Tobacco and Vapes Bill (Fourteenth sitting)

The Committee consisted of the following Members:

Chairs: Peter Dowd, Sir Roger Gale, Sir Mark Hendrick, † Mark Pritchard

Ahmed, Dr Zubir (Glasgow South West) (Lab)

† Al-Hassan, Sadik (North Somerset) (Lab)

† Barros-Curtis, Mr Alex (Cardiff West) (Lab)

† Bool, Sarah (South Northamptonshire) (Con)

† Chambers, Dr Danny (Winchester) (LD)

† Cooper, Dr Beccy (Worthing West) (Lab)

† Dickson, Jim (Dartford) (Lab)

† Foy, Mary Kelly (City of Durham) (Lab)

† Gwynne, Andrew (Parliamentary Under-Secretary of State for Health and Social Care)

Jarvis, Liz (Eastleigh) (LD)

† Johnson, Dr Caroline (Sleaford and North Hykeham) (Con)

Osborne, Tristan (Chatham and Aylesford) (Lab)

† Owatemi, Taiwo (Lord Commissioner of His Majesty's Treasury)

† Rankin, Jack (Windsor) (Con)

† Stafford, Gregory (Farnham and Bordon) (Con)

† Stainbank, Euan (Falkirk) (Lab)

† Whitby, John (Derbyshire Dales) (Lab)

Chris Watson, Kevin Candy, Sanjana Balakrishnan, Committee Clerks

† attended the Committee

Public Bill Committee

(Afternoon)

[Mark Pritchard in the Chair]

Tobacco and Vapes Bill

Clause 136

Addition of smoke-free places in England

Amendment proposed (this day): 10, in clause 136, page 77, leave out lines 26 to 29 and insert—

“(a) for subsection (1A) substitute—

‘(1A) The Secretary of State must, no later than the end of the period of 6 months beginning with the day on which the Tobacco and Vapes Act 2025 is passed, lay draft regulations to be made under this section which have the effect of providing for all enclosed vehicles to be smoke-free, other than vehicles of the type described in subsection (3).

(1B) Regulations may make provisions about the meaning of “enclosed vehicle”, which may include vehicles which are partially enclosed or enclosed (or capable of being enclosed) for some but not all of the time.’”—(Jim Dickson.)

Question again proposed, That the amendment be made.

I am grateful to my hon. Friend the Member for Dartford for putting this amendment before the Committee for discussion. The amendment would require the Government, within six months of this Bill gaining Royal Assent, to introduce regulations to prohibit smoking in all enclosed vehicles, other than certain vessels.

I have a lot of sympathy with the arguments my hon. Friend has put to the Committee on the harms of passive second-hand smoking, and I am certainly sympathetic to amendment’s aim of further reducing exposure to second-hand smoke. However, as I am sure the Committee is aware, smoking has been banned in enclosed vehicles used as a workplace or a public place since 2007, and it has also been banned where someone under 18 is present since 2015. We think that this level of protection is appropriate and provides the correct balance between protecting children and vulnerable people from the harms of passive smoking, while not unduly impacting current smokers by interfering with private spaces. That is an important point, because both I and the Secretary of State have been very clear from the outset that we are not seeking to extend measures in this Bill into private spaces.

I remind the Committee that, in the smoke-free generation that we hope and expect the Bill to create, smoking will become a thing of the past. Therefore, hopefully in the not-too-distant future, we will not see anyone smoking in a vehicle because smoking will just not be as prevalent in the UK as it is today. Most people are law-abiding citizens, and we would expect the measures in this Bill, and indeed the in my hon. Friend’s amendment, to be something that most people consider anyway. If they are in an enclosed space such as a vehicle with a friend who has vulnerabilities, most people would probably not light up because they would recognise the harm that they may do to their friend.

Furthermore, the measures in the amendment would be for the police to enforce. We have had no prior conversations with Home Office colleagues about whether this is a power they seek or whether the police would be concerned about its enforceability. That would need further consideration if we were to proceed with this. Having said that, we just do not think that there is a strong argument for interfering in private spaces by extending this prohibition to smoking in all vehicles within six months of the Bill reaching Royal Assent. That is not a large amount of time anyway for such a major change. It is for those reasons that I ask my hon. Friend to withdraw the amendment.

Once again, the Minister has made convincing arguments for why now may not be the right time for this amendment to become legislation and be adopted. However, I think that within the next decade or so this measure is likely to become law one way or another, so for the moment I am content not to press it. I beg to ask leave to withdraw the amendment.

I beg to move amendment 84, in clause 136, page 77, line 33, at end insert—

“(3A) In section 7 (Offence of smoking in smoke-free place)—

(a) in subsection (6), at end insert ‘, save if it is a first offence.’

(b) after subsection (6) insert—

‘(6A) A person who has admitted guilt of a first offence under this section is liable to a fine not exceeding level 3 on the standard scale or a caution.’

(3B) In section 8 (Offence of failing to prevent smoking in smoke-free place)—

(a) in subsection (7), at end insert ‘, save if it is a first offence.’

(b) after subsection (7) insert—

‘(7A) A person who has admitted guilt of a first offence under this section is liable to a fine not exceeding level 3 on the standard scale or a caution.’”

With this it will be convenient to discuss the following:

Amendment 85, in clause 142, page 85, line 29, at end insert—

“(ya) in section 1 (Offence of permitting others to smoke in no-smoking premises)—

(i) in subsection (4), at end insert ‘, save if it is a first offence.’

(ii) after subsection (4) insert—

‘(4A) A person who has admitted guilt of a first offence under this section is liable to a fine not exceeding level 3 on the standard scale or a recorded police warning.’

(za) in section (2) (Offence of smoking in no-smoking premises)—

(i) in subsection (3), at end insert ‘, save if it is a first offence.’

(ii) after subsection (3) insert—

‘(3A) A person who has admitted guilt of a first offence under this section is liable to a fine not exceeding level 3 on the standard scale or a recorded police warning.’”

Amendment 97, in clause 147, page 93, line 13, at end of line insert—

“(1A) In the Welsh language text of section 5 (Y drosedd o ysmygu mewn mangre ddi-fwg neu gerbyd di-fwg), at end of subsection (6) insert ‘, arbed os trosedd cyntaf ydyw.’

(1B) In the Welsh language text of section 5 (Y drosedd o ysmygu mewn mangre ddi-fwg neu gerbyd di-fwg), after subsection (6) insert—

‘(6A) Mae person sydd wedi cyfaddef ei fod yn euog o drosedd gyntaf o dan yr adran hon ynagored i rybuddiad.’

(1C) In the English language text of section 5 (Offence of smoking in smoke-free premises or vehicle), at end of subsection (6) insert ‘, save if it is a first offence.’

(1D) In the English language text of section 5 (Offence of smoking in smoke-free premises or vehicle), after subsection (6) insert—

‘(6A) Mae person sydd wedi cyfaddef ei fod yn euog o drosedd gyntaf o dan yr adran hon yn agored i rybuddiad.’

(1E) In the Welsh language text of section 6 (Y drosedd o fethu ag atal ysmygu mewn mangre ddi-fwg), at end of subsection (9) insert ‘, arbed os trosedd cyntaf ydyw.’

(1F) In the Welsh language text of section 6 (Y drosedd o fethu ag atal ysmygu mewn mangre ddi-fwg), after subsection (9) insert—

This group of amendments comes back to the principle of proportionality, because there is not complete coherence between the different penalties across the United Kingdom and on the different offences that can be committed under the Bill.

The first part of amendment 84 would ensure that if someone admits guilt of a first offence of smoking in a smoke-free place, they should be liable to a fine not exceeding level 3, which is £1,000 on the standard scale, or a caution. That is a lot of money for lighting up in the wrong place, so it seems reasonable.

The second part of amendment 84 relates to the offence of failing to prevent smoking in a smoke-free place, which is where somebody who is in charge of an area or building fails to prevent people from smoking there. Again, we are asking the Minister to consider the proportionality of the penalty if this has not happened before, compared with a repeat offender, who we would want to throw the book at, metaphorically speaking.

Amendment 85 relates to Scotland. Amendment 97 relates to Wales and is partly in Welsh, and amendment 86 relates to Northern Ireland. Again, we are asking the Minister to consider whether the penalties are proportionate to the offence committed and whether the legislation gives due flexibility and enough guidance for someone committing an offence for the first time, perhaps inadvertently, to be treated differently from someone who is repeatedly flouting the law.

I am grateful to the shadow Minister for her comments. I have a sense of déjà vu, given that we have already debated ad nauseam her desire to weaken the enforcement regime and the penalties.

That’s not true!

The hon. Lady says that is not true, so maybe it is not quite ad nauseam, but we have covered an awful lot of ground on these arguments.

