The next item of business is a vote on SB112 the Health (Public Smoking Ban) (Scotland) Bill at stage 3.

Members are reminded to vote For, Against, or Abstain. Attempts to 'stylise' votes by adding extra words will result in a member's vote being considered a DNV. In cases were there is a genuine mix up with another system (eg. Aye/No/Abstain) the vote will be taken as a clear expression of preference.

The question is: that the Parliament agrees that the Health (Public Smoking Ban) (Scotland) Bill be passed.

Health (Public Smoking Ban) (Scotland) Bill

An Act of the Scottish Parliament to abolish the smoking and consumption of tobacco in public as well as vaping and for amending the Tobacco and Primary Medical Services (Scotland) Act 2010.

1 Abolition

(1) A person commits an offence if the person smokes or consumes a tobacco product, nicotine vapour product or recreational drug product meant to be smoked in a public place, whether inclosed or not.

(2) A person who commits an offence under subsection (1) above is liable on summary conviction to a fine not exceeding level 1 on the standard scale.

(3) A person commits an offence if the person smokes or consumes a tobacco product, nicotine vapour product or recreational drug product meant to be smoked in a public place, whether inclosed or not, in a larger crowd and without consideration for the health and well-being of others.

(4) A person who commits an offence under subsection (3) above is liable on summary conviction to a fine not exceeding level 2 on the standard scale.

2 Fixed penalty notice

(1) A constable who has reason to believe a person has committed an offence under section 1(1) or section 1(3) may give that person a penalty notice in respect of the offence.

(2) In this section “penalty notice” means a notice offering the opportunity, by paying a penalty in accordance with this section, to discharge any liability to be convicted of the offence to which the notice relates.

(3) The penalty payable in respect of a penalty offence—

• (a) relating to section 1(1) is £75, and
• (b) relating to section 1(3) is £150.

(4) The Scottish Ministers may by regulations amend subsection (3) by substituting for the penalty payable a different amount that is no lower than a quarter and no higher than three quarters of the amount of the maximum fine for which a person is liable on summary conviction of the offence.

(5) Regulations under subsection (4) are subject to the negative procedure.

(6) The standard rules and procedures for a fixed penalty notice apply to the penalty notice in this section.

3 Amendments to the 2010 Act

(1) The 2010 Act is amended as follows.

(2) After section 35 insert—

“**35A Meaning of “nicotine vapour product”

(1) In this Act “nicotine vapour product” is—

• (a) a device which is intended to enable the inhalation of nicotine-containing vapour by an individual,
• (b) a device which is intended to enable the inhalation of other vapour by an individual but is intended to resemble and be operated in a similar way to a device within paragraph (a),
• (c) an item which is intended to form part of a device within paragraph (a) or (b),
• (d) a substance which is intended to be vaporised by a device within paragraph (a) or (b) (and any item containing such a substance).

(2) But the following are not nicotine vapour products—

• (a) a tobacco product,
• (b) a smoking related product,
• (c) a medicinal product,
• (d) a medical device.

(3) After section 4 insert—

“4A Sale of nicotine vapour products to persons under 18

(1) A person who sells a nicotine vapour product to a person under the age of 18 commits an offence.

(2) It is a defence to a charge in proceedings against a person (“the accused”) under subsection (1) that—

• (a) the accused believed the person under the age of 18 (“the customer”) to be aged 18 or over, and
• (b) the accused had taken reasonable steps to establish the customer's age.

(3) For the purposes of subsection (2)(b), the accused is to be treated as having taken reasonable steps to establish the customer's age if and only if—

• (a) the accused was shown any of the documents mentioned in subsection (4), and
• (b) that document would have convinced a reasonable person as to the customer's age.

(4) The documents referred to in subsection (3)(a) are any document bearing to be—

• (a) a passport,
• (b) a European Union photocard driving licence, or
• (c) such other document, or a document of such description, as may be prescribed.

(5) A person guilty of an offence under subsection (1) is liable on summary conviction to a fine not exceeding level 4 on the standard scale.”.

(4) The italic heading immediately preceding section 4 becomes “ Sale and purchase of tobacco and nicotine vapour products ”.

(5) After section 4A (inserted by subsection (3) insert—

“4B Age verification policy

(1) A person commits an offence if the person—

• (a) carries on a tobacco or nicotine vapour product business, and
• (b) fails to operate an age verification policy in respect of premises at which the person carries on the tobacco or nicotine vapour product business.

(2) Subsection (1) does not apply to premises (“the business premises”) from which—

• (a) tobacco products, cigarette papers or nicotine vapour products are, in pursuance of a sale, despatched for delivery to different premises, and
• (b) no other tobacco or nicotine vapour product business is carried on from the business premises.

(3) An “age verification policy” is a policy that steps are to be taken to establish the age of a person attempting to buy a tobacco product, cigarette papers or a nicotine vapour product on the premises (the “customer”) if it appears to the person selling the tobacco product, cigarette papers or nicotine vapour product that the customer may be under the age of 25 (or such older age as may be specified in the policy).

(4) The Scottish Ministers may by regulations amend the age specified in subsection (3).

(5) The Scottish Ministers may publish guidance on matters relating to age verification policies, including, in particular, guidance about—

• (a) steps that should be taken to establish a customer's age,
• (b) documents that may be shown to the person selling a tobacco product, cigarette papers or a nicotine vapour product as evidence of a customer's age,
• (c) training that should be undertaken by the person selling the tobacco product, cigarette papers or nicotine vapour product,
• (d) the form and content of notices that should be displayed in the premises,
• (e) the form and content of records that should be maintained in relation to an age verification policy.

