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Lord Hunt of Kings Heath: The noble Baroness has put her finger on one of the problems. By accepting Amendment No. 63, your Lordships could be giving tobacco companies the green light to organise and sponsor events or social contacts in the industry which may well be associated with other sectors. If that happened, the point that the noble Baroness has raised would come into play.

Earlier I put it to the noble Lord, Lord Clement-Jones—if we accept that there is a problem in terms of loopholes—whether there are instances of legitimate business activity which have been mentioned which

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one would not wish to see caught by the provision. I do not know whether the noble Lord, Lord Clement-Jones, without commitment is prepared to consider that narrow area between now and Report.

1 p.m.

Lord Clement-Jones: This is an interesting point. I am not convinced by the logic of the noble Lord, Lord Naseby. There is much more potential for leakage into the wider world during a sponsored event. I refer, for example, to an annual Benson & Hedges ball which is given strictly to promote Benson & Hedges products. Of course, that falls within the terms of the noble Earl's amendment. However, people invited to that ball may invite all their friends.

Lord Naseby: Perhaps the noble Lord has not fully understood the matter. If everyone who attends that event is in the tobacco trade, the situation would be covered by the amendment. However, if anyone attended who was not in the tobacco trade, that would not be the case.

Lord Clement-Jones: So no wives, daughters or sons would be invited, only those involved in the tobacco trade?

Lord Naseby: That is how the amendment is drafted at present. The Minister made a helpful suggestion. One can go from the extreme of saying that the provision applies purely to people who must currently be involved in the tobacco trade—that is perhaps the tightest definition—or apply various gradations within that definition. All I ask the noble Lord to consider is how the tobacco industry can continue its normal functioning and yet not open such events to the wider general public. The noble Baroness mentioned students. Neither I nor my noble friends wish to open up that area. As I say, the Minister made a helpful suggestion. I hope that the noble Lord will consider it before Report.

Lord Clement-Jones: Those comments are helpful. What the noble Lord, Lord Naseby, is really saying is that the measure will not be used as a Trojan horse. It is concerned entirely with the trade. Any amendment will need to be judged entirely on that basis. Clearly, there are still drafting points to consider, but I am prepared to consider the amendment before Report.

The Earl of Liverpool: I assure the noble Lord, Lord Clement-Jones, that I had no intention of introducing a Trojan horse. The amendment is a genuine attempt to try to tighten an inconsistency in the Bill and, most importantly, to allow companies going about their legal business at such events to be treated in the same way as other companies not in the tobacco trade. My Amendment No. 62 may be imperfect. However, it was not intended to constitute a way of getting round sponsorship. I am not trying to do anything other than explain that there are a number of companies in different fields which offer corporate hospitality at

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sporting events around the country. They may have a marquee or simply a small box. However, those marquees or boxes will not be open to the public and admission will be by invitation only.

I am not referring to the situation where a tobacco company sponsors the event to which it invites its guests. It seems to me that it is completely absurd for the company offering corporate hospitality not to be allowed to hand around cigarettes and cigars because it happens to be a tobacco company. Apparently, that is the position as that is the way the sponsor of the Bill interprets it. However, companies not involved in the tobacco trade would be able to hand out those products freely.

Lord Hunt of Kings Heath: I am grateful to the noble Earl for giving way. Surely, there is a big difference here; namely, that the company not involved in the tobacco business is not involved in promoting tobacco products, whereas a tobacco company is so involved. There is a logic as regards why they should be dealt with differently.

The Earl of Liverpool: I thank the Minister for that intervention, but can he not see that that is not the prime point of offering the corporate hospitality? The point of offering that hospitality is to thank friends and people involved in the trade for their custom over the years, as other companies would do. In those circumstances it would be abnormal not to offer the whole round of hospitality which involves food, drink, cigarettes and cigars. Surely it cannot be the intention of the Bill to make that illegal. Is the Minister saying to me that these events could be policed and someone could be hovering waiting for the whiff of smoke to emanate from a tobacco company's private box? I believe that that is what he is saying and it is completely absurd.

Lord Hunt of Kings Heath: I am sure that we can rely on the good sense of the enforcement authorities. In the previous Committee debate we debated the protocol under which trading standards officers would enforce the provisions of the Bill. I am sure that they would do so sensibly. My view is that the noble Earl should perhaps quit while he is ahead as I sense that the noble Lord, Lord Clement-Jones, is sympathetic to the point about a potential problem in terms of legitimate business activity. It may be wise to call a halt to the matter at this point and allow discussions to take place between now and Report.

The Earl of Liverpool: I thank the Minister for those helpful remarks. In conclusion, I thank all those who have taken part in this interesting debate. As I say, I am grateful for the Minister's comments. On the basis that the matter will be considered before Report, I am happy to beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 63 to 65 not moved.]

Clause 10 agreed to.

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Clause 11 [Brandsharing]:

[Amendments Nos. 66 to 68 not moved.]

Lord Naseby moved Amendment No. 69:

Page 5, line 44, leave out ", or whose effect is to do so"

The noble Lord said: In the absence of my noble friend Lord Lucas, I move the amendment. The amendment recognises that we all understand and are at one with the words in the Bill which state,

"may prohibit or restrict only that use whose purpose is to promote a tobacco product".

However, the amendment seeks to remove the rather odious following words in the Bill; namely,

"or whose effect is to do so",

as they constitute a judgmental provision as to whether or not that effect will occur. It seems to me that that constitutes a wonderful opportunity for lawyers to spend endless hours in the courts trying to decide whether or not that effect will occur. In moving the amendment I seek to tighten the Bill so that we are absolutely clear that it is the promotion of tobacco products that we must avoid. However, if the element that is being promoted is a "tick", for example—I do not think that Nike has anything to do with the tobacco trade—that should not be banned. I do not want to become involved in a long debate about brands that cover various products as we dealt with that previously, although not very satisfactorily. As I say, the amendment seeks to tighten the Bill and not give lawyers a wonderful opportunity to make considerable sums of money. I beg to move.

Lord Filkin: I thank the noble Lord, Lord Naseby, for moving the amendment—although I doubt that the noble Lord, Lord Lucas, if he had been in his place, would have done so. Given his strong interest in these issues, I trust that he would have let it pass. Given that, I shall be extremely brief, but I shall be prolix later if necessary.

Effect is there as well as intention, for reasons upon which we have touched previously. We are not seeking to inquire into people's souls, as to whether or not they want to have a certain effect. We are trying to limit the effect of tobacco promotion on young people and those who wish to give up smoking. Whether or not the action was intended, if the effect is of the nature in question the Government's position is that we want the power to limit that effect. The Government will consult carefully and thoroughly on regulations, so that we hear the views of the industry and others.

Lord Clement-Jones: This has been one of our shorter debates but the wording

"whose effect is to do so"

is extremely important. The definition of a tobacco advertisement in Clause 1 is one

"whose purpose is to promote a tobacco product, or . . . whose effect is to do so".

That is entirely mirrored in Clause 11 and rightly so, because it is crucial that brand-sharing is caught in the same way. If the measure were based purely on intent,

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anybody who recklessly or negligently used a brand that had the effect of promoting tobacco would not be caught. If the regulations—which the Minister has said will be heavily consulted on—were based purely on intent, it would be far too easy for someone to escape.

We return to public policy and how high the hurdle should be. It is entirely appropriate that the test should be, as well, whether the effect of the use is to promote tobacco. Companies should be put on notice that they need to be careful to ensure that their activities do not promote tobacco products.

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