Health Bill

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Mr. Lansley: I add my welcome to you, Lady Winterton, to the Chair of our Committee. We are pleased to see you here, albeit at the somewhat ungodly hour at which we started.

I shall not propose that we vote on the amendment. The reason is straightforward. It is not because it has not elicited an argument that justifies changing the Bill, because I think it has, but because the Minister made the perfectly reasonable point that, were we to amend it in this way, we would prevent people from smoking in a private space—their home or their temporary home such as a hospice. To be fair to myself, when I moved the amendment on Tuesday
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afternoon I said that the structure of the Bill might be such that that would be the case. If the amendment is flawed, I shall not ask the Committee to divide on it.

However, the debate has further illustrated that, when we come to Report, it will be necessary for the Bill to be amended in relation to licensed premises and, perhaps especially, clubs, in view of what my hon. Friend the Member for Mid-Bedfordshire said. If the Government are to allow smoking in pubs that do not serve food, and relatively more children are likely to be found in places where food is served, clubs will secure a substantial commercial advantage against pubs. At the same time, as they are likely to attract families and are entirely free to allow smoking, we will have a serious problem of exposure of children to second-hand smoke.

The Minister chides the Opposition, saying that clubs should be exempt because they are private spaces. We believe that they are extensions of private space. However, adults can decide whether to belong to a club where smoking is permitted. Parents should always be able to make a decision that their children are not exposed to second-hand smoke. Whether or not an adult is a member of a private club, they should be able to expect that their children, wherever they are taken, will not be exposed to second-hand smoke.

We are balancing the rights of parents with the rights of adults in private spaces and the rights of society and individuals not to be exposed to second-hand smoke. We must send strong and consistent messages. The Minister talks bunk, frankly, about whether self-regulation sends a message. It is not only through legislation that we can send a message to people about what they should or should not be doing. If it were, we would simply ban smoking. The Minister’s argument is that we should ban smoking because anything else is ineffective.

The Government, we, everybody is trying to reduce the prevalence of smoking, and, alongside that, to reduce it in front of children. We must send a consistent message, whether through legislation or self-regulation, that, notwithstanding the choices that adults have a right to make, we as a society believe that children should not be exposed to second-hand smoke.

Steve Webb: We have thought about the potential displacement effects of smoking bans. Has the hon. Gentleman thought what the displacement effect of the amendment might be? If clubs can permit smoking only if they do not allow children in, presumably a percentage of clubs will say, “Right, no kids.” What does he think the consequences of that would be?

Mr. Lansley: Clubs may have to be clear about where smoking is permitted in the club and where it is not, and the Bill certainly contemplates that. The position that we are driving towards—it is reflected in the Bill, although we have not reached that point yet—is that premises can have smoking rooms. That is what subsection (4)(b) contemplates. My personal view is that that is precisely what clubs should do. That would not necessarily remove the opportunity for families to continue to go to clubs. If families are going to go clubs that serve food, the Bill should set a framework that
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drives clubs to the conclusion that if they allow children into a part of the building, it should not be the part where people smoke.

On that basis, I will not prolong the argument. It has been a useful debate that has shown where amendments should be made to the Bill, but we may not be able to structure the amendments in precisely the form that delivers the intended effect until Report. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Sir George Young (North-West Hampshire) (Con): I beg to move amendment No. 59, in clause 3, page 2, line 40, at end insert—

    ‘(3A)   The appropriate national authority shall certify, following consultation with the Health and Safety Commission and such persons as they consider appropriate, that any regulations made under this section require any person who controls or is concerned in the management of premises covered by such regulations properly to meet their obligations under sections 2 to 6 of the Health and Safety at Work Act etc. 1974 (c. 37).’.

The Chairman: With this it will be convenient to discuss the following amendments: No. 47, in clause 3, page 3, line 5, at end insert—

      ‘(c)   in the case of any premises any requirements for the protection of employees and members of the public that shall be specified, forming part of an Approved Code of Practice issued by the Health and Safety Executive.’.

