A Consultation on Electronic Cigarettes and Strengthening Tobacco Control in Scotland: Analysis of Responses

3 Tobacco Control

3.1 The second section of the consultation paper looked at tobacco control and posed questions relating to smoking in cars carrying children under 18, smoke-free NHS grounds and smoke-free children and family outdoor areas.

Smoking in cars carrying children under 18

3.2 The Scottish Government proposes that it would be an offence for anyone aged 18 and over to smoke in a car while carrying a child or young person who is under the age of 18. The consultation paper notes that Police Scotland may be best placed to enforce this legislation as they do with the law on travelling in a car without a seatbelt and driving whilst using a mobile phone. However, the paper also asked whether there would be more suitable enforcement arrangements. It suggested that the offence would result in a fixed penalty notice of £100 or would be referred to court.

3.3 The consultation paper also notes that the Scottish Government is minded to propose that vehicles that are also people's homes, such as caravans and motorhomes, would be exempt from the smoking ban.

Question 21: Do you agree that it should be an offence for an adult to smoke in a vehicle carrying someone under the age of 18?

3.4 A total of 144 respondents answered this question and a breakdown of responses by respondent type is set out in Table 14.

Table 14: Question 21 - Response by Respondent Type

Respondent Type	Yes	No	N/A	Total
Academic Group	3	-	1	4
E-cigarette Industry or Tobacco Industry	1	5	5	11
General Retail or Pharmacy	1	-	8	9
Health Body or Partnership	19	-	-	19
Local Authority	16	-	-	16
Other Public Body	2	-	2	4
Third Sector or Professional Body	23	-	2	25
Other	2	2	2	6
Groups (Total)	(67)	(7)	(20)	(94)
Individual	47	23	8	78
TOTAL	114	30	28	172
Percentage	66%	17%	16%	100%
Percentage of those responding	79%	21%	-	100%

3.5 The majority of respondents (79% of those answering this question) agreed that it should be an offence to smoke in a vehicle carrying someone under the age of 18. The 30 respondents who disagreed came from only 3 respondent groups (23 individuals, 5 tobacco industry respondents and 2 'other' group respondents). Of the tobacco industry respondents who answered this question, 3 tobacco companies, a tobacco manufacturers' association and a distributors' association all disagreed with the proposal. The one e-cigarette industry respondent who answered this question agreed with the proposal.

3.6 Although the consultation paper did not ask for comment at Question 21, 20 respondents did provide comments. Fifteen of these had agreed with the proposal, 4 had disagreed and one respondent had not answered Question 21. Comments varied considerably in length and focus.

3.7 Those supporting the proposal sometimes pointed to evidence that smoking in cars causes harm both to the smoker and to others in the vehicle, and that children are particularly vulnerable to the harmful health effects of second-hand smoke. Research which investigated the association between exposure to smoking in cars and early stage smoking activity in pre-adolescent children was also highlighted.

3.8 Other comments made by those who supported the policy included:

• There is strong public support for such a measure.
• Evidence from other countries which have introduced comparable legislation (such as certain states and provinces of Australia and Canada) suggests that compliance levels are relatively high.
• The measure should go further and simply ban smoking in vehicles.
• The action of smoking whilst driving also has road safety implications.
• That the proposal was assumed to apply to tobacco smoking and not vaping.

3.9 A contrasting set of views, put forward by those who opposed the proposal, included that legislation is not necessary to address the issues identified in the consultation and that the more appropriate approach would focus on education, with the Scottish Government's Take it Right Outside campaign noted as an example of ongoing educational and awareness raising activity.

3.10 It was also suggested that the magnitude of the issue of smoking in cars is substantially overstated with recent studies in other parts of the UK showing that the incidence of smoking in cars with children present is small and diminishing. This trend was seen as supporting the view that education is the appropriate means of dealing with this issue.

3.11 Finally, one public body respondent suggested that consideration be given to the consequences of criminalising smoking in cars with children under the age of 18 and in particular whether this offence would prompt further action against the offender in terms of the Children & Young Persons (Scotland) Act 1937 or other similar legislation. It was noted that any action taken by the police could have broader implications for the parent or guardian of a person under 18 than perhaps envisioned by the consultation.

Question 22: Do you agree that the offence should only apply to adults aged 18 and over?

3.12 The Scottish Government proposal in the consultation paper is that the offence would only apply to people aged over 18 who were in the car, and invited views on this. A total of 122 respondents answered this question and a breakdown of responses is set out in Table 15.

Table 15: Question 22 - Response by Respondent Type

Respondent Type	Yes	No	N/A	Total
Academic Group	2	1	1	4
E-cigarette Industry or Tobacco Industry	1	3	7	11
General Retail or Pharmacy	-	1	8	9
Health Body or Partnership	8	10	1	19
Local Authority	6	10	-	16
Other Public Body	1	1	2	4
Third Sector or Professional Body	7	12	6	25
Other	1	2	3	6
Groups (Total)	(26)	(40)	(28)	(94)
Individual	20	36	22	78
TOTAL	46	76	50	172
Percentage	27%	44%	29%	100%
Percentage of those responding	38%	62%	-	100%

3.13 The majority of respondents (62% of those answering this question) did not agree that the offence should apply only to adults aged 18 and over. The overall balance of opinion was broadly reflected across respondent categories (with the exception of academic groups). Within the groups that were divided on this issue, including the health body or partnership, local authority and third sector or professional body groups, there was no clear pattern in terms of subtypes of respondents being more likely to agree or disagree. For example, of the 6 health board respondents, 3 agreed and 3 disagreed.

Question 23: If you answered 'no' to Question 22, to whom should the offence apply?

3.14 Ninety one respondents answeredat this question, including 9 who had agreed at Question 22. Three of these made general comments in support of the proposal and did not suggest any alternative.

3.15 Of those who had answered 'no' or had not answered Question 22, 2 respondents reported that they had no clear, agreed position on this issue and 12 respondents (7 individuals, 4 tobacco industry and one other group respondent), stated that it should not be an offence to smoke in a vehicle carrying a child. Another 6 respondents (5 individuals and one local authority) made a comment which did not set out an alternate position.

