Public Health (Tobacco) (Amendment) Bill 2003: Report and Final Stages.

Minister for Health and Children (Mr. Martin)

I move amendment No. 1:

In page 3, lines 32 to 36, to delete all words from and including "definition:" in line 32 down to and including "definitions:" in line 36 and substitute the following:

"definitions:

‘advertising' has the same meaning as it has in the Directive of 2003, and cognate words shall be construed accordingly;".

This is a minor drafting amendment which was recommended by the Office of the Parliamentary Counsel. The effect of the amendment is to simplify this section of the Act. In page 3, lines 32 to 36, it seeks to delete all words from and including "definition" in line 32 down to and including "definitions" in line 36 and substitute the following definitions: "advertising" has the same meaning as it has in the directive of 2003, and cognate words shall be construed accordingly.

Mr. O. Mitchell

I do not have any objection to this amendment, but I wonder why the Minister is changing the definition of advertising in the Bill for the third time. This is the sixth bite of the cherry. I counted nine amendments this time. Why does the Minister continually rush to make changes to the legislation or regulations and then change his mind? Every time he does that he imperils the legislation and offers further hostages to fortune. This is the sixth time he has had opportunities to change the legislation and he has grabbed every one of them. Would he keep bringing new amendments to it if we went on indefinitely?

A related issue is the transparency directive to which Germany and Austria objected. I understand that in the past few days there was a further objection on the topic we are discussing — advertising — from Portugal. At the time the Minister did not circulate to Opposition Members or to anybody the reasons for the objections nor did he circulate his response to the European Commission. Why are we proceeding with the legislation prior to a response from the Commission? It has not adjudicated on this.

Mr. Martin

It does not adjudicate.

Ms O. Mitchell

The Commission will respond in some way. Has the Minister sought a response?

Mr. Martin

By way of clarification, the notification process is just that.

Ms O. Mitchell

What does the Minister mean by "the notification process"?

Mr. Martin

It is a notification process. The Commission does not adjudicate on that which is notified.

Ms O. Mitchell

Notified by whom to whom? What is the Minister talking about?

Mr. Martin

In regard to any legislation which falls due under the transparency directive, the member state notifies the legislation by virtue——

Ms O. Mitchell

Yes, but when there are submissions and other states——

Mr. Martin

Yes, but the submissions——

Ms O. Mitchell

The Commission adjudicates. The Minister is quite wrong.

Mr. Martin

It does not adjudicate.

Ms O. Mitchell

It makes a response. I am correct and the Minister is incorrect. Believe me.

An Ceann Comhairle

The Minister should allow Deputy Olivia Mitchell make her contribution. If Deputy Mitchell addressed the Chair rather than the Minister, she might not invite interventions from him. We are discussing amendment No. 1.

Ms O. Mitchell

I understand that. It relates to the definition of "advertising" which is the subject of comment from three countries. The Minister has not received a response from the Commission on the objections of these countries. Is it not unwise and premature for the Minister to proceed with this legislation given that it may not meet the requirements of the Commission under the rules of competition? The Minister is rushing this legislation and I do not know why. He is obviously not ready to pass the Bill because he is producing another amendment at every hand's turn.

Ms McManus

I am not opposed to this amendment although I am disappointed that the issue of patronage, which I raised on Committee Stage, is still being ignored. The Minister for Health and Children needs to offer an explanation for this. He has tabled nine Report Stage amendments and he tabled 11 amendments on Committee Stage. This legislation was ill-prepared to begin with. When the process began there were problems associated with notification. It has since become convoluted. However, a Bill should be robust and capable of standing on its own without having to be amended constantly by the Minister. Obviously small changes can be made, such as those to accommodate Opposition requests, particularly on Report Stage.

As Opposition Members, we are required to notify the Minister on Committee Stage that we intend to table amendments on Report Stage. However, the Minister seems to have carte blanche to table as many amendments as he likes, he tabled nine in this case, without explaining why his legislation was so faulty to begin with. This Bill is being revised constantly and, as Deputy Olivia Mitchell said, if we came back next week there could be another nine or 11 amendments tabled.

Is there a simpler explanation? Is it that the Department of Health and Children did not do the business to begin with, such that the Attorney General is now having influence on this Bill by suggesting many amendments? Some of them are very insignificant but they are amendments nevertheless. There are nine ministerial amendments on Report Stage and Opposition Deputies have practically no time to assess their import. The House is not scrutinising the Bill properly. The Minister, who obviously has tremendous backup, is in a position to argue his case. He has to explain how we do our business and how we can ensure the legislation produced as a result of this debate is of the very best quality.

Mr. Gormley

I welcome the Minister. The Minister of State, Deputy Brian Lenihan, was present on Committee Stage. He, for all his talent, is not as familiar with this project as the Minister himself and maybe he is not as dedicated to it. As the Minister knows, the Green Party and I are very supportive of this legislation. However, as Opposition Deputies, we are trying to ensure we get the best possible legislation through the House and that it is not defective in any way. It does not inspire confidence when amendments are introduced at the last minute on Committee Stage. The Minister of State introduced a very substantial amendment at the last minute altering section 15 which specifies areas in which smoking is prohibited.

The Minister will agree that people outside this House, such as Dr. Luke Clancy and Dr. Fintan Howell, have been very influential in the formulation of this legislation. I paid tribute to them previously. Has the Minister or his officials had an opportunity to discuss the late amendments, including the ones tabled on Committee Stage, with such interested parties who are so committed to this project? I hope he has done so. When we introduce amendments so late in the day, people outside the House with a vested interest in the Bill for all the right reasons do not have an opportunity to scrutinise them. The Opposition has been afforded very little time to do so.

