§ 5.53 p.m.
§ Read a third time.
§ Clause 3 [Sale of unpackaged cigarettes]:
Lord Stoddart of Swindon moved Amendment No. 1:
Page 2, line 24, at end insert:
("Provided that, where an offence under subsection (1) is charged together with an offence under section 7 of the Children and Young Persons Act 1933, the person charged shall not, if he is summarily convicted, be liable to a separate penalty for each offence.").
§ The noble Lord said: My Lords, some noble Lords will recall that at Committee stage I sought to delete Clause 3 from the Bill. However, I did not press my amendment to a Division at that stage. Since then, I have made a further study of the clause and find that my original view which I was later misled into modifying was correct. It was that a tobacco retailer could be fined up to £3,500 for selling a single cigarette to a child or young person.
§ During the debate at Committee stage on my amendment, my noble friend Lord Carter said that the clause was merely declaratory. In my view, since Clause 3 can impose an extra £1,000 fine on a retailer, it is rather more than declaratory. That is why I bring this amendment forward today. It is absurd that under Clause 3, if a retailer is prosecuted on both counts, he can be fined £3,500. It brings about a situation where a retailer can be fined £3,500 for selling a single cigarette to children and young persons, but only £2,500 if he sells 20, 200 or even 2,000 cigarettes to a minor, provided they are sold in the original package.
§ The arguments of the promoters and sponsors of the Bill are in some respects far-fetched. When they dislike official statistics which do not fit their pet theories, they produce their own spurious surveys which seek to contradict official and accepted statistics, the statistics which were accepted at Committee stage by the Minister himself. That is what they have done in relation to the statistics produced by the Office of Population Censuses and Surveys which state that only 2 per cent. of children under 16 buy single cigarettes. On the other hand, 38 per cent. buy them in packets of 10 and 54 per cent. buy them in packets of 20. Thus we are talking about a small minority.
§ It is undoubtedly true that the incidence of the sale of single cigarettes to under 16 year-olds is small. The practice is most prevalent among children themselves or between them and their older brethren who can buy as many packets of cigarettes as they wish because they are over 16. Many of them use the opportunity as a little bit of private enterprise. They buy a packet of 20 cigarettes and then sell them singly. They cannot be prosecuted; they can do exactly as they wish. It seems 307 to me that virtually all the youngsters who smoke, of whom I have knowledge, obtain the odd cigarette in this way, not from a retailer; the cigarette comes from their young peers or older brethren.
§ There is also the argument used by the anti-smoking lobby that a single cigarette sold to children or adults under Clause 3 is sold with a health warning. I find this rather strange. It is said that if packets of cigarettes are sold to young children or those under the age of 16, the children are given the health warning. I accept that. On the other hand, when people object to tobacco advertising and want it banned, they seem to forget that the advertisements themselves show the health warning. In tobacco advertising, as on the single cigarette packet, the main prominent and unequivocal message is, "Smoking damages your health".
§ People are now saying that if cigarettes are not sold in their original packs, the health warning will not be conveyed. They cannot have it both ways. Clause 3, as drafted, is absurd as well as illiberal. My amendment would at least remove the absurdity of the imposition of a heavier penalty for selling fewer cigarettes to children and a lighter penalty for selling children more cigarettes.
§ I hope that noble Lords will recognise the force of that argument. Far too much legislation that is foolish and is not properly considered goes through this House. If we allow Clause 3 to pass into the Bill unamended, we shall pass a piece of legislation which will be completely absurd in its operation. I beg to move.
§ 6 p.m.
§ Lord Airedale
My Lords, surely what the noble Lord, Lord Stoddart, is asking for in this proposed proviso in Clause 3 is entirely unexceptionable, fair, reasonable and just. The only question concerns whether it is necessary to spell out the provision in the Bill. I have heard the noble and learned Lord, Lord Wilberforce, say that Acts of Parliament should concern themselves with general principles and should not seek to deal with every conceivable eventuality that may possibly arise. On that principle I should not have thought it was necessary to spell out these words in the Bill.
§ Lord Monson
My Lords, I support the amendment without reservation. Unless it is agreed to, the total maximum penalties that can be imposed will be quite disproportionate to the offence. It is quite illogical that the penalty for selling a single cigarette should be 40 per cent. higher than the penalty for selling 100 or 1,000 cigarettes. The noble Lord, Lord Stoddart, has pointed out that fact. We are grateful to the noble Lord, Lord Airedale, for his qualified support; but I believe he is wrong in interpreting the dictum of my noble and learned friend Lord Wilberforce in the way that he has. I believe my noble and learned friend was referring to matters other than the imposition of penalties. It is important to be precise. If we are not precise, there is a danger of gross unfairness.
308 The stock answer to the case put by the noble Lord, Lord Stoddart, is that maximum penalties may never and need never be imposed in practice. But the trouble is maximum penalties inevitably act as a guideline when magistrates come to decide what penalty to impose in any particular case. There is another factor which I believe has not been mentioned so far. Any young person with the slightest gumption enjoys the idea of experimenting with whatever is forbidden. Therefore the more draconian the penalties for providing the forbidden fruit, as it were, to youngsters, the more panic stricken adults will appear to be in the eyes of those youngsters, and the more exotic, tempting and glamorous something like tobacco will appear to those who have never tried it. The draconian maximum penalties such as we have at present are not only wrong in themselves but may also be counter-productive from the point of view of those who support the Bill.
