Protection of Children’s Health from Tobacco Smoke Bill 2012: Committee Stage

Photo of Jillian van TurnhoutJillian van Turnhout (Independent)

We know the Minister supports the legislation. Senators Crown, Daly and I put forward the Bill and we debated it in the House in May 2012, 19 months ago. It was a constructive debate that was supported by all and I felt we were going places. We have met since and I can catalogue the meetings and the contact back and forth, but we have not made progress.

I thank the Leader for allowing us as Members time to table amendments following queries raised by other Departments through the Department of Health. We tabled amendments in an effort to progress the Bill. I believe this is a simple measure. Of course we must examine issues like the presumption of age and the rebuttable presumption. As I said to the Minister’s officials, I have prepared a paper on the issue of presumption of age. The matter can be dealt with by the inclusion of a rebuttable presumption and that is what we are trying to do. There are several instances of it in law such as section 32 of the Child Care Act 1991 and section 53(1) of the Children Act 2001. The provision exists in legislation so why can we not progress the Bill? I have questions. As Senator Crown has joined us, I offer him the floor and I will rejoin the debate later.

Photo of Paschal MooneyPaschal Mooney (Fianna Fail)

We are debating section 1. Is section 1 agreed?

Photo of John CrownJohn Crown (Independent)

I ask the House for a 90 second sos. I misread the Order of Business and thought that we were not debating the legislation. I need to have a quick chat with Senator van Turnhout. May I have one minute? Is my request in order?

Photo of Paschal MooneyPaschal Mooney (Fianna Fail)

Senator Barrett wishes to make a contribution.

Photo of John CrownJohn Crown (Independent)

If my request is not in order, I will continue.

Photo of Paschal MooneyPaschal Mooney (Fianna Fail)

The Senator can debate the section after Senator Barrett.

Photo of Sean BarrettSean Barrett (Independent)

I welcome the Minister and his interest in the affairs of the Seanad is appreciated. Senator Crown is the expert on health in the House but I will make a few observations from the transport point of view. Let us examine the penalty points system and the use of mobile telephones. Mobile telephone usage is the single most important element. Quite rightly, the authorities and the Garda Síochána, view people on mobile telephones as a major transport hazard. It is a major source of penalty points and fines for those involved due to a fear that people will be distracted from driving. From the transport point of view, somebody opening a packet of cigarettes, finding matches or a lighter to light them, flicking ashes and discarding the contents, typically out of the window, is much more damaging in traffic terms than encounters with a mobile telephone. Smoking involves many extra transactions. We take seriously the use of a mobile telephone in a car because we want to prevent accidents. As a result, we have reduced the number of fatalities on Irish roads from 650 down to about 160 last year but, unfortunately, there will be more. The Minister and Senator Crown are the experts on health but I am a transport economist and think there is a strong case for the control of people smoking in cars. Smoking is more dangerous than using a mobile telephone in a vehicle, of which the Garda, the Minister for Justice and Equality and others take a dim view. Penalty points have proved successful as a preventative measure in reducing fatalities, especially the deaths of young men under 35 for whom car accidents used to be the major source of ill health and death. The number has been reduced dramatically. Is tobacco smoking in cars not a danger in terms of safety and health promotion? All Senators are keen to have more safety and health promotion.

I will hand over to Senator Crown and will allow him to speak. The transport aspects of the legislation are very good and I lend them my support.

Photo of John CrownJohn Crown (Independent)

I thank the Acting Chairman and the Minister. I apologise to the Minister for my apparent inattention. I meant no disrespect by my late arrival. I misunderstood the Order of Business and thought we would debate the health insurance Bill for longer. I had wanted to make a contribution on that legislation too, but more anon.

As sponsors of the Bill, we have taken the unusual step of bringing forward Committee Stage amendments that reflect two issues. First, we are cognisant of the public and welcome the support the Minister gave us when we debated the legislation on Second Stage. It gave us a great boost to our morale, as legislators, that the Government accepted back bench Opposition legislation on merit, a procedure that is somewhat unusual in this Parliament. I am truly very grateful to the Minister for doing so. We wanted the opportunity to debate it again with him and that is one of the reasons for advancing amendments at this stage. Our interaction with the rest of the health service has been less productive in respect of the Bill in the 20-odd months since we first proposed the legislation on First and Second Stages in the House, back in May 2012.

I could go through a turgid recitation of the various meetings that have taken place. There have been many but I will just bring one to the Minister’s attention. The most recent formal meeting took place a year ago and was with the most senior authorities in the Department of Health. At that time we were promised we would have what they called the heads of the Bill, which I believe was their way of tabling Committee Stage amendments, by the end of January 2013. That was almost one year ago and nothing has happened. Since then it has been indicated that the Minister’s very welcome plain packaging Bill has a higher priority. He will find strong support from me and I suspect across the House for his legislation. However, there was not a great degree of resources or attention put into passing our legislation. We believe the Protection of Children’s Health from Tobacco Smoke Bill is relatively simple legislation that would give the Minister a quick win in terms of passing a law to advance tobacco control.

The Minister mentioned concerns in his Second Stage speech in the House about what he described as serious flaws in the Bill, but we were delighted that he was prepared to advance the legislation to Committee Stage in order that we could avail of the expertise in the various Departments to correct, amend and strengthen the Bill and ensure it was passed. When we first met after the Second Stage in May 2012 with several of the Minister’s colleagues with responsibility for tobacco control, concerns were expressed about constitutional issues, such as whether one could smoke in a private place and things like that, although that concern seems to have been dismissed fairly quickly. There was a substantial amount of technical comment on issues related to how the Garda would enforce the Bill because, ultimately, it is its members who must enforce the legislation. Our amendments today address that by incorporating a reference to the Bill in the Road Traffic Act and allowing the Minister for Transport, Tourism and Sport to introduce fixed charges as she or he sees fit in terms of the enforcement of the Bill. We also needed to go into some detail about fines and how they would be codified, and that is dealt with in our amendments. There was a question that perhaps the European technical standards directive would be invoked, but the opinion is that it would not. There was a feeling that the Bill, once passed, could be commenced relatively quickly.

