"Restricted premises orders: no tobacco in retail area

Executive Committee Business – in the Northern Ireland Assembly at 3:45 pm on 3rd December 2013.

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9B. (1) This section applies where—

(a) a restricted premises order has effect in respect of premises ("the relevant premises”); and

(b) a person ("P”) carries on a retail business at the relevant premises.

(2) P must, no later than the day after the date on which the restricted premises order has effect, ensure that no tobacco or cigarette papers are in the retail area of the relevant premises.

(3) Subsection (2) does not apply to tobacco and cigarette papers in the retail area of the relevant premises which an individual may have for his or her own use.

(4) In this section "retail area” means any part of the relevant premises used for the serving of customers or the display of goods."— [Mr Poots (The Minister of Health, Social Services and Public Safety).]

No 27: In clause 10, page 6, line 37, at end insert—

"(6A) If a person fails, without reasonable excuse, to comply with section 9A(2), the person commits an offence."— [Mr Poots (The Minister of Health, Social Services and Public Safety).]

No 28: In clause 10, page 6, line 37, at end insert—

"(6B) If a person fails, without reasonable excuse, to comply with section 9B(2), the person commits an offence."— [Mr Poots (The Minister of Health, Social Services and Public Safety).]

No 29: In clause 10, page 7, line 4, at end insert—

"(d) subsection (6A) is liable on summary conviction to a fine not exceeding level 3 on the standard scale;"— [Mr Poots (The Minister of Health, Social Services and Public Safety).]

No 30: In clause 10, page 7, line 4, at end insert—

"(e) subsection (6B) is liable on summary conviction to a fine not exceeding level 5 on the standard scale."— [Mr Poots (The Minister of Health, Social Services and Public Safety).]

No 31: In clause 12, page 7, line 14, leave out from ‘the proper’ to the end of line 15 and insert

"ascertaining whether any of the following offences is being or has been committed on the premises and, if so, by whom—

(i) an offence under section 10;

(ii) an offence under Article 3, 4 or 4A of the Health and Personal Social Services (Northern Ireland) Order 1978;

(iii) an offence under Article 4, 4A or 5 of the Children and Young Persons (Protection from Tobacco) (Northern Ireland) Order 1991;".— [Mr Poots (The Minister of Health, Social Services and Public Safety).]

No 32: In clause 12, page 7, line 34, leave out from "of the proper" to the end of line 34 and insert "mentioned in subsection (1)(a)."— [Mr Poots (The Minister of Health, Social Services and Public Safety).]

No 33: In clause 12, page 7, line 37, leave out from "of the proper" to "this Act" in line 38 and insert "mentioned in subsection (1)(a)".— [Mr Poots (The Minister of Health, Social Services and Public Safety).]

No 34: In clause 13, page 8, line 21, leave out from "an offence" to the end of line 24 and insert—

"(a) an offence under section 10(1), (2), (3), (6A) or (6B),

(b) an offence under Article 3, 4 or 4A of the Health and Personal Social Services (Northern Ireland) Order 1978,

(c) an offence under Article 4, 4A or 5 of the Children and Young Persons (Protection from Tobacco) (Northern Ireland) Order 1991,".— [Mr Poots (The Minister of Health, Social Services and Public Safety).]

No 35: In clause 16, page 10, line 29, leave out "3" and insert "5".— [Mr Poots (The Minister of Health, Social Services and Public Safety).]

No 36: After clause 16 insert—

"Council’s duty to share information about enforcement

16A. (1) Every council must make available to every other council, the registration authority and the Department such information relating to—

(a) fixed penalty notices given in respect of tobacco offences committed in the district of that council,

(b) convictions in respect of tobacco offences committed in the district of that council, and

(c) restricted premises orders and restricted sale orders made on an application by that council, as the other council, the registration authority or, as the case may be, the Department may require.

(2) Information made available under subsection (1) to a council or the registration authority may be used by the council or the registration authority only for the purpose of enabling it or assisting it to perform its functions under this Act.

(3) In this section "tobacco offence” has the meaning given in section 7(14)."— [Mr Poots (The Minister of Health, Social Services and Public Safety).]

No 37: In clause 18, page 11, line 1, leave out subsection (2) and insert—

"(2) In Article 3(3) (prohibition on sale of tobacco, etc. to persons under 18) for "level 4” substitute "level 5”.".— [Mr Poots (The Minister of Health, Social Services and Public Safety).]

No 38: In clause 18, page 14, line 38, leave out subsection (3) and insert—

"(3) After Article 4 insert—

"Purchase of tobacco on behalf of persons under 18

4A. (1) A person aged 18 or over who knowingly buys or attempts to buy tobacco or cigarette papers on behalf of a person under the age of 18 shall be guilty of an offence.

(2) A person guilty of an offence under paragraph (1) is liable on summary conviction to a fine not exceeding level 5 on the standard scale.”’.— [Mr Poots (The Minister of Health, Social Services and Public Safety).]

No 40: In clause 23, page 17, line 9, leave out subsection (3) and insert—

"(3) Paragraph (aa) of section 2(3) does not apply in relation to an offence mentioned in that paragraph which is committed before the commencement of that paragraph.

(4) Paragraph (b) of section 4(2) does not apply in relation to an offence mentioned in that paragraph which is committed before the commencement of that paragraph.

