Lords Sitting of 18 January 2002

Preamble
The House met at half-past two of the clock: The LORD CHANCELLOR on the Woolsack.
Prayers—Read by the Lord Bishop of Chelmsford.

Tobacco Advertising and Promotion Bill [H.L.]
Lord Clement-Jones: My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.
Moved, That the House do now again resolve itself into Committee.—(Lord Clement-Jones.)
On Question, Motion agreed to.
House in Committee accordingly.
[The PRINCIPAL DEPUTY CHAIRMAN OF COMMITTEES (Lord Brabazon of Tara) in the Chair.]
Clause 7 [Developments in technology]:
On Question, Whether Clause 7 shall stand part of the Bill?
Lord Lucas: My purpose in opposing this Question is mostly to try to find out what the Government intend to do with the clause. I am interested by both its breadth and its narrowness.
I turn first to its breadth. I cannot understand why the Government want to amend the Bill as, if we agree to the amendments that have been indicated, it will deal with any development that I can foresee in electronic publishing. That involves a very wide power, which would allow the safeguards that are being put into the Bill to protect Internet service providers and others—intermediaries in electronic publishing—to be removed merely because it had become convenient to the Secretary of State and related to some change that he perceived in the world of electronic publishing. I should be grateful if the Minister would set out for me his view of the way in which the power will be used and illustrate the circumstances in which he believes it will be necessary.
I am also interested in the clause's narrowness. I do not quite know what "electronic" publishing means in this context. Electronics is currently used in almost every aspect of publishing by any means. I presume that in this context the provisions are limited to the situation in which electronics is in some way a medium of transmission. But what will happen if in future years optics or magnetics become the method by which information is transmitted? Both of those areas are being researched and might well become the way
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things are done in future. I do not understand what the scope and limitations are on the phrase, "by electronic means". I should be grateful if the Minister would elucidate that for me; or perhaps the proposer of the Bill is the expert on that matter. I shall wait to see.
Lord Skelmersdale: My Lords, as Members of the Committee can see from the Marshalled List, I also put my name to the proposal to leave out Clause 7. I did so as a procedural device and not because I believe that the clause should be left out.
I added my name to the Marshalled List so that I could question the Minister further on a point that he answered—alas, only partially—on Second Reacting. At that time, I asked whether the Bill should be notified to the Commission under the Technical Standards Directive. That has proved to be something of a moving target. It was first raised by my noble friend Lord Northesk at Second Reading of the Government's Bill on this subject. On that occasion, the Minister replied that he felt that there was no need.
The Minister's answer was rather different when I asked a similar question at this Bill's Second Reading. He said:
"In relation to the Technical Standards Directive, I am advised that, since the Bill covers advertising rather than technical specifications relating to goods, it is not notifiable in its entirety. However, where the Bill would affect specifications applicable to goods, such as the brand-sharing provisions, the Bill provides for regulations to be made which could be notified under the Technical Standards Directive following due consultation".—[Official Report, 2/11/01; col. 1704.]
I was very pleased with the Minister's answer so far as it went. Products that are covered by primary or secondary legislation are indeed notifiable. However, I am afraid that the Minister's advisers did not delve quite as deeply as they might have into the intricacies of EC product law as that applies throughout the member states. Since Second Reading, I have discovered that the Netherlands, as well as Denmark, to which I referred at Second Reading, notified the terms of its tobacco advertising legislation under the Technical Standards Directive before—this is the important point—passing it into law and not merely because of covering products.
The original legislation is now much wider than it was when it first passed into law. It now covers information technology services in addition to mere products under the amending directive EC 98/34. Very conveniently, the consolidated version is available in the House of Lords Library. It is apparent from Article I of that combined directive that it most definitely applies to any piece of domestic legislation that covers services,
"normally provided for remuneration, at a distance, by electronic means and at the individual request of a recipient of services";
in other words, Internet, fax and telephone trading, with which great chunks of the Bill are concerned. Notification to the Commission is to he made whenever a new or amended national standard is arrived at.

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Members of the Committee may ask why the Government agreed to that. The Minister—perhaps inadvertently; I should hate to do him an injustice—said at Second Reading:
"I share the concerns of my noble friend Lord Mitchell to ensure consistency of approach;"
that is, in Internet matters—
"that is absolutely right. I understand the concerns of the Internet service providers. I have met them. The Government would look sympathetically at amendments which might be seen to deal with specific problems they encounter".—[Official Report, 2/11/01; col. 1704.]
That is all well and good. Perhaps the Minister's answer to my noble friend is that Clause 7 could in certain circumstances provide for that. Therefore, we agree on that point.
However, I press the Minister rather further. Will he now refer not only regulations on brand-sharing but the clauses covering Internet trading and their subsequent statutory instruments to the Commission? At the speed that debates on the Bill are currently progressing, that will hardly delay the passage of the Bill through Parliament. It would be asking too much to request a considered response today, but I ask the Minister to write to me and to other noble Lords who are interested in the computer aspects of the Bill with his considered view on this point: in other words, whether EC 98/48 applies to the Bill and, if not, why not?
11.15 a.m.
Lord Geddes: It was, and still is, to my regret that I was abroad in Australia on the day that the Bill received its Second Reading on 2nd November and I have not been able to attend the two days of the Committee stage since then. Therefore, I apologise to the Committee for intervening at all. This is the first occasion on which I have been able to declare an interest as a member of the Lords and Commons Pipe and Cigar Smokers' Club, whose tie I am proudly wearing this morning.
I have only one point to raise and that is by way of a question to the Minister. As I understand it, the e-commerce directive was due to have been signed by the United Kingdom yesterday. Can I ask the noble Lord whether it was so signed and, if it was not, when will it be signed? Until it is signed, how on earth can this clause stand part of the Bill when we do not know exactly what the e-commerce directive will or will not say?
The Earl of Erroll: I want to ask a brief question. I read this clause and wondered why such wide powers are needed. The clause states that the Secretary of State will have the power to,
"amend any provision of this Act … in consequence of any developments in technology".
Does that limit only parts of the Act which will deal with technology? In other words, can the power be used to change matters only as a result of developments in technology or, if there is a
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development in technology, can it then be used to amend any provision in the Act which may not relate directly to technology? I believe that that would give the Secretary of State the power to change whatever he likes. I consider that to be rather unwise and believe that there is not much point in continuing to talk about the Bill if the Secretary of State can change the Act later.
Lord Filkin: I am grateful to the noble Lord, Lord Lucas. for this probing provision because it enables the Government to place a number of matters clearly on the record. It also enables the start of this Committee day to mark some of the fundamental reasons why I believe the majority of this House considers the Bill to be necessary. I shall try to address those questions by illustrating that the clause is necessary and reasonable and that there are safeguards. I shall also pick up the important and specific points that have been raised by Members of the Committee.
The Bill focuses on banning tobacco advertising and promotion. It covers a variety of means of publishing and distributing which we have already discussed. We believe strongly that the clause is necessary as it would enable the amendment of any provision of the Act in consequence of any development in technology relating to publishing or distributing by electronic means.
Throughout our debate on the Bill, the question of the Internet and electronic communication has led us to acknowledge that this is a new, exciting and very rapidly changing area. The Bill does not treat advertising by electronic means either less or more favourably than other forms of advertising. The reason for taking this power is that the pace of technological change makes it very difficult to predict what new means of publishing or distributing may emerge. There are clearly no immediate plans to make an order under the clause.
The noble Lord, Lord Lucas, asked the good, if impossible, question as to what developments might take place in the future that would require the clause to be needed. I believe that if I could answer that. I should probably not be standing here. One would be a rather valuable commodity elsewhere if one could spot what was going to come. One can only do so, to an extent, retrospectively. I recollect four or so years ago trying to communicate by e-mail with the DTR, as it then was. One had to telephone one person who then printed out what one had sent and passed it on. Now, the whole of government communicates electronically. Perhaps two or so years ago we would not have conceived of text-messaging or e-mails to mobile phones. Therefore, without going on at length, I believe it is clear that technology is moving so fast that it is almost certain that new things will occur in the future that we cannot foresee now. Thus, if we did not have such a clause, the Act would rapidly become obsolete.
The noble Lord, Lord Lucas, raised the question of whether the clause includes other technologies. The clause is specific on "electronic", but even if he is right,

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as regards "optical and other means", it is unlikely that there is not some electronic part of such a process that makes it relevant.
I turn to whether or not the clause is unreasonable; in other words, whether it is excessive and goes too far, given the concerns expressed about the power of the Secretary of State to amend primary legislation by order. I draw the attention of the Committee to the report of the former Select Committee on Delegated Powers and Deregulation in February last year in connection with the Government's earlier Bill on the topic. The committee considered that the limited scope of the power and the provision of affirmative procedure made it acceptable. That should give us some comfort. Furthermore, the power is not broad; it is limited. It can be used only in relation to developments in technology. In other words, there has to be a development in technology, which is germane to the Act before it can be brought into use.
Noble Lords will also be aware that if the Secretary of State wished to use such a power, that would require affirmative resolution by this House. The House has become, I believe rightly, more vigorous in the way it scrutinises affirmative instruments at such times.
Noble Lords will also be aware that while it is right to scrutinise such powerful clauses strongly, they are by no means unique. Both this Government and the previous government have used them on a number of occasions. I shall not bore the House by scheduling them unless Members particularly want me to do so.
I turn to the other specific questions, which I have not addressed. The noble Lord, Lord Skelmersdale, raised an extremely important question about the application of the technical standards directive. We do not accept that that applies to the advertising directive. However, we accept that where the specification of products is affected by the technical standards directive, it will apply. We shall follow that with regard to brand-sharing regulations. The question raised by the noble Lord was clearly detailed, thoughtful and technical, and therefore merits, as he requested, a considered and detailed written reply to address the point, which he will receive before Report stage.
I turn to the question raised by the noble Lord, Lord Geddes, on the e-commerce directive, which was adopted on 8th June 2000 and was due to be implemented yesterday. The DTI plans to consult on that in the early part of the year. That consultation process will be thorough and vigorous before the Government table regulations under the directive.
I trust that I have answered the narrow specifics about which noble Lords have expressed concern. With the leave of the House, I shall go back to some of the fundamental reasons why a clause of this type is necessary. It is not simply because of the movement in technology. There are also the severe mischiefs which we in the Committee—and certainly this is the Government's perspective—want to limit.
We have discussed previously the fact that 120,000 people a year will die as a result of smoking cigarettes. There is a slightly different way of putting that, which I do not think has arisen. If we were to put 1,000 20
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year-olds together in a room, all of whom smoke and continue to smoke, from that 1,000 one would be murdered, six would die as a result of car accidents, 250 would die in middle age from smoking and a further 250 would die later in life from smoking. That gives us, graphically, a sense of the scale of the potential damage to young people who take up cigarette smoking. For that reason, the Government arc broadly supportive of the Bill. We need to ensure that future loopholes can be addressed rapidly. That is why we believe that the clause is necessary.
Lord Monson: Before the Minister silts down, does he not agree that Clause 2(3) already prohibits the distribution of tobacco advertisements in electronic form? The subsection is unequivocal, unambiguous and all embracing. Therefore, why is Clause 7 needed?
Lord Filkin: It is necessary for the reasons I have given; that is, to put beyond doubt that there is a power for this place, if it wishes, on a proposition from the Government, to ensure that any subsequent change in technology is not allowed to leave loopholes unplugged and unstopped.
Lord Skelmersdale: For the avoidance of doubt, I agree with the Minister that the world wide web is moving so fast that a clause such as this, on this occasion—I would not tie myself to any other—is necessary. I am grateful to the Minister for responding to my comments on European product law and for stating that he will write to me. However, he made the most remarkable statement in reply to my noble friend Lord Geddes. The Minister spoke about the Government laying instruments under the e-commerce directive. Surely he meant that they will lay an instrument to bring the e-commerce directive into British law?
Lord Filkin: I am sure that that is what I meant to say, even if I did not say it.
Lord Clement-Jones: I welcome the spirit in which the clause has been debated by the noble Lord, Lord Lucas, and other contributors. This is an important issue. A clause of this type is not simply to be treated as inevitable in Bills such as this. If the circumstances were different, I might well find myself on a different issue arguing that such a Henry VIII clause should not be part of the Bill. However, the issues are so important that I believe the clause to be a very important part of the Bill.
In reply to the noble Lord, Lord Lucas, if we knew what to expect in the way of forthcoming technology, we would not need the clause. It is precisely because we do not know what to expect that we do need it. The noble Lord tempts me when he talks about developments in optics, and so forth. Perhaps they are not electronic; perhaps we need a wider clause. I am sure that this would horrify the noble Lord, Lord Lucas, but there may well be arguments that "electronic" is not sufficiently wide to describe the kind of technological communications that will take place in the future.

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If we cast our minds back only a few years, when I left the corporate sector in 1995 nobody communicated by e-mail. In the seven years since then, everybody in business has now adopted e-mail. The web is a common factor used by schoolchildren for their school research, and so forth. There have been fantastic changes. We do not know what will happen. We know that technology moves faster and faster. Hence the need for this type of clause.
The noble Lord. Lord Skelmersdale, raised the issue of the technical standards directive. I am sure that he will receive a satisfactory reply from the Minister in due course. I understand that the regulations will need to be notified, as part of the regulation-laying process, if they fall within the directive. However, that does not need to delay, after the passing of the Bill, the way in which the Bill is designed to operate.
As regards the e-commerce directive, the noble Lord. Lord Geddes, received a reply from the Minister on the question of when it was adopted by the Council of Ministers and, indeed, the timetable for when it will be implemented. That means that the actual text of the directive in EU terms is there. Therefore, we have the certainty, about which he was rather doubtful, to build on the Bill and to ensure that it is consistent with the provisions of the directive. I believe that those who might have doubts about the e-commerce aspect would welcome that.
As regards the scope of the clause, the noble Lord, Lord Filkin, rightly referred to the Select Committee on Deregulation and Regulatory Reform. After the Second Reading of a Bill we always await with great anticipation what that committee will say about the particular regulation-making power contained in it. On many occasions it has been highly critical. Quite often the Government change their position at the Committee or Report stages directly as a result of its conclusions. In this case it was clear on the matter. It made no qualification. It said that the power was limited in scope and therefore it is acceptable. The noble Lord, Lord Filkin, pointed that out. So we can be fairly content that this clause goes no further than is necessary.
However, there is a great mischief, as the Minister pointed out. If we allowed a Bill such as this to go through without such a clause, in view of the technological changes that can take place, we do not know whether in a year or two or three those changes will have completely altered the way in which people receive information. To allow advertising over that new medium without this clause would put a large hole in the middle of the Bill. This kind of clause, as we know only too well, is not unprecedented. Indeed, after the passing of the Bill I think that we shall say that this is actually one of the most apposite cases for this kind of Henry VIII clause.
11.30 a.m.
Lord Lucas: I am sorry to say that after all that I find my questions largely unanswered. The Bill sets out at the beginning to catch publishing and distribution in
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the widest of terms. Anything which constitutes publishing or distribution and which involves an advertisement will be caught by the Bill. Indeed, because of the way in which Clause 7 is drawn, if it is not publishing or distributing the clause will not bite. So, if it is publishing and distributing the Bill catches it. It does not matter by what means. It could be by thought transference. The Bill would still catch it because someone would be publishing the advertisement and the noble Lord perhaps would be receiving it.
Lord Clement-Jones: "Electronic means", means what it says.
Lord Lucas: Yes, but Clause 1 does not have that caveat. If an advertisement is published or distributed by whatever means imaginable or possible in the future, it is caught by the Bill. Indeed, it has to be published or distributed within the meaning of those words for Clause 7 to catch it. So it does not really matter what advances there are in technology, tobacco advertisements will be caught by the Bill, by whatever means they are published or distributed.
Lord Filkin: If the noble Lord is right, he need have no anxiety about Clause 7 standing part because it will not need to be used.
Lord Lucas: I am saying that in this context there is no need for Clause 7 because there is absolutely nothing that will not be caught by Clause 1.
The Earl of Erroll: The reason for my concern is the matter of precedents. One puts something into a Bill in order to use it as a precedent to put it into other Bills. The noble Lord has already used that argument for keeping it in this one. We should be stopping these precedents being used too often in an otiose way.
Baroness O'Cathain: I should like to clear up a matter with the noble Lord with regard to Clauses I and 7. In another two or three years it could well happen that stuff on the web will not be called advertisements. We do not know. The noble Lord, Lord Clement-Jones, referred to the way in which things have moved so fast in the past two or three years. It is not beyond the wit of people who really want to try and get more and more business to invent a new terminology for the web which does not use the word "advertisement".
Lord Clement-Jones: The noble Baroness makes an interesting point. But that is an argument for widening provisions rather than narrowing them.
The Earl of Erroll: Without even consulting the provision. I seem to remember that it says has the "tendency to promote". It does not actually limit it to the word "advertisement". The beginning of the Bill is drawn in far wider terms. The only purpose that I can give this clause is to set yet another precedent for its use in future legislation.
Baroness O'Cathain: Clause 1 actually states:
"Meaning of 'tobacco advertisement' and 'tobacco product' In this Act——'
'tobacco advertisement' means an advertisement—
(a) whose purpose is to promote".
It means an advertisement. I am saying that it need not he an advertisement, it could be some other nomenclature and something which is part of a marketing ploy of one kind or another.
Lord Filkin: In a sense this touches on a theme which has run throughout the Bill. Perhaps I may go back to some of the general principles. The Bill, if passed, will clearly affect the ability of the tobacco industry to advertise its products. It will not like that, for obvious and understandable commercial reasons. There is massive international evidence that when such bans come in, the industry seeks vigorously to find alternative means, both of promoting its products and of sustaining the brands and, above all, of trying to persuade new users to smoke.
It is for that reason that we must expect and be cautious that there will be further attempts (we know not what) to promote smoking as a habit. The Government's stance is that we are not seeking to prohibit the smoking of cigarettes, but we are seeking to limit the likelihood that people will take up the habit or be able to give it up if they want. That is why it is fundamentally necessary to have careful clauses of this kind, albeit limited in the application of their scope and subject to affirmative resolution of the House.
Obviously, we shall study the thrust of the contention of the noble Lord, Lord Lucas, that this clause is otiose. I think that the word is completely correctly used; we do not need the clause in the Bill. However, I am fairly confident that that will not be the advice when we consider it. No doubt we shall put the matter beyond doubt on Report.
Lord Clement-Jones: Those are wise words. I do not accept the case that Clause 7 is otiose in those circumstances. For example, the clause relates to regulations that may be made in respect of displays. It can relate to all kinds of other things. For instance, if one could make a 3-D display in the future by some electronic optical means in people's homes, would that not be some kind of development that we would want to catch? I do not know whether or not that will ever be possible in the future. I should not be at all surprised.
I am sure that if we sat only for another 10 or 15 minutes we could think of cases where this kind of provision would be entirely appropriate and that it would not be simply overlapping with subsection (3) of Clause 2.
So I do not accept the case for exclusion of Clause 7. I believe that actually it is a very important part of the Bill.
Lord Peston: Does the noble Lord appreciate that the initiation of the debate by the noble Lord, Lord Lucas, leads to the exact opposite conclusion from the direction in which he has directed us? The intervention
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of the noble Baroness, Lady O'Cathain, leads us to that. The point about Clause 7 is that it is too narrow; it is not broad enough. It should have the additional words, "or any means whatsoever".
I do not know whether the noble Lord, Lord Lucas, is aware that the logic of his position is that, far from arguing as he has, he should be arguing exactly the reverse and encouraging the Government on Report to add the words, "or any other means whatsoever", to which I should put up my hand and strongly support. It is not obvious to me that that is what the noble Lord had in mind.
Lord Lucas: I just have not been allowed to get to the end of my speech yet. Yes, as so often, the noble Lord, Lord Peston, is absolutely right. If there were a reason for the clause, I should not add words to the Bill, but just take out the words "by electronic means".
I do not want to prolong the debate. I should be grateful if the Minister could write to me and answer the duality of questions: first, why is Clause 2—and I meant Clause 2 when speaking before—not enough? It seems to catch everything that is publishing or distribution. Secondly, if he can show me why it is not enough, why is Clause 7 not too little? That is the bottom level of what the noble Lord., Lord Peston, asked. I am very happy to have that information by way of a letter.
Lord Filkin: I am extremely grateful. It is a thoughtful probing amendment, and we will be delighted to respond in that way in writing, addressing both points.
Lord Clement-Jones: I welcome that assurance from the Minister. One of the answers to the noble Lord's question is that the clause does not relate only to the process of publishing or distributing. It relates to regulations made under the whole of the Bill.
I am taken by the idea of the noble Lord's controls over thought transference. We may have to consider that on Report.
Lord Geddes: Clause 2(3) has been specifically mentioned more than once in the past five minutes. I hope that I can help the Government on this. I am a bit confused. Subsection (1) of Clause 2 specifically says:
"is guilty of an offence".
Subsection (2) says:
"is guilty of an offence".
Subsection (4) says, "is not an offence". Subsection (3) says nothing. There is no verb in it. Should it not say "is an offence" or "is not an offence"? It should say something.
Lord Filkin: Missing verbs, as the Prime Minister well knows, ought to be an offence.
Lord Lucas: I want to reply to the point raised by the noble Lord, Lord Clement-Jones. The words "publishing" and "distributing" are specifically used

