Health Bill [HL]

The amendments would remove the power to prohibit tobacco vending machines and limit regulations so that they could apply only to machines to which persons under the age of 18 are likely to have access. As we debated under the previo us group of amendments, Clause 20 provides that regulations may prohibit or impose requirements on tobacco vending machines. I agree that it is important that the impact of new legislation on business is justifiable and is seen to be a proportionate response to the problem. I have already explained that our intention therefore is for regulations to first restrict access to vending machines by children while maintaining them as a source of tobacco or cigarettes for adults. We wish to give the tobacco vending machine suppliers and operators ample opportunity to make changes to eradicate under-age sales of cigarettes from their machines, so these restrictions will not apply until 2011. Let me be clear that if measures to stop young people buying cigarettes from vending machines are successful there will be no need for the Government to use the power to prohibit vending machines. However, we are committed to protecting children and young people from accessing tobacco, and if the restrictions fail to prevent underage purchases, we will then move to ban cigarette vending machines altogether. But we will allow at least two years’ operation before considering whether a complete prohibition of tobacco vending machines would be justified. In effect, those that operate vending machines or have them on their premises, have from now until at least 2013 to show that they are able to stop children buying cigarettes from their machines. The evidence to justify action is clear: vending machines are the usual source of cigarettes for 17 per cent of the 11 to 15 year-olds who smoke. The British Heart Foundation estimates that 46,000 under-16 year-olds purchased cigarettes from vending machines in 2006 in England alone. It is therefore important that we retain the power to prohibit tobacco vending machines without further primary legislation should it be shown to be necessary. I should point out, as have other noble Lords, that vending machines supply only 1 per cent of the adult cigarette market, so a complete prohibition on this sort of purchase would not, we believe, seriously inconvenience adult smokers as there would still be many alternative retail outlets from which they would be able to carry on buying cigarettes. It is important that we use this opportunity to take the power to prohibit tobacco vending machines, should we need to do so in the light of experience with a more limited approach. I cannot therefore accept Amendment 88. Amendment 90 limits regulation-making powers to only those machines likely to be accessed by children; and I can appreciate the argument that if the aim is to tackle underage sales, it may not be necessary to impose requirements on tobacco vending machines that no one under 18 can use. First, however, I should like to take this opportunity to mention that new subsection 3A(7) already provides a power for regulations to make different provisions for different classes of case or circumstances. This power allows us to make exemptions, should we decide that that is appropriate. I appreciate that some tobacco vending machines are in pubs and clubs that limit entry to patrons or members who are 18 or over. If we can be absolutely certain that young people would always be asked for proof of age before entering a particular premises, I can see that it could be argued that further requirements on how vending machines operate in such premises might seem unnecessary. But when we consider how this would work in practice, the risks and the burdens for enforcement become clear. First, how would we know which premises to exclude? There would need to be a process for premises to provide the necessary evidence and assurance that they consistently operate robust and reliable age-limiting policies and procedures whenever the premises is open to the public, and I am aware that club premises primarily used in the evenings or later at night may also be available for use during the daytime, which might mean that younger people are allowed access. Secondly, there is the question of enforcement. Who will be responsible for deciding whether the premises were liable under the law or not? Local trading standards officers, perhaps, which would add to the burden and work of local authorities. Thirdly, what would happen if the age policy changed in the club? Would we need an offence of failure to notify a change in circumstances, and again who would keep track of such changes and take on the extra work that this would involve? The system would be rather difficult and burdensome on local enforcement authorities, and in addition it would be inflexible. We found that allowing such exemptions was proving ineffective in reducing underage tobacco sales. Under this amendment, our hands would be tied and we would be unable to bring those premises into the scope of the regulations without further primary legislation. As I have explained, there is already a power in new subsection 3A(7) which would allow us to make exemptions or to impose different requirements in relation to different types of premises, should we decide that this is appropriate. So I do not rule it out at this stage. I remind noble Lords that in recognition of the importance of these measures, all regulations relating to vending machines in England and Wales would be subject to approval by affirmative resolutions of Parliament or the National Assembly for Wales as appropriate. Parliament would then have the opportunity to debate further whether a ban on tobacco vending machines would be justified. For these reasons I am not able to accept the amendment and hope that the noble Lord will feel able to withdraw it.