Agenda item 4 is evidence on the Smoking Prohibition (Children in Motor Vehicles) (Scotland) Bill. I welcome Simon Clark, director of the Freedom Organisation for the Right to Enjoy Smoking Tobacco. Thank you for attending. We have your written submission so, in the interests of time, we will go directly to our first question, which is from Richard Lyle.
I am a car driver and a smoker, and I do not feel threatened by the bill. Your position as expressed in your submission is:
“FOREST does not support the introduction of a ban on smoking in cars carrying children. We would encourage adults not to smoke in cars carrying children because, in our view, children should not be exposed to cigarette smoke in a small confined space”.
You then go on to say:
“In our opinion however there is no justification for government to ban smoking in ANY private vehicle, with or without children.”
How do you square your position? You say that people should not smoke in cars when children are in them, but then you say that the Government should not ban that.
I do not think that you should ban everything that might not be wise. Parents should err on the side of caution on certain things. We have been saying for many years that smokers need to be considerate to the people around them, particularly children and particularly if they are smoking in a confined space. We do not condone it and we certainly do not encourage people to smoke in a car where there are children.
In the past 10 to 20 years, huge numbers of smokers have changed their behaviour because they realise that it is wrong. The reality is that few people smoke in a car if children are present. I would like to think that we could give credit to smokers for having changed their behaviour and become increasingly considerate to the people around them and children in particular.
For a number of reasons, we do not think that legislation is necessary. First, very few people still do it. People often ask about the seat belt law, which came in in 1982. As I understand it, only about 25 per cent of people wore seat belts at the time so it was decided that, to increase the number significantly, a law had to be brought in. We do not need to do that with smoking in cars around children, because the majority of smokers would not dream of lighting a cigarette in those situations. They feel as you do, Mr Lyle. They do not feel particularly threatened by legislation, but I do not see why we should bring in legislation when it is not necessary and so few people do it.
Also, as we might hear in the next session, a ban will be difficult to enforce. We might come on to talk about that later. You would be asking the police to enforce it. If someone is driving along at 20, 30 or 40mph smoking a cigarette, I honestly do not know how anybody would be able to tell whether there is a small child in the back of the car. The only way that it could be done would be to have spot checks and pull drivers over, which I think is a waste of police time.
I have two grandchildren. I have two child seats in the back of my car. I do not smoke in my car when my grandchildren are in it. At the end of the day, the police can spot someone as they are going along if they are on their phone. Most of the time, the police can spot someone if they do not have their seat belt on. I am sure that the police could spot it if there were two kids in the back of my car while I was sitting in the front smoking a cigarette—not that I would be doing that.
The British Lung Foundation Scotland told us that 19 per cent of children aged 11 to 15 and 51 per cent of children aged 8 to 15 reported being exposed to cigarettes and that research has shown that 86 per cent of children across the UK want people to stop smoking when they are in a car. What do you think of those figures?
To be frank, I am slightly sceptical about them. Introducing legislation on the basis of surveys of children of that age is a bit dodgy. We cannot simply assume that children are being totally accurate when they respond to questions of that sort. I would like to think that, before legislation is introduced, proper hard evidence, not just the opinion of children, is taken into account.
Two years ago, University College Dublin did some research in which it monitored 2,300 vehicles during rush hour in Dublin as people were taking children to school. In those 2,300 vehicles, only eight drivers were smoking and of those eight, only one had a child in the back of the car. Similar research was carried out in New Zealand, although it was a much bigger survey covering something like 189,000 vehicles—a huge number. It found literally only a handful of vehicles in which the driver was smoking and there were children in the back. I accept that that research was in other countries, albeit English-speaking countries. I would like similar research to be carried out in Scotland to find out exactly how much of a problem there is. In terms of the numbers involved, I do not think that there is as much of a problem as is being made out.
I believe in education, not legislation, if at all possible. Legislation should be a last resort. We would happily join the Scottish Government in a media campaign to encourage the handful of people who still smoke in a car with children present not to do so, saying, “Think of the children. This is inconsiderate. Don’t do it.” We should consider doing that before we go the whole hog and introduce legislation.
It is important that we do not stigmatise the vast majority of adult smokers. Introducing such a law would stigmatise smokers. It would basically be saying to smokers, “You don’t know how to behave around children,” which I think is wrong. The reason why the issue is important to us is that the bill is quite a symbolically important step. It would be the first time that smoking in a private space, as opposed to a so-called public space, would be banned.
The nub of your argument is that you feel that the bill is an encroachment on people’s civil liberties. I smoke, and I smoke in my car, and I do not feel threatened by the bill. You are basically saying, “If you allow this, you will then ban everyone from smoking in their car. Where are you going to go next? Are you going to ban us from smoking in our house? Are you going to put us all on a desert island somewhere?”
One of your arguments is that the police should not enforce the bill and that environmental health officers should do it. What are we going to do? Are we going to station environmental health officers in streets? We certainly cannot have them driving round trying to spot a smoker. The police have done well with enforcing seat belt and car phone legislation so, at the end of the day, if the bill becomes legislation, I am sure that the police in their cars could spot someone who is smoking in a car with a child seat in the back.
11:15
Obviously, I cannot speak for the police. They are going to speak on the subject a bit later. As a member of the public who does not know enough about the police’s work, I would have thought that they have enough to do without another section of society being criminalised.
On pulling cars over to check that a driver who is smoking does not have a child in the back, you said earlier that the police can tell quite easily whether there is a child in the back—well, I disagree. These days, a lot of cars have tinted windows in the back, and the police will never see whether a small child is there.
We have serious concerns that, as soon as the bill is enacted, the anti-smoking lobby will come back and say, “Let’s ban smoking in all private vehicles, regardless of whether children are present.” We know that that is going to happen. Since 2011, the British Medical Association has been calling for a ban on smoking in all private vehicles, regardless of whether children are present. Action on Smoking and Health in London has published its five-year strategy in a report called “Smoking Still Kills”, in which it calls for a consultation on banning smoking in all private vehicles. We know where that is leading—ASH wants a ban on smoking in all private vehicles. We will have a situation where a lone driver, sitting in his own car on his own, lights a cigarette and suddenly he is a criminal. He can be prosecuted for it. That is very worrying.
