Lords Sitting of 16 November 2001

Preamble
The House met at eleven of the clock: The LORD CHANCELLOR on the Woolsack.
Prayers—Read by the Lord Bishop of Derby.

Tobacco Advertising and Promotion Bill [H.L.]
Lord Clement-Jones: My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.
Moved, That the House do now resolve itself into Committee. —(Lord Clement-Jones.)
Earl Howe: My Lords, with the leave of the House, I should like to take the opportunity to rise a matter with the Minister. Noble Lords will know that, in its previous incarnation, the Bill was introduced by the Government prior to the last general election. It went through its various stages in another place.
Recently I wrote to the Minister to ask whether ministerial answers and assurances given in another place would hold good, even though the Bill has now been introduced as a Private Member's Bill, albeit in identical form. The Minister was kind enough to reply to me. I believe that, with the benefit of the ministerial answers in another place, noble Lords will be saved a great deal of unnecessary tabling of amendments and argument if we can rely on the statements made by Ministers. I hope that the noble Lord will feel able to respond positively.
The Parliamentary Under-Secretary of State, Department of Health (Lord Hunt of Kings Heath): My Lords, I am most grateful to the noble Earl for raising the matter. It reflects his evident desire to ensure that the Bill passes speedily through its stages. I am glad to confirm the contents of the letter that I have written to him and I undertake to place a copy of it in the Library.
On Question, Motion agreed to.
House in Committee accordingly.
[The DEPUTY CHAIRMAN OF COMMITTEES (Lord Brabazon of Tara) in the Chair.]
Clause 1 [Meaning of "tobacco advertisement" and "tobacco product"]:
Baroness Noakes Baroness Noakes moved Amendment No. 1:
Page 1, line 2, at end insert—
""advertisement" includes in particular any notice, circular, label, wrapper, invoice or other document, and any public announcement made orally or by any means of producing or transmitting light or sound but does not include the use of the name or trading name of a company, person or partnership in the ordinary course of the business of that company. person or partnership,"
The noble Baroness said: I shall begin by degrouping two amendments which have been incorrectly grouped with Amendment No. 1 due to a misunderstanding late in the day. Amendments Nos. 5 and 6 should be taken out of the grouping and should resume their own place in the groupings list. I apologise for any inconvenience caused by this late adjustment.
The reason for degrouping the amendments is that they address a different range of issues from Amendment No. 1.
Lord Naseby: I should like to seek clarification on the position as regards Amendments Nos. 5 and 6, one of which has been tabled in my name. I have only just collected the Marshalled List of amendments from the Printed Paper Office. Am Ito understand that the list is incorrect? If so, could I have a firm clarification that Amendments Nos. 5 and 6 will take their places in the list and will be addressed after the debate on Amendment No. 2? Am I correct in this?
Baroness Noakes: Once again, I apologise to my noble friend for what has taken place. We had thought that a different grouping would have been arranged. However, noble Lords can see before them what has been issued this morning by the Printed Paper Office. I can confirm that Amendments Nos. 5 and 6 will be taken after the debate on Amendment No. 2.
Lord Naseby: A certain amount of confusion has arisen over this matter. Before we start the proceedings, I should like to know, first, why the Marshalled List which I was given only around six minutes ago is incorrect. Secondly, given that I have spent some time in preparation for the debate, as have other noble Lords who wish to take part, before we commence with the day's proceedings I should like to know exactly when the amendments that I have prepared are likely to be taken.
It requires a fair degree of preparation properly to address the Committee on an amendment. I hope that a noble Lord on one of the Front Benches will be able to make it crystal clear at exactly what point the amendment tabled in my name will be taken.
Lord Hunt of Kings Heath: I hope that I can help the Benches opposite to resolve their confusion. I understand that we shall now take the debate on Amendment No. 1, along with a grouping which will include Amendments Nos. 3, 4 and 8. Those amendments will be discussed and Amendment No. 1 will be put before the Committee. Following that debate, Amendment No. 2 will be put before the Committee. Amendments Nos. 3 and 4 will have been spoken to in the grouping under Amendment No. 1. After that, we shall reach Amendments Nos. 5 and 6. I hope that that clarifies the position.
In turn, I wonder whether the noble Baroness could clarify one further point. Are Amendments Nos. 5 and 6 to be taken separately, or will they be grouped together?
Baroness Noakes: Amendments Nos. 5 and 6 are not my amendments. I sought simply to remove them from the grouping under Amendment No. 1. They will be grouped together if the noble Lords concerned wish them to be so grouped or they will be taken individually.
Lord Naseby: Perhaps I may help the noble Baroness on that point. So far as I am concerned, they most definitely should be taken separately.
Baroness Noakes: Having worked through the lack of clarity at the start of our proceedings, perhaps I may turn to Amendment No. 1. Amendment No. 1 and the amendments with which it remains grouped concern, in different ways, the definition of a tobacco advertisement and the limitations on what can and cannot be regarded as a tobacco advertisement.
Not all words in all Acts need to be defined. However, crucial words need to be defined. The noble Lord, Lord Clement-Jones, or the Minister, may well say that a word such as "advertisement" should be given its natural meaning. But the Bill is designed to ban the advertising of tobacco products and creates a number of criminal offences related to tobacco advertisements, which, on conviction, can result in heavy fines or even imprisonment. The Committee would be failing in its duties if it did not create as much certainty as possible about the scope of the Bill. The Bill should be as clear as possible about which matters are or are not within its scope.
Amendment No. 1 deals with the word "advertisement" and seeks to achieve two objectives: first, to set out a definition of the word "advertisement"; and, secondly, to give a specific exclusion for names or trading names. I move the amendment, not with the certainty that it is 100 per cent perfect in its coverage but on the ground that it is better than no definition. I hope that the Committee will use it as a starting point for the debate and to clarify what the Bill seeks to ban.
The amendment begins with a definition of "advertisement", which I have borrowed from the Food Safety Act 1990. It defines an advertisement as,
"any notice, circular, label, wrapper, invoice or other document, and any public announcement made orally or by any means of producing or transmitting light or sound".
That is not an exhaustive definition. It includes the items I have specified but is not limited to them.
I had doubts about "label" or "wrapper", but I can see that they could be used to promote tobacco products in much the same way as, for example, a brochure. Hence I have left those words within the suggested definition. Amendment No. 4, which will be moved later by my noble friend Lord Naseby, seeks to exclude packaging of a tobacco product from the meaning of "tobacco advertisement". I look forward to hearing what he has to say.
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Similarly, I hesitate over "invoice", which is a document from the dry old world of accounting and book-keeping. However, it may be possible that an invoice could be used as an advertisement. That is why I have left it in the definition, although a later amendment seeks to exclude such items.
I hope that I have made clear that I put the definition forward with some humility. I should be glad to consider suggestions for improving the definition. However, the principle that we should define words which are critical to the offence being created is important.
I have dealt with the first part of Amendment No. 1. The second part excludes from the definition of "advertisement" the use of the name or trading name of a company, person or partnership in the ordinary course of the business of that company, person or partnership. The point is simple. I hope that it will not be seen as much more than a drafting amendment for the avoidance of doubt. I hope that no one will expect the Bill to remove a company's right to use its own legal name or trading name, for example, in company documents or on websites.
Let me explain what the amendment seeks to do. Companies often use their own names as part of the branding of their products, and sometimes those names are used to brand several, or even all, of the products in which a company trades. To give an example close to my heart—or, rather, my wallet—Chanel is a company which gives its name to quite distinct products, for example, handbags, perfumes, dresses and quite a lot more that I have not yet learnt how to spend money on. Let us suppose that the Government wished to outlaw handbags. Would the use of "Chanel" on a bottle of perfume be regarded as a promotion of handbags? Would the use of "Chanel" on the company's invoices be regarded as the promotion of handbags? I hope that the Committee agrees that that would be a nonsense.
So, too, with tobacco products. I hope that the Committee agrees that it would not be right for the proposed ban on tobacco advertising to be used to stop, for example, Dunhill using its own name for its own corporate purposes or for its wide range of luxury goods other than tobacco products. We shall be discussing some aspects of this issue when we come to the brand-sharing provisions of Clause 11.
The aim of the amendment is to allow companies, individuals and partnerships to use their own names in the ordinary course of their business without fear of it being deemed an unlawful tobacco advertisement. Although drafted in a different way, Amendment No. 8, to be moved by my noble friend Lord Naseby, seeks to achieve much the same effect.
Amendment No. 1 and the other amendments in the group seek to achieve clarity and the avoidance of doubt. I look forward to other noble Lords speaking to their amendments and to hearing the comments of the noble Lord, Lord Clement-Jones, in relation to this one. I beg to move.
11.15 a.m.
Lord Naseby: I speak to Amendments Nos. 3 and 4. As I do so—and as I shall be speaking to a number of amendments today—the Committee may appreciate it if I make a couple of general remarks which affect these two amendments, particularly, and later ones.
First, I come to this House as a life Peer, an appointed Peer. The number of colleagues who are present today is an indication that it does not need elected Peers to carry out a good revising role in your Lordships' House.
Secondly—I re-emphasise the point—I have absolutely nothing to declare. I am not a smoker. I think the last cigar I smoked was some 17 years ago. On our way to the House this morning my wife could not remember exactly when it was, but it was a long time ago. I do not smoke. I have never during my 30 years in Parliament had any pecuniary involvement with any facet of the tobacco industry, however it may be described in this or any other Bill. Being married to a retired GP, I certainly acknowledge that tobacco kills.
I also come to the Committee with 20 years of experience in advertising. I therefore offer to the Committee, in these amendments and others, some of the experience of those 20 years. It may, of course, be a little dated: nevertheless, I believe the basic rules of advertising do not change very much. Those are important points.
In relation to the amendments, we must also think about consistency of approach. Although this is a Private Member's Bill, we just heard an interchange between the Front Benches to the effect that the undertakings given when the government Bill was introduced hold true. Therefore, government announcements that impinge on the Bill must necessarily be taken into account.
In that regard, the downgrading of cannabis is relevant. Perhaps we may have some clarification. I believe that, if it is downgraded, there is nothing to stop anyone producing a brand. If that is the case, the Government will be concerned to ensure good manufacturing practice rather than back-street production. Those points are relevant. If the approach is to go even further, to cover Ecstasy and other drugs, that will impinge on the Bill.
Turning from the general to the particular, my Amendment No. 3 seeks clarification. First, paragraph (b) in Clause 1 refers to the "effect" of an advertisement—that is the key word—even though the purpose was not to promote a tobacco product. One can sit down and devise a clear strategy of what one is trying to achieve, but, since this is an art rather than a science, one cannot always know that the results will be what one has set out to achieve.
The draft European directive on tobacco advertising uses a slightly different definition. The draft directive describes offending tobacco advertising as advertising which,
"has the aim or direct or indirect effect of promoting a tobacco product".
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So there is no consistency there. Indeed, this morning I received a briefing document from the European Parliament, dated 1st November. Perhaps I may quote from page 20 of the document. Under the heading "Combating Smoking", it sets out:
"The EU position for the 3rd negotiating round for a WHO Framework Convention on combating smoking".
It states that the debate took place three days ago, and continues:
"MEPs will vote on a draft resolution submitted by the Committee on the Environment, Public Health and Consumer Policy in preparation for the 3rd negotiating round for a World Health Organisation Framework Convention to combat smoking".
So by the time we reach only the third amendment, we have the extraordinary situation where a Bill before the Committee, following a previous Bill, contains different definitions from that of the European Parliament, which in itself is having to be "shoehorned" into a WHO initiative. Presumably the intention is to have a WHO framework convention. It seems to me that that ought to be the driving force, rather than a Private Member's Bill in this place. There is a similarity between the EU approach and this Bill. However, that does not necessarily make either of them right or sensible.
Perhaps I may dwell for a few moments—reflecting on my previous incarnation before being elected to the other place—on the purpose, or the intended "effect", of an advertisement. Many Members of the Committee may not be aware of the exact thought processes and skills that go into the creation of an advertisement. First, before anyone tries to produce any form of advertisement, however defined, he must sit down and produce a brief—what is it that the client wants to achieve? What does the client wish to communicate to a particular audience? That is not something that can be dashed off in a couple of moments. It is debated at great length with the client. It may take several months to evolve. It may be part of the corporate strategy; it may merely be part of the brand strategy. But it will be part of the refining process: what the client is trying to communicate.
Secondly, he must determine who is the object of the communication. The vast majority of advertising is not blanket advertising. It is targeted at a particular audience. In its most direct form, it can be a letter from one individual to another. In a direct mail sense, it may be from a list system. Posters are a good example. Most noble Lords will have passed posters while coming to the House this morning. Posters are not geared to every single person who passes them. They will have been sited to ensure that the target audience is the most likely to see them. So we cannot just assume a blanket approach.
In weighing up the amendment, it must be remembered that the intended effect of an advertisement will have been thought out in great depth. But, inevitably, not everyone gets everything right. We find that the purpose of the advertisement is usually very clear, but whether its effect is clear is another matter altogether.

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I recall a brand in the tobacco world called "Strand". I am going back perhaps 30 years—I am not a smoker, but those who are may remember it. I cannot remember which company introduced it. But I do remember the "strap line": it was,
"You're never alone with a Strand".
There was a chap in a mackintosh and I think it was raining. The effect was to say, "If you've got a Strand cigarette and you're on your own, you have a companion with you and you'll feel better". I think that was probably the strategy. But the brand was a complete failure, even though it was backed with a large amount of money. Although the tobacco company that had devised the brand had given a brief to the advertising agency, approved the creative work and seen the posters go up, the whole thing was an absolute flop. Even in those days it must have cost £1 million plus. Today, we should be talking about £20 million or £25 million. So the effect bore no relation to the purpose. I suggest to the Committee that one must be very careful when considering the word "effect".
Although one does not know the "effect" of an advertisement, according to the Bill as drafted if the effect is the promotion of a tobacco product, it will be an offence under the Bill and will carry severe penalties, which are set out in Clause 16. A person who is guilty of an such an offence is liable,
"on summary conviction to imprisonment for a term not exceeding six months, or a fine not exceeding level 5 … or … on conviction on indictment to imprisonment for a term not exceeding 2 years, or a fine, or both".
Someone may have created something they think will achieve something, but under Clause 16 of the Bill they could be liable for some fairly swingeing penalties.
11.30 a.m.
Earl Russell: Does the noble Lord think that judging the effect is more difficult than judging whether conduct is liable to provoke a breach of the peace which the common law does daily?
Lord Naseby: I am not a lawyer and therefore I do not know the answer to that question. However, it is a question that should be posed and it is certainly worthy of debate.
It may be argued, in relation to what I have been saying on Amendment No. 3, that all one has to do is look at subsection (2) of Clause 5 which provides a defence requiring the person,
"to prove that he could not reasonably have foreseen that that would be the effect of the advertisement".
However, it is not at all clear how proof of the effect could be provided, let alone how it could be proved that the effect could not have been foreseen.
Whereas it has generally been straightforward to establish whether the purpose of an advertisement is to promote a product or service or company or whatever, it will not in my judgment generally be possible to demonstrate that although it was not the purpose, the effect was to promote a tobacco product. In the
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absence of any supporting data that can largely be only a subjective judgment. I submit to the Committee that we should not contemplate putting on to the statute book matters based on subjective judgment.
It seems to me that the relevant consideration is to consider the purpose of an advertisement. If it can be reasonably foreseen that the promotion of a product is the effect of an advertisement, that is the purpose of the advertisement. Rather than be concerned with the effect of an advertisement, the proposers of the Bill should in my judgment be more concerned to ensure that there is more certainty—certainty is what we in our revising role in this Chamber should be concerned with—in the application and enforcement of the Bill's provisions on advertising. The removal of paragraph (b) of Clause 1—as Amendment No. 3 proposes—would clarify what is and what is not to be regarded as an advertisement.
With the leave of the Committee I now turn to my Amendment No. 4, which is a fairly long amendment. Some may ask why I bothered to include all its provisions. In my judgment the Bill would be better if it was more explicit. I refer to the precedent of much other UK legislation that is explicit. Therefore, there is the precedent of many Bills passed by Parliament that are explicit. I do not see any reason why this particular Bill should not be explicit. It is not sufficient that the words in the Bill should be left as they are. I understand that the measure will have "a natural meaning" according to the phrase used in the government Bill. If that is not to be the case, it is important that the Bill states what does not constitute tobacco advertising. The amendment seeks to say exactly what does not constitute tobacco advertising. In the commercial world people need to have a degree of certainty.
Parliament has decided that it is perfectly legal to subsidise the growing of tobacco as we are a member of the EU. We ensure good manufacturing standards for the production of tobacco. Therefore, when it comes to the selling of it, we need to know what is or is not an advertisement. The amendment is geared to describing what is not a tobacco advertisement. The approach of clarifying what kind of things do not comprise tobacco advertisements is adopted in the legislation of other countries and member states of the European Union which ban tobacco advertising. On Second Reading the promoter of the Bill mentioned a number of countries that had banned tobacco advertising. I am not sure why he did not mention Norway where consumption increased after tobacco advertising was banned, but perhaps that did not fit his case. Perhaps the effect was different from the purpose in Norway. We can perhaps debate that later.
The amendment uses the template of the Guernsey tobacco advertising law of 1997. Therefore, it is not a Lord Naseby special; this is something that is already on the statute book. The buzz word now is "template". If you have a template, you are halfway there, or at least you hope you are. I am not sure that the promoter of the Bill is listening to what I am saying, which is a little distressing. Therefore, I shall repeat that sentence. I refer to the Guernsey tobacco advertising

