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Lord Palmer: My Lords, I feel terribly guilty. This is the first time I have had the chance to appear in person on the Bill, such are the logistic problems of living in Scotland and parts of the Bill being taken on Friday.
Many of your Lordships know that I think that tobacco smoking is the most revolting habit there is, albeit that I indulge myself.I support the amendment. As the noble Lord, Lord Luke, said, the fundamental basis of the amendment is that whether a publication has the UK as its principal market should not be a matter left, as the noble Lord, Lord Clement-Jones, said in Committee, for pragmatic interpretation at the time.
Baroness O'Cathain: My Lords, I rise to ask for clarification of the word "publication" as it is used in the amendment. Surely it would have been better to refer to "copies of issues" of a publication, because the word "publication" is far too wide a term.
Lord Lucas: My Lords, even though the amendment is well meant, I hope that the noble Lord, Lord Clement-Jones, will not accept it. If I was in the business of producing such a magazine, I would simply take a sufficient number of copies and leave them in a Paris railway station. By doing that I would have set aside the conditions of the amendment. The way that the provision is worded at the moment is pretty much perfect.
Lord Peston: My Lords, I should like to comment briefly before the principal Opposition spokesman speaks on this matter. On the face of it, it never occurred to me that this could be a problem. When I first saw the amendment I thought about all the different publications that I read and I could not find a practical example of which I have any experience. I wonder whether the noble Lord, Lord Luke, has in mind a particular journal or publication to which we would all be extremely sensitive that could run foul of the Bill as it stands.
I have racked my brains to think of a relevant example, although I read only posh, intellectual stuff. None the less, I cannot think of a single case that could possibly arise in connection with the Bill.
Earl Howe: My Lords, the long and the short of the matter is that we simply do not know what the phrase means. I think that we do have a right to know exactly what it means.
Whenever it is suggested to the noble Lord, Lord Clement-Jones, that a term used in the Bill should be defined, he has a habit of resisting such suggestions on the grounds that it would risk creating legal loopholes. I would reply to that by saying that I do not wish to create legal loopholes in the Bill any more than does the noble Lord, but in this case, surely he has presented us with a false dichotomy.
There are only two possible meanings of the phrase, "principal market". The first is the meaning proposed in the amendment while the other is to say that a principal market is the largest single slice of a total market, even if that slice amounts to less than 50 per cent. If the Government and the noble Lord, Lord Clement-Jones, wish to guard against both possibilities then why cannot the Bill do just that? As
my noble friend pointed out, it really will not do simply to say that it is a matter of pragmatic interpretation. Where does that statement leave magazine and newspaper publishers who want to understand exactly what the law is?The Minister said that he did not think that the foreign owners of publications would be put off from allowing their publications into the UK simply because there is no rigid definition. While some foreign distributors might not be put off, I am not sure how many would be comfortable about taking a chance with regard to whether they were operating within the boundaries of UK law. For that reason, I applaud the spirit of my noble friend's amendment because I believe that we are now due for some clarification on this matter.
Lord Monson: My Lords, I had not intended to intervene on this amendment, but I am prompted to do so by the intervention of the noble Lord, Lord Peston, who told the House that he reads only intellectual publications. He will be able to confirm, therefore, my supposition that the Economist sells rather more copies in the United States than it does in this country. I do not suppose that it contains any tobacco advertisements, but I wonder how that publication would be treated, both under the terms of the amendment before us and by the Bill as it stands?
Lord Campbell of Alloway: My Lords, I support the amendment. It provides a means of clarifying the nature of a criminal offence. Surely there cannot be much objection to that.
Lord Hunt of Kings Heath: My Lords, this has been an interesting discussion. I shall start my response by saying that I believe that the Bill as currently drafted is a sensible provision which has been designed so that the importation of foreign publications will not be hindered, even though they may carry tobacco advertisements—so long as their principal market is outside the United Kingdom.
I suspect that the amendment before us is somewhat technically deficient since it could be taken to refer to the number of publications produced by a single publisher, rather than what I believe is intended, which is the number of copies of a single publication; a point made by the noble Baroness, Lady O'Cathain. However, I accept that it is still in the nature of a probing amendment.
The essential point here is that we do not want to inhibit the importation of foreign publications. It is perfectly understandable why the noble Lord, Lord Luke, wants to see as tight a definition as possible. But, as ever when we debate such matters, the problem always arises that the tighter the definition, the more that is excluded and the greater is the risk of loopholes and inconsistencies. As a result, the more likely it is that the provision will not be able to meet all the possible circumstances.
