Lords Sitting of 23 April 2004

Preamble
The House met at eleven of the clock: The CHAIRMAN OF COMMITTEES on the Woolsack.
Prayers—Read by the Lord Bishop of St Edmundsbury and Ipswich.

Accession (Immigration and Worker Registration) Regulations 2004
The Minister of State, Home Office (Baroness Scotland of Asthal)rose to move, That the draft regulations laid before the House on 25 March be approved [14th Report from the Joint Committee] [2nd Report from the Merits Committee].
The noble Baroness said: My Lords, on 1 May 2004, 10 new countries accede to the European Union. From 1 May, nationals of the new member states will be able to move freely and to take up employment in the United Kingdom. EU enlargement is extremely welcome to this Government, and our country and my right honourable friend the Prime Minister have been at the forefront of calls for early accession of the 10 new member states.
The United Kingdom has always been proud of its tradition of tolerance, and we believe that we will benefit both culturally and economically from new EU citizens. It makes sense for citizens of the new member states to be able to work, contribute to our economy and pay taxes. They will expand the range of skills and supply of workers in the UK economy. It is true that some other member states will not open their labour markets. It is because their markets are less open and less flexible than ours that they perform less well. If one were to ask any of our able economists, they would confirm that it is the loss of the other countries that they choose that path. It is entirely natural that others should wish to come to this country to contribute to and share in our success, and this is to be welcomed.
Enlargement brings wider benefits for the United Kingdom. It will enable fuller co-operation to tackle the threat of terrorism, organised crime and drug trafficking in a co-ordinated and effective way, and it will help to realise Europe's full economic potential. Independent studies estimate that enlargement could increase the United Kingdom's GDP by £1.75 billion in the medium term and create hundreds of thousands of jobs across the European Union. Our workers will enjoy freedom of movement across the world's largest trading bloc, and our companies will enjoy unfettered access to a market of more than 75 million new customers.
That is why all the mainstream political parties saw fit to support the Accession Treaty, which was presented to Parliament last year, and signed on 16 April 2003 in Athens. The Accession Treaty provides that after accession, nationals from all of the 10 new member states, and their families, will be able to travel freely throughout the European Union for any purpose.
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Article 39 of the treaty left open the possibility for existing member states to apply transitional measures to regulate access to their labour markets by nationals of eight of the accession states; that is the Czech Republic, Estonia, Latvia, Lithuania, Hungary, Poland, Slovenia and Slovakia. Malta and Cyprus are the exceptions. The European Union (Accessions) Act 2003, which had cross-party support, enables the Accession Treaty to be implemented in the UK. The draft regulations before your Lordships today set out in detail how we propose to do this. They are part of a package, along with other regulations being introduced by my right honourable friends the Secretary of State for Work and Pensions, the Paymaster General and the Deputy Prime Minister, which will limit the availability of benefits to nationals of the relevant accession countries.
Essentially, the draft regulations before the House today, which I am satisfied are compliant with our obligations under the European Convention on Human Rights, do two things. First, they put into effect, in Part 2, the provisions in European Community legislation giving citizens of the accession states the same free movement rights as citizens of existing member states. This means that they can come to the United Kingdom and, subject to the modifications made in relation to accession state workers requiring registration, they can reside in the UK if they are working, studying, are self-employed, retired and self-sufficient.
Secondly, in Part 3, they set out the worker registration scheme, which was announced on 23 February. The scheme is the means by which the United Kingdom will apply the transitional measures allowed under the derogation provided for by Article 39 of the Accession Treaty and Section 2(2) of the European Union (Accessions) Act 2003 to regulate access to its labour market by citizens of the eight accession states concerned. Workers from these countries, as opposed to people in other economic categories, will generally only have a right to reside in the United Kingdom if they are authorised to work for their employer under the worker registration scheme.
This is achieved in Regulation 4, which gives effect to the derogation to regulate access to the United Kingdom's labour market by accession state nationals. It provides that these nationals will have no right to reside in the UK as work-seekers, unless they are self-sufficient. This—together with the other regulations which are being laid separately by my right honourable friends the Secretary of State for Work and Pensions, the Paymaster General and the Deputy Prime Minister—achieves our policy aim, which was announced to the House in February, of ensuring that those who come here from the accession countries but do not work will not be able to exploit our benefits system.
In line with this, the International Organisation for Migration is launching a Home Office-funded information campaign in the Czech Republic, Slovakia, Hungary and Poland. This will communicate a simple message to people in those countries that if they come to the United Kingdom to work, they will generally have to register and they cannot claim benefits if they are not working.

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The Accession Treaty allows us to put in place the transitional arrangements for a period of up to five years, with a review after two years. In the case of serious disturbance to our labour market, we may apply to extend that for up to another two years, although we do not expect that we will have to do so. The experience of Spain and Portugal acceding to the European Union suggests that accession will benefit the economies of the accession countries and that, for example, disparities in wage levels will reduce over time. The United Kingdom has one of the lowest unemployment rates in the EU—almost half that of France and Germany—and there are currently more than 550,000 vacancies across the UK labour market. However, we will monitor the impact of accession on the UK labour market carefully through the worker registration scheme and the Labour Force Survey. That will ensure that, if there are any adverse impacts, we can take appropriate measures in response.
I will say a few words about how the arrangements will work in practice. It is not a scheme to stop immigration. The migrants will have free movement here as in other member states. The scheme allows us to monitor the impact of accession on the labour market, as, I hope, I have made clear. Since we announced the scheme, we have consulted and have benefited from discussion with and contributions from employers, including the CBI and the Recruitment & Employment Confederation, as well as the TUC, the NFU, and the Health and Safety Executive, among others.
The key provision in the scheme is Regulation 7(2), which provides that nationals of the eight relevant accession states who are not exempt will be required to apply to register under the worker registration scheme as soon as they start a job and within one month at the latest. Under Regulation 8, the application will need to be supported by a one-off payment of £50. That is to cover the costs of administering the scheme.
Once payment has cleared, Home Office case workers will process the application. They will do that by confirming that the applicant is a national of one of the eight accession countries who requires registration under Regulation 2. The regulations provide for a number of exemptions, to which I will turn in due course. Case workers will check that the applicant's national ID card or passport is genuine and that the person has provided evidence of employment.
Regulation 8 requires that the applicant is then issued with a secure registration card, containing a reference number and a photograph, and a registration certificate authorising them to work for a particular employer. Regulation 8(10) provides that a copy of the registration certificate will be sent to the employer. Regulation 7(5) provides that the registration certificate will be valid while the person is working for that employer. It will expire when the registered person ceases working for that employer. If they change employers, they will need to apply for a new registration certificate to authorise them to work for the new employer.
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In line with the accession treaty, workers who have worked legally in the United Kingdom for an uninterrupted period of 12 months or more will be freely admitted to the labour market and will not therefore be subject to the registration scheme. We have drafted the regulations so that, if any intervening periods in which the person was not legally working do not exceed 30 days, they can be discounted. That responds to representations that we received asking us to make sure that workers were not at risk from unfair dismissal after 11 months' employment. It also ensures that a person cannot abuse their worker status by working for short periods but then claiming full worker status after 12 months. After 12 months' uninterrupted employment, workers from the accession states will be entitled to the same rights as workers from any of the countries in the European economic area. For ease of reference, those provisions are set out in Regulation 2(8).
The regulations do not contain a requirement for workers or employers to inform us if a worker leaves employment but does not take on new work. That is because we have been conscious throughout of the need to avoid placing a burden upon employers unless absolutely necessary. In this case, we do not think it necessary. As I have explained, under Regulation 7(5), the registration certificate is valid only while the person is working; it does not itself confer any additional benefits on an individual and will need to be corroborated with other evidence in respect of any application for benefits.
So, what does the scheme mean for employers? As I have explained, our aim was to ensure that the scheme was as unbureaucratic and simple for employers as possible. The onus will be on the individual to register, as it is in their interest to do so. Under Regulation 9, employers will simply need to check that that has been done. The employer will do that by checking within one month of employing someone that the person is a national of one of the eight accession states and that he or she is required to register. Under Regulation 9(2), the employer then simply has to take a copy of the application form or other document proving exemption. That will provide them with a statutory defence and will authorise the employer to employ the person until receipt of the registration certificate.
When an application has been considered, we are required under Regulation 8 to send the employer a copy of the registration certificate, or, in the unlikely event that the application is refused, a copy of the refusal notice. Under Regulation 9(1), an employer who employs an unregistered accession state worker in breach of the regulations will be guilty of an offence, but, as I hope I have made clear, registration is a straightforward transaction, and there is no reason to think that large numbers of workers or employers will not comply. Our objective in running this scheme will be to encourage compliance and not to burden or penalise either employers or workers.
I indicated earlier that I would explain in more detail how the scheme will apply for different categories of applicant, in particular students, part-time workers and those employed by agencies or labour providers on a short-term or temporary basis. Students will be required to register if they are working. They will then

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be entitled to the same treatment as other EU citizens who work under the EC workers' directive. It ensures that students can accrue workers' rights if they work for 12 months without interruption.
Part-time workers will also be required to register. They are just as important to the responsiveness and flexibility of our labour market as full-time employees. We do not believe that it is in the United Kingdom's interests to rule out financiers, bankers and medical consultants from accession states who may want to work a limited number of hours a week. We have been conscious of the fact that if we were to prevent anyone from the accession states working for fewer than a specified number of hours a week, we would risk creating another class of illegal worker, not to mention added complexity for employers.
We are aware that by doing this we enable those who are registered to work part time under the scheme, and are on low incomes and do very small amounts of work, to apply for both in-work support and job seeker's allowance. To ensure that that does not become a means for people to access the labour market without contributing fully, we have put in place a number of safeguards in the way in which we operate the scheme.
First, we will look carefully at applications where a person is working fewer than 10 hours a week, and for little economic remuneration. Where the activity does not appear to be effective and genuine, we will refuse registration. Secondly, job seeker's allowance will be granted only on the condition that the worker continues to look for full-time work and takes it if found. Thirdly, we will keep that arrangement under close review. If there is any evidence of abuse we will consider bringing back a new provision for Parliament's consideration.
Under Regulation 5(2), those who work in short-term or temporary assignments for agencies or other labour providers will be required to register under the scheme during the period in which they are working for an authorised employer in the UK. For the purposes of the worker registration scheme, under Regulation 1(2)(g), the employer will be the agency or labour provider that pays the workers' wages. In practice, workers should apply to register as soon as they start working for an employer. They will be authorised to work until they cease working for that employer.
I should now like to turn briefly to the exemptions contained in Regulation 2. The regulations provide for a number of categories of people who will not have to register under the scheme in order to have access to the UK labour market from 1 May. That is because the Accession Treaty limits the way in which we can apply restrictions to regulate our labour market. One restriction is that member states may not introduce measures that are more restrictive for members of the accession states than the position when the Accession Treaty was signed in April 2003.
For that reason, under Regulation 2(2), those who had leave to enter or remain in the United Kingdom before accession and could work legally will not be required to register after 1 May. Similarly, under Regulations 2(3) and 2(4), those who have already been working legally in
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this country for 12 months before 1 May—for example, under a work permit—and those who are working here legally and do not change jobs will not be required to register.
Regulation 2(5) provides that accession state nationals who are dual citizens of the United Kingdom, Switzerland or any other country that is also a member of the European economic area other than the eight accession states will not be required to register for the period in which they hold dual nationality.
Regulation 2(6) provides that family members of Swiss or EEA nationals, including those from the accession states who are self-sufficient, retired or are in the UK to work or study, will not have to register. Again, that is because we cannot, under Community law and the Accession Treaty, derogate from those people's rights to work. We are obliged to ensure that the rights of family members of accession state nationals are not disadvantaged by the transitional measures that we are introducing. For example, the American wife of a Polish doctor who is here pursuant to a work permit can already work in the United Kingdom without restriction under the Immigration (European Economic Area) Regulations 2000. If she were to arrive after 1 May, her position would be the same.
Similarly, under the terms of the Accession Treaty, there is a right of free movement to engage in self-employment. That means that no member state can impose restrictions on self-employed persons while they are working solely in a self-employed capacity. Here, I have to acknowledge that there is an omission in Regulation 2(6)(b), which should also provide for the family members of self-employed persons from accession state countries to be exempt from the scheme. We will correct that by means of an amending instrument under Section 2(2) of the European Communities Act 1972 to come into force on 1 June. By making the correction quickly, we will ensure that no one will be disadvantaged in practice.
Regulation 2(6) provides that workers who are posted here to provide services in the United Kingdom on behalf of an employer who is not established in the United Kingdom will not be required to register. We took that decision because EU companies are free to provide services throughout the EU, including the UK, and because the ECJ ruled in the Vander Elst judgment of 1993–94 that cross-border service provision should be facilitated and not hindered. Normally, posted workers are in the UK for short periods of time and continue to receive salaries in their home country.
In summary, the worker registration scheme has been designed to reflect and not to hinder the flexibility and creativity of our labour market. I must stress that we do not seek to prevent people from the accession countries from working, provided that they comply with the registration scheme. But it is important to monitor that activity and to ensure that if they are not working they do not have access to our social security system.

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The alternative to those measures is to restrict access to the United Kingdom labour market in the way in which other countries have. We do not believe that that is in the workers or the United Kingdom's best interests. It could drive individuals underground by creating an illegal underclass, and it would not help to fill the half a million job vacancies that the United Kingdom currently carries. It is far better, we believe, to give free movement a chance with regulation and careful monitoring and to take action if and when any adverse impacts are detected.
I apologise for the length of my speech, but I have tried to deal in some detail with all those matters that I know noble Lords have had anxiety about. I hope that I have therefore obviated the need for any questions. I commend the regulations to the House.
Moved, That the draft regulations laid before the House on 25 March be approved [14th Report from the Joint Committee] [2nd Report from the Merits Committee].—(Baroness Scotland of Asthal.)
11.30 a.m.
Baroness Anelay of St Johns: My Lords, I thank the Minister for her introduction and explanation. She had no need to apologise for the length of her speech. However, because there are so many problems with this package of regulations, there will have to be significant questions. The Minister has already acknowledged that the regulations are faulty and need amendment. Any criticisms that I have will be in a far longer speech than I would ever normally make on regulations. I bear in mind that this is not the Minister's own departmental responsibility. From the experience that this House has of the noble Baroness's work, I suspect that the matter would have been handled far better if it were.
The further enlargement of the EU takes place in eight days' time. It has been on the agenda for years. Britain's strategy for the free movement of labour that impacts on British jobs and our public services should have been clear, consistent and planned in advance. The Government simply failed to address those concerns until the 11th hour. Some of the result is before us today.
When the Minister made a Statement on these matters in February, I gave a general welcome to the proposal to ensure that those persons who qualify to come to the UK to work after 1 May should be under a duty to register their employment. We were surprised that the Government sought to follow another route rather than the tried and tested one of work permits. As the Government have found, that route has had its difficulties, but at least it is a route that is known to both those who come here and the employers who have to operate it. However, the Government chose another scheme.
I looked at the IND website today, where confusion abounds. If I were trying to find out what on earth will be going on next week, either as an employer or as a prospective employee, my heart would sink. On 23 February, we also welcomed the essential part of
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the package outlined by the Minister; that is, those who are required to register for work should not be able immediately to claim social security, child benefit and work-related benefits. Their access to social housing should be restricted. In her opening remarks, the Minister was right to refer to those other orders.
I said at that stage that, despite my general welcome for the principle, I would of course need to consider all of the orders carefully. Indeed, I note that the second report of the Merits of Statutory Instruments Committee of the House makes the point in paragraph 4 that,
"Members of the House indicated that the House would wish to consider carefully the orders giving effect to the announcement to ensure that the full implications of the Government's policy were recognised".
Today we have only one set of regulations before us— the Home Office regulations on worker registration— on which the Minister has to make a presentation; her colleagues will present others. But the Government have to be aware that this has to be seen in the round, as a package. So a legitimate question for the House to ask the Minister today is: when will other orders be laid? I understand they are to be introduced under the negative resolution procedure but we have not seen them officially.
The regulations prevent workers from accession countries obtaining benefits next week. They are an essential part of the policy package. Indeed, the House is being asked to sign a blank cheque; we are being asked to sign up to the whole package having seen only part. The missing orders must be an important part of the package because the Prime Minister made so much of them in the interview that he gave to the BBC before the Statement. After all, he said that they give the grounds for throwing people out of the country if they do not comply with the rules. That is a very severe action to take against any person, particularly if he or she is destitute. It was a serious allegation made by the Prime Minister about the implications of the orders. We have not yet seen the proof of that.
I asked questions about the legal basis for the possible expulsion of people; I did not receive a reply. My noble friend Lord Waddington pursued that issue; he did not receive a reply about the legal basis. I am still waiting, of course, for the Government to explain what will be the expulsion rules.
I wonder whether the Department for Work and Pensions has kept the Home Office and the Minister informed on all these matters. I unashamedly nagged the Government Whip's Office on this issue—more than once a day, all week—and made a thorough, more than usual pain of myself. I wish to place on record my profound thanks to one of the officials in that office who has worked incredibly hard this week, on behalf of the whole House, in contacting the DWP and other departments. As a result, we were able to obtain draft copies of the important orders, which were placed on my desk late last night. I came in rather early this morning in order to have two or three hours in which to consider them.

