Lords Sitting of 1 March 2002

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

Sex Discrimination (Amendment) (No. 2) Bill [H.L.]
11.5 a.m.
Lord Faulkner of Worcester: My Lords, I beg to introduce a Bill to amend the Sex Discrimination Act 1975; to make provision with respect to discrimination concerning the provision of goods, facilities, services and access to governance by private member clubs; and to continue to permit wholly single-sex clubs and sporting events. I beg to move that this Bill be now read a first time.
Moved, That the Bill be now read a first time.—(Lord Faulkner of Worcester.)
On Question, Bill read a first time, and to be printed.

Tobacco Advertising and Promotion Bill [H.L.]
Report received.
Clause I [Meaning of "tobacco advertisement" and "tobacco product']:
Lord Skelrnersdale Lord Skelrnersdale moved Amendment No. 1:
Leave out Clause 1 and insert the following new Clause—

"INTERPRETATION

(1) In this Act—

"appropriate Minister" means—

(a) in relation to England, Wales and Northern Ireland, the Secretary of State, and

(b) in relation to Scotland, the Scottish Ministers.

"electronic means" means a service that is sent initially and received—at its destination by means of electronic equipment for the—processing (including digital compression) and storage of data, and is entirely transmitted, conveyed and received by wire, by radio, by optical means or by other electromagnetic means,

"public" means the public generally, any section of the public or individually selected members of the public,

"purpose" includes one of a number of purposes, "tobacco advertisement" means an advertisement

(a) whose purpose is to promote a tobacco product, or

(b) whose effect is to do so.

"tobacco product" means a product consisting wholly or partly of tobacco and intended to be smoked, sniffed, sucked or chewed.

(2) In this Act, references to publishing include any means of publishing and include, in particular, publishing by any electronic means, and references to distributing include any means of distributing and include, in particular, distributing by any electronic means, and distributing includes transmitting in electronic form, participating in doing so, and providing the means of transmission."

The noble Lord said: My Lords, it falls to me to start proceedings today on the first amendment—a day which I hope will not last too long as we have had a full and lengthy innings on the Bill. In fact, I observe that tomorrow will be the three-month anniversary of the Second Reading. That is fairly dilatory in legislative terms. As we all know, normally a Bill is expected to take about six weeks to pass through this House.
On Second Reading I ventured to congratulate the Government on having a definitions clause at the very beginning of the Bill. I also said that I believed it was essential to amalgamate all references to the Internet and electronic communication into one part of the Bill, as opposed to the current drafting of scattering them willy-nilly throughout it. It was with those two thoughts in mind that I tabled Amendment No. 1.
On the first point, it struck me as more than a little confusing to have not one but two definitions clauses, one at the beginning and one at the end, especially as the current Clause 20 finds it necessary to refer back to Clause 1. At the very least, my amendment would save some words from going onto the statute book; namely, lines 30 and 31 on page 10 of the Bill. It is my contention that for the purpose of clear interpretation it is more appropriate to have the whole of the interpretation clause at the beginning of the Bill. Over the past decade or so there have, of course, been many precedents of which I shall cite just three: the Water Consolidation (Consequential Provisions) Act 1991; the Charities Act 1992—which is rather different in that it is a long and complicated Act divided into parts and under which the first section in each part of the Act is an extensive interpretation section—and, more recently, as the Government are keen on their own Bills, surprise, surprise, the Nuclear Safeguards Act 2000. So, clearly, there is nothing intrinsically wrong with my approach.
Secondly, I believe that the interpretation clauses, wherever they are placed, should embody those meanings which are necessary for the clear comprehension of what follows in the Bill—any Bill. So far as this one is concerned, I do not propose that the interpretation clause should include meanings which are relevant only to the understanding and scope of one individual clause. Meanings which have relevance and application to only one clause are logically and properly, I believe, left in that individual clause. Thus, my amendment, for example, leaves the meaning of "specialist tobacconist", "a coupon" and "a sponsorship agreement" to the relevant Clauses 6, 9 and 10 respectively.
I have clearly not done a straight transposition. Although the Minister has driven me off my former intention of grouping all the Internet provisions together, I believe that in many cases we need common phraseology and, more importantly, the right form of words in the right place. I have, therefore, sought to expand the definition of "publishing" to make it much more comprehensive. Currently, Clause 20 explains that the term "publishing" includes any means of publishing, in particular, publishing by any electronic means, and gives the Internet as an example. As we discussed at great length in Committee, publishing is

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distinct from distributing. It is, therefore, somewhat surprising that the existing Clause 20 does not make it clear that distributing includes distributing by any electronic means.
Clause 2 only provides a clue. In subsection (3) of Clause 2 we find that distributing includes transmitting in electronic form, participating in doing so and providing the means of transmission. Thus, my new definition makes clear what is meant by reference to distributing a tobacco advertisement. The phraseology follows that used for publishing and draws on what is contained in Clause 2.
There are various consequential amendments which I hope I need not go into. For the moment I would say that I have taken the meaning used for "electronic means" in the new clause from EC directive 2000/31, the so-called "e-commerce directive" and the Commission's proposal for an amended proposal on certain legal aspects of electronic commerce in the internal market. I have done so to ensure that the meaning is consistent with other relevant legislation. The United Kingdom has still not transposed that directive into national law. Should it do so in terms that define "electronic means" any differently from those stated in the directive, the meaning in this new clause should be amended at that time. Of course, the famous Clause 7, the Henry VIII clause to which reference was made my noble friend Lord Lucas in Committee, would give the opportunity to do that.
I hope that I have said enough to cover the reasons for, and the content of, my amendment. I beg to move.
Lord Filkin: My Lords, I am genuinely impressed by the industry and application that the noble Lord, Lord Skelmersdale, brought to his attempt to order the Bill in his suggested way. I wish that my response could be slightly more positive.
As the noble Lord said, the amendment would bring together Clause 1, which defines "tobacco advertisement" and "tobacco product", and Clause 20, which provides an interpretation of what is meant by "appropriate Minister", "public", "purpose", "tobacco advertisement", "tobacco product" and "publishing". It also includes in subsection (2) the wording of Clause 2(3) relating to distribution. It further provides a new definition: of "electronic means". As the noble Lord said, he has drawn on the wording of the technical standards directive for "electronic means".
The definition of "electronic means" appears to have been imported, as suggested, from the technical standards directive. Under that directive, "by electronic means" is one of the four criteria that define an "information society service"; the others are "normally provided for remuneration", "at a distance" and "at the individual request of a recipient of a service". "Electronic means" is taken to include online entertainments offered on the Internet, including music on demand, video on demand and sports events on demand. It also includes services for accessing the Internet and the World Wide
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Web, e-mail, discussion fora and online telecommunications services such as videotelephony, videoconference and telephone and fax services.
While I appreciate the noble Lord's desire to clarify what is covered by the Bill, the Government believe that the amendment is not necessary. As we shall see when we look at its use in the context of the other amendments tabled by the noble Lord, Lord Skelmersdale, it misses the central point that websites, almost uniquely, can be accessed by almost anyone at any time. Further, the Government believe that the definitions currently contained in Clauses I and 20 are appropriate. We therefore oppose the amendments and the proposed deletions from the clauses.
I turn to Amendment No. 4, which I also ask noble Lords to reject. It would mean that Clause 2(3) became part of the definition in Clause 1. Subsection (3) elaborates on what is meant by a distribution in subsection (2). As the Bill is drafted, later references to distributing and distribution refer back to Clause 2(3), and so the same effect is achieved by the current drafting. We therefore do not feel that there is added value in the amendment. On that basis we recommend that the House rejects it.
On Amendment No. 5, Clause 2(4) provides an exemption for tobacco advertisements on websites that are accessed in the UK if the person responsible for the website does not carry on business in the UK. However, any person distributing tobacco products within the UK who carries on business in the UK will be covered by the Bill. As I have already suggested in commenting on the noble Lord's proposed amendment to define "electronic means", we reject Amendment No. 5 because we feel that it misses the point of Clause 2(4). Websites, unlike almost any other form of electronic advertisement, are accessible beyond their intended target audience and across borders. For example, a French online advertiser wishing to advertise tobacco for sale only to Frenchmen cannot plausibly restrict access to his website to Frenchmen. Once on a website, it is there for all to see—and the viewers can. I hope, also read French. That is what is unique about websites and why the clause specifically addresses them. The need is simply not there for other "electronic means".
If the noble Lord's concern is to prevent the broader category of "information society services" from falling within the scope of the offence in Clause 2(1) if they are provided from overseas, I reassure him that that is precisely what the Government's implementation of the e-commerce directive will achieve. I understand that the DTI will be consulting publicly on draft regulations in the very near future.
I also ask the House to reject Amendment No. 20 because, as I have already said, the Government do not support the deletion of Clause 2(3). We believe that it and Amendment No. 24 are unnecessary.
When considering the considerable amendments tabled by the noble Lord, Lord Skelmersdale, we wondered whether there lay behind them an understandable and proper concern to try to ensure that the Bill was compatible with the e-commerce

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directive. To the extent that that is what lies behind the amendments, I shall place on the record a statement about how we intend to address the implementation of that directive.
Like other member states, the United Kingdom is required to incorporate the provisions of the e-commerce directive into UK law. It will do so by making regulations under the powers contained in the European Communities Act 1972. The DTI is implementing the directive generally. The Treasury is doing so in the specific area of financial services. Both departments will launch consultations on draft regulations in the very near future. By virtue of the European Communities Act, the implementing regulations may make any necessary changes to existing primary legislation to make it compatible with the directive. As the House would expect, the Government give the firm commitment that were there to be any inconsistency between the Act and the e-commerce directive, the Act will be brought into accordance with it.
11.15 a.m.
Lord Clement-Jones: My Lords—
Lord Skelmersdale: My Lords, I am extremely grateful to the Minister. I observe—
Lord Clement-Jones: My Lords—
Lord Skelmersdale: My Lords, is the noble Lord seeking to speak after the Minister? We are on Report.
Lord McIntosh of Haringey: My Lords, this is a Private Member's Bill and the promoter of the Bill has the right to speak after the Minister.
Lord Clement-Jones: My Lords, I am grateful to noble Lords for allowing me to intervene on my own Bill. First, I thank the noble Lord, Lord Skelmersdale, for acknowledging that the Bill will have received a considerable amount of time and serious consideration in the course of its passage. We had a very full Committee stage, and I look forward to today as we have some serious amendments before us.
I also welcome the way in which the noble Lord, Lord Skelmersdale, introduced his amendment. He clearly has considerable expertise in this area. But there is a substantive issue behind what may appear to be a drafting amendment. The key issue to be dealt with in this group of amendments concerns whether a website should be treated differently from any other electronic means of communication.
We heard the Minister say that he does not consider the amendments to be either necessary or helpful and that they risk pre-empting the outcome of the consultations on the e-commerce directive which will be held soon. I agree with the thrust of what he says.
I can see the intention of the noble Lord, Lord Skelmersdale, in relation to the amendments. They would treat websites as part of an information society service under the terms of the technical standards
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directive. However, I agree with the Minister that websites are a unique case. Unlike a fax, e-mail or other type of electronic transmission, it is nigh-on impossible to predict or control who has access to the information on a website. As a result, I consider that it is fair to treat websites as a special case and to regulate them accordingly. I believe that, as a matter of public policy, it should be possible and is desirable to treat advertisements on a website in the same way as one would if they were on a poster hoarding. The Bill, as drafted, allows us to do that. However, that would not be the case if the noble Lord's amendments were accepted.
I believe that it would be unwise to legislate here in haste on one e-commerce issue only to repent at leisure in a few months' time before we know the outcome of the forthcoming consultation on the e-commerce directive. I believe that, as drafted, the Bill allows the sensible regulation of advertising on websites. Therefore, I urge the noble Lord to withdraw his amendment and not to pursue those which are consequential on it.
The Minister's remarks about the way in which the Bill, if it were not consistent, would be brought into line with the e-commerce directive were extremely helpful. I very much hope that those assurances will satisfy the noble Lord.
Lord Skelmersdale: My Lords, I assume that I am allowed to speak now. I am very grateful to the noble Lord, Lord Clement-Jones—perhaps I should say particularly so—because he has covered points which I intend to raise under separate amendments as to whether the Bill should contain the word "website" in particular places or whether it should say "electronic communication". I believe that in many cases it should be the latter rather than the former, but we can go into that during debate on later amendments.
Secondly, I am grateful to the noble Lord, Lord Filkin, for clarifying the Government's position on the e-commerce directive. I recall that on 7th December the noble Lord said that,
"the Government's intention is to make the Bill, if it progresses, fully compliant with the European regulations, as previously indicated. Further details of that will be provided later".— [Official Report, 7/12/01; col. 11081.
From what the noble Lord has just said, I assume that those are the further details to which he then referred.
I was struck by a phrase of the noble Lord, Lord Clement-Jones. In introducing my amendment I talked about the lethargy surrounding the Bill's progress. The noble Lord then promptly talked about legislating in haste. There must be a conflict of opinion here. That said, on reflection, it would have been easier in terms of the debate had I not pursued my thoughts in quite that way.
I may well find the need to return to the matter on Third Reading by seeking to amend the interpretation clause in the way that will be developed clearly during the course of today's discussions. In the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Monson Lord Monson moved Amendment No. 2:
After Clause 1, insert the following new clause—
"DEVELOPMENTS WITH REGARD TO TOBACCO PRODUCTS
(1) The Secretary of State may by order amend any provision of this Act if he considers it appropriate to do so in consequence of any significant scientific developments relating to tobacco products.
(2) Before making an order under this section, the Secretary of State shall publish his proposals and consult such persons or bodies as appear to him to be appropriate.".
The noble Lord said: My Lords, your Lordships will have spotted that this is a Henry VIII clause. Like most of us, I do not like such clauses in principle. However, in Committee both the Government and the noble Lord, Lord Clement-Jones, were adamant that a Henry VIII clause should remain in the Bill, to wit Clause 7. Therefore, the principle having been firmly established so far as concerns the Bill, it might as well be put to good use.
The fact is that, however successful government propaganda may be, millions of people will still want to smoke or take tobacco in some form. That being the case, it is surely desirable that they should take it in the least harmful form possible. That is certainly in the interests of manufacturers, who do not, after all, want to remain the nation's whipping boys.
But if the manufacturers are to go to the enormous expense of trying to develop, possibly by genetic modification or some other means, a tobacco which, while fully preserving flavour, contains significantly—I stress the word "significantly"—less tar and nicotine than even the lowest tar brands do at present, they must know that they can publicise it so as to recoup their costs. It must be in the best interests of the Government and of the community at large that they should be able to publicise such a development, thereby inducing people to switch away from more harmful brands.
Of course, that may never happen; the experiments may fail. But if they should be successful, the Government should have reserve powers in hand to permit the necessary publicity without having to wait for a slot for primary legislation.
The noble Lord, Lord Skelmersdale, has tabled an alternative amendment. I do not know which is more favoured by the Government and by the noble Lord, Lord Clement-Jones. I believe that the safeguards
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contained in my proposal, which require there to be definite scientific evidence of potentially less harmful products on the market, are desirable. I also accept that the requirement that there should be an affirmative resolution to allow that to happen, as favoured by the noble Lord, Lord Skelmersdale, is also desirable. Either way, I believe that this is a serious amendment which is not designed to weaken the Bill. I beg to move.
Lord Skelmersdale: My Lords, it comes as no surprise that my amendment is grouped with that of the noble Lord, Lord Monson, because it is very similar, although mine is perhaps in slightly more legislative form than his. The Minister will doubtless want to comment on that.
I still believe, for two reasons, that it is appropriate to have a sunset clause in the Bill. If in five or six years' time it is discovered that cigarette smoking, or, rather, the consumption of tobacco, decreases rather than increases, as we all hope it will, then there is no point in continuing to have it on the statute book. However, as the Bill now stands, it would need primary legislation to remove it. That seems quite unnecessary.
But time moves on, and the tobacco companies are more than capable of producing new products. In Committee, the noble Lord, Lord Peston, commented on my powers of imagination. Therefore, I have no hesitation in using them again. Perhaps noble Lords would imagine that it has become possible to so genetically modify the tobacco plant that it contains not nicotine but another drug—say, caffeine. Such a modified leaf could be ground up and converted into snuff, or otherwise sniffed. Were such a product to be invented, I imagine that it would be of little harm. In their compendium of measures to persuade people like me to give up cigarette smoking, the government of the day may want to encourage tobacco companies to promote it. They may even want to promote it themselves. Before any noble Lord remarks on that latter course, that may be stretching the imagination just a little too far.
The important point is that such a promotion would be illegal under the Bill, with the result that the Act, as it will assuredly become in a few months' or even a few days' time, would do more harm than good. Surely, noble Lords would not intend that to happen. My answer to this conundrum is to include either Amendment No. 2 or Amendment No. 3. It is up to the House to decide which, if either of the amendments, it prefers.
11.30 a.m.
The Parliamentary Under-Secretary of State, Department of Health (Lord Hunt of Kings Heath): My Lords, I congratulate both noble Lords on their ingenuity in bringing forth these amendments that seek to replicate the intent in Clause 7, but relate it to scientific discoveries in relation to safe or safer tobacco products. I say to the noble Lord, Lord Skelmersdale, that it is true that we have been debating this Bill happily for a number of weeks now, but if he cares to

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join us in our forthcoming debates on the Bill dealing with NHS reform, I can promise him that we shall deal with that in rapid order.
Lord Skelmersdale: My Lords, I know that this is the Report stage, but I cannot forbear interrupting the Minister by saying, "Not if I have anything to do with it"!
Lord Hunt of Kings Heath: My Lords, in that case I look forward to interesting discussions. There are two points to be made. First, these matters are of a different order. Clause 7 is in the Bill because we know that the pace of change in relation to electronic technology is very fast indeed. Even if tobacco smoking could be made much safer or absolutely safe, such products would not be known to be safe for many years because of the necessity of undertaking research through the lifetime of people using the safer products. These events are of a different scale and order.
I also argue that a safer tobacco product is qestionable. As noble Lords will know, there has been development of what have been promoted as safer brands: light, mild and low tar and other descriptors. The danger is that they give the appearance, but not the reality, of being less harmful. I believe that there are great dangers, particularly given the current state of knowledge, in promoting the use of so-called safer products. The tar and nicotine content of the tobacco in a light or a mild cigarette is frequently no lower, or may even be higher, than in a normal cigarette. Even if at some stage in the future the tobacco industry made claims that it had produced a safer or a safe cigarette, I believe that it would be many years before that could be proven effectively.
On that basis it appears to me that the Bill, as it currently stands, meets the circumstances of the times. Therefore, I do not recommend that the noble Lord, Lord Clement-Jones, accepts the amendments.
Lord Clement-Jones: My Lords, I congratulate both noble Lords on their ingenuity. The noble Lord, Lord Monson, made a neat attempt to turn the tables in terms of producing his own Clause 7 which suited his purpose rather better and the noble Lord, Lord Skelmersdale, has exercised his imagination with his amendment.
As both noble Lords have said, this issue boils down to what one should do if, at some point in the future, the tobacco industry somehow comes up with a new product or a version of an existing product that is not harmful to health. I shall resist the temptation to debate why on earth the tobacco industry would do that, when it continues to refuse to admit that the products that it already manufactures cause any diseases.
Today is the first time that I have seen a senior executive admit that, as Mr Martin Broughton has on the front page of The Times. What a notable occasion this is. We should all cheer, perhaps not three times, but certainly twice. That is a notable statement. But, in relation to senior executives in the tobacco industry, that is the exception rather than the rule. As your
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Lordships no doubt know, the Health Select Committee in another place has certainly had much to say on the way in which the tobacco industry has buried its head in the sand on this subject.
The argument of the noble Lords, Lord Monson and Lord Skelmersdale, is that if tobacco is rendered harmless there is no continued justification for banning its advertising. I understand that argument, but I certainly do not agree with it for two principal reasons. First, even if such a product were to be invented tomorrow, there is no reason to believe that it would replace existing brands, or that there would even be a substantial demand for it, any more than the advent of alcohol-free beer had any substantial effect on the sales of alcoholic drinks. Instead, I imagine that we would see it branded similarly to existing cigarettes. We may see "Camel Harmless" or "Silk Cut Ultra-Low Death Rate" cigarettes being released on to an unsuspecting public. Advertisements for those brand variants would also advertise the harmful, and more widespread variant, in the same way that advertisements for Marlboro clothing are used to advertise Marlboro cigarettes. That would completely undermine the good that this legislation will do.
The Minister discussed whether there was such a thing as a safer cigarette. Products such as low tar cigarettes tend not to be any safer. People smoke them harder to get the same quantity of nicotine into the blood stream. I dare say that a number of smokers in this Chamber can testify to that fact. The tobacco industry denies that mild or light, and so on, are health claims. Those cigarettes are no safer. That argument holds true no matter how low the tar and nicotine content falls.
Secondly, I do not believe that this amendment should be accepted for the simple reason that the circumstances with which it is designed to deal will almost certainly never arise. Apart from increased levels of mechanisation, tobacco production has hardly changed in the past 50 years. The cigarettes smoked today have almost exactly the same constitution as they had decades ago. The pace of change in the tobacco industry is glacial. Forty years after the first Royal College of Physicians report into the link between smoking and disease, the manufacturers do not accept that their products cause disease. Only now, through the words of people like Martin Broughton, are they beginning to admit that nicotine may be addictive, albeit in the same way that exercise can be. There is simply no incentive to produce a harmless tobacco product, even if the technology existed to do so. That would be an admission that their existing products are harmful.
It is unnecessary to give Ministers this power, and I am certainly not a fan of giving Ministers more powers than they absolutely need to get a job done. The power proposed in the amendment, as the Minister pointed out, is very different from the power given under Clause 7 of the Bill. Given the incredibly fast pace of change in electronic communications, it is probable that this power will have to be used, even if we cannot predict in exactly what way. The power under Clause 7 is a necessary tool for the Minister to do the job that

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we are legislating for him to do. That is not the case with these amendments which, in all probability, will never be applicable. The technology that would make it relevant does not exist, and even if it did, there is no reason why the industry would choose to take advantage of it. Therefore, I urge the noble Lord to withdraw his amendment.
Lord Geddes: My Lords, in reply to the noble Lord—
Lord Hunt of Kings Heath: My Lords, I point out to the noble Lord that we are on Report.
Lord Monson: My Lords, it would have been useful to know what the noble Lord, Lord Geddes, was going to say. However, I am grateful to the noble Lord, Lord Skelmersdale. His amendments dot the "i"s and cross the "t"s to a slightly greater extent than mine. He also fleshed out the skeleton of my argument most successfully.
The noble Lord, Lord Clement-Jones, is extremely pessimistic. He tried to draw a comparison with low alcohol beer. There are two reasons why that has not taken off in the way it should. First, it is not favourably taxed by the Government. If the Government really want to push low alcohol beer they should tax it at a much more favourable rate than strong beer. Secondly, they have not yet succeeded in making it taste as good as the higher strength stuff, and the same goes for wine. It may happen in the future. It may be possible to make extremely low tar and low nicotine tobacco taste as good as the higher strength stuff.
The Minister, too, was pessimistic. The point is that, were one of these amendments to be accepted, there would be no requirement on a Minister to make use of the powers. They would be reserve powers. However, in the absence of any support from other quarters of the House, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 3 not moved.]
Clause 2 [Prohibition of tobacco advertising]: [Amendments Nos. 4 and 5 not moved.]
Clause 4 [Advertising: exclusions]:
Lord Faulkner of Worcester Lord Faulkner of Worcester moved Amendment No. 5A:
Page 2, line 13, leave out from "made" to end of line 15 and insert "in the course of a business which is part of the tobacco trade, and for the purposes of that trade, and directed solely at persons who—

(i) are engaged in, or employed by, a business which is also part of that trade, and

(ii) fall within subsection (1A), in their capacity as such persons,"

The noble Lord said: My Lords, in moving Amendment No. 5A, with the leave of the House I shall speak also to Amendments Nos. 8A and 38.
The purpose of all three amendments is to ensure that loopholes are not created in terms of advertising exclusions in the case of Amendments Nos. 5A and 8A, or of free distributions to the trade which are covered by Amendment No. 38.
Under Clause 4(1)(a) it is not an offence to produce 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 (even if they are also engaged in another trade)".
The first two amendments narrow the exemption in Clause 4(1)(a) and their purpose is to specify what exactly is meant when we talk about "persons engaged in the trade", for the term "trade" is not defined.
As the clause is currently drafted, that could mean anyone who is selling cigarettes anywhere. It could be a senior buyer for Sainsbury's or the person in the tobacco kiosk at Sainsbury's who only works there one day a month or who may be working on tobacco products one week but on the cheese counter the next. I am sure it was never the intention of the noble Lord, Lord Clement-Jones, to include those sorts of people as part of the tobacco trade.
I accept that tobacco companies will wish to send materials to those who have a substantial involvement in the tobacco trade. But it is not acceptable for them to be able to bombard those who would not consider themselves to be part of the tobacco trade but would, for example, think of themselves as general retail sellers.
We need to draw a distinction between, for example, the specialist tobacconist and the part-time worker in the supermarket. Numbers working in the retail sector are increasing and many of those who work in supermarkets are young people, so to allow tobacco companies this exemption would leave them with a huge loophole. And we know from 50 years' experience how tobacco companies behave. They exploit even the smallest opportunity to target the young. I have a cutting from Marketing Magazine, dated as recently as 24th January, which says,
"Some of the world's biggest tobacco companies are taking legal advice in an attempt to exploit potential loopholes in international efforts to restrict cigarette advertising and sponsorship. Tobacco industry sources say manufacturers are analysing proposed legislation around the world to see how they can delay its implementation or circumvent its provisions by running alternative promotional activity".
So there needs to be a line drawn between those who obviously need to receive communications from the tobacco companies and those for whom it is not a necessary part of their job. My amendment distinguishes between those who are responsible for taking decisions on behalf of the business about the purchase of tobacco products—the buyers and those above them in the management chain—and those who would not describe themselves as being in the tobacco trade at all, and quite clearly are not, but might find themselves being so regarded by the tobacco companies.
Amendment No. 38, which is grouped with the first two, seeks to narrow the exemption in Clause 9(3) in a similar way to the way in which I have sought to clarify

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Clause 4( 1)(a). Under Clause 9(3), those who give away a product or a coupon for the purposes of the tobacco trade to persons engaged in any capacity in that trade (even if they are also engaged in another trade) are exempt from the provisions of the Bill. The purpose of this clause is to ban any free distribution whose purpose or effect is to promote a tobacco product. The exemption has been provided so as to ensure that tobacco companies who, in the course of normal business, wish to market their products are able to do so.
There is, however, a danger in the current drafting of the Bill that tobacco companies could use that exemption to promote tobacco products through free distributions or other enticements to anyone involved in selling tobacco products. I do not dispute that promoting products is a bona fide activity. But we need to make clear how far we want that to reach and the arguments which apply to advertising communications apply equally here. That is why I propose that we amend Clause 9 to make the exemption specific to those who, in the course of their business, are responsible for making purchases of tobacco products and their managers. I beg to move.
11.45 a.m.
Lord Skelmersdale: My Lords, I appreciate the remarks made by the noble Lord, Lord Faulkner, in connection with this amendment. In previous stages of the Bill we did not debate what is meant by "people engaged in the trade".
I am sure that the noble Lord, Lord Clement-Jones, will repeat his oft-used phrase, "It has its natural meaning". Its natural meaning, to me, means that a person working in a shop or supermarket is not engaged in the tobacco trade. It is quite right that the noble Lord, Lord Faulkner, should seek to make that absolutely clear, which he does in these amendments. I shall be extremely interested to hear what both the noble Lord, Lord Clement-Jones, and the Minister say about this group of amendments, which I applaud.
Lord Geddes: My Lords, with apologies to the noble Lord. Lord Faulkner, I intervene to ask guidance from the House, having been "barred"—if I can put it that way—from speaking on the previous amendment.
As I understand it, anyone who is not a proposer of an amendment, is not the noble Lord, Lord Clement-Jones, whose Bill it is, and is not a Minister, will need to intervene between the comments of the Minister and the noble Lord, Lord Clement-Jones. Either that or he has to intervene before the Minister speaks. If that is so, then it is impossible to make any comment, other than as the proposer of the amendment, on what either the Minister or the noble Lord, Lord Clement-Jones, said. I find that curious. But if those are the rules of the House then I shall abide by them. I should like guidance on that point.
Lord Hunt of Kings Heath: My Lords, I am grateful to the noble Lord for his intervention. Standing Orders say that only the mover of an amendment or the Peer in charge of the Bill speaks after the Minister on Report,
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except for short questions of elucidation to the Minister or, where the Minister speaks early to assist the House, in debate. Standing Orders also go on to say that arguments fully deployed in a Committee of the Whole House should not be repeated at length on Report.
Lord Peston: My Lords, that is most helpful.
Lord Lucas: My Lords, the noble Lord, Lord Peston, would doubtless say what I want to say rather better, or perhaps not.
I quite agree with what is being said. We have a forum coming up on this point, which is a review of the procedures of this House. If we are going to deal with Bills much more in the Moses Room then we need a Report stage where we can debate things and make comments when we know what the Minister thinks about what is being said. I find it to be a real problem with Bills. On my amendments I shall speak at length, perhaps half an hour, whereas if I were able to ask the Minister a question I might be able to take half a minute. It is a time-consuming process and I quite understand my noble friend's frustration.
Lord Peston: My Lords, I was not going to comment on that but on the amendment, which may fill people with great horror. However, 1 must say to the noble Lord, Lord Lucas, that, as someone devoted to this House, I am a firm believer in sticking both to our precise rules and to our conventions. In particular. I draw the noble Lord's attention to remarks in the Companion regarding the length of speeches. But his approach to the House is up to him.
I support my noble friend Lord Faulkner and, being an extremely naive person, thank him for one remark that he made. I have been approaching the Bill purely at its level; in other words, taking it seriously. But my noble friend reminded us that the people that we are dealing with—I hold no one in this country in lower esteem than the people in the tobacco industry and those who associate with them, as noble Lords are aware will seek to undermine everything that we seek to do here. I hope that that colours all noble Lords' contributions to the amendments. Noble Lords should ask themselves in all cases, "Should we be absolutely certain that the one thing that we do not do is give them any opportunity to undermine what we are seeking to achieve in the Bill?" So I particularly want to thank my noble friend for introducing that thought under the heading of this amendment. But I must say that I think that it applies to a great many of the other amendments to the Bill.
I take it for granted that we are bona fide people. I wish that the people out there for whom we are legislating were equally so.
The Earl of Liverpool: My Lords, my Amendment No. 40 has been grouped with the amendment moved by the noble Lord, Lord Faulkner. I shall therefore speak to it now, although it relates to a different issue from the ones that he raised.