The issues raised on Committee Stage are essential and I will be raising them again. I have great concerns about them because the vintners and others could possibly drive a coach and four through some of the provisions in the Bill. Therefore, I hope we can proceed very gingerly and go through the Bill step by step. This legislation should be momentous but if we do not get it right, it could be a disaster. For the Minister's sake, I hope it will not be so.

Mr. Martin

My understanding is that the net effect of amendment No. 1 is to add the letter "s" to the word "definition".

Mr. Gormley

I am talking in general terms.

Mr. Martin

The net effect is to——

Ms O. Mitchell

We know that.

An Ceann Comhairle

Allow the Minister to speak without interruption.

Ms McManus

Let us not overstate the effect of the amendment. This is not a major change by any definition.

Mr. Martin

With respect to the Deputy, she did not suggest she knew it in her comments. We work with the parliamentary draftsman and the Office of the Attorney General. As the Deputies know and as I have said publicly, I have retained a very comprehensive and senior legal team.

Ms O. Mitchell

Belatedly.

Mr. Martin

Not quite belatedly.

Ms O. Mitchell

They are not earning their money.

Mr. Martin

We will see. The ultimate test will take place outside rather than inside the House. The vast majority of the amendments tabled by the Government on Report Stage are stylistic and technical and flow from what happened on Committee Stage.

On Deputy Gormley's remarks, the purpose of Committee Stage was to strengthen the legislation. The legal team works in conjunction with the Office of the Attorney General. It endorses everything from a legal advice point of view or at least finalises the advice to me. It has been trying to make the Bill as strong and robust as possible and to foresee any potential challenge thereto by any group. This has been the overriding motivation behind the amendments introduced on Committee Stage. The provisions were made ar eagla na heagla, as they say as Gaeilge, to make the Bill as robust as possible. I ask Deputies to accept my bona fides in this regard.

On the notification process, no future communication is required between Ireland and Austria and Germany, or between Ireland and the Commission. The Commission has not raised any concerns about this — it was Germany and Austria that did so. The process involves making a notification and allowing three months to elapse to see if any country has an opinion. They are not called objections but opinions. If an opinion is expressed within the three-month period, a further three-month period kicks in. At the end of the six months, the standstill period ends and the member state is free to proceed with the legislation.

Ms O. Mitchell

Can I make a point?

An Ceann Comhairle

Will the Deputy allow the Minister to conclude? She will have an opportunity.

Mr. Martin

The submissions from Austria and Germany were on advertising, predominantly on brand stretching. I believe they were published on the official EU website by those countries and the Commission. We have addressed the brand stretching issue by way of amendment. We indicated that the issue concerns the utilisation of other merchandise to advertise and we took our own legal advice on this subsequent to the last court case on the issue. I decided to retain a senior legal team on the basis of our having had a legal team that looked at all aspects of the original Bill in the context of the court case. I was anxious to ensure that a protective approach would be adopted to any provision regarded as constitutionally vulnerable or open to challenge. We amended the Bill on Committee Stage to remove brand stretching provisions from the principal Act and we also endeavoured to ensure that our definition of advertising conformed with the definitions contained in the European Union directive on advertising. That was the net impact of amendments tabled on Committee Stage. The Commission has not and never has raised any issues on anything we are doing in this regard.

Ms O. Mitchell

I realise that but it is incredible that anyone would suggest the Commission is going to sit back if, for instance, the Minister breached competition law and these two countries published an opinion because they suspected he had. I do not suggest that the Minister has done so. He responded by sending his explanation to the Commission and amending the Act. Does he suppose that, if the Commission does not view the legislation as meeting the rules of competition law or the objections of these countries, they would all forget about it when the six month limit expired? That is not the case.

Mr. Martin

Obviously they will not.

Ms O. Mitchell

I am playing devil's advocate. I hope the legislation is robust, but is the Minister rushing ahead? Has he sought clarification from the Commission? Has he asked whether it is happy with the amendments made? Has he asked if they are in line with competition law and whether the countries which lodged the opinion are happy with the amendments? The opinion was lodged in respect of advertising the introduction of new products because that caused a problem and the Minister's response may also cause a problem. That was the subject of the new opinion lodged recently by Portugal.

Mr. Martin

Portugal cannot lodge an opinion.

Ms O. Mitchell

I realise that it is too late but, nevertheless——

Mr. Martin

There is no nevertheless. It cannot do that.

Ms O. Mitchell

I realise that.

An Ceann Comhairle

Would the Minister please allow the Deputy to speak without interruption?

Ms O. Mitchell

Do you accept, Minister, that——

An Ceann Comhairle

The Deputy should address her remarks through the Chair. There is a procedure laid down for Report Stage which works very effectively and the question and answer across the floor will do no business. If the Deputy addresses her remarks through the Chair, the Minister will have an opportunity to reply.

Ms O. Mitchell

I have made my point. I hope the Minister is satisfied. We must wait and see but he is jumping the gun. The Minister would have been wiser to seek clarification from the Commission on whether the amendments met the objections raised in the first place.

Mr. Gormley

I asked the Minister a specific question on communications with Dr. Luke Clancy and Dr. Fenton Howell since Committee Stage when substantive amendments were tabled. The doctors would have had an opportunity to look at this because the Select Committee on Health and Children sent the amendments to ASH and others. Have they had an opportunity to respond? Have discussions taken place between the Minister or his officials and either of these doctors? This is important because these people drove the legislation from the beginning and credit is due to the Minister for taking it up. I hope we can get it right and that these influential people will not be ignored in the final stages.

