Tobacco and Vapes Bill

Lord Murray of Blidworth Excerpts

Committee stage
Thursday 13th November 2025 Grand Committee

[Baroness Hoey (Non-Afl)]

My Lords, I will also speak to Amendments 138A, 200 and 201A. Before I go into them, I want to remind people that if this Bill goes through in its entirety as it is now, starting in February 2028, adults under the age of 21 in the Republic of Ireland will be barred from buying tobacco at home but will still be able to nip across the border to stock up in Northern Ireland. If the generational ban comes in, the cross-border relay will reverse, with 22 year-olds banned from buying tobacco in Belfast still free to nip over the border to Dublin. As the years go by, the legal uncertainty will get worse: 43 year-olds will not be able to buy a packet of cigarettes in Enniskillen legally, but a 44 year-old will; while just down the road in Donegal, both will be able to do so freely. It may sound amusing, but smugglers and so on will be absolutely delighted at being able to make such a lot of profit.

These amendments deal with issues that I sometimes think can be summed up as those that “dare not speak their name”, or, at least, those the Government seem to be putting their head in sand over. They all deal with the question of whether, because of the EU tobacco directive, the Bill can or cannot apply to Northern Ireland. According to that directive, states cannot limit the placing on the market of tobacco products. It was that which caused the Governments in Denmark and the Irish Republic to withdraw proposals to do more or less what this Bill is doing, because they would breach the European Union tobacco directive.

Before noble Lords say that Parliament is supreme and if it says that Northern Ireland is included, of course it will be, I remind them that under the Windsor Framework/protocol, Parliament no longer reigns supreme over one part of the UK: Northern Ireland,

“because Section 7A of the European Union (Withdrawal) Act 2018 overcomes every other provision in any other statute, whenever enacted, that stands or would stand in its way.”

Those are not my words but those of John Larkin, KC, the former Attorney-General of Northern Ireland, who has provided a legal opinion on this Bill and Part 3’s compatibility with the Northern Ireland protocol of the withdrawal agreement made between the United Kingdom and the European Union.

I should declare an interest. John Larkin acted for myself, the honourable Member for North Antrim, the noble Lord, Lord Dodds, and others in the case which brought about the Supreme Court judgment stating that the Acts of Union had been suspended because of the protocol. Noble Lords will know that the legacy Act has also been affected by this ruling, as was the Rwanda Act. The Government gave brave assurances in respect of those Bills that they were content that this would apply to Northern Ireland, only for the courts to rule otherwise, as many of us predicted they would.

At Second Reading of this Bill in the other place, the honourable Member for North Antrim raised this question, as did I and other noble Lords at Second Reading in your Lordships House. When I referred earlier to the Government hiding their head in the sand, I was referring to the varying answers we get from Ministers on the Bill’s compatibility with the Windsor Framework/protocol. The word “intention” is used too often, and there is clearly confusion, if not downright silence.

The Minister said at Second Reading, at the very end of the long debate:

“I assure noble Lords that we are content that the measures intended to apply to Northern Ireland are consistent with the obligations in the Windsor framework”.—[Official Report, 23/4/25; col. 744.]


What I find very concerning is the way in which the UK’s Attorney-General, the noble and learned Lord, Lord Hermer, reacted. I wrote to him on 16 October enclosing the legal opinion of John Larkin and summarising the key conclusions of all the legal advice. I said that he and others had said that Parliament is simply not free to legislate effectively in those policy areas in which EU law still prevails through the Windsor Framework agreement in Northern Ireland. I mentioned the idea of the generational ban in both those other EU states where the common obstacle was the 2014 directive, and said that

“the 2014 Directive, taking effect through the WF and section 7A of the 2018 Act, is an insuperable obstacle to the effective enactment of Part 3 of the Bill”.

That was on 16 October. On 2 November, I got an email back, signed not by the Attorney-General but by “Vicky”, who I think is the diary secretary to the law officers. It said: “Dear Baroness Hoey, apologies for the delay in getting back to you and thank you for the email and letter below. The Attorney is grateful for your letter; however, please can we politely suggest that you contact the Bill Ministers, the Secretary of State, Wes Streeting, and Baroness Merron. They will be better placed to discuss the topics raised in your letter”. I find that quite astonishing and my admiration for the Minister has risen so much, because she is clearly now going to be able to speak on behalf of the Attorney-General and his legal team. I am absolutely surprised at that answer.

