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Passive Smoking At Work
01 February 2001
Volume 621

7.30 p.m.

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rose to ask Her Majesty's Government when they will respond to the Health and Safety Commission's draft Approved Code of Practice and Guidance on Passive Smoking at Work.

The noble Lord said: My Lords, I start by expressing my appreciation to noble Lords who have put down their names to speak in this short debate. I believe that by the end of the hour my noble friend Lord Whitty will have heard a number of powerful speeches in support of the draft approved code of practice issued by the Health and Safety Commission on passive smoking at work.

There is overwhelming support in the country among most employers, virtually all trade unions and in both Houses of Parliament for new measures to protect employees from the effects of passive smoking. Even many heavy smokers accept the desirability of ensuring a smoke-free environment at work.

The Office for National Statistics carried out a survey which showed that 89 per cent of the public favour restrictions on smoking at work, including some 69 per cent of current smokers. Despite that, there are still 3 million non-smokers who are frequently or continuously exposed to second-hand smoke. For many, it is not just an irritation; it can literally be a matter of life and death. The Government's scientific committee on tobacco and health concluded that,

"long term exposure of non-smokers to environmental tobacco smoke caused an increased risk of lung cancer which, in those living with smokers, is in the region of 20 to 30 per cent".

I am a patron of the Roy Castle Lung Cancer Foundation. Roy Castle did not smoke but contracted lung cancer as a result of working in the smoky atmosphere of clubs around the country.

The scientific committee concluded that passive smoking also causes heart disease and respiratory illness, as well as cancer. From that committee, the issue passed to the Health and Safety Commission, which considered what more could be done. The Government's excellent White Paper, Smoking Kills, proposed that there should be an approved code of practice, which the Health and Safety Commission produced last year after lengthy and thorough consultation from July to October 1999, in which over 400 of 485 respondents backed the code. Taking account of views expressed in the consultation, the commission sent a carefully formulated and reasonable proposal to Ministers on 5th September last year. It is that we are debating.

The code gives most employees the right to work in a smoke-free environment and the expectation that their employers will do what they can to reduce or eliminate smoke exposure. It is understood that there are particular sorts of establishments, such as prisons and offshore oil rigs, where exemptions may have to apply. The hospitality industry presents a special problem. I shall say more about that in a moment.

The code gives practical meaning to the Health and Safety at Work Act as it should be applied. It works rather like the Highway Code. Failure to follow it will not be an offence in itself but its recommendations will strengthen the hand of employees taking legal action if they believe their health is not being sufficiently protected.

When the code is implemented it will mean that for most people smoking in the workplace, other than in specially designated areas if the employer chooses to provide them, will be a thing of the past. It will make a considerable contribution to improving health and a much more pleasant environment for those who do not wish to breathe other people's tobacco smoke. As I said, there is huge popular support for the code. A call for its immediate implementation is the subject of an Early Day Motion in another place and has already attracted 130 signatures.

Every organisation which advises the Government on health and employment issues is in favour, particularly the Department of Health whose contribution to tackling the harm that the tobacco industry and its products inflict on the nation's health has been outstanding. In common with many noble Lords, I look forward to receiving and passing the Bill to end tobacco advertising and sponsorship, which is now in Committee in another place.

The consultative document of the Health and Safety Commission included a regulatory impact assessment, which is required for new regulations and approved codes of practice. The original version contained estimates which showed that total costs outweighed total benefits, but those did not include health benefits from stopping smoking and reducing deaths from lung cancer. As those would take some while to work through, the period covered by the regulatory impact assessment was extended from 10 years to 25 years. As a result, the estimated total benefits to society will be between £9.1 billion and £21.1 billion, while the estimated costs are between £2.8 billion and £3.3 billion.

Clearly, when carried out in conjunction with other measures the Government are taking to reduce tobacco consumption, that measure will produce huge benefits for the health of our people. So why the delay? From the inquiries I have made in the past few days it is clear that the problem lies with the hospitality industry, which is clearly being aided and abetted by the tobacco lobby. Between them they are attempting to block or water down the approved code.

I understand why cigarette manufacturers go on trying to stem the tide against tobacco smoking and oppose measures which stop them promoting their products to young people. We must remember that they are killing 120,000 people a year in the United Kingdom and have to replace the customers who die with young smokers. But why do those who represent pubs, clubs and restaurants stand in the way of measures which will not only improve the environment for everyone in their premises and attract people like me who hate going into a pub if the atmosphere is heavy with tobacco smoke, but which will also make the working environment for the staff healthier and more pleasant? They argue that they are already doing their bit by introducing what they call a "public places charter" in which non-smoking is accepted as the norm and the provision of smoke-free places is promised. By 2002 50 per cent of venues are supposed to comply with the charter, which is voluntary.

