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Lord Faulkner of Worcester moved Amendment No. 8A:
- Page 2, line 21, at end insert—
On Question, amendment agreed to.
Lord Skelmersdale moved Amendment No. 9:
The noble Lord said: My Lords, given the speed at which we are progressing, it may be helpful to the House if I amalgamate Amendments Nos. 9, 10, 11 and 35 unless there is any objection.
Lord Skelmersdale: My Lords, good. In that case, I shall. The first amendment is a good old-fashioned opposition amendment to leave out "may" and insert "shall". I do not need to say very much about it except to express the hope that the noble Lord, Lord Clement-Jones—or perhaps, on this occasion, more appropriately the Minister in his understanding of the Bill—really does intend to make regulations. If he does not make regulations as mentioned in Clause 4(2), offences will be committed by any advertising for tobacco products in places where tobacco products are offered for sale. We know very well that that is not the Government's intention.
My understanding from what was said in Committee is that the Government do not plan rejection of current advertising for and displays of tobacco products at points of sale. None the less, in order to legitimise that advertising, they will have to make regulations. It is most important that those regulations provide for the meaning of "place", and hence the replacement of "may" with "shall".
It is also important that the meaning of "place" embraces places relevant to publication by electronic means—not only websites, which I shall come to in a minute, but also, as I have said before, mail order catalogues. I took great note of what was said on my previous amendment on the subject of mail order catalogues, but I still believe that a reputable business operating by mail order should continue to be allowed to exist.
Of course these other places are quite separate and distinct from such places as the point of sale in a retail outlet. I do not even claim that "place" is the most appropriate word. I am looking hard at the noble Lord, Lord Clement-Jones, because I am sure he
Given the good temper that we have had so far today, the noble Lord may not find my amendments to be perfect in every respect but, if he does not, I trust that he will be prepared to come forward with amendments such as these on Third Reading.
I said that I would amalgamate Amendments Nos. 11 and 35 with this amendment, and another point occurs to me in regard to those two amendments. Where the Bill refers to "websites", it does not always mean "websites"—or I do not think it ought to mean "websites", let me put it like that.
I am sorry that my noble friend Lady O'Cathain is no longer in her place because she shares with me an interest in the subject of the mail. Indeed, she recently introduced in your Lordships' House a debate on the subject of Consignia, to which many noble Lords contributed. I reminded her during my speech in that debate that one of her pet hates is junk mail. What about junk faxes? Will they be legal? I beg to move.
Lord Borrie: My Lords, I congratulate the noble Lord, Lord Skelmersdale, on Amendment No. 10. He is right, it is a classic opposition amendment. In those happy days when I sat on the Opposition Front Bench and I was desperate to make some contribution, if the Bill said "may" I said "shall", and if the Bill said "shall" I said "may". At least that meant I was doing my job.
As I understand it, in this case the proponents of the Bill want to be in a position to deal with the problems put forward by the noble Lord, Lord Skelmersdale. Whether they will deal with them in a way he likes is another matter. If I remember rightly what former Conservative Ministers used to tell me, "may" was there to enable them to do what they wanted to do—in other words, it somehow subsumed "shall".
I rise simply to recall happy days in the past and to congratulate the noble Lord.
Lord Lucas: My Lords, I support my noble friend and the principle of Amendment No. 11 and other amendments in this recently acquired group, which is that a website is a place. If we incorporate in the Bill a definition which states "in a place or on a website", and imply that "place" does not include "website", we could be letting ourselves in for all kinds of dangerous quibbles in future as to what is a "place". If "place" does not include "website", what else does it not include? Does it not include, as my noble friend said, a fax or some other form of communication? Does it or does it not include something you can access through Teletext? If a website is not a place, why is a page on Teletext a place?
It would be much better and more comprehensive, as has been said elsewhere, if we give "place" its natural meaning, allow it to have its natural meaning and point out that a website is included in the definition of "place", as may be other forms of
The amendment—although perhaps using other words—would usefully tighten up the Bill. But certainly at the moment there is an opportunity which I, as a tobacco company, would hope to find several ways of exploiting quite fast.
Lord Filkin: My Lords, I thank all those who have spoken. There have been some good attempts to ensure that we do not cause problems. I hope I can give some crumbs of comfort on how we might proceed to issue regulations if the Bill were to be enacted.
The Government do not support this amendment because Clause 4(2) gives Ministers the power to make regulations on advertising tobacco products where offered for sale. It is the sibling of Clause 8(1) which gives a similar power in relation to the display of tobacco products where they are offered for sale. Without definition, "place" takes its usual meaning as a physical location.
We discussed websites in detail in Committee and in particular the fact that they do not have a physical location. Both Clause 8(1) and Clause 4(2) give the power to treat websites in the same manner as physical places. This is necessary so that e-commerce is treated neither more or less favourably than other means of trade. The Government do not support a ban on the selling of tobacco products by the internet, provided that all such transactions comply with the law on the payment of duty.