You say that we will not have a ban on smoking in the home if children are present. I certainly hope not although, likewise, I hope that parents will be considerate and perhaps will have one room where they smoke or will smoke in the garden. Let us face it, though: 15 years ago, nobody thought that we were going to have a public smoking ban that would not allow smoking in any pub or club in the country, including working men’s clubs. Nobody foresaw that back in 2000 yet, within five or six years, we had a comprehensive ban in Scotland, and in another year we had a comprehensive ban in England and Wales.
That is why it is unwise to predict that such things will not happen. I am afraid that the tobacco control lobby has a policy called the next logical step. It is never satisfied. It will go from a ban on smoking in cars with children to a ban in all private vehicles. It will then up the ante and quite likely try, if not to actually ban smoking in the home, to name and shame people and to make people feel incredibly guilty about having the temerity to light a cigarette. I did a phone-in on Radio Scotland this morning. Somebody said that we need to ban mothers who are pushing their buggies from smoking at the same time. Where is this going to go? Are we seriously going to ban a mother from pushing her buggy in the park and smoking at the same time?
I am a great believer in education. The big drop in smoking rates in this country happened between the mid-1970s and the early 1990s, and it was all down to education of people about the health risks of smoking. Over the past 15 years, in Scotland and in the UK generally, smoking rates have continued to fall, but not by huge amounts, yet we have had a series of pretty draconian legislation—a ban on tobacco advertising and sponsorship, a smoking ban, a ban on vending machine sales, a ban on display of tobacco in shops and now the introduction of plain packaging. All that legislation has had relatively little impact when compared with the impact of the basic health education that people were given in the 1970s, 1980s and 1990s.
I am concerned that we are legislating for legislation’s sake, and I am not convinced that it will have any significant impact. The sad fact is that the people who are antisocial and inconsiderate enough to smoke in a car with children will probably just ignore legislation against it.
You mentioned that the mobile phone legislation has been a success, but I am not convinced that it has been, to be honest. Of course, before the mobile phone legislation was brought in, there were some very clear cases of accidents involving lorries where drivers were on the phone and cyclists had been killed, for example.
I am not suggesting that there is no risk to a child’s health from someone smoking in their presence, but the point about the evidence on passive smoking is that someone has to be exposed to environmental tobacco smoke consistently—day after day, month after month—for perhaps 10 or 15 years for it to have any significant impact.
I am not suggesting that we go back to the 1960s and 1970s, but the fact is that, in those days, the majority of the population smoked and children grew up in smoky households and were transported in smoky cars and vehicles. We do not want to go back to that, and yet that baby boom generation is living longer and healthier lives than any generation before. Before anyone jumps in, I am not associating the two things; rather, I am saying that sometimes the impact of second-hand smoke is exaggerated in order to make smokers feel guilty about their habit.
I am a lifelong non-smoker. The attacks on smokers over the past 10 or 15 years have been disproportionate. Smokers are an easy target and it is very easy to make them feel guilty. I do not think that smokers should feel guilty as long as they smoke responsibly and considerately. They are smoking a legal product and are making a huge contribution to the country’s finances through tobacco taxation. We must draw a line and say, “Enough’s enough.” There is a public smoking ban, a display ban and there will be plain packaging—where will it end?
May I just correct one thing? Kenny Gibson, with my support, introduced a bill in 1999, proposing that there should be a ban on smoking in restaurants—anywhere that food was being served. Bans on smoking in public places were not first thought of post-2000; considering such a ban was one of the first things that the Parliament did. I should declare that I am co-convener of the cross-party group in the Scottish Parliament on tobacco and health.
If I can summarise your arguments, Mr Clark, they appear to be: we should not do it because it is a slippery slope; we should not do it because the numbers are small; and we should not do it because it would be difficult to enforce. There was real concern about the ban on smoking in public—people said that there would be riots on the street, that people would act against what could be seen as an infringement of liberty, and that it was going far too far. Some people said that second-hand smoke could be dealt with by pumping the stuff around or by air conditioning; clearly that was rubbish. However, the fact is that people obey the law.
By your own admission, it is the irresponsible individual who smokes in the car, not the responsible smoker. The bill is not about the smoker; it is about protecting children. Are you really saying that the Parliament should not seek to protect children by introducing legislation that will ensure that they are not exposed to second-hand smoke, given that we know from the research—I wonder whether you accept that research—that smoking in the enclosed circumstances of a car leads to levels of pollution that are far higher than they are in most other circumstances? Smoking in the car creates one of the most polluting sets of circumstances that there are.
I am not an expert, so I probably should not answer that question. I think that parents should err on the side of caution. It is common sense that any parent who has small children, particularly babies, should err on the side of caution, and I think that most would.
Much of the research into passive smoking has been flawed. The largest-ever study on passive smoking, which was carried out in California, studied a group of 119,000 people between 1959 and 1999, and found that it had no significant impact.
The problem with the research that has been carried out in cars is that it is inconsistent because there are so many variables—such as whether a window is open and whether it is open one inch or two—that all make a huge difference. Often, the research that we have seen focuses on that moment—it may be literally a few seconds—when someone has just lit a cigarette and there is a significant amount of smoke in the car. Within seconds, that smoke has normally been massively diluted because a window is open, or whatever. I do not want to come across as if I am justifying or defending people who smoke in cars with children, because I am not. I simply think that the legislation is excessive.
Perhaps I may step back a bit and talk about the smoking ban in Scotland in 2006, which I think was grossly excessive. I totally accept that it is fine to ban smoking in restaurants, but I think that a comprehensive ban in every pub and club in the country, without even allowing designated smoking rooms, was outrageous. I still believe that nine years later, and I am not alone. A Populus poll last week before the ASH report came out asked a random sample of 2,000 people whether they would allow well-ventilated designated smoking rooms in pubs and private members clubs, and 57 per cent said that they would. I accept that people obey the law and do not want to get their landlord or publican into trouble, but I dispute the idea that the smoking ban has been hugely popular. It has very high compliance rates, but when people are asked whether we should allow well-ventilated designated smoking rooms, in general the majority of people favour that idea.
