Smoking in Public Places (Wales) Bill [H.L.]

HL Deb 16 January 2004 vol 657 cc769-97

12.53 p.m.

Baroness Finlay of Llandaff

My Lords, I beg to move that this Bill be now read a second time.

I am most grateful to the Government for giving time for the Second Reading of my Bill. I am delighted that the noble Baroness, Lady Gale, and the noble Lord, Lord Faulkner of Worcester, are to speak today, for they have done a great deal to highlight the problems of passive smoking and to keep this issue alive in this House. Many others have also contributed, and by not mentioning them by name I do not wish in any way to underplay the contribution that they have made. I declare my medical professional interest in the problems created by tobacco.

I will briefly remind your Lordships of the dangers of passive smoking but will concentrate on why the National Assembly for Wales should be given the powers that it has requested. The noble Lord, Lord Elis-Thomas, who is Presiding Officer of the Assembly, referred to the powers in his supplementary question to the Minister on 12 March last year. In reply. the Minister said: Wales has made a decision in principle that it would like to have such a measure and the matter is before the Secretary of State for Wales".—[[Official Report, 12/3/03; col. 1307.] Second-hand smoke contains over 4,000 chemicals, including benzene, formaldehyde, arsenic, ammonia and hydrogen cyanide. Levels of airborne nicotine in public places range from 1 to 1,000 microgrammes per cubic metre of air. The impact on the risk of lung cancer and, in particular, coronary heart disease from average levels of smoke pollution cannot he ignored. A British study showed nicotine intake among nonsmoking adults working in bars with natural ventilation from open windows to be equivalent to smoking half a cigarette a day. In New South Wales, a study showed that, after four or more hours at work in licensed premises, non-smoking employees had four times the level of carbon monoxide of those who worked in a smoke-free workplace. A third of those passive smokers working in bars had carbon monoxide levels consistent with light smoker status.

Apart from the increased risk of coronary heart disease and lung cancer, precipitation of asthma and decreased fertility in adults, there is a particular risk to children. A sickle cell crisis can be provoked by exposure to environmental smoke. Cot deaths, asthma, chest infections and ear disease are all more prevalent in children exposed to environmental smoke. In the words of Jane Hutt, Minister for Health and Social Services in Wales, Smoking in the presence of children, particularly in confined spaces, can inflict damage to their health that they will have to live with for the rest of their lives". Wales has a particular problem with tobacco-related disease. Seven thousand people in Wales are killed each year by tobacco smoke. Thousands more are disabled by exposure to it. The deaths and disease are concentrated in the most disadvantaged communities, and the Assembly has been doing all within its current powers to decrease smoking, particularly among the young. But voluntary measures have failed.

Technically, my Bill is a skeleton Bill to allow the National Assembly for Wales to ban smoking of tobacco by any person in a public place in Wales. The power includes discretion for the Assembly to make regulations applying different provisions for different purposes or different cases. That includes the discretion to stage the timing of implementation and specification of places to which such regulations apply.

There are 60,000 employers in Wales; over 45,000 employ fewer than 10 people. By contrast, the NHS is the largest employer in Wales, with all the healthcare premises that are, of course, open to the public. The Assembly, under my Bill, could make a series of regulations. They could he applied in such a way as to ensure that businesses have time to prepare, so that they are not economically destabilised, while being applied immediately to ensure that NHS staff do not smoke at work and are not exposed to the smoke created by others in their workplace, without denying patients in hospices, for example, a pleasure.

The proposal comes from the Assembly itself. II has power under the Government of Wales Act 1998 to consider and make appropriate representations about any matter affecting Wales. Standing orders enable the Assembly to propose to Parliament that primary legislation on a specific matter affecting Wales should be passed. Those regulation-making powers have a number of precedents. Local authorities have powers to make by-laws for the good rule and government of their area under Section 235 of the Local Government Act 1972. Prior to the Criminal Justice and Police Act 2001, local authorities used that power to regulate the consumption of intoxicating liquor in public places in their area. They still use the power to control such matters affecting public health as spitting. Prohibition of spitting is found in almost every local authority set of by-laws in England and Wales, which define the specific local public places where the prohibition applies.

In Wales, as in England, there are many by-laws made under the Open Spaces Act 1906, which have a public health background. To give examples that may seem trivial: one may not spit on the walls, floor or ceiling of a public carriage in Great Grimsby; nor may one tether a goat in Bute Park, Cardiff. But passive smoking is no trivial matter. I hope that your Lordships can see that my Bill is not empowering the Assembly to do anything that does not have precedents in the powers of local authorities. The Assembly already has wider provisions, which I will explain, but my Bill does not attempt to reflect those.

Noble Lords will recall that Section 72 of the Government of Wales Act empowers the Assembly to create offences. Under Standing Orders, it can create a register of interests, it can require Members to specify that they have interests before participating in a debate, and can prohibit them from participating or voting. If breach of any of the Standing Orders is shown, the person is guilty of an offence, carrying a penalty of a fine up to level 5. Incidentally, if the Bill proceeds to Committee, I intend to lower the offence to be, "to a fine not exceeding level 3 on the standard scale", and omitting imprisonment. This uses the wording of Section 72(7) from the Government of Wales Act 1998.

The Assembly already determines penalties. The Environment Act 1995 empowers the Assembly to make regulations about air quality, including the control of vehicle emissions and the associated level of penalty for a breach. The level was not specified in the original Act. My Bill is not as far reaching because the powers to control the level of fine are contained in the Bill, not delegated as a power for the Assembly to determine.

The National Assembly for Wales has powers to specify in statutory instrument how a breach of the regulations will be tried and the penalties for such an offence. For example, following the Food Safety Act 1990, the Assembly stated the offences and associated penalties from food contamination, and that an offender would be tried in a magistrates' court. However, the Assembly could have specified that such offences should be tried in the Crown Court instead.

The National Assembly for Wales, like a Minister in England, can specify in regulations exactly what breach or breaches constitute a criminal offence. The Assembly has done that. Following the Care Standards Act 2000, that is seen variously in regulations on residential family centres and those on fostering services in Wales. Those did not have to mirror regulations in England, neither were they subject to parliamentary procedure at Westminster. Instead, under devolution, they were subject to debate and approval in plenary by the Assembly itself. The Assembly can specify which breaches of its regulations constitute an offence, specifically in Wales, as seen in the regulations on pigs with blue tongue. Those powers followed the National Assembly for Wales (Transfer of Functions) Order 1999.

My Bill is much more restrictive. It allows the National Assembly for Wales only to state the places where smoking may not occur, but nothing more. That is equivalent to "good rule and government powers", which are by-law making powers.

Local authorities have had powers since at least 1898, if not earlier under the Public Health Act 1875, to control activities in the interest of the public in their district as a whole or in whatever parts of the district they specified in their by-laws. I do not wish to bore noble Lords with further examples of the powers for subordinate legislation. I have given but a few. But it is worth remembering that regulations against, for example, spitting in certain places, have been in existence for more than 100 years. That is not primary legislation by the back door.

I have the greatest respect for the Select Committee on Delegated Powers and Regulatory Reform. I hope that, in the light of the examples that I have given, it may see fit to reconsider its comments on my Bill in its third report. The ability to make by-laws by "good rule and government powers" under the Local Government Act 1972, and the other regulation-making powers that I have referred to under the various Acts, all give powers to make subordinate legislation in the interest of public health. Whenever interest of public health arises there is a balance between individual freedom and respect for the interests of other members of the public who will be potentially affected by that individual exercising certain freedoms.

Here we are balancing the individual's right to smoke tobacco wherever he or she chooses against the right of others, particularly the vulnerable, such as children and those working in public places, to breathe clean air and to avoid the well-documented and scientifically proven harms of passive smoking. We had an extensive debate on such issues when the noble Lord, Lord Clement-Jones, brought forward his Bill on tobacco advertising and promotion.

Exposure to environmental smoke in the workplace can already be controlled under Section 2 of the Health and Safety at Work etc. Act 1974 and its regulations made in 1992. The Health and Safety Executive has the ability to make regulations whereby employers must ensure that there are arrangements to protect non-smokers from discomfort caused by tobacco smoke in rest rooms or rest areas. My Bill applies to public places, which are not covered by that Act. It provides the National Assembly for Wales with power to make regulations in relation to public places. For public places, it seems appropriate to give such regulation-making powers to the Assembly in light of its expressed wish to establish control of smoking over the whole of Wales.

