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SP Paper 320 HC/S3/09/R8
  Volume 2

8th Report, 2009 (Session 3)

Stage 1 Report on the Tobacco and Primary Medical Services (Scotland) Bill

CONTENTS

VOLUME 1

Remit and membership

Report
Introduction

Procedure
Purpose of the Bill
Scottish Government consultation
Committee consideration

Part 1: Tobacco products etc.

Display of tobacco products
Sale of tobacco products to persons under 18
Prohibition of vending machines for the sale of tobacco products

Part 1: Register of tobacco retailers
Part 1: Enforcement and fixed penalties
Part 2: Primary Medical Services

Background
Current legislative position for provision of GP services
Changes proposed by the Bill
Merits and demerits of commercially run medical practices
Eligibility of health care professionals to enter into GMS contracts

Financial memorandum

Background
Summary of costs outlined in the Financial Memorandum
Scrutiny of the Financial Memorandum

Subordinate legislation

Background
Report of the Subordinate Legislation Committee

Conclusion

Annexe A: EXTRACT FROM THE MINUTES

Volume 2

Remit and membership

Remit:

To consider and report on (a) health policy and the NHS in Scotland and other matters falling within the responsibility of the Cabinet Secretary for Health and Wellbeing and (b) matters relating to sport falling within the responsibility of the Minister for Public Health and Sport.

Membership:

Helen Eadie
Ross Finnie (Deputy Convener)
Christine Grahame (Convener)
Rhoda Grant
Michael Matheson
Ian McKee
Mary Scanlon
Dr Richard Simpson

Committee Clerking Team:

Callum Thomson
Douglas Thornton
Seán Wixted
Andrew Howlett

Stage 1 Report on the Tobacco and Primary Medical Services (Scotland) Bill

The Committee reports to the Parliament as follows—

Introduction

Procedure

1. The Tobacco and Primary Medical Services (Scotland) Bill (“the Bill”) was introduced by Nicola Sturgeon MSP, Cabinet Secretary for Health and Wellbeing, on 25 February 2009. The Bill is accompanied by Explanatory Notes (SP Bill 22-EN), which include a Financial Memorandum, and a Policy Memorandum (SP Bill 22-PM), as required by the Parliament’s Standing Orders. The Parliament designated the Health and Sport Committee as lead committee for the Bill. Under Rule 9.6 of the Parliament’s Standing Orders, it is for the lead committee to report to the Parliament on the general principles of the Bill.

Purpose of the Bill 1

2. The Bill, if passed, would reform two distinct areas of health legislation—

  • the sale and display of tobacco and tobacco-related products (Part 1 of the Bill);

  • amendment of the NHS (Scotland) Act 1978 (“the 1978 Act”) to exclude certain categories of individuals and private companies from the contractual provision of primary medical services in Scotland (Part 2 of the Bill).

3. Part 1 of the Bill would ban the display of cigarettes and other tobacco and smoking-related products; introduce a registration system for tobacco retailers; ban the sale of cigarettes from vending machines, and introduce a new system of sanctions for breaches of the law involving fixed-penalty notices and banning orders for related offences.

4. Part 2 of the Bill would amend the eligibility criteria for providers of primary medical services, introducing a requirement that all parties to a contract for primary medical services must demonstrate a sufficient involvement in the provision of care and/or the day-to-day running of services.

Scottish Government consultation

Part 1

5. A consultation2 on the recommendations contained in Towards a future without tobacco: The Report of The Smoking Prevention Working Group3, including those for further statutory controls on the sale and display of tobacco products, was undertaken by the Scottish Government between December 2006 and February 2007. 64 written responses were received. Additionally, four regional public seminars were held, of which two were hosted by Scottish Ministers. 123 people attended the seminars. There was also consultation with young people through focus groups and an on-line consultation and Scottish Ministers also held a meeting with representatives of the Scottish Youth Parliament.

Part 2

6. The Scottish Government carried out a consultation4 on the proposal for legislation to change the eligibility criteria for providers of primary medical services between 22 October and 17 December 2008. 72 responses were received.

Committee consideration

7. The Committee issued a call for written evidence on 27 February 2009, with a closing date of 8 April 2009. 101 written submissions were received, of which 92 referred only to Part 1 of the Bill, three only to Part 2 of the Bill and the remaining six to both Part 1 and Part 2.

8. The Committee subsequently undertook a programme of oral evidence-taking. Oral evidence sessions were held as follows––

13 May 2009

Scottish Government officials;

20 May 2009

the Association of Independent Tobacco Specialists; BII Scotland; FOREST; Glasgow City Council; Imported Tobacco Products Advisory Council; Japan Tobacco International (“JTI”); the National Association of Cigarette Machine Operators (“NACMO”); the Scottish Grocers’ Federation; Sinclair Collis; the Society of Chief Officers of Trading Standards in Scotland; South Ayrshire Council, and the Tobacco Retailers’ Alliance;

27 May 2009

ASH Scotland; Cancer Research UK; NHS Dumfries and Galloway; NHS Lanarkshire, and the Scottish Youth Parliament;

3 June 2009

Community Pharmacy Scotland; the British Medical Association (“the BMA”), and the Royal College of Nursing;

10 June 2009

the Association of Chief Police Officers in Scotland (“ACPOS”); the Minister for Public Health and Sport (“the Minister”), and the Deputy First Minister and Cabinet Secretary for Health and Wellbeing (“the Cabinet Secretary”).

9. Extracts from the minutes of all meetings at which the Bill was considered are attached at Annexe A. Where written submissions were made in support of oral evidence, they are reproduced, together with the extracts from the Official Report of each of the relevant meetings, at Annexe B. All other written submissions are reproduced in Annexe C.

10. The Financial Memorandum was scrutinised by the Finance Committee, which sought written evidence from affected organisations before taking oral evidence from the Scottish Government bill team and then reported to the Health and Sport Committee. The report is attached at Annexe D. The provisions within the Bill for making subordinate legislation were considered by the Subordinate Legislation Committee. Its report to the Health and Sport Committee is attached at Annexe E. These reports are discussed in detail later in this report.

11. Annexe A is included in the hard copy and online versions of the report; all other annexes are included in the online version only.

12. The Committee would like to record its thanks to those who gave evidence to, or otherwise participated in, its inquiry into the general principles of the Bill.

PART 1: Tobacco products etc.

Display of tobacco products

Background

13. The Bill would make it an offence to display tobacco and smoking-related products in a place where tobacco products are offered for sale, i.e. a ‘point-of-sale display ban’. Smoking-related products are defined as cigarette papers, cigarette tubes, cigarette filters, apparatus for making cigarettes, cigarette holders and pipes for smoking tobacco products.

14. Specialist tobacconists – i.e. shops selling tobacco products by retail (whether or not they also sell other things) more than half of whose sales on the premises in question derive from the sale of cigars, snuff, pipe tobacco and smoking accessories5 – would be exempt in relation to all tobacco products other than cigarettes and hand-rolling tobacco, subject to any requirements that may be prescribed. Wholesalers would also be exempt but only when trading with persons engaged in a tobacco business. The offence would not apply to the display of tobacco products etc. on websites.

15. The Scottish Ministers would be able to regulate the display of the prices of tobacco products or smoking-related products in places where tobacco products are offered for sale. Website displays would be excluded.

Evidence base

16. An issue of contention amongst witnesses was the question of whether evidence exists to support legislating to ban point-of-sale displays of tobacco products in the pursuance of the Scottish Government’s drive to improve public health. On the one hand, several groups argued that there was little or no evidence to suggest that banning point-of-sale displays would result in fewer adult smokers or lower levels of smoking initiation amongst young people. For example, John Drummond, chief executive of the Scottish Grocers Federation, asserted that there was a “complete lack of evidence that a display ban would be effective”6. He argued that the evidence supporting the view that the ban would prevent under-18s from accessing tobacco was flawed—

“…it is flawed because it draws on markets, particularly in America and Australia, where other point-of-sale material for tobacco products is allowed and is commonplace. In the UK, we are governed by the Tobacco Advertising and Promotion Act 2002, which bans items such as mats on counters, clocks, door posters and the like. The only point-of-sale material that is allowed is the packaging of tobacco products, a large proportion of which is given over to a strong health message. We refute the evidence because it does not compare like with like.”7

17. This point was echoed by the representative from the Tobacco Retailers’ Alliance.8 It was also stated that so few countries had gone down this route that the evidence was “simply insufficient”9 and could be used to “argue one way or the other”10. Simon Clark, Director of FOREST, stated that he was “simply not aware” of any hard evidence linking the display of tobacco and smoking initiation amongst children—

“I dispute strongly the premise on which the bill is based. The evidence about why young people take up smoking shows that the number 1 reason is peer pressure. There is obviously a family influence, too, if their parents smoke. However, to say that the display of tobacco is a major reason why young people smoke is total nonsense, because there is no evidence for it.”11

18. On the other hand, other groups argued that there was strong evidence of a link between point-of-sale displays and the likelihood of smoking and intention to smoke. Referring to studies from Australia, New Zealand, America and the United Kingdom, Elspeth Lee, Head of Tobacco Control at Cancer Research UK, said that “susceptibility is the key point” in respect of the link to young people—

“The evidence supports the view that point-of-sale displays affect young people's smoking. A systematic review that came out at the beginning of the year also substantiated that point. That review showed that, in seven out of eight studies, young people were found to be susceptible to point-of-sale displays, which affects their intention to smoke. Some new, unpublished data from New Zealand, looking at 25,000 14 to 15-year-olds, show that young people who see point-of-sale displays more than three times a week are three times more likely to try smoking than those who see such displays less than once a week.”12

19. She went on to refer to evidence showing that 46 per cent of young people recognised point-of-sale displays as a form of marketing and the form of which they were most clearly aware. She added that 18 to 27 per cent of young people were aware of on-pack promotions, new pack sizes and designs, such as holograms on packs, and other tools associated with point-of-sale displays. She said that here was “clear evidence that those displays have an impact on young people smoking”.13

20. Sheila Duffy, Chief Executive of ASH Scotland, stated that ASH Scotland had been “convinced” by the evidence that promotional displays at the point of sale had a “disproportionate influence” on young people compared with adults and “make young people more likely to experiment with the most visible brands”.14 She added that two thirds of smokers start to smoke under the age of 18 and 40 per cent under the age of 16, pointing to the image of the product as the primary attraction. It was also stated that evidence from the University of Nottingham showed that, despite packs having health warnings on them, young people made decisions based on the other parts of the packaging.15

21. Sheila Duffy went on to assert that ending point-of-sale displays was “crucial” to closing down one of the ways in which tobacco companies could build their relationships with future consumers and “get their marketing and branding lodged in people's minds”.16

Purpose of point-of-sale displays

22. Critics of the proposal for a point-of-sale display ban – who had already argued that such displays show smokers what brands were available in a store and to allow companies to compete in the marketplace17 – were questioned further about the purpose of displays. In particular, they were asked why there had been a proliferation of brand variants since restrictions on cigarette advertising came into force – thus increasing the size of point-of-sale displays – and how that equated with the claim that displays have no effect.