I do not seek to weaken the Bill or its enforcement. I wish to see the Bill be successful in stopping people smoking and vaping, particularly our young people, and I wish to see people who are repeatedly flouting the law in this way treated appropriately. However, I am keen to understand whether the Minister feels there is enough flexibility to deal with offenders appropriately, particularly if it is an inadvertent first offence.

We will have to agree to disagree, because I think anything that brings in lesser penalties than those that already exist in tobacco control, and I will resist that as I resisted the shadow Minister’s earlier temptations to be more lenient to certain people.

These amendments would change the penalty regime for the offence of smoking in a smoke-free place in England, Scotland, Wales and Northern Ireland and the offence of failing to prevent smoking in a smoke-free place.

Does the Minister accept that a fixed penalty notice of £200 is actually a more lenient penalty than a fine of £1,000 or a caution, which incurs a criminal offence?

I will come on to those points in due course to explain to the Committee why I think the shadow Minister is wrong in this regard and why she was wrong in all previous discussions about weakening the penalty system for first-time offenders. The amendments would create an exception to the maximum penalty that a person can face for committing one of these offences, if it is the person’s first-time offence. It would establish that someone who admits to committing either offence for the first time would be liable on summary conviction to a fine not exceeding level 3 on the standard scale, which is £1,000, or instead to a caution in England and Northern Ireland, or a recorded police warning in Scotland.

For the offence of smoking in a smoke-free place, that is two levels higher than the level of fine someone is liable to under the current legislation, which is level 1 or £200 in England, and it is the same as the current level of fine in Scotland and Northern Ireland. For the offence of failing to prevent smoking, the new maximum fine would be one level lower, which is level 3 or £1,000, than the level of the fine that someone liable to under the current legislation, which is level 4 or £2,500, in all three nations. In Wales, amendment 97 would remove a fine altogether and someone who admits to committing either offence for the first time would be liable to a caution.

While I appreciate the shadow Minister’s intention in seeking to alter the penalty regime for first-time offenders, amendment 84 is not appropriate. We do not want to create a penalty regime for the offence of smoking in a smoke-free place that has the potential to be stricter for first-time offenders than for repeat offenders. This amendment would see first-time offenders face a maximum fine of £1,000 on conviction, while repeat offenders would face a maximum fine of £200 on conviction in England. That is not consistent with our approach to the enforcement of tobacco and vape legislation, where enforcement action can be escalated such that repeat offences may lead to harsher penalties. For example, repeated age-of-sale offences can result in a restricted premises order.

I am grateful to the Minister for outlining his thoughts on the matter, and I do not want to see the Bill weakened in this regard. As such, I beg to ask leave to withdraw the amendment.

Question proposed, That the clause stand part of the Bill.

With this it will be convenient to discuss the following:

Clause 142 stand part.

Clauses 147 and 148 stand part.

Clause 153 stand part.

Clause 136 amends an existing power in the Health Act 2006, relating to the designation of additional smoke-free places, to allow the Secretary of State to make regulations to any area that is a workplace or open to the public smoke-free, which would include outdoor spaces. Private outdoor spaces are out of scope of the powers of this Bill. Clause 142 amends the Smoking, Health and Social Care (Scotland) Act 2005 to allow Scottish Ministers the same powers, and clause 153 amends the Smoking (Northern Ireland) Order 2006 to do the same for Northern Ireland. The power to designate additional smoke-free places builds on existing provisions that made it illegal to smoke in an enclosed, or substantially enclosed, workplace or public place. For England, clause 136 does not replicate a test from the 2006 Act, so there no longer needs to be a “significant risk” that someone

“would be exposed to significant quantities of smoke”

before an additional space can be designated smoke-free. We have already debated that change at length.

The clause therefore allows us to expand current smoking restrictions more readily to outdoor places. That is essential because places such as children’s playgrounds may not meet the requirements of the previous test, but making those places smoke-free in England would protect the most vulnerable. Passive second-hand smoking, even outdoors, poses a risk to health. There is no safe level of exposure to smoke: if you can can smell cigarette smoke, you are inhaling it. That is particularly important to note for children, pregnant women and people with pre-existing health conditions, including conditions that may not be readily visible to the smoker, such as asthma and heart disease.

In England, we are considering making the areas outside schools, children’s playgrounds and hospitals smoke-free outdoor places. However, we consider that now may not be the right time to include outdoor hospitality settings—I have been very clear on that—or wider open spaces, such as beaches. Exactly which settings should become smoke-free will be a matter for secondary legislation, and there is a statutory duty to consult before using that power. Wales already has broader powers to make additional areas smoke-free. However, clause 147 adds a duty on Welsh Ministers to consult before making regulations on additional smoke-free places and on smoke-free vehicles. That brings Welsh legislation fully in line with the duty to consult that the Bill introduces for the rest of the United Kingdom.

Clause 148 amends the Public Health (Wales) Act 2017 to update the wording of an existing measure that grants the power to make exceptions to smoke-free vehicle restrictions. It adds that that power may be sub-delegated to, for example, the person in charge of a smoke-free place to allow them to create smoking areas. The power to create exemptions is an existing power that is being brought in line with the drafting of similar exceptions in this Bill.

The clauses mean that the devolved Governments will have equivalent powers to make additional smoke-free places. I therefore commend the clauses to the Committee.

I thank the Minister for setting out what the clauses do, which is, essentially, to provide for smoke-free places in England.

Clause 136 introduces changes to the Health Act 2006, and specifically updates provisions regarding smoke-free places in England to allow for the addition of smoke-free areas beyond those already designated under existing law. It empowers the Secretary of State to extend smoke-free regulations to more places—and, I would argue, to essentially any place—with the aim of reducing exposure to second-hand smoke and promoting public health.

Although it clearly is the Government’s intention to use these powers to improve public health, they are very wide-ranging. As far as I can see, the clauses give the Secretary of State carte blanche to extend the smoke-free legislation to any place without needing a reason, because the Government did not accept our amendment that it should only apply to places that have a significant risk of actually having any smoke. I understand that the measures allow for greater flexibility, but I would be interested in the Minister’s reasons for the wide-ranging scope.

The Minister has said that he wants to focus on three areas: hospitals, children’s playgrounds and educational settings, and I believe that that is his intention. Unfortunately, over time, that may not be the intention of the rest of his Government, which is a risk for the Committee in allowing these measures to stand.

The Welsh have banned smoking on hospital sites. We heard in our evidence that compliance regarding playgrounds has been very good but that compliance around hospitals has been relatively poor. Does the Minister have any figures to add to that evidence about compliance in Wales? That could be the number of people who have been prosecuted or convicted of such an offence, or surveys from hospital trust leaders on the prevalence in their site, accepting that not all people will necessarily be caught or prosecuted. If we are to be successful, it is not simply enough to write laws in Westminster; there has to be a practical application in the real world. Has the Minister had any conversations with his Welsh counterparts on the perceived reasons why the law on hospitals in Wales has been followed less well than it has been in other areas, so that we can understand why?

Like the shadow Minister, I agree with the essential thrust of clause 136, notwithstanding the amendments that I voted for earlier, but there is a clear problem with second-hand smoke. We have seen in studies from Public Health England and the World Health Organisation that even brief exposure to second-hand smoke can increase the risk of respiratory diseases, heart disease, and lung cancer—particularly among vulnerable populations such as children and the elderly, as the Minister outlined.

However, we have to understand that there are clearly differences in how much smoke could be inhaled, depending on the setting. Where air circulation dissipates smoke, such as outside, the risks are probably not as pronounced as they are indoors. Although I do not dispute—I do not think anyone does—the dangers of second-hand smoke in enclosed spaces, the question remains whether outdoor areas such as parks and public squares should be subject to the same restrictions.

This debate is not simply about health, but about personal autonomy. Should the Government have the power to restrict what is essentially legal—smoking if someone was born before 1 January 2009 and vaping if someone is over the age of 18—in an open-air environment? That addresses the concerns that I raised regarding the amendment tabled by the hon. Member for Dartford. There is, I am afraid to say, a real desire from some hon. Members of a certain political persuasion to interfere in private and legal activities just because they do not happen to like them. I do not happen to like them, either, but I think that we might be going too far in this area.

Also, we have to think about the principle of proportionality. If the risk of harm is significantly lower outdoors—the Minister might disagree, but I suggest that it is significantly lower outdoors—is a total ban justified, especially in the park area? Although I take at face value that all he wants to restrict is hospital settings, playgrounds and schools—I have a lot of sympathy for that and support those three areas of the ban—I am concerned that the wide nature of how the clause is written could easily extend to other areas that have been outlined, in terms of public spaces and the hospitality industry. We need a balance.

