Health Bill |
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Steve Webb: I am only partially reassured by the Minister. I do not doubt for a moment her good faith, or that discussions have happened, and I do not even doubt that further discussions will take place, but I do not get a strong sense from her response, and some of her comments earlier this afternoon, that the Government understand that “consult” means “consult, take account of and act on”, not merely “be in the same room as”. A lot of issues need ironing out. The Minister implied—I hope this is not an unfair paraphrase—that the law is not coming in for a couple of years so the Government cannot know how many environmental health officers will be needed. Given that it takes six years to train a dentist, an environmental health officer cannot be generated overnight. Forward planning is needed. The professional organisations we are talking about are
Likewise, we all know what a fixed penalty notice is, but the professional bodies are saying something stronger—that they have no experience of dealing with them. The Minister seems to think that that is not a problem, because someone else in the council hands out fixed penalty notices, so environmental health officers should just talk to them. That response is complacent and the effectiveness of the ban that we Liberal Democrats want may be undermined if the Government are not obligated to listen and learn from the professional bodies. I will not withdraw the amendment, because I wish to test the view of the Committee. Question put, That the amendment be made:— The Committee divided: Ayes 7, Noes 8. [Division No. 3] AYES Blunt, Mr. CrispinDorries, Mrs. Nadine Lansley, Mr. Andrew Murrison, Dr. Andrew Webb, Steve Williams, Stephen Young, Sir George
NOES Butler, Ms DawnEngel, Natascha Ennis, Jeff Flint, Caroline Hodgson, Mrs. Sharon Kennedy, Jane Kidney, Mr. David Merron, Gillian Question accordingly negatived. Question proposed, That the clause stand part of the Bill. Dr. Murrison: We are somewhat concerned about the implications of clause 10(4) and we seek clarification from the Minister of what she means by it. It seems that she wants to abrogate the powers that would be given to the enforcement authority under certain circumstances and give them to the national authority. We want to know what those circumstances might be. We understand that they will apply to a set of cases or situations, or on an individual basis. That leads me to think that she might wish to use subsection (4) if, for example, a local authority was not enforcing the legislation in a way the Government felt appropriate. We have heard about resources being handed down from the Department of Health—between £7 million and £20 million—to local government to carry out this work. As we understand it, that will not be ring-fenced. Therefore, the Government might take the view that they need to have a handle on how the money is being used and whether it is being used to enforce the legislation. How will they do that? How will the national authority have that handle on enforcement authorities—on local government? Column Number: 226 6 pmThe Minister may say that that is how the Government intend to do things. This could be simply the big stick. If not much enforcement was going on, however, the national authority might decide that it needed to take the powers. If that is the case, perhaps she would let us know. What measures will she take to audit the enforcement action taken by local authorities? That is obviously linked with this matter, and presumably Ministers will be interested in that. The Minister more or less said that all this will be reviewed at some point. Presumably one of the things that she will examine is the enforcement activity that is occurring so that she can ensure that local authorities are enforcing, rather than using the money for other things. Mr. Lansley: This may not have any bearing on the matter, but although subsection (4) gives the national authority—meaning the Secretary of State or the Welsh Assembly—the ability to act as its own enforcement authority, as far as I can see, the clause does not require such enforcement activity to be undertaken by a person who has qualifications as prescribed by the regulations. Subsections (5) and (6) relate to the “authorised officer” of an enforcement authority but would not bite on persons acting on behalf of the Secretary of State or the Welsh Assembly. Dr. Murrison: My hon. Friend, as ever, makes a good point. No doubt the Minister will try to establish who in the national authority, in the circumstances referred to in subsection (4), would be entrusted with taking enforcement action, local government presumably having failed in some way. It is not at all clear what those circumstances would be. Hopefully, the Minister will be able to give us some sort of clue. I am concerned about something else. We understand that a sum of money will be handed to local government for the purposes of enforcing the legislation, and we have identified after a fashion where that money is coming from, but the risk is that local government, faced with the demands that we know it labours under, will use the money for something else. It would be interesting to know where in the great scheme of spending priorities the Minister feels this will lie. I can think of all sorts of pressing things that exercise my environmental health department. I am in constant dialogue with my local authority. I regularly raise things relating to noise and such issues with the chief executive of my district council. Environmental health officers spend a great deal of their time addressing issues at the behest of people such as myself and other members of the general public. A great deal of their time is spent on firefighting: responding to various concerns raised by individuals. That, inevitably, is where all the money will end up being spent. My worry is that it will all be rusticated to local government and spent on other things. We might not get much enforcement or it might be done in a piecemeal way. The Minister presumably has some idea how much enforcement there should be. I know that it is difficult to assess, because enforcement will vary from area to