No. 60, in clause 3, page 3, line 11, at end add—

    ‘(6)   The appropriate national authority shall, following consultation with the Health and Safety Commission and such persons as they consider appropriate, set maximum permitted occupational exposure limits to smoke or any constituent part thereof for any premise which would otherwise be smoke-free but permits smoking at any time by virtue of regulations issued under subsection (3).’.

No. 61, in clause 3, page 3, line 11, at end add—

    ‘(6)   No regulations under this section shall be made unless and until smoke emitted as a result of smoking as defined in section 1 has been previously designated as a hazardous substance under the Control of Substances Hazardous to Health Regulations.’.

Sir George Young: Lady Winterton, I, too, welcome you to the Committee as co-pilot on a flight where smoking is permitted as long as no one is eating at the time.

This group of amendments deals with the interface between the Bill and legislation that protects people where they work. I remind Labour Members that the relevant section of their manifesto contained a commitment to protect employees. The Minister said on several occasions on Tuesday that this was not an employment or a health and safety Bill. In the narrow sense, she is right; the Bill is about public health. However, there is inevitably an interface between the exemptions in the Bill, the legislation on health and safety at work and the Control of Substances Hazardous to Health Regulations 2002. An implication flows from the exemptions in the Bill that if one works in a place that is exempt—subject, of course, to the rules about smoking 1 m from the bar—one is okay. The amendments are intended to test that assumption against the protection that all employees have wherever they work.

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I will begin with amendment No. 59, which I hope will confront the Government with the contradiction between the exemptions in the clause and the obligations on employers under the Health and Safety at Work, etc. Act 1974. Section 2 of that Act requires an employer

    “to ensure, so far as is reasonably practicable, the health, safety and welfare at work of all his employees.”

Section 3 places a duty on every employer

    “to ensure, so far as is reasonably practicable, that persons not in his employment who may be affected thereby are not thereby exposed to risks to their health or safety.”

That clearly affects customers. Section 4 requires every self-employed person—that could be the landlord—

    “to conduct his undertaking in such a way as to ensure, so far as is reasonably practicable, that he and other persons . . . who may be affected thereby are not . . . exposed to risks.”

Section 5 requires the person having control of the premises to

    “use the best practicable means for preventing the emission into the atmosphere from the premises of noxious or offensive substances and for rendering harmless and inoffensive such substances as may be so emitted.”

There is a further qualification under section 6 about people who manufacture, import or supply substances.

The legislation sets out some fairly clear parameters about what those who work in premises are entitled to. The custodian of all that, the chair of the Health and Safety Commission, Mr. Bill Callaghan, wrote to the Secretary of State during the consultation period on the Bill calling for the exemptions for pubs and clubs to be dropped. A paper that was approved by the Health and Safety Commission on 27 July, stated that

    “The arguments for a wider ban in all licensed premises are these:

    the science: SCOTH”—

the Scientific Committee on Tobacco and Health—

    “is clear that second hand smoke is harmful. The Government’s proposals appear to be at odds with equality in public health.”

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The Health and Safety Commission wrote to the Health Secretary, saying:

    “We are concerned that the proposals run the risk of creating health inequality and this we consider would be undesirable.”

There is a clear conflict between the HSC, whose view is that we should not adopt the exemptions under discussion, and the Secretary of State and the Government, who are clear that there should be some exemptions. Amendment No. 59 seeks to address that contradiction.

The Minister must know that this Bill’s attempt to exempt workers and the premises that I have described runs the risk of legal challenge. The state of “guilty knowledge”, which I am sure lawyers understand, although I do not, under the Health and Safety at Work, etc. Act 1974 is now possible in relation to second-hand smoke. We all know that second-hand smoke is dangerous.

Employees made ill by such exposure, even though they may think that they are exempt under this Bill, will have a case for damages against their employer, claiming negligence and citing a breach of the 1974 Act, sections of which I have just read out. The
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Minister must confirm that that remains possible for any premises exempted from a general prohibition on smoking under this Bill. It would be helpful if she confirmed that, notwithstanding the Bill, those people are entitled to bring actions against their employer.