(5) Section 12 does not apply in relation to an offence mentioned in section 12(1)(a) which is committed before the commencement of that section.

(6) Section 13 does not apply in relation to an offence mentioned in section 13(1) which is committed before the commencement of that section.

(7) Subsection (2) of section 18 does not apply in relation to an offence which is committed before the commencement of that subsection."— [Mr Poots (The Minister of Health, Social Services and Public Safety).]

No 42: In the long title, leave out

"to confer additional powers of enforcement in relation to offences under Articles 3 and 4 of the Health and Personal Social Services (Northern Ireland) Order 1978;"

and insert

"to amend the Health and Personal Social Services (Northern Ireland) Order 1978; to confer additional powers of enforcement in relation to offences under that Order and the Children and Young Persons (Protection from Tobacco) (Northern Ireland) Order 1991;".— [Mr Poots (The Minister of Health, Social Services and Public Safety).]

As the Bill was introduced, three relevant offences had to be committed within a three-year period before a council could apply to a court for a restricted premises order or a restricted sale order.  Amendment Nos 21 and 24 allow instead for an application to be made following three offences within five years.  That will remove some pressure from councils and should act as a greater deterrent for retailers from making underage sales.  Once again, the amendments were made at the suggestion of Committee members, and I believe that they strengthen the Bill and am accordingly grateful.

Amendment No 22 allows for the inclusion of an offence of selling illicit tobacco as one of three offences that could lead to a restricted sale or premises order.  The illicit tobacco trade seriously undermines tobacco control measures put in place by my Department.  Therefore, I am grateful to the Health Committee for suggesting the measure, and I am pleased to propose it as an amendment at this stage.

Amendment Nos 25 and 26 also arose out of discussions held at Committee Stage.  Both apply to circumstances where a retailer is subject to a restricted premises order.  The former requires a retailer to display a notice stating the period of the order.  The latter requires that all tobacco products should be removed from the retail area of the shop, thereby removing temptation for a retailer to make a sale whilst under a banning order.  Amendment Nos 27 to 30 insert provisions creating offences and penalties in relation to amendment Nos 25 and 26.

Amendment Nos 31 to 34 are being proposed in order to consolidate in one place in the Bill, under clause 12, the enforcement provisions relating to powers of entry, fixed penalty notices and the obstruction of officers.

Amendment No 35 raises the fine for obstructing an officer from level 3 to level 5 on the standard scale of fines for offences punishable on summary conviction only.  Level 5 is a fine not exceeding £5,000.  Similarly, amendment No 37 raises the fine for selling tobacco to a person under the age of 18 from level 4 to level 5.  Both of those amendments were suggested by the Health Committee during its scrutiny of the Bill, as it was considered that a level 5 fine was more appropriate.  In addition, amendment No 37 removes the existing subsection (2) from clause 18, as those provisions have been included now under clause 12.

Amendment No 36 places a duty on councils to share information with each other, the registration authority and the Department.  That requirement, which was suggested by the Health Committee, will assist enforcement of the legislation, and I am thankful to Committee members for their input.

Amendment No 38 removes clause 18(3) as it is no longer required as a result of amendment Nos 31 to 34.  It also inserts a new subsection, which, again, came about as a result of discussions at Committee Stage.  The new subsection makes it an offence for an adult to purchase tobacco products on behalf of a person under the age of 18.  Studies show that a considerable proportion of young people obtain tobacco from either friends or relatives.  Creating an offence of proxy purchasing should help to prevent that.  I thank Committee members for suggesting the amendment.

Amendment No 40 relates to clause 23.  It provides that named sections of the Bill, relating to offences, apply only from when those sections are commenced.

Members will have noted on the Marshalled List my intention to oppose the Question that clause 11 stand part of the Bill.  The amended clauses 12 to 16 contain sufficient powers to enable authorised officers to enforce the legislation.  Therefore, the general provision included in clause 11 is no longer needed.

As a result of all of the amendments that I have outlined in groups 1 and 2, the scope of the Bill has changed slightly.  That has required a substantial amendment to the long title.

Photo of Maeve McLaughlin Maeve McLaughlin Sinn Féin 12:00 am, 3rd December 2013

Go raibh maith agat, a Cheann Comhairle.  I will now comment on the second group of amendments.

Amendment Nos 20 and 23 relate to the period for which restricted premises orders and restricted sales orders can be made.  As drafted, the Bill does not specify a minimum period for a restricted premises order or a restricted sales order.  Some stakeholders, such as the Chief Environmental Health Officers Group, were concerned that that would result in the courts issuing very short orders for a number of days or weeks that would have little impact on those convicted.  The Committee learned that, in the South, no minimum period is specified, and courts there have issued some very short orders.  Furthermore, the Department advised that, while there is no minimum period in the Scottish legislation, officials there are considering introducing one because of the short length of the orders that are being made.

The Bill, as drafted, specified that the maximum period for an order is one year.  Some stakeholders, including the cancer charities, suggested that that should be increased to three years. The Committee learned that, in the South, the maximum period is 90 days; in Scotland, it is two years; and, in England and Wales, it is one year.  The Department proposed amendments to clauses 7 and 8 to state that the duration of restricted premises and restricted sales orders must be at least 28 days and may not exceed three years.  The Committee was content with that approach.  It, therefore, welcomes amendment Nos 20 and 23.

