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We were asked: why not allow the vending machine companies to implement restrictions on a voluntary basis before banning them? As long ago as 1998, the Smoking Kills White Paper referred to the voluntary code of practice issued by the National Association of Cigarette Machine Operators to its members. This code has been revised so that the primary consideration when siting a machine is the need to prevent sales to children. Despite the NACMO code of practice, vending machines remain a significant source of tobacco for children and young people. That is why we included vending machines in the Health Bill in the first place, and why Ministers have made it clear that action will be taken.

The tobacco vending machine industry has had ample opportunity voluntarily to solve the problem of youngsters getting tobacco from its machines; it has been unsuccessful. Young people are still getting tobacco from vending machines. I met representatives of NACMO this morning because I wanted fully to understand the issues. I listened carefully to what they had to say. We are committed to making the regulations on the tobacco provisions of the Health Bill as soon as possible. There is nothing to be gained from undue delay. As I pointed out to the gentlemen I met this morning, the date would still be October 2011, which is nearly two years away. It would not be immediate. There is scaremongering among the people who run these companies that this is an immediate ban. This is not the case. The Government are taking the powers-

Lord Hughes of Woodside: I am grateful to my noble friend, but if the matter is so serious, and if so much damage is being done to many thousands of people, as described by the noble Lords, Lord Patel and Lord Walton, why wait two years before doing something about it?

Baroness Thornton: My Lords, we are giving businesses time to deal with the fact that these regulations will be in place, as we promised them that we would, and as I explained to the representatives this morning.

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Lord Naseby: This is an important point. The Minister knows as well as I do that the Department of Health's recently published consultation on the proposed tobacco control regulations in England recommends the use of the RF system. Does the department accept that this is a good system and that it must move forward, or are Ministers totally blind to what their own department is finding?

Baroness Thornton: My Lords, we have consulted consistently with the National Association of Cigarette Machine Operators and have taken its views into account. Of course we discussed that matter with it when we were drafting the regulations that were to be considered before the other place took its decision. We are sympathetic to small businesses that will be affected by the legislation to prohibit tobacco vending machines, but we are also concerned about how easily young people can get tobacco from vending machines. When another place considered the proposals for vending machines the competing interests were debated.

Lord Stoddart of Swindon: Since the industry believes that a lot of people will go out of business, is it the Government's intention to give them compensation?

Baroness Thornton: I do not know the answer to that question and I will certainly let the noble Lord know, but in considering the proposals on vending machines, the competing interests were debated and the effects on the vending industry were discussed. The noble Lords, Lord Palmer and Lord Monson, suggested that removing vending machines would mean that more illicit tobacco would be sold in pubs and clubs. That is speculative. There is no evidence that removing vending machines will result in more illicit tobacco being sold in pubs and other venues where vending machines are commonly located. Indeed, laws are already in place to prevent premises being used for the sale of illicit tobacco and significant punishment can be imposed should that happen.

Lord Campbell-Savours: Would my noble friend-

Baroness Thornton: Can I make some progress? My noble friend Lord Campbell-Savours referred to the technology and the equipment. The use of equipment to prevent vending machines selling cigarettes to children was an option included in the Department of Health's 2008 consultation. This is not new technology. I know that the tobacco vending industry has been active in making both your Lordships and Members of another place aware of the different options that we have. Unless Members of another place were not reading their e-mails or their post, I suspect that they would have known what options were available when they had their debate. The noble Lord, Lord Stoddart-

Lord Campbell-Savours: On that matter-I want to press this-the issue is whether during the course of the debate-my noble friend recognised that it was comprehensive and detailed-consideration was given to radio-frequency-controlled cigarette vending machines. It is very simple: if it was, then we should vote for the McCartney amendment; if it was not, it seems to me that the Commons were unaware of this technology, which seems to me to deal with all the issues about which my noble friend is concerned.