I am not getting at the Minister about this but I want to give him a brief time line, and I will not name names.

May 3: Publication, introduction.
May 9: Second Stage.
May 18: Meeting with senior Department of Health officials.
May 25: Telephone call with senior Department of Health officials.
May 29: Meeting with senior Department of Health officials.
June 2012: Meeting with senior Department of Health officials.
E-mails sent on July 16 with proposed amendments not answered.
E-mails sent on August 22. No answer, no voice mail left.
August 22: Further e-mail sent to relevant official.
August 12: Telephone call. No answer. Left voice mail.
August 27: Telephone calls. No answer.
October 4: E-mail finally received, again with a commitment to expeditious processing.
November 1: Further e-mail from me to the Minister outlining my concern over the delays.
November 2: Response from official; still nothing happening.
November 21: E-mail from official to one of my co-sponsors; again no particular action happening.
December 12: E-mail back confirming that the Department of Justice and Equality had made observations.
December 21, almost one year ago: Meeting in Hawkins House with very senior officials of the Department of Health. Told the Bill is a priority and we would see action by 30 January 2013. Nothing.
March 26: E-mails seeking clarification. March 26: E-mail back; will reply once the AG considers it in detail.
April 8: further advice being sought from AG.
April 10: An attempt to set up another meeting. Three months after the deadline I wish we would be told that we had the guidelines available to us.
April 24: Further meeting.
June 25: E-mail sent. Telephone call to official – no answer. Left voice mail.
June 27: E-mail from official later; would contact AG’s office at some unspecified date.
July 1: E-mail from official, AG’s office. Will update her later that week.
July 17: More feedback required from AG.
September 17: At this stage we are getting up to a real-time account of it.

I believe that with a little action by the Executive the Minister has the status, clout, authority and the interest to make this happen.
We are proposing a number of amendments on Committee Stage we believe address many of the technical concerns the Minister described as constituting serious flaws with the Bill. Some of us are new to this business but we are prepared to take on board any of the advice the Minister has to offer to strengthen the Bill.It was the intent when the Bill was proposed that the summer of 2012 would be a time when children, legislatively, would have been protected during the summer holiday period from the consequences of adults smoking in cars with them. That did not happen. I then hoped it would happen in time for the summer of 2013; it has not. Let us please not delay it any further than this.

If I may I will turgidly recite some of the reasons for that because in the aftermath of last night’s events, the right wing, pseudo-libertarian, pseudo-free speech lobby are in full thunder crowing and gloating over their victory for free speech and against the nanny state. I am not a great believer in the nanny state but I will make a few comments on why the nanny state is important in this regard. It is beyond controversy that there is an increase in the incidence of asthma and bronchitis as a result of second-hand smoke. It is well understood that there is a unique peril associated with the level of tobacco smoke and its chemical constituent in the small confines of a car. The data are clear that when one cigarette is smoked the level of particulates is 30 times higher for a child in a car than the level the Environmental Protection Agency would be ringing sirens telling people to get off the streets, go into their houses and close the windows. It is 30 times higher yet it is still legally possible for a child to be subjected to that.

The exposure after one hour in a car with smokers is the same as that which a fire woman or fireman would experience in four to eight hours of fighting a bush fire. The emissions are five times higher from a cigarette smoked in the car than from the tail pipe of the car during the period in which smoking one cigarette would take place. One hour spent in a smoky car produces the same occupational exposure as eight hours in a smoky pub which, thankfully, only a few of us have memories of due to the inspired action of one of the Minister’s predecessors, the then Minister, Deputy Micheál Martin, action we hope the Minister will emulate with a series of innovative anti-smoking measures.

The question has arisen as to whether this problem exists. The advocacy groups, the pseudo-civil libertarians who envelope themselves in the cloak of libertarianism, state that sensible, responsible parents will not do this anyway and therefore the nanny state does not need to legislate. The evidence is all around us that sadly, parents do it although they do not do it very often.

The real reason for this Bill is its educational value. It has had an educational value because I personally cannot recall any public debate ever taking place in this country on the scale of the Second Stage debate on the issue of smoking in cars with children. Suddenly, it was an issue people discussed, and it gives that powerful bully pulpit to children themselves because they hear the arguments and they say, “Mammy, don’t be smoking” or “Daddy, don’t be smoking”.

For all these reasons it is critically important that we deal with this small, tight, focused Bill. We have done the heavy lifting for the Departments of Health and Justice and Equality. We introduced the amendments. Can we get a commitment that we will get this Bill passed quickly? We can then join in a full embrace with the Minister in his other great anti-smoking initiatives we would like to support.

After three years of this Government the score card in terms of anti-smoking legislation – this is not a dig at anybody – is as follows: considered four Bills, rejected one last night, promise of another one – the plain packaging Bill – next year. We are still turgidly gluing the smoking in cars Bill through a treacly bureaucracy nearly two years later, and the only Bill that has been passed is the one that makes it easier to sell cheap cigarettes to children and other adults. I know that is not something the Minister wanted; it was enforced on him by inappropriate actions of external agencies from without the State that put him under judicial and commercial pressure to do this but. Sadly, however, that is the track record. Let us start by fixing it today.

I am not sure if we will have an opportunity to speak as we go through the Bill.

Photo of Paschal MooneyPaschal Mooney (Fianna Fail)

Yes. I call Senator Burke.

Photo of Colm BurkeColm Burke (Fine Gael)

I thank the Minister for coming into the House for a second time this week. I welcome the amendments tabled by the proposers of the Bill and for the work they have done in preparing them and in preparing the Bill, which is very detailed.

