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The Minister of State, Department of Health (Lord Warner): My Lords, Amendment No. 3 seeks to put definitions of "enclosed" and "substantially enclosed" into the Bill. The Government cannot accept the
 
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amendment for two reasons, which I shall explain in a moment, but, first, perhaps I may clear up where we were before we came forward with this Bill.

It is true that in the consultation document to which the noble Lord, Lord Monson, alluded, we proposed a definition based on that in South Australian legislation, using a figure of 70 per cent but including the roof and wall area in the calculation. There was not strong support for that, but neither was there strong support for any other specific definition. However, we need to set out a clear definition to allow premises owners to understand which parts of their premises are smoke-free. I agree with the noble Lord, Lord Naseby, that a degree of certainty is very important. That is why we decided instead to use the same definition as will operate in Scotland—that is, "substantially enclosed" means walls and equivalents making up more than one half the area of the perimeter walls of the premises.

As I said in Grand Committee, the Government are satisfied that the right place for this definition is not in the Bill but in regulations. We can see from the way that the amendment is drafted that the definition is likely to be complex and technical therefore we believe that it is best suited to regulations. We also believe that it is important to maintain the flexibility to be able to amend the definition in the unlikely event that problems arise with the initial definition. That will be much easier, of course, if these definitions are in secondary legislation.

Furthermore, the Bill allows for regulations pertaining to "enclosed" and "substantially enclosed" to be specified by the appropriate national authority. By including a definition in the Bill, we would preclude Wales from being able to define "enclosed" and "substantially enclosed" in a way that best suited its own circumstances. I note that the Delegated Powers and Regulatory Reform Committee was content with this approach. And so that the noble Lord, Lord Monson, does not raise his hopes too much, I should tell him that we are unlikely to be sympathetic to his Amendment No. 46.

Secondly, the Government have already made it clear that we intend the definitions of "enclosed" and "substantially enclosed" to follow, in general, those used in Scottish legislation. Given that a number of people working in the industry will be operating premises in both England and Wales, I should have thought that they might welcome some consistency in the definition between Scotland and England. That will probably be helpful to the industry. We certainly think it is desirable to be consistent with Scotland in this respect so as to make implementation as straightforward as possible.

Amendment No. 3 proposes that a place should be considered substantially enclosed if it has a roof or ceiling and an opening, or aggregate openings, of less than 30 per cent of the area of the walls. The Scottish definition, however, refers to less than 50 per cent of the area of the walls being open. As I said, not only do we intend to follow the Scottish model for reasons of consistency but we are also taking into account the
 
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comments that we received during the public consultation exercise undertaken last year before publication of the Bill. We believe that 50 per cent is the right measure, as smoke will still linger in places which are more enclosed. A 50 per cent measure is also likely to be more easily understood by those implementing and enforcing the arrangements than 30 or any other percentage.

I can tell the noble Lord, Lord Naseby, that our regulations will be published very soon. From the discussions that we have had with Scottish officials, we are not aware of any issues of great concern on this matter in Scotland. However, if the noble Lord would like to write to me about specific concerns, I should be happy to consider them.

On a technical point relating to Amendment No. 3, although the amendment puts the definition in the Bill, there is no amendment to remove the power to make regulations defining "enclosed" and "substantially enclosed" in Clause 2(5). That means that, in theory, we could make regulations giving a different definition from the one that the amendment would put in the Bill, and that would clearly be absurd and unworkable. I hope that, on the basis of that explanation, the noble Lord will not seek to press his amendment.

Lord Monson: My Lords, before the Minister sits down, can he explain why the Government believe that there should be consistency between definitions in English and Scottish legislation but not between definitions in English and Welsh or Welsh and Scottish legislation?

Lord Warner: My Lords, I thought that I had explained that there was no common view in the consultation on any particular definition. I set that out very clearly. In those circumstances, we thought that it made more sense to be consistent with Scotland, and that will also help providers of services on either side of Hadrian's Wall, if I may put it that way.