Amendment Nos 21 and 24 relate to the threshold for a court to be able to impose either a restricted premises or a restricted sales order.  As drafted, the Bill states that three offences committed in three years will result in a restricted premises order or restricted sales order.  However, given the frequency of test purchasing exercises, the Committee suggested that three offences in five years would be more realistic in securing a restricted premises order or a restricted sales order and would act as a better deterrent.  Councils, via NILGA, advised that they were content with that suggestion.  The Department responded by saying that it was in favour of the Committee's suggestion.  It proposed amendments to clauses 7 and 8 accordingly.  The Committee was content with the Department's approach and welcomes amendment Nos 21 and 24.

Amendment No 22 relates to illicit tobacco offences.  The Committee was of the view that an illicit tobacco offence should count towards the three offences that result in a restricted premises order or a restricted sales order under clause 7(14).  The Committee raised the issue during the introductory scrutiny of the Bill, and, at Second Stage, the Minister gave an undertaking that he would consider the matter further.

At the Committee meeting on 15 May 2013, officials agreed to look at an amendment to include reference to offences committed under the Tobacco Products Duty Act 1979 and the Customs and Excise Management Act 1979.  In considering the issue, the Committee sought information on what sort of behaviour someone would have to be engaged in for HMRC to seek a prosecution for illicit tobacco.  The Committee learned that, in the North, HMRC uses the Customs and Excise Management Act 1979 to seek prosecutions for illicit tobacco.  In a letter dated 26 July 2013, the Minister advised that there were five convictions under that Act in 2012.  One was for smuggling over eight million cigarettes; two were for smuggling 200,000 cigarettes; and two were for smuggling 330,000 cigarettes.  The Committee was satisfied that illicit tobacco offences related to a serious level of criminal activity.

The Department agreed with the Committee's thinking.  It proposed an amendment to clause 7 to extend the definition of tobacco offences to include certain offences under the Customs and Excise Management Act 1979 and the Tobacco Products Duty Act 1979.  That is covered by amendment No 22 and is welcomed by the Committee.

Amendment No 25 requires businesses that are subject to a restricted premises order to display a notice to that effect.  The cancer charities and the councils advised the Committee that, in Scotland, a business that is subject to a restricted premises order has to display a notice.  The Committee believed that this would act as a good deterrent, as well as making the public aware that a premises had broken the law.  The Department agreed with the Committee’s position and proposed an amendment to clause 9, with associated offences and penalties created in amendments to clause 10.  The relevant amendments are Nos 25, 27 and 29, which the Committee supports.

Amendment No 26 requires that, when a business is subject to a restricted premises order, it is not allowed to display tobacco in the retail area.  A number of stakeholders suggested to the Committee that, when a restricted premises order is in place, the retailer should be required to remove tobacco products from the premises to prevent any inadvertent breach of the order and to make it easier for councils to check that a premises was complying with the order.  When the Committee put this suggestion to the Department, it advised that it would be more reasonable to require that the tobacco products should be removed from the retail area rather than the premises entirely.  The Department reasoned that there are security issues with requiring the retailer to have to remove tobacco from the premises entirely.  If a retailer was forced to store the tobacco at a private dwelling, it could make them the target of a break-in.  The Committee believed that this was a reasonable approach and agreed with the Department’s amendment to clause 9 and the amendments to clause 10, which create associated offences and penalties.  The relevant amendments are Nos 26, 28 and 30, which the Committee supports.

The Minister intends to oppose clause 11, given the amendments that he is proposing to clauses 12 to 16.  The Committee supports the Minister’s opposition to clause 11.  Amendment Nos 31, 32 and 33 all amend clause 12 in order to consolidate in one place in the Bill the powers of entry of authorised officers.  The Committee supports those amendments.

Amendment No 34 allows councils to issue fixed penalty notices for a wider range of offences than were originally included in the Bill.  In particular, the councils and the charities were keen that fixed penalty notices should be available regarding sales from vending machines.  The Department agreed with this thinking and has proposed an amendment that will do that, as well as allowing for fixed penalty notices for selling unpackaged cigarettes and failure to display a warning sign.  The Committee, therefore, welcomes amendment No 34.

Amendment No 35 concerns the level of fine for obstructing a council officer.  The Bill, as drafted, stipulates a fine not exceeding level 3 of £1,000.  However, the councils suggested to the Committee that a level 5 fine — a maximum of £5,000 — would be more appropriate.  When questioned on this issue, the Department responded that a level 3 fine is the standard fine for this type of offence in other legislation and, therefore, a level 3 fine should apply in the Bill.  However, the Committee proposed that, if this was the case, thought should be given to amending other legislation to bring it into line with the level of fine that was decided on in the Bill for obstructing an officer.  After consideration, the Department proposed an amendment to clause 16 to make the fine for obstructing an authorised officer one not exceeding level 5.  The Committee was content, and we support amendment No 35.

