Health Bill

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Dr. Murrison rose—

Caroline Flint: Before I take another intervention, I wish to say how pleased I am that the number of homes in which smoking is banned in increasing. It has risen from a reported 45 per cent. in June 2003 to 58 per cent. in June 2005. That is to be welcomed. It underpins the strong message in choosing our health. Ultimately, it is about people choosing health for themselves, as much as it depends on legislation or intervention by the Government or others.

Dr. Murrison: I am pleased that the hon. Lady joined the Labour party to reduce inequalities—but by that measure, clearly her membership has failed, because health inequalities are becoming worse. Does she understand that making the distinction between pubs that serve food and those that do not will heighten health inequalities in both relative and absolute terms? Smoking dens will be created, especially in least well-off areas. Surely she understands that.

11.45 am

Caroline Flint: Tackling health inequalities involves a range of measures. That is why, under the Bill, more places where people from deprived communities both live and work will be covered than ever before. Statistics show that there are more workplaces that are currently smoke-free in middle-class professional areas than in manual working areas.

I take the point about pubs that do not serve food. We have said that we shall monitor and review the situation. People, especially workers in manual professions, a huge swathe of bar workers whom I would incorporate into the group that we are discussing, and those who work elsewhere in the hospitality industry, will be protected for the first time. They will be able to work in an environment without smoke, or be protected at the bar as they have never been protected before. That is a step forward in dealing
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with health inequalities. We are clear about what we are saying here. On Second Reading the hon. Member for South Cambridgeshire tried to claim that his proposals were the same as ours.

Mr. Lansley: No I did not.

Caroline Flint: They are close to ours—I am just looking at the Hansard report of those proceedings. The hon. Gentleman referred to self-regulation followed possibly by legislation. He was not clear about how for how long he would continue to allow self-regulation.

Mr. Lansley: Yes I was.

Caroline Flint: I shall give way to the hon. Gentleman if he will make matters clear.

Mr. Lansley: On Second Reading I said:

    “As we made clear before the election, we would have included provisions in a public health Bill to enforce a reduction in smoking in circumstances in which a self-regulatory solution had not been effective in three years.”—[Official Report, 29 November 2005; Vol. 440, c. 161.]

Caroline Flint: That underpins an amendment that the hon. Gentleman has tabled. It suggests that if there were a Conservative Government, we would have a system under which with voluntary bans would be allowed to continue. When we discuss that amendment I shall explain why we shall not accept it. It would not help to move the agenda forward. It would raise more questions about how to determine whether someone had self-regulated to a proper extent to reduce smoking environments, as well as a lot of issues in connection with regulations—but we shall come to that when we deal with the amendment.

Now I want to say a little about clause 1 and our definition of smoking, which was picked up by the hon. Member for Northavon. The definition of smoking covers being in possession of tobacco, substances that include tobacco or other substances that are alight. That means that the Bill will cover non-tobacco cigarettes, such as herbal cigarettes, and that being in possession of any sort of lit substance—for example, smoking a hookah pipe—would be classified as smoking. We have included non-tobacco products following consultation responses, which pointed to published evidence of the harmful emissions from non-tobacco cigarettes. I think that that was provided by Action on Smoking and Health.

We also received consultation responses that recommended widening the definition to allow easier enforcement. With a narrow definition involving only tobacco, there is a risk that smokers will claim that their cigarette is herbal, which would result in dispute and practical enforcement problems for both the owner of the premises and the enforcement officers. That has been a problem in Ireland, which did not have such a definition to start with. We do not want enforcement officers to have to send cigarettes for testing, at a cost disproportionate to the offence, or altercations between members of the public, or premises owners and members of the public, over whether a cigarette is tobacco or herbal based. I hope
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that I have answered questions sufficiently. I will follow up in writing some of the points raised this morning.

Question put and agreed to.

Clause 1 ordered to stand part of the Bill.

Clause 2

Smoke-free premises

Steve Webb: I beg to move amendment No. 40, in clause 2, page 2, line 17, at end insert—

    ‘provided that the part of the premises that is open to the public or (as the case may be) used as a place of work is segregated from the remaining premises to standards that the appropriate national authority may specify in regulations.’.

