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Lord Walton of Detchant: Does the noble Lord accept that the history of medicine is littered with the broken reputations of those who have been misled by the post hoc, propter hoc argument: that because one thing is done at some time and something else changes, that implies it is the result of the first? There is absolutely no evidence whatever to support the medical claims made in that article. But there is evidence that in the past it has been shown that the smoking of tobacco and nicotine may have had a very minor beneficial effect in the prevention of Parkinson's disease. That is statistically quite well proven. But the risks of smoking tobacco greatly outweigh any potential therapeutic benefits it may have had. I am afraid that that particular argument does not medically hold water.

Lord Stoddart of Swindon: All I can say is that the chap from Yorkshire thinks it does—and I always take great notice of what Yorkshire people say because they have some common sense. Of course, I very much respect the medical profession—we all do; we think it is a great profession. I have some doubts when I visit my doctor and he says to me, "What is wrong with you?". I thought I had gone to him for him to tell me what was wrong with me, not for me to tell him what was wrong with me.

But, of course, we are not dealing with the health problems caused by smoking; we are dealing with the alleged health problems of those who inhale other people's smoke, which is at least 100 times diluted. So the argument is completely and utterly different and the effects, therefore, will be entirely different. In this amendment we are discussing, as the noble Lord, Lord Walton, stated, the therapeutic effects of herbal tobaccos. The Bill seeks to prevent people from smoking a beneficial product simply and solely because another product is alleged not to be beneficial and is harmful. I think the amendment has a lot of merit and I hope the Committee will support it.

Lord Luke: The Bill is concerned with lit tobacco. Can the Minister confirm that if I wished to chew tobacco without lighting it, the Bill would not affect me? Can he also confirm that if I chose to take snuff, that that would not be affected by the Bill?

Lord Naseby: Before the Minister replies, as I understand it—I may be entirely wrong—Sweden and the Nordic areas allow smoking of some non-tobacco substances despite having a smoke ban. I may be wrong, but I know that there are some kinds of exemptions. I hope that when the Minister answers he will address that question because it is very pertinent to the issue raised by my noble friend Lord Howe in his amendments.

Lord Monson: If the Government take the view that all smoke produced by combustion irritates people—and undoubtedly it does; many people are irritated by herbal cigarettes and almost anything that burns—then logically one should ban bonfires as they produce great clouds of obnoxious smoke, far worse than any
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herbal cigarette. That issue should be taken on board before the Government decide what they are going to do about this.

Lord Warner: I was not proposing to engage in an auction of what else people might like to ban during the course of the Bill.

The Bill has been drafted to capture the smoking of any substance, whether or not it contains tobacco. I can understand the points that the noble Earl, Lord Howe, is trying to probe with his Amendments Nos. 2, 3 and 4 but, if we adopted them, they would require the Government to specify in regulations substances other than tobacco that would be covered by the legislation. I hope to convince him that we should not go along that path.

Let me get out of the way the question of joss sticks, incense, chewing tobacco and snuff for those who have a predilection in these areas. Noble Lords can carry on chewing their tobacco or taking their snuff unimpeded by the Bill. Joss sticks cannot be smoked, so they are not covered by the Bill, and the same applies to incense.

Turning to the noble Earl's amendments, we believe that this kind of specification would be unnecessarily bureaucratic and would not help. We know that the majority of research has been conducted around the health risks associated with second-hand smoke from tobacco, but there are risks associated with other substances. In response to the consultation, ASH provided published references in relation to herbal cigarettes and peer- reviewed studies in the Medical Journal of Australia in 1990, The Lancet in 1999 and Tobacco Control in 2004, that suggested that tar and carbon monoxide levels were similar to, or higher than, tobacco cigarettes. I am very happy to give more details to the noble Earl and other Members of the Committee if they wish to explore those references. Asthma UK similarly raised concerns about the health impact on people with asthma should herbal second-hand smoke continue to be allowed.

