Tobacco and Vapes Bill

Baroness Hoey Excerpts

Report stage
Tuesday 3rd March 2026 Lords Chamber

Moved by

[Baroness Hoey]

91: 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, in moving this amendment in my name and that of the noble Lord, Lord Dodds of Duncairn, I will speak also to Amendments 120, 201 and 216, in my name, to which the noble Lords, Lord Dodds and Lord Naseby, have added their names. I should say at the beginning that I wholeheartedly support Amendment 207 but will not refer to it.

When the Windsor Framework was proposed, I and others warned that it would be anti-democratic, in the sense that it would lead to laws being introduced in Northern Ireland over which the people had no democratic say. We warned that it would mean that laws approved by our elected Parliament could sometimes be blocked in a constituent part of the United Kingdom, so these amendments are all about the primacy of our law over EU law.

Since the framework, EU rules have quietly been applied to Northern Ireland, affecting items such as mundane tumble dryers, smartphones and vehicle imports. Those are all very irritating and anti-democratic, but this Bill is really on a different scale. The generational smoking ban and the Tobacco and Vapes Bill are flagship policies of His Majesty’s Government. They were in Labour’s manifesto and have sweeping implications, which have been debated, for trade, retailers and hospitality. They touch on civil liberties, on our culture and on the integrity of the union.

When foreign states seek to use the Windsor Framework to obstruct the implementation of this legislation in Northern Ireland, the matter cannot simply be waved away. I am afraid that that is precisely what the Government appear to be doing on this issue, right from the beginning of Second Reading. Seven EU member states have said that the Bill violates EU tobacco directives and undermines the single market. They have formally registered their opposition and called for the law to be blocked.

The Government’s response is to say, first, that they have a different interpretation of the law; and, secondly, that, even if that is wrong, they should be able to proceed on public health grounds. However, we have known about the legal issues that this Bill faces in Northern Ireland for over a year. King’s Counsels, former Ministers, leading journalists and leading academics have raised the alarm. Of course, they have been proved right on other Bills where government legal experts said that they would be fine and that nothing could stop them being implemented in Northern Ireland—then, of course, we saw that they could be.

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EU law explicitly encourages member states to set and enforce age of sale limits to protect children and young people. In the absence of harmonised rules on age of sale, member states—and, therefore, by extension, Northern Ireland under the Windsor Framework—retain discretion to determine the age they consider appropriate. When it comes to trade rules, the protection of public health, particularly the health of children, is one of the most firmly established justifications for restricting intra-EU trade. Given that smoking causes at least 16 cancers and remains the leading cause of preventable death in the UK, it is difficult to see how the Bill could be judged anything other than proportionate and consistent with the tobacco products directive and EU free movement principles.

[Baroness Hoey (Non-Afl)]

I thank the noble Lord for his view on that. Could he explain why Denmark and Ireland were not allowed to go ahead, and why seven countries feel so differently from what he has just said?

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[Baroness Merron (Lab)]

My Lords, I am most grateful to noble Lords for their contributions to this debate, which have covered a number of important areas. I will start with Amendment 202, tabled by the noble Lord, Lord Young of Cookham, and Amendment 206, tabled by the noble Lord, Lord Lansley—it was also spoken to by a number of other noble Lords, including the noble Lord, Lord Rennard. As noble Lords are aware, there is already a duty on government to review most secondary legislation and to conduct post-legislative scrutiny of primary legislation, and we take these obligations very seriously. For Amendment 202 specifically, the point must be reiterated that this Government are committed to achieving a smoke-free UK, and we recognise that this work will absolutely not be over when this Bill receives Royal Assent.

However, I have listened carefully to the concerns raised by noble Lords, and it is for that reason that I have tabled Amendment 205, which introduces a requirement for the Secretary of State to review the operation of the Act within four to seven years of Royal Assent and to lay a report before Parliament concluding the findings of that review. I can assure the noble Lords, Lord Rennard and Lord Young, that this includes looking at the impact on communities where smoking rates are currently the highest. I hope that this is a clear demonstration of the Government’s commitment to monitoring progress against our smoke-free ambition.

The noble Lord, Lord Young, and others have said that this Bill is not about assisting people to quit. In the last group, noble Lords will recall, I addressed our determination, and laid out the resource that we have committed, to help people to quit smoking now, and that absolutely is a key aspect.

Amendment 205, which I tabled, will ensure that this Government and—I emphasise this—any future Administrations are held to account for conducting an evidence-based review of the Act. Our intent is to make the report within five years, in line with our existing obligations. However, the amendment is set out as it is—it provides the necessary flexibility on timing—because we want to ensure that evidence is in place before conclusions are drawn. We do not want this to be a tick-box exercise.

I can confirm to the noble Lord, Lord Lansley, and the noble Baroness, Lady Walmsley, that independent evidence will indeed be central. Most notably, it will include the living evidence map commissioned by the National Institute for Health and Care Research, which will collate UK-based and international evidence on vapes and nicotine products for the next five years. This will include things such as any published research evaluating the impact of the Bill, and regular summaries will be publicly available to outline emerging trends and evidence gaps. I am pleased to say that this tool was published on 18 February.

