Seanad debates
Tuesday, 9 March 2004
Public Health (Tobacco) (Amendment) Bill 2003: Committee Stage (Resumed) and Remaining Stages.
3:00 pm
Ulick Burke (Fine Gael)
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I am fully aware of the determination of the Minister in respect of this matter. However, if we cannot incorporate in the legislation some method other than the use of minors to deliver on its provisions, we will have failed. It is important that the Minister, as a matter of urgency, contacts the bodies to which I referred, particularly the health boards. I do not know if the Minister can shed light on whether the people who are charged with the responsibility of discovering the offenders will take the easy option by giving a young person money and asking them to go into a shop to buy cigarettes. I ask the Minister to re-emphasise to health board officials that he would not be enthusiastic about such behaviour.
Micheál Martin (Cork South Central, Fianna Fail)
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I do not interfere with those who have to enforce the law. However, I will explore the issues the Senator has raised. I will convey his views to the health boards and discuss them with the group concerned in order to ascertain the general pattern of enforcement behaviour throughout the country. The situation to which the Senator referred may be particular to his health board as opposed to others.
Brian Hayes (Fine Gael)
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This section prohibits certain marketing practices in respect of the number of cigarettes that can be sold, namely, not less than 20, as outlined in subsection (1). Will the Minister comment on the section? As he is aware, large numbers of illegal cigarette sales take place in this country on a daily basis. Some of this behaviour is funded directly by paramilitary organisations. Will Members on this side of the House applaud the Minister's efforts to bring about much greater certainty in this area in terms of retail outlets etc? What discussions has he had with the Minister for Justice, Equality and Law Reform in respect of illegal sales? One need only visit Mary Street, Grafton Street and Henry Street to witness the number of illegal sales of cigarettes to people of all descriptions. A significant percentage of tobacco sales, particularly in working class communities, comes from illegal trading and this must be countered. While the Minister is doing everything he can in this Bill to bring about order in the retail sector and to give a clear signal to the public about where we stand on this issue, significant numbers of cigarette sales are illegal. We must be aware of and try to counter this.
Feargal Quinn (Independent)
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When I am in the city centre nowadays I still see cigarettes being sold illegally. If tight controls are to be placed on licensed retailers, I can understand their frustration when they see these illegal retailers selling on the street and not adhering to the new guidelines.
Subsection (11) refers to an offence under subsection (10), the purpose of which I do not fully understand. If convicted of an offence, a retailer could lose his or her licence to sell tobacco for a period of between three months and one year. I am concerned that this might happen by accident although I know a judge will take any explanation into account. Perhaps the Minister could explain subsection (10).
Camillus Glynn (Fianna Fail)
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Tobacco can only be sold by bona fide traders with a licence. It is a sure bet to say that none of those people selling on the street has any licence, nor are they paying rates or other overheads. They would not be too concerned about the age group to which they are selling and I do not carry any candle for them. That tobacco is a very dangerous product has already been debated here, in the Lower House and in the medical profession so there is no need to go down that road again. I would ban the street trading of cigarettes because it is a known fact that many of those cigarettes come from sources that are not consistent with the rule of law. If I were the Minister for Health and Children or indeed the Minister for Justice, Equality and Law Reform, I would stop it forthwith.
Micheál Martin (Cork South Central, Fianna Fail)
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Smuggling is a heinous crime in itself and runs counter to what we are trying to do to achieve a smoke-free society. I have had consultations with the Minister for Justice, Equality and Law Reform, and the Minister and the Garda have had some significant successes, especially in recent times with major hauls of smuggled tobacco used for illegal trading. The stronger we can clamp down on this, the better and this Bill gives us additional powers to do so. That is only fair to the licensed retail trader who pays taxes and rates. The Garda and the Customs and Excise have had some successes and continue to be vigilant, as this type of crime is related to other types of criminal activity.
Senator Quinn spoke about subsection (10) on sales promotion devices. This subsection tries to avoid a situation where a trader deliberately reduces the price to encourage increased sales. There have been significant sales promotions of alcohol which have affected alcohol consumption and alcohol related harm. We do not want the same thing to happen in the context of cigarette smoking.