3.16 A breakdown of the views expressed by the 62 respondents who did state an alternate position to that proposed is set out in Table 16.

Table 16: Question 23 - Suggested alternatives by Number of Respondents

Suggested Alternative	Number of Respondents
All/'Anyone'	14
All, age specified (other than 18)	5
All smokers	29
Smokers (with conditions or additions)	6
Driver of the vehicle	8

3.17 The alternative position being stated was not always clear, particularly when comments referred to 'All' or 'Anyone'. In particular, some of the 14 respondents in the 'All' group did not specify whether they were referring to all adults in the vehicle (and if so the age that should apply in defining 'adults'), or to all those smoking. Two respondents referred to all occupants of the vehicle and three respondents to all (criminally) responsible occupants of the vehicle.

3.18 Of the 5 respondents who stated an alternative age, but otherwise did not specify whether they were referring to smokers only or all occupants of the vehicle, one local authority respondent suggested that (in line with seat belt legislation) anyone aged 14 or over should be committing an offence. Three individuals suggested anyone aged 16 or over and one individual respondent suggested anyone aged 17 or over should be committing an offence.

3.19 Twenty nine respondents (including 6 health bodies or partnerships, 6 third sector or professional bodies and 5 local authorities) took the view that anyone smoking in a vehicle in which there was a child should be committing an offence, although third sector stakeholders went on to note that they would be reluctant to criminalise anyone under 18 for this offence alone. Suggestions included that, before an offender under the age of 18 is referred to court or prosecuted, due consideration should be given as to whether this is in the public interest. A suggested alternative was a fixed penalty on the spot fine and licence points for the driver.

3.20 Other points raised by those who considered that any smoker should be committing an offence were that:

• It should be an offence for under 18s to smoke, whether in a vehicle or not.
• The risk of harm to a person under 18 is the same regardless of the age of the smoker.
• The offence should apply to both tobacco and e-cigarettes or, in contrast, should not apply to e-cigarettes.
• 17 year olds should not be committing an offence if smoking but alone in a vehicle.

3.21 A further 6 respondents focused their comments on those smoking but suggested that others should also be committing an offence. Suggestions included that the offence should apply to any smoker and to the driver; to any parent who is present when someone is smoking in a vehicle carrying their child; or that, if the driver of the vehicle is under 18 and carrying passengers under the age of 18, then the offence should apply to the driver. Three respondents suggested that only smokers aged 16 or over should be committing an offence. More specifically, it was suggested that the possibility of fining children could undermine the currently high levels of public support for this measure.^[15]

3.22 Nine respondents^[16] (including 3 third sector and 2 health body respondents), suggested that the driver of the vehicle should be held responsible, with many of these respondents noting that there should be no age-related exemption. Reasons given for holding the driver responsible included that a driver of any age should know the laws pertaining to the vehicle they drive as well as the laws of the road, and that this would be in line with other legislation which seeks to protect the wellbeing and safety of children travelling in vehicles.

3.23 One of the respondents who suggested the driver should be held responsible was amongst those who commented on the need for clarity, particularly regarding the age at which someone is considered to be a child. Points raised included that:

• Creating a disparity between the legal age for driving at 17 and this smoking-related offence could create a loophole.
• Given that 17 year olds are permitted to drive, it may be appropriate for an offence only to be committed if there is someone aged 16 or under in the vehicle.
• There are already age restrictions on the use of tobacco products so anyone under 18 smoking is already committing an offence^[17].

Question 24: Do you agree that Police Scotland should enforce this measure?

3.24 The Scottish Government suggested in the consultation document that Police Scotland may be best placed to enforce a ban on smoking in cars when children are present. A total of 131 respondents answered this question and a breakdown by respondent type is set out in Table 17 below.

3.25 The majority of respondents (79% of those answering this question), agreed that Police Scotland should enforce this measure. Most of those who disagreed were individual respondents.

Table 17: Question 24 - Response by Respondent Type

Respondent Type	Yes	No	N/A	Total
Academic Group	3	-	1	4
E-cigarette Industry or Tobacco Industry	1	1	9	11
General Retail or Pharmacy	1	-	8	9
Health Body or Partnership	19	-	-	19
Local Authority	16	-	-	16
Other Public Body	1	-	3	4
Third Sector or Professional Body	17	1	7	25
Other	2	2	2	6
Groups (Total)	(60)	(4)	(30)	(94)
Individual	44	23	11	78
TOTAL	104	27	41	172
Percentage	60%	16%	24%	100%
Percentage of those responding	79%	21%	-	100%

Question 25: If you answered 'no' to Question 24, who should be responsible for enforcing this measure?

3.26 A total of 45 respondents answered or the previous question: 24 of them had answered 'no' at Question 24; 16 had answered 'yes' and 5 had not answered the question.

3.27 The majority of those who did not agree that Police Scotland should enforce this measure stated that they did not believe the measure should be introduced at all.

3.28 However, an alternative to Police Scotland as the enforcement authority which was suggested^[18] was the involvement of local government, or more specifically Environmental Health Services. It was noted that Environmental Health Officers have enforced the ban on smoking in enclosed public spaces and suggested that they could work collaboratively with Police Scotland to enforce any new measures. The 7 respondents advocating a joint approach (4 third sector or professional bodies, one other public body, one health body and one 'other' group respondent) included a small number of respondents who had answered 'yes' at Question 24. In their own response, Police Scotland suggested that careful consideration needs to be given to other options, including extending the role of authorised officers of local authorities. The only other suggestion made was that Procurators Fiscal should be responsible for enforcing this measure.

3.29 However a small number (including respondents who had answered 'yes', 'no' or had not answered Question 24) expressed concerns that the measure would either be difficult to enforce or unenforceable, with the specific suggestion that the ban on smoking in workplace vehicles does not appear to be enforced. It was also noted that the enforcement of public health legislation is not a recognised role of the Police service in Scotland and that enforcing such a prohibition could be challenging and have resource implications for the Police.