They have a long way to go. We are already into the second month of 2001 and just 1 per cent are charter-compliant. The public places charter is about giving the customers of the hospitality industry the opportunity to have a drink or meal in a smoke-free environment. The approved code of practice on passive smoking is about protecting employees. The two, therefore, should go together. It is not reasonable for workers in restaurants and bars to have to rely on the compliance of their employers with the voluntary charter, particularly as so many such employees are poorly paid, non-unionised and unable to take their bosses to task if they are not being treated properly. At the very least they have the right to expect that a bar where smoking is permitted is properly ventilated and that they do not have to breathe the smoke of customers who would otherwise puff away over them where they are working.

I hope that the Government will not give way to the hospitality industry and allow their workers to be denied the same rights and protection that the rest of the working population will derive from the approved code of practice.

Finally, I want to say a brief word about the conditions under which employees work in your Lordships' House and the application of the approved code of practice here. On 23rd October last year in a Starred Question I asked how it was envisaged that the House authorities would comply with the approved code of practice and whether we stood by the statement on page 34 of the House of Lords Staff Handbook that,

"staff are entitled to work in a smoke-free atmosphere".

The then Chairman of Committees, the noble Lord, Lord Boston of Faversham, said in reply:

"It is indeed the policy of the House, as an employer, that staff of the House should be entitled to work in a smoke-free atmosphere if they want to do so. That policy has been agreed by the Whitley Committee of the House of Lords and is … set out in the staff handbook".

Since the matter was last looked at by your Lordships, public attitudes towards passive smoking, particularly as they relate to places of employment and the hospitality industry, have altered significantly. I understand that the Refreshment Sub-Committee and the Library and Computers Sub-Committee of your Lordships' House are currently considering a number of proposals which will improve conditions for our staff and for all Members of the House who prefer to work in a smoke-free environment.

We look forward to the outcome as far as it affects your Lordships' House. But even more important, for our welfare and that of our staff, is the need to see that the Approved Code of Practice and Guidance on Passive Smoking at Work is adopted by the Government and implemented across the country. I hope that my noble friend Lord Whitty will have positive comments to make on these matters when he replies.

7.40 p.m.

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My Lords, I am grateful to my noble friend Lord Faulkner of Worcester for introducing the debate. I strongly support the Approved Code of Practice and Guidance on Passive Smoking at Work and hope that Ministers will adopt it. It is, of course, not new law; it clarifies existing law, and careful consultation has taken place. Consultation is also recommended as part of a workplace's adoption of an approved code. I shall discuss that later.

In 1604, that early health educator, James I, described tobacco as,
"harmful to the braine, daungerous to the lungs, and in the Macke, stinking fume thereof, nearest resembling the horrible Stigian smoke of the pit that is bottomlesse".
In 1832, the poet, Goethe, said:
"Smokers poison the air for miles around and suffocate responsible citizens who do not deign to defend themselves by retaliating in kind".
Since those times, law enforcement relating to, for example, transport, and health education programmes, have raised awareness and changed opinion and behaviour in relation to smoking. However, action is still needed.

Most smokers want to give up. Most non-smokers do not want to inhale other people's smoke. Public attitudes to smoking are clear in relation to smoking at work, in restaurants and in public places, even among smokers. As my noble friend Lord Faulkner said, 89 per cent of people want smoking restricted.

I shall not go into the adverse health consequences of smoking in detail—for example, cancer, heart disease, stroke, infertility, erectile dysfunction and respiratory diseases—because they have been discussed and will no doubt be discussed further.

It is significant that a passive smoker takes in I per cent of the smoke which an active smoker inhales. Passive smoking is dangerous and people should not be put at risk. The effects on clothes, furnishings, books and so forth are unpleasant and costly. Absenteeism and illness among smokers has a cost for employers. A study in Scotland estimated this to be as high as £33 million during 1995.

I am particularly concerned about young people who may have no choice about avoiding passive smoking; for example, in schools, youth clubs and community centres. Perhaps passive smoking can encourage young people to become smokers, although I have no evidence for this. Employers have a duty to help employees to avoid passive smoking. Under the law of negligence, they are in danger of being sued or taken to a tribunal if they do not respect this.

In some cases, smoking policies at work are not strong enough to protect employees. In 1999, a coalition of organisations recommended a process for implementing a code of practice in the workplace. In summary, there are five steps: consultation and negotiation with the workforce; time to prepare, implement and monitor a policy; assessment of costs involved and publicity for the policy; rearrangement of staff working areas; and providing help for those who want to stop smoking. That seems to me to be fair and democratic. It is about where and when people smoke, not about whether they choose to smoke. It is not a ban on smoking.

As I said at the beginning of my contribution, I hope that the approved code of practice will be adopted. It would benefit smokers and non-smokers alike.

7.45 p.m.

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My Lords, I was tempted by the noble Baroness's quotation from James I to refer to that well-known anti-smoking zealot, Adolf Hitler, but I shall refrain from doing so. I must declare an interest as a supporter of the Freedom Organisation for the Right to Enjoy Smoking Tobacco, otherwise known as FOREST. However, I should speak as I do even if I had no connection with that organisation.

I must also state that no more than 10 per cent of my extended family and my friends smoke nowadays, so I am well aware of the sensitivities of non-smokers. Indeed, as a decidedly light smoker, I dislike a very smoky atmosphere.