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in Clause 7, so the change must be associated with publishing or distributing for Clause 7 to bite. That is another reason why I think that the clause is too narrow to catch any real mischief.
I wish, I wish that the Government were as the Minister said they were. The first Question that I tabled in the House, when the Government took office in 1997, asked when they would answer my Questions for Written Answer by e-mail. Until today, the answer, with the exception of one or two departments, was, "Not yet".
Secondly, it is all very well to hold up the affirmative resolution as the backstop, as, indeed, it is. The Government propose to do away with our ability to use that absolute backstop and make it a delaying power. We ought to see the matter in that context.
Thirdly, the Minister hymned the necessity of doing as much as we can to prevent tobacco-related deaths. I agree entirely, but I want to pick up an anomaly that has come to my notice recently, which the noble Lord might care to investigate. His colleagues in the Home Office have effectively banned a large segment of smoking-related research in this country. Animals can no longer be exposed to tobacco smoke to investigate the consequences and find ways of curing the results. Such research must now be exported to the Netherlands. Is that in accordance with the wishes of the Department of Health? If not, will the Minister consider doing something about it?
Lord Filkin: As the noble Lord, Lord Lucas, knows, the Government always speak with one voice. I shall certainly look into the issue with interest.
Clause 7 agreed to.
Clause 8 [Displays]:
[Amendments Nos. 53 and 54 not moved.]
Baroness Noakes Baroness Noakes moved Amendment No. 55:
Page 4, line 17, leave out subsection (4).
The noble Baroness said: There is a difference between the offence created by Clause 8 and those that we have discussed earlier in Committee. First, the offence under subsection (1) is dependent upon regulations to be made, and we do not know what those regulations will be. More importantly, the offences created by Clauses 2 and 3 have some specific defences available in Clauses 5 and 6, but no specific defences are available against an offence created by Clause 8. Clause 8 is therefore more draconian than the provisions of the Bill that we have already discussed.
Subsection (4) says that the Government will decide later, and by regulations, whether something is to be outlawed by Clause 2 as a tobacco advertisement or is to be treated as a display. We think that that goes too far and is unnecessary. I am sorry that Amendment No. 7, tabled by my noble friend Lord Skelmersdale, removing for the avoidance of doubt the possibility that a display was not a promotion and, therefore, not an advertisement did not find favour. I also regret that
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Amendment No. 1, to which I spoke on our first day in Committee, which sought to define "advertisement" was also rejected. Even without those clarifying amendments, it should be clear that a display is not an advertisement, and we do not believe that the Government should later choose which set of offences might apply.
I ask the noble Lord, Lord Clement-Jones, to say whether he believes that there is good cause for a provision allowing the Government to pick and choose what is an advertisement or a display at a later stage. If he does, would he say what that is? If the noble Lord believes that there is any potential ambiguity between the terms "advertisement" and "display", the issue would be best dealt with by an amendment removing the ambiguity rather than leaving it to a later decision of the Government.
On our first day in Committee, the noble Lord, Lord Clement-Jones, when speaking against the earlier amendments to which I have just referred, said:
"Our judgement on these Benches is that there is insufficient ambiguity about the word "advertisement" to agree to amendment of the definition".—[Official Report, 16/11/01; col. 806.]
The noble Lord cannot have it both ways. Either the terms used in the Bill are clear and unambiguous—in which case, subsection (4) of Clause 8 is unnecessary—or they are not, in which case, we must amend the definitions used earlier. I beg to move.
11.45 a.m.
Lord Skelmersdale: I hate to be in the position of having to argue with my own Front Bench, but, on this occasion I must certainly argue in part. As I understand the matter, leaving out the whole of subsection (4) would render the whole of Clause 8 useless.
I agree with my noble friend Lady Noakes that what is needed is to decide—or have regulations about—when a display becomes an advertisement. We dealt with that on our first day in Committee and, possibly, on the second day too, when I was not present. If we do that, why do we need paragraph (b)? If we make the decision once, why must we do it the opposite way? That seems totally nonsensical and unnecessary.
The Parliamentary Under-Secretary of State, Department of Health (Lord Hunt of Kings Heath): I certainly agree with the noble Baroness, Lady Noakes, that, rather than picking and choosing, in that sense, we require clarity on the matter. I am sure that the noble Lord. Lord Clement-Jones, will argue that Clause 8(4) is intended to provide such clarity. It must be considered alongside Clause 2, as the noble Baroness suggested. That clause gives the power to regulate the advertising of tobacco products at point of sale, whereas Clause 8 gives Ministers the power to regulate the display of tobacco products at point of sale.
In many circumstances, an object will clearly be an advertisement and not a display, such as, perhaps, open and closed signs hanging in a shop door showing

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the brand name of a tobacco product. Other products will clearly be a display and not an advertisement, such as rows of cigarettes in a shop gantry. There may be situations in which something could simultaneously be an advertisement for a tobacco product and a display of tobacco products. An example might be a set of Marlboro cigarette packets arranged in a gantry in the form of the letter M.
It is clear that there must be an understanding among all concerned as to what is a display and what is an advertisement. The Government's intention is to consult on regulations, under Clause 4(2), as soon as possible, if the Bill is enacted. However, the intention would be not to exercise the power under Clause 8. It would be kept as a reserved power that it might be necessary to bring in if there were any loopholes or abuses. The intent is to make the position more easily understandable by anyone involved.
Baroness O'Cathain: I wish to apologise to the Committee for the fact that unfortunately I was unable to take part in the preceding deliberations on the Bill. I am concerned about the way the debate is going. Both advertising and display can be called promotion. It is possible to say that a display might not necessarily be an advertisement, but I always think that a display is in fact part of an advertisement. From long years working in marketing, that is certainly the way it has come to be known.
Should we not add the words "any forms of promotion" to the Bill? I throw this in because I am becoming concerned about the way in which we are moving down one track called "advertising" and another called "display". The two are not really capable of being separated.
Lord Skelmersdale: I believe that, almost certainly, the answer to the point put by my noble friend Lady O'Cathain is to be found in Clause 1. A tobacco advertisement means,
"an advertisement—
(a) whose purpose is to promote".
I suspect that that is exactly what the Minister was going to say.
Baroness O'Cathain: That is also the purpose of a display.
Lord Skelmersdale: I still have not received an answer on the point I raised. It is all very well to produce regulations which define what would turn a display into an advertisement. However, regulations are not then also needed to define what would turn an advertisement into a display. Therefore we do not need both paragraphs (a) and (b) of subsection (4).
Lord Campbell of Alloway: I have to declare an interest in that I am a member of the Lords and Commons Pipe and Cigar Smokers' Club. I never smoke cigarettes; I hate them.
Frankly, this is a most confusing form of drafting which seems to have confused everyone. Surely it is this: if a display is not an advertisement, then broadly
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speaking it cannot be considered to be a promotion; that is, if it is merely a display which is not an advertisement. Either it is or it is not an advertisement as a matter of fact. If it is an advertisement, that is fine. But if it is not an advertisement, well, then what is the matter?
I may have grasped the wrong end of the stick, but having listened to this debate on the matter of construction, I really do think that the clause as it stands is gobbledegook.
Lord Hunt of Kings Heath: No doubt the noble Lord, Lord Clement-Jones, will wish to comment on the drafting of the Bill. Surely the point is that Clause 8(1) applies to the position in relation to displays and defines the offence of which a person would be guilty. Clause 8(4)(a) and (b) seek to enable us to specify under which regulatory regime displays which also could be regarded as advertisements should be treated. That is why we need paragraph (b) as well as paragraph (a); that is, for the avoidance of any doubt.
I accept that the noble Lord may find the wording confusing, but it is a genuine attempt to ensure that there is clarity in this area. Throughout the Bill there have been discussions about the complications of interpretation. That is because of experience of the whole history of tobacco advertisements and the ingenuity of the tobacco companies in this area.
Lord Monson: Perhaps I may take this opportunity to respond to the point put by the noble Baroness, Lady O'Cathain. If the Bill were changed so as to make it illegal to promote tobacco products rather than simply to advertise them, the BBC and ITV would be outlawed from showing on television old films made in the 1930s, 1940s and 1950s. Those films invariably showed the hero and heroine smoking like chimneys, which would undoubtedly have the effect of promoting tobacco smoking among young people.
Lord Clement-Jones: As noble Lords might imagine, I shall not take full credit for the drafting of this Bill. However, I believe that I can help noble Lords in the discussion about it.
The Bill is called the "Tobacco Advertising and Promotion" Bill rather than the "Tobacco Advertising Bill". It covers a wider range of matters than pure advertising. It covers displays, brand stretching, sponsorship and so forth. While I bow to the experience of the noble Baroness, Lady O'Cathain, in the retailing area, I too have some experience in that field, as well as in others. The word "advertising" has a broad meaning when used in the clauses of this Bill and has been designed to do so.
Possibly there are occasions when one could consider a display to be a promotion as opposed to an advertisement. It is entirely possible that a court might take the view that a pile of product in a store is not an advertisement but simply a display of product. The matter is as simple as that.
Lord Campbell of Alloway: I am most grateful to the noble Lord. If the advertisement does not amount to a

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promotion, then no harm will have been done. It is a question of fact and a court would have to decide it. So where is the logic in what he has just said?
Lord Clement-Jones: With the greatest respect, there is huge logic in what I have just said. If a display is effectively a promotion and induces smokers to carry on smoking, to start up again or to smoke more, then that is precisely the mischief that we are trying to stop under the Bill. The Bill makes a distinction between advertising, between sponsorship, between display, between brand stretching and between a number of other areas. That is what it has been designed to do.
However, as the noble Lord, Lord Monson, pointed out, the Bill has not been drafted to say, "Right, every form of promotion is banned". In fact, the Bill is fairer than that. If the noble Lord, Lord Campbell, wishes us to introduce a one-clause Bill banning all possible forms of tobacco promotion, then I am sure we could consider that on a future occasion. I dare say that it would be perfectly acceptable to many noble Lords.
It is possible to pick these things over legally—I have been guilty of that myself on a number of occasions—and come to precisely the wrong conclusion. The Bill takes a common-sense approach.
The noble Baroness, Lady Noakes, introduced the amendment and challenged me on my statement on a previous Committee day. Of course there may well be some form of overlap between an advertisement and a display, and that is precisely what subsection (4) of Clause 8 is designed to cover. It is designed to ensure fairness. Of course those who are faced with the situation where they are had up by environmental or trading standards officers for using a display which could also be an advertisement need to know what would be the penalties for an offence. Thus the subsection has been drafted to ensure the clarity that we all seek in any legislation. We should all be quite clear about what are the penalties and so avoid any confusion in that respect.
However, what we cannot do is legislate in advance for whether in fact something is an advertisement or in fact it is a display. If cigarette packets are stacked into the shape of a large "M", that would be a difficult instance. However, what we need to know is, if such a display could be both, whether the display penalty or the advertisement penalty should be imposed. I do not think that that presents a great conundrum.
Baroness Noakes: I thank the noble Lord, Lord Clement-Jones, and the Minister for their responses. I shall read carefully what has been said. However, I continue to believe that this is an unnecessary provision. If the noble Lord, Lord Clement-Jones, believes that there may be some overlap then the simplest way to deal with it would be to say that anything that is treated as an advertisement should not also be treated as a display. That was proposed in one of the earlier amendments rejected by the noble Lord.
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Certain important additional points have been made by my noble friends Lady O'Cathain and Lord Campbell of Alloway. I shall reflect further on the debate before we reach the Report stage. In the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Noon
On Question, Whether Clause 8 shall stand part of the Bill?
The Viscount of Oxfuird: In speaking to this clause I declare an interest, as I did at Second Reading, as a member of the Lords and Commons Pipe and Cigar Smokers' Club.
The purpose of my opposition to Clause 8 standing part of the Bill has been made manifest by the debate on the amendments. The matter needs further and slightly more urgent consideration. We have the problem of the word "advertisement", which was discussed when we debated Clause 1 and which subsequently strayed into the purpose of Clause 8 in November. It is useful that we have this opportunity to consider Clause 8 specifically.
The noble Lord, Lord Hunt, explained earlier in Committee that Clause 8 was,
"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".
He went on to state:
"It may be difficult to anticipate what exactly would be in those particular regulations. The safeguard is that they are affirmative regulations".—[Official Report. 16/11/01; col. 818.]
That is quite important and has already been referred to in the debate today. I agree wholeheartedly with the Minister that it is difficult to anticipate what exactly will be in particular regulations, but I am not alone in considering that Clause 8 is confused, will be confusing and, sadly, is not necessary.
We need to look at the history of the clause. It would seem that it was conceived in the course of committee proceedings in the other place in the previous Parliament. In considering Clause 4, the opposition questioned what was a display of tobacco products at the point of sale and whether, possibly, a display could be or could become an advertisement. The outcome was the introduction of an amendment by the government—the addition of Clause 8. That amendment was added to the Bill without any debate as to its content. Far from clarifying matters, as we have heard from the subsequent debates, the issue is confused and confusing.
The Explanatory Notes to subsection (4) of Clause 8 explain that any regulations made under Clause 8 must clarify how displays which amount to advertisements are to be regulated. They go on to state:
"Given that the Government would have regulated both for advertising (under clause 4 subsection (2)) and displays (under clause 8 subsection (1)) at the point of sale, it would be essential to specify under which regulatory regime displays which also amounted to advertisements were to be treated".

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This matter was highlighted by the Select Committee on Delegated Powers and Deregulation. That Select Committee is respected in all corners of the House. In its eleventh report, it described the power given to Ministers by Clause 8 as a "somewhat puzzling power". That is a polite understatement. The Select Committee went on to state:
"The puzzle is made more difficult by subsection (4), which provides that 'The regulations must make provision for a display which also amounts to an advertisement to be treated for the purpose of offences under the [Bill]. as one or other but not both".
Ultimately, the Select Committee considered that the provision of the affirmative procedure was a sufficient safeguard for this "somewhat puzzling power". This clause is not necessary or appropriate.
Lord Skelmersdale: I am reminded that on Second Reading and, indeed, when the Bill in its previous form was being considered by another place, Ministers, both there and here, made the offer to publish as many regulations in draft as they possibly could before the Bill finished its progress in this House. I intervene only to keep both Ministers, as far as possible, up to their promise.
Lord Monson: As Clause 8 appears to be the brainchild of the Government, perhaps this question should be put to the noble Lord, Lord Filkin, rather than to the noble Lord, Lord Clement-Jones. What is the purpose of subsection (2) of Clause 8? The subsection states:
"It is not an offence … for a person who does not carry on business in the United Kingdom to display or cause to be displayed tobacco products—
and so on.
If people are located outside the United Kingdom they are outside the scope of British justice anyway, are they not? Or is it the intention of the Government to alter the proposed European arrest warrant so that people can be extradited from continental EU countries for the heinous crime of advertising tobacco?
Lord Peston: I find myself in the rather embarrassing position of finding Clause 8 totally clear. I am completely at a loss as to what is troubling those noble Lords who are puzzled by it. The logic, it seems to me, is that it is accepted that something may be a display and an advertisement; that that something has to be dealt with, and we have decide whether to deal with it as an advertisement or as a display. Given the way the Bill is drafted, as I understand it, we cannot deal with it as both.
Clause 8 states that as you have got to make up your mind which it is, the best way to do that is to have some regulations, which will be placed before Parliament, to say, "This is how we are going to do it". That makes perfectly good sense to me. I really do not know what noble Lords are fussing about.
I would never be one to criticise the Select Committee on Delegated Powers and Deregulation—although, when we were in opposition, I was against having such a committee because I was totally against that much delegated power going ahead anyway. That
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is another matter, but I am also puzzled that it is puzzled. The matter seems very straightforward. Something can be both a display and an advertisement and you have got to make up your minds how you deal with it.
Although we are not in the psychiatric game today, I should like to know quite what is troubling the noble Lords who are troubled. In my view, the Government should go ahead—I hope that the noble Lord, Lord Clement-Jones, does not resile from this—because this clause is both clear and needed.
Baroness O'Cathain: Perhaps I may ask for clarification from my noble friend Lord Oxfuird. Several times during his introduction, he used the words "point of sale". The words "point of sale' do not enter into Clause 8 at all. It suddenly came to me that someone said that you cannot ban displays because you can go into a confectioners, tobacconists and newsagents and see a whole lot of cigarettes for sale there on display. But a point-of-sale display is quite different. It is something which is at the till or is removed from the cigarettes on the shelves. We need a definition for "point of sale". Generally speaking, in both the retail sector and in marketing generally, "point of sale" means something which is necessarily remote from the normal source of the product—for instance, by the tills, by the check-outs or in a special gondola of its own.
So what does my noble friend Lord Oxfuird mean by "point of sale", particularly as the words do not appear in Clause 8?
The Viscount of Oxfuird: I thank my noble friend Lady O'Cathain for her comments. I am trying to see where I used the words "point of sale". It is not in my script. Oh yes, it is in the Explanatory Notes. I take my noble friend's advice and thank her for it.
The Earl of Erroll: I entirely agree with the noble Lord, Lord Peston, that the provision is necessary. We had a long discussion about what was an advertisement and what was not. We decided not to define it.
I am not trying to allow the advertising of tobacco products to continue. I am concerned about a possible difficulty mentioned to me by the noble Lord, Lord Weatherill, some years ago; namely, the "law of unintended consequences". I am concerned that the Bill could be used by people in order to cause trouble to other businesses, using the very broad powers in the Bill to accuse them of doing something when it might be difficult for them to prove otherwise.
I have referred to this matter previously in relation to material transmitted electronically. Therefore. I shall not bore the Committee with it now. Clause 8 is very useful. It helps to take some matters out that could be included in the term "advertisement". Therefore, I fully support the noble Lord's remarks.
Lord Hunt of Kings Heath: My Lords, we have debated the matter well. I do not think I need repeat

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my remarks in relation to the earlier amendment. I believe that, unlike some noble Lords, my noble friend has got it right. It is abundantly clear why we need to have a safeguard in relation to displays; and why we want, through the regulatory power provided in the clause, to give certainty as far as possible to anyone who might be affected.
It is important to underline the point that it would require an affirmative regulation. Therefore, the matter would be subject to full debate in this House. I know to my own cost that debates on affirmative regulations are extensively scrutinised and cause great excitement to the Department of Health—at least, the previous three or four that I have moved in this House have done so.
Secondly, I want to make it clear that there is no intention of unnecessarily increasing the burdens on small business. I also confirm that the Government do not intend to change the way in which tobacco products are now commonly displayed in gantries in corner shops, supermarkets and ordinary places of sale.
It may well be the case, as I said earlier, that we do not need to make any regulations using the powers contained in the clause. However, because of the potential for future loopholes and abuses—for example, in the case that I cited originally, of a big Marlboro "M" with lots of packets of cigarettes being displayed in it. There is a need for what might almost be called a reserve power to control and regulate the display of tobacco products if that is required.
In answer to the question about Clause 8(2), my advice is that in theory a person not in the UK could be guilty of an offence and could be prosecuted if he or she came to the UK. We would not want that to happen. That is why the clause is drafted in this way.
12.15 p.m.
Lord Clement-Jones: This has been an interesting debate. I suspect that the noble Lord, Lord Peston, and I must have both sprung up this morning with a clear head. I certainly agree with him: I do not find any great lack of clarity in the clause. I understand why we needed to elucidate why subsection (4) was required. But I certainly do not understand why we have to elucidate the whole of the clause.
As has been amply discussed, the clause relates to product displays. We are not talking about "point of sale" material. It is when those displays may possibly be advertisements as well that the provision in Clause 8(4) cuts in.
I am slightly baffled as to why we are having this debate, unless there is a genuine view that the power to ban displays at some point in the future should not be available in the Bill. That is a view with which I strongly disagree. I believe that we may well wish to exercise such a power at some point in the future. Displays are very seductive. If they were not, our supermarkets would not have their "gondolas" full of products. They are product displays which are promotions. Displays in shop windows will be
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particularly seductive for young people. Therefore, I am totally unapologetic about the purpose and design of Clause 8.
Sub-section (4) is intended to provide fairness and certainty, so that it is quite clear into what category of offence a case falls where the promotion is both a "display" and an "advertisement". I do not know whether the phrase "hung for both a sheep and a lamb", instead of "either a sheep or a lamb" has any resonance at all, but that is the design of the clause.
The noble Earl, Lord Erroll, introduced the useful phrase, "the law of unintended consequences", and said that his purpose was to make sure that a situation did not arise where there was a great deal of uncertainty about what kinds of offences people face. Again, that part of the clause is designed to cut back on the number of unintended consequences. I find the clause unimpeached in the course of the debate and I very much hope that Members of the Committee will support it.
Clause 8 agreed to.
Clause 9 [Prohibition of free distributions]:
[Amendments Nos. 56 to 60 not moved.]
Lord Monson Lord Monson moved Amendment No. 61:
Page 5, line 6, after "of insert ""nominal sum" and"
The noble Lord said: In the absence of my noble friend Lord Palmer, I should like to move Amendment No. 61, although I have not had time to study it previously. The amendment is entirely helpful both to the noble Lord, Lord Clement-Jones, and to the Government. It is not in any way a wrecking amendment or one designed to detract from the force of the Bill. It is simply logical—
Lord Hunt of Kings Heath: Perhaps the noble Lord will forgive me. I think there is some confusion as to which amendment he is speaking to. I apologise to the Committee, but perhaps we can clarify that.
The Deputy Chairman of Committees (Lord Brougham and Vaux): Amendment No. 60 is not moved, and I understand that the noble Lord is speaking to Amendment No. 61.
Lord Monson: That is the amendment to which I was speaking. As I said, I believe it is entirely helpful. If the Bill specifies a "substantial discount", it is illogical not to identify precisely what is meant by "nominal sum". I hope that this minor amendment may be accepted without too much fuss by the noble Lord, Lord Clement-Jones.
Lord Filkin: Clause 9(7) provides that any regulations concerning the making of products available for a nominal sum or "at a substantial discount" must define the term "substantial discount". The amendment would require the regulation also to define "nominal sum".
The requirement to define "substantial discount" is in the Bill because it is a relative concept and may mean different things to different people, and in different

