On the Health committee at Stormont, Roy has been pressing for joined up legislation so that all recent tobacco offences, illegal tobacco product sales as well as any underage sales, could be taken into consideration when Councils are granting trading licences.
Here is the transcript of a briefing and question and answers session given by Departmental officials to the Health committee:
Illicit Tobacco Sales: DHSSPS Briefing
The Chairperson: Thanks very much for coming today, Elizabeth, Gerard and Jenny. You are more than welcome. I will hand straight over to you to make your introduction and presentation. I will then open it up for questions or comments.
Dr Elizabeth Mitchell (Department of Health, Social Services and Public Safety): Thank you, Sue, for inviting us back to discuss the important topic of illicit tobacco sales in Northern Ireland. You will remember that, on 24 October, we provided an initial briefing to the Committee on the forthcoming tobacco retailers Bill, which will include a provision allowing the courts to ban retailers from selling tobacco products for a set period of time following a number of underage sales offences. At that evidence session, some members expressed concern about the level of illicit tobacco sales and how that was undermining attempts to reduce the prevalence of smoking. Members raised the possibility of including an additional provision in the tobacco Bill that would allow the courts to ban retailers caught selling illicit tobacco from selling any tobacco products for a set period of time. It was agreed that officials would seek advice from the Departmental Solicitor’s Office to clarify whether it was within the remit of our Department to include such a provision, and to come back to the Health Committee with information.
Following the discussion with the Department’s legal advisers, it was established that a similar power already exists in the Tobacco Products Duty Act 1979, which applies to Northern Ireland. Section 8H(4) of that UK-wide Act states that a manager who allows premises to be used for the sale of illicit tobacco commits an offence and that the court can make an order to prohibit the use of premises for the purposes of selling tobacco for a specified period of time. Given that that power exists in an Act that applies to Northern Ireland, the legal advice that we have received is that there would be no good reason for duplicating that legislation in the tobacco retailers Bill. We were also advised that any provision in relation to illicit tobacco sales would likely be an excepted matter in that it would relate to taxes and duties. The powers of the Northern Ireland Assembly do not extend to such matters.
On 21 November, the Health Minister wrote to inform the Committee of the existence of the 1979 Act and to provide information as requested by the Committee about fixed penalty notices that are issued under the smoke-free legislation. Further correspondence was issued on behalf of the Committee on 10 December enquiring as to whether the Tobacco Products Duty Act 1979 had ever been used in Northern Ireland. That request was forwarded to HM Revenue and Customs, which has responsibility for enforcing legislation relating to illicit tobacco, and to the Department of Justice (DOJ). HMRC and DOJ separately advised the Department that the information is not collated. That response was relayed to you by the Minister.
Although illicit tobacco is primarily a matter for HMRC, its existence concerns the Department, as the cheaper price of the products undoubtedly undermines our efforts to reduce smoking prevalence rates. In recognition of that, the Department invited representation from HMRC onto the working group that is involved in the development of the 10-year tobacco control strategy, which the Minister launched last February. A tobacco strategy implementation steering group has been established by the Public Health Agency to deliver on the objectives of the new strategy. Its membership includes representation from the Organised Crime Task Force, with particular responsibility for illicit tobacco. I also understand that there are existing links on the ground between district councils and HMRC, whereby council officers are able to alert HMRC to any illicit tobacco sales that they discover as part of their routine enforcement or investigations.
The Department’s view is that, rather than amending the tobacco retailers Bill to duplicate existing legislation, we should continue to work with HMRC and the other organisations that are engaged in tackling the problem of illicit tobacco. In that way, we can seek to ensure the more active enforcement of the existing provisions in the Tobacco Products Duty Act 1979. We will raise that issue at the next meeting of the tobacco strategy implementation steering group to see what else we can do in that regard.
The Chairperson: Thanks very much, Liz. Thanks for coming back and clearing up some of the points.
Mr Beggs: Thanks for your presentation. Those who sell illegal tobacco for profit obviously have no qualms about selling it to anybody; their main motive is to profiteer from that illegal sale. My concern is that there is no information about the legislation being used to ban that sale. Can local government have a stronger role in trying to make sure that that is applied? That could be incorporated into further legislation, through which local government could govern the registration of those who can sell tobacco. Is there a mechanism by which local government can report the pressures and concerns in order to better the health of local communities?