Brian Hayes (Fine Gael)
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Section 12(2) provides that the office must inform, within 21 days, the importer or manufacturers of any tests. Presumably, there is no method of appeal which would allow them to have that struck down by the High Court.
Micheál Martin (Cork South Central, Fianna Fail)
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That is correct.
Paddy Burke (Fine Gael)
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Amendment No. 2 is consequential on amendment No. 1 and both may be discussed together by agreement.
Frank Feighan (Fine Gael)
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I move amendment No. 1:
In page 15, line 28, to delete "occupier, manager and any" and substitute "occupier or manager or any".
Micheál Martin (Cork South Central, Fianna Fail)
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I do not propose to accept these amendments. Amended section 47(3) creates an offence for the occupier, manager and other person in charge of a specified place where there is a contravention of a provision of this section in that specified place.
This is a standard legal provision in terms of public health legislation; a similar provision applies in the case of food safety legislation. The Senator's amendments propose that only one person, an occupier, manager or other person in charge, be held responsible for ensuring compliance with public health measures. In taking proceedings for an offence under this section, an environmental health officer will take into account the details of the case and it may, perhaps, be necessary to initiate proceedings against each of the persons responsible or only one of them. The chain of command and lines of communication in businesses can vary significantly. If, for example, the owner of a specified place is not in the specified place at the time of the alleged offence, then he or she will remain responsible for ensuring the person left in charge was aware of public health legislation and was instructed to take all reasonable steps to ensure compliance.
Acceptance of the amendment would enable people to drive a coach and four through the enforcement procedure. One could be faced with the scenario of one person blaming another and that person blaming a third person.
Micheál Martin (Cork South Central, Fianna Fail)
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Someone must accept responsibility for policy enforcement.
Micheál Martin (Cork South Central, Fianna Fail)
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We are taking a reasonable position on this bearing in mind that the section also provides for a reasonable defence clause. It is a matter of building compliance with owners and employers throughout the country so that they ensure authorised officers work with them in terms of the no smoking agenda, as they already do in the area of food safety. It will not be a case of trying to nab people on the first day of the ban. The ultimate way of obtaining success is to work with people; to show them what is necessary to ensure compliance with the law and to facilitate them in doing so.
Camillus Glynn (Fianna Fail)
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I support the Minister in this regard. We must be careful to ensure we do not provide an exit clause. That is what would happen if the Minister were to accept the amendments. While the amendment is well intentioned, in the interests of ensuring culpability the provision should remain as it stands.
Brian Hayes (Fine Gael)
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The point must be made that not all parties may be culpable. The offence may be committed by a manager and other parties would not be culpable. I fully accept the need to bring enforcement proceedings and to obtain speedy results in these matters. Section 16 provides the Minister with unprecedented powers in respect of all the offences that can be brought at the same time.
Senator Feighan's amendment seeks to point out that it is standard legal practice in this area to provide for individual enforcements. Lumping everyone together, when two of the three or three of the four parties are not culpable, is most unfair.
Micheál Martin (Cork South Central, Fianna Fail)
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My understanding is that this is a standard legal provision.
Brian Hayes (Fine Gael)
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That is the standard response from the Attorney General's office.
Micheál Martin (Cork South Central, Fianna Fail)
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No, one cannot simply say such things.
Micheál Martin (Cork South Central, Fianna Fail)
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Staff in the Attorney General's office are precise and careful about the advice they give. Many of the enforcement prosecutions will depend on the circumstances of each case. A clause of reasonable defence has been inserted into the Bill. Clearly, the authorised officer taking a case could only do so based on evidence and would be required to take into consideration the type of issues raised by Senator Brian Hayes.
To amend this provision would, in essence, create a loophole or an opportunity for a coach and four to be driven through the enforcement edifice.
Frank Feighan (Fine Gael)
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I move amendment No. 3:
In page 15, between lines 34 and 35, to insert the following:
"(5) Nothing in this section or any enactment shall render the proprietor, manager, supervisor or other person in control of a specified place liable for the refusal of a smoker of tobacco products, upon reasonable request, to comply with this section or any enactment.".
Micheál Martin (Cork South Central, Fianna Fail)
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The proposed amendment concerns the reasonable efforts of an occupier, manager, etc. to ensure compliance in a smoke-free premises. Amended section 47(4) provides a defence for a person against whom proceedings for an offence under this section are brought. This is a standard legal provision relating to a defence in proceedings for an offence. This defence relates to all reasonable steps which the person had taken to ensure compliance with the provisions of the regulations as regards the alleged contravention.
