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The Earl of Liverpool: Amendment No. 35, to which I have added my name, has been grouped with this one. The noble Lord, Lord Naseby, has spoken eloquently in support of it and I do not have a great deal more to add. It is important that there should be clarity. Amendment No. 35 seeks to achieve that.

Many of us hate inserts, but they do exist and we must face the fact that they are an increasing aspect of newspapers and magazines. We had an interesting discussion on Amendment No. 31, tabled by the noble Lord, Lord Lucas, which was generally connected with Amendment No. 35. I shall study in Hansard the points that were made. I commend Amendment No. 35 to the Committee.

1.45 p.m.

Lord Hunt of Kings Heath: One point on which we can agree is that none of us likes inserts in our newspapers. Indeed, this House is always concerned about litter. Apart from anything else, inserts contribute to a great deal of litter in our streets as well. However, I assure the Committee that the Government have no intention of legislating in this area.

Turning first to Amendment No. 35, I understand the issue that it raises and the fear that, for example, a local free newspaper may have flyers added to it at some stage in the distribution chain before it is put through readers' front doors. In that example, if the insert is added after the act of publishing—perhaps in the wholesaler's or in the newsagent's—the person who published the newspaper will not have published the offending insert and will not be liable. If, however, the offending insert is added before the act of publishing—perhaps at the printer's—then the newspaper publisher will have some responsibility for the separate publication. But, of course, if he was not aware that the purpose or effect of the separate publication was to promote a tobacco product, he will be able to raise defences under subsections (1) or (2) of Clause 5; namely,

Xthat he did not know, and had no reason to suspect, that the purpose of the advertisement was to promote a tobacco product".

The rest of the amendments in the group follow the logic and reasoning of the noble Lord, Lord Lucas. I do not think that it is necessary for me to go through those in detail again.

However, with the leave of the Committee, perhaps I may return to the matter of trading standards officers. It is extremely relevant to debates on this

7 Dec 2001 : Column 1105

clause. It is worth bearing in mind that in addition to the good sense of most of those officers, there is a local authority associations/Cabinet Office enforcement concordat, which was published in March 1998 through the auspices of the Better Regulation Unit. That is very much concerned with publishing performance standards between local authorities. It also provides the means to complain and to follow up on complaints received.

That simply reinforces the point that I made earlier; namely, that in addition to relying on trading standards officers there is government and local authority association action to ensure that the performance of those officers is as effective and proportionate as possible. In the end, however much we agree or disagree on the contents of the Bill and the regulations, it will still depend enormously on the way in which local trading standards officers perform. We can have some assurance that there is an enormous effort going on between government and the local authority associations to make sure that local authority trading standards officers do a competent professional job.

Lord Clement-Jones: The Minister has answered the issues arising from the amendments. For the bulk of the amendments, apart from Amendment No. 35, there is a return to the debate on hurdles that we have had previously. The issue is: as a matter of public policy, does one use a Xconstructive suspicion" defence or a Xconstructive knowledge" defence? The choice is there. My choice is to take the line of the Bill; namely, constructive suspicion. That seems to be a firmer basis. It is broader than Xconstructive knowledge", but that is what the Bill is designed to do.

The Minister pointed out very clearly in relation to Amendment No. 35 that there are adequate safeguards in Clause 5. I repeat that Clause 5 is central to the Bill. We debated it at length in Committee last time and we have referred to it again and again during today's debates. That demonstrates that this is a central clause—the defences are key parts of the Bill. In my view they are adequate to deal with the circumstances set out in Amendment No. 35.

Lord Naseby: The noble Lord, Lord Clement-Jones, has had an interesting approach to a number of amendments throughout the Committee stage. He simply takes the view that what he has put down on the face of the Bill is right and so far as he is concerned that is all he is going to deal with. That is not quite in the spirit of this House. When amendments are tabled quite genuinely, as this one was, even as a non-lawyer I should expect to hear a reasoned argument why the phrase,

Xhad no reason to suspect"

is so much stronger than the one I have suggested. My amendment suggests that, because so much is caught by the Bill and because the penalties are relatively great, the hurdle should not be quite so high. The noble Lord who is promoting the Bill simply says, XI do not

7 Dec 2001 : Column 1106

agree with that at all. I'll just put down what is in my Bill and I am sticking to that". That is not in the spirit of debate. I give way to the noble Lord.

