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Lord Clement-Jones: My Lords, perhaps I may briefly sum up on these matters. I am not quite sure whether I am accepting my own amendments at this stage, but I believe I am. That is a slightly schizophrenic position to be in. In response to the noble Lord, Lord Lucas, clearly it is a little difficult simply to include a whole downloading of reasons why this provision is preferable to the previous one. His suspicions are entirely correct, however, that this measure is a considerable step forward in terms of the way that it would operate as regards a printer.
Perhaps I may try to elucidate that without bringing in the subject of the court case—whose title I forget—which allows ministerial statements to be taken in evidence of the meaning of a Bill. That clearly does not apply to a Private Member's Bill, I am glad to say. The original clause said that,
- "It is a defence for a person charged . . . to prove that he could not reasonably have foreseen that that would be the effect of the advertisement".
Under the proposed amendments that is different. A person does not commit an offence in connection with an advertisement if he could not reasonably have foreseen that that would be the effect of it. Basically, rather than proving something, the printer would simply adduce in evidence the steps that he had taken to make sure that he had discovered whether or not there was an advertisement in the magazine. Proportionality and so forth would be prayed in aid in terms of the interpretation of the word "reasonable". It seems to me that that is a much less burdensome requirement.
It would be quite difficult to prove absolutely a proposition of reasonably foreseeing in any event. The printer would simply have to take all the precautions. He would simply have to adduce the factual evidence rather than prove a legal proposition. I believe that that is the difference between what is proposed here and previously. I believe that what I propose should satisfy the noble Lord as regards his Amendments Nos. 19, 22 and 23. I have some confidence about that, but I leave it to the noble Lord.
On Question, amendment agreed to.
Lord Clement-Jones moved Amendments Nos. 13 to 18:
- Page 2, line 32, leave out "to prove that" and insert "if"
- Page 2, line 34, leave out from beginning to "such" and insert "A person does not commit"
- Page 2, line 35, leave out "to prove that" and insert "if"
- Page 2, line 38, leave out from beginning to "an" and insert "A person does not commit"
- Page 2, line 39, leave out "to prove that" and insert "if"
- Page 2, line 41, leave out from beginning to "an" and insert "A person does not commit"
On Question, amendments agreed to.
Lord Lucas moved Amendment No. 19:
- Page 2, line 41, at end insert "printing,"
The noble Lord said: My Lords, I shall not speak to the other amendments because I believe that they can be dealt with under this one. I refer to the debate on 16th November. The noble Lord, Lord Hunt of Kings Heath, said,
- "In general, one would always expect printers to put in place systems for protecting themselves in the course of their business. That would mean instituting checks on the material that they print".—[Official Report, 16/11/01; col. 828.]
- "If printers do not check the content of the material they undertake to print then they are making a serious mistake".
The Earl of Errol: My Lords, I took an interest in this matter at Committee stage. I listened to what the noble Lord, Lord Clement-Jones, said about his set of amendments as regards the burden of proof and so forth. But I understood that he was still expecting that matters of fact still had to be "adduced", which I believe was the word he used. In fact, the printer had to show that he had put checks into place as a matter of fact. There was no longer a test of opinion there but still a requirement to have undertaken some checks. That concerned me, because in that case there is still an added burden on a printer.
I entirely agree with everything that the noble Lord, Lord Lucas, said about the printing industry when speaking to the previous amendment. Those points should be taken on board. Trying to put extra layers into process control, as one might call it, could cause major problems other than a competitive disadvantage.
Lord Monson: My Lords, I also took part in the debate on amendments about this matter at Committee stage. I would like to know whether a
printer who was asked to print a text in German, Spanish, Urdu or Hindi is required to employ a translator to check that no promotion of tobacco has crept into the text. I hope I am right in assuming that the amendments moved by the noble Lord, Lord Clement-Jones, will obviate that but I would like to have confirmation from him.
Lord Hunt of Kings Heath: My Lords, I believe that the noble Lord, Lord Clement-Jones, will be able to meet the main concerns which have been raised in the debate about printers. My own reading is that the responsibilities being placed on printers in this Bill go no deeper than the normal responsibilities placed on them. It is a fact that the responsibilities placed on printers in this Bill are treated in a number of other pieces of legislation. Therefore, it is entirely comparable with that other legislation.
There are two points to be made here. The first is that there is a distinction to be drawn between distributors and printers. Our understanding is that distributors are outside the production process of an advertisement or promotion. That is not to say that they are not responsible for ensuring that what they are distributing is legal, but they may not have detailed knowledge of what they are distributing and are not in a position to look at the contents of it with a view to changing it. It is important to draw that distinction.