I must confess that I expected the document we are debating, which I saw only last night, to be as intolerant, absolutist, exaggerated and health-fascistic as most of the stuff put out by the anti-smoking lobby. So it was a pleasant surprise to find something relatively liberal, which I am sure would please the champion cigarette consumer in your Lordships' House, the noble Earl, Lord Russell, were he in his place. The document is liberal; it is cautious in its interpretation of statistics; and it is open to all points of view. However, it is not without fault, as I hope to show.

One cannot assess the health risks, if any, in passive smoking until the risks in active smoking have been judged correctly. For reasons which I have given on at least three or four previous occasions—there is no time to do so in the five allotted minutes tonight—I contend that the estimate of 120,000 smoking-related deaths annually is highly suspect. A few years ago, the Government gave us a figure of 50,000, so it is curious that it should have risen 2.4 times in such a short time. Incidentally, a full-page article in today's press claims that 100,000 people die each year from consuming too much salt in their diet. That is an interesting claim to contemplate.

No one would deny that heavy smoking is dangerous. Two good friends of ours, both barely into their 60s, died recently; one from emphysema and one from lung cancer. Both women smoked 60-plus cigarettes a day, as people tended to do 50 years ago. Thankfully, that is no longer the case. Against that, we should remember Mme Jeanne Calment, the Provencal lady who lived to the age of 119—or was it 121? —and who smoked two cigarettes a day, of course accompanied by plenty of wine, until she was 110. Mme Calment may have been lucky, but when one compares her two cigarettes a day with two cigarettes a year, which is equivalent to what a non-smoker in a smoking household passively inhales in the course of that year—that is shown by Dr Nilsson, a Swedish toxicologist—things are put into perspective.

Commendably, the report does not try to link passive smoking with either lung cancer or heart disease but it does suggest a link with bronchitis and asthma. The only problem with that theory is that the incidence of asthma is increasing while the incidence of smoking is sharply decreasing. There is a much closer correlation between asthma and exhaust emissions from petrol and diesel engines.

Luckily, there is one matter on which we can all agree; that is, the conclusion at paragraph 27 that tobacco smoke causes discomfort and irritation. On the assumption that that means "excessive" tobacco smoke, no one will deny that. However, solution (a) in paragraph 34—that is, the complete ban on smoking at work—is both illiberal and unnecessary when options (c) and (d) are available. Perhaps I may comment briefly on option (d); that is, the provision of adequate ventilation. It need cost no more than £900 to have a modern air-cleaning system, employing extractor fans and charcoal filters, installed in an office or small pub of 100 cubic metres or thereabouts. That is the direction in which we should be travelling.

There is one other much cheaper improvement that involves no wiring or machinery. It is common practice in the Indian subcontinent and South East Asia for ashtrays to contain a little sand or, more usually, water to ensure that when a cigarette is stubbed out it stays out. It is smouldering cigarettes that produce the nastiest smoke, as I am sure noble Lords have found. Moreover, the ashtrays are much easier to clean since they contain no tarry residues that must be scraped off. I believe that if your Lordships' House experimented with it for a trial period noble Lords would be pleasantly surprised by the improvement in the atmosphere, in every sense of the word.

7.50 p.m.

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My Lords, I too thank my noble friend Lord Faulkner for initiating this important debate. Passive smoking kills. There is overwhelming evidence that people who are exposed to cigarette smoke but do not smoke themselves are in danger of contracting many illnesses that can lead to death. As to your Lordships' House, I was absolutely shocked when I used the Library for the first time and discovered that smoking was allowed. I do not know how many libraries in the country allow smoking, but there cannot be many. I have never smoked, and I do not wish to inhale other people's smoke. When I use the Library and find myself next to a noble Lord who smokes I must remove myself, which is extremely annoying. While I can remove myself, the staff in the Library cannot; they must carry on working there. That applies to all other areas in which staff work.

For a number of years scientific evidence has been available to show that exposure to second-hand smoke causes diseases, worsens existing problems and in some cases may prove fatal. I am particularly concerned about the health of women staff in the House. Of the 200 women employed in your Lordships' House, many are of child-bearing age. Nowadays, even some noble Baronesses are young enough to become pregnant. Passive smoking has a harmful effect on pregnant women. This is extremely worrying. For example, a mother's exposure to passive smoking has been associated with lower birth weight, a higher risk of perinatal mortality and spontaneous abortions or miscarriage.

New research carried out by the University of Bristol has shown that female fertility is reduced by passive smoking. That study of pregnancy and childhood found that if a non-smoking woman was exposed to passive smoking at home or in the workplace the chances that she would take more than 12 months to conceive were increased by 14 per cent. It is now well known that women who smoke while trying to get pregnant decrease their chances of conceiving.

The results of the research show that women who want to conceive should avoid all places where smoking is allowed. How can a woman member of staff in your Lordships' House do that? We have an obligation to provide a safe environment for all staff, men and women, but especially women of child-bearing age. I believe that the Health and Safety Commission's code of practice should be implemented. Given all the evidence available on the dangers of smoking, including passive smoking, I cannot understand why it is taking so long to implement a policy that is acceptable to staff and Peers.