The Local Government Association is clearly very concerned, and the Liberal Democrat amendment, which I think was taken verbatim from the one suggested in the briefing note with which we were all provided, underscores the association’s worries. The LGA talks about clarity and the fact that things that are clear are easier to enforce, as my hon. Friend the Member for South Cambridgeshire (Mr. Lansley) said. The association makes a plea for clarity and says that greater clarity would lessen the burden on its members and make the provisions largely a matter of self-regulation—a subject that we discussed earlier. The Minister has more or less admitted that had we erased the distinction between food and non-food, as the Opposition proposed, the Bill would have been not only better, but far easier to enforce. The light touch to which she referred would then have been appropriate and all that was necessary to enforce the measure. The LGA is concerned about better regulation and mentions the Hampton review of March 2005. To what extent has the review been factored in? How much thought has the Minister given it in the context of clause 10? We have covered fixed-penalty notices reasonably exhaustively, but they are important. The LGA, which is right at the front on this issue, is clearly of the view that FPNs, as the Minister put it, are new to its members, who employ environmental health officers. That is what the association says, and we must take it at face value. There will clearly have to be something of a culture change so that environmental health officers and enforcement officers are comfortable with the measure and particularly with FPNs. I am worried about the implications for enforcement officers of pinning FPNs to individuals, and the hon. Member for Northavon was correct to note that they will be putting themselves in the line of fire. We assume that more enforcement officers will be required to enforce the legislation. It would be remarkable were that not to be the case. We know from constituency experience that there are often difficulties with environmental health departments. It is difficult to get an EHO to investigate a complaint
Where will all the EHOs come from, especially as we are changing the job spec somewhat? Although I suspect that EHOs are used to confronting individuals from time to time, to challenging people’s behaviour and to giving people bad news, I doubt whether many are welcome visitors to premises. Nevertheless, clause 10 moves them up a league, because they will, according to the Bill, be expected to face down difficult situations in tandem with those who will be responsible for the day-to-day management of premises. One not only expects to recruit more EHOs in a fairly tight time frame but to change dramatically the nature of the job. It would be good to hear that the Minister has adequately thought that through. Is she content that she has consulted sufficiently with organisations such as the Charted Institute of Environmental Health and the Local Government Association to ensure that the legislation is as accurate and watertight as possible? Will the Minister speak about the new burdens doctrine, with which she will be familiar? To what extent will local government not be involved in funding any new costs? That is the intention of the doctrine, but it appears that, despite the moneys been volunteered in the guidance, there is a risk that that £7 million to £20 million may be a little on the light side, if it is to be enforced properly and if I have read subsection (4) correctly. Indeed, subsection (4) leaves it more or less up to the Secretary of State to determine any duty imposed. If the national authority insists on the increase in enforcement that that relatively small sum of money will allow, the cost will apply to our council tax payers at a time when many constituents are heartily fed up with a tax that has rocketed so much since 1997. I ask the Minister to pay particular attention to clarifying subsection (4). Caroline Flint: I will attempt to answer several points raised in the debate. On the number of enforcement staff that we estimate will be required in order to enforce the legislation, I refer hon. Members to page 53 of the explanatory notes:
