Children and Families Bill

Lord Hunt of Kings Heath Excerpts

Wednesday 29th January 2014 Lords Chamber

Moved by

[Lord Hunt of Kings Heath]

57BA: Before Clause 80, line 3, leave out “may” and insert “must”

[Lord Hunt of Kings Heath (Lab)]

My Lords, I shall speak also to my Amendments 61 and 57BB. I very much welcome Her Majesty’s Government’s change of heart as far as standardised packaging is concerned, and I certainly welcome the appointment of Sir Cyril Chantler to review the evidence. Sir Cyril is known to many of your Lordships and has made a significant contribution to the NHS. We can have complete confidence in his work.

My two amendments are designed to press the noble Earl on the comments he made in his final remarks and to encourage him to give the House an absolute assurance that should Sir Cyril Chantler conclude that the evidence is clear that standardised packaging is effective in reducing the risk of harm to children, the Government will speedily move to lay the regulations specified in his Amendment 57B. The noble Earl will know that at the moment line 3 of his amendment merely says,

“The Secretary of State may make regulations”.

I would have preferred to see the word “must”. To an extent, the noble Earl has already explained why it is to be “may”, but are there any circumstances where, on the assumption that Sir Cyril has concluded positively, the Government would not proceed to legislate?

Amendment 57BB concerns the proposal that it be an offence for any person who drives a vehicle to fail to prevent smoking in the vehicle where a child or children are present. I do this on the basis that the past 15 years have seen an impressive reduction in the amount of smoking in this country. Indeed, since the previous Government’s 1998 Smoking Kills action plan, smoking rates among children, who are, of course, the focus of this Bill, have fallen by more than half following a period of little progress lasting 20 years. I have little doubt that the ban on advertising was pivotal, but the fall was also due to a series of other concerned measures which included an increase in the age of sale, picture warnings on packs and an above-inflation increase in tobacco duty to reduce affordability.

I believe that we should continue the momentum and protect future generations from the dangers of smoking. That is why I welcome the Government’s agreement to legislate on standardised packages and the proposals that the Minister has outlined today in relation to proxy purchasing and the restriction of the sale of e-cigarettes to under 18 year-olds. However, the Government could do more by accepting my amendments and support the principle of a ban on the use of cigarettes when children are present in cars.

Children’s lungs are smaller and they have faster breathing rates, which makes them particularly vulnerable to second-hand smoke, especially within the close confines of a car. Members of the public are protected by smoke-free legislation when in public transport and work vehicles. However, large numbers of children remain exposed to high concentrations of second-hand smoke when confined in family cars. Indeed, around one child in five reports being regularly exposed to second-hand smoke in cars, with catastrophic health consequences. Figures released by the British Lung Foundation show that around 185,000 children between the ages of 11 and 15 in England are exposed to potentially toxic concentrations of second-hand smoke in their family car every day or on most days.

We know that children exposed to second-hand smoke have a raised risk of lower respiratory infections, wheeze, asthma, middle ear infections and meningitis. Every year, exposure to second-hand smoke leads to an estimated 165,000 additional cases of these conditions among children. Many of those cases are serious, leading to an estimated 8,500 hospital admissions.

I was very surprised by research identified by the British Lung Foundation, which shows that a single cigarette smoked in a moving car with the window half open exposes a child in the centre of the back seat to around two-thirds as much second-hand smoke as in an average smoke-filled pub of days gone by. Levels increase to 11 times those of a smoky pub when the cigarette is smoked in a stationary car with the windows closed.

Some noble Lords will argue—as I heard the FOREST spokesman arguing this morning—that a car is a private space and that we should not legislate for what happens in such a space. However, there are more important principles than that, one of which is the need for child protection. Unlike most adults, children lack the freedom to decide when and how to travel, and they lack the authority most adults have to ask people not to smoke in their company. In those circumstances it is right for Parliament to step in to protect children.

