Tobacco and Vapes Bill (Fourth sitting)

Sarah Bool Excerpts

Committee stage
Thursday 9th January 2025 Public Bill Committees

[The Chair]

Before I call the next speaker, and at the risk of sounding like a pedant, we do not use the second person in debates—that is, “you”—because when you talk about “you”, you are talking about me. I respectfully ask people to bear that in mind and use another person—maybe the third person.

[Sarah Bool (South Northamptonshire) (Con)]

Speaking specifically about amendments 17 and 18 and the age restriction of 25, I understand the arguments that have been made: Government policies often offer entitlement to one age, but not to another. For example, people have cited the state pension, which you will not get at 55, but you will after you hit 66. I would argue that those are one-off burdens of proof, because once you are 66, you will automatically—

[The Chair]

Order. Sorry, I do not want to have to push this, but when you talk about “you”, you are addressing the Chair. This is not about me, so please, for the purposes of our protocols, will people remember that? Thank you.

[Sarah Bool]

Once one has turned 66, that person does not have to confirm their age each and every couple of days or necessarily carry ID to claim their state pension—it is noted on the record, and that is that. Here, potentially, however, if we have an outright ban from 1 January 2009, whenever someone tries to buy a cigarette, after 2034 retailers will have to ask on every single occasion how old they are, for fear of a fine.

I agree that we already have the age 25 verification, but it is safe to assume that people reach an age when they do not have to prove it. I find it incredibly flattering when I do get IDed, but we all reach a point when we do not need it. In the Bill, however, we do. It might seem to be a quick check—one simply looks at the date of 1 January 2009—but we can foresee that being troublesome for retailers. Also, we very much have to bear in mind the issue of the abuse of staff and, as British retailers have mentioned, the increased financial and administrative burden, in particular for smaller shops, which is often where vapes and tobacco are sold. That will have a big impact on their businesses.

Indirectly, a potential effect is the introduction of legal inequalities and giving sanction to age discrimination by creating a create a class of under-aged adults. Furthermore, a point I would like to stress is that, as a lawyer, one of my main concerns is enforceability. I do not disagree with the principle of the next generation being smoke-free—I think that is admirable and important—but I want to ensure that we pass a piece of legislation that will work in practice. We have to think about how this will work in due course, even if in 10 years’ time. That is something I wanted to put on the record.

[The Parliamentary Under-Secretary of State for Health and Social Care (Andrew Gwynne)]

It is a pleasure to serve under your chairmanship, Mr Dowd. I am also grateful to the shadow Minister, the hon. Member for Sleaford and North Hykeham, for bringing this discussion before the Committee today.

These Liberal Democrat-tabled amendments would make it an offence to sell tobacco products, herbal smoking products or cigarette papers to a person under the age of 25, rather than to anyone born on or after 1 January 2009. The amendments also seek to change the age-of-sale notices to align with the change in the age of sale, which is why there are so many consequential amendments.

This group of amendments also includes amendments 29 and 30, which cover proxy sale of tobacco products in Scotland. To save time, I assure the Committee that, instead of now, I will discuss those particular issues during the clause 2 debate, which I hope will begin shortly, as that relates directly to the points in that group on proxy sales, rather than to age of sale.

As we heard from our expert witnesses during oral evidence, smoking is the No. 1 preventable cause of death, of disability and of ill health: it claims about 80,000 deaths a year across the United Kingdom; it causes one in four of all cancer deaths and it kills, as the shadow Minister rightly pointed out, two thirds of its long-term users. I say to the hon. Member for Windsor that there is no liberty whatever in addiction. We seek to ensure that the next generation is never addicted to tobacco products in the way that the current generation and previous generations have been. That is the real freedom here: the freedom not to be addicted to a product that, frankly, would not be allowed were it invented today.

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[Dr Johnson]

The hon. Gentleman is right to go back to the evidence. One of the things we were told in the evidence provided by National Trading Standards and the Local Government Association, particularly on Tuesday, was that they want discretion, but also that they want first-time offenders to be treated more leniently. That was a clear ask from our witness, who explained that educating or warning first-time offenders was a better option than fining them.

