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On Question, amendment agreed to.
Schedule 34, as amended, agreed to.
Clauses 192 and 193 agreed to.
Clause 194 [Persistent sales of tobacco to persons under 18]:
Lord Henley moved Amendment No. 177AA:
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“(1B) If an offence under subsection (1) has been committed on any premises, the person having management functions in respect of those premises must be notified within 14 days.””
The noble Lord said: In moving the amendment I shall speak also to Amendment No. 177AF.
We have moved on to Clause 194, and—in this rather extraordinary Bill—from sex offenders to tobacco sales. I think that the noble Lord will be familiar with the three groups of amendments which I shall deal with because they were discussed in another place. The British Retail Consortium and the Association of Convenience Stores have also been in touch with the department to put their concerns to it. They have also briefed me and suggested the amendments which I now raise.
Clause 194 brings in new powers to take away the licence to sell tobacco from shops if they persistently sell it to underage people or commit other tobacco offences. We have no objection to that. These probing amendments are designed to tone down the strength of the proposals and bring in some safeguards.
Currently, when the offender has been convicted of a tobacco offence, he can have his licence taken away if he has also committed other tobacco offences within the previous two years; that is, if this is the third offence in two years. The first group of amendments, Amendments Nos. 177AA and 177AF, suggest that it would be fairer to the individual accused of such offences if he could be notified after the first time that some such offence had been committed. We think it vital that the retailer or his staff are provided with the opportunity to address the breakdown in their internal procedures that has allowed the sale of tobacco to underage people.
It is bad practice and possibly counterproductive to allow the situation to develop whereby an enforcement officer could withhold information about an offence having taken place so as to pursue a prosecution and a sanction later. In the interests of natural justice it would be fairer to the individual if he was told, “We believe that you have been selling tobacco inappropriately to young people”—or whatever the relevant wording is for such a tobacco offence—“Tighten up your procedures so that it does not happen again. I have to warn you that if it does happen again, or twice more, on the basis of ‘three strikes and you’re out’, you might lose your licence to sell tobacco”. I hope that the noble Lord finds that a fairly simple concept to grasp. I beg to move.
4.15 pm
Baroness Miller of Chilthorne Domer: Our general approach to this group of amendments is that we would like education to be used as the first weapon in the fight against children smoking and would prefer that further criminalisation of sections of the community was adopted as an absolute fall-back position. There is a lot of sense in the probing that the Conservative Front Bench is undertaking in this amendment. I am sure that this measure would pose less of a problem to larger retailers as they have more personnel overseeing this area and many more policies in place. However, we are concerned about small shopkeepers. Although they should not break
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Lord Graham of Edmonton: I declare an interest as an officer of the All-Party Parliamentary Retail Industry Group, which is supported by the retail consortium of which the Co-operative movement is a member. I have a declared interest there which I readily admit.
One has to bear in mind that the representations that have been made, for instance by the retail consortium, represent 90 per cent of retail sales in this country. The Government should explain why they are not prepared to give due weight to, or why they should put aside lightly, the views of a body of that size. I am told that the relevant figure in connection with the Association of Convenience Stores is over 30,000. The noble Baroness on the Liberal Benches rightly pointed out that it is comparatively easy for the very large supermarkets, if they are found guilty of enabling these sales, to subject the individual who is alleged to have agreed to the sale in question to some stricture. However, as regards a small business—of which there are still very many—one has to be reasonably fair.
The amendment moved by the noble Lord, Lord Henley, strikes me as sensible. Retailers are sensitive about their responsibilities as regards the sale of not only tobacco but alcohol. I hope the Minister will comment on comparability of treatment in these matters. I understand that guidance is to be issued on how effect will be given to this. The Minister will be well aware that guidance has no relevance in law; it is guidance. Therefore, some trading standards officers may operate under the guidance and some may not. Then you have a situation where small shops which trade fairly and legally fall by the wayside for one reason or another and are not treated in the same way as other retailers.
I am certain that the law-abiding small trader whose attention is drawn to a dereliction will be quick off the mark to put it right, because his livelihood is at stake. Tobacco sales figure much larger for some shops than for others, but tobacco accounts for a sizeable proportion of sales even in big supermarkets. The Minister needs to take account of that. As far as I am concerned, the Government are right to respond to the general public’s plea that something should be done about the sale of alcohol and tobacco, but they also have a responsibility to recognise that it is sometimes not the fault of the retailer.
Dawn Primarolo, the Minister for Public Health, has said that there is little evidence that the underage purchasing of tobacco is widespread. If it is not widespread, it is present. It is right that government should bring forward some sanction. I have no disagreement with the two manners under which the retailer is punished. Two of the three strikes which
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The Minister should take from this debate the genuine desire of the retail industry not only to comply with the law but to help the Minister to make good law. Invariably, most retailers are not only good citizens but good members of the community and the public. They do not want to see rogue traders deliberately and underhandedly aid and abet the purchase of tobacco by the underage—or even by those of age who purchase for the underage—and get away with it. I support the amendments in general and look forward to hearing what the Minister has to say.
