Michael McDowell (Independent)
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I ask the House to read carefully what is provided in this section, which states:

(1) A person shall not sell by retail, or cause to be sold by retail, a tobacco product to a person under the age of 21 years.

(2) A person who contravenes subsection (1) commits an offence.

(3) In proceedings against a person for an offence under subsection (2), it shall be a defence for such person to prove that the person under the age of 21 years to whom the alleged offence relates produced to him or her— (a) an age card,

(b) a passport, or

(c) a driving licence, for the time being in force, relating to that person under the age of 21 years.

That is what is there. I am not imagining it. What is outlined is a defence for the retailer to have been presented with a driving licence that relates to the person under the age of 21. To say this is already the law somewhere else does not excuse it. Either it is or is not a defence for a retailer to state that Joe or Josephine Bloggs produced a passport showing that she or he was 19 or 20 years of age. If it is a defence, the prosecution collapses. It is not a qualified defence. It is not a defence whereby someone did not really know or that they can say they asked for an identity card or were presented with a false passport. It has to be one of those things for the time being in force relating to the person under the age of 21 years. This is what the Minister is asking the House to legislate for. An ordinary understanding of the relevant subsection is that a prosecution must fail of anybody who can prove a person aged 18 or 19 came in with a passport, age card or driving licence showing their age to be 18 or 19. There is no way around the language. This is what the ordinary and natural meaning of the subsection is. I do not know why we are providing for this so-called defence. The section does not state it is being made an offence for someone to say they did their best and they thought it was the person's passport when, in fact, it was their big brother's passport or some such thing.That is not what this section says, because it must relate to that person for the defence to exist. If it relates to the person and shows their true age, the ordinary and natural construction of the language in this section means that it is a defence to the prosecution. The word "defence" means if you establish that, the case falls. They cannot say that really was not what they had in mind in the Seanad at all, that the Office of Tobacco Control had a different interpretation of it, or that the language does not seem to mean that.

What is the purpose of it? What are we saying in section 6(3)? If somebody is accused of selling some tobacco product to a person under the age of 21 years and is prosecuted for it and there are proceedings, the retailer can say that the person produced a card showing that he was 19 and there is his defence. What is the judge to do? The judge has to say that the Oireachtas provided that it is a defence to say that this was done. It defies belief that this is being brought in in its current form. I can think of different things that could be said, such as that it is a defence to say that you asked for it and a document which purported to identify the person as being over 21 was produced - in other words, somebody used their big brother's passport to get it. If that is what we are trying to outlaw, that is fine but that is not what the section says. The section is very clear. The document must be for the time being in force and relating to that person under the age of 21 years.

I am not being specious here. This is not a barroom lawyer's point. This is a slightly shocked Senator's point that we are being asked to legislate for a nonsense. As long as you prove that you are 18 or 19 by handing a card to the man behind the till, no offence is committed. That cannot be right. I do not think it is what the Minister's Department intends. I do not think it is what the Office of Tobacco Control intends. I do not think it is what the Attorney General's draftsman, if he or she really thought it through, intends. However, the ordinary and natural meaning of this section is that that is a defence. If it is a defence, the prosecution fails. There are no ifs and buts about that. I know the Minister is taking great comfort from the fact that it will be for somebody else in 2028 to come into this House and explain with a red face on them that they got it wrong.

Gerry Horkan (Fianna Fail)
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It is to imagine that Deputy Donnelly might not be the Minister for Health in 2028.

Michael McDowell (Independent)
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Somebody will be in here and say that it was nonsense, that Senator McDowell was right, and that we are changing it because it is rubbish. Who knows? They may say-----

Gerry Horkan (Fianna Fail)
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You might be President by that stage.

Michael McDowell (Independent)
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On any ordinary construction of this new offence which is being created, it is a nonsense to say that it means anything other than if a 19-year-old produces a driving licence showing him or her to be a 19-year-old, he or she can legally purchase tobacco from a tobacco retailer. That is the law.

Stephen Donnelly (Wicklow, Fianna Fail)
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I thank Senator McDowell for bringing this to our attention. In order to ensure there is no concern among Senators that the concerns raised will come to pass, I will read from section 45 of the Public Health (Tobacco) Act 2002, which is where this comes from. The section in question provides for exactly the same offence in the case of a person under the age of 18. Section 45(1) states:

It shall be an offence for a person to sell a tobacco product ... to a person who has not attained the age of 18 years.

We are removing that to make it 21 years. Section 45(2) provides that "In proceedings for an offence ... it shall be a defence for the person” specified to produce an age card. In 2023, that was expanded to include a passport. That is the law since 2002. It has not caused a problem in 22 years. The 2002 Act will have had the advice of the then Attorney General.