I hope that that indicates that we take seriously views expressed by different organisations, just as we have taken on board their independent comments on the different costs. We shall continue to discuss how the legislation will work in practice and how the funding should follow. Of course, monitoring raises issues. We must evaluate the Bill’s success in practice, and one way to do that may be the number of prosecutions. A high number will suggest non-compliance and raise the question whether we should do more to alert the public to the legal state of play. A low number would presumably be some indication of a high level of self-enforcement. Column Number: 229 6.15 pm It is wrong to suggest that the discussions under our proposals would not happen under a total ban, with no exemptions. We should still, in that case, have had to follow up matters of signage and enforcement, including appropriate fines for individuals or those who run establishments. We should, regardless, have needed conversations about which bodies should become enforcement authorities and the implications for their work load. It is wrong to suggest that those discussions result only from the approach in the Bill. Dr. Murrison: The Minister is being very good. I am grateful for the figure of 220 to 318, which I should have read for myself, but I am intrigued to know where those folk will come from, as I understand that being an environmental health officer is a graduate profession and that considerable post-graduate experience is required to qualify. As the Bill’s enforcement provisions will come into force in 2007, it seems that there will, at the crucial early stage that the Minister mentioned, which is also mentioned in the guidance notes, not be sufficient trained EHOs to do the work. What will we do about that? Caroline Flint: Those matters are part of the discussions, but also part of the way in which local authorities work in partnerships on environmental health issues. It is intended that enforcement officers will in practice be mainly local authority environmental health officers, but others such as trading standards officers or those responsible for health and safety may be appropriate according to local circumstances. That is an aspect of the discussion that we need to engage in, and in part it will be influenced by the structuring of different local authorities and how they work together. Mr. Lansley: I am curious. Was the Secretary of State’s decision that the provisions would be put into force in summer 2007 and not 2008 made after discussion with the Local Government Association or the Chartered Institute of Environmental Health? Caroline Flint: I stand to be corrected, as I am relying on memory, but I think that many responses to the consultation—I think some were from local government—wanted the timetable brought forward. I shall check, but many organisations that wanted a total ban also thought that the date should be brought
I remind the hon. Member for South Cambridgeshire that although we seem to have concentrated on licensed premises, a great deal of the Bill is concerned with non-licensed public places, to which a total ban will apply. They include cafés, shopping malls and other areas in which enforcement will be required. Our earlier proposal was that a later date should apply to licensed premises, but that has been presented slightly differently in the Bill. We want to work with people in good faith, and it is my understanding from the Local Government Association and those who represent environmental health officers that there was a desire for the Government to legislate. It is not, therefore, the case that individuals and organisations did not want the measures, albeit some of them might have wanted a total ban. Rather, they consider the issue important for environmental health and for the health and culture of the communities in which they work. There are clearly many issues to be sorted out, and we shall endeavour to do that. The Hampton review, to which the hon. Member for Westbury referred, is considering simplifying inspection enforcement by establishing a new enforcement officer role and a single visit to deal with a range of enforcement issues. One aspect of that is to think about any dual relationship between those working in trading standards and the environmental health officer role. We are considering the issues involved in risk-based inspection. I think that I was frank about the fact that many people who work with the public, whether in the private or the public sector, in an accident and emergency department, in Woolworth’s, in a café, in a pub or on the council tax counter of a local authority, constantly have to review the way in which they deal with people for whom they might not be providing good news, or whom they might be asking to desist from an activity. We should all appreciate that such things have to be considered by those who encounter the public. That is one reason why we are discussing the training necessary for people who are to carry out that role in relation to smoking. I do not say that there will not be instances in which people become aggressive, but I have found, as, no doubt, have other Committee members, that often, even in an environment that is not non-smoking, somebody who is smoking can be asked politely to do so in another area or not to do so at all. For the most part the voluntary agreement has worked pretty well for a number of years. On enforcement, and looking at the risk while simplifying the role, we are aiming to see whether a useful way can be found for the work to be spread among a range of enforcement officers. While it is intended that enforcement officers will be mainly local authority environmental health officers, others could play a role as well. The hon. Member for South Cambridgeshire referred to subsection (4). My understanding is that it is to be used as a reserve power that might be exercised
