Falklands : Legislative Council (27/07/07) Part 2
Submitted by Falkland Islands News Network (Juanita Brock) 30.07.2007 (Article Archived on 13.08.2007)
Following is the debate on the legislation at the LEGCO meeting held on 27 July 2007.
LEGISLATIVE COUNCIL (27/07/07)
Part 2a: Legislation - Children and Young Persons Tobacco Bill 2007
By J. Brock (FINN)
The third reading of the Children and Young Persons Tobacco Bill 2007, then took place, as the first and second readings were heard on Friday, 22 May 2007 then took place. The first and second readings took place on Friday, 25 May 2007.
Explanation by the Chief Executive Mr. Chris Simpkins (CS):
Mr Speaker, at the meeting of this house on the 25th of May, Honourable Members indicated their general support for the measures included in this Bill but also indicated that more thought might need to be given to a number of issues including, in particular, how the age limit below which the sale and use of tobacco products is prohibited could be increased from 16, at present, to 18, as provided for in Clause 9 of the Bill. And, secondly, how the provisions of Clause 8, in relation to the powers of teachers to search pupils and their lockers and confiscate tobacco and/or cigarette papers, where there is a reasonable suspicion of the possession of such material would be implemented.
In introducing the second reading of the Bill I commented that this might prove to be a controversial provision. And, so it has proved. I know that there is disquiet among teaching staff as to how these powers might be exercised. I have asked the Director of Education and the acting Chief Police Officer to examine these issues with teaching staff and it is certainly the case that concern continues to be expressed.
However, I would point out that the Bill only provides a power. It does not compel the use of that power and Honourable Members may therefore feel able to debate and pass the Bill at this time and then require that an agreed but non-statutory code of practice be prepared.
Alternatively, Honourable Members may prefer to continue the debate and leave the Bill on the table of the House until these matters have received further attention.
Not withstanding these options and, in order to test the water, so to speak, I beg to move that the Bill be read a third time and due pass.
The Debate:
Cllr the Hon Mr. Mike Summers (MS):
Thank-you, Mr. Speaker. The Chief Executive has given an accurate exposition of where we are with this Bill and the disquiet that apparently still exists in the Education Department as to how they would deal with the provisions of Clause 8. We have a number of options available to us. As the Chief Executive has said we could simply pass this Bill. And, of course, the provisions provided under Clause 8 need not be implemented. I am not overly keen on that given that one of the principle purposes of this Bill was to give the Police additional powers to be able to deal with implementing what is currently the law. They are not overly keen about the piece of law that we wilfully do not implement and might be critical of that. Nevertheless, we could do so.
Alternatively, we could pass this Bill and bring into force only certain clauses. We could, perhaps, not bring into force Clause 8 and possible even clause 9 that deals with the extension of the age limit until such time as there is a further resolution of the House.
We could alternatively pass the Bill with some amendments to Clause 8 or we could pass the Bill with the deletion of Clause 8 and/or Clause 9 or we could not pass it at all or put it back into suspension. So there are a number of options but I think there is a need to make some progress and, I think to demonstrate our will on this issue. It would be therefore my preference that we do pass this Bill but given the reservations expressed by teachers only in the last few days about the operation of Clause 8 to the Bill, I would propose that we pass the Bill but do not bring into effect Clause 8 until such time as there is a further resolution of this House when we have been satisfied about the procedures to be put in place in schools for the searching of pupils and the issues raised.
But I think I would also propose that we don’t bring into effect Clause 9, which is the increase of age until we have a clear policy on how we are going to implement that decision. Whether we go the way that the UK is proposing, which is simply to raise the age on a particular date – oh, that’s it – or whether we are a little softer than that and we say we will raise the age by a year at a time until such time as we get to 18 and that might be easier for some people to take.
So, Mr. Speaker, after that, I would like to propose to the House that this Bill is passed but that Clauses 8 and 9 are not brought into effect until such time as there is a further resolution of the Legislative Council.
CS: Mr. Speaker, just on a point of order, just to point out the affects of that will require a slight revision to Clause 2 of the Bill as currently drafted, which is the Clause gives effect to the implementation or bringing in to law the provisions of the Bill. Clearly we can deal with that consequential amendment.
MS: Agrees
Cllr The Hon Dr. Richard Davies (RD):
Mr. Speaker, Honourable Members, I entirely agree with the Honourable Mike Summers that we need to make progress and show will in this very important area.
