Amendment No. 2 is an alternative to amendment No. 1 and amendments Nos. 3 and 9 are related. We will, therefore, take amendments Nos. 1, 2, 3 and 9 together by agreement.
Public Health (Tobacco) (Amendment) Bill 2003: Committee Stage.
Section 1 agreed to.
SECTION 2.
I move amendment No. 1:
In page 3, lines 32 to 36 and in page 4, lines 1 to 19, to delete paragraph (a) and substitute the following:
"(a) the deletion of the definition of ’advertisement’,”.
This amendment provides for the deletion of the definition of advertisement as it relates to tobacco products. The wording of the national definition was not in line with the EU 2003 advertising directive and the purpose of the amendment is to bring the two into harmony. The definition is in line with the definition contained in Article 2 of the 2003 EU advertising directive. The amendment states "the cognate words shall be construed accordingly as in the directive".
Amendment No. 9 is linked to amendments Nos. 1 and 3 and follows from the deletion of the national definition of advertisement as it relates to tobacco products. It provides for an offence for the advertising of tobacco products as provided for in the 2003 EU directive. The amendment also provides the Minister with enabling powers to prohibit in-store advertising which is not provided for in the 2003 EU directive. The comprehensive definition of advertising in this section refers to premises in which the business selling tobacco products for retail is carried on in whole or in part.
The Government amendments arise from the need to bring the legislation into harmony with the EU directive. Is Deputy McManus moving her amendment?
Is the Minister of State accepting it?
No. I thought the Deputy would move the amendment before I gave my decision on it.
We are taking amendments Nos. 1, 2, 3 and 9 together by agreement. Amendment No. 2 has not yet been moved.
The Minister of State has asked me to move my amendment.
I am told the amendment cannot be moved at this point.
Of course it can.
It can be discussed now.
Why can it not be moved?
It is being discussed with amendment No. 2. Amendment No. 2 is an alternative to amendment No. 1.
No, it is not.
I am informed by the Bill's Office that is the case.
That is wrong. I am growing weary of such problems. Perhaps the Minister of State will say if amendment No. 2 is a contradiction of amendment No. 1.
Can somebody say whether amendment No. 2 is an alternative to amendment No. 1? I hope the Bill's Office is looking in on this debate.
It is not an alternative because it refers to the concept of patronage, which is distinct from advertising.
I want to move amendment No. 2 which is not an alternative to No. 1. I proposed this amendment to the Bill in order to improve it. May I move it?
The amendment is being discussed with amendment No. 1. The Deputy may move her amendment when we have dealt with amendment No. 1.
Ms Manus
I do not want to move my amendment because of any issue with the definition of advertisement. There is a slight touch of "Groundhog Day" about this debate because the issue was debated previously. If the Minister for Health and Children was here, he would recall the issue regarding patronage which is not direct sponsorship but is an issue in terms of the influence tobacco companies can exert on young people especially in areas such as academe.
The amendment proposes that this form of patronage should also be included in the Bill, whether or not it constitutes sponsorship within the meaning of the directive. We all want to comply with directives. However, to comply with a directive does not mean one must be trammelled by it. If that was the case and we adopted that mindset, the Minister would not apply the ban on smoking in the workplace, which is not being applied all over Europe but only in Ireland. We are moving well beyond any decisions or directives that have arisen at European level. Others may follow us and I hope they do. I suggest they should also follow us on the matter of patronage.
The Minister has indicated he is serious about this legislation and, despite all the obstacles he and his backbenchers created, he has had the unwavering support of Opposition parties. There is an issue regarding patronage. Tobacco companies are excellent at exerting their influence and they will find increasingly ingenious ways of exerting it as the noose tightens on them. At a practical level we should include this provision in the Bill to deal with patronage, which is an issue like the issues of advertising and banning smoking. It has nothing to do with the definition of the word "advertisement." It is outside the directive because it goes beyond it.
There is nothing to stop us from introducing laws here which are appropriate to us. If we have reached the point where a directive stops us from doing sensible things, we should go and do something else with our time.
I support the amendment. The tobacco industry is becoming more ingenious in the manner in which it exerts influence, sometimes in the most insidious ways. The amendment tightens and improves the legislation and for that reason I hope the Minister accepts it.
With regard to the ingeniousness of tobacco companies in their circumvention of legislation, I deliberately limited the number of amendments I put forward. This legislation does not need to be jeopardised again by further changes. I regret that the Minister, who is now on his fourth bite of the cherry, requires us to accept ten new amendments. As we only received them this morning, it is impossible for us to scrutinise them. How many bites of the cherry does the Minister need? Does he realise that each time he changes the legislation he jeopardises its robustness? It will be challenged one way or another although perhaps not this week or the next.
The Deputy touched on the relevant issue when she said the Minister has had several bites of the cherry. No doubt the legal profession will have several more bites of this cherry when it becomes law. The Minister has taken counsel with many eminent members of the Bar to ensure that the legislation is as cast iron as it should be and it would be a brave person who would predict the outcome of a court decision nowadays.
In recent weeks we had the far-reaching decision of the High Court regarding the incorporation of subordinate legislation. As Deputies will see later in this discussion, that has had implications for the drafting of this measure. On the issue raised by Deputy McManus, we are on the interpretation section and looking at the definition of the word "advertisement" and advertising, which must give substance and colour to that concept for the purposes of the whole Act. It is not an appropriate place to insert a definition with regard to patronage.
However, on the merits of the point, with which I have considerable sympathy, I point out that section 6 inserts by way of substitution in the principle Act of 2002 a new prohibition of sponsorship. The first subsection specifically criminalises sponsorship contrary to the directive but the second subsection creates an entirely separate and distinct offence relating to sponsorship, separate and additional to the directive. It provides that it will be an offence for a person to give financial or other assistance, or cause financial or other assistance to be given to or for the benefit of a person, or in regard to an event or activity in consideration of the use, display or advertising by the person, or at the event or activity concerned, or association with the person, event or activity, or promotion of a tobacco product, or of the name of the tobacco manufacturer or importer, or the name of a brand of tobacco product, trademark, emblem mark or the image or logo used in the marketing of a tobacco product.
That is a far-reaching offence with regard to sponsorship and it captures all the examples of patronage that can exist. Therefore, the Bill provides for a strict prohibition of sponsorship, above and beyond the provisions in the directive. Clearly, there is the specific entrenchment and implementation of the directive in the creation of an offence of sponsorship contrary to the directive. There is an additional and far stricter national offence created there. The matter has been dealt with in the Bill. It would confuse the Bill to muddy the definition of what is an advertisement by including a reference to patronage.
I do not wish to muddy the Bill. I am happy to accept the Minister's word. I hope he is right.
Amendment agreed to.
Amendment No. 2 not moved.
I move amendment No. 3:
In page 4, between lines 19 and 20, to insert the following:
"(b) the insertion of the following definition:
' "advertising" has the same meaning as it has in the Directive of 2003, and cognate words shall be construed accordingly;',".
Amendment agreed to.
I move amendment No. 4:
In page 4, line 45, after "smoked" to insert ",sucked or chewed".