I know that the Government argue that the most effective way to reduce smoking in cars carrying children is not through legislation. In his letter to us the noble Earl talked of two successful campaigns aimed at encouraging people to change their behaviour, and said that the evaluations are encouraging. From what I see—and they do not appear to be very robust evaluations—I am not aware that the scientific evidence of behavioural change has been published. Can he give an assurance that the evaluations spanned several months and not just immediately after the campaign? Can he also confirm that they took into account what was reported by children and not just adults? There is sometimes a discrepancy between what adults say they do and their behaviour as reported by children. Can he also confirm that the research includes actual measurement of behavioural change? I do not believe that marketing measures such as website visits effectively demonstrate behaviour change. Can the noble Earl also say why, if the Government are so keen on evaluation, Ministers forced NICE to abandon a project to give public health guidance for commissioners and providers on the development and implementation of policies on smoke-free homes, private cars and other vehicles?

The noble Earl will argue that this is best done through education. I understand that argument and I certainly accept that education programmes can achieve much. However, my contention is that we are now close to—

[Lord Stoddart of Swindon (Ind Lab)]

I have listened to the noble Lord very carefully and I cannot understand—perhaps he can explain it to me—why on earth he has joined the question of plain packaging with smoking in cars. They are two completely different issues. Is it expected that those of us who are concerned with both amendments now have to speak in one debate rather than two, on two particularly difficult and important matters?

[Lord Hunt of Kings Heath]

My Lords, a number of amendments have been grouped together. Some deal with standardised packaging, others with the issue of smoking in cars. My answer to the noble Lord is that we will deal with both issues in one debate. The House always has to trade off having separate debates on individual amendments or pulling them together. I, for one, think it is better that we have a wider debate; but of course the noble Lord is entitled to speak on both issues. I hope that he will do so because he always has interesting insights—although I do not always agree with him on this particular one.

In finishing, I want to come back—and anticipating the noble Earl’s response—to the issues around awareness campaigns. As I said, of course they can achieve much, but sometimes legislation also needs to be brought into the picture.

[Lord Forsyth of Drumlean (Con)]

The noble Lord said earlier in his speech that the principle of not legislating into private space and private family activity was one that should be breached on certain occasions. Could he explain why he is stopping at cars and not at living rooms in small flats, for example?

[Lord Hunt of Kings Heath]

My Lords, they are two different issues. I certainly do not propose that we legislate in relation to people’s homes. The differences lie, first, in the scale of the health issue. As I have already indicated, the amount of second-hand smoke that a young person is likely to inhale in a car generally will be very much higher than in a person’s home. Secondly, by and large there are usually rooms in a person’s home that are not used for smoking, so there is more of an element of choice. I accept that this is a continuum, but I assure the noble Lord that it is not my intention to propose a ban on smoking in people’s homes. There are specific circumstances that make the banning of smoking in cars while children are present a particular health issue.

[Lord Cormack (Con)]

I am grateful to the noble Lord. Surely, my noble friend Lord Forsyth highlighted a very important point. He talked about small flats; there are small flats where there may be several children and only one living room. What is the logic of the noble Lord’s argument in that case? Personally, I do not think we should invade private space; that is my position and I may seek to defend it later. There is no logical difference between a single child in a car and four children in the living room of a small flat.

[Lord Hunt of Kings Heath]

My Lords, I do not accept that. Clearly, in relation to a child travelling in a car we are going to debate where the balance lies: whether a car should be regarded as a private entity in which the state ought not to intervene, or whether noble Lords consider that a child’s health becomes the paramount concern.

A private car is rather different from a home; the health damage to a young person inhaling smoke in a car generally will be much greater than in a person’s home. I do not want to repeat the point that I have already made to the noble Lord, Lord Forsyth, although I may be tempting him to intervene again. However, within a home there are likely to be opportunities for young people to avoid the smoke-filled parts of that home.

[Lord Forsyth of Drumlean]

I do not want to prolong the noble Lord’s speech; I am not making a debating point, but am genuinely interested in his logic. A child in a car—which I accept is a very confined space—will probably be in a car for a short journey. If children are in a living room, they are there all evening. Perhaps I should declare an interest; my late mother used to smoke 60 cigarettes a day. That is one of the reasons why I would never touch a cigarette. Surely, if a child is in a small living room in which continuous smoking is going on, that seems to me, without any evidence, to be as great a health hazard as being in a car. I am not advocating invading private space, but where is the evidence that supports what the noble Lord is saying—namely, that it is a much worse hazard being in a car, probably on a short journey, than being in a living room where smoking goes on all day?