4.15 pm

In the public consultation undertaken last year during the summer, the Government proposed restricting the Bill to cover only the smoking of tobacco or products that contain tobacco, and asked a specific question about whether the definition caused concern on the basis that non-tobacco substances were not included. The result of the public consultation saw around 90 per cent of respondents to the question suggest that the definition of smoking should be widened to include smoking of non-tobacco substances. The reasons most cited for widening the definition included, first, that limiting the legislation to only tobacco products would create a difficulty in enforcing legislation, such that a smoker might claim that his cigarette is non-tobacco—even if it is not—and so an additional burden is created on the enforcer, including a need for sampling, the cost of which may well be disproportionate to the offence. Secondly, non-tobacco smoke is still smoke and is, therefore,
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harmful—I have given some examples of that—in particular to those with asthma or respiratory complaints, and a nuisance at the very least. Thirdly, the legislation as proposed sends a mixed message about smoking and health. The inclusion of all smoking in this legislation will help to discourage smoking. Fourthly, it was also pointed out that the proposal leaves open the possibility for cigarette companies to develop addictive—nicotine-based—and possibly harmful cigarettes that do not contain tobacco.

We believe that the definitions in Clause 1(2) are clear and respond to those points made during consultation. A list of substances in regulations would run the risk of becoming out of date or incomplete quickly, thereby creating anomalies or loopholes in the law. For all those reasons, the Government believe that Clause 1 as it is currently drafted is appropriate. Furthermore, the Bill, as currently drafted, also replicates the provisions in Scottish legislation. We think that consistency in this area is important.

The noble Lord, Lord Walton, raised the issue of cannabis. As the Bill is drafted, any individual, leaving aside other pieces of legislation, who smokes an illicit substance in a smoke-free place is likely also to be in the frame for smoking-free offences.

We do not believe it would be beneficial to accept the amendment tabled by the noble Earl, Lord Howe, but he raised the issue of being in possession. My understanding of what "being in possession" means is being in physical control of it, but I shall consult the draftsman and let him have further and better particulars concerning that issue.

Lord Walton of Detchant: I was not aware of the publications to which the Minister referred relating to the tar and hydrocarbon content of the smoke produced by herbal cigarettes. Now that I am aware, and in the light of what he said, I believe that the present drafting of the Bill would meet that concern.

Lord Naseby: Does the Minister have any information about the Nordic Bills and whether they exempt certain categories of these other types of cigarettes, for want of a better word?

Lord Monson: Is the Minister claiming that asthmatics are not adversely affected by the smoke from bonfires?

Lord Warner: On the point raised by the noble Lord, Lord Monson, I would not dream of making any such claim, but I rather assume that anyone who is asthmatic would keep well away from bonfires, probably for good and sound reasons. But I make no claims of that kind. On the issue of the Nordic experience, I cannot give the noble Lord, Lord Naseby, an answer, but I shall look into the matter and write to him and to other Members of the Committee.

Earl Howe: I thank all noble Lords who have taken part in the debate: the noble Baroness,
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Lady McIntosh, the noble Lord, Lord Stoddart, and perhaps I may single out for special gratitude the noble Lord, Lord Walton, whose helpful comments I value from his perspective as a very distinguished medic. I quite deliberately kept off the subject of cannabis for the reasons to which he alluded. I am also grateful to the Minister for his thoughtful reply. He mentioned that the consultation last year posed the question about substances other than tobacco.

I sound a note of caution about placing too much value on the consultation answers on that particular issue, because I suspect that many of them were based more on the nuisance value of smoke than any particular health concern. We are not legislating against nuisance. Nor, I suggest, are we primarily legislating to discourage or reduce the prevalence of smoking. The only justification for a Bill of this kind is as a public health measure to protect non-smokers.

One can argue about the validity or otherwise of the evidence, and I am sure that we will continue to do so. However, that is the primary justification for this Bill, which was why I was grateful for what the Minister told me about the findings, as recorded in a number of journals, on smoke from non-tobacco cigarettes. I shall go away and read those journal articles, because they are news to me. We should be grateful to the Minister for having cited them. In the light of what he said, there is nothing for me to do other than reflect on the issue before Report. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 3 and 4 not moved.]

On Question, Whether Clause 1 shall stand part of the Bill?

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