Each of the amendments that I have tabled seeks to make available a police caution that will not count on a criminal record and so means the person will not be criminalised, unlike someone’s being taken to court and given a fine. The amendments would add in a lower level, as well as reduce the overall top fine. What I am trying to get from the Minister before Report is an understanding of whom he is trying to fine and proportionality in the amount of the fine. We need guidance on that issue, so that we can fully understand how a Saturday shop worker will be treated if they inadvertently sold some tobacco to somebody in a first offence versus how a shopkeeper and licence holder will be treated if they repeatedly commit such offences. I want some guidance from the Minister on that.

[Sarah Bool]

To build on that point, it is also important that we have clarity from a legal and enforcement perspective. The person who commits an offence is liable on summary conviction to a fine “not exceeding” a certain level. I take the point about what trading standards may do in practice, but if the practice changes and they decide to always go for the upper level, there is nothing in the law that allows for a cautionary approach and another level. The amendment provides a benchmark and a safety catch, so that there is slightly different treatment. It would ensure that those who the Bill intends to punish are punished. From an enforcement perspective, it is a sensible amendment.

[Dr Johnson]

My hon. Friend is right. We are trying to get some indication in legislation that there are different groups of people: those who commit this offence inadvertently on a one-off basis and those who do so repeatedly and deliberately. Different individuals or corporations need different treatment. I hope that the Minister, when wrapping up this set of amendments, will let the Committee know whether the guidance on this sort of sentencing has been produced yet, as it was before the previous Bill Committee debated the subject. If it has not, can he give some indication of when it will be produced and, in particular, whether it will be produced before Report? That will be really helpful.

In relation to the fines, I also want to discuss the principle of proportionality. Tobacco is a harmful, age-restricted product, but it is far from the only product subject to restrictions. When I looked into this, I found there are many more age-restricted products than I thought, and it was difficult to find out what the penalties were for selling them, inadvertently or deliberately, to someone below the age threshold. Selling a lottery product, including scratch cards, to someone under 18 is against the law. The penalty for doing that is more severe than for selling tobacco. I hope the Minister will correct me if I get any of these wrong. I looked at various council, trading standards and Government websites to find this information, but some of those websites, despite being official or council-based, are out of date. I have done my best, and I will be grateful for any correction the Minister can provide.

The penalties I was able to find were an unlimited fine and up to two years in prison. It is also illegal to pay out the prize to someone under 18, so one could argue that buying a ticket in the first place is somewhat futile. This is generally enforced by the lottery operator itself. Underage sales can also lead to termination of contract and removal of the lottery terminal. Not included in the penalties, which the Minister may want to speak about on amendment 57, is a penalty to the licence holder in terms of his or her licence, but we might come to that later.

Butane or lighter fluid are also age-restricted, and selling them to an under-18 carries an unlimited fine or six months in prison. These are more severe penalties than for the tobacco offence. Fireworks have different age restrictions based on their category: for some the threshold is 18, but crackers, which have a small spark in them, have an age restriction of 12, which I did not know. I could have inadvertently breached that had I worked in a shop that sold such things.

Films in the cinema have age restrictions. When I was younger, I used to think that the higher restrictions meant that the film was cool, and therefore movie producers wanted to get the highest rating possible to make the film seem as cool as possible. Fortunately, I have gained a little bit more understanding since then. There is an unlimited fine for the cinema offence but, again, this is not a fine on the individual who sells the cinema ticket; it is a fine on the cinema itself as a business. That is why who pays these fines is important. There can also be six months’ imprisonment for the person running the cinema.

Alcohol is another example of an age-restricted product where there are fines and penalties. Selling alcohol to someone under 18 can lead to an on-the-spot fine of £90, a criminal caution, or formal prosecution with an unlimited fine. With alcohol, there is a different approach for offending persistently. If someone persistently sells alcohol to under-18s, they can be given an immediate closure order for their shop of up to 14 days or an unlimited fine. Also, shops need a licence to sell alcohol. Petrol or diesel from a petrol station cannot be sold to anyone under 16. That risk is mitigated using the licencing process, and again, there is a penalty of an unlimited fine and up to 12 months in prison. Selling a blade or a knife to someone under the age of 18 is illegal and carries an unlimited fine and up to six months in prison, as is the case for solvents too.

A challenge with the fines for the different age-restricted products is that they vary from product to product without a clear explanation necessarily being given. It is also worth considering the age of the customer, because this is not a law that applies to children. Most of these other examples I described are there to protect children. As a society, we have a job to protect children.