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law of 1997. Obviously, the promoter of the Bill will have wanted to get hold of a copy of it. I imagine that he already has one; if not perhaps one of his noble friends will make sure that he gets one before he speaks to the amendment.
When the Bill was considered in the previous Parliament the Minister in another place argued that to provide a narrow definition of "advertisement" would risk creating loopholes in the Bill. That is not the view that Parliament has taken on other legislation. I venture to suggest that that is a rather sloppy approach. If I may put it this way, it is a sort of commercial approach, whereas here we act as legislators and not commercial people. At the same time, however, the Minister in the other place confirmed that certain things were not regarded by the Government as advertisements. That may be covered by the letter that is to be placed in the Library. I am perhaps at a disadvantage in that I am not able to go there to collect the letter. In another place one always had a colleague who could nip out to get such things.
Lord Hunt of Kings Heath: I wonder whether I can help the noble Lord. In the letter to the noble Earl, Lord Howe, I simply confirmed that statements given by government Ministers during the passage of the previous Bill in the other place still stand.
Lord Naseby: I am most grateful to the Minister for pointing out what the letter states. Perhaps the Minister can recall—I cannot—whether the Government defined what they regard as not constituting an advertisement when that Bill was discussed. Did the Government ever define that? I see from a shaking of heads that it has not yet been defined. However, what is clear is that at some point the Government were of the mind that certain things did not constitute advertisements. That is crystal clear. That stake is in the ground.
Lord Peston: The noble Lord is new to our Chamber and I appreciate that he does not fully understand our traditions. However, it is not customary to speak at such inordinate length on an amendment of this kind. It is customary in this Chamber to speak to the point. I have sat here patiently. The noble Lord looks as if he will continue speaking for quite a while. I just feel it would help him if he knew a little more about how this Chamber typically operates.
Lord Naseby: The noble Lord is entitled to his view.
Lord Peston: I am not expressing my view; I am expressing what we all recognise as part of the great traditions of this great House of Parliament, which is not to speak at inordinate length. If the noble Lord followed the example of his noble friend on the Front Bench, who was succinct and to the point, he would understand how we typically behave in this House.
Lord Naseby: I am most grateful to the noble Lord for his view, to which I shall obviously listen. I have already covered one amendment and I do not think
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that I have been speaking at inordinate length. A fair amount of clarification has been necessary. Even the Minister felt it right and correct to intervene. I gave way to him, which I think is in the traditions of this House. If I was out to rush my speech, I would not give way to anybody, but that would not be in the traditions of this House either. If the noble Lord wants to take a real interest in the Bill, he should bear in mind that I have done a lot of work on it and I believe that a major principle is at stake. I have explained the background, which I shall not repeat on any other amendment. I recognise the traditions of this House just as much as the noble Lord does. That is why I am, unusually, here on a Friday.
Lord Marsh: I apologise for intervening when I have not been here throughout the noble Lord's speech, although I heard him start. I shall say only that, considering the traditions of the House, I was dumbfounded when I came back and found him still talking to the same amendment.
Lord Naseby: With the greatest respect, I am not talking to the same amendment. I started with Amendment No. 3 and I am now on Amendment No. 4. The two could not be more different. I am sorry if the noble Lord missed the fact that there were two amendments.
I was just finishing. At the same time, the Minister confirmed that certain things were not regarded by the Government as advertisements. The list in the amendment would help the House to produce a Bill to establish exactly what is not an advertisement.
Lord Monson: In defence of the noble Lord. Lord Naseby, he has been speaking to two separate amendments. I wonder whether he was consulted about the grouping. I was not consulted and I am pleased that Amendment No. 5 has been degrouped. The noble Lord has a right to speak fully on Amendment No. 3 and Amendment No. 4 Why should he not do so?
Lord Skelmersdale: I must confess that I feel that I have been witnessing the activities of two rather soporific goats. That may be because I have a filthy cold, so I shall curtail my remarks as much as I can.
I am confused. On the one side, we have the Explanatory Notes, which say simply that "advertising" is to have its natural meaning. Bang—that is it; advertising is advertising, full stop. On the other hand, the amendments would broaden the definition. I tend to go along with my noble friends who have tabled the amendments, because of the Medicines Act 1968, which I am sure that the Minister, and possibly even the noble Lord, Lord Clement-Jones, have engraved on their hearts. That Act provides a perfectly good definition of what is and is

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not advertising. The Minister smiles, so perhaps he is going to use that definition, in which case I do not need to read it out. Is he going to use it in a minute?
Lord Hunt of Kings Heath: No.
Lord Skelmersdale: In that case I shall not be so inhibited.
The Act says:
"'advertisement' includes every form of advertising, whether in a publication, or by the display of any notice, or by means of any catalogue, price list, letter (whether circular or addressed to a particular person) or other document, or by words inscribed on any article, or by the exhibition of a photograph or a cinematograph film, or by way of sound recording. sound broadcasting or television, or in any other way, and any reference to the issue of an advertisement shall be construed accordingly".
That is very close to Amendment No. 1.
The Act goes on to say:
"Except as provided by section 95 of this Act"—
which has nothing to do with the issue—
"for the purposes of this Part of this Act neither of the following shall be taken to constitute the issue of an advertisement, that is to say —
(a) the sale or supply, or offer or exposure for sale or supply, of a medicinal product in a labelled container or package".
I have never heard of that formulation giving problems in the sale of medical products. Why did the Government decide to produce such an incredibly brief description of what the Bill is all about—that "advertisement" should have its natural meaning?
11.45 a.m.
Lord Lucas: If anyone thought that smoking causes shortness of breath, I think that they will be disabused today.
I advise my noble friend Lord Naseby not to pursue his Amendment No. 8, which is in this group, because it would permit web marketing by the use of what is known as affiliates, which would drive a coach and horses through the Bill. I am sure that that is not his intention and I wish to persuade him that it would be inappropriate to proceed with the amendment.
Lord Filkin: I am grateful to the noble Baroness, Lady Noakes, for her careful explanation of her amendment and the tone of her presentation. She has attempted to define what should count as an advertisement. The Government do not believe that that would be helpful or sensible.
"Advertisement" should be allowed to carry its natural meaning. It is usual for words to bear their natural meaning in legislation. To seek to qualify them risks creating loopholes.
The principle of the Bill, which we shall return to on a number of occasions, is to set out a broad offence and then provide defences or exemptions as appropriate. The Government's view is that legislation should not provide a comprehensive list of every detailed type of advertisement that might be possible.
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The decision to let "advertising" have its natural meaning is consistent with the normal principles of drafting UK legislation. This is domestic legislation, not European legislation, so it should follow British and UK principles rather than European practices. I am sure that many of your Lordships would concur with that.
The Bill does not attempt to interfere with the normal business of tobacco companies. Promoting their business by printing their name on a letterhead that is used for individual communication is not the mischief covered by the Bill.
The provisions on brand sharing would enable the Government to consult on the regulations to be made under Clause 11. The regulations would provide the clarity that is naturally sought.
Baroness Noakes: Will the Minister clarify what he has just said? He said that the Government do not intend letterheads and the like to be included, but he also said that that would be covered by the brand sharing clause. How could the brand sharing clause be used to cover examples relating simply to the name of a company on a letterhead, not its association with any other product?
Lord Filkin: I am sorry that I have perhaps not been as clear as I should have been. The two points were separate. There is no intention of interfering with the normal business of companies. Promoting their business by printing their name on a letterhead that is used for individual communications is not the mischief covered by the Bill.
Baroness Noakes: I am sorry to ask the Minister to give way again. If that is the Government's intention, why will they not accept a specific amendment to that effect? As I tried to explain earlier, it is possible that the use of a name could be deemed to be promoting a tobacco product. I believe that companies deserve the clarity, or the certainty, of knowing that using their own names could not possibly lead to problems in that regard.
Lord Filkin: I do not believe that it would be either wise or sensible to do so. The noble Baroness, Lady Noakes, has a point in that there are circumstances in which a company, by using its name allegedly in the promotion of its normal business activities, could have the effect of promoting tobacco consumption. Therefore, we do not believe that it is right to seek to go so far as has been proposed.
Lord Naseby: With regard to what the noble Lord has just said, is the name of a company synonymous with its logo? Today, most correspondence from most companies carries the company logo. It would be rare to see "XYZ Limited" written simply in normal typeface. Usually, a logo appears. Am I to understand that the Minister is saying that the name, logo, address, and telephone and fax numbers are not covered by the Bill?
Lord Filkin: No. I was seeking to make clear that a tobacco company, in pursuit of its legitimate

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commercial business, corresponding with other companies about its products or business activities and no doubt, in many cases, having its logo on its notepaper, would not be caught by the Bill if it was genuinely going about its normal commercial business. The mischief which would concern the Government if such legislation were to be passed would be if the company sought to use its name in a wider context specifically to promote tobacco consumption
Baroness Noakes: I am sorry to ask the noble Lord to give way again. I am grateful to him. Can he clarify whether that means that he is, in effect, depriving companies of the right to use their own name in the ordinary course of their business?
Lord Filkin: I do not believe that I could have been clearer on the point. A company that genuinely goes about its business has no fear whatever of being caught by the Bill. If one speculated—I regret having to do so but I am trying to make the point clear—that Bloggs Tobacco Company sought to put on its vans "Bloggs Tobacco Company—Cigarettes are Marvellous", it would be argued that that would fall within the Bill. But if Bloggs Tobacco Company merely wrote to others about its normal commercial activities, it would have nothing whatever to fear from the Bill. I do not believe that further interruptions will do other than elicit a repetition of what I have said on a number of occasions.
I now turn to Amendment No. 3 in the name of the noble Lord, Lord Naseby. I shall resist—tempting though it is—the temptation to debate the House of Lords or to debate cannabis, which is an illegal drug and continues to be so, but shall focus on the thrust of the amendment.
Amendment No. 3 would remove from the scope of the Bill advertisements which are not intended to promote a tobacco product but which have the effect of doing so. In practice, most tobacco advertisements are intended to promote the product. We think of billboards or whole-page advertisements in magazines, and we think of the millions of pounds spent on sponsorship or coupon schemes peddled by tobacco companies.
Yet the Bill should be comprehensive if it is to achieve fully any aims of reducing tobacco consumption. To that end, in the Government's view, it would need to include any advertisement that might encourage people to start smoking or undermine their resolve to give it up. That is why it is right that Clause 1 sets out two arms to the definition of "tobacco advertisement". It is possible to envisage an advertisement for something else—perhaps a fast car in which the driver is seen smoking an identifiable brand of cigarette as he puts his foot on the accelerator. If such an advertisement is proved to have the effect of promoting a tobacco product, it is right
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that it should be caught by the e-ban. However, the onus would be on the prosecution to prove beyond doubt that the advertisement had that effect.
Baroness Knight of Collingtree: I am following the noble Lord most closely. I am sure that he is as anxious as I am that the legislation agreed by this Chamber is fair to all. In the context of his remarks, can he give a single example of any pursuit which is not illegal but is prevented from being advertised? This is a major point that worries me. I understand that the noble Lord is striving not to make the matter too difficult for companies. But surely the basic point is that, whether or not we agree with the fact—I am not a smoker and never have been—smoking is legal. How can it then be right to say that one cannot advertise the product?
Lord Filkin: I am very grateful to the noble Baroness for what I consider to be a helpful intervention. It reminds us why this legislation was introduced initially by the Government and why the Government are still of the view that it is of central importance. If I remember correctly, in the Second Reading debate on the Bill a comment was made that if tobacco had only now been discovered, it is inconceivable that it would be allowed to be consumed, given that it is a product that kills half of the people who persistently smoke it. It is almost beyond doubt that any government would allow that to happen. But tobacco was not discovered now; as we know, it was discovered in the 16th century.
That goes to the heart of the careful balance that the Government sought to strike when they drafted this legislation. They sought not to interfere with the liberty of an individual to persist in smoking if he or she so wished after, no doubt, seeing all the medical advice to the contrary. On the other hand, they sought to make it as unlikely as possible that people who had not yet taken up smoking would do so. They also sought to make it as likely as possible that those who wished to give up smoking—70 per cent of people who smoke say that they wish to give up—would be helped to do so. That accounts for the nature of the Bill.
Tobacco is a product which is a killer, and 120,000 people a year die from consuming it. Therefore, without wishing to repeat myself, the Government are seeking not to interfere with people if they wish to persist in smoking it; nevertheless, they want to offer opportunities for reducing its consumption. I am grateful to the noble Baroness for giving me the opportunity to return to that basic point.
I turn to the debates about definitions. The noble Lord, Lord Skelmersdale, raised the matter of the main definition of advertising as set out in the Medicine Act. In practice, that is very general; the Medicine Act is more than 30 years old. The Bill needs to focus on what is necessary to the provisions and the purpose that I have just set out. We know that the job of the tobacco industry is to promote its product and to make a profit. Naturally, it will be adept at getting around legal provisions. For that reason, the Government structured the Bill that they introduced originally in the way that they did—that is, they sought a general blanket prohibition with some specific and clear exemptions.

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I believe that the noble Lord, Lord Naseby, pointed out that in the draft European legislation advertising may be defined. It is slightly novel to hear the noble Lord advocating in this Chamber the benefits of European legislation, but I leave that to one side.
Lord Naseby: I was a member of the European Movement before I joined this House. I remain a committed member and am keen that our country should join the euro and be a full member of the Community. I am disappointed that the Minister did not know that before he made an assertion across the Chamber. I suspect that he was marginally distracted by my noble friend's very worthwhile intervention.
In relation to Amendment No. 3, he was about to explain to me why he was not satisfied only to have paragraph (a) in Clause 1 and why he felt that it was necessary to have on the face of the Bill the word "effect". That word is not definitive in my description. I sought to be as brief as possible. If I had set about making a particularly long speech, we should have been here for a very long time. I thought that I made a very concise speech. Nevertheless, I shall be guided by the Committee. Perhaps the Minister can answer the questions raised in my amendments.
12 noon
Lord Filkin: I hear very clearly and with some trepidation the implied threat to the Committee about speedy processes. I am delighted to be corrected by the noble Lord and to recognise his commitment to a progressive approach to Europe. I accept his point.
I shall seek to answer the noble Lord's second point. Clause 5(2) provides a defence for anyone who innocently publishes,
"an advertisement whose effect is to promote a tobacco product".
It provides that it is a defence for a person who is charged with an offence in connection with such an advertisement to,
"prove that he could not reasonably have foreseen that that would be the effect of the advertisement".
For that reason, the amendment appears to the Government to be unnecessary. The Bill, as introduced by the noble Lord, Lord Clement-Jones, contains clear protection against the danger to which the noble Lord, Lord Naseby, drew our attention.
Amendment No. 4, tabled by the noble Lord, Lord Naseby, lists various items that should not be capable of being a tobacco advertisement. If the meaning of "advertisement" were circumscribed in that way, there would be a risk of creating gaps in the advertising ban. I therefore advise the Committee that the Government would find difficulty in supporting the amendment.
We heard about the situation in Norway but I do not think that that is particularly germane. We are discussing UK legislation, not Norwegian legislation. In the Government's view, advertising should have its natural meaning, as is the tradition of legislation in this country.
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In the Government's view, a tobacco product itself does not constitute an advertisement; nor do cigarette packets presented in the familiar way with the logo or colour scheme of a particular brand. However, it might be that if tobacco manufacturers sought to change the design of cigarette packets to make them particularly attractive to potential purchasers or as collectors' items, they could constitute an advertisement. Similarly, if packages were arranged in a shop window in a particular way—for example, Marlboro packets might be arranged in the shape of a chevron—that might amount to an advertisement.
As regards letterheads and suchlike, I refer Members of the Committee to what the Minister for Public Health said in committee in another place in connection with the earlier government Bill. She said:
"Companies promoting their business by printing their name on a letterhead … is not the mischief at which the Bill is aimed".—[Official Report, Commons Standing Committee A, 30/1/01; col. 26.]
Furthermore, we do not consider inscriptions such as "tobacconist" on the outside of shops to be an advertisement; nor would the name of a company on the side of a van be an advertisement. However, if the van was to have an advertisement for a tobacco product emblazoned on its side, that would clearly constitute an offence.
Paragraph (v) of the amendment appears to seek to limit the scope of the Bill to those tobacco advertisements whose purpose is to promote a tobacco product and to remove from its scope those advertisements which, although not intended to promote tobacco products, have the effect of doing so. In the Government's opinion, they would be a serious mischief, given the potential damage that could be consequent on it. For the reasons that I gave earlier, we do not think that the amendment is sensible.
Amendment No. 8 seeks to circumscribe the definition of "advertisement" by listing some matters that would be excluded from the Bill's scope. Again, that risks creating loopholes. For the fundamental reasons that I gave earlier, it is not, in the Government's view, a wise or sound amendment.
There is no intention to prevent tobacco companies from using headed notepaper or a compliments slip with a logo or crest; they currently do so in the same way as any other business. If, however, they changed their stationery in such a way that it promoted particular brands, and if that was distributed widely to hundreds of thousands of people, it could constitute an advertisement.
To create an exception involving the factual and written information about tobacco products could also create undesirable loopholes. If people want detailed information about tobacco products they are free to contact the manufacturer. Any response so given would, were the Bill enacted, be protected under the exception in Clause 4(1)(b). The most important factual information probably comprises tar and

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nicotine levels, which is required by law to be displayed on packets. To agree to paragraph (b) in the amendment would permit the possibility of billboards listing the names of tobacco products and it would drive a coach and horses through the Bill. In the Government's view, it is not a wise amendment.
Lord Lucas: I want to pick up the Minister's point that it is a defence under Clause 5(2) to prove that one,
"could not reasonably have foreseen that that would be the effect of the advertisement".
As the Minister pointed out, there is the well-established—but, fortunately, not very frequent—pattern involving an absolute offence and a conditional defence. One can put the prosecution on their mettle merely by producing a reasonable assertion that one did not know and,
"could not reasonably have foreseen",
the effect. However, the comeback to that is to ask, "Did you take the precautions that you should have taken to enable you to foresee what the effect of the advertisement was?". That would involve all sorts of people, including ordinary retail newsagents, those who bulk print magazines and those who duplicate films, who might have to inspect every frame in a film to ensure that nothing in it might be construed as a tobacco advertisement. We shall later come to other effects but it is best that the Minister recognises that Clause 5(2) does not involve an easy defence. One does not simply have to raise a doubt that one could reasonably have known that a tobacco advertisement was involved; one cannot simply say, "Well, how could I have known that?". One cannot do so because the comeback is to ask, "Did you take the necessary steps to establish that it was not a tobacco advertisement?". Such a proof places a large burden on people. It is necessary to look at the burden that one is placing on people in order to be able to say in court, "I reasonably did not know the effect would be to promote a particular tobacco product". As the noble Lord said, that might involve merely someone smoking a cigarette half-way through a film on television.
Lord Peston: The noble Lord, Lord Lucas, put his finger on an important matter but it has exactly the opposite effect to that which he suggested. I am reminded of the great film "Now Voyager" and its marvellous ending, which involved two cigarettes. The point is that anyone who regards that as tobacco advertising neither knows the natural meaning of the word "advertising" nor is willing to appreciate the significance of the clause. The noble Lord is right. Clause 5(2) is absolutely fundamental to all sorts of questions, including those raised by the noble Baroness, Lady Noakes. However, it seems to cover in a reasonable manner the fears that he raised. Is he really saying that we should stop that Bette Davis film from being shown because of its marvellous ending? The idea is preposterous. If we are to have such a debate this afternoon, we shall never finish.
Lord Filkin: I shall deal with the point made by the noble Lord, Lord Lucas, and the comment of my noble friend Lord Peston. We shall later come to smoking in films. I can give the Committee some relief. We shall still be able to watch "Casablanca" and the distributors of that film have nothing to fear from the Bill.
I understand the concern but I believe that it is misplaced. The courts will not lightly convict people of an offence under the Bill in the proposed circumstances. The prosecution has to put the case but the defence does not have to prove it. The prosecution has to prove beyond reasonable doubt that the defence has not been established. For the reasons that I gave earlier it is right and necessary—and not unusual —for legislation to be structured in that way. It would not help the noble Lord if I went into more detail at this point.
Lord Clement-Jones: By most standards, this has been an extended debate, although some clearly think it has been relatively short. That does not bode well for the Committee's progress.
Essentially, we have been discussing a definition of advertising: what is an advertisement? The noble Baroness, Lady Noakes, admitted at the start of her remarks that it is usual practice—and, effectively, sound drafting practice—to allow words to bear their natural meaning. The big question is whether we should allow the word "advertisement" to have its natural meaning. The Government's judgment when framing the previous Bill and our judgment on these Benches is that there is insufficient ambiguity about the word "advertisement" to agree to amendment of the definition.
Any attempt to delimit the word "advertisement" in the Bill in the ways suggested by the noble Baroness and the noble Lord, Lord Naseby, would risk leaving off the list something that could clearly be regarded as an advertisement. So it would do precisely the opposite of what we all want from the Bill: a reasonable use of the words that would be defined and refined, if necessary, by the courts, if there were dispute. I am a lawyer myself—some Members of the Committee may regret that fact as the Bill passes through the Chamber. Lawyers are used to defining matters such as what is an advertisement.
I know that many good things come from Guernsey, but I must disagree with the noble Lord about the merits of his list. The whole point of not exempting letterheads, as would several of the amendments, is precisely to ensure that we do not start dancing on the head of a pin. The whole idea is to ensure that where something is an advertisement, we catch it. If we start accepting letterheads and so on, and they are used for brandsharing advertisements, we will clearly not fulfil the purpose of the Bill. The question is factual: what is an advertisement? Neither Amendment No.1 nor Amendment No.4 fit the Bill in that regard. I turn to