Lord Naseby: My Lords, I am grateful to the Minister, particularly for giving me the opportunity to write to him about some of the issues that have been raised since Grand Committee. I appreciate that offer very much and shall certainly follow it up.

The noble Lord, Lord Monson, is right in a sense. It would be singularly farcical if the measure were identical for England and Scotland but the Welsh Assembly decided to have a separate approach, and the Government may want to consider that.

The key issue remains the experience in Scotland, where, because a number of licensees happened to be within one local authority area, there was a logjam of planning permissions and all that went with them, such as listed building consent, and then, on top of that, some local authorities decided to change the Licensing Bill provisions. I hope that the Government will take seriously, and reflect upon, that logjam.

I am not going to press this to a Division this evening. I have made my points, and will continue to make them in writing to the Minister. Given that this
 
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is a Health Bill, I hope that the Government will recognise that, if it were the responsibility of the Secretary of State for Trade and Industry, he would be pulling his hair out by now having realised that it was not exactly joined-up government. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

6 pm

Clause 3 [Smoke-free premises: exemptions]:

Lord Warner moved Amendment No. 4:

The noble Lord said: My Lords, this is a purely technical amendment. Strictly speaking, licences do not authorise the consumption of alcohol; they authorise the sale of alcohol for consumption. The amendment corrects that minor drafting inaccuracy.

On Question, amendment agreed to.

Lord Pendry moved Amendment No. 5:

The noble Lord said: My Lords, I make no apology for moving this amendment, despite the fact that we have already had a lengthy debate. If my amendment is carried, it would reverse a decision made in the other place. The vote in the other place was free of the Whips. If my amendment is taken to a vote here, it is my understanding that it would similarly be a free vote.

I am, however, aware that there are some people in this House who do not believe that your Lordships could ever contradict the other place, given the free vote there. In some circumstances, that could well be right. In the amendment before your Lordships today, however, there is a powerful reason why this House should express its opinion, irrespective of the decision in the other place.

As originally introduced, the Bill enabled Ministers to make regulations exempting the smoke-free provision premises having premises licences or club premises' certificates under the Licensing Act 2003. In that regard, it sought to implement the policy explicitly stated in the Government's 2004 White Paper, Choosing Health and the Labour Party's 2005 election manifesto. I hope to carry my newly discovered comrade, the noble Lord, Lord Tebbit, with me when I refer to that manifesto. Lest there be some ambiguity, it said:

this is the important part for the amendment—
 
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As originally drafted, the Bill did not indicate exemptions. Instead, it gave examples of the descriptions of premises that could be exempted by regulations, and the conditions under which they might be exempted. The clause was, however, replaced on Report in another place by the clause now in the Bill, tabled by the current Secretary of State for Health. It specifically prohibits licensed premises—pubs, bars, restaurants and genuine membership clubs—being exempted from the smoke-free provisions by regulations. I believe that that was a mistake, as I now hope to make clear.

There was no need for this amendment, because Clause 3 enabled Ministers to make, or not make, any regulations they wished, subject to the approval of Parliament. The existing Clause 3 prohibits certain exemptions. It removes a freedom which could easily have been controlled by separating smoking from non-smoking facilities in those premises. It diminishes choice and has been instigated by what I always believed was a basic tenet of the Government; that they espouse choice. It ostracises smokers, leaving them with no enclosed public place in which they can smoke. Inevitably, those who choose to continue to smoke will often do so at home, where children may be present. It invades the freedom of clubs to establish their own rules. That is an important and longstanding freedom. It also happens to ban a club or association of people, such as the Lords and Commons Cigar and Pipe Smokers Club, from a meeting in their own enclosed place, other than in someone else's home.