The Chairman: With this it will be convenient to discuss the following amendments: No. 46, in clause 3, page 2, line 40, at end insert—

    ‘provided that any area of a premises that is provided as not smoke-free at any time shall not share floor space unsegregated by a wall or door with any area that is smoke-free at the same time.’.

No. 48, in clause 3, page 3, line 5, at end insert—

      ‘(c)   requirements for segregation of smoking and non-smoking areas, provision and maintenance of ventilation systems, and restrictions on deployment of staff in smoking areas.’.

Steve Webb: This group of amendments touches on the issue of separation and segregation. As I said in my opening remarks, now that there is not to be a total ban, there will be parts of premises and categories of buildings where some smoking is allowed, which might be adjacent to areas in which smoking is not allowed. Therefore, we must consider how the distinction between smoking and non-smoking areas should be drawn, how to ensure that smoke in smoking areas is not detrimental to non-smoking areas, and how they should be separated.

Amendment No. 40 would amend clause 2(3), which concerns premises that are described in the explanatory notes as

    “someone’s home as well as their workplace”,

such as someone’s home in which music lessons are given or from which financial services are offered.

Subsection (3) seems to say that areas into which the public may come or in which they are served will be smoke-free, but that other parts of the premises do not have to be smoke-free. Suppose that music lessons are given—or some other service is provided—in the front room of a house; that does not mean that the person who owns the house or provides the service from home cannot smoke in the kitchen. Amendment No. 40 is about the distinction between two parts of the same premises. Is it sufficient to say, “We provide music lessons in the front of the house, so there is no reason why we shouldn’t smoke in the back of the house,” considering that if the smoke travels it will be detrimental to people using the public place, which is a workplace, at the front of the house? What are the dividing lines? How are such places to be cordoned off?

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On the theme of music lessons, I play the oboe in my spare time. My oboe teacher was a pipe smoker, and the small practice rooms in our school were constantly full of pipe smoke, although the teacher never smoked while I was in there. That probably was not an ideal environment in which to teach a pupil to play a wind instrument.

We are talking about a situation in which smoke from another part of the house or premises could waft in to where people are having a lesson or receiving a service. What segregation should there be? The amendment suggests that there should be some standard to determine that set down by the appropriate national authority. Clearly, circumstances will differ in private houses, but we want to avoid a situation in which the letter of the law is followed so that there is no smoking in the immediate place in which the service is provided, yet there is smoking elsewhere on the premises, which, because of the inadequate segregation, is detrimental to the public and anyone else who works in that environment.That is the thinking behind the amendment. [Interruption.] Excuse me; that is not a smoker’s cough, I assure you, Mr. Illsley.

Amendments Nos. 46 and 48, which would amend clause 3, concern similar issues. Amendment No. 46 is also about segregation, but in relation to pubs and similar environments. The amendment provides that areas designated as smoke-free should be substantially separated by a wall, door, or similar. Relevant issues that we touched on briefly in our previous discussion include the 1m-from-the-bar rule.

The Secretary of State said on 26 October that

    “smoking in the bar area will be prohibited everywhere . . . We shall consult further on the best method to achieve this, including on discrete smoking rooms or areas to protect staff.”

The amendment shows that whatever may come out of the process, we do not think that an arbitrary distance with no physical separation achieves the goal. I accept the Minister’s point that custom and practice—good form, decent employers, people who do not want their bar staff to have someone puffing a cigarette straight in their face—might have come up with the standard of one metre, but I hope that the Minister will accept that there is no health basis for it. Smoke circulates; the second that somebody opens the door to come into the pub, smoke wafts around. It is hard to say that a separation by distance will achieve the public health and safety goal that should be the purpose of the legislation. If the Government insist that there should be areas where smoking is permitted—we remain of the view that there should not—they should be clearly separated by some physical barrier.