Lord Bach: I am grateful to noble Lords who spoke to Amendment No. 177A, which draws attention to the provisions on the sale of tobacco. The Government believe that more needs to be done to tackle the problem of underage smoking. Children still have far too easy access to cigarettes. In a recent survey, less than a quarter of 11 to 15 year-olds who tried to buy cigarettes from small shops found it difficult to do so. We need to do more to educate young children in this regard, but we also need to do more to encourage retailers to comply with the law on the age of sale and prevent the sale to children and young teenagers of a product which, as the Committee well knows, can cause lifetime addiction, disabling illness and, too often, premature death.
That is why we have introduced Clause 194—to enable magistrates to impose orders on retailers prohibiting the sale of tobacco for up to one year for persistent flouting of the law and restricting the sale of tobacco to people under the minimum age of 18. These orders are intended only for the most serious cases, let me make that clear. There will need to be three proven instances of breaking the law before trading standards officers can apply for a banning order. At least one of these must be a conviction that supports the application for the order. That will mean, in practice, that such an order will affect only those retailers who repeatedly flout the law and have been proven to do so through failed test purchases supervised by trading standards officers.
The point has rightly been made that the vast majority of small retailers are law abiding and perform a wonderful service for their local communities. Of course, it is for trading standards in the various local authorities to apply the law as they see fit. They are advised by their local authority body, LACORS, to do so with a light touch and not always to move to prosecution at the very first instance. That is why we intend that the noble Lord’s objective should be achieved in comprehensive guidance on how trading standards should respond to this particular wrong. Although my noble friend Lord Graham makes a point about differences in trading standards between different areas, we hope the guidance will be accepted by trading standards across the board,
I hope the Committee will welcome the provision. Of course we recognise that noble Lords have a more than legitimate concern that it should be delivered
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The tobacco provisions will be subject to the guidelines for implementation which, as I said, will be drafted by the Local Authorities Coordinators of Regulatory Services in consultation with retailers.
Lord Graham of Edmonton: Will the Minister deal with my point that trading standards officers who receive evidence and are satisfied that a prosecution would be right often take time to formulate their procedures for the court? The amendment would provide that that advice and guidance—or that intention—should be conveyed quickly to the retailer. If the proposed guidance provides for that, it will partially meet the point, because trading standards officers will in practice be advised by the Government to immediately inform the shopkeeper that there has been a dereliction. That would go some way towards what we want.
Lord Bach: Although I understand that that is what the guidance will do, it is subject to consultation with all interested parties and I cannot guarantee what it will say. Certainly our view is that it should go close to saying that there should be early notification to retailers if it is thought that they have sold to underage children. We believe that working through guidance will allow time for consultation on the details of notification requests and provide for a more flexible process than a statutory notification requirement would.
The amendment proposes an unrealistic and expensive obligation on trading standards that could divert some of their limited resources from their core functions, which is to prevent the sale of tobacco and alcohol to young people, one of the points made by the noble Baroness, Lady Miller. We think that an absolute duty to notify within 14 days would impose an obligation to trace and contact everyone performing a management function for a premises. That could be very difficult, expensive and impracticable to fulfil. It will not always be possible to identify and contact everyone working in a management position for a tobacco retailer within 14 days of an offence being committed; sometimes they are at one remove, but at big stores they could be much removed.
We think that guidance is a much more appropriate way of addressing this issue. It is also not common to put this sort of amendment into primary legislation. I therefore hope the noble Lord will be satisfied with the offer and undertaking I have given.
4.30 pm
Lord Henley: It would be churlish of me not to thank the noble Lord for giving me at least some of what I asked for. However, I found his closing remarks fairly extraordinary—and the look on the face of the noble Lord, Lord Graham of Edmonton,
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Lord Bach: Is the noble Lord suggesting that the statute should distinguish small retailers from large supermarkets? If so, I would be grateful to know how he would plan to do that.
Lord Henley: No, I was not suggesting that. The noble Lord and I know perfectly well that the problem is more likely to apply to the smaller shops. Getting hold of their management would be relatively easy. Getting hold of the management of a large supermarket is also pretty straightforward—one just goes into the supermarket and asks to see the manager. That is another matter.
I am grateful for the noble Lord’s offer of guidance. I still do not understand why this matter cannot be dealt with in statute. As the statute currently stands, it would be possible for an over-zealous trading standards officer, no doubt trying to meet some target probably imposed by central government, to build up his record by not notifying the shop about the offence being committed. In due course, that shop would find itself prosecuted on the third occasion, not aware that it had committed offences on earlier occasions.
