Tobacco Advertising and Promotion Bill [Lords]

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Judy Mallaber (Amber Valley): The hon. Gentleman has been an hon. Member of this House for far longer than I, but it is my understanding that in most legislation the main principles are set out at the beginning of the Bill and further explanations are given in subsequent clauses. That is a normal method of parliamentary draftsmanship. I am sure that when we move on to the subsequent clause, he will let us know whether he thinks it clearly explains that it excludes all the people that he was worried might be caught.

Mr. Wilshire rose—

The Chairman: Order. The hon. Gentleman must take care to remark only on the amendments.

Mr. Wilshire: I was talking about amendment No. 19 and I was doing so knowingly.

The hon. Member for Amber Valley (Judy Mallaber) said that I have been an hon. Member of this House for a long time. She is right; I have been here for 15 years. If the hon. Lady looks at my parliamentary record, she will see that I have been on the Back Benches for most of that time. That is because throughout my career I have spoken up about the absurdity of most draftsmanship.

The Chairman: Order. I must now ask the hon. Gentleman to resume his seat.

The Parliamentary Under-Secretary of State for Health (Yvette Cooper): The amendments before us are Nos. 3 and 19. The hon. Member for East Worthing

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and Shoreham set out the intentions behind the amendments. In the context of those comments, I assure him that they are unnecessary. He said that he wanted the Bill to limit its attentions to those people who have some control over the situation, and, in effect, that is what it does.

The Bill is intended to treat print and electronic media in the same way, as fairly as possible, and in a manner that anticipates future technological developments. The Bill sets out a comprehensive ban and then it sets out defences. That has been made clear in the discussions that we have had in the Committee and in those that took place while the Bill was being drafted.

As the hon. Member for Edinburgh, West (John Barrett) explained, defences against the offence that is set out in clause 2 (3) are described in clause 5 (5). It states that a person does not commit an offence under section 2(2) and 2 (3) if,

    ''(a) he was unaware that what he distributed or caused to be distributed was, or contained, a tobacco advertisement,

    (b) having become aware of it, it was not reasonably practicable for him to prevent its further distribution, or

    (c) he did not carry on business in the United Kingdom at the relevant time.''

Therefore, amendment No. 19, which would add the word ''knowingly'', is irrelevant, because clause 5(5)(a) sets out a defence for a person who was ''unaware''—that is, a person who did not know.

Mr. Wilshire: I am curious about why the Minister thinks that it is possible to refer to clause 5 in her explanation of why what we are saying about clause 2 is not right, because I was told that that was not possible.

Yvette Cooper: It appears that the hon. Gentleman's main objection is that the ban is set out on page 1 and the defence on page 3. This is a Bill. It is a single Bill; pages 1 and 3 are part of the same Bill. As my hon. Friend the Member for Amber Valley said, it is common for a Bill to set out an offence and subsequently to set out defences against it. The amendment to clause 2 is irrelevant because of the defence set out in clause 5 (5).

The hon. Member for Spelthorne (Mr. Wilshire) seems to be concerned only with the way in which the Bill is set out. I shall, of course, pass on to the parliamentary draftsman his wish that all its provisions should be set out on the same page, if possible, to make it easier for him to read the contents in the right order. However, I am not sure how seriously the parliamentary draftsman will take the hon. Gentleman's argument.

The hon. Gentleman went into a long diatribe about PC World, Dixons and so on. Goodness only knows how he can believe that it is reasonably practicable for the staff at Dixons to climb into his bedroom window and repossess his computer, having derived through the ether that he was using it for a tobacco advertisement. Clearly, the amendments are unnecessary. There are strong defences in the Bill for people who are unaware of—or for those whom it is not reasonably practicable for them to prevent—the distribution of an advertisement.

Tim Loughton: We had an interesting debate, even if it were abruptly cut off by your good self, Mr. Amess.

Mr. Wilshire: I was only on the introduction.

Tim Loughton: My hon. Friend was just beginning his warm-up routine, but I am sure that we shall enjoy more of his words of wisdom later in our proceedings. I defy Labour Members to accuse my hon. Friend of being terminally boring. On the contrary, he provoked more contributions from those on the Labour Benches than during our entire sitting on Tuesday. He certainly succeeded in waking up many of them. I look forward to better debates that involve more members of the Committee.

The Minister's argument was reasonable. I concentrated particularly on transmission personnel, especially those in telecommunication companies along whose wires the advertisements transmit. My hon. Friend the Member for Spelthorne is right: theoretically the way in which the Bill is drafted—as with so much legislation—means that it could take in more people. The Minister is happy that there are sufficient defences in the Bill. She has laid out her case explicitly and said that the other loosely related people will not be caught by it. I am grateful for her assurances and I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Mr. David Ruffley (Bury St. Edmunds): I beg to move amendment No. 4, in page 1, line 17, leave out

    'who does not carry on business'

and insert

    'whose place of establishment is not'.