We will move on to the economic impacts of potentially banning outdoor vaping and smoking in pubs, cafés and restaurants. I know that the Minister says he does not want to do that yet, but I listened very carefully to his opening speech, and he said—I am sure we can read it back in Hansard at some point—that it “might not be” the correct time. That did not sound quite as convincing to me as saying that he is absolutely, 100%, categorically not going to introduce it now or any time soon. “Might not be” does not sound as emphatic as I would like. We have to be clear that the experience of the 2007 smoking ban showed that although many establishments did adapt successfully, others, particularly small independent businesses, struggled. We need to keep that in mind when discussing that issue.

There are practical issues as well, some of which have been outlined by the shadow Minister, relating to the way the clause is written. The first issue is around enforcement. Expanding smoke-free zones requires local authorities and the police to monitor compliance, issue fines and ensure that the public understands the new regulations. We have to balance whether that is a realistic and useful way to use limited public resources. Unlike indoor bans, which are much easier to enforce, ensuring compliance in large outdoor spaces presents logistical difficulties. Some of that is about definitions, which I will come to, and some of it is about who precisely is responsible for enforcing the bans.

In the amendment that was tabled by the shadow Minister and then withdrawn, she sought to change some of the first offence fines for those who did not do enough to ensure that areas were smoke-free. It is very easy to understand who is responsible for a hospital trust or a school, but who is responsible for open-air spaces that are potentially “open to the public”, as in proposed new section 4(1)(b) of the 2006 Act? It is very difficult to understand who precisely would fall foul of the law with that open-ended drafting of the clause. Would it be the local authority, for example, in the case of playgrounds? Would it be a park owner if it was owned by some kind of trust? Would it be the National Trust if it is an open space?

This is also about the definition of a number of things. The shadow Minister talks about what a workplace would be, but if people are volunteering within a private venue and are not technically working, would they be covered by the law? What does “open to the public” mean? We are all members of the public. If someone walks into my front garden, it is open to the public. Is that covered in the law? When one, two or three people are gathered, do they become members of the public rather than private individuals?

We need to understand what the Minister means by “open to the public”, because it is easy for a well-intentioned rule—that I would, on its face, genuinely support—to have a vast number of loopholes for those who want to get around it and a vast number of potential areas where those who are emphatic in their disgust and opposition to smoking could overreach. That is the danger of the clause as drafted, which is why we in the Opposition sought to narrow it and make it more specific.

When the Minister is considering hospitals, or any of the three relevant areas, will he look to impose a blanket ban or a ban on specific places? For example, it would be relatively easy to include any property owned by an NHS trust or NHS Property Services, a GP surgery and so on, but it would be much harder to define what a playground is. What is the Minister’s definitional element of a playground or play area? The shadow Minister talked about the delineation of that, but even beyond that, is a swing a play area, or does it need more equipment? Does it have to be owned by a local authority, or could it be in, for example, a National Trust property, a stately home and so on? We need to understand where the balance lies.

So I think we need to understand the definitional terms. I accept that these sound like pernickety arguments, but if we are going to have a law that we want to be enforced properly, we need to ensure that we, the public and those who will have to abide by it, as well as those who will enforce it, understand the remit.

The clause presents opportunities and challenges. On the one hand, expanding smoke-free zones aligns with the public health objectives that most of us in the Committee agree with, and it protects vulnerable populations. On the other hand, there are concerns about the lack of definitional clarity on a number of things, as well as concerns about personal freedoms, the economic impacts and potential effects on business and the enforcement difficulties. Those need to be acknowledged and addressed, hopefully by the Minister when he winds up.

I certainly do not think the hon. Gentleman is putting pernickety arguments, as he put it. They are important points. He and the shadow Minister are allowing me to provide clarification, hopefully, on some of the concerns, which I would argue are unfounded, and to clarify the extent to which the powers in the Bill would be used by Ministers in England. Of course, it is for my counterparts in Scotland, Wales and Northern Ireland to clarify at future stages how they would seek to use the powers that the Bill confers on them.

As we have discussed at length, the fact that the powers are so broad means that we can respond to evolving evidence at a later stage, particularly when there are clear harms to children and vulnerable people. It allows us then to get on and make the necessary changes. That is consistent with the Bill as a whole, which gives us the legal framework for tobacco control and measures on vapes.

The shadow Minister mentioned hospitals. She is right to point to the evidence we heard on the first day of Committee about compliance with the existing measures in Wales. Ministers in the Department of Health and Social Care are rightly concerned about that in England. We are engaging with counterparts in Wales to understand what worked, what did not work and how we can mitigate the things that are not working as well as they could be when we consult on the measures that we wish to introduce in England, should the Bill get Royal Assent.

The answers to that and other questions about what a children’s playground is and what areas around a hospital would apply are down to the details that will be presented for consultation when His Majesty’s Government advance the proposals on outdoor spaces in England. The right place for us to have that discussion is when I bring forward the consultation and say, “This is what the Government consider to be the scope of children’s playgrounds, the scope of outside a school and the scope of outside a hospital setting.” We can debate whether those are the right or wrong definitions. We can put it out to consultation. We can draw on the experiences of other parts of the United Kingdom that already have measures in place. We can then refine our proposals if need be and introduce the secondary legislation.

I totally agree that we need a consultation—that is the beauty of gauging the public interest—but the issue around smoking in public places, and particularly play yards, is about not just second-hand smoke, but de-normalising exposure to smoking. The less that our children see adults smoking, the less chance they will have of thinking it is normal and becoming addicted. We need a comprehensive package to bring in the future smoke-free policy. We have evidence to show that the public, in the main, are in favour of a smoke-free generation, and I am sure that they would police the ban around playgrounds when there are children there. If people are not meant to smoke there, the issue will be policed—possibly by the public.

My hon. Friend, who has done so much work in this area over such a long period of time, is absolutely right. I will come to some of the enforcement arguments. Our primary aim is to tackle passive second-hand smoking, but it is important that smoking is not so obviously prevalent in areas where children are present —for example, around children’s playgrounds and outside schools. It is not just that the issue of second-hand passive smoking is important—although it is—it is about the clear statement that smoking around children really should be something for the history books. That is why we have removed the public health test from the 2006 Act. Children’s playgrounds probably would not fall within the scope of that test, but it is a clear priority of the Government to remove the prevalence of smoking around children.

I thank the hon. Member for City of Durham for her excellent point; I agree entirely with her that we need to ensure that children are not exposed to cigarettes. Could the Minister clarify a couple of points on that basis? First, the edges of playgrounds have been difficult to define—when is the playground the park and when is the park the playground? If it is his intention that children do not see smoking and that that de-normalises the behaviour, which seems a noble aim, would that mean that if someone was within sight of the playground, they would not be able to smoke? Secondly, lots of hospitality venues have playgrounds within them. In fact, one attraction of some pubs that people take children to is that the children will be entertained, while the food is being cooked, by a play area. Will those play areas within hospitality venues be covered by these measures?

I refer the shadow Minister to the answer I gave some moments ago. These are all matters of detail that will be subject to consultation. We will have the arguments as to the definition of a children’s play area—whether it includes children’s playgrounds in hospitality settings or whether it is just in relation to playgrounds in housing estates and parks—and how the edges are defined. These are all matters for consultation and detail, before we get to the secondary legislation.

I want to challenge some of what the hon. Member for Farnham and Bordon said. To be fair to him, he rightly agrees that second-hand smoke is dangerous, but he makes the case that in outdoor settings it is potentially less dangerous than it is in enclosed settings. That was the view of the chief medical officer: clearly, if someone is indoors, in a constrained area, the prevalence of the toxicity that they are taking in as a second-hand smoker is much greater than it is outdoors—but even outdoors, if someone can smell it, they are breathing it in and it poses a risk to their health. The chief medical officers were really clear on this point: there is no safe level of exposure to smoke. That is particularly important for children, pregnant women and people with pre-existing health conditions such as asthma and heart disease, which may not be visible to the smoker.

A really interesting statistic that the English chief medical officer told the Committee was that at this moment in time, in January 2025, there are more people with clinical vulnerabilities in this country than there are smokers. That is really important when we talk about the balance of rights and responsibilities. The fact that there are now many more people with hidden clinical vulnerabilities than there are smokers shows, I think, where the balance needs to be.

The Minister is making a very powerful argument that smoking outside also poses a danger to the health of the nearby public. On that basis, if I were taking an older relative—with chronic obstructive pulmonary disease, perhaps—to a beer garden, I would be reluctant to sit outside in the summer in case someone sat down and smoked near her. Is the Minister not making an argument for including hospitality, on the basis that people who are outside in the beer garden are vulnerable to dangerous smoke?

