Children and Families Bill

Lord Faulkner of Worcester Excerpts

Wednesday 29th January 2014 Lords Chamber

[Baroness Finlay of Llandaff]

It is worth pointing out that the noble Lord, Lord Ribeiro, has already indicated that he will not press his amendment, which is quite specific, and the amendment in the name of the noble Lord, Lord Hunt, simply addresses the ability to bring forward regulation but does not specify what those regulations should be. I respectfully suggest to the noble Lord, Lord Cormack, that his question is an important one for us to have at a later stage, in the event that the House decides to support the amendment of the noble Lord, Lord Hunt.

My last point relates to my home country of Wales, where I am delighted that the problem of tobacco consumption has been taken seriously. The results of the Welsh campaign will be published fairly soon. But it is with regret that I have to note that at the end of the first year of the campaign, 22% of smokers still pointed out that smoking was allowed in their car at any time. There is a perception that if it is allowed it is okay. I am concerned over the results that will come forward from the education campaign, although I fully support the campaign itself.

I remind the House that we had a parallel debate over seat belts in cars. Yet the seat-belt wearing rate increased in the UK from 25% before legislation to 91% after legislation. That was introduced alongside awareness campaigns. We cannot have legislation without a large education and awareness-raising campaign. The efficacy relates to the education and awareness-raising campaign rather than to any kind of punitive measures that go alongside it.

[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.

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[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 Howarth of Breckland]

My Lords, I would like to ask a short question.

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[Earl Howe]

My Lords, the police obviously have public order responsibilities, which they can enforce—but not public health responsibilities, which is rather a different issue.

[Lord Faulkner of Worcester]

With the growing number of jurisdictions now adopting measures of the sort that are proposed in the amendment, will the Minister at least give an assurance that the department will look at the experience in countries where smoking in cars when children are present has been banned and look particularly at the way in which it is being enforced there, and by whom?