Mr. David Kidney (Stafford) (Lab): I had the same train of thought myself. Those landlords who continue to permit smoking will be at risk of being sued by their employees. However, the one aspect of the 1974 Act that the right hon. Gentleman does not seek to incorporate in his amendment is the section after sections 2 to 6, which says that individuals as workers have responsibilities to know the health and safety policy of their employer and to abide by lawful instruction by their employer. Does he think that that is an omission from his amendment?

Sir George Young: It would be interesting to know whether that was a legitimate defence, were an employee to bring the case that I have just described. My understanding is that it may not. Notwithstanding that, the employer has an overriding obligation not to expose his employees to that risk. I say that, conscious that the hon. Member for Stafford (Mr. Kidney) has a legal qualification, which I am spared.

Amendment No. 60 requires the Government to set a maximum permitted occupational exposure limit on second-hand smoke in exempted premises. In effect, the amendment is saying that the health and safety risk is unavoidable, so the amendment is a fallback position; however, it would require the Government to quantify and justify the risks to which they were exposing workers as a result.

Amendment No. 61 prevents the Government from exempting any premises until second-hand smoke has been listed as a hazardous substance under the COSHH regulations. Second-hand smoke is carcinogenic, and to my mind it should already be listed under COSHH. COSHH requires employers to prevent or adequately control the exposure of their employees and other persons who may be affected by hazardous substances. In addition, the regulations require

    “the maintenance, examination and testing of control measures”,

the provision of information and other requirements.

I suspect that when the Minister gets to this amendment, she may find at the head of her brief, “Resist”. I understand that the Department’s position is that the amendment should be resisted on the grounds that the COSHH regulations list dangerous substances only if they are the product of a work process rather than an incidental hazard in the workplace. I understand that that may be where she is coming from. That is wholly illogical.

Let us part for a moment from the provisions in the Bill that ban smoking in public places and look at the COSHH regulations. If, for the sake of argument, I was an employee in a research laboratory that was testing the damage done by second-hand smoking and I went into a room where there was a machine that was smoking and emitting second-hand smoke, I would
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have all the protection that flows from COSHH, because the second-hand smoke would be the product of a work process. On the other hand, if I am confronted with exactly the same risk and I go into a room where a real person is smoking—and I do so as an employee of the landlord—although I am exposed to the same risk, I am not covered. That is because the smoke in the second circumstance is deemed to be an incidental hazard in the workplace, whereas in the first it is a direct product of the work process.

Either second-hand smoke is a carcinogen or it is not. Perhaps the Minister will clarify that. If she agrees that it is, perhaps she will agree that the COSHH regulations should list it as a dangerous substance. Those who are exposed to the risks from second-hand smoke would then have the protection that flows from the COSHH regulations.

I hope that the Minister will accept that there is some tension between the objectives of the Bill and the existing protection available to everybody under the Health and Safety at Work, etc. Act 1974 and that she will explain to the Committee how she proposes to navigate her way through these apparently conflicting provisions.

Steve Webb: With the group of the amendments that the right hon. Member for North-West Hampshire (Sir George Young) has just drawn to our attention we also have amendment No. 47, which covers some of the same ground. Like the right hon. Gentleman, I viewed the Bill as being primarily about the health and safety of people in the workplace. Whatever the Minister may say it is about, that should be our primary concern, and clearly things follow logically from that.

I have a great deal of sympathy with the right hon. Gentleman on the amendments. It is an absurd idea in view of all the debate, public discussion and consultation that has taken place over the years that, once there is a partial ban, an employer can legitimately say, “We don’t have a ban on these premises. We are within the scope of the law. I have no idea what harm smoke is doing do to my employees.” Employers are increasingly aware of the damage caused by second-hand smoking, and it seems reasonable to expect members of the Committee to be clear that health and safety legislation implies that, because of everything that we have been through and the bans in other workplaces, employers have a greater responsibility to be aware of what they are doing to their employees and cannot go on in blissful ignorance inflicting the same harm.