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Amendment No.3, also tabled by the noble Lord, Lord Naseby. We discussed intention and effect. The European directive is remarkably close in legal terms to the Bill. The noble Lord quoted the words,
"aim or direct or indirect effect",
from the European directive. Allowing for translation, and for the fact that we are one member state among a large number in the EU, that is spot on. The noble Lord cannot really pray the directive in aid as a reason for deleting the word "effect".
Lord Naseby: The noble Lord confesses that he is a lawyer. Is he really saying that when two definitions are not identical, he as a lawyer, and others of his profession, could not provide an analysis that produced a difference between them? If the two definitions are so similar, why does he not use the EU definition?
12.15 p.m.
Lord Clement-Jones: If the noble Lord can tell me the difference between "aim" and "intention" by the end of today's debate, I shall be delighted to hear it.
The amendment would remove from the scope of the Bill those advertisements that are not intended to promote a tobacco product but that have the effect of doing so. Of course, most tobacco advertisements are intended to promote the product. Billboards, whole-page advertisements in magazines, Formula 1 sponsorship and coupon schemes are all part of that process. If the Bill is fully to achieve its aim of reducing tobacco consumption, it must be comprehensive. To that end, it must include any advertisement that may encourage people to start smoking or undermine their resolve to give up.
That is why it is right that the definition has two arms, as the Minister described them. His description of an advertisement for a fast car, the driver of which is seen smoking an identifiable brand of cigarettes as he puts his foot on the accelerator, illustrates the question. The question of effect is again not difficult for a court to elucidate. As the Minister again made clear, there is a defence under Clause 5(2). Of course we shall later debate the question of onus of proof. I am sure that we shall have an extended debate with the noble Lord, Lord Lucas, and others on that subject. But we shall come to that later. The question is: does Clause 5(2) provide a defence to that specific limb of the definition of advertisement? The answer is yes.
I hope that the Committee will agree that it would be counterproductive to create such a loophole. It is just as likely that we will be considering the effect of advertising as that we will be considering its intent. In fact, it will probably be more straightforward to determine its effect than to determine its intention.
I hear what the noble Lord, Lord Naseby, says about the brief that an advertising agency will receive. However, after the revelation of documents to the Health Select Committee, I am sure that no such briefs will be written down. It will be difficult to get hold of
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a brief for an advertising campaign for a brand of cigarette abroad. We shall not be able to obtain such evidence of intent.
I turn to Amendment No. 8. It was interesting that the noble Lord, Lord Lucas, intervened to speak to that amendment. The words "coach and horses" were used by both the noble Lord and the Minister. There is indeed no justification for granting such a wide-ranging exception to the comprehensive ban on advertising that is envisaged under the Bill. Evidence from the World Bank has shown that for advertising bans to be effective, they must be as comprehensive as possible. I do not propose to accept Amendment No. 8 or Amendments Nos. 1, 4 or 3.
Lord Naseby: The noble Lord will note that I have not yet spoken to Amendment No. 8. That is because I thought that the Minister would respond to it; he indeed responded to proposed new paragraph (a) of the amendment. I was broadly satisfied with his answer, although there appears to be some confusion over the word "logo". I am less clear whether the Bill's sponsor accepts that the words that I have used in proposed new paragraph (a) are not covered by the Bill. That is basically what the Minister said, although I confess that he withheld his position on the word "logo". May I have clarification on that question?
Lord Clement-Jones: The noble Lord certainly may—I thought that the Minister had clarified that endlessly in several answers. I certainly support the clarification given both in the House of Commons and today. The whole idea is that we cannot give a blanket exception for letterheads or logos because the factual question is whether there has been an advertisement—or, later in the Bill, whether there is brandsharing. That is the whole point.
Lord Naseby: The Bill's sponsor says that the items that I have listed in proposed new paragraph (a) are not exempt, because he believes that they could be used. The Minister said that under the previous Bill, they were exempt—with the exception of the word "logo". The Committee requires clarification on that point. I should like to hear from the sponsor of the Bill. After all, it is his Bill and he may have different thoughts from the Government.
Lord Clement-Jones: If the noble Lord, Lord Naseby, reads Hansard on Monday morning, he will find what has been said utterly clear. Basically, the reason that one cannot give a blanket exemption for the use of logos and letterheads is because, in certain circumstances, they may constitute an advertisement or they may be used for brand sharing. I hope I have made myself utterly, stunningly clear.
Finally, there is absolutely no intention to put a schedule to this Bill. I am delighted to hear about "Casablanca", but I hope that no Member of the Committee will put a schedule of films to this Bill.
Baroness Noakes: I am not surprised by the approach taken to these amendments by the noble Lord, Lord Clement-Jones, and the Minister. But I remain troubled by this area.

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I did not put forward the definition of "advertisement" in order to restrict. Indeed, I said that the amendment included in particular a list of items, which means that other items can be brought within the scope of "advertisements" when coming to be Interpreted by the courts. The purpose of seeking definition on this is for clarification.
I have discussed with the Benches opposite and the noble Lord, Lord Clement-Jones, the issue of loopholes. One man's loophole may be another man's lack of clarity. Tobacco companies are companies carrying out a lawful business in this country and this Bill seeks to constrain the way in which they carry out that business. I have no problem with that. I am a non-smoking former smoker. But we owe it to those businesses that are involved in tobacco products to be absolutely clear as to what they can and cannot do.
I am concerned at the apparent approach that we must leave the provision as wide as possible so that, with the benefit of hindsight, we can catch the tobacco product companies in whatever way we want after the event. That does not give certainty to people carrying out their business. In particular I shall wish to return to the issue of use of letterheads and logos. Companies need to know what they can and cannot do with their names—names which they may have used on their brands for a considerable period of time.
I do not intend to press the amendment today. But we will want to look at this area again and may bring it back on Report. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Lucas Lord Lucas moved Amendment No. 2:
Page 1, line 4, after "promote" insert "tobacco or"
The noble Lord said: The Bill as it stands bans advertising of a tobacco product, but not advertising of tobacco. So if I created a T-shirt saying, "I like to kiss men who smoke cigarettes", then although I was promoting tobacco and cigarettes I would not be committing an offence under this Bill. I wondered why. I beg to move.
Lord Hunt of Kings Heath: Perhaps I can help the Committee. I have checked this and the dictionary definition of "product", is,
"thing or substance produced by natural process or manufacture".
The Bill should be read in that context. If we follow that, the definition of "tobacco product" in the Bill would include raw tobacco as well as anything containing tobacco produced in the course of manufacture. On that basis the Bill is satisfactory, although no doubt the noble Lord, Lord Clement-Jones, will wish to comment.
Lord Clement-Jones: I entirely agree with the Minister. Offences under the Bill can be committed only,
"in the course of a business".
So those who want to enthuse friends about the supposed virtues of tobacco will be free to do so. The Bill does not stop a journalist writing in favour of tobacco—nor should it. It does not matter that the journalist is paid by the newspaper for the article, as long as he is not being sponsored by someone in the tobacco trade.
Thinking the amendment through, it will not add a great deal to the sum of human happiness.
Lord Lucas: I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 3 and 4 not moved.]
Lord Monson Lord Monson moved Amendment No. 5:
Page 1, line 7, leave out "sniffed,"
The noble Lord said: The purpose of Amendment No. 5 is to exclude from the provisions of the Bill tobacco products which are sniffed. The first thing that comes to people's minds is, of course, snuff. But the amendment will also embrace tobacco products as yet undeveloped which theoretically could be enjoyed in this way. I have no personal axe to grind. I was once offered snuff around 15 or 20 years ago. It did nothing for me and I had no desire ever to try it again.
I first raised this matter on 28th March this year when we were debating an identical Bill introduced by the other half of the Lib-Lab coalition—some might argue the junior half—and my noble friend Lord Patel replied that snuff is by no means totally harmless. Of course I defer to my noble friend's vastly superior knowledge in this field. I am prepared to accept that snuff is not totally harmless any more than whisky is totally harmless. Like so much else, excessive indulgence is much more dangerous than moderate indulgence.
However, research undertaken 20-odd years ago by Russell, Jarvis and Feyerabend, which was funded by the Medical Research Council and the results of which were published in the Lancet of 1st March 1980, pointed out that,
"Snuffing has two major advantages … Firstly there are no products of combustion such as tar, carbon monoxide and oxides of nitrogen. Secondly it cannot be inhaled into the lungs, which eliminates any risk of lung cancer".
It pointed out that snuff does not contaminate the atmosphere, which is good news for those who take passive smoking claims seriously. It concluded by saying,
"Snuff could save more lives and avoid more ill-health than any other preventive measure likely to be available to developed nations well into the 21st" century".
I urge the noble Lord, Lord Clement-Jones, and the Government to study those findings with the greatest care.
Two sorts of people would benefit from Amendment No. 5. The first are habitual snufftakers—a fairly small number of people I would guess.

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The second would be a much larger group consisting of people with a severe nicotine addiction which they simply cannot shake off and who want to partake of nicotine in a less harmful way than by drawing tobacco smoke into their lungs. That is what the eminent medical men meant when they claimed that,
"Snuff could save more lives and avoid more ill-health than any other preventive measure likely to be available to developed nations well into the 21st' century".
I beg to move.
The Earl of Liverpool: The noble Lord, Lord Monson, referred to the research carried out by Russell, Jarvis and Feyerabend, published in the Lancet on 1st March 1980. I listened to the extract he quoted but believe I am right in saying that he missed out one section of the article in which I am particularly interested and pray in aid of this amendment. I refer to the section which says,
"Switching from cigarettes to snuff could have enormous health benefits".
Snuff is not an anti-social product. It does not pollute the atmosphere, as the noble Lord, Lord Monson, said. Therefore I support this amendment.
12.30 p.m.
Lord Filkin: I rise to respond to the amendment tabled by the noble Lord, Lord Monson, that snuff be defined or that tobacco products which are sniffed should be excluded from the Bill. The Government accept that nasal snuff, although not as harmful as some other tobacco products, can damage health. The connection between snuff taking and cancers of the nose has been suspected for some time. Snuff contains nicotine and its continued use can lead to physiological dependence.
Snuff taking is not a major health problem in the UK at present, mainly because it is such a minority pursuit. That is where there may be difficulty with the medical statistics. Because so few people take snuff and because relatively few people die of cancers to the nasal cavity—some 400 per year—it will never be easy to make a strong statistical correlation. We say "relatively few". Four hundred people dying each year in other contexts—as a result of a train crash, for example—would be seen as a scandal.
Perhaps I may correct the noble Lord, Lord Monson. The Bill in no way inhibits habitual snuff takers who wish to take snuff. They can do so; that is their choice. Similarly the Bill in no way inhibits or prohibits people who currently smoke cigarettes from transferring to snuff; they can do so. However, the view of the Government when they first drafted the legislation, now, sponsored by the noble Lord, Lord Clement-Jones, before the House again, is that it was sensible to include sniffing in that way. That is not only because, in the opinion of the Government, there seemed to be evidence of an association with cancers, but also because it is conceivable that new tobacco products could be developed and marketed in the
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future. We would not want to be in a position where the Act then had to be amended to ensure that such products were also covered.
For the avoidance of doubt, I should also clarify that Clause 6 of the Bill gives an exemption for the advertising of snuff and other products within specialist tobacconist shops. However, we do not believe it right to go further. Therefore, it is the view of the Government that the amendment should be rejected.
Lord Clement-Jones: I confess that I have not seen any snuff advertisements recently. I accept that there is no such thing as "passive sniffing"; at least, I suspect not. The Minister put the medical case, which is clearly relative to smoking. It is not as dangerous, but, as he explained, it has its own dangers. Therefore, there is a health risk. The wider policy aspect is also of great importance. We do not want legislation which could be exploited by the tobacco companies using, for instance, a cigarette brand for snuff, or something of that sort, which would exploit the brand by the back door. I am convinced that snuff should be included within the ambit of the Bill and shall not accept the amendment.
Lord Monson: Before I decide what to do, perhaps I may seek clarification from the Minister. He stated that 400 people die from nasal cancer each year. Does he mean that 400 people die each year from nasal cancer as a result of taking snuff or did he mean 400 people in total?
Lord Filkin: I am grateful to the noble Lord, Lord Monson, for seeking clarification. I sought to say that 400 people per year die of cancers to the nasal cavity. I was not saying that 400 people die each year from nasal cancer as a result of taking snuff.
Lord Lucas: Before the noble Lord sits down, I wonder whether he would be prepared to write to me with a copy of the scientific papers showing the link between snuff taking and cancer?
Lord Filkin: I shall be glad to do so.
Lord Monson: I am grateful to the Minister for his clarification and to the noble Lord, Lord Lucas, for seeking further and necessary clarification before the next stage of the Bill. I am grateful to the noble Earl, Lord Liverpool, for his support. He is right; I should have emphasised the passage from the scientific report stating that switching from cigarettes to snuff could have enormous health benefits. That is the nub of the matter. We are encouraging people to switch from something which is quite dangerous to something much less dangerous. The noble Lord talked about physiological addiction. However, we are talking of people who are already physiologically addicted to nicotine. Surely, it would be beneficial if they were to switch from cigarette smoking to snuff.
However, I suspect that neither the noble Lord, Lord Clement-Jones, nor the Government have yet had a chance to study in depth the 1980 Lancet report.

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As I stated in my introduction, I invite them to do so. We may return to this matter at the next stage of the Bill. In the meantime I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Naseby Lord Naseby moved Amendment No. 6:
Page 1, line 7, at end insert "but does not include a product which is made partly of tobacco (or any of its constituents) and is intended to assist a consumer of tobacco products to stop or reduce his use of such products"
The noble Lord said: Amendment No. 6 is of serious intent and importance. I am conscious that the Government and their predecessors, through the NHS initially and now more widely, have a number of campaigns to assist people who smoke to quit. That involve products which are placed on the skin, inhaled, chewed, and sucked. There is now even a lozenge on the market.
Most of those products contain nicotine. The intention is that they are used at a gradually diminishing strength or frequency to help smokers to be weaned off their habit. Nicotine is also the most significant component of tobacco. While we would not promote tobacco today if we had the choice, nevertheless it was originally used medicinally. It is interesting that it is suggested that cannabis can also be used medicinally. Nicotine is mainly produced today commercially from tobacco and not by synthesising a chemical.
It is not at all clear, to me at any rate, that nicotine is not a product consisting "wholly or partly of tobacco". If it is to be regarded as being a product consisting "wholly or partly of tobacco", certain nicotine replacement therapy products would fall within the prohibitions within the Bill. When the Bill was considered in the last Parliament in another place, the Minister for Public Health stated,
"[The Government's] legal advice is that nicotine replacement therapy is not covered by the Bill and by the definition in the clause. They are treated not as tobacco products, but as nicotine products".—[Official Report, Commons Standing Committee A, 30/1/01; col. 28.]
That seemed clear at that time. The Minister stated that it was therefore not necessary to make special provision to exclude nicotine replacement therapy products from the Bill. They were products licensed under the Medicines Act and did not use tobacco or any part of tobacco. The latter part is not quite correct, but certainly they are licensed under the Medicines Act.
It has been brought to my knowledge that there is not a uniformity of opinion in the outside world that that statement is correct. Rather than leave matters in doubt—I do not think that the promoter of the Bill wants these products to be encompassed—it should be made clear that such products are excluded from the Bill. I have not tabled an amendment at this time, although I shall do so if the promoter is unable to. I am
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looking to him to respond along the lines that products which are licensed under the Medicines Act would be exempt.
The Earl of Erroll: Having listened to the response to the previous amendment, it seems that the purpose of the Bill is to include any product which contains nicotine; and snuff is a tobacco derivative. Having listened also to the response about the letterheads which may or may not be held to be advertising, it seems that the Bill is turning into a lawyer's dream in which everything will be determined by the courts; it is all up in the air. At the end of the day the "small person", such as me, will not be able to defend himself because he cannot afford to do so and the big companies may or may not decide to fight it out in Court.
I would have thought that trying to help people to be weaned off their nicotine dependency was a good thing. Therefore, the amendment is a good thing. Otherwise, I am sure that such products will be caught by the Bill.
Lord Skelmersdale: I am not sure that I entirely agree with the noble Lord. Cigarettes, pipe tobacco and hand-rolling tobacco, to name but three, have something in common. Not only do they have nicotine in common, they also have tar in common. That is why the level of tar in a cigarette must by law be printed on a cigarette packet. Therefore, to restrict our definitions to nicotine would be a great mistake.
Lord Swinfen: Perhaps when responding to the amendment, the Minister or the promoter of the Bill could say from where the nicotine that is used in patches, lozenges or other products which are designed to help people give up their nicotine addiction is obtained.
Lord Filkin: The debate on Amendment No. 6 hinges around the difference between nicotine and tobacco. While I have sympathy with the reason for promoting the amendment, I do not believe that the problem the noble Lord, Lord Naseby, seeks to prevent exists.
The amendment as proposed would exclude from the Bill any product which contains tobacco and is used as an anti-smoking treatment. We are not at present aware of any such product on the market. However, the definition of a tobacco product in the Bill is one consisting wholly or partly of tobacco. That definition means that products which contain a tobacco constituent, such as nicotine, are not covered by the Bill.
There are a number of smoking cessation products on the market at present whose purpose is to help wean smokers off their addiction to nicotine. All those products contain nicotine but they do not contain tobacco. There is therefore no danger that the Bill will prohibit the advertisement of nicotine replacement

