Tobacco and Vapes Bill

Baroness Fox of Buckley Excerpts

Report stage
Tuesday 3rd March 2026 Lords Chamber

[Lord Dodds of Duncairn (DUP)]

My Lords, I am grateful to follow the noble Baroness, Lady Ritchie, but say gently to her that Brexit has allowed the UK Government to pursue this legislation. As we have seen in the cases of Denmark and the Irish Republic, both Governments, whatever they might decide to do in the future, are deciding now that they are unable to proceed with this type of legislation because of the tobacco directive. The noble Baroness needs to be careful of the actuality and the legal position that prevails.

Noble Lords who are in favour of this intergenerational ban and are confident that the Windsor Framework does not provide any legal impediment should have no difficulty with these amendments. Amendment 201 in my name and that of the noble Baroness, Lady Hoey, makes it explicit that Section 7A of the European Union (Withdrawal) Act 2018 provides that European Union law is supreme in Northern Ireland. It is a conduit for the implementation of the Windsor Framework protocol. It says that if there is any doubt, the courts must say that UK law will be operative and cannot be set aside by any consideration of Section 7A. There should be no concern that these amendments are trying to impede the implementation of the inter- generational ban. They are trying to ensure that it will happen, despite the Windsor Framework.

I heard the noble Lord, Lord Forbes of Newcastle, talk about the legal opinion of the Tobacco Manufacturers’ Association. I have no doubt that it has produced a legal opinion, but many others have as well. The courts in Northern Ireland have ruled on this as well. We need to be clear that those of us who are concerned about this issue are looking at it from the point of view of ensuring that Northern Ireland does not lose out and that we are not prevented from benefiting from what should be a UK-wide, four-nations approach.

The former Attorney-General of Northern Ireland, John Larkin KC, has said that the Tobacco and Vapes Bill

“serves almost as a textbook example of how a measure advanced by a Government commanding a large majority in the House of Commons can run aground, as respects its Northern Ireland component, on provisions contained in the Windsor Framework … Parliament is simply not free to legislate effectively in those policy areas in which EU law still prevails through the Windsor Framework in Northern Ireland”.

We can look at other examples. On legacy legislation, the courts of Northern Ireland have said that Section 7A of the European Union (Withdrawal) Act means that an Act of Parliament is not just incompatible with the European Convention on Human Rights and therefore needs to be rectified but is actually disapplied and made of nil effect, because of Section 7A and the fact that European law overrides. We have seen it also in the case of migration law.

This is not some kind of novel concept, subtly dreamt up by a few people in the interests of the tobacco industry; this is a real concern about the application of European Union law—in this case, the tobacco directive—that has the potential and almost certainly the effect of disapplying this law for Northern Ireland. Anyone who is concerned about reducing smoking and the effects of smoking in Northern Ireland, where over 2,000 people die every year from illnesses associated with smoking, should be concerned about this issue and should want to do something about it.

The Government are relying on assertion. They keep asserting that this will apply throughout the United Kingdom. We have heard other speakers in this debate just provide assertions but ignore the clear approach that the courts in Northern Ireland have taken on these matters. Why do the Government not publish their advice, as the noble Baroness, Lady Hoey, said? They have published advice in other areas recently, so why do they not publish the advice and let us know what the particular argument is that says, in this particular instance of the tobacco directive, this will not apply in Northern Ireland? There is no logic; there is no analysis by any lawyer that I know of who has looked at this matter and who has dealt with the other cases that have come before the courts of Northern Ireland, and who believes that is the case. So why will the advice not be published?

We are told that this is just a normal age of sale restriction. The fact of the matter, of course, is that it is not just a normal age of sale restriction and therefore exempt; it is a rolling ban, and that cannot be got round. That is why the Irish Republic and Denmark took the position that they did, after getting very serious legal advice from those European Union law experts within their own Governments and the European Commission.

I say very respectfully to noble Lords who have spoken: do not rely on assertions. Do not rely on a view that this will be all right on the night and that there will not be any challenge. The fact of the matter is these things will be challenged. We are trying to build a protection into this Bill that will ensure that Northern Ireland benefits, along with the rest of the United Kingdom, in moving forward with this inter- generational ban. That is entirely reasonable. It is entirely sensible. Why not take the opportunity to ensure that guarantee is in place?

[Baroness Fox of Buckley (Non-Afl)]

My Lords, following on from that very useful contribution from the noble Lord, Lord Dodds, it goes without saying that the amendments in this group on the tensions between the Bill and the Windsor Framework are crucial. I want to commend the noble Baroness, Lady Hoey, for leading on this issue, because she has brought to light something that we need to understand.

