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That wording makes it clear that the power cannot be used in cases where exposure to second-hand smoke is unlikely or very limited.

Amendment No. 36 makes any regulations to make vehicles smoke free under clause 5 subject to the affirmative resolution procedure. That issue was raised in Committee, where I said that I would be inclined to think about it. The Government tabled the amendment following the recommendation made by the Delegated Powers and Regulatory Reform Committee, which noted that the power in clause 5 could potentially be used to make private vehicles smoke free. Although we have absolutely no intention of using the power in that way, the amendment provides further reassurance, as no regulations under the clause can now be made without the prior agreement of Parliament.

On amendment No. 12, I pay tribute to my hon. Friend the Member for Barnsley, East and Mexborough (Jeff Ennis) for championing this cause and to the right hon. Member for North-West Hampshire (Sir George Young) for doing likewise. Hon. Members may recall that clause 30 was introduced on Report in the Commons, with cross-party support. It gives the Secretary of State the power to raise the minimum age for sales of tobacco products through secondary legislation by the affirmative resolution procedure. When introduced, it specified that the age limit could be changed only to an age not lower than 16 but did not specify an upper age limit.

Concern was expressed in the other place that the clause could allow the minimum legal age for sales of tobacco products to be raised to 21. Although that has never been our intention, we were happy to table
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amendment No. 12, which specifies that the minimum age for sales of tobacco products cannot be higher than 18. I am sure that hon. Members know that public consultation on whether to use the power is under way.

All the amendments in the group have improved the Bill and I commend them to hon. Members.

Dr. Murrison: The Minister must be approaching the last hour of consideration of the Health Bill with much relief. Its passage has occasionally been rocky, but I am happy to say that the rocks have been mostly on the Government side. We recall the present Home Secretary’s seminal contribution to the public health debate when he identified smoking as one of the few working-class pleasures, the subsequent discomfiture of the Secretary of State for Health and her handbrake turns on food and non-food pubs and private members’ clubs. However, on a consensual note, we are pleased with the Lords amendments and also pleased that the Minister is happy with them. We will not resist them.

We note yesterday’s publication of the draft regulations for smoke-free premises and vehicles, in the nick of time for today’s debate, and the incorporation of much good sense, which emerged during the Bill’s passage. Much of the latter relates to small matters, such as provision for specialist tobacconists and research and testing facilities. They may be small but they are significant for those who will be affected by the Bill, and we welcome the provision for them.

However, we remain concerned about the lack of attention paid earlier to enforcement costs, as evidenced by the invitation in the draft regulations to comment on likely costs to enforcement authorities. That has already been mentioned. To work, the Bill needs enforcement, not simply encouragement. Clearly, little provision has been made for how that might be done. That is regrettable.

The licensed trade has asked for as much notice as possible of the definitive regulations. That is fair and reasonable. I note that the consultation ends on 9 October and hope to revert to what may follow when we discuss amendment No. 37.

The British Beer and Pub Association has asked for regulations that are easy to understand and simple to apply. The draft regulations are perhaps less monstrous than many but, as ever, the detail contains the potential trip wires. I note the section on signage in the regulations and wonder how we can make such a simple matter—which surely requires little more than the international no-smoking symbol—so complicated.

Amendments Nos. 2, 3, 6, 7, 8, 9 and 11 deal with smoking and the performing arts. They could properly be called the “Howe amendments” because my noble Friend Earl Howe is largely responsible for them. I hope that they will ensure that “Carmen”, the plays of Noel Coward, Simon Gray, John Osborne and most of Ibsen do not have to be rescripted. They are welcome.

Amendment No. 4 would introduce the test of significant exposure to second-hand smoke. The Minister spoke a little about that but I believe that it is an important amendment. Without it, appropriate national authorities could ban smoking in public in almost any circumstances. I therefore welcome the amendment. It is self-evidently wrong to ban an activity if the relevant substance is not significant.
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With a sensible understanding of “enclosed” and “substantially enclosed”—which, we hope, will emerge from the draft regulations—the amendment should resolve, for example, the bus stop dilemma that we discussed in Standing Committee.

