Tobacco Advertising and Promotion Bill

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Mr. Ernie Ross (Dundee, West): Here comes the cavalry.

The Chairman: Order.

Mrs. Spelman: The hon. Gentleman points out that my hon. Friend the Member for South Dorset has arrived. I thought that my speech was going quite well, but that has really thrown me off course.

The requirements placed on internet service providers who carry on their business in this country will be impractical. If we could scroll the clock forward and look at the way that they are affected, we would see that their life would be made extremely difficult. It seems inconsistent with the way in which other economies are approaching the world wide web. It might place such companies at a competitive disadvantage in the provision of internet services.

The internet and websites should not be excluded from the scope of the advertising prohibition, but the Government could suggest more coherent proposals to regulate them, with regard to the transposition of the European directive into UK law. The Government need to take account of the technological and scale difficulties of enforcing the provisions and to acknowledge that, technologically, more can be achieved than that to which the provisions of the Bill aspire.

The Opposition have tabled two more amendments in this group, which I shall discuss before the Minister deals with the Government amendments. Amendment No. 4 is small. I may be corrected, but ``carry on business'' is, I understand, an accepted legislative phrase and a good deal more specific than it would appear on first reading. My anxiety about the use of the phrase is that, if we are to have effective legislation for internet companies working in this new area, it is important to be more specific about what aspect we want to control. Therefore, my phrase

    ``transact business with a person living''

was designed to tackle the problem of enacting in British law a provision to control an internet service provider that was advertising tobacco in this country. We must be clear on what aspect of the internet service provider's commercial activity we are trying to legislate. By definition, the internet service provider's market is global. It interacts with an enormous geographic area and, potentially, with an enormous number of people, over which our law cannot hope to have control. I understand the Government's intention. My amendment is probing, and is designed to narrow down what it is practical for our law to try to control.

Amendment No. 8 has exactly the same objective but for clause 5. Unlike a publisher or distributor of physical printed matter, the market that we are discussing has no physical barriers. It is difficult, unilaterally, to make national legislation work and I am concerned about the feasibility of doing so. I hope that when she speaks to the Government amendments, the Minister may be able to shed some light on it.

Mr. Ian Bruce (South Dorset): On a point of order, Mr. Malins. Normally one wants to support colleagues' amendments, yet the Government now have a completely new way of looking at this issue. I seek your guidance as to whether it might be more sensible to try to catch your eye after the Minister has introduced her amendments so that we may understand her position.

The Chairman: Yes, the hon. Gentleman may catch my eye at any stage during the debate. In fact, he may catch it, as may other members, more than once. It is a matter for him. Bearing in mind the fact that we are also considering Government amendments, it is in order for him to enter the debate at a later stage.

Yvette Cooper: There are seven amendments in the group. I shall deal with them in turn, although not necessarily in the order set out.

Amendment No. 3 would delete

    ``providing the means of transmission''.

That would exclude, on principle, those involved in certain aspects of distribution by electronic means in a way that does not happen for print and other distribution. In practice with current technology, British Telecom, which provides the wires, would be excluded on principle. We have some sympathy for the intention behind the amendment because it would clearly be ludicrous for BT to be guilty of an offence if someone used the phone to access the internet and read a tobacco ad. However, given the current technology, BT will be not caught by the Bill.

The principle is to introduce a comprehensive ban and then targeted defences. In principle, all those involved throughout the chain of publishing and distributing are included under the Bill, but they are given specific defences appropriate to their circumstances. For BT or a similar company involved in the means of transmission for electronic distribution, it would mean that that company was unaware—which is covered by amendment No. 19—or that it could not prevent it. For that reason, it would be exempt, not because it provides the means of transmission. The exemption is based on the defence rather than by being ruled out in principle.

If the Bill is to stand any chance of keeping up with changes in technology and so forth, the right approach is to set out a comprehensive ban first and then to provide specific—

Mr. Ian Bruce: The Minister is going down an alley, at which point I must pull her up. She has not yet spoken to her amendments. Given the overwhelming number of Labour Members on the Committee, I suspect that her amendments will be carried rather than those of my hon. Friend the Member for Meriden (Mrs. Spelman). It might be for the convenience of the Committee if the Minister introduced the Government amendments and described what she believes will be their effect. For the sake of clarity that might be better. One amendment deletes subsection (6), which deals with the internet.

The Chairman: Order. It is, of course, for the Minister to decide how she approaches the debate.

Yvette Cooper: We have seven amendments before us. I shall set out the Government's case for our own amendments and our opposition to those that we are rejecting. I shall be happy to respond to the questions raised by the hon. Member for South Dorset when he has heard what I have to say, but it is sensible for me at this stage to set out the Government's opinion on all the amendments. I will come to the Government amendments in time, if the hon. Gentleman will have a little patience.

Amendment No. 20 removes a defence for people abroad who have a website that is accessed in the United Kingdom or published on an internet service provider here. It also removes the defence of internet service providers that they are unaware of the tobacco advertisement. In principle, both defences should remain. It is true that Government amendment No. 16 would delete clause 2(6), but only to replace it with a redrafted version of the same defence.

It is right for internet service providers to have specific defences. First, there should be a defence for those who are abroad, but have a website accessed or published on an ISP in Britain, because we cannot claim extraterritorial jurisdiction on the issue. Secondly, it is right that ISPs should have the stronger defence that they are unaware, not simply the defence that exists for other forms of print, publishing and distribution that they did not know and had no reason to suspect. I shall return to the issue when we discuss Government amendment No. 19.

9.30 am

Under Opposition amendments Nos. 4 and 8, the wording that refers to companies that do not ``carry on business'' in the United Kingdom would be replaced by wording such as companies that do not ``transact business'' with anyone living in the United Kingdom. As the hon. Member for Meriden said, ``carry on business'' is a standard term in legislation. The reason for including it is that we do not have extraterritorial jurisdiction on the issue and we need a practical Bill that can be implemented.

The hon. Lady is right: in terms of the internet and many forms of communication nowadays, we are in a global market, and there are limits to what we can do when we operate simply in a United Kingdom context. That is why we were also keen that the ban on advertising should be achieved at a European level. We shall continue to work with European partners when the Commission produces further proposals on tobacco advertising. It is also the reason that we are working with the World Health Organisation on an international framework for tobacco control. The powers that we have in the United Kingdom to restrict tobacco advertising are restricted to the companies and areas over which we have jurisdiction. We must recognise that.

I have a problem with the amendment proposed by the hon. Lady because it is unclear. It would allow companies that do not transact business with someone living in the United Kingdom, even if they were based here, to have a defence under the Bill. I assume that she is talking about exporters that do not transact business with someone in the United Kingdom. If they advertise in the United Kingdom, however—including advertising on the internet—they will be caught by the Bill, as they should be. It is slightly puzzling. I am not sure how the amendment would affect companies that transact business with someone in the United Kingdom, even if they are based abroad. By deleting our defence for those who do not carry on business in the United Kingdom, we would end up including under the offence companies who were based abroad, but transacted business with someone based in the United Kingdom.

Mrs. Spelman: Is the Minister aware of a company that is based abroad, but is advertising under the address I hope that that does not constitute an advertisement; the only reason I give the address is that it is important. I wish that I had the advertisement with me, because it would be graphic; it is the size of a cigarette box, in the Marlboro colours and is clearly a piece of tobacco advertising. The company is based abroad and transacts business in this country with people living here. I am concerned that it might slip through.

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