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Although we have to be extremely grateful—I am sure the Minister is—that we are so well served by the officials of the House, the difficulty is that the whole House has not been able to see the orders. Further, organisations outwith the House have not necessarily been able to see and consider them. Although I have made some telephone calls and visited various websites, the results have been rather limited. Will the Minister give the House an assurance today that the accompanying orders, the rest of the package, will be laid in time for the benefit rules to be legitimately in place by 1 May? I believe that it is essential the House should have that assurance.
I note that the Social Security Advisory Committee has been consulted on the Social Security (Habitual Residence) Amendment Regulations. According to its website, its consultation ended on 20 April. When I looked at that exemplary website—as I have not been a member of that committee for seven years I can say that without being partial to it—I noticed that the memorandum from the DWP to the Social Security Advisory Committee ran to 156 pages. I confess that I did not read them all—"Tut, tut", says the Minister— but, as one tends to have a quick look at the end of such documents, I looked at the last eight or so pages which summarised the accessibility to benefits for various categories of people, primarily from the A8 countries. I have to say that it reads like a mess; it will be so confusing. I find it very difficult indeed to follow.
Although this is a DWP matter, I have to ask today whether the Government are sure that the regulations which will be introduced as a result of these orders will have a good legal basis. My faint memory from seven years ago is that if the Government want to introduce an ineligibility from benefits on 1 May, they should have had the regulations in place about 21 days in advance. If they did not, they would be unable to apply that ineligibility. I am concerned about that.
I am also concerned about when we will see the report from the Social Security Advisory Committee. I make no allegation against the committee—I am sure that it has turned round the report in the fastest time possible—but can the Minister tell the House when the SSAC reported to the Secretary of State and whether the Government know when they will be able to publish its advice more broadly so that it may be taken into account when we consider the orders, if and when they are laid?
I noted on the SSAC website that the secretariat page states that,
"the legislation to implement the UK's workers' registration scheme that will be an integral part of these proposals has not been made as we commence our public consultation exercise, and only limited information about how the scheme will operate has been made available. Accordingly, the Explanatory Memorandum does not provide the complete picture of the proposed changes to the conditions of entitlement to the income-related benefits, and an account of how the new arrangements will operate in practice, that we would normally expect to receive from the Department"—
that department being the DWP. So a consultation exercise has been carried out by the SSAC on draft orders that we and the public have not yet seen, and the SSAC has stated, in effect, that the consultation has to
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be flawed because it does not know how the regulations today will take effect. It really does sound a mess.
I turn now to the details of the order. It is important that we should have clarity about the procedure for those who come to work in this country. We welcome people who come here with skills and contribute to our economy. I have made that clear before; I make it clear again. They may come here after I May from the new accession countries. The Minister tried very hard to give the House as much information as possible and I am grateful to her. She explained very clearly some of the more impenetrable parts of the regulations and the Explanatory Memorandum and I should like to place my gratitude on the record.
I always think of these issues in terms of, "What if it is me coming here and it is happening to me?". First, can the Minister say whether or not the team that is to put the system into effect has been recruited? Are the staff of the new unit in place so that they can process the applications for registration? Have the forms for registration already been printed and are they available? Are the guidance notes for both employers and applicants readily available? Have personnel been properly trained to issue the registration forms and take the right decisions? What kind of workload do the Government estimate will be handled by the new unit?
There has been a dispute over the numbers involved over the past few weeks. It is not so much a matter of the numbers from the point of view of whether or not we are aghast at how many people will come here—different people have different views, but my concern is whether the Government's unit can handle whatever the numbers may be. The Minister will know that originally the Government estimated that an additional 5,000 to 13,000 migrants a year could come to Britain from the accession countries. Is that still their view? Are they aware that estimates from embassies suggest that the figure is more likely to be 50,000or more? But all we really need to know is whether or not the systems are in place to cope with whatever level of application is made.
The Explanatory Memorandum states that a fee of £50 will be charged for all first time applications to register with the scheme and that this will cover the administrative costs of running the scheme. Whose administrative costs—the Government's or the employers'?
Paragraph 8 refers to the procedure for applying for a registration card and registration certificate. If I, as a migrant, come here after 1 May, will the application forms be held by my employer? Where do they get them from? How long will it take them to get access to the forms if they do not stock them on site? What records will need to be kept by my employer? Will it simply be the registration card and certificate, or will he have to keep a record of the proof that I have provided to the Secretary of State that I, the new worker, have a right to be here? How much evidence does the employer have to keep?
The Minister referred to paragraph 9(3)(b), which gives a defence to an employer against an accusation of improperly employing a worker under this system if

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the employer has taken and retained a copy of the registration certificate. How is the employer to prove paragraph 9(3)(a)? What documentary evidence will suffice, or will all evidence be sufficient?
The noble Baroness referred to the system as it affects students who come here and work. I agree with her entirely—it may well be that students will work here and contribute to the economy. Could she give us a little more information about what happens after the first year, when they have been granted a registration certificate? How will they he treated then? What if I come here and my application for registration is refused? The noble Baroness referred to a refusal notice. Does that give reasons why my application has been refused? Will there be any form of review or appeal against that refusal?
Let us assume that I have a job offer from an employer and I arrive here on 1 May to take up my post on 4 May, smartly after the bank holiday. How will I know about all this new procedure? I am coming here fresh with my skills, eager to do excellent work, perhaps in the National Health Service. What information have the Government made available overseas to those from the new accession countries to tell them of the rules, particularly the rules about ineligibility for benefits? Until the Statement on 23 February, accession countries would have expected that no restrictions would be imposed upon them.
My view overall has simply been that it is important for all concerned—migrant workers who can perform such a valuable service in this country and employers who need to be able to employ them legally—that this system is up and running in an efficient and effective manner by 1 May, in just eight days' time. The Minister's response to our questions will give us an indication of whether we can have confidence that the Government have sufficiently thought through the registration and benefits package. My reaction on seeing the shambles of the preparation for the benefits package, in particular, make me wonder whether that is the case. I do not envy either the employers or prospective employees who will have to fight their way through this new system which, at the moment, seems full of unresolved problems.
Lord McNally: My Lords, I remind the House that some 15 minutes ago the Minister ended her 20-minute introduction by saying that because she had been so full in her explanation, she hoped that that would do away with any reason for questions. In that masterful dissection provided by the noble Baroness, Lady Anelay, never has a ministerial wish been so cruelly disappointed so quickly. I advise the Minister not to forget that the Conservatives are broadly supportive of the measure that she has brought before the House, so the Lord help her when the noble Baroness, Lady Anelay, opposes a Motion before the House.
I associate myself with the thanks of the noble Baroness, Lady Anelay, regarding the Merits of Statutory Instruments Committee report. It is useful; these are the first tentative steps by the House to grapple with the avalanche of statutory instruments
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that result from modern government. It bodes well that they draw the House's attention to this as a matter of public policy, and indeed it is.
I also welcome the Minister's reminder that enlargement has had all-party support. Some of the last-minute doubts about the implications of enlargement are a bit rum. The truth is that enlargement should bring benefits to this country, as the Minister indicated, in terms of not just our own prosperity and security but the exciting prospects, as we have seen in Portugal, Spain and Greece, of seeing new members increase their own prosperity. As we found in those examples—surprise, surprise—people do not simply up sticks on a whim but would much prefer to nation-build in their own countries and make them prosperous, and when they do, they provide us with markets.
As the noble Baroness, Lady Anelay, indicated, the problem with these regulations and the other measures that will follow is that they are in response to what the Home Secretary said is a real challenge to make sure that we do not act as a beacon in relation to benefits, housing and social services. Our worry is about the motivation. As the noble Baroness, Lady Anelay, quite rightly said, all the evidence is that these are knee-jerk, back-of-the-envelope, ill thought out and ill prepared proposals. They are a recipe for chaos, such as we have seen in the past. It does the Government no credit that they should approach matters in this way. We see it in so much of the legislation, such as the Asylum and Immigration (Treatment of Claimants, etc). Bill—about the sixth Bill from the Government in seven years. I am afraid that the Home Office frequently gives the impression of pulling every lever desperately in the hope that somehow a solution will emerge.
There is also a real danger, which the regulations reflect. On "News 24" last night on the BBC, there was a discussion on the power of the tabloid press. The assembled journalists came to the conclusion that, of all Ministers, the Home Secretary was most prone to respond to tabloid campaigns by the Sun or the Daily Mail. When I heard that, I thought that he had a real rival in No. 10, but that is for another debate.
The problem is not only the very detailed criticism that the noble Baroness, Lady Anelay, outlined but the indication that it is all part of a Home Office approach that either desperately pulls any lever available or responds, in a panic, to a Daily Mail editorial or a Sun headline. We deserve better of our policy-makers than this. I say that with some humility; as I have said before, I have heard the implications that it is all incompetence and wickedness on the part of the Government. Then there is a change of government and while the arguments change, the problems remain.
Immigration has been, for 40 years and more, a Rubik's cube for successive governments, appearing to deal with one problem and finding another. It is also worth reminding ourselves that in dealing with problems of immigration and our various attempts, in the main, we have remained, under successive governments, a tolerant society that has accepted, profited and benefited from the immigrant communities that joined us. It is always worth

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reminding ourselves that Enoch Powell was wrong about rivers of blood. But we also realise that modern immigration throws up new problems. The impact of organised crime has to be taken into account, as has the fact that the English language is seen not only in terms of our own society but as a gateway to the modern world. There are particular problems of communities such as the Roma in eastern Europe.
It is not a matter of criticising the Government who are trying to grapple with very real problems, but we are worried that this is yet another panic attack in the Home Office. It is trying to deal short term with a perceived problem which has been suggested, to a great extent, by tabloid hysteria, and it is coming up with solutions that are complex and bureaucratic and, one suspects—if the past record is anything to go by—it has few of the personnel and little of the machinery in place to put them into practice.
I echo other noble Lords who have said that we will not divide the House on this matter. However, I hope that the Minister does not thank me for my support, because I have received from our own excellent research department a list of about 20 unanswered questions that mirror many of those that were put so incisively by the noble Baroness, Lady Anelay. As always, the noble Baroness, Lady Scotland, is extremely persuasive at the Dispatch Box, but she has a bum brief today.
Baroness Scotland of Asthal: My Lords—
Lord Dholakia: My Lords, perhaps I may seek further clarification from the Minister on Regulation 4(3) which is to be found in part 2. I do so because the Merits of Statutory Instruments Committee identified the need carefully to consider the orders giving effect to the announcement to ensure that the full implications of the Government's policy were recognised.
The Explanatory Note on Regulation 4 states that,
"nationals; from the relevant accession States who come to the United Kingdom to seek work during the transitional period will not have a right to reside in the United Kingdom by virtue of that work seeker status. This is, however, without prejudice to their right to reside in the United Kingdom whilst looking for work if they are self-sufficient".
It would be helpful to know what evidence would satisfy the Home Office that individuals are self-sufficient.
I refer noble Lords to previous immigration legislation in this country. At one time, an immigrant was required to have £500,000 in his bank account as evidence of being a person of independent means. Regulation 4 is likely to be unhelpful for those coming to seek work in this country. It would be helpful if the Home Office were to put on record the qualifying criteria for self-sufficiency.
I turn to my second point. The Explanatory Note on Regulation 4 says of those seeking work:
"Whilst they require registration neither they nor their family members will be entitled to a residence permit or document".
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Will they be entitled to registration when work is found? When that work is found, would they be entitled to bring their families to this country? Would they be entitled to benefits if they became unemployed?
Lord Avebury: My Lords, the Minister said that she hoped that her long speech would answer all noble Lords' questions. My noble friend has already disabused her of that notion. I am afraid that I have a further question, which I thought that the noble Baroness would have been likely to answer; namely, the implications of the Sutton report as regards what she has just told your Lordships.
As I understand it, the debacle in Sheffield—that is not too strong a word for what happened there—concerned people who will be affected by the new regime, except for those who come from Bulgaria and Romania. The Sheffield office of the IND was looking at the handling of European Community Association Agreement applications, which comprised accession countries, plus Bulgaria and Romania, but not Malta or Cyprus. As the noble Baroness mentioned, the new order does not cover Malta and Cyprus. Will all the cases that would have been dealt with under that regime be covered by the statutory instrument before us now? The Minister's answer will be germane to the final question of the noble Baroness, Lady Anelay. She asked if the Government would be able to handle the numbers who will enter under this scheme and whether the systems to cope with them would be in place. Manifestly, the systems were not in place to cope with the ECAA applications. Will the people in Sheffield who failed so dismally to cope with the increase in number of ECAA applications be the same ones who deal with the applications made under this scheme? Will the Minister indicate whether we will have a separate opportunity to discuss the Sutton report? That seems to be of fundamental importance in deciding whether the Immigration and Nationality directorate is capable of coping with any new burdens that are placed on it, let alone the ones that are specified in these regulations. The Minister may snigger, but this is not a laughing matter.
Baroness Scotland of Asthal: My Lords, I am not sniggering. The noble Lord is not right. We have tried extremely hard to deal seriously with this matter. I was merely shaking my head in disbelief that the noble Lord, who knows so much about this issue, could possibly think that that would be our position.
Lord Avebury: My Lords, I do think that. The Sutton report raised serious issues that have not yet been addressed. The Government have been in possession of it since 31 March. I know that there will be a Question on the Order Paper next week about the Sutton report, but we have not had a debate about it. We have no idea whether all the recommendations of Kenneth Sutton have been implemented. If they have, what impact will they have on the new scheme that is now being introduced? In her intervention, the Minister did not immediately say whether the work involved in administering the scheme would be undertaken by the

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same people in Sheffield who failed so dismally with the ECAA scheme. I hope that the Minister will reassure me that we will have an opportunity to go thoroughly into the issue and that we will not have to be content with a Starred Question next week.
Noon
Baroness Scotland of Asthal: My Lords, I begin by apologising for rising at the end of the remarks of the noble Lord, Lord McNally. I had unfortunately forgotten that my reply should follow all contributions and not just the first three. I apologise for that.
In accordance with his stricture, I shall not thank the noble Lord for his remarks. I shall however thank the noble Baroness, Lady Anelay, for hers and for her kind remarks about me. I reassure her that the new system is not a shambles. A lot of hard work has gone into making sure that it is as clear, succinct and as practical as possible. I know that the noble Baroness has a high regard for practicality, as indeed do I. It is important to know that everything is in place for this system to work.
I hope that the noble Baroness will forgive me if I answer some of her questions in the wrong order because I wish to remind her of my comments on Regulation 9. I know that she is concerned about the way in which employers will be able to gain access to information. Employers will be able to play their part by checking within one month of employing someone whether a person is a national of one of the eight accession states and that he or she has registered under Regulation 9(2). The employer has then simply to take a copy of the application form or other document proving exemption. That would provide them with their statutory defence and authorise them to employ the person until receipt of the registration certificate. When the application has been considered, the Government are required under Regulation 8 to send the employer a copy of the registration certificate or, in the unlikely event that application is refused, a copy of the refusal notice. Under Regulation 9(1), the only time when employers would be in difficulties would be if they employed an unregistered accession state worker in breach of the rules. We have tried to make the legislation as simple as possible so that it is not too burdensome on employers.
I return to the noble Baroness's questions, which I shall take one by one, before turning to the questions asked by the noble Lords, Lord McNally, Lord Dholakia and Lord Avebury.
The noble Baroness, Lady Anelay, asked what systems were in place to ensure that we can cope with the applications on 1 May. I assure the noble Baroness and the House that we have taken measures to ensure that we can cope; we have implemented a planning capability of up to 250 applications per day. If there is an early surge of applications in the first weeks, we have contingency plans in place to draft in more trained staff without impacting on other areas of the business.
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In relation to records, I have said that employers should take a copy and retain it. The obligation is on the worker to register, not on the employer, and we believe that balance to be right. The noble Baroness and the noble Lord, Lord McNally, suggested that the regulations had been cobbled together; I assure the noble Baroness and the noble Lord that they were not. The accession treaty specifically provided for these regulations to be produced in order to set out whether and on what terms we could access our labour market. We believe that we have done that in good time.
I am assured by my noble friends and colleagues in the Department for Work and Pensions that the standard consultation requirements have been fully complied with in respect of the DWP regulations. It is our understanding that the advice of the Social Services Advisory Committee will be published without undue delay. That is what we have been assured. The draft accession regulations were laid before Parliament on 25 March, as noble Lords will I hope know.
The Department for Work and Pensions made draft Social Security (Habitual Residence) Amendment Regulations 2004 available on 18 March; the Social Security Advisory Committee has consulted on those draft regulations and will produce a report. We have always made clear what we intend the regulations to do and believe that the package will come into force, as planned, on 1 May. It was decided, however, that it was inappropriate to publish details of the scheme until it was approved by Parliament. The scheme will not be operational until 1 May—as soon as workers start a new job, on or after the 1 May, but not before. To avoid confusion, we have decided to make the application form available a week before the scheme goes live.
The noble Baroness asked, quite properly, about preparation—how people would get information about the new rules and what other countries had been told. In relation to A8 nationals, a publicity leaflet has been translated into the languages of the eight states and made available on the IND website. It is available at ports of entry to the UK, in public inquiry offices, Jobcentre Plus offices and citizens advice bureaux. The A8 embassies in the UK and the UK embassies in the accession states were also given the information. To the CBI, the TUC, the British Council and the UKCOSA, the distribution will begin on 27 April, as soon as the regulations have been approved by Parliament.
There will be posters at all ports of entry and public inquiry offices, which will advise nationals to check whether they are required to register for work. The application form and guidance on how to complete the form has been designed and drafted; that information will be available on websites and from our distribution centres on 27 April, subject, once again, to parliamentary approval. I make that point because the noble Baroness and other noble Lords will know that in the past we have been criticised for doing things before having parliamentary approval. We believe that we have behaved with propriety in that regard.
The IOM publicity campaign in four accession countries, TV, radio and face-to-face messages, was launched on 23 April. On 1 April, we held a briefing

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session with the 10 accession country ambassadors, and the Foreign Office has sent a letter to all ambassadors as a follow-up to that meeting. As to employers, there is guidance on how to prevent illegal working—short guidance sent out on 16 April to all PAYE-registered employers in the UK, and on the IND website from 16 March. More detailed and comprehensive guidance for employers was available on the website from 21 April on preventing illegal working. Employers will be able to request hard copies of the longer guidance in early May from the employers' helpline, I shall give the number for that helpline, in case anyone wants it; it is 0845 0106677.
As for asylum seekers, we have written to all accession nationals supported by NASS or by a local authority under the interim provisions, informing them that support will cease on 30 April and advising them of their options. All letters terminating support for that group were sent out on 16 April.
The noble Baroness asked about numbers. We have been clear that making predictions about numbers is difficult; however, we do know that we have more than 500,000 job vacancies, for which we welcome people who want to come and work hard and contribute. We are taking that action to ensure that people cannot come and not work and try to exploit our benefits. I hope from what I have just said, the noble Baroness will see that we believe that the provisions will enable us to meet the numbers, whether they are as high as she suggested or, indeed, are significantly lower. The noble Baroness also asked about removal, but I shall deal with that slightly later, and respond to the questions that she asked about the other practical steps, as that would be very much in the flow.
Noble Lords asked about training. A dedicated project team has been set up to deliver the necessary accommodation, IT systems, staff recruitment and training required to ensure that the scheme is up and running on 1 May. A dedicated casework team of 42 staff has been recruited. Training and accommodation for the team and the IT systems are in place. Training of new staff began on 19 April. The forms have been printed and will be made available on 27 April, as I have said, as will the guidance to employers. That issue will be very much part of the training. Section 8 checks will prevent illegal working. We have designed a new bespoke IT system, which successfully completed user acceptance testing last week.
I have dealt already with the forms, and I hope that that satisfies noble Lords. The noble Baroness asked what will happen with students after 12 months working. Students who are working will be required to register as workers; we believe that to be the most transparent way in which to do things. They will have full access to the labour market when they register. That does not breach the standstill clause in the EC directive on students, as students are currently able to access the labour market for 20 hours or less in term time and full time during breaks. Students who are working, who have registered under the worker registration scheme, will therefore be in an advantageous position. That will be a considerable improvement on their current status.
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Prior to accession, students from accession states were subject to immigration control and had to obtain leave to remain in the UK to study. That is a much more burdensome process than the registration scheme that we have devised. They will also be required to be self-sufficient. From 1 May, they will be able to access the labour market and accrue workers' rights as well as student rights. Under the European directive, students are required to be self-sufficient, but they will be eligible for the same in-work support as other registered workers. That means that they can get child benefit, tax credit, housing benefit and council tax benefit, if they work. When students have been registered for 12 months and have accrued their workers' rights, if they wish to work they will be required to register and will be entitled to full EEA workers' rights. I hope that noble Lords will think that that is a major advantage to them.
I have already dealt with the suggestion by the noble Lord, Lord McNally, that I have a very difficult brief and might not be able to answer these questions.
Lord McNally: My Lords, I know it is a difficult brief but I have never doubted the noble Baroness's ability to answer on it.
Baroness Scotland of Asthal: My Lords, I am grateful to the noble Lord. Lord McNally. I hope that your Lordships will accept from what I have said that these are not panic measures. They have been well thought through and carefully carried out.
The noble Lord, Lord Dholakia, is rightly concerned about the test for self-sufficiency. A judgment will need to be made on the facts of the matter and each case will be different. In general, if a person does not seek social security benefits or other forms of benefit as a result of destitution then he is very unlikely to fall foul of these provisions. We are not seeking to set some extraordinarily high threshold. If a person is looking after himself, is not a drain on public funds and is meeting his everyday needs then we think that it would be reasonable to say that he is self-sufficient. Obviously if a person seeks to claim benefits that may be an indication that that is not the case. In any event, we shall look at this on a case-by-case basis. I hope that reassures the noble Lord.
We are not saying that we want to exclude one type of worker or that only the most financially advantaged should come here. We believe that a broad spectrum of people can make a valuable contribution and should be encouraged to come here and take up work if there is work available for them to do. I hope that I have made it clear that if they do take up work they will be entitled to work-related benefits. We think that is fit, proper and decent.
The noble Lord, Lord Avebury, asked me whether it will be the same team in Sheffield. I assure him that the same team will not be responsible for the ECAA applications. I hope that reassures him. My smile was simply an expression of warmth at the ability of this House to misconstrue this Government. The noble Lord said this is a very serious matter. We do take it seriously and have tried to get it right.

