Tobacco and Vapes Bill (Eighth sitting)

Sarah Bool Excerpts

Committee stage
Thursday 16th January 2025 Public Bill Committees

[Dr Caroline Johnson (Sleaford and North Hykeham) (Con)]

It is a pleasure to serve under your chairmanship, Mr Dowd. Clauses 23 to 27 relate to restricted premises orders. Restricted premises orders stop sales on a premises whereon a relevant offence has taken place

“whether made—

(a) by the offender or any other person, or

(b) by means of any machine”,

and the orders prohibit the sale on the relevant premises of

“any one or more of the following—

(a) tobacco products;

(b) herbal smoking products;

(c) cigarette papers;

(d) vaping products;

(e) nicotine products.”

They can apply, as defined in clause 23, for up to a year, and are designed to tackle persistent offenders.

Clause 23(7) defines a persistent offender, stating:

“A person convicted of a relevant offence is a ‘persistent offender’ for the purposes of this section if, on at least two other occasions within the period of two years ending with the date of the offence, the person committed a relevant offence in relation to the relevant premises.”

Clause 23(8) defines a relevant offence. It states:

“In this section ‘relevant offence’ means—

(a) an offence under any of the following provisions of this Part—

(i) section 1 (sale of tobacco etc to people born on or after 1 January 2009);

(ii) section 3 (tobacco vending machines);

(iii) section 10 (sale of vaping or nicotine products to under 18s);

(iv) section 12 (vaping and nicotine product vending machines);

(b) an offence under any of the following (which are repealed by this Act)—

(i) section 7 of the Children and Young Persons Act 1933 (sale of tobacco, etc., to under 18s);

(ii) section 3A of the Children and Young Persons (Protection from Tobacco) Act 1991 (tobacco vending machines);

(iii) section 92 of the Children and Families Act 2014 (sale of nicotine products to under 18s).”

For a restricted premises order to be applied, the Bill says that the sale has to take place on the premises. How does this apply to online sales that are collected? I would like an assurance that there is not a loophole for sales whereby someone buys the product online and then collects it at a premises. Also, why are offences under the following clauses not included: clause 4, “Sale of unpackaged cigarettes”; clauses 5 and 6 on age of sale notices; clauses 13 and 14, which contain the display regulations; and clause 15 on the distribution of samples and promotions?

I presume that the relevant offence could be any one of the different offences. For example, I presume that an individual could be convicted for illegally selling vapes on one occasion and tobacco products on another—that it would not necessarily need to be the same product on each occasion. Could the Minister could clarify that? Also, how does the landlord-tenant arrangement work? If the tenant behaves badly and is thrown out of the premises as a result, could the landlord rent the premises to another company or allow another person to run a business on the premises instead? Would that remove the restricted premises order? If it did, how does the Bill prevent another company set up by the same people or their relatives from getting around the restricted premises order?

Clause 24 ensures that those subject to a restricted premises order will know about it, which is obviously important. An applicant must make “reasonable enquiries” to determine

“(a) the occupier of the premises, and

(b) any other person who has an interest in the premises.”

Does that include shop employees? Otherwise, how would a shop employee know, unless their boss told them, that a restricted premises order was in place? Is it the intention that a sign be put up in the building that says so, or would we be reliant on the shopkeeper telling his shop workers?

Clause 25 allows for appeals to the Crown court. How much does the Minister believe that that will cost in a typical case?

Clause 26 provides for penalties for breaches of a restricted premises order, which is only a fine. How much will that fine be? Presumably, it will be substantially more than the relevant offence fines, or what would be the point in having it? If the penalty for repeatedly flouting the same law is a fine that is not much more than the original fine, it will not act as any form of deterrent. Will the Minister give some guidance on how much the fines will be? Also, if an employee—in a shop, for example—was not told that there was a restricted premises order in place, and in good faith sold the product because they believed that that was an okay thing to do, would that be counted as a reasonable defence?

Clause 27 is essentially the same provision, but with respect to Wales. It allows the Welsh to extend the list of relevant offences in Wales, but subsection (2) only allows that if the offence

“relates to tobacco products, herbal smoking products, cigarette papers, vaping products or nicotine products.”