You said that the idea of a well-ventilated smoking room is complete nonsense, but it is not. Modern technology can solve the problem of environmental tobacco smoke extremely well, but sadly we have not gone down that route. Underlying this legislation is a desire to stop people smoking—that is what it comes down to, despite the fact that tobacco is a perfectly legal product. People talk about making Scotland smoke free by 2035 or 2030, or whatever, but if we leave smokers alone, smoking rates will continue to fall slowly for a number of reasons. Health is a serious issue. A lot of people start smoking when they are quite young, but they give up in their 20s and 30s when they start having families and do not want to smoke around children and all the rest of it.
We will continue to see a gentle decline in smoking rates, but unfortunately that is not good enough for the tobacco control lobby. It has already set a target of getting Scotland to be smoke free by 2035—smoke free means that just 5 per cent of the population smoke. The only way that we will get smoking rates down to 5 per cent is by introducing more and more bans and legislation restricting where people can smoke. The way we are going, eventually people will not be allowed to smoke in a public park. We are starting by banning smoking in children’s play areas, even though they are in the open air. Some councils in England have exclusion zones around play areas—eventually people will not be able to smoke anywhere where a child might be present. Those rules and regulations have not been brought in for health reasons, because nobody argues that smoking in the open air is a risk to any bystander, whether they are an adult or a child.
The argument now is, “We do not want you to smoke in a public park or anywhere near children because we do not want you to be a bad role model for children. If a child sees you smoking in a park, it might encourage them to take up smoking”. Again, there is no evidence that children take up smoking because they see a complete stranger smoking. All the evidence suggests that children take up smoking because of peer pressure or the influence of family members. That is another reason why some people are trying to crack down on family members smoking, whether in the car or at home, or whatever. There is a desire to stop parents smoking in case they become bad role models for their children.
We must remember that tobacco is a legal product. I would have far more respect for people who came out and said that we should ban tobacco completely. Instead of that, Governments are more than happy to put 86 per cent taxation on tobacco—that is the average taxation on a pack of cigarettes in this country; 86 per cent goes to the Government.
11:30It comes back to the principle that we should try to discourage the few people who smoke in a car with children present. FOREST would be more than happy to join that campaign, so long as it was educational rather than threatening people with fines, penalties and all the rest of it. We feel the same way about litter. We would like to encourage smokers not to drop litter, but it is a two-way thing. It needs some help, rather than rather draconian bullying tactics through which smokers are threatened with fines and other penalties if they drop litter or smoke in a car.
So we can add to the list that passive smoking research is not valid, and research on smoking in cars—
Now you are exaggerating.
That is what you are saying.
I am not saying that it is not valid.
You are saying that the research is not valid unless it supports your case.
I am saying that the threat of second-hand smoke has been exaggerated. I cannot repeat often enough that I am not encouraging people to smoke in a car with children. I would urge anybody to err on the side of caution. However, I think that the research exaggerates the risk, because in real-life conditions most children are exposed to other people’s tobacco smoke for only a very short time.
The Government did not accept Kenny Gibson’s proposals in 1999 because, at that point, the research on passive smoking was not good enough. However, within two to three years a lot of studies were completed that demonstrated very clearly that passive smoking has an effect—not as much as direct smoking, but a significant effect. That is one of the reasons why the Government adopted the public health smoking ban. That ban was also about protecting workers in the restaurant and pub trade from exposure to smoke, because they are working there all day. We will continue trying to protect people from the effects of irresponsible smokers, in cars and in other places.
The problem is that workers could have been protected by the provision of designated smoking rooms.
We tried that. When Susan Deacon refused to take up Kenny Gibson’s bill in 1999, she said that ventilation systems would be introduced. It was clear from the research that was subsequently carried out that that was ineffective. The technology may have moved on, but at that time it was certainly ineffective—it was a sop.
That is in the past. We are dealing with another bill today.
I am a bit confused, Mr Clark. You say that you would have more respect if the Government called for a ban on tobacco altogether. Fair enough, there would be no taxation, and I am not saying that I would disagree with that. However, you keep referring to small numbers and then huge numbers but you do not actually associate the numbers. The submission referred to something like 24 per cent of children who were exposed to smoking in a vehicle, which is quite a high number. I do not see 24 per cent as a low number. I actually think that one child being exposed to smoke is one too many.
Dr Simpson mentioned ventilation. That gets rid of the smoke, but it does not get rid of the chemicals—the toxins—and those cause most of the damage. I hear what you are saying. I asked last week whether legislation is necessary, or whether we should be doing more education. The answer I got was that education has been tried and continues to be used, and that it will continue alongside the legislation, but that legislation is deemed to be necessary. Do you not accept that argument?
No, sorry.
I did not think that you would.
I am not sure where you got the 24 per cent figure. Our understanding is that research shows that fewer than 13 per cent of children are exposed to tobacco smoke in a car. That is still probably too high, but in terms of being regularly exposed—
So you say that that is too high.
About 1 per cent of children are regularly exposed to tobacco smoke. If someone is just exposed very occasionally, among that 13 per cent, I do not believe that they will come to serious harm. However, let us try to bring down that figure and let us do that through education, not legislation.
You mention the figure of 13 per cent, but that gives you no idea whether any of those children have respiratory problems. If an adult is smoking irresponsibly near a child with a respiratory problem—asthma, for example—it will be exacerbated. We have tried the education route and we have done as much as we can through it, but it is not working. People still think, “Well, so what?” However, we have seen that the law that was introduced to ban smoking in public places works. People have obeyed that law—they go outside to smoke and they do not smoke in restaurants, pubs or clubs. Given the distance that adults might travel with children in a car, surely we should say that there should be absolutely no smoking in the car.
Again, that would be patronising for the vast majority of smokers who know how to behave. I am a bit disturbed about some of the language that you use—for example, you used the word “obeyed”. A lot of people are beginning to feel that the reason for tobacco control is, in fact, to have control; in this case, that would mean parental responsibility being taken away from a lot of decent people. If we introduce legislation on smoking in cars, what about the parent who has an overweight child? Will they be prosecuted? Where does this go? I am glad that you mentioned asthma, because smoking is often blamed for asthma.
