Good morning and welcome to the 31st meeting in 2015 of the Health and Sport Committee. As I normally do at this point, I ask everyone to switch off mobile phones because they can interfere with the sound system, and to note that officials and members are using tablet devices instead of hard copies of the papers.
The first item on the agenda is stage 2 of the Smoking Prohibition (Children in Motor Vehicles) (Scotland) Bill. I welcome Jim Hume MSP, who is the member in charge of the bill, and his officials: Stephen Fricker, an assistant clerk in the non-Government bills unit; and Louise Miller, a solicitor in the office of the solicitor to the Scottish Parliament. I also welcome Maureen Watt, who is the Minister for Public Health, and her officials: Siobhan Mackay, policy executive, and Claire McDermott, bill team manager, both from the Scottish Government tobacco control team; David Wilson, a Scottish Government solicitor; and Meryl Skene, a parliamentary counsel in the Scottish Government.
Everyone should have with them a copy of the bill as introduced, the marshalled list of amendments, which was published on Friday, and the groupings of amendments, which sets out the amendments in the order in which they will be considered.
There will be one debate on each group of amendments. I will call the member who lodged the first amendment in the group to speak to and move that amendment, and to speak to all the other amendments in the group. Members who have not lodged amendments in the group but who wish to speak should catch my attention in the usual way.
If they have not already spoken to the group of amendments, I will invite the minister and then the member in charge of the bill, Jim Hume, to contribute to the debate before we move to the winding-up speech. The debate on the group will be concluded by my inviting the member who moved the first amendment in the group to wind up.
I take it that most people know the amendment procedure, so I will not go through it all.
Section 1—Offence of smoking in a motor vehicle with children
Amendment 10, in the name of Malcolm Chisholm, is grouped with amendments 11 to 15. I draw members’ attention to the pre-emption information that is shown with the groupings.
Amendment 10 is the central amendment in the group, although it should be grouped specifically with amendment 15, which defines “driver”, which is, of course, the central word in amendment 10.
As I am a loyal committee member, my starting point is the recommendation in paragraph 65 of the committee’s report on the bill, of which I will quote a bit. It states:
“the Committee is persuaded on balance that making the driver and the smoker liable for the offence is the sensible approach. This would bring this Bill into line with other duties on drivers (e.g. seatbelt legislation), be consistent with the approach south of the border, and provide added incentives to protect children from the harm of second-hand smoking in private vehicles.”
As the committee did, I took the view that making the driver as well as the smoker liable would strengthen the bill and its central purpose, which is to protect children from second-hand smoke. Amendment 10 sets out the main thrust of all the amendments in the group.
Amendment 11 deals with the exception subsection, which is subsection (2) of section 1. Obviously, proposed new subsection (1A) includes the same exception. Amendment 14 would extend the proposed new subsection (1A) offence to section 1(5), which is the fine. Amendment 12 would extend the proposed new offence to section 1(4), which is to do with believing that the persons in the car are all adults.
I understand that the cabinet secretary will try to remove section 1(4). That complicates the debate, but I lodged amendment 12 to make sure that the new offence would apply to section 1(4).
I have also added a new defence in amendment 13. Paragraph 67 of the committee’s report says:
“ASH Scotland and the Scottish Coalition on Tobacco considered there should be a defence if the driver was unable to prevent another individual from smoking and the driver ‘made all reasonable efforts’ to prevent the offence. They also noted this would bring Scotland into line with similar provisions in Wales, England and Northern Ireland.”
The committee will see the words “all reasonable precautions” in amendment 13. Although the central thrust of the amendments in the group is to make the driver liable in the same way as the smoker will be, amendment 13 also provides a specific defence for the driver, which seems to be only fair and reasonable.
The amendments in the group all hang together. I will listen with interest to the views of the minister and members of the committee before I decide whether to press them.
I move amendment 10.
Thank you. As no other members want to take part in the debate, I call the minister.
