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Lord Faulkner of Worcester: My Lords, before the noble Lord moves on from the regulatory impact assessment, he may not be aware that the commission conducted a second study after representations were made following publication of the first draft. It then extended the timescale over which it saw the benefits flowing to the nation--because of the length of time that it takes for diseases such as lung cancer and heart disease to take effect as a result of passive smoking. If the noble Lord looks at those figures, he will see that the benefits that come from the interaction of the code are substantial and completely outweigh the costs.

Lord Clement-Jones: My Lords, I entirely accept that. But the costs were not altered; the benefits may have been. The costs were still wildly out of line. Is it too much to ask that employees should be entitled to smoke-free work areas with good ventilation. I suggest that the Minister has a few questions to answer. What precisely are the Government's intentions? Will they re-examine as a matter of urgency the compliance costs and benefits? What further research is being undertaken about the impact of passive smoking? If they have reservations, what alternative proposals do they have?

There is a very strong whiff of government on the run about this code and its treatment and there is certainly a cloud of suspicion on these Benches. I hope that the Minister can dispel it in his reply.

8.12 p.m.

Earl Howe: My Lords, I begin by thanking the noble Lord, Lord Faulkner, for introducing this debate so ably and by declaring my interest as a non-smoker. I am in fact a non-smoker who detests tobacco smoke, having done so since the age of 11 when I tried my first and only cigarette at the bottom of the garden. Both my parents, on the other hand, were smokers, and I like to believe that I have always been tolerant of those who may wish to light up, even if I never choose to do so myself.

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However, the extent to which I am prepared to remain tolerant has perhaps waned in recent years, with my growing tendency to bronchitis and with the emergence of new scientific data on the effects of passive smoking. The first document on passive smoking that I read in any depth was the relevant section of the report of the Scientific Committee on Tobacco and Health, published three years ago. Many of the conclusions from that report were picked up in the Government's subsequent White Paper, Smoking Kills. There are some uncompromising messages there about the risks to non-smokers of inhaling environmental tobacco smoke, or ETS, if they live with a smoker. In the specific context of the workplace, the three messages of particular relevance are those relating to asthma, ischaemic heart disease and lung cancer.

Here it is worth making the obvious but key point that, unlike, say, an evening out, where you can choose whether or not to go to a restaurant that allows smoking, time spent in the workplace is rather different. The element of choice is largely, if not wholly, absent. Furthermore, if you are exposed to tobacco smoke at work, you may well be exposed to it for a substantial proportion of the day and therefore, by extension, for a significant proportion of your lifetime. The risks associated with passive smoking in the workplace are therefore ones to be taken very seriously.

As has been said by many noble Lords, there is wide support among employees for smoking restrictions in the workplace. The HSE mentions in its proposal that more than 3 million are estimated currently to be exposed to ETS at work. However, the key judgment to be made here is whether any further statutory action, as proposed by the HSE, is proportionate to the risk and to the cost. As the HSE concedes, we do not really know with any precision what the risks are of developing diseases such as cancer or heart disease from passive smoking at work. The risks from passive smoking are in any case dependent on the quantum of exposure to tobacco smoke. The risk to the health of people who already suffer from asthma or bronchitis is certainly much more clear cut. But already, under the law as it stands, employers have a duty to ensure the health, safety and welfare of all employees. For that reason I believe that the HSE is right to reject the option of yet more legislation. In so far as there are employees at risk, it is a question of making the existing law work better.

The proposal of the HSE for an approved code of practice has obvious attractions. One of them is that it would provide clear guidance to employers without being overly prescriptive. Like the Highway Code, as the noble Lord, Lord Faulkner, pointed out, it could be used in evidence in a prosecution without its

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provisions being mandatory in themselves for employers. In that sense I agree with the noble Lord, Lord Monson, that it could be described as "liberal".

Lord Monson: My Lords, perhaps I may say, as the noble Lord, Lord Clement-Jones, made the same point, that I said "relatively liberal", not "absolutely liberal".

Earl Howe: My Lords, I am about to qualify what I have just said, so I think that I would probably agree with the noble Lord.

