Health Bill |
|
Sir George Young: I shall develop my hon. Friend’s point in relation to subsection (3), which makes it clear that the person whose job it is to ensure that a place is smoke-free can, in certain circumstances, commit an offence. My concern is not with the people right at the bottom of the management chain, but with those right at the top. For the sake of argument, let us take the Palace of Westminster. These are premises in which people work and I am not aware that we exempted the Palace from the provisions of clause 2. There is therefore a duty on somebody who
in the Palace of Westminster. The Palace is largely smoke-free, and so it should be. The Aye Lobby and the No Lobby are also smoke-free premises, and one should not to smoke in them. I am happy to say that when I vote with my party, which is 99 per cent. of the time, I do not see anybody smoking. More recently, however, I have voted with Government Members,
My hon. Friend the Member for Westbury said that it might be quite difficult for people to enforce the provision, but they will none the less commit an offence, and the clause goes on to specify what sort of offence that might be. It would be helpful if the Minister reassured us that she has thought the provision through, that it is in line with existing legislation for places where smoking is already banned, such as on railways, airlines and buses, and that it is broadly in line with the responsibilities that other countries have placed on management when introducing provisions such as those in clause 9. Steve Webb: I have a couple of observations to make. The tenor of Conservative Members’ remarks was that the clause could be too severe, particularly in relation to junior members of staff. I share the view that we do not want new, inexperienced junior members of staff to be put in a difficult position or to be unduly penalised. I therefore hope that the Minister will repeat the comments that she made at the start of the sitting, when she said that that is not what the clause means in terms of management and responsibility. However, there is a contrary argument. Some suggest that the penalty is not severe enough and that it should be more severe. The rationale for that view is that in the Bill the manager of a premises who fails to prevent smoking is liable for a penalty of up to £200, whereas the maximum penalty in the Irish Republic is £2,000 and there is also a power to close the premises for three months, which is clearly very serious. The question is how seriously do we want licensees, landlords and managers to take the responsibilities in the clause? We shall come to other enforcement issues, but there will clearly not be many enforcers and they will not be present much of the time, so the chances of being caught are pretty slim. My philosophy of criminal justice—I am sure that you have been dying to hear it, Lady Winterton—is that it is the fear of being caught, not the penalty, that is critical to ensuring compliance. In the present case, however, there is a low likelihood of being caught, because there are few officers who have to cover a lot of ground, perhaps late at night, so people will know that there are times when they will get away with the offence. If we combine a low likelihood of their getting caught with the fact that the penalty will be a couple of hundreds pound at the most, it makes me wonder whether the action to cope with the offence is sufficiently serious. Just as we want smokers and potential smokers to be subject to a cultural shift,
As for the point made by the right hon. Member for North-West Hampshire, I worry less about the Division Lobbies in the Commons than about other premises because few enforcement officers will be allowed to carry a sword to enforce the law. Royal palaces are probably excluded from the Bill anyway, so that is not a particular concern. In ordinary circumstances, however, I am worried that little enforcement will take place. Dr. Murrison: Will the hon. Gentleman give way? Steve Webb: I am about to finish by saying that if the fine is a slap on the wrist, we might not achieve the cultural shift that we want. Caroline Flint: Members of the Committee will be aware that, from Easter this year, virtually all parts of the House of Commons were designated smoke-free. The palace is Crown property, so it is not covered by legislation. That said, if the right hon. Member for North-West Hampshire finds himself in that position again, I am sure that the Serjeant-at-Arms would be willing to send a letter to all MPs reminding them of the non-smoking areas in the House of Commons. I hope that that might be enough to encourage compliance with the rules under which we are asked to work. I take the point made by the hon. Member for Westbury. Let us imagine that we are in a public place such as a supermarket, a small shop, a café or restaurant, a pub or even a leisure centre and someone comes into the building, perhaps worse the wear for drink, and makes a nuisance of himself. He might not be under the influence of anything, but he is making a nuisance of himself. Dropping litter, vandalising parts of the building and smoking in a smoke-free establishment are challenges that are faced daily by people who work in such environments and they must be dealt with in different ways. Organisations such as the Union of Shop, Distributive and Allied Workers have a campaign in respect of violence and abuse towards shop staff, which I very much welcome and commend. It is the reason why it has been engaged with the Government on anti-social behaviour issues. I am not complacent about problems faced by employees who have to deal with the public in bars and elsewhere. They might have to ask a person to desist from doing something or to curtail a certain activity. Clearly, it should be a company’s policy to advise its staff on the action that they should take and on where they should seek advice and support—even from security staff—to deal with situations when it is likely that the person in question will not go away quietly. Dr. Murrison: The Minister has given us some examples of situations in which there may be potential problems, such as when people are violent or the worse