I did not say that smoking was to blame for asthma; I said that a child’s asthma could be exacerbated by an adult smoking.
Sure. However, I do not think that we have gone down the education route on smoking in cars when children are present. I think that legislation should be a last resort in that regard and that there should be a three-year moratorium on any legislation in order to have an education campaign that specifically targets the issue of smoking in cars when children are present. We would be more than happy to support such a campaign.
I believe that legislation on smoking should not cover private vehicles. The difference is that, for example, pubs and clubs are public spaces in the sense that the public can go into them, although they are still private businesses—but that is a different argument. However, with the new legislation, we are talking about private spaces. As I said, I can guarantee that as soon as the bill is passed and a law is introduced, the tobacco control lobby will be back here and I will probably be back here in five years’ time or less—maybe in three years—having the same discussion about banning smoking in all private vehicles. The tobacco control lobby is relentless: it never stops. Of course—
The point that I cannot come to terms with in your argument is that you seem to accept that, during a three-year moratorium, children will still be exposed to smoke in a confined space—you are happy for that to happen.
As I tried to explain, I think that the health impacts are exaggerated. However, I hold my hands up and say that I am not an expert on the subject. As I said earlier, a generation of children grew up in smoky households and in smoky cars, and that generation is the longest-living generation in human history. I am not suggesting that there is a correlation between the two things, clearly; however, that baby-boom generation of the 1950s and 1960s does not appear to have come to any long-term harm.
I brought up the example of asthma a few minutes ago because it is interesting that, during a 40-year period when smoking numbers have halved, cases of asthma have tripled. We also know that allergies are a huge problem these days in a way that they were not 40 or 50 years ago, but there is a constant obsession—I believe this very strongly—with smoking and giving smokers a good kicking. As I said, I am a non-smoker but, in my lifetime—I grew up in Scotland—I have seen smokers treated abominably. They are an easy target.
Since the smoking ban came in, people are complaining about the smell of tobacco. That has nothing to do with public health; it is simply because people are now sensitive to any whiff of tobacco smoke. Most people are not normally exposed to tobacco smoke in their daily lives—we are not exposed to it in the workplace and are rarely exposed to it in the street—and, when some people get a little whiff of tobacco smoke, they react with shock. It is getting utterly ridiculous. We have to have a bit of proportion here, and I think that legislation to ban smoking in private vehicles is disproportionate to the problem.
I agree with Dr Simpson that the issue is about child protection. I will leave it there, convener.
As there are no further questions, I thank Mr Clark for his attendance and his written evidence.
11:40 Meeting suspended.
We continue our evidence taking. I welcome Brian Auld, the director of professional development at the Royal Environmental Health Institute of Scotland; William Hamilton, the environmental health manager at Glasgow City Council; Professor Alison Britton, the convener of the health and medical law committee of the Law Society of Scotland; Margaret Wallace, the communities service manager at Stirling Council; Bernard Higgins, assistant chief constable—operational support; and Chief Superintendent Iain Murray.
Nanette Milne will ask the first question.
I want to discuss the enforcement part of the bill, which is the one aspect that has given me some concerns.
Most of our evidence suggests that the offence should be enforced by Police Scotland, but some organisations, including Police Scotland, do not agree that that should be the case. I would welcome views from the panel on how the offence should be enforced and who should be responsible for enforcement.
Good morning, convener—I will start.
First, Police Scotland absolutely supports the bill. We buy into anything that makes Scotland a healthier place and protects communities from harm—there is no question about that. We are happy to be an enforcement agency that enforces the legislation, but there are some practicalities around that. If you want the bill to make as much of an impact as I believe you want it to, we should not be the sole enforcing agency.
11:45The reason for that is quite simple. One of our key priorities is to reduce road deaths and the number of people who are seriously injured on Scotland’s roads. Sadly, in the fiscal year ending 31 March, 191 people were killed on Scotland’s roads. As I understand it, smoking was not a contributory factor in any of those fatal road accidents.
Although the policy has clear health benefits, it would not, in our view, necessarily have a great impact on reducing the number of people who are killed on Scotland’s roads. The clear causal factors in fatal and serious road accidents are people speeding, using mobile phones, not wearing seat belts and drink-driving, and we wish to continue targeting those areas.
Having said that, I emphasise that we believe that we would have a role to play in enforcing the legislation as an enforcement agency. I just want to make the committee and Parliament aware that, with regard to how much we could contribute to enforcement, there might be benefit in extending the legislation to authorise enforcement by, for example, environmental health officers, local authority officers, traffic wardens and the numerous people who have the power just now to issue antisocial behaviour tickets. They could comfortably deal with cases involving stationary vehicles.
I accept that only Police Scotland has the authority to stop moving vehicles on the road, but I contend that there are a number of people who smoke in stationary vehicles in car parks or parked up on the road with children in the back. The legislation could be extended to authorise other authorities to deal with those circumstances.
We are wholly supportive of the bill and happy to be one of the enforcement agencies.
Are there any other views?
Stirling Council also fully supports the bill. Our view is that there should be a partnership approach. Police Scotland should be the enforcement body, but enforcement should involve different partners playing their part, too, as part of a wider prevention, intervention, education and enforcement approach. Enforcement for the people who are not responsible for it should be about a partnership approach, as it is for us.
As Assistant Chief Constable Higgins said, from a council perspective, enforcement is more about dealing with cases involving stationary cars, because that is a more practical aspect for us to address.
Good morning. The Law Society of Scotland is very happy with the provisions in the bill. We welcome anything that will protect children in Scotland. We see the bill as one measure in a range of measures in the smoking cessation strategy.
Our concern is to make enforcement workable and practicable within the limited resources across all the organisations to which the legislation pertains. We suggest that the committee considers legislating to place responsibility on the driver, rather than attributing responsibility for smoking and giving penalties to the person who is smoking in the vehicle. The driver maintains control of the vehicle, and he or she is responsible for it. That is the case in situations involving young children under the age of 14, where the driver is responsible for ensuring that the child wears a seat belt.
