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Lord Clement-Jones: Oppressive on the small printer, or proportionate—that is the question. I agree that this is a serious issue. I freely admit that my own printing credentials are not of the highest: I have a duplicator in my basement. However, I understand the issues being raised in regard to the provision.

Having been a libel lawyer, I am slightly baffled as to why it is believed that the constraint imposed by the Bill is in some way novel for those involved in printing material. As soon as it is made clear that printed material has been communicated to someone else, and it transpires that the material is defamatory, a printer must demonstrate that he has put in place certain defences, otherwise he would be brought before the civil courts on a charge of libel. In those circumstances, the test is rather more oppressive than simply that the prosecution must show beyond all reasonable doubt that the accused is guilty of a criminal offence.

If printers do not check the content of the material they undertake to print, then they are making a serious mistake. Noble Lords will recall that one of the softest targets for Jimmy Goldsmith and others who in the past have sued Private Eye has been Pressdram, the printers of the magazine. Printers have been well aware of their duties for many years; probably for the past 300 or 400 years. I stress that this is not a novel constraint. Suddenly to erect the word "knowingly" as

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a totem for the purposes of the Bill and to declare that a small printer now has to face novel duties is quite wrong. We must be crystal clear about the ordinary duties of a printer. One would no more apologise for a printer who published pornographic material than one would for a printer who produced material that was racist in content.

I feel strongly that, because the constraint is not novel, it is perfectly appropriate that it should be included in the Bill. The defences laid down in Clause 5 confer on all parties proper redress. However, I agree with the noble Lord, Lord Lucas, about the role of a "deviser". How could an advertisement promoting tobacco not "knowingly" be devised? Would it be done during a long sleep over the weekend? It is perfectly clear whether an advertisement has been devised. The noble Lord, Lord Lucas, has erected his argument on the back of the role of a printer, but it would be extremely difficult to erect it on the back of any of the other occupations set out in the Bill.

Lord Monson: Let us suppose that a draftsman is asked to create a design on a piece of silk, but that any wording to accompany the final design was to be undertaken by someone else. It then transpired that the piece of silk was to be used indirectly to advertise Silk Cut cigarettes. Would such an individual be in danger of being prosecuted under the provisions of the Bill because he had contributed indirectly towards an advertisement used to promote a tobacco product?

Lord Clement-Jones: Clause 5 provides plenty of comfort, even for a junior barrister employed by the noble Earl, Lord Erroll. He would have a lengthy list of possibilities from which to choose. I suggest to noble Lords—including the noble Lord, Lord Lucas, who has made a perfectly proper case—that they should look through the defences. They will see that they are extremely wide in ambit.

Baroness Noakes: I thank the noble Lord for giving way. Perhaps I may take him back to the discussion we had earlier about advertisements. We were trying to obtain clarity as to what is an advertisement. The noble Lord described that a printer may have to go through the whole copy in order to avoid the libel laws, but it is not easy to understand why that should apply if, for example, a printer is producing a letterhead which in some circumstances may not be a tobacco advertisement and from what I understood earlier in other circumstances could be a tobacco advertisement. Given the resistance of the noble Lord, Lord Clement-Jones, and the Minister to being specific about what is or is not an advertisement, we may be imposing potentially significant burdens on printers, distributors, publishers and devisers.

Lord Clement-Jones: I perhaps have more confidence in our judges than the noble Baroness. That is precisely the reason for having the ordinary meaning of the word "advertisement" in the Bill. If you have a very technical meaning, you should not expect a printer, a publisher, a deviser in his sleep, or whoever

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else you choose as an example, to understand what is an advertisement. If they have to go through three schedules to the Bill in order to find out what is an advertisement, that is precisely why a specific definition would be wrong. We prefer the ordinary meaning, because if a judge is then faced with a printer who says, "That is what I understood an advertisement to be", as sure as not the judge will agree.

Lord Lucas: Let me start with the point that the noble Lord, Lord Clement-Jones, did not address—that is, the one about the corner newsagent. I was interested when the Minister said that when a newsagent is told there is a tobacco advertisement in a magazine—and he opens it and he sees it—he should do something about it. That is what "knowingly" means. Once he has been told, he knows. Once someone says, "I told him", there is the proof that he knew what the prosecution wants. That is the offence for newsagents as I would like to see it. The noble Lord, Lord Clement-Jones, did not address the issue of newsagents at all.

Returning to the underlying principle of my amendment, why should people who do not have any part in the decision-making process—by way of creating, publishing, funding or in any other way taking executive decisions—in relation to an advertisement have a liability of care? I agree that if they take part knowingly they should commit an offence. But why should they go about their lives making sure that they do not commit an offence?

If someone chose to attack my printers for liability, my printers would have resort to their terms and conditions, which state that I would have to pay. That is fair enough because the attack would be a back-door way of getting at me. But here we have a criminal offence where the printer can be imprisoned for two years. That is not something the printers can get around by the transfer of liability or an insurance policy. It is much more serious than the mere transfer of a civil liability. We are dealing potentially with giving people or organisations criminal records and prison sentences. I just cannot see why. What kind of loophole would be created if printers were left out of the reversal of the burden of proof if we made it "knowingly" for printers?

I support the noble Lord, Lord Clement-Jones, on the question of "devise". Anyone who takes an active part in creating something should take care to know what it is they are creating. But on the issue of printing, my disk goes into the printers and its contents are on the machines half a day later. Printers do not have time to read the book. The whole process of printing would slow down if they had to read everything. The reading is done by the publisher; the responsibility is taken by the publisher. The sanction of the criminal law should lie on the people who take the decisions, who pay the money, who are making the investment in an advertisement. It should not lie on people who are merely performing a necessary process which follows on that, either the printer or, as has been said, the

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newspaper boy, who would be a distributor under the Bill. Presumably he will have to read every newspaper he is delivering in order not to be liable for committing a criminal offence.

That is taking the matter to ridiculous extremes, but the criminal law should not even potentially attack those people because they are not playing a crucial part in the chain of creating a tobacco advertisement. They are no more guilty than a person who buys a magazine containing a tobacco advertisement. Are we all supposed to read a magazine before we buy it to make sure that it does not contain a tobacco advertisement?

This kind of heavy liability should be carefully targeted on the people who make a difference. It should not impose duties and obligations on people who have nothing to do with the whole process.

1.45 p.m.

Lord Clement-Jones: I hope that the noble Lord, Lord Lucas, will in due course withdraw his amendment. His argument is that particular individuals—whether it be a newspaper proprietor or printer—are mere conduits. I believe that is the word for which he is searching.

Lord Lucas: No. Newspaper proprietors clearly fall under Clause 2(1); they are publishers. But they are not printers. Printing is done by the little machine on my desk; it is merely "data in, print out". A big printer merely does that on a grand scale and makes sure that it is done well. Publishing is where the mind has an effect on what happens. I do not expect my printers to tell me that I have a comma in the wrong place or that there is anything wrong with my copy. I expect them merely to do the job that I gave them to do and produce the books. That should not bear the burden of checking everything for a tobacco advertisement.

The Earl of Erroll: It may help the noble Lord, Lord Clement-Jones, if he spoke to the Minister afterwards about the difference between printing and publishing. They are quite different tasks.

Lord Clement-Jones: I thank the noble Earl for that guidance. I was a libel lawyer for six years, so I do understand the difference. But it was very helpful nevertheless.

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