Tobacco and Vapes Bill

Lord Dodds of Duncairn Excerpts

Report stage
Tuesday 3rd March 2026 Lords Chamber

I am in no doubt that my noble friend the Minister will allay the concerns of the noble Baroness, Lady Hoey, and the noble Lord, Lord Dodds, on this issue. If we had not had Brexit, we would not have been confronted with this issue. Be careful what you argue for, because you could end up with something that you might not be terribly happy with. I believe that the Windsor Framework is necessary to address movement of goods and a hard border. I do not want to see a hard border on the island of Ireland. This Bill and the provisions contained therein will allow the movement of goods in an unfettered state.

[Lord Dodds of Duncairn (DUP)]

My Lords, I am grateful to follow the noble Baroness, Lady Ritchie, but say gently to her that Brexit has allowed the UK Government to pursue this legislation. As we have seen in the cases of Denmark and the Irish Republic, both Governments, whatever they might decide to do in the future, are deciding now that they are unable to proceed with this type of legislation because of the tobacco directive. The noble Baroness needs to be careful of the actuality and the legal position that prevails.

Noble Lords who are in favour of this intergenerational ban and are confident that the Windsor Framework does not provide any legal impediment should have no difficulty with these amendments. Amendment 201 in my name and that of the noble Baroness, Lady Hoey, makes it explicit that Section 7A of the European Union (Withdrawal) Act 2018 provides that European Union law is supreme in Northern Ireland. It is a conduit for the implementation of the Windsor Framework protocol. It says that if there is any doubt, the courts must say that UK law will be operative and cannot be set aside by any consideration of Section 7A. There should be no concern that these amendments are trying to impede the implementation of the inter- generational ban. They are trying to ensure that it will happen, despite the Windsor Framework.

I heard the noble Lord, Lord Forbes of Newcastle, talk about the legal opinion of the Tobacco Manufacturers’ Association. I have no doubt that it has produced a legal opinion, but many others have as well. The courts in Northern Ireland have ruled on this as well. We need to be clear that those of us who are concerned about this issue are looking at it from the point of view of ensuring that Northern Ireland does not lose out and that we are not prevented from benefiting from what should be a UK-wide, four-nations approach.

The former Attorney-General of Northern Ireland, John Larkin KC, has said that the Tobacco and Vapes 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 Windsor Framework … Parliament is simply not free to legislate effectively in those policy areas in which EU law still prevails through the Windsor Framework in Northern Ireland”.

We can look at other examples. On legacy legislation, the courts of Northern Ireland have said that Section 7A of the European Union (Withdrawal) Act means that an Act of Parliament is not just incompatible with the European Convention on Human Rights and therefore needs to be rectified but is actually disapplied and made of nil effect, because of Section 7A and the fact that European law overrides. We have seen it also in the case of migration law.

This is not some kind of novel concept, subtly dreamt up by a few people in the interests of the tobacco industry; this is a real concern about the application of European Union law—in this case, the tobacco directive—that has the potential and almost certainly the effect of disapplying this law for Northern Ireland. Anyone who is concerned about reducing smoking and the effects of smoking in Northern Ireland, where over 2,000 people die every year from illnesses associated with smoking, should be concerned about this issue and should want to do something about it.

The Government are relying on assertion. They keep asserting that this will apply throughout the United Kingdom. We have heard other speakers in this debate just provide assertions but ignore the clear approach that the courts in Northern Ireland have taken on these matters. Why do the Government not publish their advice, as the noble Baroness, Lady Hoey, said? They have published advice in other areas recently, so why do they not publish the advice and let us know what the particular argument is that says, in this particular instance of the tobacco directive, this will not apply in Northern Ireland? There is no logic; there is no analysis by any lawyer that I know of who has looked at this matter and who has dealt with the other cases that have come before the courts of Northern Ireland, and who believes that is the case. So why will the advice not be published?

We are told that this is just a normal age of sale restriction. The fact of the matter, of course, is that it is not just a normal age of sale restriction and therefore exempt; it is a rolling ban, and that cannot be got round. That is why the Irish Republic and Denmark took the position that they did, after getting very serious legal advice from those European Union law experts within their own Governments and the European Commission.

I say very respectfully to noble Lords who have spoken: do not rely on assertions. Do not rely on a view that this will be all right on the night and that there will not be any challenge. The fact of the matter is these things will be challenged. We are trying to build a protection into this Bill that will ensure that Northern Ireland benefits, along with the rest of the United Kingdom, in moving forward with this inter- generational ban. That is entirely reasonable. It is entirely sensible. Why not take the opportunity to ensure that guarantee is in place?