Most people consider tobacco to be a substance which is smoked but there is another use for tobacco. I read an interesting letter in The Irish Times today which may have been partly tongue in cheek. It made the point that there has been an increase in the chewing of tobacco where the smoking ban has been applied in bars in America, specifically California. It pointed out also that this is an unpleasant habit, particularly when it involves spittoons.
Chewing tobacco is harmful to one's health. Will the Minister of State accept this amendment although it does serve a minority interest? I presume he has been at benchers' dinners where snuff is handed around. This is a similar facility. It is not a common practice but it is a practice for these substances to be inhaled in ways other than by smoking.
I support the amendment and accept the points made by Deputy McManus. The question of herbal cigarettes and the smoking of other substances was raised during the debate. Could there be a situation where people decide to play the devil and light up something else in the bar and, if so, is it covered in legislation?
I do not wish to fall out with my colleague but however one regards chewing or spitting as being desirable or undesirable, to start regulating what people are chewing is bringing the nanny state to the extreme. The Bill does not empower anybody to bring in such a regulation. The basis of the Bill is the environmental impact of tobacco smoke on other people. Apart from being unpleasant for people to have to watch other people spitting, the Bill does not cover this situation and I do not believe the amendment can be accepted.
I am sorry to disappoint all the Deputies but the matter is already dealt with in the primary legislation of 2002 which contains a definition of "smoke". It states that a tobacco product includes sniffing, chewing or sucking of such a product. That would appear to capture——
I was aware of a reference in the primary legislation. I wonder if defining something as smoke when it clearly is not smoke is not dodgy practice. Chewing is not smoking and yet the blanket term is being used. It is an abuse of the English language and that is why it is better to set out what is meant. It is like saying that the colour pink covers the colours black, white and purple.
Will the Minister of State cite the reference in the primary legislation?
It is in the interpretation section, section 2. With regard to snuff and herbal products, a new definition of tobacco products is being inserted in this Act, but for present purposes it is immaterial. To address Deputy Gormley's query, the relevant provision has not changed. It states: "Any product consisting in whole or in part of tobacco that is intended to be smoked." Snuff contains some tobacco but it is not intended to be smoked, therefore, it does not fall within the definition of a tobacco product. I presume the same applies to the herbal products referred to by the Deputy. They are not produced to be smoked. The question of smoking including such activities as sniffing, chewing or sucking arises because in the United States, chewing tobacco is a common practice as part of the general tobacco industry, therefore, it is associated with the product of tobacco which is intended to be smoked. In the Irish language, the verb often used in connection with tobacco was ag ól tobac. Modern signage states ag caitheamh tobac but the older expression reflected the fact that it was common to consume tobacco as well as to smoke it.
I have a problem with this. If the Bill states that smoke includes tobacco that is chewed, will Nicorette be forbidden? It is nicotine and it is chewed. What ingenious answer will the Minister of State provide?
It is not a tobacco product and is not intended to be smoked.
It does not come from the tobacco plant.
Nicotine is not tobacco.
Is the Minister of State certain or is he chancing his arm?
How does one smoke nicotine?
Where does the nicotine for Nicorette come from?
According to what the Minister of State has said, the definition of smoke includes chewing gum.
The key qualification is that it must be a product which is intended to be smoked. There is also a specific inclusion——
It is clearly not intended to be smoked if it is being chewed.
No, but the product——
The product is being chewed.
Nicotine is never intended to be smoked. The product referred to by the Deputy——
The product being prohibited, according to the definition——
Nicorette chewing gum is never produced for the purpose of smoking; it cannot be smoked.
But the intended use of chewed tobacco is to chew it. I think the Minister of State is on shaky ground.
There is an express exemption for medicinal products within the meaning of the medicines board legislation and it covers that specifically in any event. The more general point is that tobacco is intended to be smoked and that is a precondition under the legislation.
What is the medical evidence that chewing tobacco is damaging to health?
It is very damaging.
I realise Deputy Gormley might think so but I am asking the Minister of State to state the medical evidence.
It is worse in terms of cancer.
Is it a public health issue?
I am advised there is a public health issue because it can cause mouth cancers.
I have known people to be hospitalised as a result of overdosing on Nicorette.
Nicorette is a scientifically tested product which I presume has undergone clinical trials.
It is the cause of people ending up in hospital.
If there are side effects they have been assessed and the users are warned about them.
In terms of the primary legislation, Nicorette could not be defined as a tobacco product so perhaps that covers it. The primary legislation defines a tobacco product as any product consisting in whole or in part of tobacco that is intended to be smoked. If someone in a pub wanted to roll and smoke a joint of cannabis with no tobacco in it, is that covered in the legislation? We should face the fact that it is not covered. Someone can go into a pub and roll and smoke a joint.
It is covered under the misuse of drugs legislation.
What about herbal cigarettes?
The mere possession is an offence under the misuse of drugs legislation.
And herbal cigarettes?
I am not clear on whether the act of smoking of itself is criminalised under the misuse of drugs legislation but certainly their mere possession is. Herbal cigarettes are not within the scope of this legislation.
So people can smoke herbal cigarettes in a pub?
Unless the manager, in the interests of the good management of the premises, decides otherwise.
The purpose of the Bill is to stop people inhaling the tar and the other carcinogenics in tobacco smoke. Nicotine is an addictive substance of which Nicorette is a development.
Amendment, by leave, withdrawn.
Section 2, as amended, agreed to.
SECTION 3.
Amendments Nos. 5 and 7 are cognate and may be discussed together by agreement.
I move amendment No. 5:
In page 5, line 10, to delete "€3,000" and substitute "€5,000".
When the legislation was drafted the fine to be imposed under this section was increased to €3,000. As there should be a tough deterrent and given the rate of inflation, it should be increased to €5,000.
We are dealing with the penalty section, as Deputy Gormley has outlined. The maximum fine that can be imposed on a person guilty of an offence under section 47 of the 2002 Act, which deals with the smoke-free workplace regulations provision, has been changed from €1,900 to €3,000 in this Bill. Imprisonment as a penalty is removed. The general increase in the level of fines for summary convictions was set by the Attorney General to bring them into line with standard fines for this level of offence. Given that an increase has already been introduced by this legislation, the Minister is anxious that the balance be maintained in the context of any possible constitutional challenge with regard to penalties and to follow the advice of the Attorney General in that respect. While imprisonment as a penalty has been removed, if an offender refuses to pay the fine a period of detention can be specified in default of payment.
I stand by my remarks.
As I recall, there is legislative provision for the index linking of fines.
That is provided for in the Bill.
Is that the case?
I think so. I am almost certain I saw it somewhere.
Could the Minister of State clarify that?
Perhaps the Minister of State would look at that before Report Stage.
I know the Law Reform Commission produced a report on the indexation of fines. It is not the responsibility of this Department but we can certainly obtain the information.
I understood it was to apply to all legislation.
I am almost certain I saw it in the Bill.
The Minister of State may return to it on Report Stage.
Amendment, by leave, withdrawn.
I move amendment No. 6:
In page 5, to delete line 11 and substitute the following:
"(c) the insertion, in subsection (3), of ’33A,’ after ’section 33,’, and”.
Amendment No. 6 relates to section 5 of the principal Act. This is a technical legal amendment which was recommended by the Attorney General. The amendment provides for the offences in the new section 33A and it provides for regulations to be made to prohibit in-store advertising. It is a standard provision providing for penalties.
