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Session 2008 - 09
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General Committee Debates
Health Bill [Lords]

The Committee consisted of the following Members:

Chairmen: John Bercow, †Robert Key, Mr. Edward O'Hara
Creagh, Mary (Wakefield) (Lab)
Cunningham, Mr. Jim (Coventry, South) (Lab)
Gidley, Sandra (Romsey) (LD)
Hall, Patrick (Bedford) (Lab)
Horam, Mr. John (Orpington) (Con)
Merron, Gillian (Minister of State, Department of Health)
Naysmith, Dr. Doug (Bristol, North-West) (Lab/Co-op)
O'Brien, Mr. Mike (Minister of State, Department of Health)
O'Brien, Mr. Stephen (Eddisbury) (Con)
Penning, Mike (Hemel Hempstead) (Con)
Pugh, Dr. John (Southport) (LD)
Slaughter, Mr. Andy (Ealing, Acton and Shepherd's Bush) (Lab)
Turner, Mr. Andrew (Isle of Wight) (Con)
Turner, Dr. Desmond (Brighton, Kemptown) (Lab)
Waltho, Lynda (Stourbridge) (Lab)
Wilson, Mr. Rob (Reading, East) (Con)
Chris Stanton, Committee Clerk
† attended the Committee

Public Bill Committee

Tuesday 23 June 2009


[Robert Key in the Chair]

Health Bill [Lords]

Schedule 3

NHS and other health appointments: suspension
4 pm
Mr. Stephen O'Brien (Eddisbury) (Con): I beg to move amendment 31, in schedule 3, page 48, line 10, leave out from ‘so’ to the end of line 12.
I am pleased to be back under your chairmanship, Mr. Key. We will try to make as much progress as we managed this morning, when we rattled along.
Amendment 31 again refers to the suspension of Monitor’s executives. The Secretary of State will not be obliged to undertake a review of suspensions until three months have elapsed from the time of suspension, and the amendment would remove that obligatory delay while preserving the opportunity for review. Why was that apparently arbitrary period chosen? Given, as I have said before, that suspended non-executives are unlikely to have recourse to the courts, surely they should be allowed a review as soon as is practicably possible.
The Minister of State, Department of Health (Mr. Mike O'Brien): We wanted to allow reasonable time for investigations to take place; it is as simple as that. Investigations may be concluded more quickly, but, depending on the circumstances, they make take longer. The Secretary of State would not want to be in a position whereby he was unable properly and fairly to conduct a review of the suspension if requested to do so in an unrealistically short time.
Mr. Stephen O'Brien: I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Mr. Stephen O'Brien: I beg to move amendment 184, in schedule 3, page 49, line 36, at end insert—
‘(2) The amendments made by this Schedule apply to a condition occurring at any time in the person’s appointment which satisfies the Secretary of State as a condition for suspension.’.
Here we arrive at the exciting point about paragraph 19, establishing that the changes here are retrospective in that they impact on anyone appointed at the time the Act comes into force, regardless of when they were appointed. This is a probing amendment to find out whether the legislation will operate retrospectively on grounds for a suspension that may have arisen in the past but may no longer be present, or will suspension be an option only on grounds for suspension that arise after this legislation comes into force? The related question is whether the Minister currently has any non-executives in his sights for when the provision comes into force.
Mr. Mike O'Brien: The transitional provision in paragraph 19 as drafted ensures that the measures will apply to persons appointed at any time. This already enables us to investigate any issues or allegations about events that happened in relation to persons appointed at any time prior to the Act coming into force. In answer to the final question, I have no one in my sights at the moment.
Mr. Stephen O'Brien: That clears up the question about the retrospective provisions, and clearly there is nobody in the Minister’s sights. The slight question that survives, which perhaps the Minister could pick up at a later point, is whether the actual grounds for suspension need to have arisen before the legislation in order not to be caught or whether they can be caught retrospectively. Does the Minister want to intervene on that point?
Mr. Mike O'Brien: My understanding is that this enables us to deal with any issue that arises at any stage, whether retrospective or not. That seems to be the basis on which we are proceeding. If there is anything different, I will write to the hon. Gentleman.
Mr. Stephen O'Brien: I am most grateful. I think the important point on the record is that there is a degree of retrospection that needs to be well understood by everybody who might be affected by it. On that basis, I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Schedule 3 agreed to.
Clause 20 ordered to stand part of the Bill.

