Health Bill

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Caroline Flint: No, I was not suggesting that, even in our efforts to encourage neighbourhood policing, a member of the public would be the employer in that sense. I was drawing to the Committee’s attention the responsibility of the employer—it could be the chief constable or the local authority—for their own staff who, as part of the service that the employer provides, have to go into smoky atmospheres.

Sir George Young: That would draw us into a definition of employers’ premises at which people are required to work, and whether they include the places that people have to visit. I would have thought that they did not.

The least compelling rebuttal was that of amendment No. 61—I am not sure that the Minister’s heart was in it. However, in one respect she raised my hopes when, in resisting amendment No. 60, she implied that when the overall review takes place, the exemptions may not be retained, because the review may move towards a total ban. Therefore, the safeguards proposed in the amendments may not be required. There was an implication that this was a temporary stopping-off point before we move to a total ban. I hope that she is right about that.

I did not get a yes or no answer to the question about whether a carcinogen is a product that should be regulated under COSHH regulations. I would have thought that it should be, but the Minister was unable to reply to that direct question. However, in the spirit of consensus that my party leader announced yesterday, it would be churlish to press the amendments to a Division. We have usefully explored some of the issues, so I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

1.30 pm

Dr. Murrison: I beg to move amendment No. 1, in clause 3, page 3, line 1, leave out paragraph (a).

The amendment is, appropriately, first on the list of amendments. It is important as far as the official Opposition are concerned and I am pleased that it bears not only my name and those of my hon. Friends, but also the name of the hon. Member for Northavon for the Liberal Democrats. Although I understand the hon. Gentleman about his wish to see a total ban, if I understood him correctly, he was mindful to support
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those measures that, at least in his eyes, made a bad Bill slightly better. I imagine that it is in that spirit that he supports our amendment.

Amendment No.1 is the food vs. non-food amendment. The removal of the relevant line would remove the distinction between pubs that serve food and those that do not. We have heard already, during the debates on Second Reading and in Committee, why that distinction is artificial.

I should like to underscore where I am coming from in this debate. Everything that I am speaking for has to do with the improvement of public health, but I also recognise that we are in the House of Commons to defend people’s liberties. Nothing is ever black and white. We are debating that area of grey that lies between the two—the dynamic that exists between a desire to outlaw tobacco altogether, for which a credible argument could be mounted, and a respect for an individual’s right to engage in a traditional activity.

We have to decide whether smoking in a pub that serves food will be dangerous because people are eating at the same time that they are smoking; if it is, we should by all means create that distinction, but if that is not so, it is an illogicality and the only way to justify it is if the Bill is being used to remove a nuisance and improve individuals’ enjoyment of their night out.

I respect the fact that people do not want to be exposed to second-hand tobacco smoke. I do not like going into a pub that is full of smoke; actually, I invariably vote with my feet. In any case, that is not a pleasant experience and it detracts from my enjoyment of the occasion.

We have to be careful when we are legislating on the basis of a nuisance, amenity or courtesy, which the guidance notes mention. I think that the Minister would accept that in the Government’s response to the consultation, not smoking in a restaurant or pub that serves food is to do with courtesy, rather than public health. I think that she accepts that, by using that form of words, there is no public health reason for having the distinction between food and non-food pubs.

An argument can be constructed, as other hon. Members and I have done, around the notion that making such a distinction could have an adverse public health effect, because it would create smoking dens and pubs that do not offer food, particularly in poorer areas of the country, will become worse. The sort of people who, if we are interested in public health, as I am, we would want to help first and foremost—the less well off—will be adversely affected by this distinction.

There are public health grounds for not having that distinction, quite apart from the illogicality of insisting on a ban in a pub that serves food but not in one that does not, given the direct effect that that will have on the individual smoking or taking on board second-hand smoke.

I find it extremely difficult to support this part of the Bill: first, because it is illogical and, secondly, because there could be a paradoxical adverse consequence for public health, particularly in areas that are least well-off.

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Mr. Eric Joyce (Falkirk) (Lab): May I take issue with the hon. Gentleman’s point about illogicality? He is deploying that argument on the ground of public health, but my hon. Friend the Minister has made it clear that the primary argument is not about public health, but about putting out consultation, listening to what people say and legislating in such a way that there is maximum consensus and substantial consensus around the distinction. Surely that is not illogical.

