Select Committee on Health First Report

5  The Government's proposals

52. In November 2004, the Government published a public health White Paper entitled Choosing Health: Making healthy choices easier.[50] The White Paper contained detailed proposals for creating a smoke-free environment in many public places and workplaces. Specifically, the Government pledged to ensure that:

  • All public places and workplaces (with the exception of licensed premises) would be smoke-free;
  • All restaurants would be smoke-free;
  • All licensed premises in which food was prepared and served would be smoke-free;
  • Smoking would be prohibited in the immediate area of the bar in all licensed premises;


  • Licensed premises which did not prepare and serve food would be free to choose whether or not to allow smoking, as would membership clubs.

It was acknowledged in the White Paper that special arrangements would have to be made for establishments such as prisons, hospices and long-stay residential care units, and the Government undertook to consult on the nature and scope of any exemptions from the general smoke-free legislation. The planned timetable was that all public places and workplaces (except licensed premises and those establishments exempted from the legislation) would be smoke-free by the end of 2007, while the provisions for licensed premises would come into force by the end of 2008.

53. In justifying the exemptions for some pubs and clubs, Choosing Health stressed the degree to which public opinion had informed its conclusions, particularly on the issue of smoking in public places, and referred to an Opinion Leader Research (OLR) survey commissioned by the King's Fund. Three-quarters of the respondents to this survey agreed with the proposition that people should be prevented from engaging in activities which damaged the health of others; but, the White Paper claimed, respondents did not believe that this meant it was necessary to introduce a complete ban on smoking in all licensed premises.[51]

54. The basis for these assertions is difficult to understand. The OLR survey demonstrated that 69% of those surveyed agreed that prohibiting smoking in public places would be an effective way of reducing the overall prevalence of smoking. The idea of a partial ban with exemptions was not a subject on which respondents to the OLR survey were questioned. Furthermore, Choosing Health itself accepted that public opinion on banning smoking was moving, arguing that there was popular support for some kind of legislative solution to the problem of smoking in public whereas no such support had existed in 1998, when Smoking Kills was published.[52] We find the assertions in Choosing Health, supposedly based on the evidence of opinion polls, misleading and unhelpful to the debate about public support. Moreover, recent research, detailed in Annex 2, shows that public support is moving rapidly and decisively in favour of a comprehensive ban on smoking in public places and workplaces.

55. Appearing in front of the Committee in February 2005, the then Secretary of State for Health, the Rt Hon Dr John Reid MP, defended the approach towards smoking in licensed premises. He argued that a comprehensive ban, such as that by then in force in the Republic of Ireland, would encourage some smokers to drink and smoke at home, thereby increasing the exposure of non-smokers to SHS in the home.

    I came to the conclusion that [a comprehensive ban] was not a good thing on health grounds, apart from anything else, because you get a displacement of smoking from some public areas to the home—and most of the evidence about passive smoking is about the home.[53]

Dr Reid also dwelt on the need for any legislation which restricted smoking in public to balance the rights of those who wanted to enjoy a smoke-free atmosphere whether at work or as patrons in licensed premises and restaurants and of those smokers who wished to continue to smoke (a legal habit involving a legal substance) while at leisure in a public place.

56. Dr Reid further argued that the number of deaths in the hospitality industry—the sector in which some establishments would remain exempt from smoke-free legislation—attributable to exposure to SHS was very small. He estimated that there were between 40 and 50 deaths a year, and that the introduction of the legislation outlined in Choosing Health would reduce this to four or five deaths a year. This was "statistically insignificant in terms of any individual person" [sic].[54]

57. During the summer of 2005, the Government carried out a consultation on the proposals contained in Choosing Health. In particular, it sought opinion on the definitions of 'smoke', 'smoking' and 'enclosed', on other public areas which should be smoke-free, on the exemption for licensed premises where food was not prepared or served and on the proposed longer lead-in time for licensed premises.

58. The responses to the consultation demonstrated little public support for the specific proposals contained in Choosing Health; the overwhelming majority of the 57,000 respondents (over 90%) favoured a simpler and more comprehensive ban on smoking in public places, while over 80% were opposed to licensed premises being granted a longer lead-in time. The "vast majority" also believed that membership clubs should not be exempted from the legislation.

