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;
However,
- 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),
(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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