People sitting in a beer garden where smoking is prevalent are breathing in second-hand smoke, but as the chief medical officers reminded the Committee, there is a balance here, and the United Kingdom Government of which I am a member have decided that that balance is appropriate in order to protect the hospitality business. That is why Ministers—myself, the Secretary of State and the Prime Minister—have made it very clear that outdoor hospitality will not fall within the scope of the consultation that we intend to bring forward like the clappers. That is our view and it is what we will do. That is not to say that there is a risk that is mitigated for somebody sitting outside. There is a risk, and we cannot mitigate that risk, but it is the balance that the Government have come to. There have to be trade-offs and, given the precarious nature of the hospitality business, we have decided that we will not consult to extend the outdoor smoking provisions to hospitality. I know that that disappoints the shadow Minister—it probably delights other Members on the Opposition Benches—but that is where this Government are.

The powers in the Bill allow for a change at some stage in the future, when it may well be that the balance has shifted and people no longer desire there to be smoking outdoors in hospitality settings. The hospitality trade may say, “This is such a minority pursuit that it is putting off good people from coming to my restaurant.”

Forgive me if I am incorrect, but the Minister is saying that businesses may make the decision that they do not want people to smoke on their premises. They already have that power now, so I am not sure what point he is making.

The point I am making is that industry collectively may come to Ministers and say, “You know what? This carve-out that we’ve been given is no longer needed.” Ministers may well then come to the conclusion that, given that most of these hospitality businesses at some stage in the future are already imposing outdoor smoking bans because that is where their customer base is, we should bring the law into line with that and make it illegal. The provisions are written in the way that they are so that at some stage in the future, when things change, we can change the law, but right now, as I have said on umpteen occasions, we will consult on outside hospitals, outside schools and public children’s play areas, and that is it.

Can the Minister clarify a point? There seems to be a contradiction in my mind, but perhaps I have not understood him correctly. On the one hand, he is being very clear in stating that hospitality will not be included and that children’s play areas will—that seems very clear. Hospitality venues, however, do include children’s play areas. When I asked him about this before, he seemed to say that children’s play areas in hospitality would have to be part of the consultation. If children’s play areas within hospitality are included, then aspects of hospitality are included, are they not?

That is why it will be down to the consultation as to what precise details we will bring forward. It is not our intention to include hospitality settings, but the hon. Member has rightly raised that some pubs and restaurants have children’s playgrounds. As part of the consultation exercise, we will have to work out how a children’s play area is defined for the purposes of these measures, so that there is absolute clarity on what constitutes a children’s playground. These are not matters for now; they are matters for when Ministers seek to bring forward proposals. We will have that debate then.

I know the Minister is a man of his word. I ask him to be really clear on this, because he has talked about “some point in the future”. Some people’s “some point in the future” may be a very long way off, while others’ may not be such a long way off. Will he give a commitment that, while he is a Minister in the Department of Health and Social Care, he and his colleagues will not bring a consultation to include the hospitality industry?

Well, I hope that I will be a Minister for a very long time, both at the Department of Health and Social Care and with this public health brief, which I absolutely love. I will follow the evidence as and when it appears, but it is not my intention to bring forward changes any time soon. The reason that we are discussing changes now is that the last time that places were designated for a smoking ban was in 2006, and a lot of things have changed since that law came into force in 2007.

It may well be that, in a similar length of time into the future, things have changed sufficiently that the arguments we are having today on hospitality have become obsolete, and that the law needs to be brought into line with the facts on the ground. I hope that I can reassure the hon. Member for Farnham and Bordon—I am a man of my word—that it is not my intention, nor the intention of this Government to include the hospitality industry, but at some stage in the future, if things change, it may well be that Ministers do come back to the House on this. I cannot judge how long or short that time period may be, but I politely remind him and other Members of the length of time between 2006-07—when these issues were last being debated—and now, and hope that that gives him some reassurance.

The hon. Gentleman said that I have not been emphatic enough on beaches, woodlands, public parks, rights of way and public squares; these are all scenarios that are subject to consultation at some stage in the distant future. It is not our intention to cover these areas in England. I have been very clear about the three areas that we seek to extend smoke-free places to.

I remain a bit confused. On the one hand, the Minister has been very clear: no consultation on hospitality areas. On the other, he has been clear that consultation will occur on play areas. Fair enough. He then said that play areas in hospitality will be discussed as part of the consultation. In that case, how can he be discussing play areas in hospitality but not be discussing hospitality? I am completely confused by that.

Maybe I was not clear enough for the shadow Minister. We are seeking to bring children’s play areas into the scope of the Bill, and, as we have said, we will consult on restricting smoking around children’s play areas. How we define children’s play areas will be a matter for the consultation.

The hon. Lady has rightly raised a reasonable point that some pubs and restaurants have children’s play areas within them. The Government will have to come to a view, in advance of any future consultation, as to whether that would be included in the definition of children’s play areas—but those are debates for the future, not for now.

We have been clear that smoking will still be permitted in outdoor settings for hospitality. It may well be that there is a smoking facility in the beer garden and it is smoke-free around the children’s play area. That is a matter for a future consultation, but we are not going to bring outdoor hospitality settings into the scope of the smoke-free consultation. If anybody is a smoker today and wishes to sit in a beer garden, and that licensed establishment allows smoking—a growing number of pubs and restaurants are already making their outdoor settings smoke-free because that is where their customer base is—smoking will still be allowed. That will not be part of the scope of future consultation. I cannot be any clearer on that.

On the enforcement of the measures on outdoor spaces, I would first like to give a major plug to the great British public, because most of our constituents are entirely law-abiding citizens, as my hon. Friend the Member for City of Durham said, so the policy does not need to be heavy-handed. Most people will enforce it themselves and encourage those around them to be considerate of others.

The example is already there: since the indoor smoking ban was introduced in 2007, compliance with the law has been incredibly high. Having been a Member of Parliament for almost 20 years now, I am old enough to have been here during the debate on the Health Act 2006. I was almost banned from Denton Labour club because I was told I would close it down with the smoking ban. Incidentally, it is still open today, but the people there were certainly not happy.

During the passage of that legislation, we Members of Parliament were told that the measures would be entirely unenforceable, that people would ignore the law and that smoking indoors would continue—“What’s the point of legislating for things that aren’t enforceable?” Lo and behold, not only has there been incredibly high compliance, but it has been a huge success, in terms of both its enforceability and the massive public health benefits that have arisen from that legislation. The same will be true of the measures that we seek to introduce. I can see no reason why people who have accepted the law as it stands today, which was introduced in 2007, and in 2006 in Scotland, would not accept the law when it comes to this Bill.

The enforcement of any extension of smoke-free places is expected to be undertaken by the same allocated teams in local authorities that currently enforce the existing smoke-free legislation. This is typically the responsibility of environmental health teams in local authorities. Those who smoke in a smoke-free place in England face a fine on conviction of up to £200, or a £50 on-the-spot fine. Existing penalties for smoking in smoke-free places will apply to any extensions to smoke- free places introduced through regulations. With that, I commend the clause to the Committee.

Question put, That the clause stand part of the Bill.

26|0|9|2|The Committee divided:|Question accordingly agreed to.||0|0

Clause 137

Smoke-Free Premisies: Recasting of Power to Exempt Performers

Question proposed, That the clause stand part of the Bill.

The clause relates to an existing regulation-making power in the Health Act 2006 that allows for the Secretary of State to make regulations that permit performers in England to smoke during a performance. The exemption would enable the creation of defences to the offences of smoking in smoke-free places and of failing to prevent smoking in a smoke-free place. It would be available only where smoking is justified to preserve the artistic integrity of a performance.

The creative industry is a significant part of the UK economy, and we have to balance a range of priorities while protecting the most vulnerable and ensuring that businesses are not financially impacted. The Bill aims to protect those who are most vulnerable to second-hand smoke, and we are of the view that the relative harm from the exemption is low. Without the exemption, it would not be possible for a film or TV show that is made in England to include an actor smoking, regardless of how of how integral that might be. The provision updates an existing power in the 2006 Act, so an exemption to allow performers to smoke during a performance is not new. I commend the clause to the Committee.

The Minister is right to say that the clause recasts an existing regulation-making power in section 3(5) of the Health Act 2006, whereby the Secretary of State may make regulations that allow performers to smoke during a performance

“if the artistic integrity of the performance makes it appropriate”,

and is allowed, on that basis, to create a defence to the offences of smoking in a smoke-free place and of failing to prevent smoking in a smoke-free place.

The act of smoking in film, theatre and other forms of art can be a character-defining gesture that speaks volumes about the person’s identity or emotional state, or about the period in history they represent—think of images of Clint Eastwood, John Wayne, Humphrey Bogart and James Dean. It can also establish the period in which a person lived. It was commonplace for virtually everyone to smoke in the 1940s and 1950s, and the smoke swirling around characters became as much a part of their onscreen presence as their dialogue or expressions. Although smoking in real life is certainly not cool, and comes with myriad negative health implications, its role in art and culture can deepen the portrayal of certain iconic figures and their stories.

