Tobacco Retailers Bill as Introduced Explanatory and Financial Memorandum
This Memorandum refers to the Tobacco Retailers Bill as introduced in the Northern Ireland Assembly on 15 April 2013 (Bill 19/11-15)
1. This Explanatory and Financial Memorandum has been prepared by the Department of Health, Social Services and Public Safety in order to assist the reader of the Bill and to help inform debate on it. It does not form part of the Bill and has not been endorsed by the Assembly.
2. The Memorandum needs to be read in conjunction with the Bill. It is not, and is not meant to be, a comprehensive description of the Bill. So where a clause or part of a clause or schedule does not seem to require an explanation or comment, none is given.
BACKGROUND AND POLICY OBJECTIVES
3. The Department of Health, Social Services and Public Safety is committed to tackling the high levels of premature death and preventable illness caused by tobacco. Smoking is responsible for around 2,300 deaths in Northern Ireland each year and is a major risk factor for coronary heart disease, strokes and other diseases of the circulatory system.
4. The primary policy objective of the Department which underpins the Tobacco Retailers Bill is 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.
5. A formal consultation on the policy proposals informing the Bill was carried out from 14 December 2009 to 12 March 2010. The consultation attracted 64 responses from a variety of sources including: the general public; local councils, health and social care organisations; individual shops and retail outlets; larger supermarkets; the voluntary and community sector; tobacco manufacturers; and the Northern Ireland Police Service. A summary report of the consultation responses can be found at http://www.dhsspsni.gov.uk/consultation-report-underage-sales-of-tobacco-products.pdf
6. A number of options were considered and explored in detail within the context of a Regulatory Impact Assessment which assisted the Department in identifying a preferred option. The other options considered were discounted either because it was felt that they would create an undue burden on retailers and district councils, for example, the option of introducing a licensing system, or that they wouldn’t satisfactorily meet the Department’s objectives.
7. The preferred option, which has informed the Bill, is the introduction of a registration scheme alongside provisions which will enable the courts to prohibit retailers from selling tobacco for a set period of time if they commit a number of relevant tobacco offences. This will provide a further deterrent to retailers from selling tobacco to persons under the age of 18, as well as providing an authorised officer of a district council with a list of tobacco retailers in the district of that council. 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 tobacco to persons under the age of 18.
8. The Bill has 26 clauses and comprises 6 headings:-
Register of tobacco retailers - consists of 6 clauses and covers the requirement for all tobacco retailers to register with a district council in accordance with the Bill and the application process for registering. It places a duty on retailers to notify of certain changes to the register and sets out the circumstances under which the register may be accessed and inspected.
Persistent commission of tobacco offences - contains 3 clauses which set out the circumstances under which a court of summary jurisdiction can make a restricted premises order or a restricted sale order to prohibit the sale of tobacco either on a named premises or by a named person. It also sets out the process for appealing such an order.
Offences - contains only 1 clause which covers all the new tobacco offences which will be created as a result of the Bill. These offences relate to the register and selling tobacco in contravention of a restricted premises order or a restricted sale order.
Enforcement powers, etc - comprises 7 clauses and relates to the enforcement of provisions in the Bill, including powers of entry. The clauses also outline fixed penalties for certain offences and deal with the obstruction of officers in exercise of their functions under the Bill, as well as offences by bodies corporate.
Supplementary - consists of 3 clauses providing for an amendment to the Health and Personal Social Services ( Northern Ireland) Order 1978, an amendment to the Land Registration Act ( Northern Ireland) 1970 and a regulation making power.
General - consists of 6 clauses and makes provision in respect of the delivery of notices in electronic form, interpretation of the Bill, subordinate legislation and sets out the title and commencement dates.
COMMENTARY ON CLAUSES
A commentary on the provisions follows below. Comments are not given where the wording is self-explanatory.
Clause 1: Register of tobacco retailers
Provides that every district council in Northern Ireland must keep a register of persons carrying on a business involving the sale of tobacco within its own district.