As the Bill’s impact assessment outlines, we would not, in all honesty—I know noble Lords understand this—expect to see the full, transformative impact of the Act for some time. It is for that reason that the impact assessment used a 30-year appraisal period for the smoke-free generation policy. Our modelling found that the Bill will save tens of thousands of lives over the next 50 years. None the less, we expect that this review will capture any early indicators and operational progress.

I say to the noble Baroness, Lady Fox, that there is no limit on consultation just to the devolved Governments because, as I set out on previous groups, we are keen and committed and have already set out how we will consult many. We will continue to commission a substantial package of high-quality independent research on what is world-leading legislation.

On Amendment 207 by the noble Baroness, Lady Fox, I appreciate her intention to ensure that the impact of the Act receives appropriate parliamentary scrutiny, as I hope she has heard me say throughout every stage of the Bill. As she is aware, the Government already published a thorough impact assessment of the measures in the Bill on its introduction. Where possible, this has covered estimated impacts on businesses across the tobacco and vapes supply chain, including impacts for manufacturers, importers, wholesalers, distributors and retailers.

For measures delivered through secondary legislation, in particular product standards, flavours and packaging, further detailed impact assessments will be undertaken. I have also spoken about government Amendment 205, which will include consideration of economic impacts where evidence allows. I must also emphasise that we will not prioritise the profits of businesses over protecting children from the risks of tobacco products, vaping and nicotine.

I say to the noble Lord, Lord Mawson, that there is no evidence to suggest that changing the age of sale of tobacco would have any relation to drug use. Indeed, we can look at our experience that, when the age of sale went from 16 to 18, drug use decreased.

I turn to Amendments 91, 120, 201 and 216, tabled by the noble Baroness, Lady Hoey, and supported by the noble Lord, Lord Dodds. I hope that these comments, in particular my opening remarks, will be helpful to the noble Earl, Lord Howe, because I will start with an update to your Lordships’ House on the notification of the Bill under the EU’s Technical Regulation Information System, known as TRIS. The UK Government have notified certain provisions in the Bill related to Northern Ireland on TRIS. This is an absolutely standard process; it is not an approval process. The Commission and member states may indeed comment, but they do not play a role in approving the UK’s legislation in respect of Northern Ireland.

It is the case, as noble Lords have said, that certain EU member states issued opinions setting out their concerns about the compatibility of the smoke-free generation policy with EU law. It is not unusual for member states to submit opinions on TRIS notifications. To give just one example, several member states also wrote to France recently when it proposed a ban on nicotine pouches, despite several other member states already having introduced such a ban.

The Government have provided a comprehensive response on the opinions they have received. The response sets out the strong public health justification for the policy and explains why the smoke free generation complies with EU law as it applies under the Windsor Framework. The Commission has also now responded, noting our response, and this concludes the TRIS process.

On the points raised by noble Lords including the noble Baroness, Lady Hoey, the noble Lord, Lord Dodds, and, in a different way, the noble Baroness, Lady Walmsley, about legal opinions, your Lordships are probably far more aware of this, but it is worth restating: legal opinions, to state what is obvious, can and do differ. I emphasise that it is not unusual for the tobacco industry to argue that government measures are incompatible with the law. My noble friend Lord Forbes spoke to this very point. Experience tells us that this has happened many times: to give but two examples, on the introduction of standardised packaging in 2016 and on the regulations made under the Tobacco Advertising and Promotion Act 2002.

Amendments 91, 120 and 216 are not required: the Government have already published their response to the Commission, setting out why measures drafted in the Bill which apply to Northern Ireland are compatible with obligations under the Windsor Framework and EU law. I referred earlier to the Government’s published response on TRIS, following detailed opinions from EU member states. I strongly urge all interested Peers to read this if they have not had the chance to do so already, because it sets out in detail why the Government believe that the smoke-free generation policy and other measures in the Bill are compatible with EU law. It covers the Bill’s compatibility with Articles 34 and 36 of the Treaty on the Functioning of the European Union and the EU tobacco products directive, and the public health justification for measures in the Bill.

Finally, I note that we cannot accept Amendment 201 as it could put us in breach of international law by undermining compliance with our obligations under the Windsor Framework. To this point, I am grateful to my noble friend Lady Ritchie for her observations. With that, I therefore ask the noble Baroness, Lady Hoey, to withdraw her amendment.

[Baroness Hoey (Non-Afl)]

My Lords, I thank the Minister. We had this discussion a few times in Committee. I tabled these amendments to make sure that all noble Lords are fully aware that no matter how much time we spend on the Bill, and whatever happens, it could end up in the EU ruling that it cannot apply to Northern Ireland. That is just a fact. There may be different legal opinions; I certainly have not relied on just the legal opinions of the tobacco industry. I am just disappointed as, once again, the noble and learned Lord the Attorney-General seems to be very quiet on this and does not want to engage or produce anything that shows us the legal opinion.

However, as has been said many times before, there is obviously agreement between the two Front Benches. Although I welcome the very sensible probing of this by the noble Earl, Lord Howe, there is clearly a consensus that the Bill is going to go through whatever because other Bills are probably more important. I therefore just warn noble Lords that we have been right before when we warned about legal opinion and what was happening in the Windsor Framework, and I think we will be right again. Having said that, I will withdraw my amendment.

Amendment 91 withdrawn.