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House of Lords

Thursday, 12th December 2002.

The House met at eleven of the clock: The CHAIRMAN OF COMMITTEES on the Woolsack.

Prayers—Read by the Lord Bishop of Guildford.

Consolidated Fund Bill

Lord McIntosh of Haringey: My Lords, I beg to move that this Bill be now read a second time.

Moved, That the Bill be now read a second time.—(Lord McIntosh of Haringey.)

On Question, Bill read a second time; Committee negatived.

Consolidated Fund (Appropriation) Bill

Lord McIntosh of Haringey: My Lords, I beg to move that this Bill be now read a second time.

Moved, That the Bill be now read a second time.—(Lord McIntosh of Haringey.)

On Question, Bill read a second time; Committee negatived.

Licensing Bill [HL]

11.6 a.m.

The Minister of State, Department for Culture, Media and Sport (Baroness Blackstone): My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.

Moved, That the House do now resolve itself into Committee.—(Baroness Blackstone.)

Viscount Astor: My Lords, at Second Reading, the noble Lord, Lord McIntosh, gave a commitment to reply in writing to questions that he was either unable or did not have time to answer at the end of the debate. I raised a number of questions and have received no letter from the noble Baroness's department; nor, so far as I am aware, have a number of my colleagues on this side of the House.

If a Minister makes a commitment at Second Reading to answer in writing questions with which he was unable to deal, the department and the Minister should make some effort to reply to us, or indeed to explain why we were unable to receive replies. Serious points were made during the debate. I hope that the Minister will be able to give a commitment to consider them and that, between now and Committee stage next week, she will reply to any issues to be dealt with then.

Baroness Blackstone: My Lords, of course I can do that. I received a number of letters yesterday to sign, but I thought that some of them needed changes.

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Because of the preparation that was necessary for this morning's proceedings, I did not feel able to ask officials to spend a lot of time changing them. I will, however, endeavour to obtain replies to the specific questions raised, some of which were not answered by my noble friend Lord McIntosh—although he did a splendid job, standing in for me at the last minute, in answering many of them. I will look specifically at the questions raised by the noble Viscount and at any others relating to points that will not be covered in ministerial responses today.

On Question, Motion agreed to.

House in Committee accordingly.

[The CHAIRMAN OF COMMITTEES (Lord Brabazon of Tara) in the Chair.]

Clause 1 [Licensable activities and qualifying club activities]:

Lord Faulkner of Worcester moved Amendment No. 1:

    Page 1, line 9, at end insert—

"(e) the provision of indoor spaces in which smoking is permitted in premises where other licensable activities are carried on."

The noble Lord said: In moving this amendment, I shall speak also to Amendments Nos. 78 and 90, which are grouped with it.

The first amendment adds a further licensable activity to the list contained in Clause 1. The proposed new paragraph (e) relates to the provision of indoor spaces in which smoking is permitted in premises where other licensable activities as already described in paragraphs (a) to (d) are carried on.

There are four main reasons why the amendment is desirable and necessary. The first is to continue what has been a previous practice and to give to the new licensing authorities the responsibility which currently lies with magistrates. It is thus in accord with the main thrust of the Government's Bill.

Magistrates have historically imposed conditions on smoking in public places in licensed premises, especially in banning smoking in areas open to children. The amendment would continue that practice but would make it the responsibility of the new licensing authorities.

Secondly, it is in line with the Government's general policy of making decisions locally. My noble friends increasingly emphasise the importance of local communities in policy-making and delivery. This follows that approach. Local authorities are best placed to make, and are properly accountable for, decisions made about smoking status in pubs and restaurants. Experience overseas indicates that most progress is made in this area when relatively small jurisdictions are given the responsibility. It would be much more difficult to impose a "one size fits all" approach from Whitehall for the whole nation.

By giving powers to local authorities to impose conditions, we are more likely to get appropriate solutions for the local community and solutions sensitive to the commercial needs and practical constraints of particular premises.

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Thirdly, the amendment is intended to contribute towards linking the objectives of the Bill with health. The BMA's recent report on passive smoking, Towards Smoke-free Public Places, establishes beyond doubt that passive smoking is a cause of lung cancer, coronary heart disease and asthma attacks in adults; and cot death, middle ear disease, respiratory infections and the development of asthma in children.

The most recent statement of the Government's policy on passive smoking is contained in an admirable Written Answer given two days ago by my noble friend Lord Hunt of Kings Heath to the noble Lord, Lord Laird. It contains these words:

    "we accept the right of everyone to breathe air unpolluted by cigarette smoke and we encourage the introduction of smoke-free environments. We recognise that this is not always going to be possible and encourage in these circumstances other measures to be taken to reduce people's exposure to smoke".—[Official Report, 10/12/02; col. WA 21.]