Clause 21

Prohibition of tobacco displays etc
Mike Penning (Hemel Hempstead) (Con): I beg to move amendment 89, in clause 21, page 24, line 16, leave out ‘requested’.
The Committee will realise that we have reached a clause that, to be frank, is controversial. There are many different views across the House about how a product that is legal in this country can be sold while, at the same time—and I say this from a personal perspective—we cut the number of people, especially the young, who take up smoking and continue to smoke.
I was a member of the Health Committee when we looked carefully at evidence relating to the legislation to ban smoking in public places. I began that evidence session feeling very sceptical about banning smoking selectively. By the end of it, on the basis of the evidence, I was a signatory, with other hon. Members of the Committee, to the idea of a total ban on smoking in public places. It is probably obvious that I have no side with the tobacco industry. I would be happy if everybody ceased smoking tomorrow morning. It would be great for their health and great for the NHS, but probably not so great for the Treasury.
With that in mind, I emphasise the term “evidence based”. I have said to the organisations lobbying brilliantly on behalf of this legislation that my concern is not that I want fewer people to smoke—particularly children—and to have access to tobacco. That is a no-brainer for everybody, I am sure. It is that I wonder whether the legislation will work and whether it is too onerous on legal organisations that sell tobacco as part of their income stream.
I also wonder whether the legislation would provide more of a driver for the black market. Currently, at least one in five cigarettes is either counterfeit or sold on the black market with no duty paid and no one taking the slightest bit of interest in the age of the person buying that product. Age is something that I believe newsagents, tobacconists and clubs should take notice of, and in most cases they do.
That said, I will not press any of the matters related to tobacco to a vote in Committee. That is a matter for the whole House to decide on. Her Majesty’s Opposition will have a free vote, so they can express their personal views. I hope that the Government take a similar view, as, to be fair, they did on the legislation to ban smoking in public, when we had a free vote.
This is a probing amendment, which deals with the prohibition of tobacco displays. I said earlier that I doubt not the Government’s intentions, which I think are honourable, but the evidence base behind the provision. It is, perhaps, a bit early to use some of the evidence that the Minister has sent out in her letters—today, for instance. That, sadly, has left no option for her to be open-minded, as we all were about the previous legislation. Instead, it is dismissive of evidence counter to that being used by the Government.
Amendment 89 seeks to provoke the debate on the statutory definition of a requested display. For people who sell tobacco on their premises, what that means is of great concern; they want to know when and if they are breaking the law. “Requested display” relates to retailers and staff as set out in the Bill, but it is very vague. It needs to be defined, I am sure the Minister will agree. It needs a bit more tweaking, even if the legislation is passed, so that people have confidence that their display is not breaking the law under new section 7B.
An individual who wants to see the legal product that they are going to buy may have a child with them in the shop. Under the clause, is it going to be illegal for them to see the product? I hate to think that we will have a situation where mums and dads who, sadly, still smoke leave Johnny or Mary outside the door unaccompanied while they go in and purchase their cigarettes. It will not always be possible for people to accompany the children while their parents are in the shop purchasing their cigarettes, which are a legal product. My point is that the parents—and the tobacconists—will be concerned about whether they are breaking the law if an under-18 is with them during that purchase. That needs to be set out and defined carefully, because, if we are not careful, people may unintentionally break the law or put their children at risk.
Someone may, for instance, ask to see a new brand at a tobacco kiosk in the middle of a large supermarket with significant footfall. If the new brand is presented to them before they purchase and a minor walks past, will that be an offence under the Bill? Under the wording at present, it appears that it will. People will commit an offence unintentionally, and the effect on the proprietor will be onerous, whether it be a large supermarket or a smaller corner shop.
There is a whole debate to be had as to whether it is physically possible for someone who is the only person working in a shop at a particular moment to know what is happening out of their eyeshot when someone asks to see a product. Shoplifting is a real problem for small businesses, and the Association of Convenience Stores asked me to look into that.
The arguments about the content of the amendment are for the Floor of the House. What I am trying to probe with my comments now is what is actually an offence in respect of a requested display. It is difficult to see from the wording of the Bill exactly what is an offence.
Dr. John Pugh (Southport) (LD): I thoroughly appreciate the attitude taken by Conservative Front-Bench Members on how to deal with this issue. It is such a big topic for parties, and people within parties, that it is probably best discussed largely on the Floor of the House. Therefore, fewer amendments will be put to the vote during debates in Committee. In fact, there are variations within parties and even within health teams. One of the reasons I am on this Bill is that I reduced the variation that might otherwise have occurred if other personnel had been put on it.
When the ban on smoking in public places was introduced, the argument was largely about secondary or passive smoking, and the rights of people not to be affected by other people’s smoke, but I think that there was a sub-text to it. I was well aware of a definite attempt to marginalise smoking as an activity. That is what the legislation succeeded in doing, and I do not think that it was necessarily a bad thing, but it would be more honest when people are presenting their argument to do so in precisely those terms. The more that smoking is seen as a rather strange activity that people engage in in little huddles outside buildings on cold days, the less people will smoke, the better public health will be, and the less cost there will be for the NHS.
This clause and successive clauses largely set out the possibility of regulation that is justified by the suggestion that we can stop children smoking by altering displays, or that we can stop people who have given up smoking restarting. Evidence has been amassed to that effect, but, as the hon. Gentleman just said, there is evidence moving in both directions. Frankly, some of it looks a bit flaky; at any rate, it is inconclusive.
I do not think that one buys cigarettes on impulse. Someone might walk into a service station and suddenly buy a packet of crisps, a chocolate bar or a drink they had not expected to buy, but they would not suddenly come out with cigarettes, not having previously intended to go in there for that precise purpose. I think that the public health arguments are not as honestly or as plainly put here.
That being said, the definition of “requested display” as an entity in law is a little obscure to me. I share some of the reservations of Conservative Front-Bench Members about it and would support the amendment.
The Minister of State, Department of Health (Gillian Merron): It is a pleasure to serve under your chairmanship, Mr. Key.
I thank hon. Members for their comments because it is helpful to probe the intent behind the clause, and certainly the considerations that have been put are useful. Perhaps I could clarify that the amendment, if passed, would allow retailers openly to display tobacco to all adults, which of course is not the intention of the Bill. It would also require shops either to create separate adult-only areas just to display tobacco or to remove tobacco displays entirely. I am seriously concerned that that would put small shops at a serious competitive disadvantage. They would be far less able to afford to create such areas, whereas supermarkets and superstores would have no such problem. Even if we put aside the competitive disadvantage, the amendment would ignore the second and important part of our policy, which has perhaps not been aired, but which is to support those who already smoke but want to quit.
4.15 pm
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