3.30 Comments from respondents who had answered 'yes' at Question 24 or had not answered that question included:

• The effective enforcement of seat belt and mobile phone legislation by local police suggests this approach can work. Further, Police Scotland would be the organisation with the appropriate resources to enforce this measure. Third sector or professional body respondents were most likely to make this point.
• This approach would be in line with many areas with similar laws. For example, all jurisdictions in Australia and the majority of those in Canada and the USA which have such a law charge police with its enforcement.
• The introduction of any such measure should be accompanied by a public awareness raising campaign. Local authorities would have a role to play in promoting compliance with any new regulations.
• Adults charged with the offence could be referred for the equivalent of a safe driving course, with the course focusing on the health dangers to children of second hand smoking.
• Awareness of both the offence and the health issues relating to second hand smoke in vehicles will be crucial to the enforcement of any legislation. They also noted that robust enforcement will be required for the legislation to be effective.

Question 26: Do you agree that there should be an exemption for vehicles which are also people's homes?

3.31 A total of 120 respondents answered this question and a breakdown by respondent type is set out in Table 18 below.

3.32 Respondents were relatively evenly divided at this question, with 56% of those answering this question agreeing that there should be an exemption for vehicles which are also people's homes and 44% disagreeing. Health bodies were the only type of respondent that were more likely to disagree than agree, but within this group there were no particular patterns in terms of the subtype of respondent who agreed or disagreed. For example, 2 health boards and 2 health board pharmaceutical committees agreed and 4 health boards disagreed.

Table 18: Question 26 - Response by Respondent Type

Respondent Type	Yes	No	N/A	Total
Academic Group	3	-	1	4
E-cigarette Industry or Tobacco Industry	1	1	9	11
General Retail or Pharmacy	-	-	9	9
Health Body or Partnership	6	12	1	19
Local Authority	9	7	-	16
Other Public Body	2	-	2	4
Third Sector or Professional Body	11	6	8	25
Other	3	-	3	6
Groups (Total)	(35)	(26)	(33)	(94)
Individual	32	27	19	78
TOTAL	67	53	52	172
Percentage	39%	31%	30%	100%
Percentage of those responding	56%	44%	-	100%

Question 27: If you think there are other categories of vehicle which should be exempted, please specify these?

3.33 Fifty nine respondents made a comment at this question: 30 of these had answered 'yes' at Question 26; 21 had answered 'no' and 8 had not answered the question.

3.34 Of those 59 respondents, 19 suggested there should be no other exemptions (7 health bodies, 6 individuals, 4 third sector stakeholders, one e-cigarette industry respondent and one local authority).

3.35 A further 12 respondents noted that there should be no exemptions when a vehicle is being used on the public highway (5 third sector stakeholders, 3 health bodies, 2 academic groups, one other group and one individual respondent). However, some of these were amongst the 12 respondents suggesting that if a vehicle that has a dual use (as a vehicle and a permanent or temporary home) is static and is being used as a home, then smoking should be permitted. Other comments highlighted that to not allow smoking when the vehicle is static and being used as a home would result in those living in vehicles, such as the traveller community, being treated differently.

3.36 Further points raised included that it will be important for any legislation to be clear and unambiguous. For example, the legislation should refer to 'private vehicles' rather than 'cars' and definitions from the Road Traffic Act should be used to describe which areas would be covered - for example to include public car parks, verges and lay-bys. It was also noted that the regulations should apply to enclosed vehicles on the road and that this should mean enclosed wholly or partly by a roof and by any door or window that may be opened.

3.37 The following other categories of vehicle were suggested for exemption:

• Vehicles that are not enclosed, including motorbikes or convertible cars with the roof completely down. It was noted that this approach would be in line with the proposals in England and Wales.
• Some partly enclosed vehicles, such as a convertible vehicle where the roof might be down or removed but where there is a structure in place which acts as a windshield and/or roll over protection.
• Mobile homes or caravans which are someone's home (as opposed, for example, to vehicles being used for business or recreational purposes).
• Company work vehicles and more specifically, lorry cabs when being used as a temporary residence^[19]. However, one respondent explicitly stated that there should not be an exemption for sleeper cabs in commercial vehicles to ensure that any children travelling are protected.

Question 28: If you believe that a defence should be permitted, what would a reasonable defence be?

3.38 A total of 52 respondents made a comment at this question: 26 of these had answered 'yes' at Question 26; 18 had answered 'no' and 8 had not answered the question.

3.39 Again, a small number of respondents took the opportunity to re-state their disagreement with the proposal that it should be an offence to smoke in a vehicle carrying someone aged under 18. In contrast, 17 respondents (7 individuals, 6 health bodies, 2 local authorities and 2 third sector or professional bodies) were of the view that there should be no defence permitted if an adult smokes in a vehicle carrying someone under the age of 18.

3.40 One respondent suggested that any fair and reasonable defence should be permitted, with 2 respondents suggesting that the difficulty in finding evidence for direct harm being caused by exposure to tobacco smoke in a car could be offered as a defence. One respondent suggested that the same defences as apply in relation to smoking and licensing legislation could be considered.

3.41 The following more specific circumstances were also suggested as offering a possible defence:

• Not being aware of the law because of having recently arrived from abroad for example.
• Not knowing that there were minors in the vehicle.
• That the smoker did not know, and could not have reasonably established, that a passenger in the vehicle was under the age of 18 years.
• If the driver, by reason of driving the vehicle, was unable to prevent another person from smoking in the car and had made all reasonable efforts to prevent the offence. Picking up on the potential for a driver to make a defence that their main responsibility is to drive safely rather than monitor their passengers' behaviour, a small number of respondents noted their preference for the smoker being the person committing the offence.

Smoke-free (tobacco) NHS grounds

3.42 As the consultation paper notes, since 2005, guidance has been issued to NHS Scotland and local authorities which encourages them to demonstrate leadership by implementing smoking policies that go beyond the requirements of existing smoke-free legislation. Detailed guidance issued by the National Institute for Health Care and Excellence (NICE), which covers England and Wales, also recommends that health care authorities develop policies for smoke-free grounds.^[20] The Scottish Government's Tobacco Control Strategy, Creating a Tobacco-free Generation, included an action for NHS Boards to enforce smoke-free policies in hospital grounds by April 2015. The consultation paper highlighted that this policy has wide support and all Boards have policies in place.

3.43 The consultation paper also notes that the Scottish Government remains open-minded about the need to introduce legislation which would make it an offence to smoke in the grounds of NHS facilities and an alternative option for further voluntary measures. Six questions invited views on this issue.