§ Lord Ennals
My Lords, I hope noble Lords will not accept the amendment that has been proposed. At the previous stage of the Bill my noble friend Lord Stoddart sought to ensure that Clause 3 was deleted. I was glad to see that he did not receive any support for that proposal. Not surprisingly he seeks therefore to weaken the effect of Clause 3. I do not think we should take any action which would weaken that clause. Clause 3 was carefully considered. I fear that if the amendment of my noble friend were accepted, Clause 3 would become ineffective. There would be no point in ever bringing prosecutions under Clause 3 if this amendment were passed as the maximum fine under Clause 3 is £1,000, while under Section 7 of the 1933 Act, as amended by the Bill, the maximum would be the higher amount of £2,500. The effect would be to make it seem that Parliament believes that the sale of single cigarettes to a child under 16 is a lesser offence than the sale of a packet of cigarettes. I do not think that should be the case. The sale of cigarettes, whether singly or in quantities of 10 or 20, to children under 16 is an offence in every case.
I doubt whether the impression my noble friend Lord Stoddart has that there is only a small incidence of the sale of single cigarettes is correct. There is a good deal of evidence that young children, particularly those who are starting to smoke, and want to try smoking will buy single cigarettes. The OPCS survey showed that young children were more likely to buy single cigarettes. Surveys also show that children in the lower social groups are more likely to buy single cigarettes.
The rationale behind Clause 3 is that the sale of single cigarettes puts children at even greater risk than does the sale of packets of cigarettes. Children buy single cigarettes because they cannot afford to buy packets of 10 or 20 cigarettes. As I have said, it is the poorer children who are more likely to buy single cigarettes. They buy single cigarettes until they can afford packets. Nicotine is a highly addictive drug as we all know. By the time a child is old enough to buy whole packets of cigarettes, he may already be hooked on the drug.
I believe that Clause 3 in its present form will protect children by making it more difficult for them 309 to buy their first cigarettes which may hook them for life. The clause will prevent them from suffering in the future from ill-health or premature death. That is the view of the Department of Health. I do not always agree with that department but I enormously welcome the support the department has expressed for Clause 3. The clause is also supported by the Labour Party. The Chief Medical Officer has also indicated his support for Clause 3. The clause was accepted in another place with all-party support. I hope that nothing will be done in this House to weaken the effect of Clause 3.
My Lords, the noble Lord, Lord Stoddart, has from the outset voiced his opposition to Clause 3 and is doggedly pursuing what I hope will be a lost cause with this particular amendment which he has tabled. In Committee the noble Lord ploughed a lone furrow in speaking against this clause and I had thought from his concluding remarks on that occasion that he had, albeit reluctantly, accepted the views expressed by the majority of noble Lords who were present on that occasion. However, I admire his determination to fight on nearly single-handedly; but I hope I can convince him not to press his amendment.
One of the noble Lord's main anxieties about this clause has been whether a retailer could be fined up to £3,500 for offences of selling cigarettes to a child under 16. It would be possible for a retailer who sells a single cigarette to a young child to be charged under both Section 7 of the Children and Young Persons Act 1933 and Clause 3 of this Bill. Such a situation would be by no means unique. For example, a person charged with theft or handling of a stolen drug can also be charged with possession of the drug.
The maximum penalties for the general offence of selling tobacco to children and for selling unpackaged cigarettes will be £2,500 and £1,000 respectively when the Criminal Justice Bill, which increases fines, becomes law. However —and I want to emphasise this point—it is a well-established principle that courts should adjust the sentence passed to reflect the totality of the behaviour involved. The maximum penalties for the offences to which I have just referred are upper ceilings appropriate for the worst examples of those offences. Within that range the courts are entirely free, and are encouraged by the Court of Appeal and the Criminal Justice Bill, to adjust the sentence to reflect the seriousness of the offences.
Where both offences of selling tobacco to children under 16 were charged, the court would no doubt be sensible about the totality of the sentences imposed. It is highly unlikely that a retailer would be fined the maximum on each charge unless he had been guilty of a most flagrant breach of the law.
There are at present no legislative restrictions prohibiting courts from imposing separate penalties where a person is charged with more than one offence. To introduce such a restriction here, which is the effect of the noble Lord's amendment, would not only break new ground by interfering with judicial discretion; it would also be unnecessary and unhelpful given what I have said about how the courts deal with such cases at present.
310 Clause 3 creates an offence of selling unpackaged cigarettes. The purpose of the clause is to protect children. It seems to be nonsense to create an offence for which in some circumstances there would be no penalty. That is another effect of the amendment. The amendment virtually renders that useful clause ineffective because, if it were to be accepted, there would be nothing to deter a retailer from breaking open a pack of cigarettes and selling them individually to vulnerable young children. He or she might decide to take that risk safe in the knowledge that he or she would be liable only to one fine and not two as the Bill stands at present. The clause is included in the Bill to reinforce the point that selling cigarettes to children in ones or twos is not only pernicious but is just as unlawful as selling packs of 20. That important message is lost if the offence of selling loose cigarettes to children in effect carries no penalty.