As much as I would like my amendment to do, it does not go as far as restating the original Clause 3 of this Bill. That would now probably be too much to ask. My amendment is therefore a compromise. It is of fundamental importance, however. It is concerned with freedom and continuing to enable people, who freely and willingly choose privately to associate with each other, to establish their own rules of association. As the former Health Secretary John Reid explained, the original Clause 3 of the Bill, in so far as it could apply to pubs and bars, sought to provide a degree of balance of rights and choice by enabling a limited provision for smokers. At that time, there was never any question about prohibiting an exemption for genuine membership clubs, recognised as being in a very special position.

I wish to quote something:


 
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Those are not my words; they are the words of the already much-quoted Caroline Flint, MP, the current Minister for Public Health, speaking in Standing Committee E on the Bill in another place on 8 December 2005.

What caused the change of heart and policy? The personal views of the Secretary of State for Health, Patricia Hewitt, may have played a strong part, but it has also been claimed that the change in policy was to reflect public opinion. That claim is false. The public have consistently opted for the accommodation of smokers and for choice. The most authoritative poll indicating this was not commissioned by ASH, which wishes a complete ban, or FOREST, which takes the opposite view, but the government-commissioned poll from the Office for National Statistics; not the poll from Norway, as my noble friend Lord Faulkner referred to earlier, but our own Government's poll. In its last annual poll on smoking, the Office for National Statistics' data show that only 31 per cent of people opted for a ban on smoking in public places, but 47 per cent—the majority—would prefer accommodation for smokers in separate areas or rooms. Why, then, was there a sudden change of policy on genuine membership clubs, which are universally recognised, including in legislation, as being in a special position and quite different from retail premises which the public may freely enter?

It seems that there were two decisive factors, both misguided and wrong. First, anti-smoking activists argue at every opportunity that, by exempting membership clubs, the employees of those clubs would not have the same protection from second-hand smoke as employees of other establishments. That would be easy to deal with, by making it a condition of exemption that no employee should be required to work in a place where smoking is permitted, and by applying the rule that the Government originally promoted of not permitting smoking close to a bar.

The Government also suggested in their consultation on the proposed smoke-free provisions of the Bill that the regulations made under the Bill might require an annual vote of the membership on the smoking policy in any club. But I suspect that the second factor was, in reality, perhaps more influential: the objection of the large pub groups and operators who argued that to exempt genuine membership clubs would be anti-competitive and that the playing field would not be level as they claimed.

The fact is that pubs and genuine membership clubs are like apples and pears; they do not operate in the same marketplace. Anyone can walk into a pub, but people cannot walk off the street into a club. There are rules of membership. Very often clubs have distinct affiliations and membership requirements. Many of them are institutions of great local and social importance. Most Members of this House are members of clubs of one kind or another. Some would even regard this place as a club of sorts. It is certainly somewhere where we determine our own rules of operation. Let us not think that all clubs are as exclusive as this place or Boodles, the Reform, the Garrick or White's. There are more than 20,000 clubs
 
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throughout the country, many with small membership numbers, that play a vital and invaluable role in the local society for a great many people. People place great store by and take great pride in their ability to participate in the making of their club rules and in managing their club. This Bill starts to dismantle that ability. In my view, that is wrong and should be resisted, particularly by this House.

The Licensing Act 2003 recognises, as did the previous licensing regime and other legislation, that membership clubs are significantly different from licensed premises. Clubs holding a club premises certificate are run by their members, who choose freely to associate with each other. They are run principally for the benefit of their members under their own rules. There is accountability to the members of the club who determine how the club is managed and operated. They are clubs that are quite separate and distinct from other licensed premises that may be called clubs.

In the absence of any obligation to impose an absolute prohibition on smoking in order to protect non-smokers, it is for the members of the club with a club premises certificate to determine the smoking policy of the club. We in this House should do whatever we can to make that possible. My amendment would not exempt membership clubs from the smoke-free provisions; it would simply make it possible for them to be exempted by regulations. Any exemption and conditions would be matters for Ministers to determine. I beg to move.


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