(Mr Principal Deputy Speaker [Mr Mitchel McLaughlin] in the Chair)

Amendment No 36 creates a new clause regarding the duties on councils to share information about enforcement.  The issue of enforcement was raised by the councils and the cancer charities.  They were concerned that the Bill was not drafted in such a way as to ensure that all the relevant information is shared by all the relevant agencies in order to ensure that this legislation can be properly enforced.  They were in favour of the creation of one central information point, which brings together details of people who have been convicted of or given fixed penalty notices for tobacco offences, details of who is subject to restricted premises orders and restricted sales orders, and details of people who have been convicted of illicit tobacco offences.  After consideration, the Department agreed to amend clause 16 to create a duty on councils to share with other councils, the registration authority and the Department details of fixed penalty notices, convictions, and restricted premises orders and restricted sales orders.  The Committee was content with that proposed amendment.

In relation to the issue of how information on people who have been convicted of illicit tobacco offences would be shared, the Department explained that it could not use the Bill to require HMRC to share details of illicit tobacco convictions with the councils.  The Department advised that it was working with the Department of Justice to develop a protocol between HMRC and local councils in the North so that details of convictions would be shared.  The councils would subsequently share that information with the registration authority.  Again, the Committee was content with those arrangements, and we therefore support amendment No 36.

Amendment No 37 deals with the level of fine that can be applied to someone caught selling tobacco to a person under 18.  The councils and the cancer charities alerted the Committee to the fact that the current fine does not exceed level 4, or £2,500.  They argued that that is too low to act as a real deterrent against selling tobacco to a child.  In their view, a level 5 fine of £5,000 would be more appropriate.  The Committee put that suggestion to the Department, which accepted it and agreed to make an amendment to clause 18.  The Committee therefore supports amendment No 37.

Amendment No 38 creates an offence of proxy purchasing and is welcomed by the Committee.  The retailers and manufacturers, as well as the cancer charities, proposed that the Bill should be amended to create an offence for an adult to purchase tobacco on behalf of someone under 18.  That offence has been introduced in Scotland and is known as proxy purchasing.  The Department initially made the point that the enforcement of a provision on proxy purchasing by tobacco control officers would be very difficult.  The officers would need to observe children giving money to an adult and the adult going into a shop.  They would need to stop that adult and seek his or her identity.  However, after consideration, the Department proposed an amendment to clause 18 to create an offence in relation to proxy purchasing, with a maximum penalty of a level 5 fine.  The Committee was content with that amendment.

Amendment No 40 concerns amendments to clause 23.  Those amendments, which are being proposed by the Minister, were not brought to the Committee during Committee Stage.  However, the Minister wrote to the Committee on 7 November to advise us that, after taking further legal advice, he is of the view that the amendments he had proposed in relation to preventing a person from registering as a tobacco retailer or removing a person from the register if they have been convicted of an illicit tobacco offence may be contrary to the European Convention on Human Rights, as they would be retrospective.

The Minister is proposing a new amendment, which provides that the relevant clauses do not apply in relation to offences that were committed previously.  However, they do apply to illicit tobacco offences that are committed once the Bill becomes law.  Given that Committee Stage had already been completed, the Committee agreed to note the Minister’s proposed amendment to clause 23.

Amendment No 42 relates to the long title and the Committee is content with that amendment.

Photo of Jim Wells Jim Wells DUP 4:00 pm, 3rd December 2013

I think it is quite remarkable that we have been able to bring together legislation that is generally accepted by the leading cancer charities, by the district councils, through the Northern Ireland Local Government Association (NILGA), their representative body, by all of the disparate members of the Committee and by the Minister.  It is quite a unique situation that we have been able, by rational negotiation and discussion, to come to a Bill that seems to have met the needs of almost everyone.  Of course, there are people who believe that we should have gone further, but I think that even the cancer charities accept that the Committee and the Minister have gone as far as they can within the existing parameters that are set, in terms of the present legal standing, former judicial reviews and such things as the European Court of Human Rights.

I believe that what we have here is a very balanced series of measures that, in my opinion, send out a very clear message to retailers in Northern Ireland, whether they are multinational supermarkets or the small tobacconist on the corner.  If you sell tobacco to underage children, your business is under threat.  Your business is under threat because the amendments make it very clear that, if you commit three offences within five years — so it is hanging over you for quite a long time — you can lose your right to sell tobacco products for a period that can be as little as 28 days or as much as three years.  You also risk a fine up to level 5.

I heartily congratulate the Minister and Department, because we were able to obtain a consistency of fine levels throughout the legislation at level 5, so people know exactly where they stand.  Equally, level 5 is a very severe sanction.  Of course, it is entirely up to the courts and judges to establish what they feel is a fair and reasonable fine, but the potential of a £5,000 fine will greatly concentrate the mind of tobacco retailers.

In addition, you have the ignominy of having to put a poster or notice in your window telling your customers exactly what you did wrong, as well as dealing with the impact that that has.  Therefore, people will not be coming in to buy their tobacco.  If they arrive at the door, they will see that a restricted premises order is in operation, so there is no sense in coming in.  That is a powerful deterrent, especially for the leading groups of retailers — the big concerns that own several score or maybe over 100 units in Northern Ireland.

There was a proposal that, if one retailer in a multinational lost its right to sell tobacco, that should be extended to every one of its shops in Northern Ireland.  As much as some of us harboured briefly that idea, it would have been a bit draconian and would probably not have stood up in the courts.  I do not think that we would have been able to stand over the suggestion that if, for instance, one small branch of Tesco made that mistake, all branches of Tesco would be barred from selling tobacco, so sense prevailed.

