Tobacco and Vapes Bill (Fifteenth sitting)

Sarah Bool Excerpts

Committee stage
Thursday 30th January 2025 Public Bill Committees

[Dr Johnson]

This is an interesting clause, because it applies the Bill to the parliamentary estate. According to Erskine May, there has been some confusion about whether statute law can apply inside the parliamentary estate, because of the principle of exclusive cognisance. That means that Parliament has control over its own internal matters and that not all laws automatically apply within Parliament. To quote from Erskine May directly:

“Actions in respect of which exclusive cognizance is claimed and has been admitted are not restricted to formal acts of either House. This privilege has been held to extend to the sale of intoxicating liquor within the precincts of the House, though those responsible did not hold a licence.”

Smoking, for example, has technically been prohibited in the Commons Chamber, public and Members’ Lobbies and Committee Rooms since 1694. According to Erskine May, MPs agreed

“That no Member do presume to take tobacco in the gallery of the House or at a committee table”.

Around the estate, however, historically it was the custom to smoke in the bars and the Tea Room, and in the Committee Corridor outside this very Committee Room we are in today. There are legal exceptions and exemptions that are worth discussing now.

The Office of the Parliamentary Counsel published guidance on Crown application in 2021 and noted that the Palace of Westminster is Crown land. The guidance explains the general presumption that an Act does not bind the Crown unless it does so expressly or by necessary implication. Often, an Act includes a clause on Crown application, specifying whether the Act applies to Crown land, but the Health Act 2006 does not include such a clause.

The position set out by case law is that the Health Act 2006 does not apply to the Crown, as in the 2017 case of R (on the application of Black) v. Secretary of State for Justice. In that case, the prisoner, named Mr Black, was serving an indeterminate sentence at Her Majesty’s Prison Wymott. He was a non-smoker with a number of health problems that were exacerbated by tobacco smoke—we talked about prisoners and vaping earlier. He complained that the smoking ban was not being properly enforced in the common parts of prisons, and issued proceedings for judicial review of the Secretary of State’s refusal to provide access to the NHS smoke-free compliance line to prisoners.

The Supreme Court unanimously dismissed Mr Black’s appeal, holding that Parliament must have intended the Crown to not be bound by the smoking ban, otherwise it would have made an express provision for it in the Act. In the words of Lady Hale:

“there are powerful indicators in the language of the Act itself that the Crown was not to be bound by the smoking ban.”

In 2013, the Joint Committee on Parliamentary Privilege noted that the ambiguity had led to many inconsistencies in statute law. That Committee considered that it was not practicable to resolve the inconsistencies without sweeping retrospective change, which could have unforesee- able consequences. It concluded that in the absence of legislation, the safest way forward—however undesirable it might be as a statement of principle—was to reiterate and formalise the current presumption that legislation does not apply to Parliament unless it expressly provides otherwise. That was agreed on, and now there is a rule that legislation creating individual rights that could fit with parliamentary activities must expressly say that it applies within Parliament.

Here we are today, with clause 159, which stipulates that the Bill and regulations made under it will apply to the parliamentary estate. The Bill does not replace the smoke-free provisions in the Health Act 2006 and does not otherwise provide directly for the smoke-free restrictions discussed above. There is no obvious means by which clause 159 will place the parliamentary estate within the scope of the 2006 Act. However, clause 136 enables Ministers to add to the list of places designated as smoke-free by introducing new regulations under proposed new section 4(1) of that Act. It is therefore possible for new regulations to designate the parliamentary estate as smoke-free, but I have seen no indication from the Government that they plan to do that. Clause 136 also enables Ministers to make exceptions to smoke-free legislation.

The extent to which the Bill can be used to place the parliamentary estate within the scope of smoke-free legislation is therefore a matter for legal interpretation, and I would be interested to know the Minister’s thoughts on that. Earlier in the debates that we have been having during line-by-line scrutiny of the Bill, we talked about the snuff that is kept outside the door, with the Doorkeepers, and the Minister suggested there was no reason why that could not continue, but I am interested to understand his thoughts in relation to clause 159.

[Sarah Bool (South Northamptonshire) (Con)]

I concur with the rationale and explanation that my hon. Friend has just given. The question about how we will deal with snuff and other products in the House is an interesting one, because we do not want to see any of our Doorkeepers perhaps being criminalised for having something on the estate or how they have supplied it. I know that earlier discussions focused on the BBC—

[Dr Johnson]

I thank my hon. Friend for her support in this discussion. Is it not also the case that the House has a lot of peculiarities and traditions that are sometimes eccentric, but interesting, and that although we would not necessarily want to create exceptions for MPs to use a product that is not available to members of the public, the inability to have the box there would be a loss of a tradition, which would be a bit of a shame?