Evidence has been given on how challenging enforcement will be, not necessarily when the situation involves young children in car seats but when there are children from the age of 12 onwards in the car. It is so hard to know how old children are, so we would want them to carry some form of photographic evidence of their identity that shows their date of birth. We need something that might simplify that procedure and allow us to utilise resources effectively. Placing responsibility on the driver might be one way of doing that.
First, the institute fully supports the premise of the bill.
My understanding is that about 79 per cent of those who responded to the Government consultation fully supported Police Scotland undertaking the role of lead enforcement authority for the bill. We fully appreciate the difficulties and restrictions that Police Scotland is under, as are many public services across Scotland.
The environmental health profession has had a leading role in the banning of smoking in enclosed public spaces. Between 2006 and 2012, approximately 5,000 fixed-penalty notices have been served across Scotland. However, the one thing that is really important to recognise is that enforcement is part of a multimodel approach to smoking that includes a lot of education and a lot of guidance. We would fully support taking such an approach with the new legislation.
Environmental health departments across Scotland routinely work with Police Scotland as things stand. We buy in, for want of a better expression, the resources of Police Scotland—for example, with emissions testing. There are some issues with that: it is very reactive, and the chances are that we will miss a lot of the individuals we want to target with the bill. However, we would appreciate a partnership, collaborative approach to undertaking enforcement activities under the bill.
I will add my perspective and speak about enforcement from Glasgow City Council’s point of view. I endorse the views of my colleague from REHIS. My council also supports the bill. However, I sound a cautionary note from our perspective, which is that we have real difficulty seeing how environmental health can really engage with the bill to a meaningful extent.
I take the point about stationary vehicles, but in reality, we do not have the people on the ground, in the street, to the same extent that the police do. It is conceivable and feasible that we could intervene in a case that involved a stationary vehicle, but I cannot imagine that being done to any meaningful extent, simply because the number of people involved is so low.
People might pick up on something while they are travelling from A to B, but I do not see there being any huge incentive for local authorities to enforce the bill. If a local authority enforced the bill proactively by stopping vehicles, again that would involve Police Scotland and we would be more than happy to work in partnership in that way. However, the concept of unexpected or unplanned intervention is problematic and, to be truthful, I think that it would be unlikely to happen to any great extent.
Thanks for those responses.
I am slightly worried about the actual practicalities of what would trigger investigation in terms of identifying young people in a car. A lot of the talk has been about young children who would be in car seats. I can fully accept that those situations would be relatively easy to deal with. However, I have a grandson who is 15 and 5ft 2in. If he was sitting in a car, people could quite easily think that he was over 18, and the bill covers people under the age of 18. What would trigger investigation in such a case? Would it depend on someone saying that the adult in the car with them was smoking? I just cannot work out the practicalities of how we would get to the stage of accusing someone of smoking in a car with children in it. Does anyone have any advice on that?
To go back to the point about whether the responsibility should be on the driver, there was some discussion earlier about the success of sanctions for not wearing a seat belt. Cameras can pick up drivers who are not wearing a seat belt or who are using a hand-held phone. Those things are clear and reasonably easy to evidence because the person is sitting in the front of the car. However, someone could be sitting on the back seat smoking, or inhaling and then putting the cigarette underneath the dashboard. I have teenagers, so I know how crafty they can be in passing cigarettes back and forth. People could stub the cigarette out by the time that they were apprehended. The smell of cigarette smoke lingers for a long time. Evidence is going to be so difficult to get, and since this is such an important component part of the smoking cessation strategy, we have to make sure that we are as resourceful as we possibly can be.
I support Professor Britton’s point of view. Making the driver—the keeper of the vehicle—responsible would mirror the original smoking ban legislation, which was effective largely because the licensee of a pub, for example, is held responsible for people smoking on the premises. That led to people managing compliance themselves, and the same principle could apply in this case.
To be truthful, that would also make it more straightforward to identify the person who was responsible—it would be the keeper of the car. If the passenger in the vehicle had to be identified, that would cause significant difficulty. If environmental health officers intervened in a situation because no police constable was available, they might have difficulty in getting any meaningful information out of the person involved.
Do you envisage random checks on drivers? If you thought you saw a driver or a passenger in a car smoking but were not sure, would you target them randomly? Is that how you envisage the policy working?
There are two main ways in which the legislation could be applied. My colleagues in the police may also want to comment, but I envisage environmental health officers responding to complaints and accusations, although that would not be a major part of our work. Alternatively, we could identify or notice somebody smoking in passing. A third way would be to pull vehicles over relatively randomly. That happens at the moment for emissions testing, for instance, and is pretty successful—it works well. We would need to work in partnership with the police if we were to do that, but I can imagine that happening. It would probably be quite effective in sending out a message and getting the awareness levels up, which is what will lead to the success of the bill, rather than any real enforcement activity.
There has to be a degree of pragmatism about how the legislation would operate. Our officers make judgment calls constantly—every minute of every day—in deciding what action to take or not to take. For example, if kids are in possession of alcohol, our officers have to assess whether they are under 18.
Our officers are well versed in assessing a situation as they see it from a pragmatic point of view. If they passed a car and saw somebody smoking in it, and if they also saw child seats in the back, that would give them a fair indication that the child was under 18. It would be about overlaying a commonsense, pragmatic approach in considering every circumstance as it presented itself at the time.
For clarity, there is no will within Police Scotland not to enforce the legislation; I am simply saying that there are perhaps opportunities to widen the number of authorities that can enforce it, thereby having a greater impact. I make it absolutely clear that we are in no way abdicating responsibility for enforcing it, but I must be frank with you about our capacity to do that over a long period of time. There are other opportunities.
What actions would be necessary to create that wider partnership? If you wanted to involve community wardens and traffic wardens, for example, would they need additional powers?
I do not know. I assume that there would need to be some extension of powers, either through the bill or through local byelaws. I walked through the streets of Glasgow at the weekend and saw a number of community wardens issuing fixed-penalty notices for littering. Although it might be rare for them to have to deal with somebody who was smoking in a car while a young child was present, it might be better for them to have the ability to deal with that than not to have it.
