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Lord Faulkner of Worcester: My Lords, I am most grateful to the sponsor of the Bill for agreeing to accept my amendments, and for the support of the noble Lord, Lord Skelmersdale, my noble friend the Minister and the noble Lord, Lord Peston.
On Question, amendment agreed to.
Lord Skelmersdale moved Amendment No. 6:
- Page 2, line 17, leave out "particular"
The noble Lord said: My Lords, in introducing the amendment I should like to tell the noble Lord, Lord Clement-Jones, that I am never surprised when he agrees with me; I am surprised only when he does not. The noble Lord and Ministers both here and in another place have repeatedly said that they have no intention of making it illegal to sell tobacco and tobacco products and have no desire to put anyone out of business. Unfortunately, by one provision of the Bill, I am sure that they will.
I have declared my interest in the mail order trade many times before. Mail order companies flourish because they send out catalogues describing their wares—what they are, how to order them and how much they cost. Such catalogues are sent to all recent customers and naturally generate a certain amount of business. As noble Lords will know, one needs a certain critical mass to succeed in business. It was the lack of that that put so many e-commerce businesses out of business. No mail order business can survive simply by relying on customers making contact with the trader. The trader needs to be able to make contact with his customers and to be able to use material promoting his goods or services in general terms, not at their particular request each and every time that they want a catalogue or product.
In the case of tobacco products, a code for such communication currently applies. In order to be able to hear from the supplier, the individual has formally
to register the fact that he wishes to hear from the supplier and provide his personal details, such as name, address, age and status as an existing smoker. There is no doubt that Clause 4(1)(b) constitutes a severe restriction on freedom of expression and freedom to receive and impart information. Pace my noble friend Lord Campbell of Alloway, it is notable that those are rights under Article 10 of the European Convention on Human Rights.Under the present code for communication with smokers, every person, having registered their details as I described, is free to change his mind and have his name removed from any database. That right is also provided under the Data Protection Act 1990. The opinion survey that the government have previously cited is not proof of proportionality for the restriction of freedoms that Clause 4(1)(b) imposes. Like me, the Direct Mail Association, with which I have been in contact, approves of the general purpose of the Bill, but it tells me that that paragraph amounts to an excessive and disproportionate restriction of the individual's right to respect for his correspondence.
There is a way out of that conundrum and the amendment is a probing amendment, rather than one that I intend to press to a Division. Ministers have the opportunity to make the mail order code to which I have referred a statutory provision, which would sort out the problem once and for all. With that thought in mind, I beg to move.
Lord Filkin: My Lords, this is a debate about reasonableness and proportionality that will be familiar to those of us who debated an amendment tabled by the noble Lord, Lord Naseby, in Committee. The amendment refers to Clause 4(1)(b), which sets out an exception to the general prohibition of advertising. That exception is made because it was thought unreasonable not to allow a person who had requested an advertisement or information about cigarette products to receive it. Although it may be surprising, the Bill allows that to take place. It does not, however, allow the repetitious use of that request into the future.
The noble Lord, Lord Skelmersdale, is right to say that it is a restriction. One could—but will not—debate whether it is severe. The Government's belief that it is a necessary restriction goes back to debates and discussions we have had during the rather lengthy passage of the Bill. It is necessary because, in the nature of their commercial transactions, businesses, if inhibited in one way from promoting their product, will naturally be inclined to seek every other possible means of doing so. They would be vigorous in using direct mail shots were they not able to do normal commercial advertising. It is necessary, if the purpose of the Bill is to be achieved, that that is inhibited in the reasonable way set out by the Bill.
This product makes people ill and shortens life for a large number of people who consume it. It is addictive and hard to give up. It is inevitable, if the amendment were to be made, that cigarette companies would, in the nature of their business, work hard to use direct
mailing in a way that we have not seen before to try to encourage people to take up smoking or continue to smoke. For those reasons, the Government believe that we should not agree to the amendment.For the light amusement of the House, I draw Members' attention to a report in The Times today. The chairman of British American Tobacco is on record as saying that people are better off avoiding tobacco. He goes on—generously, I think, if he is reported correctly—to say:
- "I think [politicians] have a perfect right to try to control the level of smoking, from a health ministry kind of approach".
