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Lord Naseby: Having listened to the Minister and the promoter, we clearly disagree. But we have debated the issue at length on two previous occasions and as I, too, want to make progress, I do not choose to divide the Committee. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
On Question, Whether Clause 11 shall stand part of the Bill?
1.15 p.m.
Lord Naseby: I remain deeply concerned about brand-sharing, which the promoter said he is determined to outlaw. In our earlier deliberations on own-label products, the noble Lord cited Sainsbury's and seemed to suggest that a tobacco own-brand would be permissible and not fall foul of Clause 11. That is an important point and one on which I have not given the noble Lord notice—so if he does not wish to respond now, it needs to be answered on Report.
How confident are the Government that they will not find themselves facing claims for compensation for loss of intellectual property rights? I imagine that some work must have been done on that aspect. On 7th December, the Minister said that was a complex subject—which means, "Heavens! This looks like dangerous ground and I am advised that I should be getting worried." I hope that those two points will be clarified on Report because they are crucial to the Bill and important to the industry.
Lord Peston: The noble Lord, Lord Naseby, is right to remind us that we will return to one or two of these topics on Report. Brand-sharing is an area in which I made a mistake. I did not know that Dunhill had sold the rights to use its name on cigarettes rather than being involved in cigarette manufacture itself. That is the past and there is no problem from now on, so I agree that point relates to Amendment No. 7. However, Dunhill was an innocent party and we must ensure that such companies are not damaged in respect of brand-sharing. I totally support the noble Lord's view that one or two technical aspects require further scrutiny, without any commitment as to where any of us will end up.
Lord Filkin: I am seriously worried if the noble Lords, Lord Peston and Naseby, agree—we are clearly in some difficulty. Both noble Lords are right on this occasion. The general principle is that the Government
are confident that there will not be a legitimate case for compensation, having consulted on the regulations after the Bill is passed with the care that we intend. The defence of public health is the fundamental issue but we take the noble Lords' point and request. We will look at the issues in some detail and give answers on Report, if required.
Lord Clement-Jones: It has taken two and a half days in Committee to bring the noble Lords, Lord Peston and Lord Naseby, together. As the Minister said, some issues need deliberating upon when the regulations are put together.
I am not sure that I gave any undertaking about the use of Sainsbury's in brand-stretching but I am sure that any regulations would be wrong if they did not permit Sainsbury's to use its name even if the company had an own-brand cigarette. It is not that use of the Sainsbury name would be promoting cigarettes. That would not be a fair interpretation if the name were on a sweatshirt, tracksuit or umbrella—which is a different proposition. We can all think of other examples, so work needs to be done when composing the regulations.
We need to think about some of the consequences of particular forms of regulation. If the Bill did not have a brand-sharing clause, that would weaken it considerably because brand-sharing is the route of modern marketing. The noble Baroness, Lady Jay, was particularly eloquent on the subject of examples from abroad, which demonstrated how brand-sharing is used in the modern world and directed at young people. Clause 11 is an essential part of the Bill but we need to treat the regulations with some care.
Clause 14 [Powers of entry, etc]:
Lord Monson moved Amendment No. 71:
- Page 7, line 18, leave out "which he considers" and insert "where there are reasonable grounds for him to believe"
The noble Lord said: In the absence of my noble friend Lord Palmer I shall briefly speak to this amendment and those grouped with it. Once again, the amendments are all extremely moderate. They are certainly not intended to weaken—still less to sabotage—the Bill. They would introduce a concept of reasonableness into the powers of entry that are conferred in Clause 14. Noble Lords are traditionally vigilant in defence of our liberties and accordingly suspicious of granting powers of entry unless they will be used reasonably and can be shown to have a reasonable basis. The amendments are self-explanatory. I beg to move.
Lord Skelmersdale: When I read the amendment I had to check up on my rather faulty memory. The words in the Bill differ from those in the Consumer Protection Act 1987. I ask either the noble Lord, Lord
Clement-Jones, or the Minister: why? The situation is—or should be—almost exactly the same under this Bill and that Act.
The Earl of Erroll: I am afraid that I do not always share the belief that the noble Lord, Lord Hunt, has in the reasonableness of enforcement agencies. Occasionally, one comes across someone who might be described as a little dictator and it is very wise sometimes to involve a third party. The next group of amendments, which I hope will be spoken to by the noble Baroness, Lady Jay, raise exactly the same matter. I shall save myself from having to leap up in that debate if I say now that those amendments appear to be extremely sensible for exactly the same reason.
Lord Naseby: In supporting the noble Lord, Lord Monson, we need to remind ourselves that the offences with which we are concerned involve the publication and distribution of advertisements, free products, coupons to the public or sponsorship agreements that promote a tobacco product. The key difference between these offences, which are clear, and many of the other offences—in relation to which trading standards officers will need the powers contained in the Bill—is that these are open offences; they are already in the public domain. That is perhaps unlike the situation involving the Consumer Protection Act, which was mentioned by my noble friend Lord Skelmersdale; that may need detailed investigation. We should also consider the Food Standards Act in that regard—again, it may not be immediately obvious that there is a problem or that urgent action by trading standards officers is required.