Amendment agreed to.
Amendment No. 7 not moved.
Section 3, as amended, agreed to.
NEW SECTION.
I move amendment No. 8:
In page 5, before section 4, to insert the following new section:
4.-Section 8 of the Principal Act is amended by the substitution of the following subsection for subsection (3):
'(3) The Tobacco Products (Control of Advertising, Sponsorship and Sales Promotion) Regulations 1991 (S.I. No. 326 of 1991) are revoked.'.".
This amendment proposes to revoke the Tobacco Products (Control of Advertising, Sponsorship and Sales Promotion) Regulations. It is a technical amendment which was recommended by the Attorney General. It provides for the transfer of the reference to those regulations from this section to section 15, that is, section 47 of the principal Act. The Minister was advised by the Attorney General that the provisions for smoke-free work places should be introduced by means of primary legislation - in other words, this Act - rather than by means of secondary legislation in the regulations. This will strengthen the Bill in the context of a possible legal challenge.
Amendment agreed to.
SECTION 4.
I move amendment No. 9:
In page 5, lines 15 to 25, to delete all words from and including "section" where it firstly occurs in line 15 down to and including "offence."." in line 25 and substitute the following:
"sections for section 33:
'33.-Subject to section 35, a person who advertises, or causes the advertisement of, a tobacco product in contravention of the Directive of 2003 shall be guilty of an offence.
33A-(1) The Minister may by regulations prohibit 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.
(2) A person who contravenes a provision of regulations made under this section shall be guilty of an offence.
(3) Where in relation to a premises to which subsection (1) applies there is a contravention of regulations under this section, the occupier, manager and any other person for the time being in charge of the premises shall each be guilty of an offence.
(4) In this section, "advertisement" includes, in relation to a tobacco product, every form of recommendation of the product to the public and, in particular-
(a) (i) a statement of the name of a manufacturer or importer of a tobacco product, or the name of any brand of tobacco product, or
(ii) a statement of any trade description or designation, or a display or other publication of a trademark, emblem, marketing image or logo, by reference to which the product is marketed or sold,
in circumstances where such statement, display or publication may reasonably be regarded as a recommendation of the product to the public, and
(b) a statement of the properties of the product on a label, container, wrapper or package used for the product or in a leaflet, circular, pamphlet or brochure issued to the public or given to a purchaser of the product,
and cognate words shall be construed accordingly.'.".
Amendment agreed to.
Section 4, as amended, agreed to.
SECTION 5.
I move amendment No. 10:
In page 5, lines 28 to 31, to delete all words from and including "tobacco" in line 28 down to and including "products."." in line 31 and substitute the following:
"a tobacco product in a publication that-
(a) is-
(i) printed and published, and
(ii) primarily intended for sale or distribution,
in a state other than a Member State of the European Communities, or
(b) is directed solely at persons who carry on, in whole or in part, the business of selling or distributing tobacco products.’.”.
This is a further technical amendment which transposes into national law Article 3 of EU 2003 Advertising Directive.
Amendment agreed to.
Section 5, as amended, agreed to.
SECTION 6.
I move amendment No. 11:
In page 5, line 39, after "activity" to insert "or for an Irish television or film production".
Deputy McManus has already referred to the question of patronage and I spoke about insidious ways of product placement. It is something about which I have been concerned for some time and my concern is shared by some of the Deputies here. For example, Deputy Fitzpatrick has spoken about product placement in film and television. It is probably one of the most effective ways of influencing behaviour.
I am not trying to interfere with artistic freedom. It is fair enough that a person writing a script includes a reference to where someone smokes. However, I am concerned with situations where tobacco companies or people representing them give money to a script writer or a director so that a product is placed in that production where, for example, someone lights up a Marlboro cigarette. That is unacceptable and I am trying to cover that eventuality here. I stress that I am not trying to interfere with any kind of artistic freedom. A director or script writer is fully entitled to write whatever he or she may want but if money changes hands for something to be done in that way, then that should be an offence.
I understand the point raised by the Deputy. In a sense it builds on a discussion we had earlier. In section 6, the definition of sponsorship captures all examples of sponsorship including financial assistance to the film and television industry, which are the matters addressed by the Deputy in his amendment. In view of this, the amendment is not required.
Is the Minister of State satisfied that my concerns are totally covered here?
Yes. I am satisfied that the definition of sponsorship in section 6 captures all examples of sponsorship including financial assistance to the film and television industry, which is what the Deputy's amendment relates to.
Amendment, by leave, withdrawn.
Section 6 agreed to.
NEW SECTION.
I move amendment No. 12:
In page 6, before section 7, to insert the following new section:
6.-The Freedom of Information Act 1997 shall apply to the Office and to the Council established under the Principal Act.".
I am concerned about issues that are arising regarding the health service, including the changes being proposed which will make it much more difficult for people to get information, and also the proper checks and balances. This relates back to this Bill.
I have been asked to raise this issue by the IMO. The interim Health Service Executive has been announced. A member of it is a representative from Arthur Cox and Company. I do not know if the Minister of State is aware of this but that company promotes itself as having unrivalled experience in large scale multi-party product liability litigation in the areas of tobacco, telecommunications, blood products and pharmaceuticals. The company is currently acting for the defence in the largest product liability action to have thus far come before the Irish courts.
I have raised the issue of conflict of interest on the steering committee where the only person outside of the Civil Service is the managing director of a pharmaceutical company. There is something seriously wrong with that kind of appointment. What if it is transposed into a system where there is not a proper release of information? One asks parliamentary questions about the health reform programme and one does not get answers; one gets rubbish.
In this instance, I take it that the Freedom of Information Act would apply but it is a matter of great concern. I wanted, with this amendment, to underline the point that we need to know what is going on when it comes to tobacco control, that we need to ensure that everything is absolutely transparent and accountable when it comes to managing the controlling of the sale and the use of a substance which kills people.
I presume that there is no need to put this amendment, but if there is, I will pursue it. It is vital that there is no contamination of the bodies which are supposed to make our health service better. I do not have much confidence at present that we are able to stand over decisions that have been made in other areas in the health service.
I must take issue with Deputy McManus on appointments to the health service executive and the steering group. The persons to whom the Deputy has referred are of the highest repute. If there is an issue of a conflict of interest, a protocol may have to be put in place by the executive to deal with that. I am glad that persons outside the public service have volunteered to serve in this important national work. Those who have achieved high eminence in the management side in medicine in the private sector often have good insights into the types of savings and efficiencies in management practices that should be introduced throughout the sector. Therefore, there is an argument for the appointment of persons who, for example, have managed successful pharmaceutical firms which provide substantial employment in this country and have a considerable knowledge of the industry worldwide and, equally, for the appointment of persons who have had experience of health care litigation, although I accept the point the Deputy makes that a protocol must be in existence for such persons. There is the old saying that often the best gamekeeper is the person who has been a poacher.
On the merits of the amendment, first the health reform strategy envisages that the office will be subsumed into the Department. While I presume that would require amending legislation, that is the ultimate intention in the strategy.
With regard to the section, the question of the Freedom of Information Act will be dealt with under the schedule to that Act and of course the Minister for Finance has powers to extend the schedule to designated bodies. As I understand it, the position is that the full application of the Freedom of Information Act is expected to take place across all of the health agencies by the end of 2005.
