A SENIOR legal expert will tell a Scottish Parliament committee today that drivers should held liable for people smoking in cars when children are present and not necessarily the smokers themselves.

The Scottish Parliament’s Health and Sport Committee meets today to discuss and hear evidence on the Smoking Prohibition (Children in Motor Vehicles) (Scotland) Bill. As well as calling for driver responsibility yesterday, the Law Society of Scotland has already said the new law will be difficult to enforce.

The intention of the new law is that smokers would be given a £100 fixed penalty notice if they smoked while a child was present in a vehicle. Alison Britton, convener of the Law Society’s Health and Medical law committee, said yesterday: “Of course we support the policy intent behind this bill, and the harmful effects of smoking and secondhand smoke are well-documented. However, as it stands, the proposed legislation places the criminal liability on the smoker rather than driver of the vehicle.

“It is our view that it would be more logical that the driver bear the responsibility to ensure no-one smokes in the car where a child is present, like the legislation that has just been passed in England.

“We would also argue that this legislation is going to be difficult to enforce, and will present challenges under certain circumstances, such as when the car is moving or in heavy traffic. The enforcing officer would need to be able to see the offence taking place and ascertain the age of any child present.”

Details of Police Scotland’s submission were also released yesterday, and the national force questions the diversion of police resources that would take place.

The submission stated: “The Bill proposes that the police will be the sole enforcement authority and it is suggested that this needs to be carefully considered.

“As a public health issue is it proportionate or necessary to justify the use of limited police resources to enforce it? The proposed legislation will only have an impact on public health and, whilst commendable, does not sit comfortably within the Police Scotland policing plan and the force priorities.

“Police Scotland would therefore question the use of police resources to enforce this legislation and their diversion from work focusing on the force priorities such as organised crime and counter-terrorism, for example.”

Tory transport spokesman Alex Johnstone MSP said: “Officers are telling MSPs that bringing this into law could hamper tackling organised crime and terrorism. That’s quite a stark warning by anyone’s standards.

“With the force’s limited resources, we really need officers to be concentrating on more important matters.”

The Law Society says it is pleased that the bill has already been changed to raise the age definition of a child from 16 to 18 and the increase in the age of the offending adult to 18.

It also noted “unexpected but positive results” following the introduction of the ban on smoking inside public places.

It stated: “Compliance was much better than anticipated with both non-smokers and smokers in favour of the legislation. We suggest that from this, it can be inferred that the Scottish public does agree that secondhand smoke is an intrusion and places unreasonable risk on another person’s health and wellbeing and it is this that provides the justification and support for legislation.”

The society also suggested “an important role for both local authority regulatory officers, who enforce existing smoke-free legislation, in working jointly with police on local enforcement activities.”