This week it’s become illegal to smoke in a car where there are children present in England. The responsibility for this area of law for Scotland lies with the Scottish Governemnt. For some time, Jim Hume, Liberal Democrat MSP for the South of Scotland has been preparing to introduce legislation as a private member to do the same thing in Scotland. Today his bill passed its first Holyrood hurdle.

This is one of these controversial issues where you can come to agree with the proposal or disagree with it from liberal principles. We don’t like banning things unless there is a very good reason to do so and we also want to look at the enforceability of such a law. I take a very dim view of anyone who breathes poisonous fumes over children in a metal box, but I am worried about the slippery slope of such a measure. I’d have been happy with a massive public awareness campaign. However, JS Mill would, I feel, back the Bill. While people have the right to cause harm to themselves, do they have the right to inflict toxic by-products on to their children in a manner that it is proven causes much more damage than smoking at home or outside would do.

Jim’s speeches from the debate are reproduced in full below:

I am delighted to open this afternoon’s debate on the Smoking Prohibition (Children in Motor Vehicles) (Scotland) Bill.

I take this opportunity to thank the Health and Sport Committee, the Finance Committee and the Delegated Powers and Law Reform Committee for their robust scrutiny of the bill. The bill would not have reached this stage without the invaluable input of all those who advocate for a healthier Scotland and those individuals and organisations who have been working so hard with me to get the bill to this point.

The bill provides a major step in the direction of enabling children and young people to have healthy lives. It enables them to improve their health prospects and encourages healthy habits for the rest of their lives. The bill is also in line with the Scottish Government’s stated goal of having a smoke-free Scotland by 2034, as it set out in its tobacco control strategy. I thank the former and current Ministers for Public Health for their open and constructive dialogue to date and look forward to continuing discussions after today’s debate.

It is estimated that, each week in Scotland, 60,000 children are exposed to second-hand smoke in cars. Numerous studies and reports have shown that there is no safe level of exposure to second-hand tobacco smoke. In fact, in cars, the concentration of second-hand smoke toxins can be more than 11 times as high as in a pub.

Second-hand smoke has proven and profound impacts on health, particularly on the health of children because of their immature respiratory systems. Children suffer because of second-hand smoke. As many as 800 children across the United Kingdom visit the doctor each day as a result of ill health linked to second-hand smoke. They can develop coughing, wheezing and asthma, and respiratory tract infections such as bronchitis and pneumonia, and they have an increased risk of lung cancer.

The purpose of the bill is straightforward. It is to protect our children from the harmful effects of exposure to second-hand smoke. To do that, the bill targets only motor vehicles, where the concentrations of harmful particles from smoke are some of the most significant. The bill will make it an offence for anyone aged 18 or over to smoke in a private vehicle when anyone under the age of 18 is also present and when the vehicle is in a public place. That approach aims to encourage all adult occupants of a vehicle to think twice before lighting a cigarette and to take responsibility for the potential health impacts of their decision to smoke when there is a child in the car.

To remove doubt and undue penalisation, in the case where the smoking adult is not the driver of the vehicle, the driver does not commit an offence for failing to prevent smoking in the vehicle. That is different from the regulations that came into effect in England and Wales last week. As is set out in the policy memorandum, I believe that making the driver liable for the offence is unhelpful. The goal of the bill is to protect the health of children and any unnecessary element could risk moving the focus away from that goal. We have seen such legislation implemented in some US states as well as in parts of Canada and Australia.

In its report, the Health and Sport Committee suggests that making the driver liable would bring the bill in line with other duties on drivers such as seat-belt legislation. However, that legislation is designed for the safety of vehicle occupants in relation to risks such as accidents that only the driver has control over. My bill is about providing children with protection from adverse health effects that are unrelated to anything that the driver is doing. Additionally, I believe that it is unreasonable to expect the driver to be able to control the behaviour of other adults in the vehicle, given that the driver’s focus must always be on the road. Of course, if the driver is the person smoking, they will be committing an offence.