Dr. Murrison: I do not want to correct the hon. Gentleman too obviously, but 90 per cent. of consultees who expressed an opinion on the matter chose to support our line. Overwhelmingly, people see the illogicality in making the distinction that we are discussing.

I am grateful to the hon. Gentleman for leading me to the next part of my contribution. It concerns the Local Government Association, to which most of us would listen fairly acutely on this issue, not least because it will represent the organisations tasked, to an extent, with regulating and enforcing the measure.

The association has an interest in the issue. I shall read out the paragraph of its document that is particularly germane to this part of our debate:

    “We do not support a ban on the basis of whether licensed premises serve food. The definition of what food would be permitted used in the consultation on the legislation was ‘pre-packaged ambient shelf-stable snacks’. This is not a clear definition and lends itself to different interpretations. It presents an alternative definition of food where one already exists within existing food safety legislation. The Food Safety Act definition is very broad (including drinks!). In order to make exemptions on the basis of whether food is served, a very clear definition would be needed to avoid premises developing ways of circumventing the legislation. In addition, working with two definitions would create additional enforcement difficulties.”

It goes on, but I shall not bore the Committee by reading it all out. The organisations that will be tasked with enforcement at the front line have some concern about whether this part of the Bill will be enforceable. Part of that concern revolves around the definition of food. The Minister has given a great deal of thought to what does and does not constitute food; we can all think of how licensed premises might seek to get around any definition. However, there appears to be some worry surrounding the reference to a stable foodstuff; it is unclear what that means, and it appears to be unclear to the enforcement agency at this relatively late stage. It will certainly be unclear to licensees. I suspect that there will be a manifold way of getting round it and, once again—I refer to the hon. Member for Falkirk (Mr. Joyce)—I suspect that it will be a bean feast for lawyers unless the definitions are hammered down properly.

Of course, there is a way of avoiding the difficulty referred to by the LGA and the 90 per cent. of people who responded to the consultation. Amendment No. 1 would remove the distinction that is causing so much difficulty and the paradoxical effect on public health that is likely to ensue from it.

Will the Minister clarify what would happen if this part of the Bill were to remain in respect of premises that seek to serve food at different times of the day or week or on particular occasions? I am sure that the
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Minister will be able to help me on that; I see from her sudden burst of activity that she has a clever answer, and I look forward to that.

Will the Minister explain, in her own words, precisely what may be sold in pubs that will be exempt under the Bill? Perhaps she could give a mouth-watering pen picture of the sort of products that those premises will be able to sell, so that we have a feel for what she is thinking. If she were to give that some thought and give us some idea of where she is coming from, fewer of the establishments about which we are concerned might be turned into smoking dens.

I am particularly concerned about this issue, because I am not sure that the Minister has adequately thought through the likely consequences, particularly in metropolitan areas, of the distinction between food and non-food, and the likelihood that people who want to smoke will drift into pubs that they know are exempt. They will know that they are exempt, because, as we will see very shortly when we debate the clauses relating to the business of signage, there will be big signs on certain pubs saying that people cannot smoke there, and they will wander down the road to pubs that do allow them to smoke. Things will be made considerably worse in such pubs. Everything seems to revolve around the issue of food.

On a technical note, the clause uses the word “consumed”, which implies that the Minister also has in mind food that has been brought from elsewhere and consumed on licensed premises. Will she say whether she views that in the same light as food that has been bought in that pub? I am thinking of someone who wanders into licensed premises with their sandwiches at lunch-time, and wonder whether the fact that they did not buy their food on those premises would mean that they were committing an offence under the clause. Clarification from the Minister would be very welcome.

I have probably said what I want to say on that element of amendment No. 1, which is a make-or-break amendment for the Opposition. We would be very happy if it were passed, as it would change the Bill quite dramatically and make it considerably better, albeit one that has difficulties, certainly in part 1. I hope that the Minister will give the matter some thought, particularly when it comes to considering those who are least well off and those towards whom our public health efforts should be most keenly directed, as the Bill in its current form is likely to make things considerably worse in establishments that do not serve food.

Finally, it is worth pointing out that the Chartered Institute of Environmental Health is of a similar mind. Conservatives have received more responses about this Bill than I remember ever receiving about any other legislation that I have had the honour to consider in Committee. I shall not read them all out, as no doubt the Minister has read each of them carefully in advance of our consideration of this part of the Bill, but when bodies such as the CIEH and the LGA are so firmly against this part of the Bill, the onus is on the Minister to do everything that she can to take account of what they are saying, particularly in relation to
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enforcement, which is vital and will shortly fall on local government to implement. It is imperative that we ensure that we are not writing into the Bill something that will cause local government considerable difficulty.