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therapies. I note the noble Lord's question about the source of nicotine and I shall seek to provide written advice on that subsequently.
Lord Lucas: I found the Minister's reply an interesting attempt at a definition; that because the product contains nicotine which comes from tobacco it does not contain tobacco. Will the Minister therefore say that bread does not contain wheat because it contains only flour, which is part of the wheat?
Lord Filkin: I sought to spare the Committee a fuller explanation but I shall offer to give one now. If there were to be legislation affecting wine, which defined a wine product as one consisting wholly or partly of wine, grapes would not be within the ambit of that definition. Although grapes can be a constituent of wine, wine is not a constituent of grapes. In the same way, tobacco consists in part of nicotine, but nicotine does not consist of tobacco.
Lord Clement-Jones: I suspect that the Bishops will be more in tune with the bread and wine side of the argument but I must confess that I was wholly taken with the Minister's exposition. I am satisfied that nicotine replacement products are not covered by the Bill's advertising provisions.
I must respond instantly to the noble Earl, Lord Erroll. The Bill is not a lawyer's dream but it is certainly my dream, and I am a lawyer, to get it through. However, I do not believe that it will be extremely difficult in legal terms. Most of the terms used in the Bill are fairly straightforward of interpretation. The noble Earl spoke about the small person afflicted by the Bill. We know very well who is the subject of the Bill; it is the extremely large tobacco companies with huge market capitalisations. They are perfectly able to look after themselves and can employ—
The Earl of Erroll: The noble Lord, Lord Lucas, pointed out that distributors and others are covered by the Bill. However, the Committee might find that attacks could be made on small businesses, too. It might be perceived as easier to attack indirectly, which has previously been the case in other areas.
Lord Clement-Jones: There are trade associations for that kind of activity and I am certain that the tobacco companies will as far as possible ensure that their means of distribution are kept open.
The Minister gave the lie to the amendment. If there were a genuine point about nicotine replacement products there would be a problem, but because the Bill is framed in terms of tobacco we do not need to have an exception in respect of products licensed under the Medicines Act, or whatever is the correct phraseology. In the circumstances, I do not propose to accept the amendment.
Lord Naseby: I am grateful to those who have taken part in the debate, in particular the noble Earl, Lord
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Erroll. The promoter of the Bill, in casting aside the noble Earl's points, has been a little too flippant. When he says, for instance, that the means of distribution will be kept open at any cost, the suggestion is that he would like to close down every form of distribution. If that is his wish, perhaps he would be bold enough to say so openly.
I must also reflect on the comments of the noble Earl, Lord Erroll, because I remember the Town and Country Planning Act. Someone in Parliament suggested that what would happen in terms of challenging advertisements was crystal clear. It never was crystal clear; it never became crystal clear; and the legislation has been persistently challenged.
My Amendment No. 6 was not as vague as the promoters suggest; as I said, it was specific in relation to the Medicines Act. I am grateful to the Minister for making it clear that no product that is or will be available—"will be" is equally important as "is"—which is designed to help people to be weaned of tobacco will be in any way affected by the Bill. That is a most important point and not one to be considered as flippant. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
12.45 p.m.
Lord Skelmersdale Lord Skelmersdale moved Amendment No. 7:
Page 1. line 7, at end insert—
"( ) For the avoidance of doubt, in this Act 'promotion' does not include a display of tobacco products."
The noble Lord said: There can be no doubt in the mind of anyone who has been listening to the debate that the purpose of the Bill is to prohibit the advertising of tobacco products. Nothing more and nothing less. However injurious to health some of those may be—and obviously I am not now thinking of snuff—they are not, as far as I can gather by remarks made by Ministers here and in another place—to be banned at the point of sale. Unfortunately, I believe that by using such a wide definition of advertising they could be. Perhaps I may say in passing that Members of the Committee will be delighted that this is the last of a series of amendments which investigates the meaning of various words.
On and off for the past 30 years, I have been engaged in selling, so I come from a different angle from my noble friend Lord Naseby. That activity has included printing catalogues—obviously an "advertisement", which the Notes on Clauses describe as having its natural meaning. We shall discuss that later. However, I have no idea what "promotion" means. When in the course of business I take my plants to a flower show and put them on display there may be two reasons. If my display is of items which are not currently available but have to be ordered for future delivery, it would constitute promotion of my products in a general sense and, more germanely to today's discussion, an advertisement, too.
If, on the other hand, the display is of items which can be taken away then and there, it is in the nature of a shop. It could be argued in the broadest sense that I

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am advertising my wares just as much as in a catalogue or on the website or, as in the first case, for future sales. I am most certainly promoting them. But if I do not promote them, I cannot sell them and I go out of business.
There is no difference between what I have been doing with plants and what the corner shop does with cigarettes and other tobacco products. I trust and believe that that can be made clear in the regulations, but it is, I hope, common ground that regulations should normally be circumscribed, as they are in Clause 4(2). However, I do not believe that that is the appropriate place in the Bill for the amendment. The Bill should state at the beginning what it does and does not cover and in that connection I want to congratulate the drafters of the Bill on not putting the definitions clause towards the end where we so often find it in legislation. The matter should be clear and I hope that I have shown the Committee that it is not.
The noble Lord, Lord Filkin, said earlier that displays set out in a particular way—for example, in the form of a chevron or whatever—would be advertising. Yes, it would. However, that would be the effect of the advertisement, not the promotion of the product. I do not believe that that is a useful argument to use on this occasion. I beg to move.
The Earl of Erroll: I rise to support this amendment which again clarifies the situation. Having heard the Minister refer earlier to a chevron, this is a valid point. Products should be visible so that one knows what is being sold; otherwise, it is very awkward. One does not seek necessarily to drive tobacco under the counter as if it is an illegal substance. Tobacco should still be available to members of the public to be bought legally. Therefore, I do not see a problem here. I say to the noble Lord, Lord Clement-Jones, that this is concerned with the distribution of tobacco which will, I am sure, be protected by the tobacco companies. The point that I made previously, which the noble Lord probably appreciates, was to do with the distribution of advertising materials electronically, in printed form and so on. Tobacco companies would not be particularly interested in investing in such advertising and distribution of printed and electronic material. That was the reason I appreciated the point raised by the noble Lord, Lord Lucas.
Lord Hunt of Kings Heath: It is not the intention of the Government to drive cigarette retailing under the counter; nor that the product should be banned at the point of sale. In general the Government are happy with the way in which tobacco products are displayed in shops. We do not want unnecessarily to increase the burdens on small businesses; nor do we expect any significant change in the way in which tobacco products are commonly displayed in gantries either in the corner shop or supermarket. I believe the noble Lord agrees that it would be possible to abuse that, and that is why we have the contingent ability to bring forward regulations if we discover that there is a need to plug loopholes. The intention is that this matter would be dealt with by affirmative regulations. We
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believe that we have achieved the right balance and that essentially the kinds of gantry displays that can be seen in many tobacco retailers are perfectly all right.
Lord Clement-Jones: I suspect that the noble Lord, Lord Skelmersdale, has achieved his purpose in this probing amendment; namely, to see what is intended under Clause 8. The Minister has been very helpful in making the position entirely clear. The question is whether there is future abuse. I believe the noble Lord, Lord Skelmersdale, would admit that, if suddenly there was a succession of flashing neon signs and other such abuse of display, that would be a far cry from the matter not being under the counter; it would be demonstrating tobacco products for all the world to see in the manner of advertising. Effectively, Clause 8 is designed to ensure that display does not turn into advertising. The noble Earl, Lord Erroll, was perhaps more solicitous of smaller distributors. However. all of them have their own trade associations and I am sure that there will be very clear conduct by them to make sure that they do not push the Government into producing regulations in this area. If they behave responsibly, there is no reason that they should be prejudiced by Clause 8. In those circumstances, I do not propose to accept the amendment.
Lord Skelmersdale: I am not in the least surprised that it is not accepted; it was not intended to be in the first place. I begin to gain the impression that a good deal of the responses of Ministers hinge on the regulations which could be made in certain circumstances. I recall that during Committee stage of this Bill in another place Ministers said that they were working on draft regulations and would be able to produce them by the end of the debate on the Bill. As far as I know, that never happened. It would be extremely useful both to the Committee and, at later stages, the whole House if noble Lords could have some idea in writing of what the various regulations would be likely to say.
Lord Hunt of Kings Heath: I shall endeavour to be helpful. However, in relation to regulations on displays, is not the point that in a sense this is a preventative clause to give us power in future to produce regulations if there is evidence that the current position, for example on gantries, is being abused in any way? It may be difficult to anticipate what exactly would be in those particular regulations. The safeguard is that they are affirmative regulations.
Lord Skelmersdale: I accept that. But one cannot take an amendment of this kind, which will be withdrawn, in isolation. The clause goes on to say,
"whose effect is to do so".
The flashing gantry referred to by the noble Lord, Lord Clement-Jones, obviously would have that effect. I do not believe that the courts would be disabused of that answer. I am grateful for the Minister's comments on these regulations, which may or may not be required. I do not believe that they will ever need to be made, simply because of Clause 1 (b) of

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the addendum, as it were, to the definition of "tobacco advertisement". Be that as it may, I shall look at what the Minister says about other regulations during the course of the Bill. With that, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 1 agreed to.
[Amendment No. 8 not moved.]
Clause 2 [Prohibition of tobacco advertising]:
Lord Lucas Lord Lucas moved Amendment No. 9:
Page 1, line 9, after "business" insert "knowingly"
The noble Lord said: Amendment No. 9 is the first of a series of amendments that I have tabled which deals with the reversal of the burden of proof. I hope that I shall do so well with this amendment that I do not need to move future amendments, or, if I do, that I can speak to them only briefly. We went some way down this route at Second Reading—I regret that I was unable to be present—when towards the end of his speech the noble Lord, Lord Clement-Jones, dealt with this subject:
"In effect, the defendant need raise only an arguable case for one of the defences—that he did not know—and the burden of proving the facts at issue is cast on the prosecution. In practice, if the defence can raise any doubt, when the totality of the evidence is considered, the court will not convict, as the prosecution will not have discharged its burden of proving the allegation beyond reasonable doubt".—[Official Report, 2/11/01; col. 1709.]
That is a fair comment as far as it goes. The reversal of the burden of proof is not that common and, thankfully, in this country it is indulged in only infrequently. The Minister was kind enough to answer a Question for Written Answer in which he produced 10 examples in the past 15 years where it had been done in individual provisions of other Acts. It places on the defence a burden which should normally be on the prosecution. Although the noble Lord, Lord Clement-Jones, was correct to say that the burden could be cast back on the prosecution, that is only half right. It is no good my saying in defence of an allegation under this Bill that it was a tobacco advertisement but I never looked and so I did not know. The reversal of the burden of proof places on the defendant an obligation of care. He must do what is reasonably necessary to put himself in a position where he can reasonably deny that he knew, or did not suspect, that something was a tobacco advertisement. He cannot just deny it. Otherwise, there would be very little point in the reversal of the burden of proof. It is not such a weak device.
Looking at some other offences that are subject to the reversal of the burden of proof, running through them is this thread that the defendant must have done whatever is reasonably sufficient to put himself in the position where he can present a reasonable defence of the absolute offence with which he is charged. It is not that easy to escape from.
Therefore, the question that arises is whether it is reasonable to place on the persons referred to in the subsections the obligation to put themselves in a position where they can mount a defence against the
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absolute offence with which the Bill burdens them. In Clause 2(1), to which the amendment refers, I suspect that the answer is yes. That is probably the weakest of the amendments which I have tabled. It is reasonable to ask someone in the business of publishing to have care to make sure that they are not publishing a tobacco advertisement. That person should look through what is submitted to his newspaper or magazine to make sure that he is not only not publishing a tobacco advertisement but anything which might have the effect of being one.
None the less, the basic structure is there in the Bill. What we must agree is whether it is right to place that duty of care on the defendant rather than a duty of proof of intent on the prosecution. While I beg leave to move the amendment, it is not the one that I want to push.
1 pm.
Lord Peston: Before the noble Lord sits down, he said that it was a general argument that he put forward under this rubric but that it applied to all his other amendments. I was hoping that he would give an example—he is very good at that—of a case that may trouble us. All he did was to give an example the other way around of a case that would not remotely trouble us. In other words, I have been trying to follow what fear he has. Can the noble Lord give an example of someone who perfectly innocently—I gather not in terms of an ordinary advertisement—promotes cigarette smoking? Would it be someone, say, in a discussion on television who was simply saying, "Oh, well, I am well aware of the fact that people enjoy smoking"? Is that what he has in mind? Would they have to say, "Well, I was not knowingly promoting smoking at that point"? If that is his fear, again to use my favourite word, it is preposterous.
Lord Lucas: I am troubled by the fact that I have been thinking about this matter since I tabled the amendments. I probably would not have chosen this amendment to start with. My next amendment refers to Clause 2(2). I have some particular concerns about it. That gets at someone who prints an advertisement. If the noble Lord has ever been into a print shop engaged in printing a magazine, all that is being checked is that the colour registration is right. The stuff comes in through one door, is put through an immense industrial process, and goes out through the other. The process does not and should not involve checking whether or not they are printing a tobacco advertisement or indeed one for anything else. It is not their business to do that. It is just a print shop.
Lord Peston: The noble Lord is now being extremely helpful. He is saying that one is in the printing business but one has no interest or concern about what is being printed or—specifically within the context of the Bill—no interest in the fact that it might be, first, an advertisement, and, secondly, an advertisement for

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tobacco products. That is so far-fetched that I find it very difficult to see why we are even debating an amendment to a serious Bill of this kind in those terms.
Lord Lucas: The reason is that the Bill specifically makes it an offence to print tobacco advertisements. It is an absolute offence. In order to escape from that offence one has to prove that one did not know and had no reason to suspect that it was a tobacco advertisement. That is not just a matter of saying, "I didn't look". I have been to a couple of barristers practising criminal law on this matter. The law is well established in relation to this absolute offence and conditional defence. One has to show that one took proper care and reasonable precautions to make sure that one was not printing a tobacco advertisement. So the Bill as it stands is placing on the printers the requirement that they must look at everything they print to make sure that it is not a tobacco advertisement. That I find ridiculous.
Lord Peston: I do not want to prolong this matter. I am not an expert on printing. But if, for example, what was being printed was pornographic, is the noble Lord saying that one says, "Well, I just print. I don't look at words or pictures"? One would say the same if the material was defamatory or contained racist matters. I do not understand the noble Lord's conception. He uses printing as an example, arguing that the printing business somehow needs special treatment because it is never concerned about what it prints but is only concerned about typefaces and what it looks like and so on. This is so far-fetched and there are so many other important issues that we have to debate that I wonder why he presses the matter. I equally wonder why I bother to interrupt. But that is another matter.
Lord Lucas: We can continue the discussion after the amendment has been moved. I beg to move.
Baroness Noakes: Perhaps I may speak in support of the amendment of my noble friend and possibly assist the noble Lord, Lord Peston. The issue is about where the burden of proof in these offences lies. It is a crucial matter. In relation to Clause 2(1), the offence, as drafted, simply requires the prosecution to prove that there is a tobacco advertisement and that it has been published. Those are relatively easy matters for the prosecution to prove. They must be proved beyond reasonable doubt.
Let us return to the discussion on earlier amendments where we demonstrated a lack of clarity about what a tobacco advertisement is. It is quite possible that a company did not know it was publishing a tobacco advertisement which was subsequently brought within the definition of advertisement in the course of a case. It is quite possible to publish a tobacco advertisement without knowing it was one.
The issue is not that there are not defences under the Act, but how the burden of proof works, as my noble friend Lord Lucas tried to explain. It is relatively
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straightforward for the prosecution to prove factual matters beyond reasonable doubt. It is much more difficult to prove as a defence that one did not know something, or that one could not reasonably have seen something, because proving a negative is, if not logically impossible, actually an extremely difficult thing to do. So the issues that arise here are that the burdens are being unnaturally reversed in this particular case. As my noble friend pointed out, it is not the normal formulation that one creates an absolute offence and then throws the burden back on to the defendant to prove that he did not know or did not do something. It is normally the other way around. That is why it is right for my noble friend to have tabled these and the other amendments which focus on this very specific point.
Lord Monson: Can the noble Lord, Lord Lucas, confirm that he intends to move Amendment No. 10 separately from Amendment No. 9? The amendments are not grouped together. The case for Amendment No. 10 seems to be overwhelming, the case for Amendment No. 9 less so.
Lord Lucas: The noble Lord is quite right. We should be paying attention to Amendment No. 10. What I was hoping to establish and to agree with the noble Lord, Lord Clement-Jones, was the nature and effect of the reversal of the burden of proof. If we can come to some agreement on that and understand how the Bill will operate in practice it will be a good deal easier to get through the many amendments of mine and those tabled by other noble Lords which address the consequences of the fact that the burden of proof has been reversed in the Bill.
Pace the noble Lord, Lord Peston, I should like to remain as theoretical as possible on the amendment because I do not have a practical point to make. We can come to the practical point about printers on the next amendment. I look forward very much to hearing what the Minister and the noble Lord, Lord Clement-Jones, say because I suspect that I may need to rejoin battle. With this amendment I should like to establish the principles on which we address all future amendments on the subject.
The Earl of Erroll: I thought the noble Lord was responding to just that one point made by my noble friend. I want to make a point about printers and absolute offences.
Lord Lucas: I shall be moving that amendment.
The Earl of Erroll: A large firm of printers which is just churning work through is not going to read all the pages because that is done elsewhere. A print shop receives electronic copy. It will not be checked or anything like that because that is the responsibility of the person providing the copy. It will go through the machines and people will check that the print quality is all right. The material will be bound, bundled and possibly posted straight out without any human

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interference. It is purely a mechanical process. Printers are not publishers and they are not the people who check the content. That is a very valid general point.
I turn now to the absolute offence. I shall give an example. Many years ago when some of the first cannabis smoking legislation was introduced, it became an absolute offence to own a property on which cannabis was smoked or drugs were taken. A woman who lived in Spain owned a property in Oxford. Agents let the property to student tenants. The agents maintained the property which the woman never visited. At some point the police arrested the students for taking drugs.
As it was an absolute offence to own property on which drugs were taken, the woman was prosecuted. As a result I believe that the law was changed because it was felt to be so unfair. But there was no defence against the charge even though the woman could not possibly have known that drug taking was occurring. That is the nature of absolute offences. I do not like them and have objected to them before in relation to the wearing of riding helmets. There was the same kind of problem. There are no defences. I shall be very interested to hear the response to this amendment.
Lord Hunt of Kings Heath: I had wondered why the noble Lord, Lord Lucas, had not grouped these amendments. Now we discover that he wishes to hear the first response and then have another try. In essence, a balance is being drawn in the Bill in a number of places. It seeks to be quite vigorous and tough in relation to tobacco advertising, which is absolutely right. It also seeks to be fair and to avoid loopholes. I believe that anyone who has considered the discussions on tobacco advertising and some of the papers which have leaked from the tobacco industry will recognise that the question of loopholes is very important.
If one looks at the effect of the noble Lord's amendment one sees the problem. It could allow an "ostrich" type defence for someone who closes their eyes to the likelihood that he or she is involved with a tobacco advertisement. But there are sufficient safeguards. The noble Lord is right to refer to one of the defences in Clause 5(2) which states that it is a defence for a person who could not reasonably have foreseen the effect of the advertisement. The noble Lord referred to a list of 10 Acts which were included in a Written Answer. My understanding is that there are many other Acts which contain similar provisions.
The fact is that a criminal prosecution has to establish the guilt of the individual beyond reasonable doubt. It is a high standard of proof. The obligation means proving not only all the ingredients of the offence, but also negative any defence put forward. So in effect all a defendant need do is to prove the ingredients of one of the defences on the balance of probabilities which the prosecution must rebut. If it cannot do so, the prosecution will not have discharged the burden of proving the allegation beyond reasonable doubt. On that basis the accused will undoubtedly be acquitted.
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I believe that the Government and the noble Lord, Lord Clement-Jones, have the balance right in setting out what are the exact provisions under which a person may be prosecuted, but also setting out a number of targeted defences. I do not believe that that is unreasonable.
1.15 p.m.
Lord Clement-Jones: In essence we are arguing whether the treatment under the Bill of a person in those circumstances is proportionate to the problem we are trying to remedy. I believe that the language used in changing the burden of proof is not particularly helpful in these circumstances. I do not believe that it is accurate because the defences under Clause 5 are not the same as shifting the burden of proof. That is because of the way in which the onus can revert if an arguable case for such defences is made. That is a very important point.
Let us look at some of the other Acts that have used a very similar type of offence followed by the defences available. I refer to the Food Safety Act, the Consumer Protection Act, the Children Act, and the Human Fertilisation and Embryology Act. The noble Lord, Lord Lucas, obviously has had notes on all those Acts which use that particular technique. The issue is policy. The Minister has explained the legal way in which it operates in court. The noble Lord, Lord Lucas, said it was a question of how a person, under the provisions of Clause 1 and so forth, will be able to present a reasonable defence.
I was taken by the way in which the noble Lord, Lord Hunt, spoke about the "ostrich" aspects of the matter. It is not good enough for someone to close their eyes as to whether there is an advertisement in whatever it is they are producing, be it a newspaper or print material. The Bill goes further because if it is the standard practice of a printer to print pornography, racist material or smoking advertisements without checking the content then he may, even in those circumstances, have a defence because he did not know and had no reason to suspect. I suspect that a canny QC would say, "It is not the practice of the print industry to look at anything they print. They only look at the colour separations, your Honour". That is a possible defence.
The Earl of Erroll: He may not be able to afford a QC!
Lord Clement-Jones: That may be so, but there are some jolly canny younger barristers as well! In all the circumstances I believe that the provisions we have in the Bill are proportionate and that those canny younger barristers will be defending the printer if that is needed. I believe it is shocking if they do not look at their material, but if that is the custom of the trade they will be defended perfectly adequately.
I urge the noble Lord not only to withdraw the amendment but also those which apply to printers, distributors, newspapers or coupons and all the various aspects. We are having an important debate. The question is whether we can save 3,000 lives a year