Gerry Horkan (Fianna Fail)
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Does anyone remember who that was?

Stephen Donnelly (Wicklow, Fianna Fail)
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I will leave that to the House. I am satisfied that the Attorney General between 1999 and 2002 was an eminent individual for whom I have great respect. When this Bill was crafted, it will have received advice at the time which was solid because it has held up for 22 years. I am not concerned. It is more or less a copy and paste. It does not add to what is a very reasonable question on the extent to which it is self-evident what the law means when someone produces a fraudulent age card. If somebody came in who, under the law today, under the 2002 Act-----

Michael McDowell (Independent)
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Will the Minister read out the whole of that section?

Stephen Donnelly (Wicklow, Fianna Fail)
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Is the Senator referring to section 45?

Michael McDowell (Independent)
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Does it refer to age card which relates to the person?

Stephen Donnelly (Wicklow, Fianna Fail)
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Yes. Section 45(2)(b) provides that it shall be a defence to prove that "the person specified in paragraph (a) produced to the first-mentioned person an age card, for the time being in force, relating to the person so specified." Essentially-----

Michael McDowell (Independent)
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Relating to the what?

Stephen Donnelly (Wicklow, Fianna Fail)
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An age card "relating to the person so specified". Essentially, it is saying that if somebody comes in with a fake ID, that is a defence - of course it is - for the retailer. I am comfortable that this provision has been successfully used in the course of the past 22 years. There was eminent legal advice from the Attorney General at the time and I am comfortable that it will survive the next 22 years.

Michael McDowell (Independent)
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It does not mean fake driving licences and fake passports. Age cards at the time were introduced for intoxicating liquor to assist people under the age of 21 who wanted to drink to convince bouncers and barmen that it was lawful for them to be served. However, there was no suggestion that this card was a kind of get-out-of-jail-free card in the case of serving alcohol to somebody who could not drink at all, to whom it would be illegal to serve alcohol. Now the Minister is extending the concept and saying that anybody who wants to buy cigarettes can come in with his or her driving licence and say he or she is 19 years of age, and that is a defence. The Minister is now saying to this House that it is all about fake ID, but it is not about fake ID. It is about "an age card, for the time being in force, relating to the person." If the Minister is seriously suggesting that somebody is going to come in with a fake passport to buy a packet of cigarettes, that is an act of forgery and an offence. It is a serious matter. With respect, that is not the meaning of this section.

Stephen Donnelly (Wicklow, Fianna Fail)
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I accept the Senator's bona fides but this was updated again in 2023. Again, it has gone through and is being used by the courts. It is self-evident that if we were to take that interpretation, it would mean it would have been okay up until now and indeed under the existing law we have today - the 2002 Act - for somebody to come in with an age card showing that they were under age and that would be a defence. I hear the Senator. I know his input is in good faith. In time to come, maybe a Minister for Health will have to come in with amending legislation. However, it has certainly stood the test of the past 22 years. It was amended last year and it has not been interpreted in the way that the Senator is concerned about. If I or somebody else has to come back in here, so be it. It has stood the test of a few decades and we hope it will stand the test of a few more.

Victor Boyhan (Independent)
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I move amendment No. 1:

In page 5, between lines 12 and 13, to insert the following: “(c) the person shall not attempt to purchase an alcohol product or a National Lottery ticket (as defined in the National Lottery Act 2013) at the same time as attempting to purchase a tobacco product in the same premises.”,”.

I thank the Minister and the diligent officials behind him who have been following all the bits here. I acknowledge the importance of that, and their significant contribution in assisting him here. As I said at the outset, I will not rehash everything. I made the points and I believe the Minister addressed those points in his opening statement and in our engagement.

Victor Boyhan (Independent)
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I move amendment No. 2:

In page 6, between lines 18 and 19, to insert the following:

“Report on illicit trade

11. The Minister shall, within 12 months of the passing of this Act, lay a report before both Houses of the Oireachtas, including an assessment of the potential implications of the increase in the minimum age of sale of tobacco products to 21 in terms of illicit trade of cigarettes and tobacco products; and recommendation on actions to address such implications.”.

I engaged with the Minister on this earlier and I heard what he had to say.

Gerry Horkan (Fianna Fail)
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When is it proposed to take Report Stage?

Joe O'Reilly (Fine Gael)
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Now.

Gerry Horkan (Fianna Fail)
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Is that agreed? Agreed.

Gerry Horkan (Fianna Fail)
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When is it proposed to take Fifth Stage?

Joe O'Reilly (Fine Gael)
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Now.

Gerry Horkan (Fianna Fail)
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Is that agreed? Agreed.