The spirit of the Senator's amendment is already provided for in the Bill by way of the inclusion of a reasonable defence clause. In other words, the person may state in court that he or she took all reasonable steps to prevent the contravention. Publicans have been issued with guidelines in terms of the steps they should take in this regard.
Brian Hayes (Fine Gael)
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Is the Minister's argument that the amendment is not necessary because what Senator Feighan is seeking is already provided for in the Bill?
Micheál Martin (Cork South Central, Fianna Fail)
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It is provided for in amended section 47(4) of the principal Act or section 16 of this Bill.
Brian Hayes (Fine Gael)
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We are asking that the provision be included in this particular section.
Micheál Martin (Cork South Central, Fianna Fail)
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Section 16 amends section 47 of the principal Act.
Micheál Martin (Cork South Central, Fianna Fail)
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The principal Act contains a section dealing with this issue.
Brian Hayes (Fine Gael)
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We tabled this amendment to make it abundantly clear that while proprietors in the vast majority of cases will do their best to ensure compliance, there will be cases where that is not possible. We need reasonableness in this area. If the Minister is publicly telling the House he is satisfied that section 47 of the principal Act provides for such reasonableness, we will accept that. I take it that is what he is saying.
Mary Henry (Independent)
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Subsection (7) is broad and I wish the section gave more protection to non-smokers in institutions. I am well aware the Bill gives effect to a workplace directive and that is what the Minister had to consider in introducing it. I did not table an amendment to this section because I did not believe that it could be enforced.
However, hotel and guesthouse premises should ensure that the vast majority of their rooms are non-smoking because most people do not want to smoke in their bedrooms. It is bad if a non-smoker has to take a room in a hotel that was previously occupied by a smoker. I do not know if the Minister can bring in regulations, or whether they would have to be brought in by the Minister for Arts, Sport and Tourism, to provide that hotels and guesthouses must have an adequate supply of non-smoking rooms. Sometimes one finds that the supply of rooms available is 50:50 in terms of smoking and non-smoking. However, 50% of people do not want to smoke in their bedrooms and if people smoke in them, the smoke lingers for a long time. I do not know if the Minister can do anything in that regard, but it is an important consideration.
The inmates of nursing homes are in a vulnerable position if one or two people insist on puffing away in the one living room that is shared by a number of people. The smokers might ask whether the other people mind if they smoke but it is difficult when people are living in a home atmosphere to say they do mind. If they object, they may be considered spoilsports, but such smoking affects their health. Elderly people frequently have chest problems. One or two people may be able to impose their wills on the other members who are living in a nursing home who simply out of politeness feel they cannot object. I wish this section was tougher in respect of smoking regulations, although I appreciate the Minister had difficulties with it.
Some people suffering from mental illness become seriously addicted to cigarette smoking, but that does not mean that everyone in psychiatric hospitals is addicted. Non-smokers in psychiatric hospitals have to sit in the same environment as people who are heavy smokers, as Senator Glynn would be aware.
The same position applies in prisons. I hope this section will be carefully examined to ensure the rights of non-smokers are brought to the fore. A prison is one's home while one is it. Sometimes three people may share a cell and if one of them is a smoker, I do not know what the other two can do in terms of this legislation, apart from throwing water over him or her every now and then which happens in prison anyway. I wish this section was much tougher on smoking regulations, although I realise the Minister had difficulty with it. Significant numbers of non-smokers, workers and people who have to live in these places, will be affected by tobacco smoke. Some of them may have chest problems and they should not be exposed to such smoke. In the case of nursing homes with perhaps only one day room, non-smokers will have to endure smoke.
I am not sure if the Minister can ask the Minister for Arts, Sport and Tourism to monitor this area in the hotel sector. I stayed in a hotel in Cork, the name of which I will tell the Minister later, where the staff could not find me a room that had not been occupied by smokers. The hotel was fairly well occupied, but it did not have a big enough supply of non-smoking rooms. We are doing quite well in getting people to stop smoking. Many smokers do not want to smoke in bedrooms or in living quarters. I hope the Minister carefully examines this section and does his best to encourage his colleagues in this area to enforce the legislation as strongly as possible and to ensure that people within institutions are properly protected.