Lord Clement-Jones: My Lords, I am afraid that, on this occasion, I shall break my habit—not quite of a lifetime—and disagree with the noble Lord, Lord Skelmersdale, despite his extraordinary optimism. I must ask the House to reject the amendment. I appreciate the noble Lord's motives for proposing the amendment and his references to the mail order code. No doubt, there are all sorts of voluntary codes that might be brought into effect. However, the amendment risks leading, unexpectedly, to truly awful consequences for the Bill.
With the amendment, we are into coach-and-horses territory, and they are galloping away at this moment. The amendment would make it possible for a tobacco company to create or buy a database and continue to operate direct mail schemes as if the Bill had never come into force. If a smoker or non-smoker had, at any time in their life, requested any information about tobacco products, they could be inundated with direct mail from tobacco companies. That is far from the intention of the exception. The intention is too ensure that, if a customer requested information from a tobacco company—about the additives used in their products, for example—he or she would get a response. That is the aim of the subsection; it is not to give blanket exemption to direct mail activities.
We have heard on several occasions that advertising bans work to drive down consumption only if they are comprehensive. The amendment would destroy any hope of the legislation being comprehensive. I urge the noble Lord, in the strongest terms, to withdraw it.
Lord Skelmersdale: My Lords, the noble Lord, Lord Filkin, says that it is a restriction and that it is intended to be. Equally, he and other Ministers have said that it is not anyone's intention to put people out of business. There is an obvious conflict there. The noble Lord, Lord Clement-Jones, says that the amendment would drive a coach and horses through the Bill. It is not intended so to do. The amendment would ensure that legitimate forms of trade could continue. I shall certainly look for another way of achieving that object.
If tobacco companies were to set up their own mail order shop—for want of a better word—and advertise their catalogue, it would be illegal under the Bill. So there is not quite the danger that the noble Lord, Lord Clement-Jones, referred to. I did not intend the debate
on the amendment to be particularly vigorous; it is an inquiring amendment. I have inquired, and I shall study the results of my inquiry. It would not surprise me if I felt the need to come back next week. I beg leave to withdraw the amendment.Amendment, by leave, withdrawn.
12.15 p.m.
Lord Luke moved Amendment No. 7:
- Page 2, leave out line 20 and insert—
The noble Lord said: My Lords, I must first state my interest. I enjoy very much the odd cigar.
In Committee, the Minister said that it was not the Government's intent to hinder the importation of foreign publications that carried tobacco advertisements so long as their principal market was outside the United Kingdom. Later, in response to a question from my noble friend Lord Howe, he said that he had not provided a specific definition of "principal market" because it would vary according to each circumstance.
He quoted the example of a publication with 40 per cent of its sales in the United Kingdom and the remaining 60 per cent spread between half a dozen other countries, suggesting that the UK might well be said to be the principal market, even though registering considerably less than half of the total sales. The Minister did not, however, draw any conclusions, not wishing, I believe, to define terms too tightly, thereby risking creating loopholes that could be exploited so that we should not be able to bring to book the perpetrators of any offence.
If I have it right, that is surprising. How will overseas publishers be able to determine whether any of their publications containing tobacco advertisements may be distributed in the UK? Is the Minister suggesting that they should simply wait until they are accused of committing an offence? In that case, it would be for the courts to decide. Is that an acceptable scenario? It is not, and it may also be against the spirit of the World Trade Organisation. The Minister should either accept the amendment or, together with the noble Lord, Lord Clement-Jones, come forward with an alternative that provides the essential element of certainty for foreign publishers and, of course, the distributors of their publications in this country.
It is for Parliament to define criminal offences and the actions that may lead up to them. The question of whether a publication has the UK as its principal market should not be left for pragmatic interpretation at the time, as the noble Lord, Lord Clement-Jones, said in Committee. That is neither proportionate nor balanced. I beg to move.
"of which the total number of publications distributed in the United Kingdom (or any part of it) is less than the total number of publications distributed outside the United Kingdom,"
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