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circumstances. For example, many people would see £1,000 as a substantial sum, but if it was the discount off a car costing £50,000 it might not be seen as a substantial discount, being only 2 per cent of the value. Therefore, because of that uncertainty, and because there is the potential liability for a criminal offence, it needs to be beyond doubt what is implied by the term.
We do not believe that the term "nominal sum" is likely to give rise to similar difficulties. This is a term which is generally understood and we think it is right for it to hear its normal meaning. As has been said previously, in the absence of a definition, words in the statute will be given their natural and ordinary meaning. "Nominal" is defined in the dictionary as:
"minimal in relationship to the true value; token; so small or insignificant as to hardly justify the name".
In the absence of a definition, the courts have interpreted the reference to "nominal rent" in the Finance Act 1910 as a mere token or acknowledgement of the relation of landlord and tenant.
In contrast, "substantial" is a word with no fixed meaning that may mean different things to different people. The Government do not support the amendment for that reason.
Lord Clement-Jones: I have very little to add to that. I assure the noble Lord, Lord Monson, that the meaning of "nominal sum" is clear to lawyers. The phrase is frequently used relating to the exchange of documents between trustees, when the beneficial ownership does not change. It is a common phrase that is easily susceptible to interpretation. There are very few circumstances in which there would be any ambiguity about it.
We have had debates throughout the passage of the Bill about whether certain terms used in the Bill should be defined exhaustively. We had a debate about the word "advertisement" at the beginning of Committee stage. There is always a judgment to be made about whether it is better to leave a particular phrase for interpretation or whether there needs to be a particular interpretation for the purposes of a Bill. My strong view is that there is sufficient usage of "nominal sum" across the commercial world for it to be easily interpreted and very clear in its application. Therefore, no particular definition needs to be inserted in the Bill. That is rather different from "substantial discount", which is defined.
Lord Campbell of Alloway: I agree with everything that the noble Lord, Lord Clement-Jones, has said about the amendment. However, whether the essence of what "substantial discount" means should be defined in regulations is a very important point. I agree that sometimes it is better to leave matters open and sometimes it is better to define. However, I do not understand why it is better to define in the regulations under Clause 9(7), but it is not better to define in this muddled affair under Clause 8(4). I am cross-reading against the two. I do not understand why the same provision that requires a definition of "substantial discount" should not be taken on board for consideration before Report when considering the argument on Clause 8(4).
Lord Clement-Jones: I am not sure that I entirely follow the noble Lord in his logic. Clause 8(4) is designed simply to state into which category of offence a display that was also an advertisement—or an advertisement that was also a display—would fall. The regulations envisaged under Clause 8(4) are fairly straightforward. The purpose of Clause 9(7) is rather different. It would give a definition of "substantial discount". The purpose of Clause 8(4) is not to define when an advertisement is a display or when a display is an advertisement. It will be a matter of fact whether an advertisement is an advertisement or a display is a display. The intention is simply to prevent overlap on how offences are dealt with. The two provisions have entirely separate purposes.
Lord Monson: I am grateful to the noble Lords, Lord Filkin and Lord Clement-Jones, for their replies. To a layman, "nominal sum" is almost as imprecise and arbitrary as "substantial discount", but if the noble Lord, Lord Clement-Jones, assures me that it is not in the least imprecise for the legal profession, that is the end of the story. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 9 agreed to.
Clause 10 [Prohibition of sponsorship]:
The Earl of Liverpool The Earl of Liverpool moved Amendment No. 62:
Page 5, line 15, leave out "something" and insert "a public event or activity"
The noble Earl said: Amendments Nos. 62 and 63 have been grouped together, but they address two separate matters. With the leave of the Committee, I shall speak to each amendment in turn.
Unlike the first occasion, when the Bill was introduced by the Government, it is riot accompanied by a ministerial statement that it is compliant with the Human Rights Act 1998. Even if it were accompanied by such a statement, the reality is highly questionable.
In its recent report on the Bill, the Joint Committee on Human Rights draws the attention of each House to a number of important aspects, not least among which is the need for justification of the measures that it contains and an assessment of their proportionality.
Proportionality can be questioned strongly in relation to the impact of the provisions of the Bill, not simply on commercial freedoms but on those of the individual and of private groups. The Bill makes it an offence if a sponsorship agreement has the purpose or effect of promoting a tobacco product in this country. It also prohibits the giving away of tobacco products.
Let us put those provisions into a real-world, practical context. For example, there are private cigar and pipe smoking clubs that often meet for tastings sponsored by specialist tobacconists. The Bill would outlaw the sponsorship of those events. The events could no longer take place, without any benefit to the central objectives of the Bill. I do not regard that as in any way proportionate. I do not believe that it is right that tobacco sponsorship should be prohibited for private groups to which the public generally do riot have access.

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The Minister in another place gave an indication of the extreme scope of the Bill in Committee in the last Parliament. It was then indicated that it would be perfectly acceptable for cigarettes or cigars to be offered to guests at a luncheon hosted or sponsored by, for example, British Aerospace. However, if the same offer were made at a similar event hosted or sponsored by a tobacco company, it would not be acceptable.
It is well known that many companies sponsor lunches and hospitality boxes for sporting events privately. That covers activities such as rugby league matches, test cricket, Wimbledon or Ascot. The Bill would result in the absurd situation in which British Aerospace, an internationally known firm of estate agents and a tobacco company could occupy three adjacent boxes, offering the same hospitality to their clients or guests, yet when they reached the coffee, brandy and cigars stage, while British Aerospace and the estate agents would be allowed to offer all three items, the tobacco company would be able to offer only coffee and brandy, but not cigars. That is patently ridiculous, utterly unreasonable and wrong. I cannot believe that that was the intention of those who drafted the Bill. I hope that the noble Lord, Lord Clement-Jones will look favourably on Amendment No. 62.
One of the purposes of Amendment No. 63 is to introduce consistency to the Bill. The amendment in respect of sponsorship agreements mirrors provisions in Clause 4(1)(a) and Clause 9(3). Clause 4(1)(a) permits a tobacco advertisement,
"if it is, or is contained in, a communication made for the purposes of the tobacco trade and directed solely at persons engaged in any capacity in that trade".
Clause 9(3) permits the giving away of products or coupons,
"for the purposes of the tobacco trade, to persons engaged in any capacity in that trade".
Amendment No. 63 makes a similar provision with regard to sponsorship agreements. It provides that it is not an offence if a sponsorship agreement is for the purposes of the tobacco trade and is likewise confined to persons within that trade. In-company sponsorship agreements are not uncommon in the trade and within trade associations such as the National Association of Cigarette Machine Operators (NACMO). Just as advertising within the tobacco trade and the giving away of product coupons for the purposes of the tobacco trade to persons in the trade should be and is permitted by the Bill, so should it be the case with sponsorship agreements confined to the tobacco trade.
The two amendments are disparate; they are separate. Amendment No. 63 deals with sponsorship agreements within the tobacco trade. Amendment No. 62 deals with events of a private and not public nature. I beg to move.
12.30 p.m.
Lord Campbell of Alloway: I support my noble friend's amendment. In this context, I have to declare that I was a member of the Joint Committee on Human Rights which made the report to which he referred.
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In the context of sponsorship, one has to take on board, first, that there is the total ban on proportionality; and, secondly, that there is this wide definition of tobacco products which goes beyond cigarettes which are the killer on the evidence adduced by many. One has to accept that this interference in lawful trading—the proposed restriction on lawful trading or lawful activity such as sponsorship—has to be justified as proportionate. In this circumstance, the burden of proof in any proceedings would be on those who have to justify. I do not think that it could be done. I give my personal opinion; it has nothing to do with anything that other members of the committee may think or have said. The noble Earl's amendments would move towards a better prospect of justification than otherwise. They should be supported as not interfering with a lawful activity.
The Earl of Erroll: I can understand that we seek to ban the sponsorship of major events and the plastering of names, but I should be sad if the clause included, for example, hospitality tents which are used by invitation only. They are not for the general public to wander into. The amendments are entirely sensible. It would be ridiculous if cigarettes could not be dished up in a hospitality tent which is not open to members of the general public and has a restricted invitation list.
Lord Naseby: I apologise to the Committee for arriving somewhat late. I had to chair the meeting of the governors of Bedford School. I did not think that that should be put off for our third day in Committee. I hope that we shall be able to conclude the Committee proceedings today and that the sponsor of the Bill will be in a more generous mood than previously. These proposed amendments seem an ample opportunity for some generosity by the sponsor of the Bill.
Amendment No. 62 is important. Dare I mention that the Carlton Club had a cigar-smoking evening for those who were interested? Since I do not smoke I did not attend. Whether it was sponsored, I do not know. I doubt it, but I imagine that we may well have negotiated a good price for the evening. It was a private club with a limited section of the membership taking an interest.
My noble friend is right. It is a question of proportionality. First, we are dealing only with a small segment of the smoking market. We are dealing with that segment where the damage in medical terms is still questionable: it does not do damage to the same extent because one does not inhale. I think that the evidence is that cigar and pipe smoking are less damaging. The sponsorship does not involve the public but just those who take an interest in the two products. If it is a private group, involving only those people who take such an interest, there should be exemption.
Baroness O'Cathain: On a point of clarification, the amendment does not specify cigars and pipe smoking which the noble Lord says are less dangerous. It could involve cigarettes.
Lord Naseby: The noble Baroness may have a point in which case the amendment needs refining. The sponsor may wish to make that point. If he does so, the Committee will want to listen attentively.

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Amendment No. 63 deals with the trade and not the public. With regard to the trade, it seems a gross interference in people's normal commercial rights that those who are manufacturing and selling legally are prevented from carrying out a normal promotion of their product to those who distribute it. Airlines and others would not want to have that restriction imposed upon them. It seems wrong that there should be such an imposition on the tobacco trade.
Lord Geddes: I support both amendments in the name of my noble friend Lord Liverpool. The arguments have been well rehearsed. I repeat them briefly.
On Amendment No. 62, I am worried by the use of the word "something". The objective of the amendment is to make it an offence if sponsorship is for a public event but not when it is for a private event. Leaving that aside, what is a contribution towards "something"? In that context, it could mean anything— a railway engine or a camel. The Bill needs to be more specific. My noble friend Lord Liverpool has proposed his amendment in a way that is consistent with the purpose of the Bill.
On Amendment No. 63, perhaps I may endeavour to help the promoter of the Bill and the Government. A Bill which becomes an Act of Parliament must surely be consistent throughout. Since Clause 4(1)(a) and Clause 9(3) are very specific on this point, surely to goodness Amendment No. 63 must be agreed to in order to get some consistency throughout the Bill.
Lord Hunt of Kings Heath: I am grateful to the noble Earl for raising these two matters and I welcome the noble Lord, Lord Naseby, back to our deliberations. He was much missed in our first two hours of debate this morning. I am disappointed that he raised the issue of the Carlton Club because it meant that I could not take a crack at it, as I intended to,
The noble Lord, Lord Geddes, raised the point of "something". I suspect that we shall know "something" when we see it. The essential problem is that by attempting to define, as the noble Earl does, you risk exclusion. The context in which we debate this Bill is one in which we are seeking to exclude potential loopholes. One loophole is that by restricting the ban to a public activity or event, various other forms of promotion may become available. Perhaps a tobacco company could strike a deal with a supermarket which stocks its products to fund a private function. It could, for example. allow a tobacco company to sponsor an event at a social club to which only members are admitted. If that were done in an extensive way, as might be perfectly possible, by the tobacco industry it could be one way to get round the ban and continue to promote such products. The intent of this clause is to put in place a comprehensive ban on the sponsorship of tobacco products, which is why it is drafted as it is.
Regarding Amendment No. 63, I shall be interested to hear what the noble Lord, Lord Clement-Jones, has to say. Certainly one needs to look at whether there are some specific and tight examples where the legitimate
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course of business might be inhibited. That is something we might want to look at without any commitment between now and Report stage.
Lord Clement-Jones: It has been helpful to have both these amendments taken together because they raise issues of proportionality and come back to the public policy issues that we debated earlier in Committee as to how far do you go in legislating for certain things not to take place. Do we start to allow only brandy and cigars to be provided at a corporate event or do we go all the way down the track to allow—let me surmise here—shooting parties or corporate hospitality to be provided by tobacco manufacturers, and then all the way through to semi-public events?
I know where I should like to draw the line——as tightly as possible—because I believe that anything which promotes tobacco products and has the potential effect of increasing tobacco consumption is something which this Bill is trying to attempt. That is why this clause is drafted in the way that it is. But in fact it applies to tobacco products and promotions. It does not apply to the corporate identities of the companies involved.
If a company wishes to sponsor an event, or "something" in the terms of the Bill, my interpretation of this clause is that, provided that the company does not promote tobacco products, it is perfectly entitled to do that. Therefore, if a tobacco manufacturer wishes to have a sponsored event, a trade association event, or whatever it may be, that is perfectly okay provided it does not promote tobacco products.
I do not think, in corporate terms, that this is too restrictive. In fact you might argue that because quite often the corporate name is so closely identified with tobacco products, this is quite a generous clause. Again I do not believe that Amendment No. 62 is necessary. It is a public policy issue. The noble Earl, Lord Erroll, asked why we could not carry on with corporate hospitality. It is a question of degree. In my book, private corporate hospitality events, which are extremely prevalent and are often an extremely effective way of promoting products, are just as culpable of promotion as major public events.
12.45 p.m.
The Earl of Erroll: The point was made earlier about being able to serve cigarettes or cigars at the end of a meal. As I understood the noble Lord's point, if, for example, the company which happened to take the corporate hospitality tent was not a tobacco company it could give cigars and cigarettes out at the end of the meal. If it were a tobacco company, it could not do so. I tend to think that the general public would see that as idiotic and that the law was being an ass yet again. Perhaps one should have some wording to the effect that a tobacco company can behave in a normal fashion in such cases. It is wrong for the law to be seen as an ass. I originally thought that the noble Lord had said that a tobacco company cannot dish up cigarettes

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although other companies can. His later remarks gave me hope that everything might be all right. I am not sure which is the right interpretation.
Lord Clement-Jones: Perhaps I may say, off the cuff, that the noble Earl's initial interpretation is probably correct. There may well be some inconsistency there, but we come back to the principle of the clause, which is whether the effect of the sponsorship is to promote tobacco products. I do not think that the law is an ass if its principle is perfectly clear. There are always one or two unintended consequences, but clearly the aim is to get as few unintended consequences as possible. Certainly they are not got rid of by driving a coach and horses through a clause.
Lord Burnham: Might I ask the noble Lord whether in the context of this amendment and before we get to the Report stage he might consider the possible insertion at some point of the old word "nominal"?
Lord Clement-Jones: I have probably been hoist by my own petard at some stage along the way. I am not quite sure where the "nominal" phrase might fit in the context. Nominal sponsorship, as a phrase, might not fit because sponsorship is very rarely nominal; it is nearly always designed to have an effect on the sales of the product being sponsored.
Baroness O'Cathain: Would this Bill not actually prohibit any hospitality tent for corporate sponsorship by a tobacco company? Therefore, you would not have the problem of three companies with three tents: you would have only the two which were not tobacco companies.
The Earl of Erroll: I am not sure at all. I am only trying to respond to what I have been hearing. I shall be corrected if I am wrong, but a tobacco company could take a tent at some event as long as it was not trying to plaster its name all over it, advertising a tobacco product. The challenge then comes because there is a degree of sponsorship of the event involved. Money has been contributed by the company which helps to support the event. The moment the company serves free cigarettes in the tent at the end of a meal, it has actually supplied a tobacco product, which might be seen to be a promotion whereas, next door, British Gas can quite happily light up and set the world on fire.
Lord Peston: There is a misunderstanding here. This has nothing to do with giving free brandy or cigars at the end of a meal. The Bill has no connection with that whatever and I cannot imagine any rational person thinking that it did. When I was at the annual dinner of the Institute of Directors a few weeks ago people were offered cigars—I immediately refused—and it did not occur to me that the Institute of Directors was promoting tobacco products. Even if the organisation had not been the Institute of Directors, I do not see
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that it was promoting tobacco products. It was doing something for which I certainly not care, but that is not a problem at all.
The only issue is sponsorship, which is another matter. In this case, sponsorship is very clearly and simply ruled out, as it ought to be.
I am a little puzzled by the "private" issue. The Lords and Commons Tobacco Group, or whatever it now calls itself, has not yet declared its interest on this amendment, although it has on earlier ones. I take it for granted, however, that members of that group do not receive free pipe tobacco and free cigars from tobacco companies, so that they have no interest to declare on this matter. I make the point just to be entirely sure that I know where I am.
Lord Monson: It would be extremely helpful if the Minister would confirm that the noble Lord, Lord Peston, is right that it would be quite legal for a tobacco company to dish out free cigars and cigarettes as well as some brandy and coffee at the end of a meal.
Lord Peston: My point is that it is a complete irrelevance whether they dish them out. The question is whether their activity is a sponsorship activity. People at these sponsorship events may find other things more attractive than cigars, such as bags of sweets, which would be just as illegal as anything else at a sponsorship event. In this case the essence is sponsorship; it is not to do specifically with free cigars or cigarettes. That is not what the provision is about, and I am rather keen that we should at least debate what it is about.
Lord Monson: That makes it all the more important that we hear from the Government precisely how they interpret the situation. May I put it to the noble Lord, Lord Clement-Jones, that the recipients of corporate hospitality are very unlikely to be teenagers or even in their 20s or 30s? Those who accept cigarettes or cigars at the end of a meal in a corporate hospitality tent are likely to be confirmed smokers, who are not those whom the Bill seeks to protect. It is an important point.
Lord Hunt of Kings Heath: The noble Lord, Lord Clement-Jones, will undoubtedly wish to respond to those points. Surely, however, the essence of the issue is addressed in Clause 10(1) which deals with purpose. If the sponsorship purpose is to promote a tobacco product then it falls within the terms of the clause.
Lord Clement-Jones: We may well have come across one or two interesting highways and byways in considering Clause 10, but, as the Minister said, the clause's intent is utterly clear. Although I agree with the noble Lord, Lord Peston, that the provision is all about sponsorship, I think that the interpretation of the noble Earl, Lord Liverpool, is probably correct. It may be something that tobacco companies will have to live with. If a tobacco company places cigarettes on the table at an event that it sponsors in its corporate name, that may well constitute promoting a tobacco product.

