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Health Bill

moved Amendment No. 5:"Page 3, line 4, leave out paragraph (b)." The noble Lord said: My Lords, I make no apology for moving this amendment, despite the fact that we have already had a lengthy debate. If my amendment is carried, it would reverse a decision made in the other place. The vote in the other place was free of the Whips. If my amendment is taken to a vote here, it is my understanding that it would similarly be a free vote. I am, however, aware that there are some people in this House who do not believe that your Lordships could ever contradict the other place, given the free vote there. In some circumstances, that could well be right. In the amendment before your Lordships today, however, there is a powerful reason why this House should express its opinion, irrespective of the decision in the other place. As originally introduced, the Bill enabled Ministers to make regulations exempting the smoke-free provision premises having premises licences or club premises’ certificates under the Licensing Act 2003. In that regard, it sought to implement the policy explicitly stated in the Government’s 2004 White Paper, Choosing Health and the Labour Party’s 2005 election manifesto. I hope to carry my newly discovered comrade, the noble Lord, Lord Tebbit, with me when I refer to that manifesto. Lest there be some ambiguity, it said:"““We recognise that many people want smoke-free environments and need regulation to help them get this. We therefore intend to shift the balance significantly in their favour. We will legislate to ensure that all enclosed public places and workplaces other than licensed premises will be smoke-free. The legislation will ensure that all restaurants will be smoke-free; all pubs and bars preparing and serving food will be smoke-free; and other pubs and bars will be free to choose whether to allow smoking or to be smoke-free. In membership clubs””—" this is the important part for the amendment—"““the members will be free to choose whether to allow smoking or to be smoke-free. However, whatever the general status, to protect employees, smoking in the bar area will be prohibited everywhere””." As originally drafted, the Bill did not indicate exemptions. Instead, it gave examples of the descriptions of premises that could be exempted by regulations, and the conditions under which they might be exempted. The clause was, however, replaced on Report in another place by the clause now in the Bill, tabled by the current Secretary of State for Health. It specifically prohibits licensed premises—pubs, bars, restaurants and genuine membership clubs—being exempted from the smoke-free provisions by regulations. I believe that that was a mistake, as I now hope to make clear. There was no need for this amendment, because Clause 3 enabled Ministers to make, or not make, any regulations they wished, subject to the approval of Parliament. The existing Clause 3 prohibits certain exemptions. It removes a freedom which could easily have been controlled by separating smoking from non-smoking facilities in those premises. It diminishes choice and has been instigated by what I always believed was a basic tenet of the Government; that they espouse choice. It ostracises smokers, leaving them with no enclosed public place in which they can smoke. Inevitably, those who choose to continue to smoke will often do so at home, where children may be present. It invades the freedom of clubs to establish their own rules. That is an important and longstanding freedom. It also happens to ban a club or association of people, such as the Lords and Commons Cigar and Pipe Smokers Club, from a meeting in their own enclosed place, other than in someone else’s home. As much as I would like my amendment to do, it does not go as far as restating the original Clause 3 of this Bill. That would now probably be too much to ask. My amendment is therefore a compromise. It is of fundamental importance, however. It is concerned with freedom and continuing to enable people, who freely and willingly choose privately to associate with each other, to establish their own rules of association. As the former Health Secretary John Reid explained, the original Clause 3 of the Bill, in so far as it could apply to pubs and bars, sought to provide a degree of balance of rights and choice by enabling a limited provision for smokers. At that time, there was never any question about prohibiting an exemption for genuine membership clubs, recognised as being in a very special position. I wish to quote something:"““The justification for exempting private clubs is that adults choose to become members of such clubs . . . Private clubs are exempted on the basis that their members are adults who choose to sign up to the regulations of that club. They have a say in the running of the club . . . so they have a say in determining whether smoking should be allowed at all or in certain areas. Many clubs already apply rules in that area, including no smoking in bars””." Those are not my words; they are the words of the already much-quoted Caroline Flint, MP, the current Minister for Public Health, speaking in Standing Committee E on the Bill in another place on 8 December 2005. What caused the change of heart and policy? The personal views of the Secretary of State for Health, Patricia Hewitt, may have played a strong part, but it has also been claimed that the change in policy was to reflect public opinion. That claim is false. The public have consistently opted for the accommodation of smokers and for choice. The most authoritative poll indicating this was not commissioned by ASH, which wishes a complete ban, or FOREST, which takes the opposite view, but the government-commissioned poll from the Office for National Statistics; not the poll from Norway, as my noble friend Lord Faulkner referred to earlier, but our own Government’s poll. In its last annual poll on smoking, the Office for National Statistics’ data show that only 31 per cent of people opted for a ban on smoking in public places, but 47 per cent—the majority—would prefer accommodation for smokers in separate areas or rooms. Why, then, was there a sudden change of policy on genuine membership clubs, which are universally recognised, including in legislation, as being in a special position and quite different from retail premises which the public may freely enter? It seems that there were two decisive factors, both misguided and wrong. First, anti-smoking activists argue at every opportunity that, by exempting membership clubs, the employees of those clubs would not have the same protection from second-hand smoke as employees of other establishments. That would be easy to deal with, by making it a condition of exemption that no employee should be required to work in a place where smoking is permitted, and by applying the rule that the Government originally promoted of not permitting smoking close to a bar. The Government also suggested in their consultation on the proposed smoke-free provisions of the Bill that the regulations made under the Bill might require an annual vote of the membership on the smoking policy in any club. But I suspect that the second factor was, in reality, perhaps more influential: the objection of the large pub groups and operators who argued that to exempt genuine membership clubs would be anti-competitive and that the playing field would not be level as they claimed. The fact is that pubs and genuine membership clubs are like apples and pears; they do not operate in the same marketplace. Anyone can walk into a pub, but people cannot walk off the street into a club. There are rules of membership. Very often clubs have distinct affiliations and membership requirements. Many of them are institutions of great local and social importance. Most Members of this House are members of clubs of one kind or another. Some would even regard this place as a club of sorts. It is certainly somewhere where we determine our own rules of operation. Let us not think that all clubs are as exclusive as this place or Boodles, the Reform, the Garrick or White’s. There are more than 20,000 clubs throughout the country, many with small membership numbers, that play a vital and invaluable role in the local society for a great many people. People place great store by and take great pride in their ability to participate in the making of their club rules and in managing their club. This Bill starts to dismantle that ability. In my view, that is wrong and should be resisted, particularly by this House. The Licensing Act 2003 recognises, as did the previous licensing regime and other legislation, that membership clubs are significantly different from licensed premises. Clubs holding a club premises certificate are run by their members, who choose freely to associate with each other. They are run principally for the benefit of their members under their own rules. There is accountability to the members of the club who determine how the club is managed and operated. They are clubs that are quite separate and distinct from other licensed premises that may be called clubs. In the absence of any obligation to impose an absolute prohibition on smoking in order to protect non-smokers, it is for the members of the club with a club premises certificate to determine the smoking policy of the club. We in this House should do whatever we can to make that possible. My amendment would not exempt membership clubs from the smoke-free provisions; it would simply make it possible for them to be exempted by regulations. Any exemption and conditions would be matters for Ministers to determine. I beg to move.