Dr Mitchell: We envisage that the guidance that will accompany the Tobacco Retailer Sanctions Bill, and subsequent Act, will highlight the issue of illicit tobacco sales. We will highlight that the route for tackling it is for environmental health officers and district council officers to report it to HMRC and to work closely with it to try to control illicit sales. Obviously, a lot of HMRC’s attention is on trying to stop the import of large quantities of smuggled tobacco. It has had some successes, but we need to make sure that that is accompanied by action at local level for the kind of issue that you mentioned.
Mr Beggs: There is a perception that some difficulties are associated with mobile premises. I went back to the original legislation, and my understanding is that the definition of premises includes mobile vans. Is that the case?
Dr Mitchell: Yes. My understanding is that the legislation includes mobile vans — for example, ice cream vans or generic vans. I will check that with colleagues.
Mr Gerard Collins (Department of Health, Social Services and Public Safety): That also includes market stalls. All those things are covered under the definition of premises.
Mr Beggs: If people want to sell tobacco from a market stall, which will be at a certain location only infrequently, will they be required to seek permission and register through the local council?
Ms Jenny McAlarney (Department of Health, Social Services and Public Safety): Yes, they would. People who sell from such places will not want to register, so we hope that the legislation will catch those illicit retailers. If people are caught and are not registered, district councils can fine them up to £5,000 for not being registered, as well as any other penalties that HMRC can impose if the tobacco is illicit. In that way, hopefully, the legislation will catch some illegal traders.
Mr Beggs: I am trying to understand why, under existing legislation, there is no record of any prosecutions or of the law being applied. Is there a reason for that? If HMRC is not using that legislation, can councils use it? If a council were taking a case on underage selling, can it use the same legislation if it found evidence of illegal tobacco being sold?
Dr Mitchell: As Jenny said, if council officers found that a market stall was selling illicit tobacco and was not registered, those traders can be fined. They can also report that to HMRC for any other penalties that it may be able to apply.
Mr Beggs: In making a judgement on whether a retailer needs a licence to sell tobacco, can the court take into consideration not only evidence of selling to underage people but the fact that an individual or organisation was selling illegal tobacco? Would that be discounted in any decision? I would like to know about that. When a council takes a court action, and there is a recommendation to stop a retailer from selling, can those two issues be joined together?
Dr Mitchell: The first question is: are those retailers registered to sell tobacco? If they are not registered, that is an offence. If they are selling to underage people, that is a separate offence. If, through test purchasing, they were caught selling to underage people, that is a separate offence.
Mr Beggs: If retailers were found to be selling to underage people, they might get a slap on the wrist at first. If they were then found to be selling illegal tobacco, that would be chalked up as another concern. Those same retailers are also found to be selling to under-16s. Can all three offences be taken into consideration in the council’s recommendation to discontinue, or is it only selling to under-16s that is an offence under the proposed legislation? In court, can all illegal tobacco sales be considered?
Ms McAlarney: For the purposes of this legislation, a court can issue a banning order only if a person has been found guilty of three tobacco offences, which are not illicit tobacco offences. Those offences are: not registering; failing to notify changes to the register; or selling to underage people. Any of those could count as a single offence. If someone commits three offences —
Mr Beggs: Can you include illegal tobacco sales?
Ms McAlarney: We would have to speak to our legal advisers because taxes and duties are a separate issue. I am not sure whether we could include provisions about an excepted matter in our Bill.
Dr Mitchell: Do you want us to explore whether that can be taken into account in respect of the three strikes policy?
Mr Beggs: Would that count as three strikes, or would it count as only two because the other offence would not be included under the new legislation?
Mr Collins: If that were the case, a district council would need to know whether a retailer had been prosecuted for selling illicit tobacco. There would need to be a protocol whereby that information is fed back. We do not have information at the minute on which retailers, if any, have been prosecuted for selling illicit tobacco.
Work is ongoing in England to develop a protocol between local authorities and Revenue and Customs. Perhaps we could consider doing that here. Through the implementation of the tobacco action plan, a written protocol is being developed to ensure more information sharing and different agencies being directed to retailers suspected of either underage sales or illicit sales. That might be a practical way to take the issue forward.
Mr Beggs: I want the legislation to allow sensible decisions. Is the person someone of standing who can be allowed to continue to retail tobacco? If he or she has committed multiple tobacco sales offences, surely all offences should be allowed to be taken into consideration.
Dr Mitchell: That is a very good point, and we will certainly follow it up. Thank you for drawing it to our attention.