23. Michelle McKeown, Vice President of Corporate Affairs at JTI, recognised the reasons for the question. She said that, although it is true that some smokers stick with a brand, others might choose to move to another brand and that her own company’s Mayfair brand, for example, had, in order to “satisfy its position as the fastest growing brand in the market”18, diversified into other variants––

“As a result of the Tobacco Advertising and Promotion Act 2002, which banned all advertising except for the A5 sheet of paper in the retailers, JTI delisted a lot of brands and took a lot off the shelves. Because the brands were not well known, they were not selling and, in an environment where one cannot advertise or communicate with one's customers, their market share was decreasing more and more. We then increased the variants of the other, better-known brands by introducing Superkings. I am not sure that that answers your question, but there are economic reasons for the increase in brand variants. Because the Mayfair brand is growing—it is one of the most popular in Scotland—there are more variants of it.”19

24. Sheila Duffy of ASH Scotland, however, offered a different interpretation of the increase in the number of brand variants. She explained that, at the time of the Tobacco Advertising and Promotion Act 2002 (“the 2002 Act”), ASH Scotland had not opposed the exemption of retail displays, because they had not been “really an issue at the time” but that they had since become “a major loophole” in the 2002 Act, as cigarette companies had invested a lot of money in glitzy, eye-catching promotional displays that were often placed next to confectionery—

“Brands have also proliferated—not, as your witnesses last week indicated, because of changes in the nature of the product, but because of changes to packaging. I have a folder of material that we collected from half a dozen retail publications in the first quarter of the year showing how brand variants are very often about making minor changes to the packaging to make the brand more attractive and have little to do with the product itself.”20

The cost of the ban: refurbishing retail outlets

25. Witnesses critical of the proposal for a point-of-sale display ban also argued that there would be a disproportionate impact on retailers arising from the cost of refurbishing stores to comply with the ban. It was said that the convenience store sector would incur “heavy costs, which could be measured in millions of pounds”.21 Janet Hood, Head of BII Scotland, put it thus—

“If the display unit is taken away, the subsequent vacuum will have to be filled with something … Taking away a display unit comes with a cost; filling the vacuum with something comes with a cost; going back to the licensing board comes with a cost; and the new plans that are required come with a cost … for a three-till shop the average cost will be between £13,000 and £15,000, which, on the back of the new liquor licensing regime, could be enough to cripple some players, particularly independents.”22

26. The witnesses were asked whether the expected cost to small traders would be eased by contributions from the tobacco industry. Michelle McKeown, of JTI, stated that JTI had not contributed to such costs when comparable bans came into force in Canada but conceded that the company did currently provide funds to tobacco retail outlets for the display of its products—

“We did not pay to put our products out of sight in Canada, and you should not assume that we will pay to have our products put out of sight in Scotland. As it stands, we pay for the gantries, the installation and the maintenance costs with certain retailers.”23

27. Asked specifically whether JTI would “definitely not” provide any money to any retailer in Scotland in the event of a ban being introduced, she responded equivocally—

“I have not seen the technical areas of the regulation, but I am at a loss to understand why the business would want to pay for its products to be out of sight.”24

28. Asked about this same point, Sheila Duffy of ASH Scotland informed the Committee that the Canadian Government required tobacco companies to be “clear and transparent” about what they spend on tobacco marketing and about payments that they make to retailers for storage, etc—

“As a result, we know that, in Canada, the tobacco industry has contributed to the costs that retailers have incurred in putting cigarettes out of sight; in fact, since the point-of-sale ban was introduced, payments to retailers have increased.”25

The cost of the ban: impact on trade

29. Katherine Graham, Campaign Manager for the Tobacco Retailers Alliance, argued that, as tobacco represented around a third of turnover for newsagents and the average small shop, anything that restricted their ability to sell it in the way that they currently did would represent a “threat to the business model as a whole”. Asked why it would not be sufficient for such retailers simply to display a list of the tobacco products stocked, she contended that retailers should be able to sell tobacco in the same way as they sold any number of other items in their shops as it was difficult for a shop to sell something unless it could show its customers what was available.26

30. John Drummond of the Scottish Grocers Federation added that “modern retailing” was about offering choice and displaying the products that are on offer, stating that display was the “norm” and the “way forward”.27

31. Katherine Graham went on to explain that she did not believe that smokers would stop smoking because of not being able to see the stock available in a particular shop but that she did believe that the way in which the small retailer would be “impaired” by the smoking ban “might” result in smokers buying their tobacco from other places such as larger retailers or on the black market. Asked what the evidence was for this belief, with particular reference to the Canadian Government’s findings that no smaller shops had closed as a result of comparable bans in Canada, she cited evidence from studies commissioned by the Canadian Convenience Stores Association.28

32. This reasoning was rejected by Sheila Duffy of ASH Scotland—

“Most adult smokers—research suggests that the figure is 85 or 90 per cent—are firmly established in buying particular brands and know what they want to buy before they enter a shop. Therefore, having branding out of sight in shops should make no difference to the majority of people who purchase cigarettes.”29

33. The suggestion that smokers might turn to the black market following a point-of-sale ban was dismissed by David Thomson, Trading Standards Manager at South Ayrshire Council, who questioned the logic of the argument. He explained that cost is the “sole driver” for buying illicitly – at car boot sales, pubs, Sunday markets, etc. He believed that smokers would continue to source tobacco from the same places, ask the proprietors whether they sell tobacco and, if a shop does not sell tobacco, move on to another. He said that he could not follow the suggested link between products being removed from sight and illicit sales—

“The argument seems to be that, once the products are out of sight, people who have been buying cigarettes from a convenience store for years will not know that it sells them anymore and will therefore seek out someone who is selling cigarettes illicitly ... However, people do not change their habit of buying legitimate goods simply because a product has been removed from sight.”30

34. Lesley Armitage of NHS Lanarkshire, recognised the potential economic impact of the proposed ban but argued that it should be considered in a wider economic context--

“…smoking has an enormous economic impact, too. It kills a quarter of our population. One in two smokers dies prematurely. Most people who have smoking-related diseases—which are not just respiratory, but cardiovascular—have years of gradually worsening ill-health before they die. That has an economic impact as a result of issues such as their employability and premature disability payments. The impact on local retailers cannot be considered in isolation; it should be considered as part of the wider issue.”31

Specialist tobacconists

35. Commenting on the exemption for specialist tobacconists, a submission of written evidence from Sinforiani Bros raised the case of retailers that specialise in the sale of specialist tobacco products such as cigars, pipe tobaccos, snuff and smokers’ accessories but do not meet the definition of “specialist tobacconist” as less than 50% of their sales come from such products. Sinforiani Bros’ submission termed this category of retailer as “independent sub-specialists”.32

36. The case of independent sub-specialists was also raised in oral evidence by Mike Davies from the Association of Independent Tobacco Specialists. He stated that impact of the Bill would be “catastrophic” for this category of retailer—

“…because a high percentage of their turnover comes from specialist products but they do not meet the 50 per cent rule. Under those circumstances, the Government should consider giving them an exemption so they can continue to display cigars, pipes, pipe tobacco and snuff.”33

37. A related issue concerning small and medium sized companies mainly with specialist product ranges was raised by Wyndham Carver, Secretary-General of the Imported Tobacco Products Advisory Council (“ITPAC”). He pointed out that these companies “rely to a great extent on the secondary supply channel of retail outlets” but cannot depend wholly on the specialist tobacconists only as there are only 10 of them in Scotland.34 ITPAC was “extremely concerned” that a display ban for these specialist product ranges would “severely and disproportionately” affect the small distributive businesses.35

Scottish Government

38. Asked about the evidence base justifying the proposal to prohibit point-of-sale displays, the Minister referred in passing to work by Gerard Hastings, an expert in the area. She went on to cite a selection of comments from 13-year-olds about point-of-sale displays, to show how they see tobacco displays—

"In some shops the tabs are just out on display and the kids look at them and think, 'I want that.'"36

"Cigarettes on the wall and they are next to sweets"37

"When you are little you are attracted to bright colours and shiny things"38

"Out of sight, out of mind."39

39. She connected these quotations with the Bill's policy aim to reduce the attractiveness of cigarettes and to try to minimise the likelihood that children and young people will start to smoke in the first place. For the Minister, even if children are taught elsewhere that cigarette smoking is dangerous and bad for them, illuminated cigarette displays having “pride of place in every shop they walk into” gives a mixed message. She dismissed the suggestion that the mandatory health warnings displayed on cigarette packages is the most prominent thing about point-of-sale displays, contending that, often, the prices obscure the health message and, from a distance, only the “attractive gold designs” could be seen—

“A lot of effort and money goes in to the design of packets. Why? I contend that it is because point-of-sale displays are a powerful tool. They are the only marketing and advertising tool that remains to the tobacco companies because the others have been removed, so displays are important to them.40

40. She went on to develop the point about the importance of displays and packaging to the tobacco industry and described the industry as having been innovative in its approach to using packaging to “maximum effect”. She said that packet design was well thought through as regards the market that the industry was trying to reach and surmised that that was the “industry's response to an ever-decreasing opportunity for advertising”. She said—

“[The industry] … now focuses on the packet's design, look and colour, as it is aware that that will be visible on the display gantry. Getting figures from the industry is quite difficult, as you can imagine, but it would be interesting to know how much money has been spent on innovation and design over the past 10 years or so. We have not been privy to that information, but I suspect that it would be quite a sizeable amount.”41

41. The Minister accepted that, from the information currently available, those against the ban, like those in favour of it, could produce evidence to support their case. However, she also drew a parallel with the ban on smoking in enclosed public places, stating that the evidence base was being gathered as countries progressively took “groundbreaking” steps to reduce cigarette smoking—

“We are now gathering real evidence about the achievements of the ban on smoking in enclosed public spaces; in five or 10 years, we will be doing the same with regard to displays.”42

42. Asked about the cost to retailers of changing their premises because of the ban, and the necessary lead-in time, the Minister outlined her plan to differentiate the lead-in times according to the size of the retailer: large retailers such as supermarkets would have to implement the ban by 2011 and small retailers by 2013—

“By giving them more time, we will make it possible for the many small premises that have a rolling refit programme to build any modifications that are necessary under the display ban into their natural programme of work.”43

43. The Minister also explained that there would be some flexibility in how retailers achieve compliance with the ban—

“In Canada, a system was devised that I think cost each retailer about £500 that allowed people to comply with the legislation, so there are ways of minimising the costs. In our discussions with retailers, we are not going down the route that the Department of Health is going down, which is about specifying particular materials and so on. We do not think that we have to do that. As long as the bill's objective of banning displays of tobacco is achieved, we must allow flexibility in how that is done.”44

44. Asked what evidence the Scottish Government had considered about the impact that a ban could have on business, the Minister stated that the Government knew of no international evidence that links point-of-sale display bans with businesses closing. She added that it had made particular efforts to talk to small retailers about how to minimise the impact on their businesses of the physical adjustments that would be necessary. She reiterated that there would be a long lead-in time for the measures and acknowledged the challenges that small businesses were facing.45

45. She went on to restate the policy intention of the Bill: to reduce the attractiveness of cigarettes to young people and prevent them from starting smoking in the first place. She emphasised that it is not about stopping adults going to the places where they always bought their cigarettes and affirmed that, in other countries, if adults habitually bought their cigarettes from a particular shop, they appeared to continue to do so following the introduction of a point-of-sale display ban.

46. In respect of the situation facing independent sub-specialists, the Committee was informed that Scottish Government officials were actively involved in discussions with the sub-specialist sector about how their issues might be accommodated.46

Conclusion

47. The Committee notes that strong views were advanced on both sides of the debate. The Committee also recognises that the evidence base for this proposal is at an early stage and that the international evidence to date is inconclusive. The Committee notes the Minister’s comments that action such as the proposed ban would itself lead to more evidence and more conclusive evidence over time.

48. Most members of the Committee were not persuaded by some witnesses’ arguments that the cost to small retailers of the physical adjustments necessary to complying with such a ban would be excessive, nor that no financial aid for such retailers would be forthcoming from the industry. However, the Committee accepts that there would be a cost to business arising from the proposed ban, namely in relation to the reconfiguration of retail space, and welcomes the discussions that the Scottish Government is undertaking to facilitate the adjustment for smaller retailers.

49. On balance, the majority of Committee members consider that the display of cigarettes at the point of sale constitutes advertisement and that a ban on such displays would have a positive impact over the long term. The majority of Committee members do not believe the measure proposed to be disproportionate to the costs associated with the change.

Sale of tobacco products to persons under 18

Background

50. The Bill would also restate the existing offence of selling tobacco products to under-18s, with the modification that retailers would have a defence to the offence if they believed that the customer was over 18 and were shown acceptable proof of identification, such as a passport or a driving licence. The existing requirement to display a warning statement – to the effect that it is illegal to sell tobacco products to under-18s – at all points of sale where tobacco products are sold would also be restated.