It gets to a general concern about the Bill that I have, which is a worry about its workability—legally and when it comes into contact with reality—because I fear a rude awakening. A part of that will be the unintended consequences of the Bill, which a lot of us have tried to draw attention to in Committee and so on. That is why I have added my name to Amendment 206, which calls for periodic reviews of the Act in terms of its operation as well as its effects. I have also tabled my own amendments on the impact of the Act on domestic production and supply chains, which I will discuss later.

Just before I explain why, I am of course glad to see that the Government also recognise the need for a review, and that is very positive. With all due respect to the Minister, I am afraid that Amendment 205 is just not extensive enough. I was particularly disappointed that the consultation is limited to the Welsh Ministers, the Scottish Ministers and the Department of Health in Northern Ireland—what about all those other stakeholders who would be affected and what about the research? I would really urge the noble Baroness, Lady Merron, to incorporate parts of my own amendment and that of the noble Lords, Lord Lansley and Lord Norton of Louth, into her amendment to make it have some substance and not just be written down for the sake of it.

Amendment 206 gives a concrete shape to what should be reviewed. I appreciate its focus on independently conducted research, particularly now that there have been complaints that, “You cannot trust that research because it is by the Tobacco Manufacturers’ Association”. I have similar views when I read research by ASH. The noble Lord who cited it, as though he was a kind of neutral observer, is part of another lobbying group. I would rather have neither as my trustworthy go-to. But I feel that quite a lot of important information is missed if we do not have research, so that is why I like it.

I felt frustrated during our deliberations in Committee that so much information had been overlooked. For example, many neutral academics who have researched the health impacts of vaping, in particular its efficacy in helping people quit smoking and the epidemiology of vaping versus smoking, had been overlooked by the Government. These would be invaluable sources and insights had they been consulted.

In Committee, I also suggested that the Government should look at research coming out of assessing the impact of the single-use vape ban that came into force last June. My amendment was rejected, but, interestingly, early evidence and research, as well as market indicators, show that the majority of adult vapers have transitioned to compliant reusable products. I did not think they would, but they have. That is interesting, because it goes against what I intuitively thought.

However, recent evidence shows that 9% of daily vapers admit purchasing illegal single-use vapes and, more worrying, 15% of former single-use vapers report that they have returned to smoking and/or increased their tobacco use. This sort of research and information is important for us to understand why we need careful monitoring, and with this Bill, we are going to need a lot of careful monitoring.

That is why I commend the amendment from the noble Lord, Lord Lansley, which asks all the right questions to review evidence to discover whether the Act will actually reduce rates of smoking. Will it reduce rates of vaping among young people and children? Will the legislation reduce the use of vaping products for adults? That is not a good outcome, but will that be what happens? What will the economic impact of the law change be on small and micro-businesses? That is something I am really worried about in terms of family-run convenience stores and so on.

The amendment also usefully differentiates between tobacco, nicotine and vape use, which are too frequently in discussions elided without distinction. The suggestion of assessing

“the behavioural responses to the regulatory regimes introduced under this Act”

is key, as the Bill makes a number of suppositions based on the idea that everything in this Bill will have a certain impact on the behaviour of consumers, retailers and other parties. But as this is a novel policy that nobody else has done before, there is no evidence from anywhere else in the world that it will work. We are yet to see whether behaviour will change in the way the Government allege and the supporters of this Bill imagine, so the review will check reality.

My Amendment 207 is more focused on an aspect of the Bill’s impact that we have not really talked about before now. It seeks a structured parliamentary scrutiny of the Act’s practical effects on domestic production, supply chains and market behaviour and enforcement in relation to nicotine products. There is a whole new industry that has grown up domestically around nicotine products, and it is going to be hit by the Bill.

The Bill represents a significant regulatory intervention in a rapidly evolving market. Regulator interventions on this scale can produce structural consequences beyond their primary intent. Often, when Bills are passed, we see problematic effects afterwards, such as compliance costs altering competitive balance, enforcement capacity not being aligned with legislative ambition, lawful operators facing disproportionate burdens and illicit, dodgy suppliers adapting more quickly outside the law than lawful businesses striving and straining to comply with law changes. One area of concern is whether the relatively new, innovative, domestic industry associated with nicotine products will be strangled almost before it gets off the ground.

