Schedule
22
Transitory,
transitional and saving
provisions
Amendments
made: No. 57, in schedule 22, page 227,
line 22, at end
insert—
‘5A In subsection
(5) of section 148 of the Criminal Justice Act 2003 (c. 44)
(restrictions on imposing community sentences), as inserted by section
11 of this Act, the reference to a youth rehabilitation order is to be
read as including a reference to any youth community order within the
meaning of section 147(2) of the Criminal Justice Act 2003
(c. 44) (as it has effect immediately before the commencement of
paragraph 72 of Schedule 4 to this
Act).’.
No.
206, in
schedule 22, page 228, line 19, at
end insert—
‘10A (1) Subject
to the following provisions of this paragraph, the Rehabilitation of
Offenders Act 1974 (c. 53) (as amended by Schedule 12 to this
Act) applies to cautions given before the commencement date as it
applies to cautions given on or after that
date.
(2) A caution given
before the commencement date shall be regarded as a spent caution at a
time determined in accordance with sub-paragraphs (3) to
(8).
(3) A caution other than a
conditional caution (as defined in section 8A(2)(a) of the 1974 Act)
shall be regarded as a spent caution on the commencement
date.
(4) If the period of three months from the date on
which a conditional caution was given ends on or before the
commencement date, the caution shall be regarded as a spent caution on
the commencement date unless sub-paragraph (7)
applies.
(5) If the period of
three months from the date on which a conditional caution was given
ends after the commencement date, the caution shall be regarded as a
spent caution at the end of that period of three months unless
sub-paragraph (7) applies.
(6)
Sub-paragraph (7) applies
if—
(a) before the date
on which the caution would be regarded as a spent caution in accordance
with sub-paragraph (4) or (5) (“the relevant date”), the
person concerned is convicted of the offence in respect of which the
caution was given, and
(b) the
rehabilitation period for the offence ends after the relevant
date.
(7) The caution shall be
regarded as a spent caution at the end of the rehabilitation period for
the offence.
(8) If, on or
after the date on which the caution becomes regarded as a spent caution
in accordance with sub-paragraph (4) or (5), the person concerned is
convicted of the offence in respect of which the caution was
given—
(a) the caution
shall be treated for the purposes of Schedule 2 to the 1974 Act as not
having become spent in relation to any period before the end of the
rehabilitation period for the offence,
and
(b) the caution shall be
regarded as a spent caution at the end of that rehabilitation
period.
(9) In this paragraph,
“the commencement date” means the date on which section
54 comes into
force.’.
No.
373, in schedule 22, page 228, leave out
lines 25 to 29.
No.
285, in
schedule 22, page 230, line 33, at
end insert—
‘(3) Section
(Requests to other member States: Northern Ireland) does not apply in
relation to financial penalties (within the meaning of that section)
imposed before that section comes into
force.
(4) Section (Requests
from other member States: Northern Ireland) does not apply in relation
to financial penalties (within the meaning of that section) imposed
before that section comes into
force.’.
No.
247, in
schedule 22, page 231, line 24, at
end
insert—
‘Part
7A
Police
Police
misconduct and performance
procedures
24A (1) This
paragraph applies if paragraphs 7, 8(3), 15 and 16 of Schedule 19 come
into force before the relevant provisions of the Legal Services Act
2007 come into force.
(2) Until
the relevant provisions of the Legal Services Act 2007 come into
force—
(a) section 84 of
the Police Act 1996 (c. 16) (as substituted by paragraph 7 of
that Schedule and as referred to in the subsection (4) of section 85 of
that Act substituted by paragraph 8(3) of that Schedule) has effect as
if, in subsection (4), for the definition of “relevant
lawyer” there were
substituted—
““relevant
lawyer” means counsel or a solicitor;”;
and
(b) section 4 of the
Ministry of Defence Police Act 1987 (c. 4) (as substituted by
paragraph 15 of that Schedule and as referred to in subsection (6) of
the section 4A of that Act substituted by paragraph 16 of that
Schedule) has effect as if, in subsection (4), for the definition of
“relevant lawyer” there were
substituted—
““relevant lawyer” means
counsel or a
solicitor;”.
