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The balance to be struck between public health and personal and commercial freedoms, and the proportionality of the measures in the light of the evidence available, is where the debates tend to be centred. On point-of-sale displays in particular, as we have just discovered, it is a debate of some complexity. I contend that the arguments about balance and proportionality are made more difficult if, in making them, we cannot say that we have done as much as we can to make the current law work effectively. Parliament has made it illegal for cigarettes to be sold to anyone under 18. It is perhaps too soon to tell how well or badly that law is working. However, Parliament has not put in place measures that would back up and buttress that law and give it the best possible chance. There are several things of that kind that could be done, none of which impinges to any great degree on personal or commercial freedoms. I have picked on one of those measures in this amendment, and it relates to proxy sales. When we consider the subject of underage smoking, we should remember one important fact, which is that one of the most likely ways for a young person to get hold of cigarettes is from adults. This is true both for their first ever cigarette and for underage regular smokers.

Currently there is no legal deterrent to adults who purchase tobacco on behalf of young people and supply it to them. It was therefore disappointing to see that in the Government’s consultation of last year, they stated that they are not minded to make it illegal to proxy purchase, and gave two reasons. The first reason was that there was little evidence that proxy purchasing is a common practice. That statement was extremely puzzling. The Government’s own figures as

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quoted in the consultation document show that 89 per cent of young people cite that they either buy or are given cigarettes by another person. Thus, proxy purchasing, far from being uncommon, is the most serious component part of youth access to tobacco. The second reason given by the Government was that the law would be difficult to enforce. Here it is true that the burden of evidence required to prosecute a proxy purchaser creates an enforcement challenge and that there are barriers in the way of action on this front, mainly to do with resources.

However, recent developments in the enforcement of alcohol legislation show that it is possible and can be cost-effective. One example comes from the community alcohol partnership approach that is currently being trialled in parts of the country. In St Neots in Cambridgeshire, local agencies have been working with retailers and focusing resources on deterring and detecting underage alcohol sales using a combination of intelligence-led action against proxy sales and confiscation powers. As a result of this approach, a real reduction in underage drinking in the town was achieved, and the enforcement costs were no different from more standard enforcement approaches.

Although a proposal to make proxy purchasing an offence was briefly debated by Members in another place during the course of the Criminal Justice and Immigration Bill, it was opposed by the Government. I do not believe that the issues have yet been fully debated—I am not aware that they have been debated in this House—and I strongly believe that such a measure would command public support. ACS recently commissioned an independent poll by GfK NOP, where 92 per cent of those who responded supported the introduction of penalties for adults who supply tobacco to children. Knowingly buying tobacco for a person who is legally too young to smoke is unarguably immoral and, I believe, should be illegal. The evidence available shows that it is one of the main routes by which underage smokers get hold of tobacco products, and that is why I believe that a strategy in this area that does not include a credible means of deterring adults from supplying tobacco to children is both incomplete and likely to fail. I beg to move.

Lord Walton of Detchant: I have the greatest admiration and respect for the noble Earl, Lord Howe, and the principles underlying the amendment he has proposed so elegantly are unexceptionable. My only concern relates to the fact that, as he has suggested, to implement a statute along these lines might ultimately be very difficult to police. But that does not mean that attempts should not be made to introduce legislation to protect youngsters from other people who might buy cigarettes on their behalf.

I confess that I was somewhat surprised by his comments in the last debate that he recognised the health hazards associated with smoking but was concerned with issues relating to commercial freedom. I remember very well—I have already shared my personal smoking history with the Committee—that when I became a medical student in 1941, the dean of medicine who was then a professor of anatomy advised all the medical students to smoke, particularly in the dissecting room, to try and dispel the odours.

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During the war all cigarettes went under the counter. I was a regular smoker, as were all my colleagues, and none of us had the slightest difficulty in obtaining cigarettes even though they were not on display; our friendly local newsagent sold them to us from under the counter. There is nothing in the Bill to prevent retailers from continuing to sell cigarettes. All it will do is make it much more difficult for them to do so on the basis of displays which are likely to attract individuals. Having heard the noble Lord, Lord Stoddart, I cannot resist quoting from World Tobacco, the tobacco industry journal, which stated in 1999:

“If your brand can no longer shout from billboards let alone from the cinema screen ... at least court smokers from the retailers’ shelf”.

That is an important point. However, the principles underlying the amendment are worthy of warm support and I hope that the Government will give it a fair wind.