59. When the Cabinet came to consider the proposals and the results of the consultation in order to agree the draft Health Bill in October 2005, it was widely reported that several Cabinet ministers, including the new Secretary of State for Health, the Rt Hon Patricia Hewitt MP, were in favour of broadening the scope of the legislation and introducing a comprehensive ban on smoking in public places like that in force in the Republic of Ireland. However, the Cabinet eventually agreed that the Bill should reflect the proposals originally set out in Choosing Health and included in the Labour Party's manifesto for the General Election of May 2005. Ms Hewitt also announced that the policy would be renewed after 3 years. She told us that the Department of Health would "monitor the impact from day one" and conduct a "full review" at the end of the 3 year period.[55] We list our proposals for a monitoring and evaluation strategy in Annex 1.

60. The Health Bill was published on 27 October 2005. Clause 2, section 1, states that "premises are smoke-free if they are open to the public", while section 2 stipulates that "premises are smoke-free if they are used as a place of work".[56] The exemptions to these smoke-free provisions are provided for in clause 3, section 1 of which begins "The appropriate national authority may make regulations providing for specified descriptions of premises […] not to be smoke-free despite section 2".[57] It continues by providing examples of the sorts of premises which the regulations might exempt.

    Examples of descriptions of premises which may be specified are the following, or any subset of the following—

    (a)  premises where a person has his home, or is living whether permanently or temporarily (including hotels, care homes and prisons and other places where a person may be detained),

    (b)  licensed premises,

    (c)  premises in respect of which a club premises certificate is in force.[58]

61. The Bill therefore gives only a very vague sense of the Government's intentions. Effectively, it stipulates that, for England, the Secretary of State for Health will, after the enactment of the legislation, lay before Parliament regulations which will provide the details of those public places and workplaces which are to be smoke-free.[59] This creates two main problems. The first is that it requires Parliament to scrutinise a Bill without knowing its detailed effects. The Government has made its broad intentions clear, but has not provided detail on the extent and implementation of the legislation in the face of the Bill. Given that the regulations will be so important a part of the smoke-free legislation, a draft should have been made available to the House before the Bill reached second reading. The second problem is that the regulations, when laid before Parliament, cannot be amended in the way that the Bill itself can be; they must be approved or rejected. This denies to Members a choice, which many would wish to make, of approving some exemptions and rejecting others. We recommend that two draft regulations be laid before Parliament: one to deal with exemptions for licensed premises and clubs, the other to provide for premises where a person has his home or is living.

62. Another aspect of the Health Bill which requires comment is that Crown immunity applies. This means that government departments, including the Ministry of Defence and HM Prison Service, are not covered by the smoke-free provisions of the Bill. This appears not to have been the original intention. The Ministry of Defence submitted a document to the Department of Health's consultation on the draft bill, asking for exemptions, which suggests that it was believed that the Bill would include Crown property. Subsequently, the decision was reversed, but the Bill includes an exemption for prisons, although this can only apply to private prisons. Neither the Department of Health nor any other Government witnesses made reference to the issue of Crown immunity during our inquiry. It is not mentioned in the Explanatory Notes to the Bill nor was any reference made by Ministers at the Bill's second reading. We find these omissions extraordinary especially as Crown Immunity removes the necessity for exempting many premises.

50   Department of Health, Choosing Health: Making healthy choices easier, Cm 6374, November 2004. Back

51   ibid., p 97 Back

52   ibid., p 99 Back

53   Minutes of Evidence taken before the Health Committee, The Government's Public Health White Paper (Cm 6374), 23 February 2005, HC 358-i, Session 2004-05,Q 7. Back

54   ibid., Q 51 Back

55   Minutes of Evidence taken before the Health Committee, Responsibilities of the Secretary of State for Health, 27 October 2005, HC 623, Session 2005-06, Q 4. Back

56   Health Bill, clause 2 (1-2) [Bill 69 (2005-06)] Back

57   ibid., cl. 3 (1) Back

58   ibid., cl. 3 (2) Back

59   In Wales, this will be a matter for the National Assembly to decide. Back

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Prepared 19 December 2005