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That is the definition that he seeks.

The hon. Gentleman asked about the judicial review. Our view was that it would be better to delay our review of the matter until after we had seen the view expressed by the courts. However, lawyers consider such things with a degree of care, and I have done so and taken the view that the courts would actually want to know how the Government propose to deal with these issues. I believe that it would therefore assist the courts if we set out how we propose to do so, so that the fact that we are conducting a review can be taken into account in any judgment that they reach in due course in relation to the judicial review. He asks whether we have changed our mind: yes, we have. Have we considered the matter again? Yes. Have we taken the view that we can go ahead with the change now? Yes, we have-I have taken advice from those who advise us and taken the view that we can move forward. [Interruption.] It was a lawyer's examination of the issues, to reach a sensible conclusion based upon the evidence.


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I am grateful for the indication that Conservative Members do not intend to oppose the new clause, and I hope that we will have the support of the Liberal Democrat Front Benchers.

Question put and agreed to.

New clause 13 accordingly read a Second time, and added to the Bill.

New Clause 14


Payments in respect of costs of optical appliances

'Section 180(2)(c) of the National Health Service Act 2006 (c. 41) (payments in respect of costs of optical appliances for persons aged 60 or over) is omitted.'- (Mr. Mike O'Brien.)

Brought up, and read the First time.

6.45 pm

Mr. Mike O'Brien: I beg to move, That the clause be read a Second time.

Mr. Deputy Speaker: With this it will be convenient to discuss Government amendments 38 and 39.

Mr. Mike O'Brien: The new clause is designed to correct a drafting mistake that was made in the Health Act 2006, which is now consolidated into the National Health Service Act 2006. I understand that the error was spotted by officials on 8 September this year, and the new clause makes no change in policy.

Since the introduction of the optical voucher scheme in 1986, Government policy has been that eligibility for NHS optical vouchers should be targeted at children and those who are in receipt of a qualifying income-related benefit or need a complex optical appliance. Those eligible for help on low-income grounds include those aged 60 or over. The change introduced in the Health Act 2006 seems mistakenly to have extended eligibility for optical vouchers to all people aged 60 or over, regardless of income. That was not referred to in the explanatory notes to the Act, and it was not the subject of an impact assessment or consultation. It was a mistake made during the process of preparing the draft Bill.

Before Opposition Members have fun with this-I would expect no less-I remind them of the minor fact that although it is true that Ministers at the time did not spot that the wording was wrong, neither did either Opposition party's Front Benchers, so let us not be holier-than-thou about this. We accept that there appears to have been a drafting error. There seems to have been some lack of clarity in the Department of Health's instructions, which led to a mistake in drafting that was never picked up in this place or the other place. The new clause simply corrects that error and reinstates the legislation that reflects our long-standing intention and policy, including at the time of the Health Act 2006-to maintain entitlement unchanged.

No one eligible for an optical voucher before the mistake was made is affected by the new clause. Our view continues to be that help with the cost of optical appliances through the NHS voucher scheme should be targeted at those most in need, and that that
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represents the best use of NHS funds. That view predates our Government and has continued, by and large, under this Government.

Frank Dobson: Would my right hon. and learned Friend concede that the person doing the drafting might even have benefited from the optical appliances that the vouchers supply?

Mr. Mike O'Brien: I dare not concede that. Our draftsmen do an excellent job, and we certainly do not want to upset them. My guess is that there was just a lack of clarity in some of the instructions that were sent over. It is difficult to be clear about why the mistake originally arose, but arise it did. By the way, we spotted it, and we are dealing with it now. People aged 60 and over are eligible for NHS-funded sight tests in view of their increased risk of eye disease, and that will continue. There are conditions in relation to the application of the rules. Our policy is unchanged and the new clause merely corrects an error in the legislation.

Mike Penning: The Minister is right-we might have a little fun, but only for a few moments because I do not want to delay matters. I thank him for the letter of 2 October to my colleague, informing the official Opposition that the Department had found the mistake-three years after it was included in the measure; the Minister forgot to mention how long it had taken. However, he is right that the provision was not intended to be in the 2006 measure-I have looked through the work that took place long before I joined the Front Bench to ascertain how the Bill went through. He should be commended on his intention to continue the previous Conservative Government's work on optical vouchers.