I know that the noble Lord, Lord Clement-Jones, has often expressed a fondness for lists in legislation, but I am hoping that on this occasion he will not be tempted down that route. Notwithstanding the fears raised by a number of noble Lords, I think that in the vast majority of cases, the principal market will be pretty clear and that trading standards officers will, as ever, take a common-sense approach to these matters. It is always possible to point out potential anomalies, but I believe that that serves only to reinforce the strength of the current wording, which seeks to strike a sensible balance.
The noble Lord, Lord Luke, referred to comments that I made in Committee. I agree that it is helpful to look at these matters on a case-by-case basis. I also agree that if one were looking at a situation where there were two markets, in which one had a 65 per cent share while the other had a 35 per cent share, then the noble Lord's amendment would have some merit. However, what is the position with regard to a magazine which has four markets, the UK share of which is around 40 per cent while the other three countries have 25 per cent, 25 per cent and 10 per cent respectively? This example was cited when we debate the matter in Committee. In that case it would be reasonable to say that the UK is the principal market as it has the highest individual market share. But then it would not have passed the test raised by the noble Lord, Lord Palmer.
I believe that, within the general intent not to inhibit the importation of foreign publications, the current wording probably provides a sensible balance, with trading standards officers themselves expected to take a common-sense approach, and ultimately allowing the courts to decide on the basis of the evidence before them.
Lord Clement-Jones: My Lords, I thank the noble Lord, Lord Luke, together with the noble Lord, Lord Palmer, for putting forward the amendment. It continues some of the discussions that we held in Committee.
The issue of the principal market for a publication is important and is not a matter that easily can be captured in a few words in statute. In my view, it is best that this should be decided on a case-by-case basis. The reason for that is, as the Minister has just pointed out, that it would depend substantially on the circumstances of each case. A uniform definition will not lead to sensible outcomes in every case.
For example, under the definition proposed by the noble Lord, Lord Luke, a magazine which sells 49 per cent of its copies in the UK while the other 51 per cent is spread through another 100 countries would not be deemed to have the UK as its principal market. That strikes me as being rather odd. In such a—admittedly hypothetical—case, it seems quite clear that the principal market is, in fact, the United Kingdom. We could avoid the anomaly by phrasing the definition in a slightly different way, perhaps by altering the phrasing of the definition or by describing the
principal market as the country in which the largest number of copies are sold. Having done that, however, there could well be other ways in which a magazine could have a principal market that might escape. I have a feeling that it would throw up yet more problems.In essence, I feel that to try to define the term too closely risks creating unnecessary loopholes which will be exploited. Conversely, I believe that by allowing the phrase to bear its natural meaning, we will avoid the problems that I have set out. In all the examples which have been cited by noble Lords, both today and in Committee, I see no problem in determining the principal market according to common sense.
In Committee, the noble Earl, Lord Howe, raised the case of Hello! magazine. While it is produced by a Spanish publisher, there is a UK edition which is produced in the UK and written in English, of which the overwhelming majority of copies are sold in the UK. It features interviews with UK celebrities and aristocracy who are not newsworthy in any other country and it carries advertising for brands which are available only in the UK. Its principal market is the UK.
On the other hand, the Spanish version of the magazine, called Hola! and not Hello!, does not have its principal market in the UK. The two editions already carry different advertising, so having to remove tobacco advertising from one edition and not the other will cause no problems.
I believe that to be the case with the Economist. The US edition is separate from the UK and European editions. I do not believe that advertisements for our major companies and banks are carried in the US edition of the Economist.
To further emphasise this point, my information is that no publication produced in the EU has more than 5 per cent of its circulation outside its country of origin. It is strange but true. Those are the facts. The problems described by noble Lords who support the amendment will not arise in practice.
However, substantial problems are likely to arise out of trying to over-define something which bears a sensible, natural meaning. It is likely that we will inadvertently create a loophole—no matter how hard we try not to—and it is for that reason that I oppose the amendment.
12.30 p.m.
Lord Luke: My Lords, I thank all noble Lords who have spoken to the amendment. I did not anticipate that it would provoke such an interesting debate. I do not altogether agree with either the Minister's answer or that of the noble Lord, Lord Clement-Jones. However, at this moment, I have no option but to withdraw the amendment.
Amendment, by leave, withdrawn.
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