[Sarah Bool]

I agree. One of the things that I have most enjoyed over the last few weeks and months has been learning all the different traditions and the meanings behind them. Having done my original degree in history, I appreciate all that, so the many history lessons that we have had from the shadow Minister in the course of these debates have been much appreciated by me. It is interesting that that is why clause 159 has been put in place, but I would like the Minister to expand on how he thinks that it will work in practice. Will we see the removal of the snuffbox? How will that work in the future?

--- Later in debate ---

[Dr Johnson]

I thank the hon. Lady for her explanation, which was really helpful. I am grateful that she, as a Labour MP, understands that a tax on business will be passed on to the consumer, because it seems that the Chancellor does not. Perhaps the hon. Lady should apply for a new job.

The hon. Lady is right that if taxes are applied to a business, the business will pass them on to the consumer. The only way to avoid that is through price control. Nevertheless, I do not think that makes price control a desirable thing for the Government to interfere with. That level of regulation would go too far, and other measures in the Bill already seek to restrict and disincentivise smoking in so many different ways. I hope that they will be effective and that there will be no need for such onerous regulation.

[Sarah Bool]

The hon. Member for City of Durham has proposed a very interesting concept. Although she may not be pressing the new clause to a vote, it is interesting to discuss the concept in principle, so I thank her for tabling it.

Essentially, the proposal is that the Secretary of State would have to consult on a scheme that would regulate prices and limit profits, and then they would calculate the tax:

“by reference to sales or estimated sales of those products”.

That is an interesting concept, but I wonder whether it could be deemed anti-competitive. I know that the ultimate aim is to close down the tobacco companies, and that is essentially what the measure would drive towards, but in the interim, when many people will still be legally able to smoke, what arguments might the companies make in that regard? The Chancellor says she is pro-business and is encouraging business. The tobacco companies are perhaps not the businesses she has in mind, but the provision would have wider repercussions that could flow into other areas.

--- Later in debate ---

[Dr Johnson]

I certainly agree that it is immoral to sell products that they know are addictive, are dangerous and kill people.

[Sarah Bool]

I am almost glad that my hon. Friend the Member for Windsor is not here, because at this point we would probably be launching into a much longer and more protracted debate, so we are lucky in that regard—[Interruption.] I am being chastised by the shadow Minister.

We should consider that interesting point and its knock-on impact because, in common with the hon. Member for City of Durham, I have concerns about the illicit tobacco market. I very much agree that we should be moving to a new system of preventive medicine. As I have mentioned, I have type 1 diabetes, and I want to see a greater and earlier use of technology to prevent long-term problems. The new clause provides a useful point for discussion, and I thank the hon. Lady for tabling it.

[Andrew Gwynne]

I am grateful to my hon. Friend the Member for City of Durham for tabling the new clause, because it allows us to have a debate about a really important matter. As has been discussed, the new clause would require the Secretary of State for Health and Social Care to consult and report on a scheme to regulate and to raise funds from the prices and profits of tobacco manufacturers and importers.

Duty on tobacco raises around £8.8 billion a year. The Government’s preferred approach is to continue with a proven and effective model of dealing with tobacco products through increases in tobacco excise and through duties. This generates finances that can support a full range of public services, including public health and the NHS, as well as smoking cessation services. We believe the proposed scheme would be complex to implement and might take several years to materialise.

Alongside the Bill, we are taking strong action to reduce the affordability of tobacco, which is an effective measure to trigger smoking cessation. The United Kingdom already has some of the highest tobacco taxes in the world. The World Health Organisation recommends that total taxes on tobacco are at least 75% of the retail price on typical cigarettes. The United Kingdom comfortably meets this target, with taxes at around 80% of selling price.

As announced at the autumn Budget 2024, duty rates on all tobacco products were increased in line with the tobacco duty escalator by 2% above retail price index inflation. The duty rate on hand-rolling tobacco was increased by a third of 10%, to 12% above RPI inflation, to reduce the gap with duty on cigarettes. Those changes came into effect on 30 October 2024.

Cigarettes are also subject to minimum excise tax, which sets a minimum amount of duty collected on a pack of cigarettes. That discourages manufacturers from selling cheap cigarettes, as it reduces the profitability of cigarettes sold at or below minimum excise tax trigger prices. The new minimum excise tax is £8.93 for a pack of 20, and it applies to cigarettes sold at or below £13.59 for a pack of 20.

We are still going further on tobacco tax. As announced in the autumn Budget, there will be an additional one-off increase for all tobacco duties. That will come into force on 1 October 2026, when the vaping duty comes into effect. From a financial perspective, that will maintain the incentive for smokers to switch to vaping once the new excise duty on vaping products comes into force.

On one last technical note, His Majesty’s Treasury can consult on tobacco taxation and fiscal policy at any time, so that does not need to be set out in the Bill. For those reasons, I ask my hon. Friend the Member for City of Durham to withdraw her new clause.

