Agenda item 6 is our final evidence session at stage 1 of the Smoking Prohibition (Children in Motor Vehicles) (Scotland) Bill. I welcome Jim Hume MSP, who is the member in charge of the bill; Louise Miller, senior solicitor, office of the solicitor to the Scottish Parliament; and Stephen Fricker, assistant clerk, non-Government bills unit.
Jim Hume wishes to make an opening statement.
Thank you, convener. Good morning, everyone. I thank the committee for inviting me to give evidence on my bill, which I introduced because I wanted to build on the successes of the Smoking, Health and Social Care (Scotland) Act 2005. The act has been overwhelmingly successful in changing behaviour in Scotland, with the result that we all now benefit from a safer and cleaner environment at work or when we eat out.
The Scottish Government has the stated aim of having a smoke-free country by 2034, and my bill focuses specifically on the protection of children. Recent research has shown that 22 per cent of 13 and 15-year-olds in Scotland are exposed to second-hand smoke more than once a week while in a car.
As the committee has heard during its evidence taking, there is no safe level of exposure to second-hand tobacco smoke, which has been proven to have profound impacts on health. It particularly affects children, because of their immature respiratory systems. Outcomes can include sudden infant death syndrome, coughing, wheezing, asthma, respiratory tract infections such as pneumonia and bronchitis, and, of course, an increased risk of lung cancer. If that were not bad enough, it has been demonstrated that children who are exposed to second-hand smoke are more likely to take up smoking in later life.
The concentration of second-hand smoke found in vehicles that contain smokers is higher than the concentration that would be found in the home or outdoors, because of the very enclosed nature of the space. Opening the windows and air circulation may reduce concentrations to a small degree, but they do not make the environment safe.
Most affected children have no other transport option or are too young to make other arrangements and are not empowered to change the behaviour of adults around them. Therefore, we have a moral duty to protect them from the immediate health impacts of second-hand smoke, give them the best start in life and support them to go on to lead healthy lives themselves.
Good morning. You are probably aware that, last week, I raised issues of enforcement. I absolutely agree that it is not desirable for children—for anyone really, but particularly children—to be in an atmosphere of smoke or recent smoke, but supporters of the bill said last week that it is primarily an education issue. We need to educate people about the fact that it is not in the public health interest to smoke around children in an enclosed space.
I am concerned about how the bill can be enforced. As I said last week, I have a tall grandson who is aged 15 and would easily be mistaken for an adult in a car. How would we go about identifying an offence? Do you anticipate that, if there were an accusation that an adult had smoked in a car with children, children who had been in the car would give evidence against, for instance, their mum or dad?
Will you give me a little detail on how you envisage the practicalities of enforcement? That is important.
On enforcement, we can look at the seat belt laws and the laws on using mobile phones while driving. In 2013-14, Police Scotland detected more than 36,000 seat belt offences and 34,000 mobile phone offences. That is 70,000 overall in one year. Detection of offences under the bill would be similar to those offences. It would involve seeing someone smoking. It is pretty obvious when somebody smokes in a car. If a child is in the car, it is fairly obvious if they are a younger child; obviously, it could be more difficult if the child is 17 but it would not be impossible. Police Scotland said in its evidence last week that it was quite happy with differentiating between a person who is under 18 and a person who is not, as it does daily with juniors buying alcohol.
It strikes me that enforcement is probably easier in relation to seat belts and mobile phones. We can see quite clearly whether people are wearing seat belts and, on mobile phones, we could have a record of when a particular call was made or when the phone was in action so that, if someone was accused of an offence, we could find some proof. I am not quite sure how we would prove in retrospect that someone was smoking when the car was stopped. I know that there would be residual particles, but could it be proved whether they had been produced very recently or sometime past?
It would relate to active smoking. We are not talking about there having been smoking in the car before the child got into it. That would be difficult to enforce. We are talking about the police noticing somebody who is smoking in front of them, which is similar to the situation with a seat belt—we can see whether someone is wearing a seat belt. The police would be able to use their best judgment.
Someone put to me, not altogether facetiously, the point that someone might be chewing the end of a pencil or sucking a lollipop, not smoking a cigarette.