I hope that my noble friend will accept that my amendment is a helpful "other measure" which goes some way towards meeting the Government's aims.

The fact that "public safety" and "the protection of children from harm" are specified as licensing objectives—in Clause 4(2)—makes smoking status relevant in licensed premises. Including the provision of smoking areas as a licensable activity in such premises will mean that the licensee and licensing authority must make active decisions about smoking status.

Fourthly, it is consistent with other approaches to smoking. At present, there are no meaningful regulatory requirements on landlords or restaurant managers to improve air quality in pubs or restaurants.

The hospitality industry seeks to introduce a voluntary agreement known as the "public places charter". But, as that permits its members not to participate, progress has been slow and patchy. I am advised that only 50 per cent of premises are expected to be covered by January 2003. It also allows a "do-nothing" option whereby all that happens is that a sign is placed at the entrance to indicate that smoking is permitted throughout. Even if the hospitality industry meets its own very modest, informal targets, this approach will be chosen by two-thirds of the premises that comply.

So, in other words, only 17.5 per cent in total will have done more than nothing. The rest will opt to do nothing or will not join the charter. Local authority licensing would stimulate uptake of the options under the charter for smoke-free areas, improved ventilation or both. The charter signage would be used to indicate what smoking status is available in premises.

If—dare I say, when—the Government introduce the Approved Code of Practice and Guidance on Passive Smoking at Work drawn up by the Health and Safety Executive four years ago, it would give specific effect, in the case of passive smoking, to general duties to protect employee health and welfare as required under the Health and Safety at Work etc. Act 1974.

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When the ACoP comes in, it would be better to have a local authority responsible for determining what is deemed a "reasonably practicable" approach to smoking in each local establishment. Even if the Government continue to stall on the ACoP, there are still duties under the Health and Safety at Work etc. Act. Local authorities should uphold them with clear guidance from environmental health officers rather than leave the employers' obligations vague, as they are now.

I do not intend to make provision of smoking spaces anywhere a licensable activity, but only in places licensed for other licensable activities, such as retailing of alcohol or entertainment. The reason for making the provision of smoking areas a licensable activity is to recognise non-smoking as the norm and then require smoking status to be granted under licence. That principle is already accepted by the hospitality industry. Its public places charter states:

    "The signatories to this Charter recognise that non-smoking is the general norm and that there should be increasing provision of facilities for non-smokers and the availability of clean air".

My final word about Amendment No. 1 is that I am not trying to use the Licensing Bill as a means to sneak in a back-door ban on smoking in pubs. My aim is to give local authorities powers and responsibilities to tackle this issue in a way that suits the local community. That could include doing nothing except complying with existing law, or it could mean taking a progressive approach to health and to health inequalities. But it will be up to a local authority to decide what is best for its own area.

My second amendment, Amendment No. 78, which is grouped to Amendment No. 1, is to include a further licensing objective under the general duties of licensing authorities in Clause 4. The new Clause 4(2)(e) would specify as a licensing objective,

    "the protection of health, safety and welfare of workers in licensed premises".

These objectives already focus on public safety and protection of children from harm, and rightly so. But the rights of workers in licensed premises should be considered. That would apply in such matters as violence, noise and smoke exposure. Although there is overlap with the Health and Safety at Work etc. Act and related regulations, it would enable the licensing authority to apply conditions that are specific to the kinds of hazard present in licensed premises. We know that the HSE finds it difficult to give one-size-fits-all guidance on obligations under that Act. This amendment would allow the local authority to impose licensing conditions that would protect workers in licensed premises.

My third amendment, Amendment No. 90, is consistent with the other two, and is also wholly in line with the Government's policy on protecting children from the effects of environmental tobacco smoke. The Government's Smoking Kills White Paper stated:

    "Children, more vulnerable than adults and often with little choice over their exposure to tobacco smoke, are at particular risk".

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We know that other people's smoke makes children ill. It is hard to find a much clearer definition of harm from which children need to be protected than that. As adults, we can choose whether to enter a smoky environment. But children, who under the terms of the Bill will be free to enter licensed premises, do not have that choice if their parents take them in.

Amendment No. 90 makes clear that licensing authorities should do their best to ensure that children are excluded from areas of licensed premises where smoking is permitted. Already, some of the more enlightened pub operators operate such a policy voluntarily. I beg to move.

11.15 a.m.

