Tobacco Advertising and Promotion Bill [Lords]

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David Taylor: By firming up ''may'' into ''must'' and reducing the flexibility of Governments, does the hon. Gentleman not turn a sensible approach to law enforcement into the jackboots to which he earlier referred?

Mr. Wilshire: I will add to the list of being naive, being a bit slow. I cannot see how that argument applies. Exactly the opposite is the case. Perhaps I misunderstand the hon. Gentleman and he will have another go at persuading me that I am missing something. By removing flexibility, one ties the laces of the jackboots together so that they cannot be used.

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The hon. Gentleman shakes his head, but I do not see his point. I am willing to be educated, but the essence of clarity is to remove the opportunity for wriggling, changing things, overruling Parliament and overruling the rule of law. If nothing else, the rule of law depends on clarity and inflexibility. I thought Parliament existed to create the law and to change it if necessary. In this instance, the rule of law and the supremacy of Parliament are being replaced by the diktat and whim of a temporary Secretary of State of whatever political party. If my party proposed that, I hope that I would have the sense to say the self same thing.

The clause is not right. It offers opportunities to do the opposite of what the hon. Member for North-West Leicestershire suggests. I am sorry about that. If he will not intervene now, perhaps we might continue the conversation afterwards. I am prepared to admit that I am wrong, but I think that that is unlikely.

On amendment No. 27, it is strange that the Government want regulations that will create offences. Subsection (4) is unnecessary because (4)(a) says that something must be either an advert or a display—that item A is not item B. Then—surprise, surprise—subsection (4)(b) says that item B is not item A. Why do the Government need to say what is so self-evident?

Yvette Cooper: The regulation-making power set out in clause 8 is not a power that we are planning to use, but a reserved power to prevent abuse such as displaying packs of cigarettes all over a model of a Formula 1 car or in the shape of a teddy bear. I do not envisage the regulations being needed. That is why last year's original draft did not include the provision. However, there was some anxiety that there might become a loophole, which is why the clause has been introduced.

I will deal with the amendments in reverse order. If such regulations were needed, clause 8(4) would be essential, because we will have set out regulations on advertising at point of sale under clause 4(3). Those regulations will set out restrictions and define what might be permitted with regard to advertising at the point of sale. However, if new regulations are also introduced to cover display, there might be some overlapping areas; some things could be covered by both sets of regulations. Some things would clearly be advertisements at the point of sale rather than displays, such as signs. Other things would clearly be displays rather than advertisements, such as rows of cigarette packets set out in a gantry. However, it is conceivable that some things will be both, such as a Marlboro packet in a gantry in the shape of an M, or a Silk Cut packet displayed on a piece of slashed silk.

Where there is potential for some things to be both an advertisement and a display, it will not matter if no regulations are in force with regard to displays—if we have not exercised that power under clause 8—because they will be covered under the broader terms of the Bill with regard to advertising at the point of sale. However, if the power under clause 8 has been executed, two sets of regulations will potentially be in place, and it will be important for enforcement officers and traders to know in which circumstances the

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regulations under clause 8 apply, and in which circumstances the regulations under clause 4(3) apply. That is why subsection (4) is an essential part of clause 8.

I turn to the issue about clause 8(3) and the meaning of the words ''may'' and ''must''. Clause 8(3) has been included to ensure that it is possible for regulations to define what a ''place'' might be, if that is needed, but it would be wrong to say that the regulations must provide for the meaning of ''place''. Whether to provide that meaning would be the right way forward would depend on the nature of the abuse or problem that the regulations were attempting to solve. For example, it is conceivable that the regulations will simply be about issues on a website, and will not refer to place, or that the draftsmen felt that it was not necessary to provide for the meaning of ''place'' to cover the abuses that were being described. However, it might be the case that it was thought to be extremely important to pin down the meaning of ''place'' to rule out some places and to rule in others. Therefore, it is necessary both to have that kind of flexibility and to retain the subsection. That is why the Government oppose amendments Nos. 38 and 27.