I welcome the fact that this will be extended. I take it that that is a guarantee that it will be extended to include these two bodies.
Yes. These bodies will be within its scope.
This matter is not concerned with a poacher turned gamekeeper but a gamekeeper who is still a poacher. It concerns the managing director of a major pharmaceutical company in this country who has commercial interests to develop further the market for his company's products. What in God's name is the point of appointing such a person to the most powerful body in the health service reform programme? There is no representative of patients, doctors or nurses. Civil and public servants are included, with whom I have no difficulty, and a banker is in charge of the project, despite the fact that banks operate a cartel and which oversee a lack of information to customers, queues and the closure of small branches. It is not a great model, but that is by the bye. However, I have a problem with the managing director of a pharmaceutical company being the only person on the steering committee, other than public servants and the chairman. This will give him extraordinary power in the health service. The official response to this is that a protocol will look after the problem, but if we have to trust a protocol we are in a much worse situation than I thought.
The Minister of State did not answer the question on Arthur Cox. This company has a particular interest in driving litigation on behalf of tobacco companies. It promotes it. While what it does is legal, I have a problem with somebody from that sphere being appointed to a powerful role in health service reform at a time when the Government is taking away democratic accountability. Councillors will no longer serve on health boards. We cannot get a decent response on the health reform package from the Department. I asked how it would affect my local hospital and got a reply to a question I did not ask. I will try to obtain it under freedom of information legislation. What action can I then take if I still do not get the information I seek? In this instance I pleaded with the Ceann Comhairle, but he said the matter had nothing to do with him. I am not happy with the Minister of State's reply although I am glad that what is proposed in the amendment will be catered for.
No protocol will deal with a conflict of interest. I tried to raise the issue of accountability with the Minister in regard to the health services executive, which I believe will lead to less accountability in the House. People should be carefully chosen. The Minister of State used the word volunteer, as if a person had come forward and offered his or her services. The bottom line is that people are chosen. It is unfortunate and inappropriate that people are hand-picked for particular reasons. As the Opposition has said in regard to other matters, nothing should give rise to the creation of a conflict of interests.
I am not in a position to defend in detail the Minister's appointments in this matter because it does not arise from the Bill, but I do not wish the suggestion of a conflict of interest to go unanswered.
The appointments are a matter for other legislation.
I agree.
Amendment, by leave, withdrawn.
I move amendment No. 13:
In page 7, line 19, to delete "respect of'.
This is a technical legal amendment recommended by the Office of the Attorney General. It involves the deletion of the words "in respect of" in section 7(7). The provision will read, "premises which the person carries on" rather than, "premises in respect of which the person carries on".
Amendment agreed to.
I move amendment No. 14:
In page 9, between lines 22 and 23, to insert the following:
"(16) This section shall apply with any necessary modifications to the registration of tobacco manufacturers and importers.".
ASH sought this provision and there is no reason not to accept it. There is a great deal of emphasis in the Bill on people who sell cigarettes. I would have thought that the registration of tobacco manufactures and importers would be of value, particularly if, as is likely, there will be an increase in smuggling as the price goes up and restrictions become greater. It would be sensible to have registration of manufacturers and importers. More is involved in the process than the sale of cigarettes in a shop.
Section 37 of the principal Act provides for the registration by the Office of Tobacco Control of retailers of tobacco products. As the Deputy pointed out, the emphasis in the legislation is on the retailer and the proposed amendment relates to the additional registration of manufacturers and importers of tobacco products. Given the small number of manufacturers and importers of tobacco products, it is not worthwhile to establish and maintain an additional register, which gives rise to the issue of practicability. There is a total of three manufacturers or importers in the State.
In addition, section 37 of the principal Act imposes considerable responsibility on retailers to ensure they are complying with the laws relating to sales, particularly sales to minors. For example, an outlet may be removed from the register if the proprietor is convicted of any offence provided for in this Act. It would not be practicable for us to impose a similar penalty on manufacturers and importers. It would weaken the section in the context of a constitutional challenge.
I withdraw the amendment and reserve the right to reintroduce it on Report Stage.
Amendment, by leave, withdrawn.
Section 7, as amended, agreed to.
SECTION 8.
I move amendment No. 15:
In page 9, line 27, after "cigarettes" to insert "or such higher number as may be prescribed by the Minister".
This is a straightforward amendment relating to the size of cigarette packets. At present, a pack of 20 is the maximum size, but that may change in future. It may be desirable to increase the number, which will give the Minister flexibility. I always try to ensure the Minister has all the support he needs.
I appreciate the support. Perhaps we should have arranged for the Bill to be taken for ten minutes to be followed by a debate on the appointment to the health services executive.
That is an excellent idea. Is it possible?
Section 8(1) creates an offence to sell cigarettes by retail in packets of less than 20 cigarettes. The policy document, Towards a Tobacco Free Society, made a recommendation that cigarettes should only be sold in packets of not less than 20 on the basis that it maintained a high price level for the product. This was an important factor in deterring the purchase of cigarettes, particularly in deterring children from experimenting with tobacco. As we know, the majority of smokers become addicted in childhood and teenage years and price is an important factor in deterring young people from smoking. By increasing the minimum number of units which may be bought, we raise the price barrier higher for children at the experimental stage. The proposed ministerial enabling provision regarding cigarette packet size is too broad and may weaken this section of the Bill in the context of a constitutional challenge.
Amendment, by leave, withdrawn.
I move amendment No. 16:
In page 9, line 45. after "prescribed" where it secondly occurs to insert "or any sticker or packaging which is designed to cover the original packaging bearing the Government health warning".
I was prompted to put this amendment by an item on EuroNews which showed a number of stores in Spain and France where one could buy a covering packet for cigarette packets adjacent to the area in which cigarettes were sold in shops. The packets displayed "Smoking is cool" logos which had the effect of hiding the Government health warning. I understand this has become common practice. I spoke to people in ASH who told me that one could also buy stickers to put over the Government health warning. If we are dealing with cigarette shaped sweets, in order to be consistent we should also seek to address this phenomenon. This is important, but Deputy Mitchell is shaking her head.
What legislation is required to prevent people interfering with a packet of cigarettes?
My amendment addresses the problem.
I can see what the Deputy is trying to do.
Attempts are being made to place this kind of packaging in shops.
I have sympathy with what the Deputy is trying to do.
If so, the Deputy should try to support it and do something about the issue. I guarantee that the practice will come into this country as well.
Will it be an offence if I put a sticker over a packet of cigarettes?
It will not for the Deputy but it will for the shopkeeper who sells the sticker or packaging designed to cover the Government health warning.
The key contract is the contract to purchase the packet of cigarettes. There is no doubt that when that contract is taking place, one cannot put another sticker on the cigarette packet. It is clear under the legislation that the retailer cannot obscure the warning. Section 38(4) creates an offence for a person to import, sell or supply tobacco products that do not bear the health warning as may be prescribed by the ministerial regulations. That provision ensures the packet must have the labelling with the warnings and the relevant information. The Minister, as we know, can prescribe the form and type of these health warnings under the regulations.