Defence against the offence of selling tobacco to under-18s

51. The Bill provides that it would be a defence to a charge of selling tobacco to a minor that, in addition to the accused person believing the underage customer to be over 18 and as an alternative to having taken reasonable steps to establish the customer's age, no reasonable person could have suspected from the customer's appearance that he or she was under the age of 18. Asked about this provision, David Roderick of the Society of Chief Officers of Trading Standards in Scotland expressed the view that putting such a defence into legislation would be something of a “retrograde step” compared with other legislative changes—

“The Children and Young Persons (Protection from Tobacco) Act 1991 removed the word "apparently" from the Children and Young Persons (Scotland) Act 1937, which said that it was an offence to sell to someone who apparently was underage. That followed similar legislation that dealt with fireworks. At one time, the legislation referred to people appearing to be underage, but if it is an offence to sell to someone who is underage, it is an offence full stop. We agree that if someone has formed the first part of the defence, and has made the checks and established that a person is not underage, what is the point of the second part?”47

52. He went on to explain that there would be consequences for test purchase volunteers, who would be susceptible to being called to court by defence agents in order to try to persuade a sheriff that the defence could be satisfied—

“Bringing a test purchase volunteer to court would go against all the principles of volunteer test purchasing. Although the young people involved are generally 16 and a half, in some cases they are under 16. We try everything possible not to bring those young people to court. The provision would force businesses—in order to keep their licence—to ask for the test purchase volunteer to be produced in court so that the defence could be tested. That would be a retrograde step.”48

53. He also explained that a case might take “several months, or even a year,” to get to court and so the person who was 16 or 16 and a half at the time of the purchase would then be 17 or older, which could cause “evidential difficulties”.49 In relation to the example of a person with a genetic condition that made them look elderly, he suggested that “no enforcement agency would ever take action” in such a case.50

Conclusion

54. The Committee notes the argument that it would be a retrograde step to create a defence to a charge of selling tobacco to an underage person that no reasonable person could have suspected from the customer's appearance that the customer was under the age of 18. A majority of the Committee is in favour of the defence contained in sub-paragraph 4(2)(b)(ii) of the Bill being removed.

55. The Committee also notes, however, that, under the Licensing (Scotland) Act 2005, it is an offence for a person aged under 18 to buy or to attempt to buy alcohol for him or herself. The Committee believes that there needs to be a balance of responsibility between retailers and underage purchasers and, therefore, calls upon the Minister for Public Health and Sport to consider whether the responsibility of minors with regard to purchasing tobacco should be brought into line with the position in respect of alcohol.

Prohibition of vending machines for the sale of tobacco products

Background

56. A new offence of having vending machines available for the sale of tobacco products would also be created. The person committing the offence would be the person who has the management or control of the premises on which the vending machine is available for use.

Evidence base

57. Julian Banks Managing Director of Sinclair Collis Ltd – a UK-based cigarette vending machine operator of sites throughout Great Britain – was asked about evidence from the Society of Chief Officers of Trading Standards in Scotland that underage individuals purchasing cigarettes from vending machines remained a problem and the 2006 Scottish Schools Adolescent Lifestyle and Substance Use Survey (“SALSUS”) report showing that 10 per cent of 15-year-olds obtained their cigarettes from vending machines. In response, he questioned the validity of much of the evidence, including surveys like SALSUS. He claimed that such surveys do not show what children actually do, only what they say they do.51

58. Paul Mair, Chairman of NACMO, went further and criticised the way in which the surveys are carried out and, in particular, the multiple-choice format of SALSUS. He claimed that this format would result in non-smokers answering questions aimed only at smokers.52

59. Julian Banks of Sinclair Collis Ltd went on to argue that price was a big driver for purchase or non-purchase and that, because cigarettes from vending machines are comparatively so expensive, it was unlikely that a child would choose to source cigarettes from vending machines.53 This view was echoed by Simon Clark of FOREST.54

60. A different perspective, however, was offered by Sheila Duffy of ASH Scotland. Referring to anecdotal reports from members of the Scottish Tobacco Control Alliance suggesting that single cigarettes were being sold for £1 apiece in Fife and 50 pence apiece in Glasgow, she suggested that the extra expense of purchasing from a vending machine may not be a deterrent—

“Although it may seem expensive for a child to spend extra money on purchasing cigarettes from a vending machine, it may be an easier source of supply for them than other sources are. They can recoup the money by selling single cigarettes to other children.”55

61. Witnesses were referred to a recent report in the Manchester Evening News that, in the north-west of England, there had been a region-wide crackdown on purchases from vending machines by underage people. The outcome of this initiative was that, of the 120 pubs visited, cigarettes were obtained by underage volunteers in 75 of them. Paul Mair of NACMO acknowledged that, in the past 12 months, trading standards departments throughout the United Kingdom had stepped up the number of test purchases made in environments where there were vending machines. He pointed out, however, that, in the past 20 years, no NACMO member had been prosecuted for or convicted of the offence of selling tobacco to an underage person.56 Moreover, despite recognising the possibility that under 18s might be able to procure cigarettes from vending machines, he refuted that they do—

“Trading standards officers go into a pub at a certain time during the day with an underage person, who then goes to the machine, puts in the correct money and gets the product. Can someone who is under 18 go to a vending machine and purchase the product? It is evident that they can, and we do not deny that. The question is whether they actually do that. We firmly believe that they do not.”57

62. Julian Banks of Sinclair Collis Ltd added that, for the purposes of test purchasing, trading standards officers encouraged children to buy cigarettes from vending machines by giving them £7 in coins to do so. He argued that this was not a normal habit—

“Nobody stands beside a child saying, "Here's the £7 you need to use that machine." That is a false picture. We hear considerable concerns from publicans about the way in which trading standards do that. That might well be the subject of legal action.”58

63. Paul Mair of NACMO, reiterating the view that children do not purchase cigarettes from vending machines at a high price in the “often…hostile environment” of pubs, argued that the real issue regarding tobacco had to do with the sale of illegally imported, counterfeit and contraband products on street corners.59 Elspeth Lee of Cancer Research UK, however, pointed out that not all cigarette vending machines were in premises predominantly frequented by over-18s—

“78 per cent are located in pubs, which younger people can enter; 10 per cent are in clubs; 7 per cent are in hotels; 3 per cent are in shops; 1 per cent are in bingo halls; and the rest are elsewhere. We need to recognise that certainly not all cigarette vending machines are sited in premises that are accessible only to those aged 18 or over.”60

64. She argued that, even where machines were placed in establishments that were accessible only to the over-18s, there was the potential for younger people to nonetheless access such places and therefore to access cigarettes.61

Impact on the licensed trade

65. Evidence from witnesses on the provisions affecting the sale of tobacco products focussed on the proposal to ban vending machines. Janet Hood, from BII Scotland, expressed “serious concerns”62 about removing vending machines from licensed premises. Whilst she acknowledged that vending machines in licensed premises had “little direct benefit for the bottom line”63, she argued that there was an indirect benefit on footfall owing to a “synergy” between the purchasing of alcohol and cigarettes. Her reasoning was that, when people having a drink in a pub wanted to buy cigarettes and found that none was available on the premises, they would leave and go to buy the cigarettes in, for example, a supermarket. There, she maintained, they would also buy half a dozen cans of beer and go home rather than back to the pub. She also applied this rationale to rural settings where, she said, people wishing to purchase cigarettes outwith the village shop’s business hours would tend to go to the pub to get the cigarettes and have a drink whilst they were there64

“Pubs are the hub of most communities, particularly rural ones. If people are driven out of those places to get cigarettes elsewhere—for example, buying the entire lot in a supermarket on a Saturday—or if they have to go home from the pub because they do not have any cigarettes, which they like to have to accompany their drink when they are smoking outside the pub, people will cease to go to the pub.”65

66. She argued that, as pubs sell “not only alcohol and cigarettes but food and everything else”, the loss of pubs would harm the economy and the tourism business and that, therefore, the Bill's proposals would be the “final straw” for marginal pubs in rural communities.66

67. Asked why vending machines as a means of selling cigarettes – rather than, for example, from behind the bar – were so important to the licensed trade, Janet Hood explained that cigarette vending machines were introduced to prevent theft—

“The theft of one packet of cigarettes from behind the bar knocks out the profit from two cartons and makes it almost impossible to sell cigarettes in that way. Nowadays, there is not enough room behind bars for cigarettes to be put under the counter.”67

68. Julian Banks, of Sinclair Collis Ltd, confirmed the connection between vending machines and theft, explaining that, before such machines were introduced, licensees had been losing a considerable amount of stock on staff changeovers and when other things were happening behind the bar.68 Paul Mair of NACMO, described vending machines as a “secure and safe way” of selling cigarettes in licensed premises and put forward the view that stocking tobacco behind the bar made it “accessible to children and to landlords' sons and daughters”.69

Alternatives to a ban on vending machines

69. According to Paul Mair, members of NACMO were not against further restrictions to make it harder for children to get cigarettes from vending machines. He proposed a form of age restriction and age verification for vending machines, rather than a total ban. He explained that the system proposed would be operated through a radio frequency system, ensuring that an underage person would be unable simply to approach a machine and purchase tobacco.70 The underage person would have to go to the bar, where age verification would take place. He explained that such a system, compatible with existing vending machines, had been developed and was being trialled in a number of pubs in the Manchester area—

“…the results that are coming back are highly favourable, on a number of points. First, everybody has to come for age verification. Secondly, the system has been embraced by the staff working in that environment. We are very much aware that, unless the system is embraced by the staff, it will fail. As I say, the results that we have got back from the initial trials have been very positive.”71

70. However, Elspeth Lee of Cancer Research UK questioned whether “placing the emphasis on busy bar workers” would achieve the objective of making vending machines available only to those aged 18 or over.72 Reservations were also expressed by Sheila Duffy of ASH Scotland, who called for test purchasing evidence on whether remote control or token systems for vending machines were effective. Drawing a parallel with test purchasing evidence showing that under-18s had been able to purchase from retailers, she questioned whether a vending-machine age-control system operated by bar staff would be effective—

“We have not questioned the majority of retailers, but we have said that enforcement officers report that a quarter of retailers, when test purchased, will make underage sales. We would have similar concerns about any vending machine system.”73

Scottish Government

71. Asked about the suggested radio-controlled age verification system for vending machines, the Minister argued that it was not known whether bar staff and licensed trade would want to take on the responsibility for operating such a system. She added that the Scottish Licensed Trade Association (“the SLTA”) had told her that it did not consider vending machines to be an important part of the trade—

“They are marginal to its operation and there is a genuine issue in respect of shifting responsibility to bar staff who will be extremely busy doing other things.”74

72. She refuted the position of BII Scotland that banning vending machines would have an impact on the licensed trade, explaining that the SLTA had surveyed its members on the matter and had found them to be “ambivalent” about vending machines. She went on to explain that there was concern about the increase in responsibility for bar staff arising from operating whatever the proposed alternative to the ban—

“The direction of travel seems to be that there will be quite a complicated system that will have to be policed. I am not sure how much consultation there has been with the licensed trade down south on that, but I would think that there are issues to do with that responsibility that have to be explored.”75

73. As regards the justification for a ban, she stated one young person in 10 currently accessed cigarettes through vending machines. Describing the ban as an “important public health measure”76, she said that she saw “no place in a modern Scotland”77 for cigarette vending machines—

“For me, the fundamental question is whether tobacco is an appropriate product to sell in a vending machine. We would not sell other age-restricted dangerous products in vending machines, so why do we sell cigarettes in that way? Although there might be technical solutions, should one want to go down that route, for me it all comes back to the fundamental question whether it is right to sell cigarettes in that way. The Government's view is that it is not.”78

74. Asked about the number of jobs involved in the vending machine business and the impact of a ban on employment, the Minister acknowledged that job losses would be a concern not to be taken lightly. She stated that the Scottish Government was still trying to establish with companies exactly what the numbers were and that it had been “quite a challenge to get accurate information” from quite a lot of the companies that were subsidiaries and/or based in England. She confirmed that a revised financial memorandum would be issued “as quickly as possible”.79

75. She went on to explain that the Scottish Government wished to ensure that there would be time for vending machine companies to investigate how they could bolster non-tobacco-related parts of their businesses. She also said that other arms of government might be able to help with diversification into alternative areas.80

Conclusion

76. The Committee is not persuaded by the criticisms made by some witnesses, in arguments against the Bill, of SALSUS, a survey conducted by successive Governments since the 1980s that has been validated and subjected to rigorous scrutiny over the years. Furthermore, other critics of the Bill referred to SALSUS when making their case.

77. The Committee notes the arguments that a ban on cigarette vending machines may have an economic impact on the licensed trade but recognises equally the opposing arguments, including those of the Minister, that the impact may be marginal.

