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Lord Hunt of Kings Heath: Perhaps the noble Lord will forgive me. I think there is some confusion as to which amendment he is speaking to. I apologise to the Committee, but perhaps we can clarify that.
The Deputy Chairman of Committees (Lord Brougham and Vaux): Amendment No. 60 is not moved, and I understand that the noble Lord is speaking to Amendment No. 61.
Lord Monson: That is the amendment to which I was speaking. As I said, I believe it is entirely helpful. If the Bill specifies a "substantial discount", it is illogical not to identify precisely what is meant by "nominal sum". I hope that this minor amendment may be accepted without too much fuss by the noble Lord, Lord Clement-Jones.
Lord Filkin: Clause 9(7) provides that any regulations concerning the making of products available for a nominal sum or "at a substantial discount" must define the term "substantial discount". The amendment would require the regulation also to define "nominal sum".
The requirement to define "substantial discount" is in the Bill because it is a relative concept and may mean different things to different people, and in different
circumstances. For example, many people would see £1,000 as a substantial sum, but if it was the discount off a car costing £50,000 it might not be seen as a substantial discount, being only 2 per cent of the value. Therefore, because of that uncertainty, and because there is the potential liability for a criminal offence, it needs to be beyond doubt what is implied by the term.We do not believe that the term "nominal sum" is likely to give rise to similar difficulties. This is a term which is generally understood and we think it is right for it to bear its normal meaning. As has been said previously, in the absence of a definition, words in the statute will be given their natural and ordinary meaning. "Nominal" is defined in the dictionary as:
- "minimal in relationship to the true value; token; so small or insignificant as to hardly justify the name".
In contrast, "substantial" is a word with no fixed meaning that may mean different things to different people. The Government do not support the amendment for that reason.
Lord Clement-Jones: I have very little to add to that. I assure the noble Lord, Lord Monson, that the meaning of "nominal sum" is clear to lawyers. The phrase is frequently used relating to the exchange of documents between trustees, when the beneficial ownership does not change. It is a common phrase that is easily susceptible to interpretation. There are very few circumstances in which there would be any ambiguity about it.
We have had debates throughout the passage of the Bill about whether certain terms used in the Bill should be defined exhaustively. We had a debate about the word "advertisement" at the beginning of Committee stage. There is always a judgment to be made about whether it is better to leave a particular phrase for interpretation or whether there needs to be a particular interpretation for the purposes of a Bill. My strong view is that there is sufficient usage of "nominal sum" across the commercial world for it to be easily interpreted and very clear in its application. Therefore, no particular definition needs to be inserted in the Bill. That is rather different from "substantial discount", which is defined.
Lord Campbell of Alloway: I agree with everything that the noble Lord, Lord Clement-Jones, has said about the amendment. However, whether the essence of what "substantial discount" means should be defined in regulations is a very important point. I agree that sometimes it is better to leave matters open and sometimes it is better to define. However, I do not understand why it is better to define in the regulations under Clause 9(7), but it is not better to define in this muddled affair under Clause 8(4). I am cross-reading against the two. I do not understand why the same provision that requires a definition of "substantial discount" should not be taken on board for consideration before Report when considering the argument on Clause 8(4).
Lord Clement-Jones: I am not sure that I entirely follow the noble Lord in his logic. Clause 8(4) is designed simply to state into which category of offence a display that was also an advertisement—or an advertisement that was also a display—would fall. The regulations envisaged under Clause 8(4) are fairly straightforward. The purpose of Clause 9(7) is rather different. It would give a definition of "substantial discount". The purpose of Clause 8(4) is not to define when an advertisement is a display or when a display is an advertisement. It will be a matter of fact whether an advertisement is an advertisement or a display is a display. The intention is simply to prevent overlap on how offences are dealt with. The two provisions have entirely separate purposes.
Lord Monson: I am grateful to the noble Lords, Lord Filkin and Lord Clement-Jones, for their replies. To a layman, "nominal sum" is almost as imprecise and arbitrary as "substantial discount", but if the noble Lord, Lord Clement-Jones, assures me that it is not in the least imprecise for the legal profession, that is the end of the story. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 10 [Prohibition of sponsorship]:
The Earl of Liverpool moved Amendment No. 62:
- Page 5, line 15, leave out "something" and insert "a public event or activity"
The noble Earl said: Amendments Nos. 62 and 63 have been grouped together, but they address two separate matters. With the leave of the Committee, I shall speak to each amendment in turn.
