Report on the Tobacco Retailers Bill (NIA Bill 19/11-15)

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Executive Summary

1. The purpose of the Bill is to introduce stricter sanctions against retailers who sell tobacco to under 18s, and thereby ensure that the minimum-age-of-sale policy is more rigorously applied.

2. The evidence from stakeholders was overwhelmingly in favour of the Bill, although a few key issues did emerge.

3. The first key issue was the registration of tobacco retailers. As drafted the Bill proposes that each council would maintain its own register of tobacco retailers in its area. The Committee was concerned that without a centralised registration system, information necessary for enforcing the legislation might not be easily available to the councils. The Department accepted the Committee’s point and drafted an amendment to create a registration authority.

4. The second issue concerned the eligibility of someone to register as a tobacco retailer. The Committee was of the view that a person who has a serious conviction for selling illicit tobacco should be prevented from registering as a tobacco retailer. The Department accepted this point and drafted an amendment so that a person who has been convicted of an illicit tobacco offence, resulting in a custodial sentence (whether suspended or not), shall not be allowed to register as a tobacco retailer for a period of five years from the date of the conviction. A similar amendment was also drafted to remove persons from the register who are subsequently convicted of such an offence.

5. The third issue also related to the matter of illicit tobacco offences. The Committee was of the view that an illicit tobacco offence should count towards the three offences which result in a restricted premises order or a restricted sales order. The Department agreed with the Committee’s thinking and proposed an amendment to extend the definition of tobacco offence to include certain offences under the Customs and Excise Management Act 1979 and under the Tobacco Products Duty Act 1979.

6. The fourth issue related to the threshold for councils being able to seek restricted premises and restricted sales orders. As drafted the Bill states that three offences committed in three years can lead to either order. However, the Committee established that given the frequency of test purchasing exercises, three offences in five years would be more realistic in terms of securing a restricted premises or restricted sales order. The Department accepted the Committee’s point and drafted the appropriate amendment.

7. The fifth issue concerned the minimum and maximum period of restricted premises and restricted sales orders. As drafted the Bill simply states that the maximum period for either order is one year – no minimum period is specified. Based on evidence from other jurisdictions, the Committee had concerns that very short orders could be made by the courts - a number of days – which it believed would have very little impact on retailers. Similarly, the Committee believed that a maximum of three years provided more scope for dealing with retailers who repeatedly flouted the law. The Department accepted the Committee’s rationale and drafted the appropriate amendment.

8. The final key issue was that of proxy purchasing. A range of stakeholders suggested that the Bill should be used to create an offence for an adult to purchase tobacco on behalf of someone under 18. The Committee supported this proposal, as did the Department, and a departmental amendment was drafted to that effect.

Introduction

1. The Tobacco Retailers Bill (NIA 19/11-15) was referred to the Committee in accordance with Standing Order 33 on completion of the Second Stage of the Bill on 23 April 2013.

2. The Minister for Health, Social Services and Public Safety made the following statement under section 9 of the Northern Ireland Act 1998:

“In my view the Tobacco Retailers Bill would be within the legislative competence of the Northern Ireland Assembly.”

3. The stated purpose of the Bill is to tackle the high levels of premature death and preventable illness caused by tobacco. The Bill aims to prevent young people from taking up smoking by making it more difficult for those under the age of 18 to access tobacco products. The Bill is also intended to assist authorised officers of district councils in carrying out their duties with regards to tobacco control by providing them with a register of tobacco retailers within the district of each council.

4. During the period covered by this Report, the Committee considered the Bill and related issues at fifteen meetings. The relevant extracts from the Minutes of Proceedings for these meetings are included at Appendix 1.

5. At its meeting on 24 April 2013 the Committee agreed a Motion to extend the Committee Stage of the Bill to 18 October 2013. The Motion to extend was supported by the Assembly on 28 May 2013.

6. The Committee had before it the Tobacco Retailers Bill (NIA 19/11-15) and the Explanatory and Financial Memorandum that accompanied the Bill. On referral of the Bill the Committee wrote on 30 April 2013 to key stakeholders and inserted public notices in the Belfast Telegraph, Irish News, and News Letter seeking written evidence on the Bill by 17 May 2013.

7. A total of 24 organisations responded to the request for written evidence and a copy of the submissions received by the Committee is included at Appendix 3.

8. Prior to the introduction of the Bill the Committee took evidence from Departmental officials on proposals on 20 March 2013. Following the introduction of the Bill the Committee took evidence from:

• Departmental officials on 15 May 2013;
• the Northern Ireland Local Government Association and the Chief Environmental Health Officers Group on 22 May 2013;
• the Northern Ireland Independent Retail Trade Association and Northern Ireland Retail Consortium on 29 May 2013;
• the Tobacco Manufacturers Association on 5 June 2013; and
• Cancer Focus NI and NI Chest Heart & Stroke on 12 June 2013.

9. The Committee discussed the evidence received with Departmental officials on 26 June 2013, 11 September 2013 and 18 September 2013.

10. The Committee carried out clause by clause scrutiny of the Bill on 25 September 2013. At its meeting on 9 October 2013 the Committee agreed its report on the Bill and that it should be printed.

Consideration of the Bill

Background

11. Smoking is the main cause of preventable illness and death, killing around 2,300 people in Northern Ireland every year. The majority of people who take up smoking do so while they are still in their teens, before they have reached an age at which they fully understand the consequences of smoking and its addictive nature. Therefore, preventing children and teenagers from accessing tobacco is crucial to reduce the number of people smoking, which currently stands at 24% of the population.