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Baroness Thornton: I can see why my noble friend is pushing that point but, as I said, it would be very difficult for any of us, both at this end of the building and the other, not to know what technology was available to control vending machines. I do not have the relevant Hansard in front of me but I have looked through it and I know that there was a passionate debate on both sides of the issue. I would be extremely surprised if honourable Members were not aware of the technology and equipment available to solve this problem. However, as far as I can tell from the debate, they were not convinced that this would solve the problem of tobacco being available to young people from vending machines.

Baroness Golding: Would the people in the other House, or people in general, be aware that trading standards have endorsed machines with this radio frequency control mechanism? That has been developed recently and so has only just been put in the machines; not all machines have it yet, but most machines do. Are people aware that trading standards have endorsed it?

5.30 pm

Baroness Thornton: I have no idea whether people are aware of that. I certainly was aware that this technology had been discussed with trading standards officers, but it does not actually change the point. We are committed to making regulations relating to tobacco under the new powers provided by this Bill. Of course, careful consideration will be given to the responses to the consultation and to complying with our EU obligations to notify draft regulations. Amendment 11 was accepted in the other place and all parties were offered a free vote. This amendment represents the will of that House. Therefore, I beg that Amendment 11 and the consequential amendments be agreed to and I ask the noble Earl, Lord Howe, to withdraw his amendment.

Lord Howie of Troon: Might I draw my noble friend's attention to a procedural matter, to which she referred earlier? She will be unaware of the fact that I was, for a number of years, a Whip in another place-admittedly, that was some considerable time ago-and I can assure her that the Whips will always put in Tellers in order to protect the Government's business, whether there is a free vote or not. The one exception is if the vote is on a Private Member's Bill, where a free vote would cover the entire Bill and not an amendment.

Baroness Thornton: I stand corrected by my noble friend and thank him.

Earl Howe: My Lords, this has been a good debate and I am grateful to all noble Lords who have taken part. We have heard in particular from the noble Lords, Lord Walton and Lord Patel, about the damage that is caused to young people who are given access to cigarettes. That is not a case that I wish to argue against; I accept it, but it is not central to the matter at issue.

It is necessary to re-emphasise only two points. There is a proportionate and workable course of action open to Parliament in pursuing its wish to bear down on underage access to vending machines. That is to allow the Government to lay regulations designed to

9 Nov 2009 : Column 621

ensure that such access does not occur, while at the same time allowing legitimate adult smokers to purchase cigarettes from vending machines as they wish. I do not show the pessimism of the noble Lord, Lord Crisp, about this. We know that there is technology available and in use that would enable that to happen. The Government believe that, too. The Minister in another place, Gillian Merron, said during the debate on the McCartney amendment:

"The Government believe that we can place requirements on vending machines that will be effective, proportionate and deliverable in preventing under-age sales and balance the views of all concerned".-[Official Report, Commons, 12/10/09; col. 109.]

Those of us who share that belief argue that, if government policy is to be overturned, the very least that is needed is a vote in the House of Commons. Indeed, I would argue that a vote there should be seen as necessary, irrespective of one's view on the banning of vending machines. My clear understanding is that, as the noble Lord, Lord Howie, has outlined, the other place was denied the opportunity to go through the Lobbies. I refer the noble Baroness, Lady Barker, to col. 123 of Commons Hansard on 12 October, which makes the position abundantly clear. I am sorry if the sensibilities of Members of another place may be troubled by our rejecting the McCartney amendment, but in my view the matter is too important for that.

It is certainly true that the competing interests were debated in the other place, but from reading the debate one can see that they were barely alluded to. The main thrust of the debate focused on tobacco displays, which are not the subject of our debate. To approve the Commons amendment today, in the absence of a Commons vote, would be to betray the 650 or so people whose livelihoods depend on being able to operate vending machines. They are men and women with families and mortgages who, in many cases, stand to lose everything if cigarette vending machines are summarily banned. If that were to happen on the back of what was, essentially, a mess-up in the House of Commons, it would-

Lord Walton of Detchant: It is not a summary ban, because it is always recognised by those of us who support the ban, first, that the Government have to produce regulations, which have to go out to consultation, and, secondly, that the process is quite lengthy. That will give the people involved in the industry time to deal with matters accordingly. As the noble Baroness has said, the ban would certainly not come into effect for about two years.

