Official Report 370KB pdf
The purpose of agenda item 5 is for the committee to consider the delegated powers provisions in the Health (Tobacco, Nicotine etc and Care) (Scotland) Bill at stage 1.
The committee is invited to agree the questions that it wishes to raise with the Scottish Government on the delegated powers in the bill in written correspondence. The committee will have the opportunity to consider the responses at a future meeting, before the draft report is then considered.
Section 3(1) confers a power on ministers to issue guidance on age verification policy. Section 3(1) inserts section 4B(5) into the Tobacco and Primary Medical Services (Scotland) Act 2010. Subsection (1)(b) of that new section 4B refers to the requirement for a person to operate an age verification policy in respect of premises at which the person carries on a tobacco or nicotine vapour product business—I may later refer later to a nicotine vapour product as an NVP. Subsection (3) enables an age older than 25 to be specified in a policy.
Subsection (5) of the new section lists various matters on which the Scottish ministers may publish guidance relating to age verification policies. It appears that matters other than those listed might be included in guidance. However, the list does not include guidance about what should be considered before a person decides to specify any age older than 25 in their policy.
Does the committee agree to ask the Scottish Government: to clarify whether it is intended that a person operating an age verification policy in relation to a tobacco or NVP business should have complete discretion to determine any age older than 25 that may be specified in their policy for the purposes of subsection (3) of section 4B; to clarify whether it is intended that the guidance that is issued by ministers under subsection (5) should or should not include guidance on how any such older age may be determined; and whether, therefore, the new section 4B could be clearer in providing for the intentions that underlie the provisions?
Members indicated agreement.
Section 17(1) enables ministers by regulations to make provision prohibiting or restricting
“an activity, in the course of a business, which relates to”
an NVP advert or NVP brand sharing. The delegated powers memorandum acknowledges that that power is widely drawn. Further clarity on the scope of the power to regulate related activities might be beneficial.
Does the committee agree to ask the Scottish Government: why it considers that the wide power in section 17(1) to make provision prohibiting or restricting
“an activity, in the course of a business, which relates to”
an NVP advert or NVP brand sharing is appropriately drawn and could not be framed more transparently or narrowly in order to provide a description or list of activities related to NVP advertising or brand sharing that may be included within the regulations; what related activities it considers would be potentially within the scope of the power; and to provide examples of the activities that the Scottish Government intends could be covered by the regulations?
Members indicated agreement.
Subsections (2)(b) and (c) of section 17 enable the regulations under subsection (1) that specify offences to provide for exceptions and defences to such offences. There is currently no description or list of exceptions or defences of offences that may be included in the regulations.
Does the committee agree to ask the Scottish Government: whether the power in sections 17(2)(b) and (c) could be drawn more transparently or precisely to include a description or list of exceptions or defences to offences that might be included in the regulations in accordance with the Scottish Government’s intentions, albeit that an initial description or list might in future be modified by regulation; or, otherwise, to please explain why it has been considered appropriate to include the provisions in sections 17(2)(d) and (e) on enforcement but not to include further provision as to exceptions and defences?
Members indicated agreement.
Section 18(1) will enable ministers to make regulations to prohibit or restrict, in the course of a business, the giving away of NVPs—and coupons for those products—for free, including retailing them for a nominal value. Section 19(1) will enable regulations to prohibit or restrict a person in the course of a business from entering into a sponsorship agreement where the purpose or effect of anything done as a result of it promotes a NVP.
Both section 18(2) and 19(2) contain a non-exhaustive list of the kind of provision that could be made in regulations, including enforcement, offences, defences and exceptions. There is currently no description or list of exceptions or defences to offences that might be included in the regulations.
Therefore, as for the powers in section 17(2)(b) and (c), does the committee agree to ask the Scottish Government: whether sections 18(2) and 19(2) could be drawn more transparently or precisely to include a description or list of exceptions or defences to offences that may be included in the regulations in accordance with the Scottish Government’s intentions, albeit that an initial description or list might in future be modified by regulation; or, otherwise, to please explain why it has been considered appropriate to include the provisions in sections 18(2)(e) and (f) and 19(2)(d) and (e) on enforcement but not to include further provision as to exceptions and defences?
Members indicated agreement.
Section 20 will insert section 4D into the Smoking, Health and Social Care (Scotland) Act 2005. Section 4D(1) defines
“no-smoking area outside a hospital building”
as meaning an area
“lying immediately outside the hospital building, and ... bounded by a perimeter the specified distance from the building.”
New section 4D(2)(a) will enable ministers to make regulations to prescribe the specified distance of the perimeter. The delegated powers memorandum explains that the perimeter distance to be specified under the power is a key aspect of the proposed policy.
Does the committee agree to ask the Scottish Government for further explanation as to why a proposed initial perimeter distance could not, following consultation on the bill, have been included in the proposed new section 4D of the 2005 act for consideration by Parliament and consultation with stakeholders during the stages of the bill’s passage? It appears possible to provide that such an initially proposed distance be variable by means of regulations. Do we agree to ask why the Scottish Government has considered it more appropriate for the distance to be proposed in regulations at a later stage?
Members indicated agreement.
The DPM states at paragraph 87 that, for consistency, it is intended that the same perimeter distance of a proposed no-smoking area is to apply to all NHS hospital buildings. However, the proposed new section 4D(1) and (2) of the 2005 act do not in terms provide that only one distance may be specified for the purposes of all health service hospital buildings. The ancillary powers in section 32(1) enable the regulations to make different provision for different purposes.
Does the committee agree to ask the Scottish Government whether the policy intention to prescribe a single perimeter distance could be made clearer in the provisions?
Members indicated agreement.
Section 22(1) will confer powers on ministers to specify the actions that should be taken by the “responsible person”—the duty of candour procedure. A “responsible person” is one of the bodies—including health boards—as defined in section 25 that provide health, care or social work services. Further information about why secondary legislation is appropriate here and how it might be used may be beneficial.
Does the committee therefore agree to ask the Scottish Government to explain why it has been considered appropriate to set out all the details of the duty of candour procedure in regulations, under the framework of particular matters that might be included, as set out in section 22(2)(a) to (k), and to provide examples of how the power might be exercised to set out specific procedures and requirements on a “responsible person”? In particular, examples could be provided of the types of actions, steps and requirements that might be required of a “responsible person” under section 22(2)(d), (g) or (i).
Members indicated agreement.
The wording of the ancillary powers in section 33(1) differs from, for example, the wording of section 97(1) of the Community Empowerment (Scotland) Bill, as passed. Yet different wording is used in section 25 of the Succession (Scotland) Bill, which the committee is also considering currently.
Does the committee agree to ask the Scottish Government to explain why the different wording used in section 33(1) is appropriate, and what the effect of the provision will be, compared with the formulations used in the Community Empowerment (Scotland) Bill and the Succession (Scotland) Bill)? Does the committee agree that, for consistency, if the effect of ancillary powers in different bills is intended to be the same, the same wording ought to be used?
I just wonder how important this is. People say things in different ways but they end up meaning the same thing. Is it really important that we all have exactly the same wording or the same type of wording in different bills? I throw that in just by way of comment.
If the words are different, presumably they have a different meaning in law thereafter and they are open to different interpretations. If the intentions are the same, would it not make sense for the words to be consistent one with another?
Shall we ask the question? It seems reasonable that there is a catch-all set of words that would be in any statute and changed only when something was not meant to be caught by the statute.
We shall ask the question.