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The noble Baroness asked whether people will be told why they are refused. If an applicant is refused on the grounds that he is not a worker then he can continue to do what he is doing, for example, voluntary work, without the need for registration. He would not have access to tax credits or child benefit. If an applicant is refused on the grounds that it is suspected that he is not really from an Accession-8 country and may not be legally entitled to work in the United Kingdom and if the employer continues to employ him, despite receiving notification of refusal from the Home Office, that employer may be guilty of employing an illegal worker. If the employer knows that the person is not entitled to work in the UK then any defence established by checking his documents will be forfeited.
The noble Baroness asked whether there will be an appeal. The short answer to that is, "No". We hope that the vast majority of applications will be successful. But if the applicant is not an A8 national worker requiring registration, including if there is suspicion that the passport ID is not genuine, then WP(UK) will refuse the application, refund the fee and send a notice of refusal to the applicant and the employer. If the applicant does not appear to be a worker the application will be refused and the applicant will not be permitted to enter the labour force. If there is a lack of evidence of employment or a mismatch between the person's identity and the employment document application then WP(UK) will contact the applicant to obtain further information. Missing information will not be the ground for absolute removal.
I hope that the removal of current EEA nationals is the last issue. I have dealt with all the others from the noble Baroness. Noble Lords will know that that is possible under the Immigration (EEA) Regulations 2000. Under the Immigration (EEA) Regulations 2000 as applied by the Accession (Immigration and Worker Registration) Regulations 2004 where an A8 individual is not working in accordance with the worker registration scheme or is not otherwise exercising treaty rights, that is that he is not self-sufficient, self-employed or something like that, if he creates an unreasonable burden on public funds then he may be liable for removal. It has been a matter of public policy that this should take place on grounds of public security and public health. The powers of detention and removal under the Immigration Act 1971 still apply. That would be the route that would be taken to remove someone. If he had not clearly demonstrated that he was self-supporting or self-sufficient we could use the 1971 rules to do it.
I think that the last issue raised by the noble Lord, Lord Avebury, was about the Sutton report. I do not detract from the importance of these issues. Whether there will be a debate on them will be a matter for the usual channels. I would not like to minimise the gravity of the problems effecting eastern European applicants that have arisen in Sheffield. My right honourable friends have already given a full account of the measures that we are prepared to take and will be taking in relation to that matter.
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I hope that noble Lords will see from the explanation that I have just given that an enormous amount of work was put into these regulations by my right honourable friend the previous Minister of State responsible for asylum and immigration issues, Beverley Hughes. I pay tribute to her work on this. She worked incredibly hard and the fact that we have these regulations in good order is to a large extent because of her work.
Baroness Anelay of St Johns: My Lords, I intervene with great hesitation and humility. The Minister has taken us to task on several occasions and has said that these regulations are in good order and that there has been no cobbling together. But does she remember that when she introduced the regulations she explained to the House that they are not accurate and will have to be amended? Is that still the case?
Baroness Scotland of Asthal: My Lords, I made it clear that they have to be amended in one regard. I shall be perfectly frank about how this matter arose. It was as a result of the lawyers going back through the details. When we examined them, it was found that the dependants of those who were self-employed had been omitted. It was a mere oversight. That is the correction that we want to make. I think that the lawyers in the department should be given credit for the acuity with which they looked at these regulations. They identified the problem early, they notified us of it and it will be cured. The noble Baroness and others have said that this is a shambles or a mess. I hope that I have been able to assure the House that those adjectives are not accurate in relation to the scheme that we have put in place. The credit for those who have worked hard on these regulations is well founded. I hope that, even if the noble Baroness cannot agree with me on that, she will agree that she now has more information about how this scheme will work. I commend the regulations to the House.
On Question, Motion agreed to.

Lay Magistrates (Eligibility) (Northern Ireland) Order 2004
12.19 p.m.
The Parliamentary Under-Secretary of State, Department for Constitutional Affairs (Lord Filkin)rose to move, That the draft order laid before the House on 11 March be approved [12th Report from the Joint Committee].
The noble Lord said: My Lords, the draft order is to be made by powers conferred by the Justice (Northern Ireland) Act 2002. The order was laid before the House on 11 March and debated in another place on 31 March. The order prescribes the eligibility requirements for appointment as a lay magistrate, a new judicial office which we are establishing in Northern Ireland. Our overriding objective is to ensure that lay magistrates are not appointed when they have a real or a perceived conflict of interest. Other factors to be taken into account when determining eligibility include distance from the court locality and specific personal qualities.

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This new office is an important initiative, stemming from the Belfast agreement. The agreement endorsed the creation of a justice system that would,
"be responsive, encourage community involvement and promote public confidence".
The agreement also provided for a review of the criminal justice system in Northern Ireland. The review group considered as part of its remit,
"measures to improve the responsiveness and accountability of, and any lay participation in the criminal justice system".
Views emerging from consultation by the review group were supportive of a strong lay magistracy. The introduction of this measure, which will establish an important link between the courts and the local areas they serve, will lead to further enhancement of public confidence in the criminal justice system in Northern Ireland. Lay magistrates will perform certain criminal justice functions currently performed by justices of the peace and all functions currently performed by lay persons sitting alongside resident magistrates dealing with criminal proceedings in youth courts and care proceedings in family proceedings courts.
The order is supplemented by a statement of policy, which has been placed in the House Library. Our policy sets out our thinking for the inclusion of the list of offices and occupations on the face of the order and provides guidance in relation to other offices and occupations. The list does not seek to be exhaustive. Furthermore, it received widespread support from those who responded to the public consultation in Northern Ireland on the draft order and policy.
While the order and the policy provide guidance, when making appointments to the lay magistracy the Lord Chancellor retains an overall discretion. This will ensure that the Lord Chancellor retains the ultimate decision-making authority on the merits.
The new post will be introduced in April 2005. Following appointment, there will be a focused training programme for the new lay magistrates.
In conclusion, the establishment of this new office of lay magistrate is a meaningful measure flowing from the Review of the Criminal Justice System in Northern Ireland. The lay magistracy will be comprised of local people adjudicating in their local court areas, which will further enhance the confidence of the public in the justice system. The Government consider that the right balance has been struck between minimising constraints on eligibility on the one hand and, on the other, building in sufficient checks and balances in the appointments process to protect the integrity of the office. I commend the order to the House.
Moved, That the draft order laid before the House on 11 March be approved [12th Report from the Joint Committee].—(Lord Filkin.)
Lord Kingsland: My Lords, I am most grateful to the Minister for his opening observations on the draft order. I should like to raise three matters with the noble Lord.
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The first concerns the selection criteria for lay magistrates. I note the following sentence in paragraph 9 of the Explanatory Memorandum to the draft order, which states:
"Appointments will be made strictly on the basis of merit and an essential consideration will be to appoint a Lay Magistracy that is broadly reflective of the community it serves, particularly by community background and gender".
In my submission there is a potential conflict here between the criterion of merit and the criterion of reflectiveness. I should like to ask the Minister how it is intended to resolve that.
I have had the opportunity of glancing at the debate that took place in another place on 31 March. I note that the Minister, Mr Leslie, put the matter this way:
"I do not feel that there is any inconsistency between appointment on merit and seeking a more diverse range of appointments, not least because much can be done to improve the diversity of applicants. If the pool of applicants is narrow, consisting, as is traditional, of white, middle aged men with a particular background, the chances are that the final appointments will be of white, middle aged men. They may be appointed on merit, but be from a narrow spectrum and not necessarily be reflective of wider society. However"—
and here I come to the crucial part of Mr Leslie's speech—
"if we encourage a wider pool of people to apply, including women, and people from ethnic minorities and of different ages, the chances of having a broader, more diverse judiciary, also appointed on merit, are increased".—[Official Report, Commons Third Standing Committee on Delegated Legislation, 31/3/04; col. 23.]
If that is to be the Government's approach to the selection process, I would have no quarrel with it. It seems to me wholly consistent with the exclusive criterion of merit, nevertheless, to have a programme which, over a period of time, encourages a more diverse pool to apply for the post in question.
My attention has been drawn to Clause 3 of the Justice (Northern Ireland) Bill in this specific context. Clause 3 is inserting a further section into the 2002 Act, in place of subsections (8) and (9) of Section 5 of that Act. Proposed subsection (8) provides:
"The selection of a person to be appointed, or recommended for appointment, to a listed judicial office (whether initially or after reconsideration) must be made solely on the basis of merit".
Proposed subsection (9) provides:
"Subject to that, the Commission must at all times engage in a programme of action which complies with subsection (10)".
Proposed subsection (10) states:
"A programme of action complies with this subsection if—
(a) it is designed to secure, so far as it is reasonably practicable to do so, that appointments to listed judicial offices are such that those holding such offices are reflective of the community in Northern Ireland.
(b) it requires the Commission, so far as it is reasonably practicable to do so, to secure that a range of persons reflective of the community in Northern Ireland is available for consideration by the Commission whenever it is required to select a person to be appointed, or recommended for appointment, to a listed judicial office; and
(c) it is for the time being approved by the Commission for the purposes of this section".

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If the approach set out in the Bill is, indeed, to be the approach taken to lay magistrate selection under this order, would the Minister be kind enough to confirm that for me in his closing remarks?
My second concern is about the order itself, and in particular about the proscribed categories. I note that eligibility for selection will be limited to those who live within 15 miles of the county court division to which the appointment relates. I am also aware that some county courts are close enough to the Northern Ireland border so that the 15-mile radius will stretch into southern Ireland.
I have, of course, no objection whatever to lay magistrates being selected from south of the border if they fall within the 15-mile radius; that has, as I understand it, been the case for justices of the peace for several hundred years. I am, however, rather concerned at the implications of this fact for the list of proscribed activities. I note, for example, in paragraph 2(b) of the order that not only are Members of another place, the European Parliament, the Scottish Parliament, the National Assembly for Wales, the Northern Ireland Assembly and your Lordships' House excluded, but Members of either House of the Irish Parliament. The Irish exclusion seems to me to be perfectly reasonable given that all Members of Parliament from the United Kingdom are excluded.
The other list, however, at sub-paragraph (e) refers to:

(i) a member of the Police Service of Northern Ireland,

(ii) a member of the Police Service of Northern Ireland Reserve,

(iii) a member of the Northern Ireland Policing Board,

(iv) an employee of the Northern Ireland Policing Board.

(v) the Police Ombudsman for Northern Ireland,

(vi) an employee of the Police Ombudsman for Northern Ireland,

(vii) the Director of the Assets Recovery Agency,

(viii) a member of staff of the Assets Recovery Agency,

(ix) the Director or deputy Director of Public Prosecutions for Northern Ireland,

(x) a member of staff of the Director of Public Prosecutions for Northern Ireland,

(xi) a member of Her Majesty's Regular Armed Forces,

(xii) a member of staff of the Northern Ireland Prison Service,

(xiii) a member of staff of the Youth Justice Agency,

(xiv) a member of the Probation Board for Northern Ireland,

(xv) a member of staff of the Probation Board for Northern Ireland,

(xvi) a practising barrister or solicitor.

(xvii) a member of the panel of guardians ad litem appointed under the Guardians Ad Litem (Panel) Regulations (Northern Ireland) 1996".

I note that all these proscriptions relate to Northern Ireland alone. None of them applies to equal categories of persons south of the border. That is inconsistent with the approach to elected Members.
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I am curious to know what policy approach determined the drafting in the order. It seems to me that, unless there is a reason for adopting that approach which is reasonable, the approach is defective. The same discrimination also applies to the proscriptions of spouses or partners of those categories to which I have just referred in your Lordships' House.
My third and final—the Minister will be relieved to hear—question concerns the last proscription in the list which falls under paragraph (2)(j). This states that,
"if he [the potential candidate] has been convicted of an offence punishable by a term of imprisonment".
I am curious to know what the Minister makes of the expression,
"punishable by a term of imprisonment".
This issue was also raised in another place. I must say that I found the Minister's response to the question on that occasion somewhat opaque.
It was put to the Minister directly: does the expression,
"punishable by a term of imprisonment",
mean any offence that has a range of punishments, one of which is imprisonment? In other words, does it mean that any offence that has a range of punishments, one of which is imprisonment, is the relevant offence under that clause; or does the clause bite only if someone is actually imprisoned or given a suspended sentence?
Mr Leslie responded in another place:
Unless their offence had a conviction that involved imprisonment ☠ they would be eligible".—[Official Report, Commons Third Standing Committee on Delegated Legislation. 31/3/04; col. 7.],
meaning that they would be appointable. If that is so, it seems to he, in my submission, an eminently sensible approach. I can think, for example, of a number of offences in relation to the definition of "waste" that are usually dealt with in a magistrates' court and which carry either a tine or a period of imprisonment for three months. Almost invariably, whether an individual pleads guilty to the offence or, indeed, is found guilty after a trial, the magistrates will impose a fine. They will not impose a period of imprisonment. It would, in my submission, be bizarre if someone who had been arraigned before the magistrates' court for a waste offence and was fined nevertheless to be caught by this provision. However, there was sufficient uncertainty in my mind as a consequence of the debate following Mr Leslie's remarks to ask for the reassurance of the noble Lord.
Lord Addington: My Lords, I shall take up considerably less of your Lordships' time than the noble Lord, Lord Kingsland. On the whole the order seems sensible enough; its provisions are basically just common sense. The list of the exemptions seems reasonable enough to me, although I believe that one small change could be made. I hope that the Minister will be able to give me an example of the thinking behind the order so that we can know the Government's thought processes on the matter. That is probably as important as the list. I refer to the exemptions for partners. It appears that the exemption does not apply for a spouse or partner of someone who has worked for the Probation Board. Why

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is the position different as regards a partner or spouse of someone who has worked for the Youth Justice Agency? The dividing line seems to be drawn rather oddly. If the Minister can answer that question, it would allay one small doubt. However, as I say, on the whole this is a sensible order. We see no objection to it. We think that the change-over from lay magistrates to JPs is sensible. Indeed, we are very happy.
Lord Filkin: My Lords, there will be a slight sense of a foretaste of what we shall enjoy next Thursday when I believe that we shall have the privilege of returning to the Justice (Northern Ireland) Bill. The noble Lord, Lord Kingsland, referred to some of the debates that we had when that Bill was last in this House.
I turn to one of the very good debates that we had on that Bill which concerned how you seek to achieve two things at once. I refer to a judiciary that is reflective of the community that it serves. There was no dissent in this House to that as an objective of policy, which I was warmed to feel when we had that debate. But how does one achieve that without there being any conflict about, or compromise on, merit? I am extremely pleased to affirm our policy stance on this order and to repeat what I said in the House at that stage of the Bill—and will come back to in terms of the future legislation—that is, that it is exactly as I think the noble Lord, Lord Kingsland, would wish it to be, by which I mean that it is perfectly proper. It is our policy that action should be taken to try to encourage people from a diversity of genders, societies and backgrounds to think about applying for judicial office—in this case, the lay magistracy—with the aim of trying to gain a diverse pool of people. However, when the process of selection comes, the decision is made solely on merit. We discussed that distinction, and I recollect the support of the noble Lord, Lord Kingsland, in those discussions. Exactly the same approach is taken in the order, whether a future Bill is passed or not, which of course I hope that it will be.
I turn next to proscribed categories and other police forces, which I very much respect is a sensitive issue. The order is crafted in reference to geographical distance from the county court areas, because that is what the primary legislation empowered it to do; it could not use another basis than that. One benefit of taking a little more time on the order has been that we set out a policy statement for this House and another place of what clearly lies behind our thinking, and how we intend to operate the discretion that the Act and the order give the Lord Chancellor.
We made it clear in that policy statement, in correspondence subsequent to it and in another place, that, although the order itself does not list every other police force that could be proscribed, for example, we think it incompatible with confidence in an independent judiciary if a member of any police force were appointed to the lay magistracy. I hope that the noble Lord, Lord Kingsland, shares the view that, in a sense, that is virtually self-evident. One cannot achieve confidence in the independence of a judiciary in terms of the public at large if the person on the Bench is seen to be a policeman.
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That is not to say that policemen are corrupt; it is an issue about perception of independence. That is our position. The Gardai, for example, are not specified in the order, but they will not be appointed to the lay magistracy in Northern Ireland.
We could have made the point in the order, but we would have been foolish to have tried to list every comparable office that might have been proscribed. The list would have been at least 700 long. With the best of efforts, the chances of getting it perfectly right would have been fairly slim, I suspect. Therefore, we sought to set out the obvious ones and to signal our policy position, as I have tried to emphasise.
Lord Kingsland: My Lords, I am most grateful to the Minister for the assurances that he has given the House about the inappropriateness of appointments to the lay magistracy of any member of a police force, whether north or south of the Border. The first reason why I drew his attention to the list was that we had not at that point had the benefit of his statement about the generality of the prohibition.
Secondly, the list seems very specific to Northern Ireland. The noble Lord said that it would be a very long list if we included everyone and that the order would have been impossibly long. However, one is inevitably struck by the fact that the only categories stipulated in the order are categories from Northern Ireland. That was what initially made me make the point as I did. However, the Minister's response has been extremely valuable, and I am most grateful.
Lord Filkin: My Lords, there was a very slight phrase in my opening speech that referred to the list not being exclusive. On that I hang my explanation at this point, but there is a clear policy position.
Lord Kingsland: My Lords, I quite accept that the list is not exclusive, but the selection for the list that the Minister chose to put in the order is, in my submission, rather one-sided.
Lord Filkin: My Lords, I shall not repeat what I said. The thrust is essentially to be absolutely clear about the Northern Ireland posts, and that the same principles would apply to any analogous posts from any other country. That is an important point, and I am genuinely glad that the noble Lord has allowed us to tease out the issue. Again, it is an issue of public confidence.
I do not think that I shall please the noble Lord on the next point. While there may or may not have been ambiguity in another place, the order is clear in law that the offence could be imprisonable. Unless the powers of exemption were applied, a person would be debarred from being appointed as a lay magistrate if he had been convicted of an offence that could carry a term of imprisonment, whether the individual had been imprisoned in practice or not. That balance is right. The noble Lord will be adroit at identifying, as he did, examples on which one might ask whether we

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were really serious. Nevertheless, as a working distinction, the offences that carry terms of imprisonment are self-evidently the more serious ones.
That is a strong and good position because, in principle, someone who has been convicted of an imprisonable offence has a presumption against him that he has the qualities that would give the public confidence in his standing. However, I draw to the House's attention the power of exemption that the Lord Chancellor has. He alone has it; a selection panel does not. If a lay panel making a recommendation for appointment believed that someone was suitable but was debarred as a consequence of the inhibition that we are debating, it is open to that panel to put in writing to the Lord Chancellor why it believes that an exception should be made. It cannot make the exception itself. The Lord Chancellor then has the power to make an exception if he thinks it appropriate.
The sort of example of which I am thinking is of someone who might have been convicted, perhaps when 18, of disorderly behaviour. Thirty years later, he was no longer a disorderly person, but was nearly 50 and wanted to be a lay magistrate. In such a situation, one can envisage a lay panel thinking that the person met all other merit tests, nothing having happened apart from that offence 30 years ago. In such a situation, some panels might put forward a case for the discretion that resides with the Lord Chancellor to be exercised.
The noble Lord, Lord Addington,asked a question that, I think, focused on the Youth Justice Board.
Lord Addington: My Lords, it was on why those working in the probation service and their spouses were not excluded while those who worked for the Youth Justice Agency were. Where was the line drawn? What was the thinking behind it?
Lord Filkin: My Lords, the Youth Justice Agency is akin to the Prison Service and deals with young people in custody. The order reflects that, but there is no similar conflict in respect of members of probation boards. Sometimes I feel that one gives less good answers from the Dispatch Box than one would wish, through problems of eyesight. Perhaps I can amplify the point subsequently. I am apologetic for not being able to give a clear answer.
Lord Addington: My Lords, I believe that I have gathered that the distinction concerns someone working within the Prison Service, as opposed to with someone who has come out. I see a cut-off.
Lord Filkin: My Lords, it is not good Parliamentary process, but if the noble Lord, Lord Addington, will bear with me I would be pleased to have a discussion with him immediately afterwards to enter into a little more detail on that point. I beg to move.
On Question, Motion agreed to.