Lord Clement-Jones: The position is straightforward. I do not simply assert matters. The fact is that the constructive suspicion defence is a higher hurdle than the constructive knowledge defence. On public policy grounds, that is how the Bill has been drafted. It is designed to make it more difficult in those circumstances, so that we can ensure that people genuinely did not act in the wrong way. Constructive suspicion is a broader test and a narrower defence. If somebody has a suspicion in their mind that such and such is the case, of course they have a greater duty of care than if the test is simply based on constructive knowledge. I am simply asserting that that test is my public policy preference. I am not saying that the noble Lord must accept the Bill or else. He is perfectly at liberty to put the issue to the test in the Committee if he wishes to do so.

Lord Naseby: I am grateful to the noble Lord for explaining his views. It would help the Committee if he would do so on future amendments as well. That contribution took him the best part of 45 seconds, but it was certainly a great deal more detailed than just casting an amendment aside because he alleges that it does not conform to public policy.

Having listened to the noble Lord and the Minister, I am not at all happy with the result. I reserve the right to come back to the amendment, but at this point I beg leave to withdraw the amendment.

The Deputy Chairman of Committees (Lord Lyell): Is it your Lordships' pleasure that Amendment No. 33 be withdrawn?

Noble Lords: No.

1.52 p.m.

On Question, Whether the said amendment (No. 33) shall be agreed to?

Their Lordships divided: Contents, 16; Not-Contents, 55.

Division No. 1

CONTENTS
Clark of Kempson, L.
Henley, L.
Hooper, B.
Howe, E.
Kingsland, L.
Liverpool, E.
Lucas, L.
Lyell, L.
Monson, L.
Moynihan, L.
Naseby, L. [Teller]
Noakes, B.
Northesk, E.
Oxfuird, V. [Teller]
Rawlings, B.
Swinfen, L.

NOT-CONTENTS
Acton, L.
Allenby of Megiddo, V.
Ampthill, L.
Andrews, B.
Avebury, L.
Bradshaw, L.
Campbell-Savours, L.
Carter, L.
Clement-Jones, L. [Teller]
Dholakia, L.
Elder, L.
Evans of Parkside, L.
Faulkner of Worcester, L. [Teller]
Filkin, L.
Finlay of Llandaff, B.
Gale, B.
Gibson of Market Rasen, B.
Hamwee, B.
Harris of Richmond, B.
Haskel, L.
Hayhoe, L.
Hayman, B.
Hunt of Kings Heath, L.
Janner of Braunstone, L.
Lipsey, L.
Listowel, E.
McIntosh of Haringey, L
MacKenzie of Culkein, L.
Maclennan of Rogart, L.
McNally, L.
Massey of Darwen, B.
Mitchell, L.
Northover, B.
Oakeshott of Seagrove Bay, L.
Perry of Southwark, B.
Peston, L.
Phillips of Sudbury, L.
Rea, L.
Redesdale, L.
Richard, L.
Rodgers of Quarry Bank, L.
Roper, L.
Scott of Needham Market, B.
Simon, V.
Slim, V.
Smith of Clifton, L.
Stone of Blackheath, L.
Thomas of Walliswood, B.
Tope, L.
Turner of Camden, B.
Wallace of Saltaire, L.
Walmsley, B.
Wigoder, L.
Wilkins, B.
Williams of Crosby, B.
Woolmer of Leeds, L.

Resolved in the negative, and amendment disagreed to accordingly.

7 Dec 2001 : Column 1107

2.3 p.m.

[Amendments Nos. 34 to 38 not moved.]

Lord Lucas moved Amendment No. 39:

Page 3, line 9, leave out subsection (5).

The noble Lord said: The point here is really quite simple; namely, that Internet service providers are not publishers. They are admitted by European directive to be mere conduits. Under no circumstances are they publishers and they should not be said to be publishers in the Bill. I beg to move.

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