Tobacco and Vapes Bill

Baroness Hoey Excerpts

Committee stage
Thursday 13th November 2025 Grand Committee

Moved by

[Baroness Hoey]

114B: After Clause 48, insert the following new Clause—
“Regulations made under Part 1: Windsor Framework(1) Before making any regulations under this Part, the Secretary of State must—(a) commission an independent legal opinion assessing—(i) the extent to which the implementation of this Act in Northern Ireland complies with the Windsor Framework;(ii) the likelihood of any increase in the illicit trade in tobacco products if regulations under this Act are made in relation to Northern Ireland otherwise than in England, Wales and Scotland;(b) publish that legal opinion;(c) consult any person they consider appropriate.(2) The Secretary of State may not make regulations under this Part unless the Secretary of State is satisfied that the legal opinion under subsection (1) demonstrates that the implementation of Part 3 of this Act (sale and distribution: Northern Ireland) is fully compliant with the Windsor Framework and consistent with the Tobacco Products Directive of the European Union (2014/40/EU).”Member's explanatory statement
This amendment seeks to prevent the Secretary of State from making regulations about the sale and distribution of tobacco in England and Wales until they have considered and demonstrated that to do the same in Northern Ireland would be fully compatible with the Windsor Framework and the Tobacco Products Directive.

[Baroness Hoey (Non-Afl)]

My Lords, I will also speak to Amendments 138A, 200 and 201A. Before I go into them, I want to remind people that if this Bill goes through in its entirety as it is now, starting in February 2028, adults under the age of 21 in the Republic of Ireland will be barred from buying tobacco at home but will still be able to nip across the border to stock up in Northern Ireland. If the generational ban comes in, the cross-border relay will reverse, with 22 year-olds banned from buying tobacco in Belfast still free to nip over the border to Dublin. As the years go by, the legal uncertainty will get worse: 43 year-olds will not be able to buy a packet of cigarettes in Enniskillen legally, but a 44 year-old will; while just down the road in Donegal, both will be able to do so freely. It may sound amusing, but smugglers and so on will be absolutely delighted at being able to make such a lot of profit.

These amendments deal with issues that I sometimes think can be summed up as those that “dare not speak their name”, or, at least, those the Government seem to be putting their head in sand over. They all deal with the question of whether, because of the EU tobacco directive, the Bill can or cannot apply to Northern Ireland. According to that directive, states cannot limit the placing on the market of tobacco products. It was that which caused the Governments in Denmark and the Irish Republic to withdraw proposals to do more or less what this Bill is doing, because they would breach the European Union tobacco directive.

Before noble Lords say that Parliament is supreme and if it says that Northern Ireland is included, of course it will be, I remind them that under the Windsor Framework/protocol, Parliament no longer reigns supreme over one part of the UK: Northern Ireland,

“because Section 7A of the European Union (Withdrawal) Act 2018 overcomes every other provision in any other statute, whenever enacted, that stands or would stand in its way.”

Those are not my words but those of John Larkin, KC, the former Attorney-General of Northern Ireland, who has provided a legal opinion on this Bill and Part 3’s compatibility with the Northern Ireland protocol of the withdrawal agreement made between the United Kingdom and the European Union.

I should declare an interest. John Larkin acted for myself, the honourable Member for North Antrim, the noble Lord, Lord Dodds, and others in the case which brought about the Supreme Court judgment stating that the Acts of Union had been suspended because of the protocol. Noble Lords will know that the legacy Act has also been affected by this ruling, as was the Rwanda Act. The Government gave brave assurances in respect of those Bills that they were content that this would apply to Northern Ireland, only for the courts to rule otherwise, as many of us predicted they would.

At Second Reading of this Bill in the other place, the honourable Member for North Antrim raised this question, as did I and other noble Lords at Second Reading in your Lordships House. When I referred earlier to the Government hiding their head in the sand, I was referring to the varying answers we get from Ministers on the Bill’s compatibility with the Windsor Framework/protocol. The word “intention” is used too often, and there is clearly confusion, if not downright silence.

The Minister said at Second Reading, at the very end of the long debate:

“I assure noble Lords that we are content that the measures intended to apply to Northern Ireland are consistent with the obligations in the Windsor framework”.—[Official Report, 23/4/25; col. 744.]


What I find very concerning is the way in which the UK’s Attorney-General, the noble and learned Lord, Lord Hermer, reacted. I wrote to him on 16 October enclosing the legal opinion of John Larkin and summarising the key conclusions of all the legal advice. I said that he and others had said that Parliament is simply not free to legislate effectively in those policy areas in which EU law still prevails through the Windsor Framework agreement in Northern Ireland. I mentioned the idea of the generational ban in both those other EU states where the common obstacle was the 2014 directive, and said that

“the 2014 Directive, taking effect through the WF and section 7A of the 2018 Act, is an insuperable obstacle to the effective enactment of Part 3 of the Bill”.