Steve Webb: I am pleased to support amendment No. 1. I sympathise with the arguments advanced by the hon. Member for Westbury, and shall advance one or two more.

I talked on Second Reading about evasion, or avoidance—I never remember which is which in the context of tax.

Stephen Williams (Bristol, West) (LD): Evasion is illegal.

Steve Webb: Evasion is illegal, so it must have been avoidance. Actually, I am not entirely sure that that is right, but my hon. Friend is an accountant, so it must be—I have already forgotten what it was that he said.

I was talking about avoidance of the legislation by artificial means. The hon. Member for Westbury mentioned the Chartered Institute of Environmental Health, which said that people who want to go out for food and a smoke will find ways round the legislation. I mentioned the death-burger van and the idea that burger vans will be a new growth industry, setting up in pub car parks and beyond to provide the meal part of the evening. People will then go back into the pub, probably not having had a low-fat burger. They will down some drinks, have a smoke and have a thoroughly good public health evening.

1.45 pm

My remarks on the issue were broadcast and I received a rather interesting e-mail yesterday from a gentleman in Worcester, who said that he had heard me talking about burger vans. He says:

    “You may be interested to know that the threat has already started”—

I was as prescient as ever. He continues,

    “our local pub has just applied for planning consent to site a food van in its carpark. This has surprised us . . . as the pub kitchen was recently extensively refitted . . . but has been hardly used by the recently installed tenant”.

He adds that he and others have written to the pub owners, but that they have not replied. He adds:

    “In light of hearing you today, I wonder whether this is part of a . . . pattern”.

No sooner do I raise the possibility than it becomes a reality. However, there is a serious point.

I understand the Minister’s distinction between food and non-food and that it is not meant as a health argument, and I shall come back to that. However, there is danger in what we are doing. Pubs such as the one that I mentioned, with a kitchen that serves some potentially healthy food—pubs where people go to eat a bit of food—might no longer serve food, and some other means of providing it will be supplied. I rather doubt that going to vans parked in car parks is terribly good healthwise or that such vans are terribly good for the neighbourhood. That is not generally to slur those
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who provide food from vans, and I have been known to visit the odd one myself, but it is not unrealistic to say that that could be an impact of the Bill. Indeed, the Chartered Institute of Environmental Health suggested the point in the first instance; that is where I got the idea—I did not just dream it up. It is not just me who is making the point, but a serious professional body, so I hope that the Minister will take it seriously and reflect on the potential impact of the distinction between food and non-food.

All that I really want to say is that there is a danger. I do not know what the Committee or you, Lady Winterton, think of the hunting legislation, although I have a hunch that I might be on dangerous territory. However, it was possible to drive a coach and horses through that legislation, and we might be in the same territory now. The provision looks good in the Bill because we are bringing in a ban, but people will find a way round it and do exactly what they would have done anyway. Surely the Minister would accept that that is not what the Department wants.

On what we might call marginal food serving, it must be the case that pubs that do a bit of food but do not make much money from it, although they perhaps draw in a bit of trade, will simply stop serving food. There is already survey evidence to back that up. As we know from the Government’s alcohol strategy, it is better if people eat as well as drink, rather than just drink—that must be true. If we keep the distinction between food and non-food in the Bill, therefore, it will have the unwanted side effect that there will be fewer food pubs, which must be a bad thing. We all know the parts of the country that we are talking about, because we have had the argument about health inequalities, and the hon. Member for Westbury talked about smoking dens. It seems that there will be an awful lot of unintended consequences if we go down this route.

The Minister will correct me if I am wrong, but the kernel of her justification for the distinction is that the exemption is public opinion driven—the public want to eat without having to breathe in smoke. There is therefore widespread support for the measure, so it is in the Bill. However, the public have not yet been convinced that they want to be prevented from smoking where there is no food, so that is not in the Bill. That brings us to the central question regarding the Government’s approach to the issue: should we follow public opinion? It seems a bit perverse to accuse the Government of following public opinion when they have just completely ignored a consultation, but that is essentially what they are doing. We all know what consultations are like: one has ordered, organised submissions, and I accept that one has to weigh how to interpret what one gets. However, the Government’s perception is that public opinion will not wear a full ban.