We must be absolutely sure that a new statutory code of practice, with all its attendant implications, is warranted. The code would be compulsory in the sense that a breach of it would lead almost automatically to a conviction in any health and safety prosecution. That aspect of it means that it is right to talk in terms of the burdens on business that it would impose. The costs of the code are estimated by the HSE at between 3.1 billion and 8.9 billion over 10 years, which is between two and four times larger than the estimated value of the benefits over the same period. Even if the benefits look somewhat rosier over the longer term, costs of that order, especially in a climate of deregulation, need to be justified.

Paragraph 27 of the HSE proposal says that the main thrust of a code of practice would relate to ways of avoiding discomfort and irritation to employees--in other words, to welfare issues as distinct from health issues. Any benefits to health would be taken as following on from improvements to welfare. I find that statement troubling. It has all the look about it of a sledgehammer descending on a nut. Given that the benefits to health form only a proportion of the total quantifiable benefits of introducing a code, because about half the benefits relate to safety and productivity, the Government should be cautious about imposing the kind of cost burdens that would flow from this recommendation. Spending money to achieve better productivity should be a management decision, not a decision imposed by government. The benefits to safety and welfare, as quantified by the HSE, rest, as I read them, on some fairly tenuous assumptions, not the least of which is that the introduction of a code of practice which explicitly allows for the continuation of some smoking in parts of the workplace would result in a reduction of about 80 per cent of fires. If the Minister can enlighten me on why the HSE should have assumed so optimistic a figure as that, I should be grateful.

My conclusion, given that I was interrupted, is very brief. With all due deference to the noble Lord, Lord Faulkner, I am not yet convinced that the case for a code of practice has yet been made, although the case for it may in time prove unanswerable if further evidence emerges.

8.18 p.m.

The Parliamentary Under-Secretary of State, Department of the Environment, Transport and the Regions (Lord Whitty): My Lords, I thank my noble friend Lord Faulkner for initiating this debate. It is an

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issue which raises considerable passions, some of which, although not all, have been heard in the Chamber today. It is still a fairly controversial issue, in terms of both assessment of the evidence and what needs to be done about it.

I declare my own interest. I was a smoker. I usually say that I gave up 30 years ago. What I actually mean is that I gave up buying cigarettes 30 years ago and then spent several decades cadging cigarettes from other people. But now I am a non-smoker and, by and large, I have been through the same process as the noble Earl, Lord Howe, and have become less tolerant as time has gone on.

It should be recognised that a significant minority of the population still smoke. The interests of that minority should be borne in mind, and well as those of everyone else. In general, the case for action has been established and the issue before us is how to make workplaces less smoke prone and people less subject to continuous exposure to smoke. As the noble Earl, Lord Howe, pointed out, we need to take a proportionate approach to this.

The Question refers to the Health and Safety Commission's proposal for an approved code of practice (ACOP). The Government have received an indication from the commission that it favours the introduction of an ACOP to help employers to comply with what is, of course, a pre-existing law regarding their obligations to the health and welfare of their employees. The present status is that the commission has yet to put formal advice to the Government. The Government are currently considering initial advice in relation to the proposal put forward on 5th September. We are still considering that advice because the issue is rather more complicated than may have been suggested by some noble Lords this evening. It may be helpful if I set out some of the background to the issue.

Under the Health and Safety at Work etc. Act 1974, all employers have the same duty to ensure, so far as is reasonably practicable, the health and welfare of their employees at work. Section 2(2)(e) of the Act requires them to provide a working environment for staff which is,


    "adequate as regards facilities and arrangements for their welfare at work".

The HSE has already issued guidance on passive smoking at work in its booklet, Passive Smoking at Work.

The Department of Health White Paper, Smoking Kills, issued in 1998, committed the HSE to consult on whether to introduce an approved code of practice. That consultative paper was issued in July 1999. The consultation exercise was completed in October 1999. The HSC then followed that through and put forward proposals to consult on a number of options, including an approved code of practice. Other options put forward in the consultation included new regulations, revising existing guidance, and enforcing the law more strictly. The outcome of the consultation, of which the Government have been informed, showed support for more action to be taken. The majority of respondents supported the proposal for an ACOP.