--- Later in debate ---

[Dr Johnson]

I thank the hon. Gentleman for that important intervention. He is absolutely right that these items are a huge danger to the environment, and it is sad when we go to parts of our world that are still not well explored, such as the Mariana trench, and find evidence of damage caused by the human race, such as plastic pollution. Although I have huge sympathy for people who have become addicted to nicotine and find it difficult to quit smoking, there is no excuse for the litter that it creates all over our beaches and our urban and rural areas.

Cigarette filters are neither biodegradable nor effectively recyclable. They are made, as I said, primarily from cellulose acetate—a plastic material that does not biodegrade. Even after two years of decomposition, cigarette filters will have lost only about 38% of their mass, and the remaining material continues to persist in the environment. During that time, filters leach harmful substances, including heavy metals and toxic chemicals such as arsenic, that have been inhaled through the filter and into the surrounding environment, further contaminating soil and water sources.

Cigarette butt waste has been shown to impact marine and coastal environments. Studies have demonstrated that cigarette filters affect the micro-biodiversity of coastal sediment and that they pose harm to marine animals that ingest them. That is a growing concern, as the hon. Member for Winchester said, as plastic waste continues to accumulate in the ocean, harming wildlife and disrupting ecosystems. The Ocean Conservancy’s international coastal clean-up has, over the course of 32 years, collected more than 60 million cigarette butts from the ocean. Although that sounds like a lot, that accounts for just 0.00001% of all cigarette filters thrown away in a single year, so this is a difficult thing to clean up.

Despite the growing awareness of the environmental impact of single-use plastics, cigarette filters have not been subject to the same regulations as other plastic products. For example, the European Union banned many forms of single-use plastic in 2019, but cigarette filters were not included, leaving a significant loophole. As cigarette consumption remains widespread, the environmental impact of the filters continues to grow. In October 2024, Santa Cruz county in California became the first jurisdiction in the world to approve a ban on filtered cigarettes and cigars.

One of the questions I have for the hon. Member for Dartford who tabled the new clause—he sadly is not here—is why he has chosen to use the 1990 Act. The previous Conservative Government banned a number of single-use plastics on the basis that they were harmful to the environment, that there were non-plastic, more environmentally friendly and more suitably priced items available, and that it would help to improve the environment, which is a very good thing. However, one of the reasons for introducing those bans through secondary legislation under the 1990 Act was that there was not an opportunity to do so in primary legislation, because of the time constraints of the parliamentary calendar. The Minister has talked about getting time for primary legislation already.

This Bill is a piece of primary legislation, and to add cigarette filters to it only requires the Government to write in clause 1 “and cigarette filters too”, and to make consequential amendments through the Bill on that basis. I agree with the principle that cigarette filters are a bad thing for the environment, and they are not good for people’s health, but I am not entirely sure why the 1990 Act is being used and why the Minister has not included filters in clause 1 and consequentially throughout the Bill. Perhaps he can tell us in winding up.

[Sarah Bool]

I thank my hon. Friend for her explanation. I did not know that it was cork that gave the colouring, so that is another benefit of her history lesson. We are aware that the previous Conservative Government took strong action to try to remove plastics in the environment. We introduced the UK-wide prohibition on the use of plastic microbeads in the manufacture of some cosmetic and personal care products, such as face scrubs, toothpastes and shower gels, where the little beads could wash into the sea. That was one of the reasons why those beads were banned. It is therefore an interesting argument to make that we should ban cigarette filters with their plastic content, because we do not want further pollution of our beautiful natural environment.

The World Health Organisation has advocated for banning those filters. As my hon. Friend compellingly said, there are no health benefits to such filters being used—which I had not appreciated. One would assume that those filters would have helped, but it is interesting that they do not. I note that the UN General Assembly is also advocating for a ban on filters, particularly given their plastic content.

[Dr Johnson]

My hon. Friend makes the point about the plastic content. I just spotted that in the explanatory statement for new clause 4 from the hon. Member for Dartford, he talks about wanting specifically to ban cigarette filters that contain plastic, as opposed to other cigarette filters. That would improve the environment, but a question is raised by the fact that when a cigarette filter is in use, the toxic chemicals present in the cigarette flow through that filter and becoming lodged in it. So as well as the plastic pollution as the filter is littered into the environment, causing a hazard, there is also the fact that as it decomposes, those other toxic chemicals present in the tobacco smoke are in the filter and leach out into the environment. That presumably would be the case even if the filter was not made of plastic, although the plastic is clearly extra harmful.

[Sarah Bool]

I agree. That is a good conclusion to have worked through, which we perhaps had not had the opportunity to turn our attention to. I would like to see a provision of this nature. I am intrigued, as my hon. Friend said, by why the Minister has not included filters in the outright initial ban. That should be considered, perhaps on Report.