European Parliament (Disqualification) (United Kingdom and Gibraltar) Order 2004
12.50 p.m.
Lord Evans of Temple Guitingrose to move, That the draft order laid before the House on 11 March be approved [12th Report front the Joint Committee].
The noble Lord said: My Lords, I beg to move that the European Parliament (Disqualification)(United Kingdom and Gibraltar) Order 2004 be approved. I shall also speak to the European Parliament (Number of MEPs)(United Kingdom and Gibraltar) Order 2004.
I am grateful that it has been agreed that these orders can be taken together. They both relate to the European parliamentary elections to be held in the United Kingdom on 10 June this year, and are an important part of the Government's preparations for these elections.
There is one main purpose of this first order. It disqualifies certain classes of individuals connected with Gibraltar from being MEPs. This follows on from the order which established the combined electoral region of the South West and Gibraltar to enable the people of Gibraltar to vote in European Parliamentary elections and which extended the provisions of the Political Parties, Elections and Referendums Act 2000 to Gibraltar. Noble Lords may recall that that order was debated in this House in January.
By way of background, a ruling in 1999 by the European Court of Human Rights, as a result of a legal challenge to the UK from a Gibraltar resident, declared that the European Parliament formed a part of Gibraltar's legislature. The European Parliament (Representation) Act—which received Royal Assent in May 2003—fulfilled the obligation to meet the terms of that judgment. The Act provides for the Gibraltar electorate to be enfranchised for elections to the European Parliament.
The current position in both the UK and Gibraltar is that, under Section 10 of the European Parliamentary Elections Act 2002, as it stands, certain classes of people are disqualified from being an MEP, for example people under 21. Other classes of people in the UK that are disqualified from being an MEP include, for example, people declared bankrupt in the UK. Provision needs to be made to apply such disqualification to Gibraltarians in a similar position. This order does that, mirroring those classes of people in the UK.
In addition, under Section 28 of the Gibraltar Constitution certain people are prohibited from being members of the House of Assembly. The order includes those classes of people listed in the constitution, which although similar to those disqualified in the United Kingdom, are not caught by the United Kingdom provisions.
In detail, paragraph 2(a) of the order provides for a person to be disqualified from the office of MEP if he has been adjudged or otherwise declared bankrupt under any law in force in Gibraltar and remains undischarged. Those in the class described here are also currently disqualified from being members of the Gibraltar House of Assembly. Bankrupts under United Kingdom law are not entitled to be MEPs (by virtue of being disqualified from being an MP).

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Paragraph (b) of Article 2 disqualifies from the office of MEP a person who holds or acts in certain public offices—such as judges or members of the police—by virtue of which they would be disqualified under Gibraltar law from being members of the Gibraltar House of Assembly. Again, this is similar to the existing UK position, where such people are disqualified from membership of the House of Commons. However, the provision enables those such as teachers or junior administrative staff who are not disqualified under United Kingdom law to be MEPs.
Furthermore, the provisions found in paragraph (c) of Article 2 disqualify the Clerk to the House of Assembly of Gibraltar. Under the terms of the European Parliament (Representation) Act 2003 the clerk to the House of Assembly of Gibraltar is both the electoral registration officer and the local returning officer for the Gibraltar part of the combined region, and similar persons are disqualified in the United Kingdom. In addition any deputy or clerk appointed by the Clerk to the House of Assembly in Gibraltar in his capacity as local returning officer or the European electoral registration officer for Gibraltar is also disqualified.
Those who have committed offences connected to the elections to the House of Assembly in Gibraltar are disqualified from being members of the House of Assembly under the Gibraltar Constitution. Provisions in paragraph (d) mean that this class of people are also disqualified from being an MEP. The provisions under paragraph (e) disqualify those who have been found guilty of one or more offences— whether in Gibraltar or elsewhere—sentenced or ordered to be imprisoned indefinitely or for more than one year and are detained in Gibraltar or unlawfully at large. This provision is related to the one for the disqualification for the House of Assembly and in addition equates to a similar provision in the Representation of the People Act 1981.
To summarise, Article I provides for the citation, commencement and interpretation of the order. Article 2 specifies those persons who are disqualified from the office of MEP. The Electoral Commission has considered this order and has given its overall support.
This order is an important part of the required secondary legislation following the European Parliament (Representation) Act 2003, and as such contributes to the United Kingdom fulfilling its obligations arising from a European Court of Human Rights decision which said that the people of Gibraltar are entitled to vote in the European parliamentary elections. It does this by defining those people in the United Kingdom and Gibraltar who are disqualified from the office of MEP.
I shall now turn to the second order, the European Parliament (Number of MEPs) (United Kingdom and Gibraltar) Order 2004. This provides for the number of United Kingdom Members of the European Parliament to be reduced from 87 to 78 as a result of the accession of 10 new states to the European Union. The order also sets out how the new number of MEPs
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are to be divided between the electoral regions in the UK. The new number of MEPs, as set out in the order, will apply to the European parliamentary elections to be held on Thursday, 10 June 2004.
Noble Lords may find it useful if I go into some of the background as to why this order is necessary. The Treaty of Nice, which entered into force on 1 February 2003, provides for an enlarged European Union of 27 states, and makes adjustments to EU institutions to prepare the Union for enlargement. It was agreed after negotiations in which the UK played a full part that the European Parliament would be expanded to accommodate the new member states and that the European Parliament would have a maximum number of 732 MEPs.
The Government fully support the enlargement of the European Union. However, I am sure noble Lords will agree that it makes sense to put a limit on the total number of MEPs elected by EU states so that the European Parliament does not become too large. A necessary consequence of that is that the number of MEPs elected by existing member states, including the United Kingdom will be reduced in order to accommodate the new member states.
Under the Treaty of Accession signed in Athens on 16 April 2003, 10 of the 12 candidate states provided for in the Nice treaty are to join the European Union on 1 May 2004. The accession treaty specified that the UK would have 78 MEPs in the European Parliament within the enlarged Union of 25 states. Parliament has given its approval to the Athens treaty. The draft order before us implements the UK's revised allocation of 78 MEPs provided for in the treaty. As I have explained, the UK currently has 87 MEPs. Under the European Parliamentary Elections Act 2002, for the purposes of elections to the European Parliament the UK is divided into 12 electoral regions. England is divided into nine electoral regions and Scotland, Wales and Northern Ireland each form a single electoral region. The 2002 Act specifies how many MEPs each region has.
The European Parliament (Representation) Act 2003 sets out a procedure for making adjustments to the number of UK MEPs. Where an adjustment is required—for example, as a result of provisions in an EU treaty—the Lord Chancellor will ask the independent Electoral Commission to make a recommendation to him as to how the new number of UK MEPs should be distributed between the electoral regions. The 2003 Act specifies that, in making a recommendation, the Electoral Commission must ensure that each electoral region is allocated at least three MEPs, and the ratio of electors to MEPs is as nearly as possible the same in each electoral region.
In October last year, the Lord Chancellor asked the Electoral Commission to make such a recommendation in respect of the reduced number of seats that the UK will have as a result of the expansion of the EU to 25 states. The Electoral Commission made its recommendation at the end of October and it was laid before Parliament in November 2003. The method used by the commission—the Sainte-Lague method—was fully explained in its report and I need not go into detail here. But the method was supported by a number of expert sources; for example, the Royal Statistical Society and the Office for National Statistics.

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The recommendation was that in three electoral regions— the East Midlands, the South West and Northern Ireland— the number of seats remains unchanged, while the other nine regions have all lost a single seat. The Government accept the Electoral Commission's recommendation and the draft order follows the recommendation, as the 2003 Act requires.
Article 1 of the order contains citation, commencement and interpretation provisions. The order will come into force on 1 May 2004, when the 10 accession states will join the EU, in good time for the European parliamentary elections on 10 June 2004. Article 2 amends Section 1 of the European Parliamentary Elections Act 2002. The order inserts into the 2002 Act the new total number of MEPs to be elected for the United Kingdom. The substituted subsection (3) provides for the distribution of MEPs between the electoral regions, as set out in the commission's recommendation.
The draft order applies to the United Kingdom and Gibraltar. As noble Lords will know, Gibraltar is taking part in the June European parliamentary elections and has been combined with the South West electoral region to form a new electoral region for the European parliamentary elections. We have consulted the Electoral Commission on the draft order, as required by the 2003 Act.
The Government believe that the commission has made a fair and reasonable recommendation as to how the new number of UK MEPs should be distributed across the electoral regions, and it is in accordance with the requirements of the European Parliament (Representation) Act 2003.
Both the orders before us are necessary for the effective running of the European parliamentary elections to be held in June, and I commend them to the House.
Moved, That the draft order laid before the House on 11 March be approved [12th Report from the Joint Committee].—(Lord Evans of Temple Guiting.)
1 p.m.
Lord Astor of Hever: My Lords, I am very grateful to the Minister for explaining these two orders in such detail. They are not controversial and we shall not oppose them.
The first one brings Gibraltar into line with the procedures in the United Kingdom, while also being sympathetic to the existing rules for the Gibraltar Assembly on the disqualification of those able to stand as MEPs for Gibraltar. The second is in line with discussions that have taken place with the accession countries.
I should like to ask the Minister some brief questions. First, what consultations have been held with the people of Gibraltar and the House of Assembly about these statutory instruments? Secondly, what implication will the recent European Court of Human Rights ruling on the case of John Hirst have for Gibraltar, suggesting, as
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it does, that prisoners have the right to vote under the human rights legislation? And, finally, in the light of the Prime Minister's announcement of a referendum on the European constitution, will Gibraltar, as part of the South West constituency, be allowed to hold a referendum?
Lord Addington: My Lords, like the Conservative Benches, we can be very brief. We have no real objection to either order. As has already been stated, the disqualifications seem absolutely reasonable and in line not only with Gibraltarian practice but also with practice in this country. In addition, if the European Union is to expand, the European Parliament will have to be kept to a manageable size. Our loss of a few politicians' positions in the short term will ultimately be the gain of the whole of Europe. We have no objection to the orders.
Lord Evans of Temple Guiting: My Lords, I am grateful to the noble Lords, Lord Astor and Lord Addington, for their approval of the orders. The noble Lord, Lord Astor, asked three questions, which I shall attempt to answer. The first concerned consultation with the people of Gibraltar and with the House of Assembly. The Government of Gibraltar have been consulted on the disqualification of MEPs order, as they have with all the legislation relating to the enfranchisement of Gibraltar for the purposes of the European parliamentary elections. No specific consultation took place with Gibraltar in relation to the number of MEPs order as there was no requirement to do so. But the Electoral Commission consulted widely before making its recommendations, and we know that Gibraltarians were free to contribute to that consultation.
I should add that the order simply implements the recommendations of the Electoral Commission. Noble Lords will be aware that, in the region with which Gibraltar is being combined for the purposes of the European elections—the South West region—the number of MEPs is unchanged.
The second question asked by the noble Lord concerned the case of John Hirst. The Government are carefully considering the details of the judgment and its implications before deciding what steps to take. However, given the noble Lord's interest in this matter, I shall write to him once a decision has been made to inform him of what is happening.
His third question related to the fashionable word "referendum" and whether the British Government will hold a referendum on the issue of Gibraltar. The referendum provisions of the Political Parties, Elections and Referendums Act do not extend to Gibraltar. However, we must remember that the announcement to hold a referendum on the EU constitution was made only two days ago—onTuesday. If and when a constitutional treaty is agreed between member states, the technicalities will be laid before the House in the relevant Bill. I believe that that answers the points raised by the noble Lord.
On Question, Motion agreed to.

European Parliament (Number of MEPs) (United Kingdom and Gibraltar) Order 2004
Lord Evans of Temple Guiting: My Lords, I beg to move the second Motion standing in my name on the Order Paper.
Moved, That the draft order laid before the House on 11 March be approved [12th Report from the Joint Committee].—(Lord Evans of Temple Guiting.)
On Question, Motion agreed to.

Business
Lord Davies of Oldham: My Lords, it will be recognized that there is a healthy interest in the next debate. Perhaps I may suggest that, with the exception of the speech of my noble friend Lord Faulkner, Back-Benchers endeavour to keep their speeches to 10 minutes or less in order that we conclude our proceedings today in reasonable time.

Tobacco Smoking (Public Places and Workplaces) Bill [H.L.]
1.9 p.m.
Lord Faulkner of Worcester: My Lords, I beg to move that this Bill be now read a second time. I start by expressing my appreciation to noble Lords who have indicated their intention to take part in today's debate and by declaring an unpaid interest as a trustee of the Roy Castle Lung Cancer Foundation.
The Bill is intended to protect employees and members of the public in England and Wales from the effects of second-hand smoke. Almost exactly 400 years ago, his late Majesty King James I of England and VI of Scotland issued a decree banning tobacco from his kingdom. He did so in these terms:
"Loathsome to the eye, hateful to the nose, harmful to the brain, dangerous to the lungs and in the stinking fume thereof nearest resembling the horrific Stygian smoke of the pit that is bottomless".
This Bill does not quite do that because it is not an attempt to ban smoking. I believe in the liberal principle that we are all free to do as we choose, even if the behaviour we choose to indulge in causes us harm. But we should not forget that that principle comes at a very high price. In the case of smoking, 114,000 people die in the UK every year from smoking-related illnesses. That is a terrible toll of misery and destruction. If any smokers are encouraged to quit as a result of the Bill—there is good reason to believe that some will—I would of course be delighted.
Nevertheless, the liberal principle has clear limits. We are free to harm ourselves, but not to harm others, or as John Stuart Mill put it in his Essay on Liberty:
"Acts of whatever kind, which, without justifiable cause, do harm to others, may be, and in the more important cases absolutely require to be, controlled by the unfavourable sentiments, and, when needful, by the active interference of mankind. The liberty of the individual must be thus far limited; he must not make himself a nuisance to other people".
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I shall briefly go through the provisions of the Bill. Clause 1 makes it unlawful to smoke in enclosed public places other than in a designated smoking area or in a place that is exempted under Part 2 of the schedule to the Bill. Enclosed workplaces are defined as public places for the purposes of the Bill.
Clause 2 requires occupiers of public places to take reasonable steps to ensure compliance with Clause 1.
Clause 3 allows for smoking areas to be designated in enclosed public places.
Clause 4 gives employees protection from being required by their contracts of employment to work in a smoking area.
Clause 5 provides powers to make regulations. Such regulations may specify the requirements of smoking areas in public places, prohibit the designation of smoking areas in places specified in the regulations, require prescribed forms of consultation with employees on smoking and non-smoking areas and regulate signage, ventilation and air purification systems in public places. The clause gives the power to the Secretary of State in England and to the National Assembly in Wales to make regulations. Therefore, it encompasses the provisions of the Bill introduced by the noble Baroness, Lady Finlay, which we shall debate later this afternoon.
Clause 6 makes it an offence to fail to comply with the requirements of the legislation.
Clause 7 gives the court the power to make orders to require occupants of public places to take specific steps to meet their duties under Clause 2.
Clause 8 gives local authorities the duty to enforce the legislation and to allow regulations to be made giving local authorities requisite powers to make such enforcement effective.
Clause 9 states that occupiers of public places cannot be prevented by any of the provisions of the Bill from prohibiting smoking throughout that place.
Clause 10 states that the Bill will bind the Crown and that Crown servants will be treated as employees for the purpose of legislation.
Clause 11 defines "public places" and other key terms in the Bill.
Clause 12 deals with the short title and commencement of the legislation and restricts its application to England and Wales only.
Part 1 of the schedule defines "public places" and Part 2 defines certain premises that are exempt from Clause 1 of the Bill.
The case for the Bill rests on the fact that smoking damages the health of third parties. That is a fact, whatever the tobacco industry and its allies may pretend. The scientific evidence on that point was confirmed by the Government's Chief Medical Officer, Sir Liam Donaldson, in July 2003 as well as by the heads of all of Britain's 13 Royal Colleges of medicine and by the Scottish CMO, Dr Mac Armstrong, in April 2004.
The fact that cigarette smoke is bad for your health should be a surprise to no one. A non-smoker exposed to other people's cigarettes breathes sidestream smoke from the burning tip of the cigarette and mainstream smoke that

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has been inhaled and exhaled by the smoker. Tobacco smoke contains over 4,000 chemicals, some of which have marked irritant properties and some 60 of which are known or suspected carcinogens—cancer causing substances.
Short-term exposure to second-hand smoke has a measurable effect on the heart in non-smokers. Thirty minutes' exposure is enough to reduce coronary blood flow. A recent Department of Health survey for England shows that people who are exposed to other people's tobacco smoke for six or more hours a week are 50 per cent more likely than those who are not so exposed to develop asthma symptoms and breathlessness, coughing and wheezing. The National Asthma Campaign states that one in five people with asthma are prevented from using parts of their workplace where people smoke because of cigarette and other tobacco fumes. My noble friend Lord Simon is one such person. I find it extraordinary, as I am sure do many other noble Lords, that we have not yet made the Palace of Westminster a smoke-free place of work.
The British Medical Association has stated that passive smoking causes at least 1,000 premature deaths in the UK every year. The true figure is probably higher. By comparison, the total number of fatal accidents at work from all causes in the UK in 2002–03 was reported by the Health and Safety Executive as 226.
I apologise for spending so much time stating what many noble Lords may well consider the obvious, but I am afraid that not all the participants in this debate are prepared to accept the scientific realities. Take British American Tobacco, for example, which, in its latest annual report, stated:
"there is no convincing evidence that environmental tobacco smoke exposure genuinely increases the risk of non-smokers developing lung cancer or heart disease".
The tobacco industry spent 50 years covering up the evidence that smoking kills smokers and almost as long covering up the fact that nicotine is addictive. Now it is attempting to deny the truth that it harms non-smokers as well.
Many workplaces still permit smoking and they are generally in sectors with the highest levels of exposure and, therefore, the greatest health and safety risk. Many of them are operated by small firms and employ relatively low-paid staff. A survey published by ASH in April 1999 revealed that approximately 3 million people in the UK are still regularly exposed to second-hand smoke at work.
Workplace smoking is particularly common in the hospitality trades including restaurants, pubs and casinos. A recent compensation case involving casino worker, Mr Mickey Dunn, revealed that his employer handed out free cigarettes to customers to keep them at the gaming tables for as long as possible. In that context I commend my colleagues in all parties and in both Houses who served with me on the joint scrutiny committee on the draft gambling Bill for agreeing to include a recommendation in our report on limiting smoking in casinos in order to protect the health of employees.
The evidence is conclusive. Smoking is a serious workplace health and safety hazard. Usually, and rightly, such hazards are the subject of tight legal regulation. Yet
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current law in the UK provides wholly inadequate protection against the risks of second-hand smoke. Although second-hand smoke is a workplace carcinogen, it is not listed under the Control of Substances Hazardous to Health Regulations.
My noble friend Lady Gibson of Market Rasen may say something about the efforts that the TUC has made for action to be taken under the EU carcinogens directive. I look forward to hearing what she has to say. Some people have suggested that new legislation is not required because responsible employers will act on their own initiative. The hospitality industry has argued that a voluntary approach to smoking restrictions is preferable to legislation. Indeed, my noble friend Lord Warner yesterday indicated from the Dispatch Box that the Government still had some faith in the so-called "Public Places Charter".
The charter group was set up by the industry to promote that voluntary action. The attempt has largely failed. Although the major chain, Pizza Hut, which is part of Whitbread, announced in August last year that it would go smoke-free, most other restaurant chains continue to permit smoking, including other parts of the Whitbread Group. The number of pubs banning smoking is less than 1 per cent of the total and may total fewer than 50 across the whole country.
The voluntary Public Places Charter is not an acceptable way forward as all the pub has to do to comply with it is to put a notice on the door which states, "Smoking throughout". There are many pubs within one mile of the Palace of Westminster which claim to comply with the charter by putting up such a notice.
Recently, the more far-sighted members of the hospitality trade have begun to talk about the need for clear national legislation, particularly in view of the Government's suggestion in their Big Conversation document that local authorities should be given new powers to act in their areas. I commend particularly the efforts that a number of local authorities are taking to introduce their own bans; for example, Liverpool is one of the foremost in doing so. This should not require a local initiative; it requires a nationwide initiative to address the problem.
That indeed is what Tim Martin, the founder of the pub chain Wetherspoons, said when backing nationwide legislation. He has introduced non-smoking in the pubs in the Wetherspoons chain. He is against local implementation because of the effect of competition. I believe though that he will be the first of many who will call for similar national legislation.
As noble Lords will know, a number of other countries and local jurisdictions have already acted to ban smoking in workplaces and enclosed public places. They include Ireland, Norway, California, Massachusetts, much of Australia and the city of New York. There is no reliable evidence that smoking bans damage business; indeed, the reverse is the case. The BMJ journal, Tobacco Control, looked at 97 studies worldwide. All independent studies have found no negative impact on takings. Studies which did show a negative impact had tobacco industry backing and most used subjective measures.