So far as concerns printers, the substantive point is that anyone operating a business needs to ensure that he or she does so within the law. It is entirely up to printers themselves—as it is for others in the supply chain—to satisfy themselves as to what measures are necessary.
I accept the point raised by the noble Lord, Lord Lucas, that printers often receive copy late in the day and often work to tight deadlines. I accept that, unless operating a small business, printers are likely to be faced with printing a number of pages and will not necessarily be in a position to check the contents of each page word for word. That is accepted. As I understand it, there is no intention in the Bill to interfere in the normal business of printing. However, it is right to expect printers to ensure that they remain within the law. Alongside that, with the change in the defences proposed by the noble Lord, Lord Clement-Jones, I hope that that will satisfy the noble Lord that we have now got the balance right.
The Earl of Erroll: My Lords, the Minister's point about distributors applies also to printers. In Committee, we discussed the difference between publishing and printing. The point is that a printer as well as a distributor may not know what is being printed. There is no requirement in the modern printing process, particularly with digital printing, for a printer ever to look at the copy. It can enter the system electronically at one end and come out at the other fully bound, sealed and packaged, with no human intervention at all. Given that the Minister's remarks about distributors can apply also to modern digital printing, and possibly to other printers as well,
such provision would place an extra burden on printers. The previous amendments do not cover that situation; therefore, these amendments may be required.
Lord Hunt of Kings Heath: My Lords, I thought that I had suggested that no extra burden was being placed on printers other than those placed on them in existing legislation and in the normal conduct of the law. I accept the noble Earl's point that there may be certain printing processes which are akin to distribution in the sense that printing is a fully automated process. But that is a matter for the printing business itself. Printers must ensure that the law is applied.
In terms of proportionality, those are the kinds of matters that training standards officers would need to take into account if they were considering a prosecution. However, as I have stated, the general thrust of the approach taken by trading standards officers on discovering problems and potential law-breaking is almost always to draw the problem to the attention of the person or company concerned. The main aim is to ensure that changes take place rather than prosecutions. The issue mentioned by the noble Earl is surely one that would fall to trading standards officers to consider if it came to any potential prosecution.
Given the points I have made, and given the changes in the Bill in terms of the defences proposed by the noble Lord, Lord Clement-Jones, I believe that we have reached a position whereby printers are being dealt with in a balanced and proportionate way.
1.15 p.m.
Lord Clement-Jones: My Lords, we have returned to the issue of the duties of printers and what it is reasonable for a printer to be expected to know about what he or she is in the process of printing and whether the terms of the Bill are unduly burdensome, particularly for printers.
I share the Minister's view that the Bill in its current form, particularly with the amendments that we have just debated in, is not unduly burdensome for printers. It ought not to be beyond the capabilities of printers and their organisations to be able to agree on a way forward which provides the necessary level of protection for those who are legitimately going about their business. Whether reasonable care was taken will be a factual matter; it is certainly possible to establish that.
It may, for example, be important for printers to issue a disclaimer on their printing contracts, with the client taking responsibility in writing for there being no illegal content in the material to be printed, including tobacco advertising. There may be other mechanisms that printers will wish to adopt to make sure that they comply with the terms of the Bill.
Taken together, the defences as amended represent ample protection for printers. I do not believe that it would be right to go any further. It is important and reasonable for a printer to be responsible for the
content of what is printed. It may not be reasonable for a printer to know that there is a tobacco advertisement on page 75 of a magazine being printed, but it is reasonable for that printer to know whether the billboard-size poster that is being produced is a tobacco advertisement.In that respect, the Bill is consistent with other laws. Under existing laws, a printer is liable both for the printing of a libel and for the infringement of copyright if he did not take reasonable care to avoid it. That is exactly the position in which printers will find themselves under the terms of the Bill. With regard to publications harmful to children under the Children and Young Persons (Harmful Publications) Act 1955, a person who prints, publishes, etc., any work to which the Act applies is guilty of an offence. Similarly, when the advertising of certain gambling lottery services was illegal, the relevant legislation stated that certain notices or advertisements relating to lotteries, inciting persons to bet, betting office or betting office facilities, etc., were illegal and anyone who printed or published them would be subject to penalties. The last example is particularly apposite as it relates to the issue of prohibited advertising—the very subject that we are discussing.
I believe that the case of printers in this legislation is in line with similar liabilities under similar legislation in the past. If anything, under the Bill printers will have greater protection than they have had under previous legislation.
I have taken account of the views expressed in Committee by the noble Lord, Lord Lucas, but I believe that to go any further would be to swing the pendulum too far in the other direction. Therefore, I very much hope that the noble Lord will withdraw his amendment.
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