12. The latest research shows that 8% of 11-16 year olds are current smokers. Half of those children who smoke regularly purchase tobacco from newsagents, tobacconists or sweet shops. That is in spite of legislation which makes it illegal to sell tobacco to anyone under the age of 18. We also know that the sale of tobacco to under 18s is occurring from the results of the councils’ test purchasing exercises. Recent figures from test purchasing exercises carried out by the councils show that in one in five cases, tobacco was sold to an underage person.

13. Therefore, the evidence is clearly showing that a significant number of retailers are continuing to sell tobacco to underage children. The aim of this Bill is to introduce stricter sanctions against those people, and thereby ensure that the minimum-age-of-sale policy is more rigorously applied by retailers. This will in turn make it more difficult for children and young people to take up smoking.

14. The Bill will introduce a combined registration scheme with a negative licensing system for tobacco retailers. It also contains a provision for restricted premises and restricted sales orders which allows councils to seek banning orders against retailers who persistently commit tobacco offences. Provisions in the Bill will also allow for fixed penalty notices to be issued for a number of tobacco-related offences, including that of selling to underage children.

15. The Bill has 26 clauses.

Key issues

16. To inform itself of the key issues in relation to the Bill, the Committee took written and oral evidence from a range of stakeholders. It also held a number of oral evidence sessions with Departmental officials, who provided additional information and clarification on the points raised in the submissions. The negotiations with the Department, and their outcome, on the major issues regarding the Bill are detailed below.

The register of tobacco retailers – clause 1

Type of register

17. This clause proposes that there will be 26 separate registers, one for each council area. The register would contain the names and addresses of tobacco retailers within each council area. The Committee was concerned that a lack of a centralised registration system could result in information not being shared between councils as efficiently as it could be. In particular, members were concerned that details of people convicted of or given fixed-penalty notices for tobacco offences and people convicted of illicit tobacco offences would not be routinely shared between the councils. The Committee asked the Department to explore having a central register, either as well as, or in place of, the 26 council registers. The Committee was also in favour of a centralised register being available to the public online.

18. The Department’s initial response was that the councils had advised that they were content to hold their own separate registers, given that they already maintain registers for other purposes – for example, food retailers. Council-based tobacco retailer registers would also allow inspection programmes to be co-ordinated, so a number of things could be inspected at the same time.

19. The Department also raised the issue of cost in relation to creating a central register. It stated that council- based registers would be cost neutral, whereas a centrally based register would incur additional administration costs.

20. However, after further consideration the Department proposed an amendment to clause 1 to allow for a single body – the “registration authority” to maintain the register. The amendment also requires certain information relating to the register to be made available to the public.

21. The Committee discussed with officials the possibility that the register would contain details of fixed penalty notices, convictions and restricted sales orders made against retailers listed on the register. The Department took the view that putting this sort of information on a public register could potentially be challenged under human rights law. It also made the point that the more complex the register became the more it would cost to administer. Furthermore, if information was provided on fixed penalty notices, convictions and restricted sales orders it would be imperative that it was kept constantly up to date to avoid any errors which could potentially result in legal action against the registration authority.

22. After considering the matter further and taking its own legal advice, the Committee was content with the Department’s rationale and its amendment to clause 1.

Applying to join the register – clause 2

Barring people from registering as a tobacco retailer

23. The Committee discussed whether given the responsibility involved in selling tobacco, whether certain people should be prevented from registering as a tobacco retailer. It asked the Department to explore the possibility that someone who has a serious conviction for selling illicit tobacco should be prevented from registering as a tobacco retailer.

24. The Department’s initial response was that this suggestion raised a number of issues which needed to be investigated further. Firstly, there would be a need to define what a serious conviction is in the context of illicit sales. Secondly, there was an issue about the duration which somebody would be banned for from registering as a tobacco retailer if they have a previous conviction for selling illicit tobacco. Thirdly, there was an issue in relation to offender rehabilitation.

25. However, after further consideration the Department proposed an amendment to clause 2 so that a person who has been convicted of an illicit tobacco offence, resulting in a custodial sentence (whether suspended or not), shall not be allowed to register as a tobacco retailer for a period of five years from the date of the conviction. The Committee was content with this amendment.

26. However, the Committee also raised the issue of whether a retailer who was on the register and was later convicted of an illicit tobacco offence, resulting in a custodial offence (whether suspended or not), would be automatically removed from the register. The Department agreed that this was a sensible suggestion and subsequently proposed an amendment to clause 4 to this effect. The Committee was content with the Department’s amendments to both clause 2 and clause 4.

Registration fees – clause 2

27. The Department advised the Committee that there were no plans at this stage to charge businesses a fee for registering as a tobacco retailer. However, this clause allows for regulations to be made to allow the councils to charge a registration fee at a future date. The councils supported the inclusion of this potential power in the Bill, whereas the retailers’ representatives did not.

28. The Committee was advised by the Department that in the Republic of Ireland there is a €50 charge for registering. However, in Scotland there is no registration fee, and the Scottish legislation does not contain a power to allow for the charging of a registration fee.

29. The Department made the point that any regulation made under this clause would be by the affirmative resolution procedure, which would allow the Assembly the opportunity to vote on the issue.

30. The Department also advised that if council-based registers were introduced, as is intended in the Bill, it would not envision the power being used, as the costs would be minimal to the councils. However, if there was to be a central registration system there might be a case for having a registration fee.

31. After considering the issue further, the Committee came to the view that it was content with the Department’s rationale on this issue.

Notifying changes to the register – clause 3

32. Some stakeholders suggested that the period for notifying a change of name or address or for notifying that a tobacco business is no longer being carried out at that premises should be changed from 3 months to 28 days.

33. The Department agreed that this was a sensible idea, and would help ensure that the registers were kept up to date. The Department proposed an amendment to clause 3 accordingly. The Committee was content with this amendment.

