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Item 2 is an evidence session ahead of our stage 2 scrutiny of the bill. Members will recall that, among the recommendations in the committee's stage 1 report, the committee called on the Minister for Public Health and Sport to consider whether the position of minors with regard to purchasing tobacco should be brought into line with the position of minors in respect of alcohol. The committee recommended that the bill be amended to criminalise proxy purchasing and found persuasive arguments in favour of giving the police powers—comparable with those that relate to alcohol—to confiscate tobacco from under-18s.
Primary medical services—
Yes, but what is the deadline? [Interruption.] This is a cautionary tale about having the microphone on all the time.
The line is not there at the moment.
The line is not there; it is under water. Well, there we are—fish are on the line.
We have just received at the last minute a report from Young Scot, so I have—obviously—not read it all. However, I am slightly surprised that page 7 refers to
A lot of confusion is felt, because many young people think that it is already illegal for under-18s to purchase cigarettes. Young people thought that it should be illegal for under-18s to buy cigarettes but that the burden should not fall entirely on them—it should be shared between those who try to buy cigarettes and those who sell cigarettes.
I still think that the figure should be much more than 58 per cent. Do young people understand the consequences of tobacco smoking at an early age and the other related issues?
A lot of them do, but many of the young people who responded to our survey said that they want more education. When I was at school, there was not enough education on smoking. I do not smoke, but many people of my age do. There is a lot of information out there about the dangers, but it is still not enough. Not enough is done to tackle smoking and show people that it is not difficult to avoid.
I want us to keep to the issue of whether it should be an offence. I appreciate that the issue of education comes into it, but I want us to keep our discussions focused on the amendments.
I have a brief supplementary question. You said that we should ensure that the responsibility is shared between retailers and young people. In my view, that is what the amendments do. At present, it is illegal for retailers to sell tobacco to under-18s, but it is clear from the evidence that we took at stage 1 that it is not illegal for someone who is under 18 to try to buy tobacco, for them to possess it, or for someone to buy it on their behalf. Do the amendments strike the right balance or should we be looking at something else?
They strike the right balance. If proxy purchasing becomes illegal, that will also be a correct move. Adults have a responsibility to look after our young people and should not buy them cigarettes. The proposals will create a more even balance.
The National Federation of Retail Newsagents in Scotland does not want to criminalise young people, but, as Danielle Rowley said, the responsibility should be shared between retailers and those young people who attempt to purchase tobacco. We propose that the penalty for being charged should simply be education. The young person should get a package of education, with their parents, and that would be the penalty.
I am more interested in the practicality of the proposals on proxy purchasing and purchasing by under-18s. We probably all agree with them, but I am concerned about whether it will be practical to confiscate paraphernalia and whether the criminalisation of proxy purchasing could be implemented effectively.
Right, so the concerns that you mentioned are about amendments 8 and 9.
There are issues about the proxy purchasing of tobacco, as there are in relation to alcohol, but the amendments strike the right balance. It should be an offence to purchase tobacco on behalf of young people. We face challenges in enforcing the law on the major problem of the proxy purchasing of alcohol for young people, but we can counter the problems. If there are problems with particular premises, we can use surveillance and other techniques to enforce the law. I accept your point that the proposals would be difficult to enforce, but that should not preclude our trying to pursue those who sell tobacco to under-18s.
People are concerned about criminalising youngsters. In amendment 7, subsection (4) states:
Could I get some help on that from one of the witnesses from the police? When the amendment says
A fine would not be an absolute requirement. As Dr Simpson said, there are alternatives to prosecution.
So the sheriff could decide, or the justice—
It is unlikely that it would go to a sheriff. There is the alternative of fixed penalties, whether those are fiscal or a diversion to other forms of disposal. For example, there is a scheme in Fife for people who are issued with a fixed-penalty notice for antisocial behaviour. With the agreement of the Crown we are diverting them to an education scheme. If they complete it and do not offend again, the penalty will be waived. There are alternatives; a fine is not mandatory.
That is helpful and it takes care of Ian Mckee's question about someone being automatically criminalised.
Even if the penalty is waived, is the person not still criminalised?
No. It is possible, particularly with antisocial behaviour, to issue fiscal fixed-penalty notices that are not necessarily a conviction; it is not a recorded conviction.
So the person has committed an offence.
They have committed an offence, but it is dealt with in an alternative way.
So it does not hang around them.
That is right.
Thank you. I do not need to ask my question.
Things like a warning letter from the fiscal or—
It is not a conviction.
I understand that. That is the kind of thing that you are talking about.
What I am saying is that, as Dr Simpson said, there are alternatives. That might be a scheme on the dangers of smoking, similar to the one that we are using in Fife for drink. We say that we will not necessarily convict a person for their first offence related to alcohol consumption; instead, we will give them the option of looking at their lifestyle and at the damage that they are doing and, if they complete the course, we will not enforce the penalty.
I followed the options available to fiscals as to what they might do, which would avoid the trap to which Dr Simpson referred, but can we be absolutely clear that if the fiscal brings the offence under this proposed new section in the Tobacco and Primary Medical Services (Scotland) Act, as it would be, that would not constitute a criminal offence?
If the fiscal took it fully through to a prosecution it would be an offence, but there are alternatives available to the fiscal.
I think that that is the case, Ross. The amendment says "on summary conviction", but the fiscal might not take it before the court; they might decide that that was not in the public interest.
That is not quite an answer to Ian McKee's question.