On the issue of banning smoking in cars with passengers under 18, in fairness, the amendments deal with the issue of producing evidence to prove someone is over 18 but would it be an easier way of dealing with the issue if smoking in cars carrying any passengers was banned completely? From a Garda implementation point of view, that may be an easier way of doing it. I put that forward as an idea to consider from the point of view of enforcement. What Senator Crown has brought forward will protect children but from the point of view of enforcement, an easier way of processing this would be to ban smoking in cars. I do not know whether that is worth looking at once the legislation is passed. The Minister might examine that issue also.

Photo of Mark DalyMark Daly (Fianna Fail)

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I welcome the Minister back to the House. My Seanad colleagues have outlined the time-line on this issue but this is a more fundamental criticism of the system that has allowed it to continue for so long. In other areas where I am dealing with Departments I am told by officials that unless the Minister tells them to do it, it does not happen. We call ourselves legislators but because the officials will not let things happen, and things do not happen, we are not able or allowed to legislate. When I spoke to Senator Crown’s Bill last night I referred to the piece of paper that is in every Department on why something cannot be done.

When there are things that should be done for the most obvious reasons, such as those that Senator Crown has outlined, for example, that a child inhaling cigarette fumes in a car is the equivalent of a firefighter working for eight hours in a forest fire, one has to ask why we would not bring in legislation. Here it is, two years on, yet there are eight more Stages to go. When it is passed in this House it has to go to the other House.

Senator Quinn introduced the Construction Contracts Bill. It made sense. Of course subcontractors should not be left high and dry when the main contractor goes bust. That is not a criticism of this Government because that started under the previous Government. It is the system. This economy and this country have just gone through one of the most fundamental changes in the past five years but the system has not changed. We know this because it has taken two years to get to the third stage in a ten stage process. I hope that the Minister will put his weight behind this. I know that he is working on this issue.

The problem is not the Minister or his concern for this issue. We have met with officials, gardaí, the Department of Health and civil servants but the Attorney General is like the Wizard of Oz, all-seeing and all-knowing yet we can never find out what the Attorney General is actually doing behind the curtain. The Attorney General is not the legislator. She should have a view but every now and then we hear that the Attorney General cannot give an opinion. When there was a question about recalling the Seanad, however, there was no problem circulating the Attorney General’s view on the merits and effect of the recall of the Seanad. The Attorney General should be able to talk to a legislator and identify a person from her office to liaise with the legislator. That is how legislation works. It is not cloak and dagger stuff such that Members of the Opposition or Government cannot speak to the all-seeing and all-knowing Attorney General. I do not care who speaks to the Attorney General but she should sit down and engage in the process.

It is because the process has failed that we are here now, with eight more Stages to go. Will we do it in the lifetime of this Government? I hope that the Government serves every hour of its five years so that we can say, “Yes we can and we did do it”. I do not want to see this going into the next Government as Senator Quinn’s Bill did. It is a failure of the process. I am not blaming the Minister or the Department. It is a failure of previous governments that allowed the system to drag its heels for so long that a Bill that so obviously should be ratified and implemented has sat there without moving. If we were not having this debate it could wait another five years.

Photo of Averil PowerAveril Power (Fianna Fail)

I strongly support this legislation. The last it was discussed in the House the Minister expressed several concerns about making it workable. I understand that Senators have been going back and forth – indeed Senator Crown has catalogued all the correspondence over that period – with a view to trying to reach agreement on this issue. The amendments before us today present a scheme that is workable. It is perfectly reasonable to insert provisions whereby there is a presumption that somebody is under age unless they show otherwise as Senator van Turnhout detailed earlier. The penalties scheme is also workable because it is based on a fixed charge, which we know works . All we need is leadership on this. When we discussed other smoking legislation yesterday evening Members on all sides of the House stated that nobody doubts the Minister’s bona fides on this broad issue but we need to see measures being taken rather than simply talk about them.

The Minister has been quoted in The Irish Times as saying that he is personally in favour of banning smoking in cars but he thinks that the public needs persuading on the issue. That is a chicken and egg situation. There was huge opposition to the workplace smoking ban when it was mooted. Vintners and other powerful lobby groups ran a big campaign to try to get the Government to back down but it did not because our current party leader, in his then position as Minister for Health, stuck with it and said it was right. Whether people realise it yet, or not, it is right. We have seen a huge change in mind-set on smoking in the workplace over the past few years. Most people now understand that it is completely unacceptable, and it has caused them to think more about smoking in front of other people.

It is very unfortunate that we have to debate legislation about people smoking in front of children in their cars. Personally, I think it is disgusting. It is incredibly unfair, particularly for a small child to be locked in a tiny space. Senator Crown has already detailed some of the health impacts, but the figures are far worse than a firefighter dealing with a wild fire, or 23 times more toxic than being subjected to passive smoking in a house. I cannot fathom the idea that anybody would think it is acceptable to smoke in front of their children in such a confined environment but unfortunately it does happen. It is up to us as the legislature to put in place legislation to protect the most vulnerable people in our society from such health impacts. It is our job to put in place legislation to protect children from passive smoking. We know how dangerous it is and what impact it has on their health not just in the short term but the long term too. We know the rates for respiratory problems and for asthma caused by passive smoking.

This legislation is very reasonable and deserves the Minister’s support. It works in other countries. There are several states in Australia, Canada and the United States of America that have bans on smoking in cars where children are present, and in several other countries too. I urge the Minister to show leadership on this and support and push through this legislation. If he has problems with the amendments before us, let us hear them and tease them out. If we have to adjourn Committee Stage today and come back within a set time-frame to have agreement on the final wording of the Bill then so be it. I ask the Minister please to get behind this legislation and let us all work on a cross-party basis to deal with this issue. It is one small part of the picture of protecting people from tobacco-related harm in this country but it is important because it protects people who have little choice for themselves, children. They cannot make that decision. We have talked about packaging of cigarettes and health warnings and so on, to protect adults from the harm they do to themselves with tobacco. It is our job to protect children.

