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Session 2005 - 06
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Standing Committee Debates
Health Bill

Health Bill

Column Number: 105

Standing Committee E

The Committee consisted of the following Members:


Mr. Eric Illsley, Mr. Martin Caton, †Ann Winterton

†Blunt, Mr. Crispin (Reigate) (Con)
†Butler, Ms Dawn (Brent, South) (Lab)
†Dorries, Mrs. Nadine (Mid-Bedfordshire) (Con)
Engel, Natascha (North-East Derbyshire) (Lab)
†Ennis, Jeff (Barnsley, East and Mexborough) (Lab)
†Flint, Caroline (Parliamentary Under-Secretary of State for Health)
†Hodgson, Mrs. Sharon (Gateshead, East and Washington, West) (Lab)
†Joyce, Mr. Eric (Falkirk) (Lab)
†Kennedy, Jane (Minister of State, Department of Health)
†Kidney, Mr. David (Stafford) (Lab)
†Lansley, Mr. Andrew (South Cambridgeshire) (Con)
†Merron, Gillian (Lord Commissioner of Her Majesty’s Treasury)
†Murrison, Dr. Andrew (Westbury) (Con)
†Reed, Mr. Jamie (Copeland) (Lab)
†Webb, Steve (Northavon) (LD)
†Williams, Stephen (Bristol, West) (LD)
†Young, Sir George (North-West Hampshire) (Con)
John Benger, Gordon Clarke, Committee Clerks

† attended the Committee

Column Number: 107

Thursday 8 December 2005

[Ann Winterton in the Chair]

Health Bill

Clause 3


Amendment proposed [this day]: 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).’.—[Sir George Young.]

1 pm

Question again proposed, That the amendment be made.

The Chairman: I remind the Committee that with this we are discussing 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.’.

The Parliamentary Under-Secretary of State for Health (Caroline Flint): Before we adjourned, I was in the middle of explaining that the amendments are unnecessary because of the responsibilities employers currently have under health and safety legislation. I cited the example of a typist who brought a case against her employer because she was forced to work in a room used by smokers. I have a few more examples to show how current health and safety legislation can be applied for employees. In 2003, an employer in England agreed an out-of-court settlement of £50,000 to settle a case brought by an employee who complained that his asthma was caused by years of working in the smoke-laden atmosphere of a casino.

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I should also bring to the attention of Committee members the fact that the Health and Safety Executive guidance notes for employers on welfare provision, issued in May 1999, include the question:

    “Do I have to provide a room for those who smoke?”

The answer that the guidance gives is:

    “No. However, you must provide a working environment where people can work without being irritated by tobacco smoke—the most effective way of doing this may be to prohibit smoking in all but a few designated rooms.”

Steve Webb (Northavon) (LD): Does the Minister accept that if we thought that the existing legislation provided enough protection, we would probably not be here now? Of course she can cite examples of where the existing legislation is being used, but they do rather have the character and feel of extreme cases. We want there to be much more comprehensive protection. Those who are now covered, with smoke-free workplaces, will benefit from that, but we are concerned about those who are not covered. That is what this group of amendments addresses. We all agree that the existing legislation is not strong enough.

Caroline Flint: In terms of smoke-free coverage—the number of public places and workplaces covered—the Bill take us much further forward. More people have access to such places, and therefore have choice. The Bill takes us further forward than an approved code of practice that the Health and Safety Commission consulted on in 1998-99.

I remind the hon. Gentleman that the Bill is primarily about health and choice. As I have said, it is not a narrowly defined Bill about employee protection, although the fact that more employees will work in a smoke-free environment is clearly a by-product of these measures. For the first time we will have legislation with regulations that makes sure that all workers are better protected than they are now. That includes employees working in bars, where there is currently no legislation or regulations that formally make the case by saying what has to be done to protect employees in the bar area.

This is a complex issue. Even countries with total ban legislation—Ireland, and in the future Scotland, I presume—have recognised that there will have to be exemptions, and because of those exemptions there is the possibility that employees will come into contact with smoke. That may be for very short periods—perhaps only a few minutes—but for some it could be for considerably longer. We need to deal with that matter sensitively, while recognising that in certain circumstances it is unavoidable that employees will come into contact with smoke.

Dr. Andrew Murrison (Westbury) (Con): It seems that the Minister is saying that under this legislation the glass is half full, not half empty. The hon. Member for Northavon (Steve Webb) is right to ask what the Bill does for employees in the exempt categories. He and I, in different ways, are coming from the same sort of place. I believe that it is right to have certain exemptions and the Liberal Democrats do not, but we
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are both mindful of the health consequences of second-hand smoke for people who work in those environments. The Minister has not yet said how she will protect their health.

