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Lord Naseby: I speak to Amendments Nos. 3 and 4. As I do so—and as I shall be speaking to a number of amendments today—the Committee may appreciate it if I make a couple of general remarks which affect these two amendments, particularly, and later ones.
First, I come to this House as a life Peer, an appointed Peer. The number of colleagues who are present today is an indication that it does not need elected Peers to carry out a good revising role in your Lordships' House.
Secondly—I re-emphasise the point—I have absolutely nothing to declare. I am not a smoker. I think the last cigar I smoked was some 17 years ago. On our way to the House this morning my wife could not remember exactly when it was, but it was a long time ago. I do not smoke. I have never during my 30 years in Parliament had any pecuniary involvement with any facet of the tobacco industry, however it may be described in this or any other Bill. Being married to a retired GP, I certainly acknowledge that tobacco kills.
I also come to the Committee with 20 years of experience in advertising. I therefore offer to the Committee, in these amendments and others, some of the experience of those 20 years. It may, of course, be a little dated; nevertheless, I believe the basic rules of advertising do not change very much. Those are important points.
In relation to the amendments, we must also think about consistency of approach. Although this is a Private Member's Bill, we just heard an interchange between the Front Benches to the effect that the undertakings given when the government Bill was introduced hold true. Therefore, government announcements that impinge on the Bill must necessarily be taken into account.
In that regard, the downgrading of cannabis is relevant. Perhaps we may have some clarification. I believe that, if it is downgraded, there is nothing to stop anyone producing a brand. If that is the case, the Government will be concerned to ensure good manufacturing practice rather than back-street production. Those points are relevant. If the approach is to go even further, to cover Ecstasy and other drugs, that will impinge on the Bill.
Turning from the general to the particular, my Amendment No. 3 seeks clarification. First, paragraph (b) in Clause 1 refers to the "effect" of an advertisement—that is the key word—even though the purpose was not to promote a tobacco product. One can sit down and devise a clear strategy of what one is trying to achieve, but, since this is an art rather than a science, one cannot always know that the results will be what one has set out to achieve.
The draft European directive on tobacco advertising uses a slightly different definition. The draft directive describes offending tobacco advertising as advertising which,
- "has the aim or direct or indirect effect of promoting a tobacco product".
- "The EU position for the 3rd negotiating round for a WHO Framework Convention on combating smoking".
- "MEPs will vote on a draft resolution submitted by the Committee on the Environment, Public Health and Consumer Policy in preparation for the 3rd negotiating round for a World Health Organisation Framework Convention to combat smoking".
Perhaps I may dwell for a few moments—reflecting on my previous incarnation before being elected to the other place—on the purpose, or the intended "effect", of an advertisement. Many Members of the Committee may not be aware of the exact thought processes and skills that go into the creation of an advertisement. First, before anyone tries to produce any form of advertisement, however defined, he must sit down and produce a brief—what is it that the client wants to achieve? What does the client wish to communicate to a particular audience? That is not something that can be dashed off in a couple of moments. It is debated at great length with the client. It may take several months to evolve. It may be part of the corporate strategy; it may merely be part of the brand strategy. But it will be part of the refining process: what the client is trying to communicate.
Secondly, he must determine who is the object of the communication. The vast majority of advertising is not blanket advertising. It is targeted at a particular audience. In its most direct form, it can be a letter from one individual to another. In a direct mail sense, it may be from a list system. Posters are a good example. Most noble Lords will have passed posters while coming to the House this morning. Posters are not geared to every single person who passes them. They will have been sited to ensure that the target audience is the most likely to see them. So we cannot just assume a blanket approach.
In weighing up the amendment, it must be remembered that the intended effect of an advertisement will have been thought out in great depth. But, inevitably, not everyone gets everything right. We find that the purpose of the advertisement is usually very clear, but whether its effect is clear is another matter altogether.
I recall a brand in the tobacco world called "Strand". I am going back perhaps 30 years—I am not a smoker, but those who are may remember it. I cannot remember which company introduced it. But I do remember the "strap line": it was,
- "You're never alone with a Strand".
There was a chap in a mackintosh and I think it was raining. The effect was to say, "If you've got a Strand cigarette and you're on your own, you have a companion with you and you'll feel better". I think that was probably the strategy. But the brand was a complete failure, even though it was backed with a large amount of money. Although the tobacco company that had devised the brand had given a brief to the advertising agency, approved the creative work and seen the posters go up, the whole thing was an absolute flop. Even in those days it must have cost £1 million plus. Today, we should be talking about £20 million or £25 million. So the effect bore no relation to the purpose. I suggest to the Committee that one must be very careful when considering the word "effect".