Question 29: Should national legislation be introduced to make it an offence to smoke or allow smoking on NHS grounds?

3.44 A total of 141 respondents answered this question and a breakdown of responses by respondent type is set out in Table 19 below.

3.45 The majority of those answering the question (67%) thought that there should be national legislation to make it an offence to smoke or allow smoking in NHS grounds. A large majority of group respondents were of this view (79% of those answering), including a very substantial majority of health body and local authority respondents. The 4 respondents in the e-cigarette industry or tobacco industry group who did not favour legislation were 3 tobacco companies and a tobacco distributors' association. Individual respondents were relatively evenly divided on this issue with 55% favouring the introduction of legislation.

Table 19: Question 29 - Response by Respondent Type

Respondent Type	Yes	No	N/A	Total
Academic Group	1	2	1	4
E-cigarette Industry or Tobacco Industry	-	4	7	11
General Retail or Pharmacy	2	1	6	9
Health Body or Partnership	17	1	1	19
Local Authority	11	3	2	16
Other Public Body	1	-	3	4
Third Sector or Professional Body	20	1	4	25
Other	1	2	3	6
Groups (Total)	(53)	(14)	(27)	(94)
Individual	41	33	4	78
TOTAL	94	47	31	172
Percentage	55%	27%	18%	100%
Percentage of those responding	67%	33%	-	100%

Question 30: If you support national legislation to make it an offence to smoke on NHS grounds, where should this apply:

a. All NHS grounds (including NHS offices, dentists, GP practices);

b. Only hospital grounds;

c. Only within a designated perimeter around NHS buildings; or

d. Other suggestions?

3.46 Question 30 asked those respondents who supported the introduction of legislation to comment on where this legislation should apply. Four options were presented; no guidance was given as to whether these were intended to be mutually exclusive answers (and hence only one option should be selected) or whether more than one option could be selected. Respondents took both approaches. Analysis of comments made at option d also suggests that some respondents were commenting on their choice of a, b, or c rather than suggesting an alternative option.

3.47 A total of 111 respondents answered this question and a breakdown of responses by respondent type is set out in Table 20 below. If a respondent selected a, b or c^[21] and also made a comment at d, their initial selection has been included and their further comment at d covered only within the qualitative analysis.

3.48 The majority of respondents (71%) were of the view that legislation should apply to all NHS grounds (including NHS offices, dentists, GP practices). Those favouring this approach included 15 out of the 18 health body respondents who answered this question. Of the 6 NHS boards which responded, 5 favoured this approach.

3.49 Only two respondents supported the 'Only hospital grounds' approach. Of the 11 respondents who supported the offence only applying to a designated perimeter around NHS buildings, 4 were individuals and 4 were third sector or professional bodies.

Table 20: Question 30 - Response by Respondent Type

Respondent Type	a	b	c	d	N/A	Base
Academic Group	1	-	-	1	2	4
E-cigarette Industry or Tobacco Industry	-	-	-	3	8	11
General Retail or Pharmacy	2	-	-	1	6	9
Health Body or Partnership	15	1	1	1	1	19
Local Authority	10	-	1	3	2	16
Other Public Body	1	-	-	1	2	4
Third Sector or Professional Body	13	1	4	1	6	25
Other	1	-	1	1	3	6
Groups (Total)	(43)	(2)	(7)	(12)	(30)	(94)
Individual	36	-	4	7	31	78
TOTAL	79	2	11	19	61	172
Percentage	46%	1%	6%	11%	35%	100%
Percentage of those responding	71%	2%	10%	17%	-	100%

3.50 Although 20 respondents 'selected' d, only 4 of these respondents (3 third sector stakeholders and one individual) had supported the introduction of legislation. Comments from those did not support legislation or had not expressed a view tended to either state their opposition or focus on why legislation is not appropriate. Comments included:

• Actions to achieve this outcome are currently being progressed by health boards and local authorities as part of the existing national smoke-free strategy and further time is needed to identify effective local approaches. This was raised by COSLA.
• This issue should be left to the NHS to decide. This was suggested by a local authority and an e-cigarette company respondent.
• The needs of disabled people, those detained against their will or anyone else who would have difficulty getting to an area in which they would be able to smoke have not been considered. This includes time-pressured staff and volunteers. This was raised by an academic group respondent and a small number of individuals.
• Where bans currently exist they are often poorly enforced, but when they are enforced result in vulnerable patients standing just outside hospital grounds, often in areas where they are not safe. This also affects staff working unsociable hours. An individual respondent highlighted this issue.
• It could or will be difficult to 'police' this type of offence on what can be very extensive NHS grounds. This was raised by an NHS Pharmaceutical Committee and a public health charity respondent, as well as by 2 NHS Board respondents who supported legislation applying to all NHS grounds (i.e. option a).
• A ban could place a legal onus on NHS staff to report patients, colleagues or visitors for smoking and this may conflict with their healthcare relationship with patients and/or staff members. An NHS Pharmaceutical Committee respondent raised this concern.
• The majority of dental surgeries, GP practices and community pharmacies are privately owned premises operated by independent contractors to the NHS. This was noted by a local authority and a pharmacy representative.
• There should be designated smoking areas for those who choose to smoke but are unable to leave NHS grounds. This suggestion was made by a tobacco company respondent.
• Guidance and local measures to advise smokers to smoke away from hospital entrances would be a preferred option. This suggestion was made by an academic group.

3.51 As noted above, the majority of those who did support national legislation thought that it should apply to all NHS grounds (including offices, dentists and GP practices). Twenty eight of these respondents (including 8 health bodies or partnerships and 5 local authorities) went on to make a comment. A small number (including an NHS Board, professional body, third sector and a local authority respondent) focused on the need for a clear and consistent message and approach which reflects the current direction of travel on these issues. In particular, it was noted that smoke-free NHS grounds has been policy since 2006. It was also suggested that smoke-free NHS grounds would be integral to achieving the Scottish Government's aspiration of a smoke-free generation by 2034.