Photo of Marie MoloneyMarie Moloney (Labour)

I too welcome the Minister back to the House. Every time someone puts forward an idea here we stand up and thank and congratulate that Senator. I genuinely thank the Senators involved for bringing this forward because although this is a simple Bill it is one of the best I have seen here. We need to reform the process whereby when the Opposition comes up with a good idea, a good Bill or suggestion, we accept and study it for what it is, rather than turn it down just because it comes from the Opposition.

Thirty years ago, when I was driving my car with my father-in-law and my son, who was four at the time, my son piped up from the back seat to say, “Grandad, please stop smoking in the car. It is horrible”. Out of the mouth of babes, as they say. To this day nobody has ever smoked in our car because I decided he was right. I had not the courage to say it. From that day, however, we have had the courage to say that we do not want people smoking in the car or we do not allow it. Over 30 years ago my son realised that it was not nice to be sitting in a car with smoke in it. Today he is in the same profession as Senator Crown, albeit at a much lower level. He is a general practitioner. He cannot abide smoking. He thinks that it is one of the worst things a person can do for their health.

This is an excellent Bill. I urge the Minister not to let it sit but to move on it and pass it. Sometimes the simplest things are overlooked. We have made it compulsory to wear seat belts in cars, banned speaking on mobile telephones while driving, and introduced seats for children. Why can we not bring in this ban? It is easy enough to police. If gardaí when they stop us at night can put their heads into the car to check for the smell of alcohol they can certainly smell smoke too.

Whatever about banning it completely, which may be a good idea, at least adults can say, “Please do not smoke in my car”, whereas children sitting in the back cannot very well say that. I ask the Minister to please not leave this parked for too long and to bring forward whatever amendments he must as quickly as possible to get this Bill initiated.

Photo of Jillian van TurnhoutJillian van Turnhout (Independent)

On going through my notes, I came across mention of Fionn O’Callaghan from County Wexford, whom the Minister will remember. He was seven when we started this process and he is now nine, and I hope he will not be an adult when we bring this in. He took it on himself to write to the Taoiseach, asking him to use his good offices to introduce legislation to enforce a smoking ban where children are present in a car. His belief in us, as legislators, is something we have to live up to.

The Minister challenged us to raise public awareness. I have done considerable media work in the past 19 months on this issue, particularly with local media, and I have been asked how many cases we are talking about. Since we started this process, this has got me looking at cars and, increasingly, I see people smoking in cars with children. Today in the Dáil and tomorrow in the Seanad, we are going to, appropriately, rush through legislation, the Adoption (Amendment) Bill. Just 23 families are affected by that legislation, yet we will rush it through in two days. Therefore, even if we are only talking about a handful in the case of smoking in cars, it is enough. We are talking about public education. What has been shown by this process is that where there is a will, there is a way for us to do this. However, to have taken 19 months is not acceptable.

The Bill is not unprecedented. Cyprus, for example, has banned smoking in cars with children present, various jurisdictions across North America have done so and many more jurisdictions are in the process of doing so. Several Canadian provinces, a number of Australian states and other individual jurisdictions have come down on the side of introducing legislation. This is not a civil liberties or a left versus right issue, rather it is a public health issue that garners public favour.

Children face particular additional risks associated with passive smoking as they breathe more rapidly than adults and, therefore, take more breaths per minute. As a result, they have a greater level of internal exposure to any environmental toxin in the air they breathe. Furthermore, owing to their small size and the efficiency with which gas exchange occurs in their lungs, they have a higher level of tissue exposure per molecule of poisonous chemical in the atmosphere than adults. It is beyond doubt that children who are exposed to second-hand smoke run additional risks, especially in the areas of infection, bronchitis, asthma and, very worryingly, meningitis, which is often a sequel of other respiratory infections. Sadly, there is conclusive evidence that sudden infant death syndrome is more common in infants who are exposed to second-hand smoke.

The national longitudinal study of children noted in 2009 that approximately 60% of nine year olds in Ireland travel to school by car, with an average journey time of ten minutes each way. One can imagine the damage done to those children if an adult is smoking. In addition, the British Medical Association has stated its belief, following an analysis of the data, that the incidence of childhood cancers, by which I mean not only respiratory cancers but those cancers which, sadly, occur in children, including brain tumours and lymphoma, are more common in children who are exposed environmentally to second-hand smoke. There are also some data to show that children who have early childhood exposure may have a higher risk of developing lung cancer in later life.

Within one minute of a cigarette being lit in an enclosed car, the occupational concentration of dangerous particulates in smoke is, as Senator Crown said, 30 times higher than the level at which the Environmental Protection Agency in the United States advocates that people flee the streets and close the windows in their homes to escape environmental smoke. The exposure after one hour in a car with smokers is the same as that which a firefighter experiences in four to eight hours of fighting a brush fire. Tellingly, the emissions are five times higher from a cigarette smoked in the car than from the tail pipe of the car during the period in which the driving is taking place. One hour spent in a smoky car produces the same occupational exposure as eight hours in a smoky pub.

No one has a right to expose a child to cigarette smoke. Senator Colm Burke raised the question of a complete ban on smoking in cars, but I believe we may fall foul of constitutional provisions in regard to property rights. To be fair, we did look at that but we want to stay within the remit of the Constitution.

To deal directly with the Bill, we believe it is a minor amendment but it will extend the list of specified places in the Public Health (Tobacco) Act 2002 to include “a mechanically propelled vehicle in which a person under the age of 18 is present”. The Bill also deals with the question of locations to ensure any person who smokes in prescribed places is breaking the law. As Senator Crown said, we want this as a public education measure. It is not about acting zealously. It is not a road safety issue but, rather, a public health issue.