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[Dr Johnson]

I understand the Minister’s point. However, my point was that even in a world where things are illegal, we do have aggravating and mitigating circumstances in law. I suggest that, particularly as the rolling generations get older, selling to a child becomes an aggravating offence. I ask the Government to consider that.

[Sarah Bool]

Obviously, if someone is liable for a conviction or a fine, the defence is that they took all reasonable steps to avoid the commission. Given that in this instance we are talking about perhaps a fleeting look at a passport or something, will companies or shops now actually have to take scans or register that they have seen it?

[Dr Johnson]

My hon. Friend makes a valid point. I suggest, so that I do not try the patience of the Chair, that we discuss that when we get to clause 1 stand part, because it speaks to the substance of the clause rather than the substance of these amendments.

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[Dr Johnson]

The Minister is shaking his head. So what is a reasonable step? Unless one is to ask everyone for ID, the first step will be to decide whether to ask the customer in front of them for ID. That step will be, in essence, that shopkeeper or shop worker assess the person’s age.

Research shows that people are usually off by about eight years in their estimates of people’s ages by face alone. In fact, some research shows that if groups of people are shown a face, and the face that they are shown immediately before was a younger face, they will pick a younger age for that second person. If they are first shown an older face, they will pick an older age for that same person. That suggests that who the customer came in with, or who the previous customer was, may have an effect.

At the moment, we are asked to conduct a Challenge 25 check on a customer, but is it as easy to check the age of a 40 or 41-year-old as it is to check the age of someone under 25, or to tell whether someone is young or relatively young? The evidence seems to suggest that people who are close to 25 are quite good at telling whether people are under or over 25, and people who are close to 41 are apparently better at telling whether people are 40 or 41. It depends on age, and there is also an effect of sex and ethnicity.

Given that the Minister rejects new clause 3 tabled by the hon. Member for City of Durham on a policy on checking ID, he does not want people to have a policy on when to check, he does not want people to check everybody and he just indicated that he does not want people to rely on what they think based on looking at people, what reasonable steps would he expect to take place? The Government need to provide further guidance on that.

In the last Parliament, the hon. Member for York Central (Rachael Maskell) tabled an amendment for a nicotine-free generation. She made the point that we have a rolling age of tobacco products, herbal smoking products and cigarette papers, so why not have one for all nicotine products? We know that nicotine is addictive and that the industry will evolve to try to get people hooked to a different form of nicotine product—that may be less or more harmful than tobacco, but it will still be addictive. Their choices will still be taken away, and they will still be having something that they do not want, which costs them money and potentially makes them poorer as a result. If it were to become apparent later that these items were particularly harmful, and one wished to do another rolling ban, one could end up in a situation where there is an age for sale of alcohol, fireworks and all sorts of other things, and two rolling ages with two different dates—one for tobacco, herbal products and cigarette papers, and another for vaping and other nicotine products such as nicotine pouches.

Many of the amendments to the Conservative Government’s very similar Bill were included by this Government in their Bill, so I wonder whether the Minister could comment on why that particular amendment from a Government Member was not included.

[Sarah Bool]

To take a step back, I am still not satisfied that I understand, in practice, what the defence for someone to prove that they were shown ID means in practice? Perhaps that will form part of the guidance. If one is to suggest that CCTV is required, is that in the GDPR? In some circumstances, it would be quite difficult to prove. Given the seriousness of the offence and the repercussions, I just want some reassurance.

[Dr Johnson]

I thank my hon. Friend for that very helpful intervention. I, too, am not entirely clear what the Bill means by reasonable steps. We seem to have established what some reasonable steps might not be, but I am still not clear what they might be. It would be helpful if the Government elucidated that point further.

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My hon. Friend the Member for Windsor made a point about how people tell the age of somebody who is in front of them. Earlier, I explained that evidence shows that people are not very good at discerning the age of another person, particularly someone who is not in the same generational age group, or of the same ethnicity or sex.

