Tobacco and Vapes Bill (Sixteenth sitting)

Sarah Bool Excerpts

Committee stage
Thursday 30th January 2025 Public Bill Committees

That intent is, of course, good, but the Minister does not appear to have laid out clearly how the Bill can be fully applicable to Northern Ireland while also compatible with the Windsor framework. For the benefit of the Committee, will he please do so?

[Sarah Bool (South Northamptonshire) (Con)]

I want to build on the shadow Minister’s point, because I raised that concern in one of the previous sittings. I want to refer to the words of the King’s counsel, Jason Coppel, of 11KBW chambers, in relation to this point. In an article published online, he notes that TPD2, the tobacco products directive,

“lays down various requirements concerning matters such as ingredients, emission levels and packaging which must be satisfied by tobacco products, vapes and other smoking products if they are to be marketed within the EU. Member States are not permitted to prohibit or restrict the placing on the market of products which satisfy these requirements (article 24(1)). However, TPD2 does not seek to harmonise domestics sales arrangements for these products and positively encourages Member States to introduce age limits on their sale (recitals (21) and (48)). The key issue is therefore whether a GSB”—

a generational sales ban—

“would be a selling arrangement or age limit which is compatible with TPD2 or a gradual prohibition on the placing on the market of tobacco and other products which meet the product requirements of TPD2, which would likely be incompatible with TPD2. There are, on any view, powerful arguments in favour of the latter view. The age limits referred to in TPD2 were limits on the sale of tobacco products to minors, not to adults. Unlike an age limit, the intention and effect of a GSB is to phase out the use of tobacco products entirely. It is equivalent in effect to an absolute ban on the sale of tobacco products, but a ban which is introduced very slowly, with an extent which increases day by day. If that analysis is correct then cl 68-69 of the Bill, if enacted, would likely contravene TPD2 regardless of whether they can be established by the Government to be a proportionate restriction in the interests of public health. It is reasonable to infer that the positions adopted by the Danish and Irish Governments were dictated by arguments along these lines. If a GSB would indeed contravene TPD2, it is relatively clear, from a series of decisions of the Northern Ireland courts applying the Windsor Framework, that TPD2 would have direct effect so as to override the GSB, pursuant to section 7A of the European Union Withdrawal Act 2018.”

I appreciate that that is heavy legalese, but it is important to stress Mr Coppel’s point. I do not feel that I had a sufficient answer from the Minister last time, so I would appreciate it if he could confirm that that has been considered.

[Andrew Gwynne]

Of course that has been considered. It is the responsibility of the United Kingdom Government to ensure that any legislation appertaining to Northern Ireland is compatible with the Windsor framework—that is clear. In drafting the Bill, the Government have taken into account all our domestic and international obligations. It has been put together following full consultation with Scotland, Wales and Northern Ireland, and we intend it to be United Kingdom-wide legislation for a smoke-free UK, in accordance with our international obligations.