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Lord Clement-Jones: Those are wise words. I do not accept the case that Clause 7 is otiose in those circumstances. For example, the clause relates to regulations that may be made in respect of displays. It can relate to all kinds of other things. For instance, if one could make a 3-D display in the future by some electronic optical means in people's homes, would that not be some kind of development that we would want to catch? I do not know whether or not that will ever be possible in the future. I should not be at all surprised.
I am sure that if we sat only for another 10 or 15 minutes we could think of cases where this kind of provision would be entirely appropriate and that it would not be simply overlapping with subsection (3) of Clause 2.
So I do not accept the case for exclusion of Clause 7. I believe that actually it is a very important part of the Bill.
Lord Peston: Does the noble Lord appreciate that the initiation of the debate by the noble Lord, Lord Lucas, leads to the exact opposite conclusion from the direction in which he has directed us? The intervention
of the noble Baroness, Lady O'Cathain, leads us to that. The point about Clause 7 is that it is too narrow; it is not broad enough. It should have the additional words, "or any means whatsoever".I do not know whether the noble Lord, Lord Lucas, is aware that the logic of his position is that, far from arguing as he has, he should be arguing exactly the reverse and encouraging the Government on Report to add the words, "or any other means whatsoever", to which I should put up my hand and strongly support. It is not obvious to me that that is what the noble Lord had in mind.
Lord Lucas: I just have not been allowed to get to the end of my speech yet. Yes, as so often, the noble Lord, Lord Peston, is absolutely right. If there were a reason for the clause, I should not add words to the Bill, but just take out the words "by electronic means".
I do not want to prolong the debate. I should be grateful if the Minister could write to me and answer the duality of questions: first, why is Clause 2—and I meant Clause 2 when speaking before—not enough? It seems to catch everything that is publishing or distribution. Secondly, if he can show me why it is not enough, why is Clause 7 not too little? That is the bottom level of what the noble Lord, Lord Peston, asked. I am very happy to have that information by way of a letter.
Lord Filkin: I am extremely grateful. It is a thoughtful probing amendment, and we will be delighted to respond in that way in writing, addressing both points.
Lord Clement-Jones: I welcome that assurance from the Minister. One of the answers to the noble Lord's question is that the clause does not relate only to the process of publishing or distributing. It relates to regulations made under the whole of the Bill.
I am taken by the idea of the noble Lord's controls over thought transference. We may have to consider that on Report.
Lord Geddes: Clause 2(3) has been specifically mentioned more than once in the past five minutes. I hope that I can help the Government on this. I am a bit confused. Subsection (1) of Clause 2 specifically says:
- "is guilty of an offence".
- "is guilty of an offence".
Lord Filkin: Missing verbs, as the Prime Minister well knows, ought to be an offence.
Lord Lucas: I want to reply to the point raised by the noble Lord, Lord Clement-Jones. The words "publishing" and "distributing" are specifically used
in Clause 7, so the change must be associated with publishing or distributing for Clause 7 to bite. That is another reason why I think that the clause is too narrow to catch any real mischief.I wish, I wish that the Government were as the Minister said they were. The first Question that I tabled in the House, when the Government took office in 1997, asked when they would answer my Questions for Written Answer by e-mail. Until today, the answer, with the exception of one or two departments, was, "Not yet".
Secondly, it is all very well to hold up the affirmative resolution as the backstop, as, indeed, it is. The Government propose to do away with our ability to use that absolute backstop and make it a delaying power. We ought to see the matter in that context.
Thirdly, the Minister hymned the necessity of doing as much as we can to prevent tobacco-related deaths. I agree entirely, but I want to pick up an anomaly that has come to my notice recently, which the noble Lord might care to investigate. His colleagues in the Home Office have effectively banned a large segment of smoking-related research in this country. Animals can no longer be exposed to tobacco smoke to investigate the consequences and find ways of curing the results. Such research must now be exported to the Netherlands. Is that in accordance with the wishes of the Department of Health? If not, will the Minister consider doing something about it?
Lord Filkin: As the noble Lord, Lord Lucas, knows, the Government always speak with one voice. I shall certainly look into the issue with interest.