Let us just suppose that that is true. I have seen estimates that the cost of delay will be perhaps 6,000 or 7,000 lives. Based on the Government’s regulatory impact assessment, delaying bringing in a full ban must mean that more people will be exposed to second-hand smoke than would otherwise be the case. The price of following public opinion and waiting for
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public opinion to catch up is perhaps 6,000 or 7,000 bar staff and others who ingest potentially fatal second-hand smoke. That is one heck of a price, if you will pardon the expression, Lady Winterton. It is an extraordinary price to pay for following public opinion, given that we know that when bans come in, public opinion shifts dramatically.

We are dealing with the lag in public opinion, because if the ban came in, there is a good chance that public opinion would follow quickly, and then nobody would dream of turning back the clock—including many of those who probably think that they do not want a total ban.

That is a very high price to pay for claiming to follow public opinion. If public opinion is sacrosanct, why has it just been ignored? The Government cannot simultaneously say, “We’re not going to ban smoking everywhere, because the public don’t want that,” and, when the consultation takes place in which everyone says that they want a ban, reply, “No.” Which is it? What is the point of consultations? It is very hard to say both those things simultaneously. One might well say that one will follow public opinion, but one then presumably listens to rather than ignores the consultation on the fundamental issue before us.

The Minister says that a partial ban with a food/non-food distinction mirrors what other countries have done. When other countries bring in bans they bring in partial, not total bans. That has been the trend, but it did not happen in southern Ireland, it will not happen in Scotland, and it is not what this Government are doing in Northern Ireland.

We have not talked much about Northern Ireland, but there is an important question to ask. We are debating an amendment about staged bans, and this bit of Government—this end of Whitehall—is saying that there is much precedent for staged bans. Another bit of Government—I do not know where the Northern Ireland Office is, but I do not suppose that it is far away—just wants to get on with a total ban. One of them must be wrong. Is this bit of the Government saying that the other lot—the Northern Ireland Office—has got it wrong, or that there is something fundamentally different about Northern Ireland’s culture and public opinion? I have not noticed it when I have been there.

We are being asked to accept half a dozen inconsistent premises. It may well be that other countries—not all, but some—have staged their bans; but 10 years ago, or as the Minister said, 18 years ago in one case, we knew much less than we know now. Why do we have to keep repeating the mistakes? If Norway has introduced a partial ban and found that it is not terribly good—it does not have the beneficial effects on public health and the exemption does not work—and has learned from that, bringing in a total ban, why do we have to remake the same mistakes? Why do we not consider other countries, realise that they have concluded that partial bans are not very good, and get on with going straight to a full ban? The argument that other countries have introduced partial
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bans refers to a time when perhaps we knew less and had less evidence. Now that we have the evidence, it seems barmy not to learn from it and use it.

We have also heard of the issues about defining food. It is a whole new area, and it seems to be unnecessary. As the hon. Member for Westbury said, we shall either come up with a new definition of food or borrow one from someone else, but the suggestion is that it will be a new definition. It will have to be inspected and all the rest of it, and for what?—for something that everybody thinks will probably be gone in three years’ time anyway. The Secretary of State has said that.

The Secretary of State has said also in oral evidence to the Health Committee that the food/non-food distinction will worsen health inequalities. She said: “That is a disadvantage”. What is the advantage? The advantage is that surveys say that the public want a food ban, but are not ready for the rest of it. The Minister might say, “For a ban to work, we need public opinion on our side.” However, I do not really think that there is any evidence for that. There is already evidence that public opinion is trending the right way, and that bans in which public opinion was led rather than followed, as in Ireland, became popular quickly, and were no less effective for that.

When it comes to the argument that we cannot do anything until the public let us, another important aspect of that is that public opinion is not always 100 per cent. perfectly informed. Sometimes it is the job of Government to deal with that, although there is a danger of being paternalistic. With smoking we are dealing with an addiction that colours public opinion, with harmful effects that are hard to see at the time and may not be felt for decades, so the public’s perception that second-hand smoke is not as much of an issue as it might be is not necessarily an informed one. Indeed, if the public were properly informed about the dangers of second-hand smoke, the Government would not need to run dirty great advertising campaigns to tell them.

The Government accept that the public are not as well informed as they should be about the dangers of second-hand smoke and spend millions of pounds a year telling them about it, yet seem to be willing to say that if the public do not want a ban, based on their lack of information and understanding of the nature of the problem, we should say that that is a fair cop and give in. Where is the leadership? The severity of the problem means that a failure to grasp it and go the whole hog has a high cost. There is no doubt about that from the Government’s estimates. The Government should lead, and if they do not there will be undesirable consequences that none of us want to see.