We can trust the professional judgment of the police to tell the difference between sucking a lollipop and smoking a cigarette.
Does the bill cover e-cigarettes as well?
No.
The heart of the question is whether we need legislation if it is difficult to enforce. I am sure that you read Police Scotland’s evidence from last week. It does not have an appetite to be the only enforcement body. It will not patrol school gates or other places where adults might be smoking in cars. The matter is far down the list of priorities. I concede that most people are law abiding, and there is a strong message in that. However, if the law is not going to be enforced effectively, why do we need legislation?
We have seen that smoking in cars is still happening. As I said, 22 per cent of 13 and 15-year-olds report being exposed to smoke. We have survey figures that show that 60,000 children are exposed to second-hand smoke in cars every week.
Other countries that have enacted similar legislation have seen a marked difference. After similar legislation was introduced in Canada, there was a 33 per cent reduction in children being exposed to second-hand smoke. We have seen change come through the Smoking, Health and Social Care (Scotland) Act 2005, which had a knock-on effect in people’s homes. I expect that the bill would also have a knock-on effect in other areas of life without enforcement. As you say, convener, most people are law abiding. We are talking about changing the norms of behaviour.
Have you anything to say in response to Police Scotland’s evidence at last week’s meeting that it should not just be up to the police to enforce the legislation?
The police talked about using a partnership approach. My initial thought was that the police would do the enforcement because it is difficult to see how local authorities could stop moving vehicles. However, I would be open to amendments that would allow the bill to be widened to enable local authorities to enforce the law for people in stationary vehicles.
The Police Scotland witnesses talked about the potential consequences of the legislation for a parent or a guardian of a person who is under 18 that, following the detection of an offence, the envisaged outcome would include the raising of a child concern form that would be shared with the named person. The suggestion is that that would support the getting it right for every child principles and the Children and Young People (Scotland) Act 2014. Did you envisage that the named person would become involved and a child concern form would be completed if a parent was smoking in a car with a child?
The police and the health agencies also said that they did not think that that would be a huge issue. It might be an issue, but it would be the same for any child protection issue. This is about protecting children.
I asked the police whether a child concern form would be raised if parents were caught speeding with children in the back of the car. I would have thought that that was also pretty dangerous. It is interesting territory.
At the last two evidence sessions, I identified myself as a smoker. I smoke in my car but not when my grandchildren are in the car, and I make sure that the car is well ventilated before I even pick them up.
I have a couple of questions along the same lines that the convener took. The chap from the Freedom Organisation for the Right to Enjoy Smoking Tobacco said that the bill is the thin end of the wedge. He said that you are targeting people who smoke in their cars when there are children in them, but that eventually someone will move on to say that nobody can smoke in their car, even if there are no kids present. What do you say to that?
The bill is very clear and extremely tight. It is about the protection of children only. If people want to smoke, wherever they want to smoke, that is fine. The bill is purely about protecting children. It cannot be amended in any way that would make it an offence for people to smoke in cars without children. I can see nothing on the horizon that would tweak the bill in that way.
We are talking about children in cars. What about the same children who are sitting in their house at night time when their two parents are smoking? Thirty years ago, both my wife and I smoked in the house. I no longer smoke in the house; because of my grandchildren, I smoke outside. I see a lot of people doing that nowadays. What happens to the person who cannot smoke in their car, because their kids are there, but who can smoke in their house? Will we next have a law to say that people cannot smoke in their house?
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As I said, the bill could not be amended to make it cover what people do in their house. It is purely about what happens in a vehicle, which is a very enclosed space. Children have no option but to go into that car for their trip to wherever—sometimes, bizarrely, the trip is to do sports.
The British Lung Foundation’s evidence showed that smoking particles were 11 times thicker in a car than they were in a pub. That is quite a difference. Of course, the ban in cars may make people think twice about smoking at home when the kids are there, which would be great. However, any legislation to stop a person smoking in their house, which is a private space, would be unenforceable.
I sincerely hope that you are right that such legislation will not come.
