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Lord Warner: Amendment No. 44 would require enforcement officers to communicate the consequences of providing false or misleading information when issuing fixed-penalty notices. I understand the reasoning in putting forward this amendment, but I am not sure that it is necessary to make such provision in the Bill.
From the legal perspective, I am not convinced that the amendment achieves a great deal. Clause 11 clearly provides that an offence is committed if a false or misleading statement is provided to an enforcement officer. Nevertheless, enforcement officers may wish to make clear the consequences of making a false or misleading statement when serving a penalty notice. We will ask stakeholders involved in enforcement whether providing such advice is felt to be necessary. I can reassure the Committee that, if it is necessary, we will look to include advice in guidance and training that will be developed for enforcement authorities. Certainly, in consultation with the relevant bodies, enforcement officers will be offered training in the enforcement of this legislation because as the noble Earl, Lord Howe, said, this type of work is different from their other duties.
In the event that an enforcement officer believes that an individual might be providing false or misleading information, for example a false name and address, paragraph 2 (e) of Schedule 2 provides that an enforcement officer can,
to exercise his functions under the Bill. In such a situation, an enforcement officer could require sight of a form of identification when serving a fixed-penalty notice if he were concerned that misleading information might be provided. The noble Earl may say that the person might not have a form of identification, but most people turning up to an event have some means to demonstrate who they are, particularly when going into a club, and for a variety of other reasons. To some extent, we would have to see how things go, but we believe that there is provision in the Bill which makes Amendment No. 44 unnecessary.
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The noble Earl touched on Amendment No. 45; I note that the noble Lord, Lord Naseby, is not in his place to move it at the moment. However, in the hope of being helpful to the Committee, I shall make clear that it is the Government's intention for local authorities to have responsibility for enforcing smoke-free legislation. In practice, it is intended that enforcement officers will be mainly local authority environmental health officers, but others such as trading standards officers may also be appropriate to act as enforcement officers. Nevertheless, it will be up to the local authority to identify and appoint the most appropriate staff to act as enforcement officers for the purposes of this legislation.
The noble Earl mentioned costs. He is quite right: the regulatory impact assessment talks about figures ranging from £4.5 million to £13.3 million. I understand that that was based on figures given to us by the local authorities themselves, which explains the range. We are committed to agreeing with local authorities what funding will be needed to conduct the enforcement. That is a matter for negotiation, on which we have now embarked. We are not in any way trying to do people down in having proper funding for enforcing this legislation. Provisions relating to enforcement have been left to delegated legislation to enable flexibility to amend arrangements, if need be, without the need to amend primary legislation. That might be required if, for example, local authorities were re-organised, or responsibilities for environmental health were changed. I hasten to add that the Government do not have any plans for local re-organisation to which that relates. From time to time, re-organisation does take place. We believe that it is more appropriate for the determination of enforcement arrangements to be included in regulations, given the technical detail likely to be covered.
Amendment No. 46 would require the national authorities to consult persons considered appropriate before regulations are made. I am not sure whether, realistically, this amendment would have any effect at all, as I am certain that the appropriate national authority would always consult on such matters with persons considered appropriate before any decisions were made.
Amendment No. 47, to which the noble Earl spoke, would remove subsection (4) of Clause 10. Subsection (4) has been included to enable the appropriate national authority to discharge enforcement functions under this legislation in place of an enforcement authority. While such provision is unlikely to be used, the power is provided as a fall-back, in the case that an enforcement authority, for whatever reason, is unable to discharge its enforcement duties, or where an enforcement case is particularly large and cuts across the responsibilities of a number of agencies. These powers are not new. Precedent for the inclusion of powers to enable the appropriate national authority to take on enforcement responsibilities exists in other recently enacted legislation, including the Tobacco Advertising and Promotion Act 2002, the Food Safety Act 1990 and, in different fields, the Weights and Measures Act 1985, the School Standards and
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Framework Act 1998 and the Consumer Protection Act 1987. I hope that that reassures the noble Earl, Lord Howe, that we are not creating a new precedent; it is drawn from provisions in other legislation.
Earl Howe: I am most grateful to the Minister for his reply. I am sorry that he thinks my Amendment No. 44 does not achieve a great deal. Nevertheless, I am glad that he recognises that there is a substantive point here and that there could be a case for including suitable advice in the guidance that is eventually promulgated. That would certainly fit the bill as far as I am concerned.
I was also glad to hear what the Minister said about training, because it is an important aspect of proper enforcement. On identification and whether people will run rings around the legislation by producing false details, I hope that the Minister is correct. Time will tell on that one.
We know from what the Local Government Association has said that this is not a familiar area for its members' employees. Even when environmental health officers become more familiar with issuing these notices, however, I wonder how much effort and how many resources a local authority will devote to chasing up non-payers. My suspicion is that, in practice, they will not be able to afford to. Beyond a certain point, fines will be deemed uncollectible and written off. It concerns me that, if we are not careful, we may be setting up a penalty system that is likely to fall rapidly into disrepute.