Finally, on a drafting point, perhaps I should point out that the amendment is deficient in that it would leave the law in Scotland unchanged. That is because Section 7 of the Children and Young Persons Act 1933, to which this amendment refers, applies only to England and Wales.
I listened to the speeches made by other noble Lords. I thought that there was something rather illogical in the argument of the noble Lord, Lord Monson. We are not talking about children or parents; we are talking about shopkeepers who sell cigarettes. The Bill does not make smoking look more attractive or more dangerous.
I invite the House to oppose the amendment. I hope that the noble Lord, Lord Stoddart, will not choose to divide the House as the Bill has widespread support on both sides of this House.
§ Lord Rea
My Lords, every noble Lord who has spoken, bar two, has produced very good reasons for my noble friend to withdraw his amendment, the most important being that it would make the clause ineffective, and the clause is one of the most interesting and useful in putting teeth into the Bill.
The sale of single cigarettes puts children particularly at risk, more so than the sale of packets of cigarettes, because children do not have very much money. That is particularly true of children from the social classes which earn less money who are more likely to buy cigarettes. As I pointed out at Committee stage, smoking is a far greater problem among the socio-economic group which is most deprived. The sale of single cigarettes will perpetuate that disadvantage. My noble friend is a life-long member of the Labour Party and I am sure that he has always espoused the cause of the underdog. In this case he seems to be changing his point of view.
The noble Viscount reminded us that an interesting situation would arise if the amendment were passed. We might well see lots of children hitching across the Border to Scotland to buy single cigarettes. At Third Reading it is now too late to amend that aspect of the Bill.
It has also been mentioned that only 2 per cent. of cigarettes are bought singly by children. It may be the case that in volume only 2 per cent. are bought singly. However, some of the children interviewed in the 311 Bristol survey who had already acquired the habit of smoking and smoked at least six cigarettes a week were asked whether they had ever bought single cigarettes. In some schools in Bristol up to 80 per cent. of those children who were already on the way to becoming smokers had at some point bought single cigarettes. That is just the sort of experience which will lead them to become more serious smokers later in life.
§ Lord Monson
My Lords, I thank the noble Lord for giving way. Can he say whether the 80 per cent. of children who had bought single cigarettes had bought them from shopkeepers or from older children?
§ Lord Rea
My Lords, from reading the study it is my understanding that they bought them from shopkeepers.
The Bill is concerned with what shopkeepers sell to children and cannot concern itself with what children sell to each other. I hope that the noble Lord will understand that. It would be extremely difficult to legislate to control that.
Having heard all noble Lords put their point of view, I hope that my noble friend will accept that he does not have enough support to press his amendment and feel able to withdraw it.
§ 6.15 p.m.
§ Lord Stoddart of Swindon
My Lords, I should like to thank all noble Lords who have taken part in the discussion on my amendment. I am most obliged to the noble Lord, Lord Airedale, who thought that the amendment was entirely reasonable. That is certainly progress from the Committee stage and I am most obliged to him. He said that the amendment is not necessary, but I hope that everything that he has heard since from those noble Lords who have argued against the amendment makes it clear that the amendment is necessary if retailers are not to be fined twice for the same offence of selling cigarettes to people under the age of 16.
The noble Lord, Lord Monson—and I am most obliged to him for his support—said that youngsters like to experiment. Of course they like to experiment. They have always experimented. I know from my own school-days, which in spite of my great age I can still remember, that my school fellows did not buy single cigarettes from retailers; they sent someone out to buy a packet of 20, or 10, or even five Woodbines as they could then, and then distributed them for a little profit among themselves. It was not retailers who were selling cigarettes; it was the lads themselves.
§ Lord Ennals
My Lords, my noble friend has pointed out that the days of his youth were a very long time ago, about as long ago as my own youth—
§ Lord Ennals
My noble friend is suggesting that all children do not get their single cigarettes from tobacconists, but surely he cannot be suggesting that none of them buys cigarettes from tobacconists. If so I am sure that he is wrong.
§ Lord Stoddart of Swindon
My Lords, I have been prepared to accept the statistics of the Office of Population Censuses and Surveys, as has the Minister. It is Parents Against Tobacco which does not accept the evidence provided by the official body and my noble friend Lord Rea; so I am prepared to accept that evidence.
The noble Lord, Lord Monson, pointed out that the more that older people and parents criticise children for doing something, the more the children want to do it. That point must certainly be kept in mind. Make no mistake about it, I support the Bill. I am not against the Bill. I do not think that retailers should act against the law and sell cigarettes to children. It is no good my noble friend laughing. That is my position. However, what I do not like about legislation of this kind is the fact that it is illogical and absurd. I do not like the House of Lords or the House of Commons passing such legislation. My noble friend appeared to give the impression that I forced a vote in Committee.
§ Lord Stoddart of Swindon
I am glad to hear that because I did not force a vote in Committee. However, I must point out that a statement was made from the Labour Front Bench in Committee to the effect that Clause 3 was merely declaratory. I must point out to my Front Bench that it is rather more than declaratory when it can impose a fine of up to £1,000 on an offending retailer if he is found guilty of the offence. I have already dealt with the question of figures which, as I said, I am prepared to accept.