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I would not have tabled the amendment were it not for my concern about remarks made during consideration of the Bill regarding private hospitality. I really cannot believe that it is being suggested that it would be an offence for a tobacco supplier to offer his guests cigarettes or cigars after a meal but it would not an offence if the offer was made by a drinks company. The implication would be that the tobacco supplier for the purpose or effect by so doing was promoting a product. That is ridiculous because we are talking about hospitality on a private occasion. None the less, from what was said in debate in Committee and in another place in the previous Parliament it seems that that is what is intended by the supporters of the Bill.
I should like to suggest that we must not forget that the tobacco industry is an industry going about its legal and lawful business, and, incidentally, generating in excess of £7 billion per annum to the Exchequer. It would be extraordinary for it to be discriminated against in this way. Hence I make no apology for this amendment. It would not be called for if that was not the opinion of the promoter of the Bill.
In Committee, the principal discussion on the offering of tobacco products at private hospitality occasions took place in the context of Clause 10—sponsorship agreements. I believe that it would be more properly dealt with under Clause 9; hence the amendment in my name. I hope that by speaking to the amendment I shall receive an assurance from the noble Lord, Lord Clement-Jones, that it is not necessary because an offence would not be committed in the circumstances I have described. If he is able to give that assurance it will surely be proof that the amendment is fully justified.
Lord Campbell of Alloway: My Lords, the noble Lord, Lord Peston, said that the tobacco companies would do anything to undermine the Bill. In fact the position is, whether that be true or not, that the Bill undermines itself if it is drawn up in a manner which is not proportionate to the object—to protect public health—or if it is in restraint of trade, as contrary to the European treaty. So that, far from looking at it in the way in which, with respect, the noble Lord was looking at it, I merely intervene—as a result certainly of the International Transport case in the Court of Appeal, judgment of which was delivered on 26th of last month—to point out that there is a strongly arguable case on either score if the Bill undermines itself on either of those accounts. One must look at the Bill very carefully to try to ensure that it is not disproportionate.
The Earl of Erroll: My Lords, I rise briefly to support the noble Earl, Lord Liverpool. I spoke on this issue in Committee, so I heartily support the amendment. It is quite a ridiculous state of affairs that one cannot do in one tent what is being done quite legally next door merely because one happens to be a tobacco company.
Lord Hunt of Kings Heath: My Lords, the noble Lord, Lord Campbell of Alloway, is quite right in his
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comments that the terms of the Bill need to be proportionate. We shall in due course come on to matters that the noble Lord addresses in a later amendment.
Having listened to my noble friend Lord Faulkner, I believe that he helps the Bill to be more proportionate by being much more specific as to what is meant by the term "the tobacco trade". It is worth stating that the purpose of Clause 4—and indeed of Clause 9—is to ensure that we get the right balance; that legitimate business is allowed to continue, but that the promotion and advertising of tobacco products is restricted. In that context, the wording put forward by my noble friend allows us to get that balance more nearly right. Under the proposed new wording it would still, for instance, be possible for trade magazines to be distributed to targeted individuals—namely, those responsible for making decisions on purchasing tobacco products as well as their managers but it would ensure that trade magazines do not reach those who, say, work in supermarket kiosks and so on.
The same point arises in Clause 9. Its purpose is to ensure that legitimate business is allowed to continue, but that the promotion and advertising of tobacco products is restricted. From the Government's point of view, I ask the noble Lord, Lord Clement-Jones, to be sympathetic to the amendments tabled by my noble friend.
I turn to the amendment of the noble Earl, Lord Liverpool. I agree with him that it is perhaps somewhat surprising that the amendment has been grouped in this way as it relates to a rather different issue. But I hope that I can reassure the noble Earl on the matter. Clause 9(3) covers the giving away of products and coupons to the trade. We are at the moment discussing the amendment of my noble friend Lord Faulkner to narrow this exemption to what he considers to be acceptable. When we are considering free distribution, we need to be clear that we are looking at this on the basis of whether or not it has the purpose or effect of promoting a tobacco product.
I do not consider that the giving away of cigarettes or cigars at the end of a meal necessarily constitutes an act whose purpose or effect is to promote a tobacco product. It really depends on how and why it was done. As the Minister for Public Health said in the other place during debates on the earlier Bill:
"The hon. Member … referred to the handing out of cigars at the end of a meal or as part of an entertainment. We want to stop the giving away of products or coupons for the purpose of promoting a tobacco product. We want to stop free gifts being handed out for the purpose of promoting tobacco products and encouraging people to buy them. Let us suppose that such a strategy includes making a big fuss about a particular cigar or cigarette; mention is made of how wonderful they are and details are given about where such products can be obtained … That is a promotion strategy. However, if cigars are handed out at the end of a meal to those who want to smoke them, that process is not about the promotion or sale of tobacco products".—[Official Report. Commons Standing Committee A, 6/2/01; col. 107.]
I hope that has made the Government's position clear to the noble Earl; I think that that meets his concerns.

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Noon.
Lord Clement-Jones: My Lords, the noble Lord, Lord Campbell of Alloway, was right to remind us that of course we need to consider the proportionality of the Bill—whether it is proportional in achieving its aims. We have been conscious of the arguments in Committee, but we need to remind ourselves of the Bill's purpose. Its purpose is to save lives lost through young people, in particular, taking up smoking. The terms of the Bill are proportionate; that will become clear during today's proceedings.
The noble Lord, Lord Skelmersdale, may be surprised to hear that I agree with him that on occasion it is appropriate to go beyond simply saying that: the natural meaning of a word in a Bill is how it should be interpreted. On occasion, when it serves the purpose of the Bill, we should define terms more closely. The noble Lord, Lord Faulkner of Worcester, has done us a service by tabling the amendments.
The issue entirely concerns determining who is a genuine, bona fide member of the tobacco trade and who is not. At one end of the scale is someone who briefly worked for a supermarket chain selling cigarettes. I doubt that many noble Lords would class such a person as being in the tobacco trade. At the other end is the chief executive of, let us say, British American Tobacco, who is definitely in the trade. In between is a huge grey area that it is necessary to define if we are to give special privileges to people who are part of the trade. The point of giving a trade exemption in the Bill is that advertising to the trade is intended to influence shopkeepers over which products to sell, not which to smoke. Why, then, should everyone who works in a supermarket be targeted, when 99 per cent of them have no control over the products bought by the store?
That is why I urged noble Lords to support the amendments tabled by the noble Lord, Lord Faulkner. The amendments get the definition pretty much right. They would eliminate someone with a Saturday job in Tesco, but not, for example, Tesco's buyer of cigarettes or boss. I therefore agree with both the noble Lord, Lord Faulkner, and the Minister that the amendments should be accepted. Not to do so risks leaving a large loophole, potentially leaving a large proportion of the population—more or less everyone who works in the supermarket sector—free to be targeted by the tobacco industry in its advertising supposedly aimed at the tobacco trade.
Turning to Amendment No. 40, I must confess that I have had cause to reflect since Committee entirely as a result of the amendments tabled then by the noble Earl, Lord Liverpool. The key issue is whether tobacco companies can distribute their products—or those of their competitors— to clients, members of staff or whoever, if they are doing so as part of some form of corporate hospitality.
Having carefully considered the Bill's provisions, I must agree that, for example, an Imperial Tobacco box at Wimbledon does not constitute a sponsorship agreement under the terms of the Bill. It is a different sort of commercial transaction. Imperial Tobacco
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would buy the use of a tent or box from the organisers of the event. That is different from sponsoring an event yourself. In addition, if the box is in the corporate name of the manufacturer—Imperial or Gallaher, for example—rather than the brand name of cigarettes, it cannot be said that the intention or effect of the commercial transaction is to promote a tobacco product. Rather, it is likely to be in order to further contacts with suppliers, clients or policy-makers, such as ourselves. Such activity is not intended to he caught by the Bill, and I do not believe that it will.
The difficulty comes if, in the course of that event, tobacco products are distributed free—for example, by the passing round of cigars at the end of a meal. Under Clause 9, it may appear at first glance that such distributions are prohibited. However, generally, as the Minister made clear, the purpose of such distribution of cigars is not to promote a product. Rather, they are provided for the same reason as are the rest of the evening's events: to try to influence opinion, reward successful staff, and so on. As such, I am confident that such activity is not covered by the Bill.
Lord Faulkner of Worcester: My Lords, I am most grateful to the sponsor of the Bill for agreeing to accept my amendments, and for the support of the noble Lord, Lord Skelmersdale, my noble friend the Minister and the noble Lord, Lord Penton.
On Question, amendment agreed to.
Lord Skelmersdale Lord Skelmersdale: moved Amendment No. 6:
Page 2, line 17, leave out "particular"
The noble Lord said: My Lords, in introducing the amendment I should like to tell the noble Lord, Lord Clement-Jones, that I am never surprised when he agrees with me; I am surprised only when he does not. The noble Lord and Ministers both here and in another place have repeatedly said that they have no intention of making it illegal to sell tobacco and tobacco products and have no desire to put anyone out of business. Unfortunately, by one provision of the Bill, I am sure that they will.
I have declared my interest in the mail order trade many times before. Mail order companies flourish because they send out catalogues describing their wares—what they are, how to order them and how much they cost. Such catalogues are sent to all recent customers and naturally generate a certain amount of business. As noble Lords will know, one needs a certain critical mass to succeed in business. It was the lack of that that put so many e-commerce businesses out of business. No mail order business can survive simply by relying on customers making contact with the trader. The trader needs to be able to make contact with his customers and to be able to use material promoting his goods or services in general terms, not at their particular request each and every time that they want a catalogue or product.
In the case of tobacco products, a code for such communication currently applies. In order to he able to hear from the supplier, the individual has formally

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to register the fact that he wishes to hear from the supplier and provide his personal details, such as name, address, age and status as an existing smoker. There is no doubt that Clause 4(1)(b) constitutes a severe restriction on freedom of expression and freedom to receive and impart information. Pace my noble friend Lord Campbell of Alloway, it is notable that those are rights under Article 10 of the European Convention on Human Rights.
Under the present code for communication with smokers, every person, having registered their details as I described, is free to change his mind and have his name removed from any database. That right is also provided under the Data Protection Act 1990. The opinion survey that the government have previously cited is not proof of proportionality for the restriction of freedoms that Clause 4(1)(b) imposes. Like me, the Direct Mail Association, with which I have been in contact, approves of the general purpose of the Bill, but it tells me that that paragraph amounts to an excessive and disproportionate restriction of the individual's right to respect for his correspondence.
There is a way out of that conundrum and the amendment is a probing amendment, rather than one that I intend to press to a Division. Ministers have the opportunity to make the mail order code to which I have referred a statutory provision, which would sort out the problem once and for all. With that thought in mind, I beg to move.
Lord Filkin: My Lords, this is a debate about reasonableness and proportionality that will be familiar to those of us who debated an amendment tabled by the noble Lord, Lord Naseby, in Committee. The amendment refers to Clause 4(1)(b), which sets out an exception to the general prohibition of advertising. That exception is made because it was thought unreasonable not to allow a person who had requested an advertisement or information about cigarette products to receive it. Although it may be surprising, the Bill allows that to take place. It does not, however, allow the repetitious use of that request into the future.
The noble Lord, Lord Skelmersdale, is right to say that it is a restriction. One could—but will not—debate whether it is severe. The Government's belief that it is a necessary restriction goes back to debates and discussions we have had during the rather lengthy passage of the Bill. It is necessary because, in the nature of their commercial transactions, businesses, if inhibited in one way from promoting their product, will naturally be inclined to seek every other possible means of doing so. They would be vigorous in using direct mail shots were they not able to do normal commercial advertising. It is necessary, if the purpose of the Bill is to be achieved, that that is inhibited in the reasonable way set out by the Bill.
This product makes people ill and shortens life for a large number of people who consume it. It is addictive and hard to give up. It is inevitable, if the amendment were to be made, that cigarette companies would, in the nature of their business, work hard to use direct
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mailing in a way that we have not seen before to try to encourage people to take up smoking or continue to smoke. For those reasons, the Government believe that we should not agree to the amendment.
For the light amusement of the House, I draw Members' attention to a report in The Times today. The chairman of British American Tobacco is on record as saying that people are better off avoiding tobacco. He goes on—generously, I think, if he is reported correctly—to say:
"I think [politicians] have a perfect right to try to control the level of smoking, from a health ministry kind of approach".
It is not particularly humane, but it is of some light amusement for us to get support from that quarter.
Lord Clement-Jones: My Lords, I am afraid that, on this occasion, I shall break my habit—not quite of a lifetime—and disagree with the noble Lord, Lord Skelmersdale, despite his extraordinary optimism. I must ask the House to reject the amendment. I appreciate the noble Lord's motives for proposing the amendment and his references to the mail order code. No doubt, there are all sorts of voluntary codes that might be brought into effect. However, the amendment risks leading, unexpectedly, to truly awful consequences for the Bill.
With the amendment, we are into coach-and-horses territory, and they are galloping away at this moment. The amendment would make it possible for a tobacco company to create or buy a database and continue to operate direct mail schemes as if the Bill had never come into force. If a smoker or non-smoker had, at any time in their life, requested any information about tobacco products, they could be inundated with direct mail from tobacco companies. That is far from the intention of the exception. The intention is too ensure that, if a customer requested information from a tobacco company—about the additives used in their products, for example he or she would get a response. That is the aim of the subsection; it is not to give blanket exemption to direct mail activities.
We have heard on several occasions that advertising bans work to drive down consumption only if they are comprehensive. The amendment would destroy any hope of the legislation being comprehensive. I urge the noble Lord, in the strongest terms, to withdraw it.
Lord Skelmersdale: My Lords, the noble Lord, Lord Filkin, says that it is a restriction and that it is intended to be. Equally, he and other Ministers have said that it is not anyone's intention to put people out of business. There is an obvious conflict there. The noble Lord, Lord Clement-Jones, says that the amendment would drive a coach and horses through the Bill. It is not intended so to do. The amendment would ensure that legitimate forms of trade could continue. I shall certainly look for another way of achieving that object.
If tobacco companies were to set up their own mail order shop—for want of a better word—and advertise their catalogue, it would be illegal under the Bill. So there is not quite the danger that the noble Lord, Lord Clement-Jones, referred to. I did not intend the debate

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on the amendment to be particularly vigorous; it is an inquiring amendment. I have inquired, and I shall study the results of my inquiry. It would not surprise me if I felt the need to come back next week. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
12.15 p.m.
Lord Luke Lord Luke: moved Amendment No. 7:
Page 2, leave out line 20 and insert
"of which the total number of publications distributed in the United Kingdom (or any part of it) is less than the total number of publications distributed outside the United Kingdom,"
The noble Lord said: My Lords, I must first state my interest. I enjoy very much the odd cigar.
In Committee, the Minister said that it was not the Government's intent to hinder the importation of foreign publications that carried tobacco advertisements so long as their principal market was outside the United Kingdom. Later, in response to a question from my noble friend Lord Howe, he said that he had not provided a specific definition of "principal market" because it would vary according to each circumstance.
He quoted the example of a publication with 40 per cent of its sales in the United Kingdom and the remaining 60 per cent spread between half a dozen other countries, suggesting that the UK might well be said to be the principal market, even though registering considerably less than half of the total sales. The Minister did not, however, draw any conclusions, not wishing, I believe, to define terms too tightly, thereby risking creating loopholes that could be exploited so that we should not be able to bring to book the perpetrators of any offence.
If I have it right, that is surprising. How will overseas publishers be able to determine whether any of their publications containing tobacco advertisements may be distributed in the UK? Is the Minister suggesting that they should simply wait until they are accused of committing an offence? In that case, it would be for the courts to decide. Is that an acceptable scenario? It is not, and it may also be against the spirit of the World Trade Organisation. The Minister should either accept the amendment or, together with the noble Lord, Lord Clement-Jones, come forward with an alternative that provides the essential element of certainty for foreign publishers and, of course, the distributors of their publications in this country.
It is for Parliament to define criminal offences and the actions that may lead up to them. The question of whether a publication has the UK as its principal market should not be left for pragmatic interpretation at the time, as the noble Lord, Lord Clement-Jones, said in Committee. That is neither proportionate nor balanced. I beg to move.
Lord Palmer: My Lords, I feel terribly guilty. This is the first time 1 have had the chance to appear in person on the Bill, such are the logistic problems of living: in Scotland and parts of the Bill being taken on Friday.
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Many of your Lordships know that I think that tobacco smoking is the most revolting habit there is, albeit that I indulge myself.
I support the amendment. As the noble Lord, Lord Luke, said, the fundamental basis of the amendment is that whether a publication has the UK as its principal market should not be a matter left, as the noble Lord, Lord Clement-Jones, said in Committee, for pragmatic interpretation at the time.
Baroness O'Cathain: My Lords, I rise to ask for clarification of the word "publication" as it is used in the amendment. Surely it would have been better to refer to "copies of issues" of a publication, because the word "publication" is far too wide a term.
Lord Lucas: My Lords, even though the amendment is well meant, I hope that the noble Lord, Lord Clement-Jones, will not accept it. If I was in the business of producing such a magazine, I would simply take a sufficient number of copies and leave them in a Paris railway station. By doing that I would have set aside the conditions of the amendment. The way that the provision is worded at the moment is pretty much perfect.
Lord Peston: My Lords, I should like to comment briefly before the principal Opposition spokesman speaks on this matter. On the face of it. it never occurred to me that this could be a problem. When I first saw the amendment I thought about all the different publications that I read and I could not rind a practical example of which I have any experience. I wonder whether the noble Lord, Lord Luke, has in mind a particular journal or publication to which we would all be extremely sensitive that could run foul of the Bill as it stands.
I have racked my brains to think of a relevant example, although I read only posh, intellectual stuff. None the less, I cannot think of a single case that could possibly arise in connection with the Bill.
Earl Howe: My Lords, the long and the short of the matter is that we simply do not know what the phrase means. I think that we do have a right to know exactly what it means.
Whenever it is suggested to the noble Lord, Lord Clement-Jones, that a term used in the Bill should be defined, he has a habit of resisting such suggestions on the grounds that it would risk creating legal loopholes. I would reply to that by saying that I do not wish to create legal loopholes in the Bill any more than does the noble Lord, but in this case, surely he has presented us with a false dichotomy.
There are only two possible meanings of the phrase, "principal market". The first is the meaning proposed in the amendment while the other is to say that a principal market is the largest single slice of a total market, even if that slice amounts to less than 50 per cent. If the Government and the noble Lord, Lord Clement-Jones, wish to guard against both possibilities then why cannot the Bill do just that? As

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my noble friend pointed out, it really will not do simply to say that it is a matter of pragmatic interpretation. Where does that statement leave magazine and newspaper publishers who want to understand exactly what the law is?
The Minister said that he did not think that the foreign owners of publications would be put off from allowing their publications into the UK simply because there is no rigid definition. While some foreign distributors might not be put off, I am not sure how many would be comfortable about taking a chance with regard to whether they were operating within the boundaries of UK law. For that reason, I applaud the spirit of my noble friend's amendment because I believe that we are now due for some clarification on this matter.
Lord Monson: My Lords, I had not intended to intervene on this amendment, but I am prompted to do so by the intervention of the noble Lord, Lord Peston, who told the House that he reads only intellectual publications. He will be able to confirm, therefore, my supposition that the Economist sells rather more copies in the United States than it does in this country. I do not suppose that it contains any tobacco advertisements, but I wonder how that publication would be treated, both under the terms of the amendment before us and by the Bill as it stands?
Lord Campbell of Alloway: My Lords, I support the amendment. It provides a means of clarifying the nature of a criminal offence. Surely there cannot be much objection to that.
Lord Hunt of Kings Heath: My Lords, this has been an interesting discussion. I shall start my response by saying that I believe that the Bill as currently drafted is a sensible provision which has been designed so that the importation of foreign publications will not be hindered, even though they may carry tobacco advertisements—so long as their principal market is outside the United Kingdom.
I suspect that the amendment before us is somewhat technically deficient since it could be taken to refer to the number of publications produced by a single publisher, rather than what I believe is intended, which is the number of copies of a single publication; a point made by the noble Baroness, Lady O'Cathain. However, I accept that it is still in the nature of a probing amendment.
The essential point here is that we do not want to inhibit the importation of foreign publications. It is perfectly understandable why the noble Lord, Lord Luke, wants to see as tight a definition as possible. But, as ever when we debate such matters, the problem always arises that the tighter the definition, the more that is excluded and the greater is the risk of loopholes and inconsistencies. As a result, the more likely it is that the provision will not be able to meet all the possible circumstances.
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I know that the noble Lord, Lord Clement-Jones, has often expressed a fondness for lists in legislation, but I am hoping that on this occasion he will not be tempted down that route. Notwithstanding the fears raised by a number of noble Lords, I think that in the vast majority of cases, the principal market will be pretty clear and that trading standards officers will, as ever, take a common-sense approach to these matters. It is always possible to point out potential anomalies, but I believe that that serves only to reinforce the strength of the current wording, which seeks to strike a sensible balance.
The noble Lord, Lord Luke, referred to comments that I made in Committee. I agree that it is helpful to look at these matters on a case-by-case basis. I also agree that if one were looking at a situation where there were two markets, in which one had a 65 per cent share while the other had a 35 per cent share, then the noble Lord's amendment would have some merit. However, what is the position with regard to a magazine which has four markets, the UK share of which is around 40 per cent while the other three countries have 25 per cent, 25 per cent and 10 per cent respectively? This example was cited when we debate the matter in Committee. In that case it would be reasonable to say that the UK is the principal market as it has the highest individual market share. But then it would not have passed the test raised by the noble Lord, Lord Palmer.
I believe that, within the general intent not to inhibit the importation of foreign publications, the current wording probably provides a sensible balance, with trading standards officers themselves expected to take a common-sense approach, and ultimately allowing the courts to decide on the basis of the evidence before them.
Lord Clement-Jones: My Lords, I thank the noble Lord, Lord Luke, together with the noble Lord, Lord Palmer, for putting forward the amendment. It continues some of the discussions that we held in Committee.
The issue of the principal market for a publication is important and is not a matter that easily can be captured in a few words in statute. In my view, it is best that this should be decided on a case-by-case basis. The reason for that is, as the Minister has just pointed out, that it would depend substantially on the circumstances of each case. A uniform definition will not lead to sensible outcomes in every case.
For example, under the definition proposed by the noble Lord, Lord Luke, a magazine which sells 49 per cent of its copies in the UK while the other 51 per cent is spread through another 100 countries would not be deemed to have the UK as its principal market. That strikes me as being rather odd. In such a—admittedly hypothetical—case, it seems quite clear that the principal market is, in fact, the United Kingdom. We could avoid the anomaly by phrasing the definition in a slightly different way, perhaps by altering the phrasing of the definition or by describing the

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principal market as the country in which the largest number of copies are sold. Having done that, however, there could well be other ways in which a magazine could have a principal market that might escape. I have a feeling that it would throw up yet more problems.
In essence, I feel that to try to define the term too closely risks creating unnecessary loopholes which will be exploited. Conversely, I believe that by allowing the phrase to bear its natural meaning, we will avoid the problems that I have set out. In all the examples which have been cited by noble Lords, both today and in Committee, I see no problem in determining the principal market according to common sense.
In Committee, the noble Earl, Lord Howe, raised the case of Hello! magazine. While it is produced by a Spanish publisher, there is a UK edition which is produced in the UK and written in English, of which the overwhelming majority of copies are sold in the UK. It features interviews with UK celebrities and aristocracy who are not newsworthy in any other country and it carries advertising for brands which are available only in the UK. Its principal market is the UK.
On the other hand, the Spanish version of the magazine, called Hola! and not Hello!, does not have its principal market in the UK. The two editions already carry different advertising, so having to remove tobacco advertising from one edition and not the other will cause no problems.
I believe that to be the case with the Economist. The US edition is separate from the UK and European editions. I do not believe that advertisements for our major companies and banks are carried in the US edition of the Economist.
To further emphasise this point, my information is that no publication produced in the EU has more than 5 per cent of its circulation outside its country of origin. It is strange but true. Those are the facts. The problems described by noble Lords who support the amendment will not arise in practice.
However, substantial problems are likely to arise out of trying to over-define something which bears a sensible, natural meaning. It is likely that we will inadvertently create a loophole—no matter how hard we try not to—and it is for that reason that I oppose the amendment.
12.30 p.m.
Lord Luke: My Lords, I thank all noble Lords who have spoken to the amendment. I did not anticipate that it would provoke such an interesting debate. I do not altogether agree with either the Minister's answer or that of the noble Lord. Lord Clement-Jones. However, at this moment, I have no option but to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 8 not moved.]
Lord Faulkner of Worcester Lord Faulkner of Worcester moved Amendment No. 8A:
Page 2, line 21, at end insert—
"( I A) A person falls within this subsection if—

(a) he is responsible for making decisions on behalf of the business referred to in subsection (I)(a)(i) about the purchase of tobacco products which are to be sold in the course of that business,

(b) he occupies a position in the management structure of the business in question which is equivalent in seniority to, or of greater seniority than, that of any such person, or

(c) he is the person who, or is a member of the board of directors or other body of persons (however described) which, is responsible for the conduct of the business in question."