Clause 2: Application for registration
Provides for a person to apply to the council to be registered, or to add further premises to an existing entry in the register. It also sets out the information required to be included in the application. The council can only refuse an application if: not all the information required is provided; or if the application is not made in the correct form and manner; or if the premises stated in the application are subject to a restricted premises order; or if the applicant is subject to a restricted sale order. The clause also allows for the making of regulations to permit the charging of fees for making an application.
Clause 3: Duty to notify certain changes
Requires a registered person to inform the relevant council of any changes in the person’s name or address or if the person ceases to carry on a tobacco business. The council must be informed within 3 months of the date of the change.
Clause 4: Changes to and removal from the register
Provides for a council to correct the register as it considers appropriate. It also requires a council to remove premises subject to a restricted premises order from the register. This clause allows the council to remove a person from the register if it is not satisfied that the person is carrying on a tobacco business. If such person is removed from the register and that person notifies the council within a specified period of time that he or she is still carrying on a tobacco business, the council must reinstate the person in the register. A council is required to notify a registered person of any changes to his or her entry as soon as is reasonably practicable.
Clause 5: Inspection of the Register
Requires each district council to make the register it maintains available to the public for inspection at all reasonable hours. A person may take copies of the register. It specifies the location at which the register will be made available and it also allows for the making of regulations to permit the council to charge fees in relation to taking copies of the register.
Clause 6: Access by Department and councils to the Register
Requires each council to make available information contained within its register to the Department or to other councils as required. The information can only be used by the Department or other councils for the purposes of enabling or assisting the Department or the other council to perform its functions under this Bill.
Clause 7: Restricted premises orders
Provides that a court can, following an application by a council, make a restricted premises order banning the sale of tobacco on premises if three or more relevant offences (as defined in subsection (2)) have been committed in relation to those premises by a person within a three-year period. A restricted premises order has effect for a maximum period of one year. This clause requires that a council must give notice of the application to every person affected by it. It provides that persons affected by the application for a restricted premises order may make representation to the court and set out the circumstances under which the court may vary or discharge the order. While a restricted premises order has effect, it is a statutory charge. “Tobacco offence” is defined in this clause.
Clause 8: Restricted sale orders
Provides that a court can, following an application by a council, make a restricted sale order banning a particular individual from selling tobacco or having any management functions in relation to the sale of tobacco. The ban also applies in relation to any machines which may be held on the premises for the sale of tobacco products. This clause provides that the court may only make a restricted sale order if the individual has committed three or more relevant offences (as defined in subsection (2)) within a three-year period. The period of the order cannot exceed one year.
Clause 9: Appeal against the making of an order under clause 7 or 8
Provides that a person may appeal against a restricted premises order or a restricted sale order made under clause 7 or 8. It provides that the order will not apply until either the period within which an appeal may be made has expired, or if an appeal is ongoing, until that appeal has been determined or withdrawn.
Clause 10: Offences
Creates a number of offences both in relation to the register and in relation to breaching a restricted premises order or a restricted sale order. It also sets out the different levels of penalty for offences.
Clause 11: Enforcement by councils
Places a duty on a district council to enforce the provisions of the Bill in its district.
Clause 12: Powers of entry
Provides an authorised officer of a district council with a power of entry in relation to premises (other than premises only used as a private dwelling house) for the purpose of the proper exercise of the officer’s functions under the Bill. An authorised officer may take possession of documents and records and require other people to provide him or her with information and assistance under this clause.
Clause 13: Fixed penalties for certain offences
Provides that an authorised officer of a council may give a fixed penalty notice to a person if the officer believes the person has committed an offence under clause 10 (1), (2) or (3) of the Bill. It sets out the information which a fixed penalty notice is required to contain including information on the amount payable, deadline for payment and discounted amount for early payment.
Clause 14: Use of fixed penalty receipts
Requires that a council must only use payments received from fixed penalty notices for the purposes of its functions under this Bill, or for such other functions the Department may specify by regulations. It also places a duty on councils to provide the Department with information on the use of fixed penalty receipts if required.
Clause 15: Withdrawal of fixed penalty notices
Provides that a council can withdraw a fixed penalty notice. In the case of a fixed penalty notice being withdrawn, no criminal proceedings for the related offence can be brought forward, and any payments made by the individual following receipt of the fixed penalty notice must be repaid by the council.