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It is something that they will probably have to live with. I do riot think that allowing them to do so will serve the purposes of this Bill in any shape or form.
Lord Monson: Would it be in order for them to place on the table a rival company's tobacco products?
Lord Clement-Jones: I have never thought that the tobacco companies were that naïve.
The point on corporate events and younger people will not wash. Younger people are the target audience at some of the events sponsored by tobacco companies, whether they are beach parties, polo matches or many other events of which your Lordships are aware. The age groups concerned do not start at 25.
I am slightly baffled why the noble Earl, Lord Liverpool, felt it necessary to table Amendment No. 63. Provided that it is not promoting tobacco products, sponsorship of trade association activities in the corporate name seems to be a perfectly legitimate activity in terms of Clause 10. If a tobacco company wishes to have a knees-up for its employees, or even for the employees of another company through the trade association, the provision would not, so far as I can see, prohibit it. In promoting Amendments Nos 62 and 63, the noble Earl, Lord Liverpool, has rather made out that Clause 10 is more restrictive than it truly is. If he re-examines the wording, he might find that it is rather more benign than he thinks.
Lord Faulkner of Worcester: Before the noble Lord sits down, would he comment on the point made by the noble Earl, Lord Erroll, about the people at whom the Bill is aimed? He said that the Bill is not aimed at confirmed smokers. My understanding is that it is aimed at the 70 per cent of confirmed smokers who are desperate to give up smoking but do not have the will power to do so and who are irritated by the existence of sponsorship and advertising.
Lord Clement-Jones: Absolutely. We are trying to prevent not only new smokers but relapses by those trying to give up smoking. The noble Lord, Lord Faulkner, is entirely right about that.
Lord Naseby: Amendment No. 63 does not seem as clear as the noble Lord suggests. As I read it, although one can advertise and give away products and coupons within the tobacco trade, a tobacco company cannot sponsor an event that is exclusively for the tobacco trade. If my interpretation is wrong, I very much hope that the Minister will tell me. On my reading of the Bill, it would be impossible for a tobacco company to sponsor an event exclusively for the tobacco trade. Amendment No. 63, however, seeks to make it clear that such sponsorship is possible, just as it is possible to advertise within the tobacco trade.
Lord Skelmersdale: I had not intended to intervene in this discussion, but as it has been shown—we have had discussions on the matter—that advertisements
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circulating within the tobacco trade are legal, it seems a nonsense that corporate entertainment purely for the tobacco trade is not, if that is the case.
Lord Clement-Jones: I do not believe that that is the case. Provided that they are not intended to promote tobacco products, events such as employee knees-up or whatever they may happen to be are entirely legitimate.
Lord Naseby: The noble Lord says "provided that they are not promoting tobacco products", but advertising within the tobacco trade is promoting cigarettes or other tobacco products albeit within the trade. Coupons can be used within the trade. All such activity, which may deal with new developments and so on, is by definition promoting tobacco, albeit just within the trade. The question that my noble friends and I are asking is that if the Bill makes such activity legal—I very much hope that the Minister will confirm that it is; it has certainly been the interpretation all the way through our consideration—why should the tobacco companies not be allowed to sponsor, exclusively to the tobacco trade, a session that is about promoting tobacco? I am not talking about employee knees-up and that type of thing, but a session that is exclusively for the tobacco trade. By definition, such sessions are bound to have some information about the tobacco trade.
Baroness Finlay of Llandaff: I may be naïve about the provisions' legal aspects, but I am concerned about the amendment. The spirit of the Bill is to prevent sponsorship, particularly as it affects young people. Amendment No. 63 might create a loophole whereby any student who has ever sold a packet of cigarettes during their holiday job in Spar could be deemed as one who had been,
"engaged in the tobacco trade (even if they are also engaged in another trade)",
which may be studying, or working in Spar, or Tesco—I do not intend to advertise a specific supermarket.
Students are notoriously short of cash for social events and they would be quite keen to take up an invitation to any event. It seems that Amendment No. 63 would enable a tobacco company to lay on and pay for a social activity such as a ball that could include just about every student in the National Union of Students, almost all of whom have had a holiday job in some of those outlets.
Lord Hunt of Kings Heath: The noble Baroness has put her finger on one of the problems. By accepting Amendment No. 63, your Lordships could be giving tobacco companies the green light to organise and sponsor events or social contacts in the industry which may well be associated with other sectors. If that happened, the point that the noble Baroness has raised would come into play.
Earlier I put it to the noble Lord, Lord Clement-Jones—if we accept that there is a problem in terms of loopholes—whether there are instances of legitimate business activity which have been mentioned which

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one would not wish to see caught by the provision. I do not know whether the noble Lord, Lord Clement-Jones, without commitment is prepared to consider that narrow area between now and Report.
1 p.m.
Lord Clement-Jones: This is an interesting point. I am not convinced by the logic of the noble Lord, Lord Naseby. There is much more potential for leakage into the wider world during a sponsored event. I refer, for example, to an annual Benson & Hedges ball which is given strictly to promote Benson & Hedges products. Of course, that falls within the terms of the noble Earl's amendment. However, people invited to that ball may invite all their friends.
Lord Naseby: Perhaps the noble Lord has not fully understood the matter. If everyone who attends that event is in the tobacco trade, the situation would be covered by the amendment. However, if anyone attended who was not in the tobacco trade, that would not be the case.
Lord Clement-Jones: So no wives, daughters or sons would be invited, only those involved in the tobacco trade?
Lord Naseby: That is how the amendment is drafted at present. The Minister made a helpful suggestion. One can go from the extreme of saying that the provision applies purely to people who must currently be involved in the tobacco trade—that is perhaps the tightest definition—or apply various gradations within that definition. All I ask the noble Lord to consider is how the tobacco industry can continue its normal functioning and yet not open such events to the wider general public. The noble Baroness mentioned students. Neither I nor my noble friends wish to open up that area. As I say, the Minister made a helpful suggestion. I hope that the noble Lord will consider it before Report.
Lord Clement-Jones: Those comments are helpful. What the noble Lord, Lord Naseby, is really saying is that the measure will not be used as a Trojan horse. It is concerned entirely with the trade. Any amendment will need to be judged entirely on that basis. Clearly, there are still drafting points to consider, but I am prepared to consider the amendment before Report.
The Earl of Liverpool: I assure the noble Lord, Lord Clement-Jones, that I had no intention of introducing a Trojan horse. The amendment is a genuine attempt to try to tighten an inconsistency in the Bill and, most importantly, to allow companies going about their legal business at such events to be treated in the same way as other companies not in the tobacco trade. My Amendment No. 62 may be imperfect. However, it was not intended to constitute a way of getting round sponsorship. I am not trying to do anything other than explain that there are a number of companies in different fields which offer corporate hospitality at
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sporting events around the country. They may have a marquee or simply a small box. However, those marquees or boxes will not be open to the public and admission will be by invitation only.
I am not referring to the situation where a tobacco company sponsors the event to which it invites its guests. It seems to me that it is completely absurd for the company offering corporate hospitality not to be allowed to hand around cigarettes and cigars because it happens to be a tobacco company. Apparently, that is the position as that is the way the sponsor of the Bill interprets it. However, companies not involved in the tobacco trade would be able to hand out those products freely.
Lord Hunt of Kings Heath: I am grateful to the noble Earl for giving way. Surely, there is a big difference here; namely, that the company not involved in the tobacco business is not involved in promoting tobacco products, whereas a tobacco company is so involved. There is a logic as regards why they should be dealt with differently.
The Earl of Liverpool: I thank the Minister for that intervention, but can he not see that that is not the prime point of offering the corporate hospitality? The point of offering that hospitality is to thank friends and people involved in the trade for their custom over the years, as other companies would do. In those circumstances it would be abnormal not to offer the whole round of hospitality which involves food. drink, cigarettes and cigars. Surely it cannot be the intention of the Bill to make that illegal. Is the Minister saying to me that these events could be policed and someone could he hovering waiting for the whiff of smoke to emanate from a tobacco company's private box? I believe that that is what he is saying and it is completely absurd.
Lord Hunt of Kings Heath: I am sure that we can rely on the good sense of the enforcement authorities. In the previous Committee debate we debated the protocol under which trading standards officers would enforce the provisions of the Bill. I am sure that they would do so sensibly. My view is that the noble Earl should perhaps quit while he is ahead as I sense that the noble Lord, Lord Clement-Jones, is sympathetic to the point about a potential problem in terms of legitimate business activity. It may be wise to call a halt to the matter at this point and allow discussions to take place between now and Report.
The Earl of Liverpool: I thank the Minister for those helpful remarks. In conclusion, I thank all those who have taken part in this interesting debate. As I say, I am grateful for the Minister's comments. On the basis that the matter will be considered before Report. I am happy to beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 63 to 65 not moved.]
Clause 10 agreed to.
Clause 11[Brandsharing]:
[Amendments Nos. 66 to 68 not moved.]
Lord Naseby Lord Naseby moved Amendment No. 69:
Page 5, line 44, leave out ", or whose effect is to do so"
The noble Lord said: In the absence of my noble friend Lord Lucas, I move the amendment. The amendment recognises that we all understand and are at one with the words in the Bill which state,
"may prohibit or restrict only that use whose purpose is to promote a tobacco product".
However, the amendment seeks to remove the rather odious following words in the Bill; namely,
"or whose effect is to do so",
as they constitute a judgmental provision as to whether or not that effect will occur. It seems to me that that constitutes a wonderful opportunity for lawyers to spend endless hours in the courts trying to decide whether or not that effect will occur. In moving the amendment I seek to tighten the Bill so that we are absolutely clear that it is the promotion of tobacco products that we must avoid. However, if the element that is being promoted is a "tick", for example—I do not think that Nike has anything to do with the tobacco trade—that should not be banned. I do not want to become involved in a long debate about brands that cover various products as we dealt with that previously, although not very satisfactorily. As I say, the amendment seeks to tighten the Bill and not give lawyers a wonderful opportunity to make considerable sums of money. I beg to move.
Lord Filkin: I thank the noble Lord, Lord Naseby, for moving the amendment—although I doubt that the noble Lord, Lord Lucas, if he had been in his place, would have done so. Given his strong interest in these issues, I trust that he would have let it pass. Given that, I shall be extremely brief, but I shall be prolix later if necessary.
Effect is there as well as intention, for reasons upon which we have touched previously. We are not seeking to inquire into people's souls, as to whether or not they want to have a certain effect. We are trying to limit the effect of tobacco promotion on young people and those who wish to give up smoking. Whether or not the action was intended, if the effect is of the nature in question the Government's position is that we want the power to limit that effect. The Government will consult carefully and thoroughly on regulations, so that we hear the views of the industry and others.
Lord Clement-Jones: This has been one of our shorter debates but the wording
"whose effect is to do so"
is extremely important. The definition of a tobacco advertisement in Clause 1 is one
"whose purpose is to promote a tobacco product, or … whose effect is to do so".
That is entirely mirrored in Clause 11 and rightly so, because it is crucial that brand-sharing is caught in the same way. If the measure were based purely on intent,
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anybody who recklessly or negligently used a brand that had the effect of promoting tobacco would not be caught. If the regulations—which the Minister has said will be heavily consulted on—were based purely on intent, it would be far too easy for someone to escape.
We return to public policy and how high the hurdle should be. It is entirely appropriate that the test should be, as well, whether the effect of the use is to promote tobacco. Companies should be put on notice that they need to be careful to ensure that their activities do not promote tobacco products.
Lord Naseby: Having listened to the Minister and the promoter, we clearly disagree. But we have debated the issue at length on two previous occasions and as I, too, want to make progress, I do not choose to divide the Committee. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
On Question, Whether Clause 11 shall stand part of the Bill?
1.15 p.m.
Lord Naseby: I remain deeply concerned about brand-sharing, which the promoter said he is determined to outlaw. In our earlier deliberations on own-label products, the noble Lord cited Sainsbury's and seemed to suggest that a tobacco own-brand would be permissible and not fall foul of Clause 11. That is an important point and one on which I have not given the noble Lord notice—so if he does not wish to respond now, it needs to be answered on Report.
How confident are the Government that they will not find themselves facing claims for compensation for loss of intellectual property rights? I imagine that some work must have been done on that aspect. On 7th December, the Minister said that was a complex subject—which means, "Heavens! This looks like dangerous ground and I am advised that I should be getting worried." I hope that those two points will be clarified on Report because they are crucial to the Bill and important to the industry.
Lord Peston: The noble Lord, Lord Naseby, is right to remind us that we will return to one or two of these topics on Report. Brand-sharing is an area in which I made a mistake. I did not know that Dunhill had sold the rights to use its name on cigarettes rather than being involved in cigarette manufacture itself. That is the past and there is no problem from now on, so I agree that point relates to Amendment No. 7. However, Dunhill was an innocent party and we must ensure that such companies are not damaged in respect of brand-sharing. I totally support the noble Lord's view that one or two technical aspects require further scrutiny, without any commitment as to where any of us will end up.
Lord Filkin: I am seriously worried if the noble Lords, Lord Peston and Naseby, agree—we are clearly in some difficulty. Both noble Lords are right on this occasion. The general principle is that the Government

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are confident that there will not be a legitimate case for compensation, having consulted on the regulations after the Bill is passed with the care that we intend. The defence of public health is the fundamental issue but we take the noble Lords' point and request. We will look at the issues in some detail and give answers on Report, if required.
Lord Clement-Jones: It has taken two and a half days in Committee to bring the noble Lords, Lord Peston and Lord Naseby, together. As the Minister said, some issues need deliberating upon when the regulations are put together.
I am not sure that I gave any undertaking about the use of Sainsbury's in brand-stretching but I am sure that any regulations would be wrong if they did not permit Sainsbury's to use its name even if the company had an own-brand cigarette. It is not that use of the Sainsbury name would be promoting cigarettes. That would not be a fair interpretation if the name were on a sweatshirt, tracksuit or umbrella—which is a different proposition. We can all think of other examples, so work needs to be done when composing the regulations.
We need to think about some of the consequences of particular forms of regulation. If the Bill did not have a brand-sharing clause, that would weaken it considerably because brand-sharing is the route of modern marketing. The noble Baroness, Lady Jay, was particularly eloquent on the subject of examples from abroad, which demonstrated how brand-sharing is used in the modern world and directed at young people. Clause 11 is an essential part of the Bill but we need to treat the regulations with some care.
Clause 11 agreed to.
Clauses 12 and 13 agreed to.
Clause 14 [Powers of entry, etc]:
Lord Monson Lord Monson moved Amendment No. 71:
Page 7. line 18, leave out "which he considers" and insert "where there are reasonable grounds for him to believe"
The noble Lord said: In the absence of my noble friend Lord Palmer I shall briefly speak to this amendment and those grouped with it. Once again, the amendments are all extremely moderate. They are certainly not intended to weaken—still less to sabotage—the Bill. They would introduce a concept of reasonableness into the powers of entry that are conferred in Clause 14. Noble Lords are traditionally vigilant in defence of our liberties and accordingly suspicious of granting powers of entry unless they will be used reasonably and can be shown to have a reasonable basis. The amendments are self-explanatory. I beg to move.
Lord Skelmersdale: When I read the amendment I had to check up on my rather faulty memory. The words in the Bill differ from those in the Consumer Protection Act 1987. I ask either the noble Lord, Lord
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Clement-Jones, or the Minister: why? The situation is—or should be—almost exactly the same under this Bill and that Act.
The Earl of Erroll: I am afraid that I do not always share the belief that the noble Lord, Lord Hunt, has in the reasonableness of enforcement agencies. Occasionally, one comes across someone who might be described as a little dictator and it is very wise sometimes to involve a third party. The next group of amendments, which I hope will be spoken to by the noble Baroness, Lady Jay, raise exactly the same matter. I shall save myself from having to leap up in that debate if I say now that those amendments appear to be extremely sensible for exactly the same reason.
Lord Naseby: In supporting the noble Lord, Lord Monson, we need to remind ourselves that the offences with which we are concerned involve the publication and distribution of advertisements, free products, coupons to the public or sponsorship agreements that promote a tobacco product. The key difference between these offences, which are clear, and many of the other offences—in relation to which trading standards officers will need the powers contained in the Bill—is that these are open offences; they are already in the public domain. That is perhaps unlike the situation involving the Consumer Protection Act, which was mentioned by my noble friend Lord Skelmersdale; that may need detailed investigation. We should also consider the Food Standards Act in that regard—again, it may not be immediately obvious that there is a problem or that urgent action by trading standards officers is required.
The fact that these offences are already in the public domain means that the amendments, which would trim back a little the powers of entry, are more appropriate than having the draconian provisions that are understandably necessary in relation to, in particular, the Food Standards Act. This is a matter of proportionality—we again return to that word. I support the noble Lord, Lord Monson, who moved the amendment.
Baroness Noakes: I shall speak briefly to Amendments Nos. 77 and 81, which stand in my name. The noble Lord. Lord Monson, who moved Amendment No. 71, and other noble Lords who have spoken subsequently, referred to these as modest amendments that are designed to trim very slightly the Bill's scope.
Amendment No. 77 is narrow and deals with the power to retain documents. It is similar to Amendment No. 76, which stands in the name of the noble Lord, Lord Palmer. Amendment No. 77 would slightly amend the power that officers will have to hold on to documents for weeks or months on the grounds that they consider it necessary—whether or not it is reasonable—for those officers to hold on to items for a long period. None of the other powers in subsection (1) carries the same potential for the disruption of a business. A power of entry may well be disruptive but it is over in a relatively short period. If an officer goes

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in and takes away books and records a business could be seriously inconvenienced. If the officer takes away products, the financial consequences could be significant to the business. That is why a test of reasonableness is proposed in the clause.
I turn to Amendment No. 81, which is another modest amendment. It deals specifically with the right of entry into premises either in relation to subsection (1) or under a warrant granted under subsection (4). Under subsection (5) an officer can take with him any,
"other persons … as he considers necessary".
Amendment No. 81 would require both persons to be authorised. The officer would not have the discretion to take with him or her whomever he or she chose; responsibility would be placed firmly on the relevant weights and measures authority, which must authorise specific individuals. The amendment would ensure that that authority took full responsibility for the relevant individuals when private premises were being invaded—possibly when the occupier was not present to supervise entry. That is a small safeguard to businesses. I hope that it will commend itself—not much today has commended itself—to the noble Lord, Lord Clement-Jones.
Lord Filkin: We come to the extremely important issue of enforcement, which the Committee naturally wants to ensure will be handled well and appropriately in the Bill.
Amendments Nos. 71, 72, 76, 77, 79, 80 and 82 seek to place in the Bill an express requirement on enforcement officers to act reasonably. I recognise that Members of the Committee are concerned to ensure that enforcement is carried out responsibly and that trading standards officers do not play fast and loose with the law. However, there is no need for the amendments. The duty to act reasonably applies in any event. Enforcement officers can already be held to account for the exercise of their duties. Indeed, any trading standards officer who "misconducts" himself or herself in the execution of his or her office is guilty of an offence and liable on summary conviction to a fine of up to £5,000 under the Weights and Measures Act 1985. Apart from anything else, no prosecution could succeed if enforcement officers were seen to have acted unreasonably. The Government therefore believe that, although we are sympathetic to the anxiety that caused the amendment to be moved, it is simply unnecessary to pad out the Bill with references of that kind because we believe that the issues are already dealt with under existing statutory powers.
Despite the point that was made by, I think, the noble Earl, Lord Erroll, we are generally confident and trust in the good sense of local authorities corporately and in officers individually to ensure that implementation of the Bill is sensitive and appropriate.
I turn to trading standards officers and the way in which they tend to act on such matters—they are the officers responsible within the relevant local authorities for enforcement. The approach of trading standards officers is to draw attention to offences and then to educate, to prevent or end offences in the
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simplest and swiftest way. Prosecution is not usually their first action. Court proceedings tend to he their last resort. We do not expect the Bill to result in large numbers of prosecutions. Tobacco companies have told us that they intend to comply with the law. Trading standards officers attempt to resolve an issue, to educate and to draw attention to offences before there is a need to prosecute.
Trading standards officers also operate under the principles of good enforcement, which were outlined in the joint sponsored Local Authority Association/Cabinet Office enforcement concordat, which was published in 1998. It is available from the Better Regulation Unit at the Cabinet Office. That seeks to ensure that enforcement authorities publish performance standards, are open and helpful, provide a means to complain, follow up on complaints received, ensure that wherever possible the impact of legislation is proportionate and act in a consistent manner.
Again, in addressing what the noble Lord, Lord Naseby, said, my own experience has led me to believe that in general trading standards officers do act responsibly in this way. I believe that that is reinforced by the presence of LACOTS—the expert local authority body—which will try to ensure that enforcement is dealt with skilfully, informedly and, so far as is reasonably practicable, uniformly. Therefore, this is probably one area where local authorities are best supported by a specialist body that has been formed for these purposes.
With regard to the question raised by the noble Lord, Lord Skelmersdale, in relation to the Consumer Protection Act, we should like to look at that in a little more detail. The glib answer might be that that Act dealt with the compensation of substantial goods. But let us return to that issue at a later stage.
I turn to the concern expressed by the noble Baroness, Lady Noakes, about the power to hold on to goods. Again, I believe that a distinction arises with the Consumer Protection Act when sometimes substantial goods can be confiscated in the course of an investigation or a potential prosecution. Under this Bill, if passed, in almost all cases trading standards officers would be likely to seize on entry and investigation documents or a computer hard disk. They would not seize, for example. a substantial amount of cigarettes. We would generally expect the power to seize goods to be minimal.
For those reasons, I suggest that, while the intent of the amendments is understandable, it is not necessary for them to be put on to the face of the Bill.
1.30 p.m.
Baroness Noakes: Before the noble Lord sits down, perhaps I may ask him to look specifically at Amendment No. 81. It does not concern an issue of reasonableness, to which I believe he directed his remarks relating to the way in which trading standards

