Tobacco Advertising and Promotion Bill [Lords]

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The Chairman: The question is that the clause stand part of the Bill. As many as are of that opinion, say ''aye'', and to the contrary, ''no''. The ayes have it— [Interruption.] I am happy to put the question again, but the Opposition were extremely slow in responding.

Question put, That the clause stand part of the Bill:—

The Committee divided: Ayes 12, Noes 3.

Division No. 6]

Bailey, Mr. Adrian
Barrett, John
Cooper, Yvette
Fitzpatrick, Jim
Hall, Mr. Mike
Hopkins, Mr. Kelvin
Khabra, Mr. Piara S.
Mallaber, Judy
Moffatt, Laura
Taylor, David
Turner, Dr. Desmond
Ward, Ms Claire


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Hunter, Mr. Andrew
Loughton, Tim
Wilshire, Mr. David

Question accordingly agreed to.

Clause 7 ordered to stand part of the Bill.

Clause 8


12.30 pm

Mr. Wilshire: I beg to move amendment No. 37, in page 4, line 14, leave out subsection (2).

This is a probing amendment. It seeks clarification from the Government of the purpose of subsection (2). I am always suspicious when something that is not necessary has been popped into a Bill. The clause suggests that it is possible to control foreign businesses and foreign websites, yet under the subsection there are exceptions to that control and it states that the Bill will not apply to a foreign business or website. I was under the impression that we cannot legislate for foreigners outside our jurisdiction, so I became curious because such a provision was part of the clause. If may not be necessary to develop such a line of thought, but I wish to give the Minister a chance to explain the reason for the clause. It seems to be making an exception for something that we cannot control in the first place.

Yvette Cooper: Clause 8(2) provides the same defence for displays as that provided under clause 2(4) for advertisements. It makes it clear that the Bill does not have extra-territorial jurisdiction. The hon. Member for Spelthorne is right that it is impossible to enforce an extra-territorial element, but it is also right that that should be stated clearly in the Bill.

Mr. Wilshire: That confirms my worst suspicions. The Minister said that we cannot control such people, so it is right to state that in the Bill. There are enough pages of legislation all over the place. We have necessary clauses to consider as it is, which affect the jurisdiction of England, Wales, Scotland and Northern Ireland. If we are to write into the Bill all the powers that it does not have, we will need a lorry to move it because it will be so vast. I understand the point that we cannot control people outside our jurisdiction. It was helpful of the Minister to admit the obvious, but we still have not got to the bottom of why it is considered necessary to admit the obvious. What is it about the clause that makes it necessary to say that it cannot do something that we all know it cannot do?

Yvette Cooper: In these days of increased international access and trading through the internet, it is important for the clause to clarify that, for example, a Japanese tobacco company that has no presence in the United Kingdom, but which has a website that can be accessed by a person in this country, does not commit an offence in such circumstances. I have made the position extremely clear.

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Mr. Wilshire: That is only a restatement of the obvious. We know perfectly well that a Japanese company cannot be held to account in the United Kingdom if it does not operate here. It does not get us far to continue with the circular argument— ''It's here because it's here, and because we all know that it's not necessary.'' The Government can waste their time talking about websites if they want to, but they could say, if they had the stupidity to do so, that it is a criminal offence to look at the internet. I sincerely hope that censorship will not be added to the long list of awful things that the Government do, but one never knows.

I hear what the Minister says. Clearly, however much I press her, we will not get a satisfactory answer on why the issue is considered worthy of inclusion. The record will show that the Government will not produce valid arguments for perfectly valid questions. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Tim Loughton: I beg to move amendment No. 38, in page 4, line 18, leave out 'may' and insert 'must'.

The Chairman: With this it will be convenient to take amendment No. 27, in page 4, line 20, leave out subsection (4).

Tim Loughton: The amendment is on the same principle as amendment No. 37, to which my hon. Friend the Member for Spelthorne spoke. There is great confusion in the clause, not least in subsection (4), which amendment No. 27 would omit. Amendment No. 38 would make a small change to subsection (3) to add force to it. Under the amendment, the regulations ''must'' give

    ''the meaning of 'place' in subsection (1).''

Greater clarity is required in the clause because it deals with the thorny issue of what is a display and what is an advert. I am keen to get a better definition of those words from the Minister, because they are certainly not clear from the wording of the clause or the explanatory notes that go with it. I understand that it is her own clause, which was in the Bill in the previous Parliament. The purpose of the clause should be to distinguish between a legitimate and a promotional display, but I do not think that it does so. The Select Committee had something to say about subsection (4) in its report. It stated:

    ''The puzzle is made more difficult by subsection (4), which provides that 'The regulations must make provision for a display which also amounts to an advertisement to be treated . . .' as one or other but not both. Presumably this is because if regulations were to be made under clause 8(1) there would be a risk that a display of cigarette packets set out to spell, say, Camel'',

or Marlboro, for want of a better brand,

    ''would constitute both an offence under clause 2 and an offence under clause 8.''