Clause 16: Obstruction, etc. of authorised officers
Provides that anyone who intentionally obstructs an authorised officer acting in the exercise of the officer’s functions under this Bill commits an offence. It also provides that failure to comply with a requirement of an authorised officer or giving false information to such an officer is an offence.
Clause 17: Offences by bodies corporate
Provides that, if an offence under this Bill is committed with the consent or connivance of, or is attributable to the neglect of a partner of a body corporate then that partner, as well as the partnership, is guilty of the offence.
Clause 18: Amendment of the Order of 1978
Amends the Health and Personal Social Services (Northern Ireland) Order 1978 to provide a power of entry for authorised officers in relation to premises (other than premises used only as a private dwelling house). It also provides for the giving of fixed penalty notices for certain offences.
Clause 19: Statutory charges
This clause amends Schedule 11 to the Land Registration Act (Northern Ireland) 1970.
Clause 20: Vehicles, vessels, etc.
Provides that the Department may, if it considers it necessary or expedient, modify the Bill by regulations in its application to vehicles, vessels, stalls or moveable structures.
Clause 21: Service of notices in electronic form
Provides that relevant notices, as defined within the clause, may be delivered in electronic form. Such notices may only be delivered electronically if the recipient has agreed to an electronic address and the electronic form for the notice. T he clause specifies that such notices will be considered to have been delivered at 9am on the working day following the day on which it is transmitted. The clause also gives the Department the power to make regulations amending the provisions about the delivery of notices in electronic form.
Clause 22: Interpretation
Provides definitions for specific terms used throughout the Bill.
Clause 23: Transitional provision
Provides that clauses 7 and 8 do not apply where any of the offences mentioned in the respective clauses were committed before the commencement of the respective clauses. Also provides that new Articles 6A, 6B and 6E of the Health and Personal Social Services (Northern Ireland) Order 1978 (as inserted by clause 18) do not apply where any of the offences mentioned in those new Articles were committed before the commencement of that section.
Clause 24: Regulations and orders
Contains provision about the Assembly’s control over regulations under the Bill.
Clause 25: Commencement
Provides that all of the clauses, except for clause 22, 24 and 26 come into operation on the day or days appointed by the Department.
Clause 26: Short title
Specifies the name of the Bill.
FINANCIAL EFFECTS OF THE BILL
9. The Bill would not impose any significant additional costs to the Department or to retailers and the enforcement would not have any significant additional costs for local district councils.
HUMAN RIGHTS ISSUES
10. The provisions of the Bill are compatible with the European Convention on Human Rights.
EQUALITY IMPACT ASSESSMENT
11. The aim of the measures within the Bill is to protect the public’s health by making it more difficult for persons under the age of 18 to access tobacco products. The Department carried out a preliminary screening of the policy proposals and, as part of the screening process, concluded that an Equality Impact Assessment was not necessary. The Department is content that there will be no adverse impact on any of the groups listed under section 75 of the Northern Ireland Act 1998.
12. Specific questions on section 75 issues were included in the consultation document. None of the responses received indicated that any of the proposed measures would have an adverse impact on any of the nine section 75 groups of people.
SUMMARY OF THE REGULATORY IMPACT ASSESSMENT
13. The Department carried out a partial Regulatory Impact Assessment (RIA) covering the various options for increasing sanctions and retailers. The RIA also examined the potential impacts on business and sought to quantify the possible health impact of the options considered.
14. The recommended outcome of the RIA was that a registration system should be introduced alongside provisions which will enable the courts to prohibit retailers from selling tobacco for a set period of time if they commit a number of relevant tobacco offences. It also recommended that authorised officers of district councils should have the power to issue fixed penalty notices to retailers found to be selling tobacco to persons under the age of 18.
15. A final RIA has been produced taking account of views offered during the consultation period. No substantive changes were made with regards to the recommended outcome of the RIA as a result of the consultation responses.
16. The Minister of Health, Social Services and Public Safety had 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.”