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Lord Clement-Jones: The Minister has set out the Government's response very fairly. He put it very mildly as a matter of proportionality and risk. I would probably put it more robustly as sledgehammers and nuts. It is very seductive to look at one Act, whether it is the Food Standards Act or the Consumer Protection Act, and say, "Right, what we have to do is apply those safeguards in this particular Bill". But, that then fails to look at the subject matter of the Bill in question. We are talking far more about intellectual property here than about physical property.
Of course, under the Consumer Protection Act one could be talking about seizure of quite a large quantity of goods. In the case of a container load of toys imported from abroad, which are unsafe or whatever, then of course one is talking about seizure and very heavy economic compensation if the wrong decisions were taken, and so on and so forth. The same applies under the Food Standards Act. But here we are talking about advertisements and promotions. We are probably not in the short term talking about displays, but we may be in the long term. We are talking about the more non-physical aspects of trading under the Bill. Introducing a series of matters relating to trade secrets, appeals and compensation drawn from other Acts does not add a great deal to the Bill.
The Conservative Benches are normally the first to reject unnecessary regulation in such circumstances, and I hope that they will be consistent in their behaviour in respect of such matters.
Baroness Noakes: I thank the noble Lord, Lord Clement-Jones, for that. I find it curious that he should stigmatise protection as regulation. Those of us on these Benches will always support the building in of protections, especially for the kind of businesses that would be affected by onerous legislation. That is the hallmark of these Benches.
Several points were made, rejecting these modest protections against things that might go wrong. The noble Lord, Lord Filkin, said that the Government had had no representations. It is not the job of the House of Lords simply to pass legislation on the basis of representations. The hallmark of your Lordships' House is that we will carefully consider the way in which legislation is likely to work in practice. Indeed, we have an obligation to think of the practical implications, regardless of whether any of us has received representations to a particular effect.
The point has also been made that we may be talking about things that are of small value compared to the things that might be given protection under the Consumer Protection Act 1987. Again, it is hard to resist protection for individual businesses on the basis that something might be of less value if attacked under the provisions of this Bill, rather than a pre-existing Act.
We do not know whether the powers in the Bill could be used to take things that are extremely valuable to the particular business or individual from whom the items are removed. In particular, a trading standards officer could take physical property, including hard disks, as the Minister said, which could be of significant value to the operation of the business.
In respect of Amendment No. 84, the Minister offered a civil action in place of the criminal penalty that the amendment proposed. Why should the person who has been wrongly subjected to the powers of the Act have to take a civil action? Why can he not look to the powers of the law to deal with the improper use of the powers created by the Act?
I am unimpressed by any of the responses that have been given on the amendments. Today is not the day to seek the opinion of the House, and I shall reflect further. However, we may well want to return to those aspects of the Bill on Report. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 14, as amended, agreed to.
[Amendments Nos. 85 and 86 not moved.]
Lord Naseby moved Amendment No. 87:
- Page 9, line 19, leave out "six" and insert "three"
The noble Lord said: In the absence of my noble friend Lord Palmer—
Baroness O'Cathain: The noble Lord, Lord Palmer, sits on the Cross Benches.
Lord Naseby: The noble Lord may be a Cross-Bencher, but I have known him for the best part of 50 years, and I treat him as a friend. I hope that that is acceptable to the Committee.
As originally drafted, the Bill provided for imprisonment on a summary conviction for a term not exceeding three months, or a fine not exceeding level 5. That was increased in Committee in the other place when the Bill was first introduced, in the last Parliament, so as to make the maximum term of imprisonment on summary conviction six months—in other words, a doubling of the term. At the same time, a new provision was added for conviction on indictment to a term of imprisonment of up to two years or an unlimited fine or both.
The amendment would revert to the penalties originally contained in the Bill. The penalties as they now stand in the Bill seem to my noble friend and me to be excessive, given the nature of the offence and the possibility of inadvertent breaches, which are not likely among the manufacturers, but which may well occur in the retail trade, especially at the smaller end of the trade. I hope that the sponsor of the Bill will recognise that the enhancement of the penalties is rather excessive.
I do not need to make detailed comparisons, but I shall mention one. Under the Misuse of Drugs Act 1971, possession of a class C drug carries a maximum penalty on indictment of two years' imprisonment and an unlimited fine. That provision may perhaps be relaxed in respect of cannabis, with prosecutions not being pursued on mere possession of the drug in small quantities. What then is the justification for regarding a breach of an advertising ban on tobacco products, which are not illegal, as more serious than the possession of an illegal drug? I beg to move.
Lord Filkin: I commend the noble Lord, Lord Naseby, for his industry on the Bill. We certainly cannot claim that it is untested at this stage.
The noble Lord rightly draws attention to the fact that the earlier government Bill specified just three months—in other words, the case would be triable summarily. If memory serves, it was as a result of Opposition amendments in the House of Commons that it was increased to six months—in other words, an indictable offence. There is a certain ping-pong going on, which could be played for some time. I hope not.
Lord Skelmersdale: Perhaps I may briefly interrupt the Minister. Earlier today I said that it grieved me to have to argue with my noble friend on the Front Bench. I do not see any good reason why my noble friend Lord Naseby should disapprove of actions taken by the Opposition in another place.
Lord Filkin: I thank the noble Lord, Lord Skelmersdale. Perhaps I may move on to the substance of my response.
Clause 16 in its present form provides a wide range of penalties which the Government believe will enable courts to ensure that the punishment fits the crime. Indeed, there could well be a wide range of circumstances involved under the terms of the Bill. They would range from one extreme, the corner shop which had broken the law, right through to a multinational corporation which had sought vigorously and persistently to promote tobacco products in the United Kingdom, despite the provisions of this legislation. Because of the range of circumstances, I urge the Committee to reject the amendments which, if adopted, would reduce the maximum penalties available and so would not provide a sufficient deterrent for persistent offenders with deep pockets.
The option of conviction on indictment opens up the possibility of unlimited fines which will deter the serious corporate offender. At the other end of the scale, first offences committed by small retailers would attract relatively low fines in a magistrates' court, being enough to remind everyone that the law exists and will be enforced. Therefore the Bill in its current form allows for both circumstances to be dealt with appropriately.
As was said earlier, trading standards officers see their role as twofold. They are there to educate employers and prevent the law being broken first and foremost. They are also there to enforce the law. They will judge each case on the basis of its individual merits, using similar examples where appropriate.
The Government do not believe that these are excessive penalties. Clause 16(2) currently provides for up to two years' imprisonment on indictment. It we are going to make these offences triable on indictment, we could not provide for less. There are literally hundreds of other offences with similar tariffs. The Food Safety Act 1990 has such a penalty in relation to the offence of rendering food injurious to health with intent to sell it for human consumption or selling food for human consumption which fails to comply with food safety requirements. The Betting and Gaming Duties Act 1981 provides for imprisonment for up to two years for the offence of providing a gaming machine in contravention of restrictions set out in the Act. Other Acts make similar provisions.
If enacted, the Bill would not imprison innocent shopkeepers for years or close down their businesses. Courts will take into account all the circumstances when sentencing, but they must have appropriate sentences for offences at both ends of the scale; that is, both for minor first offences and for serious, large corporate offenders. For those reasons, we suggest that the amendment would be inappropriate.
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