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Lord Lucas: The paper boy comes into the equation because he remains an unanswered question from our previous debate on this. I agree entirely with the noble Lord, Lord Peston, that of course there is a great difference between those who are complicit in an offence and those who are not. If this approach appeals to the noble Lord, Lord Clement-Jones, I imagine that regulations under such a clause would be very different for those who are complicit as against those who are not.
However, the people who concern me are not those who are complicit—if a newspaper proprietor publishes a tobacco advert, then he has it coming; he should have put every possible system in place to ensure that that could not happen. I have no objection to the book being thrown at him. The people I seek to protect are those whom we have no business asking to Xtake care". It should not be something that a commercial printer has to do, as it should not be something that a newsagent has to do, beyond a very
ordinary level of care. I believe that there should have to be proof that the printer or the newsagent knew about the advertisement.The distribution of magazines is a large business. The publications are wrapped in large parcels with the names of newsagents stuck on them. The parcels are chucked into a lorry and then chucked out to the newsagents at the end of the journey. Such drivers are Xdistributors" under the terms of the Bill and thus have a duty of care which remains undefined. What should they be doing to ensure that they do not distribute a tobacco advertisement? If a tobacco advertisement is included in one of those sealed parcels, a lorry driver would be committing an absolute offence under this legislation.
The defence would be to prove that the drivers did not know about the advertisement. Fine, they can say, XI did not know; I did not look". But then the question arises, XWhy did you not look? You have a duty of care". This is an absolute offence. Under those circumstances, what duty of care is owed? At the moment, we would have to wait until the case went before a court to find out. I am suggesting that the Government should set this out in secondary legislation so that those who are subject to the Bill will know.
Lord Clement-Jones: The last exchange between the noble Lord, Lord Peston, and the noble Lord, Lord Lucas, has been the most useful of the whole debate. The amendment does not refer purely to definition; it also asks how high the hurdle should be set. As the noble Lord, Lord Peston, says, the hurdle has been set high: one cannot deny that. It is a matter of public policy. We had the debate last time regarding the onus of proof, which was wholly or partially reversed. We referred to the duties of printers in these circumstances and we are now talking about the paper boy. The issue is as to the height of the hurdle and whether the defences are adequate. I firmly believe that the defences set out in Clause 5 are adequate. We have already discussed them in some detail.
If you look at Clause 5(7)—the paper boy defence—there is a defence for the paper boy to prove that he did not know and had no reason to suspect that a publication contained a tobacco advertisement. On the last occasion the Minister made it clear how a court would view the raising of that defence. It raises a presumption that then has to be rebutted in turn, and that is how the legal process operates in court. This set of defences appears to me to be well drafted in these circumstances.
The noble Lord, Lord Lucas, in his usual clear way, has set out what he would like to see, but it is a matter of policy and I fear we must agree to disagree on how high the hurdle should be for those caught in the situations of Clauses 2 and 3.
Baroness Noakes: Does the noble Lord, Lord Clement-Jones, think it is reasonable for those who might be affected by this clause to know how high the hurdle is? He has said, quite rightly, that it should be a high hurdle. Those of us who follow horse-racing
know that when you arrive at a racetrack you do know how high the hurdles are. I think my noble friend Lord Lucas was trying to achieve greater certainty over the height of the hurdle.
Lord Clement-Jones: Many of my legal colleagues will no doubt be advising their clients on precisely how this Act will bite. Personally, in advising a client I would have absolutely no problem. You have a defence if you do not know and have no reason to suspect. In such circumstances it is pretty clear to a newspaper proprietor or someone who is directly or indirectly procuring the inclusion of an advertisement what the defences are. This Bill is not unusually draconian or unusually opaque in the way it operates. The interreaction between Clauses 2, 3 and 5 do not represent an unusual formulation. We have already explained that some 12 Acts of Parliament were formulated during the last 15 years in virtually the same way.
Baroness Noakes: I put it to the noble Lord that this Act should not act to the benefit of the legal profession. Those concerned should be able to refer to this Act and see clearly in what way their actions might fall foul of it.
Lord Clement-Jones: If the noble Baroness is saying that once an Act is passed it need never be referred to, it seems a very peculiar thing. Whether you are a lay person or a lawyer, you cannot just put the Act in a drawer and say, XThat's fine; we all know where we stand". Life is not like that and people do need to refer to an Act. I believe the language to be very clear, but if one has been charged with an offence, clearly it may be advisable to use a lawyer but I would not wish to legislate in advance for the use of lawyers.
Lord Lucas: There is a fundamental difference between us but I do not think it is as wide as the noble Lord, Lord Clement-Jones, makes out. I think we agree on the initial steps of a legal process. I am presented with a crime. Do I have a defence? I have to say that I did not know or had no reason to suspect. Those are negative propositions and unprovable in the absolute. But I stand up and say that I did not know and had no reason to suspect. That throws the burden of proof back on the prosecution and they will say, XYou ought to have known; you never looked, and had you taken proper care you would have found that this advertisement was there on page 15 of the magazine which you say you never opened".
That is the way these offences operate. If there is an offence to which the only defences are to prove a negative, you cannot just prove a defence by assertion but you have to prove that you have taken proper care. What that proper care might be is a matter of ordinary common sense in most cases. Clearly, for the proprietor of a newspaper Xtaking care" will mean taking all care and they will be unlikely to be able to take advantage of that sort of defence if in fact they have printed a tobacco advertisement, or at least one which is clear rather than by implication with some logo on the back of a pair of jeans somewhere.
For those who are complicit in that kind of process, I can see that it is fair to be subject to that kind of process. However, in the case of the magazine distribution industry, where the magazines come wrapped and labelled, they are delivered wrapped and labelled. They would say they have no duty of care. Why should they have to open the parcels and inspect the contents? I would be content if at some stage we get the Minister to say what he expects a newsagent to do and what he expects a jobbing printer to do, when he does nothing but print. What is the duty of care which should be applied to these people, given that they are not a complicit part of the process by which a tobacco advertisement is created and distributed?
Lord Peston: I am getting more intrigued by the minute. I thought my noble friend the Minister gave a good answer earlier, which is that people would use their common sense. If you are in the magazine distributing business, what happens in practice? There are all these things wrapped in transparent plastic, but you do not look at them because you are only in the business of picking them up here and putting them down there. Subsequently someone finds out that these magazines have tobacco advertisements in them; they find them being sold somewhere else and go back to the distributor. He says that he did not know. I would have thought every reasonable person would say, XFine: from now on I hope you will take better care although you are clearly not involved in this". Prosecutions certainly will not begin on such a basis, but if it happened persistently it seems perfectly reasonable that a duty of care would emerge from that point if such and such a magazine continued to contain these advertisements. It might be said, XFrom now on I think you ought to check whether these magazines are carrying advertisements for tobacco". Is that not perfectly reasonable? It does not require any highfalutin changes to legislation or fundamental matters relating to the legal profession.
Let me say to the noble Baroness, Lady Noakes, that I stand second to none in my antipathy to the legal profession. My main aim in life is to make economists at least as well paid and as much sought after as lawyers, and if there is reincarnation I intend to be re-born as a lawyer and not an economist. The fact is that when legislation is passed people ask how it is going to affect them. There is nothing unusual in that and there is nothing new in this Bill. Everything the noble Lord, Lord Lucas, says is interesting but if we were to tackle legislation on this basis all the time we would end up carrying no legislation at all as far as I can see.
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