The figures are staggering. As I said, the Adoption (Amendment) Bill is going through the Dáil in 90 minutes or less today and through the Seanad in 90 minutes or less tomorrow. In that case, 23 families are praying and waiting, yet in this case, while nobody knows the figure, I can guarantee parents are smoking in more than 23 cars in Ireland. On that point, parents come to me in support of this because their children get lifts to school from other parents and, while they feel very comfortable saying to other parents, “Have a seat belt on my child”, they do not feel as comfortable, as Senator Moloney noted, about saying it about smoking. While we might say parents should have the courage to speak out, we all like to keep others happy and conform. By putting this into law, we will empower parents and children to say: “Do not smoke in this car. My health is at risk.”

Photo of James ReillyJames Reilly (Minister, Department of Health; Dublin North, Fine Gael)

I am very pleased to speak on the Bill. In reply to Senator Barrett, I always get very nervous when anybody calls me an expert on anything. I assure the House I am not opposing this and I do not intend to submit any amendments to the Bill today, although I will bring amendments at a later stage in the legislative process and I will explain these as I go through the Bill.

I want to put my position on the Bill into context. Last year, I supported the principle of the Bill but indicated that amendments were required for it to operate effectively. I went to Government on this matter and the drafting of amendments to the Bill was approved. Since then, my Department has worked in consultation with the Senators, the Department of Justice and Equality, the Garda Síochána and the Office of the Attorney General on progressing the legislation. The Senators are aware that a number of key legal issues arose during this time. I am very happy to confirm that some of these issues have been resolved, and I thank the Senators for that. Other issues, however, are still under examination and subject to ongoing communication between my Department and the Office of the Attorney General.

I acknowledge and fully understand the Senators are frustrated with the perceived lack of progress on the Bill and that the Senators decided to go ahead today in the absence of amendments drafted by the Attorney General’s office and submitted to my Department. My new tobacco policy, Tobacco Free Ireland, includes a commitment to develop and introduce legislation prohibiting smoking in cars where children are present. I would like to reassure the Senators again that I am interested in results, not ownership of those results, and I am very happy to support the Senators’ Bill. However, I want to make sure it is a Bill that will stick and there are a number of issues that still have to be addressed in it. I do not want to delay Committee Stage today in any way.

The overall aim of the Bill is the protection of children from the harm caused by second-hand smoke in an enclosed place, and I do not need to repeat what Senators Crown and van Turnhout have told us in regard to the damage that exposure to second-hand smoke causes to children.

The World Health Organization has stated that there is no safe level of second-hand smoke. Recent reviews carried out for my Department by the Health Research Board on smoking in cars underscores the extent of the harm caused. All of the evidence emphasises the importance of protecting children from such exposure. Children are most exposed to second-hand smoke in the home and thereafter in motor vehicles. On previous occasions I have drawn the image of a child strapped into a car, with no way of escaping, as the vehicle fills with smoke from the cigarette of the adult who has lit up in the front seat or, even worse, right beside the child in the back seat. That is what we are talking about here.

Senators should be assured that there is no question of any diminution in my commitment to this matter. On the contrary, I have remained committed to progressing these measures as quickly as possible in legislation and supporting the Senators in that regard. I hope we can progress our amendments when outstanding issues have been addressed and that the final Bill will be another in a series of effective legislative controls to protect children from the harm of tobacco products. I ask Senators to join me in sending a strong message to the tobacco industry that we will not weaken in our resolve to protect citizens and, in particular, our children from their killer product. Rather, we grow stronger day by day and will not rest until we have achieved our goal of a tobacco-free Ireland by 2025 at the latest, if not before.

Photo of Jillian van TurnhoutJillian van Turnhout (Independent)

I absolutely take the Minister at his word on this matter. However, with Senator Crown’s reference to timelines in mind, will the Minister tell us when he will be in a position to bring forward the amendments he has indicated? It would help to inform our thinking if we had that information, bearing in mind that we all know how timelines can slip. We are ready to work with the Minister, but we need to know when exactly his proposals will be brought forward.

Photo of James ReillyJames Reilly (Minister, Department of Health; Dublin North, Fine Gael)

I would love to be able to give the Senator an answer to her question, but I cannot do so. As Harold Macmillan once said when asked about how a particular issue might progress: “Events, dear boy, events.” We have a huge amount of legislation to get through and our progress was held up to some extent by all of the troika-related legislation we had to bring through, even in the area of health. I hope Senators do not take it the wrong way when I point out that the process they have experienced in seeking to progress these particular measures highlights the general difficulties that arise in terms of bringing any Bill through the Oireachtas. It is why I opted on a range of issues in the Health Service Executive plan, which we are not discussing today, to seek progress through administrative structures, such as the proposed patient safety agency and other reform initiatives. There is no getting away from the fact that the legislative process is slow. As Senator Daly pointed out, there is a problem within our system in that it is very difficult to get legislation through in a timely fashion. Other jurisdictions seem to manage it in a much more efficient way. There are several factors which contribute to this slow progress, which I will go into in more detail as we move through the amendments. One of them is the need to engage with other Departments in terms of consultation and so on.

Senator Crown made an interesting point regarding the libertarian view and so forth. I absolutely agree that this Bill cannot be construed as representing an advance by the nanny state. In short, it is about protecting children. Adults can choose to smoke – it is their own business – but they cannot harm others when they do so, even if they choose to harm themselves.

Photo of John CrownJohn Crown (Independent)

I beg the understanding of my more experienced parliamentary colleagues and acknowledge a certain naivete on my own part when it comes to parliamentary procedures. Am I correct in understanding that the Government does not propose to oppose the amendments and will allow the Bill to pass Committee Stage?

Photo of Colm BurkeColm Burke (Fine Gael)

Yes, we have no objection to the amendments.

Photo of John CrownJohn Crown (Independent)

I appreciate the clarification.