The Deputy is proposing to prohibit the use of a sticker, cover or case which an individual may use for personal or aesthetic reasons after having purchased a packet of cigarettes. This is a separate matter and it is not open to us to legislate to regulate a citizen's right to buy an object in which to put a packet of cigarettes.
Perhaps the Minister of State misunderstands my intention. The amendment states it shall be an offence for a person to import or sell the packaging in question. I am talking about the vendor selling such packaging, not the individual's use of it. One has to target the person selling the product. As was shown in the news item I saw, packaging designed to cover cigarette packets was being sold beside cigarettes.
I do not think one can prohibit the selling of a cigarette case, which is essentially what the Deputy is arguing for——
It is designed to cover the Government health warning.
The health warning is on the packet and it is clear and transparent to the purchaser at the time of purchase.
The Government will either deal with this problem properly or not. Government health warnings should be much stronger and should include a large picture. My amendment is serious in intent and I ask the Minister of State to accept it on the basis of what I have seen happen in other countries.
We can consider it on Report Stage in the context of the vendor of cigarettes. However, what the Deputy is advocating has very far-reaching implications because, ultimately, consumers must have a right to buy objects apart from cigarettes in which to carry their cigarettes.
I am referring to objects designed primarily to cover the Government health warning with a message printed on them stating that smoking is cool. This is not a frivolous amendment. Deputy Olivia Mitchell found it amusing.
I did not. I understand what the Deputy is trying to do but it is impossible to regulate to the extent he desires.
I believe it is possible.
We will consider it again on Report Stage.
Will the Minister of State give an undertaking to consider this seriously?
We can do so on Report Stage. It is a matter for the Deputy to table the amendment. I will not give an undertaking to introduce an amendment because were we to so legislate we would encroach very seriously on the freedom of the individual.
That is not true. The Minister of State is encroaching on the individual anyway by telling him he cannot smoke.
In legislation of this kind, there must always be a question of degree and proportionality.
My amendment is not disproportionate in any way.
Amendment, by leave, withdrawn.
Section 8 agreed to.
Sections 9 and 10 agreed to.
SECTION 11.
I move amendment No. 17:
In page 11, line 40, to delete "7" and substitute "21".
This amendment is to substitute "21" for "7" in section 11, thus providing for the extension of the period during which tobacco manufacturers or importers may make an application to the High Court following notification from the Office of Tobacco Control that it proposes to publish information and test results regarding tobacco products. The period is extended from seven to 21 days on the recommendation of the Office of the Attorney General.
As the committee knows, we consulted other member states on this matter. It is one of the reasons there was a delay in the implementation of the tobacco ban in workplaces. Both Germany and Austria in their detailed opinions on 24 November 2003 expressed concerns about the time given to manufacturers to make these objections. To take account of this, we have extended the period from 7 to 21 days, which is still a very tight period in which to make an objection to the High Court. It does not impair the efficacy of the legislation. When a tight limit is specified in administrative legislation, the commoner period during which one can make an objection to the High Court is 21 days.
The purpose of the amendment is to meet objections or opinions, as they are called, put forward by other countries. The amendments we are now dealing with - some of which have been tabled by the Minister - are substantial. They arise not out of flaws in the original Bill or representations made by other countries. Are the substantial changes, which are being made for very good reasons, regarded as material changes in the Bill that will result in a further three month wait? Will they have to be reconsidered by the European Union?
No, we have consulted the EU Commission and the proposed amendments are not notifiable.
Does that include the amendments we considered earlier?
Yes.
Given that the Minister of State had time to consult the EU Commission, why did he not show us the amendments before this morning?
When amendments are in response to concerns raised by other member states, they do not fall within the scope of the notification procedure.
However, amendments are being proposed that do arise as a result of concerns raised.
They relate to the expression of principles and policies in the legislation where the matters were previously contained in statutory instruments. Although the decision on the subordinate legislation is under appeal to the Supreme Court, the Minister has decided, for reasons of prudence, to include principles and policies presupposed by the statutory subordinate legislation in primary legislation.
I have heard that many times. Is it not also prudent to go back to the European Union before we pass this into law?
It is unnecessary.
I hope the Minister of State is correct.
Amendment agreed to.
Section 11. as amended, agreed to.
Section 12 agreed to.
SECTION 13.
I move amendment No. 18:
In page 12, to delete lines 25 to 32.
It seems strange that cigarette vending machines are allowed in licensed premises although smoking is banned in those locations. There are concerns about the difficulties of controlling vending machines. There is a strict law governing the age at which young people can buy cigarettes. This should be reflected in the legislation as regards managing the sale of cigarettes at all times. While there are many controls on retailers, vending machines can be located in pubs, in which people are not supposed to be smoking. It would be wiser to prevent this, as my amendment proposes.
I hope section 13(2) has not been inserted in response to lobbying by those who sell cigarette vending machines. It is a dilution of the legislation because if we are to get tough on smoking, there should be no place for vending machines. There is no real control over them - one puts money in and gets cigarettes out - and I cannot see that the proprietor can monitor them in the way they should. The arguments made by Deputy McManus are valid, therefore, the section should be deleted.
It is interesting that the ban or prohibition of the sale of cigarettes is sought here. Section 43 of the principle Act provides for much tighter controls on access to tobacco vending machines. This was recommended in the tobacco-free society policy report. In effect, the sale of tobacco products by means of self-service vending machines will be banned and there will be offences for non-compliance. An exemption was made in section 43(2), which the amendment seeks to delete, in regard to vending machines being allowed in licensed premises and registered clubs such as discos and night clubs. It reflected the fact that vending in these premises is a well-established practice.
While there was a need for much tighter controls, the sale of tobacco products in licensed premises will only be from vending machines, activated for each sale by a unique coin or token available only from staff on the premises. The machines will have to have a locking device and be located in view of staff, which is not the current practice in all cases - some machines are not located within the view of staff, and can be accessed by underage persons. However, this will become impossible on the enactment of this legislation. While the smoking of tobacco products will be prohibited in enclosed work places, including licensed premises, the sale of cigarettes remains permissible.
If there is less access to vending machines, it will act as a deterrent. Either the Government is serious about this or it is not.
We are being very serious about it. This amendment proposes that we should simply prohibit the sale of cigarettes, for which we are not ready at this stage. We have made substantial progress on this legislation and to go the distance the Deputy advocates would be to go a very long way indeed.
Let us go a long distance.
I am not sure it is that long a distance. If the machine is any distance at all from the man or woman behind the bar, all it takes is a busy Saturday night when one cannot see what is going on at the machines. This is inconsistent because on the one hand there are all sorts of regulations, which many retailers would describe as penal - but they are necessary and we support them - while on the other hand, publicans are being put in the difficult position of ensuring no one is smoking in his or her pub. However, once any one has a token in his or her hand, if it is a busy night, he or she can buy cigarettes. I would have thought it is an easy way for people who should not be buying cigarettes to do so.
Unless there is a cordoned-off area along the line of vision between the bar staff and the machine, it will be difficult to stop people using them. It is hard to see the point of this provision, other than that it is a response to the lobbying by the owners of vending machines. The Minister has been subjected to a great deal of lobbying, but to ensure these legislative provisions are effective this is one form of lobbying he might have resisted. The Minister has had to take a great deal of flak and a little more would not have made a huge amount of difference in terms of ensuring this can work and the change can be managed.