My Amendments 114B, 138A and 201A seek to ensure that these parts of the Bill will not come into force until the Secretary of State commissions and publishes the findings of an independent legal opinion showing that these parts are fully compatible with the Windsor Framework and consistent with the EU’s tobacco products directive. Amendment 200 provides a route to allow the Bill to apply in Northern Ireland, and this would be to exempt the tobacco directive from passing through the conduit that delivers EU law to Northern Ireland: namely, Section 7A of the European Union (Withdrawal) Act 2018. Only then can we be confident that our Parliament decides the law for the whole of the United Kingdom and not just Great Britain. It is quite outrageous that our sovereign Parliament, despite the majority of the country voting to leave the European Union, cannot produce a Bill these days applying to the whole of the UK that we can be certain will do so. We will see legal action after legal action, and we see on other Bills that this is already happening.

This Bill, which is fundamentally about health in our country, may have some flaws, but surely it is not too much to expect that citizens in my part of the United Kingdom should be treated as equal citizens when it comes to such an important issue as health. John Larkin ended by saying:

“The 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 WF. Parliament is simply not free to legislate effectively in those policy areas in which EU law still prevails through the WF in Northern Ireland”.


That is an absolute disgrace, and I hope that more and more noble Lords are beginning to realise the actual, perhaps unforeseen consequences—although warned about at the time—of signing up under EU diktat to what is going to happen in part of our United Kingdom.

I hope that clarifies matters, and I greatly look forward to the response from the person standing in for the Attorney-General—I was going to say the “mini” Attorney-General, but that is the wrong word—on these legally very important issues that really affect the Bill. We could all be sitting here wasting our time, because this could end up, as so many other Bills will, in the Supreme Court. I beg to move.

[Lord Murray of Blidworth (Con)]

My Lords, I will speak in support of my Amendment 216, which proposes a new clause that would provide accountability and oversight. In my submission, it would balance flexibility with constraint and ensure the approval of the next Parliament for this policy. It would also provide a check on ministerial power, encourage inclusivity in the process and provide transparency as to how the policy evolves. In doing so, it aligns with the better regulation principles so fluently outlined by my noble friend Lord Johnson in his speech to the Committee in our previous debate. The better regulation principles emphasise the regular review of laws, avoid unnecessary burdens in respect of outdated legislation and help to maintain proportional public policy.

Amendment 216 would ensure that the significant regulatory powers in the Bill do not continue indefinitely without political scrutiny. It would create a five-year period for a formal review and allow the consideration, after that period, of any new evidence about public health outcomes, compliance levels, market behaviour or unintended consequences. I refer to my remarks to the Committee in our first debate, when we discussed the impact of the Bill on the growth of the black market for tobacco products, particularly cigarettes.

The provision would also encourage policy flexibility and development, ensuring that it remains fit for purpose. As the Committee can see, it requires an impact assessment before a potential renewal of the policy, to ensure that it remains data driven. The impact assessment would require a full consultation, with two months to respond, on the draft regulations that would result from the consultation process. That would ensure that a decision to proceed or not takes into account the views of all stakeholders, including manufacturers and retailers.

The provision is flexible in that it gives the Secretary of State power to extend the life of the provisions by regulation to six years, or to shorten it to four years if necessary. That is a measure of proportional consideration that has been included in my amendment. Requiring the renewal of the regulations related to the Tobacco and Vapes Bill to be subject to the affirmative procedure would allow Parliament to debate and approve the provisions and to determine whether they should remain in place. This measure requiring parliamentary approval to proceed would mean that this policy would then have political legitimacy in the next Parliament.

As noble Lords can see, proposed new subclause (2) in the amendment concerns the provisions of Part 3 of the Bill relating to sales in Northern Ireland. I draw the Committee’s attention to the answer given by the Minister to a question I raised on the first day in Committee. I asked her the following:

“The Minister has not yet touched on the issue of Northern Ireland. Is it right that the Windsor Framework precludes the generational smoking ban coming into effect in Northern Ireland?”


She replied:

“The Bill is UK-wide, as the noble Lord will be aware. It has been developed in partnership with the Scottish Government, the Welsh Government and the Northern Ireland Executive, and the intention is that the measures in the Bill will apply across the UK. I assure him that, in preparing the Bill, the Government considered all their domestic and international obligations and the Bill does comply”.—[Official Report, 27/10/25; col. GC 166.]


Given what we have just heard from the noble Baroness, Lady Hoey, on the careful and considered opinion of John Larkin, KC, the former Attorney-General for Northern Ireland, it appears that the Minister’s position was misplaced. Given what we have just heard about the correspondence that the noble Baroness has had with the Attorney-General, the noble and learned Lord, Lord Hermer, it seems that he is keen to wash his hands of the issue and refer to the experience of the Minister.

That is perhaps slightly unusual, given that there is a position called the Advocate-General for Northern Ireland—it was provided for in the Justice (Northern Ireland) Act 2002 and created upon devolution—but that senior Northern Irish legal post is held by one noble and learned Lord, Lord Hermer. Can the Minister give us a clear answer on whether the intention really is to apply these provisions to Northern Ireland? If it is not, is not the whole generational ban in some difficulty?