The Minister says that the exemption has been part of law for a long time, and that it has worked. There are essentially two ways in which a performance can mimic smoking. The first is to have a fake cigarette, six of which can be bought on Amazon for less than a tenner. They look a bit like a cigarette and an actor can hold them, but they do not have any smoke coming from them. My understanding is that currently the most common prop cigarettes used by actors are cigarettes that contain no nicotine and no tobacco but some herbal items. They produce smoke but are less harmful than a cigarette because they do not contain tobacco, and less addictive because they do not contain nicotine.

The Bill provides for tobacco products to be banned for certain generations of people, and adds herbal smoking products to that ban. Could that inadvertently lead to individual actors and actresses smoking tobacco rather than the less harmful alternative, particularly if there is a price differential between the two? Has the Minister considered how the law will apply to actors and actresses who are born on or after 1 January 2009? Will there be an exemption from the other aspects of the Bill, either allowing them to buy the cigarettes themselves or allowing someone to give them cigarettes as a proxy sale, which would currently be banned under the first part of the Bill? At present, actors may be above the age of 18, but the Bill is intended to be future-proof, so if we roll forwards 15 years or so, when younger actors will be banned from smoking and buying cigarette papers and the like, how does the Minister envisage it working in practice?

To follow on from what the shadow Minister said, the Minister said that performers who smoke during performances would not be a problem because the second-hand passive smoking would not be big enough of an issue. But why can a cigarette be smoked as part of a performance, yet a cigar cannot be smoked once a year by a single person? Why is smoking allowed for this artistic purpose, yet it is not allowed for someone who would like to smoke a cigar recreationally?

This is an existing power, in the Health Act 2006, that we have retained in the Bill at the request of the creative industries in England. I reiterate what I said in opening the debate: the exemption will be available only where smoking is justified to preserve the artistic integrity of a particular performance, so smoking would not be allowed in the hypothetical situations we have heard about. The provision is intended solely to allow the artistic integrity of a performance to be retained.

The shadow Minister asked whether the provision would merely encourage actors to smoke tobacco. Of course, that is not the case. Herbal smoking products are covered under “smoke-free” as well, so they are treated the same.

With respect to the Minister, the point was that they are treated the same. My understanding is that, because of the rules around tobacco, actors who are non-smokers are more likely to use a non-tobacco herbal product that does not contain nicotine. Given the Minister’s previous comments about tobacco being more harmful, why not make the exemption specific to products that do not contain tobacco and nicotine?

We are following the request of industry. This is an existing power in the 2006 Act and it is to be used only in the exceptional circumstances in which cigarettes or indeed herbal smoking products are appropriate for the authenticity of the performance. That is exactly what the law is now.

I agree with the shadow Minister that it is not cool to smoke. I may have mentioned in previous sittings that I have been successful in getting not one but four stories in LADbible. One of them made precisely the point that the shadow Minister made: that smoking is not cool and it is not glamorous. It is a dirty, stinking, horrible habit that kills two thirds of people who start it. That is why we are committed to a smoke-free generation.

I suspect that this exemption for the creative industries, which is pre-existing, may become obsolete at some point in the near future, not least because I would imagine that as more and more actors themselves are brought up smoke-free as a consequence of the measures we are introducing, actors will eventually point-blank refuse to smoke a cigarette, whether it adds creative authenticity or not.

As I have said, this is a follow-on from an exemption that was previously granted in the Health Act 2006, which is why I seek the Committee’s permission to retain it in the Bill.

I understand that the Minister is saying this is what the industry is asking for and that it existed before. However, as a result of the change in regulations, people who act as if they are smokers in a video or film are currently able to smoke herbal cigarettes that are designed as prop cigarettes and do not contain tobacco or nicotine. Although it may not be terribly good for their health for them to do so, those cigarettes do not contain the tobacco that kills two thirds of its users, and they do not contain nicotine either. In providing the exemption for the creative industries, will the Minister at least consider providing an exemption for the least harmful version of what will appear to the audience as a cigarette and cigarette smoke, so that we can protect actors as much as possible?

I am open to taking that suggestion away and having a look it, but at this stage it is our intention merely to copy and paste the existing exemption that applies for the creative industries in England, which is what the clause does.

Clause 138

No-smoking signs in England

Question proposed, That the clause stand part of the Bill.

With this it will be convenient to discuss clauses 143, 149 and 154 stand part.

Clause 138 relates to no-smoking signs in England and amends section 6 of the Health Act 2006, setting out that whoever occupies or manages no-smoking premises must ensure that the relevant no-smoking signs are displayed in or near the premises—which is, of course, very sensible.

We talked earlier about the importance of people understanding what the law is and where they can and cannot smoke. The clause allows the Secretary of State to make regulations further to the no-smoking signs. That is sensible for outdoor spaces, but does the Minister have information on how the regulations will define the size and edges of those spaces, and on the cost to industry and local councils of providing signage?

I thank the hon. Lady for that point. The exact requirements of the position of the signs for smoke-free locations will be set out in regulations, but we will ensure that they are required to be in a prominent position near the smoke-free place.

The other matters that the hon. Lady raises relate to questions that we will need to consult on and work through in regulation—for example, who will be required to provide the signs and whether it will be down to public bodies such as NHS trusts and local authorities. All the costs, including any requirements to put up signs and their exact locations, will be considered as part of any future impact assessment of the policy. I commend the clauses to the Committee.

Before I put the Question, it may help the Committee if I say that we may be expecting a Division in the House at about 4 pm.

Clause 139

Vape-free places in England

Question proposed, That the clause stand part of the Bill.

With this it will be convenient to consider clauses 144, 150 and 155 stand part.

The clauses will amend the Health Act 2006, the Smoking, Health and Social Care (Scotland) Act 2005, the Public Health (Wales) Act 2017 and the Smoking (Northern Ireland) Order 2006 by inserting new provisions relating to vape-free places across the four nations. They will allow the Secretary of State in England, the Scottish Ministers in Scotland, the Welsh Ministers in Wales and the Department of Health in Northern Ireland to designate certain places and vehicles as vape-free, but only where they are already smoke-free. They also provide that appropriate signs must be displayed in or near the vape-free locations, and they give the power to set requirements in respect of those signs.

Although vapes are less harmful than smoking, they are not harm-free. There are legitimate concerns regarding the unknown long-term harms of vaping. Vapes produce aerosol that exposes people to nicotine and potentially to other toxicants. This poses health risks to children and vulnerable people in particular, for example the risk of triggering an asthma attack. It is important and right that the Government act to protect more vulnerable groups from potential health harms.

Many businesses and enclosed public places already voluntarily have schemes in place to prohibit vape use in their premises. We want clearer legislative requirements so that it will be easier for the public to understand where vapes can be used and for enforcement agencies to enforce accordingly. The clauses will therefore give the relevant Ministers and the Department of Health in Northern Ireland powers to restrict the use of vapes in areas, but only those areas already designated as smoke-free. Those could include spaces such as indoor pub areas, public libraries or buses.

In addition to making it an offence to vape in a vape-free place, the clauses will place duties on persons who control or manage vape-free places—that can include drivers of vape-free vehicles—to ensure that their premises or vehicle remains vape-free. In Scotland, the obligation is to not knowingly permit another to use a vape in a vape-free place; in England, Wales and Northern Ireland the obligation is to cause someone who is vaping in a vape-free place to stop using the vape. The difference in approach is a result of amending existing legislation in a devolved area, but the practical effect will be the same.

This is an important clause that I am pleased to see, as I have campaigned against vaping in children for quite some time, as the Minister is aware. As the Minister says, if you can smell it, you are breathing it in. That is an obvious statement, but I have had people tell me that vapes do not give out any smoke and that it is therefore not possible for them to cause damage to anyone nearby. They may not give out smoke, but they certainly give out chemicals that are inhalable by anyone next to the person vaping. Otherwise, it would not be possible to smell the blueberry, or whatever flavour the person has chosen.

Key findings from studies on second-hand vaping include those on nicotine exposure. E-cigarettes emit nicotine in their vapour—in lower concentrations than cigarettes, to be fair, but they do emit it. The amount of second-hand nicotine depends on the brand; nicotine emissions vary among products. One study found second-hand exposure to nicotine from e-cigarettes to be lower than that from tobacco smoke generally. Nevertheless, it exists, and it is still undesirable for people, particularly children, to be forced to inhale such a toxin. It is particularly harmful to pregnant women and those with cardiovascular conditions. The potential long-term effects of such low-level nicotine exposure are unclear.

