May 2013 – An occupation of some kind

Author: Mitchells Roberton
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“…an occupation of some kind…”


Smoke gets in your eyes


  • On the question of smoking (and more) we have come a long way since Lady Bracknell’s interrogation of Jack Worthing as a prospective husband for her daughter Gwendolyn:

LADY BRACKNELL:…Do you smoke?

JACK: Well, yes, I must admit I smoke.

LADY BRACKNELL: I am glad to hear it. A man should always have an occupation of some kind. There are far too many idle men in London as it is…


  • Lady Bracknell’s unusual take on the subject of smoking was no doubt remarkable even in her day. It is certainly so now. This is strikingly illustrated in the Proposed Smoking (Children in Vehicles) (Scotland) Bill. The Bill is still very much in its infancy: it is still in its Consultation phase. So there is a long way to go yet before it becomes law (assuming it does).
  • The aim of this Note is simply to say a little about both Scottish Parliamentary “Members’ Bills” and the range of matters which the Smoking (Children in Vehicles) (Scotland) Bill public consultation document contains. The matters raised in the Consultation document are of course particular to its subject. But they illustrate the sort of points which any such consultation document  may need to address.

Scottish Parliamentary Members’ Bills


  • A “public Bill” is one which seeks to change the general law. A “private Bill” is one which seeks powers for a particular individual or organisation that are in excess of or in conflict with the general law. “Public Bills” may be introduced by:

a member of the Scottish Government (a “Government Bill”)

a parliamentary committee (a “Committee Bill”), or

an individual member of Parliament (a “Member’s Bill”).

  • This Note is only concerned with “Members Bills” i.e. a “public Bill” aimed at altering the general law and introduced by an individual MSP.
  • Before introducing a Member’s Bill, the MSP must first lodge a draft proposal and then a final proposal. The draft proposal must be accompanied either by a consultation document or by a statement of reasons why the MSP does not consider consultation necessary (which is subject to scrutiny by a committee).
  • This is covered in The Standing Orders of the Scottish Parliament (4.4 edn., November 2012) Rule 9.14:

“3. A member wishing to introduce a Member’s Bill shall first lodge with the Clerk a draft proposal consisting of the proposed short title of the Bill and a brief explanation of the purposes of the proposed Bill, together with either—

(a) a consultation document prepared as the basis for a public consultation on the policy objectives of the draft proposal to begin on the day on which the draft proposal is printed in the Business Bulletin (or a specified date no more than two weeks later) and to last for a specified period of not less than 12 weeks; or

(b) a written statement of reasons why, in the member’s opinion, a case for the proposed Bill has already been established by reference to specified published material and that consultation on the draft proposal is therefore unnecessary.”


  • Once introduced, a Member’s Bill is subject to the same three-stage scrutiny process as other public Bills.
  • There are currently 16 proposed Members’ Bills. To give a flavour they include:

The Proposed Alcohol (Public Health and Criminal Justice) (Scotland) Bill;

The Proposed Apologies (Scotland) Bill;

The Proposed British Sign Language (Scotland) Bill;

The Proposed Bus Regulation (Scotland) Bill;

The Proposed Criminalisation of the Purchase of Sex (Scotland) Bill;

The Proposed Living Wage (Scotland) Bill; and

The Proposed Responsible Parking (Scotland) Bill.

The Proposed Smoking (Children in Vehicles) (Scotland) Bill (“the Bill”)




  • The Bill is being proposed by Jim Hume, MSP. The public consultation document (produced in terms of the Scottish Parliament Standing Order 9.14 mentioned above) was lodged on 28th May 2013 and is available here: The consultation period closes on 30th August 2013. This public consultation document is referred to below simply as “the Consultation”.
  • As its title suggests the Consultation relates to a Bill to prohibit, in Scotland, smoking in private vehicles while a child under 16 years of age is present.
  • It is worth touching on three (only) of the points raised in the Consultation to indicate the range of matters that may need to be considered when any Bill is proposed.

Point 1

  • The Consultation acknowledges that some people would call for an outright ban on smoking in cars. This is rejected on the basis (essentially) that adults can choose alternative means of transport (rather than travelling in a smoky car) and adults can influence their parents smoking habits. So the proposed Bill is only in relation to those under 16.
  • One wonders how compelling these arguments are. After all, choosing an alternative means of transport is not always practicable and even adult children may have little success influencing their parents.

Point 2

  • As just mentioned, age 16 is chosen as the cut-off age. If any age is to be prescribed age 16 is perhaps inevitable where (in particular) the Age of Legal Capacity (Scotland Act 1991 provides:

“a person of or over the age of 16 years shall have legal capacity to enter into any transaction”.

  • Nevertheless, there is arguably an inconsistency in the Consultation fixing on age 16 where section 4 of the Tobacco and Primary Medical Services (Scotland) Act 2010 provides:

“A person who sells a tobacco product or cigarette papers to a person under the age of 18 commits an offence.”

So, whilst it is proposed that there is no offence for someone of 17 to sit in a car enveloped in another adult’s smoke it would be an offence to sell them cigarettes.

Point 3

  • As the Consultation acknowledges a child under 16 might light up in a car with another similarly aged child. This will not however be an offence. The proposed offence can only be committed by someone age 16 or over. One of the rationales for this limitation is that to make this an offence could clog up the Children’s Hearing system.
  • There is sense in that. But one wonders how many such cases there would be. One doubts so many as would “clog up” the system? And, arguably, a child of say 15 who puffs away in a car with his baby sister by his side should be subject to some legal sanction.

The points above give a flavour of those covered in the Consultation and the criticisms above may serve to illustrate that a consultation exercise is worth having as a way of working through how best to formulate a Bill.

Note: This material is for information purposes only and does not constitute any form of advice or recommendation by us. You should not rely upon it in making any decisions or taking or refraining from taking any action. If you would like us to advise you on any of the matters covered in this material, please contact Ian Ferguson:



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