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and if that is the case, it is worth having a Bill which has provisions of this kind with very reasonable defences available. My answer and that of the Minister is clearly yes.
Lord Lucas: I am very grateful to both the Minister and the noble Lord, Lord Clement-Jones. I believe that we have reached agreement on the format of absolute offence and defence. In other words, the Bill puts a duty of care on the potential defendant to make sure that he or she is not committing an offence. I see both noble Lords nodding. I hoped that we would agree on it and I am content to withdraw my amendment.
Amendment, by leave, withdrawn.
Clause 2 [Prohibition of tobacco advertising]:
Lord Lucas Lord Lucas moved Amendment No. 9:
Page 1, line 9, after "business" insert "knowingly"
The noble Lord said: With Amendment No. 10, we come on to the particular. We have two possible scenarios. Someone has printed a tobacco advertisement. It has a nice glossy picture and happened to incorporate in some part of it a piece of silk material with a cut in it, though it was not obvious that it was in any way a tobacco advertisement, but might be taken to be that. We can either have an offence where the prosecution has to prove that the printer did this knowingly, or one where the printer has to prove that he did not know and had no reason to suspect the content. In doing that, he will have to prove that he had systems, which meant that he had to look at every single thing he was printing with a view to deciding whether it was or might constitute or have the effect of a tobacco advertisement.
It seems to me that the process of printing, whether in-house as part of a publishing operation or as part of a separate operation, is not something where that burden of care should be placed. There is no reason why a printer should have to go through every page of what is printed. If they knew they were printing tobacco advertisements or indeed racist material, as doubtless many printers of racist material would do, it ought to be possible for the prosecution to prove it. So I do not mind an ordinary offence, a "knowingly" offence, against a printer. If he is involved in a conspiracy to produce a tobacco advertisement—a truly heinous crime—then he should be strung up for it! But I do not see why an ordinary printer, going about his ordinary job of just taking in a disk, should be penalised. The printer does not check what is in it: he just gives me back a book and he is concerned over how the print appears on the page—if it is square on the page and if the pages do not fall out when you hold the book up by its cover. That is about the limit of it.
There is absolutely no reason why he should check it, for instance, for libel. A book that I publish might well contain a libel, but why should the printer be liable? He is not meant to check it for libel. It is not an absolute offence. If he knew it was a libel, fair enough; but otherwise why should he have to go through every page of it to check that I am not libelling some school or some headmaster. It seems to me that the burden of
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care should not be on the printer, qua being a printer. If the prosecution can prove that he knew, fair enough; otherwise I believe the printer should escape liability under the Bill.
The same should apply to a distributor. I think of the ordinary corner shop selling magazines and one of those magazines contains a tobacco advertisement. Is it being suggested that every single corner magazine shop has to go through every edition of every magazine on its shelves to make sure that it does not contain a tobacco advertisement? That is what the Bill provides at the moment. It imposes a duty on these people who are far too far down the chain to be of any real significance in checking. I really do not think that should be the case. It is fair enough to bring in the middle people—those who devise an advertisement—because they are involved in the intellectual process of putting an advertisement together. I believe they ought to share the publisher's liability under Clause 2(1). But I do not believe that the two other classes of person should have this duty of care imposed on them. I beg to move.
Lord Monson: I support the amendment and in fact would go a little further than the noble Lord. Lord Lucas, and say that I think the devisers ought to be included as well. The noble Lord, Lord Clement-Jones, said it would be shocking if publishers were not looking through their material. Well, really! How can publishers go through every single page of everything they publish in the course of a year, a month or a day? It is nonsensical. I have a particular interest in this issue in that the brother of one of my daughters-in-law, who runs a printing firm in Nairobi, was thrown into prison because he printed some election material for the opposition party which contained something that offended either the ruling party or President Moi: I am not sure which. But of course he did not write the material, he did not edit it or draft it: he simply printed it. I am not even sure whether it was in English or Swahili, although he does speak some of the latter. This has some relevance in this country because of course printers inevitably print a lot of foreign language material as we are home for members of the EU and the wider world. The man to whom I referred was eventually released—I am glad to say that the noble Baroness, Lady Chalker, helped over the matter. The noble Lord, Lord Lucas, dealt adequately with distributors and whether the Bill would apply to a newspaper delivery boy, who, technically speaking, would be a distributor.
As for devising, I think the noble Lord, Lord Lucas, has it wrong. A copywriter would be devising advertisements, would he not? Some years ago I worked in a London advertising agency. If a London copywriter drafts advertisements which he knows are to be published in the United States, Australia, the Channel Islands or the Isle of Man, which are not part of the United Kingdom, how is he to know if subsequently those advertisements appear in a United Kingdom publication? I believe that the word "devise" should certainly be included. This is an important amendment and it is a pity that it has coincided with

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the lunch-hour, so to speak. If the noble Lord does not feel it right to press it further today, I hope he will certainly do so at a later stage.
The Earl of Erroll: This is an extremely important issue. The noble Lord, Lord Clement-Jones, has great faith in trade associations. I am sorry to say that I do not. They are not all wealthy and if you have the great weight of some very expensive QCs on one side and the other side cannot afford nearly such expensive people, sometimes justice is not done. It is a heavy burden for a small company with few resources to attack a large company with large resources.
That places yet another burden on a small business. Suddenly it needs to have more people to do all the reading, to show that it did show care.
We do not need to impose more burdens on small businesses. That is the obvious point for certain people who feel strongly that these things should be stopped at that end, because it is the soft under-belly. The provision could cause many problems for certain small traders. I support this amendment.
Lord Peston: I rise partly to thank the noble Lord, Lord Lucas, because I am learning something about the printing trade these days and its relationship to corporate responsibility. His amendment leads to a request which may be relevant to the amendment of the noble Lord, Lord Skelmersdale, to which we shall come shortly. In Clause 2(2) there appear the words,
"which is published in the United Kingdom".
In normal English I read that to mean a tobacco advertisement which is published in the United Kingdom. Therefore I ask my noble friend the Minister this question. As producing cigarettes in the United Kingdom is still a legitimate business, to my regret, and British tobacco companies can still go around killing people abroad if they cannot kill enough in this country, can I assume that they can still do all their advertising work here although it cannot be published in the United Kingdom? Does that get over part of the question of the noble Lord, Lord Skelmersdale, as to who is responsible? Am I right in assuming that the expression "which is published in the United Kingdom" has real meaning and limits the clause to what happens in the United Kingdom even though the work may happen in the United Kingdom?
Lord Skelmersdale: I do not think that this has anything to do with electronic media. We have not yet reached the parts of the Bill that deal with electronic media, which are scattered willy-nilly throughout the legislation. One of my objectives is to bring them together in due course, but not while we debate amendments in Committee.
The noble Lord, Lord Peston, has raised a point which I had forgotten about since it was last discussed in your Lordships' House some two years ago on another Bill; namely, where material is published. Newspapers and periodicals are often published abroad because it is cheaper to do so. I join with the noble Lord, Lord Peston, in wishing to know whether
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this seeks an intended exclusion for those kinds of magazines, periodicals and so forth. If that is the case, then it is wrong.
1.30 p.m.
Lord Hunt of Kings Heath: We have strayed a little from the thrust of the noble Lord's amendment. In all legislation, we come to one issue that we did not think would be explored to any great extent, but then many happy hours are spent discussing it. I realise that the organisation of the printing trade will exercise noble Lords over a considerable time. Having been both a publisher and a printer for a trade association—I add that comment for the noble Earl, Lord Erroll—I can tell the Committee that I always looked very carefully at what was being published and printed. In general, one would always expect printers to put in place systems for protecting themselves in the course of their business. That would mean instituting checks on the material that they print. However, no doubt we shall learn a great deal more about the printing trade as we progress through the legislation.
I also accept that we need to be proportionate as regards burdens that are placed on small businesses. Through better regulatory procedures, the Government have sought to ensure that those burdens are reduced. I know that my right honourable friend the Prime Minister has been particularly forceful in ensuring that each government department puts in place a process for reviewing carefully how the regulatory burden can be reduced. Nevertheless, the tobacco companies are large and well able to look after themselves and their own.
At all times when considering the Bill, we need to strike a balance between the absolute necessity of ensuring that tobacco advertising is banned and being careful to check that no loopholes are introduced. I repeat, the history of the behaviour of the tobacco industry reveals that it is extremely clever at finding loopholes. Given that, I believe that the construction of the Bill, with targeted defences in place, is the right way to progress. It is right that the provisions should apply as much to printers as they do to the other parties involved in the advertising and promotion of tobacco.
The defence contained in Clause 5(1),
"that he did not know, and had no reason to suspect",
that the advertisement was to be used to promote a tobacco product is strong. It is clear that in a criminal court it would be a question of fact whether the accused had reason to suspect. None the less, the onus of proof would be put on the prosecution if the defence raised an arguable point.
I was interested in the comment made by the noble Lord, Lord Lucas, when he referred to the circumstances of a corner shop proprietor. Could that proprietor reasonably be expected to look through every page of all the publications displayed in his shop? In that case, the defence in Clause 5(7); namely,
"that he did not know, and had no reason to suspect",

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holds good. I do not think that such a proprietor would be expected as a matter of routine to check through all the publications on sale in his shop. However, if it was pointed out to the proprietor that a tobacco advertisement was included in a publication, then he would have a responsibility to do something about it.
I suspect that there will be disagreement across the Committee on this matter. However, I believe that the construct of the Bill is right and strikes a fair balance. The targeted defences are robust and the prosecution would have to work hard to secure a conviction.
The Earl of Erroll: Before the noble Lord sits down, on reading the clauses in the Bill I should like to raise a point as regards the difference between publishing material and printing it. I believe that there is rather a muddle here. Sometimes we refer to printing and sometimes we refer to publishing. The publisher of material reads and checks it, but does not imprint it on to paper. A printer may well not be involved in any way in the editorial process. In a particular case, I am not sure whether the Bill would seek to punish the publisher or the printer.
Lord Hunt of Kings Heath: I should apologise because I believe that my comment to the effect that I have been both a publisher and a printer may have confused the Committee. Of course I accept that the task of publishing material is different from that of printing it, although sometimes one person may undertake both tasks. However, the point I wish to stress is that I do not think that the constraints being placed on printers by the provisions of the Bill are unreasonable.
Lord Clement-Jones: Oppressive on the small printer, or proportionate—that is the question. I agree that this is a serious issue. I freely admit that my own printing credentials are not of the highest: I have a duplicator in my basement. However, I understand the issues being raised in regard to the provision.
Having been a libel lawyer, I am slightly baffled as to why it is believed that the constraint imposed by the Bill is in some way novel for those involved in printing material. As soon as it is made clear that printed material has been communicated to someone else, and it transpires that the material is defamatory, a printer must demonstrate that he has put in place certain defences, otherwise he would be brought before the civil courts on a charge of libel. In those circumstances, the test is rather more oppressive than simply that the prosecution must show beyond all reasonable doubt that the accused is guilty of a criminal offence.
If printers do not check the content of the material they undertake to print, then they are making a serious mistake. Noble Lords will recall that one of the softest targets for Jimmy Goldsmith and others who in the past have sued Private Eye has been Pressdram, the printers of the magazine. Printers have been well aware of their duties for many years; probably for the past 300 or 400 years. I stress that this is not a novel constraint. Suddenly to erect the word "knowingly" as
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a totem for the purposes of the Bill and to declare that a small printer now has to face novel duties is quite wrong. We must be crystal clear about the ordinary duties of a printer. One would no more apologise for a printer who published pornographic material than one would for a printer who produced material that was racist in content.
I feel strongly that, because the constraint is not novel, it is perfectly appropriate that it should be included in the Bill. The defences laid down in Clause 5 confer on all parties proper redress. However, I agree with the noble Lord, Lord Lucas, about the role of a "deviser". How could an advertisement promoting tobacco not "knowingly" be devised? Would it be done during a long sleep over the weekend? It is perfectly clear whether an advertisement has been devised. The noble Lord, Lord Lucas, has erected his argument on the back of the role of a printer, but it would be extremely difficult to erect it on the back of any of the other occupations set out in the Bill.
Lord Monson: Let us suppose that a draftsman is asked to create a design on a piece of silk, but that any wording to accompany the final design was to be undertaken by someone else. It then transpired that the piece of silk was to be used indirectly to advertise Silk Cut cigarettes. Would such an individual be in danger of being prosecuted under the provisions of the Bill because he had contributed indirectly towards an advertisement used to promote a tobacco product?
Lord Clement-Jones: Clause 5 provides plenty of comfort, even for a junior barrister employed by the noble Earl, Lord Erroll. He would have a lengthy list of possibilities from which to choose. I suggest to noble Lords—including the noble Lord, Lord Lucas, who has made a perfectly proper case—that they should look through the defences. They will see that they are extremely wide in ambit.
Baroness Noakes: I thank the noble Lord for giving way. Perhaps I may take him back to the discussion we had earlier about advertisements. We were trying to obtain clarity as to what is an advertisement. The noble Lord described that a printer may have to go through the whole copy in order to avoid the libel laws, but it is not easy to understand why that should apply if, for example, a printer is producing a letterhead which in some circumstances may not be a tobacco advertisement and from what I understood earlier in other circumstances could be a tobacco advertisement. Given the resistance of the noble Lord, Lord Clement-Jones, and the Minister to being specific about what is or is not an advertisement, we may be imposing potentially significant burdens on printers, distributors, publishers and devisers.
Lord Clement-Jones: I perhaps have more confidence in our judges than the noble Baroness. That is precisely the reason for having the ordinary meaning of the word "advertisement" in the Bill. If you have a very technical meaning, you should not expect a printer, a publisher, a deviser in his sleep, or whoever

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else you choose as an example, to understand what is an advertisement. If they have to go through three schedules to the Bill in order to find out what is an advertisement, that is precisely why a specific definition would be wrong. We prefer the ordinary meaning, because if a judge is then faced with a printer who says, "That is what I understood an advertisement to be", as sure as not the judge will agree.
Lord Lucas: Let me start with the point that the noble Lord, Lord Clement-Jones, did not address—that is, the one about the corner newsagent. I was interested when the Minister said that when a newsagent is told there is a tobacco advertisement in a magazine—and he opens it and he sees it—he should do something about it. That is what "knowingly" means. Once he has been told, he knows. Once someone says, "I told him", there is the proof that he knew what the prosecution wants. That is the offence for newsagents as I would like to see it. The noble Lord, Lord Clement-Jones, did not address the issue of newsagents at all.
Returning to the underlying principle of my amendment, why should people who do not have any part in the decision-making process—by way of creating, publishing, funding or in any other way taking executive decisions—in relation to an advertisement have a liability of care? I agree that if they take part knowingly they should commit an offence. But why should they go about their lives making sure that they do not commit an offence?
If someone chose to attack my printers for liability, my printers would have resort to their terms and conditions, which state that I would have to pay. That is fair enough because the attack would be a back-door way of getting at me. But here we have a criminal offence where the printer can be imprisoned for two years. That is not something the printers can get around by the transfer of liability or an insurance policy. It is much more serious than the mere transfer of a civil liability. We are dealing potentially with giving people or organisations criminal records and prison sentences. I just cannot see why. What kind of loophole would be created if printers were left out of the reversal of the burden of proof if we made it "knowingly" for printers?
I support the noble Lord, Lord Clement-Jones, on the question of "devise". Anyone who takes an active part in creating something should take care to know what it is they are creating. But on the issue of printing, my disk goes into the printers and its contents are on the machines half a day later. Printers do not have time to read the book. The whole process of printing would slow down if they had to read everything. The reading is done by the publisher; the responsibility is taken by the publisher. The sanction of the criminal law should lie on the people who take the decisions, who pay the money, who are making the investment in an advertisement. It should not lie on people who are merely performing a necessary process which follows on that, either the printer or, as has been said, the
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newspaper boy, who would be a distributor under the Bill. Presumably he will have to read every newspaper he is delivering in order not to be liable for committing a criminal offence.
That is taking the matter to ridiculous extremes, but the criminal law should not even potentially attack those people because they are not playing a crucial part in the chain of creating a tobacco advertisement. They are no more guilty than a person who buys a magazine containing a tobacco advertisement. Are we all supposed to read a magazine before we buy it to make sure that it does not contain a tobacco advertisement?
This kind of heavy liability should be carefully targeted on the people who make a difference. It should not impose duties and obligations on people who have nothing to do with the whole process.
1.45 p.m.
Lord Clement-Jones: I hope that the noble Lord, Lord Lucas, will in due course withdraw his amendment. His argument is that particular individuals—whether it be a newspaper proprietor or printer—are mere conduits. I believe that is the word for which he is searching.
Lord Lucas: No. Newspaper proprietors clearly fall under Clause 2(1); they are publishers. But they are not printers. Printing is done by the little machine on my desk; it is merely "data in, print out". A big printer merely does that on a grand scale and makes sure that it is done well. Publishing is where the mind has an effect on what happens. I do not expect my printers to tell me that I have a comma in the wrong place or that there is anything wrong with my copy. I expect them merely to do the job that I gave them to do and produce the books. That should not bear the burden of checking everything for a tobacco advertisement.
The Earl of Erroll: It may help the noble Lord, Lord Clement-Jones, if he spoke to the Minister afterwards about the difference between printing and publishing. They are quite different tasks.
Lord Clement-Jones: I thank the noble Earl for that guidance. I was a libel lawyer for six years, so I do understand the difference. But it was very helpful nevertheless.
The Earl of Erroll: I thought the noble Lord, Lord Clement-Jones, said earlier that he knew nothing about what went on inside printers works.
Lord Clement-Jones: My printing credentials are limited. A horny-handed printer is perhaps the best description.
I thank the noble Lord, Lord Lucas, for the clarification. Despite the number of amendments he has tabled, he is arguing for something which is highly specific to the printing trade, to the printer. He is arguing that the printer is a mere conduit.