3.52 A number of these respondents also acknowledged the challenges associated with ensuring compliance with any legislation. Three health bodies (including an NHS Board and a CHCP) referred to the challenges already experienced when implementing smoking free grounds in their area. One referenced local research with patients and visitors which found that two-thirds of all smokers asked stated that they had smoked on NHS grounds or in NHS buildings in the last year. They suggested that local arrangements with no enforcement powers have had no impact on the numbers smoking on NHS grounds. Two respondents referred to work done to improve compliance (particularly at main entrances) within the NHS Greater Glasgow and Clyde area.

3.53 Other points raised about enforcement included that consideration will need to be given to the legal position of the ground 'owner' and whether, for example, hospitals would be fined if smokers were found on their premises. This issue was raised by 2 health bodies, one of which was an NHS Board.

3.54 Some comments focused on the possibility of a transition period for the introduction of a ban. One suggestion (made by a third sector respondent), was to start with the introduction of a designated perimeter around NHS buildings (option c), before a gradual roll-out of totally smoke-free grounds could be considered. Another suggestion (by a health body) was that in the interim period before any law is introduced, stop smoking counselling should be made available to all NHS staff who would like to quit smoking.

3.55 Other suggestions made by respondents supporting option a included:

• There should be designated smoking shelters in hospital grounds for staff out of uniform, patients and visitors. The individual suggesting had personal experience as a medical director of a cancer centre in Scotland and highlighted the practical difficulties that would arise from trying to enforce such a ban without making any provision for those who smoke. A third sector respondent also suggested the establishment of designated smoking and (separate) e-cigarette use areas; they proposed these should be outwith entrances to buildings, and subject to CCTV surveillance.
• It would be helpful to also include buildings that the NHS leases, particularly in city centre locations. This suggestion was made by a health body respondent who noted that staff can frequently be seen smoking outside NHS occupied but not necessarily owned buildings and that including a smoke-free perimeter around these may be helpful in establishing parity between different properties across the NHS Scotland estate.
• Thought should be given to extending any ban to the grounds of other bodies or organisations which deliver public services. For example, a health body respondent suggested that the same rules should apply to any premises used for the management or the delivery of Social Care services falling within the remit of Integrated Health and Social Care Boards. Other suggestions included all local authority buildings, schools, nurseries, and nursing homes.

3.56 Both of the respondents who preferred option b went on to comment. The third sector respondent made a strong statement in support of legislation for hospital grounds. The health body respondent was concerned that there could be confusion and ambiguity if the legislation were to apply to areas where there is no clear delineation of grounds. They noted that where the NHS and other agencies share grounds and premises, or where other health professionals (such as dental practices) are being sub-contracted to deliver services on behalf of the NHS, there could be confusion and ambiguity. They were concerned that ambiguity would lead to a greater likelihood of non-compliance with any legislation.

3.57 Five of the respondents who preferred option c went on to comment (3 third sector or professional body, one health body and one 'other' group respondent). The issues raised by them were similar to some of those highlighted by respondents who preferred a different approach and included:

• NHS hospital grounds can be extensive and 'policing' the legislation may prove an additional expense to the NHS. An approach that restricts smoking to outwith regulated perimeters could be more straightforward to enforce.
• Imposing legal sanctions on what will often be vulnerable populations, who may already feel stigmatised for being addicted to tobacco, may not be the most appropriate way forward at this time; defined smoke-free areas within given perimeters would protect hospital patients, staff and visitors from second-hand smoke, and would help establish a tobacco-free expectation.

3.58 Finally at Question 30, 2 respondents who supported the introduction of legislation (in other words had answered 'yes' at Question 29) and 4 who had not answered the question, went on to make a comment only at option d. Again, comments covered similar issues to those raised by other respondents. One individual simply suggested there should be designated smoking areas. Three respondents (one e-cigarette company, one local authority and one professional body respondent) suggested that there should be local discretion, with Health Boards, NHS Trusts or hospitals able to decide on this issue. One third sector respondent noted that they support the principle of legislation for smoke-free hospitals but are unable to support the current proposals - their specific concerns related to the impact on terminally ill patients and the disparity that would be created between those who would or would not be covered by any exemption for hospices.

3.59 An issue which was of concern to 2 third sector or professional body representatives was in relation to enforcement; again the size of some NHS facilities was noted and there were concerns that it is not clear who will be responsible for enforcing any ban. More specifically, it was noted that the Royal College of Nursing have been explicit that nursing staff should not be expected to enforce complete smoke-free bans. One professional body respondent suggested that it may be better to legislate that Health Boards can make large areas of grounds non-smoking, but have discretion to have limited areas, well away from entrances, where smoking might be permitted.

Question 31: If you support national legislation, what exemptions, if any, should apply (for example, grounds of mental health facilities and/or facilities where there are long-stay patients)?

3.60 Eighty eight respondents answered this question, including 17 health bodies, 12 third sector stakeholders and 11 local authorities. Of the 88 who commented, 11 either did not think legislation was required or had not answered as to whether national legislation should be introduced (at Question 29). These respondents tended to make brief further comments noting their opposition to the proposal.

3.61 Of those who did support legislation, 36 essentially suggested that no exemptions should apply. This group consisted of 15 individuals, 9 third sector or professional bodies, 8 health bodies, 2 local authorities, one academic group and one other public body. A number of those who did not favour any exemptions did note the importance of ensuring that effective nicotine replacement therapy is available to those, particularly inpatients, affected by any ban.

3.62 Some respondents commented on why they did not consider there should be exemptions, including for mental health or long stay facilities. A health body respondent noted that that the current exemptions have been in place for almost 9 years and that there does now seem to be an appetite to move towards smoke-free mental health sites and facilities with long stay patients. Another health body respondent pointed out that evidence shows people with mental health problems have poorer physical health due to higher smoking rates and it is important to address this inequality.

3.63 Two health body respondents noted that some NHS Boards have already implemented smoke-free mental health sites. One academic body reported that they are currently involved in implementing comprehensive smoke-free policies in mental health trusts in England and that, while at an early stage of implementation, the approach appears to be working well. However, one health board respondent who did not otherwise support an exemption for mental health facilities suggested that any legislation should take account of the fact that some patients may not be able at times to understand that they cannot smoke. Another health board respondent recommended that if legislation were to be applied to grounds of mental health facilities a longer lead-in time should be considered.