I shall now move to amendment No. 48. There will continue to be places where workers will be exposed to second-hand smoke; the non-food pub is a classic example of that—albeit not within a metre of the bar. To say that people who work there will be thrown to the wolves might sound slightly hysterical, and I would never want to do that, but essentially they will be abandoned beyond the existing health and safety legislation. Workers in private clubs will, essentially, have to lump it. The amendment says that that is not good enough. If the Government insist on some
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workers still being subject to second-hand smoke, we should none the less beef up the health and safety protection that they get. We suggest that even for them, there should be restrictions on the

    “deployment of staff in smoking areas.”

One possibility is that the Government will come up with a “smoking carriages” idea: in pubs that do not serve food, smoking will be permitted in sealed rooms. But who has to work in those sealed rooms? Will cleaning staff have to go in? Will bar staff have to take the drinks away? What happens if a fight breaks out? Who will have to go in then?

Amendment 48 asks for clear restrictions so that workers know what they do and do not have to do in terms of deployment to smoking areas. Essentially, they are being asked to go into an unhealthy environment. It is not good enough to say that that will be done by negotiation with the employer. In the past I have given the example of Sunday trading, when people may have a theoretical right not to be forced to do something, but when the individual employee, relative to their employer, can be in a vulnerable position. If the Government were to say that the remaining workers have no protection beyond the existing health and safety rules, that would be unsatisfactory.

So our third amendment would set out in clause 3 requirements for segregation and ventilation. As I understand it, the ventilation required to get rid of all the particulates would be something of a whirlwind, which is not credible. There should at least be some regulation so that if staff have to go in and clean, or take glasses away, they know where they stand. If this is a Health Bill about the health of workers, they need enforceable rights. They need to know where they stand, what they can be reasonably expected to do and how often. It is not a private matter or a free collective bargaining issue. It is about their health and safety, and we believe that the amendment would provide the opportunity to protect workers who have otherwise been neglected by the Bill.

I will now draw together the threads of the three amendments. Our focus is on concepts of separation and segregation in the imperfect world that the Government want to take us to. We want to deal with the fact that smoke drifts, and that a 1 m exclusion zone, or anything else of that kind, will not work. We want to give the workers who will, residually, still suffer from the Government’s timidity some rights to protect their health.

12 noon

Dr. Murrison: There was a great deal of sense in the hon. Gentleman’s remarks. I am not usually kind to the Liberal Democrats—he has probably noted that—but on this occasion he has made a useful contribution and opened up an important debate. It is a debate on which the Minister has failed. We are considering a workplace. In general we are concerned, with respect to workplaces, about occupational exposure standards, airborne contaminants and the levels of those that are regarded as safe, and the Control of Substances Hazardous to Health Regulations. I know
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that my right hon. Friend the Member for North-West Hampshire (Sir George Young) is keen on that issue and he will return to it in his amendments.

We are dealing with a workplace that appears to be poorly regulated in comparison with other workplaces, and it is appropriate for us to consider that and decide how we might improve the occupational health of the people who work there. I declare an interest in that before I was elected to this place I was a consultant occupational physician. As I read the Bill, I was staggered by the lack of consideration that the Minister has given to what would be regarded, in an occupational setting, as frankly minimal standards in the matter of what it is or is not reasonable to expose workers to.

We have heard nothing from the Minister about COSHH or about occupational exposure standards. The debate about segregation—physical segregation and segregation by time of exposure, distance and ventilation—seems not to have been considered by the Minister at all; or, if it has, that has been merely en passant. In particular I am concerned that the Minister has not adequately explored the question of ventilation and that perhaps it has not been considered among the possible exemptions of which she gives examples. She might consider ventilation for clubs, for example, that might be exempted under the regulations. Perhaps we might also have occupational exposure standards for tobacco smoke to protect workers in those places.

I am alarmed by the poverty of imagination and the Minister’s ability to ignore, in the Bill, normal occupational hygiene measures and language. It is almost as if the Minister is telling us that we are dealing with a workplace, but that it is not quite a workplace in the normally accepted way of thinking. If she went to any industrial complex she would find occupational hygienists measuring air flow, airborne contamination and the rest of it to the nth degree, yet there is no reference to those practices in the Bill.