I am aware that over the past few years different committees have looked at this issue and some recommendations have been implemented. Small changes in smoking policy have been made hut, while they are welcome, they are not enough. Smoking kills. However, people who smoke do so in the knowledge that they endanger their health. Passive smokers cannot always avoid the situation.

My preference is for a total ban on smoking throughout the whole House. I welcome the day when as I drive into the car park I see huddles of noble Lords puffing away merrily. I doubt whether that day will ever arrive. While I await that great day, I welcome a much more positive approach to the serious matter of passive smoking for the sake of the staff and Members of your Lordships' House. I look forward to the day, in the not too distant future, when a positive policy based on the code of practice is implemented.

7.55 p.m.

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My Lords, I too thank my noble friend Lord Faulkner of Worcester for tabling this Unstarred Question and allowing noble Lords to debate this extremely important issue. I declare two interests. I am a former member of the Health and Safety Commission and served on that body at the time of the drafting of the ACOP, and an official of MSF, part of whose membership includes the former Tobacco Workers Union which has a proud history of promoting its members' interests and gaining good conditions of work for them.

Smoking is an emotive issue. The Health and Safety Commission had a number of long and detailed debates before issuing the first consultative paper in July 1999. The resultant draft approved code of practice was drawn up after detailed consideration and discussion. The Health and Safety Commission worked very hard on the wording of the draft ACOP. I led on behalf of the TUC, and Rex Symonds, a splendid commissioner, led on behalf of the CBI. Rex Symonds was very aware of the attitude and fears of the hospitality industry about the ACOP, and he impressed those upon the commission. He and I spent long periods producing a wording which would be acceptable to both sides of industry. By 5th September 2000 we had achieved it.

The ACOP is much milder than many wanted, but as currently worded it can still be effective. At that time it satisfied both sides of industry. When the draft ACOP was launched on 5th September 2000, Bill Callaghan, chairman of the Health and Safety Commission, said:
"We carefully considered the different options, including continuing with a voluntary approach, before deciding that the best way of protecting the three million people still exposed to environmental tobacco smoke was through an ACOP".
Many employers have already taken steps to stop smoking in workplaces and so protect non-smoking workers. The effects of this can be witnessed daily as we travel around London. The sight of smoking workers huddled together outside their places of work is a familiar one. I, too, am not sure that it will ever happen here. However, I do not believe that that should be necessary. Surely a well ventilated room inside the building can be found to allow those who are addicted to cigarettes to satisfy their habit rather than have them exposed to London's inclement weather at all times of the year.

As a non-smoker I have been lucky in my employment: I have not been exposed to passive smoking in my workplaces; indeed, my former employer, Clive Jenkins, was a fanatical anti-smoker. The first notices that I ever read about the dangers of passive smoking were in my union's head office. Therefore, the extent to which smoking was allowed in your Lordships' House came as an unpleasant shock to me.

It has already been said that passive smoking is dangerous, particularly so for young children. Having a grandson with acute asthma brings that danger home to me in a stark way. Passive smoking also has non-health effects. I try to avoid smoky places because I do not wish my clothes, hair, car or home to smell of smoke. I expect smokers get used to it, but I never shall.

The Government's delay in responding to the draft ACOP is very disappointing. Following an initial burst of great enthusiasm for action to be taken over smoking, there has been an ominous silence. Knowing the Ministers who were involved in the first discussions about taking swift action, I am sure that they have not changed their minds, but why the delay? Is it that the "big boys" in the hospitality industry have rejoined the debate? Can it be that government departments are at variance over the ACOP? Are the demands of the ACOP, which merely asks employers to take reasonably practicable steps to protect their staff, still too much? Is it still hoped that some kind of watered-down compromise can be reached over the already mild suggestions in the ACOP? I look forward to hearing from the Minister the reasons for the delay.

Finally, at the beginning of my speech I referred to those working in the tobacco industry. As an ex-trade union official, I am well aware that what we are debating today will affect jobs in the tobacco industry. I urge the Government to remember that in their deliberations. Any action on smoking will mean job losses. The irony is that many of the workers affected will be non-smokers.

The Government have estimated that a 2.5 per cent reduction in tobacco consumption will result in approximately 1,700 job losses. Thanks to the efforts of the Tobacco Workers' Union over the years, those will be skilled and well paid jobs. Additionally, they may be in areas where other work is unavailable; for example, in the North East—in Darlington and Spennymoor. So if actions of this kind are taken, it is incumbent on us all to approach in a constructive manner any measures which will reduce tobacco consumption and to seek to provide alternative employment for any who lose their jobs.

8 p.m.

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My Lords, I am delighted that my noble friend Lord Faulkner has initiated this short debate tonight.

The effects of passive smoking on health are well documented, despite the denials of many smokers. I only wish that it was not necessary for me to have to reiterate them. However, it seems that the slow progress of the Government in responding to the HSC's recommendations compels me to.