Thank you convener. I will speak to amendment 10 and the other amendments in the group. I welcome the opportunity to set out the Scottish Government’s position on amendments 10, 11, 12, 13, 14 and 15, which are in Malcolm Chisholm’s name.
As has been said, amendment 10 would make it an offence for the driver of a car knowingly to permit another adult to smoke in the car when a child is present. I note that that is also highlighted as the preferred option in a number of submissions to the committee and was discussed in the stage 1 report, with a recommendation that such a change be made. We therefore carefully considered the need for the offence, particularly as reference was made to existing smoke-free legislation in the stage 1 report. Similar requirements exist in relation to workplace vehicles and public transportation in the Smoking, Health and Social Care (Scotland) Act 2005.
I am keen to achieve consistency with existing legislation when there is a good reason to do so. That said, I am not convinced that adding an offence to make the driver vicariously liable for the offence will provide further protection to children from the harms of second-hand smoke. I understand why reference has been made to existing smoke-free legislation, but it is worth noting that that requirement was introduced in the context of work vehicles and that the offence therefore applies to individuals who are acting in a professional capacity.
For example, it is right and proper for a taxi driver to intervene to stop a passenger smoking in the taxi. In such instances, they can rightly refuse to provide a service to the passenger in their professional capacity. That provision does not read across directly to private vehicles because the person who is driving is not acting in a professional capacity. Although I advocate that all passengers should seek to protect children from second-hand smoke by asking others not to smoke in the vehicle with them, applying an offence to the driver could be problematic. For example, is it reasonable to hold a young driver criminally responsible for the behaviour of his or her parents if they make a choice to smoke in front of a younger sibling?
Reference has also been made to seat belt legislation and the requirement for drivers to ensure that children under 14 who are passengers in their car wear a seat belt. However, that legislation does not make it the responsibility of the driver when another adult passenger in the car commits an offence by failing to wear a seat belt. Amendment 10 would make an adult responsible for another adult’s offence.
There has also been reference to consistency with similar legislation that has already been introduced in England and Wales. The regulations there have a number of differences from the bill that has been introduced by Mr Hume. For example, they do not require that the offence can be committed only by an adult over the age of 18, so amendment 10 alone would not achieve consistency with the approach that has been taken in other jurisdictions in the United Kingdom. As the committee knows, the Scottish Government consulted on the policy before introducing the Health (Tobacco, Nicotine etc and Care) (Scotland) Bill. That consultation invited respondents to suggest to whom the offence should apply. Sixty-two respondents commented on that, but only eight—13 per cent—suggested that it should apply to the driver.
It is important that we send a clear and consistent message that all adults are responsible for their own behaviour when it comes to protecting the health of children from second-hand smoke in cars. The person smoking should be responsible for committing the offence. There should be no confusion or uncertainty about who is ultimately responsible for an individual adult’s decision to breach the law.
I note that amendment 14 would provide a statutory defence that would be specific to the driver. Given that I do not think that the driver should be made vicariously responsible for the offence, it follows that I do not support the defence that attaches to it.
However, some submissions suggested that the offence should be applied to the driver in order to provide an alternative defence to the one that is provided in the bill. The defence that would be provided by amendment 14 is problematic; application of such a defence would require consideration of what the “reasonable precautions” or “due diligence” might be in practice.
For those reasons, I ask the committee to reject amendments 10 to 15, which have been lodged in Mr Chisholm’s name.
Good morning to the committee and thank you for considering the bill at stage 2.
I set out my views on driver liability in my letter to the committee on 5 October, in response to its stage 1 report, and during the stage 1 debate. I have not been persuaded by the arguments that have been presented about consistency with the legislation elsewhere or the ban on smoking in public places.