Although e-cigarettes do not release compounds such as carbon monoxide, as cigarettes do, they do emit other chemicals such as propylene glycol and vegetable glycerine, which have been associated with respiratory irritation. Certain volatile carbonyl compounds, such as formaldehyde, have been identified in cigarette vapour, which could pose health risks with long-term exposure.

One of the persistent limitations with vaping is the lack of long-term data on the health effects of second-hand e-cigarette vapour. Most researchers focus on the acute effects, but as e-cigarettes are a relatively new product, certainly on a mass-market scale, we still do not fully understand the potential long-term health consequences of inhaling these vapours regularly, especially in confined spaces.

Proposed new section 8B of the 2006 Act will give the power to make regulations designating vehicles as vape-free. It is constrained in that it can apply only to areas designated as smoke-free under the Act, ensuring that vape-free zones align with existing smoke-free zones, which makes sense. Will that be future-proof if those change over time?

My other question is about the places where people are expected to prevent vaping and enforce vape-free areas. Anyone who has sat on public transport will have noticed that it is easy for irresponsible commuters to quickly puff a vape, even though the train or bus may be a vape-free space. A cigarette is difficult to conceal easily in a pocket, because it must be put out first, but it is quite quick to have a puff on a vape and put it back in one’s pocket. Smoking a cigarette can take several minutes, whereas a vape can be used without gaining much attention, other than from the vapour being released into the environment.

I have not been in a nightclub for some time, but I understand from my staffers that it is commonplace to vape there. When a vaper is in a crowd, it is difficult for staff or security to tell which person is vaping. Even if the staff were alerted to vape smoke, the vaper would most likely have put it back into their pocket, making it virtually impossible to positively identify them. Can the Minister say more about the reasonable steps that he expects a nightclub or bar owner to take in order to prevent that?

We hope that most people will comply with the regulations. That is certainly what we found with the smoking regulations, but those are perhaps slightly less easy to get around than the vaping regulations will be. I would be grateful for the Minister’s comments on those points, but overall I welcome the measures. As I say, the Bill is a good public health measure.

I am afraid to say to Government Members and to the shadow Minister that I am going to break up the cosy consensus. I had lunch at the Institute of Economic Affairs, which has given me some classical liberal vibes. I know that that will warm the Minister’s heart.

Part 7 of the Bill will give the Secretary of State powers to designate smoke-free places through secondary legislation; clause 139 will do the same for vape-free places. I have a few concerns about that approach. First, it has the potential to force people who have already switched or are in the process of switching from cigarettes to vapes—or indeed to heated tobacco, which is the subject of the next clause—to use their devices in the same areas as smokers, which runs the risk of their moving back to cigarettes. There is a risk that the places designated for vaping will often be the places designated for smoking. We all agree that even though we do not want people to start vaping, we would rather that people vaped if they are on cigarettes. In my view, the clause will be detrimental to its own aims.

I appreciate that we do not agree on the point about vape-free places, but the argument that they will make people smoke seems to be based on the premise that if someone cannot have a vape in their office, they will pick up a cigarette. They cannot pick up a cigarette in their office either. If, as has been suggested, there is congruity between smoking and vaping, how is it that a person who cannot smoke or vape in a place will then decide to smoke when they go outside to an area that is not designated as smoke-free?

It is not that people are not going to vape. They will go outside to the designated vaping spot, which in the overwhelming majority of instances will be either the same place that is designated for smoking or immediately adjacent to it. If someone is a recent ex-smoker or is trying to quit, effectively forcing them to vape in an area near cigarette smoke seems incredibly damaging to public health. I do not think that that is a particularly controversial statement.

Surely the alternative is asking people to vape elsewhere, although they would be exposing non-vapers and non-smokers—perhaps with clinical vulnerabilities, or perhaps children—to their vapes instead.

I will come on to the point about the relative effects of second-hand vaping and of smoking, but I will make some progress first.

My second point, which I have made throughout our debates on the Bill, is that we are potentially conflating vapes with cigarettes in legislation, which will exacerbate the misinformation that such alternatives are equally harmful to cigarettes. That will further undermine the Government’s goal of helping smokers to quit. Indeed, Action on Smoking and Health found:

“Half of all smokers…incorrectly believe vaping is more or equally as harmful as smoking…This is the highest ever proportion with this misconception across all waves of the survey and a significant increase on misperceptions found in 2023. Only one third of smokers understand vaping is less harmful than smoking.”

It seems to me that if we group vapes and cigarettes together and treat them in the same way, that misperception will only be exacerbated. That may further reduce the inclination of smokers to switch to vapes.

I concur. Cancer Research UK followed a similar argument in written evidence to the Committee:

“It is important that any measures to restrict vaping do not exacerbate harm misperceptions, and do not deter or reduce accessibility of people who smoke from quitting with the use of e-cigarettes.”

I put it on the record that I very much agree with my hon. Friend.

It is nice to have a fellow freedom fighter on the Committee—[Interruption.] I am trying to get the Minister to intervene.

My third point is one to which I think the Minister alluded earlier, but I ask him to repeat it in summing up. This part of the Bill will allow the Secretary of State to make decisions without really having the full approval of Parliament. The Minister has said that the Government will consult on the expansion of smoke-free areas, but as I understand it from the drafting, it is not necessary for the Government to consult on expanding vape-free and heated tobacco-free spaces in the same way. I think he might have touched on that point in his remarks, but I would welcome his confirmation.

My fourth point relates to the intervention of my hon. Friend the Member for Sleaford and North Hykeham on second-hand smoke. My understanding is that the rationale for smoke-free places, as initially envisaged, was that the smoker is affected as a result of them having made an informed decision, but people nearby are affected who have not. That is the point of the smoke-free place. Cancer Research UK, however, states that there is

“no good evidence that second-hand e-cigarette vapour is harmful”.

Public Health England has also found:

“Compared with cigarette smoke, heated tobacco products are likely to expose users and bystanders to lower levels of particulate matter and harmful and potentially harmful compounds.”

In my view, therefore, the point about second-hand smoke does not make anywhere near the same kind of sense for heated tobacco products as it does with cigarettes.

Even the Bill’s impact assessment states:

“There are currently no legal restrictions in the UK on where a person may vape. However, many businesses, venues, educational institutions, health service providers and public transport providers have voluntarily introduced their own rules preventing vape usage in these locations.”

My hon. Friend always tempts me with his libertarian arguments. I am not quite with him on this Bill, but almost. Proposed new section 8B(2) of the Health Act 2006 says:

“Only smoke-free places may be designated as vape-free.”

I understand that to mean that there will potentially be places that are smoke-free but not necessarily vape-free, and I wonder whether that gives him any solace. I am specifically interested in our discussion about introducing vapes in vending machines in mental health trusts. Does he think there is a case—perhaps the Minister will comment on this in his remarks—for vapes to be used as a smoking cessation tool in certain places where we cannot smoke a cigarette or use other tobacco-based products?

My hon. Friend gets to the nub of the point that I am making. Vapes can be a tool to help the Government in their desire to create a smoke-free generation, and this legislation could be counterproductive to that, by their own measures of success. Members—certainly those on the Opposition Benches—have to engage with not necessarily the law that is written but how it will be implemented in reality. Businesses are likely to respond to this legislation by just putting up a sticker on the smoking shelter that says it is the designated vaping place as well. That is the risk.

Although I disagree with my hon. Friend on the principle of vape-free places, he is making a reasonable point about the enforcement and congruity with smoke-free areas. If there is not congruity with smoke-free areas, this legislation will be more difficult to enforce, because people will not know which is which and it will lead to more inadvertent errors. He also talks about the idea of vape-free areas being less important because vaping is potentially less harmful, but we do not know that.

As my hon. Friend knows, I am not a doctor as she is, but I will repeat that Cancer Research UK said that there is

“no good evidence that second-hand e-cigarette vapour is harmful”.

and Public Health England made a similar comment. I understand the point that the hon. Member for Worthing West has made a few times about the precautionary principle, but we could take that to any excess.

It is important to remember that the absence of evidence is not evidence of absence. Someone said to me a while ago that having a smoking section in a restaurant is a bit like having a peeing section in a swimming pool.

I am not sure there is a question there, but the hon. Member has put a smile on my face.

My final point is about the visibility of vaping, because I think the Minister should consider the wisdom of this clause by his own logic. Public Health England guidance says:

“while smokefree law protects people from the harm of secondhand smoke, forcing smokers outdoors has increased public visibility of smoking, including to children and young people. Having a more enabling approach to vaping can mitigate this and help make smoking less of a social norm”.

Ensuring a differentiation between where people can vape or smoke might assist in encouraging smokers to switch to vaping, which would undoubtedly have a net positive public health benefit. In addition, allowing people to continue vaping indoors in places such as pubs, bars and nightclubs, which are age-gated anyway, would reduce the visibility of vaping in public and keep it away from people who are under age. When it comes to protecting people who are under age from picking up vaping in the first place, I wholeheartedly agree with the Government and the shadow Minister.