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In reaching its decision, the HSC took into account a wide range of opinion, including the views of small businesses and a wide range of representations from the hospitality industry. The chair of the commission has informed me that the commission was particularly concerned about the possible costs of implementing the proposed ACOP in the hospitality sector. As a result, the HSC itself is minded to recommend special transitional arrangements for the hospitality industry, which already has its own voluntary code of practice, the Public Places Charter, although that is directed primarily at the public and customers. We have already recognised in the proposals put forward by the HSC that special conditions and considerations need to be applied in the hospitality sector.

Problems are faced by small firms in general. Again, cost comes into this and I shall turn to that element later. However, particular difficulties are encountered by small firms in the hospitality sector where, by definition, on the one hand workers are probably more exposed because customers tend to go out for a smoke as well as for entertainment, but on the other hand, employers would have to face disproportionate costs in order to overcome the effects of smoke to the extent that has already been achieved in many factory and office workplaces.

The key issue is the protection of the 3 million people who are exposed to smoke at work. However, it is also a question of protecting employers, because a pre-existing duty is in place. Employers need to indicate that they have taken reasonable steps to protect their workers in order to protect themselves from potential enforcement action or, more likely, civil action against them. An ACOP would undoubtedly assist in that, as would the implementation of an effective and rigorous voluntary agreement such as the Public Places Charter.

As regards the question of science, a point raised by the noble Lord, Lord Monson, I think that it is clear that smoking has an effect not only in relation to bronchial diseases and asthma, but also to cancer. The Department of Health's White Paper indicates a 20 to 30 per cent greater chance of developing cancer after prolonged exposure to smoke. The noble Lord, Lord Clement-Jones, pointed out that this is a question of "how much" rather than "whether" exposure leads to disease.

The noble Lord, Lord Monson, remarked that the introduction of the ACOP indicated a relatively liberal approach. That is indeed the case, in that it tries to devise options for different circumstances. The same might be said of the Public Places Charter, which would apply in the hospitality sector. The noble Baroness, Lady Massey, emphasised in particular the dangers to young people.

My noble friend Lady Gale referred to the exposure of young women of child-bearing age. Much of what my noble friend referred to is probably a matter for the House authorities rather than for me, at least under the present circumstances. Nevertheless, a general issue of concern has been raised here and we do take seriously

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the issue of pregnant women and their exposure to tobacco smoke. The proposed ACOP does not directly and specifically deal with this issue because the risks to such workers are covered by other specific legislation, in particular the Management and Health and Safety at Work Regulations 1999, which implement the European directive on pregnant workers. The regulations require employers to assess such risks and then to take appropriate action. That point is therefore already covered.

It is true that the Government have taken some time and are continuing to take time to consider fully the implications of the proposed ACOP, in particular as regards its impact in the hospitality sector. The commission's proposal is aimed mainly at the workplace. In the hospitality sector, of course, it is predominantly customers whose smoke may most affect workers. The Public Places Charter, to which I have referred, and to which the HSC recommendation refers, is a charter drawn up by many of the larger employers in the hospitality trade. It advocates the use of written smoking policies, air cleaning and filtration, ventilation, and training. It is directed at protecting customers as well as employees.

The HSC has therefore suggested that where the charter applies, compliance with it will count as complying with the proposed ACOP for a transitional period of two years. That would mean that any employer who has introduced a policy complying with the charter will be exempt from the provisions of the ACOP, provided that the needs of employees were also addressed in line with the provisions of the charter.

The Government are considering that as a possible way of bringing protection into the hospitality sector. I should stress, however, that this should not be seen in any way as a form of discrimination against hospitality workers. It is simply a different way of introducing standards in the sector and one that would secure the support of the industry. The questions that remain are how rapidly, at what cost and under what requirements would the hospitality industry be required to introduce both the voluntary code and to attain ACOP standards.


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