Tobacco Advertising and Promotion Bill

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The Chairman: Order. There are too many sedentary interventions.

Mr. Barron: Will the hon. Lady give way?

Mrs. Spelman: No. The Government have a socking great majority and can get their way. My general observation of their attitude towards the debate on the amendments and the clauses is that it is incredibly harsh-minded towards small businesses. They fail to recognise that many specialist tobacconists are now outside—

Mr. Barron: Will the hon. Lady give way?

Mrs. Spelman: No. Many special tobacconists will now fall outside the definition of a specialist. If the Government had stood back and thought with more common sense about specialist tobacconists and accepted one or two of the amendments, they would have made a difference without opening the floodgates or creating a massive loophole. In practical terms, that would have given specialist tobacconists a reasonable defence that will now be denied to some of them.

Mr. Barron: Briefly, the hon. Member for Meriden takes the matter out of context. Many people argued that clause 6 should not be in the Bill because it protects the interests of specialist tobacco shops. The hon. Lady wants to amend it into a nonsense, while saying that she doubts whether it should be there, but she is here, supposedly, to represent the interests of those small businesses. The Government have done that and, in doing so, have not taken all parts of the public health lobby along with them on the clause. That ought to be a matter of record in this Committee.

Amendment negatived.

The Chairman, being of the opinion that the principle of the clause and any matters arising thereon had been adequately discussed in the course of debate on the amendments proposed thereto, forthwith put the Question, pursuant to Standing Orders Nos. 68 and 89, That the clause stand part of the Bill.

Question agreed to.

Clause 6 ordered to stand part of the Bill.

Clause 7

Developments in technology

Question proposed, That the clause stand part of the Bill.

Mrs. Spelman: We are making swifter progress. I am anxious that we should have the chance to debate the latter clauses of the Bill, and, indeed, the new clauses, properly. We have only three sittings left and Labour Back Benchers have tabled a new clause, which we obviously want to have time to debate. Nevertheless, it is important to ensure that we do not let a clause slip through on the nod, which is why it is important to debate clause 7 stand part.

The clause typifies the catch-all attitude of the Bill and I question its legislative relevance. As I said, we have not even succeeded in legislating adequately for existing new technology, such as internet provision—disquiet among internet service providers is evidence that we have not got that part of the Bill right. It is ambitious to have a catch-all phrase designed to deal with any subsequent developments in technology relating to publishing and distribution by electronic means that we have not even thought of. It is so futuristic as to make it almost irrelevant. It is more of a statement of intent than a real piece of legislation; it is so generally worded—

Maria Eagle (Liverpool, Garston): Stupid.

Mrs. Spelman: I hear the hon. Lady saying that that is stupid. Perhaps she would like to tell me what she would regard as ``any developments in technology''. Does she have a better idea than I as to what is in the pipeline? Of course we do not know. That is a catch-all phrase that makes it singularly meaningless to debate it now, and it will never be debated again when it is brought into effect.

If technology moved on sufficiently to create the circumstances envisaged in the clause, there would undoubtedly have to be new general legislation to apply existing laws to the new methods of commerce, just as in the case of recent electronic commerce legislation. The provision would be far better placed in such legislation, where the focus of those making the legislative decisions would be on what capacity the new technology had to make an impact.

I argued strongly at the beginning of our debates that the section on internet service providers and their role in advertising ought to be part of a Bill that dealt properly with their role in advertising a range of products, outside of a health Bill and in a Bill under the Department of Trade and Industry—a Bill that dealt with new forms of competition by electronic means.

It is ambitious to have this catch-all phrase in a Bill to ban tobacco advertising. It is unnecessary to put a single provision into a specific Bill, since any change in technology would require general legislative change. Just as there may be developments in technology relating to transmission by electronic means, with regard to which the Secretary of State may consider it appropriate to amend provisions of the enacted Bill, there might also be developments with regard to tobacco products, which would similarly call for amendment. Tobacco producers may find a hitherto unthought-of form of tobacco that can be absorbed by osmosis or some other means. Who knows? We cannot legislate now for unknown technological change.

