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Mr. Forth: I do not know whether this will reassure my hon. and learned Friend—I think it may not—but he knows as well as I do that the rules of the House fortunately provide that if we have a Division on the Bill, which I hope we will, even if only 35 Members out of 659 are present in the Lobby, that would be sufficient to allow the Bill to proceed to its next stage. I am not sure that that is a sufficient basis on which to legislate, but it is the rule of the House. If the number who voted this morning balloons to 35 when we have a vote, probably in an hour or two, the Bill will make progress. Is it his view that that is sufficient for constitutional change?

Mr. Garnier: Clearly not, but I cannot command the House. I can address it and seek to persuade it, but I can seek to persuade only those who are here. There may be others busy in the Library who are itching to come to vote for the Bill. There may be still others in their offices—heaven forfend, watching their monitor as we discuss the Bill—who are itching to vote for the Bill. However, I have yet to be persuaded by argument, deployed in the House, that the Bill would do anything other than, by the back door, passively provide for unintended devolution—unintended in the sense understood in respect of the Government of Wales Act.

I was discussing the functions of the Assembly that have been transferred from Ministers of the United Kingdom Government. The procedure by which those functions are transferred is tightly prescribed. Section 22(2) says:

Schedule 2 is not a schedule that the Bill would amend, although I suspect that it is one that the Bill should have contemplated, because it deals with the fields in which functions are to be transferred by the first Order in Council.

Under the Act or the schedule, the first Order in Council transferred 18 separate items of public policy or public administration. Item 7 deals with health and health services. To some extent, I accept that a Bill dealing with smoking touches on health and health services. We know that if there were no smoking anywhere in this country, that would benefit the national health service budget. We also know that it would have a damaging tax effect on the Treasury. In so far as we are talking about health and health services, however, there is room, had Parliament intended it, for action on smoking to be dealt with as a devolved issue in the Assembly, although it was not.

I shall not, because it would be an improper use of our time, simply list items 1 to 6 and 8 to 18 of the other matters, but I shall come on to schedule 3, which is referred to in the Bill, and consider how the hon. Member for Cardiff, North wishes to amend the Government of Wales Act, as well as whether her Bill
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would do what she intends and what the Government intended when they persuaded us to pass that Act in 1998.

Clause 4(4) states:

Mr. Win Griffiths : I am sure that we all want to thank the hon. and learned Gentleman for giving us an erudite tour of the Government of Wales Act 1998. However, he is doing that in the context of discussing a Bill designed to ban smoking in public places. I did not hear him declare an interest at the beginning of his speech—I know that that can often happen. Does he have any interest, or has he had any in the past, in the activities of such bodies as the Tobacco Manufacturers Association?

Mr. Garnier: I have made a specific point of examining the Register of Members' Interests, so perhaps the hon. Gentleman would like to pop down to the Table and have a look at it. If he looks at the entry titled, "GARNIER, Edward", he will see that I have no interest to declare. I have no connection, financial or otherwise, with the Tobacco Manufacturers Association. However, I have two close friends who work for the association: Mr. John Carlisle, the former Member for Luton North, and its chief executive, Mr. Timothy Lord. I make no secret of the fact that I have met them on any number of occasions over the past few years. I have met them for lunch and dinner. I have met them socially and to discuss and be briefed about matters of interest to the association. However, I am not in their pocket—would that I were—and I receive no financial benefit from that.

I want the legislation that we pass in the House to be properly understood in its wider constitutional context. The hon. Gentleman will remember that I intervened on him during our consideration of the Prevention of Terrorism Bill—it was probably when he was making a speech at about 8 am last Friday. He was well-motivated and wanted the anti-terrorism legislation to go through, and was comforted by the fact that the Home Secretary had told hon. Members, "Don't worry; the Bill will provide for judicial oversight over the making of control orders." My worry was that the hon. Gentleman had not read the Home Secretary's amendment, so he did not appreciate how limited and restricted the judicial oversight would be.

To coin a phrase, I have no doubt that a cigarette paper could not be put between the antipathy to smoking and its consequences felt by the hon. Gentleman and me. However, irrespective of our views about smoking and its health effects, I have a duty as a Member of Parliament to ensure that we pass good legislation that does not unwittingly offend what constitution we have or produce unintended consequences. Like the hon. Gentleman, I want the incidence of smoking reduced. Like him, I want the population of Wales—and that of England, Scotland and Northern Ireland—to benefit from greater and wider public health. I want more education in schools
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about the damaging effects of smoking, and I do not care whether that takes places in Welsh or English schools.

Mr. Barron: When the hon. and learned Gentleman has held his discussions over dinner or lunch with representatives of the Tobacco Manufacturers Association, has he discussed passive smoking, or just passive devolution?

Mr. Garnier: Funnily enough, I have discussed many subjects with the two gentlemen whom I mentioned, but passive devolution has not been one of them. Those discussions took place before the Bill was drafted, and obviously I took no part in deliberations on the Bills introduced by Lord Faulkner of Worcester and Baroness Finlay. I accept that birthday present with the good intentions that it was positive, but I fear that the right hon. Gentleman was slightly offbeat.