78. The Committee also notes the alternative proposal put forward by operators of vending machines for a radio-controlled system based on age verification by bar staff in licensed premises. However, the Committee remains to be convinced that this system could be made to work in practice across the range of situations in which a vending machine might be installed – for example, in crowded city-centre pubs where there are many distractions for bar staff.

79. The Committee recognises that there would inevitably be a cost to cigarette-vending-machine businesses but notes the Minister’s assurances that the Scottish Government is working with the sector with a view to minimising the impact.

80. The Committee understands that youth smoking is a great concern and that, as demonstrated by SALSUS, vending machines are a source of cigarettes for young people. Most Committee members are persuaded by the view that, in common with other age-restricted dangerous products, it is not appropriate to sell tobacco in vending machines. In this context, the majority of Committee members are, on balance, in favour of the prohibition of vending machines for the sale of tobacco products.

part 1: Register of tobacco retailers

Background

81. The Bill would establish a national register of tobacco retailers. All tobacco retailers would have to be registered, with a duty to notify certain changes or face penalties for not doing so. A retailer receiving three or more tobacco enforcement actions against specified premises could face a ban on selling tobacco in those premises for up to 12 months. The ban would be applied through the courts. The Bill would also give Scottish Ministers regulatory powers to make specific provision for vehicles, vessels and movable structures.

82. Asked about the proposed national register, Janet Hood of BII Scotland said that she was “not convinced” that the scheme would make any difference to how tobacco was sold because there was “no evidence” to show that it would. She raised concerns about how long it would take to register retailers and about how clear the Bill’s provisions were as to whether being struck off would affect just one premises or all of a retailer’s premises.81

83. John Drummond of the Scottish Grocers Federation favoured registration over the alternative of licensing on the grounds of being “cheaper, easier and more efficient”, whereas licensing would bring “unnecessary bureaucracy and cost”. However, he also suggested that that registration would not in itself lead to the prevention or even diminution of activity in the illicit cigarette market. To achieve that, he said, stronger powers for trading standards, the police or both would be required82. Katherine Graham from the Tobacco Retailers Alliance supported “any measure that prevented” sales to under-18s but echoed John Drummond’s doubt about whether a registration scheme would help enforcement against the black market.83

84. David Thomson, Trading Standards Manager at South Ayrshire Council, however, felt that the Bill would help trading standards officers to “crack down” on illicit trade. He said that the direct power that the Bill would confer on the police and trading standards to deal with people not registered to sell tobacco should increase their ability to tackle illicit sales. He said that the Bill’s provisions would “add strength to [police and trading standards officers’] elbow”84 and make operations “much simpler” for trading standards officers and for the police.

Scottish Government

85. The Minister explained that, after much consideration of different possible schemes, involving discussion with retailers and small businesses in particular, the Scottish Government felt that the registration scheme “ticked all the right boxes” in terms of having a tool for trading standards to use to ensure that those registered to sell tobacco products could, if they broke the law, be stopped and would lose their right to sell tobacco products. She also explained that a chain of stores would have to register each of its outlets as separate entities. The law would be applied to each store and, if the law were breached by a particular store, that store would lose its right to sell tobacco products.85

86. She emphasised the importance of the registration scheme as the penalty of losing the right to sell tobacco products would be a “fast and easy way of dealing with the problem”. She also argued that it would be effective in addressing the illicit trade because there would be “big penalties” for unregistered people who were found to be selling tobacco products—

“We are not talking about buttons: there will be pretty stiff penalties, such as a £20,000 fine and six months in jail—which trading standards officers have welcomed—for not being registered while selling tobacco products, or for being an illicit trader. Simplicity is sometimes a good thing. I am convinced that the provisions in the bill are the best way to achieve our desired ends.”86

87. It was put to the Minister that it may be desirable to include in the Bill a sanction against the legal person applying for registration if they were legally responsible for multiple breaches across different sets of premises – for example, if a pattern were established that suggested that a multi-centre owner was failing to train staff properly or an operator of a fleet or ice cream vans, each of which would be treated as a separate set of premised under the Bill. The Minister agreed to reflect on whether there should be a mechanism to address the issue of a chain of stores in which premises fell foul of the law one by one.

Conclusion

88. The Committee welcomes the proposal for a national register of tobacco retailers. In relation to the discussion around single operators of multiple premises, the Committee welcome’s the Minister’s agreement to reflect on the matter and asks that she report back before stage 2 of the Bill is reached.

Part 1: Enforcement and Fixed Penalties

Background

89. Local authorities would be responsible for the enforcement of the tobacco display, tobacco sale and retail registration provisions in the Bill. They would also be required to consider carrying out a programme of enforcement at least once in every year.

90. The Bill would also allow council officers and police constables to issue fixed penalty notices in relation to all offences relating to the sale and display of tobacco products and the national register of retailers.

91. Council officers would also have powers of entry to non-residential premises, which they would be able to use in order to establish compliance with the requirements of the Bill. The power would also allow council officers to seize documents and records as well as requiring people to provide them with information and assistance. The Bill would further allow a sheriff to issue a warrant for council officials to enter premises in certain circumstances, including where an officer had previously been refused entry.

Interaction of fixed penalty notices with the national register of tobacco retailers

92. Witnesses were asked whether fixed-penalty notices should be recorded on the national register of tobacco retailers. Lesley Armitage of NHS Lanarkshire responded that they should be so that the record showed a full picture of a particular retail outlet’s track record. Sheila Duffy of ASH Scotland agreed and also called for the information about enforcement activities and penalties issued to be made public and available—

“…because we have concerns that, although resources have been allocated by Government to enforcement, they may not reach the front line as we would wish them to. It would also be helpful if guidance were issued that serious infringements and breaches of the law, such as selling tobacco to under-18s or displaying tobacco products, should attract an immediate fixed-penalty notice.”87

93. John Drummond of the Scottish Grocers Federation expressed the following view on the same issue—

“As responsible retailers, we have no issue with that suggestion; it sounds eminently sensible.”88

Powers of entry

94. The Bill would confer upon local authority officers, for the purpose of carrying out the local authority’s functions under the Bill, a power of entry to any premises other than private dwelling houses. The representative from ACPOS, Assistant Chief Constable Andrew Barker, put forward a case for extending this power to include the police, in the interests of partnership working between the police and local authorities—

“…the association…would welcome the police being granted similar powers…. Joint working with local authorities and council officers is strong. Giving the police parity in relation to the powers that we are discussing would be a helpful step forward.”89

Criminalisation of other activities

95. Katherine Graham from the Tobacco Retailers Alliance suggested that there were measures more effective in reducing youth smoking than those in the Bill. She said that the Tobacco Retailers Alliance would favour the criminalisation of proxy purchasing—

“Currently, the legal onus for enforcing the law rests entirely on retailers. The only law is that retailers cannot sell tobacco to under-18s, which means that it remains legal for adults to buy tobacco for under-18s. That sounds a bit shocking, but it is very commonplace. The evidence from trading standards is that an estimated 46 per cent of underage smokers regularly get their tobacco from a proxy purchaser. We are keen for that avenue of access to be closed off.”90

96. She also referred to recent studies from the USA showing that making possession of tobacco an offence for under-18s significantly reduced their opportunity to smoke. She acknowledged that there are sensitivities about criminalising minors but, drawing a comparison with alcohol, pointed out that, when the police saw an under-18 drinking alcohol in public, they confiscated the alcohol, whereas they did not do that with tobacco.91 Her reading of the current situation was confirmed by David Roderick of the Society of Chief Officers of Trading Standards in Scotland, who stated that equivalent provisions for tobacco purchasing do not exist and it is not, therefore, an offence for under-18s to buy tobacco or for someone to buy it on their behalf.92

97. Asked whether she would support a strengthening of the law in this area, Sheila Duffy of ASH Scotland supported giving the police powers to confiscate tobacco from under-18s and stated that ASH Scotland does not have an objection to the criminalisation of proxy purchasers.93 However, she was against the criminalising of young people for possessing tobacco and questioned how effective proxy-purchasing measures would be—

“The evidence base on such measures is tiny and, as far as I am aware, there is no evidence to support their effectiveness. ASH Scotland certainly supports the idea of giving the police powers to seize tobacco from underage people. Beyond that, we have a concern that proxy purchase measures might deflect from some of the more evidence-based measures that are being considered.”94

98. Fiona Beaton MSYP, Acting Health Convener in the Scottish Youth Parliament, also spoke out against criminalising young people for possessing tobacco products. She said that the Scottish Youth Parliament favoured targeting retailers and proxy purchasers rather than the young people who access products when they are underage.95

99. Assistant Chief Constable Andrew Barker, representing ACPOS, was also supportive of the suggestion that proxy purchasing should become an offence. He described the similarity with the purchase of alcohol – the proxy purchasing of which being an offence – as “quite significant” and reported that, in relation to alcohol, there had been a decrease in failures in test purchases directly from the retailer but also that there was a substantial amount of evidence of a problem emerging in relation to proxy sales.96

Scottish Government

100. The Minister was asked why the Bill required local authorities to “consider carrying out” a programme of enforcement at least once in every year, rather than requiring them to “undertake” such a programme at least once in every year. It was stated in response that the provision in the Bill was a “straight lift from existing legislation” and that an annual survey of local authorities’ enforcement activity showed that “most” councils had a programme. The Minister expressed the view that guidance would probably be important in determining where there would be room for manoeuvre but she also stated that the Scottish Government wanted consistency in application of the Bill and agreed to look into whether the provision should be a simple requirement to undertake a programme of enforcement.97

101. The issue of proxy purchasing was also raised with the Minister. She first expressed reservations relating to the difficulty in gathering evidence, stating that gathering evidence on the proxy purchasing of tobacco, if it were included in the Bill, would be a big challenge, as it was in relation to alcohol. However, she went on to say that she was open-minded about including proxy purchasing in the Bill and would consider lodging amendments to do so, subject to considerations around the scope of the Bill.98

102. The Minister expressed further reservations in relation to the issue of criminalising under-18s for the possession of tobacco, which she described as a “serious step” to take. In any event, we have to ask whether such a step would reduce or stop consumption—

“There is also the question whether that step would be within the bill's scope, but that is probably less problematic than the question about proxy purchasing in that regard. In respect of confiscating tobacco, she advised that the comparable laws relating to alcohol were old and had not been subject to compliance with the European convention on human rights, which any new law on tobacco would be.”

103. According to the Minister, this would “not be straightforward” and would require “more consultation”.99

Conclusion

104. The Committee notes the request made by ACPOS that the powers of entry that the Bill would confer on local authority officers should equally be conferred on the police and recommends that the Bill be amended to this effect.

105. The Committee notes that there was no opposition expressed in oral evidence to the suggestion that fixed penalty notices should be publicly recorded on the national register of tobacco retailers and recommends that this suggestion be incorporated into the Bill.

106. The Committee notes the explanation that the Bill’s provisions on local authority enforcement programmes are lifted from existing legislation; however, given that the Scottish Government is now attaching a higher degree of severity to the issue of smoking, the Committee believes that enforcement activity should be commensurately more important also and therefore recommends that the Bill be amended to require local authorities to carry out annual enforcement programmes, rather than to consider doing so.

107. The Committee notes that the criminalisation of proxy purchasing was supported across the range of witnesses. The Committee was persuaded by the arguments in favour of introducing new measures on proxy purchasing and welcomes the Minister’s willingness to consider the issue. The Committee recommends that the Bill be amended to criminalise proxy purchasing.

108. The Committee also found persuasive the arguments in favour of giving the police powers comparable with those relating to alcohol, to confiscate tobacco from under-18s; however, the Committee recognises the Minister’s view that this would be technically more difficult to achieve. The Committee therefore awaits with interest the outcome of further consideration given to the issue by the Minister and asks that she report back before stage 2 of the Bill is reached.

part 2: Primary Medical Services

Background

109. Part 2 of the Bill would amend existing legislation with respect to the eligibility criteria for persons contracting or entering into arrangements with health boards to provide for primary medical services. The Bill would amend the list of persons who are eligible and, in particular, includes a requirement that all contracting parties must regularly perform, or be engaged in the day to day provision of, primary medical services.100

Current legislative position for provision of GP services

110. The Primary Medical Services (Scotland) Act 2004 amended the National Health Service (Scotland ) Act 1978 by placing a duty on NHS Boards to provide or secure 'primary medical services' for their populations. At present, the 1978 Act provides that health boards may make such arrangements to secure the provision of primary medical services as they think fit.