Those are the five points I wanted to make. First, are we sure that we want to push vapers to vape in the same place as smokers when they might be trying to give up smoking? Secondly, do we really want to conflate vapes with cigarettes, which might undermine the Government’s goal to help smokers to switch? Thirdly, will the Minister commit to consulting on any expansion of vape-free spaces, as he has for tobacco? Fourthly, the evidence is weak that second-hand vaping is a problem, but that is effectively the rationale for smoke-free places. Fifthly, is the Minister not concerned that he could be inadvertently putting vapes on show, particularly to young people, by forcing people out of age-controlled spaces such as pubs?

I want to confine my remarks to proposed new section 8D—“Offence of failing to prevent vaping”. I assume that the provisions under section 8D are similar, if not exactly the same, as the ones that would apply to cigarettes and other tobacco-based products. However, there is an issue: it is much easier to spot somebody smoking a tobacco-based product than a vape-based product. Tobacco has a distinctive smell. To be frank, the available products look like cigarettes, cigars and pipes, and we know what they look like, whereas the industry has got better at disguising vapes. Vapes do not have the distinctive smell of tobacco, although they have many flavours as we have discussed, and they do not necessarily look like a cigarette or a similar product.

I am interested in the Minister’s views on whether there will be a different defence threshold for failing to prevent vaping under proposed new section 8D. Subsection (4) says that a defence for a person charged with such an offence is

“that they took reasonable steps to cause the person in question to stop using the vape”.

The question is: will there be a different threshold for those who are sanctioned under the Bill for a tobacco-related offence versus a vape-related offence? That brings us back to burdens on the hospitality industry, retailers and so on. If there is not a differential, again, we will be putting undue pressure on retailers or nightclub owners that we would not expect for tobacco offences. It would be helpful to get some clarity on that.

We have had a good discussion on the clause. I sincerely thank the shadow Minister for the leadership that she has shown over a good number of years on this issue. I am not just saying that because her boss, the shadow Secretary of State, the right hon. Member for Melton and Syston (Edward Argar), is in the Public Gallery, gazing his beady eye over the Conservative Benches to see what is happening—I am sure that is precisely what he is doing.

In all fairness to the shadow Minister, she has taken a consistent view on vaping, which in some regards goes beyond the scope of the Bill. I know that it frustrates her, and indeed perhaps one or two Members on my own Benches, that the scope of the Bill does not go as far as creating a nicotine-free generation as well as a smoke-free one. I put on record my thanks and appreciation to her for championing this issue over a good number of years. I know that is why she supports the clause, as she said, and perhaps secretly supports a number of the other clauses that she has abstained on in Divisions—probably to further wind up the hon. Member for Windsor.

On the clause, there is evidence that second-hand exposure to vaping may worsen asthma in children and teenagers. There are also wider concerns about young people taking up vaping and becoming addicted to nicotine. To protect children and vulnerable groups, we are therefore taking powers to consider whether certain places, such as public transport, should be vape-free as well as smoke-free.

It is important that we consider exemptions for certain settings, particularly those with the intention of helping adult smokers to quit. I hope that that reassures the hon. Member for Farnham. That is an important aspect for us to consider, and it will be explored through consultation.

Just for those listening, I should say that I am the Member of Parliament for Farnham and Bordon. The people of Bordon will be very upset if they are not mentioned.

I am sure that that has been noted by Hansard.

I am sure it has. I was using shorthand, Mr Pritchard, and the wonderful people at Hansard will of course have the hon. Gentleman’s full title. Being the Member for Gorton and Denton, I know how important it is that we reference both Gorton and Denton, so I take the hon. Gentleman’s point.

Many public venues and spaces have already put in place their own policies on vaping. For example, many hospitals and public transport providers have banned vaping on their premises. Subject to consultation, the clause will merely make those bans official.

There is an emerging evidence base, and it is important that we continue to monitor it. That is why my Department, my officials and I, as the Minister for public health and prevention, are in regular contact with stakeholders. I have to tell the hon. Member for South Northamptonshire that that includes Cancer Research UK, which is a major stakeholder of the Bill. It is also important to put clearly on the record that it fully supports the measures in the Bill. I do not want anybody reading Hansard at subsequent stages, such as on Report or in the House of Lords, to be under the misapprehension that Cancer Research UK does not fully support the Bill, because it does.

Turning to the hon. Member for Windsor, I am not sure that I am going to take public health advice derived from a briefing from the office of idiotic economic arguments, otherwise known as the IEA. It is not clear whether the IEA gets funding from the tobacco and vaping industry, but I suspect that it does. Therefore, we have to take what it says with a large modicum of prejudice thrown in.

I think the Minister is teasing me ever so slightly. I just want to say that I did write what I said; it was not given to me by the IEA.

The hon. Gentleman obviously wrote it after being inspired by his wonderful dinner with members of the idiotic economic arguments committee. I only half jest and half pull his leg, because I will never forgive the IEA for crashing the country’s economy, but we are not here to talk about the last Conservative Government, under the leadership of Liz Truss.

I do have some sympathy with some of the points that the hon. Gentleman made. We agree—and I think it has already been established—that vaping is less harmful than smoking and can be an effective smoking cessation tool, so that is an area that we definitely want to get right. Clearly, we want to continue to ensure that adult smokers can use vapes as a quit aid, while protecting others from the risks of vaping. That is why only places that are smoke-free can also become vape-free. To avoid unintended consequences on adult smoking rates, which the hon. Gentleman has raised on a number of occasions, the scope and impact of any future restrictions will be carefully considered. We will design the regulations in a manner that does not result in greater smoking harm.

I want to politely educate the hon. Gentleman on the process of secondary legislation, as he is a new Member—I do not mean this disrespectfully. Every statutory instrument that comes before a Delegated Legislation Committee appears on the Order Paper for a subsequent day on the Floor of the House of Commons. Before the Adjournment debate and the House adjourns, and after whatever votes we have had on the business of the day, there is something called the remaining orders of the day, which is all the secondary legislation that has been approved in Delegated Legislation Committees.

Should a Member shout “Object”, that leads to a deferred Division of the whole House. When the hon. Gentleman goes through the No Lobby, gets his pink card and puts a “No” next to Government legislation, as I am sure he has done on umpteen occasions since 4 July, that is a vote of the whole House on a statutory instrument that has been passed by a Delegated Legislation Committee. On all the measures that we introduce through secondary legislation, he will have the opportunity —I am sure his Whip and the shadow Health Secretary are taking note—to shout “Object” and cause a deferred Division.

We will consult on regulations before any vape-free places are introduced. A new burdens assessment will be completed before the powers in the Bill come into force, to account for additional enforcement costs. I commend clause 139 to the Committee.

Question put, That the clause stand part of the Bill.

27|0|12|2|The Committee divided:|Question accordingly agreed to.||0|0

Clause 140

Heated tobacco-free places in England

Question proposed, That the clause stand part of the Bill.

With this it will be convenient to discuss clauses 145, 151 and 156 stand part.

The clauses will amend the Health Act 2006, the Smoking, Health and Social Care (Scotland) Act 2005, the Public Health (Wales) Act 2017 and the Smoking (Northern Ireland) Order 2006 by inserting new provisions relating to heated tobacco-free places. They provide for the Secretary of State in England, Scottish Ministers, Welsh Ministers, and the Department of Health in Northern Ireland to designate certain places and vehicles as heated tobacco-free, but only where they are already smoke-free. They also require that appropriate signs must be displayed in or near the heated tobacco-free place, and they give powers to set requirements in respect of those signs.

In addition to making it an offence to use a heated tobacco device in a heated tobacco-free place, the clauses also place duties on persons who control or manage heated tobacco-free places, which can include drivers of heated tobacco-free vehicles, to ensure that their premises or vehicles remain heated tobacco-free. In Scotland, the obligation is to not knowingly permit another to use a heated tobacco device in a heated tobacco-free place; in England, Wales and Northern Ireland, the obligation is to cause someone who is using heated tobacco in a “free from” place to stop using the device. The difference in approach is a result of amending existing legislation in a devolved area, but the practical effect will be the same.

The provisions for England will also provide powers for the Secretary of State to create defences to permit the use of heated tobacco devices during a performance if that use is justified to preserve the artistic integrity of the performance.

There is no safe level of tobacco consumption. All tobacco products are harmful, including heated tobacco products. There is evidence from lab studies of the toxicity of heated tobacco. There are less harmful, tobacco-free products that can support people to quit instead of using an alternative tobacco product. It is therefore important that heated tobacco products be included within the scope of the Bill.

