Select Committee on Health First Report


8  Compliance

118. It is widely believed that compliance is dependent on public support, and that if a prohibition on smoking is sufficiently popular, it will be largely self-enforcing. Mr Graham Jukes, Chief Executive of the CIEH, told the Committee that "the real key to good enforcement is voluntary compliance".[120] This was also the very clear message which the Committee received during its visit to Dublin.[121]

119. The Government believes that the need for public support reinforces the case for a partial rather than a comprehensive ban. The Minister for Public Health explained to the Committee:

    We have had to think very strongly about issues around enforcement, and I know there are lots of different views on that, but part of the reason why the voluntary bans and restrictions have been so successful is that they have gone with the grain of public opinion and therefore they have been pretty much self-enforcing.[122]

120. The evidence which the Committee has heard substantially contradicts the Government's contention that public opinion is not yet ready for a ban. The evidence also indicated that, in addition to an adequate level of public support, compliance requires: clarity in the legislation, so that it is easily intelligible; an adequate regulatory framework including appropriate fines; and committed political leadership.

Public support

121. The responses to the consultation carried out by the Department of Health demonstrated that the idea of exemptions for 'drink-only' pubs and membership clubs commanded little, if any, public support. Other surveys demonstrate that public support for a comprehensive ban is now at or around 50%, which would be adequate to ensure widespread compliance.[123] Indeed, a recent survey by YouGov shows levels of support of nearly 70%.[124] The Committee has also heard from the Director of ASH that support for a comprehensive ban on smoking is at a higher level in the UK now than it was in the Republic of Ireland prior to their introduction of a ban.[125]

Clarity

122. A range of organisations argued strongly that a ban should be clear, simple and intelligible. The organisations included those upon whom the burden of regulation and enforcement will fall. Mr Derek Allen, Executive Director of Local Authorities Co-ordinators of Regulatory Services (LACORS), explained:

Mr Jukes added that "the Government is trying to make something very complex out of what is quite a simplistic way of approach to protect all workers".[127]

123. The hospitality industry took a similar view. Mr Cotton, Chief Executive of the BHA, described achieving compliance with a partial ban as "totally impossible".[128] Mr Bish, Chief Executive of the ALMR, added that "if there is clarity, compliance comes through".[129] The Committee also heard numerous representations from the Republic of Ireland which stressed the importance of a simple regulatory regime in achieving widespread compliance.[130] Mr Hayward of the BBPA told the Committee that, while he believed that the Government's proposals were enforceable, the regulatory burden would nonetheless be very high.[131]

124. The Committee also heard evidence that the proposed partial ban would send out a confused message because of its complexity. Mr Ainsley of the GMB, which has taken a particular interest in the issue of the protection of workers from SHS in the workplace, said:

    If the Government are serious about this then you have to change the culture. If you send mixed messages about it is banned, it is not banned, it is banned here, it is not banned there, then you are not going to change the culture. You are not going to do what you set out to do in the first place.[132]

125. While the exemptions for 'drink-only' pubs and membership clubs were the principal focus of criticism, concerns were also raised about the inadequate or confusing terminology upon which the partial smoking ban depends. Mr Allen told the Committee that the definitions of 'enclosed' and 'partially enclosed' were excessively complex, based on a percentage of coverage, since these could require detailed measurements to be made to determine their status under the law. He added that "we are saying we need to look at simplicity, e.g. should it be a single wall with a roof […] so you can see that and it is pretty obvious to everybody that that is considered to be enclosed".[133] The CIEH also questioned the Government's proposed definition of the sort of products which a licensed premises could serve without being classified as serving 'food': the suggestion of shelf-stable pre-packed products was unsatisfactory because "that does not include a pickled onion or a pickled egg and it is that kind of ludicrous analogy that beggars belief".[134] The Government acknowledged these potential problems in the Regulatory Impact Assessment aspect of its consultation, but, despite the overwhelming rejection of the proposals in the response to the consultation, has decided to press ahead regardless.[135]

126. The Government's proposals would be given added complexity by the fact that a comprehensive ban will be introduced in Scotland in March 2006 and is planned for Northern Ireland and Wales. The position would therefore be that different regulations governed smoking in public in different parts of the United Kingdom, making the regulations in England less intelligible still.