Mr. Wilshire: A double whammy.

Tim Loughton: Indeed, and one to which the Select Committee quite rightly drew our attention. The clause is an unnecessarily complex piece of drafting. Obviously, we have to know which sort of adverts, or set-ups, should be treated as displays, and which as

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advertisements. I have no difficulty with the idea that certain sorts of display should be treated as advertisements for the purposes of the Bill, or that regulations should be framed to define the circumstances in which that will happen. We do not dispute that. However, I do not understand why we need to complicate matters by going further.

Surely, any display-cum-advertisement that cannot be categorised as an advertisement must, ipso facto, be a display. However, I have considered the wording carefully, and it does not appear that that is the result that has rather pedantically been achieved. It is particularly interesting that the clause admits the possibility that certain sorts of advertisement should not be treated as such for the purposes of the Bill. We agree with that. When we discuss the clause that deals with brand sharing, we will argue for explicit recognition that the use of a company's name and logo on its own stationery should not be treated as an advertisement even though, strictly speaking, it is exactly that. The clause envisages the framing of the definition of particular types of advertisements that should not be treated as such under the Bill. That is the very thing that we were told that legislation should not attempt to do.

The Bill enters complex territory when defining terms, or rather—as we have seen on many occasions—passes the buck for defining them. It appears that, yet again, the Minister is happy for the matter to be resolved by challenge in the courts at a later stage. Our proposals are probing amendments, because we are leaving a confused situation about when a display is an advertisement and when it is not.

Given that the clause is the Minister's own, I ask that the definition be made tighter. Otherwise, we are at liberty to strike out subsection (4), which reads as complete nonsense, and introduce a requirement rather firmer than the use of the word ''may'' under subsection (3). In previous Committees, the use of the words ''may'' and ''must'' has been a thorny subject, and we will not discuss the semantics of the particular term in any detail, other than to say that it needs to be beefed up so that ''place'' must be defined in subsection (1). I await the Minister's response with interest because I am completely confused by the clause, as I think most people are. That is why I am proposing the two amendments.

Mr. Wilshire: Ever the one to try to be helpful, perhaps I can add to the Minister's list of questions to answer. Never let it be said that I am not prepared to learn and be reasonable.

My hon. Friend was not as anxious about the use of the words ''may'' and ''must'' as I had hoped he would be. It is easy to say that any debate about whether ''may'' or ''must'' is used is somewhat pedantic. However, the whole issue of the contents of a Bill is one of pedantry, because someone somewhere will have deliberately chosen the word ''may''. Some thought will have been given to its use, and I should be grateful if the Minister would tell us why that particular word was used. Subsection (3) states:

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''The regulations may, in particular, provide for the meaning of 'place' in subsection (1).''

The phrase ''in particular'' suggests that someone somewhere has said, ''Oh dear, there is a possible loophole if we use the word 'place'''. That there could be some difficulty with the word has clearly been a matter of debate, discussion and anxiety among parliamentary draftsmen and lawyers, otherwise the subsection would not exist. It is possible that I have misunderstood the subsection and that the Minister will tell us why—other than the fact that the address is a genuine issue—it has been included. If there is another reason, I would like to hear it. We would then have another provision that really was not necessary. Nevertheless, I am prepared to concede that it has been decided that subsection (3) is necessary, particularly in respect of the word ''place''.

What is the problem? Why is someone worried? If there is a difficulty, it must—not may—be solved. It is no use saying, ''It may please our fancy to sort the problem out, or it may not. It depends on how we feel about it on the day.'' If there is a real issue, it must be dealt with. The difference between ''may'' and ''must'' is important. If a provision may do something, why say so? We have the freedom to make regulations and that is what our debate is all about. We can say ''must'' if we want. Will the Minister tell us why ''must'' is not appropriate and the reasons for the inclusion of subsection (4)?

Amendment No. 27 raises another issue over and above those raised by my hon. Friend the Member for East Worthing and Shoreham. Subsection (4) provides that the regulations can, in effect, create offences. It is objectionable for all the reasons given by my hon. Friend as well as the idea that, yet again, we can hand to a Minister the power—by regulation, not legislation—to create brand new offences concerning the issue of displays and advertisements.

The longer we consider the Bill, the clearer it becomes that the Government want enabling powers. They want Parliament to hand them the permission to do much as they please and come up with whatever definition they feel like. They may do this or they may do that. If they have not got their defences or the burden of proof requirements right, they will change them when they get round to it. Subsection (4) is another example of the Government trying to take power away from Parliament and saying, ''We won't bother to discuss it.''

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