The fact that these offences are already in the public domain means that the amendments, which would trim back a little the powers of entry, are more appropriate than having the draconian provisions that are understandably necessary in relation to, in particular, the Food Standards Act. This is a matter of proportionality—we again return to that word. I support the noble Lord, Lord Monson, who moved the amendment.
Baroness Noakes: I shall speak briefly to Amendments Nos. 77 and 81, which stand in my name. The noble Lord, Lord Monson, who moved Amendment No. 71, and other noble Lords who have spoken subsequently, referred to these as modest amendments that are designed to trim very slightly the Bill's scope.
Amendment No. 77 is narrow and deals with the power to retain documents. It is similar to Amendment No. 76, which stands in the name of the noble Lord, Lord Palmer. Amendment No. 77 would slightly amend the power that officers will have to hold on to documents for weeks or months on the grounds that they consider it necessary—whether or not it is reasonable—for those officers to hold on to items for a long period. None of the other powers in subsection (1) carries the same potential for the disruption of a business. A power of entry may well be disruptive but it is over in a relatively short period. If an officer goes
in and takes away books and records a business could be seriously inconvenienced. If the officer takes away products, the financial consequences could be significant to the business. That is why a test of reasonableness is proposed in the clause.I turn to Amendment No. 81, which is another modest amendment. It deals specifically with the right of entry into premises either in relation to subsection (1) or under a warrant granted under subsection (4). Under subsection (5) an officer can take with him any,
- "other persons . . . as he considers necessary".
Lord Filkin: We come to the extremely important issue of enforcement, which the Committee naturally wants to ensure will be handled well and appropriately in the Bill.
Amendments Nos. 71, 72, 76, 77, 79, 80 and 82 seek to place in the Bill an express requirement on enforcement officers to act reasonably. I recognise that Members of the Committee are concerned to ensure that enforcement is carried out responsibly and that trading standards officers do not play fast and loose with the law. However, there is no need for the amendments. The duty to act reasonably applies in any event. Enforcement officers can already be held to account for the exercise of their duties. Indeed, any trading standards officer who "misconducts" himself or herself in the execution of his or her office is guilty of an offence and liable on summary conviction to a fine of up to £5,000 under the Weights and Measures Act 1985. Apart from anything else, no prosecution could succeed if enforcement officers were seen to have acted unreasonably. The Government therefore believe that, although we are sympathetic to the anxiety that caused the amendment to be moved, it is simply unnecessary to pad out the Bill with references of that kind because we believe that the issues are already dealt with under existing statutory powers. Despite the point that was made by, I think, the noble Earl, Lord Erroll, we are generally confident and trust in the good sense of local authorities corporately and in officers individually to ensure that implementation of the Bill is sensitive and appropriate.
I turn to trading standards officers and the way in which they tend to act on such matters—they are the officers responsible within the relevant local authorities for enforcement. The approach of trading standards officers is to draw attention to offences and then to educate, to prevent or end offences in the
simplest and swiftest way. Prosecution is not usually their first action. Court proceedings tend to be their last resort. We do not expect the Bill to result in large numbers of prosecutions. Tobacco companies have told us that they intend to comply with the law. Trading standards officers attempt to resolve an issue, to educate and to draw attention to offences before there is a need to prosecute.Trading standards officers also operate under the principles of good enforcement, which were outlined in the joint sponsored Local Authority Association/Cabinet Office enforcement concordat, which was published in 1998. It is available from the Better Regulation Unit at the Cabinet Office. That seeks to ensure that enforcement authorities publish performance standards, are open and helpful, provide a means to complain, follow up on complaints received, ensure that wherever possible the impact of legislation is proportionate and act in a consistent manner.
Again, in addressing what the noble Lord, Lord Naseby, said, my own experience has led me to believe that in general trading standards officers do act responsibly in this way. I believe that that is reinforced by the presence of LACOTS—the expert local authority body—which will try to ensure that enforcement is dealt with skilfully, informedly and, so far as is reasonably practicable, uniformly. Therefore, this is probably one area where local authorities are best supported by a specialist body that has been formed for these purposes.
With regard to the question raised by the noble Lord, Lord Skelmersdale, in relation to the Consumer Protection Act, we should like to look at that in a little more detail. The glib answer might be that that Act dealt with the compensation of substantial goods. But let us return to that issue at a later stage.
I turn to the concern expressed by the noble Baroness, Lady Noakes, about the power to hold on to goods. Again, I believe that a distinction arises with the Consumer Protection Act when sometimes substantial goods can be confiscated in the course of an investigation or a potential prosecution. Under this Bill, if passed, in almost all cases trading standards officers would be likely to seize on entry and investigation documents or a computer hard disk. They would not seize, for example, a substantial amount of cigarettes. We would generally expect the power to seize goods to be minimal.
For those reasons, I suggest that, while the intent of the amendments is understandable, it is not necessary for them to be put on to the face of the Bill.
1.30 p.m.
Baroness Noakes: Before the noble Lord sits down, perhaps I may ask him to look specifically at Amendment No. 81. It does not concern an issue of reasonableness, to which I believe he directed his remarks relating to the way in which trading standards
officers work. It concerns whether or not the persons who enter into premises under the powers in the Bill need to be authorised by the appropriate authority.
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