Tobacco Advertising and Promotion Bill

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Yvette Cooper: The clause involves standard powers for enforcement, which are modelled on similar powers in other legislation, such as the Consumer Protection Act 1987 and the Food Standards Act 1999. The hon. Member for Meriden seems to be arguing that we should implement powers of entry into private homes.

On the examples that the hon. Lady used of smuggled goods, I should point out that smuggling is illegal. The police and Customs and Excise already have powers to tackle smuggling and investigate where there are suspicions of stolen goods and so on. The Bill is about advertising, not smuggling. It is about advertising in the course of a business. If the card in Tesco that the hon. Lady described is an advert in the course of a business, it will be covered by the Bill, and Tesco might want to check that it is not committing an offence by displaying that advertisement on its board. The advertising is the offence created by the Bill, not the illegal sale of goods, which are already covered and enforced on through other legislation. The Bill is about enforcing a ban on advertising.

Mr. Ian Bruce: I am concerned about the legalistic way in which the Minister is dealing with this point. Are we right to think nothing in the clause would stop a trading standards officer walking into a normal place of business and dealing with what might be an offence by gathering information and evidence, without needing advance authority from a magistrate? I am concerned that an officer may, in the normal course of events, perhaps when visiting a shop, find a piece of evidence, but would have to rush back to receive authorisation before being allowed to collect such evidence.

Yvette Cooper: The clause provides for officers to have exactly the same kind of enforcement powers—to be able to go about their ordinary business, in other words—that they have under the Consumer Protection Act, 1987, or when they enforce underage sales regulations or the Food Safety Act 1990. We are talking about exactly the same kind of standard provision. For that reason, all the issues about the interrelationship with the Regulation of Investigatory Powers Act 2000 have been examined in the same way that links with the Consumer Protection Act and other Acts were.

These are standard provisions and enforcement processes. Equally, on the issues about a person accompanying an officer, no one can enter premises unless authorised by the warrant-holder. That is the normal way of doing things. Under clause 13, the enforcement officer can require the production of any

    ``book, document, data, record (in whatever form it is held)''.

That covers internet provisions too.

Mrs. Spelman: On authorisation, if the Minister consults the Food Standards Act 1999 on powers of entry and the question of accompanying persons, she will find not only that accompanying persons have to be authorised, but that they must have to produce proof of identity. That provision is missing from this Bill.

Yvette Cooper: People cannot enter premises unless authorised by the warrant-holder. The normal process is that an officer does not get a warrant unless he needs one. If it possible to conduct the business or obtain the evidence without having to have a warrant, that is what trading standards officers will do. They will obtain a warrant if they cannot otherwise obtain the evidence that they need. The clause is relatively straightforward. It covers lengthy enforcement issues, but there is nothing distinctive or unusual in that.

Mr. Luff: I want to make a serious point. In the interests of brevity, perhaps I did not express myself properly earlier. If someone were thought to be publishing advertisements on the internet illegally, one might not need to enter his premises to establish that fact, but could intercept his transmissions. Does the Regulation of Investigatory Powers Act 2000 give the relevant authorities the powers to enable such action to be taken, or does it empower others who are outwith the terms of the Bill? Can the Government guarantee the monitoring of electronic transmissions to ensure enforcement of its provisions? Powers of entry are not the be all and end all.

Yvette Cooper: I understand the point made by the hon. Gentleman. I shall ensure that the Bill has the right powers of enforcement. Such issues have been considered by the parliamentary draftsmen, but I shall clarify the matter later in our proceedings.

Mr. Luff: Perhaps the Minister will write to me.

Yvette Cooper: I will be happy to write to the hon. Gentleman about that matter.

Question put and agreed to.

Clause 13 ordered to stand part of the Bill.

Clause 14

Obstruction, etc. of officers

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

Mrs. Spelman: I want to get the balance right between the need to empower enforcement officers, so that they carry out their work properly, and the need to protect those on the receiving end of such enforcement. I am worried about the way in which the Bill is drafted. It will be difficult to determine and prove whether a person has intentionally obstructed a duly authorised officer under subsection (1)(a), which is based heavily on subjectivity. It is a matter of one person's word against another's.