3.64 Others did favour some exemptions, sometimes referring to facilities that are effectively someone's home (and then within their own room) or where someone is held without liberty.

3.65 The following exemptions were suggested:

• Grounds of mental health facilities. More specifically, for long-stay psychiatric patients in locked wards. Four local authority, 2 third sector or professional body and 2 health body respondents were amongst those suggesting this exemption.
• Long stay facilities, including care of the elderly facilities. More specifically, for long-stay patients where the risk to them in leaving the grounds is assessed to be significant. Four local authority, 2 third sector or professional body and 1 health body respondent were amongst those suggesting this exemption.
• End of life units (but only if the use of nicotine replacement products is refused). This exemption was suggested by a Community Health and Care Partnership.
• Prisons. This exemption was suggested by a local authority.
• After a thorough risk assessment has established that there is a greater risk to staff and patients if smoking is not permitted; the example given was in facilities managing challenging patients (suggested by 3 health body respondents). A local authority respondent also suggested that limited exemptions for clinical reasons may be appropriate.

3.66 Other comments included that any exemptions should only apply to patients and not to staff or visitors - this was raised by a small number of individual respondents. A small number of others commented on e-cigarettes - one professional body and one health body were of the view that these should be treated as tobacco products and included in any ban on smoking. However, two individual respondents suggested e-cigarettes should not be covered by any legislation which makes it an offence to smoke on NHS grounds. One local authority respondent suggested that e-cigarettes could perhaps be medically prescribed in long-stay and mental health facilities.

Question 32: If you support national legislation, who should enforce it?

3.67 Ninety respondents answered this question, although 10 of the comments were by those who either opposed legislation or who had not given a view on its introduction. Some of these respondents restated their opposition to the proposal but others commented on possible arrangements if the legislation were to be introduced.

3.68 Comments tended to be succinct and focus on identifying the agency or agencies that should enforce any legislation. The balance of opinion was as follows:

• 10 respondents (3 individuals, 3 third sector stakeholders, 2 local authorities, one health body and one pharmacy respondent) referred to the arrangements being for smoking in enclosed public spaces, with one local authority noting that this would mean the primary responsibility should lie with the person in charge of the premises, enforced by local authority Environmental Health Officers.
• 7 respondents (4 local authorities and 3 individuals) specifically suggested local authorities should be responsible. However, one local authority suggested that it is unrealistic to expect Environmental Health or Police Scotland to have a significant role in enforcing anti-smoking legislation at NHS-owned properties.
• 18 respondents suggested the NHS, as an employer or as the owner or manager of the grounds (8 individuals, 4 third sector or professional body, one academic group, one health body, one local authority, one other public body, one pharmacy and one 'other' group respondent). Some referenced one or more specific NHS facilities or bodies (such as hospitals, NHS Boards). A specific suggestion (made by an individual) was that NHS Boards need to designate enforcement staff with recourse to the Police. Some respondents also noted that Police assistance may be required as 'back up'.
• 10 respondents nominated Police Scotland (8 individuals, one local authority and one professional body respondent). However, one individual respondent explicitly stated that Police Scotland should not be responsible.
• 31 respondents referred to partnership arrangements which tended to reference some combination of the NHS, local authorities and Police Scotland. Such suggestions came from 12 health bodies, 10 individuals, 5 third sector or professional body respondents, 3 local authorities and one academic group.
• 3 respondents (2 individuals and one health body respondent) suggested the Scottish Government should be responsible.

3.69 A small number of respondents referred to the resources required to enforce such legislation. One health body questioned whether involving NHS staff or additional monitoring staff represents the best use of public money when healthcare budgets are tight. Two health body respondents suggested that extra funding could be provided by the Scottish Government if this legislation were passed. A professional body respondent suggested that if local authority Environmental Health Officers are involved with enforcement activities the cost of such activity should either be met by the Scottish Government or the individual NHS authority.

Question 33: If you support national legislation, what should the penalty be for non-compliance?

3.70 Eighty two respondents commented at this question, including 7 who either opposed legislation or who had not given a view on its introduction. As at Question 32, comments tended to be succinct.

3.71 The considerable majority of those who commented (including most health body, local authority and third sector or professional body respondents) either suggested an approach which mirrored that already in place for smoking in enclosed spaces (as per the Smoking, Health and Social Care (Scotland) Act 2005) or fines.

3.72 Twenty seven respondents referred to existing arrangements for smoking in enclosed spaces. This group was made up of 8 local authorities, 7 third sector or professional body respondents, 5 individuals, 4 health bodies, one academic group, one pharmacy and one 'other' group respondent. Thirty six respondents referred to fines or fixed penalty notices (20 individuals, 10 health bodies, 3 local authorities, and 3 third sector or professional body respondents). If a suggested amount was given, respondents tended to refer to £50 fines. However, a small number (3 individuals and 2 health bodies) suggested higher fines (for example of £200) or an increasing scale of fines for repeat offences.

3.73 Some of those proposing that fines should be used were amongst those who also suggested a range of other options could also be made available, including counselling, access to education, or more specifically awareness-raising courses of the kind used in connection with some motoring offences (suggested by a small number of individuals and a health body). There was also a small number of respondents (3 individuals and one health body) who suggested combining fines with other measures, including custodial sentences, community service or the loss of state benefits for repeat offenders. Two individual respondents suggested that treatment should be withheld and one health body respondent suggested that staff should be subject to NHS disciplinary procedures.

Question 34: If you do not support national legislation, what non-legislative measures could be taken to support enforcement of, and compliance with, the existing smoke-free grounds policies?

3.74 A total of 42 respondents answered this question, including 9 who either supported the introduction of legislation or who had not given a view on its introduction.

3.75 Comments made by these respondents included that enforcement of non-legislative smoking policies should be at the discretion of individual health boards. However, one third sector stakeholder suggested that NHS Boards are currently struggling to implement existing smoke-free grounds policies, due to the huge resource commitment required and a lack of clarity about the requirements of the policy. One health body suggested that local tobacco control partnerships could act as important champions and would have an important role in encouraging the extension of the smoke-free approach to other types of outdoor areas.