Mr. Martin

Parliament is the primary forum for the formulation of legislation. However, I have kept in touch throughout with all the pro-health groups and partners who have played a significant role in raising awareness of the tobacco issue generally, but especially in terms of environmental tobacco smoke. I have indicated our approach and how we are legally copperfastening this legislation, taking every step we can and accepting the advice of some legal teams. The people referred to by the Deputy accept my bona fides.

Mr. Gormley

Has the Minister spoken to them since Committee Stage?

Mr. Martin

I have had no substantial discussions with them since Committee Stage but we might be overstating what happened on Committee Stage in terms of the content.

Mr. Gormley

I do not think so.

Mr. Martin

We are on the key issues. Committee Stage represented a significant strengthening of the position and took account of recent legal decisions on other issues.

In response to Deputy Olivia Mitchell, we cannot be accused of rushing. When one seeks and receives legal advice, conformity with European legislation and various legal instruments in Europe must be assessed. The Bill has improved from that perspective.

An Ceann Comhairle

Amendments Nos. 2 and 3 are cognate and will be taken together by agreement.

Mr. Gormley

I move amendment No. 2:

In page 4, line 39, to delete "€3,000" and substitute "€5,000".

This resubmits an amendment I tabled on Committee Stage. While the original fine has been increased to €3,000, it is important to send out the clearest and strongest message that this is serious legislation and those who offend must pay a heavy monetary price. The fine I propose is proportionate, not draconian. For that reason I ask the Minister to reconsider it and I hope that, if word goes out that the fine is proportionate yet also the type of fine one cannot ignore, people will begin to take the legislation seriously. My fellow Deputies working in the inner city report that some publicans say they do not care about the fine and will ignore the law. If there is a heavy fine they may think again.

Mr. Martin

I do not set the fines for summary offences. We take our advice on these matters from the Office of the Attorney General which recommends standard fines for legislation on specific offences. That is why we have settled on this figure because it is in line with similar fines for similar offences. I recall people in San Francisco saying that the cumulative effect of successive fines was a significant deterrent.

Mr. Martin

I move amendment No. 4:

In page 5, to delete lines 1 and 2 and substitute the following:

"4.—The Principal Act is amended by the substitution of the following section for section 8:

8.—(1) The following enactments are repealed, namely——

(a) the Act of 1978, and

(b) the Act of 1988.

(2) Notwithstanding subsection (1), regulations made under the Act of 1978 or the Act of 1988 that are in force immediately before the commencement of that subsection shall, subject to——

(a) subsection (3), and

(b) subsection (5) of section 47 (inserted by section 16 of the Public Health (Tobacco) (Amendment) Act 2004),

continue in force after such commencement.".

This is a technical amendment. On Committee Stage a ministerial amendment was accepted which provides for the transfer of the reference to the Tobacco (Health Promotion and Protection) Regulations, SI 359 of 1995, from this section to section 16, which would be section 47 of the principal Act. The amendment follows from that change and the Office of the Parliamentary Counsel to the Government has recommended that section 8 of the principal Act be amended to allow for the retention of an existing regulation, the Tobacco (Health Promotion and Protection) Regulations, SI 359 of 1995, until such time as the new measures come into effect to allow for retention of existing regulations while a new law is being commenced.

An Ceann Comhairle

Amendment No. 11 is related to Amendment No. 5. AmendmentsNos. 5 and 11 will be taken together by agreement.

Mr. Martin

I move amendment No. 5:

In page 5, to delete lines 11 to 20 and substitute the following:

"33A.—(1) The advertisement of tobacco products in premises in which the business of selling tobacco products by retail is carried on in whole or in part is prohibited.

(2) A person who contravenes subsection (1) shall be guilty of an offence.

(3) Where in relation to a premises to which subsection (1) applies there is a contravention of that subsection, the occupier, manager and any other person for the time being in charge of the premises shall each be guilty of an offence.".

This relates to the issue of in-store advertising. On Committee Stage a ministerial amendment was accepted that provided for enabling powers for the Minister to prohibit in-store advertising which is not provided for in the 2003 advertising directive. Following a review of this section by the offices of the Attorney General, today's amendment changes this enabling power to make regulations prohibiting in-store advertising to a legislative provision using this primary legislation. We are doing it through the primary route rather than as an enabling measure.

Ms McManus

I am curious as to why this should appear again at the eleventh hour. This kind of regulation is well used and there should be no difficulty in applying a regulation in this instance. Once it is in primary legislation, it is immutable unless the Minister returns with a new Bill, whereas regulations can be tweaked and changed. I do not quite understand the point. Why must it come into primary legislation?

Mr. Martin

Recent cases in the Supreme Court have followed a certain change in the degree to which the Oireachtas delegates secondary legislation to Ministers. Perhaps a conservative approach is taken because there are cases still before the Supreme Court.

Mr. Martin

I move amendment No 7:

In page 9, line 18, to delete "produce" and substitute "product".

This is a further tidying up amendment.

Ms McManus

Did the Minister have to employ a special team to do that?

Ms O. Mitchell

I hope the Minister paid them well for this advice, the poor lawyers.

Mr. Martin

Us humble parliamentarians.

Ms McManus

The Attorney General, the Department of Health and Children and a private legal team were involved.