I was interested in the intervention by the hon. Member for Stafford. If I understood him correctly—sadly, I am not a lawyer either—there might be an exemption that says “Yes, but workers should know that it is bad for them to breathe in second-hand smoke”. That does not in any way diminish the moral, if not, technically, legal obligation on employers to take effective action. Therefore, I welcome the aim of the amendments to put health and safety at the top of the agenda and write it into the Bill.

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I welcome amendment No. 60, which introduces the concept of a maximum permitted limit. All these are second-best solutions that try to make the best of a bad job. The Government have failed to do what they should have done; some people will still be exposed to second-hand smoke. How can we mitigate the effects for as long as we have to put up with it?

Stephen Williams (Bristol, West) (LD): Will my hon. Friend give way?

Steve Webb: In a second. To require the Government to specify maximum limits seems to me to be a move in the right direction. My hon. Friend might be about to say that anything above zero is unacceptable, but I shall give him the opportunity to do so.

Stephen Williams: Good morning to you, Lady Winterton. Displacement has been referred to several times during our deliberations. Does my hon. Friend accept that if the legislation goes through it is likely that smokers will congregate in greater numbers in exempted pubs? Therefore, the concentration of the smoke in the air in that confined space will increase and the employees in that environment—no non-smoker in their right mind would go to such a place—would be put at greater risk, increasing the likelihood that they would have a viable case against their employer.

Steve Webb: My hon. Friend makes a pertinent point. We may be creating two nations, as it were, of employment in the hospitality sector. One set of people will be completely protected; they will never have to breathe in this stuff again and their lung functions will improve. However, the lives of those in the other sector will be made worse. The partial exemptions have all sorts of side effects.

Dr. Murrison: I take issue with the words used by the hon. Member for Bristol, West (Stephen Williams). I think they were along the lines of “nobody in their right mind would go to such a place”. If the legislation goes through, it is likely that there will be smoking dens in many pubs and in some of the poorer areas of the country the only pubs available will be those that are full of smoke.

Steve Webb: I am not sure that the hon. Gentleman substantively disagrees with my hon. Friend the Member for Bristol, West. We have highlighted the health inequality aspect of the proposals; in some parts of the country—perhaps deprived areas—there are no pubs that serve food. We are saying that where there is a choice under the legislation, there will be a greater concentration of smokers in certain places than there is now.

Amendment No. 47 suggests that if we are going to have these exemptions—we would prefer it if we did not—regulations that might follow for employees or members of the public should come within the scope of an approved code of practice issued by the Health and Safety Executive. I am concerned that the Government are ignoring expert advice about the Bill. We have already heard that they are ignoring the expert advice
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of their own chief medical officer, but as the right hon. Member for North-West Hampshire said, they have ignored the advice of the HSE and the Health and Safety Commission. If we are to have these exemptions, the HSE should be involved in drawing up and approving regulations because the exemptions will have an adverse effect on the health and safety of employees at work. That is the thrust of the amendment, which is very much in the spirit of the others with which it has been grouped, and to which we would like to add our support.

Dr. Murrison: There is a great deal of sound good sense in this group of amendments. I am sure that the Minister, being a reasonable person, will want to take them away and consider them. Perhaps she can forge them in a way that the Government would like. I hope that she takes the meaning of them, which is to make it clear that the premises to which we are referring are workplaces. It may be that they are different to industrial workplaces of the sort that the HSE is accustomed to focusing on, but they are workplaces nevertheless.

The Minister will probably say that this is not a piece of health and safety at work legislation and, in the sense of the 1974 Act, that is correct. Nevertheless, the Bill does bear heavily on those at work and everything that the Minister has said during the Committee proceedings and on Second Reading has as its back-stop the fact that workers are exposed to second-hand smoke. Every time we have argued that casual exposure to second-hand smoke is unlikely to have public health implications for individuals who are passing through a public space, the Minister and her colleagues have said, “Ah yes, but what about those who habitually work in those spaces?” It is not reasonable for the Minister to say that other health and safety legislation is not applicable to this matter because the Bill is not a piece of health and safety legislation.