3.76 Those who opposed legislation sometimes suggested that the focus should be on education and awareness raising with one tobacco industry respondent suggesting that programmes (such as the Welsh Assembly's 'Fresh Start' campaign or the Scottish Government's 'Take Seven Steps'^[22] campaign) are likely to be more effective in changing behaviours than introducing further legislation. One academic body suggested that approaches being implemented elsewhere should be looked at - they noted the positive impact that a mixture of clear signage, in-hospital policy statements, motion-activated audible warnings, and clear outdoor smoking locations have had outside the Royal Aberdeen Children's Hospital.

3.77 Other suggestions made or points raised included:

• Support for smoking cessation should be adequately resourced and prioritised for hospital staff and patients and incorporated into discharge planning, with formal referrals to community pharmacies and other primary care smoking cessation services to ensure follow up treatment. This was suggested by a professional body respondent.
• Adequate and clearly signposted smoking shelters or designated smoking areas should be provided for staff, patients and/or visitors. Alternatively, it was suggested that people should be able to smoke anywhere in the grounds of the hospital as long as they do not inconvenience non-smokers. These suggestions came from one 'other' group respondent and a small number of individuals.
• NHS facilities could extend workplace smoking bans to the grounds but then enforce the measure using internal disciplinary systems. This was suggested by a local authority respondent.
• Encourage or permit the use of e-cigarettes and/or nicotine inhalers. This was suggested by a small number of individual respondents.
• Policies should be left to individual hospitals to decide. These suggestions came from one 'other' group respondent and a small number of individuals.

3.78 Finally, one professional body respondent reported that there are particular issues of interactions between some medicines used for some mental health conditions and nicotine so that the implications of restricting access to cigarettes for those taking these medicines need to be considered.

Smoke-free (tobacco) children and family areas

3.79 The Scottish Government's current Tobacco Control Strategy includes an action for local authorities to extend tobacco-free policies to outdoor areas within their jurisdiction, with a focus on areas likely to be frequented by children. The Strategy calls on local authorities to work with the NHS and other local partners to include policies for smoke-free areas within local Tobacco Control Plans.

3.80 The consultation paper notes that, while there are no plans for legislation, the Scottish Government remains committed to increasing the number of outdoor areas which are free from tobacco use. Three questions invited views on the best way to achieve smoke-free children and family areas.

Question 35: Do you think more action needs to be taken to make children's outdoor areas tobacco free?

3.81 A total of 139 respondents answered this question and a breakdown by respondent type is set out in Table 21.

Table 21: Question 35 - Response by Respondent Type

Respondent Type	Yes	No	N/A	Total
Academic Group	3	1	-	4
E-cigarette Industry or Tobacco Industry	1	1	9	11
General Retail or Pharmacy	2	-	7	9
Health Body or Partnership	17	-	2	19
Local Authority	14	2	-	16
Other Public Body	1	-	3	4
Third Sector or Professional Body	20	-	5	25
Other	2	2	2	6
Groups (Total)	(60)	(6)	(28)	(94)
Individual	46	27	5	78
TOTAL	106	33	33	172
Percentage	62%	19%	19%	100%
Percentage of those responding	76%	24%	-	100%

3.82 The majority who answered this question (76%) did think more action needs to be taken. Most of those who did not favour further action were individuals, although 2 local authority respondents were also amongst those opposing further action.

Question 36: If you answered 'yes' to Question 35, what action do you think is required:

a. Further voluntary measures at a local level to increase the number of smoke-free areas;

b. Introducing national legislation that defines smoke-free areas across Scotland;

c. That the Scottish Government ensures sufficient local powers to allow decisions at a local level as to what grounds should be smoke-free;

d. Other actions?

3.83 As at Question 30, four options were presented; no guidance was given as to whether these were intended to be mutually exclusive answers (and hence only one option should be selected), or whether more than one option could be selected. Analysis of comments made at option d suggests that a number of respondents did not regard the options to be mutually exclusive. Given this, the breakdown of responses by respondent type in Table 22 includes multiple options where these were selected. A total of 112 respondents answered this question.

Table 22: Question 36 - Response by Respondent Type

Respondent Type	a	b	c	d	N/A	Base
Academic Group	1	1	2	2	1	4
E-cigarette Industry or Tobacco Industry	1	-	-	4	7	11
General Retail or Pharmacy	1	-	-	1	8	9
Health Body or Partnership	3	7	12	8	1	19
Local Authority	-	6	9	3	2	16
Other Public Body	-	-	1	-	3	4
Third Sector or Professional Body	6	5	13	9	7	25
Other	-	1	1	1	4	6
Groups (Total)	(12)	(20)	(38)	(28)	(33)	(94)
Individual	16	24	15	17	27	78
TOTAL	28	44	53	45	60	172
Percentage	16%	26%	31%	26%	35%	100%
Percentage of those responding	25%	39%	47%	40%	-	100%

3.84 The most frequently selected option was option c with 47% of all those who answered this question agreeing that there should be sufficient local powers to allow decisions at a local level. Similar proportions (39% and 40% respectively) agreed with options b (national legislation) or d (other actions). The fewest number of respondents agreed with option a (further voluntary measures).

3.85 Of the 112 respondents who answered this question, 67 selected only one option:

• Option a = 10 respondents (9 individuals and one third sector stakeholder respondent).
• Option b = 25 respondents (13 individuals, 5 health bodies, 4 local authorities, 2 third sector stakeholders and one 'other' group respondent).
• Option c = 21 respondents (7 individuals, 6 local authorities, 4 health bodies, 3 third sector stakeholders and one 'other' group respondent).
• Option d = 11 respondents (7 individuals, 3 e-cigarette or tobacco industry respondents and one third sector stakeholder).

