Standing Committee A
Tuesday 6 February 2001
(Morning)
[Mr. Humfrey Malins in the Chair]
Clause 5
Advertising: defences
10.30 am
Mrs. Caroline Spelman (Meriden): I beg to move amendment No. 26, in page 2, line 36, leave out
`had no reason to suspect'
and insert
`could not reasonably have been expected to know'.
The Chairman: With this it will be convenient to take the following amendments: No. 7, in page 2, line 41, leave out
`he could not reasonably have'
and insert
`it could not reasonably have been'.
No. 27, in page 2, line 44, leave out
`had no reason to suspect'
and insert
`could not reasonably have been expected to know'.
No. 28, in page 3, line 3, leave out
`had no reason to suspect'
and insert
`could not reasonably have been expected to know'.
No. 29, in page 3, line 3, leave out
`had no reason to suspect'
and insert
`could not reasonably have been expected to know'.
No. 30, in page 3, line 11, leave out
had no reason to suspect'
and insert
`could not reasonably have been expected to know'.
No. 35, in clause 8, page 4, line 9, leave out
`had no reason to suspect'
and insert
`could not reasonably have been expected to know'.
No. 36, in clause 9, page 4, line 34, leave out
`had no reason to suspect'
and insert
`could not reasonably have been expected to know'.
Mrs. Spelman: This series of amendments would alter the phrase ``had no reason to suspect'' to ``could not reasonably have been expected to know'', which is a more practical and objective formulation of the same idea. When we debated clause 2 and touched on the defences that might be used, I was pleased that the Minister used exactly the same phrase at column 36 of the Hansard report of our proceedings. My ears pricked up at that reference because such wording is much easier for people to understand and to judge objectively. A third party could take the view that someone could reasonably have been expected to know something, whereas it would be more difficult to prove that someone had reason to suspect something.
It is difficult to prove the absence of possible suspicion. I am not a lawyer, but those who are will understand that it is important to have a defence that is workable in practice, if the Bill outlines certain offences. Under the law, it should be enough of a defence to prove that one did not know something, and that would be conveyed by the amendment. Suspecting something is more difficult to prove. One might suspect that various offences had been committed, but the test should be whether one would reasonably have been expected to know that they had been committed. That is a better way in which to phrase the provision, and I hope that the Government will accept our constructive suggestion.
The amendment would give the courts a wide power to examine all the surrounding circumstances if an offence had been committed and they could decide whether the individual ought reasonably to have known the consequences of that. We have considered several practical examples of people who may unwittingly display tobacco advertisements and have therefore thought of a form of words that would provide an adequate defence. The phrase would create a proper test and it is one that we commend to the Government. The group of amendments would all apply the same wording to the Bill. Such defences would be important if it were alleged that an offence had been committed and someone was taken to court.
The Minister for Public Health (Yvette Cooper): Given that the amendments are slightly different from each other, I shall refer to them in turn. Amendments Nos. 26, 27 and 28 would replace ``had no reason to suspect'' with ``could not reasonably have been expected to know''. They reflect the key argument made by the hon. Member for Meriden (Mrs. Spelman). It is not at all clear that there is any material difference between the two forms of wording, and it is hard to think of an example that might fail one test but pass another. If a vendor was given good reason to suspect, or was told that there might be a tobacco advertisement in a particular product and did not check, clearly, he had reason to suspect. He could also have been reasonably expected to know. He had the power to check, but did not do so. That case would fail both tests. I cannot think of an example of a case that would fail one test and not the other. The material difference is unclear.
Mrs. Spelman: Perhaps I can help. In many such situations, the problem is that no one is told anything. Even under the Minister's own formulation, the onus is on individuals to have their wits about them, and actively to search through magazines to find advertisements. It is quite possible that those going to court to defend themselves will not have been told anything. The accent is on what one should know without being told about it.
Yvette Cooper: In that situation, there is no difference between ``had no reason to suspect'' and ``could not reasonably have been expected to know''. Clearly, in a case in which tobacco advertising was banned and there was no reason to suspect that a particular magazine or product was breaking the advertising ban, the vendor would have a clear defence in law. It is not clear what difference there would be between defences under the two forms of wording involved. The Government do not intend any such distinction. Both phrases are used in legislation, although ``reason to suspect'' is far more commonly used.