Mr. Wilshire: The Minister has not addressed my concerns about ''may'' and ''must''. She has merely restated the obvious yet again. Why pick on ''place''? If the Minister would only answer our questions, we would make much more progress, because we would not have to try to wring information out of her.

Clause 8 states:

    ''A person who in the course of a business displays or causes to be displayed tobacco products or their prices in a place or on a website''.

The regulations can address any of that. Why is it not stated that thes regulations can come up with a definition of ''business displays'', or ''cause to be displayed'', or ''tobacco products'', or ''prices'', or ''website''? The regulations could cover those words in the clause as equally as the word ''place''. All other words are not deemed to be worthy of mention, but the Minister made it clear that the regulations will cover all other words, although that is not mentioned. Clearly, the Bill will enable the regulations to cover the words although they are not spelt out as being covered. However, as ''place'' is singled out for special mention, it must be more important than the other words and the cause of more concern. If the word is singled out, surely it must, rather than may, be defined by the regulations because all the other words can be defined.

We were told that the provision is in the Bill to allow a reference to ''place'', but we have not been told why ''place'' has been singled out. I shall ask the question again. Why is it necessary to single out ''place''? What is so important and worrying about that word? If there is an answer to that question, surely it follows that ''place'' must be defined in order to address the worry. Otherwise it could be unmentioned in the same way as the other words.

Yvette Cooper: The hon. Gentleman's point seems to be that either one must do something, or one should not do it at all. The logic behind that is unclear. The

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provision is designed to ensure that the right flexibility is present to address problems that the regulations might resolve.

An example of the use of ''place'' is to specify a place where tobacco is sold within a larger shop. There may be a desire to examine displays in a particular place. It is correct that there is flexibility for that, but we should not pin it down at this stage.

I have made it abundantly clear that we do not anticipate using the regulation-making power. We have not identified a current problem that we want to get rid of. If there were a specific problem, the Bill would cover it or we would say that we shall definitely introduce the regulation-making power. The power is reserved, and because it is reserved it is right that there should be sufficient flexibility.

Tim Loughton: Yet again, the Minister has resorted to saying that the Government do not intend to use the reserved powers, but they will put them in the Bill just in case. She failed to convince Opposition Members why the powers are required, why the word ''place'' has been singled out and why we should have a dual system. That heaps confusion on confusion. As we consider each clause, the Government's intention becomes less clear, as does how the powers will be used, if at all, and how the poor, unsuspecting retailer of tobacco products will know how to respond. If the

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Committee is confused about what the provisions mean, how on earth will people who make a living from tobacco sales cope?

I apologise to my hon. Friend the Member for Spelthorne if I appeared to downplay the importance of replacing ''may'' with ''must''. That comes after many months serving on the Standing Committee that considered the Adoption and Children Bill. We considered so many such amendments that it became commonplace to go through the motions before they were tossed aside. I am not trying to diminish the importance of the replacement of the words in the clause, but I am war weary of other Ministers' responses to such amendments.

If we examine subsection (4), which states that the regulations ''must'', rather than ''may'', we notice the stark and distinct contrast between subsections (3) and (4). I agree completely with the points made by my hon. Friend the Member for Spelthorne about the importance of inserting ''must'' instead of the rather weaker ''may'' in subsection (3).

I was completely nonplussed by the welcome standing comment by the hon. Member for North-West Leicestershire. He completely contradicted himself, which my hon. Friend the Member for Spelthorne picked up.

        It being One o'clock, The Chairman adjourned the Committee without Question put, pursuant to the Standing Order.

        Adjourned till this day at half-past Four o'clock.

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The following Members attended the Committee

        Winterton, Mr. Nicholas ( Chairman )
        Bailey, Mr.
        Barrett, John
        Cooper, Yvette
        Fitzpatrick, Jim
        Hall, Mr. Mike
        Hopkins, Mr.
        Hunter, Mr.
        Khabra, Mr.

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        Loughton, Tim
        Mallaber, Judy
        Moffatt, Laura
        Murphy, Mr. Jim
        Taylor, David
        Turner, Dr. Desmond
        Ward, Ms
        Wilshire, Mr.

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