As a general principle, we need to look after our natural environment. A ban on the plastic contained in cigarette filters would surely be a sensible move. As my hon. Friend has said, however, the filters do not achieve what anyone was hoping and do not make smoking safer. I therefore think we must have further discussion. Will the Minister give a little more explanation on some of the rationale and whether the measure can be included in the Bill?

[Andrew Gwynne]

I am grateful to the shadow Minister for moving this new clause for debate and to my hon. Friend the Member for Dartford for tabling it. New clause 4 would require the Secretary of State to make regulations under the Environmental Protection Act 1990 to prohibit the supply of cigarette filters that contain plastic or cigarettes containing cigarette filters that contain plastic.

I am incredibly sympathetic to the premise of the new clause. Cigarette filters, as we heard from the shadow Minister, have historically been marketed as making smoking safer, and we know that smokers can perceive cigarettes with a filter as tasting smoother and being of lower risk. Evidence shows that there is no proven health benefit to cigarette filters. All tobacco products are harmful to health.

However, as with all regulations, it is important that any measures are fully considered and evidence-based, to ensure that there will not be any unintended consequences—[Interruption.] Did the hon. Member want to intervene?

[Sarah Bool]

The hon. Member for Dartford has now arrived, so perhaps the Minister would be so kind as to allow him to intervene.

[The Chair]

Hang on. It is for the Minister to decide who he wants to give way to. Minister, carry on speaking; if somebody catches your eye, it is up to you whether you allow them to intervene.

--- Later in debate ---

We have heard that the pouches have levels from 6 mg up to over 100 mg, depending on the brand, but they are commonly sold at levels higher than 20 mg. I do not know whether 20 mg is exactly the right level—we would need research into that—but it would appear to be a greater level of nicotine than that provided by a cigarette. On a personal level, I would support 20 mg as a starting point, but if the Minister wants to reduce the level further, I am prepared to consider that. We need a cap on the strength of these products.

[Sarah Bool]

I find high-strength nicotine pouches incredibly concerning, as I had not been aware of their existence. There is a Member of the House who happens to use them; I had simply thought that that hon. Member was partaking of mints, but that is clearly is not the case.

This is an interesting area. As the shadow Minister has noted, pouches are discreet. When they are aimed at children, it is hard for parents to know what their children are taking, so they are particularly pernicious in their effect.

Many hon. Members will know that I often go back to social media. Apparently one of the main brands is called Zyn and is now trying to promote the trending of “Zynfluencers” via Instagram. The aim is to appeal to the younger generation. I do not think that that is acceptable, especially when some of these pouches are of a strength of up to 100 mg, as the shadow Minister mentioned.

Like the shadow Minister, I ask whether the Minister has any thoughts about whether the cap should be reduced further, because 20 mg may not be the right number. Given that the impact of long-term use of these pouches, which I happened to raise with the Member I saw taking one, includes mouth sores, gum irritation and oral cancer, I think we probably need a further discussion about them. I welcome any comments that the Minister may have.

[Andrew Gwynne]

I am grateful to the shadow Minister for moving the new clause tabled by my hon. Friend the Member for Newcastle upon Tyne East and Wallsend.

New clause 5 would introduce a ban on the manufacture and sale of high-strength nicotine products, with the maximum level of nicotine in a pouch set at 20 mg. Unlike nicotine vapes, there is currently no set nicotine limit for nicotine pouches; as we have heard, nicotine strengths vary from 2 mg per pouch to as high as 150 mg per pouch. There is also significant variation in these products internationally.

I am incredibly sympathetic to the arguments from the shadow Minister, from the hon. Member for South Northamptonshire and indeed from my hon. Friend the Member for Newcastle upon Tyne East and Wallsend. It is important to define the correct and safe nicotine level of a nicotine pouch. That is why we are already taking powers in the Bill that would allow the Government to limit the amount of nicotine in a pouch and to ban any other ingredient in a pouch that might be harmful.

We believe that secondary rather than primary legislation is the appropriate way to legislate on these matters, for all the reasons we have already debated. Legislation always has to be flexible enough to be amended based on new and emerging evidence. That allows the Government to set the right level of technical detail to ensure legal clarity. We will therefore consider the matter very carefully in our consultations post Royal Assent. I note that the shadow Minister referred to “if” we decide to use these regulations. Let me be very clear: these are precisely the kinds of things we will be looking at when we are moving like the clappers to get the regulations through.

In addition, nicotine pouches will be covered by all our other measures designed to reduce the appeal and accessibility of such products to children, such as powers to restrict flavours and regulate packaging, as well as those on general advertising. The shadow Minister gave an example of promotions that give out iPads in exchange for empty pouches. We clearly need to look at that specific promotion, but we are confident that it would be banned under the advertising restrictions that we have already debated and agreed to in Committee. I therefore ask her to withdraw the amendment.