The Government are committed to reducing smoking across the board because they recognise the damage smoking does to people, especially children. Ministers have introduced a raft of measures aimed at reducing smoking which I wholeheartedly welcome; public health campaigns to encourage smokers to stop; nicotine replacement therapy on prescription; and a new helpline to support pregnant mothers who want to give up, to name but a few. In addition, of course, the Tobacco Advertising and Promotion Bill is currently making its way on to the statute book, or so I hope. It greatly troubles me, therefore, that, in the face of all these wonderful measures, the Government appear to be dragging their heels on responding to the HSC's approved code of practice on passive smoking at work.

I feel that this is an appropriate time to declare an interest. As some of your Lordships may know, I developed asthma some six years ago, a debilitating long-term condition that affects the airways and causes symptoms of coughing, wheezing, a tight chest and increasing difficulty in breathing. The National Asthma Campaign, an independent charity, estimates that I am one of 3.4 million people in this country with asthma. That figure is rising rapidly. It is for that reason that I wanted to speak today, to highlight the effects of passive smoke inhalation on asthmatics and to urge the Government to make the ACOP a reality as soon as possible.

The National Asthma Campaign believes, and I agree with it, that people with asthma have a right to breathe air that is free from the triggers that exacerbate their symptoms. One such trigger—other people's tobacco smoke—has a detrimental effect on as many as 80 per cent of people with asthma. At this stage I feel obliged to give one—I promise that it is only one—personal example within your Lordships' House which may be of interest to the noble Lord, Lord Monson. Some time ago I was walking along the Library corridor. I passed the open door to the Library where someone was smoking a cigar. I inhaled the smoke once, and, despite taking the appropriate medication immediately, I had a serious asthma attack. The first opportunity to measure my breathing ability was some five hours after that one inhalation of smoke, at which time it was more than 30 per cent below my morning reading. I will never know what the reading was when I was unwell; it was probably very low indeed.

The following day I measured the number of steps I had managed to walk before becoming very ill—only 15 paces. That is one reason why the HSC-recommended code is such a significant step towards improving the lives of the 3 million non-smokers, including people with asthma, who are still exposed to tobacco smoke at work. It is impossible to overestimate the positive impact the code will have on employees' health and quality of working life. There are some appalling stories of people having to compromise their health for fear of losing their jobs. For example, a middle-aged man was recently forced to leave his job as a greenkeeper because his colleagues refused to stop smoking when they took their breaks in the confines of a portakabin. He has not worked since.

There has been some suggestion that elements of the Government are determined to block the code and that is the reason it is taking so long for the Government to respond to the HSC. I would ask those Members who see the code as nothing more than bureaucracy or an infringement of smokers' civil liberties: what about my right, and that of other people with asthma and other respiratory conditions, to go about my business free from the threat of an asthma attack brought on by those of my colleagues who refuse to confine their smoking to outside the workplace? Why should it be me who has to take precautions to avoid tobacco smoke at work by having to shut myself away at my desk, smoke-free, for most of the day? I will digress slightly to make the observation that those public houses that have either banned or curtailed smoking have increased their takings.

The issue of passive smoking is a plain and simple one for the majority of people with asthma, whether it is at work or in any other public place; if we are in a smoky environment the impact on our symptoms is clearly visible and often immediate, as it is with me. People with asthma should not be forced to choose between unemployment and their health. I ask for the sake of the one in seven children with asthma—the workforce of the future—that the Government do not allow the code to be blocked by a tiny minority and that they make their response to the HSC known immediately.

My final comment will be my definition of a no smoking area. It is an area where smoke can frequently be present, but smokers are not allowed to be.

8.5 p.m.

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My Lords, I add my thanks to the noble Lord, Lord Faulkner, for giving us a welcome chance to press the Government to take action on passive smoking. The last debate we had on the subject was in November 1998. As I recall, it was initiated by the noble Lord, Lord Janner. We had high hopes of action on passive smoking in the workplace. The noble Lord, Lord Faulkner, described the chronology very cogently. We had the White Paper Smoking Kills at the end of that year. The ACOP emerged in July 1999 with a period of consultation until October. As the noble Lord described, the consultation demonstrated huge support for an approved code of practice on passive smoking.

The Health Select Committee commended the code in its report on the tobacco industry and the health risks of smoking in June 2000. The Health and Safety Commission approved the new ACOP later that year.

But from the Government there has been a thundering public silence on the subject, other than a statement in December by the Minister with responsibility for public health that the Government are still considering their response. Certain clues emerged in the Independent in December. But why should this be? Why are we waiting for action two years after the White Paper on smoking? Has the health risk diminished? The answer seems to be no.

The Health Select Committee report concentrated heavily on the health evidence. As your Lordships have heard from the noble Viscount, Lord Simon, and the noble Lord, Lord Faulkner, passive smokers are at greater risk in terms of lung cancer, heart disease, and strokes and respiratory disease in particular. There may be some disagreement about the extent to which the risk has increased, but certainly there can be no dispute that it has. Now we have the recent evidence conducted by Sarah McGhee, of the University of Hong Kong, among 10,000 police officers in Hong Kong about exposure to passive smoking and the effect on respiratory symptoms.