I echo colleagues’ comments about partnership working in education, which we engage in on every aspect of road safety right across the spectrum. We are very much signed up to that way of working and would work in partnership with colleagues on the education aspect of the smoking ban. There are opportunities for that, and we are happy to offer our advice on it.
Are there any other responses?
12:00
I will add a couple of points, the first one being that, to meet the needs of their local communities, many local authorities in Scotland have warden-based services. Wardens can tackle littering and dog fouling, for example, and they are skilled in some legal procedures and can serve fixed-penalty notices.
There is something missing from the bill. Although it looks at enforcement, there is nothing about working with industry. For example, when people buy a car at a dealership or take their car in for an MOT, they could be given an advisory notice. That is another avenue that we would ask the Government to consider.
Is there any barrier to giving additional powers to people such as litter wardens?
There is no barrier per se.
Is it easily done?
It comes down only to the training and competence of the officers to whom the powers are given.
If no one else covers them, we need to come back to some of the unintended consequences, such as whether there would be any for the getting it right for every child approach, the Children and Young People (Scotland) Act 2014, and the potential for third parties to report people smoking in cars and how that would be dealt with.
My question is directed at Professor Britton.
I am surprised that the Law Society is suggesting vicarious liability for drivers. A passenger might light up a cigarette and the driver could ask them to desist, but they may be on a motorway or another road on which it is not possible to stop. Assistant Chief Constable Higgins or one of his sharp-eyed colleagues might happen by at that moment, the blue light goes on and the poor old driver is charged. If you were representing the driver of that vehicle as a client in court, what kind of defence would you mount to try to prevent a conviction?
My next point is about this being a form of summary justice. Perhaps the police might feel under pressure to produce statistics that show that they are enforcing the legislation. I am not implying bad faith on the part of the police, but there are opportunities for mistakes about the age of children—I know some 18 year olds who look younger.
I take you back to your days as a law student when justice was perhaps uppermost in your mind, in a way that I am getting the sense it may not be now.
Members: Oh!
Mr MacKenzie, that is a terrible thing to say. Thankfully, I am an academic and will not be representing anyone in court.
Mike MacKenzie mentioned vicarious liability. The driver of a vehicle has a very special responsibility in relation to road safety. We are talking here about the health and wellbeing of the occupants of the vehicle. The example that has already been given was that, if a child under the age of 14 is not wearing a seatbelt, the responsibility is the driver’s.
Everyone who has given evidence in this meeting is very supportive of the bill. The issues tend to be ones of effectiveness, good use of resources and ensuring that, if the legislation is going to be passed, it is as effective as possible in protecting young people. I am certainly not trying to be draconian; I am trying to take a practical approach to a set of circumstances that everyone has said can be challenging in terms of enforceability.
I believe—on behalf of the Law Society and personally—that there could be a statutory defence built in to the legislation to say that the driver of the vehicle believed beyond reasonable doubt that the people in the vehicle were all over the age of 18.
If we are looking at ways of being able to set a good example in relation to smoking cessation strategies, there is evidence from New Zealand, Canada and Ireland, where such legislation is a little more established, that such action is a very effective way of setting as normalised behaviour that people do not smoke in vehicles. We must use the resources as effectively as we can, and that seems to be the most logical way to do that.
I do not even begin to feel near enough qualified to answer Mike MacKenzie’s second question.
Are there any other responses to Mike MacKenzie’s questions?
On enforcement and my “sharp-eyed colleagues”, that would be down to professional judgment. That is what we ask our officers to do.
From day 1, in addition to our ethos of treating everyone with fairness, integrity and respect, we train our officers to use their professional judgment and, on occasion, their discretion. Although we might stop someone who is smoking while young children are in the car, it would not necessarily be the case that they would get a ticket. It might well be that part of the enforcement strategy is that police officers issue as many warnings as tickets. There is a rounded way in which we can work jointly and make the legislation as impactive as you want it to be.
That is reassuring. With your indulgence, convener, I will return to Professor Britton.
With the greatest of respect, Professor Britton, I say that I do not think that you properly answered the question. Perhaps I could rephrase it slightly differently. You have not made the case for the merits of prosecuting the driver rather than the passenger who is committing the offence. I am not clear where the advantage is in prosecuting the poor old driver through vicarious liability, rather than prosecuting the passenger who is committing the offence.
It is not the Law Society’s role to look at issues around why someone should be prosecuted. In our submission, we have considered the robustness of any possible legislation. Prosecution is not in our remit, but I hope that contributing to effective legislation is. That is what we try to do in our submission.
Were the vehicle moving, the decision on whether to prosecute would lie with Police Scotland. Assistant Chief Constable Higgins has said that the police would take a practical approach. The police have experience related to other road traffic offences, and they would apply that experience.
I can comment only that I am, yet again, disappointed by the response. The Law Society has suggested that, if the bill is passed, the driver would be liable rather than the passenger, when it is the passenger who is committing the offence.
I would be pleased if Professor Britton could describe why the driver should have legal liability and not the passenger who is committing the offence. I do not understand what you consider to be the merits of that argument.
I can only reiterate what I have said. First, we are trying to place a responsibility for protecting young people in a vehicle, and for setting good patterns of behaviour to protect their health and wellbeing.
Other jurisdictions have introduced legislation similar to that which is before the committee today. The issue that they keep returning to is the challenge of enforceability. A possible consideration for the committee would be that it may be easier for that to be incumbent on the driver.
Are there any other views on whether it should be incumbent on the driver or the person smoking?
It should be the driver’s responsibility. In the simplest terms, without the driver, the vehicle cannot move. Therefore, drivers are responsible for those whom they are transporting in the vehicle.
We understand that there may be situations in which the driver may not be able to control the behaviour of individual passengers, but that would be considered as a defence to allow someone to smoke in a vehicle.
Does Police Scotland have a view? Come on now.
It would be possible to use “cause” and “permit”; the person in charge of a vehicle who causes or permits someone to commit the offence would be as liable as the person committing the offence. I do not want to give the committee another option, but you could charge both the driver and the passenger.