As the convener said, the police said last week that they would be happy to lend a hand if the bill is passed but that they are not too happy about the bill itself. If I remember rightly, reference was made to them taking their eye off terrorism and so on in order to look around for someone smoking in a car. I liked the other comment that was made about tinted windows making it impossible to see whether a child is in a car. I have two child car seats for my grandkids, and you can see if they are in the car.
FOREST said that the police, traffic wardens, community cops and wardens, environmental health officers—if a car was parked in a car park—and the public would be involved in reporting. Indeed, everyone will start reporting people who they see smoking in cars. Is that not a bit over the top?
My bill initially called for the police alone to enforce it. The Government has said that it would consider lodging an amendment on the role of local authorities and community wardens and so on. Therefore, it would be up to the Government to justify that. I would be quite happy for more people to be involved in enforcing the legislation.
Every week, 60,000 children are exposed to second-hand smoke in cars. We know the long-term effects of that. We know that young children will smoke in later life if they are exposed to second-hand smoke in cars. We know the socioeconomic and health inequalities that that causes. We must act. Last week, Police Scotland and the Law Society of Scotland said that the legislation is necessary.
The amount of enforcement needed would not be drastic. As has been shown in other countries, once legislation is in place, huge differences in people’s behaviour have been noticed. In South Australia, following legislation, around 88 per cent of cars are smoke free. In Canada, as I have said, there was an almost immediate 33 per cent reduction once the legislation was introduced.
Good afternoon, Mr Hume. I support the whole idea of ensuring that children are not exposed to second-hand smoke. However, I have a problem about an aspect of enforcement, which Nanette Milne mentioned. Say someone is having a cigarette while they are parked up waiting to collect their child from school. That child will be exposed to second-hand smoke once they get into the car even after that person has finished smoking. We know that, even if you dissipate the smoke by ventilation, the chemicals will be there for quite some time. The legislation will not protect those children at all. Would it not be better to raise the education and awareness of the harms of exposing children to smoke, rather than imposing legislation that—at the moment, anyway—would appear to be unenforceable?
As we have seen from other countries, a ban has been enforceable, so I would dispute that. What we have seen is that legislation has acted as a deterrent and behaviour has changed, which is what we all want. We do not want loads of people to be criminalised. Legislation is there as a deterrent and we know that it changes behaviour. We have all the evidence in front of us that legislation in other countries has changed behaviour.
You are quite right that, if someone has just been smoking in a car, the toxins will still be there. Just because smoke cannot be seen does not mean that the toxins are not there. There are about 50 toxins in tobacco smoke, some of which are carcinogenic, and they cause such damage. Physically seeing whether someone is smoking in a car is fairly easy and, even with tinted glass, a young child in the back is obvious too. We know from the evidence provided by the University of Aberdeen that there are 60,000 journeys every week in which a child is exposed to smoke, which is a phenomenal amount. After the 2005 act, there was a significant drop in smoking, but over the past years that has levelled out so the evidence for legislation is very strong.
You have said that the bill will impact on people’s behaviour, which is a good thing. However, you have also said several times today that the bill is very tight. Given the restrictions in your bill, I find it difficult to see how we are going to achieve the outcomes that you are looking for through legislation. Are you hopeful, therefore, that there will be an education programme under the guidance? The bill is somewhat flawed, because the issue is really about education and awareness rather than enforcement.
In the financial memorandum, we have costed an education programme, related to the Scottish Government’s take it right outside programme. The fact that the bill has gained so much media attention will already have changed people’s attitudes.
We know that preventing smoking in cars requires education, but that has been going on for decades. The dangers of second-hand smoke have also been known for decades, but still we have 60,000 children every single week in Scotland being exposed to second-hand smoke. We know the dangers that that poses to their health. They have no choice over whether to go in that car; they cannot decide to hop on the bus, get a taxi or take the train or the tram to school. They have to go in that car.
We know from Dr Rowa-Dewar from the University of Edinburgh, who gave evidence to my consultation three years ago, that smoking in cars also causes great stress for children. Children are in the back of a car, being exposed to smoke. They cannot hold their breath for 10 minutes. They know the dangers of being exposed to that smoke, and the stress that that gives them is marked.