On 22 January 2003, a Motion was brought by Alun Pugh AM, now the Minister for culture and sport in the Welsh Cabinet, to recommend to Parliament the enactment of legislation prohibiting smoking in public places in Wales. Members of the Assembly were given a free vote and approved the resolution by 39 votes to 10 with majorities in all four parties in favour. All four party leaders and all four party health spokesmen voted for the resolution. The Assembly government supports the principle of this Bill. It is the first time that the Assembly has used the powers under Section 33 to make representations to Parliament for it to enact legislation appropriate to Wales. Would—indeed, should—this House seek to deny the clear wish of the democratically elected body who had an extensive debate in plenary and a free vote on the topic?

The National Assembly for Wales has responsibility for matters relating to health. However, to improve the health of people in Wales, the Assembly needs to be able to tackle the problems that consumption of tobacco causes. If it cannot tackle the extensive problems of passive smoking, it is being asked to provide healthcare with one hand tied behind its back because, as I explained earlier, voluntary measures have been extensively implemented, but have failed to impact rapidly.

The Assembly is investing heavily in cancer care, but we would be denying the Assembly its wish to tackle a major cause of cancer. Finland has shown that a legislative ban on smoking in public places results in a 10 per cent decrease in tobacco consumption overall. Experience in other parts of the world shows that this legislation would save the lives of smokers and non-smokers alike. In Scotland, the Scottish Parliament is exploring the issue.

A precedent for my Bill comes from Ireland, where legislation has already been passed. Under Section 47 of the Irish Public Health (Tobacco) Act 2002, regulations can be made specifying places where smoking is prohibited. The public places in which it is prohibited are listed in the schedule to the Tobacco Smoking (Prohibition) Regulations No. 481 of 2003. They are very widely defined. It is worth noting that the Irish are using the ban as a positive marketing tool. With the slogan, "Dublin A Breath of Fresh Air", the industry is hoping to make 2004 a record year for visitor numbers, as Dublin's tourism research shows that 80 per cent of visitors will welcome the ban.

I apologise if I seem to be exceeding time, but I checked earlier and was instructed that I had up to 20 minutes. F'or that, I apologise to the House. I shall try to summarise as quickly as I can.

An online poll recently conducted by the Western Mail, Wales's main newspaper, ask the question: "Would you visit a smoke-free pub?". Twenty per cent responded saying, "No, because I smoke"; 11 per cent said that they would visit any pub that sold beer; while 69 per cent replied, "Yes, smoke-free air at last".

It has been suggested that my Bill would set up a separate criminal justice system in Wales. It would not and could not do so. It simply allows that a breach of the regulations is punishable in the magistrates' court. I am tying into the existing criminal justice system, just as breaches of by-laws have been tied into the magistrates' courts system for the past 130 years.

Powers under the Government of Wales Act 1998 allow the Assembly to make subordinate legislation without being subject to any Westminster parliamentary procedure. That is because it is a democratically elected body and quite different from a local authority that is elected to represent only a particular area. That is why by-law procedures have always been required to be subject to confirmation by a Minister in order to achieve some kind of uniformity. However, on the creation of the National Assembly for Wales, that confirming power was given to the Assembly in recognition of its standing as the body representing Wales as a whole. On that basis, my Bill would give powers to the National Assembly for Wales to make what in effect are by-laws for the whole of Wales.

Being the National Assembly for Wales, this power has to be expressed in terms of a regulation-making power. The powers of the Assembly to make subordinate legislation are already much more extensive than those of local authorities. Local government cannot make by-laws on, for example, fostering, food contaminants, family centres and so forth.

In essence, this Bill proposes to allow the National Assembly for Wales to make regulations over smoking tobacco in public places that have parallels in the by-law making powers of local authorities. It is of no consequence that the Assembly does not have devolved powers over the police force or the judicial system in Wales; neither do local authorities, which can create offences by making by-laws. I commend the Bill to the House.

Moved, That the Bill be now read a second time.—(Baroness Finlay of Llandaff)

Lord Davies of Oldham

My Lords, perhaps I may emphasise to the House that we have a target rising time of 4 p.m. on Fridays. I recognise the difficulties and I quite appreciate the fact that, when introducing Bills, an extended time is allowed for the opening speaker. However, I hope that colleagues will be able to keep their speeches reasonably brief. We have two more Bills and an order to consider this afternoon. At the present rate of progress, we shall conclude our business at closer to seven o'clock than four o'clock.

1.12 p.m.

Viscount Simon

My Lords, the noble Baroness, Lady Finlay of Llandaff, is to be congratulated on her detailed description of this Bill, on the depth of her knowledge of the subject and on bringing this matter once more out into the open.

I should declare a personal interest in that I am severely asthmatic, and it is from the viewpoint of people with asthma that I speak. I am delighted that the National Asthma Campaign has provided me with some facts and figures in addition to those received from other interested parties.

Perhaps it is worth mentioning—in case certain noble Lords might have noticed my erratic behaviour—that when I see a noble Lord with pipe, cigar or cigarette in hand in your Lordships' House, I will about turn and go in the opposite direction—sometimes at the double, in order to avoid an asthma attack. For some types of tobacco smoke I need only minor medication, while for others I need very rapid medical attention and oxygen.

Smokers maintain that it is their right to smoke where they wish. I would agree with that. But it is also the right of non-smokers to be able to inhale air not polluted with tobacco smoke. People who are addicted to tobacco products are now in a minority in this country, but this minority is involved with the only product which, if taken in accordance with the manufacturers' instructions, can cause death. Those who boast that they have smoked all their lives and are still healthy at an advanced age are lucky to be alive. They are the exceptions.

Let me kill one myth: a no-smoking area is not a smoke-free place; it is an area where tobacco smoke is present, but smokers are not. A no-smoking area can be likened to having a non-micturating area in a swimming-pool.

Second-hand tobacco smoke is a killer. It has been estimated that at least 1,000 people die each year from exposure to second-hand tobacco smoke in the UK, yet some 3 million employees continue to have their health put at risk because of governments'—not only this one, but also previous administrations—continued reluctance to tackle smoking in the workplace. Yet a ban has been supported by the heads of all the British Royal Colleges of medicine and by the Chief Medical Officers for all parts of the UK.

Let us look at the workplace. People exposed to second-hand smoke for six or more hours per week are 50 per cent more likely to develop asthma, and cigarette smoke is the second most common asthma trigger in the workplace. There is no comparable carcinogen where such widespread and uncontrolled exposure of workers and customers is permitted. People suffering serious exposure to second-hand smoke at work are three times more likely to have time off sick, with the obvious financial penalties suffered by employers with non-productive staff. I suspect that the time is rapidly approaching when employers will be sued by non-smokers for loss of earnings and compensation where the employer allows smoking in the workplace.

Let us now look at how second-hand smoke affects people with asthma. Currently some 250,000 people in Wales receive treatment for asthma, and four out of five say that other people's smoke worsens their condition. Of this total number, 74,000 are children—enough to fill the Millennium Stadium in Cardiff. For many of these people, disease means daily anxiety about how to avoid an asthma attack, while for some it is a matter of life and death. No cure is currently available.

It is difficult to avoid second-hand smoke at work or at play, and asthmatics can develop more severe symptoms which add to the cost for the health service. Half of all people with asthma say that second-hand smoke can prevent them from socialising in pubs and restaurants. For those with more severe asthma, 44 per cent reported missing out when friends or family go out for a meal or for other entertainment. In my case, I cannot go to pubs, clubs, cinemas, theatres, concerts, restaurants or even use public transport in case I come across someone who will give me a severe allergic reaction in less than 20 seconds—in the worst scenario.

The international tobacco cartels routinely claim that smoke-free public places will result in a downturn in trade—they say by around 30 per cent—yet this has never been demonstrated. Conversely, New York saw an increase of 10,000 jobs in the hospitality industry in the months following a ban on smoking. Further, those public houses in this country that have banned smoking have reported increased takings. Let us not forget my earlier remark that smokers are in a minority and, therefore, in those places where smoking is not permitted, any smokers vacating their places in a pub are being more than taken up by non-smokers. The inference I should like to draw is that such a ban would not hurt Welsh commerce at all.