111. In practice, this means that health boards can employ doctors directly to act as general practitioners (“GPs”). Alternatively, health boards can make arrangements (by 'contract' or 'agreement') with a range of 'providers' as discussed below.

GMS contract

112. A General Medical Services (GMS) contract (under section 17J of the 1978 Act) is nationally negotiated with some local flexibility for GPs to 'opt out' of certain services or 'opt in' to the provision of other services. The contract must be with (1) an individual doctor or (2) a partnership where at least one partner is a doctor or (3) a company limited by shares where at least one shareholder is a doctor. In the second and third options the other partners or shareholders must be from a statutory list of individuals who are within the NHS or a health care professional.

Section 17C contract

113. A 'section 17C' (formally known as 'Personal Medical Services') agreement is one which is locally negotiated, to provide for more flexibility to deal with local circumstances. The contract can be a locally negotiated agreement with medical practitioners or health care professionals or other persons from a statutory list. This is the important difference compared to a GMS contract – in the case of section 17C contracts, there is no requirement for at least one of the individuals to be a medical practitioner.

Health Board Primary Medical Services contract

114. Another option is a 'Health Board Primary Medical Services' contract (section 2C of the 1978 Act), where a health board may, in certain circumstances, award a contract to any other person, including commercial bodies, which would then employ doctors and other staff to treat patients. There is no requirement that those holding the contract be doctors or other health care professionals. The basic requirement is that the person is of ‘good standing’ but there is no requirement for a clinical qualification.

Changes proposed by the Bill

115. Section 29 of the Bill proposes giving health boards more limited powers than they currently enjoy in respect of their ability to enter into agreements which are one of the following: (1) a section 17C arrangement or (2) a GMS contract or (3) an agreement with parties who would be eligible to enter into a section 17C arrangement.

116. The intention of the Bill is to ensure that any persons contracting with health boards must, amongst other things, regularly perform, or be engaged in the day to day provision of, primary medical services. This requirement would apply in all of the three situations listed above.

Tightened eligibility to enter into a section 17C agreement

117. Section 30 of the Bill proposes to amend the eligibility criteria for a section 17C agreement, namely that health boards would only be able to make such arrangements with medical practitioners, health care professionals and qualifying partnerships, limited liability partnerships or companies. The Bill defines a qualifying partnership or limited liability partnership as one where all partners are individuals and at least one partner is a medical practitioner or health care professional. A qualifying company would be one where at least one share is legally and beneficially owned by a medical practitioner or health care professional, and all other shares are owned by individuals.

118. In addition, health boards can only enter into a section 17C arrangement if they are satisfied that the parties have a sufficient involvement in patient care. The involvement criteria require that all parties to the agreement regularly perform, or are engaged in the day to day provision of, primary medical services. The details of what will be sufficient to meet this requirement will be set out in regulations.

Eligibility to enter into a GMS contract

119. Section 31 of the Bill seeks to amend the criteria for eligibility to provide primary medical services under a GMS contract. The bill proposes that health boards would only be able to enter into such a contract with medical practitioners and qualifying partnerships, limited liability partnerships or companies. A qualifying partnership or limited liability partnership as one where all partners are individuals and at least one partner is a medical practitioner (i.e. a GP). A qualifying company would be one where at least one share is legally and beneficially owned by a medical practitioner, and all other shares are owned by individuals.

120. As with the proposals for the section 17C contract, there is a requirement that the health board can only enter into this type of contract if the health board is satisfied that the contractor has sufficient involvement in patient care.

121. The important distinction between the GMS contract and the section 17C contract is that in the case of the former health care professionals (like nurses) would not meet the qualifying criteria.

Private companies and existing PMS contracts

122. The Committee was informed that in 2007 NHS Lanarkshire had tendered for a vacant GP practice in Harthill. Three bids were received, two from GP practices and one from a private company (Serco). According to Alan Lawrie of NHS Lanarkshire there was “considerable local reaction and interest” from patients, councillors and MSPs at the time of the tendering process.101 Ultimately the contract was ordered to one of the incumbent GPs who had gone into partnership with another GP.

123. The legislation is not retrospective, meaning that current contracts held by GP practices which do not currently comply with the provisions of Part 2 would not be affected. The provisions of the Bill would only apply to new contracts. The Scottish Government provided written evidence that, on the basis of information provided by health boards, only one practice in Orkney would not meet the requirements of the legislation.

Merits and demerits of commercially run medical practices

124. The Committee received only nine responses on this part of the Bill, with a majority of those who responded being in favour of the tightening of eligibility criteria for holding primary medical services contracts. In written evidence, the BMA stated that it was the legislative provision (which the Bill seeks to remove) that “has allowed the rapid expansion of commercially provided NHS GP services in England”.102 NHS Tayside was in favour of the proposals since this would “prevent the creation of ‘corporate GP contracts’ by commercial companies which would permit them to take over vacant GP practices”.103 The BMA also stated “general practice, delivered under the auspices of the NHS, will ensure that patient care comes before profit, and that patients can be assured of continuity of care”.104 Around 88% of primary medical services are delivered through at GMS contract; 9% through a section 17C contract and 3% through salaried staff working directly for health boards.

125. In written evidence, CBI Scotland stated that should the proposals be enacted “a significant opportunity to ensure services become more innovative and responsive to patient needs would be lost. The Scottish Government rightly seeks to improve health outcomes, and rightly looks to continental Europe for public policy inspiration. But closing the door to potential new sources of innovation and the high quality care provided by independent sector providers would, in fact, place Scotland as an isolated case.”105

126. CBI Scotland’s argument was that “if health services were left purely to market forces, equitable and efficient outcomes would not result. However…the Scottish Government’s proposals, which oppose the use of competition and choice for primary medical services, miss the point. In primary medical care, more capacity would allow GPs to compete for patients on the basis of access to high-quality care.”106

127. Community Pharmacy Scotland also had reservations about the measures, as they appeared to be designed to prevent the possibility of an alternative source of provision within the market place. It argued that there is no guarantee that the existing model of general practice will survive in the long term. Without the possibility of alternative methods of provision it would become difficult to meet the demands of “hard to doctor areas”, such as rural and disadvantaged urban areas.107 Other concerns were raised about the viability of provision of primary medical services for nursing homes and the prison service.

Visit to commercially run medical practices

128. Two members of the Committee, Helen Eadie MSP and Mary Scanlon MSP, undertook a fact-finding visit to Tower Hamlets in London to see a walk-in centre and a GP practice, both operated by Atos Healthcare – a commercial provider that would not be able to provide primary medical services in Scotland, should the eligibility criteria be tightened, as is proposed by the Bill.

129. The members had a chance to meet representatives of Tower Hamlets Primary Care Trust (PCT), NHS London, Atos Healthcare employees (including doctors). A note of these meetings is attached at annexe F. The walk-in centre, situated near Canary Wharf, has a mixed client list (around half of patients are commuters, with the remainder coming from the local population or from a transient population, like people staying in nearby hotels).

130. The GP practice that was visited is located in a very deprived area, with around 70% of the patients being of Bengali origin. The previous (traditional, GP-led) contract was terminated by the Tower Hamlets PCT, following concerns about poor performance, and taken over by Atos Healthcare in January 2008. Members were interested to find out that there had been community concern at the time that the PCT had awarded the contract to Atos Healthcare. 18 months into the contract, the PCT representatives expressed their satisfaction with how operations at the GP practice (and the walk-in centre) are being run, citing high patient satisfaction levels. It would appear as if patients’ concerns have not been realised – essentially the patient experience had not changed despite the fact that there had been a change in the primary medical services contract. Under the new arrangements, opening hours have been extended. The lead doctor said that in his view the major positive change that has occurred is that there has been more continuity of care, with there being improvements in patients’ levels of trust in doctors, resulting in a positive impact on patients’ management of chronic diseases.

131. This was particularly interesting for members given that one of the criticisms that has been levelled at commercially run primary medical services is that patients’ interests might come off second best to commercial considerations. On the basis of the feedback given by the representatives of the PCT and NHS London, this did not appear to be a problem in reality in the case of these two operations.

132. The members were also interested to learn of an increasing number of GP consortia (i.e. companies owned by a small number of doctors) that are competing with ‘big business’ like Atos Healthcare and Serco to provide primary medical services. These GP consortia – if they are owned by individuals – would be likely to meet the tightened eligibility criteria proposed by the Bill. However, it would appear that they are just as commercial in outlook as companies that are listed on the stock exchange.

Scottish Government

133. In oral evidence, the Cabinet Secretary stated that, under the Bill, contract holders would be expected to “demonstrate that commitment [to the NHS] by being involved in either the clinical care or the running of services on a day-to-day basis”. She argued that this would “put patients’ interests at the heart of general practitioner service provision, where they are at the moment.”108

134. The Cabinet Secretary recognised that there had not been “an influx of the type that some people might have expected” in Scotland—

“Nevertheless the possibility remains on the statute book that commercial companies could become involved and there has been interest from such companies. I have listened to representations from a range of interests and decided that it is right, given our broader objectives and vision for the NHS, to close the loophole.”109

135. There was some debate in oral evidence about the business status of the GP practices that currently hold primary medical services contracts. The Cabinet Secretary was keen to stress the difference that she saw between GP practices and the commercial contractors that the Scottish Government regarded as being undesirable—

“GPs are independent contractors who run businesses, but they are also medical professionals whose motive is the best interests of the patients and the communities in which they live. There is a difference between a company that is made up of health professionals who have a health motive and a big company that is not composed of health professionals…that approach is not appropriate for what is often rightly described as the gateway to our national health service.”110

“The bill is trying to deal with commercialisation of the health service. GPs are independent contractors…they are health professionals – they run businesses but their primary motive is the delivery of health care. There is a material difference between that and big commercial companies that are made up of shareholders and that do not have that health experience and responsibility for the delivery of health care.”111

136. Regulations would stipulate what constitutes the regular performance of, or being engaged in the day to day provision of, primary medical services. The Committee understands that draft regulations will be provided before Stage 2. In oral evidence, the Cabinet Secretary said that there would be a requirement for an average time commitment of a day a week.112 However, it would appear that this commitment would apply to any practice and not to a specific practice. So it would be possible for a GP to hold a contract to provide primary medical services for a practice without having any involvement in that particular practice. If this were the case, it could be argued that this was comparable in its ‘commerciality’ to big businesses that were not owned by health professionals.

137. The Cabinet Secretary’s view was that she would reflect on this view but explained the rationale behind the Scottish Government’s current thinking—

“We want to ensure that people who are party to primary care contracts have an interest and involvement in, and therefore knowledge of, the running of primary GP services and, by extension, knowledge of and interest in the broader issues of the NHS…I do not believe that that necessarily means that there must be that kind of involvement in each and every practice for which somebody has a contract.”113

Conclusion

138. There are a range of views among committee members about whether there is a need for Part 2 of the Bill.

139. All members of the Committee consider that there can be no guarantee that the existing model of general practice will survive in the long term. For example, there may come a time when a health board may struggle to secure primary medical services for a particular community, whether that be in a rural location or a disadvantaged urban area. One possible future development might be that a community might wish to form a co-operative to contract for a GP practice if the health board had been unable to secure primary medical services through any of the currently available options

140. Some members of the Committee consider that it is unnecessary to restrict the eligibility criteria in the way that the Bill proposes. For these members, in the absence of any influx of commercial providers in Scotland, Part 2 is unnecessary legislation at this moment in time.

141. Other members are sceptical about the effect of the legislation if, as the Bill currently stands, groups such as community co-operatives or other social enterprises would be prevented from contracting for primary medical services.

142. The Committee recommends that the Cabinet Secretary reflect on this situation and consider whether the eligibility criteria need to be adjusted to allow for the possibility of groups such as community co-operatives to also hold a GMS contract and a section 17C contract.

143. Some members are of the view that there is a loophole in existing legislation that could enable big businesses to be contracted to provide primary medical services. For these members, this position cannot be reconciled with a vision of a mutual NHS with is publicly owned and where the providers of care have a direct involvement with an interest in patient care. Accordingly, for these members, there is a loophole in the existing legislation that needs to be closed.