We are considering making all currently smoke-free indoor places heated tobacco-free, and making outdoor spaces heated tobacco-free. However, that is subject to consultation. There is a statutory duty to consult, as I have mentioned on umpteen occasions, before bringing forward regulations to designate any spaces heated tobacco-free. I therefore commend the clause to the Committee.

Clause 140 and the associated provisions for the other parts of the United Kingdom provide powers for the Secretary of State to prohibit the use of heated tobacco products in England in places that are already smoke free. That will need to be enforced by people who may not be familiar with heated tobacco devices. Will the Minister comment on the training?

I have only once come across a heated tobacco device at a dinner at Westminster. I initially thought the gentleman was vaping at the table, but it turned out he was using a heated tobacco device, which I had a look at—I had never seen anything like it before. It may be all well and good in metropolitan London, where people may be more familiar with heated tobacco, but how will people who are not familiar with these devices and have perhaps never heard of them be expected to recognise them and know they are not legal?

Has the Minister any plans on how to educate the public on the presence of heated tobacco, what it is used for and what the devices look like, in order that the law can be enforced? How will he do so without providing an advert for it to people who are old enough to buy it—at least in the short term, until it becomes illegal?

Government Members will be glad to know that I do not intend to repeat my points from the previous clause. Like the shadow Minister, I am less familiar with heated tobacco products, but I suspect the arguments I made regarding clause 139 apply to clause 140.

I want to make two or three points specific to heated tobacco. As with vaping, designating smoke-free areas as also being heated tobacco-free is dangerous, as it forces consumers to use their less harmful products alongside smokers. The risk is to increase the chance of their moving back to cigarettes. I will quote Public Health England:

“Compared with cigarette smoke, heated tobacco products are likely to expose users and bystanders to lower levels of particulate matter and harmful and potential harmful compounds.”

It is not clear to me that there is an effect on a bystander of someone using these devices. The Cochrane review cited an earlier review on heated tobacco products that concluded that users and bystanders were exposed to toxicants,

“although at substantially lower levels than cigarettes”.

Perhaps the Minister could comment on the relative harms, but I am not convinced.

With the hon. Member’s libertarian view on freedoms, what does he think about the choice somebody has not to inhale carcinogens and other products? He is indicating that people who vape in areas where people do not smoke at all would force that choice on them.

I would not describe myself as libertarian; I would say I was arguing straightforward centre-right classical liberal opinions, rather than libertarian ones, but we might differ on that. An arbitrary line must obviously be drawn. The same argument could be made about someone idling in a car and people on the street. There is obviously a difference between that and smoking, where we have drawn a line. I acknowledge that I know less about heated tobacco products but, from what I have read, the spill-over effect from nearby users does not reach a threshold to merit state intervention—though I agree that that judgment is qualitative. That is the argument I am advancing. I again make the point to the Minister that heated tobacco, while a recent innovation, has been reported to be positively associated with success in quitting. We should therefore be careful and not treat it the same way as cigarettes in an effort to advance the aim of the Bill, which is to get more adult smokers to use this product and move away from smoking.

Like my hon. Friend, I am no expert in heated tobacco products, but is he suggesting that they can also be used as a smoking cessation tool? If that is the case, his argument bears some weight. Does he have any understanding of where in the spectrum of harms—from cigarettes and cigars at one end to not smoking at all at the other, with vapes placed at some point on that continuum—where heated tobacco would sit? Is it closer to traditional tobacco-based products or to vape products? Is it an intermediary step, whereby someone who is trying to quit might move from smoking a cigarette or a cigar to heated tobacco, to vaping, and then eventually to quitting? Is that how he would see it?

That is effectively the argument I am advancing. In terms of the quantum of harm as a percentage of a cigarette, I do not know. As I understand it, even though we do not fully know yet the dangers of heated tobacco, it is similar to vaping in that we do not want anybody to take it up, but if someone smokes we would prefer them to use it as a cessation device. I understand that that is the way they are marketed.

The Minister is disagreeing, but he can combat that in his speech.

My understanding is that the industry, in the same way that it in the past marketed filters as a way of making things less harmful, when in actual fact the microplastics may have made them more harmful, may have advertised heated tobacco as a way of saying, “You’re not smoking it, so it’s not as bad for you.” It is not therefore a recommended quit aid, but a way for the industry to try to maintain its market.

My hon. Friend’s points have been noted for the record. From what I have read and seen in the representations to the Committee and more widely, heated tobacco seems to me to be similar to vaping, in the sense that we do not people to start it as a product, but it is less harmful than cigarettes, so we should try to facilitate a way for people to use those methods as cessation devices.

I will come to the shadow Minister’s point at the end, but first I want to nail the pernicious lie peddled by the tobacco industry that there is a tobacco product that is an adequate smoking cessation tool. There is no form of tobacco that is safe. That is why we are stopping the sale of tobacco in any form to anybody born on or after 1 January 2009. That is a clear aim and objective of the Bill.

I do not want to rehearse old arguments but, taking us back to the almost two-day-long debate we had on clause 1, I made it clear that we are effectively saying to the tobacco industry that as far as its market base is concerned in the United Kingdom—in England, Scotland, Wales and Northern Ireland—this is as good as it gets. There will be no other route to peddle this deadly, toxic ingredient called tobacco that, were Sir Walter Raleigh to bring it to these shores today, would be illegal. However, because we have a 500-year history, which the shadow Minister kindly researched and gave us chapter and verse on in the debate on clause 1, we know we are where we are as a consequence of the tobacco industry. We will heaven and earth, however, to make sure that there is no other route for the tobacco industry to grow its market share. The lie that heated tobacco is a smoking cessation tool is precisely that—a lie.

There are smoking cessation tools that we are championing that are tobacco-free, which is why we have a differential between vapes and tobacco products in the Bill. We recognise that vaping has a value as a smoking cessation tool, but I will never, ever concede that another tobacco product is a smoking cessation tool.

Tobacco is uniquely harmful. It kills two thirds of its user base. It is a major cause of death and of cancer in this country to this day. Whether it is cigarettes, cigars or heated tobacco, tobacco is tobacco, and tobacco is dangerous. I will not concede to the hon. Member for Windsor on the tobacco industry’s lie that heated tobacco is a smoking cessation tool. He wants to switch on the conveyor belt, albeit slowly, but that conveyor belt is stopping—and stopping for good.

With this it will be convenient to discuss the following:

Schedule 17.

Clause 146 stand part.

Schedule 18.

Clause 152 stand part.

Schedule 19.

Clause 157 stand part.

Schedule 20.

Clause 141 is fairly self-explanatory and links to schedule 17, which contains the amendments to other legislation consequential on clauses 136 to 140. I do not have any specific comments to make on it.

These clauses and schedules ensure that the definitions in existing legislation align with those used in the Bill, and that references are accurate and reflect any provisions inserted into or removed from the relevant Acts. I therefore commend the group to the Committee.

Clause 158

Power to prohibit vaping etc on ships

Question proposed, That the clause stand part of the Bill.

Clause 158 relates to shipping. I think a question was raised earlier about why ships were specifically excluded. That is partly because ships are important enough to have their own specific, separate clause. Clause 158 amends section 85 of the Merchant Shipping Act 1995 and makes provision regarding safety regulations that are made under that Act to provide for vape-free and heated tobacco-free provision for ships and hovercraft, corresponding to provisions in the Health Act 2006.

As I mentioned in an early sitting of this Bill Committee—I am glad that the Minister enjoyed the history of tobacco—maritime history and tobacco are inextricably linked. The allure of tobacco in the new world enchanted European sailors and left an indelible mark on global commerce as well as on our culture. Famous sailors, both factual and fictional, were smokers, from Captain Cook—who came from a place very close to where I was born, Marton in Middlesbrough—to Ernest Shackleton, and from Popeye the sailor man to Captain Haddock in the Tintin books. Smoking was a fact of life—worryingly, even aboard wooden vessels.

For four centuries, seamen and passengers used cigarettes, pipes and matches, which were a significant cause of maritime fires and disasters. The earliest dated clay pipe comes from a ship that sank off Alderney in the Channel Islands, probably in November 1592. A sea captain wrote in Fraser’s Magazine for Town and Country in 1875, I think, a piece entitled “The Dangers of the Sea”. In it, he chastised the carelessness of merchant seamen. He said:

“It is to be regretted that in all classes of merchant ships smoking below is an acknowledged custom. Jack lies on his dirty bed of straw with pipe in mouth, reading some old scrap of a newspaper, or the pages of a novel, and not unfrequently falls asleep with the burning embers beside him”,

adding that the mystery is not why the ship in question was burned,

“but why such accidents are not constantly occurring from this and other causes.”

Written evidence reported to the House

TVB74 Asthma + Lung UK (supplementary)

TVB75 We Vape consumer advocacy group

TVB76 Cheshire and Merseyside Public Health Collaborative (Champs)