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Lord Skelmersdale: I am reminded that on Second Reading and, indeed, when the Bill in its previous form was being considered by another place, Ministers, both there and here, made the offer to publish as many regulations in draft as they possibly could before the Bill finished its progress in this House. I intervene only to keep both Ministers, as far as possible, up to their promise.
Lord Monson: As Clause 8 appears to be the brainchild of the Government, perhaps this question should be put to the noble Lord, Lord Filkin, rather than to the noble Lord, Lord Clement-Jones. What is the purpose of subsection (2) of Clause 8? The subsection states:
- "It is not an offence . . . for a person who does not carry on business in the United Kingdom to display or cause to be displayed tobacco products"—
If people are located outside the United Kingdom they are outside the scope of British justice anyway, are they not? Or is it the intention of the Government to alter the proposed European arrest warrant so that people can be extradited from continental EU countries for the heinous crime of advertising tobacco?
Lord Peston: I find myself in the rather embarrassing position of finding Clause 8 totally clear. I am completely at a loss as to what is troubling those noble Lords who are puzzled by it. The logic, it seems to me, is that it is accepted that something may be a display and an advertisement; that that something has to be dealt with, and we have decide whether to deal with it as an advertisement or as a display. Given the way the Bill is drafted, as I understand it, we cannot deal with it as both.
Clause 8 states that as you have got to make up your mind which it is, the best way to do that is to have some regulations, which will be placed before Parliament, to say, "This is how we are going to do it". That makes perfectly good sense to me. I really do not know what noble Lords are fussing about.
I would never be one to criticise the Select Committee on Delegated Powers and Deregulation—although, when we were in opposition, I was against having such a committee because I was totally against that much delegated power going ahead anyway. That
is another matter, but I am also puzzled that it is puzzled. The matter seems very straightforward. Something can be both a display and an advertisement and you have got to make up your minds how you deal with it.Although we are not in the psychiatric game today, I should like to know quite what is troubling the noble Lords who are troubled. In my view, the Government should go ahead—I hope that the noble Lord, Lord Clement-Jones, does not resile from this—because this clause is both clear and needed.
Baroness O'Cathain: Perhaps I may ask for clarification from my noble friend Lord Oxfuird. Several times during his introduction, he used the words "point of sale". The words "point of sale" do not enter into Clause 8 at all. It suddenly came to me that someone said that you cannot ban displays because you can go into a confectioners, tobacconists and newsagents and see a whole lot of cigarettes for sale there on display. But a point-of-sale display is quite different. It is something which is at the till or is removed from the cigarettes on the shelves. We need a definition for "point of sale". Generally speaking, in both the retail sector and in marketing generally, "point of sale" means something which is necessarily remote from the normal source of the product—for instance, by the tills, by the check-outs or in a special gondola of its own.
So what does my noble friend Lord Oxfuird mean by "point of sale", particularly as the words do not appear in Clause 8?
The Viscount of Oxfuird: I thank my noble friend Lady O'Cathain for her comments. I am trying to see where I used the words "point of sale". It is not in my script. Oh yes, it is in the Explanatory Notes. I take my noble friend's advice and thank her for it.
The Earl of Erroll: I entirely agree with the noble Lord, Lord Peston, that the provision is necessary. We had a long discussion about what was an advertisement and what was not. We decided not to define it.
I am not trying to allow the advertising of tobacco products to continue. I am concerned about a possible difficulty mentioned to me by the noble Lord, Lord Weatherill, some years ago; namely, the "law of unintended consequences". I am concerned that the Bill could be used by people in order to cause trouble to other businesses, using the very broad powers in the Bill to accuse them of doing something when it might be difficult for them to prove otherwise.
I have referred to this matter previously in relation to material transmitted electronically. Therefore, I shall not bore the Committee with it now. Clause 8 is very useful. It helps to take some matters out that could be included in the term "advertisement". Therefore, I fully support the noble Lord's remarks.
Lord Hunt of Kings Heath: My Lords, we have debated the matter well. I do not think I need repeat
my remarks in relation to the earlier amendment. I believe that, unlike some noble Lords, my noble friend has got it right. It is abundantly clear why we need to have a safeguard in relation to displays; and why we want, through the regulatory power provided in the clause, to give certainty as far as possible to anyone who might be affected.It is important to underline the point that it would require an affirmative regulation. Therefore, the matter would be subject to full debate in this House. I know to my own cost that debates on affirmative regulations are extensively scrutinised and cause great excitement to the Department of Health—at least, the previous three or four that I have moved in this House have done so.
Secondly, I want to make it clear that there is no intention of unnecessarily increasing the burdens on small business. I also confirm that the Government do not intend to change the way in which tobacco products are now commonly displayed in gantries in corner shops, supermarkets and ordinary places of sale.
It may well be the case, as I said earlier, that we do not need to make any regulations using the powers contained in the clause. However, because of the potential for future loopholes and abuses—for example, in the case that I cited originally, of a big Marlboro "M" with lots of packets of cigarettes being displayed in it. There is a need for what might almost be called a reserve power to control and regulate the display of tobacco products if that is required.
In answer to the question about Clause 8(2), my advice is that in theory a person not in the UK could be guilty of an offence and could be prosecuted if he or she came to the UK. We would not want that to happen. That is why the clause is drafted in this way.
12.15 p.m.
Lord Clement-Jones: This has been an interesting debate. I suspect that the noble Lord, Lord Peston, and I must have both sprung up this morning with a clear head. I certainly agree with him: I do not find any great lack of clarity in the clause. I understand why we needed to elucidate why subsection (4) was required. But I certainly do not understand why we have to elucidate the whole of the clause.
As has been amply discussed, the clause relates to product displays. We are not talking about "point of sale" material. It is when those displays may possibly be advertisements as well that the provision in Clause 8(4) cuts in.
I am slightly baffled as to why we are having this debate, unless there is a genuine view that the power to ban displays at some point in the future should not be available in the Bill. That is a view with which I strongly disagree. I believe that we may well wish to exercise such a power at some point in the future. Displays are very seductive. If they were not, our supermarkets would not have their "gondolas" full of products. They are product displays which are promotions. Displays in shop windows will be
particularly seductive for young people. Therefore, I am totally unapologetic about the purpose and design of Clause 8.Sub-section (4) is intended to provide fairness and certainty, so that it is quite clear into what category of offence a case falls where the promotion is both a "display" and an "advertisement". I do not know whether the phrase "hung for both a sheep and a lamb", instead of "either a sheep or a lamb" has any resonance at all, but that is the design of the clause.
The noble Earl, Lord Erroll, introduced the useful phrase, "the law of unintended consequences", and said that his purpose was to make sure that a situation did not arise where there was a great deal of uncertainty about what kinds of offences people face. Again, that part of the clause is designed to cut back on the number of unintended consequences. I find the clause unimpeached in the course of the debate and I very much hope that Members of the Committee will support it.
Clause 9 [Prohibition of free distributions]:
[Amendments Nos. 56 to 60 not moved.]
Lord Monson moved Amendment No. 61:
- Page 5, line 6, after "of" insert ""nominal sum" and"
The noble Lord said: In the absence of my noble friend Lord Palmer, I should like to move Amendment No. 61, although I have not had time to study it previously. The amendment is entirely helpful both to the noble Lord, Lord Clement-Jones, and to the Government. It is not in any way a wrecking amendment or one designed to detract from the force of the Bill. It is simply logical—
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