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Lord Lucas: It is clear that the Scottish regulations would apply to a branch of, say, W H Smith north of the Border, whereas a branch south of the Border would be subject to the English regulations. But how can that be done for a website? Where is a website located? I use the Scottish company Thus to provide my website. Is my website English or Scottish? I do not know where the particular server is located; it may be switched around from week to week. Do the regulations apply according to where Thus chooses to host my website or do they apply to me, which would be illogical because it is not that way round for a newsagent? Must I know the nationality of the people who provide my website and the regulations that go with it? If it happens to be an American website, are there any regulations at all? I am very confused.

Lord Hunt of Kings Heath: I should like to pick up the general principles contained in the amendment moved by the noble Lord. As he rightly says, it enables the Xappropriate Minister" to make regulations concerning point of sale advertising in shops and elsewhere. Clause 20 defines Xappropriate Minister" as the Secretary of State in relation to England, Wales and Northern Ireland and the Scottish Ministers for Scotland. The amendment would delete the phrase Xappropriate Minister" in Clause 4(2) and substitute

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XSecretary of State" who would thereby have the power to make these regulations for Scotland as for elsewhere.

In relation to Scotland, there are two groups of regulations in the Bill. Clause 4(2), along with Clause 6 on specialist tobacconists, Clause 8 on displays, and Clause 19 on transitional arrangements for sponsorship, empower Scottish Ministers to make regulations for Scotland. Other regulation-making powers under Clause 7 on new technologies, Clause 9 on discounted products, and Clause 11 on brand-sharing empower the Secretary of State to act for the whole of the UK.

I should make clear that in the context of our debate tobacco advertising is a devolved matter. In January, the Scottish Parliament gave its consent for the earlier government Bill to extend to Scotland. We have checked to confirm that the consent applies also to the current Bill. It is my understanding that the Scottish Executive continues to support UK-wide legislation because it believes that it will deliver a more comprehensive and effective ban.

It may be worth quoting from the debate that took place in the Scottish Parliament on 17th January when Mr Malcolm Chisholm, speaking on behalf of the Executive, said:

XThe Bill contains a number of regulations and order-making powers, some of which will be conferred on Scottish Ministers. In other areas . . . it is intended to legislate on a UK-wide basis. Those are areas on which it is difficult to legislate from both a technical and legal standpoint and on which legislation would be difficult to enforce in a Scotland-only context".

I believe that in that context a sensible approach has been taken. The argument is that compelling reasons exist in relation only to Clauses 7, 9 and 11 in terms of regulations because of the legal and technical complexity where a divergence—this is what Mr Chisholm was getting at—would create considerable enforcement difficulty and weaken the impact of the measures. That argument does not exist in the areas where regulation-making powers are being conferred on Scottish Ministers.

UK-wide companies have coped perfectly well for many years, the differences between Scotland and the rest of the UK reflecting the realities of a different legal system. For that purpose, this appears to be a perfectly sensible arrangement.

Lord Swinfen: Perhaps the noble Lord would deal with websites. My server is in Australia. How can the regulations laid down for England, Wales and separately for Scotland apply to a website that is not in the United Kingdom?

Lord Hunt of Kings Heath: My understanding is that the regulations applying to websites would depend on where the website was based.

Lord Lucas: That is exactly the point. Where is my website based? I can establish where I am based. Most of the legislation to do with the regulation of the Internet is concerned with where I am based. Whether my server is in Australia, Timbuktu or Scotland, the

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regulations apply to me because I am English. That is the only sensible way to do it. One of my websites is hosted by Thus, a big international company. Thus could host it in Australia one week and Timbuktu the next. I would not know. One cannot go by the location of the website which may not even have a single physical location. The regulation of websites must apply to the persons who operate them, but this clause is drafted on the basis of the location of the shops and the websites. The website does not have a location in a way that this Bill can grasp. There needs to be an amendment here.

Lord Avebury: Does the noble Lord agree that different regulations could apply to the originator of the material and the service provider, provided the latter was under the jurisdiction of one or other of the United Kingdom authorities?

Lord Lucas: Yes, but I need to establish with certainty whether the English or Scottish regulations, which may be different and, as the Minister points out, are based on a different legal system, apply to me. The only sensible way answer is to apply them to me as an English business. English regulations should apply to me wherever my website happens to be hosted, but that is not how the clause reads at the moment.

Lord Hunt of Kings Heath: My understanding is that Clause 4(2) relates to people who sell tobacco over a website. Therefore, the regulations apply to where those people are located.

Lord Naseby: Which people?

Lord Hunt of Kings Heath: The people who sell tobacco over a website.

Lord Swinfen: People can access websites from anywhere in the world. Therefore, people who are not based anywhere in the United Kingdom can advertise on a website outside the jurisdiction of the UK which can be easily accessed by anyone who is online within this country.

Lord Hunt of Kings Heath: That may be so, but the issue here is the competence of the Scottish Parliament to regulate in this area, which I submit is perfectly appropriate.

Lord Lucas: I have no difficulty with that. If one reads Clause 4(2) as applying to a shop, it is clear that it does not apply to the owner, who may be English or foreign, but its location. But the same subsection says that it does not apply to the location of the website but the person who owns it. We cannot have two different constructions in the same line of the subsection. Either the construction applies to the person who owns it or to the location of the point of sale. We must have some sense and clarity.

Lord Clement-Jones: We are straying into some very interesting areas which I am not sure necessarily

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require to be debated in the context of this amendment. Clearly, this is a constitutional issue. As for devolved powers, the Committee may be aware that a Sewel Motion needs to be passed by the Scottish Executive to permit a Bill to have effect in Scotland. This measure does not yet have that because it is a Private Member's Bill. But the previous Bill, which was in identical terms, did. Therefore, the Scottish Parliament is prepared to see these matters dealt with by a Bill passed by the Westminster Parliament, but clearly there are matters to be dealt with by the Scottish Executive when the Bill is passed. As the Minister explained, that division has been sensibly parcelled up according to terms thought appropriate by the Scottish Executive.

There are bound to be issues about websites. I am sure that the Committee will have a fair discussion about the defences available to those who run websites. It is probably more appropriate to have that debate under that particular set of amendments rather than now. For the moment, as far as I can see, Amendment No. 27 is not possible simply on constitutional grounds. We can have a debate about country of origin versus country of destination versus all the other aspects relating to websites in connection with later amendments.

1 p.m.

Lord Naseby: The noble Lord is a great one for putting off debate until subsequent amendments, mainly because he has no idea what the answer is. I suppose he is gaining a little time, but let us hope that by the time we reach that later amendment, he will be a little better informed than he is now.

The kernel of the amendment is that there seems to be no other example of any difference between Scotland and the rest of the United Kingdom. My amendment seeks to ensure that the two are identical. If the Minister is saying that following consultations with his colleague in the Scottish Parliament, he feels there are differences, we should, in the interests of clarity, know what they are. If there are no differences, the amendment has great validity.

Lord Hunt of Kings Heath: Is it not the point that this is a devolved matter? In January, the Scottish Parliament decided that it was appropriate for the government Bill to apply to Scotland, but with the ability for the Scottish Parliament to make regulations in certain areas covered by the Bill. We do not know the outcome of that. It may be that the Scottish Parliament decides that the regulations it wants are the same as those for the rest of the country, but that is a matter for it to decide.

If the Scottish Parliament did not accept this approach, it could have legislated in all the areas covered by the Bill. In that sense, the position would have been even worse.

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