You are continuing to cite the evidence, and I appreciate all the evidence that is there and certainly that from the University of Aberdeen and the British Lung Foundation. I understand all that and the impact that second-hand smoke has on children and their behaviour later in life. The issue is about education and awareness and I am trying to tease out whether legislation is absolutely necessary. You say that you do not want to criminalise people. Is it not the case that legislation is not appropriate to take this message forward?
The Law Society thought that legislation was necessary. Police Scotland stated to the committee that legislation is necessary. We have not seen a reduction in smoking with kids in cars to any significant extent. It is still very prevalent.
People still believe that opening the window makes a difference, but we know that it makes no real difference. Dr Sean Semple, who is seen as the leading expert in this area, at least in the UK, said in conversation that the highest reading of density of smoke particles in a car that he had recorded was taken when the window was ajar. The current system is not working, so we need the back-up of legislation to make progress.
I support the general principles of the bill, but I have some concerns about enforcement, which are similar to those that Nanette Milne raised. I understand that the system that the bill proposes will operate on the basis of a fixed penalty. From my questioning of Police Scotland last week, I was not reassured that it would not feel under some pressure to produce a set of enforcement statistics—I know that some of your colleagues are on record as complaining about the target-driven culture in Police Scotland. That could give rise to some injustices.
Given that we are talking about fixed penalties, which are a form of summary justice that many people would not challenge in court, and given that I understand—although I could be wrong—that a penalty in the order of £100 is being considered, do you accept that it is inevitable that there will be some injustices? Do you accept that such a penalty would have a disproportionate impact on people of slender means, such as pensioners? Given that you have just described that the bill’s biggest effect will be in changing the culture, do you not think that that supports the case for having a fixed penalty of £10 or £20?
My initial consultation included a figure of £60, which is the same level as a spot fine for not wearing a seat belt or for using a mobile phone while driving—that was the rationale for making the fine £60. During the consultation process, the figure was changed to £100, which is the level of fixed penalty that the bill provides for.
You mentioned socioeconomic factors and health inequalities. We know that poor health and smoking are much larger issues in some socioeconomic groups. I reiterate that the bill is about protecting children from second-hand smoke damage at a very vulnerable age, which, as well as causing immediate problems, can lead to problems in the future.
I am a bit disappointed that you are not more concerned about potential injustices, but I will move on.
When it gave evidence last week, the Law Society of Scotland seemed to suggest that the liable person should be the driver. I am not quite clear whether it would be the smoker or the driver who would be liable, so perhaps you can clarify that. I was a bit concerned about the idea that it would be the driver, because if I gave Richard Lyle a lift in my car and he lit up a cigarette while we were on a motorway, where I could not stop or kick him out the door—
You would never do that.
No, I would not; I am just dramatising to make my point. I am concerned that, if an eagle-eyed policeman happened to spot that, I as the driver would be liable. Again, I feel that that would give rise to an injustice. Will you clarify the situation? Do you think that the driver ought to be liable, or should the smoker and the driver be liable?
I can clarify that it is the adult who is smoking who will be liable. This is a health issue. Under the bill, it is only the adult who is smoking who will be liable. If that adult is the driver, that is fine, but if they are a passenger, they would still be liable. I think that the driver has enough to do in driving his car; it should not be down to him to stop other adults smoking in his car. The bill makes it clear that the adult who is smoking will be liable.
Other people have talked about other issues. I know that the situation is different south of the border, where the driver is liable—it is a motoring offence. The offence that I am proposing is a health offence. It is the health of children that we are trying to look after. The adult who is smoking will be liable, whether they are a passenger or the driver.
Thank you.
Nanette Milne has a supplementary question.
Something has just come into my head. Everyone is talking about children in terms of small children in car seats and so on, and the responsibility of the driver or passengers. Correct me if I am wrong; I know that it is illegal for those under 18 to buy cigarettes but I am not sure that it is illegal for someone under the age of 18 to smoke. Suppose a 17-year-old passenger in a car was smoking and he was the only one in the car who was under 18. Would he be committing a criminal offence? It is the upper age limit that is bothering me.