Dr. Murrison: I may have interrupted the Minister prematurely, but I hope that she will give us some examples, because at the moment she is asking us to accept at face value her assurance that there is some precedent relating to the Tobacco Advertising Act. We need some concrete examples. We are simple folk who need a pen picture of the kind of circumstances in which a national authority might take to itself the powers that it has given to local government. Caroline Flint: That might happen, I suppose, if there was sufficient evidence to suggest that people were getting away with not enforcing the law or that smokers were not abiding by it. I will seek further guidance, but I presume that the measure will apply in circumstances in which it becomes apparent that an enforcement agency is failing in its duty to act appropriately. As I said, hypothetical situations that spring to mind are those in which evidence has been given—through complaints, for example—that prosecutions are not being undertaken or that people have raised issues that have not been followed up, or in which an enforcement agency refuses to act, even given evidence of abuse of the law, which I doubt would happen. I reiterate that the clause gives similar powers to those given in other legislation, particularly in relation to tobacco advertising and promotion. I shall seek to find out more about that and will write to the hon. Gentleman on this issue, if he agrees to that. Dr. Murrison: I should be interested to know more. When the Minister writes, will she let me know what qualifications the individuals who will exercise the authority, having taken it from the local government bodies that were meant to exercise it, will have? I am afraid that we are no further forward after the Minister’s comments. I simply do not envisage a situation in which subsection (4) will be necessary. Will she let me know in her letter what qualifications those who would exercise the power from the centre in this hypothetical situation, which I hope that she will describe rather better in her letter, will have? Caroline Flint: I confirm what I said earlier—it is pleasing to know I was right—which is that in the consultation the Trading Standards Institute, the local government association and other organisations concerned with representing environmental health all suggested bringing forward the date to spring or summer 2007. I acknowledge what some of those organisations said about enforcement and preparation, but that did not seem to get in the way of
Other examples regarding enforcement authorities are situations in which such authorities consistently fail to enforce, or in which particular companies or industries refuse to comply and it is too difficult for single enforcement authorities to deal with those matters. Mr. Lansley: I am sorry to hold the Minister up. I am sure that she will be able to describe to us how the measure will work when she has had the chance to think about it, but there is a possible difficulty with the fact that enforcement authorities might be both local authorities and the Health and Safety Executive. The circumstances that she described might not be encompassed within any one enforcement authority or small group of local authorities, but it might be perfectly reasonable to use the power to transfer the case to the HSE. We are not sure that it is necessary in all those circumstances to have this reserve power, as other mechanisms are available. 6.30 pmCaroline Flint: I will seek guidance on that, and am happy to write to hon. Members about it. Part of the objective of Bills and regulations is to cover our bases for eventualities that we hope will not occur but for which we must be prepared. I hope that I have satisfied the Committee as to our continuing dialogue about enforcement. Our best example are those countries that already restrict or ban smoking. Their enforcement costs have been pretty limited and the arrangements have worked well. We will be looking at training for individuals, whoever they may be. Clearly, if someone has not been trained to issue a fixed-penalty notice, we would want to ensure that he has the appropriate training along with those other individuals who have currently been given those powers in the communities we represent. Question put and agreed to. Clause 10 ordered to stand part of the Bill. Schedule 2 agreed to. Clause 11 Obstruction etc. of officers Question proposed, That the clause stand part of the Bill. Dr. Murrison: I hope that I am making my intentions more and more apparent and springing to my feet with greater and greater alacrity, despite the fact that we are nearly finished. The clause is reasonably straightforward. It concerns the obstruction of officers, which we have dealt with to some extent. We are all worried about the possible effects of the Bill on those who are entrusted with its enforcement. That point is worth restating. My only other point is a question about subsection (4). Again, it brings us back to where we peg the offence on
Caroline Flint: The offence has been set at that level because it is in line with advice from the Home Office about other occasions when people obstruct the course of justice and refuse to comply by providing information. It is as straightforward as that. While I accept that we are not necessarily talking about a violent situation—although some comments have suggested that a huge amount of violence will be encountered in trying to enforce the Bill—regardless of an offence, whether it is violent or not, to obstruct the course of justice is a serious matter. We should therefore have parity with the levels that apply to the offence in other circumstances, particularly when someone is trying, in good faith, to carry out their responsibilities under the law. Question put and agreed to. Clause 11 ordered to stand part of the Bill. Clause 12 Interpretation and territorial sea Amendment made: No. 73, in clause 12, page 7, line 18, after ‘tent,’ insert
Clause 12, as amended, ordered to stand part of the Bill. New Clause 2 Age of sale
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