[Lord Hunt of Kings Heath]

My Lords, I do not have evidence on the length of the average car journey, though clearly short and long distances may be travelled during which smoking may take place. I suspect that we can argue that until the cows come home. However, I come back to the core argument that in a confined space, such as a car, a child is likely to be more damaged through inhaling second-hand smoke than they are in a person’s home. That is the reason for making a distinction between legislation affecting an individual vehicle and legislation affecting a person’s home.

[Lord Scott of Foscote (CB)]

I wonder whether the noble Lord can help me. Does “private vehicle” in the amendment include a motor boat? One drives a motor boat.

[Lord Hunt of Kings Heath]

No, my Lords, I do not think that that is covered in my amendment—although, of course, it is open to the noble and learned Lord to propose an amendment to increase the scope of the measure. I would give such an amendment all due consideration.

I refer noble Lords to an inquiry into smoking in private vehicles by the All-Party Parliamentary Group on Smoking and Health, carried out in 2011, which concluded that the evidence from smoke-free public places was that legislation would be necessary to reduce exposure to cigarette smoke in cars. That is the basic case I am making. At this stage, I am asking noble Lords to support the principle of a ban. If my amendment were accepted, I would be very happy to work on a cross-party basis to consult on the type of offence that should be put in place. I have not gone as far as the noble Lord, Lord Ribeiro, and his colleagues in terms of specifying the offence because I think that needs further consideration and discussion.

We would not be alone in legislating to protect children from the damage of smoking in cars. Seven other countries already do so, including four US states, 10 of the 13 Canadian provinces and all but one jurisdiction in Australia. As far as the public are concerned, a YouGov poll in 2011 found that 78% of adults in Great Britain agree that smoking should be banned in cars carrying children younger than 18 years of age. Just as significantly, perhaps, a British Lung Foundation survey in 2011 found that 86% of children want action to be taken to protect them from cigarette smoke in cars. I think that we should listen to the voice of children in this respect. I hope that noble Lords will support the amendment that I shall propose later.

In concluding, I should have pointed out to noble Lords my health interests in the register, including being chairman of a foundation trust, a consultant and trainer with Cumberlege Connections and president of GS1.

[Lord Ribeiro (Con)]

My Lords, the amendment of the noble Lord, Lord Hunt of Kings Heath, is compelling but fails to acknowledge the impact of second-hand smoke on children in confined spaces or in the home, as we heard in an earlier debate. For this to happen, the public, particularly parents, have to be educated about the harm that second-hand smoke can do to young children’s lungs. The noble Lord identified some of those problems. That is why I believe that education and behavioural change are important.

As a doctor, I recognise the damage that second-hand smoke can cause, and in particular the long-lasting effect it can have on the lungs of young children. Just this Sunday, I was present at the birth of my first grandson out of six grandchildren.

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[Lord Cormack]

My Lords, that was really a speech rather than an intervention. There is all the difference in the world between the physical or sexual exploitation of a child and smoking. Smoking is not an illegal activity. Some of us may wish that it were, but it is not. It would be wholly impractical, as the noble Lord, Lord Patel, made plain in his remarks, for us to outlaw smoking. That is a road down which we cannot go. Therefore, to invade the private space of individuals who are committing a perfectly legal act seems to me a step too far. That is why we should look at other means. I have mentioned taxation and increased insurance premiums; there are many routes down which we could go to make it more and more difficult for adults to smoke in the presence of children.

Most importantly, it is up to experienced people such as the noble Baroness and my noble friend Lord Ribeiro to ensure that there is a well informed education campaign so that no one is in any doubt that smoking is a harmful activity and that inhaling passive smoke is dangerous and injurious to health. I am with the noble Baroness and my noble friend on that all the way, but the invasion of personal space—prosecuting people for what is a legal activity—seems a step too far. That is why, while I welcome and applaud the amendment introduced by my noble friend Lord Howe—if there were a Division, although I am sure that there will not be, I would enthusiastically go into the Lobby to support him—I cannot support something that I believe is a step too far in the invasion of personal space, which would also be monumentally difficult to enforce. We have to bear in mind the responsibilities of the police, whose job it would be to stop the cars and ask the questions.

[Lord Hunt of Kings Heath]

Does not the noble Lord accept that, although there may be difficulties of enforcement, the very fact of passing a law combined with the kind of educational programme that he supports is likely to have a positive effect?