The noble Viscount, Lord Astor, said that I was ploughing a lonely furrow. I think that he understands this afternoon that I am not ploughing a lonely furrow. Indeed, I have an obvious convert on my right and a spokesman in my support on my left. It is a bit much when the Minister accuses me of ploughing a lonely furrow when his colleague in Committee in another place said that Clause 3 was not necessary. I took my lead from his colleague. I am now being denounced for taking that lead.
It is the Government who have changed their mind. They have not changed their view. They have changed their mind simply and solely because they were able or willing to do a deal with the sponsors and promoters on another part of the Bill. That does not mean to say that they have changed their mind about Clause 3. My guess is that they still believe that Clause 3 should not be part of the Bill, so I am sure that we shall not hear any more from the noble Viscount, Lord Astor, on the matter. He must understand that the Government's original position is my position which I am now putting forward.
My Lords, perhaps I may intervene briefly. I do not believe that the Government have significantly changed their mind. Even if they had, it would simply show that they have a responsible attitude and listen to the arguments put to them.
§ Lord Stoddart of Swindon
My Lords, the words used in Committee were pretty forthright. My guess is that the Government, far from being more concerned 313 and ready to change their mind, embarked upon a shady deal. That is really what happened. It is not a question of changing their mind. They still believe what they originally said and I was quite entitled, as were other Members, to believe the Government when they made their first statement in Committee.
The noble Viscount said that the courts would make their decisions and would not necessarily apply the maximum fine. I understood him to say that they would take all the circumstances into account and that the fine would be much lower. But the promoters of the Bill are using the fact that there will be a fine of £3,500 to support their point of view. They say, "Look here, it's the £3,500 that will be the deterrent against selling tobacco or a single cigarette to young people." So the Minister says one thing and the promoters of the Bill say another.
I still do not believe that it is more pernicious to sell one cigarette to a young person than it is to sell him or her 20 cigarettes. I simply cannot take that point on board. If a retailer sells 20 cigarettes to a youngster, those 20 cigarettes will help the youngster to become addicted to the weed to a greater extent than if he smoked only one cigarette. I therefore do not accept the argument that it is more pernicious to sell one cigarette to a youngster than it is to sell 20.
§ Lord Rea
My Lords, does my noble friend not realise that some children in this country have only 10 pence. 20 pence or 30 pence in their pockets and might still like to buy a cigarette from a tobacconist; or does he think that all children have at least £1 in their pocket with which to buy a packet of cigarettes?
§ Lord Stoddart of Swindon
No, my Lords. According to the statistics that I and my Front Bench have accepted, that incidence is very small. I reiterate that most children obtain their single cigarettes from other children or from friends who are older than 16. I went to an ordinary council grammar school. I know what goes on. I know what went on then, and I know that it still goes on. I cannot accept my noble friend's argument that the sale of a single cigarette is more reprehensible than the sale of 20 cigarettes. We shall have to agree to disagree.
With regard to my membership of the Labour Party, I must tell my noble friend that it does not merely derive from being in favour of the underdog but from being the underdog. I hope that he will remember that point. I was brought up in the Rhondda Valley, so I know all about underdogs. My father was unemployed for a while, so I know what it is to be an underdog. I know the awful kind of lives that people in such places as the Rhondda Valley lived, so I hope that he realises that I understand exactly how working people live and what their needs are. Their needs are often quite different from those of the middle class and the upper middle class. Sometimes they lead such flaming awful lives that some of them perhaps need a cigarette and a drink to allow them to forget the circumstances in which they find if themselves.
Finally, I strongly reiterate that I am in favour of the Bill as it stands with regard to Clauses 1 and 2. Retailers should obey the law, but Clause 3 is 314 unnecessary. It is illiberal and imposes in a stupid kind of way a higher fine on retailers for selling more cigarettes rather than less. In those circumstances, the House should amend the Bill. There are too many silly clauses in various Bills and this will be another silly one. I hope that, if the Bill is enacted unamended, the courts will knock the silliness out of it.
§ The Deputy Speaker (The Earl of Listowel)
My Lords, does the noble Lord wish to press his amendment or to withdraw it?
§ Lord Stoddart of Swindon
My Lords, I shall not press the amendment bearing in mind the fact that I appear to have made some kind of mistake and that my amendment would apply only to people in England. It would be wrong if we allowed the Scots one kind of penalty and the English another. In those circumstances, I have no alternative but to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ 6.30 p.m.
§ Clause 5 [Enforcement action by local authorities in England and Wales]:
§ [Amendment No. 2 not moved]
Lord Cocks of Hartcliffe moved Amendment No. 3:
Page 4, line 12, at end insert ("excluding the use by trading standards officers or others of children under the age of 16 to incite tradesmen to commit offences").
§ The noble Lord said: My Lords, I beg to move Amendment No. 3. When I spoke on this matter at Second Reading I said that for 17 years I had represented a constituency in Bristol in which there had been very substantial tobacco manufacturing, both cigarette and cigar. There were thousands of workers employed in that industry, and also thousands of pensioners. I have not been Member for that area since the last general election, and I want to make it absolutely clear that I have not been contacted by any of the industry spokesmen or representatives concerned, nor have I been lobbied in any way. All I have received is a letter from the Tobacco Advisory Council to say they are quite happy with the legislation. My objection to the Bill is my own and concerns the use of children to obtain evidence that offences are being committed.