5 pm

Baroness Coussins: I support the noble Earl’s amendment to create a new offence of proxy purchase. I do so because of my experience in campaigning for the introduction of a similar offence in relation to alcohol when I was chief executive of the Portman Group, and from seeing the value of that offence in action once it was brought into law in the Licensing (Young Persons) Act 2000, which came into force in January 2001. However, it is relevant to add that in Scotland proxy purchase for alcohol has been an offence since 1976.

Comparisons with alcohol legislation are relevant to the tobacco issue. If I remember correctly, the proxy purchase proposal on alcohol began life in another place as a Private Member’s Bill, although in the end, as the noble Earl said, the Government supported it. One of the most compelling parts of the evidence which supported the offence in relation to alcohol was a research finding that showed that the people most likely to approach strangers in the street and ask them to buy alcohol for them were 13 year-old girls. I am not aware of any parallel evidence in relation to tobacco, but I bet 13 year-old girls are the group most likely to approach strangers in the street. Those young girls, of course, will expose themselves to all manner of other dangers as well as to the dangers of smoking.

If an offence of proxy purchase was a good idea in relation to alcohol, how much more so is it a good idea in relation to tobacco? I hope, for example, that, as with alcohol, it would trigger a large number of awareness and enforcement campaigns—there are already dozens of these all over the UK in relation to alcohol—involving the police, PCSOs and trading standards officers working together to raise awareness of the law and to enforce it.

Of course, comparisons between alcohol and tobacco are not always, or even often, justified and relevant. I support the proposals in the Bill to restrict some of the marketing freedoms around tobacco, but were they made in relation to alcohol I would not support them. That is not to say that there is not sometimes a need for legislation in relation to alcohol, not least for a legal purchase age, but with alcohol there is a genuine role for education to promote moderation and

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responsibility; that is not the case in relation to tobacco. There is a sensible drinking message but there is no sensible smoking message. However, the amendment which proposes an offence of proxy purchase would introduce a measure which holds good across both alcohol and tobacco. I believe it would command broad support across a wide range of stakeholders, from parents to retailers.

We have seen with the smoking ban, first in Scotland and then more recently in England and Wales, that there is an interesting relationship between legislation and culture change; no one now thinks it is right or normal to light up a cigarette in pubs or restaurants. A new offence of proxy purchase is now needed to help change the culture so that unscrupulous adults no longer think it is either right or normal to go into shops and buy cigarettes to pass on to children in the street. Perhaps this time the Government could be on the front foot and not leave it to Scotland to try it first or to a Private Member’s Bill. The Government should give serious consideration to this measure, take the lead and bring it into the main body of the Bill.

Baroness Howarth of Breckland: Although the noble Earl will know that I cannot support him in relation to displays or vending machines, and I do not see this provision as a replacement, I support the amendment and ask the Government closely to consider it. If the only argument against it is that it is difficult to police, many other things are difficult to police but we ensure that we do our best. It is very difficult in some areas of the country that I know well to police the distribution of certain drugs, but we would not say that because of that we would fail to try to do so.

We know that LACORS, which is the organisation with responsibility for policing those areas, would like to combine the policing of tobacco and alcohol because the two are not unrelated when young women are trying to find someone to make purchases for them on the street. I therefore ask the Government to look carefully at this, although I hope that the noble Earl understands that I see it as a package rather than a replacement.

Lord Faulkner of Worcester: Not for the first time, I find myself agreeing with everything that the noble Baroness, Lady Howarth, said. In particular, I endorse her point that this is part of the much wider approach on tobacco control contained in the Bill. It is in no sense a stand-alone or alternative measure. I certainly welcome the noble Earl's determination to do something about young people being able to get hold of cigarettes and this is a way to do that. I must tease him slightly because there is even less research evidence to support the view that this would work than there is for the proposition on point-of-sale display, which we have already spent so much time debating in Committee.

If this is part of a comprehensive package which includes banning point-of-sale material and vending machines, plain packaging and the licensing of tobacco, which is the subject of Amendment 106 to be moved by the noble Baroness, Lady O'Cathain, we may be able to do something about the problem of young people and smoking. This is part of the approach.

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It would be much easier to enforce if the noble Earl would agree that licensing of tobacco retailing should be introduced under the Bill, but it is certainly worth giving it a go.

Baroness Golding: I also support the amendment. I chair CitizenCard, which is a proof-of-age card mostly funded by the tobacco industry—not by the Government—and by other industries that contribute to the sale of goods such as alcohol. The provision would be a very good thing. At the moment, shopkeepers who belong to our scheme—almost 2 million proof-of-age cards have been sold—keep a diary on the desk. If a child whom they think is under age comes to them and asks to buy tobacco and they refuse because they have no proof of age, they keep a record that they have refused the child. However, if an adult comes into the shop at the same time, buys the cigarettes and passes them to the child, the tobacconist is then tarred with the same brush. Many small shop keepers would welcome the provision and it would certainly help them with the very difficult problem of controlling the sale of tobacco to underage children.