Caroline Flint: I would have to disagree with the hon. Gentleman because I have been very clear. Under our legislation, 99 per cent. of workplaces and public places will be smoke-free. Of the remainder, there will be exemptions, particularly in the licensed trade—for licensed establishments that do not serve food and for private clubs. Outside those areas, we are examining, and having discussions about, what we do in terms of adult hospices, prisons and residential care homes. Other countries that have sought restrictions or bans have had to deal with such issues.

Another example would be hotels that designate smoking and non-smoking rooms. It is an interesting example because it returns to our discussion about children. What does one say to parents who smoke and who may have a hotel room for themselves and their children? I wish that I had remembered that example earlier, because this is about examining ways in which we can contribute to improving health and improving choice. We must also recognise that in itself smoking is not an illegal activity.

I must say to the hon. Member for Westbury (Dr. Murrison) that, based on what I have heard so far in this Committee’s discussions, it seems that he is not even in favour of legislating now to ban smoking in the areas that will be covered by this legislation. We can have debates about the few areas where we might duplicate health and safety legislation that is already on the statute book, whether we should set a quality air standard in some of these licensed premises, and about ventilation.

We have said clearly that we will have a review within three years. It is better for us to review how the Bill will work in practice and to monitor its impact and public opinion on the issue. That is important, rather than doing what I think the hon. Member for Westbury is suggesting and somehow coming up with something that might be interpreted as a safe model, or a safer model, for allowing smoking in public places. I am not sure that that is worth while.

There have been discussions with industry on ventilation. Sections of industry have been concerned about the idea that the Government would come up with an engineering option. The hon. Gentleman has said that he is not convinced that there is an engineering ventilation option. Therefore, should the Government say to the commercialised leisure sector that this is an area in which we should prescribe?

The other side of that argument that we could be tempted to follow—although I am not—is the hon. Gentleman’s line of argument. We could say, “Yes, as a Government we can come up with an air quality standard or a form of ventilation.” That might be perceived as saying that such an atmosphere is a suitable environment in which to work. One could understand it if people in the areas in which we are currently saying there will be total bans then turned round and asked why they could not have that too.

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Dr. Murrison: The hon. Lady seems to be dismissing an engineering or ventilation solution. To what extent has she investigated how the Governments of Italy, France and the Netherlands have approached this issue? Each of them has references to ventilation and engineering in their recent legislation. Yet that is completely absent as a possible solution in certain circumstances in our legislation.

Caroline Flint: Interestingly, the hon. Gentleman again draws attention to the fact that there are different ways of tackling the issue. I cannot speak for France, but my understanding is that Italy does allow smoking rooms, and the Italian Government will have to choose whether they want to legislate about ventilation there. For the reasons that I have outlined, we have not chosen to pursue that path. We have said clearly that we intend to review the legislation, and its exemptions, from day one. We do not, therefore, want to burden or over-regulate the exempted premises while we are still considering the situation. That position has been understood by those in industry. Our consultation during the summer included a question on ventilation, and many people said that they did not want to be directed to spend a lot of money on ventilation if they were likely to choose to be smoke-free.

Let us not forget that nobody is preventing any of the exempted establishments from becoming smoke-free. We have merely been mindful of the direction in which we feel that policy is developing. We have, therefore, worked on the basis that more places will become smoke-free rather than trying to come up with a system in law that would say something like, “You’re all right,” or “You could be safer if you had this sort of ventilation in your establishment.”

Dr. Murrison: The hon. Lady might have misunderstood what I was trying to say. I am suggesting that in those exempt premises we might institute ventilation engineering standards that would improve matters even further. I do not recognise the resistance from industry to which she has referred. The consensus that I have picked up is that industry is mindful that ventilation might be a solution, and a financially reasonable one. If the Minister would like some figures on ventilation in Italy I can bore her with them, but I am sure that she would not want that.

Caroline Flint: Fine; if industry and those in the exempted areas want to introduce ventilation, they are free to do so. I am sure that there are many commercial operators marketing suitable systems. We are in the process of consulting further on the measures on which we feel that it will be necessary to regulate in order to protect the areas around bars. However, that consultation is still ongoing, and there will be an opportunity, through draft regulations, for Members and organisations outside the House to comment on them. I am certainly open to letting such establishments decide for themselves.

Where I differ from the hon. Gentleman is on the idea that we should introduce prescriptive regulations on ventilation in the Bill. We have to consider the different types of establishment, small and large.
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I understand that there are questions that have to be asked about the sort of ventilation equipment that can be put in certain places, what can be built in certain pubs and so on. There is not necessarily a one-size-fits-all solution. The question is: what does the ventilation remove from the atmosphere? It might remove smoke but, as has been said by the hon. Gentleman and the right hon. Member for North-West Hampshire (Sir George Young), that does not necessarily mean that the carcinogens will not remain in the atmosphere to be inhaled.