Convener, if I may I invite the committee to comment as well as the witnesses. We are trying to explore a system that supports young people who are trying to purchase cigarettes. It should be a system that prevents them from purchasing cigarettes and makes it illegal for them to do so. However, if the young person is a smoker—we know that 12 per cent of boys aged 15 and 18 per cent of girls aged 15 smoke—and they attempt to purchase cigarettes, we want to get them into smoking cessation rather than criminalise them. That should be the thrust of what we are doing. I wonder whether Danielle Rowley agrees with that. Rather than the legislation having only a bare statement about summary conviction and so on—although I appreciate that that has to be there—the alternatives should be spelled out more clearly. Christine Grahame is the lawyer, so I bow to—
It is a long time since I practised. I do not think that the alternatives are in specific statute. The discretion of the justice or of the sheriff is always there, unless the legislation says "must be brought" and "must have a summary conviction", in which case it is mandatory. The option of bringing a case before the court is always available to a fiscal, particularly in youth offending matters. That is exactly where such alternatives fit in, but it is not in statute.
I understand that, but I wonder whether the emphasis is wrong. We are saying, "The penalty is this and you may use alternatives." Should we not be saying, "You should do X and if there are repeated offences, the penalty should be this"?
From my experience on the Justice Committee, when it comes to the creation of offences, they must be based in the legislation, but subsequent guidance is issued to fiscals by the Lord Advocate on how they should apply that legislation when they are considering a referral. The guidance could be clear that, for a first offence, they should be looking to refer on to a smoking cessation programme or whatever it may be, but that is not a matter for legislation; it is a matter for the guidance that is issued to the fiscals.
I like it when the committee members give each other evidence; the witnesses may go now.
It is an adage in our federation that young people access cigarettes from a variety of places. We fully support the message of getting young people to stop smoking.
We appreciate that. The committee is well aware of that point, but we are focusing on whether the amendments do what they say on the tin, or whether they might have unintended consequences.
I have a point about amendment 9. I am sorry that we did not get your paper in advance, Danielle, as it is a good paper. It would have been nice to have had a wee bit time to look over it. On page 15, in response to the question whether the police should
Was that question about amendment 7 or amendment 9?
Amendment 9, "Confiscation of tobacco products from persons under 18".
But that is "in a public place", not in a shop.
Yes. I also want Danielle Rowley to speak about page 15 of her written evidence, which says that 53 per cent of under-18s do not think that the police should have that power, and I am asking about the trading standards evidence, which says that it is
To make it clear, within shop premises, it is a matter for trading standards; in public places, it is the police who would be involved, as it would involve a criminal offence. Is that correct? I am looking at Mr Roderick and Mr Barker. I invite Mr Roderick to clarify the matter.
We should look at the evidence.
Trading standards only deals with traders; we do not tend to deal with individuals, certainly when it comes to offences. The example that I provided in my written evidence shows how the situation with tobacco purchasing is similar to that of the possession of adult fireworks by an under-18 person. That is already a police matter—local authorities are relieved of the duty to enforce that aspect. We view the proposals before us as similar. Trading standards will deal with the seller of the product, not the purchaser.
I echo those thoughts. The proposals before us about possession and sale are similar to the existing provisions for alcohol. We have worked very well with trading standards officers for many years, and I do not see the proposals before us making things any different.
The point about harassment has been made on behalf of the young people's organisations. In my own youth, my relationship with the police was not always happy.
Oh.
We were just noisy youngsters, and that is sometimes what you get. I do not know whether much has changed over the decades—we will not say how many decades, Ms Rowley. Let us deal with your point about harassment. Do you wish to say something about that? I want to ask Mr Barker about this from a practical point of view. The amendment says:
The word "harassment" is a problem for us, as we react to an awful lot of the behaviour you describe. Mary Scanlon commented that we do not take antisocial behaviour seriously, but I counter that: we take it very seriously. A huge proportion of our time is spent in dealing with antisocial behaviour and trying to address those issues, particularly in relation to young people and drink.
The reason why a majority of young people disagree with the proposal is because it would weaken their relationship with the police. Perhaps the police could advise young people where to go to stop smoking, rather than just taking the cigarettes off them.
With regard to Andrew Barker's point, a criticism is often made that there is not enough enforcement of existing laws. Are you satisfied that the level of your partnership with trading standards has led to a robust level of prosecutions and deterrents for retailers who sell cigarettes and tobacco to under-18s? Is it working well?
At present, it is not unlawful—
I refer to existing laws, rather than laws that have not come into force yet.
We could use existing laws as an example. For instance, the test-purchasing schemes for age-restricted products have been very successful. I keep returning to the issue of alcohol, because that is the best comparison; a strong relationship has been built in that area. I will say honestly that we will probably not proactively target premises unless we have information in that regard. That is something that the industry would seek—we will not target premises for checks unless, similarly to the test-purchasing scheme for alcohol, there is information that those premises are offending.
In amendment 9, subsection (6) states:
They could smoke it.
That is a matter that forces will have to address with regard to standard operating procedures. I am starting to sound like a broken record, but we have in place exactly the same type of procedures in relation to alcohol. When an officer seizes a large carry-out on the streets, the question that is always asked is what the officer does with it. In many cases, they dispose of it in front of the people who were in possession of it, but we have all seen the photographs of the large hauls of drink that have been taken to various police offices. Please be assured that we have very tight processes to ensure that those are properly disposed of and that there is no impropriety.
You would obviously have to retain the seized goods if, as Ms Rowley said, the person says, "I am actually over 18 but I do not have ID and I challenge you on that." They could come down to the police station with their ID.
That is how it works for alcohol: we retain the goods and, if they can prove that they are 18, they will get the goods back.
We have exhausted the questions. I thank the witnesses for coming along, and for their written evidence. We move into private session for item 3.
Meeting continued in private until 12:00.