(3) In this
paragraph “the relevant provisions of the Legal Services Act
2007” means the provisions of that Act which provide, for the
purposes of that Act, for a person to be an authorised person in
relation to an activity which constitutes the exercise of a right of
audience (within the meaning of that Act).’.—[Maria
Eagle.]
Mr.
Hanson:
I beg to move amendment No. 248, in
schedule 22, page 231, line 32, at
end
insert—
‘Part
9
Miscellaneous
Persistent
sales of tobacco to persons under
18
26 The new sections 12A
and 12B inserted into the Children and Young Persons Act 1933
(c. 12) by section (Persistent sales of tobacco to persons under
18) do not apply where any of the offences mentioned in those new
sections were committed before the commencement of that
section.’.
The
Chairman:
With this it will be convenient to discuss the
following: Government new clause 41— Persistent sales of
tobacco to persons under
18.
New clause
50—Notification of tobacco
offence
‘(1) The Children and
Young Persons Act 1933 (c. 12) is amended as
follows.
(2) In section 7 (sale
of tobacco, etc, to persons under 16) after subsection (1A)
insert—
“(1B) If
an offence under subsection (1) has been committed on any premises, the
person having management functions in respect of those premises must be
notified within 14
days.”’.
New
clause 51—Purchase of tobacco by or on behalf of
children
‘(1) The Children and
Young Persons Act 1933 (c. 12) is amended as
follows.
(2) After section 12D
(inserted by section [Persistent sales of tobacco to persons under 18]
of this Act)
insert—
“12E
Purchase of tobacco by or on behalf of
children
(1) An individual aged
under 18 commits an offence if he buys or attempts to buy tobacco or
cigarette papers.
(2) But
subsection (1) does not apply where the individual buys or attempts to
buy the tobacco or cigarette papers at the request
of—
(a) a constable,
or
(b) a weights and measures
inspector who is acting in the course of his
duty.
(3) A person commits an
offence if he buys or attempts to buy tobacco on behalf of an
individual aged under 18.
(4)
Where a person is charged with an offence under subsection (3) it is a
defence that he had not reason to suspect that the individual was aged
under 18.
(5) A person guilty
of an offence under this section is liable on summary
conviction—
(a) in the
case of an offence under subsection (1), to a fine not exceeding level
3 of the standard scale,
and
(b) in the case of an
offence under subsection (3), to a fine not exceeding level 5 on the
standard
scale.”’.
Mr.
Hanson:
The amendments address how we look at the
control of tobacco sales to persons under the age of 18. The Government
strongly favour the view that more needs to be done to tackle under-age
smoking. All members of the Committee recognise that access to
cigarettes remains far too easy for many. In a recent survey, fewer
than a quarter of 11 to 15-year-olds who
tried to buy cigarettes from small shops found it difficult to do so. We
need to encourage retailers to comply with the recent changes in the
law to raise the level of the age of purchase of cigarettes to 18, and
to prevent the sale to children and young teenagers of a product that
it is generally recognised can cause addiction, long-term health
problems and premature
death.
Ministers at the
Department of Health introduced in 2004 the “Choosing
Health” White Paper, in which the Government signalled their
intention to introduce preventive measures such as those before us that
will effectively deal with those who repeatedly sell cigarettes and
tobacco products to under-age children through a negative licensing
scheme. The implementation of the scheme, which was discussed in the
2004 paper, was subject to public consultation last year by the
Department of Health and my predecessors. The vast majority of
respondents felt that the approach was preferable to the alternative,
which would have been a positive licensing
scheme.
Government new
clause 41 puts into effect the proposals for a negative licensing
system by enabling magistrates to impose orders on retailers
prohibiting the sale of tobacco for up to one year for persistent
flouting of the law restricting the sale of tobacco to people under the
minimum age of
18.
Mr.
Hollobone:
I would be genuinely interested to know how the
proposal compares with similar proposals with regard to persistent
sales of alcohol to those under
18.
Mr.