Ms McManus

I move amendment No. 8:

In page 9, between lines 41 and 42, to insert the following:

"(16) This section shall apply with any necessary modifications to the registration of tobacco manufacturers and importers.".

I had hoped the Minister would have accepted this amendment on Committee Stage. It is anomalous to have extensive registration requirements on retailers while having none for tobacco manufacturers and importers. In this regard importers might be more important. The Minister argued that there were not that many of them and, therefore, it was unnecessary to include them in any registration framework. However, if anything that is an argument in favour of what I seek.

We do not know what will happen in the future and whether tobacco smuggling will be a major issue. Do we need a clear definition for importers? By concentrating on the retailers, the Minister is dealing with only one end of the chain. Retailers have to make significant changes in practice, which we support. Registration would introduce a safeguard regarding the activities of manufacturers and importers, which would be a suitable measure that could be introduced without any difficulty on the part of the Minister.

Mr. Martin

I accept the bona fides of the Deputy's presentation. One of the original motivations behind registration was to achieve compliance in the sale of tobacco products particularly to minors. For example, an outlet may be removed from the register if the proprietor is convicted of any offence provided for in the Act. The two Irish tobacco manufacturers are now legally bound to comply with a number of public health measures under the European Communities (Manufacture, Presentation and Sale of Tobacco Products) Regulations 2003, SI 425 of 2003, which transposed into national law the 2001 manufacturing directive that related to the printing of large health warnings on packets of tobacco products and the disclosure of tobacco product ingredients, which is a significant step forward. When this Bill is enacted, the Public Health (Tobacco) Acts will ensure the industry is fully responsible for the manufacturing and marketing of its products.

We seek different objectives from different players in this area. For a long time we sought disclosure from the manufactures. The EU introduced measures in respect of marketing, ingredients, nicotine content levels, etc. It is not necessary to have them on the kind of register we envisage for retailers.

Ms McManus

The Minister did not address the issue of importers. What registration system exists for importers?

Mr. Martin

The European Communities (Manufacture, Presentation and Sale of Tobacco Products) Regulations 2003 would cover importers. I can check that again.

Ms McManus

The title of that regulation does not mention importing.

Mr. Martin

It can cover that aspect. We have two manufacturers. I can clarify that point for the Deputy.

Ms McManus

How can this be clarified? We are on Report Stage and the Bill is to be passed today.

Mr. Martin

We can come back again.

Ms O. Mitchell

I request that we not come back again.

Mr. Martin

The register is for all retailers — restaurants, pubs and shops — and the driving force was to target under-age smoking. There is no need to register the two manufacturers in the country. We know those involved in international manufacture. It is not as though there were invisible tobacco importers all over the place.

Ms McManus

How many importers are there?

Mr. Martin

I do not know off hand. We can check that.

Ms McManus

The Minister should know that.

Mr. Martin

There are hundreds of retailers, if not more.

Ms McManus

We are trying to regulate to a high level the area of tobacco. This Bill represents tobacco control, as it has never existed before. Surely importing tobacco products is of some concern particularly when we know there is significant smuggling and this could grow if there is severe regulation on the use of tobacco. There is a correlation between an increase in the price of tobacco and smuggling. The importation of tobacco products should be addressed in some way in the Bill.

Perhaps I am being too cautious. Throughout the passage of this Bill the Minister and the Minister of State told us they would be extremely careful to ensure everything was covered. There are significant requirements on retailers, with which I agree. Meanwhile, we do not know how many importers exist. While I do not have this information and do not know how extensive this is, I would like to feel that the Minister for Health and Children knew. If there are safeguards concerning the importation of tobacco products, we should be happy and secure that there will be no problems at that level.

Mr. Martin

The European-wide legislation deals with importation. Following regulations we introduced in the past two to three years, every cigarette packet must have particular signage outlining nicotine content, etc. We cannot provide for smuggling as it is a criminal offence. It is alleged that smuggling comes about as a consequence of pricing issues or overregulation. However, it falls to the law enforcers, in particular the Garda, to detect and prosecute any smugglers. Given the Internal Market in the EU, issues relating to importation need an EU-wide response.

Ms McManus

While I fully accept smuggling is a criminal offence, it would be helpful if we had registration for importers so that if smuggling exists we can assess whether a legitimate importer is responsible in any way. We need to understand the system involved in the legitimate importation of tobacco products and ensure that such importation is regulated. I would have thought this was an obvious thing to do.

An Leas-Cheann Comhairle

The Chair has a difficulty as the Deputy has spoken three times.

Ms McManus

I am sorry. The Minister kept interrupting.

An Leas-Cheann Comhairle

I have to ask if the Deputy is pressing her amendment.

Ms O. Mitchell

May I speak?

An Leas-Cheann Comhairle

No.

Ms McManus

I do not think I spoke three times. The Minister may have given me information and then I came back.

An Leas-Cheann Comhairle

The Minister has spoken twice and he cannot speak again either.

Ms O. Mitchell

May I not speak?

An Leas-Cheann Comhairle

No.

Ms O. Mitchell

What did I do wrong?

An Leas-Cheann Comhairle

The Deputy did nothing wrong except she should have offered before Deputy McManus made her third contribution. We are on Report Stage and not Committee Stage.

Mr. Gormley

I move amendment No. 9:

In page 10, line 11, after "prescribed" where it secondly occurs to insert "or any packaging which covers the original packaging bearing the Government health warning".