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[Lord Darzi of Denham (Non-Afl)]

If I have not, then I apologise. I still believe it is not clear on paper. I feel it is the flavour that is being bound, but if the noble Lord’s amendment is correcting that, that is fine. Narrowing the powers before the science is settled is another issue. There is very little scientific evidence on the impact of the taste or whatever the inhaler contains. This has not been utilised before, so we do not know the dangers of the substance that is being inhaled. The prudent course is to retain the widest possible powers and to act on evidence as it emerges. To do otherwise will leave our children exposed to risks we could have prevented. I urge the House to at least look at these amendments or reject them.

[Baroness Fox of Buckley (Non-Afl)]

My Lords, I shall be brief, because the noble Lord, Lord Moylan, has explained what his amendment is trying to do. I just want to query whether narrowing the powers before the science is settled is an admirable aspiration. That gives authoritarian power to the Government to do anything they want because there is no science and it is not settled. How is that evidence-based policy? It is the opposite and I think that is very dangerous.

I want to more accurately emphasise that flavours are part of smoking cessation, but I am only going to do that briefly. The reason why I want to do that is to quote ASH, because—guess what?—ASH says that flavours are a very important way in which adults vape and therefore give up smoking. So, for once, I am quoting ASH in a positive way to say that flavours cannot be demonised and we have to be very careful what we wish for.

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I believe that the Government should consider accepting this amendment, which is designed to facilitate good policy-making and mitigate any of the unintended consequences that the powers in the Bill might have on the hospitality industry.

[Baroness Fox of Buckley (Non-Afl)]

My Lords, the explanation for the amendments has been well made. I have added my name to a number of amendments, including Amendments 149 and 151 in the name of the noble Lord, Lord Udny-Lister, which would exclude vapes and nicotine products from prohibitions regarding advertising, and he has explained why.

It is genuinely shocking how many misconceptions there are about vaping and smoking among the public. There is a real job of communication that the Government have an obligation to do. If 50% of adults now believe that vaping is as harmful as smoking, that is not a good thing. If only 30% believe vaping is less harmful, that is not positive.

Conflicting messaging about vaping can discourage smokers from switching to lower-risk products and therefore widen health inequalities—all the things we keep talking about. Misrepresentation is a real problem and I think we have got to tackle it. Banning advertising would reinforce the false perception that vaping is just as harmful as smoking.

As we are coming to the end, I will make my final declaration. As somebody who smoked 40 cigarettes every day for 40 years—can you imagine?—I want to put on record in Hansard that I am grateful to the vaping industry, and particularly to flavoured vapes, because I stopped smoking as a consequence of flavoured vapes. That is what I thought that everybody wanted us smokers to do, only to find that vaping and smoking are being treated as though they are almost the same. I am very keen that we do not do anything that will make vaping less visible or erase it from the public square.

The Government have sort of acknowledged that by allowing public authorities to run mass media campaigns encouraging adults who smoke to “Swap to Stop”. Dare I suggest that official public health adverts, even if they go on TikTok, might be a little bit dry and less appealing than seeing some adverts for vapes in a nightclub? Tens of thousands of people gather for a night out at hospitality venues, so that seems to be something that the Government would want to encourage. Although I know that the amendments do not make the Government do anything, I suggest that it would be very positive if, in venues where you have thousands of adult smokers, they saw adverts for less harmful alternatives to smoking. That is a clever way to encourage switch-and-quit.

That is one of the reasons why I have added my name to Amendment 168 in the names of the noble Lords, Lord Sharpe of Epsom, Lord Brady of Altrincham and Lord Naseby. The emphasis on adverts for vapes and products that do not contain tobacco is well made. It is also important for us to consider the hospitality sector; that has been explained very well. Hospitality venues rely on marketing and sponsorship as part of their income. As I say, it would be a public service, rather than doing anything damaging, to allow them to carry on.

Many of us are worried about the fatal damage that the Bill will do to the retail sector. It seems ridiculous that another industry could be put in jeopardy by the Bill; that would not be good for the Government’s growth strategy. When UKHospitality stresses that the industry has

“absolutely no more capacity to absorb additional costs”,

we should listen. When the CEO of Whitbread, one of the largest hospitality operators in the country, says that the hospitality industry

“finds itself on the receiving end of a series of government interventions which together will significantly hold back our ability to contribute to growth”,

we should listen. We could, rather carelessly, be in a situation where we do not take that into consideration when we bring in some of these advertising restrictions. These amendments are proportionate; they suggest that we should hold back a little and at least organise a consultation.

Another industry that the Bill imperils is the design industry. That is why I have added my name to Amendment 152, which would exempt designers from having committed an offence if they had “reason to suspect” that a design or imagery contains these kinds of products. The problem for designers is that they may be criminalised for designing something that includes products that the Bill is trying to eradicate from the public space. That is a serious attack on artistic freedom. This amendment should be incorporated into the Bill. I do not think that anyone intended for the Bill to criminalise designers—but this is a Bill that will do all sorts of things that were not intended. These amendments are very moderate and allow the Government to hold back the tide of that.