I have four key arguments against driver liability. One is that such liability has the potential to distract the driver from the road, which could lead to an accident. To introduce driver liability would unhelpfully move the focus away from the harmful effects on children of exposure to second-hand smoke in a confined space, and it strays into the realm of traffic offences. A driver is not in the same position as the owner of licensed premises: he or she is a private individual, not someone who is running a business. He or she is also not necessarily in a position of authority in relation to other adults in the vehicle, in the way that a bus driver, for example, may be in relation to their passengers. Primarily, the proposals would add unnecessary complexity to a bill that is seeking to be as uncomplicated and easy to enforce as possible.
I thank Malcolm Chisholm for his amendments, but request that he consider seeking to withdraw amendment 10 and not moving the other amendments in the group.
I thank the minister and Jim Hume. Jim Hume made some points on which I want to reflect further. On what the minister said, I need clarification—I probably will not get it today—about seat belt legislation, because the committee, in making its report, thought that the proposals would be consistent with seat belt legislation. Clearly, that is something that I, and perhaps the committee, will look at before stage 3.
The minister said that the driver’s ability to enforce his or her will would be “problematic”. That is, of course, the reason for the statutory defence in amendment 13. The minister said “amendment 14”: that detail does not really matter, but one of us must be wrong.
Finally the minister referred to a young driver being criminally responsible, but the point of amendment 15 is to make it clear that “driver” means an adult. A 17-year-old driver would not be criminally responsible under my amendments.
Given that the member in charge of the bill has put forward substantial arguments that I want to reflect on, I will not press the amendments today, although I reserve the right to do so at stage 3.
09:45Amendment 10, by agreement, withdrawn.
Amendment 11 not moved.
Amendment 1, in the name of the minister, is grouped with amendments 2 and 3.
The bill aims to exempt vehicles that are being used as a person’s home. I support Jim Hume’s intention to ensure that the offence in section 1(1) does not apply in a person’s home, but I believe that the description “living accommodation” more closely reflects a vehicle that is being used as such. It could include vehicles such as motor homes and caravans, but is not limited to those examples.
It is possible that other vehicles could be designed or adapted as living accommodation—for example, vans with a bed, kitchen or toilet facilities. However, it might not be necessary for it to have all those installations for a vehicle to be considered to be a person’s home; there might be other installations or designs that would lead an enforcement officer to believe that a vehicle is being used as a person’s home.
Amendments 1 and 2 are in line with Jim Hume’s policy intention to exempt parked motor homes, caravans and other vehicles that are designed or adapted to provide living accommodation.
Amendment 3 will remove the test that, in effect, means that a vehicle must be parked
“for not less than one night”
before it can be considered to be a person’s home and, thereby, be exempt from the offence in section 1(1). The test would be problematic to enforce. For it to be applied, enforcement officers would need to be certain for how long the vehicle had been parked or for how long it was intended that it would be parked. Removal of section 1(3) does not change the policy intention to exempt vehicles that are being used as living accommodation. Vehicles that are parked and being used as such will be exempt from the offence.
I move amendment 1.
Amendments 1 to 3 are straightforward and provide a clearer definition of vehicles that are to be exempted. The phrase “living accommodation” more accurately reflects the policy intention. The deletion of subsection (3) from section 1 will remove any difficulty for enforcement agencies in determining what constitutes
“not less than one night”.
Therefore, I am grateful to the minister for lodging the amendments, which I am happy to support.
Amendment 1 agreed to.
Amendments 2 and 3 moved—[Maureen Watt]—and agreed to.
Amendment 4, in the name of the minister, is in a group on its own. I remind members that, if the amendment is agreed to, I cannot call amendment 12, because of the pre-emption that I spoke about earlier.
Amendment 4 removes the defence that the person smoking
“reasonably believed all other occupants of the vehicle to be adults.”
It is difficult to envisage what steps a person might take, beyond asking for proof of age, to prove that they reasonably believed all occupants to be 18 or over. Even if such a step were to be taken, it would be difficult to establish that such proof had been asked for or, indeed, had been supplied. In any case, such steps have a disproportionate impact.