Sir George Young rose—

The Chairman: Sir George Young.

Sir George Young: I paused to see whether anybody from the Labour Benches would rise to speak against this central amendment and was disappointed that
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none of them did. I am disappointed also that none have risen to speak in favour of the amendment, which would have been even better news.

The amendment attacks the Bill at its weakest point, which is the exemption of certain premises from the ban. I want to say a word about the hon. Member for Falkirk. His constituents have the benefit of a total ban. That is the position in Scotland and I happen to think it is the right solution. My constituents will not have the benefit of a total ban if the hon. Gentleman votes against the amendment. He should not deny my constituents a benefit that his have. I raised that point on Second Reading. I feel strongly that when legislation affects only England, and Scotland is already ahead of us, there are questions about Scottish influence on English and Welsh solutions.

My second point is that after what the hon. Member for Northavon has said, I hope that we shall never again hear a defence of the incremental approach from the Minister. The hon. Gentleman pointed out that other parts of the United Kingdom are not taking the incremental approach. We have heard no reason from the Minister why an incremental approach is right for England and Wales but not for Northern Ireland. I hope that when she responds to the debate she will give a clear exposition of what allows Northern Ireland to make a total ban when England and Wales have to do it in bits. The measure is a political compromise; it is the only thing that the Cabinet was able to agree on. It does not make sense in public health terms or any logical terms. No argument has been advanced for it.

My final point is about enforcement, which my hon. Friend the Member for Westbury touched on. If one considers what is permissible in an exempt premises, that includes pickled onions, crisps, nuts and olives as long as they are pre-packaged off the premises. The publican with a walnut tree in his garden will not be allowed to serve the walnuts in his pub but will be able to serve pre-packaged walnuts. The environmental health officer will have to go round and weigh the shelf-stable pre-packaged items to ensure that they are below 30g to 50g. He also will have to work out whether the consumption of the pre-packaged items requires the use of a plate or cutlery. That is an enforcement nightmare. If we are to move to a total ban in three years’ time, do we really have to go through this wholly unenforceable, illogical, interim stage? Would it not be better if we dealt with it in one fell swoop and would it not be an enormous step in that direction if the Committee were to pass amendment No. 1?

2 pm

Mr. Crispin Blunt (Reigate) (Con): As the Opposition Whip, it is a pleasure for me to rise to speak, knowing that these issues are a matter for a free vote for the Official Opposition. That gives me the rare opportunity to be genuinely able to listen to the arguments and make up my own mind independently—to a degree—of my hon. Friends who are leading for the Opposition. When we began
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consideration of the Bill, I did not have a firm view about what direction policy should take. I have listened with great interest to the arguments and I entirely agree with my right hon. Friend the Member for North-West Hampshire that this amendment addresses the Bill at its weakest.

We know the background to the matter. We know that the Cabinet was split; that was briefed on publicly and there has been an almost public debate in the Cabinet, particularly between the Defence Secretary and the Health Secretary. The Defence Secretary had responsibility for health before the general election and was plainly the author of the Labour manifesto policy that the Bill represents. However, we have a duty as Members of Parliament, in considering the background to the issue and the politics of the situation, to give both the House and the Government the opportunity to make the argument on Report, if they really want to.

My right hon. Friend the Member for North-West Hampshire referred to the influence of the Scots and he is referring not only to the hon. Member for Falkirk, whose constituents will not suffer from the health inequalities that will arise from the provision, but to the baleful influence of the Defence Secretary, whose constituents are in exactly the same position.

I hope that the Committee will reflect on the matter. On Second Reading, the Government’s own supporters spoke against the Bill by a ration of about 5:1 or 6:1 and then, under the most extraordinary set of circumstances, the Committee of Selection seemed to invert that relationship when it came to membership of the Committee. I cannot imagine how that possibly happened unless, due to the most unfortunate accident, the Committee of Selection did not see the contributions made on the Floor of the House on Second Reading.

We have an opportunity to invite the Government to make the arguments to the whole House of Commons if they have to table an amendment to reverse amendment No. 1 on Report. That is what the Committee should decide because it is important that the argument should be made in the widest possible forum and we have before us the opportunity to enable the Government to do that.

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