Smoking in a vehicle can generate high levels of airborne particles due to the small volume of air in the vehicle and the potential for it to be recycled without filtering. Even if someone is smoking in a vehicle with the roof down or the windows open, they are in close proximity to other occupants of the vehicle. For that reason, the bill makes no exception for people in a convertible vehicle who are smoking in the presence of a child. The Health and Sport Committee notes in its report that

“A key factor that will impact on the success of this Bill is the clarity of the legislation”.

Aside from the fact that the law will apply in Scotland where, sadly, there are not many opportunities to drive around in convertibles with the roof down, I believe that the approach that is being taken provides the necessary clarity for enforcement agencies.

As an additional clarification, I confirmed to the committee on 23 June that there is no desire or intention to legislate on what people do in their homes. For that reason, the bill provides an exception for people using a vehicle that is

“designed or adapted for human habitation”

and which

“is being used for that purpose”.

In other words, the exception applies only while the vehicle is being used in the same way as a person uses their house, and not while it is being used exclusively for the purpose of transportation. That ensures that people who may habitually reside in motorhomes, and those such as holidaymakers who may reside in vehicles on an occasional basis, are not committing an offence if the vehicle is being used as accommodation at that time.

The penalty for those who are found guilty of an offence is clearly set at level 3 on the standard scale. A fixed-penalty scheme will be available, which I anticipate will be the principal means of enforcement. Provisions for the fixed-penalty scheme are set out in the schedule to the bill. In many respects, the provisions are similar to those set out in schedule 1 to the Smoking, Health and Social Care (Scotland) Act 2005, to which I referred during the policy development stage of my bill. However, the bill includes two specific provisions that I believe are clearer than those provided in the 2005 act.

The first is that schedule 1 to the 2005 act does not specify the amount of the penalty for smoking in public places. Instead, it simply provides ministers with the power to prescribe the amount in secondary legislation. That amount, which was set in 2006, is £50. In my view, a penalty of £50 is not strong enough to deter everyone and does not do enough to properly raise the profile of the danger that is caused by second-hand smoke. Those views came through strongly in responses to my consultation. With that in mind, the schedule to my bill sets the amount of the fixed penalty at £100, with a power for Scottish ministers to vary it through regulations.

However, my bill does not provide for an early payment discount, which I believe would be unnecessarily complex in a measure that is designed to protect children’s health. The penalty should act as a deterrent. People with a greater disposable income may not be deterred if they think that they can get away with a reduced payment on more than one occasion.

I believe that those factors, taken together, provide clarity for all parties. Anyone who is issued with a fixed-penalty notice should pay the set penalty of £100 within 29 days. Failure to pay within the time period will leave an individual liable to prosecution. The legislation is not about raising revenue or forcing people to stop smoking. It is designed purely to prevent acute exposure of children to second-hand smoke and put an end to the anxiety to which they are subjected.

The bill currently provides that the measures will be enforced by Police Scotland. Following the committee’s evidence sessions and its report, and after discussions with the Scottish Government, I believe that there is merit in adopting a joint enforcement approach between Police Scotland and local authorities, and I am happy to work with the Scottish Government on strengthening that part of the bill.

Questions about how enforceable the legislation might be were also brought up during the consultation, but Assistant Chief Constable Higgins noted in oral evidence to the Health and Sport committee that

“it is better to have the ability to do something and use it rarely than not to have the ability to do it at all.”

Police officers are entrusted with exercising common sense, pragmatism, professional judgment and discretion in determining what approach to take when enforcing the law, particularly in instances where age is a consideration. Assistant Chief Constable Higgins noted that

“officers make judgment calls constantly—every minute of every day—in deciding what action to take or not to take.”—[Official Report, Health and Sport Committee, 16 June 2015; c 59, 50.]

The committee noted in its report that police officers have experience in assessing the age of teenagers, such as in circumstances when they are in possession of alcohol. I see no reason why officers could not apply the same discretion, experience, and professionalism in relation to this legislation in instances where there might be doubt about the age of car passengers.

Although enforcement of the law is an operational matter for enforcement agencies, I think that they have an important role to play not just in applying the law but in educating people about it and reminding them of it. However, I note that legislation and education are not mutually exclusive. As the committee said in its report,

“education campaigns alone have not succeeded in protecting children from exposure to second-hand smoke in vehicles”.