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Noble Lords will no doubt have seen dire predictions of disaster from the well-organised tobacco and hospitality lobbies in New York. Yet, the New York city finance commissioner, Martha Stark, recently revealed that the business tax take from the city's hospitality venues had increased by 12 per cent in the first nine months since the city's smoking ban took effect.
The smoking ban in Ireland has been introduced to general public support and is already well on the way to proving a great success. A very interesting letter appeared in the Irish Times of 19 April from Mr Pascal Rowenstock, who said:
"I don't wish to sound like the pub bore … but from what I have seen the smoking ban has been not only accepted by everyone (apart from the publicans and [a few] grouches) but actually embraced.
Smokers know that setting fire to a weed wrapped in saltpetre-laced paper and inhaling the smoke thereof is not in the best interest of health. I myself (a part-time 'pint' smoker) and many others I know do not mind making the small sacrifice of going outside rather than forcing others to share our vice. Not only do you find yourself cutting down … but you get to talk to people you might otherwise never have talked to, with the added bonus of having a perfect alibi to take leave of their company if it proves to have been a mistake".
I am sure noble Lords who are concerned about public health will join me in congratulating the Irish Health Minister Michael Martin and his colleagues on their political courage.
Smoking restrictions generally do not require intensive or costly enforcement. That has been the experience in Ireland and New York and of course on the London Underground and other UK public transport systems. The reason is that such restrictions are generally observed by popular consensus. They combine the power and advantages of the unfavourable sentiments and active interference noted by John Stuart Mill.
There is widespread support in the UK for similar action. The Office for National Statistics' report on Smoking related behaviour and attitudes 2002 found that,
"over four-fifths of those interviewed agreed that there should be restrictions on smoking at work (88‥), in restaurants (88‥) and in other public places such as banks and post offices (87‥). A smaller percentage of respondents (54‥) thought that smoking should be restricted in pubs".
The case for legislation to end smoking in the workplace was also given strong support by Derek Wanless in his recent report to the UK Government on public health. He suggested that an end to all smoking in the workplace could reduce smoking prevalence in the adult population by as much as 4 per cent from the current level of around 26 per cent. That would save many thousands of lives a year and is the single cheapest, simplest and most effective way of making a further major cut in the number of deaths and illnesses caused by smoking.
My Bill does not go as far as the Irish or New York legislation: it does not require all workplaces to be fully smoke-free, although I certainly hope that many would wish to choose that option. The Bill is virtually identical to one introduced in 1994 in another place by Tessa Dowell—now Secretary of State for Culture, Media and Sport—when she was a Back-Bench Member.
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The similarities between the two Bills are not entirely a coincidence. My hope is that her government colleagues will acknowledge the failure of the voluntary approach and give the Bill a fair wind in this House, and then take it over in the other place as they did with the Tobacco Advertising and Sponsorship Bill of the noble Lord, Lord Clement-Jones. My Bill can be described as a British compromise. It gives statutory force to the worthy aims of the charter group and ensures that they will be met in practice. It provides protection for employees and members of the public from the damaging effects of second-hand smoke. It allows smokers the freedom to continue their habit, although I hope and believe that it will also help to persuade many of them that it is time to quit. The Bill is short and simple and, I believe, it would make a major contribution to solving one of the greatest public health challenges we now face. I commend the Bill to the House.
Moved, that the Bill be now read a second time.—(Lord Faulkner of Worcester.)
1.27 p.m.
Baroness Trumpington: My Lords, I suppose I should start by declaring that I am a member of the All-Party Tobacco and Pipe Smokers' Club. I am delighted to see a fellow member, the noble Lord, Lord Stoddart, in his place, but I am sad that my fellow members on the government side of the House are not present today.
The Bill is unnecessary. It will surprise me if, when summing up, the Minister does not agree with me. After all, we have his own words in answer to a Written Question on 10 March 2004. He said:
"The Government have no plans to ban smoking in public places. We have consistently said that smoke-free public places are the ideal…We do not think a universal ban on smoking in all public places is justified while we can make fast and substantial progress in partnership with industry".—[Official Report, 10/3/04; col. WA 177.]
I shall indeed be surprised if the Minister's reply today is different. After all, tobacco products may legally be retailed to any person over the age of 16. The state has long been quite prepared to tax them highly, reaping for the Exchequer as much as almost £10 billion a year. The noble Lord, Lord Faulkner, should remind himself that to smoke is not an illegal act.
I should like to comment briefly on one or two matters that arise from the Bill itself. In Clause 5, regulation 1(h) decrees:
"regulating the design, nature and provision of ashtrays and fixed facilities for the disposal of tobacco products at the entrances to or within public places".
Really, that is too absurd. Either that provision should be re-written or eliminated. The term "public space" is defined as meaning a space to which the public or section of the public has access, on payment, or otherwise, as of right or by virtue of express or implied permission.
Smoking is already prohibited in most public buildings, and on public transport. It is confined to designated areas in places that belong to everyone and no one, in particular enclosed shopping centres, airports and theatres. That leaves the hospitality sector. Those are largely private places, in which

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owners and operators have the freedom to determine smoking policy. It is in their best interests to have regard for the demands and preferences of their customers and for their duties with regard to the health, safety and welfare of their employees. The greater provision of non-smoking areas in such places is progressively being achieved.
However, it says on page 2, paragraph 5(e) of the Bill that regulations may be made,
"Setting maximum permitted exposure levels or durations of exposure to tobacco smoke".
The Bill does not say how long those exposure levels should last. I am thinking of the barman in the smoking area of a pub. What about those people working long hours in nightclubs and casinos? Perhaps they do not count as public places, and the sponsors of this Bill will say "hard cheese" to those persons. Your Lordships may be surprised that I have not mentioned passive smoking. Frankly, I find the voluminous arguments, both for and against, inconclusive. I could easily have taken up your Lordships' time by absolutely refuting the arguments made by the noble Lord, Lord Faulkner, but I shall listen. I hope politely, while others discourse on this tricky matter.
I was interested to read the exemptions listed in the Bill but not mentioned by the noble Lord, Lord Faulkner. They recognise that regardless of physical health, smoking can be important to some people, and that without the crutch of tobacco they could suffer depression and other mental difficulties. Furthermore, I wonder whether any exercise has been undertaken comparing the effects of passive smoking on the health of members of the non-smoking public with the effects of noxious fumes from motor cars, and so on, on the health of that same public.
Much has been made recently of the Government's worries about obesity. Not surprisingly, I share those worries, since I put on two stone when I gave up smoking. As the French say, I find myself asking myself, "Am I, now fat and smokeless, more of a worry to my GP than when I was lighter, happier, and smoking?". In general, are the illnesses caused by obesity providing more work for doctors and a sicker population than the possible results of smoking? I wonder if the people of Ireland would go as quietly as they have done over a tobacco ban if their government decided, in the interests of their people's health, to put a total ban on butter and French fries. I am old-fashioned enough still to believe in freedom of choice. I hope that this Bill will not pass.
1.33 p.m.
Baroness Gale: My Lords, I thank my noble friend Lord Faulkner for bringing this Bill forward and for the eloquent manner in which he introduced it to us today. Once again, it allows the smoking issue to be fully debated. It would be great to think that this important Bill before us today was acceptable to the Government. If it became law, I am sure that it would prove to be popular, as all surveys and opinion polls show that the majority of people would like to have
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smoke-free public and work places. What a great contribution to the health of the nation that would prove to be.
As my noble friend Lord Faulkner said, tobacco kills around 114,000 people in the UK every year. That is more than 300 people a day. About half of all regular cigarette smokers will eventually be killed by their habit, which represents 20 per cent of all deaths. That is a horrific statistic, but one which the Government should and could play a role in reducing, not only by making even greater efforts to get people not to start smoking in the first place, but to help smokers to stop smoking. This Bill will make big inroads in reducing that figure.
A smoking ban in public places would not, of course, be the complete answer to the smoking problem in this country, but it would be a positive measure, and one that would assist in helping people either to stop smoking, or encourage them not to start. It would also be beneficial to people who are forced to be passive smokers because they are in areas where smoking is allowed—which, in this country, is practically everywhere. The Bill is a measured one, which specifies what constitutes a public place and would allow designated smoking areas in public places, a consultation with employees as to the establishment of designated smoking areas, and the adoption of non-smoking areas in workplaces.
Part 2 of the schedule spells out what the exempt places should be. This is a thoughtful Bill, in that it acknowledges that there must be access for those who wish to smoke but can do so without causing problems for everyone else. Of course, some people would object to the inconvenience of not being able to smoke where and when they wanted to. However, the benefits would far outweigh the inconvenience to smokers. Furthermore, in pubs and clubs where young people congregate, having a smoke-free environment would mean that peer pressure on young people to be like their friends and to appear sophisticated or cool would diminish. This, it is hoped, would prevent many young people from smoking, especially girls and young women. It is well known that girls who smoke will have problems later on, in that they will have difficulty in conceiving, and when they do so, the new-born baby will have a lower birth weight, especially if the mother continues to smoke during her pregnancy.
According to ASH—although my noble friend Lord Faulkner gave a different figure—there are only 26 smoke-free pubs in England and Wales, and of those 26 only two are in London. I am sorry to say that only one is in Wales. The voluntary code for the hospitality industry does not seem to be working in pubs, yet the 26 non-smoking pubs seem to be thriving in their non-smoking environment.
If smoking is eventually banned in public places in Wales and England, children would benefit greatly. They are particularly disadvantaged if their parents take them to places where smoking is allowed. Children are unable to remove themselves in the way that adults would be able to, and so become victims of passive smoking. The case for a ban on smoking has

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been made. All the medical evidence is clear. Smoking causes many illnesses that would be avoided if people did not smoke. Nicotine is such an addictive drug that once hooked—usually at a young age, as very few people start smoking as an adult they need help to give up. The Government have introduced some very good measures to help and support people in their efforts to give up smoking. However, as more and more countries implement a smoking ban in public places, and as more and more people would like to see a ban, surely the time has come for the Government to stop insisting that a voluntary ban is the best approach.
In a recent report published in the Medical Journal of Australia, the authors said that the United Kingdom Government must make more effort to persuade the third of British adults who still smoke to give up. One of the authors, Professor Konrad Jamrozik of Imperial College London said:
"It is extremely hard to fathom why a nation that has led the world in documenting the harm done by smoking has been so slow to act on the evidence".
I detect a chink of light in the Government's approach, in that the Prime Minister called for a Big Conversation on the issue last autumn and even suggested a role for local authorities. I was pleased to learn from the Minister yesterday that the Government had launched a public health consultation, which includes questions on smoking. However, like my noble friend Lord Faulkner of Worcester, I believe that, if the matter is left to local authorities, the situation could be very patchy indifferent parts of the country. I well remember the position in Wales when we had referendums on opening the pubs on Sunday. It is not that long ago since the last county in Wales lifted the ban on drinking in pubs on Sunday. All that happened was that drinkers living in dry areas hopped across the council border to the wet area, so that they could have a drink on Sunday. That would happen with a smoking ban, if it were carried out by local authorities.
I can give an example of how the smoking ban in Ireland has affected Wales. Over the Easter break, many people from Ireland travelled to Holyhead in order to have a smoke with their pint. Although tourists are always welcome in Wales, we do not want Wales to become a smokers' paradise or a magnet for smoker tourism. The best way to avoid that is to have a ban on smoking throughout Wales and England, as the Bill would allow. All the evidence shows that in the UK and in many other countries the support for a ban on smoking in public places is now so strong that, in the not too distant future, it will become the norm. I trust that the Government will respond positively—I hope for that today—and not be left behind in taking measures that will be a great help in making sure that we become a much healthier country.
1.42 p.m.
Lord Campbell of Alloway: My Lords, noble Lords will be grateful to the noble Lord, Lord Faulkner of Worcester, for the clarity of his exposition. He made it plain that what he was after was the active and passive
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smoking of cigarettes. He said so. He referred to medical evidence in that context. I listened with rapt attention to the speech made by my noble friend Lady Trumpington, who said, as I believe, that the Bill was unnecessary. At all events, much that my noble friend said will enable me to shorten my speech.
I found the speech made by the noble Baroness, Lady Gale, fascinating. It seemed to be directed to what, in telegraph text, I would call "ASH. Total ban.". It was not related to the principle of the Bill, which implements the policy of the Government. For once, I find myself in the astonishing position of firmly supporting the policy of the Government, as I did on 16 April.
I am also a member of the Pipe and Cigar Smokers' Club. I smoke a pipe. I smoke flake tobacco, which is damp and made with a touch of either whiskey or rum, and a very occasional cigar. The noble Lord, Lord Faulkner of Worcester, and I have a lot in common. I agree that there are problems of passive smoking: I choke on cigarette tobacco, and I choke on what they call cigarillos, those cheap, awful things. I am fully in sympathy with the noble Viscount, Lord Simon, who has asthma. His position is acknowledged with the utmost sympathy and is well understood. However, that does not support a total ban.
I do not propose to enter into a debate on medical statistics. I do not have the expertise to analyse the evidence and am not competent to do so. In any event, as I do not support an outright ban and nor does the Bill, there would be no object in doing so. An outright ban was introduced in the Republic of Ireland, but the position there bears no true comparison with what is going on here. There was no voluntary scheme in operation and nor was there in any of the places—NewYork and other places—referred to by the noble Lord, Lord Faulkner of Worcester, and the noble Baroness, Lady Gale. If we are to make comparisons, they must be of like with like. That element is missing here.
My purpose is to support the voluntary regime, as introduced and supervised by the Government, and to oppose legislation, until and unless the voluntary regime fails and falters. In those circumstances, I would follow the noble Lord, but I would never substitute imposition for a voluntary regime, unless it were wholly requisite to do so. That is where I stand, and that, in essence, is the only issue between the noble Lord, Lord Faulkner of Worcester, and myself. There is no issue on what should be done about enclosed places, on the standards that should be applied, on the ventilation necessary and so on. For example, the smokers' punishment room in the House would need a lot of ventilation to comply with any reasonable requirements. There is no gap between us on what is required: the gap between the noble Lord and me is on whether this is the time to introduce legislation, without giving the voluntary regime a fair chance.
This is our third time around this on a Friday. Today is a very nice day. One of the things that I have mentioned before and must mention again is that it seems extraordinary to have to criminalise conduct

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unless a request to desist from smoking has been made and declined. That is taking a sledgehammer to crack a nut.
I think that I have dealt sufficiently with the standards of requirement for these areas. I have dealt with the common ground, which is apparent from the Official Report for 16 January. But the Wales Bill that is to follow conflicts with this Bill on a matter of definition. No doubt, it will be subsumed by this Bill. As they are both Private Member's Bills, they must pass this House according to convention, but neither can have fruitful expectations of Royal Assent, being contrary to government policy.
To save time, I should like to conclude by again referring to what my noble friend Lady Trumpington said about the Written Answer given by the noble Lord, Lord Warner, on 10 March, that brings us up to date. It would be an imposition to repeat it; anyone who is interested can find it in my noble friend's speech in the Official Report.
1.51 p.m.
Lord Monson: My Lords, as when we debated a fairly similar Bill 13 or 14 weeks ago, I declare a strictly non-financial interest as president of the Society for Individual Freedom and a named supporter of FOREST. The noble Lord, Lord Faulkner, will not expect me to support his Bill. I do not intend to surprise him, except perhaps to say that one or two of the 12 clauses are not wholly unreasonable. I shall return to those later.
This Bill is more illiberal than the Bill introduced by the noble Baroness, Lady Finlay, in some respects, and less illiberal in others. Unlike my noble friend's skeleton Bill—as she described it—which would allow the Welsh Assembly considerable latitude about if, when and where, in a geographical sense, a ban should be imposed, the Bill introduced by the noble Lord, Lord Faulkner, is more illiberal in that it would allow no such discretion.
However, this Bill allows for certain limited designated smoking areas in public places, although the concession is not quite as generous as it appears. For example, if a group of people wanted to hire a village hall, church hall or the upstairs room of a pub for a meeting, reception or lecture with no paid employees present—food and drink, if any, would be provided by the organisers or volunteers—why on earth should those people who attend of their own free will not be allowed to smoke or, if non-smokers, mingle with smokers? Clause 3 apparently would prevent that. There is also ambiguity in respect of the other possible exemptions.
When we previously debated this issue in January, the noble Lord, Lord Faulkner, extolled Finland as a country that had banned smoking in enclosed public spaces. Is the noble Lord aware that in Finland there are smoking compartments on trains, albeit fairly
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small and not terribly comfortable compartments that are hermetically sealed off by powerful spring-loaded sliding doors from the rest of the train?
Lord Faulkner of Worcester: My Lords, I apologise for interrupting the noble Lord in mid-flow, but I did not mention Finland.
Lord Monson: My Lords, I beg the noble Lord's pardon, but someone on his side, so to speak, did extol Finland. However, it is worth making that point anyway. Having raised the point, I should be grateful to know whether the noble Lord's exemptions would allow smoking compartments of the type that I have described in trains in this country.
At least the Bill does not seek to ban smoking in outdoor public spaces such as sports stadiums, although on 16 January the noble Lord, Lord Faulkner, made it clear that he would personally favour such a restriction. We must be thankful for small mercies.
At the outset, I said that I find parts of the Bill not unreasonable. As a libertarian, I can hardly oppose Clause 9, especially as it merely restates the status quo. I accept that there may be something to be said for Clause 4 in principle, if not necessarily in detail. But I suggest that the rest of the Bill is unacceptable in a free society.
Banning an activity can only be justified if it can be established conclusively and beyond all reasonable doubt that it causes serious harm to others. Despite the statistics advanced by the noble Lord, Lord Faulkner, no such conclusive proof exists. As I said in the previous debate, the decidedly left-of-centre Greater London Authority, headed by a prominent member of new Labour, conceded as much in April 2002, as did many eminent scientists and scientific bodies. I will not repeat today what I said then. Albeit more obliquely, the noble Baroness, Lady Jay, also conceded that in a Written Answer in March 1998 when she was Minister of State at the Department of Health.
I return to the empirical evidence that I cited in January. Nearly everyone born in the 1920s, 1930s or 1940s will have inhaled God knows how many cubic yards of second-hand tobacco smoke during their formative years—such was the ubiquity of the stuff 16 hours a day. Yet our generations are proving to be among the healthiest ever statistically with ever-increasing life expectancy, much to the despair of annuity providers. I remind your Lordships that the Greeks are among the heaviest smokers in Europe, yet they have one of the lowest rates of lung cancer. I should like that explained.
The noble Baroness, Lady Gale, gave some very interesting statistics. She said that 140,000 people die a year from smoking. About 20 years ago, the Department of Health and Social Security, as it then was—
Baroness Gale: My Lords, I am sorry to interrupt, but the figure that I gave was 114,000, not 140,000.
Lord Monson: My Lords, I am delighted to hear that from the noble Baroness because the figures have crept up and up over the years. In a parliamentary Written Answer, the figure started at 50,000 people dying a year; then it doubled overnight to 100,000; then, on realising that that was a suspiciously round figure, it was adjusted to a suspiciously precise figure like 111,763; and then it increased to 120,000. Now I am delighted to hear that it has been reduced to 114,000: I feared that we might reach the quarter of a million mark within five years' time. I am glad that the trend is now downwards. That is excellent news. I apologise to the noble Baroness for not having heard her correctly.
Whatever may have been the case 40 or 50 years ago, if the argument is advanced today that diluted smoke is dangerous—noble Lords cannot pretend that exhaled smoke from people's lungs is not diluted we have to look to recently introduced additives, not only additives to tobacco products, but additives generally. A fascinating study published earlier this week by the University of Sunderland reveals that up to 76 dangerous chemicals are found in our bloodstream, arising from pesticides, plastics, flame retardants, coolants, food wrappings, and so forth. Could it be that those react with and accentuate the effects of chemicals in tobacco? If so, surely, that is a problem worth tackling.
I do not deny that concentrations of tobacco smoke are an irritant. Last weekend, I spent three days in Bilbao. From a smoker's perspective, it was like being in London 50 years ago—public transport apart. For the entire time, one was enveloped in a cloud of tobacco smoke everywhere. Even I found it a bit overpowering. Certainly, smoke is irritating. But so are the particularly pungent new scents that certain women choose to wear, even at the Palace of Westminster. Such strong scents are an irritant that make me cough uncontrollably and make my eyes stream, and I am not exaggerating. It is right that users of both tobacco and powerful scent should be urged to show maximum consideration for others, but not that they should be legally prevented from using them except in private.
2 p.m.
Baroness Gibson of Market Rasen: My Lords, I congratulate my noble friend Lord Faulkner of Worcester on introducing the Bill, about which I know he feels extremely passionately. I shall address my remarks in particular to the position of those who work in public places and have to suffer the effects of smoking by those who use them.
Although my noble friend did not mention Finland, I propose to do so because it was in that country that I first realised that something could be done in this area by those who make the laws, as we do. I visited Finland more than 20 years ago. I accompanied four women representatives of the TUC Women's Advisory Committee on a sororial visit to Finland. Two of the women were non-smokers and two were virtually chain smokers. The Finnish equivalent of the TUC were our hosts and provided a minibus for us in which to travel around Finland. It was a strictly non-smoking minibus.
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However, for the sake of the smokers, we had what we called "smoking stops". I have some wonderful photographs of the two women in question desperately puffing away under snow-laden fir trees.
The Finnish Government even then had passed measures on anti-smoking in public places and most of the large stores in Finland refused to allow smoking in them, so when we went shopping I stayed outside the shops with my smoking colleagues. As I was in charge of the delegation, I did not want to lose any of them and I did not want any of them to be discomforted. We did not, of course, speak Finnish. However, the gestures of the goodly number of Finns who approached my colleagues made very clear what they thought of smoking in the street and, indeed, in all public places. This experience has stayed with me. I believe firmly that if the Finns could do it then, we can do it now.
Before entering your Lordships' House I was a member for six years of the Health and Safety Commission, representing the TUC on that body. One of my last acts before I entered the House was to lead for the TUC on a draft code of practice on smoking. At that time, the hospitality industry, via the CBI, had accepted the draft code. It was welcomed by health charities and campaigning groups. It gave good advice to employers on how they could help their workers to alleviate the effects of smoking. This was in 2000. The code has never seen the light of day. I would like to know why and I hope that perhaps my noble friend can assist me.
As a former trade union official I have witnessed at first hand the effects of smoking in public places onworkers—shortness of breath, acute attacks of asthma, the onset of lung cancer and coronary heart disease. We have to remember that public places such as bars and restaurants are also work places.
A recent Parliamentary Office of Science and Technology report stated that there are significant links between public smoking and both lung cancer and coronary heart disease, increasing the risk of each by about 25 per cent. As has already been said, the hospitality industry has relied on the so-called Public Places Charter, which the Department of Health supported at its launch in 1999. I believe that this has been singularly unsuccessful. The formal smoking policies and external signs about the dangers of smoking and the effects of inadequate ventilation have not worked. It reminds me of when equality opportunity policies were first written down but were not worth the paper they were written on. Real action is needed, and monitoring of that action.
Let me give an example. Just before Easter I went into a Weatherspoon pub with a friend. As my noble friend has indicated, Weatherspoon prides itself on protecting its bar staff by banning smoking at the bar. I have no doubt that the company's heart is in the right place—andto that extent I congratulate it—but this particular bar was open plan. We fought our way through thick smoke to order our drinks and found that there were indeed "no smoking" signs over the bar. When I mentioned these to