Removal from the register - clause 4

34. Stakeholders queried why people who are subject to a restricted sales order do not have to be removed from the register, whereas when a restricted premises order is made under clause 4 (2) those premises must be removed from the register.

35. The Committee therefore requested clarification on whether a person who is subject to a restricted sales order and is also registered as an owner can be permitted to keep their premises on the tobacco register.

36. The Department advised that the purpose of a restricted sales order in the case of it being made against an owner of a shop, was to punish that person, and not the staff in the shop who had complied with the law. If the premises had to be removed from the register then the employees would effectively lose their jobs. This was not the intention of the legislation. The Committee agreed that it was content with the Department’s rationale on this issue.

Duty to share information – clause 6

37. This clause as drafted simply states that councils must provide to other councils and the Department, if requested, the information contained in their own tobacco register.

38. Many stakeholders were concerned that this clause was not strong enough 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 the information on the 26 council registers and also holds details of people convicted of or given fixed-penalty notices for tobacco offences and people convicted of illicit tobacco offences. It would also detail who was subject to a restricted premises or restricted sales order.

39. 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 and restricted sales orders. The Committee was content with this proposed amendment.

40. The Committee also raised the issue as to how information on illicit tobacco offences would be shared with and between councils. It suggested that the Bill should 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 Northern Ireland so that details of convictions would be shared. The councils would subsequently share this information with the registration authority. The Committee was content with these arrangements.

Restricted premises orders – clause 7

Number of relevant offences and time period

41. As drafted the Bill states that three offences committed in three years will result in a restricted premises order. However, given the frequency of test purchasing exercises, the Committee suggested that three offences in five years would be more realistic in terms of securing a restricted premises order and would also act as a better deterrent. The councils, via NILGA, advised that they were content with this suggestion.

42. The Department responded by stating that it was in favour of the Committee’s suggestion and proposed an amendment to clause 7 accordingly. The Committee was content with the amendment.

Minimum and maximum period of an order

43. The Bill does not specify a minimum period for a restricted premises order. Some stakeholders were concerned that this would result in the courts issuing very short orders – for a number of days or weeks – which would have little impact on those convicted.

44. The Committee learned that in the Republic of Ireland there is no minimum period specified, and that the 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 due to the short length of orders being made.

45. The Bill specified that the maximum period for an order is one year. Some stakeholders suggested that this should be increased to three years.

46. The Committee learned that in the Republic of Ireland the maximum period is 90 days, in Scotland it is two years, and in England and Wales it is one year.

47. The Department proposed an amendment to clause 7 to state that the duration of a restricted premises order must be for at least 28 days and may not exceed three years. The Committee was content with this amendment.

Requirement to display a notice

48. Some stakeholders suggested that a premises should have to display a notice stating they were subject to a restricted premises order, as is the case in Scotland. The Committee was supportive of this view as it believed it would act as a good deterrent and would make the public aware that a premises had broken the law.

49. The Department agreed that such a notice would act as a deterrent and proposed an amendment to clause 9, with associated offences and penalties created in amendments to clause 10. The amendment to clause 9 requires retailers to display a notice stating that a restricted premises order has been made and the period for which it has effect. The Committee was content with the amendment.

Including an illicit tobacco offence as a relevant offence

50. The Committee was of the view that an illicit tobacco offence should count towards the three offences which result in a restricted premises order or a restricted sales order under clause 7 (14). The Committee raised this issue during pre-introductory scrutiny of the Bill, and during the second stage debate, the Minister gave an undertaking that he would consider the matter further.

51. 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.

52. In considering this 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 Northern Ireland, HMRC use the Customs and Excise Management Act 1979 to seek prosecutions for illicit tobacco. In a letter from the Minister dated 26 July 2013, he advised that there were five convictions under this 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.

53. The Department agreed with the Committee’s thinking and proposed an amendment to clause 7 to extend the definition of tobacco offence to include certain offences under the Customs and Excise Management Act 1979 and under the Tobacco Products Duty Act 1979. The Committee was content with the amendment.

Requirement to remove tobacco products

54. Some stakeholders suggested that a premises subject to a restricted premises order 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.

55. When put with this suggestion, the Department 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, this could make them the target of a break-in.

56. The Department proposed an amendment to clause 9 to require retailers to remove all tobacco products from the retail area of the shop, with associated offences and penalties created in amendments to clause 10. The Committee was content with the amendment.

Restricted sales orders – clause 8

Number of relevant offences and time period

57. As drafted the Bill states that three offences committed in three years will result in a 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 terms of securing a restricted sales order and would also act as a better deterrent. The councils, via NILGA, advised that they were content with this suggestion.

58. The Department responded by stating that it was in favour of the Committee’s suggestion and proposed an amendment to clause 8 accordingly. The Committee was content with the amendment.

Minimum and maximum period of an order

59. The Bill does not specify a minimum period for a restricted sales order. Some stakeholders were concerned that this would result in the courts issuing very short orders – for a number of days or weeks – which would have little impact on those convicted.

60. The Committee learned that in the Republic of Ireland there is no minimum period specified, and that the 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 due to the short length of orders being made.

61. The Bill specified that the maximum period for an order is one year. Some stakeholders suggested that this should be increased to three years.

62. The Committee learned that in the Republic of Ireland the maximum period is 90 days, in Scotland it is two years, and in England and Wales it is one year.

63. The Department proposed an amendment to clause 8 to state that the duration of a restricted sales order must be for at least 28 days and may not exceed three years. The Committee was content with this amendment.