Although one does not know the "effect" of an advertisement, according to the Bill as drafted if the effect is the promotion of a tobacco product, it will be an offence under the Bill and will carry severe penalties, which are set out in Clause 16. A person who is guilty of an such an offence is liable,
- "on summary conviction to imprisonment for a term not exceeding six months, or a fine not exceeding level 5 . . . or . . . on conviction on indictment to imprisonment for a term not exceeding 2 years, or a fine, or both".
11.30 a.m.
Earl Russell: Does the noble Lord think that judging the effect is more difficult than judging whether conduct is liable to provoke a breach of the peace which the common law does daily?
Lord Naseby: I am not a lawyer and therefore I do not know the answer to that question. However, it is a question that should be posed and it is certainly worthy of debate.
It may be argued, in relation to what I have been saying on Amendment No. 3, that all one has to do is look at subsection (2) of Clause 5 which provides a defence requiring the person,
- "to prove that he could not reasonably have foreseen that that would be the effect of the advertisement".
Whereas it has generally been straightforward to establish whether the purpose of an advertisement is to promote a product or service or company or whatever, it will not in my judgment generally be possible to demonstrate that although it was not the purpose, the effect was to promote a tobacco product. In the
absence of any supporting data that can largely be only a subjective judgment. I submit to the Committee that we should not contemplate putting on to the statute book matters based on subjective judgment.It seems to me that the relevant consideration is to consider the purpose of an advertisement. If it can be reasonably foreseen that the promotion of a product is the effect of an advertisement, that is the purpose of the advertisement. Rather than be concerned with the effect of an advertisement, the proposers of the Bill should in my judgment be more concerned to ensure that there is more certainty—certainty is what we in our revising role in this Chamber should be concerned with—in the application and enforcement of the Bill's provisions on advertising. The removal of paragraph (b) of Clause 1—as Amendment No. 3 proposes—would clarify what is and what is not to be regarded as an advertisement.
With the leave of the Committee I now turn to my Amendment No. 4, which is a fairly long amendment. Some may ask why I bothered to include all its provisions. In my judgment the Bill would be better if it was more explicit. I refer to the precedent of much other UK legislation that is explicit. Therefore, there is the precedent of many Bills passed by Parliament that are explicit. I do not see any reason why this particular Bill should not be explicit. It is not sufficient that the words in the Bill should be left as they are. I understand that the measure will have "a natural meaning" according to the phrase used in the government Bill. If that is not to be the case, it is important that the Bill states what does not constitute tobacco advertising. The amendment seeks to say exactly what does not constitute tobacco advertising. In the commercial world people need to have a degree of certainty.
Parliament has decided that it is perfectly legal to subsidise the growing of tobacco as we are a member of the EU. We ensure good manufacturing standards for the production of tobacco. Therefore, when it comes to the selling of it, we need to know what is or is not an advertisement. The amendment is geared to describing what is not a tobacco advertisement. The approach of clarifying what kind of things do not comprise tobacco advertisements is adopted in the legislation of other countries and member states of the European Union which ban tobacco advertising. On Second Reading the promoter of the Bill mentioned a number of countries that had banned tobacco advertising. I am not sure why he did not mention Norway where consumption increased after tobacco advertising was banned, but perhaps that did not fit his case. Perhaps the effect was different from the purpose in Norway. We can perhaps debate that later.
The amendment uses the template of the Guernsey tobacco advertising law of 1997. Therefore, it is not a Lord Naseby special; this is something that is already on the statute book. The buzz word now is "template". If you have a template, you are halfway there, or at least you hope you are. I am not sure that the promoter of the Bill is listening to what I am saying, which is a little distressing. Therefore, I shall repeat that sentence. I refer to the Guernsey tobacco advertising
law of 1997. Obviously, the promoter of the Bill will have wanted to get hold of a copy of it. I imagine that he already has one; if not perhaps one of his noble friends will make sure that he gets one before he speaks to the amendment.
When the Bill was considered in the previous Parliament the Minister in another place argued that to provide a narrow definition of "advertisement" would risk creating loopholes in the Bill. That is not the view that Parliament has taken on other legislation. I venture to suggest that that is a rather sloppy approach. If I may put it this way, it is a sort of commercial approach, whereas here we act as legislators and not commercial people. At the same time, however, the Minister in the other place confirmed that certain things were not regarded by the Government as advertisements. That may be covered by the letter that is to be placed in the Library. I am perhaps at a disadvantage in that I am not able to go there to collect the letter. In another place one always had a colleague who could nip out to get such things.
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