Hanson:
There is a difference of approach in relation to
alcohol sales. One of the later amendments tabled, I think, by the hon.
Member for Enfield, Southgate relates to that. I would like to listen
to his arguments and potentially respond to the queries made by the
hon. Member for Kettering at that point. Initially, I want to speak to
the Government new clauses and pause to let the hon. Gentleman and
others comment on the Opposition clauses. I will try to respond to
those matters in due
course.
The Government
new clauses introduce two new types of order. First, a restricted
premises order, which prohibits the sale of tobacco on the premises at
which there has been persistent flouting of the law on under-age sales
of tobacco. The second is a restricted sales order, which will prohibit
any person to whom it relates from selling tobacco or cigarettes from a
shop or vending machines, or from managing the shop where the offences
occurred or other shops where tobacco is sold. Both orders are needed
to ensure that the retailer cannot simply avoid the restrictive
premises order by, for example, transferring management to another
person.
2.45
pm
It is my strong
view that the measures adequately reflect the seriousness of selling
tobacco to children and to young teenagers. Given the change in the law
this year, which raised the age to 18, it is important that we look at
those retailers that persistently flout the law.
Most retailers are responsible, sensible and attempt to abide by the
law, but if we examine the performance of retailers across England and
Wales, there will, sadly, occasionally be some who persistently flout
the law. The sanction is reserved solely for the most serious cases.
When there has been a persistent flouting of the law, local authorities
will be able to apply to the courts for an order following conviction
for breaking the minimum age law on at least two occasions previously
within a two-year period. That is both fair and reasonable. In the legislation, I am
attempting to ensure that we do not come down on retailers at the first
opportunity. That can happen and the retailer can be taken to court. If
someone commits more than two offences within a two-year period, there
is a serial nature to those offences, and the opportunity is there for
the local authority to apply for an order. The order can be one of the
two types before the Committee today. Managers of retail premises
selling tobacco products have a responsibility to train their staff in
compliance, to keep within the law and to ensure that, as far as
possible, the minimum age requirements are met by those who work in the
various outlets.
If
there is doubt about the customer’s age, staff
should ask—as I hope that they will do—to seek proof of
age, such as driving licences, passports or other cards with
tamper-proof holograms. There is an opportunity for us to look at
changing the culture, setting a standard and giving local authorities
the ability to tackle persistent offenders in a very strong
way.
Government
amendment No. 248 ensures that only offences committed after the
commencement of new clause 41 would be relevant when the court
considers whether to make a restricted premises or sales order.
Whatever the outcome of our discussions on the Opposition amendments, I
hope that those two clauses can be accepted in Committee. I await the
discussions on the amendments and will respond
accordingly.
Mr.
Burrowes:
I am glad to respond to new clause 41 and to
speak to the amendments in our names. The context of the provisions is
the extension of the minimum age of 18 to the availability of tobacco.
That is an important point from which to start. My comments, and the
new clause, are supported by the British Retail Consortium, which is
the lead trade association and represents a whole range of retailers,
from large multiples and department stores through to independents,
selling a wide range of products in towns, rural areas and virtual
stores and by the Association of Convenience Stores, which is the voice
of 30,000 local shops in the UK and has members in town centres,
neighbourhoods and rural areas across the country. The representatives
of the BRC and the ACS cover a wide range of retailers, which support
the Government’s new clause 41, but feel that the issue needs to
be addressed proportionately. They express both concern and support for
the Government’s target to reduce the availability of tobacco
for young people, but want a consistent approach.
My hon. Friend
the Member for Kettering mentioned alcohol, and there needs to be a
consistent approach to the way that we deal with alcohol and tobacco
sales and enforcement. It is also important—and I welcome the
Minister’s comments in relation to responsible
retailers—to
ensure that we are supporting responsible retailers, because they are at
the front line, ensuring that any strategies concerning the
availability of tobacco and alcohol for young people are properly
enforced. We need to support those
retailers. We must also
recognise the context in which this law would be applied. More often
than not, that context would be the small local shop with a rapid
turnover of staff, including temporary staff, who have to deal at the
counter with people asking for alcohol or tobacco. There is also a fair
turnover among the management of such shops.