(6) A person who carries on a tobacco or nicotine vapour product business must have regard to guidance published under subsection (5) when operating an age verification policy.

(7) A person guilty of an offence under subsection (1) is liable on summary conviction to a fine not exceeding level 2 on the standard scale.”.

(6) After section 4B insert—

“4C Sale of tobacco or nicotine vapour products by persons under 18

(1) A responsible person who allows a tobacco product, cigarette papers or a nicotine vapour product to be sold by a person under the age of 18 commits an offence.

(2) For the purposes of subsection (1), “responsible person” means—

• (a) where the sale is at premises which are noted in a registered person's entry in the Register, the registered person for those premises,
• (b) where the sale is at premises which are not noted in a registered person's entry in the Register—
  • (i)any employer of the person who made the sale, and
  • (ii)any other person having management or control of those premises.

(3) Subsection (1) does not apply to a sale which—

• (a) is made at premises which are noted in a registered person's entry in the Register, and
• (b) is authorised by the registered person for those premises.

(4) Each authorisation mentioned in subsection (3)(b) must be recorded and kept at the premises at which a sale by a person under the age of 18 is made.

(5) The Scottish Ministers may prescribe—

• (a) the form and content of authorisations made under subsection (3)(b),
• (b) the method of recording authorisations for the purposes of subsection (4).

(6) An authorisation is, for the purposes of subsection (3)(b), deemed not to have been made, if—

• (a) it is not recorded and kept in accordance with subsection (4), or
• (b) it is not made in accordance with any provision made under subsection (5).

(7) A person guilty of an offence under subsection (1) is liable on summary conviction to a fine not exceeding level 1 on the standard scale.”.

(7) After section 4C (inserted by subsection (6) insert—

“4D Defence of due diligence for certain offences

(1) It is a defence for a person charged with an offence to which this section applies to prove that the person (or any employee or agent of the person) took all reasonable precautions and exercised all due diligence to prevent the offence being committed.

(2) This section applies to an offence under any of the following provisions of this Act—

• (a) section 4(1),
• (b) section 4A(1),
• (c) section 4C(1).”.

(8) After section 6 insert—

“6A Purchase of nicotine vapour products on behalf of persons under 18

(1) A person aged 18 or over who knowingly buys or attempts to buy a nicotine vapour product on behalf of a person under the age of 18 commits an offence.

(2) A person guilty of an offence under subsection (1) is liable on summary conviction to a fine not exceeding level 5 on the standard scale.”.

(9) In section 35(1) (interpretation)—

• (a) after the definition of “fixed penalty notice” insert—

““nicotine vapour product business” means a business involving the sale of nicotine vapour products by retail,”, and

• (b) after the definition of “tobacco business” insert—

““tobacco or nicotine vapour product business” means a business which involves (either or both) a tobacco business or a nicotine vapour product business,”.

(10) After section 14 insert—

“14A Registry to include nicotine vapour product businesses

(1) The Registry in this chapter must also include nicotine vapour product businesses.

(2) Certificates must state whether the premises are noted in the applicant's entry in the Register as premises at which the person carries on—

• (a) a tobacco business,
• (b) a nicotine vapour product business, or
• (c) both a tobacco business and a nicotine vapour product business.”

(11) After section 19 insert—

“19A Tobacco retailing banning orders to include nicotine vapour products

The banning orders in this chapter can also apply to nicotine vapour products.”

(12) In section 20 (offences relating to the Register)—

• (a) in subsection (1), after “tobacco” insert “ or nicotine vapour product ”,
• (b) in subsection (2), after “Register” insert “ as premises at which the person carries on a tobacco business (or both a tobacco business and a nicotine vapour product business) ”,
• (c) after subsection (2) insert—

“(2A) A registered person who carries on a nicotine vapour product business at premises other than those noted in the person's entry in the Register as premises at which the person carries on a nicotine vapour product business (or both a tobacco business and a nicotine vapour product business) commits an offence.”,

• (d) in subsection (4), for “retailing” substitute “ and nicotine vapour product ”, and
• (e) in subsection (6)(a), after “(2)” insert “ , (2A)”.

(13) In section 21(1) (public inspection of the Register), for “at which tobacco businesses are carried on or proposed to be carried on” substitute “, specifying for each of those premises whether there is carried on, or there is proposed to be carried on—

• (a) a tobacco business,
• (b) a nicotine vapour product business, or
• (c) both a tobacco business and a nicotine vapour product business”.

(14) In section 33(1) (presumption as to contents of container), for “5 or 6” substitute “ 4A, 4B, 4C, 5, 6, 6A or 9 ”.

4 Interpretation

In this Act—

“nicotine vapour product” has the same meaning as in the 2010 Act,

“recreational drug” means any drug covered by the Drug Reform Act 2015,

“the 2010 Act” means the Tobacco and Primary Medical Services (Scotland) Act 2010,

“tobacco product” means a product consisting wholly or partly of tobacco and intended to be smoked, sniffed, sucked or chewed.

5 Commencement

This Act comes into force on the expiry of the period of 30 days beginning with the day after Royal Assent.

6 Short title

The short title of this Act is the Health (Public Smoking Ban) (Scotland) Act 2020.

This Bill was written by The Rt Hon. Sir troe2339 OM GCVO KCT PC MSP FRS. It was submitted by the Labour Party and co-sponsored by His Grace the Duke of Cumbria (/u/Duncs11) GCB KT KCB PC QC MP MSP (Angus, Perth, and Stirling) FRS, First Minister of Scotland.

This vote will close at the end of business on the 3rd August.