144. For some members of the Committee who have sympathy with the broad rationale behind Part 2 of the Bill, there is a concern that the legislation may not be sufficiently tightly drafted. In particular, some members of the Committee do not consider that the Bill currently provides for a sufficiently direct link between a particular medical practice and the person(s) who hold the contract to provide primary medical services for that practice.

145. There was a debate in evidence about the difference between the independent sector and the commercial sector. The Cabinet Secretary characterised independent contractors as being health care professionals who run businesses but who have as their primary motivation the delivery of health care. Some members of the Committee consider that it is hard to sustain the concept of an independent sector that is different from a (profit-motivated) commercial sector, particularly if there is no link between a particular medical practice and the person(s) who hold the contract to provide primary medical services for that practice.

146. The Committee recommends that the Cabinet Secretary clarify what constitutes the regular performance of, or being engaged in the day-to-day provision of, primary medical services prior to the publication of the draft regulations before Stage 2 of the Bill, should the Parliament agree the general principles of the Bill.

Eligibility of health care professionals to enter into GMS contracts

147. In consultation prior to the introduction of the Bill, there was a proposal that the eligibility criteria for those who can hold the GMS contract to be aligned with those for section 17C contracts but this proposal was not included in the Bill. The policy memorandum states that this was withdrawn from the Bill because “the proposal generated strong disagreement from the sector although one organisation was in favour. The proposal was also not extensively trailed prior to the consultation, and this generated some criticism. It has been decided that there is no compelling evidence to support pursuing this option.”114

148. The RCN provided written evidence that 88% of GP practices offer services under GMS contracts and as nurses and other eligible health care professionals cannot hold these contracts – unless they are in partnership with a medical practitioner – the opportunity for nurses and others to hold contracts to provide primary medical services is limited.

149. The RCN disputes the Scottish Government’s analysis of the pre-introduction consultation, and believes there has not been sufficient debate of the issues of nurses and other healthcare professionals being lead holders of GMS contracts. Accordingly its position is to ask that the Bill be amended to enable this change to be made in the future by way of regulation, rather than there being the need for further primary legislation if this policy is thought desirable.

Scottish Government

150. The Cabinet Secretary told the Committee that she was “not persuaded at this stage that we should allow nurses to be sole holders of GMS contracts. That said, the point about being able to change things in future without opening up primary legislation merits further reflection”.115

Conclusion

151. The Committee considers that the position put forward by RCN is measured and reasonable. Accordingly, the Committee requests that the Scottish Government brings forward an amendment at Stage 2 that would enable this change in legislation to be made by way of regulation, rather than primary legislation, should there be a view that the change is merited at some point in the future.

Financial memorandum

Background

152. As required by Rule 9.3.2 of the Parliament’s Standing Orders116, the Bill was on introduction accompanied by a Financial Memorandum. The Financial Memorandum should set out the best estimates of the administrative, compliance and other costs to which the provisions of the Bill would give rise, best estimates of the timescales over which such costs would be expected to arise, and an indication of the margins of uncertainty in such estimates. The Financial Memorandum must distinguish separately such costs as would fall upon (a) the Scottish Administration; (b) local authorities; and (c) other bodies, individuals and businesses.

153. The Standing Orders also require the lead committee to consider and report on the Financial Memorandum of the Bill and, in preparing its report, to take into account any views submitted to it by the Finance Committee.

154. The Finance Committee considers all financial memorandums accompanying a bill on introduction. In relation to the Bill, the Finance Committee agreed to seek written evidence from affected organisations, to take subsequently oral evidence from the Scottish Government Bill team and then to produce a report to the Health and Sport Committee in advance of its evidence sessions with the Minister and the Cabinet Secretary. The Finance Committee’s report is attached at annexe D.

Summary of costs outlined in the Financial Memorandum

Scottish Government

155. It is anticipated that the Bill’s provisions creating a point-of-sale ban on the display of tobacco products and creating a registration scheme for tobacco retailers would give arise to additional costs on the Scottish Government.

156. One-off marketing and advertising costs relating to the point-of-sale display ban would be around £350,000. Information packs would be sent to retailers notifying them of the necessity to comply with the display ban and a new website would be created. According to the Financial Memorandum, it is expected that the cost would be spread over financial years 2011-12 and 2013‑14 and would be met from within existing public health programme budgets.117

157. In relation to the registration scheme, the Financial Memorandum estimates that one-off costs would come to around £400,000 in the first year. Running costs in each year thereafter would come to £10,000 per year. The set-up costs in the first year would arise from the creation of a database to hold national level information, estimated at £7,500; the employment of a full-time analyst and part-time administrative assistant for the maintenance of the scheme, estimated at £44,000, and the marketing and advertising costs associated with sending information packs to retailers and setting up a website.118 These costs would fall in 2010-11 and 2011-12 and would be met from within existing public health programme budgets.119

158. The total cost, to the nearest £10,000, is estimated to be £750,000 and then £10,000 in each year after implementation of the registration scheme.120

159. The Financial Memorandum does not anticipate any substantive, administrative, compliance or other costs to arise from the provisions on primary medical services.121

Local authorities

160. The Financial Memorandum considers that Part 1 of the Bill would not give rise to any additional costs to local authorities, notwithstanding their role in the enforcement of the Bill’s provisions.122

161. The Financial Memorandum recognises, however, that, in the run-up to introduction of the proposals, there would be an increase in demand from businesses for advice from trading standards officers and that this would be likely to require a reprioritisation of duties and resources by trading standards. It is suggested that the proposed long lead-in time for the Bill would help to ease pressure on trading standards officers. The Financial Memorandum states that the Scottish Government would fund a national campaign to help trading standards officers inform retailers of the implementation of the legislation, which would avoid costs falling on local government.123

162. The Financial Memorandum also explains that, to proceed against retailers selling tobacco to under-18s, trading standards officers must currently report cases to procurators fiscal, a process that can be time-consuming and complex. Under the Bill, only the most serious cases would be reported to procurators fiscal, with the new regime of fixed penalty notices and banning orders for the majority of cases being expected to cost local authorities around the same as it does currently to report such cases to procurators fiscal.124

163. The Financial Memorandum states that there would no cost implications of the primary medical services provisions of the Bill for local authorities.125

Other bodies, individuals and businesses

164. The Financial Memorandum estimates that the main costs to business in relation to the tobacco provisions would be in relation to the display ban and the ban on sale of tobacco from vending machines.

165. A one-off cost to businesses of introducing a display ban would come to an estimated £1,200 for a small retailer, £6,000 for a medium-sized retailer and £17,500 for a major supermarket. The Financial Memorandum notes, however, that there is a high degree of uncertainty around these estimated costs because estimates provided by retailers do not take account of any more innovative, cost‑effective solutions to the point-of-sale display ban. It is also stated that, in order to minimise the impact on business, the Government would implement the display ban in 2011 for larger retailers and in 2013 for smaller retailers.

166. In relation to the ban on vending sales, the Financial Memorandum indicates that the Scottish Government is only aware of one company operating in Scotland that would be affected by the ban. This company advised that all 14 of its staff in Scotland would be made redundant as a consequence of the ban.126

167. The Minister has subsequently stated in correspondence that, since the work on which the Financial Memorandum is based was undertaken, NACMO has advised that there are a further 14 companies involved in the provision of cigarette vending machines and job losses as a result of a ban on cigarette vending machines could be greater than the 14 initially indicated. The Minister has, therefore, advised that it will “be necessary to update and amend the Financial Memorandum.”127

168. Finally, the Financial Memorandum states that other costs would arise from banning orders and fixed penalty notices in the event that businesses fail to comply with the Bill.128

Scrutiny of the Financial Memorandum

The Finance Committee

169. The Finance Committee reported concerns that the Financial Memorandum was drafted without a detailed knowledge of the number of companies and staff that the proposed ban on vending machines might impact upon. The Finance Committee noted that Scottish Government officials were unable to contact NACMO prior to the publication of the Bill and the Financial Memorandum. The Finance Committee concluded that the Financial Memorandum was unclear as to the overall costs to business, including the number of job losses that may arise from the proposed ban on vending machines.

170. The Finance Committee was also concerned that, despite the Minister’s indication that it would be “necessary to update and amend the Financial Memorandum” as a consequence of the further information from NACMO, no such update has been received. The Finance Committee agreed that this was “not ideal” as stated by the Bill team manager in further correspondence. The Finance Committee reported its expectation that the relevant information would be made available to the lead committee before it finalised its stage 1 report. The Minister provided this information in a letter in late August.

171. The Finance Committee noted that the Scottish Government would continue to work with retailers towards finding a solution to the point-of-sale display ban that would minimise costs and that it expected to have a clear set of proposals at stage 2. The Finance Committee suggested that it would have been preferable to have these solutions in place before introducing the Bill.

172. The Finance Committee agreed with the Scottish Government that Part 2 of the Bill in relation to primary medical services was not likely to give rise to any additional costs.

173. The Finance Committee also noted that there appeared to be a different approach to the Financial Memorandum for this Bill and that for the Health Boards (Membership and Elections) (Scotland) Bill in relation to providing expected costs outwith the current spending review period.129 Notwithstanding that formal budget allocation would be subject to future spending reviews, the Finance Committee considered that financial memorandums should be consistent in providing projections for costs in future years.

Conclusion

174. The Health and Sport Committee endorses the findings of the Finance Committee. In particular, the Committee is concerned that the Financial Memorandum, with incorrect information, accompanied the Bill at introduction. While the Committee understands why this situation came about, the Committee is disappointed at the length of time that it took the Scottish Government to provide the revised information.

Subordinate legislation

Background

175. Under Rule 9.6.2 of Standing Orders, where a Bill contains provisions conferring powers to make subordinate legislation, the Subordinate Legislation Committee (“SLC”) must consider and report to the lead committee on those provisions. The SLC may also consider and report to the lead committee on any provision in such a Bill conferring other delegated powers.

176. The SLC’s report is attached at annexe E. In it, the SLC reported that it considered each of the delegated powers provisions in the Bill and that it determined that it did not need to draw the attention of the Parliament to the delegated powers in the following sections: 1(2)(c), 1(3)(b) and 1(4), 4(4)(c), 5(5), 8(2)(d), 27(3), 30 (new section 17CA(5) and (6)), 30 (new section 17CA(7)), 31 (new section 17L(5) and (6)), 31 (new section 17L(7)), 34(1), 35(3); schedule 1, paragraph 11(1)(a) and (c); schedule 1, paragraphs 10 and 11(1)(b). Its report commented on other delegated powers provisions in the Bill and, where the SLC remained unsatisfied after further explanation from the Scottish Government, its comments are summarised below.

Report of the Subordinate Legislation Committee

Section 17 – power to modify for application to vehicles/ vessels

177. The SLC considered the power under section 17 that the Scottish Ministers may by regulations provide for the registration regime for tobacco retailers to apply to vessels, vehicles and other movable structures, subject to such modifications as the Scottish Ministers consider necessary or expedient, to be potentially very wide. It therefore asked whether it would be possible to specify and restrict the nature, scope and extent of “modifications” that may be provided for in regulations under this section. The SLC also asked why negative procedure was considered to be adequate, given that it appeared that the power could be used to make alternative provision in relation to significant matters, such as offences and sentencing.

178. The Scottish Government did not accept that the power was broad or unrestricted, stating that the power only allowed the Scottish Ministers to make modifications where necessary or expedient in order to make the registration regime apply effectively to movable structures. However, there is no qualification or limitation in these terms or to that effect in the section as it appears in the Bill.

179. The SLC remained of the view that the power was expressed in much broader terms than required for the purpose of ‘fine tuning’ the regulatory framework that the Bill would establish. The SLC considered that, if the intention was that the necessity or expediency should be for (and restricted to) the purpose of making the registration regime apply effectively to movable structures, the section should be amended to make that clear.

180. Also, the SLC did not consider that adequate justification for negative procedure had been given and was not satisfied, given the potential scope and significance of modifications that may be made in exercise of the power, that negative procedure provided adequate scrutiny of the power as presently drafted.

181. The SLC considered that the power, as presently drafted, appeared to be too wide in scope but, having regard to the Scottish Government response, the SLC recommended that the Scottish Government lodge an amendment to make it clear that the power was to be applied only where it was necessary or expedient to make the registration regime apply effectively to movable structures. The SLC also recommended that, if no such amendment were lodged, affirmative rather than negative procedure would be appropriate in order to provide adequate scrutiny.

