the time, I could challenge the person and say, “Please put your cigarette out. You are breaking the law.”

Self-enforcement has been mentioned a couple of times. Surely self-enforcement or self-policing of the Bill would be much easier with a total ban in all public houses, so that a non-smoker would have the confidence to challenge anyone they saw smoking and tell them that they were breaking the law, thus putting social pressure on them. Equally, things would work the other way round. There might be small-scale smoking tourism. In Bristol, people might go from one ward where all the pubs had a smoking ban to a pub where they might think smoking continued to be allowed. How would a smoker be able to light up with confidence? A clear demarcation would be easier.

Subsection (5) refers to a fine to be set by the Secretary of State in future regulations. What is the current thinking on that? What sort of fine for smoking in a public place might one typically expect to be offered on a fixed penalty notice?

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

To deal with the last point first, as I said in an earlier debate, we are considering a fine of £50 for someone who enters a smoke-free establishment and is issued with a fixed penalty notice for lighting up. We decided on that sum because the next level of fine is £80, which, as we discussed with our Home Office colleagues, is the level of fine for situations in which individuals cause harassment, distress or upset. We thought that that might not be appropriate in this instance.

Photo of Stephen Williams Stephen Williams Shadow Minister (Health)

I thank the Minister for that clarification about the sum. Presumably that would for a first offence. Is it intended that a record of such fines will be kept? I admit that I am not sure of the normal legal practice with fixed penalty notices, but if someone were to go to another pub a few weeks later and light up again, would they get the same fixed penalty, or will there be a sliding scale?

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

At this stage, we are talking about a set fixed penalty.

I shall say a little more about prosecutions in other jurisdictions. On the point made by the right hon. Member for North-West Hampshire, I understand—I do not have the figures on me—that there have been few prosecutions for people lighting up in smoke-free areas on trains and so on. When trains, tubes and buses became smoke-free, some people decided to ignore that move; what contributed to the success of the move in the medium and long term was the fact that relevant staff took up those issues, and the will of passengers who would not tolerate it. That has worked pretty well.

Photo of Andrew Murrison Andrew Murrison Shadow Minister (Health)

The Minister is generous in giving way. To what extent will enforcement officers have discretion with fixed penalty notices? There is a great barrage of defences written into the Bill—probably correctly so—that a person who has lit up could probably marshal, if they had the wit to do so, and fire at the enforcement officer, who will, presumably, be busily writing out the enforcement notice. To what extent will an enforcement officer be able to use his or her discretion before pinning an enforcement notice on the smoker?

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

Obviously, an enforcement officer has to assess a situation at any given time in relation to the circumstances. For someone not to accept a fixed penalty notice, they would have to make their case in court. I expect that, as with fixed penalty notices for other matters, people will opt for fixed penalty notices when they know that they have been caught red-handed. Clearly, there has to be a defence in law.

We discussed some examples in an earlier sitting, at which the hon. Member for Bristol, West (Stephen Williams) was not present. One example is a situation in which a person goes into an establishment in which the signage is not apparent and unwittingly lights up just as a local enforcement officer happens to be entering the establishment. There are lots of possible scenarios. The defence is meant to be a safeguard, but, as I said, that is why signage is important, so that people do not light up and smoke when they should not and so that they realise that the place that they are entering is smoke-free.

I was asked about the number of fines and prosecutions. I understand that in Ireland there were 28 court prosecutions before the end of May 2005, none of which were prosecutions of a smoker alone. They were all of owners who allowed smoking, or of owners and smokers where smoking occurred. Therefore, there have been few prosecutions given the extensiveness of the legislation, but there have been examples in which the enforcement authorities thought it right to take cases forward. Such cases have very much been focused on owners who allow smoking and have been about their responsibilities to uphold the law.

Photo of Crispin Blunt Crispin Blunt Opposition Whip (Commons)

Will the Minister consider this point? I hope that there will be few prosecutions, but it would be extremely unfortunate if the clause gave an effective defence to people who say, “I simply didn’t see the sign; I didn’t know,” and the few prosecutions that then occurred began to establish a whole series of causes that people could use as a defence. If, as I suggested in the earlier debate, the duty was on the smoker to establish the defence, it would mean that in the few prosecutions that were brought there would be a much greater certainty of no successful defence being able to be brought under the clause. The public health message would therefore be put over much more clearly. However, if there are a few unsuccessful prosecutions because of the defence offered by the clause, we might find that there is a problem.

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

As I have said, I understand that that has not been a problem elsewhere—Ireland is a good example. The defence for someone charged with smoking in a non-smoking area is that he has

“to show that he did not know, and could not reasonably have been expected to know, that it was a smoke-free place.”

If a defendant wishes to rely on that defence, they must provide the evidence that supports it. For example, such a defence could arise if no-smoking signs had been removed or obscured. Another aspect concerns the reaction of a person who has started smoking in a smoke-free place to being asked to stop smoking by the proprietor or the landlord. There are different aspects related to any individual case that might arise.

It is difficult to imagine all the scenarios that might arise. However, there has to be a defence in law for individuals, as well as the scope for prosecution. I accept that often there is a fine balance to be established, but that is why we have the law and the recourse to the decision of the courts.

Fixed penalty notices have been a feature of our environment in recent times, because they are a speedier way for someone to acknowledge what they have done, and do not require going to court. They have worked very well in a number of circumstances. In some respects, they are a short, sharp shock for individuals, particularly in circumstances in which the game is up, and they know that that is the case. That is the way in which we should proceed.

The level of enforcement is likely to be light. There will be issues in the early days of the legislation as it comes into effect and as the regulations come into force. We need to discuss those issues with local authorities and with those who will be charged with enforcement. That is one of the reasons why we are engaged in discussions with them about enforcement and why we have been engaged in discussions with the Office of the Deputy Prime Minister about the costs of enforcement and our Department funding that.

As I said before, based on the voluntary situation at the moment, and on what we know of other countries that have introduced legislation—the most recent of those being Ireland—we do not believe that there will be a huge number of fines and prosecutions. However, my right hon. Friend the Secretary of State has identified that as one of the issues that that we will need to monitor from day one, to see how the regulations are used in practice, what the implications are for enforcement, whether the legislation is clear, the level of prosecutions, and the level of self-enforcement.

There are plenty of examples of offences—such as dropping litter, or using a mobile phone while driving a car—for which we pass laws because we think that that is the right thing to do. We recognise that there has to be an offence and therefore a defence in law, but we also recognise that—with those two examples in particular—we expect the public to support the law and to do their bit to enforce it by self-enforcement and in the context of their friends and families. I hope that hon. Members will support the clause.

Question put and agreed to.

Clause 7 ordered to stand part of the Bill.