Legislation can complement education where education has not succeeded. It is an effective deterrent that can bring about a positive culture shift. We need only look at the impact of the legislation on smoking in public places to note that attitudes to that have changed enormously since the 2005 act was implemented. The 2005 act was coupled with a high-profile campaign that educated people about the dangers and made them think twice about their actions. In many cases, it is not the fear of being caught that changes people’s behaviour but the concern that their actions are not socially acceptable. That chimes with the Scottish Government’s position in its memorandum, which the committee report noted was that

“legislation accompanied by an education campaign would be self-enforcing.”

I expect that this legislation will be accompanied by a high-profile campaign that will serve to educate people about the new law and encourage them to think about their actions. The legislation that I am proposing aims to introduce a layer of protection against second-hand smoke for the health of children who have no option but to go into smoke-filled cars, whether to go to school or, oddly, to their sports activities.

Again, I thank those involved in the consultation processes. Should the bill be supported today, I look forward to continuing to work and liaise on it with the committee, the minister and her officials, and all members of the Parliament. I firmly believe that the bill offers our children a healthier start in life and I am delighted to move the motion in my name.

And here’s his summation of the debate.

I thank the minister for those remarks and all members for their support and contributions. I am greatly encouraged by the wide support from across the chamber.

I will address a few concerns and issues that have been raised. I do not want to be churlish, but I note that Cara Hilton said that the legislation in England and Wales preceded our bill, but the bill was proposed in this Parliament prior to any discussions south of the border. The British Heart Foundation has noted that this Parliament’s proposal led to England and Wales legislating. Indeed, a couple of years ago, I went down there to give evidence on my consultation results. We in Scotland are, therefore, still leading the way.

I wrote to the Health and Sport Committee after the publication of its stage 1 report, which I was grateful for, and provided clarification on a number of issues that have been raised this afternoon. I would like to share some of those points with members, to ensure that there is a clear understanding about the principles and aims of my bill.

I will deal first with whether the measures in the bill are necessary. The Health and Sport Committee came to the conclusion that

“education campaigns alone have not succeeded in protecting children from exposure to second-hand smoke in vehicles, and as such, these further measures are needed”.

It is clear that existing campaigns such as the take it right outside campaign—which was mentioned by Duncan McNeil and Richard Lyle—have proved to be inadequate in raising awareness of the dangers of second-hand smoke to children’s health. In fact, the campaign continues its efforts to educate people, with the Minister for Public Health, Maureen Watt, having visited a nursery in Glasgow yesterday to raise awareness of the dangers of second-hand smoke. Such work is appreciated, but it is clear that more orchestrated efforts are needed in order that we reach that goal.

The take it right outside campaign has correctly identified the fact that no amount of second-hand smoke is safe. However, as was said by Anne McTaggart and others, there are still 60,000 children per week who sit in smoke-filled cars during journeys. My bill is a necessary step in ensuring that education and enforcement will be uniform across Scotland, and that adults are educated about, and encouraged not to engage in, smoking in the presence of a child.

I previously mentioned—as did Nanette Milne and Jim Eadie—that conditions and diseases including asthma and respiratory tract infections, as well as an increased risk of lung cancer, are avoidable, but they continue to affect children because of second-hand smoke.

I want to reiterate that there is a strong case for Parliament to adopt the legislation and to protect our children today. That will enable at least 60,000 children to have a healthier start in life.

I want to be clear about another topic that has been brought up, relating to penalisation of the person who smokes. The bill is clear that any vehicle passenger who is over 18 and is smoking when children are in the vehicle will be liable for a penalty. I am happy to work with members, the Government and the committee regarding vicarious liability provisions, but at this stage I think that that might make the bill overly complex and also risks penalising people unduly. Instead, the focus should remain on protecting children and, through this measure, on helping to educate people—including children themselves, as they will be future drivers—about the harmful effects of second-hand smoke.