Feargal Quinn (Independent)
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My point relates to Senator Henry's comments. My daughter and I checked into a hotel recently. My daughter requested a non-smoking room, but found there was a strong smell of smoke in her room. She was successful in demanding a change of room, unlike in Senator Henry's case. There is a danger in trying to solve everything by way of legislation as to a large extent the marketplace will solve such problems. If a person experiences a problem in getting a non-smoking room in a hotel, that person will probably not stay in that hotel again.
The Minister has had difficulty with this section because of the exceptions that have been made. If we set something in stone in this legislation, what difficulty would that pose for the Minister in later seeking to strengthen or perhaps even weaken some of the regulations made? Paragraph 47(8)(d) of the principal Act states that a prison is any part of a Garda Síochána station used for the detention of persons. I am not sure what that means, but I would not be surprised that almost any part of a Garda station could be used for the detention of persons and, therefore, an exception to the provision could be made on that basis.
It would be wise to review every piece of legislation every five years to ascertain whether it is working, although that may be unworkable. However, I would like this legislation to be reviewed at a later date to avoid the Minister having to introduce a new Bill. Perhaps there is another way of dealing with changes the Minister may wish to make to some of the regulations. There was a good deal of thinking, adjustment and realignment on this section. I hope it will achieve what the Minister set out to achieve, but if it does not, I would like to think that we could review it at some point in the future without necessarily having to introduce a new Bill.
Micheál Martin (Cork South Central, Fianna Fail)
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I thank the Senators for their comments. The background to this section is that the common denominator in these exemptions is that they apply to a dwelling place. We indicated in November that we would notify regulations to Brussels in the context of providing for such exemptions. When we had a three hour discussion on the then published regulations in the other House, many Deputies on all sides raised the point that exemptions from the regulations should be put in place in regard to institutions such as psychiatric hospitals, nursing homes and hotels. To give legal certainty to that, we have put these provisions in the Bill. I retained a team of senior counsel, through the Attorney General's office, to advise me every step of the way on this issue with a view to the future. I was advised that the most effective and robust way to protect the overall edifice of the smoke-free policy was to insert these provisions in this detail in the body of the Bill.
In the context of health and safety legislation, a clause has always been provided that allowed for a different approach to the implementation of such legislation in the prison environment because of other competing issues such as control, order and so forth. Such a clause has always been included in health and safety legislation.
The key point is that an exemption does not mean a free for all policy. Every employer and owner of a premises or nursing home still has an obligation to protect his or her employees from the harmful effects of environmental tobacco smoke. In regard to the health institutions that will come under the Department of Health and Children and the health boards, we will insist on a strong, robust provision under that heading in terms of protecting the employees and the other inhabitants of such residences. In other words, it is not a matter of saying that one is exempted from the legislation and can do what one likes. That is certainly not the case. Clear protocols will be established to protect employees in such a situation. Some of those institutions have already managed to do that. Even in the psychiatric area there are one or two examples where outdoor facilities have been created.
Under the original Bill and regulations, a dwelling, as in a private home and so on, was not covered. This created a dilemma in terms of someone living in a nursing home for the past five or ten years and whether that should be regarded as their home. In some of the community residences I visited recently no one can smoke in any of the communal areas. I spoke to the Mental Health Commission and there is no reason that shelters cannot be built with the 50% exposure in the garden, back yard or whatever to facilitate people smoking.
The Irish Hotels Federation's position to us is that approximately 75% of hotel bedrooms are now smoke free. Most guesthouses are entirely smoke free. Many of them do not want to facilitate or encourage smoking for other reasons — fire, damage to furniture, beds and so forth. I do not see a huge issue in regard to guesthouses, and I never did. I considered that they were ahead of the game, but the problem is consistency across the board. Once we go down the road we have to dot the i's and cross the t's in terms of making sure there is consistency with respect to legislation. The key point is that the presence of exempted areas do not absolve businesses or establishments from any responsibilities towards employees or inhabitants. Employers still have responsibilities and we will be pushing home that point strongly in terms of issuing of guidance and so forth.