Mr. Forth: Does my hon. and learned Friend think that there is anything especially strange about hon. Members seeking advice from groups, making friends with them, or even agreeing with them? He will know that many right hon. and hon. Members become close to single-interest groups of varying kinds. Although some such groups are sinister and rather undesirable, Members feel perfectly free to do so, as they should. Does my hon. and learned Friend think that there is any difference between having friendships with, and seeking advice from, businesses and doing that with rather peculiar single-interest groups?

Mr. Garnier: I have no problem with any hon. Member seeking advice from people who know about subjects that we discuss. All too often the Whips provide briefings for their loyal Members so that they can speak on matters about which they have no other knowledge. Okay, that is the game we play, but I am not sure that it impresses me hugely. I am more impressed by hon. Members who speak from personal knowledge or knowledge derived from others.

I hope that the House will think that I have made good use of the Library research paper on the Bill dated 14 March, which is available to us all. I see that my right hon. Friend the Member for Bromley and Chislehurst has a copy. It provides factual information both about the national and devolved constitutional arrangements and about what has happened in relation to the banning of smoking in other jurisdictions.

Given that that resource is available to me, I would be foolish not to apply my mind to it. Equally, if I have contacts with the Tobacco Manufacturers Association through my friendships with those two named individuals, it would be rude and negligent not to listen to what they have to say. I do not have to agree with them. As it happens, neither of those two people is a smoker. I do not have to be a shareholder in a tobacco company, and I am not. But I have to apply my mind to the Bill, what it will do, how it will do it, and what consequences it could have for the people in respect of whom we are making new laws.

Having, I hope, exposed the constitutional difficulties to some extent, I come back to a point that was made by a number of speakers this morning and draw attention
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to the November 2004 public health White Paper, "Choosing Health". According to the Library brief, the full recommendations in the White Paper are as follows:

that is, the Government—

Some of those measures are already in force through voluntary agreements—workplace agreements—but the Government went on to say in their White Paper that they

They specify that as follows:

The hon. Member for Cardiff, North mentioned that her local hospitals were now all smoke free, and that is the case in my constituency and in Leicester city, where the three main hospitals covering my constituency are to be found. No smoking is allowed in any of the three main hospitals in Leicester, or in the Coventry road hospital or the St. Luke's hospital in Market Harborough.

That is a matter not of legislation but of common sense, applied by the management of the hospitals with the agreement of national health service employees who work in those institutions and with the obvious agreement of visitors to the hospitals, be they employees of other businesses delivering supplies and so forth, or visitors to patients. Nobody nowadays would think it sensible for someone visiting a patient in a hospital to come into the ward or the room where they are lying and to light up a cigarette or a pipe. It is just not done any more. We do not need legislation to enforce that.

I shall complete the quotation from the recommendations of the White Paper, which state that

The hon. Lady may argue about the timetable, but the Government seem to have it in mind to go further, in terms of both effect and geography, than her Bill.

What I am concerned about—it is not a trivial point—is that already, if one walks up Victoria street, past various buildings where Government Departments are located, one sees crowds of civil servants standing out on the pavement in huddles, smoking cigarettes on the street. They finish their cigarettes, stub them out on the pavement and go back inside to their offices, which are, by workplace agreement, smoke free. The pavement is not. There are those hideous congregations of smokers littering the street. That is another unintended
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consequence of perfectly laudable workplace agreements. If people employed in a company or by a Government Department need to smoke, there should be a specific place on the premises where they can do so without affecting the well-being and environment of those who, like me, do not wish to smoke, and without dirtying public pavements by dropping their cigarettes on the streets. I have even seen so many people having a cigarette break that they almost form an obstruction of the Queen's highway. The Bill does not deal with that. The hon. Lady may say that it is not something that the Bill can deal with, but it is a matter that the Minister needs to bear in mind when he listens to her persuasive arguments. I do not want to see one problem, which is unwanted smoking, substituted for another, which is increased and unwanted litter, no matter what the motives are for getting rid of the first problem. Both are in their own ways a problem.

Others will wish to speak on behalf of the Bill, but, as I said at the outset, I congratulate the hon. Lady on her achievement in getting her Bill to its Second Reading stage. I hope that we will hear from the Minister what he agrees with and disagrees with in the Bill. Does he still agree with the Secretaries of State for Wales and for Health that the Government have in hand a programme to deal with the question, and that the Bill, while worthy, is too hasty, or the wrong vehicle; or has he been wholly persuaded by the hon. Lady's arguments, because he, like me, knows how persuasive she can be? Will he respond in detail to some of the infelicitudes that I have adverted to during the course of my brief discussion of the Bill?

I am afraid that if the matter goes to a Division, I cannot, for the reasons that I have set out—namely, the unintended consequences that could flow from it and its passive devolution aspect—give it my support, albeit that I share with the hon. Lady, the hon. Member for Conwy (Mrs. Williams) and the right hon. Member for Rother Valley (Mr. Barron) their collective concern about the health effects of smoking.

12.12 pm

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