Dr. Murrison: I am grateful to the Minister; she is being very generous in giving way. Of course there are carcinogens; there will be carcinogens whatever we do. Has she paid a visit to St. Stephen’s tavern over the road? That has to be bomb-proof because it is next to the parliamentary estate, and it is also a listed building, yet in that extraordinary situation people have managed to put in ventilation that, in my experience, is pretty good. Perhaps she should go and have a look, just by way of example.

Caroline Flint: That is entirely a matter of choice for that tavern. Unfortunately, I have not had the opportunity to go there recently—chance would be a fine thing.

1.15 pm

Steve Webb: Maybe later?

Caroline Flint: The hon. Member for Northavon is not asking me out for a drink, is he?

As I said, the decision is for that pub or tavern to make for itself. I always thought that one of the lines that the Conservative party likes to say divides it from the Government is on regulation. Having looked into the matter and considered the responses to our consultation, including the White Paper “Choosing Health”, and given the scope of Bill, I am not convinced that it is a good idea to have regulation or prescriptive legislation on what sort of ventilation should be used in exempted licensed premises. We are still discussing how to protect bar areas. We have a number of options; it could be ventilation, it could be a separate area or it could be a distance from the bar area, but we have not yet come to a conclusion.

I have tried to give examples showing that nothing in the Bill takes away from people’s existing responsibilities under health and safety legislation, and employees have pursued actions in relation to smoking and health in workplaces. As I said on amendment No. 47, the Health and Safety Commission is responsible for the issuing of codes, and it could follow a route if it chose to do so.

Amendment No. 60 would add a requirement for a maximum exposure limit on tobacco smoke in premises where smoking continues. That would add significantly to the cost and complexity of enforcement, and it would impose additional burdens on employers and enforcement authorities. That is particularly the case given that we will be reviewing the
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exemptions once the legislation comes into force. Indeed, we have said that there will be a complete review within three years. I am not convinced of the wisdom of imposing such a requirement. I also think that setting a maximum exposure limit would send out mixed messages about second-hand smoke.

Amendment No. 61 would add a requirement that no regulations should be made under the clause until tobacco smoke is designated as a hazardous substance under the Control of Substances Hazardous to Health Regulations 2002. I listened carefully to what hon. Members said, but I understand that tobacco smoke does not fit into any of the categories. To go down that route would result in an unnecessary and unhelpful delay before we could make regulations.

The amendments would add nothing to the Bill. I have tried to assure the Committee that we are exploring in detail further ways to deal with the areas near the bar and to come up with something that is effective but not over-regulated or over-burdensome.

Mrs. Nadine Dorries (Mid-Bedfordshire) (Con): During my first two days as a member of a Standing Committee, I have observed that the Minister seems to be very pragmatic. We find ourselves debating a partial ban and the effect of second-hand smoke. However, most of us would prefer to see either a Bill that introduced a total ban or a Bill that did not ban smoking but left it to self-regulation.

The Minister has told us that education and other solutions introduced over the past few years have decreased smoking in the UK. That, I think, is an indicator that following such programmes might continue that trend; they could further reduce smoking, allow us to self-regulate and stop the effects of harmful second-hand smoke.

The Scientific Committee on Tobacco and Health says of second-hand smoke that there is a 25 per cent. increased risk of heart disease and a 24 per cent. increase in the risk of lung cancer for people who unintentionally inhale second-hand smoke, with an increase in the risk of pneumonia, bronchitis, asthma, otitis media, decreased lung function and sudden infant death syndrome.

If the Government are serious about decreasing the effects of second-hand smoke, particularly on lower socio-economic groups, it is hard to understand why they are not stopping second-hand smoke impacting on children in my constituency from lower socio-economic groups who frequent clubs, including private members clubs. An engine the size of a 747 turbo would be needed to take out the smoke in some of those private members clubs before they would become a smoke-free environment. Should we not be discussing a full ban? Why are we discussing the effects of second-hand smoke on children—

Caroline Flint: I respect the hon. Lady’s point of view on a total ban, but given that the Bill will take us far further forward, as is recognised even by those outside the House who support a total ban, does she support the Bill?

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Mrs. Dorries: My point is that there should be either a total ban or nothing at all, and we should explore the routes of self-regulation. From Conservative Members’ perspective, there is a free vote. Perhaps I would support a total ban. I have no idea, actually, because that is not the option on offer. What is on offer is a bit of a botched job, but that is what we have to discuss, and what we are working on.