Not only is the legislation sending out a clear message to tobacco retailers about the sale of tobacco but the opportunity was taken, again with the cooperation of the Minister and the Department, to bring in two issues:  the sale of illicit tobacco and proxy sales.  I am reminded of an incident in Warrenpoint about six years ago when a lorry driver was caught with several million cigarettes in a container.  He argued in court that they were for personal use.  The judge got out his calculator and said that at 2,000 per day it would take him 300 years to smoke the cigarettes.  Therefore, the judge ruled that they were not for personal use, were illicit and were intended for the black market.

The problem is that we have no control over the quality of black market cigarettes or where they are sold and to whom.  Therefore, laws that place an onus on retailers not to be involved in that illicit trade are welcome.  When we suggested that, we were not certain whether the legislation was a suitable vehicle for it, but the Department reacted promptly to say that, yes, it was.  That sends out a clear signal.

There is also the issue of proxy purchasing.  We accept that the vast majority of people took up smoking as teenagers.  Ms Brown suggested that the percentage was 82%, while I suggested 80%.  Unfortunately, some of those individuals did not go in and buy the cigarettes then.  They asked an older person to do it for them.  Those people are equally culpable in this, because if they are using their older appearance or age to obtain tobacco products, they are hooking younger people on an activity that we know is disastrous for their health.  Therefore, I am delighted once again that there was strong support for that measure from the Department, and we are happy that it was accepted.

I am also pleased that the Minister was able to clear up the technical issue raised by Mr Allister.  I am always worried when Mr Allister gets to his feet, because I am aware that he is a leading QC and a legal expert.  You seldom win an argument with Mr Allister on legal issues, so I am glad that the cavalry arrived in the form of the Department to clarify that issue.

I was a bit worried when the Chair talked about taking Fearghal — I think she meant "taking further action".  Certainly, some of us would at times say, "Do take Fearghal", but I think that that was a slip of the tongue, or perhaps it was the Londonderry accent, and I got it wrong.

Clause 11 is no longer needed.  There was a demand from some members of the Committee that the register include a list of all the individuals who had transgressed under the legislation and were subject to restricted sales orders.  That raised huge difficulties about keeping the register up to date and ensuring its accuracy.  However, retailers said to us that it would be helpful for them to know that if someone applied for a job to sell tobacco in their shop, they could look up the register and see whether the person had a previous conviction.  For practical reasons, that was not applicable. 

What we did suggest, however, was that it was perfectly legal for someone who wished to employ someone to sell tobacco to ask on the application form, "Have you had a conviction under this legislation preventing you from selling tobacco?".  If a person failed to answer that question accurately, and the truth was subsequently discovered, that would be just grounds for removing that person from employment.  That is the way to solve the problem of trying to identify people with a track record, rather than creating a huge bureaucratic nightmare by having the register continually updated, with people appealing decisions about their inclusion and pointing out inaccuracies.

We have achieved a huge advancement in dissuading our young people from taking up cigarettes.  Maybe it is too much of claim, but I would like to think that, as a result of this legislation, lives will be saved in Northern Ireland and that young people who would otherwise have been tempted to buy illicit tobacco, or those who would have been tempted to buy it for them on a proxy basis, will be deterred.  I hope that young people will be deterred from taking up smoking and that their lives will be saved.  In addition to the 2,300 people who die every year from this terrible affliction, half of all those who take up smoking at any age will die from a smoking related condition.  That is a dreadful, dreadful statistic, and anything that we can do to discourage people from getting hooked in the first place has to be a job well done by this Assembly.

I commend the legislation to the Assembly.  As far as the amendments and the Minister's opposition to various clauses are concerned, there is total agreement, so there need not be any further division in the House.

Photo of Fearghal McKinney Fearghal McKinney Social Democratic and Labour Party

Thank you, Mr Principal Deputy Speaker.  I welcome the chance to speak once more on the Bill.  The latter part of our consideration is crucial, given that offences and enforcement will be a key mechanism that can be utilised to reduce the illicit provision of tobacco.  I re-emphasise the point that Mr Wells made:  2,300 people a year — I know that this was said this morning but it is worth repeating — which equates roughly to 45 people a week, die of smoking related illnesses, never mind all those who carry with them long-term illnesses as a result of the early take-up of tobacco products.  Anything that can assist in reducing those numbers is helpful.

The SDLP is content with the Committee's position on clauses 7 to 26 and with the amendments tabled by the Department.  Looking at amendment No 20, the original draft of the Bill did not specify the minimum period for a restricted premises order.  On the receipt of evidence from many stakeholders, we were concerned that that absence would lead to the courts here issuing very short restricted premises orders.  We were also informed that, in the Republic, where no minimum period for a restricting order exists, the courts imposed very short restricting orders.  For that reason, we are content with the Department's amendment.

Turning to clause 8, the Committee suggested that, given the nature and the frequency of test-purchasing exercises, three offences in five years was a more realistic time frame.  The SDLP is content that the Department has accepted that reasoning and drafted amendments accordingly.  A number of stakeholders raised questions about the circumstances in which councils would seek restricted sales orders.  Representatives from the Chief Environmental Health Officers Group relayed to the Committee that they believed that the purpose of restricted sales orders was to deal with a person who owns a number of premises.  We have touched on that issue.  The Committee asked the Department for clarification and is suitably content.

The Minister has indicated that he is opposed to clause 11.  The SDLP is content to agree with the Committee and the Minister on that.