Regarding tobacco, the other
context is that industry figures show that, on average, tobacco
accounts for up to 22.3 per cent. of turnover in such shops. The sale
of tobacco is a key part of their business, particularly for those
shops that, in many areas, are struggling for survival. It is important
that we support those small shops in particular and show those shops
that have responsible management that we are on their
side.
New clause 41
warrants support, in that it presents tough but flexible penalties. In
trying to have a proportionate response, the amendments put forward in
my name and those of my hon. Friends—amendments (a) to
(d)—seek to alter the time period during which the three
offences can take place, from two years to three months, and also to
reduce the maximum period of a ban on tobacco sales from one year to
three months. Taken together with amendment (e), there would be a
requirement for trading standards officers, if they have evidence that
an under-age sale offence took place, to notify the premises
involved.
The
remaining amendments and new clause 51 try to achieve equality between
the way that we apply tobacco laws and the way that we apply alcohol
laws. We seek to make it illegal for someone under 18 to buy tobacco
products and to make it illegal for someone over 18 to buy tobacco on
behalf of someone under
18.
Mr.
Hollobone:
As I understand it, the Licensing Act 2003 made
it a criminal offence for a young person to attempt to buy alcohol or
for an adult to supply them by proxy. Is this Bill not a superb
opportunity to have the same rules and regulations with regard to
tobacco products? I simply do not understand why the Government are not
making that simple link.
Mr.
Burrowes:
I am grateful to my hon.
Friend for his intervention and it encourages me to take new clause 51
first. I support his point; from the point of view of both consistency
and equality, there is a need to deal with the issue of tobacco in the
same manner as we deal with alcohol. New clause 51 seeks to do that, to
achieve equality between the law on selling tobacco and the law on
selling alcohol. Presently, anyone under 18 who attempts to buy alcohol
is committing an offence, but anyone under 18 who attempts to buy
tobacco is not.
That
puts the legal onus entirely on the retailer and our concern is that we
should ensure that the young person themselves is also made accountable
and we would achieve that by new clause 51. We would like to see the
law changed so that the young person is made properly accountable for
their actions, and that change would put the law on the side of the
responsible retailer who wants to ensure that that young person knows
that, if they attempt to buy tobacco, the law will come
down on them and not be on their side. In new clause 51, we would prefer
that they were dealt with by way of a fine, which would be a
proportionate response and act as a deterrent in the first place, to
try to stop them buying tobacco themselves or having an adult buy it on
their behalf. The
remaining amendments in our names seek to deal with the issue of
proportionality in different ways. First, amendments (a) to (d) concern
the length of reference period. We suggest that the reference period
should be reduced from two years to three months. As discussed before,
that would create parity with the sanction on the sale of alcohol in
the Violent Crime Reduction Act 2006. It is important to recognise that
staff and managerial turnover levels are high in the retail sector and
the most effective way to put the sanctions in place through the
Government’s approach would be for a short time frame. Three
months would enable staff and management to deal properly with the
matter. If there were three test purchases in a three-month period,
that would certainly be a serious and persistent offence, which the
Government would seek to address. It would need to be dealt with
properly and
firmly.
Given the high
turnover, staff and management in business might have to deal with
offences that took place two years ago, which is not right or fair.
That is why we have tabled amendments (a) to (d), which would deal
proportionately and effectively with the intention behind the
Government’s new clause
40.
Amendment (a)
would reduce the one year ban, which is too long a sanction.
Proportionality is necessary, given that convenience stores and
newsagents have a high turnover. It is also important to recognise that
if we ban the selling of tobacco in those businesses, particularly the
small ones, a key part of their trade would be wiped out, which could
increase the threat of bankruptcy. We should instead be tackling
persistent offenders over a short time frame. That is the essence of
our
amendments.