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We have to make a choice in legislation which is designed to protect public health. The question is whether printers should be treated as mere conduits. As far as I am aware, they are not treated as mere conduits in any other legislation of this kind, whether it be in relation to racist material, pornographic material or civil or criminal libel. Libel can be a criminal offence which involves a somewhat unpleasant process.
I do not accept that on occasions printers are the poor, ignorant dupes of publishers. They have a duty to check the material in a reasonable way. They have a range of defences available under Clause 5 which have been fairly disclosed by the Minister and I hope by myself. It is not a novelty to have printers subjected to this kind of duty. The Bill does not create a precedent. I therefore urge the noble Lord, Lord Lucas, to withdraw the amendment.
Lord Lucas: Just to be clear, does the noble Lord, Lord Clement-Jones, aim those same strictures at the corner newsagent?
Lord Clement-Jones: Yes. The corner newsagent has similar duties in technical terms. It is highly unlikely that a single corner newsagent will have the full might of the law placed upon him. Who will sue the corner newsagent for distributing Private Eye, for instance? There is a degree of proportionality, I hope, about who is prosecuted and in what circumstances. But technically that is the case. However, corner newsagents will also have the benefit of extremely useful and helpful defences under Clause 5. So the situation is similar.
They have to understand that they are in business and that they cannot put out hard pornographic magazines or racist material; they have general duties. They should not be in business unless they are in a position to fulfil their obligations. The Minister was right to talk about small businesses and about making sure that regulation is not oppressive. But I do not believe that the regulation under this Bill will be in the slightest bit oppressive. The defences are there, and it is perfectly feasible—indeed it will happen—for the onus of proof to be pushed back on to the prosecution in these circumstances, using the benefit of Clause 5.
The Earl of Erroll: For clarification, perhaps I may ask about the example of a corner newsagent who sells a magazine that is printed and published abroad. The magazine is not about tobacco advertising—this is where the provision differs from that relating to pornographic or racist material; however, the advertisement is buried somewhere in the middle of its 20 or 60 pages. My knowledge of law is not good enough to know whether in those circumstances the corner newsagent would be liable for prosecution. Would he be legally responsible if he displayed such material for sale?
Lord Clement-Jones: That is a very good question. It is proportional in the way these matters operate. Clearly, in the way that one can tell from a magazine
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cosver whether it contains hard porn, tobacco advertisements would be pretty obvious. If a newsagent sells 350 publications, he would not be expected necessarily to have to go through all of them to see whether they contained a tobacco advertisement. But if the advertisement is on the back or the front cover, it is reasonable to expect him to see it. The way in which the Bill is framed is extremely sensible in that respect. This is not an oppressive piece of legislation. The newsagent is protected in the way the noble Lord seeks.
Lord Lucas: That has been a helpful exchange. I certainly understand the noble Lord's position much better than I did. I suspect that I still disagree with him. However, I shall do him the honour of reading what he has said in Hansard, and also what the Minister has said. I beg leave to withdraw the amendment
Amendment, by leave, withdrawn.
The Deputy Chairman of Committees (Viscount Simon): Before calling the next amendment. I must advise the Committee that, if it is agreed to, I cannot call Amendment No. 12 due to pre-emption.
Lord Skelmersdale Lord Skelmersdale moved Amendment No. 11:
Page 1, line 15, leave out subsection (3) and insert—
"(3) It is not an offence under this section for a person to distribute or to cause the distribution of a tobacco advertisement by electronic means if the activity of the person is limited to the technical process of operating and giving access to a communications network over which information made available by third parties is transmitted or temporarily stored for the sole purpose of making the transmission more efficient, or is limited to providing the hardware and software to enable the transmission or distribution."
The noble Lord said: The arguments that we have just heard on printers and publishers apply even more to Internet service providers. With this amendment, we begin a whole series of amendments relating to electronic media.
As the Minister and I discussed briefly at Second Reading, Internet service providers are anxious that the legislation will not create a precedent by making them liable for what are effectively actions by third parties. They are understandably concerned that the Internet should be regulated as little as possible by United Kingdom authorities to assist the growth of e-business in this country. Indeed, the Government want to make Britain the major e-business country in the European Community.
I had the pleasure of being a member of your Lordships' Sub-Committee B of the EU committee during its discussion of e-commerce policy development and co-ordination in the EU. It was made clear that the Government will do everything in their power to promote everything to do with websites and electronic media in general and to make sure that they continue to expand.
I accept that the Bill as it stands provides a possible defence for an Internet service provider in Clause 5(5) that he was unaware of an offending advertisement. But as soon as he is made aware, he is regarded as

837
having published the advertisement or having caused it to be published. Unless he removes it, he is at risk of having committed an offence.
The word "conduit" was mentioned in connection with publishers. The Internet service provider can only be described as a conduit. I am sure that I do not need to go into the details of how a website is published. But one thing is certain: the Internet service provider simply provides a service for something that he cannot even see.
That said, there is an even greater problem; namely, that Clause 2(3) of the Bill means that even suppliers of computer hardware—for example, screens and keyboards used by a tobacco advertiser or by members of the public who access a tobacco advertisement that is transmitted electronically—would be caught. Noble Lords may say that that is all right in the context of the Bill. But even worse than that, so too would the supplier of a land-line telephone, a mobile telephone or WAP phone. It is pretty silly that such providers should have to take steps to prevent further distribution of an advertisement in order to avail themselves of the defence under Clause 5(6). The question is whether this matter has been discussed with Oftel—which government departments in general would be well advised to do.
The purpose of these amendments is principally to address the concerns of Internet service providers who, merely by being the conduit or providing the means of transmission of a tobacco advertisement, will have committed an offence under the Bill as it stands. My proposed replacement subsection should, I hope, mean that the provision of the means, either by hardware or software, of access to the Internet and/or a website is excluded from the offences under Clause 2(1) and Clause 2(2) of the Bill.
The amendment would not interfere with the Bill's intention. It would still be an offence to distribute a tobacco advertisement in electronic form. The offence would be limited to those persons who initiated transmission—in other words, those who keyed in the information for transmission direct to third parties or to a website where it could be accessed by third parties.
A further consequential amendment would be the deletion of subsection (5) of Clause 5. I refer to Amendment No. 39, to which I would have put my name had I been quicker off the mark. As I understand it, subsection (5) provides that Internet service providers are not to be taken to be publishers or to have caused an advertisement to be published.
It subsequently occurred to me that subsection (6) of Clause 5 should also be deleted, as it is specifically aimed at parties such as Internet service providers. Anyone else accused of distributing a tobacco advertisement can still rely on the defence in Clause 5(4) that he or she did not know that what they distributed was a tobacco advertisement. That point has been made several times during the course of our discussions today.
I said in an earlier intervention that one of my objectives, since the Internet service provisions were so complicated, was to have them included in a discrete section or series of clauses. That remains my intention. However, for the moment, I should like to know exactly where the Government stand on the idea of publishing by Internet service providers. I beg to move.
Earl Howe: My Amendment No. 12 was supposed to be grouped with this one, as it relates to exactly the same territory as my noble friend's amendment. I agree entirely with what he has said. There is a real risk that this part of the Bill is likely to create a legal absurdity and I hope that the Government will listen carefully.
I can understand why Internet service providers should have to fall within the ambit of these prohibitions. Even though ISPs are mere conduits of information and cannot— indeed should not—be required actively to monitor such information, they will need to be required to take appropriate action if it is brought to their notice that they are facilitating the distribution of an illegal advertisement. I have no problem with that. The problem I have is with the idea that manufacturers and suppliers of the hardware and the infrastructure on which an advertisement may be displayed or distributed should be made liable. The difficulty, as my noble friend explained, relates both to computer hardware and to mobile phones. But I am troubled also that BT, which owns the wires down which electronic information is transmitted, should in any sense and in any circumstances be seen as being culpable for what those wires may carry.
The noble Lord, Lord Clement-Jones, will no doubt tell us that BT has a defence in law under subsection (6) of Clause 5. I understand that BT cannot be expected to be aware of what is distributed over its network. But what if it is made aware of what is being distributed? Clause 5(6)(b) states that,
"having become aware of it, he was not able to prevent its further distribution".1
I should like to hear the noble Lord's interpretation of the words "not able". It seems to me that BT would be physically able to prevent the further distribution of the material in question by disconnecting part or all of its network until the offending material had been removed. But that is hardly the real world. It is wholly unreasonable and impractical. BT is not in a position to exercise any real control in that sense. But that is not what Clause 5 states: it uses the words "not able". I believe that a network provider such as BT should be excluded altogether from the scope of the sanctions in the Bill and that the same should apply to the manufacturers and suppliers of computer hardware.
2 p.m.
Lord Peston: I am always astonished at the imagination of the inventors of amendments. It never remotely occurred to me that hardware in the form in which we have discussed it could possibly be included. I go back to my now favourite subject of printers. It

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had not occurred to me that the producers of printing machines would be capable of coming under the ambit of the Bill. I refer to the producers of the electrical plugs that go on to the printing machines. The matter gets more and more ridiculous the more you follow the worries of the Committee.
In my opinion the Bill has nothing to do with physical equipment. I should be interested to know what the Minister and the noble Lord, Lord Clement-Jones, have to say about that: it had never occurred to me that the measure concerned physical equipment. It concerns services. The question arises: should there be this imposition placed on those who provide services in this area to accept their responsibilities? I believe that the answer is absolutely yes. Indeed, my concern as regards subsection (6)(b) of Clause 5 is that it goes too far in the other direction and that there is a let-out for someone to claim that he or she was unable to prevent certain action.
In preparation for today's debate I spent some time searching the net. Several of the participants in today's proceedings are some of our leading "surfers". I searched for a cigarette advertisement but I could not find one anywhere. If I had found one on a site of your Lordships, I assume that I would have to draw it to the attention of PDVN as the people responsible for allowing me to access a cigarette advertisement. PDVN would say that it could not prevent the advertisement's distribution and, therefore, it should remain. I see that that is a valid argument in that case.
However, let us assume that it was the other way round and the tobacco companies had a website via some ISP on which they put their advertisement. Let us go further and assume that that is happening abroad. It seems to me that one can put firewalls around those matters and prevent their distribution. Some Members of the Committee will know more about this than I do. Much of the row over paedophilia on the web concerned the need to stop those people advertising what they do and setting up their networks on the web. In that case no argument was put forward in terms of fundamental liberties on the part of ISPs with regard to tackling that matter. However, I speak not as an expert on that matter.
The noble Lord, Lord Skelmersdale, is right to raise the matter. I agree with him more generally that the whole question of electronic transfer applies to a great deal of the issues that we discuss on all kinds of subjects in this Chamber and it is as well to get the matter clarified. However, I do not believe that we need go further than getting clarification from the Minister. However, I should like the Minister at least to reassure me that these people are not given too easy a way out by enabling them to say, "It is nothing to do with us. We cannot do anything about the fact that loads of cigarette advertisements are being placed on the net and you will get to them while looking for something else. We are glad the matter has been drawn to our attention but that is too bad".
Lord Lucas: Given the chance, I am sure that the noble Lord, Lord Clement-Jones, would agree with the noble Lord, Lord Peston, that ISPs should be put
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at least on the same basis as a newspaperboy and made to take care over what they distribute. Sadly, not so long ago we passed an Act which made it a crime for an ISP to know what it was passing over its network. They are not allowed to look. If they knew what was passing over their network, they would be committing a crime. So this Bill makes it a crime for them not to commit a criminal offence.
Lord Peston: So far as I know, they are not prevented from looking at the websites that they themselves are putting out. That is not what the legislation decided. That would mean that people who work for an ISP company could not surf the net and, so far as I know, the legislation does not say that at all.
Lord Lucas: They are not permitted to look at the traffic over their network. They are, of course, permitted to look at the sites. If an advertisement came in by e-mail, they could not know until they were told. Once they have been told, of course, they have an ability to do something about it.
I should like to give the Minister and the noble Lord, Lord Clement-Jones, free rein to refer to any of my later amendments that I have not talked about yet in replying to this matter. It does raise the whole subject and what is said may remove any necessity for me to speak to later amendments. I always encourage that. ISPs are, within limits, a special case. I agree that they should have proper responsibility but we must respect the fact that they are a conduit. They are not a publisher by and large. They are also subject to severe restrictions on what they are allowed to do and look at. It is really only the security services that have the ability to see what is passing through an ISP's network.
The Earl of Erroll: I wish to lend weight to what the noble Lord, Lord Lucas, said. I have seen this situation occur already as regards the Internet and libel provisions. A nice heraldic website was closed down because some people who did not like what it said about bogus titles threatened to sue the ISP on which that site was kept. The ISP had no axe to grind on the issue and the threat of prosecution was enough for it to prefer to close down the website rather than run the risk that the person who published the site on its servers would lose the case, which would bring the ISP down as well.
It is simple when what we are dealing with is clearly tobacco advertising. The problem comes in paragraph (b), which says,
"whose effect is to do so".
Because that is subjective, we could end up with all kinds of problems. If one person wanted to attack another's website, he could threaten the ISP by suggesting that it was hosting something illegal. The great example is a picture of some silk with a cut through it: is it an advert for Silk Cut, or it is an innocent picture? Such a provision can be misused by people with ulterior motives to a far greater extent than some of us realise. It is easy for us sitting in our ivory tower to argue intellectually, but I am afraid that the real world is not so honourable and the cost of

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justice is so high that for most people it is out of reach. We have to be very careful how we frame our legislation.
The Earl of Northesk: I was unable to participate at Second Reading, so I should inform the Committee that I am a member of the Lords and Commons Pipe and Cigar Smokers Club. With that interest declared, it is not surprising that I support my noble friend Lord Skelmersdale in his amendment. I shall make only a few general observations.
I acknowledge and respect the ambition to future-proof legislation in the face of technological developments. In some respects, that may explain the current drafting. However, such an ambition needs to be founded on the correct baseline. I sometimes feel that the understanding of IT matters in government circles and more widely in Parliament is not as extensive or wide-ranging as might be desirable. I hasten to add that that point is not a criticism, but is made in a spirit of helpfulness.
In his introduction to the amendment, my noble friend alluded to some of the difficulties and anomalies that the drafting will give rise to. That illustrates my point. The amendment addresses those anomalies without in any way harming the thrust of the Bill's intention.
At Second Reading, many noble Lords referred to relevant European directives. My particular interest is Directive 2000/31/EC on certain legal aspects of information society services. I suspect that we shall return to the issue quite often in Committee. In this context, consistency of legislative approach towards IT within the single market is desperately important. There is a strong argument for transposing the terms of the directive word for word into UK law.
No doubt the Committee will return to the theme on later amendments. It is enough at this time to say that the potential inconsistencies between the directive and the current drafting of Clause 2(3) should, if possible, be avoided. As the Internet Service Providers Association has noted in its submission to the Department of Trade and Industry on the directive:
"A proper implementation is significant for the UK to remain one of the leaders of e-business in the EU—a poor implementation could result in many new businesses choosing not to locate in the UK, but rather offer services to the UK from a non-UK base. UK companies would then be disadvantaged when competing in the Single Market with companies based in Member States where a more accurate transposition had taken place".
The problem is that the cumulative effect of imposing what could be described as a harsher regime of regulation on UK internet service providers, not only in this Bill, but also through the Regulation of Investigatory Powers Act 2000, referred to by my noble friend Lord Lucas, and certain elements of the Anti-terrorism, Crime and Security Bill, which we shall debate shortly, raises a real prospect that ISPs will migrate elsewhere. That would be harmful to the interests of the UK economy.
On a slightly less serious note, I also take this opportunity to echo the plea of my noble friend Lord Skelmersdale. It might have been more convenient had
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all the IT elements in the Bill been drafted together in a single clause or set of clauses. I cannot help feeling that adopting such a practice for future Bills with IT elements would make for easier understanding of legislation, particularly by those with an interest in the subject.
Lord Filkin: In my naivety, I thought that Amendment No. 11 would be shorter and simpler to deal with than Amendment No. 10, given the detail that we had gone into. However, some interesting and important points have been raised.
As noble Lords know, the intention is to create a comprehensive ban on tobacco advertising in all media, whether new or traditional. The Bill expressly covers advertising in the electronic media, with appropriate targeted defences.
The Government believe that the Bill will also comply with the European e-commerce directive. I take the important point made by the noble Earl, Lord Northesk, about ensuring consistency between legislation as far as practicable, for the reasons that he pointed out. If, as we believe, it does that, the liability of intermediaries will be limited to circumstances in which there is knowledge of illegal activity and corrective action is not taken expeditiously. Members of the Committee will see that the Government's original draft Bill captured the spirit of that in Clause 5(5) and (6).
I am grateful for the acknowledgement of the noble Earl, Lord Howe, that it is important that Internet service providers fall within the scope of the Bill for the reasons to which he alluded. The way in which we have sought to address that is to set out in Clause 5(6) very clear defences for such people. It provides that anyone charged with an offence of distributing a tobacco advertisement by electronic means will have a defence if he can prove that he was unaware that what he was distributing, or caused to be distributed, was a tobacco advertisement or that, having become aware of it, he was not able to prevent its further transmission.
We were invited to comment on a number of potential hypothetical circumstances in that context. The first was the example of the computer hardware manufacturer who had sold a PC which was then part of the chain of process which led to an illegal advertisement being transmitted. We do not believe that it is conceivable that the computer hardware manufacturer could possibly be caught by the Bill. Such a situation is so remote from his power or understanding that it seems completely implausible that he would be liable.
The situation is not so simple in relation to a telephone company. However, again, the legislation as drafted is reasonable. I should perhaps have touched on the point raised by the noble Lord, Lord Lucas, concerning ISP providers. If I assume, for the sake of argument, that he is correct that such providers are not able to inspect the traffic that flows through their networks, then they cannot possibly be caught because they will have the defence of being unaware of what was being transmitted. Therefore, on that leg they are perfectly safe.

