Contribution
My Lords, I am grateful to follow the noble Baroness, Lady Ritchie, but say gently to her that Brexit has allowed the UK Government to pursue this legislation. As we have seen in the cases of Denmark and the Irish Republic, both Governments, whatever they might decide to do in the future, are deciding now that they are unable to proceed with this type of legislation because of the tobacco directive. The noble Baroness needs to be careful of the actuality and the legal position that prevails.
Noble Lords who are in favour of this intergenerational ban and are confident that the Windsor Framework does not provide any legal impediment should have no difficulty with these amendments. Amendment 201 in my name and that of the noble Baroness, Lady Hoey, makes it explicit that Section 7A of the European Union (Withdrawal) Act 2018 provides that European Union law is supreme in Northern Ireland. It is a conduit for the implementation of the Windsor Framework protocol. It says that if there is any doubt, the courts must say that UK law will be operative and cannot be set aside by any consideration of Section 7A. There should be no concern that these amendments are trying to impede the implementation of the inter- generational ban. They are trying to ensure that it will happen, despite the Windsor Framework.
I heard the noble Lord, Lord Forbes of Newcastle, talk about the legal opinion of the Tobacco Manufacturers’ Association. I have no doubt that it has produced a legal opinion, but many others have as well. The courts in Northern Ireland have ruled on this as well. We need to be clear that those of us who are concerned about this issue are looking at it from the point of view of ensuring that Northern Ireland does not lose out and that we are not prevented from benefiting from what should be a UK-wide, four-nations approach.
The former Attorney-General of Northern Ireland, John Larkin KC, has said that the Tobacco and Vapes Bill
“serves almost as a textbook example of how a measure advanced by a Government commanding a large majority in the House of Commons can run aground, as respects its Northern Ireland component, on provisions contained in the Windsor Framework … Parliament is simply not free to legislate effectively in those policy areas in which EU law still prevails through the Windsor Framework in Northern Ireland”.
We can look at other examples. On legacy legislation, the courts of Northern Ireland have said that Section 7A of the European Union (Withdrawal) Act means that an Act of Parliament is not just incompatible with the European Convention on Human Rights and therefore needs to be rectified but is actually disapplied and made of nil effect, because of Section 7A and the fact that European law overrides. We have seen it also in the case of migration law.
This is not some kind of novel concept, subtly dreamt up by a few people in the interests of the tobacco industry; this is a real concern about the application of European Union law—in this case, the tobacco directive—that has the potential and almost certainly the effect of disapplying this law for Northern Ireland. Anyone who is concerned about reducing smoking and the effects of smoking in Northern Ireland, where over 2,000 people die every year from illnesses associated with smoking, should be concerned about this issue and should want to do something about it.
The Government are relying on assertion. They keep asserting that this will apply throughout the United Kingdom. We have heard other speakers in this debate just provide assertions but ignore the clear approach that the courts in Northern Ireland have taken on these matters. Why do the Government not publish their advice, as the noble Baroness, Lady Hoey, said? They have published advice in other areas recently, so why do they not publish the advice and let us know what the particular argument is that says, in this particular instance of the tobacco directive, this will not apply in Northern Ireland? There is no logic; there is no analysis by any lawyer that I know of who has looked at this matter and who has dealt with the other cases that have come before the courts of Northern Ireland, and who believes that is the case. So why will the advice not be published?
We are told that this is just a normal age of sale restriction. The fact of the matter, of course, is that it is not just a normal age of sale restriction and therefore exempt; it is a rolling ban, and that cannot be got round. That is why the Irish Republic and Denmark took the position that they did, after getting very serious legal advice from those European Union law experts within their own Governments and the European Commission.
I say very respectfully to noble Lords who have spoken: do not rely on assertions. Do not rely on a view that this will be all right on the night and that there will not be any challenge. The fact of the matter is these things will be challenged. We are trying to build a protection into this Bill that will ensure that Northern Ireland benefits, along with the rest of the United Kingdom, in moving forward with this inter- generational ban. That is entirely reasonable. It is entirely sensible. Why not take the opportunity to ensure that guarantee is in place?