Baroness Buscombe: Before responding to the amendments referred to by the noble Lord, Lord Faulkner, I say to the Minister that, with regret, we had a difficult task last night and this morning dealing with the draft groupings presented to us mid-afternoon. To give one example, the amendments were grouped with the debate on whether the whole licensing system should be moved from magistrates' courts to local authorities. That was entirely inappropriate and ill thought through. Although the Minister may be under pressure to respond to questions raised at Second Reading two and a half weeks ago, we on Her Majesty's Opposition Benches and other noble Lords are also under enormous pressure. We urge the Minister to encourage her officials to think through carefully the drafting of the groupings.

Turning to the Bill, the Opposition do not support the amendments. We feel that they would be an inappropriate addition to the scope of the Bill. The Bill is intended to provide for unified regulation of the sale and supply of alcohol, the provision of regulated entertainment and the provision of late-night refreshment, referred to collectively in the Bill as the licensable activities.

The Bill is intended to ensure that the provision of additional opportunities for licensable activities is matched by additional measures enabling the police and licensing authorities to act promptly to maintain public order and safety. The Bill is therefore not about the sale or supply of tobacco products or about smoking in the workplace or in public places and it is not appropriate that it should be.

It is entirely inappropriate and wrong that the four licensable activities currently stated in the Bill should be added to by a fifth, as the amendment proposes, to include,

    "the provision of indoor spaces in which smoking is permitted in premises where other licensable activities are carried on".

That means that smoking—not generally, but in otherwise licensable premises—would require approval by licence and licence conditions. I disagree entirely with the argument of the noble Lord, Lord Faulkner of Worcester. We believe that the proposal would lead to a possible back-door ban on smoking in

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pubs. If the noble Lord wishes to make it necessary for licences granted under the Bill to make specific requirements as to the conditions under which smoking may be permitted, Clause 1 is not the appropriate place.

The amendments, individually and collectively, would unnecessarily add to the regulatory burden. The key purpose of the Bill is to reduce the burden of unnecessary regulation. The amendments take no regard of the obligations under existing legislation and regulation and of the widespread and growing effectiveness of self-regulation.

It is not appropriate that this or any other legislation should seek to achieve statutory regulation when it is so obvious that voluntary self-regulation of smoking is already a satisfactory and increasingly effective alternative in the workplace or in public places.

Employers have a common law responsibility to provide a safe place and system of work. Under Section 2 of the Health and Safety at Work etc. Act 1974, employers have to ensure, so far as reasonably practicable, the health, safety and welfare at work of all their employees. Under the Workplace (Health, Safety and Welfare) Regulations 1992, employers have to ensure that there are arrangements to protect non-smokers from discomfort caused by tobacco smoke in rest rooms or rest areas. If there is a risk to health, the employer must take action to deal with it. Health and safety inspectors can take enforcement action if necessary. Ultimately, it would be for the courts to decide in a particular case whether a risk to health was significant.

These facts make the noble Lord's amendment to Clause 4 redundant. In any event, well over 80 per cent of workplaces now have policies in operation that have the acceptance and agreement of employees and all other parties. Smoking in public places is also likewise now regulated largely on a voluntary, self-regulatory basis without the need for legislation. This is true on most forms of public transport and in taxis, hotels, restaurants, shops, shopping malls and many places of public entertainment.

A significant public demand exists for improved air quality generally in the hospitality sector, represented for the most part by pubs and bars. There is widespread and growing adoption by owners and operators of the public places charter on smoking. We disagree with the noble Lord, Lord Faulkner of Worcester, who says that progress is slow. On the contrary, we understand that substantial improvements are being achieved in the provision of cleaner air in the hospitality sector through ventilation, filtration and separate smoking and non-smoking areas. The charter is based on education and training and has the support of all the relevant trade associations and leading commercial operators. It is a progressive scheme that encourages operators to agree and implement a smoking policy with appropriate signage, and to invest in improvements over a number of years.

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It is worth noting the Government's stated position. As recently as 3rd December, the Secretary of State for Health said that,

    "we have been trying to persuade employers, through our local tobacco control alliances, to take action locally. We want to encourage more of them, especially in the restaurant and pub business, either to make their environment smoke free or to at least make it clear to consumers and workers where smoking is allowed. Many employers want to take such action. I agree that there is a lot more to do, but we are beginning to make real inroads into a real problem".—[Official Report, Commons, 3/12/02; col. 741-42.]

In conclusion, in enclosed spaces, environmental tobacco smoke is far from being the only or most significant element in the context of air quality. Nor is the significance of the health implications clear or undisputed. There are many air pollutants—gaseous, chemical and biological—that are most satisfactorily dealt with by improved ventilation and filtration techniques. Regulation that relates only to environmental tobacco smoke would have an unmeasurable effect on overall air quality. Surely the key to improved indoor air quality is proper ventilation and filtration.

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