On Question, amendment agreed to.
Lord Skelmersdale Lord Skelmersdale moved Amendment No. 9:
Page 2, line 24, leave out "or on a website"
The noble Lord said: My Lords, given the speed at which we are progressing, it may he helpful to the House if I amalgamate Amendments Nos. 9. 10. I I and 35 unless there is any objection.
Noble Lords: Hear, hear!
Lord Skelmersdale: My Lords, good. In that case. I shall. The first amendment is a good old-fashioned opposition amendment to leave out "may" and insert "shall". I do not need to say very much about it except to express the hope that the noble Lord, Lord Clement-Jones—or perhaps, on this occasion, more appropriately the Minister in his understanding of the Bill really does intend to make regulations. If he does not make regulations as mentioned in Clause 4(2), offences will be committed by any advertising for tobacco products in places where tobacco products are offered for sale. We know very well that that is not the Government's intention.
My understanding from what was said in Committee is that the Government do not plan rejection of current advertising for and displays of tobacco products at points of sale. None the less in order to legitimise that advertising, they will have to make regulations. It is most important that those regulations provide for the meaning of "place", and hence the replacement of "may" with "shall".
It is also important that the meaning of "place" embraces places relevant to publication by electronic means—not only websites, which I shall come to in a minute, but also, as I have said before, mail order catalogues. I took great note of what was said on my previous amendment on the subject of mail order catalogues, but I still believe that a reputable business operating by mail order should continue to be allowed to exist.
Of course these other places are quite separate and distinct from such places as the point of sale in a retail outlet. I do not even claim that "place" is the most appropriate word. I am looking hard at the noble Lord, Lord Clement-Jones, because I am sure he

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would use something like the word "generic" to embrace all these relevant places. However, "place" is the term that he has used in his Bill.
Given the good temper that we have had so far today, the noble Lord may not find my amendments to be perfect in every respect but, if he does not, I trust that he will be prepared to come forward with amendments such as these on Third Reading.
I said that I would amalgamate Amendments Nos. 11 and 35 with this amendment, and another point occurs to me in regard to those two amendments. Where the Bill refers to "websites", it does not always mean "websites"—or I do not think it ought to mean "websites", let me put it like that.
I am sorry that my noble friend Lady O'Cathain is no longer in her place because she shares with me an interest in the subject of the mail. Indeed, she recently introduced in your Lordships' House a debate on the subject of Consignia, to which many noble Lords contributed. I reminded her during my speech in that debate that one of her pet hates is junk mail. What about junk faxes? Will they be legal? I beg to move.
Lord Borrie: My Lords, I congratulate the noble Lord, Lord Skelmersdale, on Amendment No. 10. He is right, it is a classic opposition amendment. In those happy days when I sat on the Opposition Front Bench and I was desperate to make some contribution, if the Bill said "may" I said "shall", and if the Bill said "shall" I said "may". At least that meant I was doing my job.
As I understand it, in this case the proponents of the Bill want to be in a position to deal with the problems put forward by the noble Lord, Lord Skelmersdale. Whether they will deal with them in a way he likes is another matter. If I remember rightly what former Conservative Ministers used to tell me, "may" was there to enable them to do what they wanted to do in other words, it somehow subsumed "shall".
I rise simply to recall happy days in the past and to congratulate the noble Lord.
Lord Lucas: My Lords, I support my noble friend and the principle of Amendment No. 11 and other amendments in this recently acquired group, which is that a website is a place. If we incorporate in the Bill a definition which states "in a place or on a website", and imply that "place" does not include "website", we could be letting ourselves in for all kinds of dangerous quibbles in future as to what is a "place". If "place" does not include "website", what else does it not include? Does it not include, as my noble friend said, a fax or some other form of communication? Does it or does it not include something you can access through Teletext? If a website is not a place, why is a page on Teletext a place?
It would be much better and more comprehensive, as has been said elsewhere, if we give "place" its natural meaning, allow it to have its natural meaning and point out that a website is included in the definition of "place", as may be other forms of
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communication. If we start thinking of a more limited definition of "place" we will be in danger of allowing tobacco companies to find things which are not places in the sense of the Bill because, by analogy, if a website is not a place then they are not places.
The amendment—although perhaps using other words—would usefully tighten up the Bill. But certainly at the moment there is an opportunity which I, as a tobacco company, would hope to find several ways of exploiting quite fast.
Lord Filkin: My Lords, I thank all those who have spoken. There have been some good attempts to ensure that we do not cause problems. I hope I can give some crumbs of comfort on how we might proceed to issue regulations if the Bill were to be enacted.
The Government do not support this amendment because Clause 4(2) gives Ministers the power to make regulations on advertising tobacco products where offered for sale. It is the sibling of Clause 8(1) which gives a similar power in relation to the display of tobacco products where they are offered for sale. Without definition, "place" takes its usual meaning as a physical location.
We discussed websites in detail in Committee and in particular the fact that they do not have a physical location. Both Clause 8(1) and Clause 4(2) give the power to treat websites in the same manner as physical places. This is necessary so that e-commerce is treated neither more or less favourably than other means of trade. The Government do not support a ban on the selling of tobacco products by the internet, provided that all such transactions comply with the law on the payment of duty.
Amendment No. 10 relates closely to Clause 4(2). We believe there is need to differentiate between a place understood as a physical location and a website, for reasons previously referred to. This is a changing area of marketing and it would be inappropriate to second-guess what will be needed in future in terms of regulation. The provision, as the Bill is drafted, flags up a need to consider whether the meaning of "place" should be included. We do not see the need to make this a prerequisite and therefore do not support the amendment.
Turning to the further amendment of the noble Lord, Lord Skelmersdale, Clause 4(3) provides for regulations on point-of-sale advertising, which may provide for the meaning of "place". The amendment seeks to ensure that any regulations would include mail order catalogues and offers for sale by electronic means. We do not think it is necessary for the Bill to specify what may be contained in the detail of regulations; nor do we consider it appropriate to extend unsolicited point-of-sale advertising to mail order catalogues and offers for sale by any electronic means.
There is already provision under Clause 4(1) for limited point-of-sale advertising. Any person who wishes to receive information in a catalogue either by post or by electronic communication may contact the business marketing the products, and anything sent in

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response will be covered by the exception in Clause 4(1)(b). We do not believe it would be right to allow more general exception for catalogues and electronic means.
Finally, Amendment No. 35 is not supported by the Government. Clause 8(1) gives Ministers the powers to make regulations concerning the display of tobacco products where they are offered for sale. It is the sibling of Clause 4(2) which gives similar power regarding the advertising of tobacco products where offered for sale. We discussed earlier at some length the distinction between an advertisement and a display in relation to shops. Some objects will clearly be advertisements and not displays such as the ubiquitous "open" and "closed" signs hanging in a shop door with a brand of a tobacco product. Other objects will clearly be either a display or an advertisement, such as rows of cigarette products in a shop gantry. That is why we need separate provisions for advertisements and displays.
Clauses 4(2) and 8(1) give the power to treat websites in the same manner as physical places. This is necessary so that e-commerce is treated neither more nor less favourably than other forms of trade. The normal meaning of display includes "exhibit", "exposed to view" or "show" and so a picture on a web page of tobacco products for sale over the Internet could be said to amount to a display of these products on a website. It is appropriate that there are powers to regulate such displays, if necessary. We have already said that Ministers have no immediate plans to make regulations under the powers contained in Clause 8, but a power is necessary to prevent potential future abuse.
The noble Lord, Lord Skelmersdale, does not like the word "website" used in this Bill, but I believe that it is appropriate and that there is no need to define it further than the normal commonsense term, as it is now understood. Indeed, any attempt at definition would run the risk of being technologically obsolescent the moment it reached the statute book.
As to whether regulations might touch on some of these issues, there clearly will be regulations as regards mail. With regard to junk faxes, the House will be relieved to know that already these cannot be sent without the express permission of the recipient under the 1999 telecoms data protection and privacy regulations, implementing the telecoms data protection directive.
12.45 p.m.
Lord Clement-Jones: My Lords, the Minister has given a very full reply on these amendments and I agree with him wholeheartedly. On the issue of regulations, the Minister has told us that they will not be made in the short term. If they were, I believe that Amendment No. 11 would pre-judge the outcome of consultations to a degree that would not be helpful. It may be that discussions and arguments take place as consultations proceed, and to that degree the amendments might prejudge any aoutcome.
The issue is clearly whether or not "place" should be a compendium word used in the Bill to cover both physical and non-physical aspects. The essence of the
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clause as it stands is that "place" refers to physical matters. That is why the word "website" is introduced specifically into the clause. I discussed earlier whether or not "website" should be used specifically rather than the portmanteau words "by electronic means", the phrase used in the earlier set of amendments. We believe that websites are suis generis literally: they are a separate matter and should be dealt with quite specifically rather than simply as part of general information services. Specific provisions are appropriate for them, as for e-mails or direct mail.
I do not believe that these amendments add to the clarity of the Bill and I urge your Lordships not to accept them.
12.45 p.m.
Lord Skelmersdale: My Lords, the noble Lord, Lord Filkin, offered me what he described as a ray of hope. That was immediately dashed by the noble Lord, Lord Clement-Jones. One thing I found very interesting was the Minister's comment that junk faxes are already illegal under the telecoms Acts. How many prosecutions have taken place? Has there been a single one? How do you set about pursuing one? I get far too many junk faxes. I complain about them far more than about junk mail, because they actually cost me money; they use the roll in my fax machine and the roll runs out just at the time when there is a fax that 1 really want. I am sure that other noble Lords have shared t his experience. My noble friend hates junk mail. I find it sometimes to be a promotional or purchasing opportunity, but it costs me nothing but time to pick it up from the doormat and sling it into the trashcan.
I am interested in what has been said. Does the same, one wonders, apply to teletext messages on mobile phones? Those would most certainly constitute an advertising opportunity where these are of a junk nature. I give way to the noble Lord, Lord Filkin.
Lord Filkin: My Lords, I respond to the invitation to ensure that legislation, when passed, is enforced. This is a matter for the Office of the Information Commissioner. If the noble Lord will give us specific examples of junk faxes he has received recently, the Government will be delighted to seek to prevent the cost falling on him and draw them to the attention of the Office of the Information Commissioner. I invite the noble Lord not to hold his breath about too sudden a cessation.
Lord Skelmersdale: My Lords, so far as concerns this Government, especially having looked this morning at the front page of the Daily Telegraph. I shall not hold my breath on anything.
That said, there was no answer to my question about junk teletext messages which are another method of advertising. If I do not receive a somewhat speedier reply than the letters I have had recently from the Department of Health, it will be necessary to put down a somewhat substantive amendment at Third Reading, In the meantime, I beg leave to withdraw the amendment.
Lord Filkin: My Lords, before the noble Lord sits down, perhaps I may say that the position on mobile

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messages and teletexts is exactly the same. There is a law against them which does not appear at present to be automatically enforced. I note the point about the correspondence and the implied threat. We shall no doubt look to it.
Lord Skelmersdale: My Lords, since clearly the noble Lord has decided that I had not sat down I can respond. I am delighted to hear his response. It sounds as though my utterances about Third Reading and the preparation work entailed will be somewhat more limited than I threatened. I still beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 10 and 11 not moved.]
Clause 5 [Advertising: defences]:
Lord Clement-Jones Lord Clement-Jones moved Amendment No. 12:
Page 2, line 30, leave out from beginning to "an" and insert "A person does not commit"
The noble Lord said: My Lords, I cannot follow the procedural elegance which preceded the withdrawal of the previous amendment.
I wish to speak to the 30 amendments on the Marshalled List which bear my name and which I hope that the House will agree should be included on the face of the Bill. At Second Reading and in Committee, many noble Lords expressed concerns that the wording surrounding the burden of proof for some of the offences under the Bill was not quite right. The noble Lord, Lord Lucas, among others, expressed concern that the Bill risked creating an absolute offence and a conditional defence. The noble Lord believed that this was an excessively high hurdle for some of those, in particular printers and newsagents, who are involved in the supply chain for a tobacco advertisement. The Bill, rightly, places a duty of reasonable care on these people to ensure that they are not knowingly distributing a tobacco advertisement. These amendments are being laid in order to clarify exactly what this duty will consist of and I hope that they will go a long way towards easing some noble Lords' concerns.
The principle of the Bill is unaffected by these amendments. Anyone, at any point of the supply chain for tobacco advertisements, will still be committing an offence if they participate in the distribution of tobacco advertisements.
The lawyers present in the House today will be aware that in a criminal trial the prosecution has to establish guilt beyond reasonable doubt. That consists of proving the offence and negating any defence which is put forward. These amendments address the nature of the burden placed on the defendant and take account both of the debates at Second Reading and in Committee and the recent court judgment of R v Lambert heard recently in this place. They remove the need for defendants to "prove" that they were acting reasonably as on reflection it would be wrong to require a defendant to cross this threshold of proof. Instead, it places a duty on defendants to bring forward credible evidence in support of their defence.
If the evidence is sufficient to raise an issue on the matter then the prosecution must satisfy the court that the evidence brought forward is unacceptable beyond reasonable doubt.
The issue with these amendments is that they change the nature of the burden on the defendant from a legal or persuasive burden to an evidential burden. They must produce evidence but they do not have to prove anything. That is for the prosecution. For example, Clause 5(2) states:
"It is a defence for a person charged … to prove that he could not reasonably have foreseen that that would be the effect of the advertisement".
The wording would change to:
"A person does not commit an offence in connection with an advertisement … if he could not reasonably have foreseen that that would be the effect of the advertisement".
These amendments replicate similar wording in all areas of the Bill where the burden of proof is an issue.
Amendment No. 63A, which is a new clause to the Bill, will clarify each of the earlier amendments and make it clear that the court shall assume that the defence is satisfactory unless the prosecution can prove beyond reasonable doubt that it is not. This creates an evidential, rather than legal, burden on the defence and ensures that the legislation is on all fours with the European Convention on Human Rights. Having this additional clause is necessary. It leaves no doubt as to the meaning of the earlier amendments and is thus an essential part of the Bill.
Having had an excellent debate in Committee, and having considered the points made, I hope that these amendments go a long way towards satisfying those points and will be acceptable to the House
Lord Lucas: My Lords, I am delighted that the noble Lord is bringing forward these amendments. When he replies, I hope that he will feel able to enlarge slightly on their effect. Whatever time that takes, it will be a great deal less than the time I shall take on the subsequent group of amendments when arguing that the print and related industries should be allowed to continue their current trade practices.
In Committee, things were said, notably by the noble Lord, Lord Clement-Jones, which implied that the print industry would have to change its practices: that it would be necessary for the print industry to read everything it printed. The noble Lord was fairly fierce about that. That is not practical at present for the printing industry. If you are printing a magazine you probably receive it in electronic form about eight hours before it is due to hit the news stands. It goes straight on to the presses without anyone having anything to do with it. A press minder he is not legally qualified makes sure that the machine prints straight on the page. Once printed, it is automatically collated, bound and packaged. Nowhere in that process can one be sure that anyone will have a chance to see what is being printed.
If that process is delayed perhaps by a day—it occurred recently when the press minder noticed what he thought might be racist material—you are probably

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liable to recompense the publisher for 30 per cent of its sales if wrong. These are ephemeral issues. One has to be put on notice that it is a publication where care is necessary: that it is a publication where a tobacco advertisement has occurred before or which is likely to contain a tobacco advertisement.
McLaren's own publication, Racing Line, is entirely a tobacco advertisement. There is not a picture in it which does not contain a tobacco advertisement except one diagram of a race circuit which I cannot make into a cigarette! It is clear that anyone printing that magazine will have to take care. I do not think that there will be difficulty in printers accepting liability. But if, as printer, you are printing the Economist against that magazine's deadline, you cannot be expected to do anything.
I want to be sure that we are not enacting any provision which could result in some sort of practical "creep" whereby trading officers say, "No, you should be checking", and which would have enormous cost implications for an industry which is performing a service rather than executive creation or consideration of a tobacco advertisement. I understand that the amendments will address that problem in which case I and this House will have an easy time with the next group of amendments. I hope that the noble Lord, Lord Clement-Jones, will be able to help.
I thank the noble Lord for making these changes. As I understand them, they remove a lot of my concerns.
1 p.m.
Lord Hunt of Kings Heath: My Lords, I thank the noble Lord, Lord Clement-Jones, for bringing forward these amendments. I believe it is testimony to the spirit in which the Bill has been debated that, in the light of the discussion at Committee stage, particularly about the concerns expressed by the noble Lord, Lord Lucas, and others in relation to the offences created by the Bill and what was expected of a person charged in order for him to be able to rely on any of the defences provided, the 30 amendments put forward by the noble Lord go a long way to meet those concerns.
My understanding is that the key change arises here from the basis that in a criminal prosecution the prosecution has to establish the guilt of the individual beyond reasonable doubt. That is a very high standard of proof. The obligation means proving not only all the ingredients of the offence but also negating any defence that is put in issue. My understanding is that these amendments address the burden placed on the defendant arid what is required of him if he is to avoid conviction.
After due consideration, I believe that the noble Lord, Lord Clement-Jones, is right to consider that the wording presently in the Bill, with the requirement to prove an element of a defence, means that a defendant would be expected to establish that it is more likely than not that I he facts were as he alleges. If he fails to do so then he will be convicted.
On reflection, it would be wrong to require a defendant to cross that threshold in order to be acquitted. Indeed, we believe that it could well be inconsistent with the
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interpretation given by the courts to Article 6.2 of the European Convention on Human Rights, which requires that everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law. Our understanding is that the amendments therefore make clear that what is required of a defendant charged with an offence under the provisions of this Bill is to bring forward credible evidence to support his alleged defence. If the evidence is sufficient to raise an issue on the matter, then the prosecution has the burden of satisfying the court or jury on the matter beyond reasonable doubt in the ordinary way. I believe that this is a distinct improvement. I hope that it will reassure noble Lords. The Government would certainly support the amendments.
Lord Clement-Jones: My Lords, perhaps I may briefly sum up on these matters. I am not quite sure whether I am accepting my own amendments at this stage, but I believe I am. That is a slightly schizophrenic position to be in. In response to the noble Lord, Lord Lucas, clearly it is a little difficult simply to include a whole downloading of reasons why this provision is preferable to the previous one. His suspicions are entirely correct, however, that this measure is a considerable step forward in terms of the way that it would operate as regards a printer.
Perhaps I may try to elucidate that without bringing in the subject of the court case whose title I forget—which allows ministerial statements to be taken in evidence of the meaning of a Bill. That clearly does not apply to a Private Member's Bill, I am glad to say. The original clause said that,
"It is a defence for a person charged … to prove that he could not reasonably have foreseen that that would be the effect of the advertisement".
He would have to prove it. The burden of proof on the printer would obviously be quite high in those circumstances.
Under the proposed amendments that is different. A person does not commit an offence in connection with an advertisement if he could not reasonably have foreseen that that would be the effect of it. Basically, rather than proving something, the printer would simply adduce in evidence the steps that he had taken to make sure that he had discovered whether or riot there was an advertisement in the magazine. Proportionality and so forth would be prayed in aid in terms of the interpretation of the word "reasonable". It seems to me that that is a much less burdensome requirement.
It would be quite difficult to prove absolutely a proposition of reasonably foreseeing in any event. The printer would simply have to take all the precautions. He would simply have to adduce the factual evidence rather than prove a legal proposition. I believe that that is the difference between what is proposed here and previously. I believe that what I propose should satisfy the noble Lord as regards his Amendments Nos. 19, 22 and 23. I have some confidence about that, but I leave it to the noble Lord.
On Question, amendment agreed to.
Lord Clement-Jones Lord Clement-Jones moved Amendments Nos. 13 to 18:
Page 2, line 32, leave out "to prove that" and insert "if
Page 2, line 34, leave out from beginning to "such" and insert "A person does not commit"
Page 2, line 35, leave out "to prove that" and insert "if'
Page 2, line 38, leave out from beginning to "an" and insert "A person does not commit"
Page 2, line 39, leave out "to prove that" and insert "if"
Page 2, line 41, leave out from beginning to "an" and insert "A person does not commit"
On Question, amendments agreed to.
Lord Lucas Lord Lucas moved Amendment No. 19:
Page 2, line 41, at end insert "printing,"
The noble Lord said: My Lords, I shall not speak to the other amendments because I believe that they can be dealt with under this one. I refer to the debate on 16th November. The noble Lord, Lord Hunt of Kings Heath, said,
"In general, one would always expect printers to put in place systems for protecting themselves in the course of their business. That would mean instituting checks on the material that they print".—[Official Report, 16/11/01; col. 828.]
In the following column, the noble Lord, Lord Clement-Jones, said,
"If printers do not check the content of the material they undertake to print then they are making a serious mistake".
From what the noble Lord, Lord Clement-Jones, has just said, my understanding is that we have moved away from that position and that we are now looking at a test of reasonableness. I cannot see that that would cause anyone any problem. I very much hope that the noble Lord, Lord Clement-Jones, and the Minister will confirm that when they respond to this amendment. If they do, then they will not see this matter again at Third Reading: if they do not, then they will. I beg to move.
The Earl of Errol: My Lords, I took an interest in this matter at Committee stage. I listened to what the noble Lord, Lord Clement-Jones, said about his set of amendments as regards the burden of proof and so forth. But I understood that he was still expecting that matters of fact still had to be "adduced", which I believe was the word he used. In fact, the printer had to show that he had put checks into place as a matter of fact. There was no longer a test of opinion there but still a requirement to have undertaken some checks. That concerned me, because in that case there is still an added burden on a printer.
I entirely agree with everything that the noble Lord, Lord Lucas, said about the printing industry when speaking to the previous amendment. Those points should be taken on board. Trying to put extra layers into process control, as one might call it, could cause major problems other than a competitive disadvantage.
Lord Monson: My Lords, I also took part in the debate on amendments about this matter at Committee stage. I would like to know whether a
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printer who was asked to print a text in German, Spanish, Urdu or Hindi is required to employ a translator to check that no promotion of tobacco has crept into the text. I hope I am right in assuming that the amendments moved by the noble Lord, Lord Clement-Jones, will obviate that but I would like to have confirmation from him.
Lord Hunt of Kings Heath: My Lords, I believe that the noble Lord, Lord Clement-Jones, will be able to meet the main concerns which have been raised in the debate about printers. My own reading is that the responsibilities being placed on printers in this Bill go no deeper than the normal responsibilities placed on them. It is a fact that the responsibilities placed on printers in this Bill are treated in a number of other pieces of legislation. Therefore, it is entirely comparable with that other legislation.
There are two points to be made here. The first is that there is a distinction to be drawn between distributors and printers. Our understanding is that distributors are outside the production process of an advertisement or promotion. That is not to say that they are not responsible for ensuring that what they are distributing is legal, but they may not have detailed knowledge of what they are distributing and are not in a position to look at the contents of it with a view to changing it. It is important to draw that distinction.
So far as concerns printers, the substantive point is that anyone operating a business needs to ensure that he or she does so within the law. It is entirely up to printers themselves—as it is for others in the supply chain—to satisfy themselves as to what measures are necessary.
I accept the point raised by the noble Lord, Lord Lucas, that printers often receive copy late in the day and often work to tight deadlines. I accept that, unless operating a small business, printers are likely to be faced with printing a number of pages and will not necessarily be in a position to check the contents of each page word for word. That is accepted. As I understand it, there is no intention in the Bill to interfere in the normal business of printing. However, it is right to expect printers to ensure that they remain within the law. Alongside that, with the change in the defences proposed by the noble Lord, Lord Clement-Jones, I hope that that will satisfy the noble Lord that we have now got the balance right.
The Earl of Erroll: My Lords, the Minister's point about distributors applies also to printers. In Committee, we discussed the difference between publishing and printing. The point is that a printer as well as a distributor may not know what is being printed. There is no requirement in the modern printing process, particularly with digital printing, for a printer ever to look at the copy. It can enter the system electronically at one end and come out at the other fully bound, sealed and packaged, with no human intervention at all. Given that the Minister's remarks about distributors can apply also to modern digital printing, and possibly to other printers as well,

