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Lord Monson: Before the Minister sits down, does he not agree that Clause 2(3) already prohibits the distribution of tobacco advertisements in electronic form? The subsection is unequivocal, unambiguous and all embracing. Therefore, why is Clause 7 needed?
Lord Filkin: It is necessary for the reasons I have given; that is, to put beyond doubt that there is a power for this place, if it wishes, on a proposition from the Government, to ensure that any subsequent change in technology is not allowed to leave loopholes unplugged and unstopped.
Lord Skelmersdale: For the avoidance of doubt, I agree with the Minister that the world wide web is moving so fast that a clause such as this, on this occasion—I would not tie myself to any other—is necessary. I am grateful to the Minister for responding to my comments on European product law and for stating that he will write to me. However, he made the most remarkable statement in reply to my noble friend Lord Geddes. The Minister spoke about the Government laying instruments under the e-commerce directive. Surely he meant that they will lay an instrument to bring the e-commerce directive into British law?
Lord Filkin: I am sure that that is what I meant to say, even if I did not say it.
Lord Clement-Jones: I welcome the spirit in which the clause has been debated by the noble Lord, Lord Lucas, and other contributors. This is an important issue. A clause of this type is not simply to be treated as inevitable in Bills such as this. If the circumstances were different, I might well find myself on a different issue arguing that such a Henry VIII clause should not be part of the Bill. However, the issues are so important that I believe the clause to be a very important part of the Bill.
In reply to the noble Lord, Lord Lucas, if we knew what to expect in the way of forthcoming technology, we would not need the clause. It is precisely because we do not know what to expect that we do need it. The noble Lord tempts me when he talks about developments in optics, and so forth. Perhaps they are not electronic; perhaps we need a wider clause. I am sure that this would horrify the noble Lord, Lord Lucas, but there may well be arguments that "electronic" is not sufficiently wide to describe the kind of technological communications that will take place in the future.
If we cast our minds back only a few years, when I left the corporate sector in 1995 nobody communicated by e-mail. In the seven years since then, everybody in business has now adopted e-mail. The web is a common factor used by schoolchildren for their school research, and so forth. There have been fantastic changes. We do not know what will happen. We know that technology moves faster and faster. Hence the need for this type of clause.
The noble Lord, Lord Skelmersdale, raised the issue of the technical standards directive. I am sure that he will receive a satisfactory reply from the Minister in due course. I understand that the regulations will need to be notified, as part of the regulation-laying process, if they fall within the directive. However, that does not need to delay, after the passing of the Bill, the way in which the Bill is designed to operate.
As regards the e-commerce directive, the noble Lord, Lord Geddes, received a reply from the Minister on the question of when it was adopted by the Council of Ministers and, indeed, the timetable for when it will be implemented. That means that the actual text of the directive in EU terms is there. Therefore, we have the certainty, about which he was rather doubtful, to build on the Bill and to ensure that it is consistent with the provisions of the directive. I believe that those who might have doubts about the e-commerce aspect would welcome that.
As regards the scope of the clause, the noble Lord, Lord Filkin, rightly referred to the Select Committee on Deregulation and Regulatory Reform. After the Second Reading of a Bill we always await with great anticipation what that committee will say about the particular regulation-making power contained in it. On many occasions it has been highly critical. Quite often the Government change their position at the Committee or Report stages directly as a result of its conclusions. In this case it was clear on the matter. It made no qualification. It said that the power was limited in scope and therefore it is acceptable. The noble Lord, Lord Filkin, pointed that out. So we can be fairly content that this clause goes no further than is necessary.
However, there is a great mischief, as the Minister pointed out. If we allowed a Bill such as this to go through without such a clause, in view of the technological changes that can take place, we do not know whether in a year or two or three those changes will have completely altered the way in which people receive information. To allow advertising over that new medium without this clause would put a large hole in the middle of the Bill. This kind of clause, as we know only too well, is not unprecedented. Indeed, after the passing of the Bill I think that we shall say that this is actually one of the most apposite cases for this kind of Henry VIII clause.
11.30 a.m.
Lord Lucas: I am sorry to say that after all that I find my questions largely unanswered. The Bill sets out at the beginning to catch publishing and distribution in
the widest of terms. Anything which constitutes publishing or distribution and which involves an advertisement will be caught by the Bill. Indeed, because of the way in which Clause 7 is drawn, if it is not publishing or distributing the clause will not bite. So, if it is publishing and distributing the Bill catches it. It does not matter by what means. It could be by thought transference. The Bill would still catch it because someone would be publishing the advertisement and the noble Lord perhaps would be receiving it.
Lord Clement-Jones: "Electronic means", means what it says.
Lord Lucas: Yes, but Clause 1 does not have that caveat. If an advertisement is published or distributed by whatever means imaginable or possible in the future, it is caught by the Bill. Indeed, it has to be published or distributed within the meaning of those words for Clause 7 to catch it. So it does not really matter what advances there are in technology, tobacco advertisements will be caught by the Bill, by whatever means they are published or distributed.
Lord Filkin: If the noble Lord is right, he need have no anxiety about Clause 7 standing part because it will not need to be used.
Lord Lucas: I am saying that in this context there is no need for Clause 7 because there is absolutely nothing that will not be caught by Clause 1.
The Earl of Erroll: The reason for my concern is the matter of precedents. One puts something into a Bill in order to use it as a precedent to put it into other Bills. The noble Lord has already used that argument for keeping it in this one. We should be stopping these precedents being used too often in an otiose way.
Baroness O'Cathain: I should like to clear up a matter with the noble Lord with regard to Clauses 1 and 7. In another two or three years it could well happen that stuff on the web will not be called advertisements. We do not know. The noble Lord, Lord Clement-Jones, referred to the way in which things have moved so fast in the past two or three years. It is not beyond the wit of people who really want to try and get more and more business to invent a new terminology for the web which does not use the word "advertisement".
Lord Clement-Jones: The noble Baroness makes an interesting point. But that is an argument for widening provisions rather than narrowing them.
The Earl of Erroll: Without even consulting the provision, I seem to remember that it says has the "tendency to promote". It does not actually limit it to the word "advertisement". The beginning of the Bill is drawn in far wider terms. The only purpose that I can give this clause is to set yet another precedent for its use in future legislation.
Baroness O'Cathain: Clause 1 actually states:
- "Meaning of 'tobacco advertisement' and 'tobacco product'
- In this Act—
- 'tobacco advertisement' means an advertisement—
- (a) whose purpose is to promote".
Lord Filkin: In a sense this touches on a theme which has run throughout the Bill. Perhaps I may go back to some of the general principles. The Bill, if passed, will clearly affect the ability of the tobacco industry to advertise its products. It will not like that, for obvious and understandable commercial reasons. There is massive international evidence that when such bans come in, the industry seeks vigorously to find alternative means, both of promoting its products and of sustaining the brands and, above all, of trying to persuade new users to smoke.
It is for that reason that we must expect and be cautious that there will be further attempts (we know not what) to promote smoking as a habit. The Government's stance is that we are not seeking to prohibit the smoking of cigarettes, but we are seeking to limit the likelihood that people will take up the habit or be able to give it up if they want. That is why it is fundamentally necessary to have careful clauses of this kind, albeit limited in the application of their scope and subject to affirmative resolution of the House.
Obviously, we shall study the thrust of the contention of the noble Lord, Lord Lucas, that this clause is otiose. I think that the word is completely correctly used; we do not need the clause in the Bill. However, I am fairly confident that that will not be the advice when we consider it. No doubt we shall put the matter beyond doubt on Report.
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