Item 4 concerns the Prohibition of Smoking in Regulated Areas (Scotland) Bill. We will take evidence from Stewart Maxwell, who will be accompanied by David Cullum from the Scottish Parliament non-executive bills unit and Mark Richards from the Scottish Parliament directorate of legal services.
The letter and the advice are helpful, but it might be useful for the record if Stewart Maxwell were to say whether he feels that the scope of his bill could be extended to cover a ban on smoking in all public places and if he could suggest the number of amendments that would be required to do that.
As I said in my evidence on 29 June, the bill's scope allows it to be amended to include a wider area of Scotland in any ban. The letter that the committee has received contains a quote from my evidence session and a legal opinion from the directorate of legal services about the fact that the parliamentary authorities clarified and cleared the bill's scope before it was published.
That more or less covers what I wanted to ask about. I would like the bill to be extended.
We will not go into that at the moment. We are just dealing with whether, according to the legal advice, the bill can be extended, because that is germane to our consideration. We all have our different views about whether the bill should be extended, but we do not want to go there.
I assume that the bill can be extended. I accept that.
I would like to know Stewart Maxwell's view; I do not know whether to make my point into a question. He says that the legal advice is that the bill could be extended by stage 2 amendments. However, the point is that the committee has spent much time taking written and verbal evidence at stage 1 on the bill's general principles, which do not relate to an outright ban on smoking in public places—the bill concerns a ban on smoking in places where food is served. If the proposed amendments are lodged at stage 2, how should the committee proceed? Should we take more evidence, or will the Executive's evidence be sufficient?
The bill's purpose is not just to ban smoking in places where food is consumed. Its singular purpose is to ban smoking in regulated areas. The definition of those areas can be as narrow or wide as the Parliament decides, and the bill defines one type of area. The bill's purpose—to create regulated areas—has always been clear.
Do either of your officials wish to comment at this stage? No.
There was never a question about whether the bill could be amended; it is obvious that any bill can be amended. If Parliament agrees amendments to a bill, that is how the bill progresses. However, I was under the impression that the bill was put together in the way that it was because that would make it less open to possible legal challenge. Is that the case? Or am I remembering wrongly evidence from some time ago? I thought that, if the bill was amended to include all public places rather than just places in which food was served, it would be more open to legal challenge.
I will answer that briefly and perhaps the lawyer from the legal directorate can help. What you said is not the case. Before the bill's publication, we were careful to ensure that its scope would include the possibility of amending it to include a ban in all public places, if Parliament decided that it wanted that. The evidence was that Parliament wanted that. We checked the bill closely and clarified its scope with the parliamentary authorities prior to its publication.
The decision to include the initial limitations to the bill's scope was a policy one rather than a legal one. However, there is a power in section 2(1) to enable the defined areas to be amended to include other areas. Therefore, the legal advice on that provision's width is that a ban can be extended to include all enclosed public places.
I thought that, except in a few exceptional circumstances, all the evidence that we gathered—particularly the medical evidence, including Mac Armstrong's—pointed to the fact that everybody wanted the bill to go for a complete ban. From the point of view of people who may have to go to the expense of ventilation systems, it would be fairer if we could extend a ban.
You are straying into stage 2 again, Jean.
It is just that the evidence that was gathered—
I appreciate that.
Is that not relevant at this stage?
No. The issue is whether, within the context of the current bill, we could accept amendments that would extend the ban to a full ban. The policy argument about whether we should or should not do that is a different issue.
We have legal evidence that says that the bill can go to a full ban and we took evidence that pushed us towards considering making such amendments. I thought that that was relevant at this stage.
Strictly speaking, it is not.
I am a learner—sorry.
We will decide on the amendments issue. This discussion is part of the process of informing us how to deal with the stage 1 report. We must clarify this important issue, about which we have had clear legal advice.
The matter is confusing. We are all learners in this process because we are dealing with something that does not happen every day of the week. It is not only the politicians round the table who are confused; the private briefing paper that we have states:
That is not in Stewart Maxwell's gift; how we deal with any such amendment at stage 2 is a matter for the committee. If we consider it appropriate to take evidence at stage 2 on specific amendments, we can do so, but that is not a decision for Stewart Maxwell to make; it is for us.
I accept that, but I am genuinely confused about where we are going and what we took evidence on. People who came to give us evidence would have given different evidence if we had been talking about a total ban. There is a wee bit of shifting sand here and the committee has to be very careful.