Has the character of the code changed? The answer is no. The code is not compulsory. It is not legally binding. It does not constitute an absolute ban on smoking in the workplace. The noble Lord, Lord Monson, used the word "liberal" in describing the code. What higher term of praise could I possibly envisage? As a number of noble Lords have pointed out, businesses must simply do what is reasonably practicable to control environmental tobacco smoke. Furthermore, it does not impose a total ban on pubs and clubs. In so far as they are affected, they will have two years to implement any changes needed to comply with the code. In the meantime they will be covered by the public places charter. Action will mainly take the form of installing extra ventilation. Certain noble Lords in the previous debate, as the noble Lord, Lord Monson, has done in this debate, described how this was already under way in the hospitality industry.

Is environmental tobacco smoke a problem still? It is. A recent Consumers Association survey used in evidence to the Select Committee found three-quarters of respondents said that they were exposed to passive smoke in home, place of work, or places visited socially.

Is restricting smoking unpopular with the public? Absolutely not. Surveys show an overwhelming majority in favour of restrictions on smoking. Will the approved code of practice be a major burden on business? This is where some of the rather contentious figures put forward in the regulatory impact statement come into play. When I looked at the statement, my mind boggled. It seemed to be one of the most wildly exaggerated RIAs I had seen for a very long time. It seemed to be designed to kill the code of practice. I do not know where it emanated from. Even if one takes the figures of a FOREST supporter, such as those of the noble Lord, Lord Monson, the cost of ventilation in the hospitality industry seems to have been wildly exaggerated.

What is my conclusion? The fact is that people should be entitled to avoid the dangers attached to other people's tobacco smoke. Without the appropriate codes, particularly at the workplace—

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My Lords, before the noble Lord moves on from the regulatory impact assessment, he may not be aware that the commission conducted a second study after representations were made following publication of the first draft. It then extended the timescale over which it saw the benefits flowing to the nation—because of the length of time that it takes for diseases such as lung cancer and heart disease to take effect as a result of passive smoking. If the noble Lord looks at those figures, he will see that the benefits that come from the interaction of the code are substantial and completely outweigh the costs.

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My Lords, I entirely accept that. But the costs were not altered; the benefits may have been. The costs were still wildly out of line. Is it too much to ask that employees should be entitled to smoke-free work areas with good ventilation. I suggest that the Minister has a few questions to answer. What precisely are the Government's intentions? Will they re-examine as a matter of urgency the compliance costs and benefits? What further research is being undertaken about the impact of passive smoking? If they have reservations, what alternative proposals do they have?

There is a very strong whiff of government on the run about this code and its treatment and there is certainly a cloud of suspicion on these Benches. I hope that the Minister can dispel it in his reply.

8.12 p.m.

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My Lords, I begin by thanking the noble Lord, Lord Faulkner, for introducing this debate so ably and by declaring my interest as a non-smoker. I am in fact a non-smoker who detests tobacco smoke, having done so since the age of 11 when I tried my first and only cigarette at the bottom of the garden. Both my parents, on the other hand, were smokers, and I like to believe that I have always been tolerant of those who may wish to light up, even if I never choose to do so myself.

However, the extent to which I am prepared to remain tolerant has perhaps waned in recent years, with my growing tendency to bronchitis and with the emergence of new scientific data on the effects of passive smoking. The first document on passive smoking that I read in any depth was the relevant section of the report of the Scientific Committee on Tobacco and Health, published three years ago. Many of the conclusions from that report were picked up in the Government's subsequent White Paper, Smoking Kills. There are some uncompromising messages there about the risks to non-smokers of inhaling environmental tobacco smoke, or ETS, if they live with a smoker. In the specific context of the workplace, the three messages of particular relevance are those relating to asthma, ischaemic heart disease and lung cancer.

Here it is worth making the obvious but key point that, unlike, say, an evening out, where you can choose whether or not to go to a restaurant that allows smoking, time spent in the workplace is rather different. The element of choice is largely, if not wholly, absent. Furthermore, if you are exposed to tobacco smoke at work, you may well be exposed to it for a substantial proportion of the day and therefore, by extension, for a significant proportion of your lifetime. The risks associated with passive smoking in the workplace are therefore ones to be taken very seriously.

As has been said by many noble Lords, there is wide support among employees for smoking restrictions in the workplace. The HSE mentions in its proposal that more than 3 million are estimated currently to be exposed to ETS at work. However, the key judgment to be made here is whether any further statutory action, as proposed by the HSE, is proportionate to the risk and to the cost. As the HSE concedes, we do not really know with any precision what the risks are of developing diseases such as cancer or heart disease from passive smoking at work. The risks from passive smoking are in any case dependent on the quantum of exposure to tobacco smoke. The risk to the health of people who already suffer from asthma or bronchitis is certainly much more clear cut. But already, under the law as it stands, employers have a duty to ensure the health, safety and welfare of all employees. For that reason I believe that the HSE is right to reject the option of yet more legislation. In so far as there are employees at risk, it is a question of making the existing law work better.