Earl Howe: I am not arguing about that. I am arguing that the two-stage approach, which the Government originally favoured, was the proportionate one. If we are left with the McCartney amendment and nothing else, it will be a summary ban because it is an all-or-nothing position. That is my point. I maintain that, unless we ask the other place to think again, we will have on our hands a travesty of the parliamentary process. Without apology, I therefore beg to move.

5.36 pm

Division on Earl Howe's Amendment

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Contents 82; Not-Contents 170. [See col. 638 for explanation of mistake in voting figures.]

Earl Howe's Amendment disagreed.

Division No. 2


Anelay of St Johns, B. [Teller]
Ashcroft, L.
Ashdown of Norton-sub-Hamdon, L.
Attlee, E.
Baker of Dorking, L.
Bates, L.
Bilston, L.
Blackwell, L.
Brooke of Sutton Mandeville, L.
Brookman, L.
Brougham and Vaux, L.
Caithness, E.
Cathcart, E.
Chorley, L.
Colwyn, L.
Cope of Berkeley, L.
Courtown, E.
Craig of Radley, L.
Crickhowell, L.
Cumberlege, B.
De Mauley, L.
Denham, L.
Dixon-Smith, L.
Eccles, V.
Elton, L.
Falkner of Margravine, B.
Fookes, B.
Geddes, L.
Glasgow, E.
Golding, B.
Goodlad, L.
Greenway, L.
Hanham, B.
Henley, L.
Hodgson of Astley Abbotts, L.
Hooper, B.
Howard of Rising, L.
Howe, E.
Howe of Aberavon, L.
Howie of Troon, L.
Hughes of Woodside, L.
James of Blackheath, L.
Jopling, L.
Knight of Collingtree, B.
Lang of Monkton, L.
Liverpool, E.
Lucas, L.
Luce, L.
Luke, L.
Lyell, L.
McColl of Dulwich, L.
MacGregor of Pulham Market, L.
Mancroft, L.
Monson, L.
Montrose, D.
Moonie, L.
Morris of Bolton, B.
Moynihan, L.
Naseby, L.
Newton of Braintree, L.
Noakes, B.
Palmer, L.
Patten, L.
Pendry, L.
Plumb, L.
Rawlings, B.
Rowe-Beddoe, L.
Saltoun of Abernethy, Ly.
Seccombe, B. [Teller]
Selborne, E.
Selsdon, L.
Shaw of Northstead, L.
Sheikh, L.
Skelmersdale, L.
Stoddart of Swindon, L.
Strathclyde, L.
Taylor of Holbeach, L.
Ullswater, V.
Verma, B.
Wakeham, L.
Walpole, L.
Wilcox, B.
Willoughby de Broke, L.


Adams of Craigielea, B.
Addington, L.
Adonis, L.
Ahmed, L.
Alton of Liverpool, L.
Anderson of Swansea, L.
Andrews, B.
Archer of Sandwell, L.
Bach, L.
Barker, B.
Bassam of Brighton, L. [Teller]
Bhattacharyya, L.
Billingham, B.
Bradley, L.
Bradshaw, L.
Brennan, L.
Brett, L.
Broers, L.
Brooke of Alverthorpe, L.
Campbell of Surbiton, B.
Chandos, V.
Christopher, L.
Clark of Windermere, L.
Clarke of Hampstead, L.
Clement-Jones, L.
Clinton-Davis, L.
Cobbold, L.
Cohen of Pimlico, B.
Corbett of Castle Vale, L.
Coussins, B.
Craigavon, V.
Crawley, B.
Crisp, L.
Davies of Abersoch, L.
Davies of Oldham, L.
Dear, L.
Dholakia, L.
Donoughue, L.
D'Souza, B.
Dubs, L.
Elder, L.