According to an opinion poll published last month in the Daily Telegraph, large numbers of smokers and non- smokers alike clearly support the idea that shops, restaurants, indoor shopping centres and the great majority of workplaces should become tobacco-free zones. They would favour legislation that would ban smoking where there was a clear risk that it could damage the health and well-being of others.

I should like to quote from the annual report of the Uttlesford NHS Primary Care Trust, covering the area in which I live: Smoking is still the biggest cause of preventable death in the UK. Smoking is very closely linked to the commonest type of lung cancer, and cancers of the mouth. nose, throat and oesophagus. It is a major factor in heart disease, peptic ulcer, bronchitis and emphysema, and contributes to the risk of bladder, cervical and other cancers. Smoking also causes changes to skin, particularly on the face where it causes coarse skin texture, premature ageing and wrinkling". I apologise for not addressing the substance of this Bill, but I thought that mentioning the problems experienced by many millions of people in this country due to the inhalation of second-hand tobacco smoke might be appropriate in this instance. I fully support this and any subsequent Bills that might be introduced at a later date. I wish it well and I look forward to being present when it receives Royal Assent.

1.19 p.m.

Lord Campbell of Alloway

My Lords, I shall try to comply with the request from the Front Bench opposite. By convention, this Bill has to be given a Second Reading, and even if someone were to divide the House, I should give it one. I would do so because that is the convention. But I shall oppose it at a later stage. So, having made my position totally plain, I shall shorten my remarks.

Perhaps I may begin on common ground. Let us put aside for one moment the medical evidence because it is a matter of dispute. The noble Viscount shakes his head but it is disputed. Let us not bother with that. Let us put it aside because I treat as common ground the fact that unavoidable inhalation of tobacco smoke in a place to which the public have access is unacceptable and noxious. I am sure that the noble Viscount agrees with that and I shall proceed on that basis. It is therefore totally irrelevant to consider in the debate why, what. when or where any noble Lord chooses to smoke or not to smoke.

Although I am a member of the Joint Committee on Human Rights, I do not speak for anyone other than myself. I do not speak to a brief; I speak to my notes, which I made before I read the report of the Delegated Powers and Regulatory Reform Committee, which no doubt the noble Viscount has read. The notes that I had made came to the same conclusions as those in the committee's report.

The substance of the Bill raises sensitive issues involving the consideration of conflicting claims of personal freedom and public health. The committee takes the view, therefore, that many of the details of a ban are so significant that it is inappropriate to leave them all to subordinate legislation. This goes to the heart of the essence of the argument. In the light of that conclusion, the committee stated that it would not consider it proper for the matter to be delegated to a Minister in this jurisdiction. Those are the fundamental issues; not the dispute as to the medical evidence.

Let me make one short point as to the merits of the Bill. The question is whether it affords an effective, proportionate and appropriate regime to prohibit what is noxious—that is, smoking in public places. But the Bill as yet does not specify the places to which it applies and to which the public has access for a variety of purposes. The fundamental objections are to the form in which a delegated power is granted to make regulations; to the creation of a contravention unless and until a request to desist has been made; and to the fact that a contravention is criminalised.

It is a draconian Bill. If a contravention is to be dealt with by the courts at all—the Government do not take that view; they prefer self-regulation and voluntary agreements made with the Minister—why should it be dealt with by the criminal courts? Why draft "imprisonment" in the Bill? That is the frightening, aggravating and unnecessary approach which we are told should not be there and will be removed in Committee. Your Lordships may come to the conclusion that the Bill is not well conceived in a proportionate or appropriate manner in which to achieve its intendment.

The voluntary approach of the Government is the effective and appropriate way to deal with the problem. The main concern relates to areas where people eat, drink, meet, socialise, sleep—in hotels, for instance—or avail themselves of transport services. But if you are going to codify, it will inevitably lead one into the complex task of compilation to produce a legally enforceable regime. Such an attempt will founder in confusion.

Provision must be made for smoking areas dependent on the nature and extent of the user, in context with ventilation and smoke extraction—that is the only way one can deal with smoking areas—and the entitlement of the four-fifths of the population who do not smoke and the one-fifth who do. But, equally, both have to be protected from passive smoking.

As to self-regulation, the Times of 2 January referred to the Secretary of State dealing with the voluntary regime of consultation that she is operating. The conclusion of the Government referred to in the newspaper that day was that self-regulation should always be the first preference.

Finally, how on earth can your Lordships entertain any form of constructive debate on a skeleton Bill such as this without sight of the draft regulations? All we can do is consider the trigger clause in the Bill which—the Delegated Powers and Regulatory Reform Committee is correct—confers legal efficacy on regulations made under absolute ministerial discretion, without guidelines or constraint, the contravention of which would constitute a criminal offence. It is a monstrous proposition such as I have never seen before. There would be no parliamentary scrutiny at Westminster; National Assembly procedures would apply.

I feel that if this Bill is to be amended—it appears to be unamendable—consideration should be given to not criminalising smoking without even a request to desist being declined. This not only criminalises the smoker but also the person who runs the restaurant. the railway and so on. The Bill as it stands is wholly disproportionate and should not pass this House.

1.29 p.m.

Baroness Gale

My Lords, I take this opportunity to thank the noble Baroness, Lady Finlay, for her kind remarks and for bringing this Bill forward. She will he aware that I have some reservations about it, which I have already spoken to her about.

I believe that smoking in public places must be stopped. I believe that if the Government were prepared to implement such a ban, it would meet with the approval of the majority of people in this country. The benefits that would accrue from such a ban would be great: the health of the nation would be improved, especially that of children, who suffer as a result of passive smoking.

I am pleased that when the Prime Minister launched the Big Conversation in Newport last November, he said that he hoped there would be a big conversation on smoking in public places. He posted the question: should local authorities have new powers to ban smoking at work and in public places? That is a question that we should all engage in, but I suggest that this important debate has gone on for a very long time. There is much evidence now to prove that smoking and passive smoking not only harm people's health but also kill.

The Government have done much to encourage people to stop smoking. The number of people smoking has almost halved over the past 30 years, but 120,000 people in this country die each year as a result of smoking.

Smoking is the primary preventable cause of class inequalities in healthy life expectancy. Smokers, on average, die 14 years earlier than non-smokers and often suffer from chronic ill health. Two thirds of smokers say that they want to give up. The Government have been active in this field, banning tobacco advertising and introducing free smoking cessation services. I wish they would now be bold and ban smoking in all public places in England and Wales.

I am not 100 per cent happy with the Bill before us. First, I would have much preferred it to be a Bill banning smoking in all public places in Wales and England—something which those of us who have been campaigning on this issue for many years could have wholeheartedly supported—rather than enabling the Welsh Assembly to have such a ban if it wishes to do so.

I am concerned about devolution issues here. I am not too happy about jumping the gun, as it were, with Westminster deciding which enabling legislation the Assembly should have without the Assembly requesting such a Bill. My understanding is that the Assembly did not include a wish to have a Bill in this Session. It has decided that other issues are of greater importance for this parliamentary Session.

Devolution, if it means anything, means that the people of Wales will decide for themselves. through their elected Assembly Members, which matters are of the greatest importance to them. The elected Members of the Welsh Assembly have decided to legislate for other matters in this parliamentary Session, and we should respect their wishes. I have no doubt, in terms of what the noble Baroness, Lady Finlay, was saying, that this matter has been debated in the Welsh Assembly and there is a genuine wish to have a ban in Wales. However, the Welsh Assembly has not requested that in this parliamentary Session. I believe devolution should be respected and we should allow the Assembly to come to Westminster and request the legislation that it wants, at its preferred time.

Tourism and the economy of Wales need to be examined if a Wales-only Bill is implemented. For example, with regard to businesses near the border of England, I can envisage a situation similar to that which existed in Wales over drinking on Sundays. Some counties were dry and some were wet. Those who lived in the dry counties would slip over the border on Sundays to get a drink. A similar situation would not arise if the ban applied to England as well as Wales.