When I tabled this amendment on Committee Stage, the Minister of State, Deputy Lenihan, said he would consider it. While he made no promises he said he would consider the objective of my amendment. I will explain what is behind this amendment. Perhaps the Minister's officials have explained it. It is a practice developing in other countries where those who sell cigarettes in their shops — I refer specifically to France and Spain — also sell packages with the slogan "smoking is cool" or whatever. People buy this packaging when they buy their cigarettes and simply put the cigarette packet into it and it covers the government health warning. It is clear the intention is to stop the Government health warning getting out. For that reason I consider this to be quite a serious issue. It is not a frivolous issue. This is put in context if under the legislation we are banning for example, confectionery shaped like a cigarette. I perfectly understand why the Minister is banning confectionery shaped like a cigarette and I am very sympathetic to the measure. I am quite sure he will understand that I am putting forward this amendment because it is clear that by selling such packaging in cigarette shops people are giving the two fingers to the Government health warnings. It is only a matter of time before this practice becomes commonplace here as well. I ask the Minister not to dismiss this amendment but to give it serious consideration and see it as a constructive suggestion from one Member of the Opposition.

Mr. Martin

I have a detailed note on this, a paragraph of which I will read, which gives a new angle on this and is quite humorous in its way. I take the Deputy's point. However, it is arguable that the measure is proportionate in that it could lead to a legal minefield because there are dozens of products that could be used to mask the warnings. We have increased the warnings and that has reduced the impact of advertising. Is the Deputy saying the cigarette packets are put into pouches or something like that?

Mr. Gormley

The packaging is made of cardboard. It is exactly like a cigarette pack. The cigarette pack fits into it.

Mr. Martin

The same could be achieved with adhesive tape. There is the point that if a person goes to the trouble trying to get rid of what he or she considers to be an obnoxious image of black lungs or, perhaps, the message that smoking kills or harms and so on, the time, effort and expense of purchasing the novelty stickers referred to by the Deputy and affixing them carefully to each side of each packet of cigarettes would only reinforce the health message. They would have to read it before covering it up. The original idea behind the health warning was to try to get it across to consumers so that they can see very clearly when they make their purchase that cigarettes damage health. It is a constant reminder to people.

The fundamental reason I cannot entertain the amendment is that it would lead to a legal minefield in terms of trade barriers in the internal market. It is a bit like the brand-stretching argument. It is arguable that if one type of product is banned someone will produce another type of product with a similar effect.

Mr. Gormley

The person who wrote the Minister's note may not be entirely familiar with what I am talking about. Covering up the Government warning is very easy to do. The product is made of cardboard, the same material as the cigarette packet, which fits conveniently into it. The idea is not just to cover the message but to give an alternative message to the effect that smoking is cool. This product is probably aimed at the 20-something market because it is very colourful and so on. However, it is self-evident that this is not acceptable because it goes against Government policy, against what the Minister and responsible Members of the Opposition are trying to achieve.

The Minister says he cannot accept the amendment because it would lead us into a legal minefield. I do not know how it could lead into a legal minefield nor do I believe it would lead into a legal minefield. The internal market is often quoted in this context. The Minister is banning confectionery which is shaped like a cigarette. Will that lead us into a legal minefield? I do not think so. This should not be a legal minefield. This is a product that should be banned because its purpose is to deliberately try to get around the Government health warning. I believe the health messages could be even bigger and more dramatic. Let me emphasise again that I am not referring to stickers. I am familiar with the stickers. ASH has told me they can be bought on the Internet. What I am talking about are very convenient packets, slightly bigger than a cigarette packet, into which the cigarette packet can be placed and which completely covers up the health warning. That is why I tabled this amendment. It is always very easy for the Government to find reasons not to accept amendments. The Minister accepted an amendment of mine in the past. It would be lovely if, on this occasion, he could accept this amendment.

Mr. Martin

I fully accept the motivation behind the amendment. However, I will err on the side of caution by not accepting the amendment.

Mr. Gormley

A number of things are happening here, and this legislation is very important. If after a period of time, say six months, it is found that some of what has been predicted has come to pass, will the Minister conduct a review of the impact of this legislation?

Mr. Martin

Legislation is under constant review. If new measures need to be introduced I will be open to the idea of introducing new legislation.

Mr. Gormley

I move amendment No. 10:

In page 12, to delete lines 42 to 45 and in page 13, to delete lines 1 to 4.

Deputy McManus tabled a similar amendment on Committee Stage. The Minister of State, Deputy Lenihan, said the machines in question would operate with tokens of some sort. Is that definitely the case?

Mr. Martin

Yes.

Mr. Gormley

In that case I will withdraw the amendment.

Mr. Martin

I move amendment No. 11:

In page 13, lines 42 to 47, to delete all words from and including "the" in line 42 down to and including "offence." in line 47 and substitute the following:

"each tobacco product sold by him or her, or a reproduction thereof, or

(ii) show the member of the public concerned a pictorial list consisting of visual images of packets of the tobacco products sold by him or her, provided that——

(I) each such image is not greater in size than the size of the packet concerned,

(II) the list does not contain more than one image of the same product, and

(III) the list or each such image contains a warning in such form and of such a type as may be prescribed by those regulations.

(6) A person who contravenes subsection (3) or (4), or regulations under subsection (5), shall be guilty of an offence.".

An Leas-Cheann Comhairle

We now come to amendment No. 13 in the name of the Minister. Amendments Nos. 13 and 19 are consequential on amendment No. 18. Amendments Nos. 20 and 21 are alternatives to amendment No. 19. Amendments Nos. 13, and 18 to 21, inclusive, will be taken together, by agreement. Is that agreed? Agreed.