9 Nov 2009 : Column 623

Elystan-Morgan, L.
Emerton, B.
Evans of Temple Guiting, L.
Evans of Watford, L.
Falkender, B.
Farrington of Ribbleton, B.
Faulkner of Worcester, L.
Fearn, L.
Filkin, L.
Finlay of Llandaff, B.
Foulkes of Cumnock, L.
Gale, B.
Gavron, L.
Gibson of Market Rasen, B.
Goudie, B.
Gould of Potternewton, B.
Graham of Edmonton, L.
Greaves, L.
Griffiths of Burry Port, L.
Grocott, L.
Hamwee, B.
Harris of Haringey, L.
Harris of Richmond, B.
Harrison, L.
Hart of Chilton, L.
Haskel, L.
Haskins, L.
Haworth, L.
Henig, B.
Hilton of Eggardon, B.
Hollick, L.
Hollis of Heigham, B.
Hooson, L.
Howarth of Breckland, B.
Howarth of Newport, L.
Howells of St. Davids, B.
Hunt of Chesterton, L.
Hunt of Kings Heath, L.
Janner of Braunstone, L.
Jay of Paddington, B.
Jones, L.
Jones of Cheltenham, L.
Jones of Whitchurch, B.
Jordan, L.
Judd, L.
King of West Bromwich, L.
Kingsmill, B.
Kinnock, L.
Kirkwood of Kirkhope, L.
Laird, L.
Lea of Crondall, L.
Lester of Herne Hill, L.
Lipsey, L.
McDonagh, B.
Macdonald of Tradeston, L.
McIntosh of Haringey, L.
McIntosh of Hudnall, B.
MacKenzie of Culkein, L.
McKenzie of Luton, L.
Maclennan of Rogart, L.
McNally, L.
Maddock, B.
Manningham-Buller, B.
Martin of Springburn, L.
Massey of Darwen, B.
Maxton, L.
Meacher, B.
Miller of Chilthorne Domer, B.
Morgan of Drefelin, B.
Morgan of Huyton, B.
Morris of Aberavon, L.
Morris of Yardley, B.
Murphy, B.
Myners, L.
Nicholson of Winterbourne, B.
Northbourne, L.
Northover, B.
O'Cathain, B.
O'Loan, B.
O'Neill of Clackmannan, L.
Pannick, L.
Patel, L.
Patel of Blackburn, L.
Pitkeathley, B.
Plant of Highfield, L.
Prosser, B.
Radice, L.
Rea, L.
Redesdale, L.
Rees-Mogg, L.
Rennard, L.
Richard, L.
Ripon and Leeds, Bp.
Roberts of Llandudno, L.
Rogan, L.
Rosser, L.
Rowlands, L.
Royall of Blaisdon, B.
Sawyer, L.
Sewel, L.
Sheldon, L.
Shutt of Greetland, L.
Simon, V.
Smith of Clifton, L.
Snape, L.
Soley, L.
Stern, B.
Stone of Blackheath, L.
Temple-Morris, L.
Thomas of Walliswood, B.
Thomas of Winchester, B.
Thornton, B.
Tonge, B.
Tope, L.
Tunnicliffe, L. [Teller]
Turnberg, L.
Turner of Camden, B.
Tyler, L.
Wakefield, Bp.
Walton of Detchant, L.
Warner, L.
Warwick of Undercliffe, B.
Watson of Richmond, L.
West of Spithead, L.
Whitaker, B.
Whitty, L.
Williams of Elvel, L.
Williamson of Horton, L.
Woolmer of Leeds, L.

Motion agreed.

5.47 pm

Amendment 12

Moved by Baroness Thornton

12: Insert the following new Clause-

"Private patient income of mental health foundation trusts

9 Nov 2009 : Column 624

(1) Section 44 of the National Health Service Act 2006 (c. 41) (private health care) is amended as follows.

(2) In subsection (2)-

(a) after "not greater than" insert "- (a)";

(b) at the end insert ", or

(b) in the case of a mental health foundation trust designated under subsection (2A), that proportion or 1.5% if greater."