Effect of a restricted sales order on a multiple retailer

64. A number of stakeholders raised questions about the circumstances in which councils would seek restricted sales orders. The Chief Environmental Health Officers Group advised the Committee that it was their understanding that the purpose of having restricted sales orders was to deal with a person who owns a number of premises. The councils believe that they would be able to seek a restricted sales order, as well as a restricted premises order against a retailer who had committed three offences at the same premises. In their view this would prevent the owner of the premises being able to sell tobacco at any of the shops they own.

65. The Committee asked the Department for clarification on this issue. The Department advised that a restricted sales order could be made against an owner of a shop or against an employee. However, it regarded the primary purpose of restricted sales orders as a way of dealing with an employee who had persistently committed offences and ignored the training received from the owner in relation to selling to under 18s. The Department wishes to have flexibility in the Bill so that if an employee flagrantly ignores the training and guidance of the owner or manager of a shop, councils will have the ability to apply for a restricted sales order against an employee, given the circumstances of the case.

66. The Department further advised that a restricted premises order and a restricted sales order could be taken out against the owner of a shop if the council was concerned that if only the restricted premises order was made, that person would simply close that shop and open up a new premises and continue to sell tobacco.

67. In the case where a restricted sales order was made against someone who owned a number of shops, the owner is prevented from personally selling tobacco in any of their shops – however, their employees can and therefore their other shops can continue to sell tobacco.

68. The Department was of the view that to amend the Bill so that someone who was subject to a restricted sales order cannot continue to sell tobacco out of any shops they own would be a harsh measure, in that it is potentially putting the livelihood of staff who work in those businesses at risk. This was not the original intention of the Bill. The Committee was content with the Department’s position on this issue.

Requirement to display a notice

69. Some stakeholders suggested to the Committee that a premises should be required to display a notice if any of the employees was subject to a restricted sales order. The idea behind this is to act as a deterrent to retailers because of the public embarrassment associated with having to display such a sign.

70. The Department advised that such a provision in the Bill may be open to challenge, based on article 8 of the European Convention on Human Rights, which is the right to respect for private life. Even when an individual is not named, in a small shop with only a few employees, there is the potential, effectively, of branding that employee because it would probably be quite obvious to whom in the shop it referred. After further consideration of the legal implications, the Committee was content with the Department’s position on this issue.

List of people subject to a restricted sales order

71. The retailers suggested that there should be a readily accessible list of people subject to a restricted sales order – so that they could do pre-employment checks to avoid employing that person in a tobacco business.

72. The Department advised that to provide such a list would involve significant administration work for the registration authority, which would result in additional running costs. The Department suggested that the more pragmatic approach would be for employers to ask job applicants to declare whether they were subject to a restricted sales order during the job application process. The Committee was content with the Department’s position on this issue.

Fixed penalty notices for sales of tobacco from vending machines – clause 13

73. The councils and other stakeholders suggested that the Bill should be amended to allow for a fixed penalty notice to be issued for an offence under article 4A of the Children and Young Persons (Protection from Tobacco)(NI) Order 1991. This legislation allows the Department to make regulations in relation to sales of tobacco from vending machines, and regulations were made on this issue in 2012.

74. The Department was of the view that this was a reasonable suggestion. It proposed an amendment to clause 13 to allow for a fixed penalty notice to be issued for tobacco sales from vending machines. In addition, the amendment allows for fixed penalty notices to be applied for other tobacco offences under the 1991 Order such as selling unpackaged cigarettes. The Committee was content with this amendment.

Level of fine for obstructing an officer – clause 16

75. Under clause 16 the fine for obstructing an authorised officer is one not exceeding level 3 (£1,000). The councils argued that a level 5 fine would be more appropriate (£5,000).

76. When questioned on this issue, the Department responded that a level 3 is the standard fine for this type of offence, such as for the Smoking (Northern Ireland) Order 2006. If the Bill was amended to a level 5, someone convicted of obstructing an officer under this Bill would get a level 5 fine, whereas someone else convicted of obstructing an officer under the Smoking (Northern Ireland) Order 2006 would get a level 3 fine. The Department argued that this would raise human rights issues.

77. However, the Committee proposed that if this was the case, then thought should be given to amending other pieces of legislation, to bring them into line with the level of fine that was decided upon for obstructing an officer in this Bill.

78. 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 with this amendment.

Level of fine for selling to under 18s – clause 18

79. A number of stakeholders raised the issue of the level of penalty currently available to the courts in relation to a breach of Article 3 of the Health and Personal Social Services (NI) Order 1978, which is selling tobacco to under 18s. It is currently a level 4 fine, which is a sum not exceeding £2,500. The Department intends to introduce a fixed penalty for this offence of £200, discounted to £150 if paid early. The councils and charities suggested this level of fine is too low to act as a deterrent against selling tobacco to under 18s.

80. The Department’s view was that the fixed penalty notice is primarily a pathway to conviction, as well as being a deterrent in its own right. It argued that fines for fixed penalty notices tend to be fairly low, and that the more important issue is probably the level of fine on conviction.

81. After consideration, the Department proposed an amendment to change the fine to one not exceeding level 5. The Committee was content with this amendment.

Proxy purchasing – clause 18

82. 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. This offence has been introduced in Scotland and is known as proxy purchasing.

83. 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.

84. After consideration, the Department proposed an amendment to clause 18 to create for an offence in relation to proxy purchasing, with a maximum penalty of a level 5 fine. The Committee was content with this amendment.

Summary of Evidence

85. In considering the Bill, the Committee took account of the written and oral evidence received from the range of stakeholders who responded to its call for evidence. Below is a summary of that evidence.

Clause 1: Register of tobacco retailers

86. While there was support for the creation of a register of tobacco retailers, questions were raised about the type of register (or registers) which are required.

