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Lord Lucas: One of my great sadnesses following the 1997 election was that the noble Lord, Lord Peston, did not become a Minister immediately thereafter. I still believe that to be one of the Prime Minister's great misjudgments.
I hope that I can persuade the Minister to say something along the lines of what the noble Lord, Lord Peston, said rather than relying on what the noble Lord, Lord Clement-Jones, said—that is, that it is a high hurdle and they have to jump it. If there could
be some guidance in Hansard from the Minister of what is his view of common sense in these circumstances, rather than merely the comment, XYes, everyone is supposed to start checking everything from day one", I would be delighted. I suspect that that would answer many of the questions that I have posed, and will pose, about the Bill.
Lord Hunt of Kings Heath: I thought that the confidence I expressed about the discretion of trading standards officers implied that what is required is common sense and a proportionate approach. My experience of trading standards officers is that that is the approach they will adopt.
I suspect that the noble Lord, Lord Lucas, wants me to go a step further and define too exactly the steps that might be taken. I am reluctant to do so because the whole experience of countries which have within them the industry that we are debating is that the more explicit the detail in the legislation, the easier it will be for the industry to find loopholes. That is my dilemma. The general philosophy expressed by my noble friend is no different from my own. I argue for the common sense and discretion of trading standards officers to operate.
Lord Lucas: We are nearly there, if the Minister will say what the noble Lord, Lord Peston, said. So long as people pursued their ordinary business practices, taking the care to avoid libel damages and so on, and if they were not complicit in producing advertisements, that would probably be sufficient unless there was evidence to indicate a problem with the business in which they were involved that should have led them to take greater care. If we can achieve that kind of common sense, we shall know where we are and I shall feel much happier with the way the offences are set out under the Bill.
Lord Naseby: The noble Lord, Lord Peston, mentioned that if the distributors are persistent offenders, they should presumably remove the cellophane and check periodically whether a particular publication is or is not carrying inserts.
Lord Peston: I was not suggesting that distributors should check; I was following the noble Lord, Lord Lucas. I said that if it was discovered subsequently that they had carried something they should not have carried, and this went on, then they ought to check. I was not introducing a new duty of care of carrying out random sampling and checking. I am simply saying that if we have other evidence—this is completely compatible with what everyone else has said—then the distributors should be Xsensible" from that point on. That seems perfectly reasonable to me.
Lord Naseby: It may seem sensible to the noble Lord. If there were one single distributor across the United Kingdom and we were dealing with a limited
number of publications—although that might be argued about—the noble Lord's viewpoint could well be relevant. But we are dealing with hundreds of distributors and thousands of magazines. How on earth, even if a distributor's attention is drawn to it, can a check be made on subsequent issues—other than the one immediately following? If I were a distributor I would say, XRight, I will check a sample of the next issue. If it is clear, I shall assume it will be clear thereafter". These are woolly areas.I repeat what I said about trading standards officers. The Minister is right. The vast majority of them do a genuine, good, balanced job of work. Unfortunately, there are a few who will take a particular issue, and tobacco creates great emotions. That is very clear from across the Chamber. I am sorry, but we have to legislate for the rogue element. It is not adequate for the Minister to come to the Dispatch Box and say XWell, go and read Hansard. I have given a reassurance". That does not stack up in a court of law.
Lord Hunt of Kings Heath: Coming back to the point at issue—the role of trading standards officers—does the noble Lord accept that it is much better to legislate on the basis of our knowledge and experience of the way the great majority operate, and to ensure that, through the proper relationships between government, local government associations and local authorities, good practice is developed and expanded; and that local authorities are encouraged to rein in those officers who are not behaving appropriately? Surely that is the best approach.
Lord Naseby: I am afraid that I like safeguards as well. All my noble friend seeks is a clear safeguard.
Lord Clement-Jones: I hope that the noble Lord, Lord Lucas, will be withdrawing the amendment shortly. If you look at the amendment, in some ways it could be said legally to give fewer safeguards because Xas may be specified" seems to assume that there is a concrete set of circumstances in which you can always say what is the duty of care. The more I have listened to the debate—it has been very interesting in many ways—the more one has to infer all kinds of things, such as context, conduct and numbers. The noble Lord, Lord Naseby, argued against the amendment in terms of numbers, distributors, magazines and so on, in a particular case. He said that this did not stack up in a court of law. Actually, that is precisely where it does stack up.
Lord Lucas: The noble Lord, Lord Clement-Jones, is right. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 5 [Advertising: defences]:
The Deputy Chairman of Committees: Before I call Amendment No. 32, I have to advise the Committee that if that amendment were to be accepted, I would not be able to call Amendment No. 33.
Lord Naseby moved Amendment No. 33:
- Page 2, line 38, leave out Xhad no reason to suspect" and insert Xcould not reasonably have been expected to know"
The noble Lord said: My noble friend is most generous. Amendment No. 33 and the other amendments which follow, with the exception of Amendment No. 35, seek to replace the words,
- Xhad no reason to suspect",
- Xcould not reasonably have been expected to know".
As we all know by now, the Bill creates many offences which may be committed by one or more of numerous parties involved in devising, printing, publishing, distributing or selling a tobacco advertisement; of making a display of products as an advertisement; of giving products or coupons away; of sponsoring something which has the purpose or the effect of promoting a tobacco product; and of using a brand name or other device which is deemed to have the purpose or the effect of promoting a tobacco product. That is a fairly all-embracing catalogue.
The penalties—it is the penalties I am concerned about—on summary conviction or conviction on indictment are fierce and, as may be debated later, in my judgment, disproportionate to the nature of the offences concerned. It is therefore important that the defences provided in the Bill should be reasonable and not give rise to further pointless dispute and argument—unless, of course, one is a lawyer, which I am not, thankfully.
XReasonableness" is recognised in Clause 5(2) where a defence is available if the person charged with an offence could not reasonably have foreseen that promotion of a tobacco product would be the effect of an advertisement. The word Xreasonable" is not present where the Bill relates to the defendant having no reason to suspect.
There is a subtle difference—but an important one—between suspicion and reasonably being expected to know. In terms of court proceedings, it is surely also the case that having no reason to suspect is a great deal more difficult to prove than establishing whether there was a reasonable expectation that the person would know.
Amendment No. 35 is of a somewhat different nature; none the less, it is related. It embraces the concept of Xreasonable expectation of knowing", but is principally designed to provide a defence for a publisher in the case of a tobacco advertisement being inserted into that publisher's publication after its production but before its distribution.
I know that may Members of the Committee find inserts irritating as they fall out of magazines, particularly on Saturday and Sunday. However, we are not here to legislate for irritation. Inserts are common and will continue to grow in newspapers and magazines. They need not always be put there with the knowledge of the publisher.
Furthermore, inserts are not always necessarily inserted into a magazine at a single location; they can be put there at a number of different locations. It is
important, therefore, that there should be clarity that, where a publication includes a tobacco advertisement by way of an insert put there after the printing of the publication—after publication so far as the publisher is concerned and without his knowledge—an appropriate defence should be available to that publisher. Amendment No. 35 provides that defence. A similar defence is provided in the context of publication by electronic means in subsections (5) and (6) of Clause 5; and a similar defence is available to distributors of other publications under Clause 5(4). I beg to move.
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