It will be impossible to determine and prove whether a person has failed to comply with a requirement made of him by an officer without reasonable cause. That takes me back to an earlier debate on the difference between

    ``has no reason to suspect''

    ``could not reasonably have known''.

Whether a cause was reasonable will be difficult to prove. Can the Minister cite examples of what would be a reasonable cause for failure to comply with a requirement made by the enforcement officer?

To understand how the provision would work in practice, I tried to think of some examples. It will be a big cultural change for our nation to adjust to thinking in terms of being alert to whether something is a tobacco advertisement and who has responsibility for its display. What about a tobacco advertisement that is displayed on an office building, which may not be the offices of a company that is in the business of promoting tobacco? Can an enforcement officer search that building?

Would an authorised officer have the right to enter the office of someone who, for example, had a Marlboro poster on the wall? That is not an unusual occurrence. I do not have one on my wall, but I gather an attractive Marlboro man poster is particularly popular with young women whose smoking prevalence is increasing—and which we are trying to reduce. If such a poster was displayed in an office, would the enforcement officer have the right to enter it and seek to prosecute someone? That individual may not primarily regard that as tobacco advertising; but we might accept that such a poster is banned from advertisement on billboards and other places where it might encourage smoking, and its continued existence might promote tobacco consumption among colleagues in the office. I am unclear about the practicalities of the clause. How on earth can the defendant claim that obstruction was unintentional, and what constitutes a reasonable cause for failure to comply? Perhaps the Minister would illustrate that for us.

Mr. Ian Bruce: How does an individual know that another individual is authorised to require information to be given? The problem is that we set up all these Acts; we are the only people who read them; even we probably forget about them as soon as we leave the Committee; and then, lo and behold, somebody knocks on the door and says, ``I am authorised to do X, Y or Z.''

That may sound theoretical—people do not try to assume powers that they do not have—but I am told that since the Regulation of Investigatory Powers Act 2000 was passed, there has been a flood of police inquiries to internet service providers for information about various people. On many, if not most occasions, it has been discovered that police officers, who are duly authorised people, are asking for information that they are not entitled to receive, and the matter has not been sensibly dealt with.

In order to try to resolve that problem, it has been agreed by the National Criminal Intelligence Service that when people ask ISPs for information about telephone tracks and information going across the internet, each constabulary should have a single officer to handle all inquiries, so that the officer can check that the proper information is being asked for in the proper, authorised manner. It is important, when introducing a new criminal offence setting up a police force to police words and thoughts—we actually have a thought police here—to make it clear how people will be authorised.

It would be extremely helpful if there were a provision to ensure that individuals were given an appropriate form showing them their rights and responsibilities before they could be said to have caused obstruction. In other words, if somebody knocks on the door and an individual is obstructive or gives false information, the person claiming obstruction should be required to show that he or she had handed the individual an appropriate document showing his or her powers and the responsibilities of the individual for dealing with the matter. It is easy to say that virtually nobody is ever prosecuted under such clauses, but, willy-nilly, we put them into Bills, placing additional requirements on members of the public who have no real reason to be knowledgeable, though ignorance of the law is no defence. I hope that the Minister will give us the reassurances that we need to support the clause.

Mr. Luff: I must support my hon. Friends. Rightly or wrongly, fairly or unfairly, trading standards officers are not always the best loved people in local communities. They generally do a good job, but, as in the case of weights and measures involving pounds and ounces, and kilograms and grams, there is often a certain resistance to dealing with trading standards officers. That resistance may be especially prevalent among the class of people who will be caught by the Bill.

The lack of requirement of proof of identity in clause 13 makes me nervous, as does the fact that there is no requirement to produce the warrant to prove that people are authorised to conduct the entry. This clause contains no defence that would provide someone who had reasonable grounds to doubt the identity of the person with the ability to refuse entry or co-operation.

11 am

The Government might think of introducing an additional defence in subsection (3), for when the individual whose premises were entered had reasonable grounds to doubt the identity of the person seeking entry. Without such a defence, the clause is a snoop's charter. More defences must be offered to citizens who could be subject to such powers of entry. The Minister did not want to introduce a requirement for greater proof at the time of entry into clause 13. Will she at least put an additional defence into this clause, to help to protect the rights of our citizens?

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Prepared 8 February 2001