5.30 pmCaroline Flint: I think that I said that in my opening remarks that there may be occasions when someone under the influence of anything can act aggressively. Another factor is that we come in all shapes and sizes, and people who may look as if they could be aggressive turn out not to be and others who may look as meek as lambs can turn nasty if asked to desist from doing something. Employees who deal with the public have to face such situations every day, but we do not suggest that people should put themselves in danger when trying to ensure good order. That is important. As I said earlier to the hon. Member for Northavon, the responsibility lies mainly with those who control or manage smoke-free premises. It would be a defence for a defendant to show that he had taken reasonable steps to stop a person smoking—that he had requested a person to stop smoking, but the person simply continued—or that he did not know and could not reasonably be expected to have known that a contravention had occurred. A person could be given false information by an employee; or a scenario could occur in which a friend of the employee’s—I hope it would not happen—decided to look away and not pass on information to the employer, but another customer decided to refer the matter to the local authority. In such situations, the manager might be held to account for something of which he was not aware, but he could not be held responsible for it. I can think of other examples. For instance, staff sometimes have to give priority to other legal duties. For example, while a shoplifting episode or something else is happening in a store—perhaps someone is having a heart attack—the staff dealing with that situation could fairly claim in defence that they could not at the same time handle the fact that someone had walked in with a cigarette. In such situations, one has to apply common sense. The hon. Member for Westbury spoke about alcohol, but there will be exemptions for bars that do not serve food. That will give those who want a drink the option to have a cigarette at the same time. It is not necessarily the case that people have no choice: they have the choice of going somewhere else. It is fair to say that choice could help to dampen concerns about aggressive individuals being asked to smoke elsewhere. That is an important point to make, because the hon. Gentleman made a lot about the mix of alcohol and smoking in bars and the fact that it might be a problem to tell someone who had had a drink that they could not smoke. We have discussed at length the fact that we are exempting bars that serve only alcohol, so there
As for the points made by the hon. Member for Northavon, I said earlier that I was still considering the question of deterrence. Part of our consultation dealt with those who control or manage establishments. The view was expressed that the fines should be higher and I am reflecting on that. I must also take account some of the other questions raised about the fine. A fine of up to £200 is proposed; that is the amount on which we consulted. I would be very interested to hear the views of members of the Committee—if they do not want to say now, they can let me know informally—on whether it is sufficient, especially as some may feel that it is a price worth paying given the takings on Friday and Saturday nights. That is a valid point. If we think of the thousands of pounds that can be made over the weekend in some licensed establishments, it may seem that it is worth risking some of the fines. I am thinking about that. I am also thinking about repeat offences. I would prefer there to be few repeat offences. I hope that offenders will realise the error of their ways, decide that the fine is not a price worth paying, and deal with the issue themselves. Again, I would welcome the views of others on that, either in Committee or outside it. I hope that the Committee will let clause 9 stand part of the Bill. Question put and agreed to. Clause 9 ordered to stand part of the Bill. Clause 10 Enforcement Steve Webb: I beg to move amendment No. 76, in clause 10, page 6, line 15, at end insert—
We continue with the subject of offences, but are moving on to enforcement. As the Committee will be aware, the clause deals with which national authorities have responsibility for enforcement and to whom those responsibilities may be delegated. There is talk of an authorised officer doing the enforcement. The purpose of the amendment is to stress to the Minister that we are keen for regulations on how enforcement should take place to be drawn up in close co-operation with, as the amendment says,
We have in mind groups such as the Chartered Institute of Environmental Health and the Local Government Association—the front-line staff with the expertise from which we hope the Government will benefit. We had an exchange in which the Minister said that her instinct is that those people know all about fixed penalty notices. That was the tenor of her remarks. The response was that the associations have said that their people do not do that kind of thing and that this is new territory for them. Column Number: 220 A number of issues are involved. I shall try not to repeat what has been said, but clearly some of it is germane to why we need to listen to organisations, certainly on safety. Let us imagine a crowded pub—we are getting slightly obsessed with pubs, but this is an obvious example—where people are fairly well oiled and more than one person is smoking. In a way, if there is just a lone smoker, enforcement is not so much trouble, because there will be much more peer pressure. However, it will be harder to approach a group of smokers, so in such a case we should assume that there would be not one environmental health officer, but two or more. As I understand the clause, environmental health officers do not necessarily have police powers, such as the power of arrest or power to demand identification, but it would be helpful if we were slightly clearer about that. The Chartered Institute of Environmental Health is concerned that a spot fine will be ineffective