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officers work. It concerns whether or not the persons who enter into premises under the powers in the Bill need to be authorised by the appropriate authority.
Lord Filkin: I thank the noble Baroness for drawing my attention to my omission on that point. Unfortunately, however, I also ask the Committee to reject Amendment No. 81. Clause 14(5) allows a duly authorised officer entering premises on the authority of a search warrant in connection with the enforcement of the Bill to be accompanied, as the noble Baroness rightly points out, by such persons as he considers necessary. That could mean a trading enforcement officer or, in the rare cases where violence was feared, a police officer.
This subsection follows other similar legislation, such as Section 33 of the Consumer Protection Act 1987 and Section 32(4) of the Food Safety Act 1990. I do not believe that in practice the absence of the word "authorised" in this legislation has caused problems. Therefore, I do not agree with the implication that enforcement officers, who are professional public servants, may be inclined to take inappropriate people along with them in the course of their duties. For that reason, I do not believe that we need to be concerned in the way that has been suggested.
Lord Clement-Jones: I do not propose to add a great deal to the Minister's very full reply on this subject. The Bill stands on its own. In the enforcement section, it deliberately tries to take a balanced view as to what powers are necessary and how they should be exercised. In one case, it is clear that it is on all fours with the Consumer Protection Act; in another case, it is not necessarily on all fours with that Act. No Bill will necessarily follow slavishly a previous Act; it depends on the circumstances. The Minister said that he will look a little closer at the comparison with the CPA of the reasonableness insertion. I have no doubt that that would also apply if there were other comparison points in the enforcement powers. I believe that that is a fair offer.
In the meantime, I do not believe that we can but be reassured by what the Minister had to say in his very full reply about the way in which enforcement officers exercise such powers. They are already under a duty to act reasonably and they have a very strong professional body which ensures that they act professionally and exchange information in a professional fashion. Therefore, I believe that, without evidence to the contrary, the provisions in this clause are currently fairly adequate. No doubt the Minister will return to us if he believes that there is a comparison with the Consumer Protection Act which should perhaps be closer in terms of making "reasonableness" explicit.
Lord Monson: I am grateful for the support that has been given to these amendments, albeit slightly qualified in the case of the noble Baroness, Lady Noakes. In the light of the intervention of the noble Lord, Lord Skelmersdale, from which I inferred that
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the requirement of reasonableness has, indeed, been enshrined in the Consumer Protection Act, I am slightly saddened by the reply given by the noble Lord, Lord Filkin. If enforcement officials are de facto obliged to behave reasonably, why not dot the "i"s and cross the "t"s by stating that on the face of the Bill?
Lord Filkin: For two reasons. First, generally we have confidence in the wisdom and care with which trading standards officers operate; and, secondly, because it is otiose to do so.
Lord Monson: That may be. I take on board the fact that the Government will look at the Consumer Protection Act between now and the next stage. Certainly, as the noble Lord, Lord Clement-Jones, has just said, it is extremely helpful to have the comments of the noble Lord, Lord Filkin, on record. That may be helpful during the proceedings at a future date. I have no idea whether or not between now and the next stage the Government will try to bring matters into line with the Consumer Protection Act, and I have no idea what my noble friend Lord Palmer will wish to do on Report. However, for the time being, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 72 not moved.]
Baroness Jay of Paddington Baroness Jay of Paddington moved Amendment No. 73:
Page 7, line 23, at beginning insert "where he considers it necessary for that purpose,".
The noble Baroness said: This group of amendments, to which my name is attached, takes forward the discussion that we had on the previous group about more effective enforcement of the provisions in the Bill. I hope that they will perhaps find more favour with the noble Lord, Lord Clement-Jones, and with the Government. They are very straightforward and are designed simply to assist the trading standards officers who may make an investigation.
Specifically, the power in Clause 14(1)(c) to take possession of books, documents, and so on, can, as the Bill is drafted at present, be exercised only where the item has been produced in accordance with the requirement mentioned at the beginning of the paragraph. Clearly that will not matter in circumstances where an officer has perhaps been invited, or at least allowed, on to the premises without a search warrant. Presumably in those circumstances the occupier is at least collaborating with the investigation, if not necessarily welcoming it.
However, we believe that there may be a potential problem with an officer who is on the premises by virtue of a search warrant or who could, indeed, be on premises which were not at that moment occupied and who may need power to investigate articles or perhaps, as was suggested in the discussion on the previous group of amendments, seize articles in the last resort without having first required their production, as the Bill currently states. If, for example, the premises were

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unoccupied, it would be difficult for those products to be voluntarily produced so that the officer could take possession of them.
As I said, these amendments are extremely straightforward. My noble friend Lord Faulkner and I tabled these amendments. We hope usefully to close a potential loophole. I am grateful to the noble Earl, Lord Erroll, for the support that he gave before I even spoke to these amendments. I hope that they will be welcomed equally by the noble Lord, Lord Clement-Jones, and, indeed, by the Government.
Lord Filkin: I am very grateful to my noble friends Lady Jay and Lord Faulkner for these amendments, which seem to us to be helpful and necessary. Therefore, the Government support them. In short, for the reasons given by my noble friend and without repeating what she said, we consider them to be necessary in exactly the circumstances that she instanced. Therefore, we very much wish to support them and to see them incorporated into the Bill.
The Earl of Erroll: The reason I like the amendment is that it separates the production from the retention. I have not read far enough forward, but I wonder whether Amendment No. 78, which I have not read properly, should contain provision for appeal. If one's documents have been removed, it may be difficult to continue one's business. Perhaps that could be looked at more closely. Otherwise, in general, I believe that separating the retention from the production provision is a good idea. I did not mean to be heavy-handed a bout trading standards officers, for whom I have great respect and about whom I have heard only good. I referred in a more general sense to enforcement. One occasionally hears stories about other agencies and one never knows. Perhaps I am being over-cautious. I would hate it to be thought that I have ever heard anything had about trading standards officers.
Lord Naseby: I do not rise to support the amendment but I shall not speak against it either. I rise simply to point out to the Committee that if the amendment were to find favour, it would strengthen the case for an appeal mechanism.
Lord Clement-Jones: I am not sure that I follow the logic of that. I shall ponder it when I read Hansard on Monday. The amendment clearly closes a valuable loophole. I am delighted that the noble Earl, Lord Erroll, took the opportunity to ensure that the trading standards officers would not take offence at anything he said in the course of the debate. I do not know whether he has interests in ensuring that he keeps good relations with them, but perhaps I may say that that was a neat piece of backtracking. Obviously, in so far as the amendment closes a loophole, I welcome it.
On Question, amendment agreed to.
Baroness Jay of Paddington Baroness Jay of Paddington moved Amendment No. 74:
Page 7, line 24. after second "it," insert "and"
On Question, amendment agreed to.
The Deputy Chairman of Committees (Viscount Simon): Before calling Amendment No. 75, I must inform the Committee that if that amendment is agreed to, I cannot call Amendments Nos. 76 and 77 standing in the names of the noble Lord, Lord Paltrier, the noble Earl, Lord Howe, and the noble Baroness, Lady Noakes.
Baroness Jay of Paddington Baroness Jay of Paddington moved Amendment No. 75:
Page 7, line 25, leave out from first "it" to end of line 26.
On Question, amendment agreed to.
Baroness Jay of Paddington Baroness Jay of Paddington moved Amendment No. 78:
Page 7, line 26, at end insert—
"(ca) to take possession of any book, document, data, record (in whatever form it is held) or product which is on the premises and retain it for as long as he considers necessary for that purpose:
On Question, amendment agreed to.
[Amendments Nos. 79 to 82 not moved.]
Baroness Jay of Paddington Baroness Jay of Paddington moved Amendment No. 83:
Page 8, line 16, leave out "(1)(c)" and insert "(l)(ca)"
On Question, amendment agreed to.
1.45 p.m.
Baroness Noakes Baroness Noakes moved Amendment No. 84:
Page 8, line 43, at end insert—
"(13) If a person who enters any premises by virtue of this section discloses to any person information obtained on the premises with regard to any trade secret, he is, unless the disclosure is made in the performance of his duty, guilty of an offence and liable on summary conviction to a fine not exceeding level 5 on the standard scale."
The noble Baroness said: In moving Amendment No. 84 I shall speak also to Amendments Nos. 85 and 86. This group of amendments has a theme of providing protection to those against whom the powers of entry, and in particular access to and retention of goods, are used. The amendments do not seek to deny the powers, but seek to provide some counterbalances where things go wrong.
I stress that these are not unusual protections but ordinary measures similar to those found in other legislation. They are designed to deal with what one hopes will be the rare event of the Clause 14 powers being used inappropriately. The powers are particularly important, given that the earlier amendments, relating in particular to reasonableness, seemed not to catch the eye of the noble Lord, Lord Clement-Jones.
Amendment No. 84 inserts a new subsection (13) to Clause 14. It is designed to ensure that those who enter premises using the Clause 14 powers do not abuse any information about trade secrets that they acquire. Subsection (13) makes it an offence to disclose that information otherwise than in the performance of the officer's duty. I have mentioned that 1 do not expect the subsection to be needed often, but it is a useful

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reminder to those using the extensive powers created by the Bill that they carry responsibilities to those being investigated or pursued.
I turn to Amendment No. 85, which seeks to introduce a new clause after Clause 15 to deal with the situation where goods have been retained by an authorised officer under the Clause 14 powers. As the Bill stands, without amendment, the officer can take possession of and retain books, documents and, importantly, products and can then keep them for as long as he considers necessary for the exercise of his functions under the Bill.
So, what happens if the officer arrives, enters premises, takes away goods but then does nothing? There is no specific remedy for that in the Bill. The amendment creates in subsection (1) the power for the owner of goods, or someone else with an interest in the goods, to apply for an order for their return. Under subsection (2) the application has to be to a magistrates' court or, in Scotland, to a sheriff. Committee Members will see that what is intended is a low-level and accessible court.
Subsection (3) restricts the remedy to cases where proceedings have not been brought and more than six months have elapsed since the goods were seized. That is a remedy which is modestly framed and does not result in every seizure being followed immediately by legal challenge. Finally, subsection (4) contains rights of appeal from the magistrates' or sheriff's decision.
I lay particular emphasis on the modesty of the provision. If a business has had its documents or records seized, that could disrupt the operational efficiency of the business. If saleable products have been taken—the noble Lord, Lord Filkin, said earlier that that is not likely but it is possible under the Act—the financial consequences could be significant. The first priority for people is normally to get the goods hack. I hope that the noble Lord, Lord Clement-Jones, and the Minister can see the force of that. I hope that they will not take the view that anybody even suspected of a breach of the tobacco advertising ban being introduced by the Bill should become a person without rights to his own goods for as long as the authorities decide. I know that many noble Lords on other Benches have scant sympathy for tobacco companies in particular and, indeed, big businesses generally. However, I remind noble Lords that the Bill is widely drawn. It can drag many smaller businesses within its net: those in printing; newspaper distribution, advertising; and specialist tobacconists, to name the more obvious.
Amendment No. 86, the last in this group of three amendments, deals with a more significant remedy for those who have been subjected to the powers of seizure and detention under Clause 14 but are innocent of the crimes created in the Bill. The new clause after Clause 15 would enable the owner of or other person with an interest in the seized goods to claim compensation from the enforcement authority.
Subsection (1)(b) would not allow compensation to be paid if the power to retain the goods had been exercised due to the owner's default or neglect. So,
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perhaps if the owner had in some way obstructed the officer's inquiries leading to the officer retaining the goods, the owner would not be entitled to a remedy under the new clause. The aim of the clause is to insert a low-cost remedy which is not over-burdened with costly legal action. Hence the suggestion of arbitration in subsection (2).
As with the two previous amendments, I hope that the noble Lord, Lord Clement-Jones, and the Minister can see the equity involved in the amendments and will he prepared to accept the principle of the amendments of modest remedies and protections for those potentially unfairly affected by the Bill. I beg to move.
Lord Skelmersdale: If any part of the Bill is objected to in the courts by virtue of an appeal on the subject of human rights, I believe that it will be this part. My noble friend Lady Noakes is right. Without provisions for compensation and appeal in Amendments Nos. 85 and 86, Clause 14, as currently drafted, amounts to a rather unreasonable and unjust measure. I cannot find any justification for it at all, especially in view of the general range and seriousness of offences under the Bill.
So far as concerns Amendment No. 84, I feel that my noble friend, at the very least, has gone rather over the top in terms of drafting. I suspect that the Minister will tell us that her last phrase referring to the penalty,
"a fine not exceeding level 5 on the standard scale",
actually belongs in Clause 16 rather than Clause 14. That clause deals with all the other fines and penalties under the Bill.
Like my noble friend, I suspect that, although the provision appears in the Food Safety Act 1990, it is unlikely to have any relevant application to this particular Bill. However, I would suggest rather gently that that is no good reason for leaving it out.
The Earl of Erroll: I should have thought that the new clause is eminently sensible and is logically a very good part of checks and balances. If all one's accounting records and such documents have been taken and retained, presumably one would eventually have problems with the VAT man. One could end up in the courts being locked up for other offences as well. So one must have some kind of appeal.
Lord Naseby: I wholeheartedly support my noble friend on the Front Bench. It seems to me that while perhaps 99 per cent of trading standards officers and others involved are entirely reliable, life being what it is, there will always be the odd person who is not as reliable. There may be instances—it may only be one case in 10 years, it does not matter—where either there should be compensation or an appeal. I cannot think that any government would want an Act on the statute book where those two provisions are denied to UK citizens. Therefore. I wholeheartedly support the amendment.
Lord Filkin: This is essentially about the proportionality and the likely level of risk that might

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come about under actions by trading standards officers in these circumstances. I shall seek to suggest that the concerns are somewhat over the top, given how one would expect things to operate.
Amendment No. 84 adds a new subsection to Clause 13 which creates a new criminal offence for trading standards officers or anyone accompanying them in connection with investigations under the Bill if they divulged any information constituting a trade secret.
I do not think that there is a need, however, to add to the weight of offences on the statute book by creating a new offence applicable to TSOs in the course of enforcing the provisions of this Bill.
An enforcement officer goes on to business premises and, for example, sees something which constitutes a tobacco advertisement or is connected with a possible offence under the Act. There will be no trade secret in a leaflet offering a free cigarette lighter in return for packet tops or a branded open and closed sign which a newsagent has omitted to remove. Even if the information is something more sensitive, such as a computer programme, the question arises: what is a trade secret in these circumstances?
The penal provision is not necessary and we have received no representations from business interests that it is required. As with Amendment No. 5 where the option of civil action is available, if enforcement officers or a person accompanying them did divulge a trade secret, they could be subject to civil action, which, as the noble Baroness will know, carries a lower burden of proof and the potential for substantial damages, if so found. So in practice the civil courts already provide an effective remedy.
Under Amendment No. 85, this new clause gives any person whose goods are detained by an enforcement officer under Section 14(1)(c) of the Act the right to apply to a court to have them returned. It repeats the wording of Section 33 of the Consumer Protection Act.
Clause 14(1)(c) of the Bill gives enforcement officers the power to take possession of any book, document, data, record or product and retain it as long as is considered necessary for the purpose.
Clause 14 follows closely the equivalent provisions in the draft regulations which were made in connection with the European Directive 98/43/EC. We consulted widely on these regulations and received no representations to the effect that a provision for appeal similar to this new clause may be necessary.
I do not believe that it is necessary to reproduce the provisions of Section 33 of the Consumer Protection Act here. In cases under that Act the powers are more wide-reaching, reflecting the gravity of the subject matter—for example, unsafe goods—and enforcement officers are likely to have to seize whole consignments of goods which they consider to be unsafe. Under this Bill, which is about tobacco promotion not unsafe goods, there is no need for such measures. Any taking of possessions is likely to involve at most the taking away of items of small value such as a sample copy of a
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magazine or a computer disk for evidential purposes and, in any case, the items may only be retained for as long as is necessary for such purposes.
Under Amendment No. 86, the new clause gives a right to compensation to anyone whose goods are detained in connection with the provisions of the Bill where there is no culpable behaviour found on his part. Again the new clause follows closely the wording of Section 34 of the Consumer Protection Act.
Clause 14(1)(c) of the Bill gives enforcement officers the power to take possession of any book, document, data, record or product and retain it for as long as they consider necessary for the purpose.
Clause 14 follows closely the equivalent provisions in the draft regulations which were made in connection with the European Directive 98/43/EC. Again we consulted widely on these regulations and received no representations to the effect that a provision for compensation similar to this new clause might be necessary.
I do not believe that it is necessary to reproduce the provisions of Section 34 of the Consumer Protection Act here. Again, in cases under that Act the powers are more wide-reaching, reflecting the gravity of the subject matter—for example, unsafe goods—and enforcement officers are likely to have to seize whole consignments of goods which they consider to be unsafe. Under the Bill, which is about tobacco promotion not unsafe goods, the Government believe that there is no need for such measures. Any taking of possessions is likely to involve at most the taking away of a sample copy of a magazine or a computer disk for evidential purposes and, in any case. the items may only be retained as long as is necessary for such purposes.
I very much hope—perhaps more in optimism than in expectation—that I have convinced noble Lords that there is no need for these amendments. In any event, one expects that ordinary common sense will apply. In the case cited by the noble Earl, Lord Erroll, of a company which believed that its data necessary for completing its VAT returns had been seized, one would expect that it would make immediate representation to the relevant local authority, which would be negligent in not providing at least copies of such documents, so that it could comply with its other statutory obligations in such circumstances.
For these reasons, while understanding the spirit of the amendments, the Government do not believe that they are necessary.
Lord Clement-Jones: The Minister has set out the Government's response very fairly. He put it very mildly as a matter of proportionality and risk. I would probably put it more robustly as sledgehammers and nuts. It is very seductive to look at one Act, whether it is the Food Standards Act or the Consumer Protection Act, and say, "Right, what we have to do is apply those safeguards in this particular Bill". But, that then fails to look at the subject matter of the Bill in question. We are talking far more about intellectual property here than about physical property.

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Of course, under the Consumer Protection Act one could be talking about seizure of quite a large quantity of goods. In the case of a container load of toys imported from abroad, which are unsafe or whatever, then of course one is talking about seizure and very heavy economic compensation if the wrong decisions were taken, and so on and so forth. The same applies under the Food Standards Act. But here we are talking about advertisements and promotions. We are probably not in the short term talking about displays, but we may be in the long term. We are talking about the more non-physical aspects of trading under the Bill. Introducing a series of matters relating to trade secrets, appeals and compensation drawn from other Acts does not add a great deal to the Bill.
The Conservative Benches are normally the first to reject unnecessary regulation in such circumstances, and I hope that they will be consistent in their behaviour in respect of such matters.
Baroness Noakes: I thank the noble Lord, Lord Clement-Jones, for that. I find it curious that he should stigmatise protection as regulation. Those of us on these Benches will always support the building in of protections, especially for the kind of businesses that would be affected by onerous legislation. That is the hallmark of these Benches.
Several points were made, rejecting these modest protections against things that might go wrong. The noble Lord, Lord Filkin, said that the Government had had no representations. It is not the job of the House of Lords simply to pass legislation on the basis of representations. The hallmark of your Lordships' House is that we will carefully consider the way in which legislation is likely to work in practice. Indeed, we have an obligation to think of the practical implications, regardless of whether any of us has received representations to a particular effect.
The point has also been made that we may he talking about things that are of small value compared to the things that might be given protection under the Consumer Protection Act 1987. Again, it is hard to resist protection for individual businesses on the basis that something might be of less value if attacked under the provisions of this Bill. rather than a pre-existing Act.
We do not know whether the powers in the Bill could be used to take things that are extremely valuable to the particular business or individual from whom the items are removed. In particular, a trading standards officer could take physical property, including hard disks, as the Minister said, which could be of significant value to the operation of the business.
In respect of Amendment No. 84, the Minister offered a civil action in place of the criminal penalty that the amendment proposed. Why should the person who has been wrongly subjected to the powers of the Act have to take a civil action? Why can he not look to the powers of the law to deal with the improper use of the powers created by the Act?
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I am unimpressed by any of the responses that have been given on the amendments. Today is not the day to seek the opinion of the House, and I shall reflect further. However, we may well want to return to those aspects of the Bill on Report. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 14, as amended, agreed to.
Clause 15 agreed to.
[Amendments Nos. 85 and 86 not moved.]
Clause 16 [Penalties]:
Lord Naseby Lord Naseby moved Amendment No. 87:
Page 9, line 19, leave out "six" and insert "three"
The noble Lord said: In the absence of my noble friend Lord Palmer—
Baroness O'Cathain: The noble Lord, Lord Palmer, sits on the Cross Benches.
Lord Naseby: The noble Lord may be a Cross-Bencher, but I have known him for the best part of 50 years, and I treat him as a friend. I hope that that is acceptable to the Committee.
As originally drafted, the Bill provided for imprisonment on a summary conviction for a term not exceeding three months, or a fine not exceeding level 5. That was increased in Committee in the other place when the Bill was first introduced, in the last Parliament, so as to make the maximum term of imprisonment on summary conviction six months—in other words, a doubling of the term. At the same time, a new provision was added for conviction on indictment to a term of imprisonment of up to two years or an unlimited fine or both.
The amendment would revert to the penalties originally contained in the Bill. The penalties as they now stand in the Bill seem to my noble friend and me to be excessive, given the nature of the offence and the possibility of inadvertent breaches, which are not likely among the manufacturers, but which may well occur in the retail trade, especially at the smaller end of the trade. I hope that the sponsor of the Bill will recognise that the enhancement of the penalties is rather excessive.
I do not need to make detailed comparisons, but I shall mention one. Under the Misuse of Drugs Act 1971, possession of a class C drug carries a maximum penalty on indictment of two years' imprisonment and an unlimited fine. That provision may perhaps be relaxed in respect of cannabis, with prosecutions not being pursued on mere possession of the drug in small quantities. What then is the justification for regarding a breach of an advertising ban on tobacco products, which are not illegal, as more serious than the possession of an illegal drug? I beg to move.
Lord Filkin: I commend the noble Lord, Lord Naseby, for his industry on the Bill. We certainly cannot claim that it is untested at this stage.