Fines

127. A third plank of an efficient and enforceable regulatory regime is a system of penalties which is sufficient to act as a deterrent and in particular to prevent wilful illegality by proprietors. The Government has proposed that there should be three types of offence—smoking in an area in which it is prohibited; failure by the proprietor to prevent smoking in an establishment in which it is prohibited; and failure to provide adequate signage; [136] and that the fines should be £50 for an individual who infringes the ban and £200 for the proprietor of the premises upon which the infringement occurs (although these penalties are not stipulated on the face of the Bill). Caroline Flint defended the fines on the basis that "we are not in this sense trying to criminalize people, we are trying to get their support and, in effect, to change their behaviour".[137] These fines are very low compared to those in the Republic of Ireland, where penalties of up to €3,000 are levied. These higher fines are aimed at publicans who deliberately flout the law. Without comparable fines, it is hard to see how wilful and sustained non-compliance will be avoided in England.[138]

Political leadership

128. Finally, a successful ban requires strong and committed political leadership. In the Republic of Ireland, the then Minister of Health, Micheál Martin TD, made the introduction of a comprehensive ban on smoking the centrepiece of his tenure of the Department of Health and Children, and engaged with a wide variety of bodies in order to secure and promote the legislation. Political support for a smoking ban in the Republic of Ireland is in stark contrast to the approach of the UK Government which has been muddled and vacillating. Policy towards the control of smoking in public places and workplaces has been a litany of good intentions undermined by faint-heartedness. The strong public health message embodied by Smoking Kills, the White Paper of 1998, has been hedged about with so many qualifications and exemptions that the legislation to protect non-smokers from the harmful effects of secondhand smoke has lost its clarity of purpose. Nor has the Government chosen to represent the ban on smoking primarily as an issue of worker protection, as was done in the Republic of Ireland, but instead as a more nebulous 'public health' measure. As a result of this failure of leadership, the Chief Medical Officer, who admitted that he considered resigning over the issue, described the Government's legislation as putting "Britain among the laggards of public health policy-making internationally rather than the global leaders".[139]

129. We conclude that there are four key components to achieving widespread compliance:

  • an adequate level of public support;
  • clarity and simplicity in the regulations governing a ban;
  • a framework of penalties which adequately and appropriately target those who fail to comply with the law, in particular those who deliberately flout the law;
  • strong and committed political leadership.

130. The last three of these are sorely lacking in the Government's proposals. Widespread compliance through a high degree of self-regulation will only be achieved by a comprehensive ban without exemptions for any licensed premises or membership clubs.


120   Q 414 [Mr Jukes] Back

121   See Annex 3 Back

122   Q 545 Back

123   Q 420 Back

124   See Annex 2 Back

125   Q 429 Back

126   Q 408 [Mr Allen] Back

127   Q 408 Back

128   Q 303 Back

129   Q 304 [Mr Bish] Back

130   Marie Killeen of the Office of Tobacco Control told the Committee that well over 90% of premises in the Republic of Ireland were compliant with the ban there. Back

131   Qq 305-06 Back

132   Q 387 [Mr Ainsley] Back

133   Q 416 Back

134   Q 415 Back

135   Department of Health, Consultation on the Smokefree Elements of the Health Improvement and Protection Bill, June 2005, pp 29-30. Back

136   ibid, p. 31. Back

137   Q 594 Back

138   The Committee found that, in the Republic of Ireland, 93% of hotels were compliant with the legislation; 99% of restaurants; 90% of licensed premises; and 97% of other premises. The Office of Tobacco Control noted that 96% of all indoor workers reported having smoke-free workplaces. The number of prosecutions was very small (13 to the end of 2004). All of this indicates very widespread compliance. Back

139   Q 448 Back


 
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Prepared 19 December 2005