Amendment
(e) deals with notification periods for the premises involved. The
British Retail Consortium and the ACS are concerned because they think
that it is important to give proper notice. When enforcement is needed
and a prosecution is to take place, a 14-day period, in which the
retailer can put matters right, would be more appropriate than to delay
notification of enforcement. That would demonstrate that we are on the
side of responsible retailers as well as those that want to put their
house in
order.
Mr.
Hanson:
The Opposition’s amendments make some
useful points that are worth discussing in a helpful context. I cannot
accept all the amendments, but some raise points worthy of further
examination.
I shall
start with the negatives, so that I can end on a positive note.
Amendments (b) and (d) would reduce to three months the period prior to
an offence that may be considered by a court when deciding whether to
make an order, and amendments (a) and (c) would shorten the length of a
ban. Those would not be helpful and I cannot accept them.
There are differences and
similarities between alcohol and tobacco, but it is important to put
down markers to support positive retailers that follow the
letter of the law and to crack down on those breaking
it. The hon. Gentleman will know that previous
legislation has examined the periods for alcohol, because it can cause
immediate and severe damage to individuals and is linked to antisocial
behaviour. Time frames for alcohol differ owing to its potentially
serious consequences for individuals and the community. I think that we
have got the right balance regarding the consideration period for
offences and for the length the
bans. I cannot accept
the hon. Gentleman’s case and I hope that my hon. Friends will
reject it, particularly because many local authorities undertake test
purchases of tobacco sales using young people once or twice a year
only. It is not practical, therefore, to carry out test purchases
within the three-month period that he suggested. Retailers that adopt
the legislation, work hard to enforce it and train their staff
effectively will not fall foul of the Bill or run the risk of the local
authority asking a magistrates court to impose an order. I am confident
that that includes the vast majority of retailers. We need to take
action against retailers that flout the law persistently by imposing
these fair and proportionate orders.
3
pm
The hon.
Gentleman makes a valid point about notification, and I am certainly
not opposed in principle to the concept of a notification requirement.
If he will let me, I shall be happy to take away that amendment today
to look at it in detail. I have sat in opposition, too, and although
good points are often made by the Opposition, the Government have to
consider their implications in a wider context before they can be
accepted. I am not opposed in principle to the hon. Gentleman’s
suggestion about notification. I would like to reflect on it and if it
is a practical, workable suggestion, I will certainly consider how we
can address it at a later stage. I cannot commit as yet to introducing
such an amendment at this stage, but I will certainly consider the
issue.
I turn to new
clause 51, tabled by the hon. Member for Kettering, to which the hon.
Member for Enfield, Southgate also referred. It would make it an
offence for a child to purchase tobacco or for an adult to buy tobacco
on behalf of a child. I recognise the good intention behind the new
clause, which tries to bring the legislation into line with what will
happen with alcohol. My hon. Friend the Member for Brent, South (Ms
Butler) has tabled an early-day motion on this topic and has worked
very hard to get support for it. Indeed, my hon. Friend the Member for
Ealing, Southall has signed it. I have checked, and he is the only
Labour member of this Committee who has signed it so far. I know that
he, too, will feel strongly about this
matter.
There is merit
in looking at this issue again. I can give no commitments to introduce
any such measures, but I see the logic, particularly regarding adults
over the age of 18 who purchase cigarettes and other tobacco products
and give them to individuals under the age of 18. I should like to pray
in aid my own daughter, who is 17 but is in school with 18-year-olds.
She will not be 18 until next August, but she will have a whole year in
which other people are passing their 18th
birthdays. As it happens, my daughter does not smoke and I do not think
that her friends do, either. However, we are talking about a group of
friends who will work and mix together, and it would be quite possible
under the current provisions for an individual to purchase cigarettes,
even for their own year group, and spread them around the younger
members of that group, never mind adults
generally. There is an
issue that needs to be examined and although I cannot commit to an
amendment, it is worthy of examination. I would take issue with the
criminalisation of young people under the age of 18 who may purchase
cigarettes. Again, I recognise that there is an anomaly regarding
alcohol and cigarettes, but I am not sure that I want to go down the
route of criminalising young people under the age of 18 who buy
cigarettes. However, I recognise that this is a difficult area and we
need to ensure that we put preventive measures in place.