I recognise that, in its stage 1 report, the committee asked the Scottish Government to consider the alternative defences that were supplied in written evidence. I note that many of the suggestions relied on asking the age of the child where there was any doubt. Although that would be prudent, the same problems occur with trying to prove that that had taken place. It is worth noting that many of those who submitted written evidence did not believe that there should be a defence of not knowing the child’s age.
A number of offences exist in statute whereby an adult commits an offence when they act in a way that harms the health of a child or, indeed, when their failing to act harms the child. In its consideration of the bill, the committee has referred to the requirement for drivers to ensure that children under 14 who are passengers in their car wear a seat belt. There is no defence attached to that in respect of whether the driver could have known that the child was under the age of 14, and neither does such a defence exist in relation to the offence of a person purchasing alcohol or tobacco on behalf of a young person who is under the age of 18.
A similar offence has been included in the Health (Tobacco, Nicotine etc and Care) (Scotland) Bill, which is currently being considered by the committee. The provision in question will make it an offence for someone over the age of 18 to purchase a nicotine vapour product on behalf of a person who is under the age of 18. Again, there is no defence relating to whether an adult could reasonably know the age of the child. I therefore see no reason why a defence of that nature should apply to the offence in section 1. Adults must take responsibility and, if in doubt, should not smoke in a car when a person who might be under 18 is present.
I move amendment 4.
I support the Scottish Government’s amendment to remove the defence, and I am grateful for its consideration of the issue.
Amendment 4 agreed to.
Amendments 13 and 14 not moved.
Section 1, as amended, agreed to.
Section 2 agreed to.
Schedule—Fixed penalty for offences under section 1
Amendment 5, in the name of Jim Hume, is grouped with amendments 6 to 8.
I record my thanks to the minister and her officials for the continuing spirit of partnership that has enabled us all to get to this point.
The schedule to the bill, as introduced, allows for the fixed-penalty regime to be enforced solely by Police Scotland. However, during stage 1, it became clear that there is wide-ranging support for a joint enforcement regime between Police Scotland and local authorities, and both the Scottish Government and I have been persuaded by that argument.
As a result, amendment 5 seeks to replace the current schedule with a new one that provides for joint enforcement between Police Scotland and local authorities, thus strengthening the bill. I have worked closely with the Scottish Government on revising the schedule to make it as similar as possible to schedule 1 to the Smoking, Health and Social Care (Scotland) Act 2005. That will make enforcement simpler for the police and local authorities, as they are already familiar with the fixed-penalty regime that applies under the 2005 act.
In particular, the new schedule provides for fixed penalties to be paid to the local authority of the area in which the offence was alleged to have been committed or to a person acting on its behalf, rather than to the clerk of court. Other references to “the clerk of court” in the schedule have been replaced in amendment 5 by references to “the local authority”. Despite the fixed-penalty regime being modelled on that in the 2005 act, paragraph 4 of the new schedule maintains the fixed penalty for an offence at £100 and allows a payment period of 29 days, with no provision for an early payment discount. I am pleased that the Scottish Government has accepted my position on the matter, and I should add that there is provision for Scottish ministers to amend the value of the penalty by regulations.
Amendment 6 seeks to insert a new section to reflect the joint enforcement regime, granting entry and search powers to authorised officers of a local authority and allowing them to obtain the name and address of a person whom they reasonably believe might be committing, or might have committed, an offence under section 1 or whom they reasonably believe to have information relating to such an offence. Those powers are based on similar powers available to local authority officers under the 2005 act.
Amendment 7, in the name of the minister, gives ministers various ancillary powers to make regulations and sets out the procedures to which regulations made under the bill will be subject. Proposed new subsection (3) reflects the Delegated Powers and Law Reform Committee’s recommendation that regulations under paragraph 11(b) of the new schedule, in relation to keeping of accounts, be subject to the negative procedure. Amendment 8 is a consequential amendment.
I move amendment 5.
I will speak to amendment 7 in my name and the other amendments in the group.