From the tenor of Deputy McManus's comments in regard to the practical difficulties a publican or his or her staff might have, I began to think the Deputy had been lobbied in support of the amendment.
Let me make it clear that I am not speaking on behalf of publicans but on behalf of common sense.
On a busy Saturday night, children should not be on the premises after a certain hour. Therefore, the danger to which the Deputy averted of staff not being able to observe people using the machine would not arise.
One does not refer to as a child a 17 year old boy who has had a good diet and is six feet four inches.
No. However, these are all practical problems in regard to the implementation of legislation.
Exactly.
On this issue, the Minister has gone a long distance. To accept the amendment in the light of the prevalence of these machines in Irish retail outlets - in pubs and sports clubs and so on - would go a long distance towards a total prohibition of the sale of cigarettes.
I do not accept that.
Question put: "That the words proposed to be deleted stand."
The Committee divided: Tá, 4; Níl, 7.
Tá
- Gormley, John.
- McManus, Liz.
- Mitchell, Olivia.
- Neville, Dan.
Níl
- Curran, John.
- Devins, Jimmy.
- Fitzpatrick, Dermot.
- Kirk, Seamus.
- Lenihan, Brian.
- O’Keeffe, Batt.
- O’Malley, Fiona.
Question declared carried.
Amendment declared lost.
I move amendment No. 19:
In page 13, between lines 14 and 15, to insert the following:
"(5) (a) A person registered under section 37 may provide such information relating to a tobacco product sold by him or her to a member of the public intending to purchase a tobacco product as may be prescribed by regulations made by the Minister.
(b) Regulations under paragraph (a) may provide that the person registered under section 37 may——
(i) notwithstanding subsection (3), show the member of the public concerned one packet only of the tobacco product concerned, or
(ii) show the member of the public concerned a reproduction of such packet or visual image of such packet that is identical to the packet in size.".
This amendment provides that a retailer of tobacco products may provide such information relating to tobacco products sold to a member of the public intending to purchase a tobacco product as may be prescribed by regulations made by the Minister. These regulations may provide that the retailer may show the member of the public concerned one packet only of the tobacco product or a reproduction or visual image of such packet that is identical in size to the packet.
The amendment is in line with advice that the amending Bill should be used as an opportunity to strengthen the Act in a number of areas. The rationale of the amendment is that it tempers the closed container requirement so that the retailer is in a position to provide some information, as may be specified by the Minister, to the consumer prior to purchase. This would undermine the arguments made by the tobacco industry in the challenge to the 2002 Act to the effect that the closed container requirement completely precluded the communication of any information about a tobacco product to a consumer. It is a small concession which is being introduced to fireproof the legislation against legal challenge.
Amendment agreed to.
Section 13, as amended, agreed to.
SECTION 14.
Amendments Nos. 20 to 22, inclusive, are related and may be discussed together by agreement.
I move amendment No. 20:
In page 13, line 29, after "sign" to insert "which is clearly visible,".
There is an obligation to have a sign, but there are different kinds of signs. We are aware of problems with planning permission which result in people erecting signs that are not visible. The amendment specifies that the sign should be clearly visible. It speaks for itself.
The Government amendments I intend to move deal with the correct numerical sequencing of the Bill. In the matter of the display of signs, section 46 provides that the occupier or person in charge of a premises to which the public has access shall ensure that a sign is displayed at all times on the premises which clearly indicates the parts of the premises in which smoking is prohibited and that any designated smoking areas on the premises must also be clearly indicated by a sign. All signs must display the name of the occupier or other person in charge of the premises and the name of the person to whom a complaint may be made by a member of the public who observes a person smoking in a designated non-smoking area.
Deputy Gormley has proposed amendment No. 6 to provide that the signs must be clearly visible. The requirement of visibility is implicit in the text as it stands and the expression "displayed" in the existing provision entails a requirement of clear visibility. A display must by definition entail clear visibility. It is the responsibility of the occupier or other person in charge to ensure the signs are clearly visible through the display which he or she is legally required to provide.
Amendment, by leave, withdrawn.
I move amendment No. 21:
In page 14, line 1, after "(1)" to insert "or (2)".
Amendment agreed to.
I move amendment No. 22:
In page 14, line 4, to delete "(2)" and substitute "(3)".
Amendment agreed to.
Section 14, as amended, agreed to.
NEW SECTION.
Amendments Nos. 24 and 25 are related to amendment No. 23, therefore, amendments Nos. 23 to 25, inclusive, will be taken together by agreement.
I move amendment No. 23:
In page 14, before section 15, to insert the following new section:
15. - The Principal Act is amended by the substitution of the following section for section 47:
'47.- (1) Subject to subsection (8), the smoking of a tobacco product in a specified place is prohibited.
(2) A person who contravenes subsection (1) shall be guilty of an offence.
(3) Where in relation to a specified place there is a contravention of subsection (1), the occupier, manager and any other person for the time being in charge of the specified place concerned shall each be guilty of an offence.
(4) In proceedings for an offence under this section, it shall be a defence for a person against whom such proceedings are brought to show that he or she made all reasonable efforts to ensure compliance with this section.
(5) The Tobacco (Health Promotion and Protection) Regulations 1995 (S.I. No. 359 of 1995) are revoked.
(6) This section has been enacted for the purposes of reducing the risk to, and protecting the health of, persons.
(7) In this section-
"college" means a university, institute of technology or other establishment at which third level education is provided;
"health premises" means any hospital, sanatorium, home, laboratory , clinic, health care centre or similar premises required for the provision of services under the Health Acts 1947 to 2001 provided and maintained by a health board under section 38 of the Act of 1970;
"hospice" means an institution-
(a) for the maintenance of, and
(b) in which palliative care is provided to,
persons (a majority of whom are over 18 years of age) who suffer from illnesses or diseases which are active, progressive and advanced in nature and which are no longer curable by means of the administration of existing or available medical treatments, but does not include-
(i) an institution in which a majority of the persons being maintained are being treated for acute illnesses, or
(ii) a maternity home within the meaning of the Registration of Maternity Homes Act 1934;
"nursing home" has the same meaning as it has in the Health (Nursing Homes) Act 1990, except that it includes-
(a) an institution to which paragraph (a), (e) or (g) of section 2(1) of that Act applies, and
(b) a premises in which a majority of the persons being maintained are members of a religious order, or priests or clergy of any religion;
"place of work" has the same meaning as it has in the Safety, Health and Welfare at Work Act 1989;
"prison" means a place of custody administered by the Minister for Justice, Equality and Law Reform, and includes-
(a) Saint Patrick’s Institution,
(b) a place provided under section 2 of the Prisons Act 1970,
(c) a place specified under section 3 of the Prisons Act 1972, and
(d) any part of a Garda Síochána station used for the detention of persons;
"psychiatric hospital" means-
(a) a mental institution within the meaning of the Mental Treatment Acts 1945 to 1966, or
(b) an approved centre under the Mental Health Act 2001;
"Saint Patrick's Institution" has the same meaning as it has in the Criminal Justice Act 1960;
"school" has the same meaning as it has in the Education Act 1998;
"specified place" means-
(a) a place of work,
(b) an aircraft, train, ship or other vessel, public service vehicle, or a vehicle used for the carriage of members of the public for reward other than a public service vehicle, insofar as it is a place of work,
(c) a health premises, insofar as it is a place of work,
(d) a hospital that is not a health premises, insofar as it is a place of work,
(e) a school or college, insofar as it is a place of work,
(f) a building to which the public has access, either as of right or with the permission of the owner or occupier of the building, and which belongs to, or is in the occupation of-
(i) the State,
(ii) a Minister of the Government,
(iii) the Commissioners of Public Works in Ireland, or
(iv) a body established by or under an Act of the Oireachtas,
insofar as it is a place of work,
(g) a cinema, theatre, concert hall or other place normally used for indoor public entertainment, insofar as it is a place of work,
(h) a licensed premises, insofar as it is a place of work, or
(i) a registered club, insofar as it is a place of work.