It is referring to the risks to enforcement staff. Clearly, we do not want to put enforcement staff in a dangerous position, so I hope that when organisations make representations to the Minister, the Government take account of them. In parentheses, I should say that when the amendment says, “shall consult with”, implicit is “and shall take notice of what they say”, but I do not think that we will be able to include that in the Bill. There are precedents in relation to the smoking ban issue in which consultations were held but notice was not taken of the results. We want the Government to listen to, and act on, what the organisations say. We are highlighting concerns about safety and shortages of enforcement officers. A recent survey conducted by the Chartered Institute of Environmental Health has revealed a national shortage of some 700 environmental health professionals throughout England, Wales and Scotland. Presumably, several hundred more will be required to enforce the legislation, so the question is where those people will come from. I do not imagine that people will queue up to reply to an advertisement for people willing to spend their Friday nights going into crowded pubs, approaching drunks and asking them to put out their cigarettes or giving them fixed penalty notices. I support the legislation, but the Government will have to learn more from what the people on the front line are saying if they are going to get this right and enforce it effectively. I appreciate that there is time before the regulations are introduced, as the amendment implies, but I would be grateful for any assurance from the Minister that she will listen to the professional institutes now. Given the shortage of environmental professionals, we need to train new people to do these jobs, which clearly will take a long time, so the sooner the Government listen and act on the recommendations of those professional bodies, the better. Column Number: 221 We have not yet got to the bottom of the issue of enforcement officers asking for proof of identity, as we assume they will have to do. As I said, the CIEH has said that its enforcement officers need those powers. I do not know what pubs you go into, Lady Winterton, but many of the people I go to pubs with do not carry identity. They may have a credit card with their name on it, or a driving licence, although obviously we encourage people not to drink and drive, or they may not. Until the happy day arrives when the Government require us to produce an ID card when we buy a drink, it is not clear how enforcement will work. What is an environmental health officer meant to do if he asks the name of someone who is smoking and that person comes up with a name but cannot prove it? Car drivers, for example, have to produce documents, so the car is a fixed reference point from which to determine a driver’s identity, as we have discussed. In the case of an individual, however, the amendment probes the question of how confrontational the environmental health officer will have to be in such circumstances. If someone gives an implausible identity, will the officer have to ask for proof? What are the powers to do that? The professional bodies have strong views that I hope the Minister will take into account. I am aware of the broader debate to be had on the clause as a whole, so I shall not persist with my argument. I hope that the Minister will assure us that she already has plans to listen to what the professional bodies are saying and to take action to deal with the very serious shortage of people to enforce the legislation. I have another point to make in parenthesis. Mention has already been made of the public being able to ring a number and report a smoker. How far will the work of the professionals who must enforce the provision be reactive and involve going to a known problem area to deal with problems and report them? In which case, will they have sufficient numbers to overcome those problems and how far will this be proactive, involving touring the bars and pubs to see what they can find, which is a very different model of enforcement? Again, I hope that the Minister will listen to what the professional bodies believe to be the most effective way of enforcing the legislation, which I want enforcing just as much as she does. The Chairman: I call the hon. Member for Westbury, who has almost stood up. Dr. Murrison: I believe that I made my intentions clear this time, unlike on previous occasions when I may have been a little more subtle. There is a great deal of sense in the amendment tabled by the hon. Member for Northavon. It is clear that Ministers have not adequately explored the implications of the Bill with various interested organisations, otherwise the Local Government Association, for example, would not have volunteered the fact that its members’ employees are not at all
5.45 pmA number of organisations are potential consultees, and I hope the Minister will approach them before she makes any regulations. The amendment’s purpose is to reinforce in her mind the need to consult such organisations before she takes the regulations further. That is all I want to say at this juncture. I am aware that we may, if we are very lucky, have a clause stand part debate, during which I would like to explore the clause a little further. I support the hon. Member for Northavon, whose point is extremely well made. It is regrettable that the amendment is necessary. It seems, given the representations on the Bill that we have received from various organisations, that, arguably, we have got off on the wrong foot, as it has been suggested that Ministers have not consulted as well as they should. They would be well advised to do better in future. With that in mind, I am inclined to support the hon. Gentleman. Caroline Flint: The discussions are ongoing, and I have made that quite clear. There will be draft regulations, which I shall ensure are informed by discussions and consulted on before being subjected to the affirmative resolution procedure. There is no suggestion that all the issues have been resolved. Some areas have to be considered further, and details of those have to be provided. When I mentioned fixed penalty notices, I was not suggesting that environmental health officers have the necessary experience in issuing them. However, I find it hard to believe that in our environment—with regard to local government and the steps