MLAs yesterday approved a legislative consent motion allowing the Tobacco and Vapes Bill, currently making its way through the House of Commons, to apply in Northern Ireland.

The proposed legislation will make it illegal to sell tobacco products to anyone born on or after 1 January 2009 and will provide powers to allow for further regulatory measures to address youth vaping.

However, it was pointed out in the course of the debate that the Irish government this month said it had received legal advice that a similar “smokefree generation” scheme would not be compatible with EU law.

A press release from Ireland’s Department of Health stated: “Preliminary legal advice suggests Ireland cannot pursue a ‘smokefree generation’ policy as has been suggested in other jurisdictions due to the EU’s single market rules and Tobacco Products Directive.”

Jim Allister, a barrister and sole MLA for the Traditional Unionist Voice (TUV), highlighted a similar statement from Denmark’s health ministry in 2022, which said that “a ban on the sale of tobacco and nicotine products to people born in 2010 or later would require an amendment of the European Tobacco Products Directive”.

He pointed out that the Tobacco Products Directive continues to apply to Northern Ireland as a result of the post-Brexit Northern Ireland Protocol.

“It may well be that the Danes are right and that the Dublin lawyers are right that, because of our subjugation to foreign law, you cannot proceed in Northern Ireland with this bill,” he said. “I have no doubt that there will be legal challenge and that we will, ultimately, get an answer to it.”

Health minister Robin Swann said he had raised the issue with Andrea Leadsom, a junior minister in the UK’s Department of Health and Social Care, earlier in the week and was reassured there was no obstacle to proceeding with the bill.

“Potential EU barriers were considered, in conjunction with the UK government, during the development of the Tobacco and Vapes Bill,” he said. “We remain unaware of any barriers presented by the Windsor Framework to the measures set out in the bill being applied in Northern Ireland.

“I specifically raised that with minister Leadsom yesterday, and she provided me with the reassurance that the work of her and my departmental officials and the legal advice that she has received indicates that that will not be an impediment.”