I take the point about Clause 8 providing powers but not compelling them but I think there is absolutely no point in providing powers that aren’t going to be used. The idea is that they are used. I think it would be a reasonable suggestion to suspend this clause of the Bill until we have worked further on it and perhaps made some further amendments, which I understand could be done to it and I would support that.
Regarding Clause 9, I think the increase in the legal age of smoking and purchase of tobacco to from 16 to 18 is an extremely important move for us to do. It’s been very effective in some other jurisdictions in reducing teenage smoking. I think something like one in 10 of 11 to 15 year olds here are thought to smoke. Teenagers who smoke develop a higher risk of lung cancer than older people who smoke. I think raising the legal age to 18 would bring it into line with Alcohol – am I right – which might make things a bit simpler to enforce.
And, I think if we can make it harder for teenagers to start smoking, by the time they are a bit more mature and a bit older they might not decide to take up smoking at all. So I would – while I understand the arguments that the difficulties for a 17 year old who is already an addict – I would like to go ahead and raise the age of smoking from 16 to 18.
Cllr The Hon. Mrs. Janet Robertson (JR):
I am in principle quite happy to follow what Councillor Mike Summers has suggested. I think the teachers have made some valid points and really, for the benefit of the public, I would just like to say a little bit about what they are. And, maybe the Attorney General may be able to clarify exactly – sorry, Principle Crown Council – may be able to –
LC: Acting Attorney General
JR: Sorry – may be able to clarify an issue. The Bill makes it an offence to sell, give or supply tobacco. It also makes it an offence to possess tobacco but it doesn’t actually say that it is an offence to smoke – the act of smoking itself. Perhaps, first, would you please clarify that is the case?
Ros Cheek: Mr. Speaker, I can confirm that that’s my understanding of the Bill.
JR; So at this point maybe we might want to think about that. Secondly, there is a concern in the Bill allows in the event that cigarettes are confiscated from a child at school it allows the child to have as witness someone of their choosing but it’s very open and the query that the teachers have, and I think it’s -again- a valid query is can they, if they decide to choose someone who is not even in the Islands to be present, does this mean that they effectively cannot attend school until such time as that person is there? I’m sure it’s a minor thing that can be adjusted easily but it is appoint bearing in mind. It’s worth thinking about.
Those are two of the areas and I think these issues need to be addressed but I am absolutely confident that they can be. And, as Councillor Davies has said, I don’t believe there is any point at all in putting in clauses and empowering people who do not wish to be empowered and I think that we need to have some further consultation with the teachers to see how we can address their concerns.
But that is the teachers. I was just wondering if perhaps Councillor Rendell might be able to clarify for me if the Police are happy with the provisions in the Bill with regards to them? Would he be able to?
Cllr The Hon Mr Michael Rendell (MR):
Yes. I was able to have a consultation with the Acting Chief Police Officer last night. And he is firmly of the opinion that it’s workable from his point of view – from the Police’s point of view – that it’s a perfectly straight forward set of legislation and that, as far as the school is concerned, he thinks the issues that the teachers have raised can be worked through and resolved. He thinks that there might be just a little bit of a misunderstanding about the application of the ordinance. But that can be worked through. He particularly thinks that it will give him the power to get back to the suppliers, which I don’t think under the existing ordinance he has the powers that he feels he needs. And, if he can get back to the suppliers and stop the supply – and even I it’s only a matter of prosecuting one or two suppliers that may just solve the whole problem because everyone else will then realise that they are in a very difficult position if they carry on doing it and the whole thing might just die a death as it were. So, as far as the Police are concerned they welcome this legislation and see no problems with it at all.
And whilst I am standing here I might as well say that I totally support the proposal that the Honourable Mike Summers has made in regard to the way we deal with this Bill.
LC: Are you happy with that and where do you stand in terms of clause 9?
JR: In terms of clause 9, I am quite happy to go with the suggestion as made. I think the two things are a bit in tandem, certainly with regard to the teachers and how they can approach things. But I was just wanting a secondary question really in relation to the Police. If – and it’s probably a question for the Acting Attorney General – if the Police spot a child under the age of 1 at the moment and then 18 – walking down the road smoking a cigarette the act itself smoking will not be illegal. Is that not correct? They will be able to search them for tobacco or remove tobacco products from them but they wouldn’t actually be able if they didn’t have any tobacco products on them other than the cigarette they were smoking the act itself would not – I would need clarification on this please.