There may be some justification for including in the Bill tobacco products that may be developed at some time in the future and to which the health risks that result from smoking tobacco products do not apply. A new tobacco product may have an important public health dimension, which would correctly be dealt with under this Bill. If it is not possible to promote a new tobacco product to existing smokers, as would be the case under the Bill, manufacturers cannot be expected to invest in the funds necessary to diversify into products that might pose a lower health risk. The fact that such products have not been developed and have not appeared on the market to date does not mean that such developments are not possible. We all accept that scientific knowledge and capabilities advance rapidly. None of us can accurately predict in which direction it may flow. The legislative relevance of the clause is therefore difficulty to justify. I question its place in the Bill.

Mr. Bruce: I have warned the Government about the way in which the Bill would allow the internet to be used to get round the ban on advertising. The clause gives the Government additional powers, through the affirmative procedure, to make amendments in future. Such powers may break the European convention on human rights.

The Secretary of State says that he does not believe that the Bill is incompatible with the provisions of the Human Rights Act 1998. For the sake of clarity, I have a copy of that Act in front of me. Schedule 1 contains the convention and paragraph 1 of article 10 on freedom of expression suggests that anyone can say anything that they like. However, paragraph 2 enables the Government to restrict people's freedom of expression on the grounds of protection of health. I am sure that that is what gives the Government confidence that they can legislate in this sphere.

Under section 12 of the Human Rights Act, however, someone may claim that they can still advertise tobacco in the United Kingdom on the grounds that the material has or is about to become available to the public. One of the defences is that, if the information will be available anyway, it should be possible to give it out within the United Kingdom. Otherwise, the individual's human rights are being superseded by the Act. That defence was used in the case of the former MI6 officer who published information that, under statute, it was illegal to publish in this country. Nobody disputed that it was illegal. He also had a contractual duty not to publish that information. He had it published, perfectly legally, on the internet. So he can go to the courts in the United Kingdom and say, ``Look, my rights under the Human Rights Act 1998 are being violated''. The clause would give the Government the power continually to change the rules to prevent use of the human rights defences in the Human Rights Act 1998.

I believe that the Minister—although she referred specifically to her officials—will meet people from the Internet Services Providers Association when the Bill has already gone through Third Reading. The clause would give the Government the power to alter the way in which they operate without our knowing the position beforehand; there may be Ministers who would be much more draconian and ban every type of promotional activity. If we allow the clause through, we may discover that the Government have got around Parliament.

12 noon

Mr. Barron: I find it difficult to understand the Opposition's logic. Clearly, the clause is not operable now because we do not know of any potential changes in technology. One or two members of the Committee have suggested that we should include such catch-all provisions, not because of new technology but because some of us—including me—find the technology of the present difficult to grasp.

The hon. Member for South Dorset mentioned human rights, which operate in respect of any legislation and have no specific relevance to the clause. We will have to consider whether someone could breach the Official Secrets Act 1989 by using the internet and using that as a defence in a court of law. However, that does not mean that we should not introduce a clause such as this one, in an attempt to second-guess new developments in technology that could be used to promote tobacco, which damages the health of the public. It is logical to introduce such a clause; the Government are not attempting to get round Parliament. Perhaps my hon. Friend the Minister could address the matter, but as I understand it, any regulation would have to be debated in Parliament. The clause means that we will not block up parliamentary time bringing statute in on the Floor of the House, and will allow us to deal with the matter through simple regulations.

Mr. Bruce: The hon. Gentleman is passionate about the subject, so I am sure that he understands the difference between primary legislation and statutory instruments, which are unamendable and present a yes/no situation. We should deal with such issues on the Floor of the House—especially given that the Government are already discussing with the ISPA about how they may modify the Act even before it has become one.

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Prepared 6 February 2001