Those are the two points about which I am really concerned. Apart from that, I wish the Government would take note of the Chief Medical Officer's report of 2002. In his report on passive smoking, he gives credit to the Government for the work that they have undertaken on smoking, but he was very concerned about the effect of passive smoking. He said: Comprehensive workplace smoking bans could reduce the estimated prevalence of smoking to 23% from its present level of 27%". He also published a list of recommendations, including that: Very serious consideration should be given to introducing a ban on smoking in public places soon", and that: Parliamentary buildings should become smoke-free and dates should also be set to achieve this". If the Government could at least start by taking up this particular recommendation, it would give them a great opportunity to set a good example to the rest of the country, at the same time protecting the health of all those who use the parliamentary buildings.

Would the Government also take note of the Royal College of Physicians? In a letter that I received from them recently, they said: The Medical Royal Colleges and their Faculties believe the time has come for legislation to make public places smoke-free. As doctors we see the daily consequences of smoking and passive smoking in this country. Passive smoking causes an estimated 1,000 deaths in adults each year; And it increases the risk of cot death, asthma, and lung infection and middle ear diseases in children". The letter goes on to say: We believe that everyone, smokers and non smokers alike have a right to freedom from tobacco smoke pollution. We also believe that employers have a duty to protect employees from harm. If all work places in Britain that currently permit smoking became smoke free over 300,000 smokers would stop smoking, and tens of thousands of lives would be saved". How much longer can the Government ignore such strong advice, which is backed up by so much evidence? Surely the case has been proven. The long-term benefits that would accrue from such a ban are obvious. I know the Government are keen on a voluntary ban; this works in some places, but it cannot be as effective as a total ban.

I ask my noble friend the Minister to give us some hope today that the Government are thinking along these lines. Can he at least say that very serious consideration is being given to the recommendation of the Chief Medical Officer of banning smoking in all parliamentary buildings, if only as a start to a much wider ban? They cannot keep ignoring such strong medical evidence for much longer.

Although I have reservations about the Bill. I am pleased that the noble Baroness. Lady Finlay, has given us the opportunity, once again, of debating this important matter, and I look forward to taking part as the Bill progresses through your Lordships' House.

1.38 p.m.

Lord Monson

My Lords, the Bill raises issues of great importance. Therefore, the fact that the Government have seemingly crammed too many debates on to today's Order Paper—if I may say so, with all due respect, to the noble Lord, Lord Davies of Oldham—should not unduly curtail our discussion of it.

I must declare a non-financial interest, as president of the Society for Individual Freedom and as a named supporter of the Freedom Organisation for the Right to Enjoy Smoking Tobacco, otherwise known as FOREST. So my views on the Bill can be fairly easily guessed. But although I am a smoker, albeit a light smoker, I have no personal axe to grind as far as this Bill is concerned. Despite having more than a dash of Welsh blood, unfortunately I very rarely find myself in the Principality—it is not on my beat, so to speak. Indeed. I worked out yesterday. rather to my astonishment, that I have not set foot on Welsh soil since the summer of 1976. Perhaps I ought to visit those beautiful mountains and coasts quickly just in case this Bill becomes law.

Of course, I am concerned to protect the liberties of all Her Majesty's subjects, wherever in the United Kingdom they may live. It is interesting to think that, if the referendum on Welsh devolution had taken place on the same day as the one for Scottish devolution— instead of three weeks later as the Government cunningly arranged—we would almost certainly not be having a debate on this Bill. In any case, we can all agree—smoker and non-smoker alike—that to find oneself in an unventilated, heavily smoke-infested area is disagreeable. There are ways and means of mitigating this, but I will return to those in a moment.

The question for the purposes of this argument is whether such an atmosphere is not merely disagreeable, which we all agree on, but harmful as well. Despite what has been said, there is certainly empirical evidence to suggest otherwise. The financial pages of the Sunday Telegraph on 11 January, discussing the pensions crisis, revealed that the Government Actuary's Department has recently published figures showing that life expectancy for older people is growing even faster than had been expected, to the great alarm and distress of annuity providers. Life expectancy for a 65 year-old man is now 10.58 per cent higher than had been predicted only two years ago. The Sunday Telegraph went on to suggest that today's massive rises in longevity can be attributed to the lifestyles of those brought up in the 1930s and 1940s, which were much healthier than anything before or since—the words "or since" refer to the current unhealthy generation which is obese as a result of eating too much junk food and not taking enough exercise. We should reflect upon the words "healthier than anything before or since".

One thing, above all, characterises those brought up in the 1930s and 1940s. We were passive smokers from the day we were born—indeed, in many cases, from well before we were born given that pregnant women were not then advised to stop smoking and very rarely did so. Most adults smoked in trains, buses, underground trains, cinemas, about 50 per cent of London theatres, taxis, private cars, shops large and small, lifts and telephone boxes. There were very few non-smoking compartments on trains because there was little demand for them. Only a few weirdos and fanatics in those days, such as Adolf Hitler, seriously wanted to ban smoking altogether.

Unpleasant though most of us as children found it to be, if passive smoking had really been harmful, my generation would have died out long ago. Of course, some of our contemporaries who actively smoked really heavily paid the price, alas. Three or four of my dear friends and relations who smoked in the region of 60 cigarettes a day died of cancer, emphysema or heart disease in their sixties or in one case fifties. However, I do not know any moderate or light smoker who suffered in that way, let alone any non-smoker. Moreover, three or perhaps four times as many friends and relations who were non-smokers died of cancers entirely unrelated to smoking in their fifties or sixties. I am sure that I need not remind your Lordships of the splendid Madame Calment of Arles, who smoked two cigarettes a day until the age of 116 and finally died at the age of 121 just a few years ago.

However, let us turn from empiricism to scientific scrutiny. The noble Baroness, Lady Finlay, in her interesting speech opening this debate said that harm from passive smoking was scientifically proven. I am afraid that not every scientist by any means agrees with her. In March 1998, after a study lasting seven years, the World Health Organisation conceded that the link between passive smoking and lung cancer was "not statistically significant". At worst, it might increase the risk of non-smokers getting lung cancer from one in 10,000 to one in 8,400.

In July 1999, our Health and Safety Commission admitted that, proving beyond reasonable doubt that passive smoking … was a risk to health is likely to be very difficult, given the state of the scientific evidence". In February 2001, Professor Sir Richard Doll, the first scientist in the world to suggest a possible correlation between primary smoking and lung cancer, declared: The effect of other people smoking in my presence is so small it doesn't worry me". In April 2002, the Greater London Authority—not an instinctively libertarian body I would have thought—following an exhaustive six-month investigation, and having taken evidence largely from anti-smoking organisations and from a few pro-smoking ones, finally rejected the idea of any further restrictions on smoking declaring that it was not easy to prove a link between passive smoking and lung cancer.

Finally, in May 2003, the British Medical Journal published the results of a Californian study involving no fewer than 118,000 adults over a period of no less than 39 years. About 30 per cent of them-36,500, I think—were non-smokers who were married to or lived with smokers, which is significant for the purposes of what we are discussing. The authors of the report found no significant link between secondhand tobacco smoke and either lung cancer or coronary heart disease. Asthma was not mentioned. However, I must say to the noble Viscount, Lord Simon, that by no means all asthmatics suffer as terribly as he obviously does—I entirely accept what he said. In fact, I know asthmatics who enjoy the occasional cigar or cigarette. Unconnected research in politically correct Sweden, by a toxicologist, endorses the findings of the California study.

As I said earlier, it would be crazy to deny that heavy concentrations of first and second-hand tobacco smoke in a confined area is unpleasant. However, the law of supply and demand and the normal functioning of commercial competition ensures that, when an affordable remedy becomes available, it will be employed. Luckily. an affordable remedy is at long last available. Powerful smoke extractors-cum-air purifiers, made largely in Japan or Scandinavia. have now been installed—for example, at London Heathrow, London Gatwick and Congress House which, as many noble Lords on the Government Benches will know, is the London headquarters of the TUC. A TUC spokesperson has declared proudly: This provides us with a smoke-free indoor solution for our workers". By all accounts, the installations have proved outstandingly effective. It goes without saying that a great many less well-funded businesses would install such devices if they could be certain that there would be no total ban on public smoking and that their quite heavy investment would not he wasted.