We should note that our understanding of “significant” may alter with time as our appreciation of the health effects of second-hand smoke evolves. Sir Richard Peto’s evidence to the House of Lords Economic Affairs Committee is germane to that.

We are indebted to my right hon. Friend the Member for North-West Hampshire (Sir George Young) and the hon. Member for Barnsley, East and Mexborough (Jeff Ennis) for amendment No. 12, which deals with raising the age for the sale of tobacco. In Committee, they were trenchant supporters of the sensible proposal to raise the age to 18. We await the outcome of the consultation on that with great interest. We cannot raise the age beyond 21 as such a move is proscribed by existing legislation, but I was reassured to hear that the Minister would not wish to do so in any case. That we might have the potential to do so is something of an historical anomaly. We are pleased that the amendment would enable us to raise the age to 18 and no further. That is clearly the correct provision for the 21st century.

Amendment No. 36 will have the effect of ensuring that regulations applying to smoke-free vehicles must be made under the affirmative resolution procedure. Given the scope for confusion implicit in clause 5, that seems very wise. We still face the conundrum of the long-distance lorry driver, for example. He might use his cab to sleep in at night, but the lorry might occasionally be used by someone else. There is an element of confusion about whether he would be able to smoke in the vehicle, and that needs to be clarified. Bringing the measure before the House under the affirmative resolution procedure will give us the opportunity to explore the issue further.

Another example that is relevant at this time of year involves farmers in their tractors. Most people would regard a tractor as a fairly well-ventilated vehicle, but under the measure, the farmer would not be able to smoke in it because of the possibility that someone else might use it subsequently. That seems to cut across the sensible notion of significance introduced in amendment No. 4, which we very much welcome. I would be interested to hear how the Minister reconciles the two approaches.

Steve Webb: The principal amendments in this group that I want to discuss are amendment No. 2 and the related ones that deal with smoking in performances and rehearsals. I was astonished to learn that their lordships were attempting to table amendments to cover theatrical performances and rehearsals. My initial reaction was to ask why the actors could not just act. That would surely be a better response. There would be no problem with someone holding a cigarette or having a pipe in their mouth—that is not prohibited by the Bill—as long as there was no smoke coming out of them.

There was a suggestion in the other place that Churchill could no longer be depicted on stage because he would not be able to have a cigar between his fingers, which would be nonsense, or that Harold
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Wilson could not be shown because his pipe would be banned. That would be nonsense as well. Surely the whole point of acting is to create an illusion. We do not actually need to see smoke physically coming out of the pipes or cigars. There was also a discussion about whether non-carcinogenic herbal cigarettes could be used instead, as they produce smoke that would not be so bad for people. However, that possibility appears to have been ruled out as well.

I cannot see why we need this exemption at all. I notice that amendment No. 2 talks about “artistic integrity”. If I were to go to see a play, and I saw an actor smoking in circumstances that I did not deem necessary to the plot, could I go to the licensing authority or the relevant local authority to protest? Would that authority have a panel of people who had been trained to judge whether the artistic integrity of the play would have been impeded by the presence or absence of a cigarette? It is nonsense to set people up in bureaucratic structures to judge whether in a particular case it was, as young actresses say, necessary to the plot.

I am reassured that the Minister seems minded not to allow an exemption for rehearsals; otherwise, we could end up in the extraordinary situation in which smoking was permitted—although only by those characters for whom the integrity of the plot required it—until the moment at which the director shouted, “Cut!” At that point, all the cigarettes would quickly have to be stamped out. No one working on the set would be allowed to smoke, but they would be allowed to inhale the smoke from the actor who had just been performing. No one would be able to smoke during the break, but they would be able to breathe in the actor’s smoke once the rehearsal started again. Those working on the set would be able to breathe in smoke, but only if it was someone else’s.