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We had a lot of debate about that very point. My initial proposal was for 16 years of age in that regard, so it would have applied to those aged 15 or under. However, it came out in the consultation process that it is illegal, as you correctly pointed out, for those aged 17 or under to buy cigarettes. The Law Society considered anyone aged 18 to be an adult and someone aged 17 to be a junior. The decision was to have the provision in the bill coincide with that view of those aged 18 to make it simpler. You are asking whether somebody aged 17 would be liable, but my bill suggests that they would not. I do not want to criminalise children and a 17-year-old is a child.
So the driver in such a case would be guilty of allowing a 17-year-old to smoke in his car, but the 17-year-old would not be guilty if they were the only child in the car.
No, if the driver or any person who was 17 was smoking, they would not be liable, because the provision is for those aged 18 and over.
But the driver would be liable.
Sorry, but can you clarify what age of driver you mean?
If a 17-year-old was smoking, he would not be guilty of an offence but the driver would be.
If the driver were 18 or above.
An adult driver.
The driver would not be committing an offence; only the smoker would be, if they were 18 or older.
I am still a bit confused. I will think about that one.
Quite right.
Can I clarify something that you said in reply to Mike MacKenzie, Mr Hume? If the police stopped a car in which the driver was not smoking, his wife in the front with him was smoking, and there were two kids in the back, would we be talking about one ticket and one £100 charge for the driver, or would we be talking about a £100 charge each for the driver and his wife? Who gets charged?
You suggest that the driver is not smoking and is over 18, that the wife is smoking and is over 18, and that there are two children in the back.
Yes.
Only the wife over 18 would be charged.
She would be charged. Thank you.
I will ask about the exemption for vehicles that are used as a home. I am bit concerned about that being a loophole. The bill uses the phrase “human habitation”, but that does not necessarily say that the vehicle is a mobile home; the bill’s provisions would apply to a vehicle of any kind that is used for
“human habitation for not less than one night”.
Would someone sleeping overnight in a car be exempt? Could that not be used as a loophole? How would it be proved that a car had been used for “human habitation”?
Again, it would be up to the police to interpret. I have it in the bill that it would be
“for not less than one night”.
A car that is parked up and has somebody sleeping in it would not be exempt—that is quite tight in the bill. I wanted to be very careful that I was not legislating for what happens in people’s homes, which is why I have the exemption for motor homes. As we know, some people use motor homes for their living accommodation or for living in when on holiday. For me, that means that they are exempted from the bill’s provisions. Of course, if they were using the motor homes to drive around, as we would drive a normal private motor vehicle, then they would not be exempt. The bill is quite clear in that regard.
Would it not be easier to refer in the bill to a “motor home” rather than to a vehicle used for “human habitation”?
I would not want to see somebody exempted who was driving their motor home day in, day out. They would be exempted only when they used the motor home for living in and sleeping.
If someone was living in a normal car—
They would not be exempted. That is quite clear in the bill.
Okay.
Good afternoon, Mr Hume.
Good afternoon, Colin.
The terminology surrounding convertible vehicles has had me confused because there are so many different types. It is possible for a convertible vehicle to run with the windows up at the sides, and the air that is coming across what would otherwise be the roof may force any particulate smoke down. How do you determine what is a convertible and exempt vehicle?
I think that there has been some confusion at the committee on that point. In my bill, there is no exemption for convertible motor vehicles. The Scottish Government has talked about such an exemption and I have discussed the matter with it. It seems quite soft on that, but I completely agree with you that putting the windows up and taking the roof down can still cause quite a lot of issues with second-hand smoke. My bill is clear that there is no exemption for convertible vehicles whatsoever and, to be honest, I will be sticking to that.
In an earlier answer to one of my colleagues, you mentioned the ability to see through tinted windows. Usually, it is the rear window that is tinted. Most models of car have clear windows for the driver and the passenger in the front. You seemed to suggest that it is easy to determine who is in the back, but I am not sure that I agree. Since the issue was brought up some time ago, I have been amazed by how often I have looked into vehicles as people have driven past me and found that it is not that easy to determine who is in the back. The enforcement issue comes down to identification, but the police see difficulties and so do the local authorities, in part. How confident are you that what you propose is feasible?