Photo of Mark DalyMark Daly (Fianna Fail)

We are all aware of the importance of seeking to lead on these issues as opposed to follow. In a survey conducted by AA Ireland in 2011, some 74.6% of respondents were in complete agreement with the idea of a ban on smoking in cars where there is a child passenger, with a further 10.5% offering a slightly less emphatic endorsement. We can be confident that the public is with us on this issue.

In terms of the difficulties presented by the legislative process, I would suggest that it is not illegal for legislators and departmental officials to sit down with whomever is in possession of the file in question in the Attorney General’s office. That engagement could take place in the first week of January and should also include a representative of Garda headquarters. Getting everybody around the same table would allow us to review what has already been done and consider what changes should be introduced on Report Stage. It could all be hammered out quickly if we could meet with the person in the Office of the Attorney General with whom it has only been possible thus far to communicate via e-mail. That type of engagement would see us ready to proceed to Report Stage in the spring.

Photo of Sean BarrettSean Barrett (Independent)

I received some interesting information from the Department of Transport, Tourism and Sport which could help to illuminate our discussion today. In 2012, the Garda Síochána apprehended 240,000 motorists, 184,000 of them for speeding, 25,000 for the telephone offences to which I referred earlier and 219 for failing to heed a stop sign. Gardaí are already tackling motoring offences – the numbers involved would fill three Croke Parks – and we would only be asking them to monitor one additional practice. It might well turn out that there is very little extra work involved; the successful operation of the ban on smoking in the workplace does not require gardaí to go into pubs and restaurants on a regular basis to see whether anybody is smoking. The Minister’s leadership and advocacy on this issue may very well persuade people to comply without much need for enforcement. Gardaí are already doing a splendid job in the area of road traffic law enforcement 240,000 times a year; it would not require a huge additional different, when a motorist has been stopped, to look for evidence of smoking where there is a child passenger. All that is required is the taking on of a single additional duty.

Photo of Martin ConwayMartin Conway (Fine Gael)

Following on from Senator Barrett’s point, I see these provisions as being very much cost neutral in the sense that the policing is already taking place. In fact, if one takes into consideration the numbers of motorists who are stopped and cautioned, we can probably add another 100,000 to the Senator’s figure of 240,000. These proposals are absolutely sensible. I totally agree that when it comes to this particular issue, we have the wherewithal to set international best practice and be world leaders. In fact, I would go further and ban smoking in cars outright on the basis that a vehicle might, for example, be shared between adults, one of whom smokes. In such cases, children could be subjected to residual second-hand smoke on a regular basis, even if neither adult smokes when the children are actually in the car.

The Minister’s decision not to oppose these amendments is very positive and demonstrates the goodwill and leadership of the Government on this issue. While things did not go the way everyone would have liked yesterday, it is clear today that we are all singing from the same hymn sheet, even though we might not be singing the same verses at the same time.

Photo of James ReillyJames Reilly (Minister, Department of Health; Dublin North, Fine Gael)

To be absolutely clear, I am 100% supportive of this Bill and of the banning of smoking in cars where children are present. There is irrefutable evidence for such a prohibition, as I have indicated. In fact, I am strongly in favour of banning it in cars altogether not only because of possible scenarios such as that referred to by Senator Conway, but because I see a health and safety issue in terms of driving with a lit cigarette in one’s hand. That cigarette could fall and cause all types of problems, as Senator Norris so colourfully described last night, and there is the distractibility aspect of lighting up and so on.

There is an argument to be made for that and there is an appetite for it, but this Bill does not address that nor should we expect it to or delay it by adding it in.

Make no mistake, I wish to have this Bill passed as quickly as possible. Like the Senator, I suffer tremendous frustration when Bills take so long to be passed. When I was in opposition I introduced a Bill on medical indemnity insurance to ensure that no doctor could be registered unless they were already insured, rather than permit them the temptation of failing to have insurance. I know some have done that. That Bill is published but it is sitting on the A list. That is due to the volume of business we must get through. There is no malign intent my part or on the part of the Department. It is due to the structure we have. Senator Daly is correct. We must review how legislation is made and passed through the Houses with a view to expediting it, because it is certainly causing problems for me and my Department. That is the reason I have looked to the administrative process for the HSE service plan to try to expedite some of the reforms which I believe are essential to get our health service to where it should be.

Question put and agreed to.

NEW SECTION

Photo of Michael MullinsMichael Mullins (Fine Gael)

Amendments Nos. 1, 3 and 4 are related and may be discussed together. Is that agreed? Agreed.

Photo of Jillian van TurnhoutJillian van Turnhout (Independent)

I move amendment No. 1:

1. In page 3, before section 2, to insert the following new section:
2.—The Principal Act is amended by inserting, after section 6, the following:“6A.—(1) Summary proceedings in respect of the contravention of the requirements of section 47(8)(j) may be brought and prosecuted by a member of the Garda Síochána.
(2) In respect of prosecutions relating to the alleged contravention of the requirements of section 47(8)(j)—

(a) it shall be presumed until the contrary is shown that a child who is a passenger in a mechanically propelled vehicle at the time of the commissioning of the alleged offence has not attained 18 years of age, and
(b) evidence of the age of a child at the time of the commissioning of the alleged offence shall be discharged by the production of an original birth certificate or passport in respect of the child.

(3) A member of the Garda Síochána who suspects that a person has contravened the requirements of section 47(8)(j) may—

(a) direct the driver of the mechanically propelled vehicle concerned to stop the vehicle,
(b) require the driver of the mechanically propelled vehicle to—

(i) state his or her name and home address,
(ii) state the names of all passengers in the vehicle, and
(iii) produce his or her driver licence, or learner permit,

(c) require a passenger in the mechanically propelled vehicle, who the member of the Garda Síochána reasonably suspects has contravened the requirements of section 47(8)(j), to state his or her name and home address.

