Children and Families Bill

Earl Howe Excerpts

Wednesday 5th February 2014 Lords Chamber

Moved by

[Earl Howe]

35: After Clause 86, insert the following new Clause—
“Purchase of tobacco etc. on behalf of persons under 18
(1) A person aged 18 or over who buys or attempts to buy tobacco or cigarette papers on behalf of an individual aged under 18 commits an offence.
(2) Where a person is charged with an offence under this section it is a defence—
(a) that the person had no reason to suspect that the individual concerned was aged under 18, or(b) in a case where the person has bought or attempted to buy cigarette papers, that the person had no reason to suspect that the individual concerned intended to use the papers for smoking.(3) A person guilty of an offence under this section is liable on summary conviction to a fine not exceeding level 4 on the standard scale.
(4) A local weights and measures authority in England and Wales must enforce the provisions of this section in its area.
(5) Section 9 of, and Schedule 1 to, the Health Act 2006 (issue of fixed penalty notices in relation to certain smoking related offences) apply in relation to an offence under this section as they apply in relation to an offence under section 6(5) or 7(2) of that Act but with the following modifications—
(a) references to an enforcement authority are to be read as references to a local weights and measures authority;(b) references to an authorised officer of an enforcement authority are to be read as references to any person authorised by a local weights and measures authority (whether or not an officer of the authority) in writing, either generally or specially, to act in matters arising under this section.(6) Section 11 of, and Schedule 2 to, the Health Act 2006 (offence of obstruction of enforcement officers and powers of entry etc) apply for the purposes of this section as they apply for the purposes of Chapter 1 of Part 1 of that Act but with the following modifications—
(a) references to an enforcement authority are to be read as references to a local weights and measures authority;(b) references to an authorised officer of an enforcement authority are to be read as references to any person (whether or not an officer of the authority) authorised by a local weights and measures authority in writing, either generally or specially, to act in matters arising under this section; (c) references to Chapter 1 of Part 1 of the Act of 2006 are to be read as references to this section;(d) section 11(5) is to be ignored;(e) paragraph 10 of Schedule 2 is to be ignored.(7) “Tobacco” has the same meaning in this section as in section 7 of the Children and Young Persons Act 1933 (offence of selling tobacco to children).”

[The Parliamentary Under-Secretary of State, Department of Health (Earl Howe) (Con)]

My Lords, I shall speak also to Amendments 36 to 41 and 45.

I am very pleased to have tabled this package of government amendments aimed at protecting young people from tobacco and nicotine addiction, which seek to do four things. They would introduce a regulation-making power to prohibit the sale of nicotine products to persons under the age of 18; would create a new offence of the proxy purchasing of tobacco; would make a technical change to the standardised packaging amendments that were passed by your Lordships on Report; and would amend existing smoke-free legislation in the Health Act 2006 to deliver the regulation-making powers on smoking in cars carrying children, as was your Lordships’ wish on Report, but with a more workable legislative framework. The amendments come at a late stage in the passage of the Bill, for which I apologise.

I will deal first with the provisions on the age of sale of nicotine products. There has been widespread support for the introduction of an age-of-sale restriction from the public health community and from the electronic cigarette industry. Responsible manufacturers of e-cigarettes are clear that their products are intended for people over the age of 18. I wrote to all noble Lords on 27 January to explain the key elements of this proposed new clause. I will summarise the main provisions. They provide the Secretary of State with the power to make regulations to prohibit the sale of nicotine products to persons under the age of 18. At present there is no general legal restriction on people under the age of 18 buying nicotine products, including electronic cigarettes, which are also known as e-cigarettes. The regulations to be made under this power would be subject to the affirmative resolution procedure to ensure that Parliament has the opportunity to scrutinise how the regulations would operate in practice before they were made.