That was on 16 October. On 2 November, I got an email back, signed not by the Attorney-General but by “Vicky”, who I think is the diary secretary to the law officers. It said: “Dear Baroness Hoey, apologies for the delay in getting back to you and thank you for the email and letter below. The Attorney is grateful for your letter; however, please can we politely suggest that you contact the Bill Ministers, the Secretary of State, Wes Streeting, and Baroness Merron. They will be better placed to discuss the topics raised in your letter”. I find that quite astonishing and my admiration for the Minister has risen so much, because she is clearly now going to be able to speak on behalf of the Attorney-General and his legal team. I am absolutely surprised at that answer.

My Amendments 114B, 138A and 201A seek to ensure that these parts of the Bill will not come into force until the Secretary of State commissions and publishes the findings of an independent legal opinion showing that these parts are fully compatible with the Windsor Framework and consistent with the EU’s tobacco products directive. Amendment 200 provides a route to allow the Bill to apply in Northern Ireland, and this would be to exempt the tobacco directive from passing through the conduit that delivers EU law to Northern Ireland: namely, Section 7A of the European Union (Withdrawal) Act 2018. Only then can we be confident that our Parliament decides the law for the whole of the United Kingdom and not just Great Britain. It is quite outrageous that our sovereign Parliament, despite the majority of the country voting to leave the European Union, cannot produce a Bill these days applying to the whole of the UK that we can be certain will do so. We will see legal action after legal action, and we see on other Bills that this is already happening.

This Bill, which is fundamentally about health in our country, may have some flaws, but surely it is not too much to expect that citizens in my part of the United Kingdom should be treated as equal citizens when it comes to such an important issue as health. John Larkin ended by saying:

“The Bill serves almost as a textbook example of how a measure advanced by a Government commanding a large majority in the House of Commons can run aground, as respects its Northern Ireland component, on provisions contained in the WF. Parliament is simply not free to legislate effectively in those policy areas in which EU law still prevails through the WF in Northern Ireland”.


That is an absolute disgrace, and I hope that more and more noble Lords are beginning to realise the actual, perhaps unforeseen consequences—although warned about at the time—of signing up under EU diktat to what is going to happen in part of our United Kingdom.

I hope that clarifies matters, and I greatly look forward to the response from the person standing in for the Attorney-General—I was going to say the “mini” Attorney-General, but that is the wrong word—on these legally very important issues that really affect the Bill. We could all be sitting here wasting our time, because this could end up, as so many other Bills will, in the Supreme Court. I beg to move.

[Lord Murray of Blidworth (Con)]

My Lords, I will speak in support of my Amendment 216, which proposes a new clause that would provide accountability and oversight. In my submission, it would balance flexibility with constraint and ensure the approval of the next Parliament for this policy. It would also provide a check on ministerial power, encourage inclusivity in the process and provide transparency as to how the policy evolves. In doing so, it aligns with the better regulation principles so fluently outlined by my noble friend Lord Johnson in his speech to the Committee in our previous debate. The better regulation principles emphasise the regular review of laws, avoid unnecessary burdens in respect of outdated legislation and help to maintain proportional public policy.

Amendment 216 would ensure that the significant regulatory powers in the Bill do not continue indefinitely without political scrutiny. It would create a five-year period for a formal review and allow the consideration, after that period, of any new evidence about public health outcomes, compliance levels, market behaviour or unintended consequences. I refer to my remarks to the Committee in our first debate, when we discussed the impact of the Bill on the growth of the black market for tobacco products, particularly cigarettes.

The provision would also encourage policy flexibility and development, ensuring that it remains fit for purpose. As the Committee can see, it requires an impact assessment before a potential renewal of the policy, to ensure that it remains data driven. The impact assessment would require a full consultation, with two months to respond, on the draft regulations that would result from the consultation process. That would ensure that a decision to proceed or not takes into account the views of all stakeholders, including manufacturers and retailers.

The provision is flexible in that it gives the Secretary of State power to extend the life of the provisions by regulation to six years, or to shorten it to four years if necessary. That is a measure of proportional consideration that has been included in my amendment. Requiring the renewal of the regulations related to the Tobacco and Vapes Bill to be subject to the affirmative procedure would allow Parliament to debate and approve the provisions and to determine whether they should remain in place. This measure requiring parliamentary approval to proceed would mean that this policy would then have political legitimacy in the next Parliament.