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The noble Lord rightly draws attention to the fact that the earlier government Bill specified just three months—in other words, the case would be triable summarily. If memory serves, it was as a result of Opposition amendments in the House of Commons that it was increased to six months—in other words, an indictable offence. There is a certain ping-pong going on, which could be played for some time. I hope not.
Lord Skelmersdale: Perhaps I may briefly interrupt the Minister. Earlier today I said that it grieved me to have to argue with my noble friend on the Front Bench. I do not see any good reason why my noble friend Lord Naseby should disapprove of actions taken by the Opposition in another place.
Lord Filkin: I thank the noble Lord, Lord Skelmersdale. Perhaps I may move on to the substance of my response.
Clause 16 in its present form provides a wide range of penalties which the Government believe will enable courts to ensure that the punishment fits the crime. Indeed, there could well be a wide range of circumstances involved under the terms of the Bill. They would range from one extreme, the corner shop which had broken the law, right through to a multinational corporation which had sought vigorously and persistently to promote tobacco products in the United Kingdom, despite the provisions of this legislation. Because of the range of circumstances, I urge the Committee to reject the amendments which, if adopted, would reduce the maximum penalties available and so would not provide a sufficient deterrent for persistent offenders with deep pockets.
The option of conviction on indictment opens up the possibility of unlimited fines which will deter the serious corporate offender. At the other end of the scale, first offences committed by small retailers would attract relatively low fines in a magistrates' court, being enough to remind everyone that the law exists and will be enforced. Therefore the Bill in its current form allows for both circumstances to be dealt with appropriately.
As was said earlier, trading standards officers see their role as twofold. They are there to educate employers and prevent the law being broken first and foremost. They are also there to enforce the law. They will judge each case on the basis of its individual merits, using similar examples where appropriate.
The Government do not believe that these are excessive penalties. Clause 16(2) currently provides for up to two years' imprisonment on indictment. It we are going to make these offences triable on indictment, we could not provide for less. There are literally hundreds of other offences with similar tariffs. The Food Safety Act 1990 has such a penalty in relation to the offence of rendering food injurious to health with intent to sell it for human consumption or selling food for human consumption which fails to comply with food safety requirements. The Betting and Gaming Duties Act 1981 provides for imprisonment for up to two years for the offence of providing a gaming machine in contravention of restrictions set out in the Act. Other Acts make similar provisions.
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If enacted, the Bill would not imprison innocent shopkeepers for years or close down their businesses. Courts will take into account all the circumstances when sentencing, but they must have appropriate sentences for offences at both ends of the scale; that is, both for minor first offences and for serious, large corporate offenders. For those reasons, we suggest that the amendment would be inappropriate.
Lord Clement-Jones: I must confess that I am not entirely clear about the background to the introduction of the indictable offence in Clause 16, or who instigated it. However, I suspect that the motives of those introducing it were to provide greater protection. If an offence is to be triable "either way", as the criminal lawyers refer to it, then the defendant is granted the benefit on indictment of having a Crown Court hearing and a circuit judge to try the offence. I suspect that is why paragraph (b) has been put in.
You cannot have an indictable offence unless you have those forms of offences. You cannot have it both ways: either there is the protection of the Crown Court and the full mode of trial on indictment or there is the possibility of a trial in the magistrates' court. I am sure that most noble Lords would agree that offences may or will be committed under the terms of the Bill which are so serious that they need to be tried on indictment, whether that is the choice of the defendant or of the prosecution, and that in certain circumstances the fine should be more than £5,000 or the prison sentence longer than six months. Here I refer to pretty major cases, those of corporate abuse on a large scale. But one needs the power to be able to impose a fine of more than £5,000 because that sum would be rather like receiving a parking ticket for a multinational corporation. One has to consider far larger fines for the legislation to bite and to ensure that the behaviour in question is not repeated.
I do not think that the penalties are disproportionate, but rather that they are fair. It is clear that they were considered quite closely in the other place during deliberations on the previous government Bill. I believe that those deliberations resulted in the right conclusion.
Lord Naseby: I have listened with care to the Minister and to the proposer of the Bill. Although I am not a lawyer, the element I find strange is why the provision should be that much stronger than anything in the consumer protection Acts where the problems encountered will be at least as great, or even greater, in particular when dealing with the dimension of safety. It is the differentiation that appears in this Bill from the consumer protection Acts that I find rather difficult to work out. Why should the two be so different? At this stage I shall withdraw the amendment and reserve the right to return to the matter.
Amendment, by leave, withdrawn.
[Amendment No. 88 not moved.]
2.15 p.m.
Lord Campbell of Alloway Lord Campbell of Alloway moved Amendment No. 88A:
Page 9, line 22, at end insert—
"(3) In the absence of evidence which establishes beyond reasonable doubt that tobacco advertising as prohibited by section 2 or 3 of this Act or by regulations made under this Act would increase overall consumption or induce young persons to smoke, no penalty may be imposed under or by virtue of any provision of this Act if, at the conclusion of the hearing on an alleged offence, notice of intention is given—
(a) to seek a judicial declaration of non-conformity of the Act with the provisions of articles 8 or 10 of the European Convention on Human Rights; and
(b) to apply to the European Court of Justice for a declaration that, contrary to the provisions of the European Union Treaty, the Act distorts competition within the single market and inhibits the freedom to provide goods and services.
(4) Steps to institute proceedings under subsection (3) above must be taken within 28 days from the conclusion of the hearing on the alleged offence.
(5) A penalty may only be imposed after it has been determined judicially that the Act is in conformity with the European Convention on Human Rights or the European Union Treaty."
The noble Lord said: I move this amendment at the request of my noble friend Lord Brougham and Vaux. I declare an interest having drafted the amendment—at no one's request—the first time around on the Government's Bill when I was not a member of the Joint Committee on Human Rights. I thank my noble friend Lord Brougham and Vaux for having tabled the amendment.
I have already declared my other interests. I speak only for myself but, as the issue has been discussed and is relevant, I should say that membership of the club in no way increases the consumption of tobacco. When we meet, wives and children and so on are not there. They are private affairs attended by members of the club and of the tobacco trade. They are certainly not exercises in commercial sponsorship of any kind. I have been a member for years and I change the brand of tobacco that I smoke either for convenience or through choice. My membership of the club has absolutely nothing to do with my personal, private and rather disgusting habit.
My speech will go wide of the purpose of any other amendment. It seeks to deal with the reality of the ultimate resolution, which will be inevitably a matter for the courts. They will have to resolve a crucial and complex—
Lord Peston: Perhaps I may interrupt the noble Lord for clarification. Is he addressing Amendment No. 88A?
Lord Campbell of Alloway: Yes.
Lord Peston: I am a bit lost as to what it has to do with what the noble Lord has been talking about—membership of clubs and so on. Have I got the wrong copy of the amendment or what?
Lord Campbell of Alloway: I do not know what the noble Lord has got, but I am grateful for his intervention, as I always am. Perhaps I may continue.
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The keystone of the structure of the amendment is the final subsection which prohibits, on a conviction which may be set aside on appeal, the imposition of a penalty until the rectitude of that conviction has been determined on appeal by either the European Court of Justice or the ECHR. If it will assist the noble Lord, Lord Peston, the clause is concerned with penalties.
There is no doubt that those concerned with the manufacture and sale of tobacco would wish to maintain that the proposed regime, if enacted, would not be prescribed by law, as explained in paragraph 14 of the report of the Joint Committee. There is no doubt that this is a restrictive regime on advertising, promotion and sponsorship. It is, prima facie in law, in restraint of trade and unlawful unless justified by those who propose it. It is a burden—at this stage it is not interesting to say whether or not it is a heavy burden—that they have to discharge.
It is inevitable that a test case will be mounted in our courts, which will apply EC law, which is between member states and is supranational. Having found the facts, our courts will refer the matter to the European Court of Justice at Luxembourg for its opinion. It is equally plain from the report of the Joint Committee that that would be the position not only with Luxembourg but with the Court of Human Rights at Strasbourg. It is well known that the court at Luxembourg has already struck down certain articles of Council Directive 98 as ultra wires.
This is not the time to enter into any detailed argument and there is little more that I have to say. However, I ought to place certain matters on record as this is a probing amendment and will obviously have to be reconsidered in the light of such reactions as I hope I may evoke.
In the context Article 10 of the ECHR, the problem is one of justifying the regime as proportionate. A similar problem arises with Articles 28 and 49 of the EU law. The matter is dealt with in paragraphs 12 to 25 of the report. Perhaps I may leave it like that, so that it is on record, and perhaps we can return to the matter. It takes too long to deal with in any other way.
At paragraph 23 the point is taken, relevant to Community law and ECHR law, that there should be clear evidence that nothing short of a total ban on tobacco advertising and sponsorship could be expected to achieve its legitimate object—that is, the public health safeguard and whether the effect of the ban on advertising would be to decrease overall consumption. That is dealt with at paragraph 33.
It will be for the courts to evaluate the evidence as to whether those who support the regime can establish beyond all reasonable doubt—it is a criminal case—that without this regime overall consumption would increase, the young would be induced to smoke, and so forth. The matter cannot be decided in this House; it cannot be decided in our Parliament. The only way in which this legislation can be dealt with is by the courts. First, they have the difficult task of finding the facts on the evidence—of course, there is a total conflict of fact. Then, they must decide whether, within the meaning of

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what is "proportionate" in law, a total ban can be justified. If it cannot, the action will be unlawful. I beg to move.
Baroness Finlay of Llandaff: I would not dare to comment on the latter part of the amendment, but perhaps I may comment on the first paragraph. The amendment states that it must be established beyond reasonable doubt that tobacco advertising would increase overall consumption or induce young persons to smoke. That implies that a lawyer could argue that you were excluding all the data that affected older people and all the data on passive smoking. Removing those numbers from the data collected in evidence, leaves numbers potentially small enough to make it impossible to prove scientifically (statistically) that "p<0.05"—in other words, in terms of the data, that this was not a probability; it was not a 1:20 instance due to chance. That is the nature of the scientific statistics, whereas the figure known as the 95 per cent confidence interval is used. I have a real concern that restricting the allowable data to that extent and honing the issue down so enormously would make a mockery of the use of scientific data anywhere.
The word "consumption" is also potentially misleading, because there is no definition of it. I foresee endless arguments over whether it related to consumption of different numbers of cigarettes, of different strengths of tobacco or of particular carcinogens or agents in tobacco. Proving that in relation to passive smoking would be particularly difficult.
The other problem is that the data prior to the introduction of the Bill were not collected with a view to being able to collect them afterwards. Scientifically, prospective data are much more powerful than retrospective data.
I have a genuine concern that the amendment could put all of scientific data on trial.
Lord Campbell of Alloway: If it is convenient to the Committee, I should like to reply to the noble Baroness's two points quickly. I take her first point. I had been worried about the drafting too. The amendment must be redrafted.
The noble Baroness's second point was about endless arguments. There will be a vast case—maybe two cases—but once the basis has been decided, as with the restrictive practices legislation winch produced three key cases, there will be no more. There will be endless argument, but the issue must be resolved. It will never be resolved below the level of the Appellate Committee of this place. I accept that. However, once the principle has been established, the issue will narrow down to a matter of the facts in each case.
Lord Peston: I agree with the noble Baroness, Lady Finlay, but I think that the matter is much more serious. I am genuinely surprised that my good friends the noble Lords, Lord Brougham and Vaux and Lord
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Campbell of Alloway, have associated themselves with an amendment that is totally destructive of the basis of the Bill. The amendment should not be before the Committee. We are talking about a noxious product that does massive damage to people. That is the basis on which we are dealing with the Bill. We are not going over the scientific evidence. The suggestion behind the amendment is that those matters are still in doubt, but they are not. We are not legislating on the basis that this is still an open question. I do not remember exactly when the original research on the dangers of smoking was conducted, but it was 30 or 40 years ago.
Lord Campbell of Alloway: The noble Lord says that it is not an open question, but I say that most assuredly it is. This is the dimension of the dispute on fact. We have to face up to it.
Lord Skelmersdale: My noble friend and the noble Lord, Lord Peston, seem to be at cross purposes. We all know about the effects of smoking. Nobody in the Committee disagrees with that. However, we do not know what the effects of the Bill will be. That is why I put my name to Amendment No. 90. We would be far better off waiting until the Bill has been in force for six years, 10 years or whatever, and then deciding whether it should remain on the statute book. That seems the sensible way to proceed.
Lord Peston: I should like to finish my remarks. I thought that we were debating Amendment No. 88A as a separate amendment, not as part of a group. That is the amendment that I am objecting to extremely strongly. We shall come on to the points raised by the noble Lord, Lord Skelmersdale—if we get a move on and I do not take too long—in a few moments.
The amendment is destructive of the Bill and I repeat that I am genuinely surprised that it is before us. I hope that it is withdrawn and we do not waste any more time on it.
Let me add two points now rather than later. First, the noble Lord, Lord Campbell of Alloway, implied that noble Lords could not legislate in this field: that we had to wait for the European Courts and lawyers to decide matters that I thought—we are still a sovereign Parliament—we could decide ourselves.
Secondly, my experience of almost all legislation and everything else is that we do not know for certain what will happen. To make a nasty point, when we privatised the railway industry we did not know for certain what was going to happen. Those of us who opposed the legislation thought that bad things might happen. But the Government did not automatically introduce a six-year clause, saying that they would nationalise the railways again if the legislation did not work out. We legislate in this Chamber on the assumption that we are doing the right thing and with confidence—it may not be 100 per cent—that it will work out. We do not need to add specific six-year or three-year periods, with appeals to all kinds of other courts, in order to legislate. I hope that we shall go

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ahead with the Bill without the additional provisos. Having said that, it enables me not to speak when the noble Lord moves his amendment.
2.30 p.m.
Lord Skelmersdale: I hope that the noble Lord will listen because I shall respond to that amendment and not now.
Lord Hunt of Kings Heath: Perhaps I may dare to say that my noble friend was a little unfair to the noble Lord, Lord Campbell. My assumption is that the noble Lord raises the amendment in the light of the discussions of the Joint Committee on Human Rights of which he is a member. My honourable friend Ms Yvette Cooper, the Minister for Public Health, wrote a letter responding to the points raised by the committee, a copy of which has been placed in the Library. I have no doubt that that might inform our debate if we return to the issue on Report.
The issue is whether there is clear enough evidence to support the contention that only a comprehensive advertising ban would be sufficient to bring about the desired reduction in tobacco consumption. I suspect that that takes us on to the next amendment. I have no doubt that while there may be disagreements about that from the Government's point of view, in the letter that Yvette Cooper sent to the Joint Committee on Human Rights the Government state firmly their own belief that there is clear evidence and that, therefore, it passes the test posed by the Joint Committee.
I fully accept that the noble Lord, Lord Campbell, raises the matter as a way of getting that debate on to the Floor of the House. Perhaps I may suggest that if we return to the issue on Report we have the benefit of the response on that matter from the Department of Health to the Joint Committee.
Lord Clement-Jones: That is a constructive way forward. The wonderful thing about having the Minister speak before me is that my speech then looks extreme compared with his moderation.
I resent the attempt to introduce the notion of fundamental human rights into the issue of tobacco advertising. The banning of tobacco advertising is in no shape or form a breach of fundamental human rights. If we believe that we have evidence, it is perfectly respectable and responsible to pass the Bill in its current form without caveats in the form of sunset clauses, and so on. I have no doubt that we shall be talking about that.
The noble Lord, Lord Peston, made a splendid point about privatising the railways and why we should not add sunset clauses to such legislation. One can cite dangerous dogs legislation. What evidence was there that banning dangerous dogs was going to be useful? I think that probably the evidence is against that now. Let us discuss that in another debate. It will be helpful if we have all read the letter in the Library, as the Minister suggests.
Lord Campbell of Alloway: Having got on to dangerous dogs. one has really no option but to
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withdraw the amendment at once. I am grateful to the Government Front Bench for having realised the importance of what I was trying to do, which is always helpful because it is so rare that anybody in this House—and certainly not the noble Lord, Lord Peston—ever understands what I want to do. But at least I am grateful for small mercies. With a "goodbye" to dangerous dogs, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 16 agreed to.
Clauses 17 and 18 agreed to.
Clause 19 [Transitional provisions: sponsorship]:
On Question. Whether Clause 19 shall stand part of the Bill?
Baroness Noakes: I have given notice, together with my noble friends Lady Anelay of St Johns and Lord Luke, that I wish to oppose Clause 19. This is in order to explore the Government's position regarding the transitional provisions on sponsorship, as they will affect sports such as darts.
Clause 19 allows the Secretary of State to make regulations to specify when the ban on sponsorship in Clause 10 should take effect. We know the latest date on which it could take effect is 1st October 2006 and we also know that the Government intend to give preferential treatment to Formula 1 and to snooker. They will be allowed to escape the effects of the Bill until 2006: other sports will not.
I have nothing whatsoever against either Formula 1 or snooker but I object to the Government treating other sports unfairly. It is perverse to say that these two sports are global and therefore can have until 2006 to sort out their sponsorship deals whereas other sports like darts have to face a cliff-edge drop in sponsorship by 2003, even though it has players from across the globe and has global appeal.
The Government have said in the past that they would set up a taskforce to help sports adjust their sponsorship deals, but to suggest that sports can find replacement sponsors easily is a misunderstanding of the commercial marketplace. The current shortfall is estimated to be £10 million, with an additional 10 million for marketing sporting events.
The secretary-general of the British Darts Organisation, Ollie Croft, wrote to my honourable friend in another place, John Greenaway, to make this point about the taskforce:
"The taskforce was simply a gesture to give the impression that we were being given assistance. In truth. there probably is not a business out there which can replace the funding we receive from Imperial Tobacco. Our main concern is that we have only until 2003 to save our sport. What would help enormously is an extension to 2006, like Formula One and snooker. We can fulfil the Government's criterion of being a global sport. The number of countries which are members of the World Darts Federation or associate international members of the British Darts Organisation shows that this claim can be justified".
When my noble friend Lady Anelay raised these points in the Second Reading debate last March the Minister stated that he did not wish to prejudge the