Ros Cheek: Mr. Speaker If I could clarify that by holding and smoking a cigarette they would be possessing tobacco and thereby would be in breach of the law.
Cllr The Hon Mr. Ian Hansen (IH):
Thank you Mr Speaker. I have very little to add to this debate. I do feel that the fact the teachers feel uneasy about Clause 8 of this Bill dictates that we should perhaps look at it again and perhaps amend it.
As far as clause 9 goes, I certainly would need a better understanding of what would happen if we did actually just bring into force – overnight, if you like – the change of age and what would happen to those who are already smoking under the age of 18.
So therefore, Mr Speaker and Honourable Members, I would support the proposal the suggestion put forward by Councillor Summers.
Cllr The Hon Mr Richard Cockwell (RC):
Mr Speaker, Honourable Members, I, too, support the very sensible suggestions of the Honourable Mike Summers.
If I can make one comment – the objections or the comments from certain members of the public arrived very late on the seen, on this Bill and this is what delays us making the decision in this meeting because we have to virtually go back and look at what they said. It will be very helpful if people have comments to make, to make them at the more opportune moment.
Mr. Speaker, I support it
RD: I wonder if I could suggest a compromise on clause 9, which deals with…
LC: Can I just deal first with the Honourable Richard Stevens then I will come back to you.
The Hon Mr. Richard Stevens (RS):
Mr Speaker, Honourable members, I also support the proposal that Councillor Summers put forward. I think probably the part of the Education Department and how they are going to deal with it has been covered but I would like to say that there are issues. There is also a will, I am told, to work to resolve the issues and bring in some kind of workable management code.
Clause 9 – I sort of have a natural resistance to and probably, mainly in the back of my mind I can’t see that it would be valuable for us to have an age limit of 18 and then in other countries that we have close relationships with having a different age. Especially, let’s say, UK, when a number of our children go there before they are 18. However, I am told that laws are also going to change in the UK and young children up to the age of 18 will also be banned from smoking.
But in the back of my mind, I sort of think of the other things that you could do between the ages of 16 and 18 that are dangerous.
But trying to be rational I do support 9 eventually.
Thank you Mr Speaker.
Cllr The Hon Dr. Andrea Clausen (AC):
Mr. Speaker, Honourable Members, I will be brief because I think I contributed quite a lot in terms of what I felt about some of these clauses at our earlier debate in July. I have to concur with my Honourable Colleague, the Honourable Richard Cockwell, regarding the lateness of the comments which have come. It is two months ago since we started discussing. In fact, prior to that because there was a request for legislation to be drafted and it was a public paper, I believe from EXCO. So these ideas have been around for a long time. But certainly in terms of our debate have been open for comments for at least two months and it is disappointing that at the 11th hour we get comments although I am that we’ve got comments because they are valid and they do need to be addressed.
So, I do support the approach of dealing with them. And, I think it’s an important point to note that whilst providing power does not mean that these provisions have to be implemented. And, I do think there has, perhaps, been a bit of a misunderstanding although I do also take onboard that we don’t want to be passing laws that are not going to be implemented. So, it is right and proper that we thoroughly address any issues that are raised before we properly bring into force all of the clauses.
Regarding Clause 9 in particular I would like to say congratulations to the UK for bringing it in overnight in October. I think it is very brave. It is an awful lot of children they are going to have to sort out between the ages of 16 and 18. I am on record as stating that if we do it here we should do it in a staged approach. I think that’s a farer way of doing it.
Mr Speaker, Honourable Members, I support that this Bill is passed but that Clauses 8 and 9 are not brought into force until there is a further resolution of this House.
LC: Cllr Davies, I believe you had a point to raise on “9.”
RD: If I could just make a couple of further points on Clause 9 which deals with the legal age for the sale and possession of tobacco. Firstly I might just clarify that Canada, Australia and New Zealand and the United States all accept the legal age of possession and sale at 18 and England and Wales are about to change it.
I understand Honourable Colleagues’ reservations concerning suddenly raising the age and potentially criminalising current smokers in the 16/17 age range. Could I suggest that a compromise by amending clause 9 to read, “The Governor may replace the figure 16 appearing in any provision of this ordinance with the words: ‘ 17 or 18.’ And, then we could bring in 17 one year and 18 the following year into force.”
MS: Mr Speaker, Honourable Members, I am not convinced that the trying to amend the Bill on the floor of the House in that way would give us all the opportunity to think of all the implications that that might have. Therefore, whilst the notion that the Honourable member puts forward is the one, I think that we will probably work on, I think it’s better that we do it in consultation with the Attorney General’s Chambers and others to make sure that we get it right.