87. While the majority of stakeholders were content for the councils to gather the information for their own registers, there was a feeling that there needs to be one central register or one central database which could bring together the information on the 26 council registers. The view was also expressed that a central register should hold details of people convicted of or given fixed-penalty notices for tobacco offences, and people convicted of illicit tobacco offences. It would also list who was subject to a restricted premises or restricted sales order.

88. The councils believed that without a central information point, it would be more difficult to ensure that relevant information was shared between councils in terms of enforcing the legislation. The Chief Environmental Health Officers Group suggested that a central register could be hosted by one of the councils:

“It is our view that it is much better for the register to be held by the council. Then, if there was a need for a council to share it with others through a central register, it could be made available. We would have no difficulty with that, or with one council holding the register for all. However, keeping the register up to date is important, and I think that would be easier for a council to do”.

Clause 2: Application for registration

89. Concerns were expressed in relation to clause 2 (7) which provides for the making of Regulations for the charging of a registration fee. While the Department’s position was that there was no intention at this stage to charge a fee, the tobacco retailers and manufacturers were concerned that this position could change at a later date. For example, the NI Retail Consortium stated:

“So we just want to give peace of mind to retailers who have enough on their mind, such as the 18% increase in electricity bills that Power NI announced last week. Removing the provision for a registration fee would give them that bit of certainty that this is not another payment that will be landed on them”.

90. However, the councils took the opposite view, and argued that the clause should remain in the Bill. The Chief Environmental Health Officers Group stated:

“I do not see it being an expensive process, even if charging were introduced. I do not think I could speak on behalf of all councils on whether they would seek to recover that, but I think it is prudent to put the requirement in the Bill and consider the issue at a later date through secondary legislation.”

91. There were a number of technical queries raised in relation to some of the phrasing used in clause 2. For example, in clause 2 (1) stakeholders suggested that the word “may” should be changed to “shall” or “must”. Similarly, again in clause 2 (1) stakeholders questioned why the wording was “proposes to carry on a tobacco business” rather than “carries on or proposes to carry on”. The Department provided a technical explanation on these points.

Clause 3: Duty to notify certain changes

92. In relation to this clause, the councils and others argued that a 28 day period for notification of changes to the register would be more appropriate than the proposed three month period. The Chief Environmental Health Officers Group stated:

“It really is about keeping the register accurate and up to date. Given what the changes actually are, three months seems like a very long period to be allowed to notify of them. We felt that we could allow a bit of a time lag. However, if it is felt important to have a register and for it to be up to date and accurate, we feel that 28 days would be more appropriate.”

Clause 4: Changes to and removal from the Register

93. The main issue in relation to this clause was why it provided for the removal of a premises from the register which is subject to a restricted premises order, but not the removal of a person from the register who is subject to a restricted sales order.

Clause 5: Inspection of the Register

94. There were very few comments received in relation to this clause. The Chief Environmental Health Officers Group made the point that if a person has provided a private address for the register this should not be made publicly available.

Clause 6: Access by Department and councils to the Register

95. Many stakeholders were concerned that this clause would not ensure that all the relevant information is shared by all the relevant agencies in order that the legislation can be properly enforced.

96. The councils and charities argued that there needed to be one central information point which brings together the information on the 26 separate registers and also hold details of people convicted of or given fixed-penalty notices for tobacco offences and people convicted of illicit tobacco offences. It would also detail who was subject to a restricted premises or restricted sales order. For example, the Chief Environmental Health Officers Group stated:

“We have no particular issue with clause 6 on the requirement to share information. However — and clause 6 may not be the appropriate place for this — an additional requirement placed on enforcement agencies to share information on fixed penalty notices or convictions would perhaps make the system work more appropriately. If the Committee makes any recommendations on illicit tobacco and whether offences in relation to that are relevant offences, it would be quite important for a council to know that in determining whether three offences have been committed within the three-year period. One of the things that could be looked at is whether there should be a proactive duty on those agencies, councils and HMRC to share information on the relevant offences so that all agencies are aware whenever that third offence has happened and, therefore, when an application for a restricted premises order or restricted sales order can be made. A requirement of that nature would make the process work much more effectively”.

97. Cancer Focus made a similar point:

“If we commit to enforcement now, we need to quickly share that information across the 26 councils and with other agencies, so that other relevant convictions, such as selling illegal or smuggled tobacco, can be shared as well. That will show us whether a business or group of businesses are a problem and where those limited numbers of inspections can be targeted. Communication among the agencies is vital. It should not be that difficult to set up a system in which those organisations can communicate convictions very quickly. It will be vital. If we do not have that system, a lot of the other things will not succeed”.

Clause 7: Restricted premises orders

98. There were many comments in relation to this clause which sets down the circumstances in which restricted premises orders can be made, and the nature of those orders.

99. The key issue raised was the number of offences and the time period in which these offences were committed, which would trigger the application for a restricted premises order by the councils. As drafted, clause 7 (8) specifies a threshold of three offences in three years. However, a range of stakeholders including the Royal College of Physicians and NI Chest, Heart and Stroke suggested that three offences in three years is too high a threshold to deter offenders.

100. In its oral evidence, the Chief Environmental Health Officers Group explained that the test purchasing regime employed by most councils meant that some businesses were only visited once every five years:

“If it was a business operating solely in one council, I think that they would be visited once every five years. That said, if the council had intelligence, or if the premises had a history, they would be on the next test-purchase rota. In general terms, although you can say that premises will be visited only once every five years, that does not take account of the targeting process that goes on behind the scenes. Neither does it take account of the fact that many retailers trade across council boundaries.

The longer the period, the wider the window, then, yes, the ability to apply for that order would mean that a greater number of premises would be likely to fall foul of that provision and, therefore, we could apply for an order against more premises”.