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consultation process during which the British Darts Organisation would be able to make representations. Will the Minister give the House details about the progress made by that consultation process? Do the Government recognise that darts is indeed a global sport?
The Minister will no doubt be aware that the England team recently won all the gold medals in the Darts World Cup in Kuala Lumpur, and in the 2002 Embassy World Professional Darts Championship 13 of the 54 playing nations were represented. Indeed it was won by an Australian, Tony David, who is a non-smoker. The Embassy is a high-profile TV event enjoyed by millions of viewers, and flies the flag for the UK. I am told by the British Darts Organisation that just last week BBC TV Sport signed a new three-year contract to continue screening the world championships. Surely it would be in nobody's interests for this event to be dropped because the British Darts Organisation would be forbidden to obtain sponsorship from the tobacco industry.
Is the noble Lord, Lord Clement-Jones, aware of the social benefits of darts? When youngsters play darts, they learn discipline and basic mental arithmetic. It is not expensive as a hobby and it has no language or cultural barriers. It is indeed a sport for all.
I hope that the Minister will tell the House today that the Government have reconsidered their position and that darts will be treated in the same way as snooker so that its deadline for tobacco sponsorship is extended to 2006.
Lord Faulkner of Worcester: I think that the noble Baroness rather shot herself in the foot with a dart when she said that darts is a sport for all, particularly enjoyed by young people. That is precisely why the continued sponsorship of darts by the tobacco industry is so undesirable. I would be appalled if the Minister were to tell us that, for some reason, he has found an excuse for extending the ban applying to t he British Darts Organisation beyond 2003. My own preference would be for a 2003 ban to apply to everyone, including global events. I understand, however, why that is not happening.
It strikes me as utterly perverse to regard darts as an exception, particularly when, as the noble Baroness said, it is watched and enjoyed by millions of young people. My understanding is that darts as a sport has done relatively little to find an alternative sponsor to tobacco, unlike all the other sports that have received tobacco sponsorship such as Rugby League, cricket and Rugby Union. I think that the problems facing darts are very much of its own making. As I said, I hope that the Minister will resist the suggestion.
Lord Peston: I, too, am indebted to the noble Baroness, Lady Noakes, for raising the issue as I wish again to support what my noble friend Lord Faulkner has said. The logic of the noble Baroness's comments is that everyone should be treated equally. As your Lordships know, I chair the Economic Affairs Committee, which is devoting its life to globalisation, but it had not occurred to me that racing cars and
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snooker are central to global issues. My view is therefore almost exactly the same as that of my noble friend Lord Faulkner; we differ only in that I think it disgraceful that motor racing and snooker have been given any leeway at all. My noble friend says that he understands why they have been allowed that leeway, but I cannot understand why such alleged sports feel that it is right to take money from the tobacco companies. My own view is that, if they cannot survive without tobacco sponsorship, they should not be engaged in the activity at all.
I feel terribly sorry about the darts people. I was always hopeless at the game, but loved playing it and had great pleasure when my dart occasionally hit the board. None the less, the issue has perhaps clarified the Bill's generosity and the fact that it is not taking the draconian approach that people like me would prefer. I would love to hear my noble friend the Minister say that the Government have changed their mind and have no intention of giving special protection to snooker, let alone motor racing.
Lord Naseby: The noble Lord. Lord Peston, says that he has no idea why Formula 1 is exempt. We all know the reason: the Labour Party took £1 million-plus from that particular industry. The sum was paid back, but it caused great embarrassment on the Government Benches. I feel sorry for the Minister, who will have to reply on this point. All that the noble Lord, Lord Peston, has done is to re-emphasise that embarrassment.
I take slight issue with my noble friend Lady Noakes as I have never regarded darts as a young person's sport. I suspect that it is played in every pub in the country, and that, on the whole, darts players are not particularly young. Certainly in my former constituency, the more skilful darts players tended to be rather elderly, and darn good at it they were, too. I therefore suspect that its age profile is rather older than that of other sports.
The Bill will ban sponsorship. We may or may not agree with such a ban, but that is the Bill's purpose. My noble friend Lady Noakes is simply saying that all sports should be treated equally. Although the treatment itself and the commencement date are matters for debate, I see absolutely no reason not to treat every sport identically—other than the Government's embarrassment at having accepted £1 million from the motor racing industry, and then suddenly finding snooker on the side. It is all a bit of spin.
2.45 p.m.
The Earl of Erroll: We have massive amounts of anti-discrimination legislation, equality legislation etcetera to do with human beings. I cannot see why those concepts do not apply also to sports, companies and everything else. On the ground of equity I believe that they should all be treated the same.
Lord McNally: I declare an interest in that darts is the only game or sport that I have ever been remotely good at. It is for that reason that I intervene. It is

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probably the only time in this Bill that I shall agree with the noble Lord, Lord Naseby, in that he told the truth, the whole truth and nothing but the truth as regards why there is this shameful anomaly in the Bill.
Noble Lords: Oh!
Lord McNally: I shall not cry. "Author, author" at this point.
Lord Naseby: The noble Lord will know that I spent 25 years in the advertising industry. He will also know that I was party to the quote that he offered. I hope he is not suggesting that anything I have said at any stage in this Bill has been anything but the truth as I believe it to be.
Lord McNally: No, of course not—full and fair.
It is interesting to note that the Sports Council and, indeed, the department for sport refuse to recognise darts as a sport but still class it as a leisure pastime. That is an absurd slight to the sport of darts, as anyone who has ever played it will recognise. I believe that the noble Baroness, Lady Noakes, approaches the matter from the wrong angle, but that the noble Lord, Lord Faulkner, was correct. What should emerge is a parity of treatment which removes the privilege that has been accorded to motor racing and snooker. In the meantime, darts, along with other sports, should with a sense of urgency face up to the idea that the tobacco sponsorship option is not available. Like the noble Lord, Lord Naseby, people make money in this business through creative thinking. My creative thinking consists of asking whether those involved in darts have ever thought of approaching Slim-Fast as a possible sponsor?
Lord Hunt of Kings Heath: I pay tribute to the eloquence of the noble Baroness, Lady Noakes, on behalf of the sport of darts. I did not take her to be a darts player but I think she must have been to be able to put over that point with such passion.
Like the noble Lord, Lord McNally, I was a darts player in my youth. I spent many happy hours in my early twenties playing darts with my right honourable friend the Chief Secretary to the Treasury. That was a clever ruse on my part to ensure that 30 years later we might get extra money out of the Treasury for the Department of Health. I hope that that ruse will continue to pay off in the years ahead.
I was disappointed with the unusual and unworthy cynicism of some Members of the Committee in relation to the reason for the Government's policy on this matter. The Government have been coherent and straight on the matter. We said that sponsorship of events with a view to promoting tobacco products must stop as it is a powerful way to promote smoking. We also said that we do not want that ban to harm sports. For some time we have made clear that, subject to consultation, we expect most sponsorship of sporting events to end by July 2003, but that global sporting events which receive considerable income
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from tobacco interests should be given until October 2006 to do the same, provided, first, that they do not sign new contracts with tobacco companies and, secondly, that they phase out the current sponsorship that they receive. As the noble Baroness suggested, Clause 19 gives Ministers the regulation-making powers to deliver that policy.
It is some years since the Government announced their plans to bring tobacco sponsorship to an end. Frankly, sports concerns have been given ample time to think about other arrangements. The Department for Culture, Media and Sport set up a task force to help sports likely to be affected by a ban on tobacco sponsorship. I checked with the department this morning that it will continue to be available to provide advice to the relevant darts associations on finding substitute sponsorship. I am sure that that is the most appropriate way forward for darts sports as a whole.
As to which sports are likely to he included under the global classification, if the Bill is enacted there will be a consultation period before any regulations are made under Clause 19. They will set out criteria that will need to be satisfied by sports wishing to retain sponsorship for the longer transitional period. I cannot prejudge the outcome of that consultation and indicate which sports might qualify.
Subject to any persuasive arguments made in consultation, the intention remains to implement broadly the longstanding policy of distinguishing between global and non-global. Key is that, at the end of the day, all tobacco sponsorship will be banned. It is just a question of a transitional period. On that basis, Clause 19 is appropriate. In relation to darts sports, I recommend that they continue a dialogue with the department.
Lord Clement-Jones: The noble Baroness hit a double-top with this interesting debate, if not a bull's-eye. If the Minister is saying that the consequence of his playing darts with the Chief Secretary to the Treasury is more health funding, the Liberal Democrats will sponsor the noble Lord's future games.
It is clear from the remarks of my noble friend Lord McNally that we deeply resent the existing exceptions to sponsorship banning by 2003. We see no justification for the exceptions for snooker and Formula 1. Max Moseley, the head of FIA, was quoted as saying that Formula I would be able to find the money—so it is incomprehensible that exception was given.
Clause 19 is potentially discriminatory against the sport of darts because I worded the Bill in exactly the way that the Government had it, because I knew that the Government would not support the Bill unless it was phrased that way. That is entirely the motive and justification for the Bill's current wording. If it is not satisfactory, would that the Government, at this late stage, change their mind. I suspect that is not possible and that the noble sport of darts will be discriminated against. When I watch television in the evening and see the viewing figures, it is an eminently sponsorable

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sport. I dare say that some of the crocodile tears will quickly dry and that alternative sponsors will be found.
Lord Naseby: Before the noble Lord sits down, may I be clear that he—as the Bill's promoter—would like to see all sponsorship ending in 2003. So if an amendment to that effect were tabled on Report, obviously the noble Lord would support it. Is that right?
Lord Clement-Jones: The noble Lord has been around long enough to know that any Bill that passes through this House must seek the support of the other place. That is the reality of the matter.
Baroness Noakes: I want to put on record that do play darts and learnt it at a very young age. I found that useful in my youth because it was a game at which I could beat men.
More seriously, I seek clarification from the Minister. He said that he would undertake consultations and that he believed that, subject to those consultations, there would be a long transitional period for global sports. I did not hear him say whether he regarded darts as a global sport; I should be grateful for clarification.
Lord Hunt of Kings Heath: No, I do not think that I am in any position to say whether darts is a global sport. That decision would be determined by the outcome of the consultations on the regulations.
Baroness Noakes: On the same basis, would the Minister say whether Formula 1 and snooker are likely to be treated as global sports?
Lord Hunt of Kings Heath: For the very reason that I gave in my original answer, no, I cannot.
Lord Peston: The important theoretical point is whether we will at least be told what the word "global" means in this context. Another sport might say that it was "global" or I might be able to argue that, but I do not remotely see how snooker or motor racing could be defined as "global" within any reasonable meaning of the word. Is there a document that I have not read about its meaning, or will there be such a document? This is a serious matter and I am totally with the noble Lord, Lord Clement-Jones. I still do not regard it as impossible at this stage to deal with the matter, apart from the noble Lord's correct technical point that the Bill has got to get through the House of Commons.
Lord Hunt of Kings Heath: Those definitions will have to be developed as part of any future consultation process. The draft regulations that were developed in relation to the original 1998 EC directive state:
"'exceptional global event' means an event or activity that takes place in at least two continents and three countries and which is the subject of a sponsorship contract for which the financial consideration is in excess of two and a half million pounds per annum".
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I do not say that that definition will continue but it gives a broad outline of the original thinking.
Lord Naseby: Could the Minister confirm that those words were supplied by the United Kingdom?
Lord Hunt of Kings Heath: They may well have been supplied by the United Kingdom but that is riot particularly apposite to this debate. As I said to my noble friend Lord Peston, those matters will have to be revisited—on the assumption that the Bill is enacted—when regulations are consulted on in relation to Clause 19.
Clause 19 agreed to.
Baroness Noakes Baroness Noakes moved Amendment No. 89:
After Clause 19, insert the following new clause—
"COMMISSION OF BODY TO STUDY THE EFFECTS OF ACT
(1) The Secretary of State shall commission a reputable and appropriate qualified body to carry out a rolling study of the effects of this Act on—

(a) the prevalence of smoking in the United Kingdom population, with particular reference to the uptake of smoking by persons between the ages of 16 and 19 and under the age of 16; and

(b) the effect of this Act on market shares of different participants in the tobacco industry.

(2) Following the third anniversary of this Act coming into force, and annually thereafter, the Secretary of State shall arrange for an annual report of the findings of the study commissioned in accordance with subsection (1) above to be laid before Parliament."
The noble Baroness said: In moving this amendment, I shall speak also to Amendment No. 90.
Amendment No. 89 would require the Secretary of State to commission a rolling study of the effects of the legislation on the prevalence of smoking in the UK, with particular reference to the uptake of smoking among 16 to 19 year-olds and the market share of different tobacco industry participants. The intention is that the study would report after three years and annually thereafter.
Amendment No. 90 would introduce a sunset clause that would take effect after six years, and its continuation would require an order that was approved by both Houses. The Secretary of State may make that order if he is satisfied that the legislation has led to a reduction in the prevalence of smoking, with particular reference to the uptake of smoking among 16 to 19 year-olds. He would of course have available to him, if Amendment No. 89 is agreed to, three reports from the rolling study before making that order.
The amendments have their roots in the interesting Second Reading debate on this Bill and, last year, on its predecessor, and in our first two Committee days. The issue is the evidential basis for banning tobacco advertisements, not for the harmful effects of smoking. We should also consider whether a ban will lead to a drop in consumption, particularly among young people, who are believed by many to be the target of tobacco advertisements in this country.
Those who support this Bill do so because they believe that banning tobacco advertising will lead to a reduction in tobacco consumption and that that in turn will lead to fewer deaths from tobacco-related illnesses. But do they have conclusive evidence? In the red corner we have the report of Mr Clive Smee, a highly respected economist in the Department of Health. It concluded that, on balance, banning tobacco advertising led to a fall in smoking.
In the other corner, we have the later report of KPMG. I should say that, as a partner in KPMG when the report was produced, I probably had a financial interest in it. However, I had nothing whatever to do with the report and, indeed, had not heard of it until I came to your Lordships' House. The report concluded that there is overwhelming evidence to support the proposition that advertising bans on tobacco products do not reduce tobacco consumption.
Both reports looked at the evidence available from many studies abroad and came to different conclusions. I shall not repeat the detailed arguments here today. My main point is that neither corner has landed a knock-out blow. The evidence is not clear beyond peradventure.
A particular concern of the supporters of the Bill is the effect of advertising on the young. I, for one, should have no hesitation in banning tobacco advertising if it were shown that the uptake of smoking among teenagers in this country were related to tobacco advertising. During our previous Committee day, the noble Baroness, Lady Jay, informed the Committee about brand-recognition impact on young children. She mentioned a character called "Joe Camel" and other marketing campaigns in the US. They were very interesting but they did not constitute evidence about the impact of advertising on the uptake of smoking among the young or, indeed, about the impact on children in this country.
The evidence that we have from the Office of Population Censuses and Surveys indicates that social factors predominate in the characteristics of children taking up smoking. The price and availability of tobacco are also likely to be important. The Government's own actions in imposing very high levels of tobacco duty have incentivised illegal smuggling and distribution. That alone may well have increased the likelihood of children having access to cigarettes and taking up smoking. I am not arguing that tobacco advertising cannot affect smoking prevalence or whether or not the young take up smoking. My point is that the evidence is far from conclusive that tobacco advertising does so as a matter of fact.
Some people say that tobacco companies spend their money rationally and would not advertise their products if they did not believe that they would thereby recruit new smokers and increase tobacco consumption. Tobacco companies say that in the mature market in which they operate, in the UK in particular, they advertise in order to promote their brands against the competition and thereby gain
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market share. I was grateful to the noble Lord, Lord Filkin, during our second Committee day for telling us about the example of a Benson & Hedges bistro in Kuala Lumpur. That example demonstrated nicely that such marketing action was taken because, in the words of the noble Lord, Lord Filkin,
"Benson & Hedges was concerned about a relatively weak market share, which was declining"".—[Official Report, 7/12/01; col. 1080.];
that is, the actions were designed to grow market share rather than recruit new smokers.
Whatever the truth about the effect of advertising, we should be able to deduce the impact of a tobacco advertising ban by monitoring what happens when a ban is introduced. That is what the rolling studies proposed in Amendment No. 89 seek to do. The noble Lord, Lord Clement-Jones, said in the context of a sunset clause in our Second Reading debate on 2nd November last year,
"the burden of proof lies squarely on the Bill's opponents, in view of the achievable public health benefits".—[Official Report, 2/11/01; col. 1710.]
I hope that the noble Lord does not deem seeking the truth on the effects of tobacco advertising as opposition because it is not intended as that.
Amendments Nos. 89 and 90 do not oppose the ban proposed in the Bill. They reflect that there is doubt about the effect of a tobacco advertising ban. I hope that Members of the Committee will agree that the quality of decision-making in this area would be improved in the long term if greater light were shed on the effect of tobacco advertising, in particular on young people.
I do not believe that for the purposes of these amendments it is necessary to prove that banning tobacco advertising will have no effect on consumption. I believe that it is necessary only to say that there are reasonable doubts about the issue and that further studies should be undertaken.
Amendment No. 90 reflects the likelihood that even after five years of study and three expert reports, issues may not be black and white. The noble Baroness referred earlier to the difficulties in proving that conclusively. It is likely that the Secretary of State would not be absolutely certain about the impact of a ban on tobacco advertising on smoking prevalence. Hence the amendment is framed in terms of the Secretary of State being satisfied that the ban has led to a reduction in smoking.
Rightly or wrongly tobacco remains a lawful product in its manufacture, sale and use. The Bill will not change that. Advertising is a lawful activity. Banning an otherwise lawful activity in relation to a lawful product should, I suggest, be evidence based. If the Bill becomes law it will be on the basis of a belief that the ban will have the desired impact on tobacco consumption. At the same time, Members of the Committee should admit that the evidence is not perfect. The amendments would allow the passage of time to provide the further evidence that would be necessary to make the ban permanent. Alternatively, if

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the evidence does not support a ban on tobacco advertising, we should then allow the sunset clause to remove the ban from the statute book. I beg to move.
3 p.m.
Baroness Jay of Paddington: The noble Baroness was kind enough to refer to my earlier contribution in Committee. I accept that it would be extremely helpful from all points of view if we had more detail, and, particularly, more comparative research about the impact of tobacco advertising on young people. However, it has never been the position of those who support measures in this field—I speak only for myself and not for the Government, nor, indeed, for the sponsor of the Bill—that banning tobacco advertising will, by itself, reduce the consumption of tobacco. It is seen as part of a wider and significant campaign in health education and other fields to address the prevalence of smoking among those people, who, we have heard today, comprise 70 per cent of existing smokers, who would like to give up, and, more especially, as the noble Baroness said, among those young people, particularly children, who may be tempted to start smoking.
I am sure that the noble Baroness is familiar with the White Paper entitled Smoking Kills, which was published by the Government in 1998 and which led to the provisions of the Bill. That document set out a wide series of proposals for health education and various other means of reducing the prevalence of tobacco consumption, among which, indeed, the banning of tobacco advertising was significant. However, it was not seen as being of itself sufficient to reduce the prevalence of smoking in the way I have described.
It seems to me that the logic of what the noble Baroness said in support of her amendments is that if we wanted to do some kind of comparative study of the impact of the different ingredients of an anti-smoking campaign, we would, for example, have to introduce regulations which enabled us to cease providing nicotine patches on the health service after a specified time in order to carry out that kind of activity. We would need to consider health education programmes as they related to smoking programmes in schools and say that the regulations or provisions under the various forms of education and health education policy that may exist should be time limited in order to demonstrate their effectiveness.
I have always felt that it is entirely consistent to say that the banning of tobacco advertising has been proved to be a significant part of an overall tobacco smoking cessation programme. The international comparisons, for example in Norway and New Zealand, demonstrate that. We know that sufficiently. We are not arguing that this alone will have the impact suggested by the noble Baroness in stopping people smoking or, indeed, preventing children from entering the market. However, as regards children entering the market, I believe that we have sufficient proof that brand recognition of the kind referred to by the noble Baroness, who mentioned my earlier remarks in Committee, has a significant part to play.
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Therefore, the point is that it is insufficient to suggest that if one simply time-limits one part of this campaign, one can demonstrate something conclusively. Since the argument is that one needs all the weapons in the armoury to achieve effective smoking cessation, there is no logical health education or other health policy reason to argue the case that the noble Baroness has.
Baroness Finlay of Llandaff: I support what the noble Baroness, Lady Jay, has just said. I also thank the noble Baroness, Lady Noakes, for having referred to my previous comments. I should of course welcome anything which promotes objective research into any topic. I certainly would have no objection to increasing funding for research.
However, I have a problem with the timeframe put on the matter. If there is to be an allowance for sponsorship to continue in some sports—I do not want to revisit that argument—until possibly 2006, that is six years from when this Bill may be enacted. We are now in 2002. That will take us to 2008. It will give us only two, and not six, years in which to collect evidence. It is practically impossible to collect the kind of evidence of changes in behaviour and changes in patterns within two years, particularly because of the confounding variables which have just been referred to by the previous speaker, the noble Baroness, Lady Jay.
The Earl of Erroll: I have listened to the debate with interest. I wonder whether we should take the two things separately. Obviously, from the point of view of the promoter of the Bill, Amendment No. 90 is unacceptable because he will be desperate to make sure that the legislation stays on the statue book for as long as possible.
Amendment No. 89 has a great deal of merit. As I listened to the fact that it may not even be possible to measure the difference that the legislation will have—and it may have no effect—I suddenly thought that for the last I do not know how many years the advertising of cigarettes has tried to promote the fact that smoking kills. There has been nothing saying that it is healthy—and that has not had any effect. One begins to think, "Well perhaps this will have less effect than one would think". It would be useful to know whether or not it will work, because this Bill could be used as a precedent to attack other legitimate forms of business and so on when there is not sufficient evidence to prove that it will do any good.
It frightens me that we are passing a. Bill which may have no effect. In doing so, we shall probably be destroying certain businesses, possibly certain sports and all kinds of things which have worked perfectly well. I am not saying that we should not do that. I am going along with the matter because that decision has been taken. However, I think that it would he quite wise to sit back and to find out whether the legislation will be effective, so that in six, eight or 10 years' time if it is found to be totally ineffective, people will not start saying, "Well, this is a wonderful example for doing the same thing to something else to which someone else