And, in light of that and in light of the comments of other colleagues, I would like to now formally propose that Clause 2 of the Bill is amended as follows: “Clauses 1 to 7 and Clause 10 of this ordinance come into force on publication in the Gazette and Clauses 8 and 9 come into force following a further resolution of the House.
I so formally propose.
AC: Seconds the motion.
LC: The position is that Clauses 1 to 7 and Clause 10 will stand part of the Bill. Clauses 8 and 9 will stand part of the Bill and come into force when Members have had a further discussion on this issue. Are we agreed on this point?
MS: Sorry. I did mean to make one other point that just slipped my mind. In terms of a timetable of coming into force of Clauses 8 and 9, I wouldn’t wish reservations in certain parts of the community to frustrate the purpose of clause 8 of the Bill and I would therefore like to see – I know we can’t include it as part of the legislation – but I would like to mention here and have Colleagues agree that we should have a timetable for the further resolution of the issues to deal with Clauses 8 and 9 and that should be not longer than 2 months.
LC: So it would be a proposal therefore to bring clauses 8 and 9 back into the September sitting of Legislative Council?
MS: That’s my proposal.
JR: My only comment about that is that we are going to have holiday time soon and many teachers will be out of the Islands. Might it not be sensible to make it the November sitting?
AC: I appreciate what you are saying but this comes back, yet again, to business stopping because we are not here. And, not all of the teachers will leave the country. I assume that not every teacher will leave the country for the three-week holiday. And, so there will be opportunity for them to contribute and I don’t know how many weeks left there are of term time but this discussion could happen next week. I am sure they are not on holiday next week. (Two weeks. I understand.)
I agree wholeheartedly with the timetable approach and I would like to see these Clauses back in this House in two months’ time.
JR: I appreciate the need to get on and do this but at the same time, what I hate to do is to end up in exactly the same situation in September, which I believe Legco is fairly early in September. We have two weeks before teachers go on holiday and I think as it will apply generally to the Community School, I think most of the teachers probably will be leaving and I believe our Legco sitting in September is fairly early – the 14th – which will probably be less than a week after school has resumed. And I would hate to be in a situation where we are here with exactly the same problems then. I would infinitely prefer to have it thrashed out and dealt with and passed properly in November.
MS: Mr Speaker, if we arrive at a position in September, where we are not able to make a resolution we can make a further resolution to delay. But I am anxious that we get a hold of this. It’s already been two months since we last discussed this Bill and Colleagues have already made reference to the delay. I am not sure if all colleagues are aware that a fair amount of work has already been done by my Honourable Colleague on researching school policies, County policies, State policies and other jurisdictions and they exist in profusion. We are not the first people ever to have thought of this. And, there’s a lot of information already available to help and inform teachers. So, I would like to proceed if Colleagues would agree with a timetable of September. If there is some compelling reason in September why we can’t reach a conclusion we can delay again. But I think we should push on.
Ros Cheek: Mr. Speaker, there is just a technical point. I am afraid I didn’t catch the exact wording of the amendment of Clause 2 that was proposed by Councillor Summers but I have drafted a Clause, which would have the effect, which I believe was intended and I hope might be accepted as suitable amended wording for Clause 2. That would read, “Clause 2 Subsection 1: Subject to Subsection 2 this ordinance comes into force on publication in the Gazette. Subsection 2: Clauses 8 and 9 will not come into force until further resolution of the Legislative Council.
MS: I am happy with that.
The Bill was read a third time and passed as amended.
Part 2b: The Remaining Legislation
The Stanley Common Amendment Bill:
This Bill was published in the Gazette and it therefore went to a second reading.
The Chief Executive The Hon Mr. Chris Simpkins (CS):
Mr Speaker, Honourable Members, I rise for the final time to move the passage of an instrument of Legislation in this House.
This very simple Bill replaces the 1st Schedule to the Stanley Common Ordinance 1999 with a new Schedule and repeals the Canache Mooring of Watercraft Development Regulations.
The affect of these provisions is to remove an area of land on the North side of the Canache from Stanley Common and thereby remove the special restrictions on the development of this small piece of land, which stem from its being part of the Common.
The protection of the Planning Ordinance in terms of development would, of course, still apply.
I beg to move the second reading of the Bill.
The Speaker thanked the Honourable Chief Executive and asked for people to speak to the Bill.
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