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Health Bill

This group of amendments deals with exemptions from smoke-free legislation. I remind noble Lords that the Bill will give the Secretary of State for Health the power to make regulations to provide for exemptions from smoke-free legislation and that any regulations made will be subject to the affirmative resolution procedure. Clause 3 takes the general power to make such exemptions. This power will primarily be used to exempt premises that act as an individual’s dwelling or are clearly similar private space, whether this is on a permanent or temporary basis. Our intention is that these kinds of establishments should have designated rooms where smoking will be permitted and otherwise have common areas smoke-free. Subsection (5) gives the power to specify in regulations conditions for any designated smoking rooms. It will also be necessary to use this power to make a small number of specific exemptions for other, what one might call unusual premises, such as tobacco testing facilities to test the harmful effects of tobacco smoke. This general power ensures that we can make provision for these kinds of special cases, although subsection (2) sets out the principal areas where we intend to make such exemptions. Subsection (3) specifically precludes any exemption being made for licensed premises and qualifying clubs licensed under the Licensing Act 2003 and operating under a club premises certificate. In other words, it means that all membership clubs and places such as pubs, bars and nightclubs will be entirely smoke-free. We are deliberately not listing all the places that will be exempt from smoke-free legislation in the Bill. It is important that we retain flexibility to change the exemptions in the future if, for example, we find that a place that ought to be exempted under the European Convention on Human Rights has not been included. If we needed to amend primary legislation to do that, there could be lengthy delays while we waited for parliamentary time. I reiterate, however, that any exemptions made under Clause 3 will be tightly defined in regulations, and all exemptions will be set out in detail in draft regulations, on which we will consult. The Government are committed to conducting a full public consultation on regulatory proposals for exemptions, in addition to requiring draft regulations on exemptions to be passed through the affirmative parliamentary route. I turn now to the specific amendments in this group. Amendment No. 11 seeks to remove Clause 3(2), which provides the power to make exemptions for premises where a person has his home or is living, whether permanently or temporarily. I have to say that I was rather surprised by this amendment, given the other amendments tabled in the noble Lords’ names. I do not believe that this amendment is desirable, however keen we may be to limit exposure to the harmful effects of second-hand smoke. Smoking remains a legal activity, and we are not seeking to legislate against people smoking in their own private space. Not only do we believe that that is the right approach, but we are also mindful of our obligations under the European Convention on Human Rights on the right to respect for private life. Amendment No. 12, in the names of the noble Lord, Lord Clement-Jones, and the noble Baroness, Lady Barker, would change the list of examples in the subsection, so that it specifically excluded hotels, care homes, prisons and other places where persons may be detained. These are all areas whether the Government believe limited exemptions should be allowed, as they act as a person’s permanent or temporary home. I appreciate that there are concerns about how workers and non-smoking residents in these places can be protected. I assure noble Lords that conditions and limitations will be linked to any exemptions provided primarily to best protect others from second-hand smoke exposure, whether they are other people who also call the premises home or people for whom the premises is their workplace. Those conditions are likely to limit smoking to specific rooms within a premises that have been designated for smoking by management, together with other conditions, which are likely to be similar to those contained in Scotland’s smoke-free legislation, including that, first, any room for smoking is to have a ceiling, solid floor-to-ceiling walls and a closing door; secondly, that any room for smoking is to be clearly marked as such; and thirdly, that any room for smoking is not to have a ventilation system that ventilates from the room where smoking may occur to any smoke-free parts of the premises. Clause 3(5) provides the powers to provide exemptions only when certain conditions are satisfied. Apart from specifically designated rooms, premises such as hotels, adult care homes, adult hospices and prisons will be required to be smoke-free in all common areas in order to protect people from exposure to second-hand smoke. With regard to Amendment No. 13 in the name of the noble Earl, Lord Howe, we have no intention of making exemptions for hospitals. Indeed, the Government committed, in the Choosing Health White Paper, that all NHS hospitals and other buildings would be smoke-free by the end of this year. However, we are considering the specific issue of smoking in mental health units. If smoking is allowed to continue in these places, we envisage imposing conditions that would limit smoking to specific rooms designated by management, as described in relation to the previous amendment. We will certainly reflect on the points made by the noble Earl in his remarks. Amendment No. 15 looks to include an exemption for specialist tobacconists on the face of the Bill. I have already explained that we do not wish to include every one-off exemption in the Bill, which already allows us to make such an exemption through regulations. The Government are still considering the issue of specialist tobacconists in consultation with the relevant trade body. Decisions about an exemption for this specific retail segment will be made after consideration of the full range of issues. Amendment No. 16 adds a specific exemption for tobacco testing facilities. As my honourable friend the public health Minister, Caroline Flint, said in the other place, the Government are likely to make exemptions for premises used for the statutory testing of tobacco products as well as for medical research purposes on the basis that smoking is integral to the research being conducted. On Amendment No. 21, we recognise that a potential contradiction exists in that some premises may be both licensed premises and someone’s home, whether permanently or temporarily. Clause3(4) therefore makes it clear that where premises operate under a licence or a club premises certificate, only the section of the premises that is private residential space can be exempted from the smoke-free legislation. On the specific point raised by the noble Earl, Lord Howe, my understanding is that pub managers can invite whomever they like into their own home, and that remains the position. Clause 3(4) is simply an enabling measure that will ensure that premises such as hotels retain the option to allow smoking in some or all of their bedrooms if it is also a licensed premises—for example, because it has a bar, or because it has mini-bars in the hotel bedrooms. It also means that a publican who lives in his pub will be able to smoke in the areas that are clearly his private residential space. I hope that this provides reassurance about subsection (4). Premises that are to be exempt will remain exempt indefinitely, but we will review the legislation, including exemptions, after three years.