§ I hope that in the course of the discussion we will not debate how long various people have been members of the Labour Party, because with the new computerised national membership scheme at Walworth Road some of us would be in difficulty in showing our party cards!
§ I entirely support the Bill and have no intention of trying to wreck it. On the other hand, Parliament has a duty to examine legislation passing through it and to make sure that it is satisfactory.
§ I have obtained figures for England and Wales relating to proceedings in Magistrates' courts in 1989. In that year proceedings were taken against 47 males and 15 females. In the end, only 39 males and 15 females were fined for the offence of selling tobacco to juveniles. Clearly, those figures are derisory. I can understand the frustration of those people who wish to tighten up the law against the practice of selling 315 cigarettes to under-age children. However, I believe we are reaching an advanced stage of the legislation without having seriously considered how the situation is to be remedied.
§ On Second Reading of the Bill on 18th January in another place the Minister, on behalf of the Government, expressed surprise that enforcement would not be done simply by inspectors visiting premises but that the real intention was to use children to go round and try to buy cigarettes and thus establish the dishonesty of shopkeepers. The Member for Warley, East, who promoted the Bill in the other place, said that that point should be fully considered in Committee and he was sure they would come to terms with it. In reply, the Minister said he was grateful to hear that, because he did not think the majority of Members in another place would want to insist that children should be used in order to catch law-breakers.
§ I have carefully read through the Committee proceedings in the other place. Apart from a cursory mention, there is no serious discussion about the use of children to obtain evidence. On Third Reading of the Bill in the other place, the honourable Member for Bedfordshire, North, raised the question of children being used, and the Member promoting the Bill said that everybody knew in their heart of hearts that the only way evidence could be obtained was by the use of children under the age of 16.
§ That is a highly unsatisfactory situation. If that is going to go on, what will be the scale of it? I believe that until now the evidence presented has been collected by some local council inspectors and enthusiastic amateurs anxious to promote the case for the Bill. Let us look at the problem of enforcement. The latest information I have about the number of outlets in this country where tobacco is obtainable indicates that there are some 90,000 to 100,000, including vending machines. The highest estimate of the number of vending machines mentioned throughout the proceedings—not necessarily the best estimate —is 30,000. That leaves 60,000 to 70,000 other outlets which include a few specialist tobacconists, confectioners, tobacconists, newsagents, convenience stores, grocers, cash and carry, garage forecourts, kiosks and off licences. An enormous burden is placed upon local authorities to make sure that the legislation is enforced.
§ If children are to be used we are not talking about penny numbers. A large number of children will be required if it is to be effective because the duty is laid on every local authority to make sure the legislation is observed. We have to ask some questions about it. First, what kind of parents would allow their children to take part in this exercise on a regular basis, and why? We are not talking about a one-off job or a couple of visits but visits carried out on a regular basis.
§ Will the children who do it be paid? If so, are we satisfied that they should be used in this way as agents provocateurs? Where will these children come from? Are they going to be local children who know the locality and are known in the locality? Let us suppose a child takes part in a case and "shops" the local 316 newsagent. After the case is decided he goes to school where possibly the son of the newsagent is in the same form. What kinds of frictions and tensions will be set up there? Local children could be in danger of being ostracised, bullied, despised and caused great difficulties. If we are not going to use local children will young people be bussed about from one part of a town or city to another to spy on people in that other area?
§ We tend to think that the darker side of human nature does not emerge until we get older, but we know that that is not always the case. Surely there must be a danger that children will decide to blackmail shop keepers over this matter. It is possible for groups of young children to set up protection rackets, threatening shop-keepers that if they do not look after them in one way or another they will report them for selling "fags" to them. Your Lordships may think that is fanciful but I do not believe that is any more fanciful than the suggestion made recently by my right honourable friend on the Front Bench that cigarette smokers were more likely to beat their wives. In fact, I think that what I suggest is a great deal more probable. Frankly, what is there to stop children going into a shop having concealed about their person packets of cigarettes and coming out alleging they have been sold to them? Is it seriously suggested that the inspectors who take round such groups of children to do the snooping will frisk them every time that they go into a shop?
§ There is another point. It is well known that some children in their teens look much older than others of the same age. Indeed, we all know that in cases brought on a charge of serving alcohol under age or taking part in sex under age sometimes the proceedings are dismissed because of the appearance of the young person concerned. So we come to the question of the selection of these children and their appearance. It is possible that the incorrect selection of someone, possibly even motivated by malice, may cause difficulties and not give what in the popular phrase these days is called a level playing field. Therefore, serious problems can arise.
§ I appreciate that there is a valid point about how one obtains the evidence to make sure that that practice is not taking place. Indeed, that is the buffer which I have come up against when discussing this point with a number of people who are very keen on this legislation. They usually finish up by saying, "How on earth do you enforce the measure if you cannot do this". I understand that point, but it does not excuse this House from examining the matter and considering it very closely.