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such provision would place an extra burden on printers. The previous amendments do not cover that situation; therefore, these amendments may be required.
Lord Hunt of Kings Heath: My Lords, I thought that I had suggested that no extra burden was being placed on printers other than those placed on them in existing legislation and in the normal conduct of the law. I accept the noble Earl's point that there may be certain printing processes which are akin to distribution in the sense that printing is a fully automated process. But that is a matter for the printing business itself. Printers must ensure that the law is applied.
In terms of proportionality, those are the kinds of matters that training standards officers would need to take into account if they were considering a prosecution. However, as I have stated, the general thrust of the approach taken by trading standards officers on discovering problems and potential lawbreaking is almost always to draw the problem to the attention of the person or company concerned. The main aim is to ensure that changes take place rather than prosecutions. The issue mentioned by the noble Earl is surely one that would fall to trading standards officers to consider if it came to any potential prosecution.
Given the points I have made, and given the changes in the Bill in terms of the defences proposed by the noble Lord, Lord Clement-Jones, I believe that we have reached a position whereby printers are being dealt with in a balanced and proportionate way.
1.15 p.m.
Lord Clement-Jones: My Lords, we have returned to the issue of the duties of printers and what it is reasonable for a printer to be expected to know about what he or she is in the process of printing and whether the terms of the Bill are unduly burdensome, particularly for printers.
I share the Minister's view that the Bill in its current form, particularly with the amendments that we have just debated in, is not unduly burdensome for printers. It ought not to be beyond the capabilities of printers and their organisations to be able to agree on a way forward which provides the necessary level of protection for those who are legitimately going about their business. Whether reasonable care was taken will be a factual matter; it is certainly possible to establish that.
It may, for example, be important for printers to issue a disclaimer on their printing contracts, with the client taking responsibility in writing for there being no illegal content in the material to he printed, including tobacco advertising. There may be other mechanisms that printers will wish to adopt to make sure that they comply with the terms of the Bill.
Taken together, the defences as amended represent ample protection for printers. I do not believe that it would be right to go any further. It is important and reasonable for a printer to be responsible for the
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content of what is printed. It may not be reasonable for a printer to know that there is a tobacco advertisement on page 75 of a magazine being printed. but it is reasonable for that printer to know whether the billboard-size poster that is being produced is a tobacco advertisement.
In that respect, the Bill is consistent with other laws. Under existing laws, a printer is liable both for the printing of a libel and for the infringement of copyright if he did not take reasonable care to avoid it. That is exactly the position in which printers will find themselves under the terms of the Bill. With regard to publications harmful to children under the Children and Young Persons (Harmful Publications) Act 1955, a person who prints, publishes, etc., any work to which the Act applies is guilty of an offence. Similarly, when the advertising of certain gambling lottery services was illegal, the relevant legislation stated that certain notices or advertisements relating to lotteries, inciting persons to bet, betting office or betting office facilities, etc., were illegal and anyone who printed or published them would be subject to penalties. The last example is particularly apposite as it relates to the issue of prohibited advertising—the very subject that we are discussing.
I believe that the case of printers in this legislation is in line with similar liabilities under similar legislation in the past. If anything, under the Bill printers will have greater protection than they have had under previous legislation.
I have taken account of the views expressed in Committee by the noble Lord, Lord Lucas, but believe that to go any further would be to swing the pendulum too far in the other direction. Therefore, I very much hope that the noble Lord will withdraw his amendment.
Lord Lucas: My Lords, I thank the Minister and the noble Lord, Lord Clement-Jones, for those replies. Yes, subject to checking in Hansard what has been said in the debate, I believe that we have arrived at a reasonable position—one which, as the noble Lord, Lord Clement-Jones, says, is in line with many other obligations on printers.
One is particularly concerned about the Bill because it creates a criminal offence which cannot be passed on to the publisher or to insurers in the way in which financial liability can be passed on. That has been part of the cause of my concern. I think that we shall find ourselves happy with the position arrived at by the noble Lord. I am enormously grateful for the care and time that he has taken in ensuring that. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 20 not moved.]
Lord Clement-Jones Lord Clement-Jones moved Amendment No. 21:
Page 2, line 43, leave out "to prove that" and insert IF On Question, amendment agreed to.
[Amendments Nos. 22 to 24 not moved.]
Lord Clement-Jones Lord Clement-Jones moved Amendments Nos. 25 to 28:
Page 3, line 2, leave out from "2(3)," to "an" and insert "a person does not commit"
Page 3, line 3, leave out "to prove" and insert "if" Page 3, line 4, leave out first "that"
Page 3, line 6, leave out "that,"
On Question, amendments agreed to.
Lord Lucas Lord Lucas: moved Amendment No. 29:
Page 3, line 6, leave out "he was not able" and insert "it was not reasonably practicable for him"
The noble Lord said: My Lords, we discussed this proposal at some length in Committee. The noble Lord, Lord Clement-Jones, was kind enough to say that he looked favourably on the amendment but wished to see it in a better form. As usual, his skills and the skills of those who have aided him have produced a form of words better suited to the circumstances. I am again grateful to the noble Lord. I believe that this is entirely the right way to go. I beg to move.
Lord Filkin: My Lords, in Committee, the Government indicated that they also were sympathetic to the thrust of the proposal—without which it would be unreasonable in practice to expect a telephone company, for example, which could shut down its network, to prevent the passage of such material. Therefore, without further ado, I signal the Government's support for the amendment.
Lord Clement-Jones: My Lords, as I said in Committee, and as the noble Lord, Lord Lucas, has said, I very much support the thrust of the amendment.
I am also very glad that the amendment has the Government's support. I have very little to add to what the noble Lord and the Minister have said. It is sensible for companies operating networks over which electronic communications travel only to have to act reasonably to ensure that they are not distributing tobacco advertising; it is not reasonable to expect them to shut down the network for the sake of one advertisement. The essence of the amendment is to bring the Bill more into line with the e-commerce directive in that respect.
On Question, amendment agreed to.
Lord Clement-Jones Lord Clement-Jones moved Amendments Nos. 30 and 31:
Page 3, line 8, leave out "that"
Page 3, line 10, leave out from beginning to "he" in line 11 and insert "A person does not commit an offence under section 3(c) if"
On Question, amendments agreed to.
Earl Howe Earl Howe moved Amendment No. 32:
After Clause 5, insert the following new clause—
"USE OF NAMES, LOGOS AND BUSINESS DETAILS

(1) A person shall not be treated as publishing a tobacco advertisement for the purposes of this Act solely by reason of the use of the items set out in subsection (2) below in

(a) letterheads, price lists, invoices and other business stationery;

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(b) items listed in paragraph (a) which are communicated electronically; or

(c) signs identifying business premises occupied by the person.

(2) The items mentioned in subsection (I) comprise

(a) the name or names by which the person is known including the names of companies or limited liability partnerships registered under the Companies Acts;

(b) any trading names used by the person;

(c) a logo or other graphic representation of those names; or

(d) an address or addresses at which the person carries on business."

The noble Earl said: My Lords, in Committee we had a wide-ranging debate about whether it was sensible or useful to include in the Bill a definition of the word advertisement. Although this is the Tobacco Advertising and Promotion Bill, it is very striking that none of its provisions states precisely what an advertisement is or should be taken to mean. Both the Minister and the noble Lord, Lord Clement-Jones, made it clear that in their view it was better to allow the word advertisement to bear its natural meaning in the language—in other words, we all know an advertisement when we see one—and each case should be treated on the basis of the relevant facts. Any attempt, in their submission, to delineate the term advertisement—as, for example, was done in the Medicines Act 1968—is bound to give rise to unhelpful loopholes in the law that tobacco companies will proceed to exploit for all they are worth. That is the Government's position as I understand it.
Although there are several arguments that I could deploy against that position, I have chosen not to mount a challenge today because, frankly, I know that it would not be productive. The noble Lord, Lord Clement-Jones, is, I sense, not persuadable on the matter, nor indeed are the Government. However, there is still an important and unresolved issue. To what extent should the Bill lay open the possibility that the board of a tobacco company in pursuing its normal daily business activities should find itself at risk of prosecution for promoting a tobacco product? As the Bill stands, it criminalises anyone who in the course of a business publishes a tobacco advertisement and who at the same time cannot prove any of the defences listed in Clause 5.
We understand that the Government want the measure to be framed as a series of broadly drawn offences balanced by some specific defences. Although that structure has the merit of minimising the scope for legal loopholes, it also has a distinct demerit from the point of view of the tobacco companies—the absence of any kind of legal certainty. While many of us may well understand in most circumstances what constitutes an advertisement and what does not, that is not a terribly helpful guide for a board of directors tasked with carrying on a business day to day within the bounds of the law. Where is the dividing line between something that is not an advertisement and something that is?
There is a real sense in which a tobacco company promotes its tobacco products merely by using its name and logo in ordinary daily business correspondence and business communications. Every time a company puts its name about on its letterhead, especially if the name coincides with that of a brand such as Benson and Hedges, it is promoting itself and its products. I do not think that we can get away from that. If Benson and Hedges or Rothmans of Pall Mall occupy a set of business premises and put their company name on the outside for all to read, they are promoting themselves and their products. Furthermore, the Clause 5 defences in this context simply do not apply. A company could not claim that by putting its name on the outside of its offices it did not know that it was promoting a tobacco product; quite plainly it is doing just that. Victoria Wine puts its name on the front of its shops and in doing so promotes the sale of alcoholic drinks. If the managing director of Victoria Wine writes a letter on company paper, he is in a real if limited sense promoting the company and its products even if the text of the letter is of a purely routine nature.
In Committee, the Minister said that companies promoting their business by printing their name on a letterhead are not the mischief at which the Bill is aimed. I was very glad to hear that. However, the fact remains that the Bill criminalises anyone who, without a statutory defence, publishes a tobacco advertisement. What is a tobacco advertisement? Answer: it is anything whose purpose or effect is to promote a tobacco product. That most certainly includes letterheads and the use of logos in correspondence.
In Committee, the noble Lord, Lord Clement-Jones, said that we cannot create a blanket exemption for letterheads or logos because there is a factual question of 'whether there has been an advertisement. I put it to him that he is wrong about that. A tobacco company letterhead is always a tobacco advertisement; it is not a question of degree. That is why I have tabled Amendment No. 32. The noble Lord may deprecate the notion of blanket exemptions, but I put it to him that it is wholly unreasonable not to have such an exemption for those ordinary tools of the trade without which a tobacco company, or any other business, simply could not function. Those tools encompass the company's letterhead, including its logo, its name on invoices, its name on e-mails and faxes, and name signs displayed on its business premises.
In a Bill framed in such sweeping terms, it is unreasonable not to give businesses at least a small degree of legal certainty. It is not a heavy price for the noble Lord to pay in exchange for putting an otherwise all-embracing set of criminal offences on the statute book. I beg to move.
Lord Peston: My Lords, I listened with great interest to the noble Earl, Lord Howe. He spoke with great confidence. I should therefore like to introduce at least a word of uncertainty.
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The noble Earl said, for example, that the words Benson and Hedges at the top of one's writing paper is an advertisement or promotion. It would never have occurred to me—I speak as an idiot, of course—that that was an advertisement or promotion; 1 would simply have thought that the letter was from Benson and Hedges. I can see the difference. Perhaps should also give my own example. My House of Lords writing paper has "Lord Peston" written on the top, but it has never occurred to me that I am promoting or advertising myself. I thought that I was simply letting the letter's recipient know right from the beginning that the letter was from me, and that the best place for it, even before reading it, is probably in the wastepaper basket.
I am therefore very puzzled by the noble Earl's remarks that there can be no doubt at all that letterheads, price lists and the various other items he mentioned are very definitely promotions. Reflecting on it, if I were involved in a court case and someone said that he wanted to send people to prison because they had put Benson and Hedges on their writing paper, I would simply say, "You must be mad". It would never occur to me—I hate to use the expression of the noble Lord, Lord Clement-Jones, about the natural meaning of words—that that was promotion.
Despite my lack of sympathy for the tobacco companies, I do not doubt that they are entitled to legal protection in the normal course of their business. However, I honestly cannot remotely see this provision as a problem. I should be interested to hear whether the noble Lord, Lord Clement-Jones, who has a legal training which I do not, considers that there is a legal problem. But, speaking as a layman, I cannot see any legal problem here at all.
1.30 p.m.
Lord Skelmersdale: My Lords, I do not know when the noble Lord, Lord Peston, last looked at the Companion to the Standing Orders. If he has looked at if fairly recently, he will have discovered that the practice of overprinting House of Lords notepaper with one's own name is deprecated to say the very least. The Companion to the Standing Orders uses that phrase to mean what my children when they were very small used to understand as a "no, no".
Be that as it may, I support my noble friend Lord Howe because there is a confusion here. No matter what the noble Lord, Lord Peston, says, it is quite possible, if the tobacco company in its letterhead or logo has a product of the same name, for that to cause confusion, to say the very least, if not to be taken as a promotion. Therefore, I hope that my noble friend Lord Howe will stick to his guns.
Baroness Jay of Paddington: My Lords, I have just heard the most interesting comment this morning in the noble Lord's reference to the content of the Companion to the Standing Orders on overprinting of names. I believe that I am not alone in the House in not being aware of that. I also believe that most noble Lords who are present have probably transgressed that rule.

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However, that is irrelevant to what I wanted to say on the main point. It seems to me—again we are back in this rather difficult territory of common sense and natural meanings—that there is some equivalence between what the noble Earl, Lord Howe, proposes, and what the noble Earl, Lord Liverpool, proposes in relation to private hospitality events and the nature of the distribution of tobacco products by people who are clearly in that business but who are not distributing them for the purposes of advertising. Although I know that it is difficult to draw a legal comparison—although perhaps the noble Lord, Lord Clement-Jones, will be sufficiently forensic to be able to do that—in our famous common sense and real terms, it seems to me that it is perfectly understandable that someone's writing paper is not a form of advertisement in exactly the same way as an hour or so ago we decided that it was clearly the case that people giving cigars or cigarettes in private hospitality arrangements—even if they are given by a tobacco company—does not constitute a form of advertisement.
Lord Geddes: My Lords, in which case surely there can be no objection to this amendment.
Lord Filkin: My Lords, I wish that I could say that the Government agreed with that. However, I genuinely have sympathy with the thrust of the amendment of the noble Earl, Lord Howe, to ensure that companies which are carrying out such business do not inadvertently stray into illegality. I hope that my comments will give some comfort in that respect.
The amendment seeks to provide that certain forms of business communication can never be an advertisement for the purpose of the Bill. I accept that the noble Earl has attempted to draw the boundaries of the amendment tightly but I must tell him that the Government do not support it for the following reasons.
As I said in Committee, the word "advertisement" should be allowed to carry its natural meaning. The principle of the Bill is set out as the noble Earl, Lord Howe, suggested—to set out a broad offence and then provide defences or exemptions as appropriate. By qualifying the meaning of the word "advertisement" we run the risk of opening loopholes by exclusion and thus creating gaps in the comprehensive ban on tobacco advertisement which we believe to be in the public interest.
However, once again I tell the House that it is not the Government's intention to interfere with normal commercial activity. The Bill will not remove a company's right to use its own legal name or trading name, for example, in company documents or websites in the ordinary course of business. A company name and logo on a letterhead is not the mischief at which the Bill is aimed, neither is a large sign outside a cigarette factory owned by British American Tobacco indicating who carries on business there.
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However, to allow the amendment would allow creative minds to develop logos and signs far beyond what is needed for business purposes and to use them to promote tobacco products. The effect of the amendment would be that trading names used by a business and logos representing those names could never comprise an advertisement. We believe that that is not sensible or reasonable. For example, to take one illustration, if a tobacco company markets a dozen brands it would, if the amendment were passed, be allowed to put the logos of all of those brands on its letterhead and write to the public at large informing them about the company if not about the tobacco products it sells. Similarly, the amendment would permit tobacco companies to incorporate brand logos in their signage on their premises and to make those signs, in effect, advertising billboards.
The noble Earl, Lord Howe, asked what is or is not an advertisement. The comment of my noble friend Lady Jay about common sense is of comfort here. In most circumstances a company such as Gallaher or BAT will promote its own company and will be perfectly entitled to do so. It is when companies start to promote the product that they are at risk of prosecution. In Committee we discussed the nature of enforcement under the Bill and said that for the most part its provisions would be enforced by trading standards officers. When trading standards officers think that there has been a breach of the law, they draw that on the first occasion to the attention of the potential offender. They resort to court action only if he persists in his refusal to comply. I believe that that comment is of considerable comfort to the companies concerned in the matter. Finally, although no one wants to go to court, courts will reach a judgment on common sense.
In the light of what I have said, tobacco companies should not fear that their perfectly proper commercial activities will be at risk of prosecution in that respect.
Lord Clement-Jones: My Lords, noble Lords may have wondered whether they had elicited a forensic reply from me but I think that the Minister has dealt with the matter in a forensic manner. Although I have agreed with the content of many speeches of the noble Earl, Lord Howe, over the years, I am somewhat baffled by the content of his speech today. The Bill does not have the effect that he believes it will have. If it did have that effect, I would probably support him. As a former company secretary I advised companies on their letter headings and what they should contain. I advised them what criminal offences might be created if they got the matter wrong and so on. The Companies Act contains careful provisions as regards what letter headings should or should not contain and when exemptions apply with regard to revealing a company's directors, registered office and so on on the notepaper. People take a great deal of care with regard to their notepaper.
However, it is clear what mischief would arise if we did not have a general description of "advertisement" in the Bill and we had the exemption that we are discussing. For example, one could adopt a little coat

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of arms with the company name and underneath a little logo, "Smoke a Few", or "Carry on Smoking". Is that the logo that one has in mind for the company notepaper? I am afraid that that would be the effect of the proposed new clause. I return to what we discussed in Committee; that is, whether—I refer again to the phrase "natural meaning"—we are on safer ground in terms of the purposes of the Bill if we have a general definition of the word "advertisement" than relying on the natural meaning of the word. I believe that that ensures the minimum number of loopholes. I appreciate that some noble Lords fear that the Bill may have other consequences. However, I cannot see how the noble Earl's fears could be realised. I believe that the shoe would be entirely on the other foot if we permitted a blanket exemption of the kind that he proposes as it could permit all kinds of weird and wonderful logos to appear on tobacco companies' notepaper.
Lord Skelmersdale: My Lords, before the noble Lord sits down, can he explain how a logo incorporating the words, "Smoke a Few", could possibly be legitimised by my noble friend's amendment? Proposed new subsection (2)(c) states:
"a logo or other graphic representation of those names".
I cannot imagine a company calling itself "Smoke a Few". Can the noble Lord?
Lord Clement-Jones: My Lords, I am sure that the heralds could devise a suitable shield—perhaps with a cigarette-in-chief and ghouls supported by smoking attendants—which could contain the company name. I am sure that they would have a great deal of fun producing it. I am afraid that I believe that the proposal could give rise to such mischief.
Earl Howe: My Lords, I am grateful to all noble Lords who have spoken to the amendment, which I moved in all seriousness.
It was interesting to hear the noble Lord, Lord Peston, and the noble Baroness, Lady Jay, express the view that letterheads do not as such constitute advertisements and that nobody would ever dream that they might. I am grateful to them for doing so. However, that view contrasts strikingly with the view expressed in Committee by the noble Lord, Lord Clement-Jones, when he said that letterheads could in certain circumstances constitute an advertisement, depending on the facts of the case. He also instanced an example just now in which that might be the case.
That suggests that the noble Lord believes that in practice a line can be drawn somewhere. I suggest that it should be drawn in the Bill. It may be a rough and ready line but it would provide legal certainty. Without that, we would be saying to tobacco companies that in certain undefined circumstances—we would not tell them what they were—they would lay themselves open to prosecution for using their name as a logo in ordinary business communications. That is not reasonable. If we do not create legal certainty at this very basic level in the Bill, we should
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be saying that it is fair to catch out the tobacco companies with the benefit of hindsight and in whatever way we want. I deplore that.
Lord Peston: My Lords, I seek factual clarification from the noble Earl. I am trying very hard to follow his argument. Is he actually saying that Benson & Hedges is uncertain whether putting "Benson & Hedges" at the top of its writing paper constitutes a criminal offence? I am rather lost. Could companies that have a wealth of lawyers to advise them really he saying, "We are desperately uncertain, because of these laws, about what we can put on our writing paper"? I am willing to be convinced, but I cannot get my mind around the factual possibility.
Earl Howe: My Lords, if Benson & Hedges is not uncertain, it should be—by virtue of the remarks made by the noble Lord, Lord Clement-Jones, in Committee. He said that there were circumstances in which the use of a company's name on its letterhead could constitute an advertisement, depending on how it was printed.
Lord Clement-Jones: My Lords, I gave further examples in which the use of a name in a particular way could also constitute an advertisement. That is precisely why the word "advertisement" is used with its natural meaning in the Bill. It makes common sense to explain what those circumstances are. I gave the example of a company secretary in those circumstances, who would have to look at a piece of stationery. If she could not apply the relevant test, she would not be much of a company secretary.
Earl Howe: My Lords, the noble Lord appears to suggest that this is coach-and-horses territory. I do not accept that that is the case, but I do accept that tobacco companies are ingenious at finding a way through legislation. They might be ingenious at finding a type of letterhead that looked more promotional than others. But so what? In the context of the Bill that is de minitnis in the scheme of things. Is he really saying that the Bill's definitions have to be so broad and sweeping that they cover every possible eventuality? Would that include the design of a name sign outside a set of offices or the style in which a company name appears on an invoice? I suggest to him that it is possible to lose sight of what is proportionate.
We have had an interesting debate and the Minister has usefully clarified the Bill. I am grateful to him for the trouble that he took in doing so and to the noble Lord, Lord Clement-Jones, for having clarified his line of thinking. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 6 [Specialist tobacconists]:
1.45 p.m.
Lord Clement-Jones Lord Clement-Jones moved Amendment No. 33:
Page 3, line 14, leave out from beginning to "the" in line 15 and insert "A person does not commit an offence under section 2 if".
On Question, amendment agreed to.
Lord Monson Lord Monson moved Amendment No. 34:
Page 3, line 23, leave out from "things)" to end of line 25 and insert "on which premises more than 150 brands or brand variants of tobacco products are stocked and available for sale".
The noble Lord said: My Lords, when my earlier and fairly similar amendment, which was based on the experience in the Netherlands, was discussed in Committee on 7th December, the Minister said that he felt a trip to the Netherlands coming on. I do not know whether he ever found the time for such a trip or whether he managed to undertake any research into Dutch advertising legislation as it relates to specialist tobacconists.
This amendment gives the Minister and the noble Lord, Lord Clement-Jones, an opportunity to reveal whether further consideration has been given to my contention that sales turnover is not the best yardstick for qualification as a specialist tobacconist. A visible means of establishing that a retailer is a specialist tobacconist is, I submit, preferable from all standpoints. That would make enforcement much simpler and easier; it would avoid crawling laboriously through trading accounts and I resist the temptation to make too many topical quips about Enron and the creative accounting practices of certain large American corporations and, probably, a number of British and continental companies as well—it would avoid the involvement of, or reliance on, the work of accountants and auditors.
In seeking to meet the reservations expressed in Committee, I increased the number of brands and their variants that must be on offer from 100 to 150. I did so in order to raise the threshold beyond the number that some of the larger tobacco retailers who are not specialist tobacconists might stock. It is certainly not my intention to accommodate anyone other than genuine specialist tobacconists.
I understand that my amendment in Committee provoked an hysterical reaction from ASH. Of course, hysterical reactions are that organisation's stock in trade. ASH apparently claims that the proposal involves the risk that retailers would add to the product range that they stock simply to qualify as a specialist tobacconist. Frankly, that would be ridiculous, given the very minor concession that Clause 6 provides. It simply would not be worth the expense. I also suggest that retailers who are capable of that sort of dishonesty are just as capable of adjusting their trading accounts to qualify under the turnover yardstick that is currently in the Bill.
My objective is the simplicity that is appropriate to such a minor concession as Clause 6 provides—simplicity in application and simplicity in enforcement. I beg to move.
Lord Hunt of Kings Heath: My Lords, the noble Lord returns to a matter that he raised in Committee. I am afraid that while I have been allowed out once to Brussels, I have not been able to find myself a departmental-sponsored trip to the Netherlands, although we have inquired. I shall inform noble Lords of the position that we believe arises in that country.
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I also acknowledge that the noble Lord has raised the hurdle for qualifying as a specialist tobacconist from 100 to 150 brands or brand variants.
The intention under the Bill as currently drafted is that a person must derive half of his sales on the premises from pipe tobacco, snuff, cigars and smoking accessories in order to be classed as a specialist tobacconist. That is reasonable because if he derives a substantial part of his income from those products, he is allowed to advertise specialist products in the shop or affixed to the outside of the premises. I believe that the special consideration being given to specialist tobacconists indicates that the noble Lord, Lord Clement-Jones, has taken a proportionate and balanced approach and that he wishes to safeguard the position of selected specialist tobacconists.
I believe that the test suggested by the noble Lord, Lord Monson, is rather more arbitrary than that set by the noble Lord, Lord Clement-Jones. I give two examples, The first is that some businesses may stock more than 150 brands but find that sales of each brand are low and that the bulk of their income comes from non-tobacco items. In that case, they will not be substantially dependent on tobacco sales and will not particularly need the right to advertise in-store.
The second relates to the point that ASH raised and to which the noble Lord. Lord Monson, took exception. But if the test is having 150 brands in the store, I believe that that could drive a coach and horses through the legislation. It would be very easy for there to be a rapid expansion in the number of shops classified as specialist tobacconists. It would be relatively easy to produce 150 brands for sale.
We need to return to what the Bill seeks to do—that is, to ban tobacco advertising. Clause 6 allows limited concessions for specialist shops in order to take into account the needs of small businesses and not to place undue burdens on them. The Bill does that on the basis of sales. If we move away from sales to a test based on the number of brands which a shop carries, then, as I said, we shall create a loophole whereby potentially anyone can call themselves a tobacconist and claim to avail themselves of the provisions of Clause 6.
I know that the noble Lord suggested that a test based on sales would be difficult to monitor. I accept that tobacconists will have to keep records to show that their sales of cigars, pipe tobacco, snuff and smoking accessories reach the required level. However, I do not believe that that is an unreasonably onerous burden for them. As a normal part of business, shops keep records of sales. If they want to take advantage of provisions allowing some in-shop advertising by genuine specialist tobacconists, then such businesses will put in place arrangements to show that they meet the test.
So far as concerns the Netherlands, it is my understanding that legislation containing such a provision is before the Dutch parliament at present. It has not yet been tested in practice and, therefore, my case rests on our belief that the Bill as it stands provides a reasonable test which is not an unreasonable burden on the specialist tobacconist