(4) A person who fails to comply with the direction of a member of the Garda Síochána, who is exercising powers under subsection (3), is guilty of an offence.
(5) Notwithstanding any other part of this Act, a person who is the sole occupant of a mechanically propelled vehicle shall not be in breach of the requirements of section 47(8)(j).
(6) In this section—
‘learner permit’ has the meaning assigned to it by section 35 of the Road Traffic Act 1961;
‘driving licence’ has the meaning assigned to it by section 22 of the Road Traffic Act 1961;
‘mechanically propelled vehicle’ has the meaning assigned to it by section 3 of the Road Traffic Act 1961;
‘child’ means any person under the age of eighteen.
6B.—(1) Where a person is alleged to have acted in contravention of the a fixed charge notice, which may be declared by the Minister of Transport by regulations, stating that—

(a) the person is alleged to have committed the offence,
(b) the person may, during the period of 21 days beginning on the date of the notice, make to the Garda Síochána at the address specified in the notice a payment of the prescribed amount (‘fixed charge’) specified in the notice, and
(c) a prosecution in respect of an alleged offence will not be instituted during the period specified in the notice and, if the payment specified in the notice is made during that period, no prosecution in respect of the alleged offence will be instituted.

(2) Where a fixed charge notice is given under subsection (1)—

(a) the person to whom the notice applies may, during the period specified in the notice, make to the Garda Síochána at the address specified in the notice the payment specified in the notice accompanied by the notice,
(b) the Garda Síochána may receive the payment, issue a receipt for it and retain the money so paid, and any payment so received shall not be recoverable in any circumstances by the person who made it, and
(c) a prosecution in respect of the alleged offence shall not be instituted in the period specified in the notice, and if the payment so specified is made during that period, no prosecution in respect of the alleged offence shall be instituted.

(3) In a prosecution for an offence referred to in subsection (1) the onus of proving that a payment pursuant to a notice under this section has been made shall lie on the defendant.
(4) The Minister for Transport may by regulations, and in consultation with the Minister for Health prescribe the amount of a fixed charge and may prescribe different amounts in relation to—

(a) the number of persons in the mechanically propelled vehicle who have acted in contravention of the requirements of section 47(8)(j),
(b) the number of passengers in the mechanically propelled vehicle, and,
(c) the ages of the passengers in the mechanically propelled vehicle.

(5) In this section, ‘mechanically propelled vehicle’ has the meaning assigned to it by section 3 of the Road Traffic Act 1961.”.”.

Photo of James ReillyJames Reilly (Minister, Department of Health; Dublin North, Fine Gael)

I am not opposing the amendment. I am trying to be helpful because I want this Bill to succeed and to be implemented as quickly as possible.

The intention of the original Bill’s provisions and amendment No. 1 relates to the offence of smoking in a car where children are present. It is intended to give power to An Garda Síochána in respect of this offence. I agree with the comments made by people that the Garda is well positioned to do this and it is not a particularly onerous extra duty for gardaí. The amendment and the original Bill’s provisions on the matter are deemed unacceptable in their current form for two reasons. First, section 47 of the Public Health (Tobacco) Act relates to prohibiting smoking in the workplace. The provisions relating to this are enforced by the environmental health officers of the HSE. It is not appropriate in the Department’s view, which is supported by legal advice, that the provisions to prohibit smoking in cars, which is mainly a private space although some people have work space cars, should be made in section 47, which specifically relates to the workplace. The provisions relating to banning smoking in cars where children are present should be contained in a separate provision within the Public Health (Tobacco) Acts.

In addition, as this new provision has An Garda Síochána as enforcer, it is important that there is no legal confusion regarding the roles of An Garda Síochána and the HSE in respect of tobacco control matters. Therefore, it requires a separate section of the Act. This is not an insurmountable problem, but I am simply flagging it for the Senator.

Photo of Jillian van TurnhoutJillian van Turnhout (Independent)

It is good to know that.

Photo of James ReillyJames Reilly (Minister, Department of Health; Dublin North, Fine Gael)

The ban on smoking in the workplace was a sea change. I commend Deputy Micheál Martin on introducing it.

Section 47(8) of the Public Health (Tobacco) Act 2002, as amended, sets out the definitions of specified places, that is, a place of work, schools and so forth. These are the specified places where smoking is currently prohibited. The amendment states that An Garda Síochána can bring a prosecution in respect of section 47(8)(j), but that is just a definition provision, not a requirement provision. The Senators have amended a definition provision but have not made an explicit reference to the offence provision, that is, it does not state, in its current form, that smoking in a car with a child present is prohibited. This is a significant drafting issue but, again, it is not insurmountable. While I note the Senators have taken on board discussions between health and justice officials regarding inserting powers for An Garda Síochána, this amendment cannot be enforced for the reasons already outlined.

Amendment No. 3 relates to an offence provision under section 5 of the Public Health (Tobacco) Act. The amendment provides for the addition of the provision 6A. However, this new provision refers to a contravention of section 47(8)(j), which is not a requirement provision as it only relates to the definition of a specified place.

Amendment No. 4 also incorporates this fundamental provision problem. This amendment relates to the amendment of the Road Traffic Act, which is under the responsibility of the Minister for Transport, Tourism and Sport. Amendment No. 1 also makes reference to the “Minister for Transport”. I understand that these provisions have not been examined by that Minister and his Department. On this basis, the amendment would require further examination. Without speaking out of turn, my colleague in the Department of Transport, Tourism and Sport is also a doctor and GP and I have no doubt his support and co-operation would be forthcoming.

I accept the principle of amendment No. 2, which is to make the driver liable for a passenger smoking in the presence of a child. As drafted, this amendment is not acceptable as it includes drivers of a private vehicle in a list of owners and managers of workplaces. I reiterate the point that this provision relating to smoking in cars should be a stand alone provision within the Public Health (Tobacco) Acts and not included—–

Photo of Michael MullinsMichael Mullins (Fine Gael)

We are not dealing with amendment No. 2. Amendments Nos. 1, 3 and 4 are grouped together.

