Mike Penning winds up a debate on the Health Bill and explains that he is against a ban of 'point of sale' tobacco advertising as there is no evidence to suggest it would reduce smoking but it would certainly be detrimental to the survival of small shops.

Mike Penning: It is a pleasure to take this element of the Bill through its final stages.

I was a proud member of the Select Committee on Health that pushed the Government from a partial ban on smoking in public places to a full ban. I did not think that anyone should be protected under the legislation on a cherry-picking principle. It should be one rule for all or not at all. I was therefore pleased that the Select Committee, after taking a lot of evidence, reached conclusions that meant that an amendment was tabled and, on a free vote, the House came to a sensible decision.

Unless things have changed since the debate began, I am sad that the two main Opposition parties have a free vote this evening, while the Government party does not. That is a shame. It is an issue of conscience— [Interruption.] No, the Government party does not have a free vote—Labour Members can ask the Minister. Some selective voting by Labour Members may happen, but the Government will oppose the amendments and that is a shame.

Dr. John Pugh (Southport) (LD): It is all the sadder because the evidence is ambiguous. There is no decisive evidence to compel Ministers and Labour Members to vote the same way.

Mike Penning: That is a sensible point. We did not force any votes in Committee because we wanted the House to have the opportunity to express a view and did not want to constrain the House. I said to the Minister in Committee that the evidence appeared to be selective. I understand where it came from; I have nothing but admiration for Cancer Research UK and Action on Smoking and Health—ASH. I have worked with them in the past and will continue to do that. However, it is a Minister’s job to examine all the evidence so that legislation is evidence-based.

Christopher Fraser (South-West Norfolk) (Con): I am sure that my hon. Friend is also particularly sad because the group of amendments affects businesses in all our constituencies and it would therefore be good to see Labour Members standing up for their local companies, especially in difficult economic times.

Mike Penning: The important point is that the businesses to which my hon. Friend refers are operating legally. We are considering a legal product. I am sure that many hon. Members would like it to be illegal, but it is not. While it is sold by businesses legitimately, fairly and legally, they should not be persecuted. That is my view and my reason for tabling the amendments.

There are four new clauses and a raft of amendments and I shall try to speak about as many as possible, but without taking up too much of the House’s time because it is important that hon. Members vote on as many as possible. The Opposition are looking to press new clause 1 and amendments 1 and 2 in particular to a vote.

I find it strange that the Government have not accepted the substance of new clause 1 and tabled such an amendment themselves. Raising the smoking age from 16 to 18 had broad support throughout the country, levelled up our legislation with that of many of our European colleagues and friends, and made it similar to that for alcohol. Yet while it is understandably illegal for someone to proxy-purchase alcohol and pass it on to a minor, it is not illegal to proxy-purchase cigarettes and pass them on to a minor. I do not understand that. If the measure is to protect young people, and I genuinely broadly support it, I do not understand why new clause 1 is not accepted, especially given the evidence from the manufacturers themselves that 89 per cent. of young people who smoke buy cigarettes from or are given them by another person outside a legal shop premises.

I have no truck with tobacco manufacturers. They know—I have said it publicly—that I would be happy if they went bust tomorrow morning. I do not like tobacco products, but while they are legal, legal businesses, which do not break the law, should have every opportunity to sell them and not be penalised.

David Taylor (North-West Leicestershire) (Lab/Co-op): The hon. Gentleman refers to outlawing proxy purchases of tobacco. However, we have a parallel regime for outlawing proxy purchases of alcohol, which has proved extremely difficult and costly to enforce and has not been especially successful. Why does he think that tobacco would be different?
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Mike Penning: There are two things to say about that. First, unenforceable legislation is bad law and, secondly, the alcohol legislation is being enforced, particularly in the constituency of my hon. Friend the Member for South Cambridgeshire (Mr. Lansley).

Mr. Lansley: No, it is next door.