Amendment No 38 provides for the offence of proxy purchasing.  It was noted that that offence has already been created in Scotland.  The Department initially made the point that it would be extremely difficult to enforce that sort of offence because officers would need to observe a transaction between a child and an adult.  It is the SDLP's view that legislation of that sort is necessary and that difficulty of enforcement is not a suitable reason to discard any proxy purchasing provision.

In summary, the SDLP, consistent with our contributions this morning, is content with the Committee's position.

Photo of Roy Beggs Roy Beggs UUP

I declare an interest in that my dad is a local councillor.  Councils will have the job of implementing the legislation and acting on its measures on the ground.

I welcome the strengthening of sentencing that is proposed on restricted premises orders through amendment Nos 20 and 23.  Originally, we were advised that the sentence was not to exceed one year but the difficulty is that, on many occasions, the judiciary will look at the maximum sentence and then determine what the minimum sentence might be.  As others indicated, in Scotland and, I believe, the Irish Republic, a very lenient sentence of a few days has been issued.  That is no real penalty.  So, I certainly support the concept of having a minimum period of 28 days and a maximum period of three years for very severe or repeat offences; that is appropriate.  It is important to give a message that this is important in protecting the health of our young people.

I will now move on to amendment No 21, in conjunction with amendment No 24.  Amendment No 21 provides for the extension of the test period from three years to five years.  In other words, if you are caught committing an offence, perhaps through a test purchase or other evidence, three times in a five-year period, as opposed to the original three-year period, you would risk going to court and losing your licence.  I think that that is very important.  Environmental health officers told us that about 15% of retail outlets are subjected to test purchasing.  If that were done randomly, very few would be subjected to three test purchases in three years.  Thankfully, there is a degree of scoping and attention given to those retailers that are suspected of selling to younger persons.  That will increase the likelihood, but increasing the period to five years will significantly increase the pressure on retailers and their staff to ensure that no sales are made to underage persons.

I will now move on to amendment No 22, which is very important.  I am pleased that, subsequent to the Bill's publication, the Minister recognised the Committee's concern and brought forward this very significant amendment.  Personally, I believe that it will be very important in fighting organised crime and those paramilitaries involved in fundraising through illegal tobacco sales.  Smugglers need outlets to move on their product, and it is important that we all work together to try to cut those retail outlets down. 

The amendment includes in the Bill offences defined as tobacco offences under sections of the Customs and Excise Management Act 1979 and the Tobacco Products Duty Act 1979.  That is important because those offences will be included when determining whether there should be a restricted sales order or perhaps even whether a licence should ultimately be granted.  Other offences will be included, so there will be huge pressure on retailers not to handle illegal goods.  Perhaps it is cigarettes on which the excise duty has not been paid or those that, as Mr Wells indicated, have been illegally branded to give the appearance of regular cigarettes.  No one really knows what product is inside such cigarettes, so there is huge danger there. 

So what effect will this have in practice?  If, as I say through test purchasing or, as in a recent news story, video evidence, there is a conviction under the Customs and Excise Management Act 1979 or the Tobacco Products Duty Act 1979, the retailer will also be at risk of losing his licence to sell tobacco.  That is a very powerful tool, and I do not think that it should be underestimated.  It will be important in the community's fight against organised crime and, indeed, those who use the money to fund illegal activities and even more serious criminality.

Amendment No 25 deals with the display of notices under restricted premises orders.  Again, that was not included in the Bill originally, but such a provision has been applied elsewhere, such as in Scotland.  I think that there is an embarrassment factor if a retailer has to put a notice up in his window to indicate that he has breached the legislation by selling to underage people or because of other offences.  That has merit.

Amendment No 26 is a new clause that states that no tobacco should be stored in a retail area.  If we want to be sure that it is not being sold on, it is better that there is a clear demarcation so that there will not be tobacco in the retail area.  As others have said, I agree that it would be unreasonable to force some small retailers in particular, which may have no other location in which to store the tobacco other than their premises, to take their tobacco off the premises.  Most shops and retailers have a secure store area.  Therefore, that would be a reasonable area for them to keep their tobacco in during a ban.

It would be helpful if the Minister could address the aspect of clause 9B(3), which says that the individual may have cigarettes for his or her own use.  I hope that that will be a personal packet of cigarettes, and not a carton of cigarettes for their own use.  I ask the Minister to reflect on whether, at a subsequent stage, there is a need to further refine that, and whether he is confident that it will prevent multiple packets of cigarettes being in the retail area and someone claiming, "Oh, but these are only for my own personal use".  I hope that it would be for only a single pack of cigarettes that someone may personally consume, if it were in that premises at all in such a situation.

Amendment Nos 27, 28, 29 and 30 are simply technical amendments that are subsequent to the prior two amendments.  I am also supportive of them.  I support the Minister in his opposition to clause 11.  With the new central register, that clause is no longer appropriate. 

Amendment No 31 is another interesting aspect.  It is under the heading of increasing the scope and power of entry and test.  Perhaps it will widen the areas in which test purchases can occur and offences can be detected.  I welcome that and amendment No 32, which is similar.  Amendment No 33 is a technical amendment.  Amendment No 34 concerns fixed penalties for certain offences.  That, again, is a technical amendment to widen fixed penalty areas so that it will be possible to include a wider aspect.