[Lord Cormack]

No, frankly, I do not. I respect the noble Lord—he knows that—and we agree on many issues, but we will have to disagree on this one. I think it would make the job of the police even more difficult than it is at the moment and endanger what popularity they have with many law-abiding citizens. It is a burden that we should not place on them.

I repeat: let us do everything we can to educate; let us do everything we can to deter; let us have the plain packaging; let us listen very carefully to what Sir Cyril says in his report; but let us not take the ultimate step that the noble Lord advocates.

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[Lord Storey (LD)]

My Lords, I want to speak to Amendments 57B and 62. First, on Amendment 57B, the Government are to be congratulated. The package that they propose—if I dare to use the term “package”—of proxy purchase, e-cigarettes and looking at the whole question of standardised packaging of cigarettes and tobacco products is to be welcomed. I think it will result in thousands of people being saved from getting respiratory and lung diseases; it will save literally thousands of lives. I congratulate the Minister and the Government. I want also to thank those cross-party noble Lords who put down the original amendment, because they initiated this debate.

On Amendment 62, I said in Committee and say again: some noble Lords have mentioned their grandchildren. Can you imagine carrying your grandson or granddaughter in a carry-cot, putting that child into a metal box—a car—and allowing somebody to pump cigarette fumes into that metal box? You would not do that at all; you would not allow that to happen. Whatever our concerns are about personal space or civil liberties or whatever it is, this is about the rights of a child; the rights of a baby. A baby cannot say, “Well, actually, I don’t mind”; a child cannot say, “Actually, I don’t mind”. In fact, research—certainly from talking to children—shows that they do mind. As we have heard, we can see when we look at the figures that children are particularly vulnerable to second-hand smoke. Why? Because they have small lungs, because they have faster breathing, and because they have a less developed immune system. That makes them more susceptible to respiratory problems: asthma, bronchitis and lung malfunction. Knowing that, and that passive smoking results in more than 165,000 new episodes of all sorts of diseases associated with lungs and respiration—and I am talking about children here—are we serious about allowing children and babies to be strapped in a car where that happens? Surely not; all the other arguments pale into insignificance.

We seem to cite lots of surveys here. Interestingly, in 2010 a survey that directly asked 11 year-olds and 15 year-olds found that one in five reported being exposed to second-hand smoke in cars.

A number of people have said, “How are we going to make this happen? The police are very busy; can we really make it happen?”. I have two answers to that. Do noble Lords remember when seat-belt legislation was suggested? People got up and said, “Oh no, this is an attack on my civil liberties; oh no, we will solve the problem by advertising”. It was the “clunk click” advertisement, was it not? Oh—perhaps we had better move on from that. With the “clunk click” advertisements, in fact, something like 24% of people started to belt up in cars. Legislation was then brought in and we found that 97% of people then put on a seat belt. We do that automatically; we do not think about it, or sit in our cars saying, “This is an infringement of our liberties; we shouldn’t be doing this”; we do it. Why do we do it? Because it saves lives: it saves our lives and the lives of other people who are travelling in the car.

Interestingly, a study conducted in Scotland—we talk about Scotland a lot in this Chamber, thank goodness—suggested that air quality inside a smoker’s car was comparable to industrial smog in cities such as Beijing or Moscow, even when the driver has the window open. Are we seriously suggesting that children and young people should be subjected to air quality which is akin to that in Beijing or Moscow? Of course, we are not. Research by Aberdeen University found that 7% of 11 year-olds experience smoking in cars. That is why I am pleased that one of my colleagues in Scotland, the Liberal Democrat MSP, Jim Hume, is introducing a Private Member’s Bill looking at safeguarding children by banning smoking in cars. That is now going out to public consultation.

I end by making two further brief points. It is easy to find all sorts of reasons why you cannot do something. We could ask, “What about cars that are convertible? What about yachts? What about this? What about that?”. However, if you believe in something and think that it is right, you get on and do it. My only regret regarding the amendment is that it was initially an all-party amendment. When I listen to the news, I hear that it is a Labour initiative. I am sorry that it has been politicised and has become a party-political issue; I hoped that it would not be.

[Lord Hunt of Kings Heath]

The noble Lord has made an impassioned speech. My understanding was that the original cross-party amendment had been degrouped and would be taken only late at night. I therefore brought forward this amendment to enable the House to make a decision. I agree with him about the cross-party nature of the debate.