The long title of the bill is:
I understood from Stewart Maxwell's analysis of the evidence that we took—perhaps we should also analyse that evidence—that almost every witness expressed the view that there should be a ban on smoking in all enclosed public places. Is that what you said?
It is. I did the analysis because I wondered whether that matter would be raised as a problem. If members also want to do that, please go ahead. You will find that that was the view of all but two witnesses, I think. A couple of witnesses did not speak; for example, Mr Cullum from the non-Executive bills unit, who accompanied me when I gave evidence, did not speak. However, of all the witnesses who gave oral evidence, only two did not discuss introducing a full ban; all the rest did.
Who were they?
Sorry, Mike, Helen Eadie is next after Shona Robison.
The main issue for me concerns the call for evidence and the policy memorandum that was published when the bill was introduced. We received evidence from those people who wanted to give evidence on the basis of the policy memorandum as it stood at that time. Now that the sands have shifted in that regard, I am left feeling uncomfortable until we can have more consultation with the public to find out their views about whether we should go to the next stage.
That is a reasonable point to make, although it might have more strength had it not been standard procedure over the past five years to introduce quite major changes to bills at stage 2 that have not been part of the stage 1 evidence-taking process. It comes back to whether, if such amendments were to be lodged, the committee would want to take further evidence. We could do that.
With respect, convener, two wrongs do not make a right. I feel strongly that, if we are to have consultation, it has to be meaningful and we have to be clear about what the consultation proposals are. If, in fact, the ground has shifted in that regard, that gives me a problem.
I look forward to discussions on future legislation when substantive issues are introduced at stage 2. What we have at the moment is a clear indication on the key point that it is perfectly possible to amend the Prohibition of Smoking in Regulated Areas (Scotland) Bill at stage 2.
I do not argue with the technical point. One can change anything one likes apart from the long title of the bill—I am not even sure that one cannot change that. However, I find it strange that we are encouraging people not to use subterfuge—I would not go as far as to say that—but to test the water with a member's bill and then to change tack after they have introduced it. If we were to do that, we would have to go back and invite all those who gave evidence to confirm what they said or ask them whether they now have a different view. It is almost as though Stewart Maxwell is starting the bill again. It is not that we have not had chats about that, but I felt that he was a little disingenuous at the introduction of the bill.
I accept David Davidson's point, but I return to a point that Kate Maclean made earlier. It was my understanding, too, that it was because of a technicality that the bill was introduced to propose a ban in regulated areas. Stewart Maxwell looks puzzled, so perhaps I should ask a direct question. Why did you draft a bill that would prohibit smoking only in regulated areas, rather than introduce a total ban? I take David Davidson's point: we took evidence on the proposal to ban smoking in regulated areas in which food is served, but now you want to change the substance of the bill.
A number of points have been raised. As far as I am aware, the committee took evidence on the bill, rather than just on the specific provisions about food. Section 2(2) would require Scottish ministers to consult before amending the meaning of "regulated area", so consultation in the event of an extension of the bill's scope was built into the bill.
I accept what you say about the evidence that we received and I am pleased to hear you say that, as time has passed since you introduced the bill, much more evidence has come to the fore. That is why there has been such a response to the Executive's consultation on a total ban on smoking in public places. You acknowledge that a lot of new evidence is being received, so would it make sense to wait and hear that evidence, which is being received in response to proposals for a total ban?
Janis Hughes's point really belongs to the next item on the agenda. It is for the committee, not Stewart Maxwell, to decide how to proceed.
I do not know whether my question to Stewart Maxwell is appropriate, but his answer might inform the decision that we make under the next agenda item. What would you think if the committee were to decide today to recommend that the Parliament suspend consideration of the bill until the Executive comes forward with the material that it receives, on the ground that the committee and the Executive should not do the same work at the same time?
This might be a semantic point, but for clarification, when you say "suspend", do you mean "extend" consideration of the bill?
We cannot suspend consideration; we can only extend consideration.
I am open minded on the matter. I understand that the Executive's consultation has attracted something like 10 times as many responses as any other consultation has received and that the Executive has conducted research and held an international conference. It is for the committee to decide what to do, but I can understand why the committee might decide to extend stage 1 consideration, and I would not throw up my hands in horror at that prospect. The most important point is that we should have a clear, transparent parliamentary process that is open to all and accountable.
That is clear. As members have no other questions, I thank Stewart Maxwell and the two other witnesses for their attendance. We will let you know what our decision is.
Meeting continued in private until 15:07.
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