Amendment No 35 concerns the "Obstruction, etc. of authorised officers".  That is the heading in the Bill that that section would affect.  I support the proposal to increase the level 3 to a level 5 for anyone who might obstruct an officer when perhaps inspecting premises.  That is entirely appropriate.  What if a retailer knew that they had a level 5 offence behind the door?  Are we going to allow them to get off with a level 3 offence by simply not allowing them through the door?  It is entirely appropriate that there should be a level 5 offence for failing to allow authorised officers to access the premises.  There would be a clear message that you will not be worse off —  or, sorry, you will certainly not better yourself by taking a lesser fine if you block access.  Perhaps that is the correct way to put it.

Amendment No 36 is a new clause about a duty on councils to share information about enforcement.  Again, that is entirely appropriate.  It makes it very clear that there would be sharing of information for mutual benefit.

An important and interesting aspect of this is on the new clause 16A(3), where the tobacco offence is defined.  When you trace it all back, you see that this will also include, from my reading of it and I hope the Minister will clarify, offences under the customs and excise legislation and the tobacco Act.  So, councils will gather this information, with information, hopefully, coming through from Revenue and Customs and other sources through protocol.  They will have information available about all offences that any individual retailer may have committed, and this will be a warning because, when you are willing to breach the law in one area, you are also more likely to breach the law in others.  That, in turn, may result in better targeting of those test purchases and better use of the time spent by environmental health officers trying to uphold the law in the course of their duty.

Amendment No 23 is also quite technical.  It amends section 2 of the 1998 order.  I view that as being another technical amendment. 

Amendment No 38 enacts a new offence under a form of proxy purchase.  This is as a result of the Committee becoming aware of this being a useful tool.  I think that it is appropriate.  How are young people getting their cigarettes?  I am sure that there are adults who are supplying them.  I accept that it will be difficult to enforce this on every occasion, but I am sure that many responsible adults who may have been providing them and were unaware that they may have been breaching the law will now recognise that they will be very clearly breaking the law.  Hopefully, fewer adults will be involved in purchasing cigarettes for young people.  Again, it is all important to cut off the supply of cigarettes to our younger population.  Young people get addicted and, ultimately, after many years, they will suffer ill health and an early death.  It is because smoking is so addictive that it is important that we do all that is possible to try to cut off the addiction at that early stage.

I have to admit that I regret the need for amendment No 40.  I would have thought that, if someone had committed a serious offence in the past five years, it could be taken into account in future.  Regrettably, legal advice seems to be coming through that that is not possible.  Sometimes, I view the law as an ass, and I think that this is one occasion.  If someone had been convicted of selling cigarettes to people under 18 in the past six months, and if they were to be convicted a third time, why should significant action not be taken against them?  The legal advice to the Minister, and I dare say, through him to the Committee, is that, under human rights regulations, this is not possible.  I do not understand that.  I think that this is strange, but it is important that we do not torpedo what is otherwise very good legislation. 

Obviously, the long title has to be changed to reflect the significant changes that the amendments will make to the Bill.

I view this legislative process as being very positive.  It has engaged the voluntary sector with the Committee, and it has engaged the Committee with the Department and, in turn, the Minister.  Each sector has been listening carefully to evidence of best practice and relevant information that is available.  They have all contributed to what I believe to be much better and stronger legislation, and legislation that I believe will protect our children and young people much better than what was originally proposed.  For that, I am very thankful.  So, I will be supporting the Minister's amendments, and I will be opposing the others that have become redundant.

Photo of Kieran McCarthy Kieran McCarthy Alliance 4:30 pm, 3rd December 2013

Once again, I voice my support for the Committee Chairperson and Deputy Chairperson and, of course, for this group of amendments.  I believe that the amendments constitute a much stronger approach to enforcement than the wording in the Bill.  Nonetheless, there does remain an appropriate level of balance and proportionality in the revised way forward.  Effective enforcement and, as a result, deterrence will be critical in turning the good intent behind the Bill into real change.

I believe that, in getting the Bill to this stage, this is a good day.  Let those commentators who say that nothing ever comes from this place acknowledge that the Bill will, undoubtedly, save lives in Northern Ireland and beyond.  I am proud to be part of it, and I support the amendments.

Photo of Gordon Dunne Gordon Dunne DUP

I will follow my colleague from Strangford in much the same time limit.

I welcome the opportunity to speak on the Tobacco Retailers Bill.  There has been a lot of good work done, headed by the Chairperson, and the Committee has had a good session on the matter.  A lot of progress has been made.

I wish to say a few words on the amendments listed in group 2, which refer to offences, enforcement, powers and penalties.  Again, it is felt that there is a need to tighten up on the penalties where a retailer is guilty of an offence.  Many of the original penalties for offences have been strengthened in order to deter retailers from taking a risk.  This will allow councils to be given enforcement powers to ensure compliance with the new legislation and allow for fixed penalties to be issued where offences have occurred.

In relation to proxy buying, I welcome amendment No 38, which amends clause 18 and makes it an offence to purchase tobacco on behalf of someone else, knowing that they are not the legal age to smoke.  This is significant, it is progress, and it will go a long way in trying to control the sale of tobacco to young people.