[Lord Storey]

I respect what the noble Lord says and thank him for it.

The Minister is a listening Minister. I hope that he will reflect on what has been said and accept the amendment because it is important to take the whole House with him on issues such as this. I hope that he will look again at continuing the advertising campaign but, perhaps more importantly, that he will consider a review of this issue so that we can go forward on it together.

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[Earl Howe]

My Lords, this has been a fascinating and very helpful debate and I am very pleased with the support that I have heard for the government amendments on standardised packaging. I would like, if I may, to commend noble Lords for their continued work in supporting tobacco control. We all want to drive down rates of smoking in this country and, in particular, to stop young people from taking up smoking in the first place. Let me address the points on standardised packaging first.

The noble Baroness, Lady Finlay, the noble Lord, Lord Faulkner, and my noble friends Lady Tyler and Lord McColl tabled a revised amendment following discussion in Grand Committee, and I see that they reflected the comments that I made in redrafting it. I particularly welcome their support for the Government’s amendments and can reassure them that our amendments would achieve all of the things that they seek to do.

My noble friend Lord Naseby raised a number of legal issues. I would like to reassure him that we have given very careful consideration to the legal situation. We believe that the government amendment gives us sufficient room to proceed with the regulations, should we choose to do so, and introduce standardised packaging, if that is what is decided. He queried the fact that the amendment is drafted in such a way that the devolved Administrations and Assemblies have to give consent, but it is the Secretary of State and not Parliament who gives consent in England. We do of course want Parliament to have a say, which is why we have introduced Amendment 63B to make the regulations subject to the affirmative procedure.

The noble Lord, Lord Stoddart—whose robust state of health I very much welcome—indicated that there has been no proper consultation on standardised packaging. In fact, in 2012 the Government ran a full public consultation and received almost 2,500 substantive responses and well over half a million postcard and petition responses. The consultation asked 15 specific questions and invited comments on the consultation stage impact assessment, which was also published. So it was a very thorough exercise.

The noble Lord, Lord Stoddart, suggested that this was the thin end of the wedge, if I can put it that way, and might herald similar measures in relation to junk food. I think we need to remember that tobacco is a uniquely harmful consumer good. Tobacco kills one in two long-term smokers. There is no safe level of smoking. That is why we have a range of specific legislation and an international treaty around tobacco control.

My noble friend Lord Naseby referred to illicit tobacco. We received a wide range of responses to the question in the consultation on illicit tobacco. They are summarised in the consultation report. In 2000, around 21% of the UK cigarette market was illicit. The latest estimate from HMRC, for 2012-13, is that this has dropped to around 9%. It is too high, I concede, but we are heading in a positive direction.

The noble Baroness, Lady Howarth, asked about the timetable for the regulations. I emphasise here that I do not want to pre-empt any decision that the Government may make on whether to proceed with standardised tobacco packaging, and I know that the noble Baroness understands that; but equally for that reason, it would be premature to set out a detailed timetable. What I can confirm is that the regulations would be subject to the affirmative procedure to ensure an appropriate opportunity for parliamentary scrutiny in both Houses. She may like to be aware that before being laid in Parliament, any draft regulation that seeks to regulate tobacco packaging would need to be notified to the European Commission and member states. There is a process that goes with that, which would mean that we would not be able to lay regulations instantly after taking a positive decision. I am happy, however, to reiterate the Government’s commitment to make a decision quickly when we receive Sir Cyril Chantler’s independent report. Tabling these amendments is, I hope, evidence of our commitment to act without delay if we decide to go ahead. But the Government, as I am sure she appreciates, must rightly consider the wider issues raised by this policy, and I can assure her that we will do so.

I can understand the intention of the noble Lord, Lord Hunt, in tabling both of his amendments, Amendments 57BA and 61, which seek to compel Ministers to introduce standardised packaging. However, I am sure that he will not be surprised to hear me say that we cannot accept provisions that tie our hands in this way. One of the amendments imposes an arbitrary timetable for government action, and both pre-empt Ministers’ proper and careful decision-making, involving consideration of all the relevant issues. Litigation by the tobacco industry is always a risk when introducing tobacco control legislation. Indeed, the World Health Organisation says that one of the six main forms of tobacco industry interference in public health is the intimidation of Governments with litigation or the threat of litigation. Government must have time and space to give proper consideration to the wider issues raised by standardised packaging of tobacco, and demonstrate that it has done so. Doing so will also reduce the risk of successful litigation. I do appreciate the desire to go faster but we must follow the proper decision-making process to enable us to arrive at the right policy decision. It is right that we should wait for Sir Cyril’s report. Once we do, I say again, we will make a decision quickly.

