I am delighted to open this afternoon’s debate on the Smoking Prohibition (Children in Motor Vehicles) (Scotland) Bill.
I take this opportunity to thank the Health and Sport Committee, the Finance Committee and the Delegated Powers and Law Reform Committee for their robust scrutiny of the bill. The bill would not have reached this stage without the invaluable input of all those who advocate for a healthier Scotland and those individuals and organisations who have been working so hard with me to get the bill to this point.
The bill provides a major step in the direction of enabling children and young people to have healthy lives. It enables them to improve their health prospects and encourages healthy habits for the rest of their lives. The bill is also in line with the Scottish Government’s stated goal of having a smoke-free Scotland by 2034, as it set out in its tobacco control strategy. I thank the former and current Ministers for Public Health for their open and constructive dialogue to date and look forward to continuing discussions after today’s debate.
It is estimated that, each week in Scotland, 60,000 children are exposed to second-hand smoke in cars. Numerous studies and reports have shown that there is no safe level of exposure to second-hand tobacco smoke. In fact, in cars, the concentration of second-hand smoke toxins can be more than 11 times as high as in a pub.
Second-hand smoke has proven and profound impacts on health, particularly on the health of children because of their immature respiratory systems. Children suffer because of second-hand smoke. As many as 800 children across the United Kingdom visit the doctor each day as a result of ill health linked to second-hand smoke. They can develop coughing, wheezing and asthma, and respiratory tract infections such as bronchitis and pneumonia, and they have an increased risk of lung cancer.
The purpose of the bill is straightforward. It is to protect our children from the harmful effects of exposure to second-hand smoke. To do that, the bill targets only motor vehicles, where the concentrations of harmful particles from smoke are some of the most significant. The bill will make it an offence for anyone aged 18 or over to smoke in a private vehicle when anyone under the age of 18 is also present and when the vehicle is in a public place. That approach aims to encourage all adult occupants of a vehicle to think twice before lighting a cigarette and to take responsibility for the potential health impacts of their decision to smoke when there is a child in the car.
To remove doubt and undue penalisation, in the case where the smoking adult is not the driver of the vehicle, the driver does not commit an offence for failing to prevent smoking in the vehicle. That is different from the regulations that came into effect in England and Wales last week. As is set out in the policy memorandum, I believe that making the driver liable for the offence is unhelpful. The goal of the bill is to protect the health of children and any unnecessary element could risk moving the focus away from that goal. We have seen such legislation implemented in some US states as well as in parts of Canada and Australia.
In its report, the Health and Sport Committee suggests that making the driver liable would bring the bill in line with other duties on drivers such as seat-belt legislation. However, that legislation is designed for the safety of vehicle occupants in relation to risks such as accidents that only the driver has control over. My bill is about providing children with protection from adverse health effects that are unrelated to anything that the driver is doing. Additionally, I believe that it is unreasonable to expect the driver to be able to control the behaviour of other adults in the vehicle, given that the driver’s focus must always be on the road. Of course, if the driver is the person smoking, they will be committing an offence.
Smoking in a vehicle can generate high levels of airborne particles due to the small volume of air in the vehicle and the potential for it to be recycled without filtering. Even if someone is smoking in a vehicle with the roof down or the windows open, they are in close proximity to other occupants of the vehicle. For that reason, the bill makes no exception for people in a convertible vehicle who are smoking in the presence of a child. The Health and Sport Committee notes in its report that
“A key factor that will impact on the success of this Bill is the clarity of the legislation”.
Aside from the fact that the law will apply in Scotland where, sadly, there are not many opportunities to drive around in convertibles with the roof down, I believe that the approach that is being taken provides the necessary clarity for enforcement agencies.
As an additional clarification, I confirmed to the committee on 23 June that there is no desire or intention to legislate on what people do in their homes. For that reason, the bill provides an exception for people using a vehicle that is
“designed or adapted for human habitation”
and which
“is being used for that purpose”.
In other words, the exception applies only while the vehicle is being used in the same way as a person uses their house, and not while it is being used exclusively for the purpose of transportation. That ensures that people who may habitually reside in motorhomes, and those such as holidaymakers who may reside in vehicles on an occasional basis, are not committing an offence if the vehicle is being used as accommodation at that time.