Mr. Martin

I move amendment No. 13:

In page 14, line 47, to delete "(8)" and substitute "(7)".

This was agreed on Committee Stage. It is a stylistic change — what was subsection (7) will now be numbered subsection (8) and what was subsection (8) will now be numbered subsection (7).

Caoimhghín Ó Caoláin

In this, my first contribution on Report Stage, I congratulate the Minister on moving forward this legislation. I indicated on Second Stage that I and my colleagues would support the Bill. I confirm that this evening.

I welcome the position regarding the last amendment from Deputy Gormley because I was concerned that too much prohibition would have residual effects in a number of areas. The clarification was therefore very welcome.

Regarding amendment No. 18, which is grouped with this amendment, I welcome the inclusion of certain institutions and locations where the section will not apply. I acknowledge that the critical mass of the areas for which I argued on Second Stage regarding the earlier statements on the prohibition on smoking in the workplace have been include d.I avail of this opportunity to record my thanks to the Minister and commend him on his initiative.

An Leas-Cheann Comhairle

Amendments Nos. 14 to 16, inclusive, are related and may be taken together by agreement.

Ms O. Mitchell

I move amendment No. 14:

In page 15, line 2, to delete "and" and substitute "or".

I tabled amendments Nos. 14 and 15 on Committee Stage and I am surprised the Minister has not taken them on board. It is difficult to believe it is intended to make the occupier, the manager and any other person in charge liable, regardless of whether they are on the premises. The section states that each shall be guilty of an offence. I can understand how the person in charge at a particular time, be it the occupier, the manager or someone else appointed by him, would be viewed as guilty of the offence. However, it does not make sense that the owner of a pub who is away playing golf in Florida should be held responsible with the manager of the pub if someone smokes on the premises and that manager does nothing about it. That does not seem reasonable. Was it the intention or was it an oversight?

I also tabled amendment No. 16 on Committee Stage. I do not wish to be difficult but the enforcement provisions are far from robust. There are two regimes of enforcement under two different sets of regulations. This leaves the legislation wide open to legal challenge at a later date. Depending on the kind of premises involved, in one instance a person can be sent to prison and a particular regime of fines applies while if one is in the pub or hospitality industry, the offence is not punishable by a prison sentence. This means problems regarding enforcement already exist.

If we are asking publicans to be the enforcers of the law, we owe it to them to be clear about what it is we are asking of them. It is unique to ask a group of people or an individual to be responsible for the acts of others. When I raised this matter on Committee Stage, the Minister of State, Deputy Brian Lenihan, said it was not at all unusual for publicans to be responsible for public order, etc., on their premises. However, that is quite different from what is required in this section, under which, they will be responsible for public order in so far as they contribute to the failure thereof. Under this provision, Charlie Chawke would have been responsible for his own shooting although he was not responsible and he did not contribute to it in any way. In the case of the smoking ban, a publican who asks somebody not to smoke and takes what would be regarded as reasonable measures, still does not know how far he has to go before meeting the terms of the legislation. We owe it to publicans to be absolutely clear about how far they have to go. Must they, for example, use physical violence, ask someone not to smoke or stop serving someone who is smoking?

Matters are different in places of employment, where there is an employer to employee relationship. In pubs, restaurants and hotels, we are talking about businessmen with their clients. There is a reluctance to go to great lengths to admonish customers because the business depends on their goodwill so that they return and frequent the premises again. It is reasonable that we should make clear exactly what is their responsibility. I accept that the section states that it shall be a defence in proceedings to prove that someone took reasonable measures. However, they should not have to go to the stage of proceedings. It should be clear for them in the law and not only in guidelines or in what the Minister might say to publicans. It must be clear in the law and I ask the Minister to take the amendment on board and ensure that reasonable and clear responsibilities are placed on publicans.

Mr. Martin

If I was to accept Deputy Olivia Mitchell's amendments, it would allow a coach and four to be driven through any proceedings. There is a reasonable defence clause in the legislation which affords a significant degree of protection, once people are behaving reasonably. It is a standard provision in terms of public health legislation on, for example, food safety, to refer to the owner, manager or whoever is in charge.

Ms O. Mitchell

That is precisely my point.

Mr. Martin

Amendment No. 14 proposes to make only one person responsible for compliance with these public health measures, that is, either the occupier, manager or another person in charge. In proceedings for an offence under this section, an authorised officer would take into account all the details of the case. It may be necessary to initiate proceedings against each of the persons responsible or only one of them. That would be open in terms of the case that one would take. Businesses are run differently and chains of command and lines of communication may vary significantly.

If, for example, the owner of a specified place was not present in that place at the time of an alleged offence, he or she would still be responsible for ensuring that the person left in charge was aware of the public health legislation and was instructed to take all reasonable steps to ensure compliance. Again, the emphasis here would be on building compliance. The provision is similar to that contained in other legislation and it is reasonable. If we were to change it, it would allow people to point the finger at each other and permit a coach and four to be driven through any case taken.

Ms O. Mitchell

The Minister stated that it will be open to the enforcing officer to decide which of the people will be held responsible. However, the Bill states that they shall each be guilty which does not allow for any flexibility on the part of an enforcing officer. It, therefore, appears that the legislation does not say what the Minister wants it to say.

Mr. Martin

It is to facilitate the implementation. There has to be a policy on the premises, etc. That is the way it works in respect of food safety and so forth.

Ms O. Mitchell

It is incorrect. I accept that whoever is in charge of the premises at the time must be the person who is guilty of the offence. However, to say that the occupier, manager or anyone else will be liable at the same time is incorrect. Perhaps my wording is not what is required but the Minister's wording is certainly not acceptable.