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shops. It does not provide the type of loophole which I fear the noble Lord's amendment would produce in the Bill.
Lord Clement-Jones: My Lords, I thank the noble Lord, Lord Monson, for tabling his amendment. It takes account of some of the points made in response in Committee. However, like the Minister, I am afraid that I do not believe that changing the definition of "specialist tobacconists" at this stage will add very much to the Bill. I consider that it risks opening substantial loopholes which we can be sure will be exploited by the tobacco industry.
It bears repeating that the need for that definition is in order to allow a considerable concession to its beneficiaries. As such, therefore, I am keen to ensure that the number of those beneficiaries is kept to a minimum. I make no apology for that. In fact, I agree with the noble Lord, Lord Monson, when he said in Committee that he believed we would know a specialist tobacconist when we saw one. I believe that all Members of this House will agree that it is important to ensure that the definition catches such establishments and does not allow other sellers of cigarettes, cigars and even snuff to latch on to its coattails in order to continue to advertise.
During the debate in Committee—the Minister referred to this we heard much about the experience of the Netherlands. Like the Minister, I contacted colleagues in the Netherlands who informed me that, far from being on the ground and working in practice, the Dutch legislation is at a similar stage to this Bill. Therefore, we have no idea whether or not this legislation will work in practice. It is possible that if the Bill reaches the statute book and is put into practice, the Dutch Government will look at the terms of our Bill. Who knows?
In any event, I do not believe that we should necessarily copy slavishly the Dutch or, indeed, any other legislation. I consider that to change the definition to a headcount of brands—be it 100, 150 or even 500—risks leaving a loophole which can be exploited in order to get round restrictions on pointof-sale advertising.
I believe that noble Lords will agree that by no definition should W H Smith be considered a specialist tobacconist. However, its branch in Victoria station sells 94 brands or brand variants of tobacco products. I know that because I arranged for them to be counted this morning. It would not be difficult or costly for W H Smith to stock one or two packets of another 56 brands. Under the amendment of the noble Lord, Lord Monson, that would make W H Smith a specialist tobacconist.
I expect that, were the amendment to be accepted, a bewildering array of, for example, Marlboro brand variants would spring up overnight, making it even easier for shops to become specialists. However, a definition set out as a percentage of turnover, which, as the Minister explained, is easily collectable—indeed, all shops should know what their turnover is on each product line that they sell—would ensure that
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a shop such as W H Smith would not fall into the specialist category, and it would not matter how many different brands of Marlboro became available.
In addition, it is considerably more reasonable to ask the hard-pressed trading standards officer who is policing this provision to cast an eye over the books of a specialist tobacconist in order to ascertain what proportion of its turnover comes from what type of product than it is to pore over a list of all brands stocked by all the tobacconists in the area.
I believe that the 50 per cent test in the Bill strikes roughly the right balance and that we should keep this section of the Bill as it is. Lest we forget, this clause gives a special concession to a particular type of shop—around 380 in number which is not given to the tens of thousands of other shops which also sell tobacco products. I believe that it is right to err on the side of limiting the concession to as few shops as necessary. The current drafting strikes more or less the right balance, allowing specialist shops with a legitimate concern to continue to advertise their products in a controlled way, while preventing others from exploiting a potential loophole. Therefore, I do not believe that the amendment should be included in the Bill.
Lord Monson: My Lords, I thank the Minister for his reply. I am sorry that he was not able to get a sponsored trip to the Netherlands, which in recent years has been a rather more cheerful country than Belgium. However, I am grateful to him for his research as, indeed, I am to the noble Lord, Lord Clement-Jones, for his information on what is happening in Holland. It puts us in the picture. I must confess that I did not know that that country's legislation was not yet up and running.
There has been one definite benefit from moving this amendment. I am delighted to hear from the Liberal Democrat Benches an assertion that we should riot slavishly automatically follow European legislation. That must be a first from those Benches.
I suspect that this matter will be revisited in the Commons, if and when the Bill reaches another place, by which time the Dutch legislation may he in place and working. Then, that House, as shall we, will have the chance to study how it is working out. On that assumption, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn. Clause 8 [Displays]:
[Amendments Nos. 35 and 36 not moved.]
Clause 9 [Prohibition of free distributions]:
Lord Palmer Lord Palmer: moved Amendment No. 37:
Page 4, line 17, at end insert—
"() For the purposes of subsection (1), a coupon shall not he deemed to have the purpose or effect of promoting a tobacco product if it only provides for the product with which it is packed or sent to be sold at a discount on a single subsequent purchase of that product.".
The noble Lord said: My Lords, I have a degree of hope in moving this amendment. I wish for a moment to quote from the Explanatory Notes to the original

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Bill, published when the Bill was first introduced by the Government in the last Parliament. I believe that this is an important point:
"Clause 9 bans any free distribution whose purpose or effect is to promote a tobacco product … The effect of the clause will be a ban on the giving away of branded products, such as cigarette lighters, so as to reduce the amount of tobacco branding on display to the public as much as possible. The clause also bans the use of coupons, such as the schemes whereby coupons inserted into cigarette packs are collected by customers and can later be redeemed for tobacco or other goods".
It is arguable that the ban that the clause contains on coupons is not justifiable on the grounds that it is an infringement of human rights and that it is disproportionate to the objective and likely outcome of the Bill. It is not, however, the purpose of my amendment to permit the giving away of products for the purposes of market research or to make such a challenge.
When the manufacturers wish to make price offerings discounted from the regular price, they currently have three principal means available to them: revised terms to wholesalers and/or retailers which enable those wholesalers and retailers to make discounted price offerings to smokers; on-pack discount price marking and pricing flashes, such as "lop off"; and in-pack price offerings.
There can be no guarantee for the brand owner that revised price terms to the trade will automatically filter through to the consumer. And I know that from bitter experience from when I was a travelling salesman, albeit not involved in selling tobacco products.
On or in-pack special price offerings have more certainty for both suppliers and consumers. There are, however, significant advantages to all concerned—suppliers, customers and indeed the Government in suppliers having the ability to make price offerings by way of in-pack coupons. This amendment would permit that, provided that the in-pack coupons only offered a price discount on a single subsequent purchase of the product. By means of such a coupon, the supplier can have certainty that the price offer actually reaches the customer that it is intended to.
There is no hidden motive in this amendment. Indeed, I believe that the amendment should have the support of the proposer of this Bill and the Government. I suggest that they should be more comfortable with in-pack price offerings rather than those which may be made prominently on the outside of packs or by other means. I beg to move.
2 p.m.
Lord Filkin: My Lords, Clause 9 prohibits, with certain clearly defined exceptions, the distribution of free gifts and coupons designed to promote tobacco products. These forms of marketing are an important part of tobacco companies' efforts to keep people committed to and hooked on smoking products. If direct advertising were to be banned and if this form of marketing were allowed, tobacco companies would undoubtedly divert even more effort into free gifts and coupon schemes for the reasons to which we have referred earlier.
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In particular, that form of marketing can be targeted at lower income smokers. A document provided in 1999 to the Health Select Committee in another place concerning the Kensitas Club Gift Scheme read:
"Who are we talking to: Glasgow's smokers—they smoke because they enjoy it. They also love the gift scheme, with over 50% of the club franchise unemployed this probably explains its popularity".
I grant that the intention of the noble Lord, Lord Palmer, is not to widen the scope of the exemptions to enable tobacco companies to continue to promote their products, but the Government believe that that would be its effect. Therefore, we are strongly unsympathetic to it.
On the coupon amendment, Clause 9(5) defines a coupon as,
"a document or other thing which (whether by itself or not) can be redeemed for a product or service or for cash or any other benefit".
This amendment seeks to add a proviso to Clause 9(1) that a coupon is not a coupon if it can only be used to obtain a discount on a subsequent purchase of the same product. We believe that if the amendment were accepted it would drive a significant hole through the proposed ban on coupons that promote tobacco products and would provide a powerful incentive to keep smokers hooked.
The purpose of a coupon is to provide an incentive for a person to make a further purchase of the product. This is the same whether coupons are accumulated in order to qualify for a free gift or whether a single coupon entitles the holder to a discount on his or her next purchase. In that sense there is no distinction between the two types of coupon schemes.
We know from the survey undertaken in 2000 that nearly 70 per cent of smokers want to give up. Coupon schemes undermine their resolution. They are not just a way of promoting brand loyalty. If the Government were to accept this amendment, the possibility of a discount on their next packet of cigarettes may become much more commonplace with the effect that that would weaken the resolve of those smokers who wish to give up.
The Government do not believe that the market research amendment is necessary. The Government have no plans to stop research into tobacco product development. There is nothing in the Bill to stop market researchers from contacting smokers and asking questions with a view to helping tobacco companies to develop their products and compensating them for their time, provided that this compensation does not take the form of tobacco products, coupons or anything that is intended to or has the effect of promoting a tobacco product.
Lord Clement-Jones: My Lords, I thank the noble Lord, Lord Palmer, for putting forward his amendment. I understand that there is no hidden motive, but that is not sufficient to elicit support for it. I do not believe that the amendment should be accepted. The free or discounted distribution of

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cigarettes or other tobacco products is a way in which tobacco companies market their products. We should treat that form of promotion in exactly the same way as any other type of tobacco advertising or promotion. I see no compelling reason to make an exception for this kind of promotion rather than any other.
Noble Lords may well argue that as a form of promotion it is probably of interest only to existing smokers and, therefore, it should be exempted. However, in response I argue that even if one accepts that that is true, this legislation is as much about helping current smokers to quit as it is about preventing young people from taking up smoking in the first place.
Tobacco companies also use coupon schemes, such as the ones that the noble Lord, Lord Palmer, wishes to exempt, in order to try to keep smokers hooked who otherwise may be about to give up or who are at least trying to give up. If such promotions are solely about brand share, we would expect to see them spread equally around the year. Instead, we see them concentrated, as with all tobacco advertising promotions, into the time of year when smokers are most likely to consider quitting: New Year, the beginning of Lent, National No Smoking Day and so on.
There is nothing unique about this kind of promotion that justifies an exception being made in the legislation. Therefore, I urge the noble Lord to withdraw his amendment.
Perhaps, with the Minister, I can give greater comfort to the noble Lord in terms of Amendment No. 39. This legislation is not about banning the manufacture and distribution of tobacco products, or about, banning market research into potential new products in the future. That is a legitimate part of their business and will remain so. This Bill is about banning the advertising and promotion, for the good of public health, a product which kills an enormous number of people.
There are two different types of free distribution being debated. One which will be covered by the legislation is free distribution by tobacco companies in order to promote their products. For example, one thinks of the Marlboro cowgirls—young women who distribute free Marlboro to people in bars and night clubs. That has both the intention and effect of promoting cigarettes and will be banned. However, the other is a completely different proposition. In that case the point of the distribution is to find out more about proposed new products, not to promote them. It has neither the intention nor the effect of promoting tobacco products and as such will not be covered by this legislation. In essence, this amendment describes what will happen following the passage of the Bill even without the adoption of the amendment.
I am not keen on adding further to this legislation when its purpose and effect are entirely clear. I believe that we do not need Amendment No. 37 in order to make it absolutely clear that that type of market
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research is entirely legitimate and can continue in the future. I hope therefore that the noble Lord will not press his amendment.
Lord Palmer: My Lords, I am disappointed to have my hopes dashed. I thank the noble Lords, Lord Filkin and Lord Clement-Jones, for their comments. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
The Deputy Speaker (Viscount Simon): My Lords, in calling Amendment No. 38 I advise your Lordships that if it is agreed to, I cannot call Amendments Nos. 39 or 40 because of pre-emption.
Lord Faulkner of Worcester Lord Faulkner of Worcester moved Amendment No. 38:
Page 4, line 20, leave out subsection (3) and insert—
"(3) No offence is committed under subsection (I) if—

(a) the business referred to in subsection (1) is part of the tobacco trade,

(b) the product or coupon is given away for the purposes of that trade,

(c) each person to whom it is given—

(i) is engaged in, or employed by, a business which is also part of the tobacco trade, and

(ii) falls within subsection (3A), and

(d) the product or coupon is given to each such person in his capacity as such a person.

(3A) A person falls within this subsection if—

(a) he is responsible for making decisions on behalf of the business referred to in subsection (3)(c)(i) about the purchase of tobacco products which are to be sold in the course of that business,

(b) he occupies a position in the management structure of the business in question which is equivalent in seniority to, or of greater seniority than, that of any such person. or

(c) he is the person who, or is a member of the board of directors or other body of persons (however described) which, is responsible for the conduct of the business in question."

On Question, amendment agreed to.
Lord Clement-Jones Lord Clement-Jones moved Amendments Nos. 41 to 45:
Page 4, line 23, leave out from beginning to end of line 24 and insert "A person does not commit an offence under this section—"
Page 4, line 25, leave out "if" and insert "where"
Page 4, line 26, leave out "that" and insert "if"
Page 4, line 28, leave out "if" and insert "where"
Page 4, line 29, leave out "that" and insert "if.
The noble Lord said: My Lords, with the leave of the House I shall move Amendments Nos. 41 to 45 en bloc. I beg to move.
On Question, amendments agreed to.
Clause 10 [Prohibition of sponsorship]:
Lord Luke Lord Luke: moved Amendment No. 46:
Page 5, line 8, at end insert—
"() No offence is committed under this section in relation to a tobacco sponsorship agreement if the purpose or effect of anything done under the agreement is to promote a tobacco product to persons engaged in the tobacco trade (even if they are also engaged in another trade)."
The noble Lord said: My Lords, very briefly, my noble friend Lord Liverpool and I both believe that the intent behind Amendment No. 46 was covered in the response given by the noble Lord, Lord Clement-Jones, to Amendment No. 40. I simply ask for reassurance on that matter. I beg to move.
Lord Hunt of Kings Heath: My Lords, perhaps we should listen to the noble Lord, Lord Clement-Jones. My understanding is that the kind of situation described in the private dinner party where cigars are handed out was covered in our debate on the Motion of the noble Earl, Lord Liverpool, on Amendment No. 40.
Lord Clement-Jones: My Lords, I am happy to repeat, and no doubt it will appear in Hansard tomorrow, that, as I said in answer to Amendment No. 40, the kind of private event at which cigars are handed out is not covered and is not intended to be covered by the Bill.
Lord Luke: My Lords, I am grateful to the noble Lords. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Clement-Jones Lord Clement-Jones moved Amendment No. 47:
Page 5, line 9, leave out from beginning to end of line 10 and insert "A person does not commit an offence under this section—"
On Question, amendment agreed to.
Lord Clement-Jones Lord Clement-Jones moved Amendments Nos. 48 to 52:
Page 5, line 11, leave out "if" and insert "where"
Page 5, line 13, leave out first "that" and insert "if"
Page 5, line 15, leave out "if" and insert "where"
Page 5, line 17, leave out first "that" and insert "if
Page 5, line 18, leave out from beginning to "he" in line 19 and insert "A person does not commit an offence under this section if"
The noble Lord said: My Lords, with the leave of the House I shall move Amendments Nos. 48 to 52 en bloc. I beg to move.
On Question, amendments agreed to. Clause 11 [Brandsharing]:
Earl Howe Earl Howe moved Amendment No. 53:
Page 5, line 35, leave out ", or whose effect is to do so"
The noble Earl said: My Lords, I tabled Amendment No. 53 as a means of raising with the Minister my concerns over a matter which, strictly speaking, is not directly related to the text of the Bill. However, it is highly relevant to the substance and purpose of this clause.
Noble Lords may remember that when we debated the issue of brand sharing in Committee. I raised the case of Alfred Dunhill Limited. Alfred Dunhill is a luxury goods company and has traded as such for more than 100 years. It does not manufacture cigarettes nor indeed any tobacco product. It does, however, share a brand name with a cigarette manufacturer.
Alfred Dunhill Limited is deeply concerned about the text of the draft EU directive on tobacco advertising. The current wording simply requires member states to prohibit advertising intended to promote smoking. One definition under consideration is the following:
"Advertising means any form of commercial communication with the aim of promoting a tobacco product".
Alfred Dunhill would have no problem with that, while tobacco companies that have diversified under the same brand name would presumably be caught by it. However, if a national legislature were to add the words, "or effect" after the word "aim", so that it read,
"with the aim or effect of promoting a tobacco product",
as indeed we see in Clauses 1 and 11 of this Bill, Alfred Dunhill would find itself in great difficulty simply by virtue of the fact that "Dunhill" is a well-known cigarette. Unless a specific derogation is stipulated, or at least permitted, in the directive to cover this kind of case, the problems caused to companies such as Alfred Dunhill will be severe. A derogation of this nature appeared in the tobacco advertising directive 98/43/EC which was subsequently annulled.
A directive is nominally intended to facilitate the working of the internal market. It will not do so in the case of Alfred Dunhill if it does not cover shared brands. It is conceivable that Alfred Dunhill might find itself in the anomalous position of being free legally to promote its products in the UK but not in, say, Belgium or France. That is because the exceptions to the regulations which the Secretary of State may one day adopt under Clause 11 could conflict with the laws made in due course by other member states when they come to implement the directive.
While I understand that the Commission does not want the directive to be complicated by the brand-sharing issue, it is absolutely inevitable. But if it is not covered in some appropriate way, the result will be an endless round of litigation. I cannot believe that the Government contemplate that prospect with equanimity.
I should be glad to hear from the Minister what approach the Government are adopting to the issue of bone fide brand-sharing in their discussions with the Commission. It would be very unfortunate if Alfred Dunhill found itself having to lobby up to 14 more parliaments to amend their secondary legislation so that it could continue to trade. It would be even more unfortunate if different legal barriers were to be erected by different member states in respect of products that have absolutely no tobacco content whatever. That would not only be unfair but damaging to British economic interests.
I hope that the Minister can issue some reassurance to me that the Government have these matters very much in mind in their discussions with the Commission and that they will be pressing the Commission to come forward with a text that includes an appropriate form of brand-sharing provision. I beg to move.
2.15 p.m.
Lord Peston: My Lords, I am delighted that the noble Earl. Lord Howe, has raised this matter. I look forward very much to hearing whether the Minister believes that the problem is solvable. I am as scathing as anyone about the tobacco industry, but I accept that in this case Dunhill appears to be an innocent party. It would certainly be wrong that just because there are Dunhill cigarettes—I believe that there are—Alfred Dunhill should not be able to promote its main products both here and abroad. So I am very sympathetic to what the noble Earl is saying.
What has interested me ever since the problem emerged is whether one can protect a firm like that while not producing—to use today's cliché a "coach and horses" state of affairs here. What troubles me is whether the actual producers, or tobacco firms, could produce institutional arrangements whereby they actually claimed legally that their tobacco businesses were being made legally separate. Therefore, they could still engage in activities on other products, and so on.
In other words, I am convinced that the noble Earl is right that we must find a solution to this problem in terms of the Bill, not only abroad but here. What troubles me a little is that I cannot quite see how to do it. It may well be that the Minister has solved the problem and will tell us what the solution is.
Lord Campbell of Alloway: My Lords, before the Minister speaks, perhaps 1 may very briefly support my noble friend Lord Howe, not only for the reasons that he has given, but because they do actually form a type of security for the Bill. They would tend to avoid a mass of litigation over its provisions. I ask noble Lords on the Government Front Bench to take advice on the matter before rejecting the amendment out of hand.
I have listened, as I always do, to what the noble Lord, Lord Peston, has said. At one stage he seemed to be rather in favour of what my noble friend's amendment seeks to do. But at another stage he did not seem to be quite so much in favour. As the noble Lord never understands what I am saying, may I, in amity, say that on this occasion I could not understand what he was saying?
Lord Filkin: My Lords, my response to the noble Earl, Lord Howe, is first to explain why we think that there are risks in general and then to focus on the specific, sensitive area that he mentioned. The amendment would limit the powers under the Bill to regulate brand sharing to where the intention of the brand sharing is to promote a tobacco product and not where the effect is to do so. The problem with that is
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that a tobacco company could say that it was not its intention to promote a tobacco product although that was the effect.
We discussed brand sharing in Committee and my noble friend Lord Hunt has written to the noble Lord, Lord Naseby, on the subject and placed a copy of the letter in the Library. We remain of the view that there is a need to ensure that mischievous companies do not use that way of working to get round the Bill. I sense that in general the House recognises that that is a danger. For that reason, the Bill is intended to introduce a comprehensive ban on the advertisement and promotion of tobacco products. We have identified from international experience that for that to work, we need to take action to control brand sharing. I seem to recollect discussions of Malaysian restaurants and all sorts of other things that appeared implausible but occurred.
Documents released into the public domain show that many years ago the tobacco industry developed a strategy to use its brands on other products when it became apparent that direct advertising could be curtailed. We also mentioned during Committee that Strathclyde University published research in the British Medical Journal in March 2001 that concluded:
"when other variables that are known to be associated with smoking are controlled for, awareness of coupon schemes and brandstretching were both associated with the greater possibility of being a current smoker".
So there is some indication that brand stretching works, as one would expect.
The clause as drafted provides the Government with a regulation-making power. We intend to consult on any regulations on brand sharing as we recognise that there are many considerations and interests to he taken into account. Any regulation would or course ensure that genuine business expansion was not hampered. If an existing tobacco company wanted to set up new lines in another trade, as long as it used separate names and branding for the new products, that would be perfectly acceptable, as it would clearly not be intended to promote, or have the effect of promoting, a tobacco product.
However, we need to maintain the clause as drafted to ensure that business that is not genuine diversification and has the intent or effect of promoting a tobacco product is banned. It is right to retain the power to control the use of products where such use could be instrumental in encouraging young people to start smoking, even if that is not the intention. That is consistent with the line taken throughout the Bill. I should stress that it will be for the prosecution in any proceedings to prove beyond reasonable doubt that the effect of the brand-shared goods is to promote the tobacco product. The regulations may also contain defences.
I turn to the specifics of the case raised by the noble Earl, Lord Howe. We spoke about Dunhill at some length in Committee, and in this instance I shall speak to the Bill rather than to the e-commerce directive, for reasons that your Lordships will understand. The Government have some influence over the Bill. hut less influence over the e-commerce directive.

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It would not be appropriate to include a specific derogation in the Bill for the reasons that I have just outlined, but there are clearly powers under regulation. The Dunhill situation is unusual. In Committee, I speculated on what tests might be in regulations that could differentiate between the Alfred Dunhill situation and that of Camel Active, which I do not think that most Members of the House want to be liberalised in the circumstances.
For reasons that the House will understand, I cannot pre-empt any decision on the content of regulations that the Secretary of State may make in respect of brand sharing, as we would want to have full and genuine consultation on them. But we are certain that it would be possible for any such regulations to treat products such as those of Alfred Dunhill in a different way from a range of goods deliberately developed to promote a tobacco product. I hope that, with those words on the record, the noble Earl will have received substantial comfort.
Lord Clement-Jones: My Lords, I understand the spirit in which the noble Earl, Lord Howe, has moved the amendment and the underlying commercial concerns that firms such as Alfred Dunhill have and have expressed to him. However, for the reasons that the Minister set out, I am not sure that we should—or could—resolve the issue today in the primary legislation.
It is precisely because the clause raises issues such as that raised by the noble Earl that issues relating to brand stretching are best left to regulations. In that case, there should be full consultation about which brands should be included and which excluded. My view, for what it is worth, is that it would be rather perverse if Alfred Dunhill were to be caught by the regulations. It is a long-standing entity, legally separate from BAT, which produces Dunhill cigarettes. Similarly, Cartier produces cigarettes, but they represent such a tiny proportion of the company's turnover compared with jewellery that it would be rather strange if the regulations caught them. Those are just two examples, and consultation on regulations should cover such issues.
In Committee, we discussed the case of Sainsbury's: if it produces an own-brand cigarette, should it be allowed to market it under the Sainsbury name? Would regulations on brand stretching prevent it from advertising their other products? It would not, in a sane world. However, regulations ought to catch products such as Camel boots and Marlboro clothing, which are attempts to get round existing restrictions on advertising for the reasons that we discussed in Committee.
To accept the amendment would—to use the cliché of the day, as the noble Lord, Lord Peston, said—drive a coach and horses through the clause. We must have regulations that work but do not disadvantage commercial players that are not in the business of promoting cigarette brands. I hope that the noble Earl will accept that there is a genuine desire to make sure
1700
that the regulations cover the point. They will be by affirmative resolution, so we will have the opportunity to have a full debate about them.
The European directive, as I understand it, explicitly rules out catching non-tobacco products, whether they are made by tobacco companies or not. Member states are at liberty to go further, if they wish, provided that what they do is proportionate under the ECH R. I agree with the principles, but the directive ought to cover brand-stretch goods. At present, however, that is not likely to happen. It is unlikely that a prohibition on Dunhill advertising would be proportionate, given the legal separation of Alfred Dunhill and the producers of the cigarettes. That is the current state of knowledge, and I am sure that the regulations will be drawn up in the light of any further information that we have about the directive.
Earl Howe: My Lords, I am grateful to all noble Lords who have spoken. The House will realise that I sought to make a narrow point. As I admitted, it was not strictly relevant to the text of the Bill.
I am grateful to the Minister for pointing out the literal effect of the amendment, and I realise that the clause must be left as drafted. I was using the amendment as a means of probing the Government; nothing more than that. It provided an opportunity for the Minister to offer a measure of comfort to Alfred Dunhill and other companies in its position. I sought to ensure that the Government were aware of the need, at least, to place a permissive power in the text of the EU directive. I make no other point besides that one.
Of course I recognise that, in the context of the UK per se, we are due to see regulations brought forward at some stage which will be debated in Parliament. I have taken note of the comment of the noble Lord, Lord Clement-Jones, that they will be subject to the affirmative resolution procedure. I am entirely happy with that. The Government appear to be reasonably confident that they are capable of framing regulations in such a way that companies such as Alfred Dunhill will be left in the clear. The company is itself reasonably confident of that on the basis of assurances that it has received from the Department of Health.
I have no problem with that. My concern is simply the position in which Alfred Dunhill will find itself in the EU context if the directive is not framed appropriately; that is, so that it encourages other member states to build in an exemption for innocent parties—if I may put it in those terms. Here I do not refer to companies such as Camel Active or the other examples of brand sharing that we discussed in Committee. It is those companies that have nothing whatever to do with tobacco that could be caught if the regulations are not framed appropriately in other member states as well as in this country.
I hope that, on the strength of what I have said, the Government will consider the matter further. I ask them simply to take on board the points I have made