The hon. Member for Meriden also made a point about courts having to take account of the particular circumstances involved, but that would be the case with either wording. With ``have no reason to suspect'', courts would need to consider the individual circumstances involved and whether people had reason to suspect, given their particular circumstances. The Government do not, therefore, accept amendments Nos. 26, 27 and 28.
Amendment No. 7 is different. It replaces ``he could not reasonably have'' with ``it could not reasonably have been''. I assume that the intention behind the change of wording is to make the clause more objective by reference to a reasonable person rather than a particular individual. However, the wording does not achieve that. With either wording, the courts will still examine the individual circumstances involved to discover whether a case could reasonably have been foreseen by that person. A change of wording would make no massive material difference. We should not create a test about a reasonable person, but we should take account of individual circumstances. A person in an advertising business might be in a far stronger position to foresee the effect of an advertisement or visual image than someone with no experience of advertising who is simply distributing the product to shops in a white van. The test should be about individual circumstances rather than an objective single reasonable person.
Amendment No. 29 would provide a specific defence for someone involved in ``publishing and distributing'' an insert that contains a tobacco advertisement. That person does not require a specific defence for clause 2(3), as that provision does not create a new offence but merely explains the extent of the offence under clauses 2(1) and 2(2). Clauses 2(1) and 2(2) are already subject to the sort of defence that amendment No. 29 would create—in clause 5(4) for distribution, and in clauses 5(1) and 5(2) for publishing. A specific defence for people involved in publishing and distributing products that involve a specific and separate entity is already in place in the Bill. However, the amendment raises an anxiety, although the amendment itself does not specifically deal with it, which relates to whether the publications referred to in clause 3—which deals with the proprietor and editor of the publication and everyone involved in the chain—include publications with an insert. If they do not, a seller covered by clause 3(c) commits no offence in selling a publication with an offending insert. If they do, the seller has a defence under clause 5(6). We shall consider that matter further and establish whether we need to clarify it. Amendment No. 29 raises a helpful issue, although the specific point with which it deals is unnecessary, because a defence has already been provided in the Bill under clauses 5(4), 5(1) and 5(2).
Mrs. Spelman: That is helpful. Perhaps, as I do not have a legal background, I am simply not familiar with enough different measures, but I was rather struck by the idea that people would have to prove that they did not suspect. Perhaps I do not have a suspicious mind, and perhaps we shall create lots of suspicious minds as a result of the Bill, but if that is the received legal perspective, I shall have to accept that it is widely used and that the courts are comfortable using it. I had hoped to achieve what seemed to me to be more objectivity, but according to the Minister's explanation the courts are used to trying to establish objectively whether a person should suspect something or not. No doubt they must do that a lot of the time in relation to other offences.
I was pleased to hear the Minister say that she would reconsider amendment No. 29. I may not have drafted it as well as I might, but she has understood our anxiety. The amendments relate to the Bill's workability. It is important to get the Bill right and as far as possible to anticipate the pitfalls that may arise with the wording if it is left unamended. On the basis that the legal system is comfortable with people having to prove that they did not suspect something, although I imagine that that is not always easy to prove, I accept that the clause has more objectivity than meets the layman's eye with its present wording. On the understanding that the Minister will reconsider amendment No. 29, I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Amendments made: No. 18, in page 3, line 2, after `advertisement' insert
`, otherwise than as mentioned in section 2(4),'.
No. 19, in page 3, line 5, leave out subsection (5) and insert—
`(5) In relation to a tobacco advertisement which is published or caused to be published by electronic means by an internet service provider, it is a defence for him, if charged with an offence under section 2(1), to prove that he was unaware that what he published or caused to be published was, or contained, a tobacco advertisement.
(5A) In relation to a tobacco advertisement which is distributed as mentioned in section 2(4), it is a defence for a person charged with an offence under section 2(2) of distributing it or causing its distribution to prove—
(a) that he was unaware that what he distributed or caused to be distributed was, or contained, a tobacco advertisement,
(b) that, having become aware of it, he was not able to prevent its further distribution, or
(c) that he did not carry on business in the United Kingdom at the relevant time.'.—[Yvette Cooper.]
Question proposed, That the clause, as amended, stand part of the Bill.
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