There we go. [Laughter.]
How is that for a neutral stance?
That resolves that one.
Put that in your pipe and smoke it. Very good!
The witnesses have heard Mr Clark’s evidence. Have you not all just made the case for Mr Clark? We now have the police, council officers, traffic wardens, community officers, the general public and closed-circuit television—and by the way, we are going to set up roadblocks to pull people over. Have we moved away from relying on the police, who do a good job checking people for wearing seat belts, for drunk driving and for using their phones? Most police cars still have two officers in them, checking for those things. As I have said, I have two kid seats, so you can see my three-year-old grandson and my one-year-old granddaughter sitting in the back. Have we not just made the case for Mr Clark saying,
“Infamy! Infamy! They’ve all got it in for me”?
I do not agree with that. In my opening comments I spoke about the number of people who are dying on Scottish roads. That is a priority for Police Scotland. Smoking cigarettes is not, as we understand it, a cause of people dying on the roads, but it is a significant health issue. We are saying that, in terms of the benefit to the health of the nation, we absolutely get it—we absolutely support the move. However, the reality is that I will not be setting up roadblocks to check for people smoking in cars, because I need my officers on the fast roads and the big roads where people are dying, so that we can tackle the issues that cause people to die on our roads.
I will draw a crass comparison—forgive me for doing so. Dog fouling is a huge concern right across every community. People tell us that it is antisocial and unhealthy. We have powers to deal with dog fouling but, more often than not, it is community wardens who deal with it.
We absolutely have a role to play in enforcing the proposed legislation, but it will not have a huge impact on our priority of making the roads safer and reducing the number of people who are killed. We have to prioritise action that we take to reduce the number of people who die on Scottish roads; I dare say that smoking does not fall into that category.
Although we would absolutely enforce the legislation, I suggest that the committee look beyond the role of the police and see who else could assist on that aspect of the bill—bearing it in mind that all colleagues at the table have said that the measure cannot be taken in isolation. There has to be a collaborative partnership approach, and it has to be on the back of a fairly robust education programme.
I support exactly what has just been said. One would hope that any form of criminal sanction would be a last resort. The law would raise awareness and would perhaps make people think about whether they should smoke in a vehicle. It might help them to consider whether or not to look for smoking cessation strategies or to change their pattern of behaviour and how they wish to enjoy cigarettes. I hope that, as one of a wide range of measures, the bill will raise the profile of the matter.
The statistics on the dangers of second-hand smoke are incontestable: 1 billion people will die worldwide by 2050. Such statistics are beyond argument. There are fewer statistics available on the benefits of legislation such as the bill, but jurisdictions that have such laws acknowledge that an improvement is starting to show among young people for smoking-related disease. For the teenage years in particular, that involves setting a pattern of behaviour such that those people will not smoke in the future.
The proposal in the bill should not be something that we rely on as the first resort; it should be part of a range of measures and should raise awareness in people’s minds and empower them to make other choices themselves.
12:15
Professor Britton, people have made arguments about education, campaigns and whatever. Has the case been made for legislation? That could be difficult to enforce, and enforcing it would be a low priority as there are lots of bigger issues. Is legislation necessary or should we just do a better job in communicating and educating?
The Law Society believes that legislation is necessary.
I agree with everything that has been said on that issue. With respect to Mr Lyle, he gave some examples of the different enforcement options that are available, but it is unlikely that all of that would be undertaken, simply because of resources.
Sorry—
Wait a minute, Richard. You can come back in in a moment.
Sorry. I do not mean any disrespect, but enforcement authorities work with many different tools. They want to ensure compliance through advice, education, publicity, guidance and a fair and reasonable approach to enforcement. I agree that enforcement is regularly regarded as the last method to be used to ensure compliance, and that has certainly been seen with the smoking ban. I mentioned that the number of fixed-penalty enforcement notices that have been served in Scotland is relatively small given how long the legislation has been in force, and that is partly due to the enforcement activities of the regulatory bodies. Enforcement should be seen as the last resort for any form of compliance, and that also supports the principles of best regulatory practice.
With the greatest respect to Mr Auld, I note that most of the witnesses said that they can take part in enforcement. The police can issue tickets, and council officers can issue tickets for dog fouling. There is a successful campaign in Sauchiehall Street and other places in Glasgow to stop people throwing down cigarette butts—they can get a ticket. Traffic wardens and community officers can also issue tickets. If people were listening closely, they will know that I did not support the point that Mr Clark made earlier. I am a smoker but I believe that the bill is required. However, you have just made the case for Mr Clark that everyone is going to pick on smokers who sit in their cars.
You are absolutely right about who can deliver enforcement activity, but it would not be reasonable to expect that all those activities will be undertaken at the same time, because there are just not the resources to do that. It will be up to the local enforcement authority to determine the best course of action to ensure that there is compliance with the legislation.
I think that we all understand that most people are law abiding and will comply with the law. That is the context. The focus on enforcement is due to the nature of the panel—that is where your focus takes us.
The written evidence provides some views on whether the bill is clear enough about exemptions for vehicles that are used for
“human habitation for not less than one night”.
That could be mobile homes or caravans. Would any of the witnesses like to put their views on that on the record?
We are content with the exemptions in the bill. There is nothing that we would want to come back on.
Does everyone agree with that?
We fully agree with the exemptions in the bill.
The main area of contention for us concerns convertible vehicles, in relation to which there are arguments for and against. The science behind third-hand tobacco smoke and convertible vehicles is still a moveable feast. People think that, when they are in a convertible car, the cigarette smoke will dissipate quite freely, but many more people drive convertibles with the windows up, which presents a barrier. Volatile organic compounds settle on upholstery, and more evidence is coming through on how long they remain there and how they get into the human biological system.
We fully support not including convertible vehicles in the exemptions and making the ban enforceable for people who are driving convertibles.
There do not seem to be any other responses on the point about third-hand smoke. That is a lesson for those people who smoke in their car when their grandchildren are not in it. I will leave members to ponder that one.
Point taken, convener. [Laughter.]
You have made me smile today, convener. That is unusual.