1701
and, I hope, use them to good effect when they come to negotiate further in Brussels. With that I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 14 [Powers of entry, etc]:
2.30 p.m.
Earl Howe Earl Howe moved Amendment No. 54:
Page 7, line 12, leave out "considers it" and insert "has reasonable grounds for believing that it is"
The noble Earl said: My Lords, a number of amendments were tabled in Committee by my noble friend Lady Noakes and the noble Lord, Lord Monson, which sought to introduce a concept of reasonableness into the powers conferred by Clause 14. The three amendments in this grouping return us to that theme and rest on one simple and, I hope, inherently reasonable aim; that is, to ensure that those powers which have the most potential for being intrusive, disruptive or damaging to a business are exercised on the basis of there being reasonable grounds to do so.
As the clause stands, an enforcement officer has only to be of the opinion that it is necessary for him to exercise the powers before those powers can be exercised. That is a test that is both subjective and, I suggest, weak. With powers to inspect books and records, take copies, take possession of such records and hang on to them, I think that it would be appropriate for there to be a slightly more objective test stated explicitly in the Bill.
As the noble Lord, Lord Filkin, stated in Committee, the gravity of the subject matter in this Bill is of a lesser order than that of, for example, the Consumer Protection Act. Yet the Bill contains enforcement powers that are in every way comparable in terms of their severity and scope. The shift that I propose in this clause is not by any means major, but it would directly replicate the provisions of the Consumer Protection Act in this respect.
On 20th February the noble Lord, Lord Hunt of Kings Heath, wrote to my noble friend Lord Skelmersdale setting out the reasons why he felt that the Bill should not follow this precedent. While it was a helpful letter, I confess to remaining at least partially unconvinced by the Minister's arguments. I am sure that it would assist the House and it would certainly assist me if the Minister were to take the opportunity to set out some of those arguments today. I beg to move.
Lord Lester of Herne Hill: My Lords, I have not taken part in previous debates on the Bill and I hope that I will not bore the House with one or two legal points.
I should like to explain why I do not consider this amendment—or indeed some of the others we shall be considering shortly—to be necessary. In a nutshell, Clause 14 creates powers of entry, search and seizure provided that the relevant enforcement authority considers the word "considers" is used throughout — it necessary.
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It is quite clear as a matter of English administrative law that when a public authority exercises powers of this character, it must be exercised lawfully—that is, for a proper purpose—rationally and fairly. Those are the principles of English administrative law. Those principles are now buttressed by the Human Rights Act 1998, Section 6 of which imposes a duty on the enforcement authority to act in a way compatible with the right to respect for private life and correspondence at home guaranteed by Article 8 of the convention, and also the right to property guaranteed by Article 1 of the first protocol.
Effective remedies are given under the Human Rights Act by way of proceedings under Section 7 for breach, with remedies under Section 8. Therefore, as lawyers would say, with respect, the amendment is surplus or otiose.
Lord Skelmersdale: My Lords, as my noble friend Lord Howe referred to the letter that I received from the Minister on this subject, I should say that, compared to the other letter to which I referred several hours ago, it was sent remarkably promptly.
As my noble friend said, the letter was about the equivalence of powers in the Consumer Protection Act. The Minister made the point that the powers in Clause 14(1) and (2) of the Bill are all subject to the proviso that they can be used only for the purpose of the proper exercise of an enforcement officerx's functions. I understand that. However, 1 do not understand Clause 14(2) and (5), which confer powers on an enforcement officer to be exercised when he considers it necessary. The CPA equivalents are contained in Sections 28(1) and 30(3) of that Act, but elsewhere in the Act there is a requirement for the officer to act reasonably. I cannot see, therefore, why there should not be an equivalent provision in the Bill.
Lord Filkin: My Lords, the amendments seek to put on the face of the Bill an express requirement on enforcement officers to act reasonably when they are exercising their powers to carry out inspections, to take possession, to retain items and to require information. In short, the Government's position, which has been better stated than I can by the noble Lord, Lord Lester, is that there is already adequate protection in law to prevent against the mischief about which the noble Lord is concerned.
We have considered the point raised but the Government still consider that the amendments are not necessary for the following reasons. First, there is no reason why the drafting of legislation should necessarily mirror an Act passed some 15 years previously. Secondly, in practice there will be no significant difference between the powers conferred on enforcement officers by the Bill in respect of tobacco advertisements and those which they already have under the Consumer Protection Act. The usual approach of the courts in such a case is to inquire whether a reasonable person could have come to the decision in question without misdirecting himself on the law or the facts in a material respect. Meanwhile, where a provision requires reasonable grounds for

1703
believing, the courts will consider not only whether there are reasonable grounds for that belief but whether the person in question actually believed them.
I recognise that noble Lords are concerned to ensure that enforcement is carried out responsibly and that trading standards officers do not play fast and loose with the law. That point was discussed in Committee. However, there is no need for these amendments because the duty to act reasonably already applies very clearly. Enforcement officers can already be held to account for the exercise of their duties, and indeed any trading standards officer who misconducts himself in the execution of his duties 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. What is of fundamental significance is the fact that no prosecution could succeed if enforcement officers were seen to have acted unreasonably.
For these reasons, the Government believe it is unnecessary to pad out the Bill with references of this kind. Moreover, the powers in Clause 14(1)(b), (d) and (e), which the noble Lord seeks to amend, are all dependent on Clause 14(1)(a), which provides that they can only be used for the proper exercise of functions under this Bill. If an enforcement officer attempted to carry out an inspection which was not for the purpose of the proper exercise of his functions he would in any case be acting in excess of his powers and any subsequent prosecution based on information obtained as a result of his inspection would be liable to fail.
We recognised in Committee that trading standards officers are a competent and professional group of people. Of course there may be exceptions, but on the whole they have a wealth of experience in working in the community and tend to approach the exercise of their responsibilities in a prudent and proportionate manner. As we have said, their approach is aimed more at education than prosecution, which is viewed as a last resort. Therefore I do not believe that the dangers which have been pointed to will occur in the Bill as it stands.
Lord Clement-Jones: My Lords, I do not propose to add very much to what the Minister has said. Indeed, having had the benefit of the very succinct statement of my noble friend Lord Lester about the position, far be it from me to add to that. I shall obviously have to hire him again in the future—I cannot afford him: quite right!
The Minister has set out very clearly that decisions, both in terms of civil and criminal law, would be open to challenge and fine if a trading standards officer did not act reasonably or did not have reasonable grounds.
I agree with the Minister that it is not necessary to include references of this kind in the Bill, and that to do so would be inconsistent since this amendment would apply only to some references and not to others. How would that be applied consistently? I urge your Lordships not to support this amendment.
Earl Howe: My Lords, I am grateful to the Minister and to the noble Lords, Lord Lester and Lord Clement-Jones, for their helpful explanations. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 55 and 56 not moved.]
Clause 15 [Obstruction, etc. of officers]:
Lord Clement-Jones Lord Clement-Jones moved Amendments Nos. 57 to 59.
Page 9, line 1, leave out from beginning to end of line 2 and insert "A person does not commit an offence under subsection (2) if—"
Page 9, line 3, leave out "that"
Page 9, line 4, leave out first "that"
The noble Lord said: My Lords, I beg to move these amendments en bloc.
On Question, amendments agreed to.
2.45 p.m.
Earl Howe Earl Howe moved Amendment No. 60:
After Clause 15, insert the following new clause—
"APPEALS AGAINST DETENTION OF GOODS

(1) Any person having an interest in any goods which are for the time being detained under any provisions of this Act by an enforcement authority, or by a duly authorised officer of such an authority, may apply for an order requiring the goods to be released to him or another person.

(2) An application under this section may be made

(a) to any magistrates' court in which proceedings have been brought in England and Wales or Northern Ireland; or

(b) in Scotland, by summary application to the sheriff.

(3) On application under this section to a magistrates' court or to the sheriff, an order requiring goods to be released shall be made only if the court or sheriff is satisfied

(a) that the proceedings under this Act have not been brought; and

(b) where no such proceedings have been brought, that more than six months have elapsed since the goods were seized.

(4) Any person aggrieved by an order made under this section by a magistrates' court in England and Wales or Northern Ireland, or by a decision of such a court not to make such an order, may appeal against that order or decision—

(a) in England and Wales, to the Crown Court; or

(b) in Northern Ireland, to the county court;

and an order so made may contain such provision as appears to the court to be appropriate for delaying the coming into force of the order pending the making and determination of any appeal (including any application under section 111 of the Magistrates' Courts Act 1980 (c. 43) or Article 146 of the Magistrates' Courts (Northern Ireland) Order 1981 (statement of case)."

The noble Earl said: My Lords, my noble friend Lady Noakes drew attention in Committee to the absence from this Bill of any statutory protection for a person who finds himself on the receiving end of an enforcement action under the powers granted to authorised officers under Clause 14. I should like to pursue that issue today by moving Amendment No. 60 and in doing so to speak also to Amendment No. 61.
Under Clause 14 an authorised officer is given the authority without notice and without further reference to anyone to enter business premises, to inspect those

1705
premises, to demand production of books, records and products, to inspect them and take possession and to retain them for as long as he likes, and to require anyone to give him any information that he asks for in pursuance of his functions under the Bill.
That is an extremely comprehensive and authoritarian set of powers by any standards, and I have not read out all of them. It is comparable in extent and scope to the powers under other legislation of the Commission for Health Improvement or even Customs and Excise. Whereas both those bodies have the duty to investigate matters of potentially grave import for healthcare, the public purse or whatever the case may be, it is difficult to see how, in the generality of cases, issues of similar gravity arise under this Bill. I do not say that it is necessarily inappropriate to have such powers in Clause 14. But what is striking is that there is no remedy available on the face of the Bill to the person whose books or goods have been seized and taken away.
Despite the reply of the Minister in Committee when he indicated that in practice there was really nothing to worry about here, it is disquieting to me that, as the Bill stands, there is nothing that one can easily and immediately do if, for example, an enforcement officer takes away goods and then takes no further action for weeks or months. Even if the items are eventually returned. there is nothing the owner can do if his business has been grossly disrupted by the loss of them and if all along he was completely guiltless of any offence. In the first case, there is neither a way of getting the goods back short of civil action nor, in the second, a remedy for innocent parties to be compensated for the wrongful actions of the authorities. Both such remedies are available under the Consumer Protection Act. The amendments I have tabled are modelled closely on Sections 33 and 34 of that Act.
In Committee, the Minister expressed the view that there was no need for such amendments in a Bill of this kind. The first reason he gave was the gravity of the subject matter in the Consumer Protection Act where the powers are necessarily far reaching and, by implication therefore, appropriate remedies need to be built in. The second reason he gave was that under this Bill anything taken away was likely to be of small value. Thirdly, he said that he expected that common sense would prevail. With the greatest respect to the noble Lord, I suggest that he missed the point here. To say that because tobacco promotion is not as serious as, say, some of the offences listed in the Consumer Protection Act and that, therefore, equivalent protection is not needed for those on the receiving end of the enforcement powers is, I suggest, a non sequitur. In general, the subject matter of this Bill may indeed be less serious than that of the Consumer Protection Act. Nevertheless, wide-ranging and authoritarian powers are built into it. What matters is not the seriousness of the alleged offence but the potential harm that could be done to those against whom the Bill's powers will be used.
The noble Lord says that the degree of harm in such instances is likely to be small. I disagree. Any business which has its documents or records seized will necessarily be disrupted. Any business whose goods are taken away will suffer financially. It is all very well to trust to common sense in imagining the use of the enforcement powers. But, as drafted, the powers in Clause 14 are unfettered, taking into account the helpful remarks of the noble Lord, Lord Lester, on the previous group of amendments. They can be used against a wide range of businesses—printers, distributors advertisers, newsagents, specialist tobacconists and so on. We have heard that any items seized may be retained by the enforcement authority only for as long as is reasonably necessary. But we know how the system works. The Bill invites an "act first, ask questions later" approach. In that sense, it gives carte blanche. It will always be possible for an authority to present its own view of what it considers to be necessary in a given set of circumstances.
Such a Bill should protect the small man. It should provide simple, inexpensive remedies. It should provide a deterrent to any wanton misuse of the enforcement powers. That is the purpose of my amendment. I beg to move.
Lord Campbell of Alloway: My Lords, I support this amendment. If the provisions cannot be assimilated on the face of the Bill, I can understand that there is a case for not doing so and to avoid encumbering the Bill with a mass of detail. However, it is essential that some form of undertaking should be given by the Government to introduce the spirit of these provisions by regulation. My hope and respectful request is that this matter should not be disposed of today, but that time should be given for the Government to consider whether their substance should be incorporated in regulations.
Lord Lester of Herne Hill: My Lords, I am sympathetic to the object of this and the next amendment, which is to provide effective remedies against the arbitrary exercise of the powers to be conferred by the Bill in relation to the seizure and detention of property. I also believe that, where possible, statute law itself should explain the powers, their limits and the remedies to be provided and that one should not always have recourse—as I am about to do—to the Human Rights Act 1998 to come to the rescue of legislation. That is not wholly satisfactory for the citizen who cannot tell from a reading of the Bill exactly what the powers are and their limits.
I declare an interest. I recently professionally represented the hauliers, drivers and lorry companies who were subject to detaining and fining powers for bringing clandestine entrants into the United Kingdom. The case was decided a week or so ago by the Court of Appeal using the Human Rights Act. It decided that some of the relevant provisions were incompatible with the European Convention on Human Rights, in particular the right to a fair hearing in Article 6 and the right to the enjoyment of one's property without arbitrary interference under

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Article 1 of the First Protocol. In effect, the court found that it could not read in the necessary safeguards and therefore granted what is known as a declaration of incompatibility.
But in this case it does not seem to me that the Human Rights Act would lead to that result, that is to say, in the kind of situation to which the noble Earl, Lord Howe, referred. It would not be a question of the words of Clause 14 being capable of being read only in a particular way. I believe that the court would use the Human Rights Act to read in the necessary safeguards. Let us take the example of seizing property and for no good reason detaining and damaging the business of an undertaking in a serious way. That would be a classic example of proceedings for breach of the duty in Section 6 of the Human Rights Act in the way in which these powers were exercised. There is the remedy of compensation as a last resort under that Act.
I was not present at the meeting of the Joint Select Committee on Human Rights that considered the Bill, but I have read its report. We did not find it necessary to refer to this as a significant issue to draw to the attention of both Houses.
Lord Filkin: My Lords, I rise with some trepidation to respond to the noble Lords, Lord Lester and Lord Campbell of Alloway, and the noble Earl, Lord Howe, all speaking in the same area. Perhaps I may set out why I believe the dangers are not as great as has been suggested. I am certain that the noble Earl recognises that in the legislation there need to be powers of entry and seizure; otherwise prosecutions will be impossible. I am certain that the noble Earl was not seeking to argue against that.
But there is a distinction between goods and documents which is relevant to our discussion. In short, the Food Safety Act, about which we spoke in Committee, effectively gives an aggrieved person a right of redress if their goods are seized because they could be of considerable financial value. In fact, it is our interpretation that the Consumer Protection Act does not give a similar power of redress in relation to the seizure of documents—as I shall seek to illustrate—which is what we are talking about in this respect. We are basically talking about the seizure of evidence that could demonstrate that an organisation or a company had sought to promote tobacco.
Finally, perhaps I may refer to remedies and to the suggestion made by the noble Lord, Lord Campbell of Alloway. The first new clause would give any person whose goods are detained by an enforcement officer under Clause 14(1)(c) 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) gives an enforcement officer the power to take possession of any book, document, data, record or product and retain it as long as he considers it necessary for the purpose.
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The second new clause would give a right to compensation to anyone whose goods are detained in connection with the provisions of the Bill where there is no culpable behaviour on his part. It follows closely the wording of the Consumer Protection Act.
Clause 14 follows closely the equivalent provisions in the draft regulations which were made in connection with European Directive 98/43/EC. We consulted widely on the regulations and received no representations to the effect that a provision for appeal similar to these new clauses might be necessary.
The Bill deals with advertising, and the type of items which might be seized would be a sample poster or magazine to produce as evidence to demonstrate that tobacco advertising was published in it. They would have little intrinsic value. By contrast, the Consumer Protection Act confers powers to take away large quantities of goods on the grounds that they are unsafe, such as toys with loose eyes, or furniture which breaches fire safety standards, which might carry a significant financial value.
Sections 33 and 34 of the Consumer Protection Act do not deal with items such as computer hard disks which form part of the evidence only. They are intended to deal with consignments of dangerous toys or inflammable furniture which are alleged to be in breach of safety regulations, but not the records detained for use as evidence. The CPA makes a clear distinction between the use of the words "goods" and "records", the latter including records in non-documentary form. Section 34 of that Act provides that the enforcement authority may be liable to pay compensation for loss or damage caused by reason of the exercise of the power to seize or detain goods,
"if there has been no contravention in relation to the goods of any safety provision or of any provision made by or under Part III of the Act".
It is clear that it is only the goods to which the offence relates which are meant.
Nothing in the Bill prevents a person who requires the return of some detained item or who has suffered loss or damage as a result of the seizure seeking its return or seeking damages in civil proceedings. Indeed, we talked in Committee about what one would expect to be the straightforward response, and an aggrieved person would make representations that the documents were necessary for the pursuit of his or her business. One would expect in such a situation—for example, if the documents contained a computer disk containing financial accounts and the person did not have a back-up copy—that the authority would provide a copy. Indeed, it would be unreasonable for it not to do so in such circumstances.
Reference was made to remedies. There clearly would be remedies under judicial review. The noble Lord, Lord Lester, indicated that an action might infringe the human rights legislation. Clearly, in extreme circumstances, if a local authority—and that is what we are talking about—did not respond reasonably, there could be a civil action for damages against the local authority or the Department of Health, which is the other potential prosecuting and investigating body.

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For those reasons, we are not talking about the loss of substantial goods. It is possible that the taking away of documentation could interfere with the functioning of the business. That is a long shot; nevertheless, it would be unreasonable not to provide a copy to allow the continuing operation of the business while allowing the prosecution to go forward.
For those reasons, we do not believe that the amendments are necessary. We believe that there is already adequate protection as regards the mischief against which they seek to protect.
3 p.m.
Lord Skelmersdale: My Lords, I am not sure whether I ought to be asking this question before the Minister sits down or whether I can do it in the normal course of debate. Thanks to my noble friend Lord Geddes, I am now somewhat confused. Be that as it may, we seem to have arrived at a position in which, rather than the words of the Bill itself, we shall have to rely on another piece of legislation—namely the Human Rights Act 1998. That cannot be very satisfactory. can it?
Lord Filkiin: My Lords, I think that the human rights legislation gives very broad comfort in very many circumstances and that the House has already seen its benefit. I realise that I did not respond to the suggestion of the noble Lord, Lord Campbell of Alloway, that regulation or guidance might put beyond doubt some of the issues that I have described. Although I cannot make a guarantee or commitment on the suggestion, we shall certainly consider it.
Lord Clement-Jones: My Lords, we have had a very interesting debate on whether to import two sections from the Consumer Protection Act, and I do not propose to add a great deal to what has been said, particularly by the Minister and by my noble friend Lord Lester. We have a number of responses to the proposal to incorporate the two sections. The first is that the Bill will operate in the context of the Human Rights Act and the protection that it offers to those who believe that they have not been treated properly. Secondly, the Minister was particularly cogent on the differences between the items that will be seized by this legislation and those which are the subject of the Consumer Protection Act. As he said, documentation and disks are not covered by the Bill in the same way they are covered by the CPA.
Thirdly, the noble Earl, Lord Howe, said that the issue was not so much about the seriousness of the offence or the subject matter, but all about the potential harm. He almost made the argument against his own amendments. I also believe that—in relation to the protection offered by the CPA and the provisions of that legislation—disks and documents are treated differently in this legislation. Therefore, the potential harm is reduced.
I welcome the Minister's undertaking to consider the regulation issue, which the noble Lord, Lord Campbell of Alloway, raised. Although I realise that the Minister could not make a commitment, he has
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undertaken to consider the issue as and when the Bill moves on to be considered in another place. I can understand why the noble Earl, Lord Howe, has raised these issues, but I do not believe that they are necessary in practice or that they would add greatly to the Bill.
Earl Howe: My Lords, once again, I am grateful to all noble Lords who have spoken. This has been a useful short debate. The reason why I suggested that what counts here is the disruption and harm that could ensue from the use of the Bill's powers rather than any other consideration, is precisely that to which various noble Lords have alluded. The loss of a set of books and records—the loss of a hard disk, let us say—can be extremely disruptive and harmful to a business. The issue is therefore not wholly to do with the intrinsic value of the items that may be seized.
I think particularly, however, of brand-shared goods. What if an enforcement officer were to come in and seize goods that he considered to be tobacco advertisements but in fact were no such thing? What would happen if an enforcement officer raided the premises of Alfred Dunhill Limited and took away luxury goods in the belief that they were advertising Dunhill cigarettes?
Lord Filkin: My Lords, the distinction is that the trading standards officer might need one or two of the items for an investigation or a prosecution. The trading standards officer would not be able to seize a whole warehouse of goods under this Bill, as he would under the Food Safety Act 1990 if he believed that the goods were injurious; for example, contaminated corned beef. There is a distinction in the nature of confiscation under the two measures.
Earl Howe: My Lords, that is a helpful clarification and I am grateful to the Minister. The amendments that I tabled were, as I said, designed to protect the "small" man, which this House has a particular duty to try to do. They propose straightforward and inexpensive remedies. To rely on the provisions of the Human Rights Act, much as I take on board everything the noble Lord, Lord Lester, said—I bow always to his superior knowledge on these matters—does not seem to me to provide an equivalent degree of convenience, at least, to the person who feels himself or herself aggrieved. However, the debate has taken us forward. As I say, I am grateful to all noble Lords who have spoken. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 61 not moved.]
Earl Howe Earl Howe moved Amendment No. 62:
After Clause 15, insert the following new clause—
"REVIEW OF THIS ACT

(1) The provisions of this Act shall remain in force for six years and shall then expire unless continued in force by an order made under subsection (2).

(2) If, prior to the expiration of six years from the date of commencement of this Act or the coming into force of any order made under this subsection, the Secretary of State is satisfied that the operation of this Act has led to a reduction in the prevalence

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of smoking in the United Kingdom population, with particular reference to the uptake of smoking by persons under the age of 16, he may by order made by statutory instrument provide—

(a) that all or any of those provisions of the Act which are for the time being in force shall continue in force for a period not exceeding ten years from the coming into operation of the order, and

(b) that any of those provisions of the Act which are not for the time being in force shall come into force again and remain in force for a period not exceeding three years from the coming into operation of the order.

(3) No order shall be made under subsection (2) unless a draft of the order has been laid before and approved by a resolution of each House of Parliament."

The noble Earl said: My Lords, this amendment brings us back to the interesting but ultimately inconclusive debate we had in Committee on the merits of introducing a sunset clause in the Bill. Sunset clauses are by no means appropriate in every Bill, but in the right circumstances I am an unashamed fan of them. I take that position because I believe that much of the legislation that we place on the statute book needs to prove its worth. If it fails to do so, it has no business remaining on the statute book.
The Bill we are considering is justified by its promoter as a necessary measure in the fight to reduce smoking prevalence, especially among the young. I am the first to agree that that is a worthy and noble aim. We are not at odds over that. No one here wants to see young people, or people of any age come to that, take up smoking when we know the terrible consequences in terms of ill health that that can lead to. But the unanswered question remains: will this Bill have the desired effect? It is impossible to know until we have had experience of it in practice.
We need not, and should not, revisit Second Reading arguments at the end of Report stage, but if I were to summarise the doubts that I have about the likely effectiveness of the Bill, assuming it is enacted, they would be twofold. The first doubt is that the evidence that cigarette advertising increases tobacco consumption and induces non-smokers to take up smoking is at best mixed. There is evidence that it does and evidence that it does not.
The second doubt is that regardless of whether cigarette advertising does or does not have that effect a ban on such advertising may lead to perverse and unintended consequences that are far more damaging. As I said at Second Reading, I firmly believe that to be true. If you deny the tobacco companies the opportunity to compete by means of brand advertising, it follows inexorably that they will choose to compete in the only other way open to them—on price. The ready availability of cheap cigarettes is a much more powerful influence on smoking take-up and smoking prevalence than advertising.
So why am I proposing a sunset clause? Let us suppose that a ban on advertising does not achieve what its proponents hope. If during the years after this Bill comes into force the prevalence of smoking actually goes up, perhaps because of aggressive price cutting by the manufacturers, in those circumstances
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I would argue that there is a compelling social reason—an empirical reason—why this Bill should cease to have effect.
Let us suppose that the ban had no discernible effect one way or the other on the prevalence of smoking. Why would a sunset clause matter in those circumstances? It would matter because, much as several noble Lords may wish to forget it, the price of enacting the Bill is an erosion of commercial freedoms. In this country, we do not go in for curtailing the freedom of individuals or businesses unless we can advance compelling social reasons for doing so. When we debated this issue in Committee, the noble Baroness, Lady Jay, demonstrated that she had overlooked that point when she said that to follow through the logic of the proposal we should cease to provide nicotine patches on the NHS after a certain period and put a time limit on health education programmes in schools. The difference between those elements of an anti-smoking campaign and a statutory ban on tobacco advertising is that the latter involves an infringement of civil and commercial liberties and the former do not. Parliament may well wish to give the Bill's proponents the benefit of any doubt that may currently exist by passing it into law in the first instance, but the onus is then on the Government to demonstrate, after an appropriate period, that Parliament's faith was well founded.
Such considerations, and others, underlay many of the conclusions that were reached by the Joint Committee on Human Rights. The committee bore in mind a number of key principles, one of which was the proportionality of the Bill's provisions, measured against its supposed effects. The issue of proportionality is especially relevant in the context of the Bill's brand sharing provisions and of Clause 10, which is about sponsorship. In more than one part of its report, the committee questioned whether enough evidence had been presented to Parliament to enable the public interest case to be demonstrated beyond peradventure. It opined that only by having access to such evidence would it be possible for each House of Parliament to assess the issue of justification under paragraphs 1 and 2 of Article 10 of the ECHR—that article deals with freedom of expression.
We have heard much from the Minister about the nature of the available evidence, which, as I said, is not by any means one sided. If that evidence needs buttressing, it is incumbent on the Government over the next few years to assemble the relevant data and to make a judgment about whether or not the Act has worked. My amendment states that if the Secretary of State cannot satisfy himself that the Act has resulted in a reduction in the prevalence of smoking, it should cease to have effect. Anything short of that and we come up against human rights considerations.
The noble Lord, Lord Clement-Jones, knows that I proposed the amendment on as serious and principled a basis as he is presenting the Bill. I hope that he will treat the amendment with commensurate respect. I beg to move.
Baroness Finlay of Llandaff: My Lords, the amendment refers in particular to the uptake of smoking among people under the age of 16. I refer to an excellent systematic review by Sowden and Arblaster on mass media interventions to prevent smoking among young people. It outlines many of the methodological difficulties in obtaining data from that population.
Data collections in the under-16s are notoriously difficult. It is estimated that 23 per cent of children under the age of 11 have experimented with smoking. In six years' time—the time limit in the amendment—most of those children will still be under 16. People in that age group may make a declaration of activity. but it is difficult to ascertain true activity, particularly illicit activity, in areas such as substance abuse, petty or major crime and sexual activity. It is known that such data are incredibly difficult to obtain.
The other compounding variable in this matter is the ability of youngsters to purchase cigarettes illegally; that is, the current regulations are being breached at the point of sale. Again, there is good documented evidence from the research database that youngsters are able to purchase cigarettes even though they are under age.
The impact on the nation's health will probably not be directly proportional to the prevalence of smoking in the population. For example, if consumption of tobacco can be decreased among high-risk groups, such as pregnant women and those with diabetes and, in particular, diabetic pregnant women, there will be a very large impact on the future health of the nation because the number of small to-date babies will decrease as will the risk of those babies subsequently becoming diabetic when they reach adolescence. But, if one looks at the prevalence overall, one will not see that shift in the figures.
The amendment seems designed to cut off the Bill at the knees and to put short-term pressure on the medical profession, which for years has campaigned for such a Bill in the interests of the health of the nation. It will force a rapid expenditure in collecting baseline data so that the Government can argue in six years' time for the Bill to continue.
The intention of the Bill is to improve the health of the population. It seems to me that the intention of the amendment is to allow the tobacco companies to promote their product again in six to 10 years' time. The Bill does not make the consumption of tobacco per se illegal. The tobacco companies, which do not want the Bill, will now save vast amounts of money in advertising. Therefore, when they cannot advertise, they will be able to redress the exploitation that has taken place through low wages in poorer countries in the global economy. Tobacco-producing countries, where the workers are known to be underpaid, could have decent working conditions and higher rates of pay. That would redress some of the broader issues across the whole world poverty differential.
It would seem to be eminently preferable to use the money made available in that way either to cut the price of tobacco in this country, which would act as
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another way of promoting tobacco, or to bank the money in order to start advertising again with a vengeance in six to 10 years' time. Therefore, if the Bill is designed to help the health of the nation, I fail to understand why the amendment is being suggested.
3.15 p.m.
Lord Lester of Herne Hill: My Lords, because the Bill, if enacted, will impose real restrictions on freedom of commercial speech, as the Joint Select Committee on Human Rights indicated in its eighth report, there will inevitably be questions as to the compatibility of the Act with European Community law and European convention law. In that report, the Joint Select Committee explained how the basic principles of proportionality and legal certainty came to be applied to this type of problem. It spelt out with clarity—I was not party to it so I can say this with even more enthusiasm—exactly what the issues and factors were.
The committee came to the conclusion that the objectives of the Bill were legitimate, that the question of the legal certainty of the Bill depended, among other things, on complicated questions of European Community law, and that, so far as concerned proportionality, it was important for both Houses to be satisfied on the basis of evidence that the means employed in the Bill were reasonably necessary to achieve the important legislative objectives of the Bill. As I understand it, a great deal of evidence has been produced which leads to the question: whose job is it under our constitutional system of government to assess that evidence?
I believe that this is an example of the beneficial effects of the Human Rights Act and the European Communities Act. The reality is that all three branches of government are involved in this exercise: the executive branch, which produces the evidence and, through its Ministers, seeks to justify the measure; the legislative branch—ourselves—whose job it is to act as a kind of political court to weigh the evidence and to decide whether the objectives are sufficiently important and whether the means employed are reasonably necessary; and the judicial branch.
We have plenty of safeguards in regard to the judicial branch, as British courts can apply the Human Rights Act and the European Communities Act. So where European Community law is supreme, our courts must give effect to it and must set aside this Act if, in truth, it were in breach of Community law. If it were in breach of convention law, our courts would have to make a declaration of incompatibility. If necessary, the European Court of Justice and the European Court of Human Rights could be involved in that. There is a sharing of responsibility across the three branches.
With respect to the noble Earl, Lord Howe, the question raised by this amendment is whether it makes sense to impose an arbitrary period of life to the Bill, after which it would automatically die, as the sun goes down at the end of the day. I suggest that that is not sensible. If the fears raised by the opponents of the Bill about its compatibility with human rights or anything