Mike Penning: I do apologise—it is being enforced in Cambridge, where partnerships have worked together and driven down the amount of alcohol being drunk on the streets, particularly by young people. It can be done, if there is a will. I know the hon. Member for North-West Leicestershire (David Taylor) very well. We do not want young kids to buy tobacco from, or to be given tobacco by, an adult who is making an illicit earning by doing so.

The shops, of course, are doing their best. They are asking whether people are 18 years old, and when someone proves that they are, they can buy the tobacco and sell it on. That cannot be acceptable, and we do not accept it with alcohol. If the hon. Gentleman is right, the Government need to get a grip on alcohol legislation. The key point is that the Government did the right thing by raising the age to 18, but they have not done the right thing in their proposals. That is the reason for new clause 1.

The crux of amendment 1 is the evidence that the measure in the Bill would massively affect businesses in this country at this very difficult time—that was raised by my hon. Friend the Member for South-West Norfolk (Christopher Fraser). Is there sufficient evidence to ban displays at the point of sale, which will affect people’s businesses? I have looked long and hard for evidence from around the world that the Government’s proposals are sufficiently evidence-based, but I do not think that they are. I am sure that the Minister will refer to the experiment in Canada. When the measure was introduced in one state, there was a drop, but in states where it was not introduced, there was also a drop. What is the evidence base from that?

The other thing that worries me about the evidence base, particularly Professor Hastings’s evidence, is that it is based on what people are likely to do rather than on what they have done. I am sure that we have all been canvassing quite a lot lately and knocking on doors. If every single person who said, “Yes, I will vote for you Mike—that is my intention,” did so, my majority would be about 10 times greater than it is. We all know about people stating their intent, but surely the evidence base for the Bill should be what people have done. We do not have such evidence.

Philip Davies (Shipley) (Con): My hon. Friend is typically making a powerful case. I was a retailer for 12 years before entering Parliament, and I can tell him that tobacco is not an impulse purchase in the way that cream cakes are, yet the Government are treating them the same way. People walk past cream cakes and think, “Oh, I might try one of them, they look quite nice,” but they do not do the same with tobacco. Tobacco is not an impulse purchase, so does he agree that it should not be treated as such?

Mike Penning: I completely agree with my hon. Friend, as does the evidence from across the spectrum. At the moment, we do not have the recommendations from the Government, or know what they are likely to do or how they will interpret the measure. They are as yet unavailable, so we are going to be voting this evening on measures in the Bill the impact of which we do not directly know. We were promised those details early in Committee and last week. Will the Minister tell us where they are?

The Minister of State, Department of Health (Gillian Merron): The hon. Gentleman may be aware that the regulations were published earlier today, before the debate commenced. Indeed, they were e-mailed to all Members of Parliament and are available in the Library and the Vote Office.

Mike Penning: Does that not tell us everything about the Government? It is like lastminute.com, but this is such an important issue. Businesses and Members of Parliament needed to know about the regulations weeks ago, not on the day when we are debating the Bill. We will be voting this evening on the future of the local stores and businesses in our constituencies, and I am disappointed in the Minister. I think she had every opportunity to bring that information forward.

Gillian Merron: I hope that hon. Members are aware that we have involved many retail organisations in the development of the draft regulations. It is not always the case that regulations are produced before a Bill is debated—far from it. Ideally, I would have liked to see them earlier, but we are ahead of time on many other provisions.

Mike Penning: There is a saying that goes, “When you get in a hole, stop digging.” The industry, which sells a legal product, is very worried. It has been calling for some time for the regulations to published so that it can find out exactly what is going on.

Lembit Öpik (Montgomeryshire) (LD): Does the hon. Gentleman find it astounding that the Minister thinks that publishing the regulations this afternoon is acceptable when, as the hon. Member for South-West Norfolk (Christopher Fraser) rightly observed, the retailers are going to suffer? They needed to see the regulations before we started the debate, but they were published merely hours before it began.

Mike Penning: This is exactly what the retailers were asking me earlier today and what we were asking last week: “Where are they?” They wanted to know what the impact on them would be and the size of displays.