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objects". Alternatively it may be that Parliament decides that the legislation should be reversed and introduces a Bill to repeal the legislation.
Baroness Gibson of Market Rasen: I speak briefly to my Amendment No. 93, which is self-explanatory. Some noble Lords will know that I have spoken on the issue of employment in particular in the tobacco industry during previous debates.
I must declare an interest. Before I came to your Lordships' House I was a national official of MSF which has had the new name of Amicus since 1st January. Amicus has members who work in the tobacco industry. Rightly or wrongly, they believe that if this Bill is carried—it may be that it is carried with other provisions as well—they are in danger of losing some jobs in the tobacco industry. I remind your Lordships that we are talking about skilled workers. Thanks to those who have been negotiating in the tobacco industry, they are also among our better paid jobs. Those jobs are throughout the country, including in Northern Ireland. I have itemised the areas previously in your Lordships' House. They include areas which already have high unemployment. I have spoken particularly because I have a knowledge of the tobacco industry, but the question of employment could apply also to printers and those involved in advertising.
I hope that by raising this matter today I can have an assurance from the Minister that, if the Bill is passed, an eye will be kept on what is happening with regard to employment.
3.15 p.m.
The Earl of Listowel: I want to draw the Committee's attention to Amendments Nos. 89 and 90. They seem to reinforce the idea that the House should have some form of post-legislative scrutiny, to see that legislation passed in the House is effective.
Lord Skelmersdale: I have been a fan of sunset clauses, unlike the noble Lord, Lord Peston, judging by what he said earlier, ever since I had the opportunity to go to Wellington for a parliamentary conference on statutory instruments in the mid-1990s. I was educated in sunset clauses by the Australian contingent who scatter—there is no other word for it—sunset clauses around their statute book like confetti.
I promised to answer the noble Lord, Lord Peston, at this point, rather than earlier. I would be the first to say to him that such clauses are not always appropriate. That is not because the outcome of the Bill is unclear and therefore it needs a sunset clause; it is because, as my noble friend Lady Noakes said, we are banning the advertising of a perfectly legal product. If it does not work, we should not continue to do it. It is as simple as that. However, governments always rely on the difficulty of finding time to get new legislation—banning legislation, for example—onto the statute book. That is why, in this case, I believe that a sunset clause is important.
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The noble Baroness, Lady Jay of Paddington. and I were both Health Ministers, she much more recently than I. There has been a successful package of measures to persuade people to give up smoking, and this is an extra—to mix my metaphors—arm to that package. I hope that it will continue to he successful, but, as far as one can tell—the evidence is by no means conclusive—banning the advertising of tobacco and tobacco products has, in other European countries, had, to say the least, an erratic effect. For example, consumption in Finland has almost halved, since legislation was introduced on the subject: in Sweden, it has gone done significantly, but not nearly as much; and, in Norway. it has gone up by a small amount.
I do not know what the effect of the legislation in this country will be in six years' time. Nor, to return to what the noble Baroness, Lady Jay, had to say, do I know what effect the total package of measures that will then be in force will have. However, I believe that there is no guarantee that smoking levels will continue to go down. That is why I support the idea of a sunset clause.
I do not think that the lead amendment moved by my noble friend Lady Noakes is very helpful. I am all for the Secretary of State making an informed decision, but I am not entirely sure that the rolling commission that she suggests will help to inform that decision. Perhaps I should say to my noble friend that I am agnostic on that amendment.
Lord Peston: I do not want to speak about sunset clauses, as I have already expressed a view on that, but I would like to say a word or two about research.
I very much support the view of the noble Baroness, Lady Finlay of Llandaff, that we want more research in this area. However, research into behavioural areas is immensely difficult. In my normal cynical mode, I would say that if someone gives me a problem such as this one, I will find an economist, a data set and a statistical method that will come out with answer "A". I will then find a second economist and data set that will produce answer "Not A"—possibly, its reverse. Then, I will find a third one who will not decide between "A" and "Not A".
This is a difficult area. My noble friend Lady Jay was right to say that not only will there be research—the noble Baroness, Lady Finlay, pointed out that it is a fascinating area—but it will require study over an enormously long time period. We need to study several cohorts of young people, starting when the Bill becomes an Act and carrying on more or less through their lifetimes. Only then could we even begin to believe that we can reach an answer, let alone know that we would do so.
With all due respect to the noble Baroness, Lady Noakes, she may be a little naïve as regards how quickly any light could he thrown on to this subject. I can say only that I would take a similar view about monetary policy and the Bank of England. Much as I support the Bank's monetary policy, we could be just as difficult about how clearly research-based it is. I might go further and say that if all legislation had to

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be evidence-based, I doubt whether we would pass very much legislation at all. That might not necessarily be a bad thing.
That leads me to my second remark. Why do we not occasionally use our common sense? I realise that I am not wearing my professorial hat, as I do when I am in the business of promoting research, but if we use our common sense with regard to what the tobacco companies are up to and what they think that they can achieve, it defies belief that they do not consider that they sell more cigarettes as a result of advertising and promotion. Perhaps that undermines the social sciences, but a little common sense in this area is also worthwhile.
I was delighted to hear from my noble friend Lady Gibson that her former union has been renamed. I have learnt at least one new thing today. I congratulate the union on choosing the marvellous name of Amicus. I have devoted my life to supporting full employment as the main objective of government policy and we must never move away from that. However, we have to be realistic. If the Bill is passed and it succeeds, then we hope that fewer cigarettes will be sold, not only in this country but also abroad. There is therefore a genuine threat to the employment or my noble friend's former members. My heart goes out to them because that is something I never want to see. However, that tells us that on another occasion we should consider the whole question of employment policy. We should put in place policies that will help those workers.
Before I resume my seat, perhaps I may make a political point. We do not need any lessons from the other side on the creation of unemployment. They were willing to destroy the coalmining industry and ruin the lives of large numbers of people. It is good news that they seek to defend the position of tobacco workers, but I do not feel that there is any moral weakness on our side if some jobs are put at risk. The route to solving the problem is to look at the whole question of employment rather than to consider tobacco advertising.
Baroness Finlay of Llandaff: I rise for a moment to say that I may have been incorrect in that I should have declared an interest. I have just been invited to become a founder member of the merging charities, the Imperial Cancer Research Fund and the Cancer Research Campaign. If, in discussing research, I did not declare an interest then I ask the forgiveness of the Committee.
Lord Hunt of Kings Heath: I am sorry that the noble Lord, Lord Campbell of Alloway, is not in his place because our discussion now goes to the crux of what he was seeking to achieve; that is, to revisit our debate on Second Reading on what evidence is available to support the contention in the Bill of the noble Lord, Lord Clement-Jones, which is that a ban on advertising would be one significant factor in the effort to reduce tobacco consumption in this country. I must say that I think that my noble friends Lady Jay and Lord Peston got this right. I do believe that the evidence is in place to support the noble Lord's Bill.
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I do not wish to revisit all the reports from which I quoted in our debate on Second Reading, but if we turn to the Smee report, produced in 1992 by the very esteemed and respected economic adviser to the Department of Health at the request of the previous government, we can see that he concluded that the preponderance of positive results does indicate that advertising has a positive effect on consumption. He, too, looked at the evidence from a number of countries, including those mentioned by the noble Lord, Lord Skelmersdale, in his intervention. Professor Smee stated that there were complications in some of the studies undertaken, in the main because advertising bans were often introduced in conjunction with other tobacco control measures. However, he concluded that in each case the banning of advertising was followed by a fall in smoking on a scale which could not reasonably be attributed to other factors.
But it is not only the Smee report. The 1999 report from the World Bank suggested that implementation of the 1998 EU directive could have reduced cigarette consumption within the European Union by almost 7 per cent. There is other, more recent, evidence from the American researchers Saffer and Chaloupka, who studied data from 22 countries. They concluded that tobacco advertising increases tobacco consumption. I do not want to go on.
I contend that there is sufficient evidence to give confidence—to back up the suggestion of the noble Lord, Lord Peston, there is a great deal to be said for common sense in making these judgments—that the Bill is justified. The evidence supports it.
As to research, I should say to the noble Baroness, Lady Noakes, that, as part of the Government's efforts to reduce tobacco consumption, there will be continuing research in this area. The Health Development Agency has a particular interest in evidence-based research in the area of public health, and other organisations will wish to research this area, but I do not believe that that justifies Amendment No. 89.
As to Amendment No. 90 and the issue of a sunset clause, the noble Lord, Lord Skelmersdale, said that he is a fan of sunset clauses. I do not know whether he extends that to legislation on hereditary Peers, but I believe—
Lord Skelmersdale: If the noble Lord is going to quote me, I should be grateful if he would quote me accurately. I said that I had become a fan of sunset clauses "in some circumstances".
Lord Hunt of Kings Heath: Let us examine the kind of circumstances in which sunset clauses should he used. The noble Lord will know that in recent years sunset clauses have been used in relation to the Terrorism Act 2000, the Armed Forces Act 1996, the Imprisonment (Temporary Provisions) Act 1980 and the Northern Ireland (Emergency Provisions) Act 1973, to name but a few. I suggest that sunset clauses are used where the state is potentially given

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exceptional powers to curtail an individual's freedom of movement, and one can understand why they have been used to that effect.
The noble Lord argues that there are special circumstances, which he mentioned, in the tobacco Bill we are bringing forward, but I do not believe that they go so far as to justify a sunset clause. In essence, we should have confidence in what we are legislating for and which is backed up by the evidence.
Lord Skelmersdale: Before the Minister leaves the point he has made, I could translate his words as saying that in 6, 10, 16, 20 years' time, or whatever, if the consumption of cigarettes and tobacco is seen to go dramatically up, he would still leave this Bill on the statute book. If he is saying that, I suggest that he is very, very wrong.
Lord Hunt of Kings Heath: My earnest hope is that that will not happen and that the Bill, if enacted, along with the various other efforts we are all making to try to reduce tobacco consumption, will be effective. All I am saying is that I am confident that this Bill is one plank in efforts being made to reduce tobacco consumption. The evidence we have available suggests that we are going in the right direction; it is strong enough for the House to feel safe and secure in passing the Bill.
Baroness Jay of Paddington: Will my noble friend give way? To pick up the point made by the noble Lord, Lord Skelmersdale, it seems to me that if you have a time-limited Bill on this kind of activity, there are methods by which the tobacco companies could exploit it. I am not in any way attributing cynical policies to them but, for example, they could, in the run-up to the review of a sunset clause of the kind suggested by the noble Lord, lower the price of cigarettes to such an extent that it counteracted any health education or health promotion methods being used across the hoard. That would introduce, even temporarily, a rise in consumption. Although this could occur after the Bill had been passed—the point made by the noble Lord—my noble friend would be right in saying that any such provision should obviously be ignored.
Lord Skelmersdale: Surely it will take some time for the effect to be noticed and recorded. During that time, any responsible Government would increase the taxes on cigarettes and tobacco.
3.30 p.m.
Lord Hunt of Kings Heath: It does not seem to me to detract from the substantive point; namely, that the Government believe that the evidence is sufficiently robust to enable them to recommend to the House that it should support the Bill.
Lord Skelmersdale: The noble Lord is arguing from the wrong position. No one is arguing that the Bill should not be placed on the statute book. What we are
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talking about is under what circumstances it should continue to be on the statute book. I am merely saying that there is doubt—as indeed there is.
Baroness O'Cathain: If something dramatic occurred—for example, if someone said that smoking was good for people—then perhaps the Government of the day would introduce another Bill. I do not think for one moment that the idea of including a sunset clause, just because the Bill might result in more people smoking, is the correct approach.
As the Minister rightly says, the Bill contains a raft of measures. I do not know the figures, but I do not believe that smoking has increased over the past 10 years or so. I know that that has been the case in certain areas; but there is now hardly any place where people can smoke. That is bound to have reduced consumption. Perhaps we shall all come to our senses and realise how appalling smoking is in terms of its effect on our health.
Lord Hunt of Kings Heath: I understand that the noble Lord, Lord Skelmersdale, has a doubt. I do not share it. But, even if I did, I am not sure that I should conclude that a sunset clause is warranted given the scale of seriousness against which sunset clauses are used in legislation. However, I suspect that we are not going to agree on that.
Perhaps I should turn to Amendment No. 93. My honourable friend Ms Yvette Cooper published a regulatory impact assessment in December 2000 in connection with the earlier government Bill. This carried out, as far as possible, an assessment of the effects of the Bill on employment. It pointed out that there would be various effects, as is patently obvious, as a result of the likely fall in tobacco consumption. It pointed out, however, that if consumers spent less on tobacco they might spend more on other consumer goods; therefore, although there might be a reduction in the employment opportunities in the tobacco manufacturing industry, that might be compensated for in additional employment opportunities in other parts of the employment sector. It is also worth making the point that there has been a long-term fall in employment in the industry, due as much to automation as to falling demand.
I want to assure my noble friend that, of course, the Government are sensitive to the concerns of employees in the tobacco industry. One would have to be. They recognise that the industry provides skilled, well-paid jobs and that it has a significant impact on the local economy in a number of areas. I hope that I can assure my noble friend that the Government will keep a careful eye on this in terms of what support can be given to workers who are so affected. I am not unmindful of the impact on individuals, and have a great deal of sympathy with them. But, as my noble friend Lord Peston, said, at the end of the day we believe that the public interest is strongly in favour of the Bill and a reduction in consumption.
Lord Clement-Jones: We have had an interesting debate. The Minister put it very well when he said that he had no doubt. I share that lack of doubt. Even where there is a doubt, because of the public health interest we should legislate in these matters and not have a sunset clause. That is a fair statement, in the light of Amendments Nos. 89 and 90.
The noble Lord, Lord Peston, and the noble Baronesses, Lady Finlay and Lady Jay, have told us all about the problems of research that would fit the criteria set out in Amendment No. 89. That is fraught with difficulties relating to timing, changes in behaviour and the fact that there are other factors. Nobody has ever denied that other factors affect tobacco consumption, including price and peer group pressure.
The noble Baroness, Lady Noakes, talked about seeking after truth. I am among that number. We want to see the evidence after a few years of the operation of the Bill in the proper way, but the evidence pro tem is pretty overwhelming. I do not accept the points made by those who cast doubt on the evidence. I shall not repeat what the noble Lord, Lord Hunt, said, but many speakers at Second Reading went through the evidence exhaustively, particularly that from Scandinavia and New Zealand, but also that from many other areas. I hope that that tracking will take place.
Of course, the situation is complicated by the fact that there are other measures. This is only one part of a total package. As several noble Lords, particularly the noble Baroness, Lady Jay, pointed out, a range of other measures are being taken to reduce tobacco consumption. That complicates the matter.
I have great sympathy with the points raised by the noble Baroness, Lady Gibson. I very much welcome what the Minister said on that subject. Of course we regret any loss of employment, but one must be realistic. If we are banning advertising and we intend to lower consumption of tobacco products, there will be an inevitable reduction in employment, unless there is a simultaneous and regrettable export surge. The proper way forward is to look for alternative forms of employment. The companies involved must take that on board.
I do not believe that a sunset clause is the proper way forward. I am the first to stand up on human rights matters, whether it is prevention of terrorism legislation or matters affecting individual liberty. Such measures should be extremely narrowly confined in their application and I favour including sunset clauses in such legislation if appropriate. However, as I said earlier, I do not believe that we are talking about matters of fundamental human rights and I do not believe that a sunset clause is appropriate. As the Minister said, sunset clauses are appropriate when the state takes exceptional powers that need restricting.
I am afraid that I am not sympathetic to Amendments Nos. 89 or 90. I am sympathetic in spirit with Amendment No. 93, but I am afraid that the Bill will have an inevitable impact on employment.
Baroness Noakes: We have had an interesting debate on the amendments. I thank my noble friend Lord Skelmersdale for his support on the sunset clause. The two of us are pretty lonely on the subject—so lonely that I might even think about taking up smoking again.
I am surprised at the opposition to a sunset clause. We are not seeking to oppose the Bill. A number of noble Lords have said that we have enough evidence to legislate. I am not opposing that plausible position. However, we do not know the effects of a tobacco ban on cigarette consumption, particularly among the young, in this country. The aim of the amendment was simply to find that out. It is modestly drafted, because it requires only that the Secretary of State should be satisfied that the Act has led to a reduction in tobacco consumption, in particular among the young. It does not seek to oppose the nature of the Bill but seeks after truth in this matter, after the event.
To back that up, I proposed that research be undertaken. A number of noble Lords have spoken of the difficulties of research. The noble Baroness, Lady Jay, talked about the way in which tobacco advertising fitted into a wider programme. I accept that. The noble Baroness, Lady Finlay, spoke about confounding variables—a new term which I shall use often. I understand what they say: that it is difficult to undertake this kind of research. But it is not impossible over the proposed timescale. I accept the point that timescales might be longer. However, it is possible to do the research. Why are we afraid to find out the position?
Lord Faulkner of Worcester: I am grateful to the noble Baroness for giving way. If she accepts the principle that the purpose underlying the legislation and so much else of our health education policy is to reduce the amount of tobacco consumption and if research were to prove that the Bill had not produced a big reduction in consumption, the logical conclusion would be to consider ways in which we can redouble our efforts and bring about a reduction by other means. It is surely not logical to throw away the one weapon which we already have in the armoury.
Baroness Noakes: The noble Lord misunderstands me. I have no problem about trying to reduce consumption. It is a wholly worthy aim. Many of the strands of policy to which the noble Baroness, Lady Jay, referred are important in achieving that aim. If a tobacco ban is seen by evidence to be ineffective that does not lead me to say logically that I want to throw it away. If a tobacco ban is not effective, since it restricts companies carrying out their lawful business in this country, I would want to remove it. But, equally, I would want to redouble, treble or quadruple efforts to reduce by other policies tobacco consumption. I focus on this single policy. If that policy is not effective, it should not be on the statute book.
Lord Peston: Is the noble Baroness not interested in logic? My noble friend Lady Jay made a decisive point. I put it as simply as I can. Why are we engaged in the health education business if at the same time the tobacco companies are spending millions more than we are spending and both are regarded as legitimate activities? If we are in the health education business—very strongly we are—logically, it is entirely reasonable that we should say, "We do not want another group of people out there busily promoting the exact thing that we in the health business are saying is a bad thing". Is not there a logical point here? It is quite separate from everything else we are talking about.
Baroness Noakes: With the greatest respect to the noble Lord, Lord Peston, I do not think that it follows logically that one would want to ban tobacco advertising at the same time as doing other things. It is not proven that a tobacco advertising ban will lead to a reduction in consumption. If we were clear about that, there would not be a problem. If a ban on tobacco advertising had no impact, we should be neutral and allow advertising to continue.
I put this to the noble Lord, Lord Peston. Advertising could be aimed at increasing consumption—that is the position of most of the people who support the Bill—and therefore should be banned. That is not the same as a tobacco ban leading to a reduction in consumption. But tobacco advertising could also be aimed—as the tobacco companies maintain—at increasing their market share within the market which exists. They are competing among each other for smokers who have already decided to smoke. They are not policies, in this day and
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age, designed at increasing consumption but to increase market share. That is what research might wish to find out.
Baroness O'Cathain: I thank my noble friend for giving way. One cannot prove that tobacco advertising is solely to increase market share. Even if one could prove that, within that market share there would be new, young smokers because older smokers may be dead from emphysema and lung cancer, and goodness knows what else, or have given up. I know many older smokers who have given up smoking after 30 or 40 years. The reality is that one cannot say that because tobacco advertising is done in this way it increases only market share. That has been a spurious argument all along.
Baroness Noakes: I am grateful, I think, to my noble friend. I continue to have a naïve belief that research in this area would enlighten us all as to what the effect of a ban on tobacco advertising in this country might be. Given the time, I shall not labour the point further but I shall not rule out returning to this matter at Report stage. I beg leave to withdraw my amendment.
Amendment, by leave, withdrawn.
[Amendment No. 90 not moved.]
Clause 20 [Interpretation]:
[Amendments Nos. 91 and 92 not moved.]
Clause 20 agreed to.
Clause 21 [Commencement, short title and extent]:
[Amendment No. 93 not moved.]
Clause 21 agreed to.
House resumed: Bill reported with amendments.
House adjourned at thirteen minutes before four O'clock