However, as I said, I am happy to work with members and the committee on that. That is why I also believe that setting a single-rate penalty of £100 will serve the purposes of clarity, uniformity in enforcement and fairness for all who are found to be liable to pay a penalty. I believe that the arguments against that—for example, claims that it will negatively impact on people from less well-off backgrounds—do not stand. The deterrent will be as strong and can, in fact, be more fair to those who cannot afford to pay a reduced fine immediately, because they will be given 29 days to do so.

The flat-rate penalty will ensure that those who are able to pay immediately do not get a better deal by having an early-payment discount. I want to see the fine being used as a means not to criminalise people but to deter them from subjecting children to second-hand smoke. Just as I will not accept a discount on children’s health, I am opposed to a discount in that deterrent measure.

I will provide additional clarification on the exemption of types of vehicle. People who are using a motor vehicle that is

“designed or adapted for human habitation … and is being used for that purpose”

will not be liable for a penalty. I was very glad to hear Christian Allard’s strong support for that.

As I have stated before, enforcement will be the responsibility of Police Scotland. However, through constructive dialogue that I have had with the Scottish Government, it has emerged that the principles would be able to go even further through a joint enforcement mechanism whereby local authorities share enforcement responsibilities with Police Scotland. Of course, we know that we can trust Police Scotland to utilise its professional expertise in individual cases, as it stated during the committee’s scrutiny of the bill.

I note the results of the 2014 Scottish household survey, which was published a few weeks ago and which Jenny Marra mentioned. The survey shows a drop of 3 per cent over the past three years in the percentage of adults who smoke: it is now down to 20 per cent. Just this week, we saw that the numbers of quit attempts through NHS smoking cessation services are at upwards of 66,000 for 2014-15, which is a rate of 19 per cent.

That is to be welcomed, but it also demonstrates the opportunity that we have right now to capture the potential benefit of the bill in that it may encourage more adults to consider whether it is responsible or acceptable to smoke in the presence of children more generally. In fact, the Scottish Government’s tobacco control strategy seeks to reduce the proportion of children who are exposed to second-hand smoke in the home from 12 per cent to 6 per cent by 2020. I welcome that and I note that the bill will contribute to achieving that aim.

Maureen Watt:
Does Jim Hume agree that one of the reasons for taking smoke outside is that the effect of the chemicals from the smoke can linger for up to five hours? That effect might be similar, although possibly less, in cars.

Jim Hume:
It is well known that the 50 or so toxins in second-hand smoke linger for some time in cars. Although we cannot see them when the smoke dissipates, the dangerous toxins are still there.

Studies from countries that have banned smoking in vehicles show that legislating in this area can encourage people voluntarily to introduce smoke-free homes. From Canada and the United States to Australia, the positive impact of such legislation has been demonstrated.

If the bill leads to cultural and behavioural change in cars—as I hope and believe it will—it is possible that people in Scotland will voluntarily reduce smoking in other areas where children are present.

Other studies show that children who are exposed to second-hand smoke are more likely to become smokers themselves—apart from the case of Jackson Carlaw, of course. Reducing exposure to second-hand smoke in vehicles can not only have immediate benefits in protecting children’s respiratory systems, but can reduce the likelihood of children taking up smoking in later life—which, of course, can only be a good thing.

In taking the bill forward, I have been encouraged by the positive views that I have received from individuals, including parents, grandparents and people under 18, as well as from health organisations and charities. I hope that by agreeing to the bill at stage 1, Parliament will make a significant contribution to enabling every child in Scotland to develop healthy habits and have a healthy life. No child should have to go through the physical and psychological anxiety of being trapped in a car with adults who smoke. The education and deterrence that we need can come through the bill, to enable people to look after their health and wellbeing.

I again thank members for their positive and thoughtful speeches, and I thank the Scottish Government, whose expertise has strengthened the bill. I look forward to the bill process continuing. Like Elaine Murray, I hope that we will get the bill through stage 3 in this parliamentary session. I look forward to Scotland being a country where children are protected when they are at their most vulnerable, and are given the healthy start to life that they deserve.

* Caron Lindsay is Editor of Liberal Democrat Voice and blogs at Caron's Musings