Mental Capacity (Amendment) Bill [HL]

Debate between Baroness Tyler of Enfield and Lord Faulkner of Worcester

Committee: 3rd sitting - (Hansard): House of Lords
Monday 22nd October 2018 Lords Chamber

[The Deputy Chairman of Committees (Lord Faulkner of Worcester) (Lab)]

I must advise the Committee that if this amendment is agreed to, I cannot call Amendment 56 for reasons of pre-emption.

[Baroness Tyler of Enfield (LD)]

My Lords, I support what my noble friend Lady Barker said about this important set of amendments. Briefly, they look at the interaction between the Mental Capacity Act and the Mental Health Act, which has not been properly thought through at all in how the Bill has been brought forward. The amendments focus in particular on people with fluctuating conditions. We have had a bit of discussion about such people but not nearly enough to understand what the real implications will be for people who may have a severe mental illness that fluctuates. They may have a range of other physical conditions requiring treatment and care. There may be times when they are in a position to give consent to treatment and times when they are not. We really need to think much more about how that is to be dealt with in the new system.

My concern, if I may summarise it, is that this complex interaction between the two Acts will result in a two-tier system, with a considerable imbalance in rights and safeguards between the regimes of the Mental Health Act and the Mental Capacity Act. To pick out one example, I understand that under the Mental Capacity Act everyone is entitled to make a legally binding advance decision to refuse various future medical treatments, but that decision can be overridden under the Mental Health Act in most circumstances. It is complicated. There are people covered by both Acts; it is not a question of having the Mental Health Act and people covered by it over here and having the Mental Capacity Act and people covered by that there.

We really need to think this through and satisfy ourselves that any new system deals with that and, frankly, makes the most of the opportunity to streamline these regimes, in particular to take account of people who are covered by both. I would be particularly pleased if the Minister, in responding, would say something about the needs of people who are severely affected by mental health issues and whose capacity may fluctuate, and about how that has been taken into account in the drafting of the Bill.

Children and Families Bill

Debate between Baroness Tyler of Enfield and Lord Faulkner of Worcester

Wednesday 5th February 2014 Lords Chamber

[Lord Faulkner of Worcester (Lab)]

First, I thank the Minister for his kind words about my signing all the amendments in this group with the exception of Amendment 41, which I did not sign not because I disagreed with it—I think that it is absolutely excellent—but because other noble Lords put their names to it ahead of me and the list was full when I asked whether I could add mine.

I start with a general point, which I cannot resist making. I first went to see the Public Bill Office after Second Reading last July and asked its advice on whether there was any possibility of including a clause on standard packaging for tobacco products as a child protection measure in the Bill. I never dreamt that by Third Reading the Bill would contain such a range of powerful tobacco control measures, especially in view of the fact that there was no reference to a single one when the Bill came to us from another place.

I particularly thank the noble Baronesses, Lady Finlay of Llandaff and Lady Tyler of Enfield, and the noble Lord, Lord McColl, for agreeing to sign our original cross-party amendments on standard packaging. I commend the noble Lord, Lord Ribeiro, for persisting with his campaign to ban smoking in cars when children are present, and my right honourable friend Andy Burnham and my noble friend Lord Hunt of Kings Heath for their support on all these issues. I particularly thank the Health Minister, the noble Earl, Lord Howe, whose courtesy, willingness to listen and determination to get the policy right nobody in this House could possibly fault. I also mention in dispatches the noble Lord, Lord Taylor of Holbeach. As the Minister said, he indicated on the second day of the Report stage of the Anti-social Behaviour, Crime and Policing Bill, as recently as 14 January, that he had an open mind on proxy purchasing, although he was not as forthcoming as the Minister has been with his amendment today.

When the Government come to implement the policy on proxy purchasing, I wonder if they would like to look at one element of the experience in Scotland. When Scotland introduced a law on proxy purchasing in October 2011, it brought in a retailer registration scheme at the same time. This is a low-cost licensing scheme that operates in conjunction with fixed penalty notices and gives the courts the ability to impose banning orders. It requires all tobacco retailers to be registered on one national register in order to sell tobacco. The costs to the industry of the scheme are minimal and are limited really to the one-off labour cost needed to fill out the form. Costs to the Government include the initial set-up costs of advertising and marketing to give retailers information about the need to comply with the scheme and the process to be undertaken, and the cost of a database to hold national-level information on retailers. Such a scheme would give local enforcement agencies a very valuable weapon in tackling illicit trade and in enforcing other tobacco control regulations—for example, the ban on sales to minors. It would also help to protect the great majority of honest retailers from unfair competition from the unscrupulous minority who are prepared to deal in illicit products.

Finally, I go back to the speech from the noble Lord, Lord Taylor of Holbeach, on the anti-social behaviour Bill and commend one sentence in it that I have not heard from any Minister before. He said:

“The Government are determined … to stamp out smoking as a habit, particularly among young people, so they are being proactive”.—[Official Report, 14/1/14; col. 141.]