I note what the Minister said about my Amendment No. 47, on subsection (4). If it is to be a fall-back power, I have no problem with that in principle. It is not so much a question of whether there is legal precedent for a fall-back powerI am certain there israther, it is whether such a fall-back power is necessary. We know that the Health and Safety Executive is to be given enforcement functions under the regulations. If a local authority, let us suppose, has consistently failed to perform its enforcement functions, one must ask why the Health and Safety Executive should not be brought in to do the enforcement. Why do the Government or the National Assembly have to assume enforcement powers directly? I am still not convinced that this provision is necessary. If the Minister can now furnish me with further and better particulars, it would be helpful, but I shall not, of course, press him on that point.
Lord Warner: The Minister is positively bursting to give the Committee this new information, recently passed to me, that the Health and Safety Executive is not expected to have enforcement responsibilities in this area. That is why this provision is in Clause 10(4).
Earl Howe: I am grateful to the Minister. In that case, I have misunderstood the Explanatory Notes, which seemed to suggest that the Health and Safety
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Executive would have enforcement powers. If I have misunderstood that, I apologise, and we have covered the ground for the time being. I shall reflect at greater leisure on what the Minister has told us. I beg leave to withdraw the amendment.
We have just had quite a long debate, discussing enforcement and who the enforcement authority is to be. Rather than state who are to be the enforcement authorities in the Bill, however, Clause 10(1) enables the appropriate national authority to make regulations designating the bodies, or descriptions of the body, which are to be the enforcement authorities. That seems very convoluted, hence this amendment introducing clarity to this part of the Bill.
The Explanatory Notes state that the intention is that local authorities will be enforcement authorities, and that the officers will be environmental health officers. However, the clause allows additional or other arrangements to apply. It is simply not good enough that the enforcement issue should be so much in the air at this stage of the Bill. Parliament is surely entitled to know exactly who the enforcement authorities are before it passes the Bill. Whoever they may be, they should be entitled to know that they will be the enforcement authorities in order that they can prepare to do their job. That seems a completely reasonable request, but it is being opposed by the Minister, and will be again, no doubt, after I have sat down.
Given that smoke-free provisions are likely to apply to vehicles as well as premises and other places, it is relevant to ask whether it is envisaged that parking and traffic wardens, for example, will have enforcement responsibilities. Their responsibilities have increased fairly recently. Are they to be further increased? Will they be consulted? Are they the sort of people who will be consulted by the Minister or his officials before decisions are taken on who shall be enforcement authorities?
It is known that the police are most reluctant to be given responsibility for enforcement of the smoke-free provisions. I do not blame them. I listened to the last debate and what the noble Earl, Lord Howe, said about the difficulties of an enforcement officer going into a pub near closing time. Some "brave" people who may have drunk quite a quantity of alcohol may say, "We are fed up with this law. We don't like this law. We think that it is an infringement of our personal
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liberties and isn't in accordance with the European Convention on Human Rights, so we will light up". So they light up and the publican says, "You can't do that here. That's not allowed. Are you not aware that I shall or could be fined £2,500 in order that you can light up your cigarette?" They may say, "Well, we are having a good time, but we need a fag after a drink. We love a fag with our drink and now we're going to have one".
So what does the publican do? He sends for the enforcement officer. Where will the enforcement officer be? Presumably, all publicans will have a telephone number that they can call. It may be that the enforcement officer is on call, or he may not be on call. The publican will have to take a chance. How long will it take the enforcement officer to get to the pub? It takes about 10 minutes to smoke a cigarette. Will the enforcement officer arrive in 10 minutes so that he can tell these peoplecriminalsto put out their cigarettes? It will be too late. So what does he do? He may say, "Who has been smoking in this pub? I have had a call out. Somebody has been smoking in this pub. Who is it?"
Will the smoker or smokers own up? I very much doubt it. The publican will have to say, "It's them, there", and they may deny it. What happens then? Will the enforcement officer issue an ASBO? If he does, will it not perhaps cause a mêlée and fighting inside and outside the pub? This very difficult issue has not been properly considered yet. The ban may go down in Ireland. I am not sure that it will go down in the same way in this country. There are very real difficulties.
In Scotland, special officers have been appointed generally as part of the environmental health officer team to police the smoking ban that it is now implementing. Given that enforcement carries costs, there are strong arguments on why the Bill should state specifically who are to be the enforcement authorities and for adequate financial provisions to be made that do not simply rely on income from the fixed-penalty regime.
I know that the Minister will say, "It's all right chaps; don't worry about it. We've got everything in hand and you don't need to alter this clause. We shall see to it that everything is fine. We have consulted everybody and it'll be all right on the night". However, in passing legislation, that is not good enough for some of us. We like to see things on the face of the Bill. That is what I am asking the Minister to do. He may not be able to do it this afternoon, but I urge him to look further at these provisions to see whether he ought to reconsider what will happen and to come forward on Report with details of the enforcement authority. It is essential that we know that and the details of how the Bill will be enforced. I beg to move.
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