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Health Bill (Programme) (No. 3)
Motion made, and Question put forthwith, pursuant to Standing Order No. 83A(6) (programme motions),
That the following provisions shall apply to the Health Bill for the purpose of supplementing the Orders of 29th November 2005 and 14th February 2006 (Health Bill (Programme) and Health Bill (Programme) (No. 2)):
Consideration of Lords Amendments
1. Proceedings on consideration of Lords Amendments shall (so far as not previously concluded) be brought to a conclusion one hour after their commencement at this day’s sitting.
Subsequent stages
2. Any further Message from the Lords may be considered forthwith without any Question being put.
3. The proceedings on any further Message from the Lords shall (so far as not previously concluded) be brought to a conclusion one hour after their commencement.— [Mr. Alan Campbell.]
Orders of the Day
Health Bill
Lords amendments considered.—[Queen’s Consent, on behalf of the Crown, signified.]
Mr. Deputy Speaker (Sir Alan Haselhurst): With this we may discuss Lords amendments Nos. 2 to 12 and 36.
4.51 pm
The Minister of State, Department of Health (Caroline Flint): I beg to move, That the House agrees with the Lords in the said amendment.
I thank their lordships, particularly my noble Friend Lord Warner, for their hard work on the Bill since it left this House. The modest changes before us now, which are the result of the constructive and collaborative approach taken in the other place, have improved the Bill, and I am therefore delighted to be able to accept all the Lords amendments today.
The legislation shifts the balance significantly in favour of smoke-free environments. Virtually all enclosed public places and workplaces will be completely smoke free by summer 2007. It will introduce new laws to enforce higher hygiene standards in the NHS and clearly strengthen clinical governance arrangements in light of the findings of the Shipman inquiry. Those are three important health manifesto commitments.
David Taylor (North-West Leicestershire) (Lab/Co-op): My hon. Friend refers to the summer of next year. Could she be a little more specific? An appropriate day would be 31 May, as the Minister is aware. Is that a day that finds favour with her?
Caroline Flint: I will not commit to any particular date at this stage, but we are having discussions with stakeholders about the countdown to the introduction of the legislation, and I hope to report back on the exact date in the autumn. We are working on that at the moment. As I have said previously, we felt that a date in the warmer weather might be more conducive to a ready compliance with the legislation, as and when it comes into effect.
Steve Webb (Northavon) (LD): I am in close contact with my local authority, South Gloucestershire, which is a great enthusiast for the smoking ban, but is also anxious that it will have inadequate notice of when everything will happen, so it would like a definite date as soon as possible. It also wants to know that it will have the resources to enforce the ban. Can the Minister assure us that local authorities will not be finding money out of their already very cash-strapped coffers to subsidise the enforcement of the ban?
Caroline
Flint: Officials are already meeting representatives of
the Local Government Association
and there are others who have asked some questions about the planning
for next year. We will clearly try to commit to a date as soon as
possible. We are also having discussions about a range of other issues,
including enforcement, and the Bill provides for the need to finance
and support local enforcement. It has been incredibly encouraging to
learn from both the Irish and Scottish experiences and from my recent
visit to New York, that on one level little punitive enforcement has
been necessary, although there will clearly be issues for those working
in this area, and that will be part of our discussions in the months
ahead.
Dr. Andrew Murrison (Westbury) (Con): I am grateful to the Minister for yesterday’s publication of the draft regulations. The trade is concerned whether it will have sufficient time to make the necessary adaptations. Will she assure the House that the definitive regulations will have a sufficient lead-in time, so that small businesses can make the necessary adaptations without suffering competitive disadvantage?
Caroline Flint: I hope to ensure that we get the regulations right. The regulations that we published yesterday are the result of considerable concessions with many different stakeholders. Obviously, issues will arise in the consultation, but we hope that the regulations give clear guidance to small and medium-sized organisations on how best to meet the requirements of the legislation.
I remind the House that the experience of how the law is enforced and how businesses have applied the legislation in Ireland and Scotland will help us in England and Wales. The latest information from Scotland indicates that sales have not gone down as a consequence of smoke-free legislation.
David Taylor: I have read the draft regulations, which are a fair stab at creating a workable set of regulations to move the legislation forward. The consultationwill finish towards the end of the summer recess, on2 October. Will the Minister say whether she would consider suggestions that might arise very early in that Session, which starts on 9 October, if a debate were sought from Mr. Speaker? Will she give such an assurance at this stage?