This measure does not capture tobacco products, which are already subject to law restricting their sale to persons aged 18 and over. The penalty for committing the offence of selling a nicotine product to a person under 18 years of age would be a fine not exceeding level 4 on the standard scale, which is currently £2,500. We also have very little evidence on, for example, the impact on children’s developing lungs of their use of products such as e-cigarettes. The public health community is concerned that nicotine products could act as a gateway into smoking tobacco, as well as undermining the Government’s efforts to reshape social norms around tobacco use. We need to remember that young people can rapidly develop nicotine dependence and that nicotine products deliver nicotine and cause addiction.

Attempts were made to include an age-of-sale provision applicable throughout the EU in the revised European tobacco products directive, but this was not achieved. We therefore want to do this domestically through this Bill. I hope noble Lords will understand why we are using the opportunity the Bill provides to take these additional steps. It is important that we act now to manage the risk of a gateway effect into tobacco use and the development of lifelong addictions to smoking.

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Finally, my noble friend Lord Faulkner talked about the Scottish licensing scheme. Would the Government, in taking forward regulations in this area, be prepared at least to look at the experience in Scotland, to see whether there are any lessons to be learnt from it?

[Earl Howe]

My Lords, I am grateful to noble Lords from all parts of the House for their support for the government amendments, and I thank all noble Lords who have been so energetic and assiduous in this area of policy for the action that they have taken, and the focus that they have afforded to Ministers to promote the health of young people under 18 in this respect. I completely concur with the noble Baroness, Lady Finlay, who told us how addictive nicotine is: tobacco use remains the single biggest preventable cause of death in England. We surely must do all we can to encourage communities to make tobacco less desirable and less accessible, if we are to stop the perpetuation of smoking from one generation to the next.

My noble friend Lord Ribeiro was right, too. The purpose of the amendments is to protect children and young people from the harms of tobacco use and a lifetime of nicotine addiction. I was intrigued and interested to hear from the noble Lord, Lord Faulkner, about the retailer registration scheme in Scotland, and I do indeed undertake to look at it.

The noble Baroness, Lady Howarth, asked me to be a little more precise about the timetable for implementation across the piece. As regards nicotine products, we have not taken a decision on timing. It will be partly dependent on the timetable for laying and making regulations, but the Government want to move as quickly as possible to get the provisions in place. As regards standardised packaging, the timetable will be wholly dependent on the decision the Government take once we have received Sir Cyril Chantler’s report, and we have not taken that decision yet. On proxy purchasing, we need to engage with stakeholders appropriately. It is very difficult for me to give the noble Baroness a timetable because there are technical issues to be looked at; indeed, we would want to examine the experience of Scotland. But we are clear that this is a measure that should be proceeded with.

On smoking in cars, I think my answer has to be: one step at a time. Questions of whether the Government would move forward with legislation or what the detail of the regulations would include are debates to be had at another time, once both Houses have expressed their will on the principle. It would be inappropriate for me to express firm views in advance of those discussions.

That leads me to the questions posed by the noble Lords, Lord Hunt and Lord Stoddart. The noble Lord, Lord Stoddart, asked about the definition of vehicles. The answer is that we have allowed ourselves the scope to define in regulations, should regulations be laid, what kinds of vehicles should be covered. The noble Lord, Lord Hunt, asked me to confirm that the police could be involved in the enforcement of this offence should it be created. I can confirm that the wording of the amendment that we are tabling today allows that scope but, as I have indicated, we need to engage with the police and other stakeholders to determine exactly how this would work.

Finally, the noble Lord, Lord Stoddart, posed the question that he has asked on a number of occasions as to why the Government do not simply make smoking itself illegal. My answer has to be that almost 20% of adults in England smoke and it would be difficult if not impossible to criminalise 7 million people at a stroke. We want above all to help current smokers to quit and to stop young people taking up smoking in the first place. We know that two-thirds of smokers want to quit but their addiction makes doing so very difficult. That is the approach we are taking.