Mr. Andy Slaughter (Ealing, Acton and Shepherd's Bush) (Lab): Let us have an argument about process because there is no substance. I am listening to the hon. Gentleman. If he is right that there is no argument about tobacco being an impulse purchase, why is he so bothered about display at point of sale being banned? The evidence is that the tobacco companies take great comfort from the displays and the advertising they do at point of sale, and in the fact that it influences young people. If he believes that the measure would damage the retail trade, why does he not address that point?

Mike Penning: I am concerned about having good law—a law that we can enforce and one that does not have a disproportionate impact on people who are going about their law-abiding trades. That is my point.

Looking carefully at and reading the evidence will show us that what the hon. Gentleman just said is fundamentally wrong. The evidence tells us that most children—we are talking about under-18s—do not purchase cigarettes in a shop. There is evidence of vending machine use, which I will come to in a moment, but most people are given tobacco or purchase it from an adult. There would be no impact from the measures. That is the evidence.

Christopher Fraser: Further to the point made by the hon. Member for Montgomeryshire (Lembit Öpik), the Association of Convenience Stores has said that the display ban could cost each store a minimum of £1,800, or even as much as £5,000. That is far too high for a store to bear in these economic times. I am sure that my hon. Friend will agree that those same store owners are scrupulous about how they sell such products, because they would not be in trade if they did not do it properly.

Mike Penning: My hon. Friend’s point is absolutely crucial. Those store owners do not know exactly how much the measure will cost them, because until this morning, we had no idea what was going on. If a shop sells cigarettes to an under-age child, it should be warned, then it should receive a written warning, then it should be three strikes and out. Local government already has those powers. That process happens in some parts of the country, but it should be enforced throughout the country.

Mr. Philip Dunne (Ludlow) (Con): My hon. Friend makes a very powerful case, and I share his abhorrence at the prevalence of smoking. However, the Government’s proposal would have implications not only on the capital cost to retailers, as was outlined by my hon. Friend the Member for South-West Norfolk (Christopher Fraser), but on their revenue. The measure would enforce continuing annual losses of trade. Many of the small confectioners, tobacconists and newsagents rely on tobacco sales for something approaching 30 per cent. of their turnover. The significant loss of turnover resulting from the display ban would put many of those shops out of business when the economy least needs to lose local community shops.

My second, related point, is that making tobacco an under-the-counter product will increase the propensity of illegal products being sold through other outlets, which will lead to a substantial reduction in Government revenue.

Mike Penning: I agree completely with my hon. Friend.

David Taylor: Will the hon. Gentleman give way?

Mike Penning: If the hon. Gentleman will bear with me, I need to make some progress, and I want my Back-Bench colleagues to speak on this matter, because it is very important.

The amount that such retailers take in revenue is not the only important thing: the footfall is also important. I would have thought that the Government, who are trying to find extra income and who are today selling off some of the nation’s assets—we would agree with some of their measures, but they are having a one-off sale—would have considered why they are losing more than £3 billion in duty on black market and counterfeit cigarettes, and white imports.

Sir Patrick Cormack: I am extremely grateful that my hon. Friend touched on that point. As Chairman of the Select Committee on Northern Ireland Affairs, I know what a terrible impact such activity has had on Northern Ireland. It is not only a question of revenue lost. The illicit cigarettes that are sold are frequently highly toxic—far more toxic than the orthodox product.

Mike Penning: Three aspects of illicit tobacco worry me. The first is the duty that is not paid and the loss of income. Secondly, we have no idea what counterfeit cigarettes contain. I support the amendment on the contents of cigarettes, but we know nothing about those that are made in some dodgy shed in a field and then imported into this country. The third aspect—and I saw how prevalent it is when I went to a football match at Watford the other day and saw the discarded packets—is the so-called white products, which look like legitimate products, but are made in the eastern bloc and are brought into this country for about 25p a packet and sold on. The people who sell those cigarettes do not care who buys them. One in five cigarettes sold in this country is sold on the black market. Why do we not attack that market? Why is it not a criminal offence to sell such cigarettes? It is an offence under customs legislation, but the police are not interested because it is not a recordable offence. Why not? We should drive this practice out of the pubs, clubs and markets of this country.

