MLAs yesterday passed a legislative consent motion backing Northern Ireland’s inclusion in the UK government’s Tobacco and Vapes Bill, which will prohibit the sale of tobacco to people born on or after 1 January 2009.

The Assembly had previously voted in favour of a nearly identical bill which failed to progress before the general election last July.

Smoking is the number-one cause of preventable illness and premature death in Northern Ireland and the bill “offers a groundbreaking way in which to address that public health threat”, health minister Mike Nesbitt said.

However, a handful of MLAs questioned whether the measure could be lawfully introduced in Northern Ireland, where the EU Tobacco Products Directive continues to apply as a result of the post-Brexit Northern Ireland Protocol.

The Irish and Danish governments have previously said they have received legal advice that a progressive smoking ban would not be possible within the EU for reasons including the Directive.

Timothy Gaston, the Traditional Unionist Voice (TUV) MLA for North Antrim, said: “I have no doubt that there are those with powerful voices in the industry who will seek to challenge the application of the law to Northern Ireland.”

He highlighted two recent cases in which he said the High Court had “decided that EU law is supreme in Northern Ireland”.

“If, as I suspect, that proves to be the case with this law, it will be scandalous, because, within our United Kingdom, only the people in Northern Ireland will be denied the protections that the bill offers,” he said.

Claire Sugden, the independent unionist MLA for East Londonderry who briefly served as justice minister in 2016/17, made similar remarks.

“Whilst England, Scotland and Wales can take decisive action on matters of public health, we remain bound by EU directives without democratic input or control,” she said.

Mr Nesbitt acknowledged that the Tobacco Products Directive continues to apply in Northern Ireland, but suggested that it would not prevent the proposed law from being implemented.

He quoted Article 24(3) of the Directive, which states: “A member state may also prohibit a certain category of tobacco or related products, on grounds relating to the specific situation in that member state and provided the provisions are justified by the need to protect public health.”

The minister added that it was “for the UK government to make sure that the Tobacco and Vapes Bill is compliant with the Windsor Framework” rather than MLAs.

The legislative consent motion was passed with the support of MLAs from all parties except left-wing party People Before Profit (PBP).

Gerry Carroll, PBP MLA for West Belfast, said “prohibition does not work” and is “a draconian policy that forces the sale of products underground, where there is no regulation whatsoever”.