Indeed they are and the amendments before us today are proof of that. They are an indication of just how far we have come and noble Lords in all parts of the House deserve great credit for the contribution that they have made to public health by adding these vital tobacco control amendments to this Bill.

[Baroness Tyler of Enfield (LD)]

My Lords, I, too, would like to say a few words about Amendment 41. I also was one of those disappointed to get there too late to add my name to it. I thank the Minister for listening and for everything that he has done to get us to the position we are now in. The amendment he has brought forward with other noble Lords is laudable, and it is right that we are working hard to make sure that it is legally workable. I pay tribute to him for that.

I have a couple of other comments. I, too, am so pleased that this is part of a comprehensive package of tobacco control measures—something to try to prevent young people picking up that nicotine addiction that too often leads to dependency early in life. This is a landmark set of measures, both for child protection and for the public health of young people. I thank everyone who has been involved in that. It also demonstrates what we can do in your Lordships’ House when we work in a non-partisan way. The discussions and the debates that we have had across the House and across Benches have brought home to me how good it can be that we can work in this way.

Finally, on enforcement and workability—I made this point on Report—I am very pleased that there will be opportunities for both Houses to discuss methods of implementation, provided we get to that stage. There are many people who have a lot of expertise to bring to bear. Only this morning, I was looking at a Canadian Cancer Society review from this year which listed the countries which already have bans of this type in place. It includes Canadian provinces, Australian states, six of the US states, Mauritius, South America, Bahrain and Puerto Rico. I say that to emphasise that it can be done. It is being done in other parts of the world. Of course, they all have their own ways of doing things. I suspect that none of them will be directly comparable, but it clearly can be done. The fact that there is so much experience elsewhere in the world is something that we should take account of when we have those follow-up discussions on implementation.

Children and Families Bill

Debate between Baroness Tyler of Enfield and Lord Faulkner of Worcester

Wednesday 29th January 2014 Lords Chamber

[Lord Faulkner of Worcester]

I added my name to Amendments 57BB, 60 and 62 and will speak briefly to those, but I start by congratulating the noble Earl on bringing forward his Amendment 57B and for overseeing a significant change in government policy on the subject of standard packaging. Like many of your Lordships, I was heartened when I heard the then Public Health Minister, Anna Soubry, around a year ago saying that the Government were minded to go down the standard packs route and then bitterly disappointed last summer when the plans were suddenly dropped. Various conspiracy theories were propounded at the time and I will not go into those now, but it looked as if the issue was dead, at least for the foreseeable future.

At that point, it seemed sensible to look at whether there was any possibility of adding a standard packaging amendment to another Bill, which might not immediately present itself as the most appropriate, in order to be able to give the House the opportunity to debate the issue and come to a view on it. With the help of staff in the Public Bill Office—about whom I cannot speak highly enough, as their help was invaluable in framing our original amendment in Committee and the subsequent amendment that we tabled for today—we were able to bring the issue to the Committee and approach the issue in an entirely cross-party and non-party way. The amendment that we put together was signed by the noble Baronesses, Lady Finlay and Lady Tyler, the noble Lord, Lord McColl, and myself.

Amendment 60 is an improved version of what we had in Committee, but the Government’s amendment today is a great improvement on that as well. I congratulate them on picking up a number of the points that were defective in ours and coming forward with one that, I think, is very effective. Tobacco control should not be a party-political matter; it should be the common concern of everyone who cares about the health and the well-being of the public. As we have heard from the Minister, smoking-related disease still kills more than 100,000 people across the UK and is by far the most common form of preventable death—it accounts for more premature deaths than the next six most common causes put together.

As most smokers start as teenagers, the teenage market is the one which the tobacco companies are anxious to promote, which it is the responsibility of all of us to try to prevent. Two-thirds of existing smokers report that they started before their 18th birthday, and around two in five before they were 16. The younger the age at which they start, the greater the harm is likely to be, because the early uptake of the habit is associated with subsequent heavier smoking—of the sort that the noble Lord, Lord Forsyth, experienced with his mother and her 60-a-day habit—high levels of dependency, a lower chance of quitting and a higher chance of death from smoking-related disease.

For the tobacco industry to keep its market, it is necessary for it to recruit new smokers every year. That is because older smokers die or quit—or indeed lose their lives prematurely as a result of their habit. Since most smokers start when they are young, it follows that, for the industry, young people are the most important target group of potential new consumers.

We know what the tobacco industry would do in this country to promote its products if the law and the authorities allowed. Indeed, we probably know more about the commercial strategies of the tobacco industry than about any other major industry in the world, in large part because so many previously confidential documents were made public as a result of the US master settlement agreement with the industry in 1998.