The lower socio-economic groups in my constituency are in a worse situation, because more of the clubs, pubs and restaurants will stop serving food and will become private members clubs. I already know of one pub in the constituency that is looking into becoming a private members club with a very cheap membership rate so that it can be exempt from the Bill.

Caroline Flint: Is the hon. Lady aware that under the licensing regulations, becoming a qualifying membership club would require the licensee, the publican, to form a committee of members of the club, who have jurisdiction to order the alcohol in that club, thereby leaving out the role of the publican as licensee? Is she really saying that licensees in the private sector are willing to hand over the running of their establishments to their members, and is she aware that it is not as simple as signing up for one night to become a member under the law?

The Chairman: Perhaps I should point out to the hon. Member for Mid-Bedfordshire (Mrs. Dorries) that she is going somewhat wide of the amendments that are being debated. The remarks that she is making would fit well into the clause stand part debate, which comes a little later. If she focused her remarks on the amendments, that would be helpful.

Mrs. Dorries: Thank you, Lady Winterton; I will do that. My next point is about the effects on employees. Certain Members have made me aware that they are working in offices where there is second-hand smoke because of a lack of ventilation. Is the Minister aware of that? One hon. Member complained of having had a sore throat since May. My point is that we can have any level of botched regulation, but there will always be ways around botched regulation. In the Irish Republic, where there is a total ban, certain people have worked their way around it.

Caroline Flint: Is the hon. Lady aware that all the other countries in the world, and all the states in America, that have introduced legislation went through a process, and some did so for many years? I understand that Norway, for example, changed its policy only after 18 years. We are talking about an incremental step forward to effect change. Is she saying that what happened in those places was botched?

Mrs. Dorries: I have no idea what happened in New York and the rest of the United States, but I know what happened in the other European countries. My point is that if the Government are making the case for a total ban, which seems to be the case that was made initially, we should be debating a total ban.

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Sir George Young (North-West Hampshire) (Con): I am grateful to my hon. Friend the Member for Mid-Bedfordshire for her intervention in the debate and I note that she is up for bidding when we come to voting on a total ban. The voluntary approach having been discarded because the House gave a Second Reading to the Bill, the question now is whether we have a partial ban or a total ban. I counsel the Minister to exercise some caution before she yet again advocates the incremental approach. We know perfectly well that that was not the Secretary of State’s approach; she did not want an incremental approach but a total approach, an all-in-one-go approach. The Minister should be cautious about criticising my hon. Friend—who was making the case for a total ban—by citing in evidence the countries that took an incremental approach, because that was not the position of the Minister’s boss.

On the amendments, I accept what the Minister says about the premises that are not exempt. For those who work in those premises, life will improve because there will be no smoking. However, the amendments focus on those who are in premises that are exempt where, as we have discovered from earlier debates, the position will get worse because the smoking drinker will have to go to one of the pubs where smoking is permitted, as he will not be able to smoke in the pubs that are not exempt.

The debate has focused on the protection available to staff. The argument that the Minister put forward is that the existing regime for protecting employees is adequate and that it is unnecessary to replicate it in the legislation that we are considering. That was helpful to the extent of determining that if a publican is taken to court by an employee and holds this Bill in his hand and says, “My pub is exempt, therefore I am entitled to have employees in my smoking pub,” it follows from what the Minister said that that is not an adequate defence. I think that she said that nothing in the Bill overrode the protection that employees already have under existing legislation. I see that she has nodded.

We must then consider the protection that people have. The impression that I got when listening to the Minister was that the exemptions that she has included in the Bill may be eroded by case law. She told us about the non-smoking typist and the non-smoking croupier. It seems to me that if both those individuals won cases—one out of court and one in court—against employers who obliged them to work in a smoking environment, it is likely that at some point a non-smoking barperson will take his or her employer to court and cite as precedent the two cases to which the Minister referred. I know that we have the 1 m exemption but, as we said in earlier debates, an employee in a pub will have to go outside the bar—for example to collect glasses. It therefore seems that the exemptions that the Minister envisages may be eroded by the litigation to which I have referred, so the objective of the exemptions may not be achieved.

I think that the Minister slightly overstated the case—if I understood her correctly—by saying that if she accepted some of the amendments, there might be
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complications for the policeman or social worker going into someone’s home. I am not sure that that is a parallel, because in those cases, there is not an employer-employee relationship. Unless the Government has in mind some dramatic social reform whereby the individual employs the police—I am not sure that the consensus between the two parties would take us quite that far—the relationship between the landlord and the barperson is quite different from that between the policeman and someone into whose home he is going.

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Prepared 12 December 2005