Baroness Thornton: Amendment 86 would make it illegal for adults to buy tobacco on behalf of children, a practice known as proxy purchasing.

The noble Earl’s intention behind the amendment, to reduce the number of underage people who can access tobacco, is of course completely commendable and we agree with it. We all agree that it is wrong for adults to supply children with cigarettes. It undermines the law and encourages young people to experiment with and take up smoking, with all the long-term health consequences that we have discussed.

At the moment, the Government feel that the law must be enforceable and proxy purchasing is a difficult offence to pursue. This is partly confirmed by our experience of the rarity of prosecutions for proxy purchasing of alcohol, although I take on board the broader points made by the noble Baroness, Lady Coussins. Proxy purchasing for alcohol is not currently undertaken by local authorities but by the police. For local authorities to implement proxy purchasing for tobacco, they would need formal authorisation to undertake surveillance. This would therefore place a burden on local authorities requiring them to observe shops to monitor sales and subsequent provision of tobacco to young people. Furthermore, other means of obtaining cigarettes are more commonly used by underage people. As we have discussed, in 2006 almost 80 per cent of children aged between 11 and 15 bought their own cigarettes from a shop.

New sanctions against offenders will come into force on 1 April 2009, which will mean that magistrates will have the power to impose orders prohibiting the sale of tobacco for periods of up to a year by persons or shops that are found to have sold tobacco to people under 18. The Government have made additional resources available to local authorities through LACORS for the enforcement of tobacco-related legislation. These additional resources are to enable local trading standards officers to carry out tobacco test purchases

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more frequently. The Criminal Justice and Immigration Act 2008 increased the sanctions against retailers, for example, who persistently sell tobacco to under age people. We are working with local authorities and retailer representatives to ensure that the law is understood, retailers are given guidance and support and trading standards officers are able to take action against irresponsible retailers who persistently continue to sell tobacco to children.

Better enforcement of existing legislation is, at the moment, likely to be more effective than adding another offence which is difficult to enforce. However, a similar amendment on proxy purchasing of tobacco was debated in this House in March 2008 and was withdrawn following a debate on the issue. The Government then promised to keep the position under review; we are doing so and I make that promise again. We would certainly welcome evidence on the issue of proxy purchasing of tobacco.

Although I am sure that noble Lords would agree that reducing children’s access to tobacco is extremely important, at the moment we believe that creating an offence for proxy purchasing would be difficult and unenforceable.

Lord Campbell-Savours: I cannot understand what my noble friend means by “under review”. Surely, if proposed new subsection (2A) were inserted into the law, a person would know they were committing an offence if they walked into a shop and attempted to buy tobacco on behalf of an individual under the age of 18. Irrespective of whether they were prosecuted, they would know that they were committing an offence. Surely that would affect their conduct in deciding on whether they were going to enter the shop and buy the cigarettes for the person under 18. So I cannot see what has to be kept under review there.

Baroness Thornton: The issue that we are keeping under review relates, first, to seeing how the new sanctions being introduced on 1 April will work. Also, 49 per cent of children are given cigarettes by their friends. This involves children and young adults buying a packet of cigarettes and sharing them with their friends. This is another issue that would need to be resolved if this proposal became legislation. We would have to be careful not to criminalise those young people rather than trying to enable them, as the noble Baroness, Lady Coussins, said, to make responsible choices and decisions.

As I have said, we are keeping this under review and I hope, in the light of these explanations, that the noble Earl will agree to withdraw his amendment.

5.15 pm

Lord Stoddart of Swindon: Before he does so, I have a couple of short questions for the Minister. First, will she remind me what the penalty is? Is it number five on the scale?

Baroness Thornton: I will write to the noble Lord with the details.

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Lord Stoddart of Swindon: So we do not really know what we are talking about.

Baroness Thornton: I know what the noble Lord is talking about. The answer is £2,500. I did not recall it straight away and I apologise to him for that.

Lord Stoddart of Swindon: I am glad that she was well briefed. My other question arises from what the noble Baroness, Lady Coussins, said. She told us about her experience with the alcohol industry where she said it is already an offence for anyone to procure drinks for a person under the age of 18. What is the evidence of prosecutions for such an offence relating to alcohol?

Baroness Thornton: I said in my remarks that prosecutions for proxy purchasing of alcohol are rare. I will endeavour to get the actual figures for the noble Lord, but these are rare offences. The noble Baroness, Lady Coussins, made the powerful point that the introduction of the legislation allowed a large amount of education and information to be made available and a campaign to take place on that issue, which was beneficial. That campaign could not take place in this instance because, as she pointed out, as there is no safe level for smoking.