One of the beauties of the legislation is that, in most cases, there is no room for doubt. It is clear cut. We are not going to talk about the distance from the bar or about rooms with ventilation. The Minister’s argument throughout was for a comprehensive ban with as few exemptions as possible so that people would know where they stood and self-enforcement would be easier. Yet here we are with this peculiar luvvies’ amendment. I wonder what is behind it.

5.15 pm

David Taylor: I said a moment ago that I thought that this was a pretty fair stab at a set of regulations. Does the hon. Gentleman agree, however, that there are areas that might be further improved, not least those relating to sports stadiums and railway stations, many of which are not yet within the remit of the regulations, even though substantial numbers of people have a significant risk of being exposed to large amounts of smoke in those places?

Steve Webb: I certainly agree that there are still some grey areas, and my point about this artistic integrity exemption is that it creates more grey areas. I have stood—that shows how long ago it was—at football matches and been absolutely choked by cigarette smoke, albeit only for 90 minutes, so one would have to
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make a judgment about the long-term harm that it was doing to me. What we need above all is clarity. People need to know where they stand, and what is lawful and what is not. My worry about these amendments is that we are introducing new loopholes and ambiguities, and all because of something that could be perfectly well avoided by other means.

Dr. Murrison: How does the hon. Gentleman reconcile his philistine attitude towards these amendments with his party’s liberal attitude to the smoking of cannabis?

Steve Webb: No discussion on the Health Bill would be complete with the hon. Gentleman trying to bring cannabis into it. He seems to be fixated on it—I do not know whether there is anything that he would like to declare at this point.

Amendment No. 3 would allow the regulations to include rehearsals. Perhaps the Minister will regard this as a formal response to her formal consultation on the regulations: please do not include rehearsals. Whereas performances are a limited number of occurrences, allowing smoking during a long run of rehearsals would be potentially much more detrimental to the people who support the rehearsal process.

Amendment No. 12 deals with not raising beyond 18 the age of sale for cigarettes. We welcome that. Going beyond 18 would raise a much wider set of issues because there are many other things for which 18 is a trigger age, and it would not be satisfactory to try to change that by regulation.

The House is, as you can see, Mr. Deputy Speaker, gripped by this set of amendments. It is tempting to test the view of the House on them, but I do not sense that we would get very far, so I probably will not pursue the matter. However, I would be interested to hear the Minister’s comment on enforcement. Amendment No. 2 refers to “artistic integrity”. Who will judge that, and how will they be trained to do so?

Caroline Flint: In considering the exemption, which can be very tightly drawn, I had to consider what was sensible and how to act in proportion to the risk involved. Different places have approached the matter in different ways. Our exemption mirrors that in California’s smoke-free legislation, which has been held up as a shining example many times during our discussions. I also touched on the matter when I was in New York recently, as it concerns theatres there.

Hon. Members have asked who will decide what is integral to the plot or storyline. It will be for the performers and the management of the theatre or premises to satisfy themselves that smoking is an integral part of the artistic performance. Objections can be made to the enforcement authority, which will then investigate the matter and decide whether it wants to press the case. Ultimately, it is for the courts to decide whether smoking can rightly be considered an integral part of the artistic performance. We must not forget that the management of a theatre will want to be convinced that smoking is integral. They are, after all, responsible, by virtue of clause 8, for ensuring that smoking does not take place inappropriately. Other jurisdictions have found that they are able to enforce
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such legislation, but the consultation process will give us an opportunity to explore the matter further.

Sandra Gidley (Romsey) (LD): I am a little unsure as to whether the amendment would cover school plays. Would they be covered by the age rule, or would the amendment create an exemption to allow children under 16 to smoke?