In the memorandum that the Scottish Government sent to the committee in March 2015, we made clear our support for amendment 5 in Jim Hume’s name, which suggests that a joint approach to enforcement between local authorities and Police Scotland be considered in respect of the bill. Environmental health officers have played a vital role in supporting the implementation of existing smoke-free legislation, which, I am sure we would all agree, has been a success. A primary aim of this bill is to protect the health of children by reducing their exposure to second-hand smoke. In that respect, the protection of public health is fundamental to the role of environmental health officers in Scotland and they would bring with them a wealth of experience. It makes sense that Police Scotland, too, has a role to play, as it has powers to stop a moving vehicle, while local authorities could enforce the offence in respect of stationary vehicles.
However, although enforcing the offence in section 1(1) will be important, the bill’s aims cannot be achieved by enforcement alone. This is all about promoting a change in cultures and attitudes. The harms caused by exposure to second-hand smoke are widely understood and therefore the majority of adults choose not to smoke in their homes and cars when children are present. Last year, we developed and launched to a positive reception our national take it right outside campaign, which aimed to raise awareness of the risks posed to children by second-hand smoke. Our evaluation of the campaign showed that although it had had an impact on behaviour more needed to be done to drive home the message that it is never safe to smoke in enclosed spaces with children present, and we relaunched the campaign last month with a stronger message to take account of the evaluation’s findings.
It is my belief that the introduction of the offence in section 1(1) will provide a deterrent and continue to promote that key message. We know that there has been a significant change in behaviours and attitudes since the introduction of smoke-free legislation in 2006. Enforcement in respect of that legislation was measured, and we would anticipate the same approach being taken to the proposals in the bill.
I am pleased, therefore, that amendment 5 provides similar powers to local authorities in respect of enforcement and the administration of fixed-penalty notices to those provided in the Smoking, Health and Social Care (Scotland) Act 2005. That will allow for a consistent approach, albeit with a higher level of fine and no early payment reduction—although I believe that such differences reflect a higher level of complexity in enforcing the offence. Taking a similar approach will help to avoid difficulties associated with operating different enforcement regimes for different smoking-related offences.
The committee asked the Scottish Government to consider additional costs to local authorities associated with enforcing the provisions in the bill. The financial memorandum accompanying the bill calculates the likely number of fixed-penalty notices to be around 200 per annum. We would not expect that to rise as a result of local authority enforcement. The Scottish Government already provides £2.5 million a year to local authorities as part of their baseline grant to enforce current smoke-free legislation. My officials have met the Convention of Scottish Local Authorities and environmental health officers, and those discussions have raised the potential for modest one-off additional costs associated with training, guidance and producing fixed-penalty notices.
I support amendment 6, because without powers to search and enter private vehicles, local authorities would be unable to enforce the offence effectively. It is therefore essential that such powers are provided. It is also right that those who are committing or who have committed an offence, and those who might have helpful information but who fail to provide local authority officers with their name and address without reasonable excuse are deemed to be committing an offence. Otherwise, the legislation could be easily circumvented.
10:00Amendment 7 in my name reflects the proposed replacement schedule that will be inserted into the bill by Jim Hume’s amendment 5 to provide local authorities with enforcement powers. Changing the procedure for regulation-making powers under paragraph 11(b) of the replacement schedule pertaining to the keeping, preparation and publication of fixed-penalty notice accounts from affirmative to negative reflects the recommendation made by the Delegated Powers and Law Reform Committee, and I ask members to support amendment 7.
I welcome these amendments, which clarify the local authority’s role in enforcing the legislation, because I think that everyone agrees that enforcement is one of the key issues with the bill. There now appears to be agreement that Police Scotland and local authorities should take a joint enforcement approach. I hope that the clarity that the amendments bring to enforcement and the public information activity to raise awareness of the legislation that the Government has said that it intends to undertake will result in the desired change in behaviour to protect children from the effects of smoke in the enclosed space of a motor vehicle.