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the bar staff, they pointed out that unless there is a separate non-smoking bar the policy does not work; an open-plan bar is always smoky.
The BMA believes that smoking in public places remains an "unacceptable risk to health" and that ventilation is no substitute for non-smoking policies as it does not provide effective action against pollution. Studies have shown that ventilation systems are usually not well maintained and are not designed for safety. As I understand it, there is no strategy for moving the Public Places Charter forward and no targets for future compliance with it.
Stronger measures are being called for by many important individuals and organisations because, asASH—Action on Smoking and Health—points out, a number of its research projects have found that exposure to second-hand smoking damages the health of third parties. ASH has campaigned for years against smoking and I pay tribute to its dedication and effective influence on these issues.
I understand that stronger measures are also being supported by the heads of all of Britain's 13 Royal Colleges of Medicine. In particular, I should like to mention and congratulate the Royal College of Physicians, the excellent booklet of which, Tobacco Smoke Pollution: The Hard Facts, is a hard-hitting and well produced exposé on the effects of smoking and ideas on how to combat them.
As my noble friend said earlier, the TUC has also campaigned against smoking in public places for many years. In the early 1980s, when I was the secretary of the TUC Women's Committee, resolutions were carried at both the women's conference and the TUC Congress on the dangers of smoking for working people. The campaign continues, including at a European level.
In March this year, the TUC General Secretary, Brendan Barber, wrote to the EU Commissioner for Employment and Social Affairs asking for action under the EU carcinogens directive, including limits on exposure to tobacco smoke at work, and for tobacco smoke to be listed as an occupational carcinogen. The TUC states that the evidence clearly shows that failure to treat tobacco smoke in a similar way to other dangerous chemicals leads to the deaths or incapacity of many thousands of workers across the EU from lung cancer, emphysema, bronchitis and asthma.
At a national level, employment tribunals are increasingly recognising the dangers of smoking for employees. At a recent ET, a community centre worker won £17,000 compensation for being sacked unfairly when smoking by work mates made her ill. The ET ruled that the woman, who suffered from asthma, had been discriminated against because of her asthma disability.
Previously when I have spoken in the Chamber on smoking issues, I have always drawn your Lordships' attention to the effect that laws on smoking have on employees who work in the tobacco industry, and I do so again today. As a former trade union official of Amicus, whose members include highly skilled tobacco workers,
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I am well aware of this. I stress to the Government the importance of alternative work for those working in the tobacco industry, especially when factories are closed or working numbers are reduced. Many tobacco workers would opt for adequate alternative employment if this was available in the areas where tobacco factories exist.
Cancer Research UK, which fully supports the Bill, points out that progress is being made on restricting smoking in public places, and we can only welcome that. It states that public support continues to grow, with more surveys confirming that the majority of people want to see a ban on smoking in enclosed public places.
We have come some way in recent years on recognising the dangers of smoking in public places and acting to alleviate them. The Bill is another step along the way. It is a Bill for common sense and another step towards improving the health of our nation. Above all, for me, it is another step towards making the lives of thousands of working people a great deal more pleasant and a great deal more healthy.
I urge the Government to support this important Bill and so put the UK in line with the most forward-thinking nations on this issue.
2.10 p.m.
Lord Stoddart of Swindon: My Lords, like the noble Baroness, Lady Trumpington, I am a member of the House of Commons and House of Lords Pipe and Cigar Smokers' Club—a very congenial club, if I may say so. I say that, although I have not smoked for many years now. But although I am an ex-smoker, I have not become paranoid about smokers, as so many former smokers unfortunately have become.
I cannot welcome the Bill and I think it is quite absurd to have two similar Bills to ban smoking in certain public areas before us today. I should have thought that the House had more to do than to discuss two similar Bills on the same day.
The Bill not only restricts the right of smokers, it restricts the right of non-smokers to mix with smoker sin certain circumstances where they wish to do so. It is an illiberal Bill that affects not only smokers but non-smokers. I think there will be quite a lot of resentment about that.
The Bill is discouraging for all those who have made voluntary efforts to meet the needs of smokers and non-smokers alike—with much success, in many cases. But I am afraid that that is not good enough for the anti-smoking zealots who see this measure as a further milestone towards an absolute ban on smoking tobacco. Mind you, I have heard people who admit to smoking cannabis who want to ban smoking tobacco. I cannot understand that attitude, but it does exist.
The support for this type of ban is based on healthscares—nothing more. The noble Lord, Lord Faulkner, said on Second Reading of the Smoking in Public Places (Wales) (Bill) on 16 January:
"The Department of Health tells us that smoking kills 120,000 a year in Britain".—[Official Report, 16/1/04; col. 784.]
The department does nothing of the sort.

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Let me quote from a Written Answer given to me by the noble Baroness, Lady Jay. It was some while ago but is still relevant. On 24 July 1997, I asked the Government three Questions: what are the so-called smoking related diseases from which they estimate 120,000 people die each year; how many men and how many women who died of a so- called smoking-related disease were above the average of life expectation; and what percentage of total annual deaths is represented by the number of deaths from so-called smoking-related diseases? The noble Baroness, Lady Jay, said straightaway:
"It is estimated"—
not absolute—
"that 120,000 people died as a result of smoking in the United Kingdom in 1995".—[Official Report, 24/7/97; col. WA 171.]
She went on to list a huge raft of diseases from which people are supposed to die. Having read them, I came to the conclusion that people are not allowed to die from anything other than a smoking disease. What is more, I also discovered that many if not all of those diseases were around before the middle of the 16th century when smoking was introduced to this country.
Therefore, there is another side to the argument, even though people think that there is not. I also noticed in the figures provided by the noble Baroness, Lady Jay, that the number of people who died from smoking in the lowest age group, from 35 to 45, was estimated to be just 9,000. When I looked at the figures for people over 65—the age of retirement for men— smoking deaths represented 79 per cent of the total. If we then look at people who die above the average age of life expectancy, that figure was 44 per cent. Most of the 120,000 people who died from smoking did so after retirement age, but we never hear about that.
The noble Lord, Lord Monson, mentioned the Greeks, who smoke at least twice as much as people in this country. That is also true of the Japanese. However, the average life expectancy in both those countries is higher than in this country. How do the zealots account for that?
The noble Lord, Lord Faulkner, quoted a statistic from the Royal College of Physicians, that 1,000 people a year die from second-hand tobacco smoke. Again, that is an estimate. No clinical relationship at all can be proved. Once again, we are relying on estimates. Where does that figure come from? Is it just plucked out of thin air? The noble Lord said previously that 17,000 children under five were admitted to hospital with respiratory illnesses related to tobacco smoke. Where is the clinical evidence? Is that just an estimate too? How many children were admitted with the same illness who were not in a smoking environment? Before we make any decisions, we need that information.
What happens if the Bill is passed and people go from smoke-free pubs, restaurants and workplaces into the street? They are met with vehicle emissions, which are estimated to kill 30,000 people a year. They kill not 1,000, but 30,000 people a year. Walking the streets is 30 times as dangerous as sitting in a smoke-filled bar or restaurant. Are my figures wrong? Of course they are not. They are absolutely right. In addition to those deaths, 3,500 people are killed and
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45,000 people seriously injured each year by other people's driving. Do we want to stop people driving now because of that massacre on the roads?
What about doctors? Two of them are here today. They are going to speak in a minute. I shall listen to what they say. We should remember that 5,000 people die in hospitals every year through medical error or negligence, or from diseases unrelated to the one for which they went in to be treated in the first place. People are five times more likely to die by being in a hospital than by being in a smoke-filled room. If all of that were not enough, two articles in yesterday's press will help put risk from environmental tobacco smoke into better perspective. The noble Lord, Lord Monson, has referred to one of them already. It stated that 76 poisons are hidden in the body. But there was also a leading article in the Daily Telegraph, which said:
"The news that a thousand people a week are dying"—
1,000 people a week, mind you—
"from the effects of obesity—more than are killed by smoking".
My calculation is that suddenly the deaths from smoking have been halved by a learned professor, because 1,000 deaths per week means 52,000 deaths per year. If obesity kills more than smoking, the results for smoking are half of what is claimed.
There is too much speculative data. The rabid anti-smoking lobby may well be obstructing deeper investigation and research into the causes of so-called smoking-related diseases by demonising smokers and intimidating scientists and researchers who dare to question the currently politically correct view. For those reasons, I believe that the Bill is misconceived. Although it will get its Second Reading today, I hope that it makes no further progress in this House or elsewhere.
2.21 p.m.
Lord Rea: My Lords, it gives me a sense of déjà vu to follow my noble friend Lord Stoddart. I shall continue to call him my noble friend because, apart from this issue, and, perhaps, the issue of Europe, we agree on many things.
The Bill carefully drawn up by my noble friend Lord Faulkner is welcome because it tackles a serious and long-standing hazard that prevents many people in the country from achieving and enjoying good health, as well as causing life-threatening disease and death in others. Before I go on, I should say to my noble friend Lord Stoddart that there is an answer to every single one of the points that he made, which I could make on my feet. However, if I did so, I would have no time for the rest of my speech.
My noble friend Lord Faulkner has done us all a great service by introducing this Bill. My only regret, which I share with him, is that it is not being launched by my noble friend Lord Warner from the Front Bench. However, as my noble friend Lord Faulkner said, it is not too late for the Government to take the Bill forward in this Session or the next, if they were so

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minded. That would follow the example of the tobacco advertising Bill, which was so ably taken through this House by the noble Lord, Lord Clement-Davies.
Noble Lords: Jones!
Lord Rea: My Lords, I mean the noble Lord, Lord Clement-Jones. I am sorry—that just reveals my age.
The Bill that we are discussing is a logical conclusion to the Bill introduced by the noble Lord, Lord Clement-Jones, and the subsequent Tobacco Advertising and Promotion Act 2002. It has been estimated that that Act will save 3,000 lives per annum. The BMA estimate, mentioned by several noble Lords, is that passive smoking kills 1,000 people a year, as well as impairing the quality of life of many thousands more. That is a conservative estimate.
As many noble Lords pointed out, the scientific evidence for the harm done by passive smoking is now massive. I am sure that my noble friend Lord Warner and the Department of Health are well aware of that fact and accept it. The Chief Medical Officer has confirmed that in no uncertain terms. Even the inner sanctum of the tobacco industry must by now accept the strength of the evidence, partly as a result of its own research, or the research that it has commissioned. However, the industry continues to deny its validity, most recently in a speech a few days ago by Martin Broughton, the outgoing chairman of BAT. The industry has commissioned scientists to discredit the scientific evidence and has opposed the WHO support for the International Agency for Research on Cancer and has encouraged smokers' rights organisations to lobby against legislation. We have heard some of that today, although, as far as I can recollect, none of the noble Lords who have spoken today have denied the scientific validity of the evidence against passive smoking.
Lord Faulkner of Worcester: My Lords, apart from the noble Lord, Lord Stoddart.
Lord Rea: My Lords, I mean no one has denied it with accuracy! It is understandable that the tobacco industry is against this type of legislation because it would accelerate the fall in tobacco consumption. One estimate is that lost sales would amount to £310 million. Sadly, to compensate for this the industry is concentrating on building up its export market in the developing world rather than on diversifying to less harmful products. However, that is going on as well, since the tobacco industry is aware that the developing world itself is beginning to wake up to the dangers of smoking and the need for tobacco control measures.
The BMA's publication Towards smoke-free public places, which was published in November 2002, summarises the way in which passive smoking harms health. I shall mention some of the points the report makes for the record:
"More than 50 epidemiological studies … [indicate] a statistically significant and consistent association between lung cancer risk and exposure to secondhand tobacco smoke.
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Passive smoking is proven to cause heart disease. Involuntary smoking increases the risk of an acute coronary event by 25–35 per cent".
To divert for a moment from the BMA's report to amore recent finding, noble Lords may have recently read of the experience of the small town of Helena, Montana, USA, which is isolated from other towns. What happened there is described in a very interesting paper published in today's British Medical Journal. I shall read some extracts from that report. To summarise, two years ago Helena passed a law outlawing smoking in public places. In the following six months there was a reduction from the previous rate of heart attack of 40 persons per six-month period to 24. When the law was overturned by opponents and smoking in public places resumed, the heart attack rate returned to 40 in six months.
It sounds a little bit too good to be true that a reversible effect could occur so soon. But it is worth pointing out that some of the products of tobacco smoke can increase the chance of blood clotting which might well cause a thrombosis to form which could block an already narrowed coronary artery. The study by Professor Glantz and colleagues reported in the BMJ today appears on first reading to have been extremely carefully conducted. I would expect this because Professor Glantz is a professor of cardiology at the prestigious University of California, San Francisco. However, he says that:
"Like any initial report, further research is desirable to confirm the finding".
When an author himself says that in his paper, it greatly increases my respect for his findings. The report explains why these findings could have occurred. It says:
"Several mechanisms … all of which could increase the likelihood of an acute coronary event, have been measured within minutes to hours of exposure to secondhand smoke".
These include:
"increased platelet activation, inhibition of vascular endothelium, impairment of coronary artery dilatation capacity, decreases in antioxidant substances especially ascorbic acid, aortic stiffening, and impaired heart rate variability … Even occasional exposure to secondhand smoke has been associated with an increased risk for acute coronary syndromes".
The BMA report also stated:
"For people with asthma, exposure to second-hand smoke is not only associated with more severe symptoms, but also with lower quality of life, reduced lung function, and increased use of health services for asthma, including hospital admissions. In addition, it is cited by up to 80 per cent of asthmatics as a trigger for further attacks".
My noble friend has already mentioned the case of our noble friend Lord Simon, who is an asthmatic. He stated in a previous debate that he could not enter the Library in your Lordships' House until smoking was stopped there two or three years ago because he suffered an asthma attack whenever he tried to do so.
Derek Wanless has been the most recent of many who have pointed out that rectifying inequalities in health is necessary to improve the health status of the whole population. Both active and passive smoking

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greatly contribute to these inequalities. It has been shown that blue collar or service workers have the highest level of exposure to passive smoking.
As my noble friend pointed out, bar workers are particularly exposed; their exposure is six times higher than that of office workers. However, apart from the tobacco industry, the catering and hospitality industries, and licensed premises in particular, are the most opposed to legislation such as this Bill. Those of us who occasionally go to the pub usually stay for only an hour or so and, of course, we have the freedom not to go at all. Those who work there may be exposed to high levels of both sidestream and mainstream smoke for the whole of their working day. Incidentally, most secondhand smoke is sidestream or non-inhaled smoke, which is more dangerous than mainstream smoke.
According to an Irish friend who was in Dublin earlier this week, the new legislation there is working well and is popular especially with bar staff. It is popular also with many smokers who find that their consumption is reduced—a major benefit of legislation which has been confirmed by several independent studies of the effects of legislation, especially in the United States. The Irish legislation, however, despite being more rigorous than proposed in this Bill, contains some sensible exemptions including prisons, where it was thought that riots would occur if smoking was banned entirely.
My noble friend Lord Warner will doubtless describe a number of voluntary measures that already exist" such as EU directives, voluntary guidelines, regulations and charters giving some protection from the hazards of secondhand smoke. There has certainly been a great improvement in many offices and public buildings in recent years, and your Lordships' House is an example. However, 3 million workers are still regularly exposed to secondhand smoke. Guidance is helpful, but in many cases it can be ignored without breaking the law.
There is much more to say, but much has already been said—much too much perhaps for Friday. I conclude by saying that I thoroughly support the Bill. I hope that it will galvanise the Government into legislative action. This will be a major step towards better health for the whole population, especially its most vulnerable citizens.
Lord Monson: My Lords, before the noble Lord sits down, is he aware that the Greater London Authority, headed as it is by an extremely prominent member of his own party, Mr Ken Livingstone, spent six months on an exhaustive investigation of the so-called risk from passive smoking, taking masses of evidence? Finally, it decided against any further restrictions on smoking, declaring that it was not easy to prove a link between smoking and lung cancer.
Lord Rea: My Lords, I take it that I am expected to answer that. I think that the vast body of opinion would say that there is an enormous amount of
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evidence linking smoking to cancer of the lung. We could go into a long discussion about that but I do not think it is appropriate at this moment.
Lord Monson: My Lords, perhaps I should have said passive smoking and lung cancer. Perhaps I omitted that word. I agree, of course, that active smoking——
Lord Rea: My Lords, I quoted from the BMA report that there are 50 epidemiological and laboratory studies which do prove that link.
2.35 p.m.
Baroness Finlay of Llandaff: My Lords, like other noble Lords I congratulate the noble Lord, Lord Faulkner, on this well crafted Bill which extends the principle of protection against environmental smoke in public places to cover England and Wales. My concern is that the debate in Wales is much further advanced within the population itself and the Welsh Assembly has already agreed by a resolution in plenary and unanimously in the Health and Social Services Committee that it wishes to have the powers to ban smoking in public places in Wales, and has already formally requested such powers to be given to it by primary legislation.
The dangers to health of passive smoking and the social inconvenience to non-smokers of environmental smoke have been repeatedly stated in this House. The health issues are incontrovertible and warrant restating, but I will not detain the House by relisting them all today. The noble Lord, Lord Rea, gave the medical evidence in his excellent speech. Professionally he has done me proud and I am proud to be associated with him.
The World Health Organisation has documents on tobacco industry strategies to block smoke-free measures and regulations. The report of the Committee of Experts on Tobacco Industry Documents, published in July 2000, catalogued the tobacco company strategies to undermine tobacco control activities at the World Health Organisation. The Select Committee on Science and Technology recently visited the World Health Organisation and may have already laid a copy of the report in the Library to be accessed by noble Lords. If that is not the case, I am happy to arrange for such a report to be laid in the Library for reference. There are undoubtedly powerful financial vested interests that seek to ensure that second-hand smoke is not controlled.
Ireland has shown that the right to breathe clean air is important and should be protected by legislation. Let us be clear. Voluntary codes have gone some way to improve the environment but I understand that even the large hospitality venue owner, Weatherspoon, would welcome a compulsory ban. The autonomous wishes and actions of one person cannot ethically override the autonomy of another to be free from harm.
I acknowledge that this Government have done a lot to ensure that the vulnerable in society are considered and have encouraged smoking cessation at great national expense. Legalisation to prohibit smoking in public places is a preventive measure for health and

