Controlling tendency

Jim Hume MSP has initiated a public consultation for proposed Scottish legislation which would prohibit smoking in private vehicles when a child under the age of 16 is present. The offence can be committed by either the driver or passengers. The Law Society of Scotland’s Health and Medical Law Subcommittee and the Criminal Law Committee are currently considering these proposals and will make a response by the end of August.

Several jurisdictions already have legislation in place which prohibits smoking in a private vehicle. This article draws upon the issues which have been at the core of many other countries’ discussions and considers these in the light of the current Scottish proposals.

The harmful effects of tobacco and smoking are undisputed. Statistics speak for themselves in relation to deaths caused by smoking and smoking-related disease, including the health of those who breathe in users’ smoke, particularly children.

Parliamentary debates

The Smoking, Health and Social Care (Scotland) Act 2005 introduced the prohibitions regarding smoking in enclosed public places. The debates in the Scottish Parliament, which preceded its passing, primarily focused on the harm to others through secondhand smoke, but also suggested what could be seen as a paternalistic approach, citing a need to protect smokers from themselves. There was little debate about whether criminalising such behaviour was the best approach.

The Act came into effect in Scotland on 26 March 2006. Subsequent evidence has shown that prohibiting smoking in certain public places has been effective in helping individuals to give up smoking and has reduced deaths from heart disease and stroke. There were unexpected but positive results following the introduction of the 2005 Act; compliance was much better than anticipated, with both non-smokers and smokers in favour of the legislation. Perhaps from this we can infer that the Scottish public does agree that passive smoking is an intrusion on another person’s health and wellbeing, and it is this which provides the justification and support for legislation. However, that is not the same as saying that it provides the justification for criminalising smoking in private vehicles. Is this a natural progression from the 2005 Act?

Age of the child and the offender

Arguments are set out in the proposal as to whether the relevant age of the child should be 16 or 18, with the former finding favour. The Society takes the view that a child should be anyone under the age of 18, which would provide another two years of protection in this context. Reasons of health aside, the focus throughout is based on the fact that a child may be too young to understand the dangers of passive smoking, or that it is simply too much and too impractical to expect a child to refuse to travel in a car with a parent who smokes. These concerns are valid, but what of others who are vulnerable or unable to consent or refuse consent to travelling in a car where someone is smoking?

The proposal suggests that the age of the offender should be anyone over the age of 16. Would it not be more logical that the driver bears the responsibility to ensure no person smokes in the vehicle, where a child is present? This would be in line with other legislation which seeks to protect the wellbeing and safety of children travelling in vehicles, such as s 15(1) of the Road Traffic Act 1988, where a driver has the responsibility to ensure that a child under the age of 14 is wearing a seatbelt. A statutory defence could be included to the effect that “the driver took all reasonable steps to ensure that the offence was not committed by any passenger in the vehicle”.

Matters of enforcement

The prohibition is to apply to any vehicle whether it is moving or stationary, and there is no distinction made whether the proposed offence occurs on public or private roads. It applies to convertible cars even when they have their tops down, but excludes motorcycles and sidecars. One can envisage that there will be challenges in enforcing a ban under some of these circumstances, for example when the car is moving, conditions of very heavy traffic, or when more than one person is smoking in the car. In all of these examples, the enforcing officers would need both to see the offence taking place and to ascertain the age of any child or children present. The Police Service of Scotland will be responsible for enforcing the legislation.

The proposals outline a fixed penalty notice of £60, but no penalty points, which does not seem unreasonable given that this is not a road traffic offence. Arguably, the statistics showing risk of harm caused by secondhand smoke justify these measures and it is recognised that it is the existence as opposed to the severity of the fine that encourages compliance. For some, paying a fine of £60 may cause less inconvenience than reading an educational leaflet, attending a smoking cessation support group or using a nicotine patch, but this perspective may be influenced by an individual’s means and resources.

Mr Hume has held out his proposals as being similar in terms of process and sanction to the use of mobile phones whilst driving, or not wearing a seatbelt. Using a mobile phone or wearing a seatbelt relates to safety of the driver and passengers and of other road users. Smoking whilst in a vehicle relates to the risk of the smoker causing harm to other occupants of the vehicle; interestingly, the risk of the driver being distracted due to smoking which then affects their driving is not mentioned. The focus is clearly on the health and wellbeing of others, as opposed to road safety. Despite the existence of constitutional hurdles, would it still not be more appropriate to incorporate such provision into the existing 2005 legislation?

Since the harmful effects of passive smoking are cumulative, would any distinction be drawn between someone who smokes once a month, and someone who smokes every morning whilst taking their 10-year-old to school? Will any provision be made to measure degrees of harm and probability of risk?

And finally…

Does it cross the line from the public to the private realm in relation to state intervention? A perception may be that one’s home, and by extension, one’s car constitutes private areas where the state should not intervene. This is clearly not the case, as other forms of behaviour occurring in the home and vehicle are criminalised, for example domestic abuse, and the use of mobile phones whilst driving. Views on this will greatly depend on public opinion. The most effective laws capture rather than squeeze public opinion, and the levels of support for the 2005 provisions were high. It can be inferred that this support will undoubtedly have influenced the current proposals, but considerations relating to justice and smoking are not straightforward and it remains to be seen whether there is public readiness to embrace this next step.