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Amendments Nos. 177AB and 177AD would reduce the maximum penalty for persistently flouting the law and selling tobacco to under-18s from a one-year ban on selling tobacco to a three-month ban. That would have the unfortunate effect of removing the deterrent against unscrupulous retailers selling tobacco to children. If the maximum penalty were only three months, an unscrupulous retailer might consider that he could afford to risk a restricted premises closure whereby the premises would be closed for up to three months for the sale of tobacco, after which he might resume business and continue to sell tobacco to people under the minimum age. While we appreciate the potential impact of a lengthy order on retailers, we are determined to deter all shops, whether large, small or medium, from selling tobacco to young people.
Of course, the orders will be reserved for serious cases where the law is persistently being flouted. Twelve months is the maximum period for a ban on the sale of tobacco, not the minimum or the guidance period. Magistrates will determine the actual length
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Amendments Nos. 177AC and 177AE would reduce, from two years to three months, the period over which persistent breaches of the law on selling tobacco to under-18s have to be demonstrated. Before an order is given, at least three tobacco offences must have been committed over the two years up to the date of the order. In practice, offences relating to the sale of tobacco to under-18s are typically demonstrated through test purchasing for compliance with age of sale for tobacco, undertaken by trading standards. On average, such test purchasing takes place for each tobacco retailer about once or twice a year. Also, it will take some time from the commission of an offence to the date when the magistrates’ court considers the order.
The amendments would reduce the period over which that persistent sale must be proven to such a short period—from two years to three months—that the proposed orders would not be usable. Given that test purchasing takes place only once or twice a year, it would simply not be possible to demonstrate that three offences had taken place over a three-month period. We think that the two amendments would kill off the legislation. New orders would become entirely ineffective; they would become a laughing stock. I hope that the noble Lord will reconsider his amendments and be kind enough not to press them this afternoon.
The noble Baroness, Lady Miller, has twice mentioned the primacy of education for young people. On behalf of the Government, I agree that it is absolutely crucial. National communications campaigns, which she will know about, have been highly effective and are continuing. They encourage people of all ages to stop smoking—of course, it remains legal for adults to smoke if they choose to do so—and they outline the dangers of smoking to people’s health. The noble Baroness will know that there is a lot of education going on for young people; there can hardly be too much. We agree that it is the primary way of stopping young people smoking—certainly not the measure that may or may not be proposed in the next amendment.
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Lord Henley: I thank the noble Lord for his response. I have only one question. Was I right in saying that there is similar provision for alcohol sales, but the reference period is three months rather than two years? Would it not be fairer to have the same provision for sales of tobacco as for sales of alcohol?
Lord Bach: I apologise for not answering that. I do not know the answer to that question, but no doubt I can find out by the time we complete our discussions on Clause 194. I will come back to the noble Lord on that.
Lord Henley: I thank the noble Lord for that. There is no desperate hurry; he can write to me in due course to let me know. I may come back to the issue on Report. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 177AC to 177AF not moved.]
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Lord Henley moved Amendment No. 177AG:
(1) An individual aged under 18 commits an offence if he buys or attempts to buy tobacco or cigarette papers.
(2) But subsection (1) does not apply where the individual buys or attempts to buy the tobacco or cigarette papers at the request of—
(3) A person commits an offence if he buys or attempts to buy tobacco on behalf of an individual aged under 18.
(4) Where a person is charged with an offence under subsection (3) it is a defence that he had not reason to suspect that the individual was aged under 18.
The noble Lord said: I am always loath to bring forward amendments that bring in new offences; the Government, with their 3,000 or so new offences since 1997, seem to manage to do that job perfectly well themselves. On this occasion, however, the amendment proposes some new offences. At this stage, it is purely a probing amendment.
As I understand it, at the moment the under-18 year-old who purchases tobacco is not himself committing an offence; the offence is committed by the person selling it. Nor is someone committing an offence if they go in and buy tobacco for someone who is under 18. The amendment proposes, first, that it should be an offence for the under-18 year-old to buy or to attempt to buy tobacco and, secondly—this is the much more important part, because I am not particularly sold on proposed new subsection (1)—an offence would be committed by someone purchasing tobacco on behalf of an under-18 year-old to get around the law. I would be grateful to hear the Government’s response before I consider whether I want to come back to this on Report. I beg to move.
The Earl of Onslow: No, please let us not make any more offences. There are enough of them cluttering up the children’s courts without more. No, no, no.
Lady Saltoun of Abernethy: May I ask the noble Lord, Lord Henley, for a little clarification? Proposed new subsection (2) states that,
- “subsection (1) does not apply where the individual buys or attempts to buy the tobacco or cigarette papers at the request of ... a constable, or ... a weights and measures inspector”.
Does that mean that a constable or a weights and measures inspector may ask a child to go into a shop and buy cigarettes or tobacco papers in order for him to see whether he can catch the shopkeeper out selling them?