As I have said before, there is another almost cost-free method of cutting down smoke. In the Indian sub-continent, Malaysia and other Asian countries, ashtrays are normally filled with a layer of sand or, more frequently and effectively, a quarter of can inch of water. That ensures that cigarette stubs are extinguished immediately instead of smouldering away for up to five minutes, emitting heavily tar-filled smoke. It also makes ashtrays much easier to clean the next morning. How sensible it would be if businesses and organisations in Britain emulated their eastern counterparts.

Of course this is a well intentioned Bill. What the noble Baroness proposes is always extremely well intentioned. However, there is no conclusive evidence that a ban would seriously reduce fatalities or grave illnesses among non-smokers, and there are other much less illiberal means now available of mitigating the irritation caused by tobacco smoke in enclosed spaces.

1.50 p.m.

Lord Faulkner of Worcester

My Lords, I am pleased to join the others who have congratulated the noble Baroness, Lady Finlay of Llandaff, on introducing this short Bill, which is becoming increasingly interesting as the debate continues. Her record in promoting the cause of public health in Wales is exemplary, and her wish to introduce the Bill is a further demonstration of her commitment to that cause. I thank her for the nice things that she said about me at the start of her speech.

Like my noble friend Lady Gale, I should say at the outset that I would have preferred there to be a government Bill prohibiting smoking in public places anywhere in England and Wales. However. it is helpful to have the opportunity to take the debate forward today with this Bill, which I of course support.

There is no need to rehearse the arguments for measures to reduce the incidence of smoking. The Department of Health tells us that smoking kills 120,000 a year in Britain. It is the single most important contributor to avoidable deaths and disease among adults. Those facts have been known since the 1950s, despite the efforts of the tobacco industry to cover up the research and deny the findings for many years.

The new factor in the debate is the evidence of the damage done by environmental tobacco smoke, or passive smoking. The World Health Organisation's international agency research on cancer, to which the noble Lord, Lord Monson, referred, concluded that passive smoking causes lung cancer and increases the risk by between 20 per cent to 30 per cent. Prolonged exposure increases the risk of coronary heart disease by 25 per cent to 30 per cent. The heads of the 18 Royal Colleges and faculties, in their letter to the Times in November, estimated that 1,000 people a year died from second-hand tobacco smoke.

I do not know how much more evidence one wants to demonstrate that passive smoking is dangerous and that it kills. The denials that it has that effect are rather similar to the denials from the tobacco industry in the 1950s, the 1960s and the 1970s, which said that there was no link between lung cancer and smoking.

Opponents of measures to curb passive smoking often argue that people have a choice whether to expose themselves to other people's tobacco smoke and that, as they have that choice, new restrictions are unnecessary. Let us consider that argument for a moment. While I may have a choice whether to go into a smoke-filled pub, I would not have that choice if I had to work there. The evidence suggests that bar staff take in two to three times more tobacco smoke from passive smoking at work than they would if they lived with a partner who smoked.

I would not have that freedom of choice if I were a child who was taken into a pub by an adult. Some noble Lords will remember that I attempted to move an amendment to the Licensing Bill that would have required pub landlords to ensure that the areas or their premises which that Bill was opening up to children would be smoke-free. The Royal College of Physicians has said that the total cost to the NHS of treating childhood illnesses caused by passive smoking is more than £400 million. Each year, 17,000 children under five are admitted to hospital in the United Kingdom with respiratory illnesses caused by exposure to tobacco smoke.

My amendment to the Licensing Bill got nowhere because speakers from both Front Benches claimed that the so-called public places charter introduced by the hospitality industry was tackling the problem of passive smoking in bars and restaurants. Many of us are deeply sceptical about the effectiveness and commitment of the hospitality industry to increasing choice for its customers. The charter allows establishments to stick a notice on the door of the pub saying "smoking throughout", and then claim that that establishment is complying with the charter.

The argument about ventilation to which the noble Lord, Lord Monson, referred, is answered by the Royal College of Physicians, which says that four years of self-regulation have achieved no change in smoking policy in about two-thirds of pubs and segregation and/or ventilation in the remainder are policies that are ineffective. It is not possible to remove all particles of harmful content from air by ventilation because 85 per cent of second-hand smoke is in the form of invisible odourless gases. Just because the atmosphere is not visibly smoky does not mean that the air is safe. Segregation of smoking and nonsmoking areas may appear to reduce the problem but it does not stop tobacco smoke drifting in from the smoking to the non-smoking area.

The noble Lord, Lord Campbell of Alloway, referred to the article in the Times on 2 January, and the comments made by the Secretary of state, Tessa Jowell. Yes, it is absolutely true that the Government's position is to try to rely on voluntary agreement. However, if he had gone on to read rather more of the article, he would have seen that the Secretary of State is reported as being about to summon bar and restaurant chain bosses for talks, to try to reach a deal which would greatly expand the parts of bars and restaurants that are smoke-free and restrict smoking areas". I wish her well in those discussions.

Lord Campbell of Alloway

My Lords, of course I have read the whole article: I have a copy of it. The Secretary of State is carrying on a voluntary discussion with restaurants and other people. Under extant law, inspectors can go round to do things, and she is seeing how that is going to work. That seems a reasonable approach

Lord Faulkner of Worcester

My Lords, I am grateful to the noble Lord for that intervention. Another way in which to interpret what the Secretary of State is doing is to say that she is giving those people one last chance, and that if they do not deliver something meaningful in the way of smoke-free accommodation in the hospitality industry, the Government will be obliged to bring in the sort of legislation that I and many on this side of the House would like to see. That is the sort of legislation that is increasingly being adopted in places such as Ireland, Finland, Norway, New York, California, Canada, Australia, Holland and many others. They are banning smoking from all public places, including bars and restaurants.

It may come as a surprise to some noble Lords who oppose the Bill to hear that I have some sympathy with smokers, and with ex-smokers who apparently still like to inhale other people's tobacco fumes. The noble Baroness, Lady Trumpington, was in her place earlier. She said in an intervention that she no longer smoked but that she liked breathing in other people's tobacco smoke. I believe that people should be given the freedom to live their lives as they wish, provided that the exercise of that freedom does not interfere with the comfort. security and health of others. It is in that area that I take issue with the Freedom Organisation and with the arguments expressed by the noble Lord, Lord Monson. It is the proviso that it does not interfere with others that is at the heart of the passive smoking debate.

Smokers cannot be regarded as a persecuted minority, and certainly not in this House, where they are still successfully obstructing moves to make this a smoke-free workplace. As a result of that, our health and safety standards are now miles behind best practice among employers elsewhere in the country. Given the great care that we take to make our facilities as inclusive as possible for our colleagues with physical disabilities, I find it monstrous that my noble friend Lord Simon is denied access to most of the refreshment facilities in this place as a consequence of his acute asthmatic condition. I am also appalled at how our refreshment department staff, who will never complain, are subjected to the smoke of Peers who puff away a few feet away from them in the Bishops' Bar.

Various solutions have been suggested for dealing with the problem of pollution caused by smoking. The Lancet, in a very radical approach, proposed that tobacco should become a banned substance. That is not very realistic, although I suspect that if tobacco were to arrive on our shores for the first time this year, given all that we know about the devastating damage that it inflicts on people's health. it would never get approval as a retail product.

Another approach would be to restrict tobacco smoking to consenting adults in private. That is the way in which parts of the United States are developing.

The third approach, which is the one that I favour, is to enforce genuine segregation of smokers from non-smokers. That would still allow a smoke-free environment to be the norm, certainly in all places of work and in public places as proposed in the Bill, but it would also allow establishments to provide an enclosed smoking area if they wished, of the sort that one increasingly finds at airports around the world.

I can make just one small claim to helping the cause of public health in Wales—I shall conclude with this. if I may—and that is in my role as a non-executive, unpaid public-interest director of the Millennium Stadium in Cardiff. I persuaded my colleagues on that board to adopt a smoke-free policy in all spectator areas. I was told by opponents that it would not work because people would ignore it; that stewards would he abused if they tried to enforce it; and that, even if the locals were prepared to refrain from smoking, foreigners such as the French and the Germans coming to support their countries' teams in the stadium would take no notice.

None of that has happened. The smoking ban is to be strengthened, and it is enforced not by officious stewards, but by the peer pressure of non-smoking fans who do not want themselves or their children to breathe in other people's tobacco smoke. The campaign to draw the attention of the public to this policy will be intensified as the Six Nations tournament develops in the next few months.