Amendment No. 10 relates closely to Clause 4(2). We believe there is need to differentiate between a place understood as a physical location and a website, for reasons previously referred to. This is a changing area of marketing and it would be inappropriate to second-guess what will be needed in future in terms of regulation. The provision, as the Bill is drafted, flags up a need to consider whether the meaning of "place" should be included. We do not see the need to make this a prerequisite and therefore do not support the amendment.
Turning to the further amendment of the noble Lord, Lord Skelmersdale, Clause 4(3) provides for regulations on point-of-sale advertising, which may provide for the meaning of "place". The amendment seeks to ensure that any regulations would include mail order catalogues and offers for sale by electronic means. We do not think it is necessary for the Bill to specify what may be contained in the detail of regulations; nor do we consider it appropriate to extend unsolicited point-of-sale advertising to mail order catalogues and offers for sale by any electronic means.
There is already provision under Clause 4(1) for limited point-of-sale advertising. Any person who wishes to receive information in a catalogue either by post or by electronic communication may contact the business marketing the products, and anything sent in
Finally, Amendment No. 35 is not supported by the Government. Clause 8(1) gives Ministers the powers to make regulations concerning the display of tobacco products where they are offered for sale. It is the sibling of Clause 4(2) which gives similar power regarding the advertising of tobacco products where offered for sale. We discussed earlier at some length the distinction between an advertisement and a display in relation to shops. Some objects will clearly be advertisements and not displays such as the ubiquitous "open" and "closed" signs hanging in a shop door with a brand of a tobacco product. Other objects will clearly be either a display or an advertisement, such as rows of cigarette products in a shop gantry. That is why we need separate provisions for advertisements and displays.
Clauses 4(2) and 8(1) give the power to treat websites in the same manner as physical places. This is necessary so that e-commerce is treated neither more nor less favourably than other forms of trade. The normal meaning of display includes "exhibit", "exposed to view" or "show" and so a picture on a web page of tobacco products for sale over the Internet could be said to amount to a display of these products on a website. It is appropriate that there are powers to regulate such displays, if necessary. We have already said that Ministers have no immediate plans to make regulations under the powers contained in Clause 8, but a power is necessary to prevent potential future abuse.
The noble Lord, Lord Skelmersdale, does not like the word "website" used in this Bill, but I believe that it is appropriate and that there is no need to define it further than the normal commonsense term, as it is now understood. Indeed, any attempt at definition would run the risk of being technologically obsolescent the moment it reached the statute book.
As to whether regulations might touch on some of these issues, there clearly will be regulations as regards mail. With regard to junk faxes, the House will be relieved to know that already these cannot be sent without the express permission of the recipient under the 1999 telecoms data protection and privacy regulations, implementing the telecoms data protection directive.
Lord Clement-Jones: My Lords, the Minister has given a very full reply on these amendments and I agree with him wholeheartedly. On the issue of regulations, the Minister has told us that they will not be made in the short term. If they were, I believe that Amendment No. 11 would pre-judge the outcome of consultations to a degree that would not be helpful. It may be that discussions and arguments take place as consultations proceed, and to that degree the amendments might pre-judge any outcome.
The issue is clearly whether or not "place" should be a compendium word used in the Bill to cover both physical and non-physical aspects. The essence of the
I do not believe that these amendments add to the clarity of the Bill and I urge your Lordships not to accept them.
"(1A) A person falls within this subsection if—
(a) he is responsible for making decisions on behalf of the business referred to in subsection (1)(a)(i) about the purchase of tobacco products which are to be sold in the course of that business,
(b) he occupies a position in the management structure of the business in question which is equivalent in seniority to, or of greater seniority than, that of any such person, or
(c) he is the person who, or is a member of the board of directors or other body of persons (however described) which, is responsible for the conduct of the business in question."
Page 2, line 24, leave out "or on a website"
12.45 p.m.
12.45 p.m.
Lord Skelmersdale: My Lords, the noble Lord, Lord Filkin, offered me what he described as a ray of hope. That was immediately dashed by the noble Lord, Lord Clement-Jones. One thing I found very interesting was the Minister's comment that junk faxes are already illegal under the telecoms Acts. How many prosecutions have taken place? Has there been a single one? How do you set about pursuing one? I get far too many junk faxes. I complain about them far more than about junk mail, because they actually cost me money; they use the roll in my fax machine and the roll runs out just at the time when there is a fax that I really want. I am sure that other noble Lords have shared this experience. My noble friend hates junk mail. I find it sometimes to be a promotional or purchasing opportunity, but it costs me nothing but time to pick it up from the doormat and sling it into the trashcan.
I am interested in what has been said. Does the same, one wonders, apply to teletext messages on mobile phones? Those would most certainly constitute an advertising opportunity where these are of a junk nature. I give way to the noble Lord, Lord Filkin. '
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