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Lord Naseby: I entirely accept that latter point. But we are now in December, and given the extensive consultations promised for the future, I should have
thought that there might have been consultations during the past 10 months. But obviously there have not been any.
Lord Hunt of Kings Heath: With the greatest respect, there were discussions when the Bill was first considered in another place, as a government Bill during the previous Session of Parliament. But there was insufficient time for the Bill to complete its passage through this House. We are now discussing a Private Member's Bill, and it is appropriate that discussions with the Scottish Parliament and the Government should take place within the context of whether the Bill is to become law.
Lord Clement-Jones: The Minister has put the matter fairly. Clearly the Scottish Parliament cannot take a view on this Private Member's Bill until is passed or becomes an official government Bill. But the approach to the Government's official Bill has left the Bill with these regulations to be made by the Scottish Parliament. There may be points of discussion about websites, but if the noble Lord had been here for the second half of the last Committee stage, he would have heard a very interesting debate about some aspects of websites and the European e-commerce directive, with which I am pretty conversant. I could answer most of the questions, but it would be better to leave them to later amendments.
Lord Naseby: This is not an entirely satisfactory situation. I am still of the opinion that there could have been consultations and developments. These things are not static. I therefore reserve the right to return to this issue. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 28 and 29 not moved.]
Earl Howe moved Amendment No. 30:
- Page 2, line 31, leave out subsection (4).
On Question, amendment agreed to.
Clause 4, as amended, agreed to.
Lord Lucas moved Amendment No. 31:
- After Clause 4, insert the following new clause—
The noble Lord said: This is more of a probing than a serious amendment. It suggests that it might be a good idea to provide some certainty to those who will be subject to the absolute offences in Clauses 2 and 3, so that they know what they are supposed to do to make use of the defences made available to them. Clearly a duty of care is placed on somebody who is accused of having a magazine in their shop with a tobacco advertisement in it. But it is difficult to know what that duty of care is. The amendment suggests that the Government should set out in regulations the duty
Lord Hunt of Kings Heath: The noble Lord pursues a theme that he developed on our first day in Committee. I understand that it is a probing amendment. The implication of the wording is that someone could be found not guilty even if he knew about the advertisement, as long as he could show that he had taken care.
Throughout the debate two threads have been apparent. One is the desire to have as tight a definition as possible, and the other is the concern that the tighter the provisions, the more loopholes are potentially created, and the less ability to deal with them is possible, given the tightness of the legislation. For these reasons, the Government's view is that the Bill already provides various defences in Clause 5. In a criminal prosecution the prosecution has to establish the guilt of the individual beyond reasonable doubt, which is a high standard of proof. The obligation means proving not only all the ingredients of the offence but also negativing any defence that is put to an issue.
In addition, there is also a risk of taking discretion away from trading standards officers. In the context of enforcing the Bill, it is worth bearing in mind that trading standards officers are well used to using their discretion, that their policy is often to draw attention to offences, and that their approach is often prevention and education with prosecution as a last resort. That seems a very sensible approach.
Lord Naseby: I am confident that the noble Lord has regularly visited trading standards offices. Certainly when I was the Member for Northampton South, I maintained a close working relationship with the local trading standards officers. However, the noble Lord will know as well as I do that while the majority of trading standards officers will take the line that he has suggested in his response, which is the correct approach, occasionally a particular trading standards officer may feel as strongly about tobacco as the noble Lord who intervened earlier. As a non-smoker who hated anyone who did smoke, he might feel that it was his mission in life to look carefully at the Act and decide that this was a good one to have a fly at.
That kind of action has taken place in other areas. I recall, in the days of advertising regulations for outdoor adverts, the trading standards officer for Norfolk—I think that it was that officer, although I remain to be advised—built up quite a reputation for carrying on his own little vendetta against outdoor advertising. My noble friend's amendment seeks to ensure that that could not happen.
Although it is all very well for the Minister to say that other safeguards are in place, I believe that my noble friend's amendment is somewhat more important than a probing amendment; it has more
Lord Hunt of Kings Heath: I have some experience of the performance of trading standards officers, which I suspect is the case for most Members of the Committee. However, I have to say that it is my experience that those officers are a highly competent group of people. Of course it is always possible that a very few may act in the way that the noble Lord has suggested.
We have to strike a balance here and ask whether the potential unwise practice of certain individuals should cause us to change our approach in the Bill. Because I am satisfied that the great majority of trading standards officers are highly competent and accustomed to taking an approach aimed more at education rather than prosecution, which is viewed as a last resort, I believe that the approach taken in the legislation is right.
Lord Peston: Before the noble Lord, Lord Clement-Jones, rises to comment, may I ask the noble Lord, Lord Lucas, to clarify a point? Unless I misheard him, when speaking to his amendment the noble Lord cited an example that appeared to apply to Clause 3(c) rather than subsections (a) and (b), with which I believe that he is concerned. I thought that he referred to the paper boy, who would be covered by Clause 3(c) and to the retailer. Have I misunderstood the nature of the amendment or was Clause 3(c) simply left out?
Lord Lucas: I am quite happy to suppose that Clause (3)(c) was left out. All I sought to do with the amendment was to raise the general point. These provisions mean that those who are essentially not complicit in the crime of producing an advertisement or of taking executive decisions are walking through a legal minefield. Whatever the assurances given by the Minister—that a real defence has been provided; I agree with that—in order to take advantage of the defence, a defendant would have to prove that he maintained a proper standard of care to ensure that he had not committed the offence.
I seek to ensure some certainty as to exactly what is that proper standard of care; otherwise we shall be asking a person in the business of printing—I stress, only printing—information in a print-run to inspect the content of the thousands of pages of print that he produces each day. Furthermore, we shall be asking the newsagent to inspect every page of every magazine that is displayed across his shelves. I do not believe that that is reasonable in the context of a tobacco advertisement, which is not the most heinous of crimes. I should like to make available to such essentially innocent parties a proper understanding of what they would have to do to fulfil their standard of care and thus avoid committing an offence under the terms of the Bill. How can they avail themselves of the defences offered under the terms of the Bill?
As I have said, this is a probing amendment and I apologise if the drafting is imperfect. Indeed, the noble Lord, Lord Hunt, pointed out another imperfection
Lord Peston: Does the noble Lord, Lord Lucas, accept that there is a difference here? The owner and the editor of a publication are different from the advertising company, which in turn is different from the retailer, who in turn is different from his employees—the case of the paper boys? Each of those four categories is different from the other. In other words, the noble Lord's probing amendment seems not to probe sufficiently in order to secure an appropriate set of answers.
Perhaps I may anticipate for a moment the reply to be given by the noble Lord, Lord Clement-Jones. It seems to me that, under the terms of the Bill, there is no shadow of doubt but that the proprietor and editor of a publication have a very definite responsibility for what is put into their publications; those involved in the advertising business have a definite responsibility for what they are party to; and that both of those responsibilities are different from those who retail the publications—although I do not think that all responsibility disappears from the final two groups. I believe that retailers should know what is in the products they sell and that they should not be allowed to get away with it by saying that it was too difficult for them to find out.
Lastly, I still do not see how the paper boy is ever involved. I have been waiting for some time to hear an answer to the paper boy problem, having myself, like many noble Lords, been a paper boy. I did not know that paper boys had any responsibilities other than to deliver the newspapers, as instructed.
XOFFENCES UNDER SECTION 2 OR 3: ASSUMED KNOWLEDGE
A person charged with an offence under section 2 or 3(a) or (b) shall be assumed to have knowledge of the purpose or effect of an advertisement, or of its intended place of publication, if he had not taken such care as may be specified."
1.15 p.m.
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