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else were well founded, as I have tried to summarise, there would be ample opportunity for effective remedies, both in our courts and in the two European courts as guardians of the rule of law.
I do not know whether challenges would be made. I suspect that, given the commercial interests at stake, they will be made. I expect that members of my profession will find themselves enriched in the process. I am afraid that that is the effect of having lawyers in legal proceedings. All those safeguards are there and for the life of me I cannot see why a political fetter needs to be placed on the life of the Bill. If it became law, and if the opponents of the legislation were right, in a legal challenge either British courts or one of the two European courts would be able to provide effective remedies.
Therefore, I respectfully suggest that this House carries out its job in evaluating whether the objectives of the legislation are legitimate and whether the means employed are proportionate. If the answer is yes—I hope that that answer is given by this House and by the other place—then there is the matter of legality, which is not one for this House, but a matter for British and European courts. For those reasons I hope that the amendment will not be acceptable to the House.
Lord Monson: My Lords, even if this Bill does not contravene European law in any way, does the noble Lord agree that it may still be contrary to our British traditions of freedom? I believe that that was the point that the noble Earl was trying to make.
Lord Lester of Herne Hill: My Lords, I believe that the European Convention on Human Rights, drafted by British legal draftsmen, reflects traditional British, civil and political rights, including the right to the freedom of speech, going back at least to the 17th century. I have never regarded the European convention as some kind of alien construct, emanating from the French or the American Revolutions. It is as British as Magna Carta, and the values expressed, including the principle of proportionality—do not take a sledgehammer to crack a nut are impeccably British values.
Baroness Jay of Paddington: My Lords, as the noble Lord was kind enough to refer to part of the argument I made in a similar discussion in Committee, I shall be grateful if I may be allowed to make the second part of the argument, to which he did not refer, but which is worth repeating, however briefly.
The Government and health educators have always made the point that tobacco advertising alone cannot be a suitable weapon to deal with the prevalence of smoking. Indeed, to successfully contain smoking prevalence, a wide range of measures and activities must be undertaken across the board. That is one of the arguments I was making in Committee.
There is one point which the noble Earl did not make. In many countries where a tobacco advertising ban has been introduced, one can assume that a sufficiently significant fall in tobacco consumption is
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related to the ban. But it has also been my consistent view that in the course of introducing a wide range of anti-smoking measures—as this Government have done and, indeed, has happened over the past few years—such as nicotine patches on the health service and health education in schools, it would be difficult to separate out the precise contribution that a ban on tobacco advertising has made.
That does not undermine the significance of introducing a tobacco advertising ban. But it makes it more difficult, even with all the successful monitoring methods which I am sure will be introduced, to see what impact the Government's measures and, for instance, the Bill of the noble Lord, Lord Clement-Jones, if it is successful, will have on the reduction of smoking. It would not be sensible to try to isolate it and monitor it in precisely the way the noble Earl's amendment suggests, particularly over a limited timescale. I suspect this will be another area where the friends of the noble Lord, Lord Lester of Herne Hill, in the legal profession will simply enrich themselves even further.
Lord Peston: My Lords, I start from a position very similar to that of the noble Earl, Lord Howe. If we were not debating this Bill today but were debating constitutional matters, and it was suggested that all Bills should have a sunset clause, and that the final clause should always be a review of the Act to see whether the Bill achieves the good it sets out to achieve, or removes the harm it sets out to remove, I would put my hand up and say that it was a good thing for all legislation. It would also have the enormous benefit that most Home Office Bills would disappear very rapidly.
But the question we must address today is why, of all the Bills that come before your Lordships' House, do we single out for special research a Bill to do with the banning of tobacco advertising and promotion? I can think of no non-cynical reason why that is put forward.
I shall follow the noble Earl's dictum of not making a Second Reading speech, although I am afraid my two noble friends made Second Reading speeches, albeit totally related to the points raised by the noble Earl, in pointing out how difficult it is to make these assertions.
I hope that the noble Earl does not divide the House on this matter, although if it was a general provision to be applied to all legislation, I would be hoping for a Division and the noble Earl would have me voting with him.
I come to the point on commercial freedom. We seem to have become involved with human rights. I ask noble Lords to address themselves to the pharmaceutical companies, which are in the business of producing drugs of immense benefit to mankind, as opposed to the cigarette manufacturers. They are subject to the strictest controls, especially in the fields involving chemistry, biochemistry and their effects on human beings—the so-called "side effects" problems. Even with drugs possessing enormous potential for

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good, there have only to be one or two experiments turning up the definite chance of side effects and the drugs are not given a licence. Commercial freedom is interfered with.
I compare that with the position of the tobacco companies producing a product that kills. For anyone to stand up in this Chamber and use the expressions, "human rights" and "commercial freedom". is absolutely preposterous. To hear noble Lords who claim to be concerned with human rights defending these companies on that basis is something that I am sorry that I have to sit here and listen to. We are dealing with companies producing a product that kills. I suggest that noble Lords compare what they do with the pharmaceutical companies and how they are regulated; there would then be something much more powerful than this Bill before your Lordships today.
3.30 p.m.
Lord Campbell of Alloway: My Lords, yes, I suppose that I claim to be a Conservative. But I am not very happy about sunset clauses. I never have been. I am not happy about having one in this Bill because, inevitably, there will be one or two massive test cases on the evidence as to whether the convictions in the criminal courts stand up. Then the assessment will be made by the courts. It is no use any noble Lord being confident in his opinion that this is right or that is wrong. That is totally beside the point. There will be a series of test cases, one of which will inevitably go to your Lordships' Appellate Committee, in which the whole of the evidence will be sorted out and a decision will be made as to whether the provisions of the Bill are right or wrong. That encapsulates the dispute between the Government—I am using the Government because after all they support the Bill—who give a certificate of ECHR compliance and those who say, "No". That dispute cannot be resolved by the assertion—confident or not—of any noble Lord in this House or anywhere else. It must he resolved by the courts. In view of that, what on earth is the logic of having a sunset clause? In the mean time, the whole thing would have been resolved by the courts. Therefore, I suppose, yes. I do not know whether it is a Conservative point of view, but it is my own.
The Earl of Listowel: My Lords, I understand the principled position that the noble Earl, Lord Howe, takes. But from what I have heard during the debate, I am concerned about the possibility of perpetuating inequalities in health. I hope that the noble Earl will bear that in mind when he makes a decision on whether or not to seek to divide the House. Of children in care, 75 per cent have no educational qualifications whatever. Only 4 per cent achieve five GCSEs grades A to C, whereas 50 per cent of the general population achieve those grades. Therefore, I argue that this group is particularly vulnerable to advertising. I hope that the noble Earl will bear that in mind when he makes his decision.
Lord Skelrnersdale: My Lords, as noble Lords will appreciate from my activities today, I normally tend to
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lead with my chin. On this occasion I have waited to hear what was said. I noted that two things were not said. First, that since 1997 tobacco consumption has gone up by some 3 per cent. That is, I believe, a direct result of the Government's laxity in containing tobacco smuggling, which has increased by roughly the same amount. The two are equal.
It is noticeable that the proponents of the Bill believe that, with its massive and unprecedented nature, tobacco consumption is likely to be reduced by around 2.5 per cent in the long term. Therefore, overall, I cannot understand why they are so vehement—so dogmatic, if you like—about the good that this particular Bill will do. Of course it will do some good; it will certainly prevent some people taking up smoking. Whether it will stop people continuing to smoke is much more doubtful.
Earlier, I described myself as in general a fact of sunset clauses. I noted in Committee that the noble Lord, Lord Hunt of Kings Heath, talked about specific uses for sunset clauses and cited such acts as the Terrorism Act 2000, the Armed Forces Act 1996, the Imprisonment (Temporary Provisions) Act 1980 and the Northern Ireland (Emergency Provisions) Act 1973. With the greatest respect, that is a selective list. It is perfectly obvious why those temporary provisions Acts—as they all are to a greater or lesser extent—should need continuation clauses and to be reviewed regularly by Parliament.
Secondly, the Minister failed to mention the Electronic Communications Act 2000, which does not fall into that category. It is worth noting that that sunset clause was promoted not by a Back Bencher in either House of Parliament but by the Secretary of State for Trade and Industry. The noble Lord, Lord Clement-Jones, may know that full well because I know that he spoke at the seminar at which the Secretary of State promoted the provision. I hope that neither the Minister nor the noble Lord, Lord Clement-Jones, will rest on their previous argument that sunset clauses are necessarily for particular types of legislation.
Lord Hunt of Kings Heath: Well, my Lords, we seem to have come to the crux of the argument in this debate. Although the noble Earl, Lord Howe, suggested that when we discussed the matter in Committee and on Second Reading, we came to an inconclusive conclusion, I believe that the evidence is clear that the impact of the Bill will be to reduce tobacco consumption in this country. As such, it is to be welcomed and supported. A convincing case has not been made for a sunset clause to be used in the Bill.
Two years ago, in its report, Nicotine Addiction in Britain the Royal College of Physicians stated that smoking causes one in every five deaths in Britain and the loss of more than 550,000 years of life before the age of 75 and that it is the single most important health problem in Britain. Martin Broughton, the chief executive of BAT, said in The Times this morning that he understands that smoking carries health risks. That in itself justifies taking strong action to try to reduce the prevalence of smoking.

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At Second Reading, I set out why the bulk of the evidence suggests that the Bill is likely to bring about a modest but real reduction in smoking levels. I mentioned the Smee report, commissioned and published, to their credit, by the previous government, which concluded that countries with an advertising ban experienced a subsequent fall in smoking on a scale that could not reasonably be attributed to other factors.
As long ago as 1989, the US Surgeon-General concluded that,
"the collective empirical, experiential and logical evidence makes it more likely than not that advertising and promotional activities do stimulate cigarette consumption".
Two years later, research found that a 10 per cent increase in advertising expenditure would lead to a 0.6 per cent increase in consumption.
More recently, the World Bank, in its report, Curbing the Epidemic, found:
"A recent study of 22 high-income countries based on data from 1970 to 1992 concluded that comprehensive bans on cigarette advertising and promotion can reduce smoking".
It predicted that a European Union-wide ban on tobacco advertising would reduce tobacco consumption by about 7 per cent. The evidence that the Bill will have a positive impact in reducing tobacco smoking is compelling.
I listened with great care to the noble Earl, Lord Howe, when he suggested in the first place that, if we decided to prevent tobacco companies from competing with one another by means of advertising, we will force them to compete in the only other way open to them—price. The noble Earl expressed concern that, if the average price of tobacco fell, consumption would rise. I can reassure the House that the Government recognise that that is one of the ways in which tobacco companies may strive to knock down the price of their cigarettes to fend off their competitors. Any widespread fall in prices could be met by action by the Government to review the structure and rates of excise duties on tobacco products. I assure the House that we will keep that matter under close review.
The noble Lord, Lord Skelmersdale, raised the other familiar issue—smuggling. Of course, the Government are concerned about the impact of the smuggling of tobacco goods. We have introduced a strategy to take away the profits of tobacco smuggling by hitting all aspects of the problem: first, by seizing massive volumes of cigarettes at the ports before they can come onto the streets and, then, by tasking local customs fraud teams, supplemented by a national mobile task force, to blitz potential hot spots repeatedly. In the Pre-Budget Report of November 2001, the Government published the first-year results from the tobacco strategy, showing that customs had met their key target of holding the illicit share of the UK market to 21 per cent, with 2.8 billion cigaret”tes seized in 2000–01.
1720
One can, of course, never be complacent, but it is worth recording that customs have also achieved a 76 per cent reduction in the amount of revenue lost due to the cross-Channel smuggling of tobacco and alcohol, against a target of 10 per cent for 2001.
Lord Faulkner of Worcester: My Lords, can my noble friend the Minister confirm that there is now the strongest evidence that the tobacco companies themselves are at the heart of many worldwide smuggling scams? Did he see the report in The Times yesterday, in which two major American companies were accused of breaking US embargoes on trade with Iraq, by smuggling billions of cigarettes into that country?
Lord Hunt of Kings Heath: My Lords, my noble friend will not draw me into making specific allegations in the House, but, no doubt, noble Lords will take account of the views that he expressed. My other point about smuggling is that there are countries in Europe with lower price and tax structures for tobacco products than this country in which smuggling is just as much a problem as it is here.
The noble Lord, Lord Lester of Herne Hill, put his finger on it when he talked about proportionality. The Joint Committee on Human Rights produced a most interesting report. My honourable friend, the Parliamentary Under-Secretary of State for Public Health, Yvette Cooper, has now responded to the committee and laid out in a letter and a report the reasons why the Government believe that the evidence is persuasive and why it was entirely right that, when the Government Bill was published, a Minister was able to say that he believed that the terms of the Bill were consistent with European legislation.
The noble Lord, Lord Lester of Herne Hill, also pointed out that the combination of the responsibility of the executive to provide the evidence, the legislature to weigh the evidence and the judiciary to ensure that judicial process is observed provides the kind of safeguards that are necessary in such a Bill. The noble Lord was persuasive about that.
The noble Lord, Lord Skelmersdale, thought that I had been somewhat selective in my reference to legislation produced using examples of sunset clauses. Sunset clauses, of their very nature, will be used only in special circumstances. I do not believe that the circumstances of the Tobacco Advertising and Promotion Bill warrant that use. The Bill as a whole is balanced and proportionate and contains sufficient safeguards which have been added to as a result of the 30 amendments tabled by the noble Lord, Lord Clement-Jones. Those amendments have been accepted.
On that basis, the Government recommend that the House does not support the noble Earl, Lord Howe, in proposing a sunset provision.
3.45 p.m.
Lord Monson: My Lords, before the noble Lord sits down, does he agree that by all accounts there are more people in this country under the age of 40 who have smoked cannabis on more than one or two occasions

1721
than there are people under the age of 40 who have smoked cigarettes? That is the case even though cannabis has never been advertised or promoted. How can the Minister be so certain of the link between advertising and tobacco consumption?
Lord Hunt of Kings Heath: My Lords, the reports to which I referred in my introductory remarks have made it abundantly clear that there is a link. The Surgeon-General of the United States, Mr Clive Smee, tasked by the previous government to look into these matters, and various other reports have produced quite persuasive evidence that the implementation of this Bill will have a wholly positive impact on reducing tobacco consumption.
Lord Clement-Jones: My Lords, I believe that the Minister was entirely right to highlight the point made by my noble friend Lord Lester. The key questions for this Bill are whether its aims are legitimate and whether the means are proportionate. I thought that the noble Lord, Lord Campbell of Alloway, had it right. He did a remarkable demolition job on the proposition for a sunset clause. I have no doubt that the Bill will be tested in court by the manufacturers in due course.
I am firmly of the belief that the provisions of the Bill are proportionate. All the way through our debates in Committee and the Report stage today, we have been describing how the Bill is proportionate. That has marked the foundation of our debates. I thought that the speech of the noble Lord, Lord Peston, on the position of the pharmaceutical industry in which he pointed out that it produces beneficial products that are subject to far tighter controls over advertising, was a case in point. It illustrates strongly that this Bill is indeed proportionate.
I shall not adduce the evidence again, but a great deal of evidence has been provided at each stage of the Bill and as we have discussed the various elements of the provisions. It was referred to at some length at Second Reading. It was referred to when the Government brought forward their Bill, when I brought the Bill forward in this House and, of course, in the other place with regard to the original Bill. That evidence was also provided to the Joint Committee on Human Rights.
Noble Lords in this House are only too expert in understanding the sources of the evidence. I am quite convinced that the evidence base is sufficiently robust for Parliament to legislate on this subject and for the Bill to be considered proportionate. The Smee report has been mentioned, along with the World Bank report, the review Curbing the Epidemic by Saffer and Chaloupka and so forth. In contrast, the only evidence brought forward by noble Lords who oppose the Bill have adduced is the KPMG report. No doubt noble Lords will be aware that the more that report is unpicked—not only its provenance, but its choice of countries and the way in which the evidence was presented— the more it is demonstrated that it was a deeply flawed piece of work and certainly should not be used to cast doubt on any of the evidence referred to today by the Minister.
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Of course some noble Lords have made the case that advertising is a less important determinant of smoking than many other factors such as price, availability, social cachet and so forth. However, it may well be a strong component which, when combined with those other elements, has an effect. Indeed, it is the other side of the argument. It is perfectly possible to regard a ban on advertising as part of a total package, a point rnade by the noble Baroness, Lady Jay. That is a further reason why a sunset clause would be inappropriate because the Bill forms part of a package and a strategy. No one has ever pretended that the Bill provides the only way to cut back on smoking or to prevent people from starting the habit.
Of course the short-term pressures are considerable in terms of pricing. If we had a sunset clause, there would be a great temptation for the manufacturers to drive down prices, which would perhaps lead to an increase in smoking.
A point was made about tobacco smuggling. Of course I would advocate that tobacco smuggling should be dealt with. It is a part of this package. It may be dealt with by a different government department, but I am sure that the Government will be vigorous in tackling the smuggling problem.
I cannot answer the question about the Electronic Communications Act. I am very touched by the faith of the noble Lord, Lord Skelmersdale, in my ability to answer his question as to why there should be a sunset clause in that Act, but I still believe that sunset clauses are used only on matters of overriding public importance. The Acts mentioned by the noble Lord speak volumes in that respect, and we need to make that important point in this context.
I do not wish to prolong the matter any further. We have had a very good debate, in the course of which the arguments have been overwhelmingly in favour of those who do not see the merits of a sunset clause.
Earl Howe: My Lords, it has been a useful and helpful debate and I am grateful to all noble Lords who have commented so thoughtfully on my amendment. The amendment reflects, in essence, what the Joint Committee said—that is, that if the Bill is to merit its place on the statute book there must be credible and compelling evidence that the presupposition underlying it is well founded.
The noble Baroness, Lady Jay, said that it was probably impossible to separate out the contribution that a ban on tobacco advertising would make on smoking prevalence in the context of all the other antismoking measures that the Government are taking, but anything less than compelling evidence makes the Bill an act of faith.
The Minister and the noble Lord, Lord Clement-Jones, said that the evidence already exists. That is very good—the Bill will become law. I am certainly not stopping it, but I am inherently unhappy with an argument that we should sweep up a ban on tobacco advertising into the array of the Government's antismoking measures—and do so on a permanent basis—without assessing the effects of such a ban over the long term.

1723
I am grateful to the noble Lord, Lord Peston, for his wise remarks. In particular, I am grateful to him for posing the question of why one should have a sunset clause in this Bill of all Bills. That is a perfectly sensible question. I notice that the noble Lord did not object to the Government's own sunset clause in the Ofcom Bill. But, be that as it may, he drew a comparison with the pharmaceutical industry, which I tried to follow. The whole point about the pharmaceutical industry is that we are dealing there with evidence-based medicine. There is definitely a body of evidence which tells you whether or not a drug is safe and efficacious.
The noble Lord took exception to anyone uttering the expressions "human rights" and "commercial freedom" in the context of the Bill. I am sorry about that. I understand his attitude towards the tobacco industry—it is an attitude that I respect even though I do not share it—but we must not forget that we are dealing here with a legal product. If it were an illegal product, I would be the first to agree with the noble Lord that the questions of human rights and commercial freedom should go out of the window, but we cannot do that here.
Lord Peston: My Lords, perhaps I may clarify the issue. One of the points I was trying to make is that if, before putting its products on the market, the tobacco industry had to meet the standards that pharmaceutical companies have to meet, no one would be able to buy any cigarettes in this country at all—and no one would argue that that was an infringement of their human rights or anything of that kind. That is the point I was trying to make.
Earl Howe: My Lords, I am grateful to the noble Lord. As I am grateful to my noble friend Lord Campbell of Alloway for being the kind of Conservative Back-Bencher who is not afraid to speak his mind.
I should also like to express my gratitude to the noble Lord, Lord Lester of Herne Hill, who, not for the first time today, has enlightened our proceedings. I would say to him that it is not entirely surprising that he seeks to raise the possibility of a legal challenge, as opposed to any other sort of challenge, to the validity of the Bill. The sort of challenge that I am proposing in this amendment is a challenge by the Minister of the day, and I should have thought that a ministerial decision based on the available evidence would be a much better route than legal action for determining whether the Bill's provisions should continue in existence.
The Government professed to believe that this Bill will lead to a reduction in smoking prevalence of about 2.5 per cent in the long term. Either that estimate is well founded or it is not. If the Government and the noble Lord, Lord Clement-Jones, are so confident about the science and the strength of the evidence, they have absolutely nothing to fear from the sunset clause: nothing at all. Nor would I wish to interfere with a ministerial decision that the Bill had had the desired effect and that it was proportionate.
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However, notwithstanding the strength of the opposition to the arguments I have advanced, I beg leave to take the opinion of the House on this issue.
3.56 p.m.
On Question, Whether the said amendment (No. 62) shall be agreed to?
Their Lordships divided: Contents, 16; Not-Contents, 49.

Division No. 1

CONTENTS

Brougham and Vaux, L.

Liverpool, E.

Burnham, L.

Luke, L. [Teller]

Erroll, E.

Monson, L.

Gardner of Parkes, B.

Moynihan, L.

Geddes, L.

Northesk, E.

Haslam, L.

Palmer, L.

Hooper, B.

Skelmersdale, L.

Howe, E.

Vivian, L. [Teller]

NOT-CONTENTS

Andrews, B.

McIntosh of Haringey, L.

Barker, B.

MacKenzie of Culkein, L.

Bradshaw, L.

Maclennan of Rogan, L.

Campbell-sovours, L.

McNally, L.

Carter, L.

Massey of Darwen, B.

Clement-Jones, L. [Teller]

Miller of Chilthome Domer, B.

Condon, L.

Mitchell, L.

Dubs, L.

Newby, L.

Elder, L.

Northover, B.

Faulkner of Worcester, L. [Teller]

Oakeshott of Seagrove Bay, L.

Filkin, L.

Peston, L.

Finlay of Llandaff, B.

Ramsay of Cartvale, B.

Gale, B.

Rea, L.

Gibson of Market Rasen, B.

Rodgers of Quarry Bank, L.

Greaves, L.

Scott of Needham Market, B.

Hamwee, B.

Sharp of Guildford, B.

Haskel, L.

Simon, V.

Hayman, B.

Stone of Blackheath, L.

Hooson, L.

Symons of Vernham Dean, B.

Howarth of Breckland, B.

Taveme, L.

Hunt of Kings Heath, L.

Thomas of Walliswood, B.

Jay of Paddington, B.

Wilkins, B.

Lester of Herne Hill, L.

Williams of Crosby, B.

Listowel, E.

Williams of Mostyn, L. (Lord Privy Seal)

Woolmer of Leeds, L.

Resolved in the negative, and amendment disagreed to accordingly.
4.6 p.m.
Clause 16 [Penalties]:
Lord Campbell of Alloway Lord Campbell of Alloway moved Amendment No. 63:
Page 9, line 13, at end insert—
"() On service of notice of appeal against conviction on the ground that the offence is not "prescribed by law" either—

(a) as is capable of justification under Article 10(2) of the European Convention on Human Rights as not requisite or proportionate to protect public health; or

(b) as is proscribed by Articles 28 and 49 of the Treaty establishing the European Community as an arbitrary or disguised restriction on trade between Member States more extensive than requisite to achieve a legitimate object,

1725
the High Court may order a stay on enforcement of any penalty imposed pending determination of the appeal, or until further order, on such terms as may be deemed to be just and expedient."