Lord Monson: I, too, find subsection (2) rather sinister because it seems to encourage agent provocateurs. Subsection (3) would catch parents who
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Baroness Finlay of Llandaff: I would never want to be seen to speak up on behalf on anyone trying to sell tobacco to those who are under age, but I am a little confused over the amendment’s wording and I would be grateful for clarification on subsection (3). I note that the proposed offence is about buying or attempting,
I hope that that has been deliberate in omitting cigarette papers because there is a very particular position for young people who play musical instruments. Cigarette papers are very useful for drying the keys of flutes, clarinets, saxophones and other woodwind instruments during a concert. Apparently, they dry them better than anything else, so musicians will often slip a cigarette paper in a damp key to it get to function better. I hope that parents and, indeed, music teachers would be able to buy cigarette papers for such purposes and would not be committing an offence because it is in the interests of children’s education.
Although I do not want cigarettes sold in any way to young people—we know the danger for young people in starting smoking—if they acquire a criminal record they get labelled and stigmatised later on. I have some concerns about giving to a teenager who may be at an experimental stage a criminal record that sticks on their file for life. They have a record of an offence and I am concerned about the issues involved with joining a group of people who have a criminal record. There may be an unintended adverse consequence from a proposal that is designed to stop young people getting cigarettes.
Lord Monson: Does my noble friend agree that another adverse consequence is that the young person in question would have their DNA compulsorily taken?
Baroness Finlay of Llandaff: I disagree; the police need a DNA database.
Baroness Howe of Idlicote: I rather side with the view of the noble Earl, Lord Onslow; that is, that it would not be right to add more offences at this stage for these purposes, with agent provocateurs—whether a constable or whoever—trying to catch out some wretched young person. I also endorse the comment of my noble friend Lady Finlay about children of that age not being criminalised; there clearly is an opportunity for them to grow up, and they do so at slightly different speeds. I hope that the Minister and the Government will not go down this road.
The Earl of Onslow: I will briefly make an extra comment: this is the first time that the Government have had any support on any amendment in the Bill.
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Lord Bach: The noble Earl does not yet know what I am going to say.
Baroness Miller of Chilthorne Domer: I thought that the noble Lord, Lord Henley, was very brave when he moved his amendment. Indeed, he said as much in his opening comments. I will not detain the Committee for long. The noble Earl, Lord Onslow, put it succinctly when he said no, no, no; we thoroughly agree with that. We do not want to criminalise more young people. The amendment talks about buying tobacco on behalf of individuals aged under 18; people who are just 18 might be doing that for their younger friends and we will have a swathe of criminals before we know it.
I absolutely agree with the comments on the DNA database, which we do not support. People will go through their life with a criminal record on the DNA database that cannot be removed unless the chief constable says so, which he almost never does. I simply come back to the fact that it is a matter of education. I could not disagree more with the amendment.
Baroness Carnegy of Lour: I am not sure that education works very well in this matter. The more you tell young people not to smoke, the more they do it, especially if teachers do it. I am therefore a little cynical about that. It is extremely difficult and we must struggle with it. It is extremely important that we stop them smoking, but it is not quite as easy as noble Lords seems to think.
I should say to my noble friend Lord Henley that tobacconist friends of mine tell me that it is extremely difficult to know who is and who is not a child, and that an enormous number of 18 and 19 year-olds come in looking rather elderly and buy tobacco for young people. The problem is not easily solved. We would have a lot of new criminals of 18 and 19, which we probably do not want. I do not know what the Minister will say. I do not like to undermine the yeoman efforts of my noble friend on the Front Bench to improve the Bill, but he is on slightly shaky ground here.
Baroness Miller of Chilthorne Domer: I must comment on the noble Baroness’s remarks on education. The Speaker of your Lordships’ House has a wonderful outreach programme, which has meant that I have gone to lots of schools recently. However, the evidence, which is not mine—it goes much wider than that—is that if you tell young people simply not to do something or make it criminal, such as speeding, they tend to still do it. Indeed, it is sometimes much more exciting to do it. When you tell them why they should not do it, they start to take notice.
Lord Bach: It is perhaps not surprising that the Committee shows great interest in this important social problem. I am delighted that so many noble Lords have taken part in the debate on these amendments, or, if they have not taken part, are present to listen to it.
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Before I deal with the amendment, I shall come back to the alcohol point that the noble Lord, Lord Henley, mentioned in our debate on the previous amendment. Alcohol test purchases are much more frequent than tobacco test purchases, so three months is reasonable for alcohol, whereas it would not be reasonable for the much less frequent test purchases of tobacco.