101. When the Committee put the proposal that the threshold should be raised from three offences in three years, to three offences in five years, the cancer charities who gave oral evidence to the Committee stated they were in favour of this suggestion. NI Chest, Heart and Stroke stated:

“It seems counter-intuitive to leave a longer time, but the logic is sound in that an offence that is committed will hang over them for longer and there will be more chance of their being caught. We would support that.”

102. Similarly, the Tobacco Manufacturer’s Association supported the proposal:

“We are totally in support of measures to stop under-18s from accessing tobacco. We would like to see stricter enforcement of the law and greater penalties. We would certainly welcome the opportunity to make sure that the law is enforced. Well, we certainly do not support retailers breaking the law, so we would be in favour of measures to make sure that retailers abide by the law”.

103. A further issue in relation to restricted premises orders was their potential duration. Clause 7 (6) specifies that the orders may not exceed one year. The councils and the cancer charities felt this was too short a period. The Chief Environmental Health Officers Group stated:

“Our experience of the court process is that a court would rarely ever apply the maximum on the first time of hearing an application such as this. It looks at the scale and applies a penalty on that scale; so we are saying that the court should be given greater latitude. You have to cross the bar of three offences before you can make an application, but if there are many more offences than that and someone is not taking their responsibility seriously, we are saying that the court should be given latitude to decide where that sits on the scale of things and make a decision on it. It is worth considering whether the scale of between one week and 52 weeks is sufficient for someone when there is evidence to suggest that there is a persistent problem with that retailer, and whether a greater scale is needed.

We think that the court should be given greater scope regarding the scale, of between zero and three years. That would send out a very strong message about how seriously the issue of selling tobacco to under-18s is as regards the long-term health consequences if people become addicted to the product and find it difficult to give up”.

104. However, on the other side of the argument, the Tobacco Retailers Alliance stated in their submission that a restricted premises order lasting one year would have a devastating effect on a shop and could lead to its closure.

105. Similar concerns were expressed regarding the minimum period for which a restricted premises order could be made. As drafted, the Bill does not specify a minimum time period. Some stakeholders suggested that a minimum of three months should be applied. NI Chest, Heart and Stroke stated in their oral evidence:

“I go back to the point that getting to the stage at which somebody is subject to a banning order is, sadly, as we have established, going to be quite an unusual occurrence. Somebody would have repeatedly broken the law and would have been caught three times. The sanction needs to be substantial. A ban of a matter of weeks or a month is not going to send that signal”.

106. A number of stakeholders believed that a premises should have to display a notice stating they were subject to a restricted premises order, as is the case in Scotland. The view was that having to display a notice would act as a good deterrent, given the negative publicity a retailer would incur if subject to a restricted premises order. NI Chest, Heart and Stroke made the following point:

“The display notice is, in some ways, almost a bigger deterrent than the ban. We hope that retailers will not want to have a sign in their shops saying that they have been banned for a breach of the law because it will not go down well with their customers. We are trying to bring to bear the power of public opinion as much as that of the law”.

107. Similarly, Cancer Focus stated:

“It will increase awareness among their customers, particularly the children. It will definitely increase awareness among other retailers, at least in that geographical area and perhaps further afield”.

108. The Chief Environmental Health Officers Group believes that a notice would provide clarity for the public:

“It makes it very clear that those premises cannot sell tobacco. It also makes it easier for the premises, in that people coming in will not be asking for tobacco. Those premises will have been restricted from selling tobacco for the period of the notice, and we certainly believe that it would be appropriate to display that”.

109. Another significant issue in relation to clause 7 was the definition of a tobacco offence. This issue is dealt with in clause 7 (14), where the “tobacco offences” which count towards both restricted premises orders and restricted sales orders are set down. A range of stakeholders, including the tobacco manufacturers and retailers, argued that an illicit tobacco offence committed under the Tobacco Products Duty Act 1979 and the Customs and Excise Management Act 1979 should be considered a “tobacco offence” for the purposes of the Bill. This would mean in effect that an illicit tobacco offence would count as one of the three offences leading to a restricted premises order or a restricted sales order.

110. In terms of the enforcement of restricted premises orders, the councils and the cancer charities took the view that affected retailers should be required to remove tobacco from the premises for the period over which the restricted order applies preventing any inadvertent breach of the order. This measure would also make it easier for councils to check the retailer was complying with the order. The Chief Environmental Health Officers Group stated:

“Again, we would welcome an inclusion in the Bill of a requirement for those premises subject to a restricted premises order to remove tobacco from the premises for the period of that order. That would prevent any inadvertent breach of that order and certainly would aid the enforcement from our point of view, because if there was an order issued, all we would need to check is that the premises does not have tobacco. Otherwise, to prove a breach of the order, we would have to see a sale of tobacco taking place and be able to produce the evidence of that”.

Clause 8: Restricted sales orders

111. The comments received in relation to this clause were the same as those under clause 7 in relation to the threshold for a restricted sales order to be made, the minimum and maximum period of an order, the proposal that an offence for illicit tobacco should be considered a tobacco offence, and the requirement to display a notice. In relation to the issue of a notice, NI Chest, Heart and Stroke believed this should be enforced, even when it was an employee who was subject to the restricted sales order:

“It is very easy to blame the staff and say that it was some student who was in. At the end of the day, it is the retailer’s job to make sure that the staff are trained and understand their responsibilities. He or she will suffer the consequences if the staff let him or her down”.