John Dardis (Progressive Democrats)
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On the section, I agree with much of what Senator Henry had to say about hotel bedrooms. We have all had the experience of being given what was supposed to be a non-smoking room only to find on entering that somebody had been smoking in it. That is a matter for the people using the room, however, rather than forcing the hotel staff to monitor the position and ensure that people do not smoke. I accept what Senator Quinn said. The market eventually will decide these issues.
There is another aspect on which I would like the Minister's observation. It is to do with section 16(7)(d), which refers to "an outdoor part of a place or premises covered by a fixed or movable roof, provided that not more than 50 per cent of the perimeter of that part is surrounded by one or more walls." It appears to exclude sporting stadiums.
I had the privilege of travelling to Australia for the Rugby World Cup and at both the International Rules match in the Melbourne cricket ground and the Ireland-Australia match in the Telstra Dome in Melbourne, there was a smoking ban in operation. We were reminded before the game started, at half time and at the end of the game that they were non-smoking stadia. There is a universal ban in restaurants and so on in New South Wales; one has to go outside to smoke.
Last Saturday was a day to be remembered in Twickenham but one of the difficulties is that if one is sitting in a stadium, one has absolutely no choice about moving if the person in front is smoking. There is nothing one can do to move whereas in almost every other circumstance one can move. Is it stretching matters too much to think that at some stage we might have a smoking ban in sporting stadia?
Micheál Martin (Cork South Central, Fianna Fail)
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I am getting nervous with the encouragement I am getting.
Frank Feighan (Fine Gael)
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I agree with Senator Dardis. Most stadia in England have a smoking ban in place. I do not know whether it is from a health point of view or whatever but it is something we could examine here. For example, those who light up in the Glasgow Celtic ground are ejected.
Micheál Martin (Cork South Central, Fianna Fail)
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I have sympathy with the Senators but to be fair, from day one we were clear that we did not envisage outdoor areas being covered by the smoking ban. With respect to the debate that has taken place over the past 12 months on an enclosed smoking ban and the virtues or otherwise of ventilation, it would have been difficult to put forward the argument that in the open air smoke is as bad for one as it is in an enclosed room. That is not in any way to detract from what both Senators have said. It can be a particularly difficult proposition for non-smokers to be watching a game with smoke wafting in front of them or to their side, but they are in the open air.
I am encouraged by the positive views from both Houses of the Oireachtas, which have been supportive and effective in terms of pushing through this measure and bringing about the societal change in behaviour. If we did not have cross-party support on this issue, the Minister of the day would be susceptible to people in one party trying to play off those in another and trying to undermine them whereas we have had a good fair wind, with people trying to test the legislation and so on.
As Senator Quinn said, we will evaluate this legislation. We can always review it and come back to the Houses to amend it or include other places in the future. We should look for consensus on this issue and there are good signs that consensus is developing. I welcome the statement from the licensed vintners last week that they will co-operate with the law. Many people want to do that now and the vast majority of the public are behind it. If we can build a consensus perhaps we can move on incrementally and, in time, the sporting organisations may also examine the issue.
Camillus Glynn (Fianna Fail)
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I thank the Minister, Deputy Martin, and the Ministers of State, Deputies Callely and O'Malley, for their co-operation and assistance. In particular I commend the Minister on his Trojan work in this whole area. He met many areas of resistance but he took them on the chin and forged ahead. I thank the Opposition — the Fine Gael Party, the Labour Party and the Independent group — for their co-operation in this Chamber. That consensus approach is a testament to the importance of this matter to all Members of both Houses. I wish the legislation well and I am sure that generations to come will approve of the action taken in this House today.
4:00 pm
Frank Feighan (Fine Gael)
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I also thank the Minister. We have spoken on this issue many times. As someone who never smoked I ran a public house up to ten years ago. One of the reasons I retired was because I felt I was being affected by passive smoking. The one issue that was not conclusive was ventilation. While it was not proven that ventilation in pubs could have done away with passive smoking I was concerned that much money was being spent on the insertion of vents in public houses. I felt that with other legislation on the horizon publicans should not have to go to this expense when ultimately it did not matter.