As noble Lords can see, proposed new subclause (2) in the amendment concerns the provisions of Part 3 of the Bill relating to sales in Northern Ireland. I draw the Committee’s attention to the answer given by the Minister to a question I raised on the first day in Committee. I asked her the following:

“The Minister has not yet touched on the issue of Northern Ireland. Is it right that the Windsor Framework precludes the generational smoking ban coming into effect in Northern Ireland?”


She replied:

“The Bill is UK-wide, as the noble Lord will be aware. It has been developed in partnership with the Scottish Government, the Welsh Government and the Northern Ireland Executive, and the intention is that the measures in the Bill will apply across the UK. I assure him that, in preparing the Bill, the Government considered all their domestic and international obligations and the Bill does comply”.—[Official Report, 27/10/25; col. GC 166.]


Given what we have just heard from the noble Baroness, Lady Hoey, on the careful and considered opinion of John Larkin, KC, the former Attorney-General for Northern Ireland, it appears that the Minister’s position was misplaced. Given what we have just heard about the correspondence that the noble Baroness has had with the Attorney-General, the noble and learned Lord, Lord Hermer, it seems that he is keen to wash his hands of the issue and refer to the experience of the Minister.

That is perhaps slightly unusual, given that there is a position called the Advocate-General for Northern Ireland—it was provided for in the Justice (Northern Ireland) Act 2002 and created upon devolution—but that senior Northern Irish legal post is held by one noble and learned Lord, Lord Hermer. Can the Minister give us a clear answer on whether the intention really is to apply these provisions to Northern Ireland? If it is not, is not the whole generational ban in some difficulty?

--- Later in debate ---

[The Parliamentary Under-Secretary of State, Department of Health and Social Care (Baroness Merron) (Lab)]

My Lords, I am most grateful for the discussion that we have had today on this group of amendments.

Let me start by turning to Amendment 189 in the name of the noble Lord, Lord Kamall, which would require the Secretary of State to publish a review; it picks up on the points that the noble Earl, Lord Howe, just made. I can say, as I have said on previous days in Committee, that the Government will assess the implementation of the Act. This is completely consistent with best practice for primary legislation and for measures implemented by secondary legislation; the department will, of course, publish post-implementation reviews as appropriate.

Similarly, I turn to Amendments 195 and 196 in the name of the noble Earl, Lord Russell, which would require the Secretary of State to publish two reviews on the operational impact of the Bill. These would need to be published when the first group of individuals impacted by the smoke-free generation policy turned 21, then 25. I hope that the noble Earl will be pleased to hear that I am glad to agree with at least the principles behind the amendments. It is crucial that the Government review the impact of any legislation—we are keen to do so—but we need adequate time for policies to be implemented and for their impact to be realised before undertaking a review. As I have said, we have discussed this matter at some length previously.

I agree with noble Lords that we must monitor the effectiveness of our policies in reducing smoking rates and narrowing health inequalities. We have good data on smoking prevalence and differences between groups through sources such as the ONS annual population survey. Also, the department actively monitors uptake and outcomes of our smoking cessation programmes through NHS England data. This allows us to adapt and target our interventions. It also demonstrates how these services can contribute significantly to reducing smoking and addressing health inequalities. We will continue to monitor this data closely as measures are brought in by the Bill. I refer the noble Earl, Lord Russell, to HMRC estimates on the size of the illicit market. These estimates are made through tobacco duty gap estimates. We will continue to monitor data on the illicit market following the introduction of new policies in this Bill.

Amendment 216, tabled by the noble Lord, Lord Murray, would mean that large parts of the Bill, including age-of-sale and sponsorship provisions, would expire after five years. Also, to avoid the expiry of provisions, it would require the Secretary of State to consult on and lay new regulations each year, and that any regulations made under the Bill regarding packaging and displays would also expire after five years. We had a long debate on the very important matter of impact assessment earlier in Committee. I will not repeat the points that I made there.

However, as noble Lords have heard throughout this debate, smoking is the number one preventable cause of death, disability and ill-health, costing our society some £21.3 billion every year in England alone. I also remind the Committee that this landmark legislation will be the biggest public health intervention in a generation. Our intention is to protect children from harm and break the cycle of addiction and disadvantage. The amendment would mean that large parts of the legislation would automatically cease after five years, and at one-year intervals following that. That could result in gaps in the law, creating legal uncertainty for businesses and consumers alike, and leading to harmful and highly addictive products becoming widely accessible.

