House of Lords
Friday, 1st March 2002.
The House met at eleven of the clock: The LORD CHANCELLOR on the Woolsack.
Prayers—Read by the Lord Bishop of Hereford.
Sex Discrimination (Amendment) (No. 2) Bill [HL]
11.5 a.m.
Lord Faulkner of Worcester: My Lords, I beg to introduce a Bill to amend the Sex Discrimination Act 1975; to make provision with respect to discrimination concerning the provision of goods, facilities, services and access to governance by private member clubs; and to continue to permit wholly single-sex clubs and sporting events. I beg to move that this Bill be now read a first time.
Moved, That the Bill be now read a first time.—(Lord Faulkner of Worcester.)
On Question, Bill read a first time, and to be printed.
Tobacco Advertising and Promotion Bill [HL]
Clause 1 [Meaning of "tobacco advertisement" and "tobacco product"]:
Lord Skelmersdale moved Amendment No. 1:
- Leave out Clause 1 and insert the following new Clause—
The noble Lord said: My Lords, it falls to me to start proceedings today on the first amendment—a day which I hope will not last too long as we have had a full and lengthy innings on the Bill. In fact, I observe that tomorrow will be the three-month anniversary of the Second Reading. That is fairly dilatory in legislative terms. As we all know, normally a Bill is expected to take about six weeks to pass through this House.
On Second Reading I ventured to congratulate the Government on having a definitions clause at the very beginning of the Bill. I also said that I believed it was essential to amalgamate all references to the Internet and electronic communication into one part of the Bill, as opposed to the current drafting of scattering them willy-nilly throughout it. It was with those two thoughts in mind that I tabled Amendment No. 1.
On the first point, it struck me as more than a little confusing to have not one but two definitions clauses, one at the beginning and one at the end, especially as the current Clause 20 finds it necessary to refer back to Clause 1. At the very least, my amendment would save some words from going onto the statute book; namely, lines 30 and 31 on page 10 of the Bill. It is my contention that for the purpose of clear interpretation it is more appropriate to have the whole of the interpretation clause at the beginning of the Bill. Over the past decade or so there have, of course, been many precedents of which I shall cite just three: the Water Consolidation (Consequential Provisions) Act 1991; the Charities Act 1992—which is rather different in that it is a long and complicated Act divided into parts and under which the first section in each part of the Act is an extensive interpretation section—and, more recently, as the Government are keen on their own Bills, surprise, surprise, the Nuclear Safeguards Act 2000. So, clearly, there is nothing intrinsically wrong with my approach.
Secondly, I believe that the interpretation clauses, wherever they are placed, should embody those meanings which are necessary for the clear comprehension of what follows in the Bill—any Bill. So far as this one is concerned, I do not propose that the interpretation clause should include meanings which are relevant only to the understanding and scope of one individual clause. Meanings which have relevance and application to only one clause are logically and properly, I believe, left in that individual clause. Thus, my amendment, for example, leaves the meaning of "specialist tobacconist", "a coupon" and "a sponsorship agreement" to the relevant Clauses 6, 9 and 10 respectively.
I have clearly not done a straight transposition. Although the Minister has driven me off my former intention of grouping all the Internet provisions together, I believe that in many cases we need common phraseology and, more importantly, the right form of words in the right place. I have, therefore, sought to expand the definition of "publishing" to make it much more comprehensive. Currently, Clause 20 explains that the term "publishing" includes any means of publishing, in particular, publishing by any electronic means, and gives the Internet as an example. As we discussed at great length in Committee, publishing is
Clause 2 only provides a clue. In subsection (3) of Clause 2 we find that distributing includes transmitting in electronic form, participating in doing so and providing the means of transmission. Thus, my new definition makes clear what is meant by reference to distributing a tobacco advertisement. The phraseology follows that used for publishing and draws on what is contained in Clause 2.
There are various consequential amendments which I hope I need not go into. For the moment I would say that I have taken the meaning used for "electronic means" in the new clause from EC directive 2000/31, the so-called "e-commerce directive" and the Commission's proposal for an amended proposal on certain legal aspects of electronic commerce in the internal market. I have done so to ensure that the meaning is consistent with other relevant legislation. The United Kingdom has still not transposed that directive into national law. Should it do so in terms that define "electronic means" any differently from those stated in the directive, the meaning in this new clause should be amended at that time. Of course, the famous Clause 7, the Henry VIII clause to which reference was made my noble friend Lord Lucas in Committee, would give the opportunity to do that.
I hope that I have said enough to cover the reasons for, and the content of, my amendment. I beg to move.
Lord Filkin: My Lords, I am genuinely impressed by the industry and application that the noble Lord, Lord Skelmersdale, brought to his attempt to order the Bill in his suggested way. I wish that my response could be slightly more positive.