I hope that the change in
legislation will also bring about a culture change, and that the
under-18s realise that buying cigarettes is not only illegal but bad
for them. That is why it is being made. It should set a benchmark for
retailers and for people over 18, so that they recognise that that is
the age of adulthood and that at that stage, people can make their free
decision. However, there needs to be a culture change generally to
reduce tobacco usage by the
under-18s.
I ask the
hon. Gentleman to withdraw his amendment, which I believe would water
down the penalties and deterrents. I also ask him to withdraw his
amendment on notification, so that I can consider it outside Committee,
and his new clause 51. There are issues that I need to discuss with my
colleagues in the Department of Health and others. I also need to
examine the implications of his suggestions, and of those made by my
hon. Friend the Member for Brent, South and other colleagues who have
signed the early-day motion.
The
Chairman:
Before I call the hon. Member for Enfield,
Southgate to respond to the Minister, I say to the Minister that the
hon. Gentleman does not need to withdraw his proposals because it is a
Government amendment that heads the
group.
Mr.
Hanson:
I am grateful for your usual helpful guidance, Sir
Nicholas. Even after 15 years in this place, I occasionally lose track,
given the amount of paper before me, of what order the amendments are
in.
Mr.
Burrowes:
Thank you, Sir Nicholas. I welcome the
Minister’s comments and accept the need to ensure that the
legislation is
proportionate.
The
notification requirement goes to the heart of the concern of the
Association of Convenience Stores and the British Retail Consortium
that there should be an opportunity for retailers to get their house in
order at an early stage. The Minister mentioned his daughter in the
context of those around her who could potentially purchase tobacco. His
daughter or her peers could also be behind the counter of a newsagent
in a part-time job and have to deal with the situation of a bunch of
their peers wanting to purchase cigarettes. Some of them would be 18
and some 17.
New clause 51 would put the
responsibility on such a 17-year-old. It would ensure that they were
accountable for their actions. They should not be purchasing tobacco.
The deterrence from enforcement should be for them, rather than the
onus being on the staff behind the counter—who are often
part-time and young—trying to enforce the new
limit.
A
wider concern is that it is important for the
Government to properly inform people about the changes. There should be
publicity at an early stage, before implementation, which makes it
clear to customers and retailers alike that there will be changes and
that there will be new sanctions. A concern has been expressed by those
organisations and by newsagents in my constituency about the complete
lack of information and publicity for the changes on 1 October, which
led to confusion and added pressure on small retailers. There must be
proper communication of public information by the Government at an
early stage.
I will
explain briefly another wider concern that was
expressed to me this week by the British Retail
Consortium. It concerns the word “proportionate”, which I
have mentioned a lot. While retailers want to support the Government in
introducing tough penalties for tobacco and alcohol sales to those who
are under-age, they are also concerned that there should be
proportionality in the way that criminal offences are followed up and
implemented on the ground. They have expressed concerns about
shoplifting. There are increasing pressures on small shops from
shoplifting day in and day out. There are often persistent shoplifters.
The retailers complain to the police, but it is not followed through.
It is thought of by some as a victimless crime, not least by the
offenders. We know that that is not the
case.
It is important
that there is effective implementation. Retailers want to be on the
side of supporting new legislation that stops the persistent sale of
tobacco and alcohol to those who are under-age, but they also want
support from the police to ensure that when they report offences, there
is proper follow-through. It is important that that message gets across
to retailers on the
streets.
Amendment
agreed
to.
Amendment
made: No. 249, in schedule 22, page 231,
line 32, at end
insert—
‘Sexual
offences
27 The amendment
made by sub-paragraph (1) of paragraph 12B of Schedule 21 is not to be
read as affecting the validity of any supplementary, incidental,
consequential, transitional, transitory or saving provisions included
in orders or regulations made by the Secretary of State under the
Sexual Offences Act 2003 before the commencement of that
sub-paragraph.’.—[Mr.
Hanson.]
Schedule
22, as amended, agreed
to.
Clause 125
ordered to stand part of the
Bill.
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