Unfortunately, it is estimated that 83% of smokers started smoking in their teens.  That is a major risk area.  The latest research shows that 8% of 11- to 16-year-olds are current smokers.  Half of those young people who smoke regularly purchase tobacco from newsagents and other retailers in spite of the current legislation.

The fact that approximately 17,000 people are admitted to hospital per year for smoking-related illnesses and that it is estimated that 2,300 people die in Northern Ireland per year from smoking shows that there is room for major improvement.  We must try to tackle the problems associated with smoking.

Like many Members earlier, I commend the positive consultation we have had with the charity groups on this matter.  We commend the work of the charities in trying to control smoking, to help people to stop smoking and to discourage young people from engaging in smoking.  Many charity workers are volunteers who give up their time willingly to engage in this positive work.  The strengthened enforcement action and sanctions proposed against retailers selling tobacco to underage persons will help us to seek and make progress on this issue.

Photo of Samuel Gardiner Samuel Gardiner UUP

Consideration Stage of a Bill gives all Members an opportunity to speak and vote on particular amendments and clauses before the Bill enters its final stages.  I welcome the amendments tabled, and it would appear, more generally, that Minister Poots listened carefully to the many issues raised by the Committee. 

I welcome amendment No 25, which refers to the duty on restricted premises to display a notice.  Prevention is always better than cure.  I therefore hope that the obligation to display notices will become yet another deterrent to breaking the law.  I have said throughout the Bill's stages that enforcement is the single biggest issue in this Bill, and, for that matter, any other Bill.  There is no point in making new laws without foolproof pathways for enforcing them.

I still have grave concerns about the enforcement of the existing law against selling tobacco to underage children. Under the present legislation, enforcement has been a problem.  Tobacco retailers were visited by council officials 1,393 times over a 156-week period, which equates to fewer than nine visits per week over all 26 council areas and one visit every three weeks for each council area.  That does not look much like a rigorous enforcement regime to me.  It is a shockingly bad performance.  When you pass laws that are not properly enforced, you bring the law into disrepute.  You also bring into disrepute the Assembly that makes those laws.  Today, we need to ask whether a clear enforcement pathway is laid out in the legislation.  Fortunately, I believe so.  However, there should be a named official in the new council structure who is responsible for enforcing the legislation in his or her area.  I see some merit in a form of council performance review being built into the Bill so that we can see whether councils are doing better than their predecessors.  There is no point in imposing heavy fines if you do not enforce the system better than having each council make only one visit every three weeks, as was the case under the old legislation.

The final point that I wish to make is on amendment No 36.  The Minister proposes to create a new clause to compel councils to share with one another information held on their premises; for example, a list of those issued with fixed notices.  That is to be welcomed.  However, I urge the Minister to ensure that the clause is properly enforced, because, if there is a disjointed approach, we will never get to the root of the problem.  I hope that the Minister listens to and acts on my concerns.

Photo of Edwin Poots Edwin Poots DUP

I thank all those who took part in the debate.  The discussion seemed to concentrate on illicit tobacco.  The legislation focuses mainly on tobacco retailers.  I strongly desire much more forceful action on illicit tobacco.  Our efforts to encourage people not to smoke are undermined as a consequence of inactivity on the part of national government and HMRC when it comes to going after those dealing in illicit tobacco.  That is where our biggest problem lies.  In truth, in pursuing those people, there are no losers apart from the criminals.  If they are not pursued, the Government lose taxation on legitimate tobacco as a result of illicit tobacco being sold, legitimate businesses that produce or retail tobacco are hurt as consequence of people selling illicit tobacco and criminals make vast amounts of money, much of which they plough back into developing criminal empires and carrying out further criminal activity.  Therefore, for the life of me, I do not understand why there is not a much more forceful and robust pursuit of people who engage in the crime.

Mr Beggs raised the issue of having cigarettes for personal use in a shop, subject to a restricted premises order.  Advice provided at the time of drafting the amendment stated that the provision was necessary.  The legislation applies only to tobacco available for sale.  If an enforcement officer witnesses a sale, the seller cannot claim that the tobacco was for personal use.

If, during a visit, an enforcement officer sees a quantity of cigarettes in the retail area that he or she perceives to be larger than could be deemed to be for personal use, they can use their own judgement to decide whether a prosecution is in order.

I wish that we could always be as harmonious when it comes to health as we have been on this issue today and that we could find this level of agreement on a range of health issues.  I suspect that that will not be the case, but it has been very positive to work with the Health Committee and the Assembly on bringing this legislation forward in a way that demonstrates that we can constructively work together for the greater good.

I thank my staff, who worked closely with the Committee and dealt with the issues that were raised in a very practical way.

Amendment No 20 agreed to.

 Amendment No 21 made: In page 4, line 14, leave out "3" and insert "5".— [Mr Poots (The Minister of Health, Social Services and Public Safety).]

 Amendment No 22 made: In page 5, line 10, at end insert—

"(ba) an offence relating to tobacco committed under section 170 or 170B of the Customs and Excise Management Act 1979 on any premises in Northern Ireland (which are accordingly "the premises in relation to which the offence is committed”);

(bb) an offence committed under section 8F, 8G or 8H of the Tobacco Products Duty Act 1979 on any premises in Northern Ireland (which are accordingly "the premises in relation to which the offence is committed”);".— [Mr Poots (The Minister of Health, Social Services and Public Safety).]

Clause 7, as amended, ordered to stand part of the Bill.