Schedule 1 –paragraph 3 –time after which fixed penalty may not be given

182. Paragraph 3 would give the Scottish Ministers power to prescribe a period of time following the commission of the offence to which the penalty related, after which a fixed-penalty notice could not be issued. The SLC commented that there was no clear indication in the delegated powers memorandum (“DPM”) why (a) the time after which a fixed penalty notice may not be given was not specified on the face of the Bill, (b) there should be any need to amend this from time to time, and (c) why such a time limit is required.

183. The Scottish Government explained that it would not be appropriate that a notice be served months or years after an offence. It would be for the Scottish Ministers to determine beyond what period a fixed penalty notice should not be issued. They argued that there would be a need for flexibility in the light of experience, hence the provision for the power to be exercised by subordinate legislation. A seven-day time limit was being considered, a period that the Scottish Government considered to be reasonable. There was a similar provision in the Smoking, Health and Social Care (Scotland) Act 2005 (‘the 2005 Act’) for which a seven-day period applied.

184. The SLC agreed that it may not be appropriate to serve a notice months or years after the offence and that it may accordingly be appropriate to have a time limit beyond which a fixed penalty notice may not be issued. The SLC also accepted that it may be necessary or appropriate, in the light of a change in circumstances or operational experience, to change that limit. However, the SLC remained of the view that the exercise of this power was of some significance since it would define the point after which civil penalties would no longer be available as an alternative and criminal sanction only would be possible.

185. The SLC did not share the view expressed in the DPM that the power in paragraph 3 (and the other connected powers in schedule 1) were essentially administrative matters. These were extensive and open-ended powers. They would have the potential to significantly alter key elements of the fixed-penalty regime. In addition, the SLC remained of the view that the exercise of these powers could have significant and adverse effect on individuals.

186. In oral evidence, the Scottish Government made serveral references to provisions in the Smoking, Health and Social Care (Scotland) Act 2005. The SLC noted that the 2005 Act stipulated affirmative procedure for similar regulations. No clear justification was given for the reduction in the level of scrutiny from that adopted in the 2005 Act.

187. The SLC therefore reported to the lead committee and to the Parliament that, given that the power to set the time after which a fixed penalty may not be given was of importance in the context of the operation of the scheme and enforcement more generally and that the power was not subject to any fixed limits within which it may be exercised, the power should be subject to affirmative procedure.

Schedule 1 – paragraph 4- power to prescribe the amount of fixed penalty and the discounted amount

188. Paragraph 4 of schedule 1 gives the Scottish Ministers power to prescribe the amount of the fixed penalty and also the discounted amount. While there may be a need for flexibility in order to reflect changes in criminal justice fine policy and to which civil sanctions may be linked, the SLC would normally have expected the amount, or the maximum amount, of the fixed penalty to be set on the face of the Bill, as is the case in respect of conviction of an offence. The SLC noted that the proposed power would allow the penalty to be set at any level.

189. In evidence, officials stated that a variety of approaches had been adopted with respect to the setting of maximum penalties in fixed-penalty regimes. Some legislation sets out the maximum, other legislation does not. The Scottish Government emphasised the need for flexibility. The approach in the Bill was chosen for that reason. The Scottish Government had not yet set a figure for the maximum penalty and more consultation would be required before a decision could be made. There was no reference point against which the level of fixed penalty could be determined, but the penalty would have to be proportionate to the maximum fine of £2,500 on conviction.

190. The SLC appreciated that a fixed-penalty regime may have to provide for flexibility in certain respects. However, the SLC considered that it would be feasible for the maximum penalty (within which Scottish Ministers could have a discretion to fix a maximum amount from time to time) to be specified on the face of the Bill, either by the specification of a particular sum, or by reference to a percentage of the maximum penalty for offences. For the SLC, the maximum level of penalty was a significant matter whether it arose in the context of a civil or criminal enforcement regime. The SLC noted that there was a variety of approaches under different fixed-penalty regimes. The SLC considered that the Parliament should have an appropriate level of control over how any maximum was set.

191. The SLC reported to the lead committee and the Parliament that it considered the prescribing of maximum penalties that could be imposed for contravention of the law to be a significant and important matter, whether it arose in the context of a civil or criminal enforcement regime. Accordingly, it recommended that the exercise of the power to set maximum penalties should be subject to affirmative procedure.

Schedule 1 – paragraph 11(2) – power to modify time to pay

192. Paragraph 11(2) gives the Scottish Ministers power to substitute different deadlines for the 28-day payment and 14-day discounted payment deadlines specified in paragraph 5. A shorter or longer period may be specified.

193. The SLC noted the potential for the use of this power to reduce the 28- and 14-day deadlines, with an increased likelihood of criminal proceedings being initiated as a result of failure to make timeous payment.

194. The Scottish Government emphasised the need for flexibility to adjust the scheme in the light of experience and acknowledged that the power could permit the minimum time to pay being reduced to as little as 24 hours, although this was not envisaged. It was pointed out that the power would permit the period to be extended (as well as reduced).

195. The SLC acknowleged that there may be a need for flexibility with respect to certain elements of the scheme and could envisage circumstances that may give rise to a need to extend the time limit for payment. However, the SLC did not consider that a general reference to the need for flexibility provided sufficient explanation or justification for the breadth of the power, nor adequate reassurance that the power will not be exercised in a manner that will reduce the time frame for the payment of fixed penalties to the possible detriment of individuals.

196. The SLC reported to the lead committee and the Parliament that, given the potential impact of the exercise of this power on individuals and that no clear justification was given as to why it would be necessary for the power to be exercisable without any limits being set as to what may be prescribed, it was appropriate that the exercise of the power be subject to affirmative procedure.

Conclusion

197. The Committee endorses the findings and recommendations of the SLC.

Conclusion

198. This Bill is relatively unusual in that it is a comparatively small piece of legislation that encapsulates two very different areas of health policy, namely restrictions on the sale and display of tobacco products (Part 1) and the eligibility criteria to hold primary medical service contracts (Part 2).

199. The majority of members of the Committee consider that there is merit, in principle, in both of these areas although some members of the Committee have concerns about various aspects of Part 1 and some members have reservations about the rationale behind Part 2 of the Bill. These matters can be debated at Stage 2.

200. A majority of members of the Committee agree to recommend to the Parliament that the general principles of the Bill be agreed to.

Annexe A: EXTRACT FROM THE MINUTES

15th Meeting, 2009 (Session 3)
Wednesday 13 May 2009

Tobacco and Primary Medical Services (Scotland) Bill: The Committee took evidence on the Bill at Stage 1 from—

Mary Cuthbert, Head of Tobacco, Sexual Health and HIV Team, Public Health and Health Improvement Directorate, Rosemary Lindsay, Principal Legal Officer, Solicitors Health and Community Care Division, Legal Directorate, Kathleen Preston, Solicitor, Solicitors Health and Community Care Division, Legal Directorate, and Jonathan Pryce, Head of Primary Care Division, Primary and Community Care Directorate, Scottish Government.

16th Meeting, 2009 (Session 3)
Wednesday 20 May 2009

Tobacco and Primary Medical Services (Scotland) Bill: The Committee took evidence on the Bill at Stage 1, in a round-table discussion, from—

Mike Davies, Former Chairman, Association of Independent Tobacco Specialists; Janet Hood, Head of BII Scotland, British Institute of Innkeeping; Simon Clark, Director, FOREST; Wyndham Carver, Secretary-General, Imported Tobacco Products Advisory Council; Michelle McKeown, Vice President, Corporate Affairs, Japan Tobacco International; Paul Mair, Chairman, National Association of Cigarette Machine Operators; John Drummond, Chief Executive, Scottish Grocers Federation; Julian Banks, Managing Director, Sinclair Collis Ltd; Katherine Graham, Campaign Manager, Tobacco Retailers Alliance;

and then took evidence from—

Alastair Brown, Head of Environmental Health and Trading Standards, Glasgow City Council; David Roderick, Chairman, Society of Chief Officers of Trading Standards in Scotland; David Thomson, Trading Standards Manager, South Ayrshire Council.

17th Meeting, 2009 (Session 3)
Wednesday 27 May 2009

Tobacco and Primary Medical Services (Scotland) Bill: The Committee took evidence on the Bill at Stage 1 from—

Sheila Duffy, Chief Executive, ASH Scotland; Elspeth Lee, Head of Tobacco Control, Cancer Research UK; Trish Grierson, Tobacco Control Lead, NHS Dumfries and Galloway; Lesley Armitage, Consultant in Public Health Medicine, and Alan Lawrie, Director, South Lanarkshire CHP, NHS Lanarkshire; Fiona Beaton MSYP, Acting Health Convener, Scottish Youth Parliament.

18th Meeting, 2009 (Session 3)
Wednesday 3 June 2009

Tobacco and Primary Medical Services (Scotland) Bill: The Committee took evidence on the Bill at Stage 1 from—

Dr Dean Marshall, Chairman of the Scottish General Practitioners Committee, and Dr Beth McCarron-Nash, General Practitioner, British Medical Association Scotland; Alex MacKinnon, Head of Corporate Affairs, Community Pharmacy Scotland; Theresa Fyffe, Director, Royal College of Nursing Scotland.

19th Meeting, 2009 (Session 3)
Wednesday 10 June 2009

Tobacco and Primary Medical Services (Scotland) Bill: The Committee took evidence on the Bill at Stage 1 from—

Andrew Barker, Assistant Chief Constable (Fife), Association of Chief Police Officers in Scotland;

Shona Robison MSP, Minister for Public Health and Sport, Rosemary Lindsay, Principal Legal Officer, Solicitors Health and Community Care Division, Legal Directorate, and Mary Cuthbert, Head of Tobacco, Sexual Health and HIV Team, Public Health and Health Improvement Directorate, Scottish Government;

Nicola Sturgeon MSP, Cabinet Secretary for Health and Wellbeing, John Davidson, Policy Manager, GMS Branch, Kathleen Preston, Solicitor, Solicitors Health and Community Care Division, Legal Directorate, and Jonathan Pryce, Head of Primary Care Division, Primary and Community Care Directorate, Scottish Government.

20th Meeting, 2009 (Session 3)
Wednesday 17 June 2009

Tobacco and Primary Medical Services (Scotland) Bill (in private): The Committee considered options for its draft Stage 1 report.

21st Meeting, 2009 (Session 3)
Tuesday 1 September 2009

Tobacco and Primary Medical Services (Scotland) Bill (in private): The Committee considered a draft Stage 1 report. Various changes were agreed to, and the Committee agreed to consider a revised draft at its next meeting.

22nd Meeting, 2009 (Session 3)
Wednesday 9 September 2009

Tobacco and Primary Medical Services (Scotland) Bill (in private): The Committee considered and agreed a draft Stage 1 report.