Earl Howe: This has been a useful short debate, and I thank all noble Lords who have spoken in support of the amendment. Naturally, I find the Minister’s reply disappointing, although I thank her for her thoughtful response. I shall consider carefully what she has said.

I am sure she would agree that we are after a cultural change in the area of youth smoking. Creating parity between alcohol and tobacco in the way that the law treats proxy purchasing would send out a powerful message to children, parents and, for that matter, all adults alike, but it would also rebalance the burden of responsibility in this area. When it comes to enforcement, retailers are naturally in the front line. It is up to them to enforce the age limit for tobacco sales, and they run the risk of legal sanctions if they fail to do so. If the Government get their way, retailers will also be landed with the burden of enforcing the ban on displays at the point of sale. To make it illegal for an adult to buy cigarettes or tobacco on behalf of a minor would tackle the demand side of the problem by putting a legal onus on the purchaser, not just the seller.

I accept the gentle teasing of the noble Lord, Lord Faulkner, about research. I simply argue that this is a blatant loophole in our existing criminal law and that that is the difference between this proposal and others in the Bill.

I say to the Minister: let us look at simple measures like this one to buttress the current law before we get stuck into other measures that are inherently more difficult to agree on. I hope that the Government really will keep the matter under review. For my part, I undertake to reflect carefully on what the Minister has said before the next stage of the Bill. I beg leave to withdraw the amendment.

Amendment 86 withdrawn.

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Clause 20 : Power to prohibit or restrict sales from vending machines

Amendment 87

Moved by Lord Crisp

87: Clause 20, page 25, line 3, leave out “may” and insert “shall”

Lord Crisp: I shall speak also to the other amendments in the group. The purpose of most of these amendments is to prohibit the sale of tobacco in vending machines in England, Wales and Northern Ireland. If the Government are not minded to go quite as far as prohibiting vending machines, four of the amendments provide that they can be prohibited with a small number of exceptions. That is the purpose of these amendments. I declare an interest as a council member of the British Heart Foundation, from whom I have received briefing, but it should be said that I have received briefing material from those on both sides of the argument. I should also say where I am coming from: as a former Permanent Secretary, I understand the Minister’s dilemma in seeking the correct balance between the rights of individuals to do something that is legal, the rights of businesses to carry on a legal trade and the Government’s wish to help people to give up smoking and to stop children from purchasing cigarettes. It is a difficult balance and part of my argument is that I do not think that it is right on this occasion. We are in danger of coming to a poor compromise rather than a good balance.

Vending machines are designed for convenience so that people are able to purchase goods, quite often without supervision—indeed, for some of the goods they purchase in this way, they may not wish to be supervised. It would be easy to think that they would be ideal for children to use if they wanted to purchase cigarettes without being seen by those supervising them. The figures show that that view is right. One per cent of the tobacco market comes through vending machines, so it is a small but material amount. A 2007 survey showed that 17 per cent of children between the ages of 11 and 15 used vending machines as their usual source of supply. That translates to one in six children, and thus 46,000 children between the ages of 11 and 15.

Lord Naseby: Could the noble Lord remind the Committee of the location of vending machines? Is it not a fact that 99 per cent of them are located in licensed premises?

Lord Crisp: May I come back to that in a moment? The figure is not quite as high as 99 per cent, but it is substantial. That is partly why we have a muddle here because children actually do find it relatively easy to get access to vending machines.

As I have said, 17 per cent of children use vending machines as their usual source of supply. A survey in 2008 showed that 5 per cent of adults had used a vending machine in the past six months. So there is a simple argument that these machines make it much more convenient for children to purchase cigarettes,

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but that if they were not there selling tobacco, they would not disadvantage many adults who in any case have other sources of supply. That is the major part of the argument, but I want to make a number of subsidiary points in support and to look at the level of what the noble Earl, Lord Howe, has described as the “collateral damage” of introducing such a prohibition.

First, this would be in line with every other bit of government legislation dealing with products that are banned for children. It would be ridiculous if alcohol was available in vending machines; we would find that quite extraordinary. There is some comfort for the noble Baroness in that every other aspect of UK legislation treats products not available to children in the same way. We know also that 22 countries in Europe do not permit the sale of tobacco in vending machines. Again I agree entirely with the noble Earl, Lord Howe, but that is not a reason for us to do it. However, if the body of opinion suggests that people are not allowing cigarettes to be sold in vending machines, the burden is on us to show why we are different, not why we would be the same if we did what other people in Europe do.

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