§ In the other place only yesterday the honourable Member for Basildon had leave to introduce a Ten-Minute Rule Bill to amend the Pet Animals Act 1951. He explained to that House that one of the purposes of the Bill was to ensure that no animal would be sold to a person under the age of 16 unless a parent is present and has given permission. Noble Lords can imagine how long it will be before the animal rights lobby, and others such as my noble friend who spoke earlier on the agricultural orders, will press to toughen up the legislation against people 317 who sell pets to children under the age of 16 and will suggest that inspectors go round with young children to see whether they can get some unsuspecting shopkeeper to sell them a small hamster or a white mouse. We are going down a very difficult road.
§ It is a grave offence to have sexual intercourse with a child under the age of 16. No one suggests that young girls are sent round importuning to see whether that law is being broken. We ought to think very seriously about this provision. Let us suppose that prima facie an offence is thought to have been committed. At the court proceedings it is possible for the child's evidence to be given by means of a written statement. If the defence challenges it, the child will have to appear in court. Video evidence is restricted to cases of child abuse and violence. Therefore, there must be a personal appearance in court by the child, though the child's identity is protected under Section 37. When the child goes to court to give evidence he or she will be away from school. Classmates at school are always very interested in why people are away and I do not think that it will do that child any good in school or with his classmates if repeated appearances in court brand him or her as an informer against neighbours, or possibly people in other parts of the town should a bussing system operate.
§ When are the children to do this work? Unless they are to be dragged out of school they must do it either during the lunch hour or after the school breaks up in the afternoon towards tea time. The lunch hour and towards tea time are the busiest times for the people who run newsagents and the kind of outlets about which we are speaking. So the person running the outlet will be put under the closest scrutiny just when he is busiest and has the least time to try to satisfy himself that he is selling cigarettes only to those aged 16 or over.
§ What about the enforcers, the inspectors who have the thankless task of taking round the children to try to establish whether or not the law is being broken? They will have to work during the lunch hour and later in the day. Believe it or not, they also have other duties to perform and, if they do not do them, the same people who are pressing for this legislation will create a great disturbance because other laws are not being enforced. So one must ask inspectors to undertake these duties during the lunch hour and late in the day when they are thinking of getting home.
§ It seems to me that in this issue enthusiasm has clouded judgment. If this measure is to be effective one will have to set in train a whole series of events which have riot even been discussed. Unless an amendment to this Bill is carried today—and I doubt very much whether it will be since I have no intention of pressing it and there are no further amendments on the Marshalled List—this will be the last opportunity that Parliament has to discuss this legislation. The Bill has gone through both Houses without any mention so far as to what it is intended to do with our young children under the age of 16 in order to try to enforce this legislation. I believe that that is a disgrace which should have been sorted out very much earlier.
§ I am glad to have had the opportunity to make this case to your Lordships. I believe that if a serious 318 attempt is made to use young children in this way the problems that will arise in years to come will be manifold. I do not want anybody who has pressed for this legislation for so long and in such a zealous way to be able to say, "Of course, this matter was never raised when the legislation was before Parliament". I have raised it in your Lordships' House. I am grateful for the opportunity to have done so. I beg to move.
§ 6.45 p.m.
§ Lord Airedale
My Lords, I am a little concerned about the use in the amendment of the word "incite". The noble Lord mentioned the agent provocateur. Surely an agent provocateur is someone who sets a trap and gives the suspect an opportunity to walk into it. I find difficulty in believing that if a child goes into a shop and says, "Ten cigarettes please" and the shopkeeper says, "Certainly not", then the child has incited the shopkeeper to sell him cigarettes. If the child goes on to say, "Oh, but please Mr. Smith just this once; just one tiny little cigarette. Won't you please let me have one?", I still do not think that the court would come to the conclusion that that child was acting as an agent provocateur.
§ Lord Monson
My Lords, after the powerful and comprehensive introduction to this amendment by the noble Lord, Lord Cocks, there is no need to go at any length into why it is so important. Once again I must disagree with the noble Lord, Lord Airedale, in his interpretation of semantics. The word "incite" is absolutely right. I do not believe that any problem would arise with it. The use of juvenile agents provocateurs would be deplorable and utterly contemptible. I find it hard to believe that Her Majesty's Government would tolerate such behaviour. However, one never knows nowadays and this amendment would ensure that neither they nor any of their successors would be so tempted.
Perhaps some will argue that the end justifies the means. That is a very dangerous doctrine. I fully support the amendment.
§ Lord Ennals
My Lords, I hope that the House will not go down the road suggested by my noble friend. I want to say that I am very pleased that these amendments have been moved. I was delighted to hear from both my noble friends Lord Stoddart (who spoke on an earlier amendment) and Lord Cocks, in moving this amendment, that they support the Bill. Having read again the speech made by my noble friend Lord Cocks at Second Reading, one would not have thought that he supported the Bill. It is therefore encouraging and I take great strength from the fact that he is convinced.
I must admit that I am a campaigner against smoking and especially against the opportunities for children to start on what I believe to be a damaging route for their health. I know that my noble friend does not believe that we should campaign for anything. I believe that we should campaign for all kinds of things, and this is one of them. Sometimes a campaign produces a Bill and sometimes a Bill 319 becomes an Act, and it may remove some of the opportunities for children to begin smoking, which is what I hope this Bill will achieve.