[Sarah Bool]

Drawing on the point that my hon. Friend is making, one issue with the drafting of subsection (7) of new clause 3 is that businesses will need to have this age verification policy, but the national authority may—and it is only a “may”—publish guidance, so there is not clarity. Some form of template would be needed to make the provision effective. The intention is obviously to have a full policy in place, but the guidance could be just a piece of paper with three bullet points, and that would not meet the intention. Also, do we really need two fines in place when there is already a fine, as the Minister said, for selling? I do not think there needs to be a fine for not having a piece of paper with a policy.

[Dr Johnson]

If one is expected to have a policy, guidance on what that policy should contain is certainly important. If one is going to be held accountable for not having such a policy in law, it is clearly not sufficient to say, “You must have a policy but we are not going to tell you what it must say or do.” It comes back to the point that I have been making throughout the day. Who will face this fine? How will it be decided who the fine applies to? Will it be applied to the retailer as well as to shop workers, shop supervisors, shift supervisors or CEOs, and under what circumstances? I think there needs to be guidance on that so we have a clear pathway.

Clause 1 states that it is a defence if someone has taken “all reasonable steps”. If having a policy is not to be a reasonable step—there are arguments for why we might not want it to be, because it is an extra regulatory burden on business, and some very small businesses could struggle with that—and neither is looking at someone and making one’s own mind up, it is important to understand what is. I do not think we have got to the bottom of that yet.

My final question for the hon. Member for City of Durham, who tabled new clause 3, is: why not Northern Ireland? I think one reason why she has chosen to introduce this is because there is such a policy for Scotland, but not for England and Wales. I do not believe there is such a policy for Northern Ireland either, and I wonder why she did not seek to correct that in her new clause. It may be something that she wants to consider in refining such a new clause before Report.

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[Mary Kelly Foy]

I cannot point to any evidence in statistics, but retailers welcome it. I think 90% of retailers in Scotland are in favour of it. In England, 83% of small retailers agree with it, and I am sure that is because it takes away those cloudy grey areas. It means that once someone shows their ID, that is the end of it.

On the point about this being a slippery slope towards mandatory ID cards, young people now are used to carrying ID. In fact, the Bill provides a list of different forms of ID that people can provide, including passports and driving licences. I believe the Government are talking about introducing digital ID checks for the purchase of alcohol. If this were applied to tobacco, individuals would not need to carry a physical ID with them. The measure is supported by retailers and by seven out of 10 members of the public, as well as by the Local Government Association and trading standards, which both believe it would help with enforcing the legislation and aid prosecution.

I have tabled the new clause to simplify things. This has already happened in Scotland, and it would make the Bill consistent with the Government's four-nation approach. Given the issues that we have been discussing today, having mandatory ID would make things so much easier and simpler. Just to be clear, I will not be pushing it to a vote.

[Sarah Bool]

I want to take a step back and look again at clause 1 itself. Enforceability has to be considered as an important element of achieving the smoke-free generation. As I keep stating, as a former lawyer, I want to be absolutely sure before I can give further support.

I seek assurances from the Minister on the implementation of the policy with regard to Northern Ireland, if it is truly to be a smoke-free nation. One of the provisions of EU law in the Windsor framework is the EU’s second tobacco products directive—TPD2—which applies to Northern Ireland. It lays down various requirements that must be satisfied for tobacco products and vapes to be marketed in the EU—for example, on ingredients, emission levels and packaging. Most crucially, it also states that member states, which include Northern Ireland for these purposes,

“may not...prohibit or restrict the placing on the market of tobacco or related products which comply with this Directive.”

So a generational smoking ban may be incompatible with TPD2.

Similar plans for generational bans in Denmark and the Republic of Ireland were ditched in 2022 and 2024, respectively, because of TPD2. I ask the Minister whether the Department of Health and Social Care has any plans for this issue, and whether the Attorney General has formed a view that can be shared with us. I think we have learned over the years that it is imperative that we do not jeopardise our Northern Irish friends.

[Gregory Stafford]

It is a pleasure to serve under your chairmanship, Mr Dowd. I thank the shadow Minister for her comprehensive look at the clause, and the amendments and new clauses that go with it. I look forward to similar in-depth discussion on the rest of the Bill over the coming sittings.

I will state at the outset that I have never smoked a cigarette or tobacco-based product, or indeed any other product—legal or illegal—and I come with a background of being vehemently anti-smoking, so it may surprise some Members that I abstained on Second Reading. I did so for two reasons, really.

