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Lord Stoddart of Swindon: My Lords, I support this amendment on the basis of the arguments that have just been advanced by the noble Lord, Lord Monson, and the arguments advanced during the long debates in Grand Committee. The impositions on smokers and on publicans and restaurateurs are very severe. The Minister will remember that throughout Grand Committee those of us who opposed these provisions stated time and again that there was a better solution to what was being proposed—that is, the separation of smokers from non-smokers. That issue still rankles and is still being argued out even now. To suggest that the regulations that will state what is enclosed and not
 
26 Jun 2006 : Column 1061
 
enclosed should be agreed by negative resolution adds insult to injury. It is important and necessary that when these regulations come before this House and the other place we have a good debate under affirmative procedure rather than having to pray against the regulations which are put before us.

The Government are increasingly using Henry VIII clauses, which I believe is altogether reprehensible. In a matter of this sort, when individual freedoms are not just under threat but going to be lost, the least the Minister could do is to say that under all those circumstances the regulations will be brought forward in an affirmative order, rather than us having to pray against an order, so that Parliament, this House and another place are well aware of the seriousness of the regulations, can debate them properly and—if necessary, in this place—vote against them.

Earl Howe: My Lords, I assure the noble Lord, Lord Monson, that the commitment to liberty and individual rights in the party which I have the honour to represent is no less strong now than it has always been. However, I am not sure whether voting for or against this amendment should be seen as a particularly good bellwether of that political stance. I should have thought that what matters most in this context is the early publication of the Government's intentions on the definitions. We shall debate that issue in a moment or two.

Lord Warner: My Lords, we have extensively discussed the issue of the definition of "enclosed spaces" before, both in Committee and on Report. I do not intend to go over those issues again. The noble Lords, Lord Monson and Lord Stoddart, have regularly invoked poor old Henry VIII, who I often think is a slightly misunderstood man. They say this is a Henry VIII clause. As I understand it, such clauses allow you to amend primary legislation through secondary legislation. These provisions do not do that, and I am not aware of any Henry VIII powers in Part 1 of Chapter 1 of the Bill.

The Government have accepted that a significant number of regulation-making powers should be subject to the affirmative resolution, and they are set out in Clause 79 of the Bill. The noble Lord, Lord Monson, tried to tempt me at an earlier stage into giving him advance notice of what the Government's reaction to this amendment was likely to be, and I succumbed. I will not disappoint him. I have already indicated our lack of sympathy for this amendment.

I reassure noble Lords that the Government will undertake a full consultation on the draft regulations to be made under this Bill. The definitions in the regulations covered by this amendment will be part of that consultation. I have made it clear that we intend to follow the definitions in this area in Scotland's smoke-free legislation. I assert again that definitions of "enclosed" and "substantially enclosed" will be technical in nature, and it is usual for such technical regulations to be subject to the negative resolution
 
26 Jun 2006 : Column 1062
 
procedure. That is not just my view; I remind the House again that the Delegated Powers and Regulatory Reform Committee were content with that approach. I also have some sympathy with the noble Earl, Lord Howe, that this is not likely to be the bellwether issue on freedom and liberty in this country.

Lord Monson: My Lords, I am grateful to all the noble Lords who have contributed to this short debate. I shall take the Minister up on one point. He said that a significant number of regulations in the Bill will be subject to the affirmative procedure. Actually, they all will, with the exception of this one. As I said earlier, if this amendment is agreed to it will be correcting an anomaly. I am sorry the Government have not budged. They have not budged very much at all in our proceedings on this Bill. There have been a couple of minor concessions, but nothing to write home about.

It is not just because I have had a nightmare journey getting here due to the King's Cross fire, but because I am convinced that this amendment, if it is passed, has the potential to benefit to a significant degree a large number of perfectly respectable, law-abiding people who will otherwise lose out, that I wish to test the opinion of the House.

6.28 pm

On Question, Whether the said amendment (No. 46) shall be agreed to?

Their Lordships divided: Contents, 41; Not-Contents, 143.

Division No. 3

CONTENTS
Bowness, L.
Brougham and Vaux, L.
Buscombe, B.
Cobbold, L.
Courtown, E.
De Mauley, L.
Dixon-Smith, L.
Dundee, E.
Erroll, E.
Ferrers, E.
Greenway, L.
Henley, L.
Howie of Troon, L.
Inglewood, L.
King of Bridgwater, L.
Kingsland, L.
Liverpool, E.
Lucas, L.
Luke, L.
Mar, C.
Marlesford, L.
Miller of Hendon, B.
Monson, L. [Teller]
Noakes, B.
Northesk, E.
Palmer, L.
Patten of Barnes, L.
Pearson of Rannoch, L.
Peel, E.
Renton, L.
St John of Fawsley, L.
Seccombe, B.
Shephard of Northwold, B.
Skelmersdale, L.
Skidelsky, L.
Stewartby, L.
Stoddart of Swindon, L. [Teller]
Swinfen, L.
Tebbit, L.
Thomas of Swynnerton, L.
Waddington, L.