(8) This section shall not apply to——
(a) a dwelling,
(b) a prison,
(c) subject to paragraph (d), a place or premises, or a pan 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% 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.”.
This is a substantial amendment. The Minister was advised by the Attorney General that the provisions for smoke-free workplaces should be introduced by means of primary legislation in this Bill rather than through secondary legislation by way of regulations. This will strengthen the Bill in the face of any legal challenge. It necessitated the redrafting of section 47 of the principal Act to include those specified places where the smoking of tobacco products is prohibited. These were the places specified in the regulations made by the Minister and the draft regulations notified to the European Commission in accordance with the transparency directive. This amendment provides for the deletion of the catch-all ministerial enabling provision regarding the prohibition or restriction of smoking in public places. In effect, the principles and policies of the regulations have been transposed into the primary legislation itself.
The amendment is in line with the advice of the Attorney General and has been drafted in light of recent case law. The particular decision of the High Court, however, relating to the aliens legislation is under appeal to the Supreme Court and the State has not given up the ghost on that issue. However, we have done so for the purposes of this legislation because of the possibility of a legal challenge.
What is the Minister doing? We know that he is anxious to ensure the legislation is robust and cannot be challenged but he should have consulted the Attorney General before the fourth attempt to see if the regulations should be in primary legislation.
This new section makes a substantial change to the primary legislation and relates to my amendments. In section 15(3), where in a specified place there is a contravention of section 15(1), the occupier, manager and any other person for the time being in charge of the place concerned shall be guilty of an offence. Should that not read "or any other person"? Is the manager responsible for someone smoking in Ballyfermot if he is playing golf in Florida? Is it a mistake? Does this suggest that everyone is guilty of an offence?
Section 15(4) is an attempt to deal with an issue I raised on Second Stage, proceedings for an offence under this section. I was thinking particularly of publicans because, uniquely, the owners of premises will be responsible for the first time under any law. The publican will be responsible for the actions of others. I am anxious that if we do place this extraordinary culpability on publicans for the actions of others and will imprison them, or charge a considerable fine and find them guilty of a criminal offence, at least they should have the right to know their responsibility.
The Bill states that it will be a defence for a person against whom such proceedings are brought to show that he or she made all reasonable efforts. That does not go far enough. I want clarity, something publicans have a right to expect so they can avoid proceedings through knowing exactly what are their responsibilities. Circumstances are different in a workplace where drink is involved because the relationship between an employer and employee is different from that of a publican and a customer. The employer has some control over the actions of an employee but in the case of a publican and his customer, there is a limit to what we can expect him to do to admonish a customer. I presume he does not have to use physical force. If someone objects to being asked to stop smoking and has had too much to drink, the responsibility of the publican must be clear in law. It is very unusual. Could the Minister name a single case in the entire body of law where one person is asked to take responsibility for the actions of another?
This area of enforcement is wide open in the Bill. The Minister is trying to make things water tight but the enforcement area is full of holes. I have raised this issue with the health and safety officers, the Office of Tobacco Control, the Department, the environmental health officers and no one knows what will happen. There will be two different enforcement regimes. Enforcement under the regulations will be carried out by the environmental health officers under this legislation in the hospitality and some other industries, where the law is laid down and a fine made clear, but when it is enforced by health and safety officers, it will be under their regulations and could involve a prison term. Not only will there be two regimes of enforcement, but two regimes of penalties. The memorandum of understanding has no legal standing, it simply states that the two bodies will co-operate. The law concerning one group of premises, however, is completely different from the law concerning another. If the Bill is to withstand challenge, this area must be addressed.
We are placing publicans in an invidious position. In the long run, this legislation will be self-enforcing and people will eventually accept it but it is wide open to challenge if publicans must use reasonable force. What is reasonable? It must be defined. Publicans are not police men or health and safety officers, they have no formal training. Guidelines will be issued but this should be defined in law, it cannot be sent around in booklet form. Otherwise, the regulations are open to abuse by people who hold a grudge. It is completely untenable to place this onus on the owner of any premises.
It is late in the day to introduce such a comprehensive amendment. Subsection (8)(d) defines an outdoor part of a place or premises as “covered by a fixed or movable roof, provided that not more than 50% 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),”. I am trying to imagine such a structure, it sounds like a builder’s specification.
We are prohibiting smoking in the indoor area but, on reading this, publicans will be ready to build the outdoor section under a fixed or movable roof. It sounds like a semi-beer garden but when one wants to sit in a beer garden on a summer's day for fresh air there will be people coughing smoke in one's face.
It is shocking.
Yes it is shocking and it is unacceptable. Am I imagining this or is it the case? Is this what the Minister envisages?
It probably is. While it is difficult to get this right in legislation the manner of dealing with this matter does not inspire confidence. Initially we were told that the regulations would deal with it and there would be two sets, from the Department of Health and Children, and from the Department of Enterprise, Trade and Employment which took different approaches. The Department of Enterprise, Trade and Employment draft regulations seem to create various problems. However, they have been removed and now the matter is unclear. Certain places have been exempt, such as dwellings and places where people sleep and so on. It is understandable that they are exempt but what happens to the staff working in them? There is a high level of smoking, for example, in psychiatric hospitals and prisons.
One issue emerging since this debate began was the potential litigation from workers affected by secondary smoking. What protection is there for those people and who enforces it? What is required of people managing those institutions? The Minister said that the tobacco control office had the authority to draw in help from the Health and Safety Authority, at least that is my understanding. Environmental health officers operate only where there is food and drink. Will they also monitor the other locations, and how many additional officers will be employed? The Minister mentioned that there are only 40 enforcement officers in Boston but Ireland is a country not a city. The health and safety officers are already overloaded with work to a disturbing degree, for example, construction sites are still very dangerous. One of my constituents died in a construction accident in the past week. What additional resources will be available for the enforcement, presumably by health and safety officers, of this legislation? Does the authority come from the tobacco control office and, if not, from where does it come?
Deputy Mitchell referred to the changes in the legislation. It must be remembered that the court decision necessitating this section was handed down a few weeks ago so it is rather unfair to castigate the Minister for not foreseeing this. The Minister was accused of lacking the foresight to get it right the first time. This has been a consistent Opposition criticism.
The Minister of State may be right about this but he said that the Minister took the advice of the Attorney General.
He did so in recent days and in the light of recent judicial decisions.
Should he not have taken the Attorney General's advice long before that?
