House of Lords
Friday, 18th January 2002.
The House met at eleven of the clock: The LORD CHANCELLOR on the Woolsack.
Prayers—Read by the Lord Bishop of Chelmsford.
Tobacco Advertising and Promotion Bill [HL]
Lord Clement-Jones: My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.
Moved, That the House do now again resolve itself into Committee.—(Lord Clement-Jones.)
On Question, Motion agreed to.
House in Committee accordingly.
[The PRINCIPAL DEPUTY CHAIRMAN OF COMMITTEES (Lord Brabazon of Tara) in the Chair.]
Clause 7 [Developments in technology]:
On Question, Whether Clause 7 shall stand part of the Bill?
Lord Lucas: My purpose in opposing this Question is mostly to try to find out what the Government intend to do with the clause. I am interested by both its breadth and its narrowness.
I turn first to its breadth. I cannot understand why the Government want to amend the Bill as, if we agree to the amendments that have been indicated, it will deal with any development that I can foresee in electronic publishing. That involves a very wide power, which would allow the safeguards that are being put into the Bill to protect Internet service providers and others—intermediaries in electronic publishing—to be removed merely because it had become convenient to the Secretary of State and related to some change that he perceived in the world of electronic publishing. I should be grateful if the Minister would set out for me his view of the way in which the power will be used and illustrate the circumstances in which he believes it will be necessary.
I am also interested in the clause's narrowness. I do not quite know what "electronic" publishing means in this context. Electronics is currently used in almost every aspect of publishing by any means. I presume that in this context the provisions are limited to the situation in which electronics is in some way a medium of transmission. But what will happen if in future years optics or magnetics become the method by which information is transmitted? Both of those areas are being researched and might well become the way
things are done in future. I do not understand what the scope and limitations are on the phrase, "by electronic means". I should be grateful if the Minister would elucidate that for me; or perhaps the proposer of the Bill is the expert on that matter. I shall wait to see.
Lord Skelmersdale: My Lords, as Members of the Committee can see from the Marshalled List, I also put my name to the proposal to leave out Clause 7. I did so as a procedural device and not because I believe that the clause should be left out.
I added my name to the Marshalled List so that I could question the Minister further on a point that he answered—alas, only partially—on Second Reading. At that time, I asked whether the Bill should be notified to the Commission under the Technical Standards Directive. That has proved to be something of a moving target. It was first raised by my noble friend Lord Northesk at Second Reading of the Government's Bill on this subject. On that occasion, the Minister replied that he felt that there was no need.
The Minister's answer was rather different when I asked a similar question at this Bill's Second Reading. He said:
- "In relation to the Technical Standards Directive, I am advised that, since the Bill covers advertising rather than technical specifications relating to goods, it is not notifiable in its entirety. However, where the Bill would affect specifications applicable to goods, such as the brand-sharing provisions, the Bill provides for regulations to be made which could be notified under the Technical Standards Directive following due consultation".—[Official Report, 2/11/01; col. 1704.]
The original legislation is now much wider than it was when it first passed into law. It now covers information technology services in addition to mere products under the amending directive EC 98/34. Very conveniently, the consolidated version is available in the House of Lords Library. It is apparent from Article 1 of that combined directive that it most definitely applies to any piece of domestic legislation that covers services,
- "normally provided for remuneration, at a distance, by electronic means and at the individual request of a recipient of services";
Members of the Committee may ask why the Government agreed to that. The Minister—perhaps inadvertently; I should hate to do him an injustice—said at Second Reading:
- "I share the concerns of my noble friend Lord Mitchell to ensure consistency of approach;"—
- "that is absolutely right. I understand the concerns of the Internet service providers. I have met them. The Government would look sympathetically at amendments which might be seen to deal with specific problems they encounter".—[Official Report, 2/11/01; col. 1704.]
However, I press the Minister rather further. Will he now refer not only regulations on brand-sharing but the clauses covering Internet trading and their subsequent statutory instruments to the Commission? At the speed that debates on the Bill are currently progressing, that will hardly delay the passage of the Bill through Parliament. It would be asking too much to request a considered response today, but I ask the Minister to write to me and to other noble Lords who are interested in the computer aspects of the Bill with his considered view on this point; in other words, whether EC 98/48 applies to the Bill and, if not, why not?
11.15 a.m.
Lord Geddes: It was, and still is, to my regret that I was abroad in Australia on the day that the Bill received its Second Reading on 2nd November and I have not been able to attend the two days of the Committee stage since then. Therefore, I apologise to the Committee for intervening at all. This is the first occasion on which I have been able to declare an interest as a member of the Lords and Commons Pipe and Cigar Smokers' Club, whose tie I am proudly wearing this morning.
I have only one point to raise and that is by way of a question to the Minister. As I understand it, the e-commerce directive was due to have been signed by the United Kingdom yesterday. Can I ask the noble Lord whether it was so signed and, if it was not, when will it be signed? Until it is signed, how on earth can this clause stand part of the Bill when we do not know exactly what the e-commerce directive will or will not say?