Rugby fans who attended any of the Rugby World Cup matches in Australia found that every stadium was entirely smoke-free and that a number of the matches were sponsored by tobacco cessation campaigns. That is where we must get to in Britain. That is where the noble Baroness wants us to go to in Wales, and I am happy to support her.

Lord Monson

My Lords, before the noble Lord sits down, he commended the Australian practice of banning smoking in stadiums, which are open spaces, not enclosed ones. In Finland, which he cited, there is no bar on smoking at a table outside a café or on the deck of a ferry. Presumably he wants to go further than Finland and ban smoking in exterior public spaces as well as interior ones. Is that correct?

Lord Faulkner of Worcester

My Lords, my feeling is that if people are in proximity with others in an enclosed area, not necessarily with a roof or indoors, but in a sports stadium, those people are entitled to watch the event in an entirely smoke-free environment. That is what they did in Australia for the World Cup and that is what they do now in Cardiff at the Millennium Stadium.

Lord Campbell of Alloway

My Lords—

Lord Livsey of Talgarth

My Lords, I believe that the noble Lord, Lord Faulkner, has finished his speech and that it is my turn to speak. If I may, I shall continue.

Lord Campbell of Alloway

My Lords, I am on my feet.

Lord Davies of Oldham

My Lords, I think that the noble Lord, Lord Faulkner, has resumed his place. So we should move on to the next contribution, from the noble Lord. Lord Livsey.

Lord Campbell of Alloway

My Lords—

2.3 p.m.

Lord Livsey of Talgarth

My Lords, I think that the advice has been given.

I should like to congratulate the noble Baroness. Lady Finlay, not only on introducing the Bill but also, as the noble Lord, Lord Faulkner, said, on the great work that she has done for health in Wales. I believe the Bill is thoroughly consistent with that work. I should also like to thank the noble Lord, Lord Faulkner, for the work that he has done in relation to the Millennium Stadium, which I attend frequently. Given the recent exchange, I should point out that the Millennium Stadium rule applies whether the roof is closed or open. Both the fans and the stewards seem to live with that arrangement perfectly well.

I am giving away my generation a little by saying that, in the latter half of the Second World War, we used to ask the American troops, "Have you got any gum, chum?" What we got in fact was not only gum but free American cigarettes. I can vouch for the fact that by the age of 10 I had smoked five different brands of American cigarettes. I discovered only recently that those were given free to the American troops to pass on to us so that another generation could smoke. Indeed, I smoked on and off, not very heavily at all, until the age of 18. However, when in further education I came across the son of a GP who consistently lit cigarettes from the butt and went on like that all day. I asked why he smoked so much and he said, "I have just done national service where we got a five-minute smoke break which everyone took". So when I was called up I resolved not to do it and have never smoked since. It is a habit and an addiction.

I believe that the Bill enables the National Assembly for Wales, if it wishes, to introduce simple secondary legislation to prevent smoking in public places. As the noble Baroness, Lady Finlay, said, the power is equivalent to local authority by-laws. I do not see why the National Assembly cannot have the power to bring in such legislation in its own country.

It follows that parts of Bills and particularly whole Bills—primary legislation. which I think addresses the point made by the noble Lord, Lord Campbell—such as the one establishing the Children's Commissioner for Wales, a recent NHS Bill, parts of Education Bills and others on local government, have been considered by both Houses at Westminster. It is arguable whether those matters should be within the Assembly's province, but, as I said, they are not. However, as the noble Baroness, Lady Finlay, made clear, this is not primary legislation.

Lord Campbell of Alloway

My Lords, with respect—I know that the noble Lord does not intend to do this—that is not a representation: it is not comparing like with like. He is comparing a series of Bills. Those Bills are in a wholly distinct and different form from this skeleton Bill reported on by the Procedure Committee. It is no use trying to talk and confuse because we will get nowhere. There is a fundamental distinction, and the Government understand it.

Lord Livsey of Talgarth

My Lords. the noble Lord. Lord Campbell, makes an extremely helpful contribution. He made the same point as I was making. I was referring to primary legislation, whereas this Bill is entirely different: it refers to regulations and allows the National Assembly for Wales to make such regulations.

The noble Baroness specified the offences in the Bill that will be dealt with only by magistrates' courts anyway. That addresses some of the concerns of the Delegated Powers and Regulatory Reform Committee. The key point is that the Bill enables the National Assembly for Wales to introduce secondary legislation. Whether it wishes to do so is an open question although we have some indication of the views of the members of the National Assembly on this subject. Nevertheless I point out that the Richard Commission is sitting at the present time and is likely to report soon, certainly before the Bill completes its passage through Parliament. It will be interesting to see what the commission says about the matters that we are debating.

Banning smoking in public places is the single most effective policy to prevent ill health. It reduces pressure on the NHS, reduces the costs of healthcare and discourages smoking. A public ban would tackle and reduce heart disease and cancer—the two biggest killers in Wales and, indeed, in the rest of the United Kingdom. However, we are talking about Wales in this context. Passive smoking, which poses a lethal health risk, would thus be avoided. I say just two words—"Roy Castle". We all know about his case and the effects that passive smoking had on his health which led to his eventual death. However, we shall ensure that provision is made for smokers.

As a Liberal I recognise that freedom for people to smoke should he a right. However, a person's right to smoke must not impact on the health of others who constitute the majority—four-fifths—of the population who choose not to do so. In that respect controlling where people can smoke is absolutely crucial. Clearly, with 7,000 smoking-related deaths every year in Wales a massive preventive step forward would be made if smoking were banned in public places in Wales. I believe that the National Assembly for Wales must at least have the right—which is what this Bill enables—to make the decision whether or not it wishes to introduce the provision in Wales.

2.10 p.m.

Lord Henley

My Lords, I start by offering an apology on behalf of my noble friend Lord Roberts of Conwy who is unfortunately detained in north Wales and is therefore unable to respond to this fascinating debate.

Although ostensibly this Bill is about smoking, it is the constitutional implications that I wish to address and on which I wish to concentrate. All matters relating to smoking have been well covered already this afternoon. Speaking from the Opposition Front Bench, and this being a Private Member's Bill, I certainly have no intention whatever of opposing it. I speak personally on this occasion rather than as the Official Opposition Front-Bench spokesman. Speaking personally I have very strong doubts whether a Bill such as this—whether it was or was not requested by the National Assembly for Wales—should be introduced by means of a Private Member's Bill. Those doubts are based on a number of grounds.

First, in the main, I suspect that it is desirable that when we delegate powers to the National Assembly for Wales, government Bills are quite simply more appropriate. I understand that the only such Bill the Government have supported so far is the Public Audit (Wales) Bill, which I understand has received a Second Reading in this House. I am advised that a number of other Welsh Bills may have been considered for inclusion in the Queen's Speech but this was not among them. Therefore, I presume that Her Majesty's Government have ruled it out as a candidate for the moment.

Secondly, I understand that there is a commission in Wales under the very eminent chairmanship of the noble Lord, Lord Richard, looking at the balance of powers between the Assembly and Westminster. That will report in due course to the Welsh Assembly. The Welsh Assembly will then, no doubt, feed it through to us. At that moment it might be right for a proper debate to take place on what powers should be further delegated to Wales, if that is considered appropriate. It would be better to wait for the report of the noble Lord, Lord Richard, rather than to pre-empt it.

Thirdly, I believe it really is offering the opportunity to the National Assembly for Wales to bring in what are really very draconian powers—powers that need to receive very detailed scrutiny indeed, whatever our views on the merits of the Bill. That scrutiny will be very difficult to achieve if, as I think my noble friend Lord Campbell of Alloway put it, the Bill is virtually impossible to amend.

That brings me to my fourth point concerning the wideness of the powers that are being sought. To take just one example, the Bill seeks to allow the National Assembly for Wales to make provision to prohibit smoking in "a public place". "A public place" is left to be defined by the National Assembly for Wales. I expect that that is something which Parliament itself might want to consider. What, for example, is a public place? Where does it begin and end? Does it include the top of Snowdon, or what? Unamendable the Bill may be, but in Committee we might seek to explore just some of those issues.