NOT-CONTENTS
Acton, L.
Adams of Craigielea, B.
Adonis, L.
Allenby of Megiddo, V.
Alli, L.
Amos, B. [Lord President.]
Andrews, B.
Archer of Sandwell, L.
Ashley of Stoke, L.
Ashton of Upholland, B.
Attlee, E.
Bassam of Brighton, L.
Blackstone, B.
Bonham-Carter of Yarnbury, B.
Borrie, L.
Bragg, L.
Brennan, L.
Brett, L.
Brooke of Alverthorpe, L.
Brookman, L.
Carter of Coles, L.
Christopher, L.
Clark of Windermere, L.
Clarke of Hampstead, L.
Clinton-Davis, L.
Cohen of Pimlico, B.
Corbett of Castle Vale, L.
Corston, B.
Crawley, B.
Currie of Marylebone, L.
Darcy de Knayth, B.
David, B.
Davidson of Glen Clova, L.
Davies of Oldham, L. [Teller]
Dean of Thornton-le-Fylde, B.
Donoughue, L.
Drayson, L.
Dubs, L.
Dykes, L.
Elder, L.
Evans of Parkside, L.
Evans of Temple Guiting, L.
Falkner of Margravine, B.
Farrington of Ribbleton, B.
Faulkner of Worcester, L.
Filkin, L.
Finlay of Llandaff, B.
Foulkes of Cumnock, L.
Gale, B.
Garden, L.
Gibson of Market Rasen, B.
Giddens, L.
Golding, B.
Goldsmith, L.
Goudie, B.
Gould of Brookwood, L.
Grocott, L. [Teller]
Harris of Haringey, L.
Hart of Chilton, L.
Haworth, L.
Hayman, B.
Henig, B.
Hilton of Eggardon, B.
Hogg of Cumbernauld, L.
Hollis of Heigham, B.
Holme of Cheltenham, L.
Howarth of Breckland, B.
Howarth of Newport, L.
Howe of Idlicote, B.
Howells of St. Davids, B.
Hoyle, L.
Hughes of Woodside, L.
Jones, L.
Jones of Cheltenham, L.
Jordan, L.
Judd, L.
King of West Bromwich, L.
Kirkhill, L.
Kirkwood of Kirkhope, L.
Lea of Crondall, L.
Levy, L.
Lipsey, L.
Lockwood, B.
McIntosh of Hudnall, B.
MacKenzie of Culkein, L.
Mackenzie of Framwellgate, L.
McKenzie of Luton, L.
Mackie of Benshie, L.
McNally, L.
Mason of Barnsley, L.
Massey of Darwen, B.
Maxton, L.
Mitchell, L.
Moonie, L.
Morgan, L.
Morgan of Drefelin, B.
Morris of Aberavon, L.
Morris of Handsworth, L.
Newby, L.
Nicol, B.
Oakeshott of Seagrove Bay, L.
Patel of Blackburn, L.
Pendry, L.
Pitkeathley, B.
Quin, B.
Ramsay of Cartvale, B.
Rea, L.
Rendell of Babergh, B.
Rennard, L.
Richard, L.
Roberts of Llandudno, L.
Rogan, L.
Rooker, L.
Roper, L.
Rosser, L.
Rowlands, L.
Scotland of Asthal, B.
Scott of Needham Market, B.
Sharp of Guildford, B.
Sheldon, L.
Simon, V.
Smith of Clifton, L.
Smith of Finsbury, L.
Snape, L.
Soley, L.
Stone of Blackheath, L.
Taylor of Bolton, B.
Temple-Morris, L.
Thomas of Winchester, B.
Thornton, B.
Tordoff, L.
Triesman, L.
Truscott, L.
Tunnicliffe, L.
Turnberg, L.
Turner of Camden, B.
Ullswater, V.
Warner, L.
Warwick of Undercliffe, B.
Whitaker, B.
Whitty, L.
Wilkins, B.
Young of Norwood Green, L.


Resolved in the negative, and amendment disagreed to accordingly.

 
26 Jun 2006 : Column 1063
 

6.38 pm

Schedule 8 [Minor and consequential amendments]:

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