However, the Scottish Conservatives indicated at stage 1 that it was our intention to introduce an amendment to provide for post-legislative scrutiny of the measures to prohibit smoking in motor vehicles with children present. We will therefore propose at stage 3 a sunset clause to test the effectiveness of the legislation after it has been in place for a reasonable length of time, such as three years.
I support amendments 5 to 8.
On the point about a sunset clause, we understand the desire to review whether children’s exposure to second-hand smoke has been reduced and the number of young people who are taking up smoking. Figures on the number of people smoking are continually monitored in other ways. We have monitored such figures since the start of our take it right outside campaign and continue to do so, and as a result, we refined the message when we relaunched the campaign this year.
I thank Nanette Milne and the minister for their comments. I have to say that, at this stage, I am not persuaded that we need a sunset clause. There is clear evidence from other countries of the damage that second-hand smoke does to children and that legislation has led to the change in culture to which the minister referred. The bill is about promoting a change in culture and protecting children from the dangers of second-hand smoke in cars, which are well documented in scientific evidence. We know that every week 60,000 children in Scotland are exposed to second-hand smoke, and I believe that the amendments that we have discussed will strengthen the bill.
Amendment 5 agreed to.
Schedule, as amended, agreed to.
After section 2
Amendment 6 moved—[Jim Hume]—and agreed to.
Section 3—Interpretation
Amendment 15 not moved.
Section 3 agreed to.
Section 4—Regulations
Amendment 7 moved—[Maureen Watt]—and agreed to.
Section 4, as amended, agreed to.
Section 5—Commencement
Amendment 8 moved—[Jim Hume]—and agreed to.
Amendment 9, in the name of the minister, is in a group on its own.
There can be no doubt that we all have a responsibility to protect children from tobacco smoke; indeed, that is why last month I relaunched the take it right outside campaign, which aims to raise awareness of the risks posed by second-hand smoke to children. However, as this is an important new law, I have committed to running a national campaign to raise awareness of the new offence. It is vital that any campaign is aligned with the timing of the bill’s commencement, and amendment 9 will allow Scottish ministers to commence the legislation when the campaign has been developed and launched. I have already made clear my commitment to implementing this important legislation as quickly as possible, but I reiterate that now for the avoidance of any doubt.
I move amendment 9.
As everyone knows, I smoke. I also welcome the bill, as I am sure that it will help to reduce children’s smoke inhalation. However, I ask the minister to make our campaign much better than what I have seen of the English campaign, which I do not think conveys the message forcefully enough.
I call Jim Hume to wind up—I am sorry; I mean that I call Jim Hume to speak. The minister will wind up.
I am always happy to wind up, but it is usually other people I like to wind up.
I am happy to support the amendment and I welcome the minister’s public commitment again today to ensuring that the provisions will come into force as quickly as possible. At the time of drafting, I did not put the commencement date in the hands of the ministers as I was not clear at that stage whether the Scottish Government would support the bill. Having received the Government’s clear support and having worked constructively with it, I think it sensible to give ministers flexibility with regard to when the provisions come into force so that they coincide with the campaign.
In response to Richard Lyle, I have not seen the campaign that is being run in England, but I think that, as initial results show, our take it right outside message has been very forceful. We have shown that smoke lingers for up to seven hours in a room and that it gets under doors and in through windows, and the campaign has also used the picture of a child’s lungs. All those facts and images are very forceful, and I hope that our campaign in relation to smoking in cars will be equally effective.
I ask the committee to support amendment 9.
Amendment 9 agreed to.
Section 5, as amended, agreed to.
Section 6 agreed to.
Long title agreed to.
That ends stage 2 consideration of the bill. Members should note that the bill will now be reprinted as amended. Parliament has not yet determined when stage 3 will take place, but members are able to lodge stage 3 amendments at any time. Members will be informed of the deadline for amendments once that has been determined, and I thank Jim Hume, the minister and her team for attending this morning.
I briefly suspend the meeting.
10:08 Meeting suspended.Previous
Attendance