The noble Lord says that those offences will have to be proven offences and that, in most cases, there had been a conviction. However, he also made it clear that there could be occasions when there had not been a conviction; that is, when he was tried for the third offence, they could show that he had committed offences on the earlier occasions. It would be more satisfactory, and more in keeping with natural justice, if the shop was notified on the first occasion so that it could improve the training of its staff and ensure that such offences do not happen again. I am sure the Minister will agree that, in the main, it is better to pursue an educative approach of that sort rather than add to the number of those acquiring criminal convictions when there would have been no need to do so if the proper approach had been pursued earlier.
I am nevertheless grateful that the Minister has said that guidance will be available. Will he let me know in due course whether we might see some of that guidance before the Bill reaches the statue book, or can he offer at least some intelligence on when it is likely to appear? If he can respond now, I shall withdraw the amendment afterwards.
Lord Bach: If Parliament passes these measures, it is not likely that they will come into force until April 2009. The guidance, having been consulted on, will obviously be published before then. I cannot say that it will be done before the Bill passes through Parliament, as that would be completely unrealistic, but it will be done before the legislation comes into force. The proposed implementation date is April 2009 and the guidance will be available by then.
Lord Graham of Edmonton: If the voices of 90 per cent of the retail trade and 33,000 small traders combine to disagree with the guidance when it is issued, can we have an assurance that reflection will be the name of the game?
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Lord Bach: I want to give my noble friend whatever assurance I can. I do not know whether I can give him the actual assurance he seeks, but the consultation will be with the retailers—small retailers, and no doubt large ones too—as well as with other sections of the community. Remember the evil that we are trying to deal with: the sale of killer tobacco to young children.
Lord Henley: I will try to bear this in mind in April 2009, although we may have other things on our minds at that stage. In the mean time, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Henley moved Amendment No. 177AB:
The noble Lord said: I shall speak also to Amendments Nos. 177AC to 177AE. These amendments relate to the second point that I wanted to make about dealing with the sale of tobacco, which is the length of the reference period and the length of the ban. First, on the length of the reference period—three offences over two years—I understand that in broadly similar legislation relating to the sale of alcohol the reference period is not two years but three months. It seems only fair that the same rules should apply to both. I should be interested to hear what the Minister has to say about that.
Similarly, on the length of the ban, one year is a heavy sentence, especially for some of the smaller shops, a large proportion of whose turnover will be from the sale of tobacco. It may be helpful to give the figure that I have from the British Retail Consortium and the Association of Convenience Stores, because the noble Lord, Lord Graham, mentioned it. On average, 22.3 per cent of the turnover of such stores can be made up of tobacco sales, so this sanction would be a hefty one to impose on them.
I add one other, purely personal, argument, although I do not suppose that it will receive much support from the noble Lord. It is perfectly legal to smoke tobacco, but he is also imposing an inconvenience on the smoker himself, who may want to buy from a particular store that has lost its licence. To impose the sanction on that store for a year rather than three months seems to be rather overdoing it. I beg to move.
Baroness Miller of Chilthorne Domer: The amendments that we have more problems supporting are those that suggest that the ban should stay in place for only three months. The ban is to be imposed only after persistent offences and in a way that is very clear for members of the public, but how are the public to know that a ban has been imposed? I see nothing in the Bill about notices having to be issued. Will it just be left to the shopkeeper to say that a ban is in place? Three months is a difficult period, because it is just about long enough for the public to know that there is a ban before the shop is able to sell tobacco again. If the shopkeeper persists and offends again, there will be another three-month ban. The Government are more correct here in going for a more understandable period.
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I hear what the noble Lord, Lord Henley, says: it will be a huge burden on shopkeepers who fall foul of the law, albeit that they have knowingly transgressed that law, as will be the level of fine, which we shall discuss shortly. I want to check how the Government arrived at that tariff for this offence. In legislating about this, we are talking about children, but there is still a bit of a schizophrenic attitude in society in general—I am not suggesting that it is here this afternoon. The view is that smoking is very bad but, on the other hand, the Treasury and the shopkeeper must still be allowed to profit from it. Adults are still allowed to smoke if they want. I think that we are half way through an evolutionary process and it is right that we should take some time over it.
I emphasise the need for more money to be spent on education, so that the children do not go to the shops in the first place. That is where local authorities come in. Enforcement will come down to LACORS. Trading standards officers are a bunch of people for whom I have tremendous admiration. They have a pretty unenviable job. Usually, they tread a fine line in trying to enforce things and doing so with the consent of the community, whether on the sale of tobacco or on other things. In the regulation of markets, it is difficult to keep the retailers onside. In this case, education must be the front line and I would expect local authorities to take that to heart. These measures will always be a last resort.
Lord Bach: I am grateful to the noble Lord, Lord Henley, for moving the amendment and to the noble Baroness for speaking to it. Of course, the amendments were tabled out of legitimate concern that the new measures should be implemented fairly. However, I hope to persuade the Committee that, while the amendments have obviously been tabled for the best of reasons, they would seriously undermine the aim of the new orders, which is to deter unscrupulous retailers from selling tobacco to children and young people aged under 18. This is a serious sanction for a serious breach of the law.
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