If the Secretary of State used his powers under clause 45, which we have not come to yet, to expand the Bill to include products that are used to consume tobacco—such as the bongs that I know interest the Minister so much—then the Secretary of State must get the consent of the Welsh to add them to clause 45. That is sensible, but clause 27(2) would presumably prevent the Welsh Minister from extending the relevant offences. Therefore, does subsection (2) need to say at the end, “or any product added under the provisions of clause 45”?

[Sarah Bool (South Northamptonshire) (Con)]

The shadow Minister makes an important point on a technicality about who the restricted premises order applies to—if, for example, a tenant is the offender.

Under clause 23(6), a restricted premises order is a local land charge; that comes out of the Local Land Charges Act 1975. Once a property lawyer, always a property lawyer—forgive me. For those who may be interested, a local land charge is a restriction on the property in the order of a planning decision, a tree preservation order or a conservation and listed building notice. That means that it will stay with the freehold title of the property. Therefore, even if a tenant has caused the problem, that order will affect the landlord’s interest, because it can be on the register for up to a year. It is not very clear in these provisions how that order can be taken off the property in the instance that it is the tenant who is the problem offender.

That also plays into clause 24, which deals with ensuring that interested persons are aware. For these purposes, I understand that that would be a bank, for example. If there is a mortgage over the property, banks would become incredibly interested because it goes to the value of their security. When a bank needs to step in if something goes wrong with the financing, it needs to know what is happening in this scenario. I can imagine the severity of this provision; it can go to the fundamental basis on which a bank has lent any money.

[Dr Johnson]

My hon. Friend is making an important point and I am grateful for her legal expertise. The tenant would be responsible for having committed the offence, but the landlord would effectively be punished too. I understand that there is a balance to be struck. We want to ensure that the tenant is not able to reconstitute his or her business under a different name, or perhaps take a new lease under their spouse’s name, in order to get around the restricted premises order, but is there any mechanism that my hon. Friend can see by which a landlord—who has genuinely re-let the property to a completely different, unrelated and unknown party—can get rid of the restricted premises order on it?

[Sarah Bool]

Based on a quick look at the drafting alone, I do not see an immediate ability to do so. A land charge is a charge on the property title, so it stays there until it can be removed. That is probably where the property lawyers would step in. I agree with my hon. Friend that we could see a situation whereby a landlord who has problem tenants could try to terminate the lease because of the breach of various provisions, but they would none the less still be burdened by a restricted premises order. As I said, I think that will have a bigger impact on financing, and on the terms of the mortgage. I foresee some potential complications.

[Dr Johnson]

When the interested parties are informed, could the landlord step in at that stage, as an interested party, to appeal the restricted premises order, on the basis that they are in any case ending the tenancy of the individual company or person that caused the offence in the first place?

[Sarah Bool]

I think that is what they would do. If they did not step in at that point, any financing or any bank that had a mortgage over the property would certainly be looking to do that—to try to clear out the property and make sure that it is free to be used thereafter. It may seem like a technicality, but I can foresee this point as one that will be wrangled over for many years to come.

[The Parliamentary Under-Secretary of State for Health and Social Care (Andrew Gwynne)]

It is a pleasure to serve under your chairmanship, Mr Dowd.

This group of clauses relates to restricted premises orders. These are existing measures that local authority trading standards in England and Wales can use when dealing with a retailer that persistently breaches the age of sale and vending machine restrictions for tobacco products, herbal smoking products, cigarette papers, vapes and nicotine products. The clauses are based on and replace existing legislation.

A restricted premises order is an important enforcement mechanism for tackling persistent offenders. A persistent offender is someone who has committed an under-age sale of cigarette papers, tobacco, herbal smoking, vaping or nicotine products or has committed the offence of selling from a vending machine, at least twice within the previous two years. The person who brought the proceedings for the sales offence makes a complaint to a magistrates court to apply for a restricted premises order in respect of the premises where the offence was committed.

Clause 24 requires notice to be given to people who might have an interest in a restricted premises order being made in England and Wales, and sets out situations where an interested person might challenge a restricted premises order. An interested person is the occupier of the premises or someone who has an interest in it, such as the manager or owner. The clause sets out the circumstances in which notice should be given to an interested person where a restricted premises order is being applied for. Interested persons are allowed to make representations to the court to try to prevent a restricted premises order from being issued, or at least to try to vary it. This is a safeguard so that suitable steps are taken before a restricted premises order is made, and to maintain fairness so that a relevant person is informed of an impending restricted premises order.

