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6.37 pm

Mr. Edward Garnier (Harborough): I begin by declaring the fact that although I am a non-smoker, I am a member of the all-party Lords and Commons pipe and cigar smokers club. I also have a registered interest in connection with the Tobacco Manufacturers Association. Indeed, I was once described by Mr. Simon Hoggart, in his column in The Guardian, as having the most politically incorrect entry in the Register of Members' Interests: not only had I been invited for a day's shooting, but it was the tobacco industry that invited me. I am happy to say that The Guardian—for which, incidentally, I used to work—allowed me a right of reply and paid me for my article. I declared that in the register, too.

Before dealing with a rather legalistic point, I want to refer briefly to something that the Secretary of State and I talked about during his opening speech.

Mr. Barron: I am a bit confused. The hon. and learned Gentleman says that he is a member of the all-party pipe and cigar smokers club. That group never appears on a Whip; as I understand it, it is a parliamentary group, not an all-party group. I would love to join it.

Mr. Garnier: I am afraid that I am not a committee member of that club, or on its secretariat, but I am sure that the right hon. Gentleman will be able to find a way of joining it if he makes himself known to those concerned.

Before I reach the substance of my speech, I would like to raise something that I mentioned during an intervention on the Secretary of State. I am talking about the section

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19 statement under the Human Rights Act 1998. I asked the Secretary of State what had allowed him to make that statement, and he referred me to evidence before the Joint Committee on Human Rights.

In particular, I looked at the letter sent to that Committee by the Under-Secretary of State for Health, the hon. Member for Pontefract and Castleford (Yvette Cooper), dated 17 January, which is to be found in the appendix to the Committee's 14th report:

the Committee's—

That gives rise to two points. First, the Under-Secretary's belief does not constitute evidence; secondly, as the quotation that she cites makes clear, only bans that cover all media and all uses of brand names and logos prove effective, if one assumes that such data can indeed be considered straightforward. As I understand it, the Bill does not do what the report suggests is required: it does not cover

I therefore suggest that the Secretary of State have another think about his section 19 statement.

Setting aside the reasons offered by my right hon. and hon. Friends on the Conservative Front Bench, which are outlined in the amendment, I should like briefly to encourage the House to deny the Bill a Second Reading for an albeit somewhat technical, but none the less valid reason that relates to our European law obligations. Although I appreciate that, these days, discussing legal obligations in the very place where laws are made is guaranteed to empty the Chamber, it is worth making the point—

Mr. Dobson: It depends who is discussing them.

Mr. Garnier: It does depend on that, and I am happy to empty the Chamber because doing so would enable me to continue without being interrupted. Nevertheless, given that a Minister from the Department of Health is present, and given that, in terms of the Bill, the Government's attitude to our obligations under European Union law has changed, I shall briefly outline my arguments.

The purpose of the EU's directive on technical standards and regulations, which applies to all industrially manufactured products and agricultural produce, is to prevent the creation of technical barriers to trade. Under it, member states are required to notify the Commission about proposed technical regulations, so that within a three-month standstill period before their coming into effect, other affected states, the Commission itself or interested bodies can make representations and, if necessary, ensure through the Commission that any harmful provisions are deleted or amended. That presupposes that the regulations are put to the Commission in a form that can be amended, and at a stage of their legislative development at which they can be amended.

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It is not controversial that the Bill, if enacted, will provide the Secretary of State with considerable powers in terms of making secondary legislation. There is not time today to set out my arguments against the growing habit in government of creating criminal law through secondary legislation, which is drawn up and passed into law by members of the Executive without adequate scrutiny by the Legislature. However, as recently as 28 March, the Government changed their mind about the need to notify the European Commission of the regulations that will come into existence under the Bill. From the outset, the Government had argued that the Bill did not require notification, and that they had received from their lawyers what Lord Filkin—the Government spokesman in the other place—described as "strong advice" to that effect.

When I say "from the outset", one must remember that, although the Bill was introduced in the Lords last November—by Lord Clement-Jones—as a private Member's Bill, it is virtually identical to the Government Bill that fell victim to the Dissolution of Parliament in June 2001. For the Government to have admitted that the Bill needed to be notified would clearly have created an inconvenience. The one thing about which this Government do not like to be reminded is their connection with the tobacco industry, motor sport and money. The Ecclestone affair, the first of many such scandals that have come to haunt this self-righteous Government, hurt the Prime Minister personally and began the list of scandals that have dogged the Labour party and the Government, and which—even in last weekend's newspapers—continues to sugar the pill of Opposition life and activity.

It was therefore understandable that a three-month standstill was undesirable for the Government. Not only would it prolong the period in which the links between the Government, a Labour party donor and public policy would be in the public eye, it would also remind the public, health professionals and those who believe that a ban on tobacco advertising is essential for the promotion of public health that, far from this apparently all-powerful Government being able to make laws as they wish, they must dance to a tune and to a timetable set by an extra-territorial and unelected political power: the European Commission.

Mr. Hunter: I wonder whether my hon. and learned Friend might explain one point to those of us who lack his legal expertise and experience. In Denmark and Norway, legislation along those lines was introduced and was subjected to that three-month standstill. What will happen if the Commission decides in due course that that standstill should be imposed, and we have started—and perhaps concluded—our deliberations in Committee?

Mr. Garnier: I begin by gently reminding my hon. Friend that such legislation was introduced in Denmark and the Netherlands. Norway is not a member of the European Union, so it is not susceptible to EU directives. None the less, his general point is perfectly reasonable. I can only assume that the EU would have to strike down the legislation, or at least that the courts would refuse to enforce the secondary legislation through which regulations were made under the Bill.

My argument that the Government should delay agreeing to the Bill's Second Reading has nothing to do with the merits of the arguments for or against advertising,

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or of those for or against smoking—I happen to think that smoking is a disgusting and filthy habit—but it has everything to do with behaving in a communautaire sense, and of being acutely aware of our treaty obligations. The Government have only just become aware of those obligations. They must follow the logic of the notification date of 28 March and allow the Commission the necessary time—be it three months, which may be extended—to receive representations from other affected bodies or member states, so that it can give an opinion to the Government and invite comment. It is silly, to say the least, to embark on a legislative process with an end-date that pre-dates the end of the three-month standstill period, which could be extended in certain circumstances.

Mr. Dobson: Does the hon. and learned Gentleman's point derive from the depth of his legal knowledge, or has he been briefed on it by someone from the tobacco industry?

Mr. Garnier: There are two answers to that question. First, yes, I did think of it myself, because I am interested in the way in which this Government apparently claim that they are hugely enthusiastic about the European Union and all that flows from it. Secondly, as the right hon. Gentleman has doubtless done, I have read the Official Report of the Lords debate, and the issue of notification was raised in the other place both on Report and at earlier stages. He will doubtless have read the letter from seven Members of the House of Lords to the European Commission, a copy of which is in the Library of both Houses, asking whether the Bill is notifiable legislation. No doubt he has discussed the matter with his colleagues on the Front Bench, and has read the Commission's reply, which confirms that the Bill is indeed notifiable. The Commission wonders why the Government have not done what they ought to do: to notify, just as the Governments and Parliaments of the Netherlands and Denmark did.

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