The noble Lord, Lord Hunt, asked me to put on the record that we will definitely introduce the regulations should the case be made and should we be persuaded of the case that Sir Cyril presents. I hope that I have been clear about that. I will repeat the comments made by my honourable friend the Minister for Public Health when she announced the review:

“The Government will introduce standardised tobacco packaging if, following the review and consideration of the wider issues raised by this policy, we are satisfied that there are sufficient grounds to proceed, including public health benefit”.—[Official Report, 28/11/13; col. WS 96.]

I thank the noble Lord, Lord Faulkner, the noble Baroness, Lady Finlay, and my noble friends Lady Tyler and Lord McColl for having made clear their intention not to press their amendment on standardised packaging. I hope that the noble Baroness, Lady Hughes, and the noble Lord, Lord Hunt, will do the same with theirs.

I turn to smoking in cars. Since we considered the issue at the previous stage of the Bill, I have met a number of noble Lords who support the idea of legislating to stop smoking in cars with children present. I have also listened very carefully to the debate as it has proceeded this afternoon. One thing is clear from those meetings and the debate—we all want to eradicate smoking in cars carrying children. None of us wants to see children continuing to be exposed to harmful second-hand smoke, whether in the home or the family car. However, although we agree on the destination, I have to acknowledge that there are differing views on the most effective route. As your Lordships will know, the Government believe that encouraging positive and lasting behaviour change by making smokers aware of the significant health risks of second-hand smoke will be more effective than resorting to the use of legislation—which is of course a blunt instrument—to tackle the problem. I believe very clearly that we should consider resorting to the use of legislation only if our work to promote positive changes in behaviour is shown not to have had the desired effect.

When we debated this issue in Grand Committee, a good deal of time was spent considering the practicalities of enforcing an offence of smoking in cars carrying children. I do not propose to rehearse those arguments in detail again today. Nevertheless, I want to encourage your Lordships to reflect on just how difficult it would be to enforce such a provision. My noble friend Lord Cormack referred to this. In my view, there would be substantial challenges in enforcing any such legislation, particularly with respect to vehicles travelling at speed. Currently, local authorities enforce smoke-free legislation, but they do not have the powers or the means to require moving vehicles to pull over. We would need therefore to set up a complex and probably resource-intensive enforcement regime, which would need to involve the police. These remaining questions of how to achieve effective enforcement undermine the credibility of the measures that have been proposed. If it were known that there was little chance of enforcement action, I have to ask whether individuals would comply with the law.

[Lord Hunt of Kings Heath]

I am most grateful to the noble Earl. Would he accept that my amendment has been drafted in a way that allows your Lordships to vote on the principle but then allows for work to be done, hopefully cross-party, and for the Government to bring in regulations, during which some of these matters could be talked out thoroughly?

[Earl Howe]

I have noted the way the noble Lord’s amendment has been drafted. However, we need to be very careful before accepting it, for the reasons that I am explaining now. One of the points made about enforcement was that we could make a useful comparison with seat-belt legislation. I understand why that comparison has been made but it needs to be borne in mind that we are not comparing like with like. Seat-belt legislation is a road safety measure which is properly enforced by the police; smoking in cars is a public health matter and the police have no public health role or functions. That is part of the reason that the issue is so complex. Before launching into the kind of amendment that the noble Lord, Lord Hunt, invites us to accept, we need to take stock of these questions. There is no point in putting something on the statute book if it is impractical to implement.

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Moved by

[Lord Hunt of Kings Heath]

57BB: Before Clause 80, insert the following new Clause—
“Protection of Children’s health: offence of smoking in a private vehicle
The Secretary of State may bring forward regulations making it an offence for any person who drives a private vehicle to fail to prevent smoking in the vehicle when a child or children are present.”

[Lord Hunt of Kings Heath]

My Lords, I beg to move.