Children and Families Bill

Lord Naseby Excerpts

Wednesday 29th January 2014 Lords Chamber

[Viscount Simon (Lab)]

My Lords, the greater majority of people live in smoke-free homes, not because of the law, but because it is no longer acceptable to smoke in the home of a non-smoker. Equally, most smokers no longer allow smoking in their cars when children are present.

It is absolutely correct to protect children from second-hand smoke, but it is wrong to think that it is children who are most at risk from its catastrophic consequences. While it is estimated that there are 1 million children with asthma, adults with asthma outnumber them by four to one—and I am one of them. While open windows in cars have been mentioned by a couple of noble Lords, I would have an asthma attack on the motorway with my windows closed if there was someone smoking a cigar at some time somewhere ahead. Also, the greatest risk from second-hand smoke is to those with a pre-existing heart condition.

The objective of Amendment 57BB, therefore, must not be simply to protect children but rather to further change public attitudes and behaviour so that people no longer smoke in cars carrying any passenger. Just as the law focused on workplaces had a great effect on smoking at home, it is hoped that this amendment will reduce the harm caused to non-smokers of all ages.

As it is the noble Earl’s birthday today, I hope he will accept this amendment.

[Lord Naseby (Con)]

My Lords, I want to make it clear that I have no interest to declare on this Bill. I have never smoked and I have no investments in any tobacco company. However, it remains a fact that 20% of our nation smokes. That 20% expects someone at least to speak up for the implications for it of any legislation that we in Parliament propose.

Perhaps surprisingly, the first dimension of the amendment that I draw to the House’s attention is a constitutional one. I think many noble Lords will know that in another place I was Chairman of Ways and Means, and there one had to be very careful about constitutional innovations—I shall put it like that. This amendment is a constitutional innovation. Leaving aside the detail about the standard packaging for a moment, the broad framework of the amendment defines what the regulation is to be and says that the Secretary of State, not Parliament down at the other end, may make those regulations. We need to be quite clear about this. The amendment goes on to say, in new subsection (12):

“The Secretary of State must”—

not “may”—

“obtain the consent of the Scottish Ministers … the consent of the Welsh Ministers”,

and,

“the consent of the Office of the First Minister … in Northern Ireland”.

What it does not say is that the regulation needs to receive the consent of the House of Commons in the United Kingdom. Noble Lords may be very comfortable with that in relation to standard packaging, but I wonder whether they would be equally comfortable if it directly involved other packaged goods industries. One has in mind the sugar industry, the alcohol industry and the fizzy drinks industry, and there must be myriad others that interest groups outside would lobby to have contained or indeed restricted. I just put that on the record because it is a novel dimension to our constitution that I would like to have studied in a little more detail rather than have it sneaked in, if I may put it that way, in this Bill.

[The Countess of Mar (CB)]

Does the noble Lord realise that if the Secretary of State makes regulations, they will have to be done by statutory instrument? Statutory instruments are either affirmative or negative. In the case of a negative instrument we can pray against it, and in the case of an affirmative one we can debate it. Both Houses will have the opportunity to consider them.

[Lord Naseby]

While it is true that there is an opportunity to debate a statutory instrument after the Statutory Instruments Committee has looked at it and decided that it wishes to do so, nevertheless—

[The Countess of Mar]

My Lords—

[Lord Naseby]

Let me just finish. Your Lordships know full well that there is absolutely no way that we may amend any statutory instrument; we either take it as it comes or we reject it. I am just pointing out that this is a change to the procedures of this House that we have had hereto. The noble Countess may disagree with me—it happens quite often in law that people disagree—but I have had advice. Perhaps she also had advice on her intervention. I leave that aspect; it is on the record now.

I turn specifically to the amendment and its contents. There are three aspects of it that I draw to the House’s attention. First is the matter of intellectual property rights. Such rights are a key dimension to any industry, particularly in the packaged goods world, where I had the privilege to work for some 20 years. Those rights are something that most of those industries have had for centuries. They distinguish between one product and another from a competitor; importantly, they produce a quality assurance for those who buy the product; and they provide for the businesses to have valuable assets that they can produce innovations from and so create competition. Those are assets to those companies that should not lightly be cast aside. There may be particular reasons why some of them should be confined at certain times in certain circumstances, but personally I think that society needs to tread very carefully.

In relation to this amendment, there is the legal situation. I am not a lawyer, but I have had a look and sought advice on the exact legal situation as matters stand at the moment. As I understand it, there are four constraints on Her Majesty’s Government. When my noble friend winds up, I hope he will be able to reassure me that all these issues have been dealt with. Otherwise, the Government will have to deal with them before this part of the Bill becomes law.

