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Lord Filkin: At present, the clause provides that the person does not commit an offence if, having become aware that he was distributing tobacco advertisements by electronic means, he was unable to prevent its further distribution. The amendment of the noble Lord, Lord Lucas, would add the word Xreasonably" after Xable". In theory a person providing the means of transmission could prevent its further distribution, as the noble Lord said, by physically removing access to the medium containing the tobacco advertisement. However, it is not intended that BT or suchlike would be required to take such drastic action by closing down the whole or part of a network.
Without wishing to damage the reputation of the noble Lord, Lord Lucas, by having a further success, the Government believe that the amendment is a reasonable one. I should like to think again about the best way in which to draft Clause 5(6) to achieve the desired outcome, and I ask the noble Lord to withdraw his amendment on the understanding that we shall return to this point at Report stage.
I trust also that the noble Baroness, Lady Noakes, and the noble Earl, Lord Howe, will be similarly comforted by those remarks.
Lord Clement-Jones: I, too, very much sympathise with either or both of the amendments, depending on the grammatical construction. They both derive from the view that the Bill is not entirely consistent with the e-commerce directive. The noble Earl, Lord Northesk, and I had a mini- debate last time around about Article 13 and the question of expeditiously removing or disabling access. This amendment is trying to provide the mirror of that. The addition of Xreasonably" is a better mirror, but it depends on how the Government plan to implement the e-commerce directive. That is a proper reason for the Government to reflect on whether the amendment is the best way of doing that. I certainly support the spirit of the amendment.
Lord Lucas: I am grateful to the Minister for his response. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 46 to 48 not moved.]
On Question, Whether Clause 5 as amended, shall stand part of the Bill?
Lord Naseby: The template for the way in which the Bill is constructed is relatively simple. It begins by stating what a tobacco advertisement is, creates offences in Clauses 2 and 3, makes limited exceptions in Clause 4 and lays out the available defences in Clause 5. Given the sweeping nature of the prohibitions and the high level of penalties for offences—interestingly, we have not yet debated those high levels—Clause 5 is of particular importance.
Like Clauses 1 to 4, Clause 5 seeks to deal with advertisements that appear in print and by electronic means, such as via the Internet. In doing so, and related as the clause is to the preceding four clauses, I submit that the clause is confusing and requires significant amendment. One amendment has already been agreed to, and others are possibly in the offing.
When considered in the light of the provisions in the first four clauses and in Clause 7, which will allow the Secretary of State to amend any provisions in the Act by order, there are strong grounds for proposing that the Bill should deal with advertisements that are distributed by electronic means in an entirely separate clause or in a group of clauses. There is also good reason to go further and to propose that such aspects as concern electronic publication and distribution should be covered more generally in e-commerce legislation. I believe that the promoter of the Bill said that we might go down that route. In any case, I suspect that they should be promoted not by the Department of Health but by the DTI.
As matters currently stand, the Bill relates to a person who publishes a tobacco advertisement; causes the advertisement to be published; prints, devises or distributes the advertisement; transmits it or participates in transmitting it or provides the means of transmission; carries on business in the UK and publishes or causes a tobacco advertisement to be published by means of a website that is accessed in the UK; devises or causes the devising of that advertisement; is a proprietor or editor of a printed publication or one published by electronic means; or is a person who directly or indirectly procured the advertisement. Defences are available to that person if he can prove that he did not know that the purpose of the advertisement was to promote a tobacco product, and had no reason to suspect that promotion of a tobacco product was the purpose of the advertisement; or, if promotion of a tobacco product was not the purpose but the effect of the advertisement, that he could not reasonably have foreseen that that would be the effect of the advertisement. That involves only the start of the clause—subsections (1) and (2).
Subsection (3) provides a defence for a person who prints, devises, distributes or causes any of those things in relation to a tobacco advertisement that is published in the UK; who is the proprietor or editor of the publication; or who procured the advertisement for publication. The defence applies if he can prove that he did not know and had no reason to suspect that the advertisement would be published in the UK.
Subsection (4) provides another defence to a person who distributes or causes a tobacco advertisement to be distributed by means other than in electronic form—that of proving that he did not know and had no reason to suspect that what he distributed or caused to be distributed was, or contained, a tobacco advertisement.
Subsection (7) provides a defence for a person who sells a publication, or offers it for sale, or otherwise makes it available to the public, if they can prove that they did not know and had no reason to suspect that the publication contained a tobacco advertisement.