I want to clear up the point about smokers beating their wives. In col. 1168 of Hansard on 8th May when my noble friend Lord Stoddart said that men did not batter their wives because they had had a cigarette, I was reported as saying, presumably from a seated position, "Smokers beat their wives". I meant to say that smokers beat their wives as much as non-smokers beat their wives. If my noble friend was claiming that smokers did not beat their wives just because they had had a cigarette, I would argue that they were just as likely to beat their wives as anybody else. So let us lay that to rest and come to the issues raised in the amendment.
First, we should recognise that, sadly, it is not an offence for a child to buy a cigarette either from a shop or from anyone else. The offence is not committed by the child but by the shopkeeper or tobacconist who sells cigarettes. Test purchases, which is what we are discussing, are carried out for two purposes: first, to ascertain the extent of the problem in a specific area and, secondly, to identify retailers who persist in breaking the law. If we were encouraging children to break the law, most of the criticisms made by my noble friend would be justified. But let us look at the circumstances in which those test purchases take place.
Beforehand retailers are sent reminders by the local authority drawing attention to the law on sales of cigarettes. I am glad that my noble friend did not move Amendment No. 2. If it had been carried it would have meant that local authorities probably would not have taken such action in notifying local tobacconists. It is only after that warning that local authorities examine the behaviour of tobacconists more closely with the help of children.
We should further recognise that the consent of the child's parents is always obtained. The children are committing no offence; it is not illegal for them to buy cigarettes. They are also told to be honest about their age if the retailer should ask. As I understand it, the reaction of children who have taken part in such exercises has been positive. They appreciate the risks of smoking and feel that they are helping to protect other children. It is good for children to feel that they are helping to ensure that the law is carried out. One of the lessons I am sure we all want to teach our children is that it is important to see that the law is respected.
Controlled purchases or surveys are an effective last resort. If the amendment is carried it will prevent local authorities from dealing properly with the problems of illegal sales. To be realistic, children who smoke do not come forward to give information about where they buy their cigarettes except under considerable pressure. Therefore test purchases made by under-16 volunteers are likely to be necessary if the Bill is to be effective.
There are all sorts of times of day when the tests can be carried out. They can be done during school holidays, on Saturdays and on Sundays for those 320 tobacconists who are open on Sundays. The worry that children will miss schooling is unnecessary. The fact that parents will always have to give their approval indicates that my noble friend is perhaps overly concerned. I hope that I have given him some assurance. I hope too that the Minister will give some assurance so that my noble friend will not feel as worried as he is at present.
My Lords, the noble Lord, Lord Cocks, offered us an intriguing scenario of a child leaving a shop with perhaps a single cigarette tucked behind one ear, a packet in one pocket, a hamster in the other and possibly even swigging a bottle of gin. But I understand the anxieties that the noble Lord feels.
The amendment to exclude the use of children to incite offences is in any event redundant as it is already an offence at common law to incite any offence. Under Section 45 of the Magistrates' Courts Act 1980 any offence of inciting a summary offence is subject to the same penalty as that offence. In addition, anyone who incites another to incite the commission of an offence or who aids, abets, counsels or procures an offence of incitement is himself guilty of an offence. Trading standards officers are as subject to the law as anybody else.
The Government have already agreed to issue a circular to local authorities setting out their powers and responsibilities under the present law and this Bill. In that circular we shall include guidance on the use of children by trading standards officers during surveys or exercises to determine the extent of over-the-counter cigarette sales to children under 16 in a specific area. The guidance will remind trading standards officers that it is illegal to incite another person to commit an offence.
Nevertheless, I am satisfied that the use by trading standards officers of children under the age of 16 may in reality be the only practical way of ensuring that the law in this area is being complied with. It is important that such operations are carefully supervised, both in the interests of the children and the traders. All relevant parties will be consulted about the circular and I hope that the noble Lord, Lord Cocks, will be assured by that undertaking.
The most important point that needs to be made is that honest and responsible retailers will have nothing to fear from the clause as it stands or the Bill in general. It is aimed solely at those who have persisted in fighting the present law.
§ Lord Stoddart of Swindon
My Lords, I should like to support my noble friend Lord Cocks in his amendment. I felt that the figures he gave at the outset for the derisory number of prosecutions under the existing law were probably the best case I have heard for the Bill. He has done a service by bringing forward those figures. They show, as we all agree, that there is a need to strengthen the law. We should all be obliged to him for his research and for bringing that information forward.
However, we must have some anxiety about what he says. People in this country do not like agents provocateurs; they do not like narks. It is a quirk in 321 this country. They do not like people who appear to be sneaky. There are a number of considerations to be taken into account.
I was encouraged to some degree by the Minister saying that there will be safeguards and a circular will be sent out. Nevertheless, he confirmed that it would be possible to use children under the age of 16 to procure an offence. That is what it is all about. It is almost a conspiracy to procure an offence. We must be careful. For example, how young will the children be? Will they be eight, 10 or 12? We need to know that. Surely we do not intend to teach children of that age to go into a shop and buy cigarettes. That would invalidate what we are trying to achieve in the Bill. Does not telling a young child that provided his parents and the trading standards officer say that it is all right for him to buy a packet of cigarettes there is nothing wrong in doing so encourage the same child and perhaps his sisters and friends to do the same? We must be careful because we are not dealing with adults. We are dealing with children and we must be careful how we treat their young minds. My noble friend Lord Cocks is right in bringing these issues before your Lordships.