Caroline Flint: In relation to that tortuous description, I shall look at the Hansard. Clearly, children under 16 are not allowed to smoke, so a potential offence would be committed in encouraging them to smoke. We have to grow up a bit about this. We must be realistic, and not forget that the few exemptions in the legislation sit alongside a real culture change in England, which is to be welcomed. Therefore, we must consider where we can have most effect, and the Bill amply provides for that.

David Taylor: To assist my hon. Friend, I am pretty certain that theatrical cigarettes are available that do not contain carcinogenic materials and would not be caught by the Bill in any way.

Caroline Flint: My hon. Friend makes a helpful point, and I should correct myself, because it is not an offence to smoke under the age of 16, but to sell cigarettes to those under 16. Given the number of schools that have healthy schools policies, however, I do not think that a single head teacher in the land would encourage smoking— [Interruption.] As the hon. Member for Northavon (Steve Webb) says from a sedentary position, the tabloids would have them if they did. We will have an opportunity to explore the issue further in the consultation.

The point raised by the hon. Member for Westbury (Dr. Murrison) about vehicles was explored in some depth in Committee. To protect the health of workers, the cabs of lorries will be smoke free unless they are for the sole use of the driver. I remind the House that, in response to the consultation last summer, the Road Haulage Association advised that most of its members have smoking policies that prohibit smoking in shared vehicles, and had no objections to the main aim of the policy. I have listened to the House, and the issue has been explored further in the other place. I will ensure that matters relating to vehicles will be subject to affirmative resolution.

Lords amendment agreed to.

Lords amendments Nos. 2 to 12 agreed to.

Clause 14

Code of practice relating to health care associated infections

Lords amendment: No. 13.

Caroline Flint: I beg to move, That this House agrees with the Lords in the said amendment.

Mr. Deputy Speaker: With this it will be convenient to consider Lords amendments Nos. 14 to 22, 24, 26 to 28, 35 and 37 to 58.

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Caroline Flint: This is simply a group of minor drafting and technical amendments.

Although amendments Nos. 13 to 15 are technical drafting amendments, they are important nevertheless, as they alter the definition of “health care associated infection” in the Bill and relate to the scope of the code of practice. It has always been the policy intention that the code can include requirements concerning infections that are caused or exacerbated by organisms already present on or in a patient’s body at the time of their entry into the health care environment. An example would be bacteria that are already present on a patient’s skin at the time of their admission to hospital and that infect a patient during or after surgery.

We had thought that the definition used by the Health Bill included such infections, so that the Secretary of State would have been able to include requirements relating to them in the code of practice. However, on further reflection in the other place, we realised that the definition used was capable of another interpretation that excluded infections caused by bacteria present on the patient’s skin which subsequently infected the patient as a result of the provision of health care. Such an interpretation would have meant that requirements relating to the prevention and control of those infections would have been outside the scope of the code of practice.

We therefore brought forward Lords amendments Nos. 13 to 15 to make sure that infections arising from micro-organisms present on or in the patient’s body prior to the person’s entry into the health care system are included in the definition of health care associated infection used by the Bill.

Dr. Murrison: Although these are described as “minor and drafting amendments”, they are, as the Minister said, quite important. I believe that Lords amendments Nos. 13, 14 and 15 were inspired by the Royal College of Nursing. They rightly recognise that organisms already present on a person but not doing any harm can become opportunistic pathogens in a health-care environment.

We await the electronic code of practice on the control of health care-associated infections. It would be interesting if at some point the Minister could update us on where it is. The British Medical Association managed to publish its code in February of this year.

Caroline Flint: I am happy to update the hon. Gentleman on where the code of practice is, but first let me respond to what he said about Lords amendment No 37. The amendment commences all regulation-making powers on Royal Assent, and speeds up our ability to lay the regulations by removing any need for us to lay separate commencement orders switching on the powers. That does not allow us to do anything that we could not already do via an alternative route. The alternative route was laying individual commencement orders to switch on regulation-making powers. We felt that that was too bureaucratic, and that commencing the orders automatically on Royal Assent was much more sensible.

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