The proposal of the HSE for an approved code of practice has obvious attractions. One of them is that it would provide clear guidance to employers without being overly prescriptive. Like the Highway Code, as the noble Lord, Lord Faulkner, pointed out, it could be used in evidence in a prosecution without its provisions being mandatory in themselves for employers. In that sense I agree with the noble Lord, Lord Monson, that it could be described as "liberal".

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My Lords, perhaps I may say, as the noble Lord, Lord Clement-Jones, made the same point, that I said "relatively liberal", not "absolutely liberal".

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My Lords, I am about to qualify what I have just said, so I think that I would probably agree with the noble Lord.

We must be absolutely sure that a new statutory code of practice, with all its attendant implications, is warranted. The code would be compulsory in the sense that a breach of it would lead almost automatically to a conviction in any health and safety prosecution. That aspect of it means that it is right to talk in terms of the burdens on business that it would impose. The costs of the code are estimated by the HSE at between £3.1 billion and £8.9 billion over 10 years, which is between two and four times larger than the estimated value of the benefits over the same period. Even if the benefits look somewhat rosier over the longer term, costs of that order, especially in a climate of deregulation, need to be justified.

Paragraph 27 of the HSE proposal says that the main thrust of a code of practice would relate to ways of avoiding discomfort and irritation to employees—in other words, to welfare issues as distinct from health issues. Any benefits to health would be taken as following on from improvements to welfare. I find that statement troubling. It has all the look about it of a sledgehammer descending on a nut. Given that the benefits to health form only a proportion of the total quantifiable benefits of introducing a code, because about half the benefits relate to safety and productivity, the Government should be cautious about imposing the kind of cost burdens that would flow from this recommendation. Spending money to achieve better productivity should be a management decision, not a decision imposed by government. The benefits to safety and welfare, as quantified by the HSE, rest, as I read them, on some fairly tenuous assumptions, not the least of which is that the introduction of a code of practice which explicitly allows for the continuation of some smoking in parts of the workplace would result in a reduction of about 80 per cent of fires. If the Minister can enlighten me on why the HSE should have assumed so optimistic a figure as that, I should be grateful.

My conclusion, given that I was interrupted, is very brief. With all due deference to the noble Lord, Lord Faulkner, I am not yet convinced that the case for a code of practice has yet been made, although the case for it may in time prove unanswerable if further evidence emerges.

8.18 p.m.

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My Lords, I thank my noble friend Lord Faulkner for initiating this debate. It is an issue which raises considerable passions, some of which, although not all, have been heard in the Chamber today. It is still a fairly controversial issue, in terms of both assessment of the evidence and what needs to be done about it.

I declare my own interest. I was a smoker. I usually say that I gave up 30 years ago. What I actually mean is that I gave up buying cigarettes 30 years ago and then spent several decades cadging cigarettes from other people. But now I am a non-smoker and, by and large, I have been through the same process as the noble Earl, Lord Howe, and have become less tolerant as time has gone on.

It should be recognised that a significant minority of the population still smoke. The interests of that minority should be borne in mind, and well as those of everyone else. In general, the case for action has been established and the issue before us is how to make workplaces less smoke prone and people less subject to continuous exposure to smoke. As the noble Earl, Lord Howe, pointed out, we need to take a proportionate approach to this.

The Question refers to the Health and Safety Commission's proposal for an approved code of practice (ACOP). The Government have received an indication from the commission that it favours the introduction of an ACOP to help employers to comply with what is, of course, a pre-existing law regarding their obligations to the health and welfare of their employees. The present status is that the commission has yet to put formal advice to the Government. The Government are currently considering initial advice in relation to the proposal put forward on 5th September. We are still considering that advice because the issue is rather more complicated than may have been suggested by some noble Lords this evening. ft may be helpful if I set out some of the background to the issue.

Under the Health and Safety at Work etc. Act 1974, all employers have the same duty to ensure, so far as is reasonably practicable, the health and welfare of their employees at work. Section 2(2)(e) of the Act requires them to provide a working environment for staff which is,
"adequate as regards facilities and arrangements for their welfare at work".
The HSE has already issued guidance on passive smoking at work in its booklet, Passive Smoking at Work.

The Department of Health White Paper, Smoking Kills, issued in 1998, committed the HSE to consult on whether to introduce an approved code of practice. That consultative paper was issued in July 1999. The consultation exercise was completed in October 1999. The HSC then followed that through and put forward proposals to consult on a number of options, including an approved code of practice. Other options put forward in the consultation included new regulations, revising existing guidance, and enforcing the law more strictly. The outcome of the consultation, of which the Government have been informed, showed support for more action to be taken. The majority of respondents supported the proposal for an ACOP.

In reaching its decision, the HSC took into account a wide range of opinion, including the views of small businesses and a wide range of representations from the hospitality industry. The chair of the commission has informed me that the commission was particularly concerned about the possible costs of implementing the proposed ACOP in the hospitality sector. As a result, the HSC itself is minded to recommend special transitional arrangements for the hospitality industry, which already has its own voluntary code of practice, the Public Places Charter, although that is directed primarily at the public and customers. We have already recognised in the proposals put forward by the HSC that special conditions and considerations need to be applied in the hospitality sector.