I urge the Minister to think seriously about bars and clubs as workplaces rather than just giving us polemic about protecting workers’ rights. I urge her to consider how proper workplace standards might be applied to people who work in those pubs and clubs. If she did that, she would, I think, come up with a very different Bill, which would, for example, mention such things as the Health and Safety Executive, COSHH and occupational exposure standards. There is nothing in the Bill about them and no reference, even in the guidance notes, to any of them, although they are the weft and warp of normal occupational hygiene. She has ignored them and all that we have are illogicalities. No serious thought is given to how to separate workers from a potentially noxious substance. There is the 1 m from the bar rule, but we know—the Minister has admitted—that it has no basis in fact. There is no evidence base for it. It has been plucked out of the air.

There is a reference to smoking at the bar. I suppose that we can understand that someone who does not smoke and who is serving behind the bar might find that offensive so, anecdotally, there is a reason for specifying smoking at the bar in the Bill or the
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guidance, but there is no evidence. No one has gone out and done any serious measurements relating to exposure to tobacco smoke which would inform the Bill; everything is anecdotal. We should not be legislating on the back of anecdote. We need to legislate on the basis of evidence, but there is a poverty of evidence in the Bill so I hope very much that the Minister will take a more serious look at the issue. Perhaps we could have rather less polemic and rather more evidence. If she provides that, we will end up with a Bill that is considerably better than the current one.

Caroline Flint: Clause 2(3) covers premises that are only partly public and workplaces, for example, where services that the public use are housed in someone’s private residence. The example of a music teacher was given. Another example might be a GP who has his surgery in his home, or a pub where the tenants live on the premises. In respect of those examples, subsection (3) provides that any area of the property to which the public have access will have to be smoke-free. As was outlined and as is clear in the Bill, smoking will still be allowed in private areas of the premises, as the Bill is concerned only with public places and workplaces.

I understand the intention behind the amendments tabled by the hon. Member for Northavon, but I am concerned about putting those measures in the Bill. One effect of amendment No. 40 would be to require public smoke-free areas of the premises to be segregated from the private areas of the premises if smoking was ever to take place in the private areas. I understand that the provision the hon. Gentleman is challenging us to move towards has not been felt to be absolutely necessary in Scotland or Ireland. Although I acknowledge his point, there are issues for people who use their private premises as a workplace regarding the responsibility on them for ensuring that the public have access only to smoke-free areas. The amendment would provide a power to make regulations specifying the requirements for that segregation. I do not believe that that is a matter on which we should legislate in the Bill. It is up to the individuals living in the private spaces to decide how they will fulfil their obligation under the Bill to ensure that the public areas of the premises are smoke-free.

There are so many different examples that we could give in relation to smoke-free places, whether partially or wholly, that we could find ourselves in a difficult situation, trying to cover all bases in the Bill. The provision in the Bill for regulations will give us a chance to produce draft regulations, discuss the issues and approve the regulations at a later date. I understand the hon. Gentleman’s concern and intention, but specific requirements for segregation, as outlined in the amendment, would be over- burdensome on this occasion.

Steve Webb: The Minister will notice that amendment No. 40 does precisely what she has said should be done: it would not put in the Bill provision for precisely how things would work, but would give the national authority the power to make regulations.
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If we do not make regulations, presumably the issue will be decided by the courts and we will have a situation in which someone says, “I teach in the front end of my very big front room, which is smoke-free. I smoke occasionally at the far end of my front room, but that’s such a long way away that I am not breaching the rules.” Surely if we do not specify matters in regulations systematically, they will be decided ad hoc in the courts.

Caroline Flint: The intention is clear from what we are saying about places to which the public have access being smoke-free. It would be incredibly burdensome to go into greater detail on buildings that are part private and part public, a few examples of which have been cited. We might specify to someone, for example, whether they should have double doors, what sort of doors they should have and so on. There are balances to be struck. Obviously, hon. Members will raise issues in Committee and I shall reflect on them outside Committee, but I am not convinced at the present time. I understand that, in both Ireland and Scotland, the proposed measure was felt to be unnecessary; it was felt unnecessary to be more prescriptive.