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If either ISPs or telephone transmitters did become aware of what was happening to their networks, the action that they would take would be fairly straightforward and reasonable. It is not conceivable that they would not write to Imperial Tobacco Group or whoever it was and point out, through a lawyer's letter, that they believed that they were being put at risk because they were being asked to transmit what they considered to be illegal activity. In those circumstances, one might consider that that would lead to the principal taking action so that the agent was no longer at risk. I do not want to speculate further on that point. However, it seems to me that in such cases there are perfectly reasonable redresses, as provided for within Clause 5(6), to defend the agent from the actions of the principal which put them at risk.
Because of those clear defences and because, for reasons that we mentioned previously, of the importance of avoiding loopholes, which I trust no Members of the Committee want to see, it seems to the Government that it is right and reasonable to keep those who provide the means of transmission within the scope of the Bill.
Lord Clement-Jones: I thank noble Lords who have participated in this debate. I believe that very important issues are at stake here. Of course, I have some sympathy with those who are connected with the new media because there is little precedent in this area. We have a new e-commerce directive, which many people welcome, and it is important that we ensure that we march step in step with the contents of that directive.
However, I hope to demonstrate to the Committee that the amendment would be out of step with the e-commerce directive. The original government Bill, whose wording I have taken wholesale for the new Bill, is almost entirely consistent with the directive. As the noble Earl, Lord Northesk, pointed out, the terms of the European directive involve knowledge and corrective action not being taken expeditiously. That language in the e-commerce directive is reflected in the defence in Clause 5(6).
What the directive does not say is that ISPs are a mere conduit. They do have responsibility for the websites which they host. One has only to look at the AOL case which, I believe, involved Nazi memorabilia. Perhaps it was Yahoo!; I do not recall which ISP it was. Of course, those providers have a duty. It is not at all consistent with the e-commerce directive to try to delete wholesale the abuses of an ISP in those circumstances.
Therefore, while I understand the concerns of noble Lords, I certainly do not believe that that is the right way forward. It is important to ensure that the defence in Clause 5(6) is apposite and properly drafted, and so on. Currently I do not believe that anyone has put forward the argument that it is not properly drafted.
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In terms of the way in which Clause 2(3) is drafted, I, like the Minister, find it somewhat extraordinary that people could believe that the provisions would cover the hardware—the means of transmission. That could be defined as lines or radio waves rather than the actual equipment.
The noble Earl, Lord Erroll, was concerned about the effect of the second limb on the advertisement, and he was worried about whether it would be reasonable for an ISP to be trapped by the provision. Clause 5(2) contains a perfectly respectable defence, which deals entirely with that matter. It states that it is a defence for a person to,
"prove that he could not reasonably have foreseen that that would be the effect of the advertisement".
The more that I consider Clause 5, th2 more attractive it becomes—that has happened during the course of our debate. I hope that Members of the Committee accept in good faith that I and the predecessor draftsman who produced the government Bill are tying to do the very best by ISPs and to ensure that we maintain our international obligations.
Lord Skelmersdale: I am rather stunned; I am not sure whether my powers of invention were being praised or criticised by the noble Lord, Lord Peston. When I read a Bill, various things occur to me. Clause 2(3) states:
"Distributing a tobacco advertisement includes … providing the means of transmission".
When I saw that phrase I thought, "How wide should that be?" I am not lawyer, unlike the noble Lord, Lord Clement-Jones, so I do not begin to know the answer. However, it struck me that the provision could be extremely wide. That is why I tabled the amendment.
Lord Peston: I was certainly praising the noble Lord and I was implicitly criticising myself. It never remotely occurred to me that any of those matters could possibly be connected with the clause. I entirely accept that it is me who is being thick and the noble Lord who is showing all the subtlety of thought that the Bill requires.
Lord Skelmersdale: It is just as well that the noble Lord is on that side of the Committee and that in front of him is the noble Lord, Lord Filkin, who was in the same position when he suggested that the amendment would be dealt with quickly and easily. Clearly, it has not been.
To be serious, I am grateful to all noble Lords who have contributed to this debate. As I said, this amendment is at the beginning of a long series of amendments relating to the Internet. I am not entirely sure that, with or without the EC directives to which my noble friend Lord Northesk referred, the arrangements are quite right yet. However, I cannot possibly make a decision at this stage. We have a whole lot of amendments to go through. On the certain understanding that I shall bring something back on Report that takes into account our discussions today—and possibly on another day—I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Earl Howe Earl Howe moved Amendment No. 12:
Page 1, line 16, leave out from "form" to end of line and insert "or participating in doing so".
The noble Earl said: I have in effect already spoken to this amendment, which is grouped with my Amendments Nos. 91 and 92. Before turning to those amendments, I want to come back to the noble Lord, Lord Clement-Jones, on one point. He effectively said that we all know what we mean by the phrase,
"providing the means of transmission".
However, his trumpet call so far today has been that we should rely on ordinary meaning. To do so in some circumstances in relation to the Bill could land us in a heap of confusion. I was glad that my noble friend Lord Skelmersdale said that he will revert to the matter at a later stage. Turning to Amendments Nos. 91 and 92, we must understand what we mean by some of the terms contained in the Bill—in particular what I would class as technical terms such as Internet service provider and website. It is not enough to say, as the Government appear to be saying, that enforcement authorities and the courts should be left to decide on the interpretation of such terms.
Once again, that is an issue of principle: whether the Bill should aim to provide as much legal certainty as possible; or whether it should leave people feeling unsure about what the law actually says and find out only when a court convicts them.
I make no special claims for the wording of my amendments—no doubt it can be bettered. The point is whether there is some provision or none. Clause 7, which we shall debate later, allows the Government to amend any part of the Bill in consequence of developments in technology. If we do not define terms such as Internet service provider, we have no means short of a court judgment to determine what those terms could be taken to capture, and therefore no means to determine what might amount to a development in the technology. That is unsatisfactory.
The fact is that, in some people's eyes, "Internet service provider" includes almost anyone doing anything over the Internet. Many people spend time getting information onto someone else's computer in some way or other. They are in a real sense Internet service providers. The same applies to the world-wide web: that is also an Internet service provider.
Even the term "website" leaves room for all kinds of argument. If I download a picture of a tobacco advertisement from a website onto my computer, am I guilty of an offence? The Minister may say that I am not, but the Bill appears to say something different. We must understand what the term "website" means. Where does a website "exist"? That is a complex, almost philosophical question, which admits varying interpretations.
Even if the precise wording of my amendments is not perfect in the eyes of the Minister and the Bill's sponsor, I hope that they will be sympathetic to my general points. I beg to move.
The Earl of Erroll: Perhaps I may briefly expand on that point, which is a good one. Earlier, I used the words "Internet service provider" in a rather general way. I was thinking of people who hosted websites. An ISP can equally be someone who simply gives access to the Internet, but does not host the sites that are visited.
Equally, there are proxy servers. It is normal now to have mirror sites and proxy servers all round the globe to give people faster access. Someone may therefore post a tobacco advertisement on the main site in America that will immediately or on a regular basis be mirrored to several other locations around the world—of which one, two or more may be in Britain. As that is an automatic process, people would not know what was entering their proxy server. That will have to be carefully considered, because there is no intervention in that process; it is automatic.
I have two other brief points to make. First, in reply to a point about accessing raised by the noble Lord, Lord Peston, if he used google.co.uk, he could access 1.5 billion Internet pages. I say that to give the Committee an idea of the scale of the problem—of how many pages are out there. Secondly, on the subject of clarification, when the noble Lord, Lord Clement-Jones, makes one of his useful clarifications, does that have the same subsequent legal weight as a statement made by the Minister, which carries some weight afterwards and commits the Government to a certain course of action? Do we have to have some of the clarifications of the noble Lord, Lord Clement-Jones, as to websites mirrored by the Government Front Benches?
Lord Hunt of Kings Heath: Clearly the noble Lord, Lord Clement-Jones, cannot speak for the Government.
A noble Lord: Not yet!
Lord Hunt of Kings Heath: It will be a very, very long time. I have already commended the noble Lord on the excellent draftsmanship which he brought to this Chamber.
Perhaps I can pick up on the general point raised by the noble Earl, Lord Howe. I regard the ISP providers as an important part of this country's economy. Clearly we want to support their well-being. I met the trade association with the noble Lord, Lord Lucas, at the time of the Second Reading of this Bill when it last appeared before your Lordships' House. At that time we discussed Clause 5(5), which was the question as to whether ISP providers should be defined as "a publisher". I had some sympathy with the points raised at that time and I know that we will come back to discuss those matters in more detail later. But in the way the amendments have been grouped we are

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perhaps putting the cart before the horse. However, I have no doubt that we shall have an interesting discussion on that issue.
I listened with great care to the points raised by the noble Earls, Lord Howe and Lord Erroll. But I caution against going down the path of two types of definition, partly for the reason that they raised in terms of people's understanding. If we try to define terms like "website" or "Internet service provider" as of now, we run the risk of including something that in one or two years' time will not be what people understand by those terms or of excluding something which in future will perform the functions of a website or Internet service provider.
As with the word "advertisement", which we have already debated, it is sound legislative practice to let a word bear its natural meaning. Also, I believe the term "website", which was specifically referred to, is understood to mean a location on the world wide web identified by a web address. A website consists of one or more pages of information or data in a form intended to make them readable by the person accepting it.
The noble Earl, Lord Howe, also mentioned Clause 7. I fully accept that that allows us to take account of developments in this fast-moving area of business. It is possible under that clause for the Government to come back and suggest amendments. I know we are to debate Clause 7 later, but I would not have expected it to be used frequently. In a sense, I am arguing for a degree of flexibility in terms of the wording used in relation to websites and ISPs because there is a problem in having too tight a definition.
The backcloth to all this is that, if the pace of change moves so quickly that even that provision does not cover the position, if this Bill were passed, the Government would be able to bring regulations before the House to try to ensure that any major new development was covered by the Bill.
Lord Clement-Jones: I can add little to what the Minister had to say. I promise to do a search against the noble Earl, Lord Erroll, on google immediately, just to enjoy myself over the weekend.
It is a mistake—the Minister is entirely right—to set the definitions in concrete. The commercial reality of the web is shifting and flexibility is needed. I am surprised that the industry is behind this move to have further definition. I do not believe it would serve the industry's interests to have too rigid a definition enshrined in legislation. As the Minister pointed out, Clause 7 gives the ability to alter the terms of the Bill if we find ourselves in a situation where the terms used in the Bill, "in an electronic transmission", do not serve our purpose. I believe that the Bill has the necessary flexibility. If the noble Earl, Lord Howe, gives us the choice of something or nothing, as he did at the beginning of his introduction, I suggest that we choose nothing.
Earl Howe: I was looking forward to an occasion when I would be able to say that there is not a cigarette
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paper between the Minister and the noble Lord, Lord Clement-Jones. I think this is a case in point. I shall go away and consider whether or not the term "advertisement" has a natural meaning. I suspect that there is a sense in which it does. However, the question I pose is whether "Internet service provider" and "website" have natural meanings. I am not convinced that they do. It seems to me that one man's flexibility is another man's legal fuzziness. Do we really want a situation where someone could be, in all innocence, providing a service to someone else and is suddenly classed unwittingly as an Internet service provider. I am not sure that that is the right way to go about things.
Lord Hunt of Kings Heath: I am grateful to the noble Earl for giving way. I wonder whether he agrees that in a sense there is a hierarchy of options here. By trying to get the definition too tight, we leave insufficient flexibility for the future. While Clause 7 is available, we do not want to take a hammer to crack a nut. In a sense, we need a sufficiently broad definition to allow the Bill to come into being and to be conducted properly. Clause 7 is very much a backdrop, rather than having to be used on a frequent basis, because the pace of change moves so quickly.
Earl Howe: I understand the point the noble Lord makes. The very point I seek to make is that we do need a broad definition, as he puts it. There is no definition in the Bill. In the context of what I believe are new and fairly technical terms I think that it is perhaps a mistake not even to make a stab at this. I shall reflect with great care on what has been said in the debate. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Skehnersdale Lord Skehnersdale moved Amendment No. 13:
Page 1, line 17, leave out "who does not carry on business" and insert "whose place of establishment is not"
The noble Lord said: In moving Amendment No. 13 I shall speak also to Amendments Nos. 47 and 53. A few moments ago, my noble friend Lord Northesk talked about the e-commerce directive. What he did not say was that it was adopted by member states in June last year and comes into effect, I understand, on 17th January next year; in other words, before the Bill is likely to become effective law.
The amendments are to ensure that the Bill. and in particular the ban on the transmission of tobacco advertisements by electronic means—including a ban, as we have heard, on the provision of the means of transmission—is consistent with that directive. Clearly, the purpose of the directive is to facilitate commerce over the Internet. Under Article 3, those who trade on the Internet are obliged only to comply with the laws of member states "where they are established". That is the important point.
Other member states are not allowed to impose further regulations on their activities. The Bill purports to restrict Internet advertising by anyone who carries on a business in the United Kingdom. However, a person who carries on a business in the United Kingdom may quite easily have a place of

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establishment in another member state where tobacco advertising on the Internet is, for a short time only, permitted, that short time being until a new tobacco advertising directive is adopted.
There is not a very good history at present on tobacco advertising directives. One has in mind the activities which go on in Germany and elsewhere. However, I have no doubt that in due course members of the Community will sign up to a tobacco advertising directive, which is right. The amendments are necessary to ensure that the Bill complies with the e-commerce directive.
Interestingly, the Government have produced two lines of thought. As regards the earlier amendment, they said that they did not want to be tied in too closely to a directive. As regards the previous amendment, they quoted and praised the directive. I am not sure where I am and on that basis I beg to move.
The Earl of Northesk: I rise to support the endeavours of my noble friend Lord Skelmersdale in respect of the three amendments. My noble friend explained the thinking behind them far more eloquently than I could, but at the risk of trying the patience of the Committee, perhaps even the noble Lord, Lord Clement-Jones, I revert to the theme of accurate transposition of the EC directive.
In passing, I merely suggest to the noble Lord, Lord Clement-Jones, that there is a divergence of view as to whether the provisions on the face of the Bill are consistent with the relevant directive. I am certainly not convinced on the point and my understanding is that the ISPA is equally unconvinced.
I repeat that we should not underestimate how important it is that legislative measures in respect of the Internet are consistent with the directive and thereby throughout the single market. To my mind, these amendments serve that purpose. For that reason, as well as the convincing argument of my noble friend, I welcome the amendments.
Lord Lucas: If the Minister chooses to address my Amendment No. 54 at the same time, I shall be content.
Lord Filkin: I am grateful to the noble Lord, Lord Skelmersdale, for explaining to the Committee what lies behind the amendments because we were scratching our heads to try to ensure that we understood them. I shall respond to why the Bill is currently drafted as it is and acknowledge the important point of ensuring that any legislation is compliant with European legislation which will predate the Bill were it to pass.
Lord Skelmersdale: Does the Minister realise that the score is now 1:2 on that front?
Lord Filkin: I did not sit down or give way and I have therefore not granted the point! I am seeking to be courteous and to grant that the amendment is worth inspecting.
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The amendments address provisions in the Bill which make it clear that it does not have extraterritorial effect. We do not want it to do so and we have sought to make it clear in that respect. It keeps out of its jurisdiction people who do not carry on business in this country but who are involved in the transmission of tobacco advertisements by electronic means, which is seen here.
Our concern about the amendment is that it seeks to replace the clear and easily understood phrase "carry on business" in the United Kingdom with a less satisfactory alternative. What is meant by "a place of establishment"? A person may have more than one place of establishment and even if he is established on one place only outside the United Kingdom, he might trade here in addition to his country of establishment. In that case, the Government would clearly want to ensure that he was caught by the prohibition on tobacco advertising.
I now turn to Amendment No. 54. We believe that it is unnecessary. While we are sympathetic to the intention, the phrase,
"carry on business in the United Kingdom".
implies an actual presence here. That requires a presence in the UK and it is an unnatural meaning, even in these days of the Internet, to say that someone is carrying on business in the UK when they are not in the UK. People have been doing business over the telephone for years and one would never say that because you bought something from someone abroad over the telephone that someone abroad was carrying on business in the UK.
As regards what would amount to the carrying on of the business here, the courts have held that a person carries on business in England where it has a branch only here. Furthermore, one could say that a person or body would be carrying on business in the United Kingdom whether it had its main office or only a branch in this country. The wording of the Bill makes clear that an undertaking which does not carry on business in the UK will not be guilty of an offence even if, for example, the website is accessed and the prices of tobacco products are displayed here.
Finally, the Government are consulting on the European directive and in due course will bring forward regulations. The Government expect these provisions to be fully compatible with the directive.
2.45 p.m.
Lord Clement-Jones: I do not seek to argue with the position as stated by the Minister. I was interested in the observations of the noble Earl, Lord Northesk, about the divergence of view in the industry as to whether the Bill complied. I have looked at this matter quite carefully. I am aware that certainly in the world of e-commerce there are some difficult thickets, not least the application of some of the conventions as well as the directive. I believe that the wording of the Bill is entirely consistent with the principle of the country of origin set out in the e-commerce directive, and that is entirely as it should be. That is the argument put forward by the Government for the wording in their