Photo of James ReillyJames Reilly (Minister, Department of Health; Dublin North, Fine Gael)

My apologies.

In short, none of these problems is insurmountable. They just have to be worked on. To return to the previous point about how long it takes to get legislation through, another Bill that springs to mind is the sunbed legislation which was introduced by my predecessor in 2010. It has just come back from Europe. I fully support that legislation and see no need to alter or interfere with it. The process is the process. Senators might say the Government should examine it and I agree that we should review how legislation is dealt with and passed. It breaks everyone’s heart at times that it takes so long to get legislation through the system.

Amendment agreed to.

Section 2 deleted.

Section 3 agreed to.

NEW SECTION

Photo of John CrownJohn Crown (Independent)

I move amendment No. 2:

2. In page 4, before section 4, to insert the following new section:
4.—The Principal Act is amended in subsection (3) of section 47, by substituting for “the occupier, manager and any other person for the time being in charge of the specified place” the following “the occupier, manager, the driver of a mechanically propelled vehicle, and any other person for the time being in charge of the specified place”.”.

Photo of James ReillyJames Reilly (Minister, Department of Health; Dublin North, Fine Gael)

As drafted, this amendment is not acceptable as it includes drivers of a private vehicle in a list of owners and managers of workplaces. The provision relating to smoking in cars should be a stand alone provision within the Public Health (Tobacco) Acts and not included in the current workplace smoking ban. In addition, the liability of the non-smoking driver is one of the issues raised by the Attorney General’s office and we have responded to it. Conclusive legal opinion on this issue has yet to be finalised. I accept the principle of it and these are not insurmountable problems.

Photo of John CrownJohn Crown (Independent)

We would be delighted to look positively at any amendments the Minister offers on Report Stage to deal with any technical issues with either the original Bill or these amendments.

Photo of Jillian van TurnhoutJillian van Turnhout (Independent)

I realise the Minister cannot give a commitment on dates, but can he give a commitment that we will all work together so when we reach Report Stage we will have the Bill correct, so it could go through the Dáil quickly? If we could get a commitment that the Bill that is passed by this House should be able to go through the Dáil quickly, I would be happy with that.

Photo of Sean BarrettSean Barrett (Independent)

The Minister has referred to all the problems, difficulties and frustrations. I believe his anti-smoking campaign will work. It is going well. The road safety campaign has been a spectacular success, and we compliment the Garda, the Minister, Deputy Vardkar, and all concerned. There might be a slight increase in the number of deaths this year but it is a remarkable reduction, so let us move forward. This is a good story about optimism for a healthier and safer Ireland. I commend amendment No. 4.

Photo of Colm BurkeColm Burke (Fine Gael)

I do not wish to delay but I have a question about an outright ban on smoking in cars.

I do not want to delay the progress of the legislation but I wonder if this matter could be examined.

Photo of Martin ConwayMartin Conway (Fine Gael)

That is the very point I was about to make. I had intended to suggest that if there was a way it could be incorporated in the Bill – I am sure the Minister could discuss the matter with its promoters and with the Minister for Transport, Tourism and Sport, Deputy Varadkar, who is also a GP – then that should be done.

Photo of Michael MullinsMichael Mullins (Fine Gael)

 

I presume the matter can be examined prior to Report Stage.

Amendment agreed to.

Section 4 deleted.

NEW SECTIONS

Photo of Jillian van TurnhoutJillian van Turnhout (Independent)

I move amendment No. 3:

In page 4, before section 5, to insert the following new section:

5.—The Principal Act is amended in subsection (2) of section 5 by substituting for “section 37(13)” the following “section 6A, 7(13)”.”.

Amendment agreed to.

Photo of Jillian van TurnhoutJillian van Turnhout (Independent)

I move amendment No. 4:

In page 4, before section 5, to insert the following new section:

6.—Section 103(1) of the Road Traffic Act 1961, as amended by section 14 of the Road Traffic Act 2006, is amended by replacing the text:

“and an offence standing so declared under paragraph (a) or (b) and each of the offences referred to in paragraphs (c), (d) and (e) are referred to in this section as a fixed charge offence.”,

with the following:

“(f) an offence under section 47(8)(j), or section 6A, of the Public Health (Tobacco) Act of 2002, as amended, may be declared by the Minister by regulations, made after consultation with the Minister for Health to be fixed charge offences of a form described by section 6B of the Public Health (Tobacco) Act 2002, as inserted by the Protection of Children’s Health from Tobacco Smoke Act 2013,

and an offence standing so declared under paragraph (a) or (b) and each of the offences referred to in paragraphs (c), (d), (e) and (f) are referred to in this section as a fixed charge offence.”.”.

Amendment agreed to.

SECTION 5

Photo of John CrownJohn Crown (Independent)

I move amendment No. 5:

In page 4, after line 10, to insert the following subsection:
“(2) This Act comes into operation on such day or days, as the Minister may by order appoint.”.

I want the record to reflect what I stated on the Order of Business this morning and what I wanted to say in respect of the Health Insurance (Amendment) Bill 2013. In that context, I wish to bring to the attention of the Minister documentation that has recently come into my possession which corroborates a suspicion I reported to the statutory authorities 11 years ago to the effect that deliberate financial fraud took place at St. Vincent’s University Hospital and that said fraud was covered up by elements of the management and board of the hospital. Amendment agreed to.

Section 5, as amended, agreed to.

Title agreed to.

Bill reported with amendments.

Photo of Michael MullinsMichael Mullins (Fine Gael)

When is it proposed to take Report Stage?

Photo of John CrownJohn Crown (Independent)

We would like it to be taken in January 2014.

Photo of Martin ConwayMartin Conway (Fine Gael)

It will be taken on the first sitting day in 2014.

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