(3) After subsection (2) insert-

(2A) An authorisation of an NHS foundation trust which was an NHS trust must designate it as a mental health foundation trust for the purposes of this section if it appears to the regulator that it provides goods or services only or mainly for the prevention, diagnosis or treatment of any disorder or disability of the mind or for the benefit in any other way of people suffering from a disorder or disability of the mind.""

Baroness Thornton: My Lords, I beg to move that the House do agree with the Commons in their Amendment 12. In doing so, I shall also speak to Commons Amendment 14.

We had a full debate in the course of the Bill's passage about the private patient cap and its impacts on the National Health Service and I thank all noble Lords for their valuable and informed contributions to our discussion. I am pleased to say that Commons Amendment 12 responds to these debates and enables a designated mental health foundation trust to earn up to 1.5 per cent of its total income from income that it derives from private charges. The new clause also contains the definition of mental health foundation trusts for this purpose.

NHS foundation trusts are a growing part of the NHS. The Government are committed to ensuring that the foundation trust model becomes a dominant form of healthcare provision. We want these trusts to use their freedoms, local accountability and financial independence to innovate and improve NHS services. As noble Lords know, the intention behind the cap was to manage a potential risk that the freedoms given to foundation trusts might allow them to change their fundamental nature as NHS organisations. As the foundation trust model has evolved, it has become clear that we need to examine new ways of ensuring that the foundation trust best serves the interests of NHS patients; we absolutely accept this.

At Third Reading, I announced that the Government would embark on a policy review following the outcome of the judicial review of the current legislation. However, we have brought forward that commitment and last week commenced our review by launching a call for evidence to stakeholders both inside and outside the NHS. This is due to close by the end of the year. The Government would like to see NHS patients deriving even greater benefits from NHS foundation trusts. That is the basis of our review. This is a complex and controversial issue and only by having a fundamental and inclusive review can we ensure that consensus is reached on the solution for the long term. It will also ensure that any future solution for the long term is pragmatic, workable and achieves our fundamental purpose.

Our call for evidence sets out the key principles towards which we are working. NHS foundation trusts must: first and above all, prioritise and protect the interests of NHS patients; secondly, ensure income

9 Nov 2009 : Column 625

from private patient work is used for the overall benefit of the NHS; thirdly, preserve and promote the principles and values of the NHS, as now enshrined in the NHS Constitution, and achieve national standards and government policy objectives; fourthly, not undertake private patient work in such a way as to result in a detriment to services for NHS patients; and, fifthly, ensure that mechanisms are put in place to secure and demonstrate that there is no cross-subsidy of private care with public money.

This is the first stage of a broader process to review the cap. The evidence that we receive will help to shape the direction that our policy review takes next year, which we expect to complete in the spring. We intend to follow this with a public consultation on proposals for reform, which would mean that legislation could be possible early in the new Parliament.

Pending the outcome of the review, a compelling case has been made for one narrowly defined interim measure to address the genuine anomaly of mental health foundation trusts, all of which have caps set at zero. Mental health foundation trusts were not envisaged in 2003. This amendment addresses an unintended consequence of the legislation and one of the most commonly reported complaints about the cap. Many noble Lords and honourable Members in another place have raised this issue as a particular concern. The Government have received representations from mental health foundation trusts that say that they are unable to move forward with ideas for service development. One, for example, has said that it cannot develop novel services such as those for children with autistic spectrum disorders and acquired brain injury. This type of service provision, it says, could have national application.

As the noble Baroness, Lady Meacher, observed in Grand Committee, these trusts have told their representative body that they are also prevented from supporting the Government's well-being agenda. Some have written to us saying that they cannot enter into government-sponsored return-to-work activities with external contractors or provide specialist help for employees at risk of mental ill health, unlike non-foundation mental health trusts. Given the current climate, it has never been a more important time to invest in mental health. Mental health foundation trusts themselves have said that, for their service users, the ability to promote and deliver the well-being agenda would be very beneficial.

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