[Lord Strathcarron (Non-Afl)]

My Lords, very briefly, I support Amendment 168 in the name of the noble Lord, Lord Sharpe, and of other noble Lords, because it seems so reasonable. Surely there is no harm done if the advertisement is in a licensed premises; is not visible, except from inside the venue; is not for a tobacco product; mentions a smoke- or vape-free area; and is age-restricted to adults only. I cannot see what there is to object to, unless we are saying that the age restrictions do not work—in which case, why are we pressing ahead with a generational ban in the first place? Do we really want to get into this overreaching, overregulated situation where the compulsory cure is worse than the voluntary disease—one entered into willingly and knowingly by consenting adults?

I particularly support subsection (3) of the proposed new clause. It asks for further investigation into the effects on the hospitality industry, which is already suffering the devastating consequences of other policies. It would be good to hear what losing these marketing revenue streams will mean for those who have to run a business to make a profit in order to employ people, especially bearing in mind that recent policies have cost nearly 100,000 jobs and are responsible for nearly 50% of all job losses.

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The request that I would make is for the Minister to confirm that any designations of premises that are made under the powers in this clause will be based strictly on published evidence of risk to health and not, for example, on the precautionary principle or a desire for regulatory symmetry with tobacco. I beg to move.

[Baroness Fox of Buckley (Non-Afl)]

My Lords, I thank the noble Earl, Lord Howe, for introducing those amendments so well and explaining some of the concerns. I am particularly pleased that he brought back the point about artistic freedom because it was very well made.

I will talk more broadly about the amendments in this group, which sum up the dangers of mission creep inherent in the Bill and highlight the pitfalls in allowing the Secretary of State to have such leeway, away from democratic scrutiny, to move the goalposts. Granting Ministers the power to extend smoke-free areas, including outdoors, to include vaping and heated-tobacco use, should not just be nodded through. It would mean the use of secondary legislation to allow the banning of, for example, smoking or vaping outside in the beer garden of a pub and the ring-fencing of whole swathes of outdoor uncovered spaces, such as outside health and social care facilities or education settings.

It is worth remembering that this would mean that for front-line workers, from teachers to care workers, never mind patients or residents, it could be illegal to go and have a vape outside their workplace. Is that reasonable? Is that proportionate? It is one thing for the workplace to designate that they should not, but for the law to intervene is more dangerous. This again, in effect, conflates smoking with vaping, undermining the perception that vaping is relatively safer, as I have endlessly, boringly, repeated.

I want to say something about smokers because, in this relentless bid to banish smoking, there is a danger that we end up demonising smokers—millions of our citizens who can be punished for indulging in a risky but legal habit—and saying that we do not want to see them anywhere in the public sphere. I do not know that this is the kind of society that the Government have in mind. Even Cancer Research UK warns that

“it will be important to consider how to avoid stigma or accidentally risk pushing people into smoking in their homes, which would increase second-hand smoke exposure to those living with them”.

There again are those unintended consequences.

Part of the justification for many of these outdoor bans is the notion of modelling and normalisation theories that are so popular in academia, which say that we need to protect children so that they never see adults smoking or vaping and therefore do not copy them and it is never normalised. I want us to think about what that would mean if that was why we could never have adults vaping outside where children might see them. If we are saying that children might copy adults who vape or smoke, is that not a green light for the state to start seizing children from their parents and leading public health home invasions to rescue children from their vaping parents? I am frightened to say that because it might give the Minister some ideas.

The amendments in this group that I have put my name to are again largely those in the name of the noble Lord, Lord Udny-Lister, because he tabled some brilliant amendments. They seem to me to be entirely proportionate and sensible, seeking to keep the Bill on track and focused on its stated aims instead of being a vehicle for outlandish overreach that is not evidence-based. The arguments in favour of restricting vaping and smoking outside venues seem to hinge on a prohibitionist personal distaste for the habit rather than evidence-based policy.

That is why the issue around passive vaping and the lack of evidence in relation to it is worth highlighting. Cancer Research UK supports the Bill but keeps putting out warnings in its briefings that you must be careful not to go too far. It says:

“Further research is needed to understand the health effects of vaping, however the current evidence does not suggest that breathing in second hand vapour is harmful. Given that evidence indicates that vaping is far less harmful than smoking, it’s likely that second-hand vapour would be less harmful than second-hand smoke”.


