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Lord Skelmersdale: It is not helpful that the amendments have been grouped. They cover two totally disparate points.
I was not going to dilate upon the subject of old cigarette advertisements tins which were taken off barns years ago and now have a certain rarity value. I was much more interested from my background—here I declare an interest as a mail order trader—in mail order catalogues. However, as the debate has gone somewhat awry, I shall reserve my comments on that point until later.
I observed what the Minister said about Clause 4(1)(a). I accept, to an extent, that the mischief being created is the mischief that happens in the United Kingdom. Therefore, if a place of business is outside the United Kingdom, it may happen that the mischief would not be caught by the Bill.
I have never gone into the Bill from a position where I am against it lock, stock and barrel. Of course I am not; I want to make it work. I do not want it to be challenged in the courts, either here, in the ECJ, or, even worse, under human rights legislation. But all these things are possible in the future. The more we can limit that, the more everyone will be better off. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 18 to 20 not moved.]
Earl Howe moved Amendment No. 21:
- Page 2, line 19, leave out paragraph (c).
The noble Earl said: One of the persistently worrying features of the Bill, to which reference has been made a number of times today, is its vagueness. All the way through, we find far too much in the terminology and phraseology that leaves room for legal uncertainty. The noble Lord, Lord Clement-Jones, defends that on the ground of pragmatism, but it is disturbing. When we come to Clause 4(1) we see another case in point.
Clause 4 relates to permitted exceptions or exclusions from the purview of the Bill in terms of who is liable for an offence of publishing a tobacco advertisement. The exclusion permitted for publications, the principal market of which is not in the United Kingdom, leaves us asking all kinds of questions.
How is the term "principal market" to be defined? The noble Lord, Lord Palmer, has made a very good stab at an answer in Amendment No. 29. He suggests that the UK should not be considered the principal market where fewer copies of a publication are sold here than are sold abroad. That is a perfectly sensible proposition.
But, of course, it is not the only way one could interpret the phrase "principal market". If, at home, I produce an apple pie for lunch and carve up three-quarters of it among six other people, leaving a quarter of the pie for myself, my family may well say that I have given myself more pie than anyone else. Am I therefore the principal market for that pie? There is no certainty.
Whatever one's interpretation of the meaning of the term, there is the separate question of where the principal market for a publication happens to be at any one time. Some newspapers are transmitted by satellite for printing in individual countries. The text of a newspaper can be substantially the same in every country, but sometimes not completely identical. Is it the same publication or several different ones? Publications such as the Financial Times or USA Today originate, by and large, from a single source, but they are physically printed all over the world. The magazine Hello is a Spanish publication, with an English edition that circulates outside the UK. How do we define the principal market for Hello magazine?
We live in a global economy where products and publications flow freely across international boundaries. Where does one market begin and another one end? And over what period do the Government and the noble Lord envisage calculating the circulation of a publication so as to quantify the number of copies sold? Is it a period of months or years, or might "principal market" be defined in relation to a single edition of a magazine? That seems to me very troubling.
The Minister in another place said at Third Reading of the government Bill:
- "We have not provided a specific quantification of what 'principal market' might mean because it will vary in different circumstances".—[Official Report, Commons, 13/2/01; col. 219.]
In these circumstances, there may be some publishers of international magazines who will not want this kind of uncertainty. They will merely set up abroad, where they will not fall foul of the UK law. On the other hand, a UK distributor of a Spanish magazine that carried a tobacco advertisement could be prosecuted here if the UK were the principal market for the publication. Does that mean that special UK editions would need to be printed? Looking at matters in that light, it seems strange that the UK is attempting to legislate separately from our partners in the rest of the EU.
All these uncertainties seem to prove one thing. We are dealing with a Bill which is not just about health, but about international competition. I very much hope that the Minister and the noble Lord, Lord Clement-Jones, will be able to shed some helpful light on these matters, so that we are least a little clearer about what this part of the Bill is telling us. I beg to move.
3.15 p.m.