So far, that deals only with the defences that are available in respect of tobacco advertisements, which appear in a form other than that achieved by electronic means. However, they involve the difficulty of interpreting and proving,
- Xhaving no reason to suspect";
- Xcould not reasonably have foreseen that that would be the effect".
As the Minister from the Department of Health has said, the principal enforcement agency in respect of this Bill in England and Wales will be the weights and measures authorities. Therefore, the trading standards officers are expected to understand the complexities of Clause 5. Daily they will have to cope with it. If any noble Lord has not visited a trading standards office recently, I invite them to do so to see the welter of work with which they contend, not least at Christmas time when counterfeit products of one kind or another invade these shores.
The trading standards officers are expected to understand the complexities of Clause 5 and the other provisions of this Bill and, not least, to ensure that the numerous regulations to which the Bill will give birth are complied with. That is also the case with regard to the provisions of Clause 5 that relate specifically to advertisements that are published or distributed by electronic means. Frankly, those provisions show all the signs of being added to the Bill after it was originally drafted. Indeed, that was the case, as they were introduced by amendments in the other place tabled by the Government in the previous Parliament.
For the first time in this Bill, and without the Bill providing any definition of the term, subsection (5) applies specifically to Internet service providers. It wrongly attributes to them the role of publishers and the commitment of an offence of publishing a tobacco advertisement.
Lord Peston: I may have been asleep, but I thought that we had taken Internet service providers out of the Bill. I thought that that had been agreed. Was I hallucinating, or did we do that?
Lord Naseby: I am grateful. I took a two-minute refreshment break. Perhaps I missed that point. If so, I apologise to the Committee. I am a pensioner, as are other noble Lords, and occasionally it is necessary to take a break.
As there may have been some movement on this point, I shall have to read Hansard to see exactly what movement there has been. My understanding is that subsection (6) compounds the perception of misunderstanding of the Internet by dealing with distribution by means of transmission in electronic form. It provides defences of proving that the person
was unaware of distributing a tobacco advertisement and that, having become aware, was not able to prevent its further distribution, or that the person concerned did not carry on business—whatever that may mean—in the United Kingdom at the relevant time.The provisions for publication or distribution by electronic means are confused. I now understand that they are to be taken away. Perhaps when the promoter of the Bill responds, he can clarify the point. As I understand it, at the moment they do not recognise the availability of current technology to filter the Internet and to access websites. They also do not take account of the fact that providers of electronic and Internet services have contracts with their customers. Therefore, they find themselves in a catch-22 position, of either breaching the law or breaching existing terms of contracts.
We have discussed the e-commerce directive and whether or not these provisions conform, so I shall not develop that dimension of the argument. I hope that cognisance will be taken of the point made by my noble friend Lord Lucas that the place of establishment is absolutely crucial. At the moment it is very confusing.
I am not sure whether my next point has been discussed. As far as I can see the provisions make no specific reference to information society services nor to the definition of that term within the meaning of Article 1(2) of Directive 98/34. I am sure that the promoter of the Bill will be able to reassure the Committee about that. Perhaps he will also be able to give me time and date in relation to that. In my judgment subsections (5) and (6) of Clause 5 are wholly unsatisfactory. They and other subsections in the clause require substantial review and amendment. However, if the noble Lord promoting the Bill will do that, we are making some progress.
2.30 p.m.
Lord Hunt of Kings Heath: Perhaps I may make a couple of comments in relation to the Clause 5 stand part debate which the noble Lord, Lord Naseby, has developed.
In our earlier debates we discussed the substance of the wording of this particular part of the Bill. It is highly significant that the wording used is not breaking new ground in legislative terminology—for example, with regard to the defences, Xdid not know" and Xhad no reason to suspect". That is language which has been used in a consistent way in a number of Bills over the past at least 10 to 15 years. To pick up one of the key points raised by the noble Lord, I am not aware that this has caused a particular problem in relation to enforcement.
That brings me to the point raised by the noble Lord about how trading standards officers will learn to implement the legislation, and to what extent it will be clear to them how they are to do that. I am not aware of any particular difficulties for trading standards officers in implementing new legislation. Local authorities have directly employed lawyers who are there to advise officers in the course of their duties.
In addition, the role of the Local Government Association and of other local authority associations is clearly to advise local authorities. This particular legislation is not any different from previous legislation. I would expect those officers to be given advice and to have the opportunity to implement the provisions in full.
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