Just to clarify, I note that the windscreen and the side windows at the front cannot be tinted to any great degree. That is illegal because it causes issues with drivers seeing properly in certain light conditions.
The same issues exist with looking in at the back.
As I said, the front windows must be clear, so there is good vision into half of the vehicle. Of course it is more difficult to see through smoky glass and to see what happens in the back of a van, but even with that knowledge the local authorities and Police Scotland realise and have stated that the bill is necessary. Again, the evidence from other countries—you will have a lot of it in your papers—shows that the change in people’s behaviour when such legislation comes in is phenomenal. That is what the bill is about.
I think it is important to state that the committee seems to be focusing on vehicles that are in motion. The bill does not apply only to such vehicles; it also applies to stationary vehicles.
Last week, Police Scotland mentioned that it will focus on its principal duties of road safety. Part of those duties might involve, in the interests of road safety, looking out for potential offences. Officers could pull a motorist over, for example, in relation to one offence, and when the motorist has pulled over it may become clear to the officers that there are young children, or under-18s, in the back and that an adult is smoking. There is nothing in the bill to say that the police officer or the enforcement officer cannot draw the adult’s attention to the fact that they were smoking and potentially committing an offence, or that they cannot go through the process of issuing a fixed-penalty notice. The system works in the United States. Under a lot of legislation there, smoking in cars has been put forward as a secondary offence.
If a vehicle is stationary and an officer can determine that an offence is being committed, they will be able to issue a ticket.
I am not disagreeing that it could become a secondary offence; I am just thinking about people’s ability to look inside vehicles clearly and see that that is happening. I understand that there is the driving element as well—I take on board what you are saying about stationary vehicles and secondary offences, but I do not think that that was the argument that was being faced.
I hate to repeat things, but I will repeat myself. In 2013-14, 36,000 breaches of the seat belt law were detected, and those seat belts would equally have been in the back and in the front. It will be more difficult to see inside a car if it has dark, smoked glass, but that does not mean that it will be impossible. As I have said several times before, we know that the legislation that has been introduced in other countries has changed behaviour, and the bill is all about the protection of children.
That is what the police said. They will enforce seat belt law for traffic safety and so on—that is their remit. However, they told us that they are not empowered to deal with a health matter. That was a basic plea, was it not?
Yes. Road traffic is an immediate health matter, because it can result in people being hurt, whereas the bill deals with a longer-term health matter whereby hurt is done over many years.
The issue is enforcement, though.
Nobody would expect the police—as some media have reported—to move their resources from dealing with a serious criminal offence to stopping people smoking. The evidence that I got from the police is that they would enforce the legislation as part of their normal duties.
The evidence that we can go with is what was put on the record last week. You can familiarise yourself with that.
Bob Doris will ask the last question before we move to our next item of business, which will be discussed in private.
Mr Hume, I want to give you the opportunity to respond on the record to another aspect of the written evidence that we have received. Some of the written submissions have suggested that the bill could extend to those who are over 18 but who could be determined to be vulnerable adults, whether because of learning disabilities or because of whatever groups they belong to. When we draft our stage 1 report, we will consider all the submissions that we have received, so I give you the opportunity to put on record how you feel about that proposal.
It is absolutely wrong that any vulnerable adult should be exposed to second-hand smoke in cars. They are very similar to children in that they probably do not have the option to go on public transport and so on. It is something that we considered in great depth before we started this journey, and our concern was about how the police could identify someone as a vulnerable adult. It can be quite a bit more obvious that someone is a child than that they are a vulnerable adult, so we decided to leave that group out of the bill in order to give it a better chance of being passed. I hope that people will take the message on board and not smoke when there are vulnerable adults present in their car, but that is not part of the bill. If someone wants to lodge an amendment on the issue that would strengthen the bill, I will be happy to look at that.
Thank you. I just wanted to get that on the record.
We do not have any more questions. I thank you all for your attendance and for giving us your evidence.
Thank you.
We previously agreed to take our next item of business, item 7, in private.
12:29 Meeting continued in private until 12:49.Previous
Subordinate Legislation