Problems are faced by small firms in general. Again, cost comes into this and I shall turn to that element later. However, particular difficulties are encountered by small firms in the hospitality sector where, by definition, on the one hand workers are probably more exposed because customers tend to go out for a smoke as well as for entertainment, but on the other hand, employers would have to face disproportionate costs in order to overcome the effects of smoke to the extent that has already been achieved in many factory and office workplaces.

The key issue is the protection of the 3 million people who are exposed to smoke at work. However, it is also a question of protecting employers, because a pre-existing duty is in place. Employers need to indicate that they have taken reasonable steps to protect their workers in order to protect themselves from potential enforcement action or, more likely, civil action against them. An ACOP would undoubtedly assist in that, as would the implementation of an effective and rigorous voluntary agreement such as the Public Places Charter.

As regards the question of science, a point raised by the noble Lord, Lord Monson, I think that it is clear that smoking has an effect not only in relation to bronchial diseases and asthma, but also to cancer. The Department of Health's White Paper indicates a 20 to 30 per cent greater chance of developing cancer after prolonged exposure to smoke. The noble Lord, Lord Clement-Jones, pointed out that this is a question of "how much" rather than "whether" exposure leads to disease.

The noble Lord, Lord Monson, remarked that the introduction of the ACOP indicated a relatively liberal approach. That is indeed the case, in that it tries to devise options for different circumstances. The same might be said of the Public Places Charter, which would apply in the hospitality sector. The noble Baroness, Lady Massey, emphasised in particular the dangers to young people.

My noble friend Lady Gale referred to the exposure of young women of child-bearing age. Much of what my noble friend referred to is probably a matter for the House authorities rather than for me, at least under the present circumstances. Nevertheless, a general issue of concern has been raised here and we do take seriously the issue of pregnant women and their exposure to tobacco smoke. The proposed ACOP does not directly and specifically deal with this issue because the risks to such workers are covered by other specific legislation, in particular the Management and Health and Safety at Work Regulations 1999, which implement the European directive on pregnant workers. The regulations require employers to assess such risks and then to take appropriate action. That point is therefore already covered.

It is true that the Government have taken some time and are continuing to take time to consider fully the implications of the proposed ACOP, in particular as regards its impact in the hospitality sector. The commission's proposal is aimed mainly at the workplace. In the hospitality sector, of course, it is predominantly customers whose smoke may most affect workers. The Public Places Charter, to which I have referred, and to which the HSC recommendation refers, is a charter drawn up by many of the larger employers in the hospitality trade. It advocates the use of written smoking policies, air cleaning and filtration, ventilation, and training. It is directed at protecting customers as well as employees.

The HSC has therefore suggested that where the charter applies, compliance with it will count as complying with the proposed ACOP for a transitional period of two years. That would mean that any employer who has introduced a policy complying with the charter will be exempt from the provisions of the ACOP, provided that the needs of employees were also addressed in line with the provisions of the charter.

The Government are considering that as a possible way of bringing protection into the hospitality sector. I should stress, however, that this should not be seen in any way as a form of discrimination against hospitality workers. It is simply a different way of introducing standards in the sector and one that would secure the support of the industry. The questions that remain are how rapidly, at what cost and under what requirements would the hospitality industry be required to introduce both the voluntary code and to attain ACOP standards.

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My Lords, I am grateful to my noble friend for giving way. Can the Minister tell the House how the Government propose to monitor the implementation of the Public Places Charter, given that it is a voluntary code? Is he satisfied with the progress that has already been made, given that it is supposed to be in place in 50 per cent of establishments by 2002?

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My Lords, we have not yet reached 2002. Considerable progress has been made, although it should be said that it has been achieved mainly among the larger establishments and employers. It is my hope that, were we to reach an understanding with the hospitality sector in this area, that progress will extend to smaller premises and employers.

The noble Lord, Lord Clement-Jones, referred to the latest regulatory impact assessment. The latest version of the assessment continues to indicate that fairly substantial costs will arise. It is also clear that a disproportionate part of those costs would have to be borne by the hospitality sector. Indeed, more than 70 per cent of the set-up costs would fall on the hospitality sector, and a disproportionate amount of that on the smaller businesses and premises within that sector. More than 50 per cent of the recurring costs will also fall on that sector.

Of course, those are not necessarily additional costs over and above the costs of complying with the Public Places Charter—the additional costs may be somewhat less than that—but the cost falls disproportionately on the hospitality sector whether one talks about gross or net costs. That has to be taken into account.

We are addressing the question of how both smaller businesses and the hospitality sector as a whole should meet adequate standards. Nevertheless, the Government accept that the benefits of doing something in this area are significant in terms of protection of workers. We need to assess the real benefits and the real costs. The Government are continuing to do that in discussions with representatives of industry as whole, the hospitality sector and the Health and Safety Commission.