We all accept that most people are law abiding. Earlier this year, another piece of legislation was introduced to give local authorities powers—rather than duties—in relation to disabled parking and blue badges. That was brought about because there was a level of non-compliance by some members of the general public. Are we saying that we need the bill because the education has not worked and so we need something to try to enforce the sensible approach to smoking in cars when children are present? That is what we had to do for disabled parking and blue badges. For years, we thought that the message had got across, but it had not, so we had to introduce legislation. Do you see this as a similar situation? Perhaps Police Scotland could respond to that first.
That is a difficult question for me to answer, Mr Robertson, and I will tell you why. At the risk of repeating myself, we concentrate on road deaths—on fatalities. There are potentially child protection issues where people smoke in vehicles, but that has not been on our radar in relation to us reducing the number of fatal incidents and people being seriously injured on Scottish roads.
I am talking more about parked vehicles and police officers being on the beat. It used to be only police officers who could enforce the powers in relation to blue badges, but now that has been widened to include council officers. That collaborative partnership sounds sensible to me. I am asking whether, in relation to smoking in cars, we have not got the message through using education alone, and that is why we require the bill and a partnership approach.
There is a clear correlation between making something illegal and diminishing it. We are not going to eliminate the problem, but if it becomes known to the public that it is a criminal offence, people will stop doing it—not everyone, but the majority. The requirement to wear a seatbelt was the first obvious example of that. It is not really a fear of being caught that deters people, but the fact that not wearing a seatbelt has become socially unacceptable.
If you are happy with the impact that it will have on people to that degree, it may just be enough to satisfy us all. That approach will not eliminate smoking in cars when children are present, but it will probably reduce it quite significantly.
When we are trying to make a big cultural change to make people good, responsible citizens and to allow children to have a voice, enforcement becomes the next step. It would be great if people were responsible and the education, prevention and intervention had a wider impact. However, when something is enforceable, people start to see that and to question the activity, which helps to change the cultural element and views about what is and is not acceptable.
Should we give local authorities powers rather than a duty under the bill so that they can enforce it? If we give them the powers, it will be up to them whether they go down the road of enforcement. A duty is a completely different approach and is more about ensuring that the law is complied with. Should the bill confer powers or duties?
Police Scotland supports giving local authorities the powers, Mr Robertson. I do not think that the legislation would have the full impact if the police were the sole enforcing agency. As I said earlier, it is better to have the ability to do something and use it rarely than not to have the ability to do it at all.
I would like to hear some views on the comments in Police Scotland’s submission about the potential consequences of legislation. If somebody is found to be smoking in a car with a child, would it lead to the raising of a child concern form that would be shared with the named person under the GIRFEC principles and the Children and Young People (Scotland) Act 2014? Does everybody agree that the legislation would have that effect? If somebody is speeding with a child in the car, they are putting the child in danger. Is a report raised as a consequence in that situation?
That does not happen in every case, although we might end up doing it if there is a road traffic offence. The purpose of our submission was to highlight the public health concern and to air the issue of child concern forms where we find children who are believed to be in the way of harm. They would go to the named person and the case would move into a different sphere, such as education and intervention with parents through the named person, schools or whatever. There would be implications for local authorities and named persons if they were to take that work on, especially if there was continuous repeat offending.
Has anyone else thought about that issue? It might be useful if some of our other witnesses gave it consideration.
I am writing it down.
Perhaps the local authorities could consider the possible impacts on their responsibilities.
Third-party reporting was also raised. We have heard a list of priorities. If somebody reported regularly that their neighbour or the guy across the street was smoking while he was taking the kids to school, would that result in an investigation? Would there be action on third-party reporting?
To come back to the point about duties and responsibilities, it happens all the time with pubs. They are workplaces, so we would respond if somebody was smoking there. If we were advised that a neighbour was regularly smoking while they were driving a car with a child in it, it would not be unreasonable for us to approach the individual and warn them that they had been observed and reported to us and that they should be mindful that they are committing an offence. I cannot see us taking formal enforcement action on the back of a third-party report.
Our position is similar. If we got a third-party report, we would be duty bound to do something with it. I envisage that it would simply be to contact the person who was allegedly committing the offence to highlight that it had been brought to our attention and to ask them not to do it. I do not envisage investigating in the traditional sense, as in taking statements from people and doing scene-of-crime examinations on the car. Our response would have to be proportionate and pragmatic, which echoes what my colleague has just said.
I completely agree with what my colleagues have said with regard to reactive third-party reporting.
Earlier, I mentioned proactive third-party reporting, which would involve working with the motor industry to ensure that if, for example, someone who is doing an MOT on a car notices that there is evidence of children being transported in the car and someone smoking in it, an advisory notice will be given to the owner. I am not suggesting that that would be reported to Police Scotland or another authority; it would just be something that would come under the educational approach.
12:30
We have to remember that the ultimate aim of the bill is to reduce harm to young people and to protect their health. One would hope that all the stakeholders who are involved in taking the bill forward will remember that. A view should be taken that the issue is different from, say, running a red light, because it is to do with protecting the health and wellbeing of the occupants of a vehicle.
That is perhaps what the police have been saying to us all morning. We will take all of that away and consider it.
I have a final question, following on from Bob Doris’s question about the exemption for vehicles that provide
“human habitation for not less than one night”.
How could that exemption be enforced?
Again, that is a difficult issue. If the vehicle was on a campsite, we would be able to see how long it had been there. If it was the cab of a lorry that was parked overnight in a lorry park, the issue would come down to assessing what we see in front of us at the time and applying a pragmatic, commonsense approach.
I should say that I was just thinking out loud there. If I came across a child camping in a lorry overnight, there might be wider issues than simply smoking. I was trying desperately to think of an example.
The exemption applies to vehicles that are people’s homes, such as motorhomes. It does not apply to, for example, camper vans that have been rented by people who are travelling around, as they are already covered under the smoking ban that relates to such vehicles.
As there are no further questions, I thank all our witnesses for their attendance and the very good written evidence that they supplied.
I will now close the meeting. Thank you all for your patience and participation.
Meeting closed at 12:32.Previous
NHS Boards Budget Scrutiny