Mr. Martin

I move amendment No. 17:

In page 15, line 12, to delete "to, and protecting the health of," and substitute "to and protecting the health of".

This is a minor drafting amendment which was recommended by the Office of the Parliamentary Counsel. The effect of the amendment is to delete two commas in the relevant subsection.

Mr. Gormley

Why? I am intrigued by the removal of the commas. What will be the net effect of their removal?

Ms McManus

It is bad grammar.

Mr. Gormley

That was my impression.

Mr. Martin

We are deleting "to, and protecting the health of," and substituting "to and protecting the health of".

Mr. Gormley

Will the subsection now read "This section has been enacted for the purposes of reducing the risk to and protecting the health of persons."? Are all the commas being removed from it?

Mr. Martin

It is a grammatical change.

Mr. Gormley

The sentence does not contain a pause.

Mr. Martin

The parliamentary counsel recommended the change. I will get a note for the Deputy.

Mr. Martin

I move amendment No. 18:

In page 15, between lines 12 and 13, to insert the following:

"(7) This section shall not apply to—

(a) a dwelling,

(b) a prison,

(c) subject to paragraph (d), a place or premises, or a part of a place or premises, that is wholly uncovered by any roof, whether fixed or movable,

(d) an outdoor part of a place or premises covered by a fixed or movable roof, provided that not more than 50 per cent of the perimeter of that part is surrounded by one or more walls or similar structures (inclusive of windows, doors, gates or other means of access to or egress from that part),

(e) a bedroom in——

(i) a premises registered under Part III of the Tourist Traffic Act 1939 in a register established and maintained under that Part,

(ii) a premises for the time being specified in a list published, or caused to be published, under section 9 of the Tourist Traffic Act 1957, or

(iii) any other premises in which a person carries on business, being a business that consists of or includes the provision, in those premises, of sleeping accommodation to members of the public,

(f) a room that, in furtherance of charitable objects, is used solely for the provision of living accommodation,

(g) in premises owned or occupied by a person whose main objects are the provision of education, a room that, in furtherance of those objects (other than objects relating to the provision of primary or secondary education), is used solely for the provision of living accommodation,

(h) a nursing home,

(i) a hospice,

(j) a psychiatric hospital, or

(k) the Central Mental Hospital.”.

Mr. Martin

I move amendment No. 19:

In page 17, to delete lines 1 to 36.

An Leas-Cheann Comhairle

Amendments Nos. 20 and 21 cannot be moved.

Mr. Gormley

Why can they not be moved?

An Leas-Cheann Comhairle

The reason is that amendment No. 19 was agreed.

Mr. Gormley

I knew something was happening.

Ms McManus

The Government always wins.

Mr. Gormley

I move amendment No. 22:

In page 20, to delete line 41.

I regret I was not able to move the two previous amendments as I wanted to discuss the areas in which it is now admissible to smoke, an issue over which the Leas-Cheann Comhairle, with respect, passed rather quickly. I wanted to move amendments Nos. 20 and 21 for specific reasons.

An Leas-Cheann Comhairle

They cannot be moved because amendment No. 19 has been agreed.

Mr. Gormley

I regret I cannot speak on the two previous amendments because they are important. I specifically want to talk about the issue of beer gardens, which I raised on Committee Stage and on which I want clarification. Will the Minister confirm that smoking will now be permitted in the beer garden section of a licensed premises and that these will not have no-smoking areas? Will he also confirm that it will be permissible to place chairs and tables in the so-called "outdoor areas" and that people will be permitted to have their drinks in them?

These are important issues, the reason being that, if it is possible for people to have drinks in these areas, and the Minister is aware of the way in which such things work in reality, they will effectively become the smoking section of pubs. This has been my concern, and the reason I asked the Minister whether he had spoken to others about this issue is that I had an opportunity today to speak to Dr. Luke Clancy who is concerned about this issue. The Minister is a busy person and may not have had such an opportunity. I ask him to confirm the two propositions I have made.

Mr. Martin

The beer garden issue was defined a long time ago on Committee Stage as the open air. We are going far enough with the legislation and the matter has already been debated in detail.

Mr. Gormley

I have every scrap of paper issued by the Department on this legislation.

Mr. Martin

The bottom line is that it will be possible to smoke in beer gardens.

Mr. Gormley

I have no problem with that, but will they have no-smoking sections?

Mr. Martin

One cannot provide for that legally. We have provided for shelters from the rain and cold, as defined, but we cannot legislate for the open air.

Mr. Gormley

Everybody, including children, will be able to go into beer gardens and will be subjected——

Ms O. Mitchell

One goes out to a beer garden.

Mr. Martin

We never envisaged that the legislation would cover beer gardens.

Mr. Gormley

Regarding my second point on outdoor areas, will such areas have chairs and tables and will people be able to drink in them?

Mr. Martin

It is a matter for the owner of the premises whether he wants to have chairs and tables outside.

Mr. Gormley

The area covered by a roof, as described in the legislation.

Mr. Martin

The owners of premises can provide whatever facilities they wish. The matter is not for me to determine.

Mr. Gormley

The net point, therefore, is that this area, which is described in the legislation, will become the smoking section of pubs.

Ms O. Mitchell

Which amendment are we discussing?

Mr. Martin

It will not be part of the pub in essence. The yard, footpath or——

Mr. Gormley

The area will have a roof.

An Leas-Cheann Comhairle

We are slipping into a Committee Stage debate.