Caroline Flint: Obviously, I cannot control parliamentary time, but I am happy to provide all hon. Members with an indication how the discussions proceeded in the consultation. There is a wonderful opportunity for hon. Members and local groupsand organisations to participate in both a health opportunity and the countdown to smoke-free England in 2007, which I hope will have a fun element.
This group of
amendments includes all the changes to the smoke-free provisions made
in the other place. Amendments Nos. 1, 5 and 10 are all minor drafting
amendments. Amendment No. 1 corrects a minor drafting
inaccuracy—strictly speaking, licensees do not authorise the
consumption of alcohol; they authorise the sale of alcohol for
consumption. Amendments Nos. 5 and 10 were introduced by Earl Howe, who
felt that the clarity of the drafting could be improved. We
saw no reason to object to his suggested wording in the other place, and
we are equally happy to support it
here.
Amendments Nos. 2, 3, 7, 8, 9 and 11 relate to exemptions in regulations for those participating as performers in a performance in which artistic integrity makes it appropriate for performers to smoke. In Committee, I provided reassurances that the Government were minded to make an exemption for artistic performances, but the detail, as with all proposed exemptions, is a matter for the regulations.
During the Bill’s passage through the other place,we realised that it would not be possible to rely onthe general power in clause 3(1) to make such an exemption in all circumstances. The prohibition on making any exemptions for licensed premises in clause 3(3), which was introduced following a free vote on Report, would have prevented any exemptions for artistic performances in licensed premises. As we are aware, many theatres and other performance spaces carry out their activities under only one licence, which is likely to cover not only the whole of the premises, but alcohol sales and theatrical performances. In those circumstances, we realised that the prohibition in subsection (3) came into play—in other words, it would be unlawful to make an exemption.
We introduced amendment No. 2 in the other place in order to relax that prohibition so far as is necessary to allow certain performers to smoke during a performance in all possible venues. The amendment also ensures that the exemption can be applied only to the relevant performer or performers. Of course, the detail of the exemption will still be a matter for regulations. The consultation on the draft regulations that was launched yesterday specifically asked for views on the exemption proposed for performers, particularly concerning whether the arrangements are adequate to prevent the development of loopholes.
5 pm
David Taylor: This morning, the all-party groupon smoking and health, which I have the privilege of chairing, discussed this aspect of the regulations and sought assurances on whether the exclusion would refer to rehearsals of the performance as opposed to the performance itself. Can the Minister reassure us on that particular point?
Caroline Flint: Through amendment No. 3, we have left the door open on exempting rehearsals, as we are still yet to be persuaded. We must not forget that any exemption is for the performer, not the premises, and that the smoker will be facilitated only when it is integral to the plot or storyline. We must be clear that this exemption is not about allowing certain people to smoke freely. From a purely practical point of view, we must ask whether it would be sensible or practical to light up and stub out cigarettes each time the rehearsal of a performance stops and starts. We will seek to clarify that through the consultation. As I said, I have taken note of the experience not only of Ireland and Scotland but of New York and California, which have exemptions in these artistic areas.
Mr. Greg Knight (East Yorkshire) (Con): The Minister kindly said that she would contact every Member in respect of this matter, so I presume that she is thinking of writing to us all. When she does so, will she include in that letter her conclusions on the issue of rehearsals following her assessment of any further representations that she may receive?
Caroline Flint: I should like to be able to give a clear indication of the Government’s point of view following the consultation, and I will seek to make that as clear as possible for Members through a letter or some other appropriate medium.
Amendments Nos. 7, 8, 9 and 11 are consequential amendments.
On amendment No. 4, there was some concern inthe other place that the power in clause 4 to make additional places smoke free was rather broad and could be used to make all sorts of places smoke free even where there was no significant risk of exposure to second-hand smoke. Given that we have consistently made it clear that we will use this power only to protect people where there is a significant risk of exposureto second-hand smoke, we had no objections to amendment No. 4, which raised the threshold for its use under the Bill. The amendment means that it would only be possible to make an additional place smoke free where “in the authority’s opinion”—that of the Secretary of State in England and the National Assembly in Wales—
“there is a significant risk that, without a designation, persons present there would be exposed to significant quantities of smoke.”
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
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 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 noticeas possible of the definitive regulations. That is fairand reasonable. I note that the consultation ends on9 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.
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 appreciationof 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 acrossthe 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
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
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’s attitude towards these amendments with his party’s liberal attitude on 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
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, and will ensure that matters relating to vehicles will be subject to affirmative resolution.
Lords amendments Nos. 2 to 12 agreed to.
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.
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.
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