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Lord Clement-Jones: I must confess that I am not entirely clear about the background to the introduction of the indictable offence in Clause 16, or who instigated it. However, I suspect that the motives of those introducing it were to provide greater protection. If an offence is to be triable "either way", as the criminal lawyers refer to it, then the defendant is granted the benefit on indictment of having a Crown Court hearing and a circuit judge to try the offence. I suspect that is why paragraph (b) has been put in.
You cannot have an indictable offence unless you have those forms of offences. You cannot have it both ways: either there is the protection of the Crown Court and the full mode of trial on indictment or there is the possibility of a trial in the magistrates' court. I am sure that most noble Lords would agree that offences may or will be committed under the terms of the Bill which are so serious that they need to be tried on indictment, whether that is the choice of the defendant or of the prosecution, and that in certain circumstances the fine should be more than £5,000 or the prison sentence longer than six months. Here I refer to pretty major cases, those of corporate abuse on a large scale. But one needs the power to be able to impose a fine of more than £5,000 because that sum would be rather like receiving a parking ticket for a multinational corporation. One has to consider far larger fines for the legislation to bite and to ensure that the behaviour in question is not repeated.
I do not think that the penalties are disproportionate, but rather that they are fair. It is clear that they were considered quite closely in the other place during deliberations on the previous government Bill. I believe that those deliberations resulted in the right conclusion.
Lord Naseby: I have listened with care to the Minister and to the proposer of the Bill. Although I am not a lawyer, the element I find strange is why the provision should be that much stronger than anything in the consumer protection Acts where the problems encountered will be at least as great, or even greater, in particular when dealing with the dimension of safety. It is the differentiation that appears in this Bill from the consumer protection Acts that I find rather difficult to work out. Why should the two be so different? At this stage I shall withdraw the amendment and reserve the right to return to the matter.
Amendment, by leave, withdrawn.
2.15 p.m.
Lord Campbell of Alloway moved Amendment No. 88A:
- Page 9, line 22, at end insert—
The noble Lord said: I move this amendment at the request of my noble friend Lord Brougham and Vaux. I declare an interest having drafted the amendment—at no one's request—the first time around on the Government's Bill when I was not a member of the Joint Committee on Human Rights. I thank my noble friend Lord Brougham and Vaux for having tabled the amendment.
I have already declared my other interests. I speak only for myself but, as the issue has been discussed and is relevant, I should say that membership of the club in no way increases the consumption of tobacco. When we meet, wives and children and so on are not there. They are private affairs attended by members of the club and of the tobacco trade. They are certainly not exercises in commercial sponsorship of any kind. I have been a member for years and I change the brand of tobacco that I smoke either for convenience or through choice. My membership of the club has absolutely nothing to do with my personal, private and rather disgusting habit.
My speech will go wide of the purpose of any other amendment. It seeks to deal with the reality of the ultimate resolution, which will be inevitably a matter for the courts. They will have to resolve a crucial and complex—
Lord Peston: Perhaps I may interrupt the noble Lord for clarification. Is he addressing Amendment No. 88A?
Lord Campbell of Alloway: Yes.
Lord Peston: I am a bit lost as to what it has to do with what the noble Lord has been talking about—membership of clubs and so on. Have I got the wrong copy of the amendment or what?
Lord Campbell of Alloway: I do not know what the noble Lord has got, but I am grateful for his intervention, as I always am. Perhaps I may continue.
The keystone of the structure of the amendment is the final subsection which prohibits, on a conviction which may be set aside on appeal, the imposition of a penalty until the rectitude of that conviction has been determined on appeal by either the European Court of Justice or the ECHR. If it will assist the noble Lord, Lord Peston, the clause is concerned with penalties.
There is no doubt that those concerned with the manufacture and sale of tobacco would wish to maintain that the proposed regime, if enacted, would not be prescribed by law, as explained in paragraph 14 of the report of the Joint Committee. There is no doubt that this is a restrictive regime on advertising, promotion and sponsorship. It is, prima facie in law, in restraint of trade and unlawful unless justified by those who propose it. It is a burden—at this stage it is not interesting to say whether or not it is a heavy burden—that they have to discharge.
