On Monday the 10th of February 2014 MPs in the House of Commons are due to decide if to remind ministers of their power to introduce a new offence of smoking in a private vehicle when a child or children are present.
Section 5 of the Health Act 2006 already gives ministers powers to ban smoking in vehicles. The existing law allows ministers to require vehicles to be smoke free, and lets them describe: which vehicles; in which circumstances; and in which areas; any such law applies to and to make exemptions.
The proposal before MPs is to make clear to ministers that they:
may in particular provide for a private vehicle to be smoke-free where a person under the age of 18 is present in the vehicle.
Should MPs approve the motion before them on Monday, all they will technically be doing in my view is drawing ministers’ attention to powers MPs have already delegated to ministers.
That MPs have delegated powers to ministers which allow them to introduce such wide-ranging and controversial new laws is concerning.
Why MPs are to be asked to consider the new law
The proposal to introduce the law arose following a vote in the House of Lords on the 29th of January 2014 where 220 Lords voted in favour of such a law, and only 195 voted against.
Following that vote the Government, in line with the Lords’ wishes, put forward new wording of the proposals, these were nodded through by the Lords without objection.
The proposed new law, which MPs are due to consider, has been proposed in the form of a new clause to the Children and Families Bill 2012-13 to 2013-14. The text of the clause, (obtained from the official record of the House of Lords, states:
Clause 88: Protection of children’s health: offence of smoking in a private vehicle
- The Health Act 2006 is amended as follows.
- In section 5 (smoke-free vehicles)—
- (a) after subsection (1) insert—
- “(1A) Regulations under this section may in particular provide for a private vehicle to be smoke-free where a person under the age of 18 is present in the vehicle.”, and
- (b) in subsection (2), for “The regulations” substitute “Regulations under this section”.
- In section 9 (fixed penalties), after subsection (1) insert—
“(1A) The appropriate national authority may by regulations provide that, in the circumstances specified in the regulations, an authorised officer of an enforcement authority (see section 10) who has reason to believe that a person has committed an offence under section 8(4) in relation to a vehicle in relation to which the authorised officer has functions may give the person a penalty notice in respect of the offence.”
- In section 10(1) (power to designate bodies or descriptions of body as enforcement authorities)—
(a) after “designating the” insert “persons or”, and
(b) after “descriptions of” insert “person or”.
- In section 79 (orders and regulations)—
- (a) in subsection (4) (powers to which affirmative procedure applies), in paragraph (a) (powers in Part 1), for “or 8(7)” substitute “, 8(7) or 9(1A)”,
- (b) in that subsection, in paragraph (f) (powers in Schedule 1), for “or 8” substitute “, 8 or 17”, and
- (c) after that subsection insert—
“(4A) No statutory instrument containing regulations under section 9(1A) or paragraph 17 of Schedule 1 may be made by the Welsh Ministers unless a draft of the instrument has been laid before, and approved by a resolution of, the National Assembly for Wales.”
- In Schedule 1 (fixed penalties), after paragraph 16 insert—
“Power to amend or modify Schedule 17
The appropriate national authority may by regulations—
- (a) amend this Schedule so as to modify its application in relation to penalty notices issued by an authorised officerof an enforcement authority of a particular kind, or
- (b) provide for this Schedule to apply with modifications in relation to such notices.”
Format of MPs’ Vote
On Monday the 10th of February MPs in the House of Commons will consider the Lords amendments to the Children and Families Bill. They will consider a motion asking them if they agree or disagree with the Lords amendments. It is possible that an MP may proposed an “amendment in-lieu” of the Lords amendment ie. to replace the proposal from the Lords with something else.