Dr. Murrison: Does the Minister agree that if she treated places in which people might be exposed as workplaces, the dilemma to which she refers would be avoided? Surely that is the crux of the matter.

Caroline Flint: I will try to cover all the contributions that have been made, and if I do not I shall be happy for hon. Members to intervene. However, I shall be grateful if hon. Members will give me a chance to answer their points rather than constantly repeating them. The point made by the hon. Member for Westbury applies in different ways to all the amendments put forward by the hon. Member for Northavon. Rather than both of us repeating ourselves, I shall come to them in due course.

On amendment No. 46, clause 3(3) sets out in detail how we might regulate to provide for exemptions from the prohibition on smoking in closed public places and workplaces. They might apply to whole premises or to areas of premises, and the exemptions will apply only if specific conditions are met. We will set out those conditions in regulations. Amendment No. 46 is an attempt to specify in the Bill the sort of conditions that we have clearly said, both during the consultation process and when introducing the Bill, that we intend to put into regulations.

In many respects, particularly in relation to clause 3, we have put headline issues into the Bill to show intent—to help people to understand what the Bill is all about. The regulations will have to deal with the wide variety of ways in which the law might be interpreted. That is why regulation-making powers will be an important part of the next stage of the process. When drawing up and consulting on the regulations, we shall consider carefully the underlying point made by the hon. Member for Northavon in relation to amendment No. 46. As we have made clear previously and as he highlighted, smoking rooms may be one way of delivering in regulations the commitment that we have made to prohibit smoking
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in the bar areas of exempted premises. However, I do not feel that we should deal with that in detail in the Bill. I hope that he will allow us to complete our consultation and propose draft regulations with a view to making it clear how the protection of bar areas should be enforced.

Clause 3(4) sets out examples of the sorts of conditions that may be considered when setting out the circumstances in which premises or areas of premises are not smoke-free. We have given the examples of restrictions on what is sold or consumed in such premises or areas of premises apart from alcohol, and the designation of smoking rooms. Amendment No. 48 would add to that list of conditions. In particular, it would add the segregation of smoking and non-smoking areas, ventilation requirements and restrictions on staff in smoking areas. Again, although I understand the intention of the amendment, I am not sure that it is helpful to put into the Bill all the possible considerations that will go towards forming the regulations on exemptions.

We will have an opportunity to discuss whether the listed criteria are exhaustive or too narrow. We believe that the way in which the clause is drafted makes the key considerations sufficiently clear. For example, there are further amendments concerning ventilation. There is a huge debate to be had on the contribution of ventilation, and on what it extracts from the air and what it leaves behind. If we were to go down that route, how prescriptive should we be about what sort of ventilation should be provided? So far, having heard the many views on the subject, we think that we have gone in the right direction.

12.15 pm

The hon. Member for Westbury expressed disappointment that the Bill does not focus more on health and safety, and he referred to the Control of Substances Hazardous to Health Regulations, which apply to substances that are generated by some work activities. The Bill is neither employment legislation nor health and safety at work legislation. We have been clear about that, both in terms of the outcome of the “Choosing Health” White Paper and in our consultation over the summer. The Bill intends to reduce the number of places in which smoking can occur. Employees should have the same rights with their employers under employment and health and safety legislation as they currently have. That is proper and should be applied regardless of whether a workplace is smoke-free or allows limited smoking.

This morning, some of the focus has been on bar workers. There are other situations to debate—for example, when people go to give services in somebody’s home. I do not think anybody is saying that a pensioner who smoked would have to introduce ventilation or give up smoking before a service—either a home help or something else—that they needed was provided. There would have to be a way to handle such a situation.

As far as I am aware, many employers in the public sector, and some in the private sector—we could be talking about someone coming to read the gas meter—
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would expect that smoking would not take place in front of the worker when they visited premises. That raises—

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