I pay tribute to the Minister. I attended a convention on cannabis smoking and it highlighted for me the dangers of tobacco smoking because more people have died from smoking tobacco — including passive smoking — than were killed in the two world wars of the last century. Tobacco has only been a feature of modern day society for little over 200 years. This legislation is welcome. Anything that gets rid of the blight of the harmful effects of tobacco is good.
Mary Henry (Independent)
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No matter what the vintners will say, human life will still continue in this country, on foot of this legislation. I am delighted to see it passed and that this is the first country to bring in such legislation. I am sure others will follow. One thing that concerns me, however, is the EUROSTAT figures on the intake of drink in this country, published this morning. They are serious. They included wine and this is worrying. If pubs are now more pleasant places to visit, our only worry is that people will spend more time there. That is a matter for another day.
I have a vested interest. My father died of lung cancer when he was 60. He was a fit man who was smoking in the days when nobody knew anything was the matter with it. He had stopped some five years before he died, perhaps because he did not think it was good for his health. We did not know then what we know now and I am delighted with this legislation. This has been a Bill in which the Minister has had more support, I believe, from this side of the House than his own side. I hope it will be a big success. Like others I believe it will be enforced by the general public.
The Minister said that 75% of patrons in hotels do not smoke. I am surprised that it is not as high as 90%, because the number of people who want to smoke in them appears to be small. The Minister had a tough time with the legislation. It would take a Cork person to stand up that that sort of carry-on. That is another vested interest coming out. I offer the Minister my congratulations.
Mary O'Rourke (Fianna Fail)
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As Leader of the House, I would like to add my voice to the tributes made by Senators. I was thinking back to 1987 when as Minister for Health, the current Ceann Comhairle of the Dáil, Deputy O'Hanlon, introduced a Bill on the advertising of tobacco which had been originally mooted by his predecessor, former Deputy Barry Desmond. I vividly recall the evening in the Dáil when a cross-party consensus on the matter was arrived at. It was highly interesting. It has taken a further 17 years for us to arrive at this point. The hiccoughs and lacunas that developed were no harm. In that period opposition to the proposed measure had been gung-ho but, following a more tranquil interval because of various technical matters the fight was gone out of the other side when the initiative re-emerged. It was as if it had absorbed the facts and the lessons and taken on board what customers and the general public were saying. The Bill was more calmly received.
In social terms, often when one is attempting to achieve something that involves controversy, it is more effective to allow a breathing space in this way for the message to sink in. People grow weary of a topic and publicans got tired of hearing that they were all going to go out of business and facing bankruptcy because no one would be going into their pubs. All I hear people saying is that they can now go into pubs because they will be able to breathe and will not have smelly clothes etc.
My late husband smoked for 20 years of his married life. He had, of course, smoked before that. Then he stopped, went "cold turkey" one night and never smoked again without the aid of drugs, patches or anything. He just stopped. My mother used to say he was a resolute man to do that. Long before it was commonly known that people could die from smoking, he decided that one could and he took the initiative. He passed on, eventually, but not from smoking.
People now realise the painful and harmful effect smoking can have on their health. Why set out to kill oneself? That is madness. I never smoked, so I can afford to talk like this. Why should one set out to damage one's health? To open a package which says "Smoking can damage your health" and then to proceed to smoke is stupid. Everybody will be far healthier and far better humoured. I say to the Minister, "well done". One has to stand up for one what believes in, but it is amazing what can happen when the lacuna disappears.
Mary O'Rourke (Fianna Fail)
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The smoke has evaporated. The Leas-Chathaoirleach has got it in one. He is in witty form today. Anyway, well done to the Minister.
Micheál Martin (Cork South Central, Fianna Fail)
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I thank all Senators on all sides of the House for their great support throughout this journey and for assisting me in facilitating passage of the Bill. As I said earlier, the cross-party support from the beginning was a powerful bulwark to me as Minister in meeting the various challenges that came my way. The cross-party support and that of Independents generally in both Houses was extremely welcome. I would also like to thank the Leader of the House and her office for their help and assistance, particularly as regards the early signature motion and for the smooth passage of the Bill through the House.
The Minister for Health and Children must be the main advocate for public health. If the incumbent of this office is not then we are in a bad way as a country and as a society. I would like to think the younger generation will look back in years to come and ask: "Did they actually smoke in the workplace? Did they actually smoke in pubs?" Then I will know that what we did today was a success and an achievement.