112. The retailers also suggested that there should be a readily accessible list of people subject to a restricted sales order – so that they could do pre-employment checks to avoid employing that person. The NI Retail Consortium argued:

“NIRC members seek clarity on where any list of individuals subject to a restricted sales order would be kept. Our members, and any retailer conducting thorough pre-employment checks, would find it beneficial to have access to that information to ensure that they are not unintentionally breaching any of the new conditions by hiring a person who has not declared a ban. It also gives the extra safeguard that retailers are not hiring someone who has already faced a restricted sales order”.

113. Questions were also asked regarding the relationship between restricted sales orders and restricted premises orders. The councils sought clarification on whether they would have the ability to apply for both a restricted premises order and a restricted sales order against the same person.

Clause 9: Appeal against the making of an order under section 7 or 8

114. The Committee did not receive any comments in relation to this clause.

Clause 10: Offences

115. A number of offences are created in clause 10. Japan Tobacco International suggested that the offences under clause 10 (1), (2), and (3) should be deleted from the Bill.

116. On the other hand, other stakeholders believed that the penalties in relation to some of the offences under clause 10 were too low. In relation to clause 10 (7) which specifies a fine not exceeding level 5 (£5,000), NI Chest, Heart and Stroke supported this being raised to a fine not exceeding £20,000 as applies in Scotland.

Clause 11: Enforcement by councils

117. Some general comments were made in relation to clause 11. Limavady Borough Council stated that it would be useful if test purchase exercises were recognised in legislation as a valid enforcement power, as they believe there is an inconsistency in enforcement across Northern Ireland. Cancer Research UK made the point that more training and resources are required for environmental health officers and that a monitoring and evaluation system should also be established to identify the impact of the Bill in reducing underage sales.

Clause 12: Powers of entry

118. The Northern Ireland Independent Retail Trade Association suggested that the words “other than premises used only as a private dwelling house” should be deleted from clause 12 (1) (a), as they believe that people run retail businesses from their homes. However, in oral evidence, the Department explained that if someone is using a private dwelling to sell tobacco, it is questionable whether that is still a private dwelling or has become a retail premises. In theory, if a tobacco control officer was aware of someone selling tobacco from their house, they could go in and carry out a test purchase. If that person was not registered as a tobacco retailer they would be committing an offence under the legislation. However, in terms of accessing a private dwelling where there is a suspicion that illicit tobacco is being sold, the Department advised that that is a matter for HMRC and the police, not council environmental health officers.

Clause 13: Fixed penalties for certain offences

119. The majority of comments received supported this clause, however Japan Tobacco International recommend its deletion.

Clause 14: Use of fixed penalty receipts

120. The Northern Ireland Independent Retail Trade Association proposed that this clause is amended to allow councils to issue fixed penalty receipts in relation to offences committed under section 8H(4) of the Tobacco Products Duty Act 1979.

121. Japan Tobacco International recommended the deletion of clause 14.

Clause 15: Withdrawal of fixed penalty notices

122. The councils and the cancer charities asked for clarification on the time period in which representations could be made under clause 15 (4). They were concerned that somebody would pay a fixed penalty notice and, down the line, when facing a banning order, would say that they should not have paid and intended to appeal. In its oral evidence, the Department advised that, if someone accepts and pays a fixed penalty notice, they accept that they have committed that offence and, therefore, discharge any right of appeal.

123. Japan Tobacco International recommended the deletion of clause 15.

Clause 16: Obstruction, etc. of authorised officers

124. The councils suggested that the level of penalty for obstructing an authorised officer should be changed from a level 3 (£1,000) to a level 5 (£5,000).

Clause 17: Offences by bodies corporate

125. The Committee did not receive any comments in relation to this clause.

Clause 18: Amendment of the Order of 1978

126. A range of stakeholders suggested that the penalty currently available to the courts in relation to a breach of Article 3 of the Health and Personal Social Services (NI) Order 1978, which is selling tobacco to under 18s, is too low.

127. It is currently a level 4 fine (£2,500). The councils and charities argued that this level of fine is too low to act as a deterrent against selling tobacco to children. For example, NI Chest, Heart, Stroke stated:

“One of the things that we asked for then was that the maximum penalty should be raised from £2,500, which was set by Lord Melchett in 1978. It was not done in 1991 or 1992, and we need to do it now because the fixed penalties tend to be a percentage of that maximum. Therefore, if you are setting the maximum at £2,500, you are going to get a fixed penalty of a couple of hundred pounds. We recommend that it goes up to around £20,000 so that we get realistic fixed penalties for people who are selling a product that is killing half of its users. It is a lethal, addictive product”.

Clause 19: Statutory charges

128. The Committee did not receive any comments in relation to this clause.

Clause 20: Vehicles, vessels, etc.

129. The Committee did not receive any comments in relation to this clause.

Clause 21: Service of notices in electronic form

130. The Committee did not receive any comments in relation to this clause.

Clause 22: Interpretation

131. The Committee did not receive any comments in relation to this clause.

Clause 23: Transitional provision

132. The Committee did not receive any comments in relation to this clause.

Clause 24: Regulations and orders

133. The Committee did not receive any comments in relation to this clause.

Clause 25: Commencement

134. The Committee did not receive any comments in relation to this clause.

Clause 26: Short Title

135. The Committee did not receive any comments in relation to this clause.

Additional Comments

136. The Committee received several comments which were not directly related to any of the clauses of the Bill.

137. The issue of the need for more awareness and educational programmes was raised by Cancer Research UK, Imperial Tobacco, the Tobacco Manufacturers Association and Japan Tobacco International, so that retailers will be aware of the requirements of the legislation. The retailers and manufacturers also highlighted the importance of the “No ID No Sale” and Citizencard Schemes.

138. The National Federation of Retail Newsagents and Japan Tobacco International expressed disappointment that the Bill did not deal with the issue of illicit tobacco sales, which they believe is a major problem in Northern Ireland.