The noble Lord said: My Lords, this amendment derives from a probing amendment moved at Committee stage on 18th January. I thank all noble Lords whose contributions on that occasion were reflected in the amendment that I move today, which was printed on 22nd January.
But at the outset I have given notice of my intention to do so to the noble Lord, Lord Clement-Jones, and the noble Baroness, Lady Williams of Crosby, that I have the misfortune to deal with a formal complaint made to the Commons Clerk of the Joint Committee on Human Rights, of which I am member, as to my conduct when moving the probing amendment.
Complaint was made by the noble Lord, Lord Clement-Jones, by letter of 15th February, to which a copy of the amendment I am moving today was attached. The noble Lord gave me no notice of his intention to write that letter or indeed no notice of any complaint that he had as to my conduct. The noble Lord said in the letter of the 15th to the Commons Clerk that the report of the Joint Committee on Human Rights of 17th December had been brought to his attention and that I gave the impression at Committee stage on 18th January that my amendment was,
"in line with the views of the Joint Committee of which he [is] a member".
First, that is totally untrue. Secondly, anyone who cares to read the Official Report of 18th January and the report of the Joint Committee on Human Rights of 17th December, will see at once that I referred to paragraphs in the report of the JCHR concerned with "prescribed by law" and "proportionality" only to identify the two areas of appeal against conviction as to which, on the basis that there was an arguable case, the measure of safeguard proposed by the amendment would be appropriate.
I did not refer to paragraph 19 of the report, which suggested that such matters should be explored by Members of both Houses: for such was what I was doing. That was well understood by the noble Lord, Lord Hunt of Kings Heath, notwithstanding that he held the opinion that the Government were right in regard to compatibility with the ECHR—on which he would be the first to concede that mistakes have been in the past.
The sting in this is all too plain: that I, as a member of that committee, gave the false impression that the probing amendment—and the amendment that I move today—was in line with the views of the committee on which I serve in order to bolster the argument that there is an arguable case. I adhere to the view that there is an arguable case, particularly in the light of the judgments of the Court of Appeal in the transport case. As I said earlier, such matters cannot be resolved by the confident assertion of any noble Lord. They are resolved by a court of law, subject to supra-national law. So it comes to this.
I have been in this House for some 20 years. My conduct has never been called into question by anyone, save, perhaps, my own party.
Noble Lords: Oh!
Lord Campbell of Alloway: Well, not publicly, not on the Floor of the House. As I see it, this is a totally unwarranted and unwelcome aspersion cast upon conduct on the Floor of the House by a Member of the House. A complaint was made to a Clerk of the House of Commons, without any form of notice.
On 26th February, the Joint Committee met, absolved me of any want of propriety and asserted the freedom of any member of that committee to use the reports in either House. It was agreed that I should deal with the matter today.
I turn to the amendment. On 20th February. I received a most interesting letter from the noble Lord, Lord Hunt, which could well dispose of the amendment—as it appears that in the international transport case the enforcement of penalties on conviction were stayed pending appeal. If that procedure were to be implemented generally. I totally accept that the amendment would be otiose. However, I thank the Minister and the noble Lord, Lord Filkin. and their department for the courtesy and trouble that they took in writing to me. Perhaps for the sake of the record I may quote a section from the letter:
"Thank you for your letter of the 21 January notifying me of your amendment for Report stage … I was very grateful to you for writing to me and I have looked at the Amendment very carefully. The view taken here is that the Amendment does not give any additional rights over and above those that exist at present. When a person appeals against conviction, the court to which he appeals already has the right to stay any penalty pending determination of the appeal. I therefore do not see why we need to make any special provision for people who may be convicted under the provisions of this Bill".
The Court of Appeal then gave its decision on 26th February. I am grateful to the noble Lords and to those in their department. I beg to move.
4.15 p.m.
Lord Lester of Herne Hill: My Lords, perhaps I may begin, as a fellow member of the Joint Select Committee on Human Rights, by mildly teasing the noble Lord, Lord Campbell of Alloway. I remember one evening, at about nine o'clock, I was trying to persuade this House—we may have been in Committee—that there should be a Human Rights Act, when the noble Lord got up after I had made a point and said that I was making a serious point after the dinner hour. He said it as though that were a high crime and misdemeanour. The exchange has now been quoted in books as an example of the sense of humour that we have among ourselves. I begin with that story because I am very concerned that we should keep a sense of humour.
Lord Campbell of Alloway: My Lords, this is not a joke. It is a sting against my character, and I would be obliged if the noble Lord would not start by telling jokes.
Lord Lester of Herne Hill: My Lords, I do not mean to be offensive.
Lord Campbell of Alloway: You were.
Lord Lester of Herne Hill: My Lords, I apologise for having caused offence. I suggest that the matter indicates a misunderstanding. I think that that was the view taken in the Joint Select Committee when the matter was discussed and the noble Lord and I were both present.
My noble friend Lord Clement-Jones was concerned about the fact that, when our Committee met in December, it considered his Bill without his having any opportunity to make any representations. This is a Private Member's Bill, and he felt concerned about that. Therefore, on my advice, he decided that he would write to the committee. I was not responsible for the letter, but that is how it came about. He wanted to draw the committee's attention to the fact that he had had no opportunity to make representations.
I realise that the noble Lord, Lord Campbell of Alloway, construes my noble friend's letter as a complaint against him. I myself certainly do not construe it in that way, nor do I believe that it was so intended. What I am quite clear about is that the committee reaffirmed what is obvious anyway—that each member of that committee, and any Member of this House, is entirely free to make whatever use they intend of the public record contained in our reports. The noble Lord was entirely entitled to table his amendment on his interpretation of the report, and that is what he did. No criticism of any kind should be made of him for doing that, and the committee has made that perfectly clear. I do not know whether my noble friend Lord Clement-Jones will wish to add anything to what I have just said.
I move to the amendment itself, which I do not believe is necessary or a result of our Joint Select Committee report. In paragraph 19 of the report, we indicated what we thought about legal certainty. There is no point in my repeating that. The amendment, however, would write into the Bill a power in the High Court to stay the enforcement of a penalty when there had been a conviction on the ground that the offence was not proscribed by law. That is not a necessary power to write into the Bill, and I think that the noble Lord, Lord Campbell of Alloway, more or less concedes that in the kind things that he said about the department.
Lord Campbell of Alloway: My Lords, I clearly conceded it. However, I have not yet received an acknowledgement or an apology for a sting and a slur on my character. I gather that the noble Lord did not draft it, but he advised on the letter. I think that this is an incredible way of dealing with a charge of misconduct on the Floor of the House. I protest.
Lord Lester of Herne Hill: My Lords, I think that I have said all that I can say on that matter. I finish on the amendment itself. It is not necessary because the court has an inherent power to stay proceedings. The
1728
noble Lord referred to one example in which I acted as counsel in the lorry drivers' case. There was a stay in order to allow the Human Rights Convention points to be taken. The points in this amendment are all points that could be taken in the courts. If they were taken, the inherent jurisdiction of the court would ensure that there was a stay so that no one had to pay a penalty while the matter was being tested. If necessary the Court of Appeal would be asked to give a declaration of incompatibility—which is what would happen in this case, if the argument were correct—and there would be a stay pending an appeal to the Court of Appeal. The argument would be that this statute as a matter of law is outwith the European Human Rights Convention or European Community law and is incompatible. Therefore, one should either strike it down under Community law or declare incompatibility under the European Convention.
If that were done under European Community law, there is no question that a stay would be granted. If it were done under European Convention law, the same would follow. The amendment is in my view not necessary and does not really follow or flow from the Joint Select Committee report. As I say, I do not think that the committee has taken the view that there is the slightest stain on the noble Lord's character, or any aspersion against him. However, that is a matter between the two noble Lords.
Lord Hunt of Kings Heath: My Lords, the amendment has been well disposed of. As regards the letters, I have not seen copies of the correspondence but I am sure that all noble Lords will know that the noble Lord, Lord Campbell of Alloway, is a man of the highest integrity and that his contribution to this Bill has been wholly positive and welcome.
Lord Clement-Jones: My Lords, this is a valuable opportunity for me to set the record straight. The noble Lord, Lord Lester, has dealt with the substance of the amendment. The noble Lord, Lord Campbell of Alloway, has indicated what he plans to do with regard to the amendment. I apologise to the noble Lord, Lord Campbell of Alloway, if he considers that I have made a charge of misconduct against him. Certainly, that was not my intention in the letter to the Joint Select Committee. No discourtesy of any description was intended. It was not intended as a complaint about misconduct. I have no complaint about the noble Lord's conduct in Committee. Perhaps the wording of the letter was not as felicitous as it might have been. Perhaps I should have stated that I gained the impression, rather than that he gave the impression. That would have given a better flavour of my subjective interpretation of what he said in Committee.
It is important for the House to know the context of this matter. I was not given the benefit of any discussion with the Joint Select Committee. The report that was quoted—I heard about the report for the first time when the noble Lord, Lord Campbell of Alloway, raised it in Committee—came as a complete surprise to me. I did, indeed, gain the impression that the noble

1729
Lord was praying in aid the committee's report. However, that was clearly my problem rather than his. As has been explained, on the advice of the noble Lord, Lord Lester, I wrote to the Joint Select Committee asking for clarification and whether or not the amendment tabled by the noble Lord, Lord Campbell of Alloway, for Report stage was in line with the committee's views, as paragraph 19 of its report was clearly at odds with it, which somewhat baffled me.
The noble Lord, Lord Lester, could not advise me on the substance of the report as he had not been present through the deliberations of the committee on that particular occasion. Therefore, it was purely a matter of whether or not it was appropriate to write to the committee. I apologise to the noble Lord, Lord Campbell, if he felt that that comprised in a sense some personal allegation against him. If it had been, I certainly would have—
Lord Campbell of Alloway: My Lords, I am obliged to the noble Lord for giving way. Would he accept that we are neither friends nor enemies, that we do not really know each other and that if he is going to write about me to the Commons Clerk of a committee why on earth does he not give me some notice? Why write? Why do all this even on the advice of the noble Lord, Lord Lester? Why do a thing like this without giving notice?
Lord Clement-Jones: My Lords, I am not going to prolong this discussion much further. I have explained the background and apologised to the noble Lord. The fact is that he is a member of that committee and received a copy of the letter as part of the committee papers. There was no personal complaint against him and it seemed quite proper that this matter should have been between myself and the Clerk—I asked him to place a matter on the committee's agenda. I was advised that the Clerk was the proper person to write to and I believe that the committee dealt with the matter entirely properly, as subsequent events have shown. That is my position.
On the substance of the amendment, my noble friend Lord Lester, the noble Lord, Lord Campbell of Alloway, and the ministerial letter set out the position very clearly. All the points in the amendment are, as a matter of law, available in any event.
Baroness Williams of Crosby: My Lords, the noble Lord, Lord Campbell of Alloway, has made a very distinguished contribution to the House over many years and to this Bill. I hope that he will accept the explanations presented by my noble friends, which were given with full honesty and generosity. It would be a great shame if our debate on this milestone of a Bill, to which the noble Lord has contributed, ended on a note of personal disharmony. I hope that he feels able to accept the statements made from these Benches.
Lord Campbell of Alloway: My Lords, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Clement-Jones Lord Clement-Jones moved Amendment No. 63A:
After Clause 16, insert the following new clause—
"DEFENCES: BURDEN OF PROOF

(1) This section applies where a person charged with an offence under this Act relies on a defence under any of sections 5(1) to (6), 6(1), 9(4), 10(3) and (4) and 15(3).

(2) Where evidence is adduced which is sufficient to raise an issue with respect to that defence, the court or jury shall assume that the defence is satisfied unless the prosecution proves beyond reasonable doubt that it is not."

On Question, amendment agreed to.
Clause 18 [Regulations]:
[Amendments Nos. 64 and 65 not moved.]
Clause 19 [Transitional provisions: sponsorship]:
Baroness O'Cathain Baroness O'Cathain moved Amendment No. 65A:
Leave out Clause 19.
The noble Baroness said: My Lords, the noble Lord. Lord Clement-Jones, said earlier that he wants the Bill to contain as few exemptions as possible. If the Bill is so important to the health of the nation, there should in logic be no exemptions at all. In our debate on the sunset clause, the noble Lord, Lord Hunt, gave some impressive statistical data and research results, which led me—and, I am sure, most other noble Lords—to have absolutely no doubt about the fact that banning advertising and promotion will save lives. I therefore find it very difficult to accept any delay in implementation.
Since our debate in Committee, my attention has been drawn to a study known as the Keith Dun ant project. It was commissioned by the Oxford health authority and undertaken by Wendy Fidler. It is entitled, The Influence of the Adult Role Model of Smoking in Children as Young as Three to Five Years Old. The role models that young boys—and, in some cases, young girls—look up to are not just pop stars; they are also Formula 1 drivers and snooker players. I therefore find it difficult to accept the proposed exemption of Formula 1 and snooker. Those sports have a huge potential to glamorise tobacco and they provide role models. If the proposed exemption for Formula 1 and snooker were removed by the Government, that would send a very powerful signal to young people in particular that smoking and its promotion were strongly discouraged.
Additionally, the Ecclestone affair left a bitter taste and the feeling that government policy—principled and empirically based—could be watered down as a result of special pleading from a source that had provided substantial donations to the Labour Party. The Government now have an opportunity fully to put that episode behind them.
While it is true that Formula I may suffer in the short term, many people believe that tobacco sponsorship would swiftly be replaced by other more benign forms of sponsorship, which might perhaps he at more generous levels than the tobacco companies had provided. Indeed, to judge by recent press reports, some Formula 1 teams have already been hit by the

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withdrawal of tobacco sponsors. However, I believe that the best teams are still financially secure. I beg to move.
4.30 p.m.
Lord Peston: My Lords, perhaps I may intervene briefly. In Committee I stated how sympathetic I was to the views that the noble Baroness has just expressed. I want to go on record as saying that I have not changed my mind. On the other hand, on viewing the Bill I believe that 90 per cent of the loaf is better than none. Having made that point, that is all that one can say.
However, I want to make one additional point. If the BBC were to stick to the letter of its charter and if the ITV were to show some public responsibility, then neither of these possibly exempted sports would appear on terrestrial television. In that case, there would be no pay-off to the sponsorship and we should not have this problem. One should bear in mind how the sponsorship works. It works because the television companies essentially do not respond in a proper public way. I wanted to place that point on the record, too.
Lord Skelmersdale: My Lords, I am not sure that the noble Lord, Lord Peston, is right. In my experience, the television companies bend over backwards to avoid showing advertisements on the side of an arena or football ground. Sometimes, of course, it is unavoidable, depending on the play, in which case the advertisements are almost always out of focus.
From a sedentary position, my noble friend made the point that players sometimes wear strips, as I believe they are called—it is not exactly my subject—which may have the effect of promoting a tobacco product. That makes it much more difficult for the television companies. I do not believe that the television companies are principally to blame. Other people are to blame, and blame is certainly appropriately "castable", for want of a better expression.
So far as concerns my noble friend's amendment, I believe that it is perhaps going a little far to leave the entire clause out of the Bill. However, every sponsor should be treated alike. Therefore, there should not be any special date at any particular time. If the noble Lord, Lord Clement-Jones, and, indeed, the Minister intend to reject my noble friend's kill-all proposal, perhaps they would be good enough to accept mine.
Lord Geddes: My Lords, I intervene wholly to reinforce what my noble friend Lord Skelmersdale has just said. If there is to be a cut-off date, then surely it must be common right across the board, regardless of the type of sport or activity. It is invidious that there should be any exceptions to a general rule.
Lord Hunt of Kings Heath: My Lords, first, I am grateful to the noble Baroness, Lady O'Cathain, for raising this matter and, of course, for her general
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support for the intent of the Bill. I certainly understand her wish to ensure that sponsorship of events with a view to promoting tobacco products is phased out as soon as possible.
One theme that we have discussed throughout the Bill is the need to take a balanced and proportionate approach. That is why the Government wish to see some leeway given to sports in particular; they would not wish to see the ban having a long-term negative impact on those sports. Therefore, the Government took the view that, subject to consultation, most sponsorship of sporting events should end by 2003. Global sporting events, which receive considerable income 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. That is a perfectly reasonable approach: first, to accept that sporting events need some time in order to prepare for the withdrawal of tobacco sponsorship; and, secondly, to accept that those international sports where tobacco sponsorship has contributed such a huge proportion of the income that they receive should be given a little longer.
To those who fear that that will have a wholly negative impact on sports organisations in general I say that the task force that was set up by the Department for Culture, Media and Sport, and the continued advice that is available from the department, are available to those sports organisations and they are in a position to take advantage of that. Overall, it is perfectly reasonable to allow a little time for most sports and a littler longer time for those international sports that have relied so much on tobacco sponsorship, but at the end of the day, by 1st October 2006, all tobacco sponsorship will be removed.
Baroness O'Cathain: My Lords, is snooker a world sport?
Lord Hunt of Kings Heath: My Lords, the draft regulations that were developed in relation to the 1998 EC directive state that,
"'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".
That was the definition used in relation to the original 1998 EC directive.
Assuming that the Bill passes through this House and another place in its current form, it will be for the Government to make a policy decision in accordance with the current clause as it is and to make the appropriate regulations. At this stage I cannot say which sports will be involved and whether the same criteria will be used. I believe that those criteria give a general view of the kind of definitions that are likely to be used.
Lord Clement-Jones: My Lords, I do not want to be the nut in this particular nutcracker. I strongly agree with everything that the noble Baroness has said, as do

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my party and all my colleagues on these Benches. However, taking my turn from that great Conservative, Rab Butler, I am conscious of the art of the possible. Therefore, I believe, as the noble Lord, Lord Peston, said, that 90 per cent of a loaf is better than no loaf at all. In those circumstances, the quicker that we move on to the other stages of this Bill, without too much comment, the better.
Baroness O'Cathain: My Lords, I thank all noble Lords who have intervened. I hope that people will read carefully what has happened and read what I have said in conjunction with the wonderful speech of the noble Baroness, Lady Finlay of Llandaff. The health of the nation is the most important point. From my older and noble friend Lord Peston I take the advice that 90 per cent of a loaf is better than no bread. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 20 [Interpretation]:
[Amendment No. 66 not moved.]
Clause 21 [Commencement, short title and extent]:
Lord Skehnersdale Lord Skehnersdale: moved Amendment No. 67:
Page 10, line 39, at end insert—
"() The provisions of this Act which apply to publishing, distributing or transmitting by electronic means shall not come into force until—

(a) such time as they have been notified to the European Commission under the terms of Directive 98/34/EC' (as amended by Directive 98/48/EC), and

(b) such standstill obligations as the Directive requires have expired."

The noble Lord said: My Lords, today I have been providing the House with the bread between which 65 amendments to this Bill have been sandwiched. I make no apology for returning to a matter that has surfaced at every stage of the Bill so far and on which the Minister sent me a letter, which, in spite of my rude comments earlier, I was eventually extremely grateful to receive. Unfortunately, the letter arrived too late. as I had already tabled my amendment. That was probably just as well as, having read the letter carefully, I would have tabled a similar amendment anyway.
Before turning to the contents of that letter, which is in the Library, but which I am sure many noble Lords have not seen, I want to refer to the Commission's vade-mecum on the directive, which is the subject of this amendment; namely, 98/34 EC as amended by 98/48 EC.
That vade-mecum states:
"The directive requires notification of drafts whose justification, content and purpose indicate that they are directly or openly devoted, in whole or in part, to controlling information, society, services. In such a case, the provisions in a national regulatory instrument will be specifically designed and expressly drafted to reflect the fact that the activity/service is supplied at a distance by electronic means and at the individual request or a recipient of services. Thus not only are regulatory instruments covered, which as a whole are devoted to information, society, services, but also regulations of which only a part (possibly an article or even a paragraph) specifically concerns an information, society, service",
It goes on to give examples, one of which is of a law on pornography in which there is a specific provision on the liability of the information service provider.
The meat of the response of the noble Lord, Lord Hunt, to my concerns reads as follows:
"You are quite right to suggest that any measure relating to the Internet needs to be scrutinised, but a close examination of the relevant provisions of the Bill leads us to the view that it is not notifiable. In general terms the provisions amount to non-specific rules; that is, they are not specific to information, society, services, and/or are merely enabling. In addition, a critical element of the definition of information, society, services in the directive is lacking in that none of the provisions regulate such services provided 'at the individual request of the recipient"'.
I have no doubt that the noble Lord did not draft the letter himself before signing it. I find it difficult to accept the advice that he was giving. Indeed, I beg to differ.
Let us look specifically at Clauses 2 and 3 of this Bill. Clause 2 creates an offence to publish, print, devise or distribute a tobacco advertisement. Does not that amount to a prohibition? It stops stone dead any possibility that information of the nature described in the clause could be provided,
"at the individual request of the recipient".
Clause 3, too, can hardly be said to be a non-specific rule. It makes proprietors, editors, procurers of advertising, distributors and sellers of electronic or printed publications personally liable. How is that non-specific?
It can hardly have escaped the attention of the House, as I said at the very beginning of today's proceedings, that tomorrow it will be three months since the Second Reading of the Bill. Had the noble Lord followed my suggestion then, there would be no danger of the threat in the directive—that of killing national legislation which has not complied with European legislation. That danger would have disappeared. It is that danger and no other which this amendment seeks to avoid. I beg to move.
The Earl of Northesk: My Lords, I am grateful to my noble friend for his explanation of this amendment and I rise to support its thrust.
My noble friend outlined the apparently unshakeable conviction of the Government that there is no requirement to notify this Bill on the basis of its provisions for the Internet. Like my noble friend, I am less certain.
Perhaps I can ask the Minister and the noble Lord, Lord Clement-Jones, whether any discussions have taken place with appropriate officials of the European Commission to ascertain its view on this matter. That is to say, do we know what the Commission's attitude is towards the notification status of this Bill?
The point should be made that this is not just a narrow procedural point. As I understand it—I hope the Minister can confirm this—if this Bill is enacted without notification and it subsequently transpires that it should have been notified, it will be open to anyone, on simple application to the court, to strike the whole Bill down in its entirety. To say the least, that would be unfortunate.
4.45 p.m.
Lord Geddes: My Lords, I too rise to support the thrust and specific content of the amendment in the name of my noble friend Lord Skelmersdale.
There are two points that may be of benefit to the House in the debate. The first is to draw the attention of the House to, and to ask the Minister whether he thinks that there is any relevance in, the fact that both the Netherlands and the Danish Governments have notified remarkably similar legislation to the Commission and are awaiting a response.
The second point, of which I think the Minister is aware, and if not, I am now informing him, is that I am one of seven signatories from your Lordships' House who wrote to the European Commission on 13th February inquiring about that point. We were not satisfied at that stage, nor indeed are we now, that the Government—as my noble friend Lord Northesk has just asked—have inquired of the Commission about that matter. Since we did not have that information, we inquired of the Commission and are awaiting a response.
Lord Peston: My Lords, perhaps I may ask the Minister whether he is as puzzled as I am—indeed, puzzled to the point almost of hysterics—that the noble Lords opposite are seeking solace in Brussels for their concerns. Perhaps I may ask whether they have asked permission of the leader of their party to move in that direction. This has been a most enjoyable day, but I think that this is perhaps the high point.
Lord Filkin: My Lords, I respect the noble Lord's concerns about the relationship between this directive and the provisions of the Bill. But, as was said at Second Reading, and is still said, the Government do not consider that the Bill needs to be notified under the provisions of Directive 98/34/EC as amended. Therefore, the Government do not support the amendment.
A close examination of the provisions of the Bill relating to publishing, distributing or transmitting by electronic means has led us to the conclusion that these provisions are not notifiable. The Technical Standards Directive applies to Internet society services. These provisions are not services. Because we are not in doubt on this matter there have not been discussions with the European Commission, although we shall be interested to hear when noble Lords receive a response to their inquiry.
In general terms, the provisions amount to nonspecific rules; that is, they are not specific to information society services and/or are merely enabling. In addition, a critical element of the definition of information society services in the directive is lacking in that none of the provisions regulates such services provided "at the individual request of the recipient". I note the contrary view to that of the noble Lord, Lord Skelmersdale. We shall study carefully what he has said when we consider Hansard and the rest of our debate on this amendment.
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The effect of Clause 4(1)(b) is that any information provided at the individual request of the recipient is outwith the scope of the Bill.
The noble Lord, Lord Geddes, is quite right that the Netherlands and Denmark have notified apparently similar provisions under the Technical Standards Directive. It is for them to decide what they think is necessary and not for us to question whether they have got it right. We have to make our own judgment on our own legislation as to whether we think that there is a requirement to consult the European Commission. Each measure needs to be considered on its own terms, and the decision of one member state whether or not to notify does not set a precedent for others.
We believe that any regulations made under the powers relating to brand sharing in Clause 11 may give rise to a requirement to notify in due course. But I believe that we have made the right decision in not notifying the Tobacco Advertising and Promotions Bill. Therefore, we suggest that the amendment is not needed.
Lord Clement-Jones: My Lords, this has been a very interesting technical debate. I confess that I have learned more about the Technical Standards Directive than I ever wanted to. I have little to add to what the Minister had to say. I have reviewed the advice that the Minister has given to the noble Lord, Lord Skelmersdale, as regards the duty to notify. My conclusions are the same. I entirely agree with the Minister's analysis on this point. It may be that the brand-sharing regulations will need to be notified in due course, but that is further down the track and does not relate to the primary legislation. I do not entirely understand why the Netherlands and Denmark have notified what at first sight are similar provisions, but we shall see whether they have the right approach. In those circumstances, it would be wrong to make the blinding assumption that we automatically fall under the technical standards directive, so the amendment is unnecessary.
Lord Skelmersdale: My Lords, if I have shown nothing else today, I should have thought that it was blindingly obvious that I do not blindly follow any particular line or concept. I am grateful to my noble friends Lord Northesk and Lord Geddes, but this is far from being a narrow procedural point. It is not even exclusively relevant to the Bill; it may well arise in relation to other legislation that applies to the provision of Internet services.
The noble Lord, Lord Peston, with his usual good humour and a smiling face, made an interesting political point that I really do not think is appropriate for this Chamber. We are not good at political points; we are quite good at logic—sometimes better than others, I accept. Why should not my noble friend Lord Geddes and I seek solace from European law? After all, we are both long-standing members of various subcommittees of your Lordships' Select Committee on

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the European Union. My noble friend tells me that he is a former chairman of one such sub-committee, on which the noble Lord, Lord Faulkner, now sits with me.
Of course, the proof of the pudding will be in the eating. If the Bill needs to be referred and the Government have got it wrong—as I maintain that they have—the Bill will be struck down by the European Court. No one wants that they really do not. The Government are being totally dogmatic for
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the wrong reasons. Were it not that so few Members are present, I should be very tempted to test: the opinion of the House, but given the late hour, I shall resist that temptation.
The noble Lord smiles; perhaps he would like me to change my mind. No? In that case, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
House adjourned at seven minutes to five o'clock.