Turning to Amendment 200, tabled by the noble Baroness, Lady Hoey, unfortunately I will disappoint her by repeating what I said at Second Reading—which she faithfully quoted—and which I have also said on previous days in Committee. The Government are content that measures in the Bill which apply to Northern Ireland are consistent with the obligations under the Windsor Framework. On the broader sovereignty points raised by the noble Baroness, the noble Lords, Lord Johnson and Lord Dodds, and the noble Earl, Lord Howe, I undertake to write to them about these important matters. However, we are concerned that this amendment would put us in breach of international law. Although I am repeating myself, it is important to say that the Government’s position remains that the Bill will apply across the United Kingdom. It has been developed in partnership with the Scottish and Welsh Governments and the Northern Ireland Executive.

The noble Baroness, Lady Hoey, also tabled Amendments 114B, 138A and 201A. While I am sure that I do not need to reiterate this to noble Lords present, I hope the Committee will forgive me for reminding us all about the harms of tobacco. In Northern Ireland, the Department of Health reports that tobacco claims around 2,100 deaths per year. That is why all four nations are committed to creating a smoke-free generation, so that anyone born on or after 1 January 2009 will never be legally sold tobacco products. As others have done earlier in the Committee, the noble Baroness raised the point about countries having different age restrictions in respect of sale. It is the case that all countries, not just those making up the United Kingdom, have different age restrictions. As I have outlined, our aim in the Bill is to protect future generations and, specifically, to have a complete change of culture in how smoking is regarded, while breaking that cycle of disadvantage and addiction.

In response to the noble Lord, Lord Murray, and the noble Baroness, Lady Hoey, again, I am aware that I am repeating myself, but it is important to do so. The Government consider that in drafting the Bill, they have considered all their domestic and international obligations. We know the tobacco industry has a history of arguing that EU law prevents the adoption of tobacco control measures. That is a very common tactic in disrupting tobacco control legislation.

I am grateful to the noble Baroness, Lady Walmsley, for the point she made about legal opinions. Legal opinions indeed abound, and I understand why noble Lords are raising them, but it is not for me to engage in discussion about their merits or otherwise.

I can confirm that we expect the Bill to complete its passage within this parliamentary Session. There has been reference to the TRIS system, and I should emphasise that it is not an approval process, but I can confirm the point about the progress of the Bill. I hope that noble Lords will feel able to withdraw or not press their amendments.

[Baroness Hoey (Non-Afl)]

I thank the Minister for her response. I am not sure that I got a reply on the legal aspects. This is not about how terrible smoking is in Northern Ireland; it is about whether we can have the Bill in Northern Ireland. The Minister, while being very gentle, attempted to answer some of the points about the legal situation. It is absolutely clear that we need an official government legal opinion. If we cannot even get the Attorney-General, the noble and learned Lord, Lord Hermer, to respond to a letter and say something, what is the point?

I am really grateful to the noble Lord, Lord Murray, for reminding me that the noble and learned Lord, Lord Hermer, has the position of Advocate-General for Northern Ireland. I looked up what his role is, and it says he is the chief legal adviser to the Government of the United Kingdom on Northern Ireland law, yet he seems not to want to talk about this. I genuinely find it amazing. I just hope that the Minister will take this issue back. I presume that she has seen the legal opinion by the noble John Larkin, KC—he should be noble but he is not. Has she read his legal opinion?

[Baroness Merron (Lab)]

My Lords, I have not taken a legal eye to it because I do not have a legal eye to do so. I would not wish to inflate my legal expertise in this regard; it is a matter for my colleagues to do that.

--- Later in debate ---

[Baroness Hoey (Non-Afl)]

I fully understand that the Minister does not want to do that. However, I would have thought that, if the Attorney-General is telling me that I have to refer to her on this, he would at least have sent her the document.

[Baroness Merron (Lab)]

I thank the noble Baroness. To reiterate what I said at the beginning, I am very pleased to write to noble Lords about the broader points being raised. I will of course attend to the points that the noble Baroness has raised.

[Baroness Hoey (Non-Afl)]

I will not push that any further; it speaks for itself.

I thank all noble Lords for their contributions, and I thank the noble Earl, Lord Howe, and the noble Lords, Lord Johnson and Lord Dodds, for their support. It is important that we get to the crux of this very soon, because it will end up in the Supreme Court if something is not sorted out quickly. I appreciate that the Minister has said the strongest words yet, saying, “It will apply”; I do not think anyone else has said that before. I hope that she will be able to get us a proper opinion as to why the Government think it will apply when everyone else—most legal experts—seems to think that it will not. Then, we can look at this again on Report. I beg leave to withdraw my amendment.

Amendment 114B withdrawn.