I noted the Minister's comment that the shadow Secretary of State had taken part in proceedings on the Bill and that perhaps he should have picked up the mistake. Not quite as many lawyers work for Her Majesty's Opposition as for the Department of Health. While we are having a bit of banter, let me point out that the hon. Member for Lincoln (Gillian Merron), now a Minister in the Department, was the Whip on the Bill. One therefore wonders whether the Bill that we are considering today, about which she may comment-she served on the Committee-has had the same sort of scrutiny that took place in 2006.

After that bit of banter, we accept that a mistake was made three years ago and that the Government are changing the legislation at the first opportunity.

Sandra Gidley: I have little to add. I had spotted the flaw that neither Ministers nor the Opposition teams found. It made me wonder whether we had inadequate time for scrutiny. Bills are heavily timetabled in Committee nowadays and clauses often do not receive the attention that they perhaps would if we had a little more time.

I am amazed that the mistake took three years to come to light. However, I have a question for the Minister. Should I advise my mother, who is over 60 but currently does not qualify for free spectacles, to get out there quickly and get her vouchers before the changes come into force?


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Mr. Mike O'Brien: The policy remains exactly as it was. The best advice for the hon. Lady's mother is that the NHS has rules, which it has applied and will continue to apply. If her mother qualified previously, she qualifies now. If she did not qualify previously, she does not now.

Mr. Deputy Speaker: Order. I suspect that the Minister was not responding to an intervention, but summing up the debate.

Question put and agreed to.

New clause 14 accordingly read a Second time, and added to the Bill.

New Clause 1


Purchase of tobacco on behalf of children

'After section 7(2) of the Children and Young Persons Act 1993 (c. 12) (sale of tobacco, etc. to persons under (eighteen)) insert-

"(2A) A person commits an offence if he buys or attempts to buy tobacco on behalf of an individual aged under 18.

(2B) Where a person is charged with an offence under subsection (2A) it is a defence that he had no reason to suspect that the individual was aged under 18.

(2C) A person guilty of an offence under this section is liable on summary conviction to a fine not exceeding level 5 on the standard scale.".'.- (Mike Penning.)

Brought up, and read the First time.

Mike Penning: I beg to move, That the clause be read a Second time.

Mr. Deputy Speaker: With this it will be convenient to discuss the following: new clause 4- Purchase of tobacco on behalf of children-

'After section 7(2) of the Children and Young Persons Act 1933 (c. 12) (sale of tobacco, etc, to persons under (eighteen)) insert-

"2A Purchase of tobacco on behalf of children

(1) A person commits an offence if-

(a) he buys or attempts to buy tobacco on behalf of an individual aged under 18, or

(b) where he is a member of a club, on behalf of an individual aged under 18 he-

(i) makes arrangements whereby tobacco is supplied to him or to his order by or on behalf of the club, or

(ii) attempts to make such arrangements.

(2) A person ("the relevant person") commits an offence if-

(a) he buys or attempts to buy tobacco for consumption on relevant premises by an individual aged under 18, or

(b) where he is a member of a club-

(i) by some act or default of his, tobacco is supplied to him, or to his order, by or on behalf of the club for consumption on relevant premises by an individual aged under 18, or

(ii) he attempts to have tobacco so supplied for such consumption.

(3) Where a person is charged with an offence under paragraph (1) or (2) it is a defence that he had no reason to suspect that the individual was aged under 18.

(4) A person guilty of an offence under this subsection is liable on summary conviction-

(a) in the case of an offence under paragraph (1), to a fine not exceeding level 3 on the standard scale, and

(b) in the case of an offence under paragraph (2), to a fine not exceeding level 5 on the standard scale."'.


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New clause 6- Disclosure of tobacco industry promotional and research activity-

'(1) The Secretary of State shall make regulations to require a business which in the course of its activity sells a tobacco product or causes one to be sold to disclose details of its marketing and research activities.

(2) Disclosure shall consist of but is not limited to-

(a) the total amount spent on distribution, advertising and selling costs deducted from corporation tax;

(b) distribution costs;

(c) promotional allowances at retail;

(d) competition prizes at retail;

(e) tobacco display gantries at retail;

(f) speciality item distribution;

(g) brand development;

(h) packaging design;

(i) online marketing activity;

(j) advertising in specialist trade press;

(k) corporate social responsibility activities;

(l) market research;

(m) product research; and

(n) any other marketing and research activity which represents more than 5 per cent. of the total spending by the business.