Mr. Gormley

This issue is important.

An Leas-Cheann Comhairle

It should have been teased out on Committee Stage. We are now on Report Stage.

Mr. Gormley

I stated on Committee Stage that I was extremely concerned about this aspect of the legislation.

An Leas-Cheann Comhairle

The matter does not arise.

Mr. Gormley

The Minister is indicating he disagrees with me but he should clarify my question. I fear that publicans will construct such an outdoor area with a roof, walls, partitions, tables, chairs and every other facility they want, and people will drink and smoke in this area, thus creating what is effectively a smoking section of a pub. What is more, the staff must enter this section. I have received all the Minister's press releases on this issue, including one headed, "Minister Martin announces date for going smoke-free at work".

An Leas-Cheann Comhairle

We cannot proceed along these lines. The Deputy must address amendment No. 22.

Mr. Gormley

Having worked in a pub for many years, from the age of 12 onwards, I have first-hand experience of this matter. The workers will have to enter the smoking section to collect glasses and will be subjected to second-hand smoke. As such, these areas will not be smoke free.

An Leas-Cheann Comhairle

The Chair has allowed the Deputy considerable latitude. I ask him to resume his seat.

Mr. Gormley

With respect, I am making a valid point. We are about to approve legislation which should not pass until the clarification I require from the Minister is given.

Mr. Martin

When the legislation containing the exemptions——

An Leas-Cheann Comhairle

This discussion is out of order.

Mr. Martin

To clarify the point, the smoke-free workplace relates to enclosed workplaces. The Deputy will recall the major argument we had about ventilation and so forth. The bottom line is that the legislation was never intended to impose a ban in outdoor workplaces.

An Leas-Cheann Comhairle

Does the Deputy wish to press the amendment?

Mr. Martin

I will clarify the matter for the Deputy later, if he wishes. The structure allowed is limited and will be very draughty.

An Leas-Cheann Comhairle

The Chair has been extremely generous on this matter. We cannot proceed in this manner. Deputy Gormley should address his comments to amendmentNo. 22.

Mr. Gormley

I am happy to withdraw the amendment. While some of my colleagues in the Opposition do not share my concerns, I remain extremely concerned about what we are permitting. Given the nature of vintners and publicans, they will do everything possible to create the smoking section they have always sought. These areas will probably become the cool sections of pubs where everyone congregates to have a drink.

An Leas-Cheann Comhairle

The Deputy is being repetitive.

Ms McManus

The temperature will certainly be cool.

Mr. Gormley

We will see how cool it is given how easy it is to create comfortable conditions by bringing in the builders. Bob the Builder will be busy.

Mr. Martin

If the Deputy reads the text, he will find it to be restrictive.

Mr. Gormley

The Minister will become even more irritated with me now, but before we proceed to Final Stage I would like clarification of this matter because my concerns are shared by others.

An Leas-Cheann Comhairle

We cannot return to the Committee Stage debate.

Mr. Gormley

Is it possible to delay Final Stage until I receive clarification?

Mr. Martin

I have clarified for the Deputy that people will be able to go outside any premises.

Ms McManus

I congratulate the Minister for Health and Children on the introduction of this legislation. He has the support of the Opposition, Deputy Gormley's genuine concerns aside. It is difficult to get right legislation on such an important issue. I hope it is robust enough to stand up to any possible challenge. It is an important health promotion measure which I welcome.

Ms O. Mitchell

I wish to be associated with Deputy McManus's remarks and to congratulate the Minister on the introduction of this significant legislation which will have far-reaching effects into the future. Its main impact will be to prevent young people taking up smoking. Other Members have rightly said that many people who currently smoke will do everything possible to get around the ban such as going outside pubs and so on to have a cigarette. Future generations of young people will not have the same incentive to take up smoking as is currently the case for their peers who smoke in pubs. This legislation will, in the long run, bring tremendous health benefits for all. I congratulate the Minister on it.

Mr. Gormley

I thank the Minister and congratulate him on the introduction of this important progressive legislation. I am delighted Ireland is the first country in the European Union to introduce such legislation. We are leading the way. This issue of smoking has been of concern to me since my teens when I became obsessed with it. This is a great day. There are problems, such as those to which I alluded, but I hope they can be addressed in the Seanad.

I am quite certain that if we get this right, we will change the pub culture here on which we pride ourselves. Often, that culture leaves a great deal to be desired. This legislation will not impact negatively on vintners and others. It will have quite the opposite effect and I hope more people will go to pubs because of the clear atmosphere in which they can enjoy good food and so on and their clothes will not smell of smoke the next day.

It is essential that we ensure those who work in pubs can work in a smoke-free area. I hope the Minister will have discussions with people such as Dr. Luke Clancy to ensure we get this right as the Bill goes through the Seanad.

Minister for Health and Children (Mr. Martin)

I thank Members and in particular the Opposition spokespersons for their strong support for the principles of this legislation and for the detail and attention given to it. I also thank Members for their forbearance through the various Stages of the legislation. Given the nature of the topic, the Bill has drawn particular attention not least from parties who might oppose many of its provisions. I appreciate the sincerity with which people have articulated their views on various aspects of the legislation.

Suffice to say that this journey would not have been possible and would have been far more difficult without the unanimous support of political parties through the committee on health and children and reflected by the vast majority of contributors to the debate in this House. I thank Members for their support.

Dáil Éireann debate - Tuesday, 2 Mar 2004

Dáil Éireann debate -
Tuesday, 2 Mar 2004