139. The councils and others suggested that the Bill should be amended to allow for a fixed penalty notice to be issued for an offence under article 4A of the Children and Young Persons (Protection from Tobacco)(NI) Order 1991. This legislation allows the Department to make regulations in relation to sales of tobacco from vending machines, and regulations were made on this issue in 2012.

140. Many stakeholders, including the retailers and the manufacturers, proposed that the Bill should create an offence for an adult to purchase tobacco on behalf of someone under 18 (proxy purchasing). This offence has been introduced in Scotland.

Clause by Clause Consideration of the Bill

141. The Committee undertook its clause by clause scrutiny of the Bill on 25 September 2013 – see Minutes of Evidence in Appendix 2.

Clause 1: Register of tobacco retailers

142. The Committee indicated it was content with the clause as drafted subject to the proposed amendments agreed with the Department providing for a single body – the “registration authority” to maintain the register.

Clause 2: Application for registration

143. The Committee indicated it was content with the clause as drafted subject to the proposed amendments agreed with the Department providing that a person who has been convicted of an illicit tobacco offence, resulting in a custodial sentence (whether suspended or not), shall not be allowed to register as a tobacco retailer for a period of five years from the date of the conviction.

Clause 3: Duty to notify certain changes

144. The Committee indicated it was content with the clause as drafted subject to the proposed amendments agreed with the Department changing the notification period from three months to 28 days.

Clause 4: Changes to and removal from the Register

145. The Committee indicated it was content with the clause as drafted subject to the proposed amendments agreed with the Department allowing for a retailer who was on the register, and was subsequently convicted of an illicit tobacco offence, resulting in a custodial sentence (whether suspended or not), to be removed from the register.

Clause 5: Inspection of the Register

146. The Committee indicated it was content to oppose clause 5 as drafted, as a consequence of the Departmental amendment to clause 1.

Clause 6: Access by Department and councils to the Register

147. The Committee indicated it was content to oppose clause 6 as drafted, as a consequence of the Departmental amendment to clause 16.

Clause 7: Restricted premises orders

148. The Committee indicated it was content with the clause as drafted subject to the proposed amendments agreed with the Department providing for three offences in five years to result in a restricted premises order, the minimum period of a restricted premises order to be 28 days and the maximum period to be three years, and for Illicit tobacco offences to be included as relevant tobacco offences for restricted premises and restricted sales orders.

Clause 8: Restricted sale orders

149. The Committee indicated it was content with the clause as drafted subject to the proposed amendments agreed with the Department providing for three offences in five years to result in a restricted sales order and the minimum period of a restricted sales order to be 28 days and the maximum period three years.

Clause 9: Appeal against the making of an order under section 7 or 8

150. The Committee indicated it was content with the clause as drafted subject to the proposed amendments agreed with the Department providing a requirement for premises subject to a restricted premises order to display a sign and remove tobacco from the retail area.

Clause 10: Offences

151. The Committee indicated it was content with the clause as drafted subject to the proposed amendments agreed with the Department creating offences for failing to display a notice if subject to a restricted premises order and failing to remove tobacco products from the retail area if subject to a restricted premises order.

Clause 11: Enforcement by councils

152. The Committee indicated it was content to oppose clause 11 as drafted, as a consequence of the Departmental amendments to clauses 12 – 16.

Clause 12: Powers of entry

153. The Committee indicated it was content with the clause as drafted subject to the proposed amendments agreed with the Department to consolidate in one place in the Bill all the enforcement provisions on powers of entry, fixed penalty notices and obstruction of officers.

Clause 13: Fixed penalties for certain offences

154. The Committee indicated it was content with the clause as drafted subject to the proposed amendments agreed with the Department to allow for fixed penalty notices to be issued for sales from vending machines, selling unpackaged cigarettes, and failure to display a warning notice.

Clause 14: Use of fixed penalty receipts

155. The Committee indicated it was content with the clause as drafted.

Clause 15: Withdrawal of fixed penalty notices

156. The Committee indicated it was content with the clause as drafted.

Clause 16: Obstruction, etc. of authorised officers

157. The Committee indicated it was content with the clause as drafted subject to the proposed amendments agreed with the Department to increase the fine for obstructing an officer from level 3 to level 5 and to require every council to make available to every other council, the registration authority, and the Department information on fixed penalty notices, convictions, restricted premises and restricted sales orders.

Clause 17: Offences by bodies corporate

158. The Committee indicated it was content with the clause as drafted.

Clause 18: Amendment of the Order of 1978

159. The Committee indicated it was content with the clause as drafted subject to the proposed amendments agreed with the Department to increase the fine for selling to under 18s from level 4 to level 5 and to create an offence of proxy purchasing.

Clause 19: Statutory charges

160. The Committee indicated it was content with the clause as drafted.

Clause 20: Vehicles, vessels, etc.

161. The Committee indicated it was content with the clause as drafted.

Clause 21: Service of notices in electronic form

162. The Committee indicated it was content with the clause as drafted.

Clause 22: Interpretation

163. The Committee indicated it was content with the clause as drafted subject to the proposed technical amendment agreed with the Department.

Clause 23: Transitional provision

164. The Committee indicated it was content with the clause as drafted subject to the proposed technical amendment agreed with the Department.

Clause 24: Regulations and orders

165. The Committee indicated it was content with the clause as drafted.

Clause 25: Commencement

166. The Committee indicated it was content with the clause as drafted.

Clause 26: Short title

167. The Committee indicated it was content with the clause as drafted.

Long Title

168. The Committee indicated it was content with the Long Title of the Bill subject to the proposed Departmental amendment to reflect the increased scope of the Bill.

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