He took the advice of the Attorney General at all stages but the Attorney General vigorously contested the High Court proceedings which resulted in the condemnation of the immigration legislation and set the precedent that the scope of ministerial powers on subordinate legislation is now restricted. In light of that decision the Minister was obliged to introduce this section so neither he, nor by extension the Attorney General, can be criticised for a lack of foresight regarding a High Court judgment which went against the considered opinion of the Attorney General. There will be two regimes, one involving the environmental health officers, the other for health and safety, which cover different types of work place. Advice has been taken on that issue to the effect that it is in order and not susceptible to any challenge.
Deputy Mitchell moved an amendment with which I would like to deal in the context of what is reasonable for a person in the licensed trade. The proposed amendment concerns the reasonable efforts of an occupier-manager to ensure compliance in regard to smoking in a smoke-free premises but this provision is already contained in section 47 of the principal Act. Section 47 (5) provides a defence for a person against whom proceedings are brought. It covers all reasonable steps which the person takes to ensure compliance with the provisions in the regulations in regard to an alleged contravention. A member of bar staff, for example, is not obliged to put her or his life or person in jeopardy in ensuring compliance with the regulations, and there is ample provision for that in existing legislation. The guidelines which the office of the tobacco controller is finalising will address the issue of difficulty of compliance. These will be ready within a week.
Do they have any statutory basis?
No, they are purely for guidance, they are not an authoritative legal interpretation. A defence is available and I have referred Deputy Mitchell to it. The Deputy's suggestion is very unusual in requiring persons to have a legal responsibility for the conduct of another but this is a commonplace in the context of the management of licensed premises.
Can the Minister of State give me an example of that?
There are various obligations under the licensing code imposed on licence holders and their employees in terms of the order and character of a premises.
What are they obliged to do?
To restrain customers and maintain good order; these matters are set out in some detail in the licensing code.
My point regarding a defence is that one should not have to go to court. If we make a new law we should make it clear. It should not be necessary to send proprietors a book of guidelines. It must be clear when one places an onus on someone to prevent another from doing something that it is prohibited in law. What is it reasonable to expect them to do? Is it a verbal arrangement, to the effect that the publican refuses to serve drink unless the customer ceases to smoke, or does the publican threaten to beat the customer over the head because he or she is smoking? How far does one have to go?
No one has to beat anyone.
I know that but we must express in law what the publican must do.
What is reasonable in a court of law is what is reasonable in the circumstances. It is not possible for the Oireachtas to legislate in advance for all the circumstances and for a comprehensive definition of reasonable——
There is only one circumstance, namely how far the publican must go. It is not reasonable to say that a publican must go to court to defend what she or he sees to be reasonable.
The prosecuting authorities are well aware that there is a defence of reasonableness and no prosecution would be brought to court unless the limit of reasonableness had been exceeded.
Is the Minister of State saying that unreasonable cases never go to court? We are asking a great deal of publicans here. They will be the front line of defence if there are only 40 environmental health officers to enforce the law. The onus is on the publicans who in turn put an onus on their customers, with whom they must foster a good relationship in the hope of retaining their goodwill. It is reasonable to say what they must do and how far they must go.
The guidelines will be available in a few days. I thank the licensed trade and those who have indicated they will work with us. We argued over this legislation but the trade has made it very clear that it intends to work with us on it. This is new legislation and the ideal is that different parties, the environmental health officers, and those involved in the licensed trade can work together in implementing the legislation and establish reasonable guidelines.
I cannot see environmental health officers running to the courts unless patterns of misbehaviour in implementing the legislation emerge. The focus will be to ensure that we can work together to create a climate where this does not happen. Publicans will routinely remove all of the cigarette trays from their premises at the commencement of the legislation. Staff will make courteous requests of persons who insist on smoking, not to. The matters will be clarified in greater detail in the guidelines. Rather than looking at the long arm of the law, we would look at the example set by the legislation and to see that the industry will support it and ensure its implementation.
There will be a meeting of minds and I accept that not everyone will fight this legislation. However, there will be confrontation and we owe it to publicans who will be at the front-line to make it clear how far they are expected to go in implementing the regulations.
Deputy Mitchell expressed concern about the expression "the occupier, manager and any other person for the time being". That is in the existing regulation and is a direct transposition. The subsection continues "shall each be guilty of an offence." The word " each" later in the sentence means that it is a distinct offence committed by each person. That means it is not a collective offence.
Yet if they are not there, they can each be liable. For example, if the manager is away playing golf in Florida, is he still be liable?
The occupier would only be liable if the——
Should the word "or" be inserted?
——the whole system is in place.
It should be "or".
I will examine the matter for Report Stage. I am a little concerned with inserting the word "or" as it may result in the Deputy's more far-reaching interpretation. The matter is not clear cut.
Deputy Gormley raised a point about the term "specified place" and the burden of his comments related to the beer garden exemption. That is the existing regulation and it will be restated in the legislation. The Deputy was correct in stating that the facility is possible under the legislation.
My concern is that the entire beer garden could be given over to smokers with no place for non-smokers. As legislators we can make this state of affairs possible or impossible. I am proposing that a section of the beer garden should be given over to non-smokers.
The Deputy has raised the issue on Committee Stage and can table an amendment to that effect on Report Stage.
Would the Minister of State be amenable to such an amendment?
I would have to look at the issues involved as the proposal was only made today.
The definition also applies to a bedroom in a premises registered under Part 3 of the Tourist Traffic Acts 1939 and 1957. I assume that is to accommodate bed and breakfast and hotel establishments that have expressed concerns about the definition.
Yes, and considerations of practicability were taken into account for bedrooms. If hotel rooms were exempt, it would be unfair to have guesthouses singled out.
I will table an amendment on Report Stage. In the case of hotels, the legislation creates the possibility of having smoking and non-smoking bedrooms. I am proposing that there should be a section in the outdoor section of pubs which would be available for non-smokers. It is a reasonable request.
We will examine it on receipt of the Deputy's amendment. Deputy McManus is concerned that the manner of the implementation of this legislation does not inspire confidence. However, there are over 100 inspectors attached to the Health and Safety Authority. That inspectorate, in the course of visits to workplaces, will monitor compliance with the smoke-free requirements. The inspectors operate largely in the non-hospitality sector. However, for the hospitality sector, the provision of environmental health officers has been discussed.
Deputy McManus also referred to staff at psychiatric hospitals and prisons where there are exemptions. The Department will issue guidance to management in these institutions on how to minimise risk to staff involved
Will it be guidelines or regulations?
It will be guidelines.
I hope they will be issued soon because it is already being implemented and causing problems in some homes. How does the Department deal with the potential litigation from staff?
We cannot predict future litigation in any area. I note Deputy Gormley's question on how the Bill proposes to retain section 34 of the principal Act which provides for the granting of exemptions from the national advertising ban for low volume foreign magazines and newspapers. Following the adoption of the 2003 EU advertising directive, these exemptions for foreign publications are no longer required. Accordingly, section 34 of the principal Act is being repealed.
French or German magazines, say, will no longer carry those advertisements.
Yes, because of the EU directive.
Amendment agreed to.
SECTION 15.
Amendments Nos. 24 and 25 not moved.
Section 15 deleted.
Sections 16 to 19 inclusive, agreed to.
Schedule agreed to.
Title agreed to.