Amendment No. 177AG would make it a criminal offence for someone under 18 to buy or attempt to buy tobacco, or for an adult to buy or attempt to buy tobacco on behalf of someone under 18. We believe that criminalising young people who attempt to buy tobacco is not the best way to go about reducing the number of children who smoke, and is not in the best interests of young people themselves. It is far better to discourage children from smoking in the first place and to help young smokers to quit than to criminalise them. Our aim is to do everything possible to discourage young people from wanting to smoke by promoting, as the noble Baroness, Lady Miller, has just told the Committee, the health benefits of not taking up the habit when young. It is also important to try to help children who have taken up smoking—there are many of them—to quit. To achieve this, we are encouraging young people to get help from the NHS Stop Smoking Service. We are also making available nicotine replacement therapy to teenagers on prescription.
Nor do we think that making an offence of purchasing tobacco by someone under 18 would be likely to be effective. I was delighted to see those who have quite rightly complained many times during this long Committee at the Government for introducing new offences, or for not doing enough to decriminalise young people’s behaviour, get to their feet. I would have been disappointed if the noble Earl, Lord Onslow, and many others in the Committee had not got to their feet to make the points that they have made.
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We have heard time and again in Committee that the welfare of the child must be at the heart of the youth justice system. The Government have received support where they have sought to divert young people from the formal court system through measures such as the youth conditional caution. The message has been loud and clear from all sides of the Chamber that, where possible, we should aim to ensure that young people are kept out of the youth justice system and that minor offending does not escalate. Frankly, creating an additional relatively minor offence which would criminalise large numbers of young people would hinder these aims and would not necessarily be very effective. In practice, prosecuting authorities properly do not favour prosecuting children for minor offences unless absolutely necessary because criminalising young people often does further damage to their prospects. The noble Earl was right when he said that on this issue the Government were solidly against the amendment.
Public consultation supports our position on this amendment. In the summer of 2006 there was virtually unanimous support for raising the age for the sale of tobacco to 18. Most respondents felt that it was fair for the onus to be on the retailer for ensuring
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I turn to what the noble Lord himself identified as the more interesting part of his amendment—the issue of whether to criminalise the proxy purchasing of tobacco by adults for children. Buying tobacco for a young person is plain wrong but there may be difficulties with enforcing such an offence were it to come into being. The noble Lord, Lord Monson, raised a most interesting point about something which would happen in practice a great deal. It would cause many problems for the prosecuting authorities and for families. New laws should generally be grounded on a solid evidence base. We are not aware of any hard evidence that the proxy purchasing of tobacco is a common practice. We know it takes place but surveys tend to show that the most regular smokers under the minimum age usually obtain the tobacco themselves by buying it from shops. I hope I give some comfort to the noble Lord by saying that we will keep the last part of what he has suggested under review—no more than that—and return to it if, as the years pass by, there is evidence of a real problem of adults buying tobacco on a young person’s behalf. So we do not reject out of hand that part of his amendment but, as for the first part of the amendment, I am afraid—in the now no doubt famous words of the noble Earl— “No, please not”.
Lord Henley: I cannot say I received overwhelming support for this amendment. As I made clear earlier, I am always rather loath to introduce new offences in government Bills. After that experience I will refrain from introducing any new offences for some considerable time. I acquired one fascinating piece of information from the noble Baroness, Lady Finlay of Llandaff, about the use of cigarette papers, which incidentally would be covered in Clause 194—page 139, line 29. My amendment merely replicates what is in the Bill. Perhaps the Government would want to look at the sale of cigarette papers in their own drafting of Clause 194. However, having acquired that information, the best thing that I can do is, on behalf of all flautists, saxophonists and others, beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Faulkner of Worcester moved Amendment No. 177B:
Within one year of the commencement of section 194 of the Criminal Justice and Immigration Act 2008, the Secretary of State shall lay a report before both Houses of Parliament on the effectiveness of arrangements for preventing tobacco offences being committed against persons under the age of 18.””
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The noble Lord said: With this last non-government amendment, we are very nearly at the end of Committee stage of this Bill. I must congratulate my noble friends on the Front Bench on timing the discussions of these clauses on tobacco control on national No Smoking Day. The fact that that has gone otherwise unremarked in this House indicates the success of the measures in the Health Act 2006. There are one or two veterans of that campaign—one on one side and a couple more with me—who are applauding the legislation which went through and which is proving to be such an enormous success.
The indications are that the prevalence of tobacco smoking is generally falling. However, as we have heard in these very interesting recent debates, there is still a substantial problem of smoking by under-age children, which is what I would call them. They are certainly young people and the number of young people who have their first experience of smoking as a child is very high. We must remember that if your first experience of smoking is as a child, the likelihood is that you will stay smoking, because 82 per cent of adult smokers say that they started smoking as teenagers.
We also know that there are huge numbers of under-16s who successfully buy cigarettes. Something like half of under-16s bought cigarettes during 2003. Yet—this is the reason for my amendment—there were only 117 prosecutions in England and Wales for selling cigarettes to under-age people. As we have heard, there are around 65,000 tobacco retailers and I have a concern about the measures in the Bill on this subject. If the number of prosecutions is so small, it will be difficult effectively to implement these very important provisions, which I wholeheartedly support. Unless we know what the impact of those orders is, how will the Government monitor how successful they are?
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