It is inevitable that a test case will be mounted in our courts, which will apply EC law, which is between member states and is supranational. Having found the facts, our courts will refer the matter to the European Court of Justice at Luxembourg for its opinion. It is equally plain from the report of the Joint Committee that that would be the position not only with Luxembourg but with the Court of Human Rights at Strasbourg. It is well known that the court at Luxembourg has already struck down certain articles of Council Directive 98 as ultra vires.
This is not the time to enter into any detailed argument and there is little more that I have to say. However, I ought to place certain matters on record as this is a probing amendment and will obviously have to be reconsidered in the light of such reactions as I hope I may evoke.
In the context Article 10 of the ECHR, the problem is one of justifying the regime as proportionate. A similar problem arises with Articles 28 and 49 of the EU law. The matter is dealt with in paragraphs 12 to 25 of the report. Perhaps I may leave it like that, so that it is on record, and perhaps we can return to the matter. It takes too long to deal with in any other way.
At paragraph 23 the point is taken, relevant to Community law and ECHR law, that there should be clear evidence that nothing short of a total ban on tobacco advertising and sponsorship could be expected to achieve its legitimate object—that is, the public health safeguard and whether the effect of the ban on advertising would be to decrease overall consumption. That is dealt with at paragraph 33.
It will be for the courts to evaluate the evidence as to whether those who support the regime can establish beyond all reasonable doubt—it is a criminal case—that without this regime overall consumption would increase, the young would be induced to smoke, and so forth. The matter cannot be decided in this House; it cannot be decided in our Parliament. The only way in which this legislation can be dealt with is by the courts. First, they have the difficult task of finding the facts on the evidence—of course, there is a total conflict of fact. Then, they must decide whether, within the meaning of
Baroness Finlay of Llandaff: I would not dare to comment on the latter part of the amendment, but perhaps I may comment on the first paragraph. The amendment states that it must be established beyond reasonable doubt that tobacco advertising would increase overall consumption or induce young persons to smoke. That implies that a lawyer could argue that you were excluding all the data that affected older people and all the data on passive smoking. Removing those numbers from the data collected in evidence, leaves numbers potentially small enough to make it impossible to prove scientifically (statistically) that "p<0.05"—in other words, in terms of the data, that this was not a probability; it was not a 1:20 instance due to chance. That is the nature of the scientific statistics, whereas the figure known as the 95 per cent confidence interval is used. I have a real concern that restricting the allowable data to that extent and honing the issue down so enormously would make a mockery of the use of scientific data anywhere.
The word "consumption" is also potentially misleading, because there is no definition of it. I foresee endless arguments over whether it related to consumption of different numbers of cigarettes, of different strengths of tobacco or of particular carcinogens or agents in tobacco. Proving that in relation to passive smoking would be particularly difficult.
The other problem is that the data prior to the introduction of the Bill were not collected with a view to being able to collect them afterwards. Scientifically, prospective data are much more powerful than retrospective data.
I have a genuine concern that the amendment could put all of scientific data on trial.
"(3) In the absence of evidence which establishes beyond reasonable doubt that tobacco advertising as prohibited by section 2 or 3 of this Act or by regulations made under this Act would increase overall consumption or induce young persons to smoke, no penalty may be imposed under or by virtue of any provision of this Act if, at the conclusion of the hearing on an alleged offence, notice of intention is given—
(a) to seek a judicial declaration of non-conformity of the Act with the provisions of articles 8 or 10 of the European Convention on Human Rights; and
(b) to apply to the European Court of Justice for a declaration that, contrary to the provisions of the European Union Treaty, the Act distorts competition within the single market and inhibits the freedom to provide goods and services.
(4) Steps to institute proceedings under subsection (3) above must be taken within 28 days from the conclusion of the hearing on the alleged offence.
(5) A penalty may only be imposed after it has been determined judicially that the Act is in conformity with the European Convention on Human Rights or the European Union Treaty."
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