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may decrease the numbers who progress to severe chest problems in the long term. Prevention is always better than attempting cure. In this situation the diseases associated with tobacco are inherently non-curable and so the harm cannot be reversed. That is an aspect that needs to be considered when we are thinking about imposing on non-smokers the lack of an ability to breathe clean, smoke-free air.
For Wales, I hope that any legislation would allow the Assembly to lead and ensure consistency across Wales. There are some great health problems in Wales associated with tobacco.
My anxiety is that the very areas of greatest need might be subject to a postcode lottery through the tobacco industry's potential to influence some local authorities. The Assembly consultation exercise in Wales on smoking in public places will provide information from the population itself. I believe that the Assembly would like to have unfettered powers to act on these now, and not have to wait for England.
I am concerned about the arguments that have been raised this afternoon at Second Reading in opposition to this very important Bill. I should like to lay down formally that I will support this Bill if it progresses. The issue is much greater than which Bill gets through first. This country has to act, and has to follow Ireland's example.
2.40 p.m.
The Earl of Erroll: My Lords, after listening to the tenor of several speeches in the debate, I would like to ask the Minister and the noble Lord, Lord Faulkner of Worcester, whether the Bill is part of a drive to ban smoking altogether.
I have to declare an interest. As a non-smoker married to a committed smoker, I spent many years, with help and support from four children, trying to get her to stop. I tried both carrots and sticks, but without any success. I have come to realise that all that I would probably do is cause her to die of stress instead. That is the main point. She leads a very busy life, often over-stressed by the plethora of government regulations that assault her small businesses and that she has to understand and absorb. We will need a large supply of Valium to combat the stress, and I hope that something will be made freely available to people who will be at risk if smoking is seriously curtailed.
The second problem was highlighted by the noble Baroness, Lady Trumpington. Many ex-smokers put on weight. With the Government so concerned about the increase in mortality from obesity, it hardly seems the time to condemn even more people to an early grave. Obesity kills and stress kills, as the Health and Safety Executive keeps stressing. I would like to see an analysis of whether there is a net increase or decrease in,
"potential years of life lost",
as the recent report, Securing Good Health for the Whole Population, describes death before 75. Another point is that, apparently, nicotine can help to delay the onset of Alzheimer's, which is again a growing problem as we tend to live longer.
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I turn now to cost. Smokers pay a huge amount in tax, and if they die younger, as we are told, the Government must save as much as would have been spent on geriatric care as they then have to spend on cancer or other problems. If that is not true, although those people have quit smoking, they are presumably expected to die early but of less expensive diseases.
Every culture has condoned the use of some drug or other to make its daily toil on this planet more bearable, and efforts by the great and good to ban their use have always failed. Some people simply do not have staying healthy as a priority. Prohibition in the USA lasted only a comparatively short time, and all that it did was give the criminal fraternity an opportunity to make huge fortunes and then join the political elite.
2.42 p.m.
Lord Addington: My Lords, I disagreed with most of that speech, but have a great deal of sympathy for those who find themselves addicted to a dangerous, expensive, smelly and unpleasant drug. I am not obsessive about tobacco; I do not have as great a sensitivity to passive smoking or smoke in the atmosphere as many people whom I know. It is a little more than 20 years since I have legally been allowed to go into a pub and, in that time, the density of smoke has got less, as have the unpleasant effects such as the smell on one's clothes. Generally, going into a pub has become a pleasanter experience. It may be true that voluntary codes and extractor fans are improving, but most of the improvement is down to fewer people having in their hands that white stick giving off noxious fumes. That is what we are talking about it. As a non-smoker, I find their smoke unpleasant.
I congratulate the noble Lord, Lord Stoddart, on his attack on the sitting duck of statistics. It was a masterful example of how one can "get in there" and hack around. I do not agree with anything that he said, but 10 out of 10 for form. A similar thing could be said about the noble Baroness, Lady Trumpington, who has been said to be one of the great forces in this House. I disagree with what she said as well, but recognise that, if I go head to head with her, I shall lose. Nevertheless I say to her, "Well done".
What we are really talking about is introducing a greater ban on the use of a drug that damages one's respiratory system, heart and any part of the body with which it comes into contact. It may be a drug that we have come to know well over the past 400-plus years; but it is still a drug. It is still something that damages one's clothes, one's environment and everything else. It might be virtually impossible to ban smoking overnight. But, going back even the 20 or more years that I have been on the edge of this argument, no one would have believed then that one could have reduced smoking to its current level.
One was told then, "Oh, everyone smokes. You've got to smoke because everyone else does". That was whacked around the back of my head when I was a teenager. I was one of the sporty elite who decided that they would waste their money on other substances. But

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noble Lords must bear in mind that we have moved along way, and are still moving away, from that idea. The only protest we have heard is that other things might be bad for us as well. There is the idea that one might put on weight after stopping smoking and become obese. Yes, but we are trying to attack that as well. Living kills. Ultimately we must find the best way that we can travel from A to B. If we decide to sit around, statically, and smoke and eat chips, we will probably die slightly more quickly than if we just sat around eating chips.
We have to put the issue in context. We are talking about putting a brake on the use of this legal drug, this legal poison. We are trying to push it slightly further away. It will be a battle that is won by inches, not by one great charge. Indeed, if we did the latter there would be cigarette smuggling; illegal smuggling dens starting where cigarettes are handed out. We must achieve our aims by education. We must travel on. But whenever we have intervened in terms of education and voluntary codes—primarily by upping the cost— we have made far greater strides. If the Government say that simply relying on a voluntary code will work, they are wrong—to the extent that we will not make the same rate of progress. We must try to push back.
The Bill is part of one of those inches that we are taking forward, or, at least, part of the reconnaissance. I hope that the Bill promoted by the noble Baroness, Lady Finlay, which we shall debate later, will receive better support as it is slightly further along the road. But we have to recognise that we are in the process of a debate that is pushing back the use of something that is unpleasant and damaging to those who do not want it and even more damaging to those who use it. By making tobacco more difficult to use in public we will be taking an important step towards ensuring a general reduction in use.
I offer one last thought regarding all those illegal drugs that are consumed by means of smoking. If fewer people smoke, fewer people will try them.
2.48 p.m.
Lord McColl of Dulwich: My Lords, I, too, thank the noble Lord, Lord Faulkner, for introducing the Bill. Much of what I planned to say has already been said, so I shall not repeat it. However, I would like to emphasise that non smokers are acutely aware of the effect of being in the vicinity of a smoker; they soon notice that their clothes and hair reek of the smell of tobacco. Perhaps the only other living thing that does something comparable to polluting others with their effluvia is Mephitis mephitis. It spreads its unpleasant smell over people who attack it, but only after warning of its intention. It does that by drumming and performing hand stands—or front paw stands. Unlike man, it never pollutes its fellows. Mephitis mephitis is also known as the striped skunk. The pollutant that it spreads contains a powerful anti-cancer drug, which is rather ironic when one compares that with tobacco smoke, which causes cancer.
There has already been much argument about whether passive smoking causes cancer. I want to leave that to one side and deal with some important facts which no one can
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dispute. Those have been emphasised already, especially by the noble Lord, Lord Rea. Passive smoking can, and does, cause asthmatic attacks. That is fact number one. Fact number two is that people can, and do, die in asthmatic attacks. It seems to me that that is quite enough evidence on passive smoking without getting into a large debate about the statistics.
I must take issue with the noble Lord, Lord Monson, who I think denied that there was a danger in passive smoking. I believe that the asthmatic argument is overwhelming, and I hope that he will accept that.
Lord Monson: My Lords, obviously I accept that some asthmatics are affected, but I know many asthmatics who are not troubled by smoke. I am sure that the former are a sizeable minority, but by no means all asthmatics are affected by other people's smoke.
Lord McColl of Dulwich: My Lords, I did not say that all asthmatics are affected; I said that passive smoking can cause asthmatic attacks and that asthmatic attacks can kill. Those are facts. It seems tome that, if we argue along those lines, we shall be on a very firm foundation.
Smoke-free workplaces and public places are essential in order to protect people with asthma. Reducing smoking in pubs and restaurants is a real problem. Half-measures, such as no-smoking parts of a restaurant, simply do not work. Sitting in the smoke-free half of a bar is rather like swimming in the chlorine-free half of a swimming pool.
Passive smoking in children is a very big worry indeed. Children make up 20 per cent of the UK population and, especially when young, they do not have the freedom to choose to avoid smoky atmospheres. Nearly half of all children are exposed to smoke at home and many more are exposed in public places. The home is the greatest source of environmental tobacco smoke as children spend much of their early lives indoors. Nationally, around 17,000 admissions to hospital by under-five year-olds each year are attributed to passive smoking. That amounts to around five hospital admissions a day in London, and the total cost to the NHS of treating those children is more than £400 million.
There is some good news. Children's overall exposure to passive smoking has approximately halved since the late 1980s, and that was achieved without compulsion. There is more good news, as has already been mentioned, in that Pizza Hut has banned smoking in all its restaurants, especially with children in mind.
What are the main health risks for children? They include sudden infant death syndrome, which has a significant relationship with passive smoking. While active smoking during pregnancy has been shown to cause cot death, recent epidemiological studies have now demonstrated that post-natal environmental tobacco smoke exposure is also an independent risk factor in cot deaths. We have already mentioned asthma. Glue ear and middle-ear infections are common conditions, with 15 to 20 per cent of two to five year-old children affected at any one time. The

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most common symptom of glue ear is that the child does not develop language and speech as expected due to hearing loss. Untreated glue ear can result in permanent hearing loss in a small minority of children. It has been demonstrated that passive smoking is responsible for a 20 to 40 per cent increase in the risk of middle-ear disease in children.
Other health risks include respiratory tract infections, meningitis, and also cognitive behavioural problems. There is evidence that environmental tobacco smoke exposure may contribute to learning difficulties, behavioural problems and language impairment. It has been shown that children with parents who smoke also take much more time off school. Children have a basic human right to be protected from harm caused by environmental pollution and, therefore, it is important to ensure that places where children go are smoke free.
Employers have a duty to protect their staff. They have a responsibility and a statutory duty to provide and maintain a working environment that is safe and free from risks to health. Many employers have recognised that duty and have made their workplaces completely smoke free. By the year 2002 about half of all employees were completely protected in that way.
It has already been mentioned that 20 per cent of people with asthma are prevented from using parts of their workplaces by cigarette fumes. There is no comparable carcinogen to which workers and customers are exposed in such a widespread and uncontrolled way. People suffering from serious exposure to second-hand smoke at work are three times more likely to take time off work.
How can we help smokers to quit? Restricting smoking in public places is part of the strategy to de-normalise smoking. Non-smoking is the norm. A vast majority— something like 73 per cent of British adults—are non-smokers. The great majority of smokers—71 per cent— actually want to give up smoking. Smoke-free policies at work help smokers to realise that ambition.
In all my professional life as a surgeon I have done my best to persuade my patients not to smoke. But I am an adviser; I am not a dictator. As my noble friend Lady Trumpington pointed out, there are problems associated with stopping smoking. A lady of 75 had a new GP who told her that she must stop smoking—that was an order. So she stopped smoking and three weeks later she was profoundly depressed and was put on anti-depressants; she reacted to the anti-depressants, became ill and was changed to another anti-depressant which made her even more ill and so it went on. After about three months, fortunately, the doctor went on holiday and she saw another doctor who said, "I am terribly sorry, we really have made a big mistake; I think you'd better come off all these drugs and go back to smoking". We are advisers, not dictators.
I share the curiosity of my friend the noble Lord, Lord Stoddart, on the subject of cannabis. I wonder whether the Liberal Democrats could clarify their policies on this subject. Am I right in thinking that they wish to ban smoking tobacco in public places, yet wish
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to legalise the smoking of cannabis, which is known to be 10 times more lethal in producing cancer than tobacco smoke?
Lord Addington: My Lords, we would ban smoking and we would ban smoking of all substances.
Lord McColl of Dulwich: My Lords, but the Liberal Democrats do not mind people continuing to smoke cannabis?
Lord Addington: My Lords, we would ban the smoking of cannabis in public places as well as tobacco.
Lord McColl of Dulwich: My Lords, thank you for that clarification.
Lord Stoddart of Swindon: My Lords, is it not true that the smoking of cannabis, as a class B drug, is already banned in public places?
Lord McColl of Dulwich: My Lords, I believe so but it does not seem to have had any effect.
Many noble Lords believe that the Bill is not appropriate as a Private Member's Bill and that it should have come to Parliament as a government Bill, after extensive public discussion and consultation. The Government may deliberately be avoiding such consultation by taking on the Bill with Government backing in another place, which is a government technique that I have noticed before.
The Government have had ample opportunity to address the issue, but have failed to do so. We believe in principle that everyone should be able to work in a smoke-free environment. However, we recognize the difficulty that poses in some sectors: notably, the entertainment and hospitality section.
The Health and Safety Executive has looked into the issue and drafted an approved code of practice to address the problem, a matter mentioned by the noble Baroness, Lady Gibson of Market Rasen. This code of practice could have clarified the existing legal situation for employees, yet the Government have failed to act, even though that was a central part of their 1998 White Paper, Smoking Kills.
On this side of the House we wanted the Health and Safety Executive draft approved code of practice to be published because we believe that it would have gone a long way to ensure that people are protected from cigarette smoke in the workplace. However, the Health and Safety Executive informed me just yesterday that the Government have scrapped the approved code of practice due to the effect that it would have on the hospitality industry.
In conclusion, the majority of British people would like to see the end of smoking altogether. The question is: how is that best achieved? An outright ban in public places will undoubtedly increase the amount of smoking at home, which will further endanger the health of the children trapped in that polluted environment. Incidentally, if there were an outright

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ban, presumably trading standards officers would do the monitoring. They are already very hard-pressed. The Government should adopt a sensible code of practice for all work places to eliminate the pollutant smoke on a voluntary basis. That should precede any attempt at more draconian methods. Persuasion is always to be preferred to force.
3.2 p.m.
The Parliamentary Under-Secretary of State, Department of Health (Lord Warner): My Lords, like other noble Lords, I welcome the opportunity the Bill presents to debate these important issues again. The Government share the noble Lord's desire to tackle the death and disease associated with tobacco smoke and second-hand smoke. We have no quarrel with the evidence that he deployed and that was deployed to this effect so eloquently by other noble Lords, particularly the medical Members of the Chamber. That is why we are currently engaged in public consultation.
Let me reassure the noble Lord, Lord McColl, that we are engaged in a serious public consultation—I shall say more about it later—on how best to take forward government action to achieve the objectives we all share of improving public health.
I have listened carefully to the views expressed from all sides of the Chamber, even to those of the noble Lord, Lord Stoddart, who seems to have deployed the case very well for never stepping outside one's own front door. As the noble Lord, Lord Addington, said, living does kill, but I suggest that it is not a bad idea to put off the end as far as possible.
This is an important debate and one that is going on across the country and internationally. As a government we have always said that entirely smoke-free public places are the ideal, as a number of noble Lords opposite have remarked—and I must tell the House that I am always delighted to be quoted approvingly by the noble Baroness, Lady Trumpington. We think that having smoke-free public places is one way to provide protection from the dangers of second-hand smoke. We have thus far preferred to look for last and substantial progress on a voluntary basis rather than bringing forward specific legislation in this area.
Although there has undoubtedly been some improvement, we have been disappointed by the lack of action in some sectors, particularly pubs and bars. I reassure my noble friend Lord Faulkner that I was not conveying excessive confidence in this area in the Chamber yesterday. As a result of our concerns, Melanie Johnson and Tessa Jowell met representatives of the hospitality industry earlier this year, to see what more could be done on a voluntary basis. A further meeting is due on 5 May, and we hope to see some new approaches that will hasten the moves to a greater provision of smoke-free places in response to the growing public demand.
Despite disappointment with this one sector, there have, of course, been significant measures of progress across the country. The number of workplaces that are entirely smoke-free has grown by 10 percentage points
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since 1996—that is up from 40 per cent in 1996 to 50 per cent in 2002. The percentage of workplaces that are either entirely smoke-free or have separate areas for smokers has now grown to 86 per cent.
Let me move on to the substance of today's debate, not in any spirit of opposition, but because the Government need to consider all the implications, and to do so as part of our consideration of the wider consultation on public health. In the past 10 years since Tessa Jowell put forward her Private Member's Bill, there has been considerable movement on the whole area of tackling smoking. Not least are the changes in the public opinion towards smoking, and to the growing percentage of the population that does not smoke and has never smoked.
A YouGov poll published in the Daily Telegraph in December 2003 recorded that 49 per cent of respondents would support a complete ban on smoking in pubs, while 41 per cent would oppose such a ban. This is clearly a fairly balanced issue in this sector. However, the same poll recorded that for restaurants 83 per cent supported a ban, while only 14 per cent would oppose a ban. Even among smokers the majority, sometimes as many as 88 per cent in the case of shops, would support a ban on smoking in railway stations, factories, indoor shopping centres, restaurants, offices and shops. We know that 70 per cent of smokers want to give up the habit, and many would therefore welcome the opportunity to avoid the temptation in as many places as possible. As might be expected in each case, the percentage supporting a ban is higher among former smokers than those who have never smoked.
In addition to the changes in public opinion, there have been changes in workplace practice. It is no longer the case that the majority of us are exposed to smoke in the workplace. What used to be considered normal, people sharing an office with a chain smoker for example, would now be considered most unusual, with 86 per cent of workplaces either entirely smoke-free or with restrictions already in place to separate smoking from non-smoking common areas.
As my noble friend Lady Gale and Cancer UK have indicated, we are making progress. Smoking in cinemas, theatres, planes and the Underground is now thought of as something which previous generations had to endure; something from history. Indoor shopping malls are another area which have transformed people's everyday experience in the past 10 years. Many of these have been smoke-free from their inception. This year, we have seen places such as Salford and Newcastle's Metro Centre go smoke-free. Restaurants are rapidly moving in the same direction, with high street names such as Pizza Hut—which has been getting a jolly good commercial today—and Wagamama completely smoke-free, along with the National Trust property restaurants. One does not always think of the National Trust as being in the restaurant business, but millions of customers enjoy their food in a smoke-free environment, and their workers and volunteers are protected from the health dangers and other dangers of smoking.