Unlike the first occasion, when the Bill was introduced by the Government, it is not accompanied by a ministerial statement that it is compliant with the Human Rights Act 1998. Even if it were accompanied by such a statement, the reality is highly questionable.
In its recent report on the Bill, the Joint Committee on Human Rights draws the attention of each House to a number of important aspects, not least among which is the need for justification of the measures that it contains and an assessment of their proportionality.
Proportionality can be questioned strongly in relation to the impact of the provisions of the Bill, not simply on commercial freedoms but on those of the individual and of private groups. The Bill makes it an offence if a sponsorship agreement has the purpose or effect of promoting a tobacco product in this country. It also prohibits the giving away of tobacco products.
Let us put those provisions into a real-world, practical context. For example, there are private cigar and pipe smoking clubs that often meet for tastings sponsored by specialist tobacconists. The Bill would outlaw the sponsorship of those events. The events could no longer take place, without any benefit to the central objectives of the Bill. I do not regard that as in any way proportionate. I do not believe that it is right that tobacco sponsorship should be prohibited for private groups to which the public generally do not have access.
The Minister in another place gave an indication of the extreme scope of the Bill in Committee in the last Parliament. It was then indicated that it would be perfectly acceptable for cigarettes or cigars to be offered to guests at a luncheon hosted or sponsored by, for example, British Aerospace. However, if the same offer were made at a similar event hosted or sponsored by a tobacco company, it would not be acceptable.
It is well known that many companies sponsor lunches and hospitality boxes for sporting events privately. That covers activities such as rugby league matches, test cricket, Wimbledon or Ascot. The Bill would result in the absurd situation in which British Aerospace, an internationally known firm of estate agents and a tobacco company could occupy three adjacent boxes, offering the same hospitality to their clients or guests, yet when they reached the coffee, brandy and cigars stage, while British Aerospace and the estate agents would be allowed to offer all three items, the tobacco company would be able to offer only coffee and brandy, but not cigars. That is patently ridiculous, utterly unreasonable and wrong. I cannot believe that that was the intention of those who drafted the Bill. I hope that the noble Lord, Lord Clement-Jones will look favourably on Amendment No. 62.
One of the purposes of Amendment No. 63 is to introduce consistency to the Bill. The amendment in respect of sponsorship agreements mirrors provisions in Clause 4(1)(a) and Clause 9(3). Clause 4(1)(a) permits a tobacco advertisement,
- "if it is, or is contained in, a communication made for the purposes of the tobacco trade and directed solely at persons engaged in any capacity in that trade".
- "for the purposes of the tobacco trade, to persons engaged in any capacity in that trade".
Amendment No. 63 makes a similar provision with regard to sponsorship agreements. It provides that it is not an offence if a sponsorship agreement is for the purposes of the tobacco trade and is likewise confined to persons within that trade. In-company sponsorship agreements are not uncommon in the trade and within trade associations such as the National Association of Cigarette Machine Operators (NACMO). Just as advertising within the tobacco trade and the giving away of product coupons for the purposes of the tobacco trade to persons in the trade should be and is permitted by the Bill, so should it be the case with sponsorship agreements confined to the tobacco trade.
The two amendments are disparate; they are separate. Amendment No. 63 deals with sponsorship agreements within the tobacco trade. Amendment No. 62 deals with events of a private and not public nature. I beg to move.
12.30 p.m.
Lord Campbell of Alloway: I support my noble friend's amendment. In this context, I have to declare that I was a member of the Joint Committee on Human Rights which made the report to which he referred.
In the context of sponsorship, one has to take on board, first, that there is the total ban on proportionality; and, secondly, that there is this wide definition of tobacco products which goes beyond cigarettes which are the killer on the evidence adduced by many. One has to accept that this interference in lawful trading—the proposed restriction on lawful trading or lawful activity such as sponsorship—has to be justified as proportionate. In this circumstance, the burden of proof in any proceedings would be on those who have to justify. I do not think that it could be done. I give my personal opinion; it has nothing to do with anything that other members of the committee may think or have said. The noble Earl's amendments would move towards a better prospect of justification than otherwise. They should be supported as not interfering with a lawful activity.
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