Clause 25 provides those in receipt of a restricted premises order in England and Wales with the ability to appeal to a Crown court. This is important to the function of enforcement in the Bill as it enables businesses to appeal against a restricted premises order, such as where they feel they have a case that the order has been inappropriately or unfairly issued. This provision maintains the fairness of the enforcement regime in the Bill.

Clause 26 makes it an offence to breach a restricted premises order in England and Wales. The offence is committed when a tobacco, herbal smoking product, cigarette paper, vaping or nicotine product whose sale is prohibited under a restricted premises order is sold on the premises. The offence occurs if a person knew or ought reasonably to have known that the sale was in breach of the order. It also provides a defence for the person charged, where they prove that they took all reasonable steps to avoid a committing the offence. Making it an offence to breach a restricted premises order gives local authority trading standards the ability to escalate action to tackle persistent offenders. The severe penalty of an unlimited fine can act as a deterrent.

Finally, Clause 27 provides Welsh Ministers with the power to add to the offences for which restricted premises orders can be issued, in addition to what is already prescribed in the Bill. Offences added must be in relation to tobacco products, herbal smoking products, cigarette papers, vaping products and nicotine products only. This re-enacts an existing power for Welsh Ministers, who must consult before making regulations under this power. The clause is therefore important as it maintains existing powers that enable legislation in Wales to be kept up to date to ensure that restricted premises orders can continue to be used as an effective enforcement tool.

--- Later in debate ---

[Dr Johnson]

As the Minister has already described these clauses, I will not repeat that information, but I encourage him to answer my questions on the previous clauses, as they apply similarly to this group. The others were related to restricted premises; these clauses relate to restricted sales applying to people, but the questions are the same.

If one appeals to the Crown court, how much will it cost? The Minister did not answer the question about the phraseology of “on the premises” and how that would relate to the collection of items bought online. In the debate on the previous clauses—the same question applies to these ones—he did not answer why the offences in clauses 4 to 6 and 13 to 15 are not considered relevant. Will he also clarify that a different relevant offence can occur on each of the three occasions within the two years?

With regard to restricted sale orders, paragraphs (c) and (d) of clause 28(2) relate to machines used for the purpose of selling cigarettes and other banned products. It is illegal under previous clauses to sell items from a machine, so why would one need a restricted sale order to ban something that is already illegal?

[Sarah Bool]

My hon. Friend raises the points that I was going to raise. I did question why clause 28(2)(c) in particular was necessary, because if we ban vending machines there should not be any machines going forward. I want to understand what machines we envisage if they are not going to be vending machines.

[Mr Alex Barros-Curtis (Cardiff West) (Lab)]

It is a pleasure to serve under your chairmanship, Mr Dowd. I thank the Minister for explaining these clauses and I fully support them, but I have two questions pertaining to clause 28.

The first question has already been asked by the hon. Members for Sleaford and North Hykeham and for South Northamptonshire and relates to clause 28(2)(c). Could the Minister explain the interaction between that paragraph and the offences created under clauses 3 and 12? Perhaps this is a catch-all provision, or some hangover from the section that the clause is based on and seeks to replace, which is section 12B of the Children and Young Persons Act 1933.

The other point that I would like the Minister to explain, which has crossover with similar phraseology in earlier clauses, relates to clause 28(4) about a person who is convicted of a relevant offence becoming a persistent offender. In order to determine that they are a persistent offender, it will be important to have accurate record keeping to keep track of any persistent offences. I know this is not a new concept, but I wonder whether he could say more about that in his response. Record keeping will be critical to tackle repeat offenders. Will he ensure, whether by regulations or any other means, that different local authorities share that information? What we do not want is a persistent offender in one local authority moving to another one, setting up shop and repeating those same offences.

[Sarah Bool]

I want to echo that point. The hon. Gentleman is right: if a tenant is a company and that company changes its name, and then moves around, it may be necessary to go back up the structure to see who the ultimate beneficial owner is and to make sure that people are not just using it as a cover. I heartily agree.

[The Chair]

I will call the Minister. He may well wish to respond on the points related to clauses 28, 29 and 30 rather than the other points that have been raised, which can be taken up at another place and another time.