[Baroness Fox of Buckley (Non-Afl)]

My Lords, following on from that very useful contribution from the noble Lord, Lord Dodds, it goes without saying that the amendments in this group on the tensions between the Bill and the Windsor Framework are crucial. I want to commend the noble Baroness, Lady Hoey, for leading on this issue, because she has brought to light something that we need to understand.

It gets to a general concern about the Bill that I have, which is a worry about its workability—legally and when it comes into contact with reality—because I fear a rude awakening. A part of that will be the unintended consequences of the Bill, which a lot of us have tried to draw attention to in Committee and so on. That is why I have added my name to Amendment 206, which calls for periodic reviews of the Act in terms of its operation as well as its effects. I have also tabled my own amendments on the impact of the Act on domestic production and supply chains, which I will discuss later.

Just before I explain why, I am of course glad to see that the Government also recognise the need for a review, and that is very positive. With all due respect to the Minister, I am afraid that Amendment 205 is just not extensive enough. I was particularly disappointed that the consultation is limited to the Welsh Ministers, the Scottish Ministers and the Department of Health in Northern Ireland—what about all those other stakeholders who would be affected and what about the research? I would really urge the noble Baroness, Lady Merron, to incorporate parts of my own amendment and that of the noble Lords, Lord Lansley and Lord Norton of Louth, into her amendment to make it have some substance and not just be written down for the sake of it.

Amendment 206 gives a concrete shape to what should be reviewed. I appreciate its focus on independently conducted research, particularly now that there have been complaints that, “You cannot trust that research because it is by the Tobacco Manufacturers’ Association”. I have similar views when I read research by ASH. The noble Lord who cited it, as though he was a kind of neutral observer, is part of another lobbying group. I would rather have neither as my trustworthy go-to. But I feel that quite a lot of important information is missed if we do not have research, so that is why I like it.

I felt frustrated during our deliberations in Committee that so much information had been overlooked. For example, many neutral academics who have researched the health impacts of vaping, in particular its efficacy in helping people quit smoking and the epidemiology of vaping versus smoking, had been overlooked by the Government. These would be invaluable sources and insights had they been consulted.

In Committee, I also suggested that the Government should look at research coming out of assessing the impact of the single-use vape ban that came into force last June. My amendment was rejected, but, interestingly, early evidence and research, as well as market indicators, show that the majority of adult vapers have transitioned to compliant reusable products. I did not think they would, but they have. That is interesting, because it goes against what I intuitively thought.

However, recent evidence shows that 9% of daily vapers admit purchasing illegal single-use vapes and, more worrying, 15% of former single-use vapers report that they have returned to smoking and/or increased their tobacco use. This sort of research and information is important for us to understand why we need careful monitoring, and with this Bill, we are going to need a lot of careful monitoring.

That is why I commend the amendment from the noble Lord, Lord Lansley, which asks all the right questions to review evidence to discover whether the Act will actually reduce rates of smoking. Will it reduce rates of vaping among young people and children? Will the legislation reduce the use of vaping products for adults? That is not a good outcome, but will that be what happens? What will the economic impact of the law change be on small and micro-businesses? That is something I am really worried about in terms of family-run convenience stores and so on.

The amendment also usefully differentiates between tobacco, nicotine and vape use, which are too frequently in discussions elided without distinction. The suggestion of assessing

“the behavioural responses to the regulatory regimes introduced under this Act”

is key, as the Bill makes a number of suppositions based on the idea that everything in this Bill will have a certain impact on the behaviour of consumers, retailers and other parties. But as this is a novel policy that nobody else has done before, there is no evidence from anywhere else in the world that it will work. We are yet to see whether behaviour will change in the way the Government allege and the supporters of this Bill imagine, so the review will check reality.

My Amendment 207 is more focused on an aspect of the Bill’s impact that we have not really talked about before now. It seeks a structured parliamentary scrutiny of the Act’s practical effects on domestic production, supply chains and market behaviour and enforcement in relation to nicotine products. There is a whole new industry that has grown up domestically around nicotine products, and it is going to be hit by the Bill.

The Bill represents a significant regulatory intervention in a rapidly evolving market. Regulator interventions on this scale can produce structural consequences beyond their primary intent. Often, when Bills are passed, we see problematic effects afterwards, such as compliance costs altering competitive balance, enforcement capacity not being aligned with legislative ambition, lawful operators facing disproportionate burdens and illicit, dodgy suppliers adapting more quickly outside the law than lawful businesses striving and straining to comply with law changes. One area of concern is whether the relatively new, innovative, domestic industry associated with nicotine products will be strangled almost before it gets off the ground.