We are trying to improve health right across the board, whether that is the health of members of the public or those who work in public and licensed spaces. Therefore, it is appropriate that we draw on existing legislation that protects workers’ health. For that, we have to draw on the 1974 Act and subsequent regulations. In this case, as my right hon. Friend the Member for North-West Hampshire rightly pointed out, we must draw on the COSHH regulations, with which I am reasonably familiar. It was part of my previous job to ensure that they were followed in a fairly large industrial complex on the south coast of England, so I know what they are about.

10 am

It is a fine point to suggest that tobacco smoke should not fall within the scope of the regulations or something similar because they are not by-products of an industrial process. Some 40,000 substances—a vast number—are listed in the COSHH regulations. I know that the Minister will say in a few minutes that tobacco smoke should not be listed or encapsulated in any way in those or similar regulations because it is an unholy concoction of all manner of things. Of course it is
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complex. Some 400 substances can reasonably be identified as composite parts of tobacco smoke, but against that we have to set the 40,000 substances that are listed in or governed by the COSHH regulations.

My right hon. Friend gave us a fantastic example in his description of a laboratory in which smoke was generated. The research worker was covered by the COSHH regulations because he was exposed during the process of generating smoke in the laboratory, but the regulations no longer applied when he went into the staff room and was exposed to smoke, even though the insult was precisely the same. It seems illogical, almost arbitrary, to decide that tobacco smoke should be governed by the Bill in one location but not in another part of the building just down the corridor.

This is a huge missed opportunity. The Government simply have not understood that they could happily draw on existing health and safety law, which has stood the test of time for 30 years. It has been amended during that time, most recently in 2002 with the updated regulations. Surely to goodness that legislation should be drawn on if one of the chief aims of the Bill is to protect the health of workers. I underscore that it has been evident throughout the deliberations on the Bill that Ministers rightly regard that as an important—indeed, central—part of the legislation. They have used the protection of employees as the back-stop argument against everything that has been suggested about casual exposure to tobacco smoke and the fact that there is no public health evidence—the evidence base is flimsy—to suggest that trivial or casual exposure to tobacco smoke is injurious to health. Indeed, the Minister may recall my making the distinction between the public health implications of tobacco smoke and the nuisance or amenity implications of it. I suggested that we could legislate for the former, but not for the latter. The argument that comes back every time is that that is all very well for those who are casually exposed, but what about those who are habitually exposed? What about workers?

It is disingenuous for Ministers to say that we cannot deal with this issue under health and safety law or refer to that law and draw principles from it because the Bill is not a health and safety measure. In many respects, it is. Those whom we seek to protect fall within that legislation. It would be interesting to hear to what extent the Minister had examined whether workers were being protected by the 1974 Act and subsequent regulations, and how she explained the failure to reflect that legislation in the Bill so that we could underscore its importance and ensure that employers and organisations gave workers the protection that they needed.

Such protection would be in the interests of the employers themselves. One does not need to be a lawyer to appreciate that there are likely to be many claims in the future from employees who succumb to the common illnesses that sometimes are precipitated by smoking and sometimes are not. Lung cancer is very common, as are coronary heart disease and
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strokes. As we know, those diseases are exacerbated or precipitated by tobacco smoke. It is likely that a large number of employees will succumb to them in future. They or their families will make the link between occupational exposure and the condition to which they have fallen victim.

Mr. Kidney: I liked the hon. Gentleman better on Tuesday when he did not recognise my past as a legal practitioner. Today I am a non-practising solicitor. In our debates on Tuesday we talked about the application of the Bill to people’s homes when one room was used for music lessons or accountancy. Does he think that we should introduce the whole panoply of health and safety at work and COSHH regulations to a room in a person’s private home?

Dr. Murrison: The example that the hon. Gentleman gives is of an individual working on his own in his own home. I suspect that he might be even more familiar with the Health and Safety at Work, etc. Act 1974 than I am, but I think that the scope of that Act would not necessarily cover the oboe player or the piano tutor to whom he refers. I am not quite sure that I would want the provisions to apply in this case. The 1974 Act is quite a pragmatic piece of legislation. I would be surprised if an individual working on his own in his own home was covered by the Act in that direct way. If he knows better than me, I will happily take a further intervention. He can confound my case if he wants to.

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