taken to tackle antisocial behaviour in our communities—environmental health officers, trading standards officers, community support officers and those working for councils in partnership with the police and others are unaware of fixed penalty notices as a means of curtailing inappropriate activity in the community. I hope that, as part of the discussions with the relevant organisations, there might be a debate with those within and outside councils on how fixed penalties are applied in the community. That might be helpful and give an indication of the issues and problems, as well as the opportunities, that fixed penalty notices provide. I agree with the sentiment behind the amendment tabled by the hon. Member for Northavon, but it is unnecessary to include it in the Bill because we have already agreed to do this. Indeed, we are already doing it. That is one reason why we deferred to the independent consultants used by the Chartered Institute of Environmental Health when it devised a range of estimates of what the costs may be—between
Consultations will continue to take place. A number of issues have been raised by hon. Members relating to points made in the briefing by the LGA and others. I will ensure that officials deal with those points and that they form the substance of continuing discussions with those organisations. As I have said, we all desire the draft regulations to be informed by those consultations and we will give a further opportunity for consultation once they are published. Steve Webb: Will the Minister reassure me on this point? Clearly, representations have already been made and discussions have taken place, but my point is that I am not convinced that enough notice has been taken of what has been said. Given that organisations have already raised the point about the shortage of people to do the job, what are the Government doing about that? Caroline Flint: On the surface, it is difficult to raise an issue about the shortage of people to do a job when it has not yet been determined how much work will be involved. It is common sense to recognise that in other jurisdictions where restrictions or bans have been brought into force the experience is that enforcement has not been as necessary as people might have thought. There has been huge self-enforcement and compliance, and it is difficult to determine at this stage how many extra environmental health officers, trading standards officers or others may be necessary to enforce the legislation. A common-sense approach is important. In the lead up to the enforcement of the legislation, it is important that, within local communities, there are discussions with establishments that will be obliged to be smoke free as to their responsibilities under the law, where they can go for extra advice and how to sort out the signage. There should be discussions in local communities about how best to enforce the legislation. On the point about compliance, I have to admit that some activity will be reactive, but, to be honest, I would suggest that quite often environmental health officers and others react to information that they are provided with in order to ascertain whether an establishment is flouting the law in an ongoing way. They have to deal with that in all sorts of areas—this will be just one of them. In the same way, trading standards officers often have to respond to information and intelligence provided about selling cigarettes, alcohol or glue—and in the future, with the legislation that is coming in, knives—to those who are under age. That is nothing new, so I do not think that some of the points are particularly well made. However, I can assure the Committee that I will ensure that all the points are discussed. We may not agree with some organisations all the time, but that is part of the consultation process. We want to ensure that the Bill works and is effective, because it is in no one’s interest to have ineffective legislation. Column Number: 224 On the point about identification, paragraph 2(e) of schedule 2 sets out the requirement for an individual to give information to an enforcement officer. Not giving correct information may be an offence. My advice is that that deals with the point about the provision of a name and address. I will seek further assurance on that and also take the time to look at how it applies in other circumstances, when fixed penalty notices are used for other reasons but operate in a similar framework. However, my understanding is that that provision basically provides that power or influence to an enforcement officer. Steve Webb: I accept that paragraph 2(e) of schedule 2 appears to give enforcement officers the power to ask for the information, but what will happen if the individual says that they cannot prove who they are? What is meant to happen then? Caroline Flint: Again, that issue will have to be considered. The enforcement officer may want to ask the publican or others, if the person in question is with a group, whether they can confirm who the person is. I imagine that that is not the only time that we will be confronted with a situation in which people want to find a way to get around having to declare their identity to those who have a right to ask for it. Those issues must be thought through. We need to be clear about the powers of the environmental health officer, or somebody else who may be designated to undertake the role, and take advice and find out what would happen in the other circumstances that, for different reasons, apply just as well. There may be other circumstances involving police officers, rather than environmental health officers, who may find that someone says, “I’m Bert Bloggs, but I can’t prove who I am.” We must have discussions with people about how they deal with such matters and, in doing so, ensure that the powers are proportionate and reflect the individual citizen’s rights under the law. I hope that, given my assurances about the ongoing discussion on enforcement, the consultation in relation to draft regulations and the affirmative resolution procedure, the hon. Member for Northavon will withdraw his amendment and we can move on to the clause stand part debate. |
| |
| ©Parliamentary copyright 2005 | Prepared 15 December 2005 |