Perhaps I may turn to the other end of the age scale. Will tie trading standards officers send someone aged 15 years, 11 months and 27 days to procure an offence? That would be unfair to the retailers because at that age the child may look 16 years old. We must strike a balance. We must ensure that our English traditions are not undermined by overzealousness in one direction or another.
I do not wish to delay the House further in speaking at the next stage of the Bill. I wish merely to say now that it does not matter whether the Labour or Conservative Parties, all the parties in the world, the House of Commons, the House of Lords and any organisations including ASH and Parents against Tobacco, believe that everything in the Bill is right. It is the duty of all noble Lords as individuals to put forward their point of view even if it differs from all others. If we honestly believe that there is a point to be made it is our duty to put it forward. That is exactly what I have tried to do during the passage of this Bill. I hope that people understand that and will not criticise Members of this House in seeking to put forward their views.
Like my noble friend Lord Cocks, the views that I have put forward are my own. I have had no representations from the tobacco industry. Indeed, my guess is that the tobacco industry would not want noble Lords to interfere with the arrangements that it has made with the producers of the Bill. I wish to assure the House that the views that I have expressed are my own and that they are honestly held. The amendments that I have proposed were designed not to undermine the Bill but to improve it. I wish to ensure that the Bill is decent and is not illiberal and that it is possible for it to work in its entirety.
§ 7 p.m.
The Earl of Harrowby
My Lords, surely we are not going to be asked to teach our children to become agents provocateurs. That is equally dangerous. The 322 Minister began his reply by explaining that such action would be illegal. He should remember that there will be a child in the middle who, as middleman, may be immune from any legal action. It could be held that the incitement to the child was not breaking the law because there is an immunity in the middle. However, I ask my noble friend to recognise that real problems exist.
I understand that the noble Lord, Lord Cocks, will not press his amendment but surely that cannot be the end of the story. There is a great danger because in the first half of his reply the Minister said that the action would be illegal but at the end he almost reversed that statement when saying that nevertheless such activities must be considered in order to obtain prosecutions. We are in real danger of creating one error in order to cure another as so often happens in government circles.
§ Lord Monson
My Lords, with the leave of the House and following the comments of the noble Earl, perhaps I may ask this question. Will the Minister clarify a point arising from his reply? Is it the case that children who are below the age of criminal responsibility will be exempt from the restrictions imposed by the Act which is cited and which on the face of it prevents them from being used as agents provocateurs? If they are below the age of criminal responsibility, presumably they could be so used.
My Lords, it is an offence to incite another person to commit an offence. Trading standards officers are subject to that law as is anyone else. If they incite the commission of an offence they are as guilty as if they actually committed the offence.
A trading standards officer will use a child under the age of 16 not to incite an offence but to ascertain whether a retailer is selling cigarettes over the counter to children. That is clear and two separate issues are involved. Children under the age of criminal responsibility—that is the age of 10—cannot be convicted of an offence of incitement. However, it is inconceivable that children so young will be used for the purpose. There are two parts to the issue that we have been discussing.
§ Lord Rea
My Lords, the most important point was made by the noble Lord, Lord Airedale. Incitement may be an offence; but in inciting, a person pressurises or cajoles another person into committing an offence. That is not what trading standards officers are doing to children nor what children are doing when they purchase cigarettes. Trading standards officers do not have the intention of bringing about a criminal offence. Indeed, they would much rather no one committed an offence and that no newsagent-tobacconist sold cigarettes to children under the age of 16.
323 My noble friend Lord Stoddart underestimates the grasp, intelligence and stability of children between the ages of 12 and 16. Those who co-operate in controlled or test purchases in such circumstances are fully aware of what they are doing. They understand the way in which tobacco harms health and that it is a public health menace. They wish to help their fellow children not to acquire the habit. They completely understand what they are doing. They have their parents' permission for what they are doing. Often they enjoy what they are doing and understand why they are doing it.
We have had a good airing of this point this evening. I do not believe that the action taken to observe whether or not this law is being broken constitutes incitement. I do not believe that the amendment applies to the activities which children may undertake in co-operation with trading standards officers to ensure enforcement of this legislation. My noble friend said that he will not press the amendment. We have a good discussion on the point to which we can refer in Hansard in years to come. We should now move on to the next stage.
§ Lord Cocks of Hartcliffe
My Lords, I am grateful to noble Lords who have taken part in the debate on my amendment. I gave your Lordships a substantial list of possibilities about the use of children and I do not recall any real answer to the various points which I raised.
I am grateful to the Minister for his contribution. He made it clear that the successful implementation of this legislation involves the use of children in order to collect evidence. I stress the point which I made earlier; namely, that this legislation is dependent upon the use of children under the age of 16 to implement it and yet this Bill has gone through both Houses and there has been only one real discussion on the matter, and that has taken place this evening.
I fear that had there been reference to animals in the legislation there would have been a great deal more discussion. There does not seem to be as much anxiety as regards children. I hope that in time to come my speech will be seen as an anachronism, a monadnock and a lot of scaremongering. I fear that it will not be. However, for the present, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Moved, That the Bill do now pass.—(Lord Rea.)
§ On Question, Bill passed.