I support entirely the vapes element of the Bill, and had the Bill contained just that, I would have supported it wholeheartedly. I will not talk about vapes now, because that is a separate part of the Bill. My concern is with the enforceability of the tobacco element of the Bill, and indeed about some of the civil liberties that I outlined earlier. That said, I hope that hon. Members take my comments as helpful, supportive and inquisitorial rather than critical of the principle of the Bill. I entirely support the idea that we must have a smoke-free generation, as outlined in clause 1.

I abstained for two reasons. The first was personal. My paternal grandparents were both chain smokers. I do not have medical evidence of this, but I would say that both died because of that chain smoking. My grandfather died when I was three months old, so I do not have any recollection of meeting him. Having heard from people in Haslemere who did know him since becoming the Member of Parliament for the area where he lived, I feel that I am definitely the poorer for having not had the chance to meet him. My grandmother lived a lot longer; I knew her very well and loved her very much. But I have to say that the smell of tobacco and smoke in her house was not something I looked forward to as a child; in fact, I dreaded it. When I went back to visit that property, which is now in the hands of a lovely woman in Haslemere, it was refreshing that it did not have the pervasive smell of smoke and, to be frank, decay that went with it.

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[Gregory Stafford]

I am interested to hear those facts. I know the hon. Lady will not press her new clause to a vote, and given that the Government do not support it, as far as I can tell, it is probably not going to be part of the law, but perhaps we can have a further discussion on Report.

[Sarah Bool]

On that point, the concept of having an age verification policy so that all retailers know what to do in these situations is not necessarily a bad thing in itself, but the difficulty perhaps lies in making it an offence not to have one, because it will be in-built as part of that process.

[Gregory Stafford]

My hon. Friend makes a good point. We in this Committee want to ensure that nobody who does not have to dies of smoking or tobacco-related issues, but we do not want to make the regulations so tight that they make things more complicated than necessary for business.

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[Jack Rankin]

I will move, then, to tobacco products, the definition of which is in clauses 1, 50 and 68—forgive me that digression, Mr Dowd, but I got blown off course a little by some Labour Members. I made a differentiation between smoke-free and cigarette-free. All the arguments I have heard about the hugely detrimental nature and health challenges of a life of smoking pertain, in the majority, to cigarettes. I find the widest possible definition of tobacco products to be unnecessary.

I have made the point about recreational cigars. The Minister said that there was no safe level of consuming tobacco, but I would suggest that an adult can make a perfectly reasonable choice to, once a year, have a couple of cigars. Yes, there will be detrimental health effects, but an adult in a reasonable country should be able to make that choice. The definition should not include recreational products that do not have the same hook as cigarettes. I do not feel the need to have a cigar on January 8 because I had one on 31 December.

There is also a degree of puritanism to having the widest possible scope of tobacco product. I mentioned heated tobacco earlier. Although I know it has negative health effects, I understand that the data shows that to be significantly less than for cigarettes. Heated tobacco could be used as a cessation device, so the heavy-handed approach here might be overdoing it. In the same way, I would be interested in how the Minister thinks about nicotine patches.

To achieve the smoke-free future we all want, the UK must move in an evidence-based way that differentiates clearly between various smoke-free products and traditional cigarettes, because I do not think the current approach has necessarily been justified. We need to exclude reduced-risk products from the generational ban, which will help minimise confusion and encourage smokers to switch to less harmful alternatives.

[Sarah Bool]

I want to put on record that I concur with much of what my hon. Friend the Member for Farnham and Bordon said, particularly about vapes. My hesitation so far has always related to my concern about tobacco in clause 1.

I can reassure the Minister that I firmly believe in the United Kingdom. We have one of the finest legal systems in the world, and it is that basis that I have concerns: the greatest frustration in practice is that, while the principles are well intentioned, the drafting does not follow suit, which leads to litigation and sometimes to unintended consequences.

I firmly believe that health is wealth. As a type 1 diabetic, I do not want anyone else to experience any form of chronic suffering. I do not smoke and I never will, but I want to have strong law, which is what we are here to achieve. I therefore ask the Minister to give me some reassurances on Northern Ireland and TPD2, because that is fundamental to the roll-out of this smoke-free generation. I also have a question on what we will do about imports of cigarettes to ensure that we do not have the illicit trade we were talking of.