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Health Bill

My Lords, Amendment No. 3 seeks to put definitions of ““enclosed”” and ““substantially enclosed””into the Bill. The Government cannot accept the amendment for two reasons, which I shall explain in a moment, but, first, perhaps I may clear up where we were before we came forward with this Bill. It is true that in the consultation document to which the noble Lord, Lord Monson, alluded, we proposed a definition based on that in South Australian legislation, using a figure of 70 per cent but including the roof and wall area in the calculation. There was not strong support for that, but neither was there strong support for any other specific definition. However, we need to set out a clear definition to allow premises owners to understand which parts of their premises are smoke-free. I agree with the noble Lord, Lord Naseby, that a degree of certainty is very important. That is why we decided instead to use the same definition as will operate in Scotland—that is, ““substantially enclosed”” means walls and equivalents making up more than one half the area of the perimeter walls of the premises. As I said in Grand Committee, the Government are satisfied that the right place for this definition is not in the Bill but in regulations. We can see from the way that the amendment is drafted that the definition is likely to be complex and technical therefore we believe that it is best suited to regulations. We also believe that it is important to maintain the flexibility to be able to amend the definition in the unlikely event that problems arise with the initial definition. That will be much easier, of course, if these definitions are in secondary legislation. Furthermore, the Bill allows for regulations pertaining to ““enclosed”” and ““substantially enclosed”” to be specified by the appropriate national authority. By including a definition in the Bill, we would preclude Wales from being able to define ““enclosed”” and ““substantially enclosed”” in a way that best suited its own circumstances. I note that the Delegated Powers and Regulatory Reform Committee was content with this approach. And so that the noble Lord, Lord Monson, does not raise his hopes too much, I should tell him that we are unlikely to be sympathetic to his Amendment No. 46. Secondly, the Government have already made it clear that we intend the definitions of ““enclosed”” and ““substantially enclosed”” to follow, in general, those used in Scottish legislation. Given that a number of people working in the industry will be operating premises in both England and Wales, I should have thought that they might welcome some consistency in the definition between Scotland and England. That will probably be helpful to the industry. We certainly think it is desirable to be consistent with Scotland in this respect so as to make implementation as straightforward as possible. Amendment No. 3 proposes that a place should be considered substantially enclosed if it has a roof or ceiling and an opening, or aggregate openings, of less than 30 per cent of the area of the walls. The Scottish definition, however, refers to less than 50 per cent of the area of the walls being open. As I said, not only do we intend to follow the Scottish model for reasons of consistency but we are also taking into account the comments that we received during the public consultation exercise undertaken last year before publication of the Bill. We believe that 50 per cent is the right measure, as smoke will still linger in places which are more enclosed. A 50 per cent measure is also likely to be more easily understood by those implementing and enforcing the arrangements than 30 or any other percentage. I can tell the noble Lord, Lord Naseby, that our regulations will be published very soon. From the discussions that we have had with Scottish officials, we are not aware of any issues of great concern on this matter in Scotland. However, if the noble Lord would like to write to me about specific concerns, I should be happy to consider them. On a technical point relating to Amendment No. 3, although the amendment puts the definition in the Bill, there is no amendment to remove the power to make regulations defining ““enclosed”” and ““substantially enclosed”” in Clause 2(5). That means that, in theory, we could make regulations giving a different definition from the one that the amendment would put in the Bill, and that would clearly be absurd and unworkable. I hope that, on the basis of that explanation, the noble Lord will not seek to press his amendment.