As the noble Lord said, the amendment would bring together Clause 1, which defines "tobacco advertisement" and "tobacco product", and Clause 20, which provides an interpretation of what is meant by "appropriate Minister", "public", "purpose", "tobacco advertisement", "tobacco product" and "publishing". It also includes in subsection (2) the wording of Clause 2(3) relating to distribution. It further provides a new definition: of "electronic means". As the noble Lord said, he has drawn on the wording of the technical standards directive for "electronic means".
The definition of "electronic means" appears to have been imported, as suggested, from the technical standards directive. Under that directive, "by electronic means" is one of the four criteria that define an "information society service"; the others are "normally provided for remuneration", "at a distance" and "at the individual request of a recipient of a service". "Electronic means" is taken to include online entertainments offered on the Internet, including music on demand, video on demand and sports events on demand. It also includes services for accessing the Internet and the World Wide
While I appreciate the noble Lord's desire to clarify what is covered by the Bill, the Government believe that the amendment is not necessary. As we shall see when we look at its use in the context of the other amendments tabled by the noble Lord, Lord Skelmersdale, it misses the central point that websites, almost uniquely, can be accessed by almost anyone at any time. Further, the Government believe that the definitions currently contained in Clauses 1 and 20 are appropriate. We therefore oppose the amendments and the proposed deletions from the clauses.
I turn to Amendment No. 4, which I also ask noble Lords to reject. It would mean that Clause 2(3) became part of the definition in Clause 1. Subsection (3) elaborates on what is meant by a distribution in subsection (2). As the Bill is drafted, later references to distributing and distribution refer back to Clause 2(3), and so the same effect is achieved by the current drafting. We therefore do not feel that there is added value in the amendment. On that basis we recommend that the House rejects it.
On Amendment No. 5, Clause 2(4) provides an exemption for tobacco advertisements on websites that are accessed in the UK if the person responsible for the website does not carry on business in the UK. However, any person distributing tobacco products within the UK who carries on business in the UK will be covered by the Bill. As I have already suggested in commenting on the noble Lord's proposed amendment to define "electronic means", we reject Amendment No. 5 because we feel that it misses the point of Clause 2(4). Websites, unlike almost any other form of electronic advertisement, are accessible beyond their intended target audience and across borders. For example, a French online advertiser wishing to advertise tobacco for sale only to Frenchmen cannot plausibly restrict access to his website to Frenchmen. Once on a website, it is there for all to see—and the viewers can, I hope, also read French. That is what is unique about websites and why the clause specifically addresses them. The need is simply not there for other "electronic means".
If the noble Lord's concern is to prevent the broader category of "information society services" from falling within the scope of the offence in Clause 2(1) if they are provided from overseas, I reassure him that that is precisely what the Government's implementation of the e-commerce directive will achieve. I understand that the DTI will be consulting publicly on draft regulations in the very near future.
I also ask the House to reject Amendment No. 20 because, as I have already said, the Government do not support the deletion of Clause 2(3). We believe that it and Amendment No. 24 are unnecessary.
When considering the considerable amendments tabled by the noble Lord, Lord Skelmersdale, we wondered whether there lay behind them an understandable and proper concern to try to ensure that the Bill was compatible with the e-commerce
Like other member states, the United Kingdom is required to incorporate the provisions of the e-commerce directive into UK law. It will do so by making regulations under the powers contained in the European Communities Act 1972. The DTI is implementing the directive generally. The Treasury is doing so in the specific area of financial services. Both departments will launch consultations on draft regulations in the very near future. By virtue of the European Communities Act, the implementing regulations may make any necessary changes to existing primary legislation to make it compatible with the directive. As the House would expect, the Government give the firm commitment that were there to be any inconsistency between the Act and the e-commerce directive, the Act will be brought into accordance with it.
Lord Clement-Jones: My Lords—
"INTERPRETATION
(1) In this Act—
"appropriate Minister" means—
(a) in relation to England, Wales and Northern Ireland, the Secretary of State, and
(b) in relation to Scotland, the Scottish Ministers,.
"electronic means" means a service that is sent initially and received at its destination by means of electronic equipment for the processing (including digital compression) and storage of data, and is entirely transmitted, conveyed and received by wire, by radio, by optical means or by other electromagnetic means,
"public" means the public generally, any section of the public or individually selected members of the public,
"purpose" includes one of a number of purposes,
"tobacco advertisement" means an advertisement—
(a) whose purpose is to promote a tobacco product, or
(b) whose effect is to do so,.
"tobacco product" means a product consisting wholly or partly of tobacco and intended to be smoked, sniffed, sucked or chewed.
(2) In this Act, references to publishing include any means of publishing and include, in particular, publishing by any electronic means, and references to distributing include any means of distributing and include, in particular, distributing by any electronic means, and distributing includes transmitting in electronic form, participating in doing so, and providing the means of transmission."
11.15 a.m.
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