  Next

Footnotes:

1 Tobacco and Primary Medical Services (Scotland) Bill – Policy Memorandum, SP Bill 22–PM.

2 Scottish Executive. (2006) Consultation on Smoking Prevention Working Group Report: Towards A Future Without Tobacco. Scottish Executive. Available at www.scotland.gov.uk/Publications/2006/12/07154302/2 [accessed 10 September 2009]

3 Scottish Executive. (2006) Towards a future without tobacco: The Report of The Smoking Prevention Working Group. Scottish Executive. Available at www.scotland.gov.uk/Publications/2006/11/21155256/12 [accessed 10 September 2009]

4 Scottish Government. (2008) Scottish Government Consultation on Changes to Eligibility Criteria for Providers of Primary Medical Services. Scottish Government. Available at www.scotland.gov.uk/Publications/2008/10/21161426/8 [accessed 10 September 2009]

5 Tobacco Advertising and Promotion Act 2002 c.36

6 Scottish Parliament Health and Sport Committee. Official Report, 20 May 2009, Col 1948.

7 Scottish Parliament Health and Sport Committee. Official Report, 20 May 2009, Col 1951.

8 Scottish Parliament Health and Sport Committee. Official Report, 20 May 2009, Col 1956.

9 Scottish Parliament Health and Sport Committee. Official Report, 20 May 2009, Col 1955.

10 Scottish Parliament Health and Sport Committee. Official Report, 20 May 2009, Col 1955.

11 Scottish Parliament Health and Sport Committee. Official Report, 20 May 2009, Col 1956.

12 Scottish Parliament Health and Sport Committee. Official Report, 27 May 2009, Col 2005.

13 Scottish Parliament Health and Sport Committee. Official Report, 27 May 2009, Col 2006.

14 Scottish Parliament Health and Sport Committee. Official Report, 27 May 2009, Col 2006.

15 Scottish Parliament Health and Sport Committee. Official Report, 27 May 2009, Col 2011-12.

16 Scottish Parliament Health and Sport Committee. Official Report, 27 May 2009, Col 2015.

17 Scottish Parliament Health and Sport Committee. Official Report, 20 May 2009, Col 1957-8.

18 Scottish Parliament Health and Sport Committee. Official Report, 20 May 2009, Col 1957-8.

19 Scottish Parliament Health and Sport Committee. Official Report, 20 May 2009, Col 1958.

20 Scottish Parliament Health and Sport Committee. Official Report, 27 May 2009, Col 2008.

21 Scottish Parliament Health and Sport Committee. Official Report, 20 May 2009, Col 1948.

22 Scottish Parliament Health and Sport Committee. Official Report, 20 May 2009, Col 1956-7.

23 Scottish Parliament Health and Sport Committee. Official Report, 20 May 2009, Col 1960.

24 Scottish Parliament Health and Sport Committee. Official Report, 20 May 2009, Col 1960.

25 Scottish Parliament Health and Sport Committee. Official Report, 27 May 2009, Col 2008.

26 Scottish Parliament Health and Sport Committee. Official Report, 20 May 2009, Col 1950-1.

27 Scottish Parliament Health and Sport Committee. Official Report, 20 May 2009, Col 1951.

28 Scottish Parliament Health and Sport Committee. Official Report, 20 May 2009, Col 1959-60.

29 Scottish Parliament Health and Sport Committee. Official Report, 27 May 2009, Col 2006-7.

30 Scottish Parliament Health and Sport Committee. Official Report, 20 May 2009, Col 1985-6.

31 Scottish Parliament Health and Sport Committee. Official Report, 27 May 2009, Col 2007.

32 Sinforiani Bros. Written submission to the Health and Sport Committee.

33 Scottish Parliament Health and Sport Committee. Official Report, 20 May 2009, Col 1951.

34 Scottish Parliament Health and Sport Committee. Official Report, 20 May 2009, Col 1949.

35 Imported Tobacco Products Advisory Council. Written submission to the Health and Sport Committee.

36 Scottish Parliament Health and Sport Committee. Official Report, 10 June 2009, Col 2093.

37 Scottish Parliament Health and Sport Committee. Official Report, 10 June 2009, Col 2093.

38 Scottish Parliament Health and Sport Committee. Official Report, 10 June 2009, Col 2093.

39 Scottish Parliament Health and Sport Committee. Official Report, 10 June 2009, Col 2093.

40 Scottish Parliament Health and Sport Committee. Official Report, 10 June 2009, Col 2093-4.

41 Scottish Parliament Health and Sport Committee. Official Report, 10 June 2009, Col 2105.

42 Scottish Parliament Health and Sport Committee. Official Report, 10 June 2009, Col 2094.

43 Scottish Parliament Health and Sport Committee. Official Report, 10 June 2009, Col 2104.

44 Scottish Parliament Health and Sport Committee. Official Report, 10 June 2009, Col 2104.

45 Scottish Parliament Health and Sport Committee. Official Report, 10 June 2009, Col 2108.

46 Scottish Parliament Health and Sport Committee. Official Report, 13 May 2009, Col 1904.

47 Scottish Parliament Health and Sport Committee. Official Report, 20 May 2009, Col 1992-3.

48 Scottish Parliament Health and Sport Committee. Official Report, 20 May 2009, Col 1993.

49 Scottish Parliament Health and Sport Committee. Official Report, 20 May 2009, Col 1993-4.

50 Scottish Parliament Health and Sport Committee. Official Report, 20 May 2009, Col 1993.

51 Scottish Parliament Health and Sport Committee. Official Report, 20 May 2009, Col 1962-3.

52 Scottish Parliament Health and Sport Committee. Official Report, 20 May 2009, Col 1964.

53 Scottish Parliament Health and Sport Committee. Official Report, 20 May 2009, Col 1963.

54 Scottish Parliament Health and Sport Committee. Official Report, 20 May 2009, Col 1962-4.

55 Scottish Parliament Health and Sport Committee. Official Report, 27 May 2009, Col 2020.

56 Scottish Parliament Health and Sport Committee. Official Report, 20 May 2009, Col 1965-6.

57 Scottish Parliament Health and Sport Committee. Official Report, 20 May 2009, Col 1966.

58 Scottish Parliament Health and Sport Committee. Official Report, 20 May 2009, Col 1973.

59 Scottish Parliament Health and Sport Committee. Official Report, 20 May 2009, Col 1973.

60 Scottish Parliament Health and Sport Committee. Official Report, 27 May 2009, Col 2019.

61 Scottish Parliament Health and Sport Committee. Official Report, 27 May 2009, Col 2019.

62 Scottish Parliament Health and Sport Committee. Official Report, 20 May 2009, Col 1961.

63 Scottish Parliament Health and Sport Committee. Official Report, 20 May 2009, Col 1961.

64 Scottish Parliament Health and Sport Committee. Official Report, 20 May 2009, Col 1966.

65 Scottish Parliament Health and Sport Committee. Official Report, 20 May 2009, Col 1961-2.

66 Scottish Parliament Health and Sport Committee. Official Report, 20 May 2009, Col 1962.

67 Scottish Parliament Health and Sport Committee. Official Report, 20 May 2009, Col 1967-8.

68 Scottish Parliament Health and Sport Committee. Official Report, 20 May 2009, Col 1968.

69 Scottish Parliament Health and Sport Committee. Official Report, 20 May 2009, Col 1968.

70 Scottish Parliament Health and Sport Committee. Official Report, 20 May 2009, Col 1966.

71 Scottish Parliament Health and Sport Committee. Official Report, 20 May 2009, Col 1969.

72 Scottish Parliament Health and Sport Committee. Official Report, 27 May 2009, Col 2019.

73 Scottish Parliament Health and Sport Committee. Official Report, 27 May 2009, Col 2021.

74 Scottish Parliament Health and Sport Committee. Official Report, 10 June 2009, Col 2097.

75 Scottish Parliament Health and Sport Committee. Official Report, 10 June 2009, Col 2102.

76 Scottish Parliament Health and Sport Committee. Official Report, 10 June 2009, Col 2103.

77 Scottish Parliament Health and Sport Committee. Official Report, 10 June 2009, Col 2089.

78 Scottish Parliament Health and Sport Committee. Official Report, 10 June 2009, Col 2097.

79 Scottish Parliament Health and Sport Committee. Official Report, 10 June 2009, Col 2103.

80 Scottish Parliament Health and Sport Committee. Official Report, 10 June 2009, Col 2103.

81 Scottish Parliament Health and Sport Committee. Official Report, 20 May 2009, Col 1978-9.

82 Scottish Parliament Health and Sport Committee. Official Report, 20 May 2009, Col 1979.

83 Scottish Parliament Health and Sport Committee. Official Report, 20 May 2009, Col 1979-80.

84 Scottish Parliament Health and Sport Committee. Official Report, 20 May 2009, Col 1987.

85 Scottish Parliament Health and Sport Committee. Official Report, 10 June 2009, Col 2098.

86 Scottish Parliament Health and Sport Committee. Official Report, 10 June 2009, Col 2098.

87 Scottish Parliament Health and Sport Committee. Official Report, 27 May 2009, Col 2027-8.

88 Scottish Parliament Health and Sport Committee. Official Report, 20 May 2009, Col 1983.

89 Scottish Parliament Health and Sport Committee. Official Report, 10 June 2009, Col 2087.

90 Scottish Parliament Health and Sport Committee. Official Report, 20 May 2009, Col 1952-3.

91 Scottish Parliament Health and Sport Committee. Official Report, 20 May 2009, Col 1953.

92 Scottish Parliament Health and Sport Committee. Official Report, 20 May 2009, Col 1988.

93 Scottish Parliament Health and Sport Committee. Official Report, 27 May 2009, Col 2029.

94 Scottish Parliament Health and Sport Committee. Official Report, 27 May 2009, Col 2029.

95 Scottish Parliament Health and Sport Committee. Official Report, 27 May 2009, Col 2029-30.

96 Scottish Parliament Health and Sport Committee. Official Report, 10 June 2009, Col 2083.

97 Scottish Parliament Health and Sport Committee. Official Report, 10 June 2009, Col 2101-2.

98 Scottish Parliament Health and Sport Committee. Official Report, 10 June 2009, Col 2090-1.

99 Scottish Parliament Health and Sport Committee. Official Report, 10 June 2009, Col 2091.

100 Tobacco and Primary Medical Services (Scotland) Bill – Policy Memorandum, SP Bill 22–PM.

101 Scottish Parliament Health and Sport Committee. Official Report, 27 May 2009, Col 2038.

102 BMA Scotland. Written submission to the Health and Sport Committee.

103 NHS Tayside. Written submission to the Health and Sport Committee.

104 BMA Scotland. Written submission to the Health and Sport Committee.

105 CBI. Written submission to the Health and Sport Committee.

106 CBI. Written submission to the Health and Sport Committee.

107 Community Pharmacy Scotland. Written submission to the Health and Sport Committee.

108 Scottish Parliament Health and Sport Committee. Official Report, 10 June 2009, Col 2110.

109 Scottish Parliament Health and Sport Committee. Official Report, 10 June 2009, Col 2117.

110 Scottish Parliament Health and Sport Committee. Official Report, 10 June 2009, Col 2117.

111 Scottish Parliament Health and Sport Committee. Official Report, 10 June 2009, Col 2120.

112 Scottish Parliament Health and Sport Committee. Official Report, 10 June 2009, Col 2111.

113 Scottish Parliament Health and Sport Committee. Official Report, 10 June 2009, Col 2111.

114 Tobacco and Primary Medical Services (Scotland) Bill – Policy Memorandum, SP Bill 22–PM.

115 Scottish Parliament Health and Sport Committee. Official Report, 10 June 2009, Col 2115.

116 Scottish Parliament. (2009) Standing Orders of the Scottish Parliament. Scottish Parliament. Available at www.scottish.parliament.uk/business/parliamentaryProcedure/index.htm [accessed 10 September 2009]

117 Tobacco and Primary Medical Services (Scotland) Bill – Explanatory Notes (and other accompanying documents), SP Bill 22–EN, paragraphs 69 and 77.

118 Tobacco and Primary Medical Services (Scotland) Bill – Explanatory Notes (and other accompanying documents), SP Bill 22–EN, paragraph 71.

119 Tobacco and Primary Medical Services (Scotland) Bill – Explanatory Notes (and other accompanying documents), SP Bill 22–EN, paragraphs 70 and 77.

120 Tobacco and Primary Medical Services (Scotland) Bill – Explanatory Notes (and other accompanying documents), SP Bill 22–EN, paragraph 77.

121 Tobacco and Primary Medical Services (Scotland) Bill – Explanatory Notes (and other accompanying documents), SP Bill 22–EN, paragraph 94.

122 Tobacco and Primary Medical Services (Scotland) Bill – Explanatory Notes (and other accompanying documents), SP Bill 22–EN, paragraph 82.

123 Tobacco and Primary Medical Services (Scotland) Bill – Explanatory Notes (and other accompanying documents), SP Bill 22–EN, paragraphs 79 and 80.

124 Tobacco and Primary Medical Services (Scotland) Bill – Explanatory Notes (and other accompanying documents), SP Bill 22–EN, paragraph 81.

125 Tobacco and Primary Medical Services (Scotland) Bill – Explanatory Notes (and other accompanying documents), SP Bill 22–EN, paragraph 94.

126 Tobacco and Primary Medical Services (Scotland) Bill – Explanatory Notes (and other accompanying documents), SP Bill 22–EN, paragraph 91.

127 Minister for Public Health and Sport. Written submission, 24 April 2009.

128 Tobacco and Primary Medical Services (Scotland) Bill – Explanatory Notes (and other accompanying documents), SP Bill 22–EN, paragraphs 88 and 89.

129 Scottish Parliament Finance Committee, Official Report, 26 May 2009, Col. 1336.

  Volume 2