Mr. Christopher Chope (Christchurch) (Con): On a point of order, Mr. Deputy Speaker. Earlier, the Minister assured the House that the draft regulations were now available in the Library and the Vote Office. I have just been to both, seeking copies, and they are not available. It is in any event extraordinary that the Minister did not have the courtesy to distribute the draft regulations to the shadow Minister. I request an adjournment of this debate, pending the production of these regulations.

Mr. Deputy Speaker: I am afraid that I cannot acquiesce to the hon. Gentleman’s final request. It is important that the necessary papers are available before a debate takes place. I am sure that Ministers will have heard what the hon. Gentleman has said and will instigate inquiries—as will I—into the exact position.

Mike Penning: I was slightly surprised when the Minister said earlier that the regulations were available in the Library and the Vote Office, because such documents would usually be laid on the Table. In this case, they were not laid on the Table, which is why I mentioned that to the Minister. She should be embarrassed, because this debate is about people’s livelihoods, and the impact assessments would allow Members to take a view on how this legislation would affect businesses in their constituency.

I would also have thought that the Government would have had some comment on nicotine replacement therapy, its cost and how we can make it more available. Once people are addicted to nicotine, it is difficult to give up. The Government have a myriad of different programmes for smoking cessation, most of which I support, but the best approach is to address nicotine addiction. There must be ways to put nicotine replacement therapy closer to the consumer—perhaps in the stores that would be damaged by this ban. If nicotine replacements were put next to cigarettes in shops, they would be available if people decided that they wanted to break their addiction and give up cigarettes. I am told by retailers that they are not allowed to put nicotine replacements next to cigarettes because the tobacco manufacturers say that that is not acceptable. That is wrong. Nicotine replacements should be available next to tobacco products, at a comparable price.
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Mr. Chope: We have been talking about the regulations, which are not yet available, but that may be an academic exercise. Am I right in thinking that after the general election, if the Conservatives form the next Government, those regulations will never be implemented?

Mike Penning: We have said that nobody with any sense thinks that squeezing this important debate into a tiny section of the Report stage gives it the importance it deserves. We want to see a free vote across the House and proper time given to debating this important issue of how we stop youngsters starting to smoke without completely destroying the corner shop.

Mr. Chope: My hon. Friend refers to the free vote that we expect later this evening—certainly on this side of the House—but that does not address the issue of what will happen if the Bill becomes law in this Parliament. Will an incoming Conservative Government implement those regulations or will they accept the will of Conservative Members and reject them?

Mike Penning: We will always accept the will of the House. The draft regulations are not due to come into force until 2011, and the election will take place long before that. This House will take a view before the regulations come into force. It is as plain and simple as that.

Evidence shows that one way in which young people gain access to cigarettes is from vending machines—although I do not know how they afford the cigarettes, because they are hugely expensive. I was in a local pub and a young guy came in during a quiz night and bought a packet of cigarettes from the vending machine—16 for £7.20—and scuttled out of the door before anyone could stop him, and we have all seen the DVD on the issue produced by ASH and Cancer Research UK. However, there are simple ways to stop young people using cigarette vending machines without destroying the income that pubs get from vending machines or restricting access to a legal product for people aged over 18. Last week, I stayed in the Jury Inn hotel in Manchester and a little sign on the vending machine said, “If you wish to purchase these products, please come to the bar and prove that you are 18”. Once that has been proved, the bar staff zap the machine and it works once. The Government should make proposals to address the vending machine problem without destroying a legal way to purchase cigarettes. That would make a dramatic difference. The biggest difference would be made by addressing the black market, rather than by picking on shopkeepers who are running legitimate businesses but happen to sell a product that some people do not like.

Dr. Stoate: Will the hon. Gentleman give way?

Mike Penning: No, I am about to conclude my remarks.

If the Government were serious, they would have waited for the evidence on point of sale. They would also support new clause 1, which would make it a criminal offence to act as a proxy in the purchase of tobacco, and amendment 2, which would protect more children by closing the vending machine loophole.

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