Health Bill [HL]

Amendments 87, 89, 91 and 96, ably moved by the noble Lord, Lord Crisp, would make a number of changes to the provisions in Clause 20 relating to the regulation of tobacco vending machines in England and Wales. With one exception, Amendments 97 to 103 would make equivalent changes to mirror them in Clause 21, relating to the regulation of tobacco vending machines in Northern Ireland. Since those groups have the same effect on Clauses 20 and 21, I will speak to them all. The main effect would be to compel the Government to prohibit tobacco vending machines, as outlined by my noble friend in his last contribution. In this instance, and at the moment, we believe that we need to take a proportionate approach, giving vending machine operators and owners an opportunity to prevent underage sales before prohibiting tobacco sales altogether— notwithstanding the invitation from the noble Lord, Lord Crisp, to go on a pub crawl to see how these work. The groups of amendments would make a number of changes and I shall take each in turn. First, a number of them would create an absolute duty on the appropriate Ministers, compelling them to ban tobacco vending machines outright. We have amendments, which will be discussed shortly, to remove the power to ban vending machines, and amendments that would simply ban them. We believe that at the moment we should take a middle road. It may help if I explain how we intend to use the powers in England. We agree with the principle of the amendments—that we must prevent underage sales from tobacco machines. I was struck by the contribution of my noble friend Lord Campbell-Savours, who said that there was also a need to support adults who try to give up smoking, notwithstanding the love affair of the noble Baroness, Lady Tonge, with vending machines. We intend to bring in regulations to restrict access to vending machines by children and young people under 18, while maintaining this source of cigarettes for adults. We intend these restrictions to apply from 2011. However, we will review the effectiveness of the new requirements over a period of two years following implementation. If it appears that restrictions are not successful in preventing underage purchases, we will reconsider moving to ban the sale of tobacco products from vending machines altogether. The approach that I have outlined to the Committee clearly requires both options to be available—for regulations either to impose requirements or to prohibit tobacco vending machines. In this respect, therefore, it is vital that the powers remain discretionary, but I assure noble Lords that, as a minimum, powers to regulate vending machines will certainly be used. The noble Baroness, Lady O’Cathain, referred to token-operated machines. In determining how to take forward regulations to require age-check mechanisms for tobacco vending machines, we will explore international evidence to compare the effectiveness and practices of different methods of age restriction. As the noble Baroness mentioned, a number of European member states have introduced age-restriction mechanisms on vending machines, and we shall seek to learn from their experience to ensure that our age restrictions are applied effectively in preventing underage sales. Amendments 92 and 100 would add explicit powers for regulations to make exemptions from the prohibition of vending machines. If the aim is to exempt certain types of vending machine, or certain types of premises where they are located, then the amendments are not needed. New Section 3A(7) in Clause 20 already allows us to make exemptions in regulations for particular cases, should we decide that that is appropriate. Currently we do not see the case for any exemptions but we do not rule them out. In determining how to take forward the detailed requirements for age-check mechanisms, we will seek the opinions of stakeholders, such as the National Association of Cigarette Machine Operators, and we will listen and give serious consideration to any case that is made for exemptions—for example, premises that are open only to those over the age of 18. I note that Amendment 90 is due to be discussed next and that that touches on this issue. We see practical difficulties here but perhaps we should defer discussion until the noble Earl, Lord Howe, moves his amendment. Next come Amendments 95 and 103. These create duties on appropriate Ministers to consult persons likely to be affected by the regulations before making them. I am happy to agree that open consultation is an important principle and I am pleased to be able to give reassurance on this. However, I wonder why it is felt necessary to consult when the other amendments would do away with tobacco vending machines altogether. In that case, what would we consult about? The Government will work with trade bodies, enforcement organisations and other stakeholders to inform the development of secondary legislation. We then intend to conduct a full three-month formal public consultation on draft regulations following Royal Assent. This would give business both certainty and ample preparation time by laying regulations as early as possible and, in any event, well before the first commencement dates due in 2011. In England, officials in the Department of Health are already working with their colleagues in the Department for Business, Enterprise and Regulatory Reform on arrangements for these initial discussions to take place. In Northern Ireland, the Department of Health, Social Services and Public Safety also intends to carry out a full three-month formal public consultation on the draft regulations and is fully committed to engaging with key stakeholders on the implementation of the proposed new measures. In recognition of the importance of these measures, all regulations relating to vending machines in England, Wales or Northern Ireland would be subject to approval by affirmative resolution of Parliament, the National Assembly for Wales or the Northern Ireland Assembly, so ensuring an appropriate opportunity for scrutiny and debate. Lastly, I come to Amendment 96, which is the exception. It applies only to Clause 20 and has no mirror in Clause 21 in relation to Northern Ireland. This amendment would remove subsection (2), which makes a breach of the regulations on tobacco vending machines a "tobacco offence" for the purposes of restricted premises and restricted sales orders. I understand that if we have no power to impose requirements, this provision may appear unnecessary. However, it would still be needed in respect of any breach of a future prohibition on tobacco vending machines, particularly if there are exemptions to an outright ban. These orders are part of a new system of "negative licensing" which aims to tackle those retailers who persistently sell tobacco to underage people. We will discuss this system in further detail when we discuss Amendment 106 concerning positive licensing. Suffice it to say for now that these orders may be applied to those retailers shown to have made underage sales at least three times over a period of two years. This is a last-resort action for trading standards officers to apply for when they have exhausted other avenues such as training and guidance. The aim of the system is to stop underage sales of tobacco. We believe that it is appropriate to include breaches of the new offence relating to vending machines because clearly a breach of a requirement aimed at preventing underage sales is relevant. Such a breach is highly likely to have resulted in sales actually being made to young people under 18. For those reasons, I cannot accept the amendment and I hope that the noble Lord will feel able to withdraw it.