Given the restrictive legislation around marketing and advertising tobacco in the UK, the industry is left with few options to promote its products. Of these, the most important is now packaging. Packs can be used to market and advertise, to create brand identities and to help present an image of smoking that may indeed seem “cool” to a curious teenager. There are many diversionary arguments advanced by the tobacco industry and the front groups it funds so lavishly about why we should not proceed with standardised packaging. So we hear tobacco industry claims that the UK is being flooded with illicit tobacco and that standard packs will make the problem worse. But the level of illicit trade has fallen sharply since it peaked back in 2000, and the security features on existing packs will also be present on standard ones. Both our amendment and the Government’s would allow the Secretary of State to specify packaging requirements that would enhance and not reduce product security, and make smuggling and counterfeiting more difficult.

However, the tobacco industry’s real, core argument is quite simple. It is advancing the proposition that its claimed so-called “intellectual property rights” trump the requirements of public health—or to put it more sharply, that its right to design products designed to get children addicted is more important than the children’s right to be protected from that addiction and the health damage that it causes. I believe that the overwhelming majority of your Lordships, and indeed Members of the other place, reject the tobacco industry’s arguments and want to make cigarettes as unattractive to children and young people as possible. So, as I said at the beginning, I warmly welcome the Government’s amendment. I congratulate the Minister on bringing it forward and on his announcement regarding proxy purchasing of tobacco products by adults for young people, and the regulation of e-cigarettes, about which we shall hear more at Third Reading.

I am not going to speak about smoking in cars because the speeches on that subject by the noble Lord, Lord Ribeiro—with whom I agree, and whom I congratulate on his perseverance in taking a Private Member’s Bill through your Lordships’ House on this subject—and the noble Baroness, Lady Finlay, have covered the main points. However, I strongly commend the points that my noble friend Lord Hunt made about the desirability of moving towards a smoke-free atmosphere in cars where children are trapped and subject to appalling levels of second-hand smoke.

I am very happy indeed to support the government amendment. We shall not be pressing our own amendment on standard packaging, but I shall be supporting my noble friend.

[Baroness Tyler of Enfield (LD)]

My Lords, my name is also attached to Amendments 60 and 62. I will speak briefly to them and try not to repeat some of the arguments we have already heard. I will also say how much I welcome government Amendment 57B. In Grand Committee, the strength of feeling across your Lordships’ House on the issue of standardised packaging of cigarettes was crystal clear, and the Government are to be strongly applauded for responding with their own amendment, which is very well founded and very persuasive. I, too, look forward to Third Reading, when the Government will introduce additional measures around proxy purchasing and e-cigarettes.

At the beginning of these debates, some noble Lords raised questions about the logic of including an amendment on the packaging of cigarettes in a Bill whose stated remit is children and families. To my mind, the relevance is unequivocal—this is the very nub of the issue, which is why we are discussing it today. Preventing the uptake of smoking among the young is primarily an issue of child protection. As we have already heard today, each year around 200,000 under-16s take up smoking. For some, it is the start of a lifetime of addiction which will result in debilitating health conditions and, for some in turn, premature mortality. As the noble Baroness, Lady Finlay, pointed out, many of those children will come from particularly deprived backgrounds. We have already heard about children in care and I would draw your Lordships’ attention to teenage mothers, who, according to an ONS survey, are six times more likely than the average mother to smoke throughout their pregnancy, to the detriment of both their own and their baby’s health.

Standardised packaging, bearing clear anti-smoking messages, is the first key step to reducing the attractiveness of this lethal habit to children and young people. As we have just heard from the noble Lord, Lord Faulkner, we should be absolutely clear that tobacco packaging and branding is not innocuous. It is undoubtedly, at the moment, targeted at the young—the industry documents released in the USA about this were very telling indeed, although I do not intend to repeat the details of that. Equally critically, the weight of evidence is mounting that standardised packaging does work to reduce the incidence of smoking. I was very persuaded by the Department of Health’s systematic literature review, which found that, compared to current cigarette packs, standardised packs are less attractive to young people, improve the effectiveness of health warnings and reduce the mistaken belief that some brands are safer than others. I eagerly look forward to the outcome of the review by Sir Cyril Chantler, who will look at all of this in the round. I will be very surprised if he does not come out supporting the various literature reviews that we have already seen.

Very recently, thanks to the noble Lord, Lord Faulkner, I had the privilege of meeting with Nicola Roxon, the former Australian Minister for Health who was instrumental in the implementation of standardised packaging there. I was very impressed as she explained to us the impact that standardised packaging was having as part of—this is absolutely critical—a wider anti-smoking strategy in no longer portraying smoking as cool and glamorous or cigarettes as a “must have” accessory, but instead portraying a much less desirable, and far more truthful, image.

It is revealing that hard data are already coming from Australia—something that I am sure Sir Cyril will want to look at. A study in Victoria, Australia, published in the British Medical Journal, concluded that when consuming cigarettes from the new packs, smokers are 66% more likely to think their cigarettes were of poorer quality, 70% more likely to say they found them less satisfying and 81% more likely to have thought about quitting at least once a day. Why is that? Because standardised packs carry powerful health messages that expose the reality of smoking. Frankly, having seen some of the images, it would take a very strong stomach or tightly closed eyes to be unaffected by them.