The Chairman: With this it will be convenient to take the following amendments: No. 5, in clause 5, page 3, line 21, leave out

    'he did not carry on business'

and insert

    'the place of establishment of his business was not'.

No. 6, in clause 8, page 4, line 14, leave out

    'who does not carry on business'

and insert

    'whose place of establishment is not'.

Mr. Ruffley: I declare a non-remunerated interest as a member of the Lords and Commons Pipe and Cigar Smokers Club. I draw attention to subsection (4). It states that it is not an offence

    ''for a person who does not carry on business in the United Kingdom to publish or cause to be published a tobacco advertisement by means of a website which is accessed in the United Kingdom''.

It is also not an offence under the clause to devise that website. In other words, it is an offence to publish or cause to publish an advertisement on a website if the publisher carries on business in the United Kingdom, and that is at the heart of the amendment.

Labour Members may argue that clause 4(3) provides some exclusion from, or moderates the thrust of, clause 2(4). However, that is only a potential exclusion. Clause 4(3) states that if a provider ''complies with'' within certain

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''regulations'', they do not necessarily fall foul of clause 2. The problem that we Opposition Members have is that, to the best of my knowledge and belief, those regulations have not been made available to the Committee. It is difficult to know whether anyone caught by clause 2(4) could take advantage of clause 4(3).

None the less, website tobacco advertising published by a person carrying on

    ''business in the United Kingdom''

will be regulated one way or the other, whereas website advertising published by a person

    ''who does not carry on business in the United Kingdom''

will be unregulated, or subject to regulations in another country. That logically follows from the drafting of the Bill.

The amendment draws important attention to the crucial definition of the term ''carry on business''. Amendments Nos. 4 and 5 are probing amendments and I shall explain why in some detail. The provisions of clause 2 are intended to make it clear that the Bill does not have extraterritorial effect—we understand that that is what the draftsmen were driving at. The clause covers the originator of a website and people involved in the distribution or transmission of tobacco advertisements by electronic means. In other words, it will cover primarily information society service providers. That makes the e-commerce directive—directive 2000/31/EC—and the terms in which the UK intends to transpose that directive into UK domestic law, particularly relevant to the clause.

Throughout the passage of this Bill, and that of its predecessor in the previous Parliament, the Government have properly undertaken to make the provisions consistent with the e-commerce directive. EU member states adopted that directive in summer 2000. Its purpose is to facilitate commerce over the internet. It should have been implemented by 17 January 2002, but the UK is not the only member state that has found it impossible to meet that date.

Under article 3 of the directive, those who trade on the internet are obliged to comply only with the laws of the member states in which they are established, not those of the states in which they are carrying on business. A member state cannot impose further regulations on an organisation's activities if that organisation is established in another member state. The Bill, however, purports to restrict internet advertising of tobacco from being used by anyone who is found to

    ''carry on business in the United Kingdom''.

Clearly, it is a logical and practical possibility that such a person could have a place of establishment in a member state where tobacco advertising on the internet is permitted, at least until a new tobacco advertising directive bites on that country's domestic law. In sum, we tabled amendments Nos. 4 and 5 to clause 2(4) because if the amendments are not accepted, there is a clear

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possibility that the Bill will be inconsistent with the EU directive. I understand that draft regulations that would introduce the directive into United Kingdom domestic law were published for consultation, and that the closing date for representations was 2 May. Our amendment is probing and asks the Minister a question. Is she satisfied that subsection (4) is consistent with the e-commerce regulations—I do not know whether it is consistent with the directive—that will be introduced by Her Majesty's Government in this country?

9.45 am

Will the Minister remind the Committee, in as much detail as she deems necessary, about the status of the regulations and tell us how the language in them meshes with the EU directive? That would help all people concerned; those of us who do not want unnecessary litigation to occur under the Bill, those of us who are keen for the Bill to be improved and the judges who will need to understand clearly what the Minister is driving at.

I am sure that the Committee will want to be entirely satisfied that the phrase

    ''who does not carry on business in the United Kingdom''

is entirely consistent with the directive and regulations. I hope that I have made that clear. The Government explained their use of the phrase ''carry on business'', rather than the word ''establishment'' to which the directive draws attention. Does that mean that there would be an actual presence? The legal sense in which the Minister wishes to define

    ''carry on business in the United Kingdom''

is unclear.

Depending on individual cases, courts would have different interpretations about what the phrase could mean. Let us consider a branch office that no one works in, but that has a name plate. That company would be registered in this country but would have no filed accounts or any details more than a pro forma for a company with a brass plate on its door.

I do not want to turn the debate into a party political bun fight. It would be churlish and unfair to remind the Committee about the definitions of a place of business to which No. 10 and the Prime Minister resorted when deciding whether Mittal had a place of business in this country and whether that was an English company. Let us pass over that. It is safe to say that there is legitimate debate on, and legal interest in, the matter. Lawyers will read avidly the Committee's proceedings in Hansard, and I know that they are searching for enlightenment on the meanings of ''establishment'' and ''carry on business''.

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