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original Bill. If anything, it is a rather more precise use of words than in the e-commerce directive and is preferable in some ways, because use may well be made of multiple websites which are related much more to where business is done rather than the technical place of establishment. That is probably closer to the intention of the e-commerce directive than the place of establishment. The very least that can be said about the arguments made in this regard so far is that the case is unproven.
Lord Skelmersdale: I am grateful for the comments of both noble Lords and my noble friend Lord Northesk. I would have thought that the place of establishment of a business was well understood in law. I have a business established in my home. That business has a registration number and all the rest of it, and its place of establishment is quite clear. If I had a business in Caen, for example, under French law no doubt I would need a registered business address as in the United Kingdom. I do not believe that the place of establishment is likely to cause any problems. I well understand why the EU directive uses the phrase "the place of establishment".
As far as concerns the Internet, I begin to worry when the Minister and the noble Lord, Lord Clement-Jones, say that this will do for the moment; there may well be new laws round the corner and we just have to cope as best we can for the moment. We shall arrive at that particular moment a little later, but it does not appear to me to be a very satisfactory arrangement. However, I have heard the remarks of the Minister and the noble Lord, Lord Clement-Jones. I did not quite understand the noble Lord's argument which I shall read in Hansard very carefully. I hope that I do not need to return to the subject at Report stage. With that, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 2 agreed to.
Clause 3 [Advertising: newspapers, periodicals etc]:
[Amendments Nos. 14 to 16 not moved.]
Clause 3 agreed to.
Clause 4 [Advertising: exclusions]:
Lord Skelmersdale Lord Skelmersdale moved Amendment No. 17:
Page 2, line 15, at end insert "irrespective of the means by which the communication is made available"
The noble Lord said: Clause 4(1)(a) excludes a tobacco advertisement,
"if it is, or is contained in, a communication made for the purposes of the tobacco trade and directed"—
this is the important part—
"solely at persons engaged in any capacity in that trade (even if they are also engaged in another trade)".
Why one needs the words in brackets I am not entirely sure. We might get to the bottom of that in due course.
With the exception of the words in brackets, I thought that the exclusion was quite clear. At least I thought that until I discovered that in discussions with publishers which took place during the previous Session of Parliament the department apparently said that if a trade publication, which is made for the purposes of the tobacco trade and directed at persons engaged in that trade, happens also to be available by retail sale—say, on news stands—the exclusion would not apply. That view was confirmed at the time of consideration of the Bill by Members of another place.
That interpretation of Clause 4(1)(a) is, to say the least, somewhat questionable. There is something rather different on the face of the Bill. Clause 4(1)(a) states that the inclusion is available if the tobacco advertisement is,
"made for the purposes of the tobacco trade"—
fine—
"and directed solely at persons engaged in any capacity in that trade".
It says nothing about the means by which the tobacco advertisement might be available or whether it might accidentally or unintentionally be seen by members of the public, not in the tobacco trade and to whom it is not directed.
The trade publications about which this subsection is concerned and which are directed at relevant trades and solely to persons in those trades are generally available by way of subscription or are provided free of charge by mail to persons in those trades, as happens with virtually any trade magazine. However, there are some publications which are also available by way of retail sale and are stocked generally in small quantities by retail outlets. I am told that that is for the convenience of persons in the trade who do not necessarily subscribe to the publication or whose interest is only occasional or who desire an additional copy.
The publications and their contents have no appeal to the general public and are not purchased or read by the general public; at least I would be very surprised if they were. Yet, if what has previously been said by the department were to be followed by a court, offences would be committed under Clauses 2 and 3 of the Bill by the publishers, distributors, procurers of advertisement and the sellers of any trade publication which contained a tobacco advertisement and which was available by retail sale.
The point is whether the Government's advice still stands. If so, I am sure that we need an amendment to Clause 4(1). I am given succour in this view by an analogous recent case considered by the European Court of Justice. That was also relevant to other provisions in this clause. I say analogous because it is not identical. It concerns alcohol rather than tobacco. The case is The Swedish Consumer Ombudsman v. The Gourmet International Products AB. The latter published a magazine in Sweden entitled Gourmet. It is available by subscription. Ninety per cent of its 9,300 subscribers are traders, manufacturers or retailers. Ten per cent are private individuals. The magazine is also available by retail sale.
The subscribers' edition of the magazine contained three pages of advertisements for alcoholic drinks, one for red wine and two for whisky. Quite why they were chosen I do not know. The pages did not however appear in the edition of the magazine sold in the shops and intended for the general public. The Swedish ombudsman responsible for consumer protection applied for an injunction restraining the publishers from printing an advertisement which was contrary to national provisions aimed at reducing the health risks involved in alcohol consumption. To that extent it is analogous to the Bill because we are talking about the health risks associated with the consumption of tobacco.
The Stockholm district court considered that an interpretation of the treaty provisions was necessary. It stayed the proceedings and referred the matter to the ECJ for a preliminary ruling. That caused total chaos. The publishers argued that the proceedings were based on legislation contrary to Community provisions on the freedom of movement of goods, Articles 30 to 37 of the EC treaty and the freedom to provide services under Articles 56 and 59 to 66.
In giving his opinion I am told that the advocate general's view was that a ban which extended to advertising in specialist food and drink magazines was disproportionate. He considered that those individuals who chose to read a specialist magazine were highly unlikely to be incited to drink more alcohol as a result of the advertisments that it contained. The position of someone purchasing such a magazine was likened to that of somebody who had specially requested advertising material from a producer.
The European Court of Justice subsequently found that the prohibition on advertising constituted an obstacle to trade between member states which was prohibited by Article 30 of the treaty. However, such an obstacle could possibly be justified by the protection of public health under Article 36. But the ECJ considered that, whether the prohibition on advertising was proportionate and whether the objective could be achieved by less extensive prohibitions or restrictions, it was a matter which the national court was better able to investigate. Therefore, as I have said, the original difficulties with the Swedish Act caused future chaos and neither the Minister, the noble Lord, Lord Clement-Jones, nor myself want that to happen to this Bill.
The proposed amendment therefore deals with the situation simply by making it clear that, while a publication or communication must remain one made for the purposes of the tobacco trade and be directed solely at persons engaged in any capacity in that trade, in the case of a publication such as a trade newspaper or periodical it may be made available by free distribution, subscription or other means.
I take this subject seriously. If this amendment is not acceptable—I agree that it is somewhat inelegant and I have presented it somewhat inelegantly this afternoon—I believe that some amendment to the Bill will be required. I beg to move.
Earl Howe: I speak to Amendment No. 26 which has been grouped with the amendment of my noble friend. The purpose of the amendment is very simple. In broad terms it is to prevent the law from making an ass of itself.
I recently travelled with my family on a restored steam railway line at Matlock, Derbyshire. It is a wonderful experience, at least for anyone who enjoys nostalgic rides of that kind. I confess to being a complete sucker for them. Much of the line, including the stations on it, has been restored by volunteers.
One feature at several of the railway stations caught my eye. On the station platforms were a number of those old tinplate advertisements for cigarettes such as Players and Senior Service. Those are two that I noticed. Although those advertisements are old they are not placed there with any thought or aim of attracting new customers to those brands of cigarettes. Nevertheless, they clearly meet at least one half, if not both halves, of the definition contained in Clause 1. Their purpose, when created, was to promote a tobacco product. Indeed, some might say that their effect could also be to that end. In some cases the tobacco product in question is still on the market. But even if the particular brand in the advertisement is no longer on the market, it could conceivably be argued that those advertisements have the general effect of casting tobacco products in a favourable light.
Whatever the merits or demerits of the Bill as regards its central aim and purpose, I believe there comes a point when we ought to recognise absurdity when we see it. Old or antique advertisments for cigarettes—most of them long since forgotten, I dare say, by the cigarette manufacturers who commissioned them—should not be treated as though they were genuine advertisements. There should be no danger of them being treated in that way. If the Bill has the effect of making the display of such advertisements illegal, then I believe that that is complete overkill.
I have therefore framed an amendment which is designed to exempt these historic kinds of advertisements while at the same time ensuring that only these kinds will be exempted. In other words, my intention is in no way to create any sort of wider loophole. I trust that the amendment does not do so. I hope that the noble Lord, Lord Clement-Jones, will be sympathetic to the aims of the amendment which I have tabled.
Lord Monson: I must admit that I had not realised fully what the noble Earl, Lord Howe, was getting at in Amendment No. 26, but now that he has explained it I fully understand and wholly sympathise with him. His amendment is admirable. I hope it is not resisted but, if it is, perhaps he could compromise and change the figure to 40, or something like that.

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The other point to be made here is that many advertisements will be for cigarettes that are no longer available. I do not know whether people still smoke Woodbines in this country, or Craven A and Senior Service. I suppose they do still exist although I do not know whether anybody still smokes them. Perhaps advertisements for tobacco products which are no longer available in the United Kingdom could be left in situ.
Lord Filkin: I will respond to Amendments Nos 17 and 26, which have just been spoken to. Clause 4(1)(a) provides that no offence will be committed if a tobacco advertisement is contained in a communication made for the purpose of the tobacco trade and directed solely at people engaged in that trade. This would apply, provided that conditions were satisfied, to trade journals and magazines, mail shots for tobacco companies to retailers and handouts at trade exhibitions. This is clearly not exclusive, and there may be other forms as well.
Any communication, however, must be directed solely at people who engage in the trade, and this would be a matter of fact in all cases. However, it would not matter if a curious member of the public picked up and read a trade journal in a library, provided the journal was directed at the trade. Therefore we do not believe that there is the danger behind the amendment moved by the noble Lord, Lord Skelmersdale.
Turning to Amendment No. 26, as proposed by the noble Earl, Lord Howe, in essence the Government agree that it would be absurd if historic advertisements in museums, for example, were caught by the Bill. We do not believe that that is the case and therefore we do not believe that the amendment is necessary. Such items will not generally fall within the definition of "tobacco advertisement" in the first place and so there is no need for any exemption. More technically, the cut-off date of 30 years could prove difficult to enforce, and intrinsic value might be difficult to define or interpret.
The central aim of the Bill is to catch not historic tobacco advertisments but active, current advertisements. Clearly, there could be circumstances where, to take up the point made by the noble Lord, Lord Monson, an historic advertisement for Senior Service was taken out and used again to re-promote a new brand called Senior Service. That would be a different case, but in the circumstances referred to by the noble Lord there would be no risk of the Bill catching people in that way. Because of that, we do not believe that there is a need for the amendment as proposed.
Lord Monson: Before the noble Lord sits down, he will be aware that many shops all over the country, but particularly in London, sell replicas of old posters: art nouveau or art deco ones, and so on. Students like to decorate the walls of their rooms, and some posters might contain advertisements, say, from the 'twenties or the 'thirties for Gauloises and Gitanes, which are
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still available in the shops. They might have different packaging, but they are still available. How would these be dealt with?
Lord Filkin: Speaking off the cuff, I would have thought that in those circumstances what was being purchased in the shop and what was being advertised was not tobacco but historic advertisements of tobacco products and therefore not caught by the Act.
Lord Clement-Jones: The two amendments being debated here are rather different in their impact. I am still a little baffled by the reasons why the noble Lord, Lord Skelmersdale, tabled Amendment No. 17 in the first place. The splendid Swedish case he mentioned turned rather more on interpreting the word "solely" than on examining the means of communication. Perhaps that is only a comment on the legal case, but I think the difficulties faced by the Swedish courts were caused by the game of legal ping-pong between the various jurisdictions concerned with the case. I am sure that it would serve as a good guide to action in the present case. Surely the issue was whether "solely" means exactly what it says.
The clause as it stands picks up the widest possible range of communications. It is a broad provision and in that respect must be satisfactory for those who will need to rely on it. I feel that it has all the merits of being inclusive as opposed to exclusive.
As regards Amendment No. 26, the descriptions of the noble Lord, Lord Monson, induced nostalgic thoughts of railway journeys over the weekend. However, I am happy to rely on the Minister's assurance that only extinct tobacco product advertising for brands such as Woodbine and Senior Service—when the noble Lord mentioned that brand, it took me back to my own smoking days—will be permitted. It is reassuring to learn that that kind of advertising will continue to adorn railway stations around the country, which no doubt many noble Lords will see when travelling at the weekend.
The Earl of Liverpool: Perhaps I may refer to a point made by the noble Lord, Lord Filkin, in response to the noble Lord, Lord Monson. If replicas or copies of old advertisements were, in effect, available in shops for sale to the public, those pictures would not be caught by the Act. I wonder whether, for the benefit of the Committee, the noble Lord could confirm that once more.
Lord Filkin: I do not believe that that was what I said, but if I did then it was not what I intended. What I sought to make clear was that if an historic cigarette advertisement was being advertised for sale in a shop selling memorabilia and someone purchased it, the transaction would not concern tobacco but a piece of historical memorabilia. For that reason, I would not have thought that such an advertisement would be caught by the provisions of the Act.
The second example I gave was that if, for example, an ingenious tobacco manufacturer took an historic advertisement for Senior Service and then began to re-manufacture Senior Service products and market

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them, that would be caught by the Act. In those circumstances, the producer would be seeking to advertise and retail tobacco products rather than to advertise and retail memorabilia about tobacco products. Those were the distinctions that I sought to make.
The Earl of Liverpool: I am grateful to the noble Lord. However, I do not quite follow the argument. Is he saying that members of the public could go into a shop in which hundreds of posters might be rolled up in a corner and from which buyers could make a selection? I do not refer to re-manufacturing a Senior Service product; rather that the public will be able to buy a replica of an old poster which could be hung in a room at university or elsewhere. Would that be acceptable and not be caught under the legislation?
Lord Filkin: As a matter of common sense, I would expect that to be the case; namely, that it would not be caught under the legislation. An individual purchasing an historical poster advertising Players No. 6—to change the tune a little—would not be caught under the legislation. However, one must be mindful of creating loopholes in the Bill. For that reason, I should point out that if a company took an old advertisement and used it actively to promote cigarettes, it would be caught.
In effect I have repeated what I said previously in a way that I hope is clear.
Lord Skelmersdale: It is not helpful that the amendments have been grouped. They cover two totally disparate points.
I was not going to dilate upon the subject of old cigarette advertisements tins which were taken off barns years ago and now have a certain rarity value. I was much more interested from my background—here I declare an interest as a mail order trader—in mail order catalogues. However, as the debate has gone somewhat awry, I shall reserve my comments on that point until later.
I observed what the Minister said about Clause 4(1)(a). I accept, to an extent, that the mischief being created is the mischief that happens in the United Kingdom. Therefore, if a place of business is outside the United Kingdom, it may happen that the mischief would not be caught by the Bill.
I have never gone into the Bill from a position where I am against it lock, stock and barrel. Of course I am not; I want to make it work. I do not want it to be challenged in the courts, either here, in the ECJ, or, even worse, under human rights legislation. But all these things are possible in the future. The more we can limit that, the more everyone will be better off. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 18 to 20 not moved.]
Earl Howe Earl Howe moved Amendment No. 21:
Page 2, line 19, leave out paragraph (c).
The noble Earl said: One of the persistently worrying features of the Bill, to which reference has been made a number of times today, is its vagueness. All the way through, we find far too much in the terminology and phraseology that leaves room for legal uncertainty. The noble Lord, Lord Clement-Jones, defends that on the ground of pragmatism, but it is disturbing. When we come to Clause 4(1) we see another case in point.
Clause 4 relates to permitted exceptions or exclusions from the purview of the Bill in terms of who is liable for an offence of publishing a tobacco advertisement. The exclusion permitted for publications, the principal market of which is not in the United Kingdom, leaves us asking all kinds of questions.
How is the term "principal market" to be defined? The noble Lord, Lord Palmer, has made a very good stab at an answer in Amendment No. 29. He suggests that the UK should not be considered the principal market where fewer copies of a publication are sold here than are sold abroad. That is a perfectly sensible proposition.
But, of course, it is not the only way one could interpret the phrase "principal market". If, at home, I produce an apple pie for lunch and carve up three-quarters of it among six other people, leaving a quarter of the pie for myself, my family may well say that I have given myself more pie than anyone else. Am I therefore the principal market for that pie? There is no certainty.
Whatever one's interpretation of the meaning of the term, there is the separate question of where the principal market for a publication happens to be at any one time. Some newspapers are transmitted by satellite for printing in individual countries. The text of a newspaper can be substantially the same in every country, but sometimes not completely identical. Is it the same publication or several different ones? Publications such as the Financial Times or USA Today originate, by and large, from a single source, but they are physically printed all over the world. The magazine Hello is a Spanish publication, with an English edition that circulates outside the UK. How do we define the principal market for Hello magazine?
We live in a global economy where products and publications flow freely across international boundaries. Where does one market begin and another one end? And over what period do the Government and the noble Lord envisage calculating the circulation of a publication so as to quantify the number of copies sold? Is it a period of months or years, or might "principal market" be defined in relation to a single edition of a magazine? That seems to me very troubling.
The Minister in another place said at Third Reading of the government Bill:
"We have not provided a specific quantification of what 'principal market' might mean because it will vary in different circumstances".—[Official Report, Commons, 13/2/01: col. 219.]
That is not the kind of statement that publishers will find helpful. It is like the character in Lewis Carroll who said that the words he used would mean whatever he wanted them to mean.
In these circumstances, there may be some publishers of international magazines who will not want this kind of uncertainty. They will merely set up abroad, where they will not fall foul of the UK law. On the other hand, a UK distributor of a Spanish magazine that carried a tobacco advertisement could be prosecuted here if the UK were the principal market for the publication. Does that mean that special UK editions would need to be printed? Looking at matters in that light, it seems strange that the UK is attempting to legislate separately from our partners in the rest of the EU.
All these uncertainties seem to prove one thing. We are dealing with a Bill which is not just about health, but about international competition. I very much hope that the Minister and the noble Lord, Lord Clement-Jones, will be able to shed some helpful light on these matters, so that we are least a little clearer about what this part of the Bill is telling us. I beg to move.
3.15 p.m.
Lord Hunt of Kings Heath: The Government's intent in drafting the original Bill was not to seek to hinder the importation of foreign publications which carry tobacco advertisements so long as their principal market was outside the UK. It is a commonsense point of view which suggests that the principal direction of the Bill has to be publications published in the United Kingdom. Nor does the Bill seek to hinder the importation of foreign publications which carry tobacco advertisements, so long as their principal market is outside the UK.
I have listened with interest to the comments made by the noble Earl, Lord Howe. It is true that we have not provided a specific quantification in terms of a "principal market", because it will vary in separate circumstances. For example, the term may vary according to whether a magazine has five markets or whether it has only two. I accept that in a sense the noble Earl asked that question. It could be argued that if a company has 40 per cent of its sales in the UK and the remaining 60 per cent in half a dozen other countries, the UK might well be said to be the principal market, even though less than half the total sales are here.
We return to an argument that threaded its way through our discussions earlier today; namely, the balance between what the noble Earl describes as "vagueness" and the intention of those who drafted the Bill to avoid loopholes. The risk if we define the term too tightly is that there will be loopholes. That would mean that we should not have the ability to bring the perpetrators to book. That is why, necessarily, it is not possible to define the term as tightly as the noble Earl would wish.
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The noble Earl posed a more general question about international action. Work is being undertaken in relation to the proposed EU directive. This is focused on trans-national advertising. The Government, alongside other governments, are also working within the WHO towards a much clearer understanding and agreement between many countries. I hope that through that we shall reach a position where there is as uniform a provision as possible of these kinds of activities. In the end, it is difficult to define, in the way the noble Earl suggests, down to the last "i" and the last "t" and I am not sure that the Bill is best served by seeking to do so.
Lord Clement-Jones: I very much accept what the Minister said. I adopt entirely the same approach as the noble Earl, Lord Howe. It is a question of mischief in a sense. What is one trying to do through the Bill? It is designed to be an inclusive Bill to avoid the loopholes that could arise. The more one defines—Amendment No. 29 of the noble Lord, Lord Palmer, would be guilty of that to a considerable extent—the more loopholes one finds. In ordinary parlance, and certainly if one is a businessman, it is important to know what one's market is but one does not necessarily define it in terms of being a majority or a minority. It probably constitutes the bulk of one's readers or the readers to whom one's product is mostly directed. Of course, one will know the numbers, so to speak, in terms of the readership of the magazine. However, that is a matter for pragmatic interpretation at the time, as it were, rather than for some sort of formula that one can establish in the Bill.
On the other hand, I do not think that it is difficult when faced with the question of, for instance, where the Financial Times principal market is, to be able to determine that despite the fact that it has printing presses and editions in a wide variety of different countries. It is a practical matter at the end of the day. I do not think that it is too difficult to discern the answer when faced with a practical problem. To that extent I entirely agree with the Minister. I do not believe that in practice foreign owners of publications would be put off from allowing their publications into the UK simply because there is not some sort of rigid definition of the situation.
Earl Howe: I am grateful to both the Minister and the noble Lord, Lord Clement-Jones. I am not at all sure that I accept that this is a question of loopholes in the Bill. It is a question of providing some sort of certainty to the business community.
I do not think that this debate has advanced that cause any further. I wonder whether the noble Lord, Lord Clement-Jones, believes that publishers are entitled to at least a general steer in the direction of a definition here. If it is—as the Minister indicated—a question of going back to my example of the pie and saying that the person with the largest slice constitutes the principal market, even though there may be many

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other people with much smaller slices, why cannot we say that in the Bill? Alternatively, why cannot we go down the route proposed in Amendment No. 29? I do not see the problem here. I do not see it as a question of loopholes.
Nevertheless we have another opportunity to come back to this matter should we so wish. I shall, of course, reflect—as I always do—on what has been said. For the time being, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Hunt of Kings Heath: We are almost at 3.30. I think that it would be a convenient time to adjourn the House. I beg to move that the House be resumed.
Moved accordingly, and, on Question, Motion agreed to.
House resumed.
House adjourned at twenty-five minutes past three o'clock.