Meanwhile, Dr Sarah Jackson, principal research fellow at UCL’s tobacco and alcohol research group, explains:

“Second-hand exposure also differs: smoke comes both from the burning tip of the cigarette and exhaled smoke, whereas e-cigarettes release aerosol only when exhaled, resulting in far lower bystander exposure. Research led by UCL found that people exposed to second-hand vapour absorb around 84% less nicotine than those exposed to second-hand smoke. While not zero, exposure from vaping is far lower than from smoking, and levels of other toxicants are likely to be lower still”.


They are basically saying, “Hold on, keep a sense of proportion”, and that is all that we are talking about here.

I hope that the Government will seek out such voices in their consultation on smoke-free, heated tobacco-free and vape-free places in England, which was announced on the first day of Recess on Friday 13 February. Of course, these free places will be anything but free, as they will deny individuals personal freedoms and impinge on the freedoms of a great many private and public venues.

I urge the Minister and her department to widely and loudly advertise that consultation so that a diverse group of respondents can be encouraged to feed in beyond the usual suspects, NGOs and lobbyists. I especially hope she will encourage the hospitality industry and individual venues to respond because, as we have already heard, the hospitality industry is under the cosh.

The British Institute of Innkeeping has warned that 62% of its members fear that these kinds of bans will negatively impact their trade and 20% believe it would lead to the closure of their pubs. Sometimes when we discuss issues in the Bill, we view all aspects of society only through the prism of public health. It can be a rather joyless, arid and sanitised version of “The Good Life”, in my opinion. For those unfamiliar with the world of pubs, pub gardens, nightclubs, or eating or music venues, overregulation will kill them off; it will kill off the atmosphere, never mind kill them off financially.

The truth is that if one looks at the research, 49% of regular pub-goers are smokers—shock horror—even though smokers account for less than 15% of the UK population. More and more, of course, are vapers. That is not a crime nor a problem. Funnily enough, a lot of people who go to pubs also like to have a drink. Yet, bizarrely, they are in trouble for that too. Many in hospitality worry that the Bill will be used as a blueprint for alcohol, as well as anything else. Indeed, the Department of Health is considering preventing under-18s from purchasing no-alcohol or alcohol-free drinks in pubs, because they say it would encourage alcohol uptake in the future. Then there is a discussion about adding health warnings and imagery and plain packaging to alcohol bottles.

It is no wonder that all those different hospitality organisations that the noble Lord, Lord Sharpe, quoted are saying that they are worried about the impact of the Bill and its provisions on trade, customers’ behaviour and operating costs. To be honest, it is no wonder that many publicans have banned Labour MPs from their locals, if one considers everything that has been added on.

Presently, hospitality venues put up their own restrictions. In other words, they ban people they do not want; they have rules. That is because they deal with their clientele with absolute common sense. But there is a fear that such proportionate self-regulation by the sensible people who run the hospitality industry in this country will be trampled on by the Bill.

Finally, sadly, trusting small SMEs in hospitality to act responsibly is not a feature of Amendment 199 in the names of the noble Baronesses, Lady Northover and Lady Walmsley. It seems apt to note, in my final speech on this Bill, how shocked I am—shocked, I tell you—that the Liberal Democrat Benches are neither liberal nor democratic on this issue. Through Amendment 199, they want to inveigle local councils into compliance by using this law to issue future pavement licences only as smoke-free. So much for localism, encouraging a thriving high street or cafe society, or supporting local autonomy. It is a step too far; I think a few things are, but that really is the limit. I hope the Minister can reassure me that the Government are not as illiberal as the Liberal Democrats. I will not necessarily hold my breath.

[Lord Udny-Lister (Con)]

My Lords, it is really hard to follow the noble Baroness, Lady Fox, when she gives a speech like that. Amendments 193, 194, 197 and 198 hope to address the powers to designate vape-free and heated tobacco-free places. The argument, really, is that it is all a bit over the top. There is limited evidence of harm from passive vaping compared with that of inhaling second-hand smoke. It is my fear that, as currently drafted, the Bill could inadvertently force ex-smokers to have relapses if they are using alternatives alongside smokers. That is what is going to happen. They are all going to be pushed into the same area, and that, I suggest, is the worst of all outcomes.

I further push the point that age-gated venues should be able to retain the discretion that they already have. Our hospitality and pub sectors need these safeguards.

Of course I agree with everybody that we must protect children but, in doing so, we must not inadvertently drive adults back to cigarettes and destroy our pubs in the process. That, I am afraid, is exactly what we run the risk of doing.