The same could be said of Clause 2(1), which deals with creating an offence. The noble Baroness said that she would seek to amend the Bill in Committee and limit the extent of what powers could be taken, in terms of what sort of offence and penalty could be created. If she is minded to do that, we should all assist her and further explore definitions of the offence and penalty. That may be a matter to consider in Committee.

The third report of the Delegated Powers and Regulatory Reform Committee was referred to by both my noble friend Lord Campbell and the noble Baroness, Lady Finlay, who wishes the committee to reconsider its advice. I suppose she would want it to do that, in that it took a fairly strong view, saying: We take the view, therefore, that even many of the details of a ban are so significant that it is inappropriate to leave them all to subordinate legislation. In the light of this general conclusion, we believe that it is for the House as a whole to decide whether to agree to delegate powers, for Wales, to the National Assembly which the Committee would advise were not appropriate to be delegated, for England, to a Minister". We therefore have to consider the matter very carefully indeed.

I agree emphatically with those sentiments expressed by the committee. There are major issues at stake relating to personal freedom. They are very important, and the committee made it clear that they would not be appropriate for delegation to a Minister in England. The Bill may not be a Henry VIII provision in the strict meaning of the phrase, but it certainly delegates much that I believe should properly be done here in Westminster.

For those reasons, I hope that the noble Baroness will understand if I have to say that, although I have no intention of opposing the Second Reading. I do not think that it is either necessary or desirable that she pursues the Bill. I hope very much that she will withdraw it at some stage, and certainly that Her Majesty's Government will not give it any encouragement.

That said, I must make it clear that, although I do not support the Bill, or for that matter any proposed ban on smoking in public places, I am not unsympathetic to what the noble Baroness desires to see; that is, a reduction in the incidence of smoking. My understanding is that we have seen a fairly considerable reduction in the number of smokers over the years. We have seen a growth in the number of smoke-free areas in restaurants and, despite what the noble Lord. Lord Faulkner, said, they feel much cleaner and less smoky than they were. We have actually seen a growth in smoke-free areas in this House. I now find it quite extraordinary that, when I first came here, we all smoked in all parts of the Library as a matter of course. We now realise that that was rather an extraordinary state of affairs, and it is declining.

Lord Faulkner of Worcester

My Lords, my strictures were aimed primarily at pubs, where progress on implementing the Public Places Charter has been pathetic. Progress in this House has been slow but is consistent. However, there is a long way to go so far as the refreshment outlets are concerned, which is why I referred to my noble friend Lord Simon, who is effectively barred from large numbers of areas where the noble Lord and I will go quite cheerfully.

Lord Henley

My Lords, I feel sorry for the poor noble Viscount, Lord Simon, being effectively barred from many of those areas. However, as the noble Lord knows, quite a few areas of the Refreshment Department are now smoke-free, and the same is true outside in restaurants and other such places. I accept what he says about pubs—that progress might have been slower there—but I still believe that the policy pursued by this Government and previous governments of a gradualist approach involving persuasion and other methods is preferable.

That approach has achieved very great results. In passing, I would be grateful if the Minister could give me some figures on the declining incidence of smoking over, say, the past 25 or 50 years. I believe that something like a quarter of the population now smoke, and I am sure that that figure would have been very much greater 25 years ago. I suspect that the figure will continue to decline, particularly if the Government continue to pursue that policy. I suspect that the resources that would have to be put into enforcing such a Bill would be far better directed to a continuation of the voluntary approach.

It will therefore be clear that I am not, if I may put it in this way, a friend of the Bill, and hope very much that the noble Baroness pursues other means of reducing levels of smoking. Having said that. I have no intention of opposing its Second Reading and look forward with others to seeking further amendment to it in Committee.

2.20 p.m.

Lord Evans of Temple Guiting

My Lords, let me begin by echoing the thanks of other noble Lords to the noble Baroness. Lady Finlay, for bringing forward the Bill. We have had an interesting debate with a large number of helpful views expressed. It is a short Bill. but one which touches on a number of important issues and I welcome the opportunity it has provided for us to debate some of those issues.

The Long Title of the Bill, to: Prohibit the smoking of tobacco by any person in Wales while in a public place", is actually misleading, as the Bill does not in fact do that. What it seeks to do is to provide the National Assembly for Wales with powers to prohibit smoking in public places, to define those places and to set the penalties for non-compliance.

Those would he sweeping powers. The Bill will strike a chord with those who say about smoking in public, "there ought to be a law against it". It may also generate a wide public debate about the role of the Government and the Assembly. There will be those who think the Bill goes too far and those who feel it does not go far enough. We have heard those views this afternoon and there would be practical issues to be resolved, not least about enforcement of any such offences under the Bill and about the costs of implementation. The Bill provides a valuable opportunity for protagonists of all positions to contribute to the debate on such an important subject and I look forward with interest to following future debates.

Earlier this week, the Scottish Executive announced plans to engage in a major public debate on smoking in public places, while one of the many issues that the Labour Party has raised in its Big Conversation initiative, as we heard from my noble friend Lady Gale, is whether local authorities should have new powers to introduce smoking bans at work and in public places. On the Government Benches we believe strongly that people should be protected from the harmful effects of other people's smoke. But we have taken the view that simply outlawing the practice of smoking in public places would not be an appropriate or an effective way to secure that protection. We have looked carefully at bans and legal restrictions introduced in other countries, but do not think that kind of action can be justified while it is possible to make substantial progress in other ways. We favour, and have promoted vigorously, action at a local level to both raise awareness of the dangers of second-hand smoke and encourage the adoption of voluntary practices to eliminate or reduce smoking. We have funded the UK's first ever TV campaign to raise public awareness of the risks to children of second-hand smoke and we have introduced new health warnings on cigarette packs to highlight the dangers of secondhand smoke.

The measures taken by the Government and by industry partners are having an impact and I am sure noble Lords on all sides of the debate will acknowledge that. In particular, progress has been made in eliminating second-hand smoke risks in the workplace and on public transport. For example, the number of smoke-free workplaces has risen from 40 per cent in 1996 to 50 per cent today. The noble Lord, Lord Henley, asked for some figures. I have some here and would be happy to send them all to him, but I cannot read them all out today. However, I shall pick out some interesting statistics. In 1974, 45 per cent of the population smoked, but that fell to 27 per cent by 2001. More than 4 million people gave up smoking during those years, but there are still 11 million smokers in Britain, so we need to reduce that figure.

Another area where further progress would be welcome is in the hospitality sector, which has been mentioned already. The Government have worked closely with the hospitality trade to develop a public places charter designed to provide customers with clear information on the type of smoking policy operating in a particular establishment. Given that, as was pointed out, over the past few years we have not made the progress that we would have wished, my right honourable friend Tessa Jowell is holding further discussions with the hospitality sector.

In Wales—I remind noble Lords that the Bill is drafted so as to apply only to Wales—the Assembly has also been active. It has introduced initiatives to discourage young people from starting smoking and to encourage and support smoking cessation. It is promoting smoke-free public places and is engaged in a smoke-free community project that builds on work done by local authorities. In addition, it is taking action to raise awareness of the risks associated with second-hand smoke.

The noble Baroness, Lady Finlay, reminded us that in January 2003 the National Assembly for Wales called on the Government to provide it with powers to ban smoking in public places in Wales. That proposal did not originate with the National Assembly Cabinet, which presents its proposals for primary legislation to the Assembly each year. It did not include a Bill to ban smoking in public places in Wales in its bids for the 4th Session, which the Assembly voted on in March last year. However, the Assembly Cabinet certainly passed on the Assembly's wishes to the Government and asked us to consider them. We reflected carefully on that request and concluded that the introduction and maintenance of smoking policies in relation to public and work places was a matter for local management, acting in response to the demands of staff and customers.

This is an important subject and it is one that the Government take seriously. That is why we have adopted, and continue to strengthen and pursue, the policies that I outlined earlier.

Returning to the Bill, I must say that I have reservations about its drafting. I believe that the noble Baroness, Lady Finlay, and other noble Lords will acknowledge that further work is required before it can be regarded as technically sound. I mention, in particular, the Bill's untrammelled reference to "a public place"—a point raised by the noble Lord, Lord Henley—which would face the Assembly, and possibly the courts, with a very difficult decision as to the scope of the powers conferred.

