The Tobacco and Primary Medical Services (Scotland) Act 2010 (Commencement No. 1, Consequential and Saving Provisions) Order 2010

EXPLANATORY NOTE

(This note is not part of the Order)

Sections 40, 41, 42 and 43 of the Tobacco and Primary Medical Services (Scotland) Act 2010 (“the 2010 Act”) came into force on Royal Assent.

The commencement of section 41 which gave effect to Schedule 2 to the 2010 Act must be read subject to the Tobacco and Primary Medical Services (Scotland) Act 2010 (Ancillary Provisions) Order 2010 (S.S.I. 2010/77) (“the Ancillary Order”) which provides that the modifications in that Schedule shall not take effect until the coming into force for all purposes of specified sections of the 2010 Act.

This Order brings into force certain other provisions including sections 4 and 26 referred to in the Ancillary Order.

The Schedule to this Order sets out a table specifying the day certain provisions in the 2010 Act are to come into force. Some provisions come into force on one day for the limited purpose of allowing Scottish Ministers to exercise a power to make subordinate legislation. They then come into force in full on a later day.

Article 2 of the Order provides that the provisions specified in column 1 of the table come into force on the day specified in column 3 of the table. If a purpose is specified in column 4, the provision only comes into force for that purpose.

The following provisions of the 2010 Act come into force for the limited purpose of prescribing on 24th October 2010.

• Section 4 — to allow Scottish Ministers to prescribe a document which can be shown to prove that a person is 18 or over when tobacco is being sold. This is in addition to a passport and EU photo card driving licence which are provided for in the 2010 Act.

• Section 8 — to allow the Scottish Ministers to prescribe the dimensions of the warning notice to be displayed in premises where a tobacco business is carried on and the size of the statement on it.

• Section 11 — to allow the Scottish Ministers to prescribe the information which must be on an application for registration as a tobacco retailer in addition to that required by section 11 of the 2010 Act.

• Section 19 — to allow the Scottish Ministers to prescribe the dimensions of and wording and size of the statement on the notice which a person must display under section 19 of the 2010 Act if they are subject to a tobacco retailing banning order.

• Section 24 — to allow the Scottish Ministers to make regulations to modify Chapter 2 of the 2010 Act (Register of Tobacco Retailers) to apply it to moveable premises.

• Section 27 and paragraphs 3 and 4 of Schedule 1 to the 2010 Act — to allow the Scottish Ministers to prescribe the period after which in relation to an offence, a fixed penalty notice may not be given and the amount and discounted amount of fixed penalties.

The following provisions of the 2010 Act come into force for all purposes on 1st April 2011.

• Section 4 — which provides that it is an offence to sell a tobacco product or cigarette papers to a person under the age of 18.

• Section 5 — which makes it an offence for a person under the age of 18 to buy or attempt to buy a tobacco product or cigarette papers.

• Section 6 — which makes it an offence to buy or attempt to buy a tobacco product or cigarette papers on behalf of a person under 18.

• Section 7 — which gives the police power to confiscate tobacco products or cigarette papers from a person under 18 in a public place.

• Section 8 — which requires tobacco retailers to display a warning notice in their premises.

• Section 10 — which requires the Scottish Ministers to set up a register of tobacco retailers.

• Sections 11, 12, 13 and 14 — which make further provision regarding the register of tobacco retailers.

• Sections 25 and 26 — section 25 gives Councils the duty to enforce the provisions under Chapters 1 and 2 of the 2010 Act (sales of tobacco and the register); section 26 requires Councils to carry out a programme of enforcement action once a year.

• Section 27 and Schedule 1 — which provide for fixed penalties for offences under Chapters 1 and 2 of the 2010 Act.

• Sections 28 to 32 — which provide in relation to powers of entry.

• Sections 33 to 36 — which make miscellaneous and supplementary provision.

The following provisions of the 2010 Act come into force, for all purposes, on 1st October 2011.

• Sections 15, 16, 17, 18 and 19 — which make provision in relation to tobacco retailing banning orders.

• Section 20 — which provides in relation to the offences relating to the register of tobacco retailers. In particular it is an offence to retail tobacco if not registered.

• Sections 21, 22 and 23 — which make provision about access to the register of tobacco retailers and delegation of functions relating to the register.

Article 3 of the Order amends section 4 of the Children and Young Persons (Protection from Tobacco) Act 1991 (“the 1991 Act”) consequential on the coming into force of section 8 of the 2010 Act which is commenced in this Order. Article 3(2) amends section 4 of the 1991 Act to limit its application to warning notices on vending machines. On the commencement of section 8 of the 2010 Act, regulation of warning notices in retail premises will be governed by that section.

In terms of the ancillary Order, section 18 of the Children and Young Persons (Scotland) Act 1937 (c.37) is repealed on the coming into force for all purposes of section 4 of the 2010 Act. Article 4 of this Order saves section 18 for the purpose of the definition of “tobacco” in section 4 of the 1991 Act which regulates the display of warning notices on vending machines.