The constraints are: first, Article 34 of TFEU covering the free movement of tobacco products; secondly, Article 13(1) of the tobacco products directive which affects the free movement of goods; thirdly, it would produce a disproportionate and unjustified interference with a company’s property rights, which are specifically protected in the UK by, surprisingly, the Human Rights Act 1998 and in the EU by the European Charter of Fundamental Rights and would cut across the UK’s obligations made under international law, several World Trade Organisation agreements, particularly the agreement on trade-related aspects of intellectual property rights, and other agreements. Finally, I understand that fewer than five countries are taking action against the EU in relation to what this amendment addresses. My first question to my noble friend is, am I right in what I have been advised is the situation? If I am right, what action are the Government taking successfully to overcome what I see as considerable hurdles ahead?

I am not going to go through the whole of standardised packaging because this is not the appropriate time to do that but, in the round, as far as I see it as a marketing man looking at the evidence, there is as yet no real hard evidence. There are lots of assumptions and attitudes from surveys, but there is no hard evidence that consumption of cigarettes will fall if we have standardised packaging. Consumption is already falling without standardised packaging, and I am sure it will continue to fall in future, but I do not see any hard evidence that that will come.

What I do see is that it will be very bad for CTNs—confectionary, tobacco and newspaper shops—of which there are well over 100,000 in the United Kingdom. About 20% to 25% of their business is dependent on tobacco products. It is exceedingly bad news for them. It is pretty bad news for the 60,000-odd people employed in the industry. It is exceedingly good news for the counterfeiters, and we see increasing evidence of the number of counterfeit products. It is no good the noble Lord shaking his head—these are facts. We have facts on the importation of counterfeit products.

[Lord Faulkner of Worcester]

The figures on counterfeiting reached a peak in 2000 and have been steadily falling year by year. If the noble Lord had listened to my remarks earlier, he would have heard that I said that there is no reason why standard packaging should not be at least as secure as existing branded packs.

[Baroness Northover]

My Lords, I remind noble Lords that we are on Report. Noble Lords have one opportunity to speak. They can intervene to ask a question to seek elucidation from somebody who is speaking. Providing that is what noble Lords do, those interventions are all right. They must seek clarification from, or ask a question of, the person who is speaking.

[Lord Naseby]

I reassure the House that I do not intend to speak for very much longer. I respond to the noble Lord opposite by pointing out that the latest figures for Australia indicate an increase of 13% following the introduction of standardised packaging for counterfeit and illegal cigarettes. Therefore the most current evidence—perhaps he can get up to date—is a little more relevant. To finish on standardised packaging, if 20% of our nation smokes legitimately, and we have a legitimate industry, do people not have a right to choose between one pack which they like the look of as opposed to another pack?

I will finish with Australia. I, too, welcome Sir Cyril Chantler as chairman. I also know him quite well and have known him for a very long time. He will already be able to see two results. One is that standardised packaging has done absolutely nothing to the prevalence of smoking in Australia, and the other, as I have just mentioned as evidence to the noble Lord opposite, is the worrying fact that the illegal market has increased by 13%, up to an all-time high in Australia of 13% of all consumption.

I draw the House’s attention to a book in the Library which refers to the situation in the United Kingdom during the war. It is called Black Market Britain, 1939-55, by Mark Roodhouse, and it features, among other evidence, what happened to the cigarette market during the time of the black market. I refer to that book because if we go down the route of standardised packaging, a black market will undoubtedly emerge.

I wish Sir Cyril well; we await his report with interest, and I am sure that it will be balanced and thorough. However, whatever that report produces, I ask that first, the Government will give adequate time to this House to have a short debate on it, and secondly, and perhaps more importantly, that the industry will have a reasonable amount of time—and by that I mean some weeks and not days—to look at the evidence that is provided by Sir Cyril and to put its view to the Secretary of State on its interpretation.

Finally, I will wind up on a couple of other questions, specifically on proposed subsection (4)(d) of Amendment 57B on,

“reducing the appeal or attractiveness of tobacco products”.

I submit that that has little to do with the packaging. Proposed subsection (8)(d), which refers to,

“the shape of such products”—

as opposed to the package—does not have anything to do with the packaging, and proposed subsection (8)(e) would even more insidiously apply to,

“the flavour of such products”.

Given that by nature all cigarettes are different, as tobacco is a vegetable product and they all taste different, I do not see how on earth the Secretary of State can intervene regarding the flavour of tobacco. I have already mentioned the contrast between the consent of Wales, Scotland and Northern Ireland and our own home Parliament.

[Baroness Howarth of Breckland]

My Lords, I apologise to the noble Baroness for intervening earlier. I wanted to ask a short and straightforward question of the Minister. Should the noble Earl’s amendment be accepted—I hope it is because I greet it hugely; noble Lords will know how much it means to me—can he tell us in his summing up what the timetable is likely to be as regards when the research would take place and how long it might take? If, when that was completed, the outcome was positive—I recognise that because it is research it could go either way—when would the Government be likely to bring in the legislation? I recognise that we are moving towards an election and I hope that the Minister would want to get this on the statute book before he might or might not leave office. We already have legislation on not displaying cigarettes, but I still go in to my local tobacconist and see displays of cigarettes, so I wonder what is happening about that.