[Lord Stoddart of Swindon]

The Minister says that he does not want to criminalise 7 million people, or 20% of the population. But of course that has been done before, as was pointed out by the noble Lord, Lord Ribeiro. The non-wearing of seat belts was made a criminal offence for between 25 million and 30 million people at the time that the legislation went through, which, incidentally, I supported. The excuse that there are too many people smoking who would be criminalised simply will not wash.

[Earl Howe]

I doubt that in the early 1980s we had a population that was addicted to not wearing seat belts.

[Noble Lords]

Oh!

[Lord Stoddart of Swindon]

I was in the House of Commons at that time, and I can assure the noble Earl that the number of complaints I had, from my own constituents and other people, about the compulsory wearing of seat belts was enormous. But I bravely resisted those complaints and spoke in favour of the then Government who brought the seat-belt legislation forward, and of course it was later extended to back-seat passengers as well.

[Earl Howe]

I am sure that noble Lords would love to continue this debate, and perhaps we could do so on another occasion. I am grateful to the noble Lord, Lord Stoddart, for reminding us of those debates.

We all agree, I am sure, that action we take now to stop young people taking up smoking will have a significant beneficial impact on public health in the long term, which was a point made by my noble friend Lord Ribeiro. It will help young people to live longer and healthier lives, and I say, “Hear, hear!” to that.

Amendment 35 agreed.

Moved by

[Earl Howe]

36: After Clause 86, insert the following new Clause—
“Prohibition of sale of nicotine products to persons under 18
(1) The Secretary of State may by regulations make provision prohibiting the sale of nicotine products to persons aged under 18.
(2) A person who breaches a prohibition in regulations under subsection (1) commits an offence.
(3) Subsection (2) does not apply if—
(a) at the time of the sale, the person to whom the nicotine product is sold is employed by a manufacturer of nicotine products to which regulations under subsection (1) apply or by a dealer in such products (whether wholesale or retail), and(b) the purchase of the product is for the purposes of the manufacturer’s or dealer’s business.(4) Where a person is charged with an offence under this section it is a defence that the person took all reasonable precautions and exercised all due diligence to avoid committing the offence.
(5) A person guilty of an offence under this section is liable on summary conviction to a fine not exceeding level 4 on the standard scale.
(6) The Secretary of State may by regulations—
(a) amend section (Purchase of tobacco etc. on behalf of persons under 18) (purchase of tobacco etc on behalf of persons under 18) so as to apply it (with or without modifications) in relation to nicotine products, or(b) provide for that section to apply (with or without modifications) in relation to nicotine products.(7) Regulations under this section may make provision in relation to—
(a) all nicotine products,(b) nicotine products of a specified kind, or(c) nicotine products subject to specified exceptions.(8) The Secretary of State must obtain the consent of the Welsh Ministers before making regulations under this section which would (if contained in an Act of the National Assembly for Wales) be within the legislative competence of that Assembly.
(9) For the purposes of this section “nicotine product” means—
(a) a device which is intended to enable nicotine to be consumed by an individual or otherwise to be delivered into the human body,(b) an item which is intended to form part of a device within paragraph (a), or(c) a substance or item which consists of or contains nicotine and which is intended for human consumption or otherwise to be delivered into the human body.(10) It does not matter for the purposes of subsection (9)(a) whether the device is also intended to enable any other substance to be consumed by an individual or otherwise to be delivered into the human body.
(11) The following are not nicotine products for the purposes of this section—
(a) tobacco;(b) cigarette papers;(c) any device which is intended to be used for the consumption of lit tobacco.(12) In this section—
“specified” means specified in regulations under this section;
“tobacco” has the same meaning as in section 7 of the Children and Young Persons Act 1933 (offence of selling tobacco to children).”

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Moved by

[Earl Howe]

38: Clause 87, page 63, line 1, after first “regulations” insert “—
(a) ”

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Moved by

[Earl Howe]

45: Clause 126, page 134, line 24, at end insert—
“(ca) regulations under section “(Prohibition of sale of nicotine products to persons under 18) or (Amendments consequential on section (Prohibition of sale of nicotine products to persons under 18)),”