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Things are moving in the right direction, but we recognise that there is no room for complacency. We need to strike a right balance that takes proper account of public opinion. Now is the time to take stock of what has been achieved and where we go next in protecting people from second-hand smoke. This debate has come at an opportune time. On 3 March, the Government launched a major, nationwide public consultation exercise on the future of public health. As John Reid said last month, when he launched the consultation document Choosing Health,
"We need a big debate about the relative roles of Government, individuals and industries in tackling this vital challenge. We need to find the right balance, rejecting both the nanny state and the Pontius Pilate state which washes its hands of its citizens' health".
We have examined the various international examples of bans on smoking in public places. Noble Lords will be aware—it has been mentioned today—that, in some states of the USA, there has been a state-wide ban on smoking in public places. Similar moves have been made in cities and towns in the USA and in Canada, Australia and New Zealand. Last month, as noble Lords have said, the Republic of Ireland became the first country in Europe to go for entirely smoke-free indoor workplaces. Norway is adopting a similar approach in June of this year, and Sweden will bring in its own measures next year. Holland is also introducing smoke-free workplaces, although it is looking at bars and restaurants separately and considering how best to deal with that sector.
My noble friend Lady Gale described how bans in one place could have unexpected consequences in others, with her graphic description of Irish smokers pouring across the Irish Sea into Wales. It is important to note that different countries have taken different approaches, even where they have followed the route of legislation. They have tackled the problem of second-hand smoke according to the circumstances, the level of public demand and the strength of public opinion. The approach has not been uniform. The definition of public places in legislation differs from country to country and place to place. What has been appropriate for one state or city is not necessarily automatically transferable to another. In the USA, there has been a steady build-up in recent years of the enactment of local smoke-free legislation. As most people know, in New York, the decision was taken just over a year ago to make workplaces smoke-free. In many other towns and cities in the USA, they have not followed identical paths. In the US, there has been a gradual city-by-city, state-by-state progress indifferent ways.
What has perhaps been common in all places where smoke-free workplaces have been introduced is concern about the impact on business and the hospitality trade in particular. That has often been a point of controversy. I will not comment on the facts of what has happened elsewhere, other than to say that it cannot be assumed that the experience in any particular country would be identical to that here.
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As I said, different approaches have been adopted in different countries. Even in the UK, there has been a measure of diversity. The Welsh Assembly has made its view known on the subject, and a separate Private Member's Bill introduced by the noble Baroness, Lady Finlay of Llandaff, relating exclusively to smoking in public places in Wales will be debated later today. In Scotland, a consultation on smoking in public was launched in January, as part of the Scottish Executive's tobacco control action plan, entitled A Breath of Fresh Air for Scotland. Additionally, a Private Member's Bill has been introduced in the Scottish Parliament containing measures to prevent people from being exposed to tobacco smoke in places where food is served and prepared. So, no uniform solution is being put forward, even by those in the UK who propose legislation as the best way forward. This Bill offers one possible way forward, one set of measures, but there are others.
I accept that there is significant public interest in the subject. It has been reflected in the comments of noble Lords today. The Bill is indicative of the wider debate on the subject and the pressure for more action. Growing concentration on the subject can also be seen in activity at local level. More than 30 towns and cities in England are now seeking ways of increasing the number of smoke-free public places within their boundaries. Big cities such as Liverpool, Manchester, Birmingham, Exeter and Brighton, as well as smaller towns throughout the country, have been taking initiatives to see what they can do to protect people from second-hand smoke. The smoke-free cities network grew out of such local initiatives.
I am grateful to noble Lords who recognised the action that the Government have taken. The Government have an excellent record on tackling smoking. They have introduced a comprehensive programme that includes helping smokers to give up, and we have had considerable success with that. We have also reduced tobacco consumption. Again, the prevalence of smoking is falling in most groups. I suppose that is bad news for the noble Earl, Lord Errol, who seemed to encourage the Government to promote smoking, which I can assure him we will not do. We have also raised awareness of encouraging action on second-hand smoke. There is a year-round education and media campaign. New measures have been taken on labelling and regulation. Alongside that, there have been improvements in the taxation of tobacco products and in tackling smuggling.
Perhaps I may deal briefly with the argument put forward by some that second-hand smoke is not a real danger. In 1998, the Government's Scientific Committee on Tobacco and Health published a report that clearly identified the dangers of second-hand smoke: namely, that it is a cause of lung cancer and childhood respiratory diseases; that it is a cause of heart disease and cot death; and that restrictions on smoking in public places and workplaces are necessary to protect non-smokers. That is the scientific evidence available to the Government.

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We have since had the evidence from the World Health Organisation's International Agency for Research on Cancer in its June 2002 report, which classified second-hand smoke as a human carcinogen. There has been a growing body of international evidence that the SCOTH experts have been studying to update the 1998 report. The warnings on cigarette packs that the Government introduced now say:
"Smoking seriously harms you and others around you".
As a number of noble Lords have indicated, I, too, recognise that this Bill is remarkably similar to that put forward by Tessa Jowell while in opposition in 1994. But, as I have outlined, things have moved on since then. Since they took office, measures taken by the Government to tackle smoking have moved things on far further than many campaigners would have dreamed of at the time.
More recently, we have had the Wanless report. The Government are also considering carefully the recommendations of that report in respect of taking action to tackle smoking in public places and in workplaces. The Wanless report looks at the potential gains from a ban on smoking in enclosed public places. It notes that interventions to improve public health have the potential to reduce personal freedoms. It goes on to say that there should be at least a strong consensus that public health measures are necessary to prevent harm to others.
As I have already said, on 3 March John Reid launched what has been described as the biggest consultation ever on public health. Headlined as one of the key consultation areas, there are questions relating to smoking in public places and workplaces. The consultation continues until the end of May. We will give everyone the maximum opportunity to take part and to answer questions on smoking in public places.
Perhaps I may briefly remind your Lordships of the specific questions being put to the public. Should the Government pass a law to make all enclosed workplaces and public places smoke-free? What about restaurants? What about pubs and bars? Would local authorities be better placed than central Government to introduce laws? Apart from bans, how could local towns and cities respond to calls for more smoke-free public areas?
As part of the consultation process, perhaps I may reassure my noble friend Lady Gibson that the HSE's advisory code of practice will be considered carefully. We will listen to the answers to those questions and consider carefully how best to carry out the wishes of the people. People are being given the opportunity to have their say. Therefore, in the Government's view, it would be quite wrong to respond today to the noble Lord's Private Member's Bill other than to thank him and others who support it, and then to allow the consultation to reach its conclusion.
The debate today has been a useful addition to the wider consultation that I mentioned. As I said, we have reservations about the content of the Bill. Until we have reached the conclusion of our wider consultation on public health, it would be premature to commit to one particular course of action. That is why I am urging patience today;
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something that I suspect I' shall be doing for some time in the coming weeks. In conclusion, I pay tribute again to the noble Lord, Lord Faulkner, for introducing the Bill. I am grateful to him and to other noble Lords who have contributed to the debate.
Lord McColl of Dulwich: My Lords, before the noble Lord sits down, will he confirm that the draft approved code of practice produced by the Health and Safety Executive has been rejected by the Government?
Lord Warner: My Lords, the Government are still considering the code of practice.
3.20 p.m.
Lord Faulkner of Worcester: My Lords, I am reminded of a statement made by an American gentleman, Fletcher Knebel, who said that smoking is one of the leading causes of statistics. Certainly when I was listening to a number of speeches today— particularly the speech of the noble Lord, Lord Stoddart—that saying came very much to my mind.
I thank every noble Lord who has taken part in the debate. It has been very spirited and, at times, very entertaining, and a wide range of views have been expressed. Your Lordships will be relieved to know that I do not intend to go through each speech individually but merely to pick up on one or two points where noble Lords may have misunderstood me or I did not make myself clear in my opening speech.
Before I do so, however, I should express particular thanks to all noble Lords who have supported the Bill with such enthusiasm—my noble friends Lady Gale, Lady Gibson, and Lord Rea: the noble Baroness, Lady Finlay, the noble Lord, Lord Addington, and also, from the Opposition Front Bench, the noble Lord, Lord McColl. He made the most clear exposition of Conservative policy on the issue of passive smoking that I have ever had the opportunity to listen to. The fact that it comes from a strong medical background lends tremendous weight to the points that he made.
The House owes a particular debt to all Members from a medical background who have contributed to the debate today. I would much rather listen to doctors on this subject than trust my own prejudices. Each of their contributions was outstanding.
Perhaps I may answer the noble Baroness, Lady Trumpington, in two ways. I think she understood the Bill to have the effect of not providing any protection for barmen and restaurant staff if they are working in bars or restaurants which have designated smoking areas. That is not the case. The point about the reserved smoking areas is that they are purely for members of the public; they are not intended for employees. The main purpose of the Bill is to protect employees from the effects of customers' passive smoke.
Baroness Trumpington: My Lords, I was arguing that in the Bill it states that people should have set times. It makes no mention of whether a barman is to be there for four hours or 12 hours. That was the point I was trying to make.
Lord Faulkner of Worcester: My Lords, the Bill seeks to ensure that the areas in bars where people are working are smoke free. So the bar staff will not be exposed to second-hand smoke.
The noble Baroness made a familiar point: that particular foods are as bad for you as tobacco. She referred particularly to butter and French fries. The one great difference between tobacco and all other products is that it is the only one which, when it is used in accordance with the manufacturer's instructions, causes death and disease. That does not apply to butter or to French fries. We have incontrovertible evidence that tobacco is a product that kills. That is why the treatment of tobacco deserves to be different.
The noble Lord, Lord Campbell of Alloway, whose speech I enjoyed very much because, as he said, his views are not much different from mine—indeed, he expressed them in the debate on the Bill of the noble Baroness, Lady Finlay, in January—in regard to the need to segregate smokers from non-smokers. His main point was that the Bill is not necessary. On consideration, having listened to the other speeches and the fact that there are 3 million employees in this country who are exposed to the effects of other people's smoke, I hope he will agree that if we cannot get a very satisfactory and rapid adoption of a voluntary practice, legislation of this kind will be necessary.
The noble Lord, Lord Monson, said that he did not think public transport was included in the Bill. It is included in Part 1 of the schedule. The noble Earl, Lord Erroll, asked whether the Bill sought to ban smoking altogether. I do not think the noble Earl was in his seat at the start of the debate because, if he had been, he would have heard me say in my opening words that this is not a Bill to ban smoking but to limit its application in public places.
The Earl of Erroll: My Lords, I asked whether it was part of a drive; I realise that it is not in itself an attempt to ban smoking.
Lord Faulkner of Worcester: My Lords, the Bill is not part of a drive; it will do what it says it will do.
Finally, I should like to comment on the speech of my noble friend Lord Warner, which I found very encouraging and interesting. The fact that there is obviously some government irritation at the speed with which the hospitality industry is adopting the public places charter is understandable. One of the messages that will go out from this debate is that when the Minister meets the industry in May, he can say that there is a very strong body of opinion which believes that much faster progress needs to be made.
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The Government may wish to remind the industry that at the beginning, when the charter was set up in 1998–99, they said that they expected fast and substantial progress. By last year, at least, one in three pubs was still completely non-compliant with the code and nearly half of compliant pubs allowed unrestricted smoking throughout. They have a very long way to go before they match even their own modest ambitions.
There was one point that the noble Lord, Lord McColl, made, and I should have referred to it earlier. He talked about whether driving smokers out of workplaces and the hospitality industry means that they will smoke more at home. I am assured that the evidence from Australia, where a workplace smoking ban has been in force for some years, shows that people are smoking less at home as well and it is reducing the prevalence of smoking. Certainly, if the experience of my family is anything to go by, my daughter, who smokes spasmodically, but not heavily, is monitored by her 11 year-old daughter, who demands to know each day how many cigarettes her mother has smoked and reprimands her if it is more than the day before.
The basis of tackling smoking in the home, I suspect, will be peer pressure in the same way as it is applied on public transport and in all the other areas where smoking has been banned.
I thank all noble Lords for taking part in the debate. I take on board very much what my noble friend Lord Warner has said, and I commend the Bill to the House.
On Question, Bill read a second time, and committed to a Committee of the Whole House.

Smoking in Public Places (Wales) Bill [H.L.]
3.27 p.m.
Baroness Finlay of Llandaff: My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.
Moved, That the House do now resolve itself into Committee.—(Baroness Finlay of Llandaff.)
On Question, Motion agreed to.
House in Committee accordingly.
[The DEPUTY CHAIRMAN OF COMMITTEES (Viscount Simon) in the Chair.]
Clause 1 [Prohibition of smoking in public places in Wales]:
Baroness Finlay of Llandaff Baroness Finlay of Llandaff moved Amendment No. 1:
Page 1, line 3, after "prohibition" insert "or restriction"
The noble Baroness said: All the amendments tabled today are in response to comments noble Lords made on Second Reading. I hope that they will clarify areas of potential confusion. I will try to be very brief in addressing them because I am well aware of the time on a Friday afternoon, but I am grateful that the Government have given time for the Bill.
Amendment No. 1 clarifies that the Bill gives powers to the National Assembly for Wales to restrict or prohibit the smoking of tobacco products in public places in Wales, allowing flexibility to the Assembly. The consultation exercise being undertaken by the Assembly will reveal what the population want and how they wish a ban to be implemented. The Assembly must be able to respond to the wishes of the people that it serves. The amendment will allow the Assembly to limit by place and time rather than only ban or not ban.
Amendment No. 8 ensures that the long title of the Bill is accurate. The Bill does not ban smoking in public places per se; it empowers the Assembly to do whatever it feels appropriate. It gives the Assembly the powers that Scotland already has and the Assembly has requested. I beg to move.
On Question, amendment agreed to.
Baroness Finlay of Llandaff Baroness Finlay of Llandaff moved Amendment No. 2:
Page 1, line 3, after "tobacco" insert "products"
The noble Baroness said: For clarification, I had asked that Amendments Nos. 2 and 3 be degrouped from Amendments Nos. 4, 5 and 7. I shall address Amendments Nos. 2 and 3 now.
In all five amendments, definitions are addressed. The first two cover specific definitions. Amendment No. 2 covers all tobacco products that can be smoked and not only pure tobacco. That is compatible with the Tobacco Advertising and Promotion Act 2002 and keeps the same definition as is already used in legislation. Amendment No. 3 concerns contravention of regulations in Section 1. It would prevent the owner or his deputy, manager or other person in charge of a place encouraging the flouting of the law. Such encouragement could occur if the smoker is the only person committing an offence. The amendment would also ensure that the owner of a premises, or his delegated person in charge, has a duty to bring the ban to the attention of members of the public, such as tourists, who may be unaware of local regulations that pertain to Wales. I beg to move.
On Question, amendment agreed to.
Clause 1 agreed to.
Clause 2 [Offence]:
Baroness Finlay of Llandaff Baroness Finlay of Llandaff moved Amendment No. 3:
Page 1, line 7, at end insert—
"() Where in relation to any place specified in section (Definitions) there is a contravention of regulations under section 1, the occupier, manager and any other person for the time being in charge of the place shall each be guilty of an offence."
On Question, amendment agreed to.
Baroness Finlay of Llandaff Baroness Finlay of Llandaff moved Amendment No. 4:
Page 1, line 8, leave out subsection (2).
The noble Baroness said: I shall now speak to the amendments that have been degrouped. Amendment No. 4 would remove Clause 2(2) to the proposed new definitions section. Amendment No. 5 is consequential
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on it. Amendment No. 7 would create the definition clause. In it, "tobacco products" would mean any product consisting wholly or partly of tobacco. That is the definition used in the Tobacco Advertising and Promotion Act 2002 and, again, it ensures compatibility with existing legislation.
The definition of a "public place" was of concern to your Lordships. Therefore, I have taken extensive advice on it. A public place means any premises or place to which, at the material time, the public or any section of it have access, on payment or otherwise, as of right or by virtue of express or implied permission.
A public place was so defined to allow the Welsh Assembly to decide the venues that it wishes to deem covered in its secondary legislation. This definition of public places is based on a well founded definition in the Public Order Act 1936. As its name suggests, that deals with areas where the public congregate. That Act concerns the wearing of uniform in connection with political objects. Just as such a uniform can cause offence or anxiety, smoking can cause harm or anxiety of harm to those who do not wish to be exposed to the hazard.
The definition would allow the Millennium Stadium to be covered by secondary legislation if the Assembly wishes. Also, new architectural designs may emerge which the Assembly would wish to encompass in its regulations and which cannot be accounted for by tight lists.
"At the material time" includes the times that such places are open to the public, but not otherwise. It is intended to allow regulatory flexibility to the Assembly to prescribe those times more precisely and could cover such times as an hour prior to the opening of a private house or residence to the public as occurs in some places in country houses on a Sunday.
The Assembly would have the flexibility of deciding to which type of public place the legislation should apply. That flexibility allows the Assembly to assess the most effective way of pursuing the ban and to respond to its own detailed consultation exercise across Wales. I beg to move.
Lord Elis-Thomas: I declare an interest as presiding officer of the National Assembly. I support Amendment No. 7, in particular, and thank my noble friend Lady Finlay for addressing the issues raised at Second Reading. This Bill, and these amendments in particular, provide an excellent example of what co-legislation between Westminster and Cardiff should be about. This House and, one hopes, another place, is able to address the general framework issues, enabling the National Assembly and the leadership of the Welsh Assembly government to pursue the detail. I refer particularly to Alun Pugh AM, now the Minister for Culture, who was the initial instigator of this whole project and is now actively pursuing his campaign on public health in public buildings throughout Wales. That is as it should be; it is a sign of devolutionary times and a test

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for Parliament and Westminster in framing legislation, as well as a test for the Assembly in Cardiff in terms of the details of legislation. I am happy to support my noble friend and to thank her for the lead she is taking in this matter in this House.
On Question, amendment agreed to.
Clause 2, as amended, agreed to.
Clause 3 [Orders and regulations]:
Baroness Finlay of Llandaff Baroness Finlay of Llandaff moved Amendment No. 5:
Page 2, line 1, leave out "2(1)" and insert "2"
On Question, amendment agreed to.
Baroness Finlay of Llandaff Baroness Finlay of Llandaff moved Amendment No. 6:
Page 2, line 2, leave out "imprisonment for more than three months or"
The noble Baroness said: The amendment will delete imprisonment as part of the process, should any ban be contravened. I had previously had the phrase,
"imprisonment for more than three months",
in the Bill. The amendment will ensure proportionality to the offence, and will avoid the Bill being disproportionately punitive. I listened very carefully to the debate and took account of all the points made by noble Lords and others outside the Chamber over the issue of potential imprisonment. It is worth noting that Ireland has included the possibility of imprisonment in its legislation. However, I was persuaded by your
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Lordships that it might be inappropriately punitive and burdensome on our already over-stretched prison services. I beg to move.
Lord Roper: We on these Benches are grateful that the noble Baroness, Lady Finlay, has introduced the amendment. Given the present situation of our prisons, we are extremely cautious about doing anything that might increase overcrowding. We are very pleased that the amendment has been introduced.
On Question, amendment agreed to.
Clause 3, as amended, agreed to.
Baroness Finlay of Llandaff Baroness Finlay of Llandaff moved Amendment No. 7:
After Clause 3, insert the following new clause—
"DEFINITIONS
In this Act—

"tobacco products" means any product consisting wholly or partly of tobacco;

"public place" means any premises or place to which at the material time the public or any section of the public has access on payment or otherwise as of right or by virtue of express or implied permission."

On Question, amendment agreed to.
Clause 4 agreed to.
In the Title:
Baroness Finlay of Llandaff Baroness Finlay of Llandaff moved Amendment No. 8:
Line 1, leave out "Prohibit" and insert "Enable the prohibition or restriction of"
On Question, amendment agreed to.
House resumed: Bill reported with amendments.
House adjourned at twenty-one minutes before four o'clock.