The penalty for those who are found guilty of an offence is clearly set at level 3 on the standard scale. A fixed-penalty scheme will be available, which I anticipate will be the principal means of enforcement. Provisions for the fixed-penalty scheme are set out in the schedule to the bill. In many respects, the provisions are similar to those set out in schedule 1 to the Smoking, Health and Social Care (Scotland) Act 2005, to which I referred during the policy development stage of my bill. However, the bill includes two specific provisions that I believe are clearer than those provided in the 2005 act.
The first is that schedule 1 to the 2005 act does not specify the amount of the penalty for smoking in public places. Instead, it simply provides ministers with the power to prescribe the amount in secondary legislation. That amount, which was set in 2006, is £50. In my view, a penalty of £50 is not strong enough to deter everyone and does not do enough to properly raise the profile of the danger that is caused by second-hand smoke. Those views came through strongly in responses to my consultation. With that in mind, the schedule to my bill sets the amount of the fixed penalty at £100, with a power for Scottish ministers to vary it through regulations.
However, my bill does not provide for an early payment discount, which I believe would be unnecessarily complex in a measure that is designed to protect children’s health. The penalty should act as a deterrent. People with a greater disposable income may not be deterred if they think that they can get away with a reduced payment on more than one occasion.
I believe that those factors, taken together, provide clarity for all parties. Anyone who is issued with a fixed-penalty notice should pay the set penalty of £100 within 29 days. Failure to pay within the time period will leave an individual liable to prosecution. The legislation is not about raising revenue or forcing people to stop smoking. It is designed purely to prevent acute exposure of children to second-hand smoke and put an end to the anxiety to which they are subjected.
The bill currently provides that the measures will be enforced by Police Scotland. Following the committee’s evidence sessions and its report, and after discussions with the Scottish Government, I believe that there is merit in adopting a joint enforcement approach between Police Scotland and local authorities, and I am happy to work with the Scottish Government on strengthening that part of the bill.
Questions about how enforceable the legislation might be were also brought up during the consultation, but Assistant Chief Constable Higgins noted in oral evidence to the Health and Sport committee that
“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.”
Police officers are entrusted with exercising common sense, pragmatism, professional judgment and discretion in determining what approach to take when enforcing the law, particularly in instances where age is a consideration. Assistant Chief Constable Higgins noted that
“officers make judgment calls constantly—every minute of every day—in deciding what action to take or not to take.”—[Official Report, Health and Sport Committee, 16 June 2015; c 59, 50.]
The committee noted in its report that police officers have experience in assessing the age of teenagers, such as in circumstances when they are in possession of alcohol. I see no reason why officers could not apply the same discretion, experience, and professionalism in relation to this legislation in instances where there might be doubt about the age of car passengers.
Although enforcement of the law is an operational matter for enforcement agencies, I think that they have an important role to play not just in applying the law but in educating people about it and reminding them of it. However, I note that legislation and education are not mutually exclusive. As the committee said in its report,
“education campaigns alone have not succeeded in protecting children from exposure to second-hand smoke in vehicles”.
Legislation can complement education where education has not succeeded. It is an effective deterrent that can bring about a positive culture shift. We need only look at the impact of the legislation on smoking in public places to note that attitudes to that have changed enormously since the 2005 act was implemented. The 2005 act was coupled with a high-profile campaign that educated people about the dangers and made them think twice about their actions. In many cases, it is not the fear of being caught that changes people’s behaviour but the concern that their actions are not socially acceptable. That chimes with the Scottish Government’s position in its memorandum, which the committee report noted was that
“legislation accompanied by an education campaign would be self-enforcing.”
I expect that this legislation will be accompanied by a high-profile campaign that will serve to educate people about the new law and encourage them to think about their actions. The legislation that I am proposing aims to introduce a layer of protection against second-hand smoke for the health of children who have no option but to go into smoke-filled cars, whether to go to school or, oddly, to their sports activities.
Again, I thank those involved in the consultation processes. Should the bill be supported today, I look forward to continuing to work and liaise on it with the committee, the minister and her officials, and all members of the Parliament. I firmly believe that the bill offers our children a healthier start in life and I am delighted to move the motion in my name.
I move,
That the Parliament agrees to the general principles of the Smoking Prohibition (Children in Motor Vehicles) (Scotland) Bill.