3.86 Some of those who selected option d (either singly or in combination with other options) identified other actions which they thought were required. Others made broader comments or comments that related to one or more of the other three options offered. These included how the various options suggested within the consultation could or should relate to each other. For example:

• One health body respondent suggested a combination of options a, c and d; their proposal was for local partnerships and organisations to take forward national polices and guidelines but to be able to develop their own responses as to how national recommendations would work in practice. More specifically, they suggested that extending smoke-free grounds beyond hospital grounds (as at Questions 29-34 above) should only happen where there is community involvement and agreement.
• Another proposal (suggested by 2 professional body respondents) was for staged implementation. One variation was voluntary action pending devolution of local enforcement powers followed by national legislation if concern persists. The alternative was to enable relevant local action while national legislation on expected standards is put in place.
• A pharmacy respondent took a slightly different perspective in suggesting that in the first instance further voluntary measures should be sought but that any new legislation should be drafted in such a way as to allow for the extension of present smoke-free legislation to cover children's outdoor areas should the voluntary approach prove ineffective.

3.87 However, others made a clear statement in support of one of the options. In particular, a small number of respondents (including an academic group respondent) were clear that national policies are needed and suggested that voluntary or partial restrictions are likely to be unsuccessful. Others pointed to the need for a consistent approach to be taken across the country. However, one health body pointed to the complexity of developing an approach which would take account of significant local variations and suggested that local powers, potentially guided by local tobacco control plans, may be easier to deliver.

3.88 Similarly, some respondents (tending to be those who had selected both options c and d) favoured local authorities having sufficient powers to designate areas as smoke-free. A third sector stakeholder favouring this approach highlighted that a similar approach has worked well with regard to playgrounds in Wales.

3.89 A small number of respondents (2 third sector or professional body and one 'other' group respondent) suggested that the approach taken should include a duty for local authorities to plan and implement designated smoke-free areas according to local needs, with 2 third sector stakeholders suggesting this approach would allow for community buy-in. Similarly, one academic group recommended the development of local policies based on a community empowerment approach; local communities should be consulted about and participate in the development of policies appropriate to local circumstances. However, the respondent making this suggestion highlighted a possible risk that this approach may increase inequalities, with more affluent communities possibly more likely to respond. They pointed to the need for a mechanism which would ensure that the development and coverage of such policies reduces rather than increases inequalities.

3.90 A small number (including 2 health bodies and a professional body respondent) went on to suggest that the powers given to local authorities should be supported by a national framework or guidelines. This included a suggestion that the local authority must have due regard to these when making decisions.

3.91 Some comments focused on the development and implementation of any measures, with points raised including:

• The legislation should allow for a similar approach to enforcement as for NHS grounds. This was suggested by a health body.
• Where there is a cost implication for large smoke-free parks then financial assistance may be required to ensure progress is made. This was suggested by an individual.
• Signs, fencing and advertising should be used. This was suggested by an individual respondent.
• A fixed penalty approach (presumed to apply to those breaking any restrictions) could be put in place. This was suggested by an individual.

3.92 However, some comments did raise concerns or notes of caution. For example, one health body suggested that the ban on smoking in enclosed public places is effective in improving public health because it can be enforced and that other policies may look attractive but are not necessarily an effective response to behaviour driven by addiction.

3.93 Those who had selected option d or effectively made a comment only, included a small number who were opposed to the overall premise and approach. In particular, it was suggested that there is no evidence that outdoor exposure to tobacco smoke where people can move freely about is sufficient to cause any substantial health damage, given the very considerable and rapid dilution of any contamination in the atmosphere.

3.94 Suggested 'Other' actions put forward (including by those who had selected one or more of options a-c as well as the 22 respondents who had not) included:

• Introducing a blanket ban on smoking in all public areas. This was suggested by a small number of individuals.
• The introduction of a national list of defined spaces was suggested by a third sector respondent.
• Supplementing national legislation by licensing, with a condition of the licensing being smoke-free for both permanent and temporary sites, for example ice rinks at festive events and funfairs. This was suggested by a professional body respondent.
• Regulations which require all ticketed venues to be completely smoke-free was suggested by a third sector respondent.
• An education programme, possibly at the antenatal stage, which informs parents about the effects of second-hand smoke. This was suggested by a health body respondent.

Question 37: If you think action is required to make children's outdoor areas tobacco-free, what outdoor areas should that apply to?

3.95 A total of 106 respondents made a comment, including 6 who had answered 'no' and 4 who had not answered Question 35.

3.96 Many of the further comments listed examples of the types of area to which restrictions should apply and appeared to suggest that respondents divided broadly into one of two groups: those who suggested that restrictions should apply to areas that are specifically designated as being for children; and those who suggested that the restrictions should apply more widely to include areas where children are likely to be. There was no clear pattern as to which type of respondent favoured which position, although local authority respondents appeared more likely to suggest the child-specific area approach, while health bodies were more likely to favour a more extensive approach.

3.97 The types of child-specific outdoor areas identified included children's public play parks, the grounds of schools and nurseries and outdoor areas for children provided by businesses such as pubs, restaurants, camp sites or caravan parks.

3.98 Suggestions for areas where children are likely or can be expected to be included all ticketed venues, adventure and theme parks, all areas within public park areas, sports grounds, skate parks, outside areas attached to pubs, restaurants or hotels and beach areas which are promoted as for families. One health body suggested that sites which are family or school trip destinations, including tourist attractions that receive funding from the Scottish Government, should be encouraged to make these smoke-free environments. It was also suggested that restrictions need to be applicable to both permanent and temporary sites to ensure, for example, that venues which are normally used for other purposes but which stage a live music event are included.

3.99 A small group of respondents (which again was mixed in its respondent type profile) pointed to the need for local decision-making processes and/or for local authorities to have the powers to enable them to fulfil their duty to protect children from second-hand smoke. However, one third sector stakeholder suggested that local authorities should be consulted to ensure a definition is reached which accommodates their expectations and the practicalities of enforcement. One local authority pointed to the need for any national legislation to define smoke-free areas carefully and another that local authorities should have the power, but not a duty, to designate smoke-free areas.

3.100 Issues raised by those who opposed further action being taken or did not answer Question 35 included that such a restriction would not significantly reduce children's exposure to second-hand smoke and that the available evidence does not support the view that second-hand smoke poses a health risk in outdoor areas. It was also suggested that there is no reliable evidence to suggest that outdoor smoking bans have any effect on modelling behaviours or on smoking initiation. One academic group respondent noted the benefits of making homes and cars smoke-free and suggested that smoking outdoors is actually a way of reducing the potential harm of second-hand smoke to non-smokers indoors.