[Amendments Nos. 53 and 54 not moved.]
Baroness Noakes moved Amendment No. 55:
- Page 4, line 17, leave out subsection (4).
The noble Baroness said: There is a difference between the offence created by Clause 8 and those that we have discussed earlier in Committee. First, the offence under subsection (1) is dependent upon regulations to be made, and we do not know what those regulations will be. More importantly, the offences created by Clauses 2 and 3 have some specific defences available in Clauses 5 and 6, but no specific defences are available against an offence created by Clause 8. Clause 8 is therefore more draconian than the provisions of the Bill that we have already discussed.
Subsection (4) says that the Government will decide later, and by regulations, whether something is to be outlawed by Clause 2 as a tobacco advertisement or is to be treated as a display. We think that that goes too far and is unnecessary. I am sorry that Amendment No. 7, tabled by my noble friend Lord Skelmersdale, removing for the avoidance of doubt the possibility that a display was not a promotion and, therefore, not an advertisement did not find favour. I also regret that
Amendment No. 1, to which I spoke on our first day in Committee, which sought to define "advertisement" was also rejected. Even without those clarifying amendments, it should be clear that a display is not an advertisement, and we do not believe that the Government should later choose which set of offences might apply.I ask the noble Lord, Lord Clement-Jones, to say whether he believes that there is good cause for a provision allowing the Government to pick and choose what is an advertisement or a display at a later stage. If he does, would he say what that is? If the noble Lord believes that there is any potential ambiguity between the terms "advertisement" and "display", the issue would be best dealt with by an amendment removing the ambiguity rather than leaving it to a later decision of the Government.
On our first day in Committee, the noble Lord, Lord Clement-Jones, when speaking against the earlier amendments to which I have just referred, said:
- "Our judgement on these Benches is that there is insufficient ambiguity about the word "advertisement" to agree to amendment of the definition".—[Official Report, 16/11/01; col. 806.]
The noble Lord cannot have it both ways. Either the terms used in the Bill are clear and unambiguous—in which case, subsection (4) of Clause 8 is unnecessary—or they are not, in which case, we must amend the definitions used earlier. I beg to move.
11.45 a.m.
Lord Skelmersdale: I hate to be in the position of having to argue with my own Front Bench, but, on this occasion I must certainly argue in part. As I understand the matter, leaving out the whole of subsection (4) would render the whole of Clause 8 useless.
I agree with my noble friend Lady Noakes that what is needed is to decide—or have regulations about—when a display becomes an advertisement. We dealt with that on our first day in Committee and, possibly, on the second day too, when I was not present. If we do that, why do we need paragraph (b)? If we make the decision once, why must we do it the opposite way? That seems totally nonsensical and unnecessary.
The Parliamentary Under-Secretary of State, Department of Health (Lord Hunt of Kings Heath): I certainly agree with the noble Baroness, Lady Noakes, that, rather than picking and choosing, in that sense, we require clarity on the matter. I am sure that the noble Lord, Lord Clement-Jones, will argue that Clause 8(4) is intended to provide such clarity. It must be considered alongside Clause 2, as the noble Baroness suggested. That clause gives the power to regulate the advertising of tobacco products at point of sale, whereas Clause 8 gives Ministers the power to regulate the display of tobacco products at point of sale.
In many circumstances, an object will clearly be an advertisement and not a display, such as, perhaps, open and closed signs hanging in a shop door showing
the brand name of a tobacco product. Other products will clearly be a display and not an advertisement, such as rows of cigarettes in a shop gantry. There may be situations in which something could simultaneously be an advertisement for a tobacco product and a display of tobacco products. An example might be a set of Marlboro cigarette packets arranged in a gantry in the form of the letter M.
It is clear that there must be an understanding among all concerned as to what is a display and what is an advertisement. The Government's intention is to consult on regulations, under Clause 4(2), as soon as possible, if the Bill is enacted. However, the intention would be not to exercise the power under Clause 8. It would be kept as a reserved power that it might be necessary to bring in if there were any loopholes or abuses. The intent is to make the position more easily understandable by anyone involved.
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