The Earl of Erroll: I want to ask a brief question. I read this clause and wondered why such wide powers are needed. The clause states that the Secretary of State will have the power to,
- "amend any provision of this Act . . . in consequence of any developments in technology".
Lord Filkin: I am grateful to the noble Lord, Lord Lucas, for this probing provision because it enables the Government to place a number of matters clearly on the record. It also enables the start of this Committee day to mark some of the fundamental reasons why I believe the majority of this House considers the Bill to be necessary. I shall try to address those questions by illustrating that the clause is necessary and reasonable and that there are safeguards. I shall also pick up the important and specific points that have been raised by Members of the Committee.
The Bill focuses on banning tobacco advertising and promotion. It covers a variety of means of publishing and distributing which we have already discussed. We believe strongly that the clause is necessary as it would enable the amendment of any provision of the Act in consequence of any development in technology relating to publishing or distributing by electronic means.
Throughout our debate on the Bill, the question of the Internet and electronic communication has led us to acknowledge that this is a new, exciting and very rapidly changing area. The Bill does not treat advertising by electronic means either less or more favourably than other forms of advertising. The reason for taking this power is that the pace of technological change makes it very difficult to predict what new means of publishing or distributing may emerge. There are clearly no immediate plans to make an order under the clause.
The noble Lord, Lord Lucas, asked the good, if impossible, question as to what developments might take place in the future that would require the clause to be needed. I believe that if I could answer that, I should probably not be standing here. One would be a rather valuable commodity elsewhere if one could spot what was going to come. One can only do so, to an extent, retrospectively. I recollect four or so years ago trying to communicate by e-mail with the DTR, as it then was. One had to telephone one person who then printed out what one had sent and passed it on. Now, the whole of government communicates electronically. Perhaps two or so years ago we would not have conceived of text-messaging or e-mails to mobile phones. Therefore, without going on at length, I believe it is clear that technology is moving so fast that it is almost certain that new things will occur in the future that we cannot foresee now. Thus, if we did not have such a clause, the Act would rapidly become obsolete.
The noble Lord, Lord Lucas, raised the question of whether the clause includes other technologies. The clause is specific on "electronic", but even if he is right,
as regards "optical and other means", it is unlikely that there is not some electronic part of such a process that makes it relevant.I turn to whether or not the clause is unreasonable; in other words, whether it is excessive and goes too far, given the concerns expressed about the power of the Secretary of State to amend primary legislation by order. I draw the attention of the Committee to the report of the former Select Committee on Delegated Powers and Deregulation in February last year in connection with the Government's earlier Bill on the topic. The committee considered that the limited scope of the power and the provision of affirmative procedure made it acceptable. That should give us some comfort. Furthermore, the power is not broad; it is limited. It can be used only in relation to developments in technology. In other words, there has to be a development in technology, which is germane to the Act before it can be brought into use.
Noble Lords will also be aware that if the Secretary of State wished to use such a power, that would require affirmative resolution by this House. The House has become, I believe rightly, more vigorous in the way it scrutinises affirmative instruments at such times.
Noble Lords will also be aware that while it is right to scrutinise such powerful clauses strongly, they are by no means unique. Both this Government and the previous government have used them on a number of occasions. I shall not bore the House by scheduling them unless Members particularly want me to do so.
I turn to the other specific questions, which I have not addressed. The noble Lord, Lord Skelmersdale, raised an extremely important question about the application of the technical standards directive. We do not accept that that applies to the advertising directive. However, we accept that where the specification of products is affected by the technical standards directive, it will apply. We shall follow that with regard to brand-sharing regulations. The question raised by the noble Lord was clearly detailed, thoughtful and technical, and therefore merits, as he requested, a considered and detailed written reply to address the point, which he will receive before Report stage.
I turn to the question raised by the noble Lord, Lord Geddes, on the e-commerce directive, which was adopted on 8th June 2000 and was due to be implemented yesterday. The DTI plans to consult on that in the early part of the year. That consultation process will be thorough and vigorous before the Government table regulations under the directive.
I trust that I have answered the narrow specifics about which noble Lords have expressed concern. With the leave of the House, I shall go back to some of the fundamental reasons why a clause of this type is necessary. It is not simply because of the movement in technology. There are also the severe mischiefs which we in the Committee—and certainly this is the Government's perspective—want to limit.
We have discussed previously the fact that 120,000 people a year will die as a result of smoking cigarettes. There is a slightly different way of putting that, which I do not think has arisen. If we were to put 1,000 20
year-olds together in a room, all of whom smoke and continue to smoke, from that 1,000 one would be murdered, six would die as a result of car accidents, 250 would die in middle age from smoking and a further 250 would die later in life from smoking. That gives us, graphically, a sense of the scale of the potential damage to young people who take up cigarette smoking. For that reason, the Government are broadly supportive of the Bill. We need to ensure that future loopholes can be addressed rapidly. That is why we believe that the clause is necessary.
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