Lord Hunt of Kings Heath: The Government's intent in drafting the original Bill was not to seek to hinder the importation of foreign publications which carry tobacco advertisements so long as their principal market was outside the UK. It is a commonsense point of view which suggests that the principal direction of the Bill has to be publications published in the United Kingdom. Nor does the Bill seek to hinder the importation of foreign publications which carry tobacco advertisements, so long as their principal market is outside the UK.
I have listened with interest to the comments made by the noble Earl, Lord Howe. It is true that we have not provided a specific quantification in terms of a "principal market", because it will vary in separate circumstances. For example, the term may vary according to whether a magazine has five markets or whether it has only two. I accept that in a sense the noble Earl asked that question. It could be argued that if a company has 40 per cent of its sales in the UK and the remaining 60 per cent in half a dozen other countries, the UK might well be said to be the principal market, even though less than half the total sales are here.
We return to an argument that threaded its way through our discussions earlier today; namely, the balance between what the noble Earl describes as "vagueness" and the intention of those who drafted the Bill to avoid loopholes. The risk if we define the term too tightly is that there will be loopholes. That would mean that we should not have the ability to bring the perpetrators to book. That is why, necessarily, it is not possible to define the term as tightly as the noble Earl would wish.
The noble Earl posed a more general question about international action. Work is being undertaken in relation to the proposed EU directive. This is focused on trans-national advertising. The Government, alongside other governments, are also working within the WHO towards a much clearer understanding and agreement between many countries. I hope that through that we shall reach a position where there is as uniform a provision as possible of these kinds of activities. In the end, it is difficult to define, in the way the noble Earl suggests, down to the last "i" and the last "t" and I am not sure that the Bill is best served by seeking to do so.
Lord Clement-Jones: I very much accept what the Minister said. I adopt entirely the same approach as the noble Earl, Lord Howe. It is a question of mischief in a sense. What is one trying to do through the Bill? It is designed to be an inclusive Bill to avoid the loopholes that could arise. The more one defines—Amendment No. 29 of the noble Lord, Lord Palmer, would be guilty of that to a considerable extent—the more loopholes one finds. In ordinary parlance, and certainly if one is a businessman, it is important to know what one's market is but one does not necessarily define it in terms of being a majority or a minority. It probably constitutes the bulk of one's readers or the readers to whom one's product is mostly directed. Of course, one will know the numbers, so to speak, in terms of the readership of the magazine. However, that is a matter for pragmatic interpretation at the time, as it were, rather than for some sort of formula that one can establish in the Bill.
On the other hand, I do not think that it is difficult when faced with the question of, for instance, where the Financial Times principal market is, to be able to determine that despite the fact that it has printing presses and editions in a wide variety of different countries. It is a practical matter at the end of the day. I do not think that it is too difficult to discern the answer when faced with a practical problem. To that extent I entirely agree with the Minister. I do not believe that in practice foreign owners of publications would be put off from allowing their publications into the UK simply because there is not some sort of rigid definition of the situation.
Earl Howe: I am grateful to both the Minister and the noble Lord, Lord Clement-Jones. I am not at all sure that I accept that this is a question of loopholes in the Bill. It is a question of providing some sort of certainty to the business community.
I do not think that this debate has advanced that cause any further. I wonder whether the noble Lord, Lord Clement-Jones, believes that publishers are entitled to at least a general steer in the direction of a definition here. If it is—as the Minister indicated—a question of going back to my example of the pie and saying that the person with the largest slice constitutes the principal market, even though there may be many
other people with much smaller slices, why cannot we say that in the Bill? Alternatively, why cannot we go down the route proposed in Amendment No. 29? I do not see the problem here. I do not see it as a question of loopholes.Nevertheless we have another opportunity to come back to this matter should we so wish. I shall, of course, reflect—as I always do—on what has been said. For the time being, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Hunt of Kings Heath: We are almost at 3.30. I think that it would be a convenient time to adjourn the House. I beg to move that the House be resumed.
Moved accordingly, and, on Question, Motion agreed to.
- House adjourned at twenty-five minutes past three o'clock.
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