(3) The Secretary of State shall make regulations to require disclosure of information and results from all market research and scientific research conducted by the businesses specified in subsection (1) in relation to tobacco products by type of product.

(4) The Secretary of State shall require all information required by subsections (1) and (3) to be submitted on a quarterly basis by businesses specified in subsection (1) and shall, within three months, publish a report aggregating the data.

(5) A person who does not comply with regulations under this section shall be guilty of an offence.

(6) The provisions of section 13 (Enforcement), 14 (Powers of entry, etc), 15 (Obstruction, etc of officers) and 16 (Penalties) of the Tobacco Advertising and Promotion Act 2002 shall apply to this section.'.

New clause 7- Restrictions on tobacco packaging-

'Within six months of the passing of this Act, the Secretary of State shall set out guidance for consultation with appropriate stakeholders on regulations prohibiting or restricting the use of logos, colours, brand images or promotional information on tobacco packaging other than brand names and product names displayed in a standard colour and font style.'.

Amendment 1, page 23, line 31, leave out clause 21.

Amendment 16, clause 21, page 24, line 15, at end insert-

'(2) No offence is committed under section 7A if-

(a) the products are displayed at a place where tobacco products are offered for sale,

(b) the display is of one packet only of each tobacco product which is offered for sale,

(c) the display is no greater than 1.5 square metres in size, and

(d) the display complies with such requirements as may be specified in regulations.'.

Amendment 2, clause 22, page 26, line 3, leave out 'may' and insert 'shall'.

Amendment 4, page 26, line 4, after 'prohibiting', insert 'in certain circumstances'.

Amendment 5, page 26, line 4, leave out 'or imposing requirements in relation to'.

Amendment 6, page 26, leave out lines 6 to 10.


12 Oct 2009 : Column 82

Amendment 17, page 26, leave out lines 7 to 10 and insert-

'requirements as to the location of any automatic machine for the sale of tobacco which would prevent access to, or purchase of, tobacco by any person aged under 18.'.

Amendment 7, page 26, line 12, leave out 'or requirement'.

Amendment 8, page 26, line 13, leave out 'or requirement'.

Amendment 9, clause 23, page 27, line 12, leave out 'may' and insert 'shall'.

Amendment 10, page 27, line 12, after 'prohibiting', insert ' in certain circumstances'.

Amendment 11, page 27, line 12, leave out 'or imposing requirements in relation to'.

Amendment 12, page 27, leave out lines 15 to 19.

Amendment 18, page 27, leave out lines 16 to 19 and insert-

'requirements as to the location of any automatic machine for the sale of tobacco which would prevent access to, or purchase of, tobacco by any person aged under 18.'.

Amendment 13, page 27, line 21, leave out 'or requirement'.

Amendment 14, page 27, line 22, leave out 'or requirement'.

Mike Penning: It is a pleasure to take this element of the Bill through its final stages.

I was a proud member of the Select Committee on Health that pushed the Government from a partial ban on smoking in public places to a full ban. I did not think that anyone should be protected under the legislation on a cherry-picking principle. It should be one rule for all or not at all. I was therefore pleased that the Select Committee, after taking a lot of evidence, reached conclusions that meant that an amendment was tabled and, on a free vote, the House came to a sensible decision.

Unless things have changed since the debate began, I am sad that the two main Opposition parties have a free vote this evening, while the Government party does not. That is a shame. It is an issue of conscience- [Interruption.] No, the Government party does not have a free vote-Labour Members can ask the Minister. Some selective voting by Labour Members may happen, but the Government will oppose the amendments and that is a shame.

Dr. John Pugh (Southport) (LD): It is all the sadder because the evidence is ambiguous. There is no decisive evidence to compel Ministers and Labour Members to vote the same way.

Mike Penning: That is a sensible point. We did not force any votes in Committee because we wanted the House to have the opportunity to express a view and did not want to constrain the House. I said to the Minister in Committee that the evidence appeared to be selective. I understand where it came from; I have nothing but admiration for Cancer Research UK and Action on Smoking and Health-ASH. I have worked with them in the past and will continue to do that. However, it is a Minister's job to examine all the evidence so that legislation is evidence-based.


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