I also ask the noble Baroness to reflect on whether it would be appropriate to grant the power to create a criminal offence only in Wales. I note also—a point referred to by the noble Baroness, Lady Finlay, and the noble Lords, Lord Campbell of Alloway and Lord Henley—that the Delegated Powers and Regulatory Reform Committee of your Lordships' House has observed that the House should consider whether to delegate to the National Assembly for Wales powers which it was advised were not appropriate to be delegated to a Minister for England. The noble Baroness may also feel that reflection is warranted on the penalties suggested and the practical problems of enforcement. particularly in border areas. There is also a question about the costs of enforcement.

I do not wish, on behalf of the Government, to be overly critical of the noble Baroness's Bill. I consider it to he a valuable contribution to the public debate that we want to encourage on this important issue. Smoking is a subject that has aroused strong feelings at all levels in society over many centuries, often most strongly on the part of those who share the view of King James I, who famously defined smoking as: A custom loathsome to the eye, hateful to the nose, harmful to the brain, dangerous to the lungs and in the black, stinking fume thereof, nearest resembling the horrible Stygian smoke of the pit that is bottomless". In conclusion, I again pay tribute to the noble Baroness, Lady Finlay, for bringing forward the Bill and to all noble Lords who have contributed to this afternoon's debate.

2.30 p.m.

Baroness Finlay of Llandaff

My Lords, I am most grateful to all noble Lords who have spoken today and I am particularly grateful to the Minister for his excellent quote at the end of his speech. I want to address the issues as they arose, because I believe that is the easiest way. I recognise the problem of time constraints for the staff of the House on a Friday.

We have had some very interesting and wide-ranging contributions. I shall pick up on the health issues highlighted by several noble Lords. The noble Viscount, Lord Simon, spoke of being an asthma sufferer and we are extremely glad that he is still alive and with us to contribute to the debate. I do not believe that the health risk that he so clearly illustrated, and that he and many others in the country face on a daily basis, should be underestimated.

The noble Baroness, Lady Gale, has made a plea for the Bill to extend across England and Wales. She is aware at first hand of the appalling morbidity and mortality that there is, particularly in the Welsh valley areas, due to those who smoke. During the war and in the years afterwards cigarettes were handed out. When I was a child it was fashionable for young women to smoke because people were blissfully unaware of the problems.

The reasons that some of us have managed to live to our current ages despite being exposed to smoke, is that we have had better nutrition and better sanitation.

Lord Campbell of Alloway

My Lords, on a point of clarification, would the noble Baroness agree with the noble Lord, Lord Faulkner of Worcester, and myself that there should be segregated areas and that the area segregated for non-smokers should be free of smoke and, within reason, the area segregated for smokers, like the punishment room in this House, should also be isolated.

Baroness Finlay of Llandaff

My Lords, I am most grateful for that early intervention from the noble Lord. I intend to touch on that later in my speech. Perhaps I may hold him in suspense for a little longer.

I would love to see the Bill cover the whole of the UK, but I am a little concerned that Wales may wait for a very long time for the legislation, rather than being allowed to storm ahead of England, as the Assembly has already debated. All the evidence from a majority of people in Wales is that they want to do that. There will always be a minority who do not want any change of any kind in the interests of anyone other than themselves.

I recognise, as the noble Baroness, Lady Gale, highlighted, that this was not requested in this Session of Parliament, but it was debated and I had some very helpful discussions with the Minister for Culture, Sport and the Welsh Language in Wales this week. There is a persistent wish to have this legislation. Not all of it needs to come into force in one go or at great speed. The powers that I have outlined in the Bill allow the Assembly to pace both the areas where they would implement the provisions and the timing. I shall return to that point.

The noble Baroness, Lady Gale, highlighted the tourism issue, which concerns particularly those areas along the border. The Assembly would have the ability to phase in provisions, through negotiation with the industry, at a rate that was suitable. I do not believe that there is evidence that it would decimate the tourism industry, particularly in the Wrexham area.

I turn to the issues raised by the noble Lord, Lord Campbell of Alloway. There is certainly dispute over the medical evidence in just about every single area one could think of. Data are subject to statistical analysis. However, there was an excellent analysis of all the papers in the New England Journal of Medicine; and there has been extensive debate in the medical press about the statistics for different studies and the size of the impact of confounding variables. The paper referred to in the BMJ may well have underestimated—because of confounding variables—the effect. That is why it did not reach statistical significance on analysis.

However, there is a consistent trend in all the studies—even those that have not reached the P value of 95 per cent confidence interval. Primary smokers decline when one decreases the ability for the occurrence of passive smoking. It has been estimated that in Finland there has been a 10 per cent fall overall. So I would dispute the impact of a ban on smoking.

Responsibility for and enforcement of a ban would lie at local level. We already delegate responsibility for the licensing of premises. We certainly prosecute people who sell liquor on unlicensed premises and those who sell liquor to under-age people. Such decisions are taken at a local level. I ask only that the Assembly be allowed to take such decisions for Wales.

I dispute that the provision is draconian in its outlook. The Assembly has the power to determine regulations for children in foster care. I suggest to the noble Lord that that has an enormous impact on the children; and that the results of fostering have such an enormous impact on society—whether it goes well or badly—that the existing powers of the Assembly have a much greater impact— generally adverse—than any powers it might be able to exercise under the Bill. Voluntary measures have certainly failed.

The tobacco industry's income fortunately is falling. That was highlighted in the excellent report by the Chief Medical Officer, referred to by the noble Baroness, Lady Gale. There is very powerful evidence in the chapter on passive smoking; indeed, the report's endorsement is lead by the president of the Royal College of Physicians.

In general, before legislation is passed by Parliament at Westminster, I would question whether this House always has sight of regulations that will be made as a result. The Assembly has responsibility for public health. It is only within that remit that my Bill proposes that it should have its powers. The question of providing a criminal penalty I suggest is no greater because of the differences in one's ability to determine—for example—licensing over the sale of alcohol in different premises.

I would love to welcome the noble Lord. Lord Monson, to Wales on a visit that is long overdue. We have a wonderful country. I appreciate his confidence in my intention on bringing the Bill. Perhaps I may reassure him that I am happy for him to smoke wherever he wants to, providing he does not make non-smokers share his downstream and exhaled toxins. Even if he comes to Wales, even if my Bill passes and even if the Assembly implements bans, I would let him smoke outside my back door. He would be most welcome and I should entertain him to dinner.

As for freedoms, the Assembly is the elected democratic body. As a person living and working in Wales, I have spoken to many people from all walks of life. Smokers and non-smokers alike want the Assembly to have the powers to make a difference. Sadly, the voluntary measures that the Government have tried so hard to implement have not worked. The unions have told their porter and security members on hospital premises that they should not tackle people smoking in designated no-smoking areas and even underneath no smoking signs because those who have tackled smokers have felt threatened. They have felt physically threatened and certainly have been verbally threatened.

The noble Lord, Lord Faulkner of Worcester, has been extremely generous in his comments. I appreciate them enormously. On behalf of everyone in Wales, I also greatly appreciate what he has done to make the Millennium Stadium such a delightful place to go to—delightful because people do not smoke under one's nose and children can be taken there safely.

I would just ask those noble Lords who oppose the Bill and who question the evidence whether we are really to wait 40 years to discover whether 10 year-olds who are at present subject to passive smoking are still alive to convince some that what is their pleasure may be someone else's death sentence.

Lord Campbell of Alloway

My Lords, perhaps I may politely tell the noble Baroness that what we usually do, and have done for more than 20 years, in a situation such as this, especially when we are asked by the Government Front Bench, is to thank noble Lords for what they have said—even the ones with whom we do not agree—and sit down. This is not the time to start another argument. The noble Baroness has the whole Bill ahead of her; we have a lot of Bills ahead of us; other Members of the House are waiting in the Corridor on a Friday—before going off to hunt if they can get there.

Baroness Finlay of Llandaff

My Lords, in reply to the noble Lord's intervention, I ask him whether there is any proposal to push the Question to a vote. If not, and if I may negotiate with the Government Front Bench and discuss matters, as the Minister so helpfully described, to ensure that my Bill is put in a better form—I appreciate the help that I have been given both by the Government in this House and by Members of another place—I will certainly not reiterate and answer some of the points that have been made. I am grateful to receive that reassurance from the House.

On Question, Bill read a second time, and committed to a Committee of the Whole House.