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Lord Lucas: My Lords, I thank the Minister and the noble Lord, Lord Clement-Jones, for those replies. Yes, subject to checking in Hansard what has been said in the debate, I believe that we have arrived at a reasonable position—one which, as the noble Lord, Lord Clement-Jones, says, is in line with many other obligations on printers.
One is particularly concerned about the Bill because it creates a criminal offence which cannot be passed on to the publisher or to insurers in the way in which financial liability can be passed on. That has been part of the cause of my concern. I think that we shall find ourselves happy with the position arrived at by the noble Lord. I am enormously grateful for the care and time that he has taken in ensuring that. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Clement-Jones moved Amendment No. 21:
- Page 2, line 43, leave out "to prove that" and insert "if"
On Question, amendment agreed to.
[Amendments Nos. 22 to 24 not moved.]
Lord Clement-Jones moved Amendments Nos. 25 to 28:
- Page 3, line 2, leave out from "2(3)," to "an" and insert "a person does not commit"
- Page 3, line 3, leave out "to prove" and insert "if"
- Page 3, line 4, leave out first "that"
- Page 3, line 6, leave out "that,"
On Question, amendments agreed to.
Lord Lucas moved Amendment No. 29:
- Page 3, line 6, leave out "he was not able" and insert "it was not reasonably practicable for him"
The noble Lord said: My Lords, we discussed this proposal at some length in Committee. The noble Lord, Lord Clement-Jones, was kind enough to say that he looked favourably on the amendment but wished to see it in a better form. As usual, his skills and the skills of those who have aided him have produced a form of words better suited to the circumstances. I am again grateful to the noble Lord. I believe that this is entirely the right way to go. I beg to move.
Lord Filkin: My Lords, in Committee, the Government indicated that they also were sympathetic to the thrust of the proposal—without which it would be unreasonable in practice to expect a telephone company, for example, which could shut down its network, to prevent the passage of such material. Therefore, without further ado, I signal the Government's support for the amendment.
Lord Clement-Jones: My Lords, as I said in Committee, and as the noble Lord, Lord Lucas, has said, I very much support the thrust of the amendment. I am also very glad that the amendment has the Government's support. I have very little to add to what the noble Lord and the Minister have said. It is sensible for companies operating networks over which electronic communications travel only to have to act reasonably to ensure that they are not distributing tobacco advertising; it is not reasonable to expect them to shut down the network for the sake of one advertisement. The essence of the amendment is to bring the Bill more into line with the e-commerce directive in that respect.
On Question, amendment agreed to.
Lord Clement-Jones moved Amendments Nos. 30 and 31:
- Page 3, line 8, leave out "that"
- Page 3, line 10, leave out from beginning to "he" in line 11 and insert "A person does not commit an offence under section 3(c) if"
On Question, amendments agreed to.
Earl Howe moved Amendment No. 32:
- After Clause 5, insert the following new clause—
The noble Earl said: My Lords, in Committee we had a wide-ranging debate about whether it was sensible or useful to include in the Bill a definition of the word advertisement. Although this is the Tobacco Advertising and Promotion Bill, it is very striking that none of its provisions states precisely what an advertisement is or should be taken to mean. Both the Minister and the noble Lord, Lord Clement-Jones, made it clear that in their view it was better to allow the word advertisement to bear its natural meaning in the language—in other words, we all know an advertisement when we see one—and each case should be treated on the basis of the relevant facts. Any attempt, in their submission, to delineate the term advertisement—as, for example, was done in the Medicines Act 1968—is bound to give rise to unhelpful loopholes in the law that tobacco companies will proceed to exploit for all they are worth. That is the Government's position as I understand it.
Although there are several arguments that I could deploy against that position, I have chosen not to mount a challenge today because, frankly, I know that it would not be productive. The noble Lord, Lord Clement-Jones, is, I sense, not persuadable on the matter, nor indeed are the Government. However, there is still an important and unresolved issue. To what extent should the Bill lay open the possibility that the board of a tobacco company in pursuing its normal daily business activities should find itself at risk of prosecution for promoting a tobacco product? As the Bill stands, it criminalises anyone who in the course of a business publishes a tobacco advertisement and who at the same time cannot prove any of the defences listed in Clause 5.
We understand that the Government want the measure to be framed as a series of broadly drawn offences balanced by some specific defences. Although that structure has the merit of minimising the scope for legal loopholes, it also has a distinct demerit from the point of view of the tobacco companies—the absence of any kind of legal certainty. While many of us may well understand in most circumstances what constitutes an advertisement and what does not, that is not a terribly helpful guide for a board of directors tasked with carrying on a business day to day within the bounds of the law. Where is the dividing line between something that is not an advertisement and something that is?
There is a real sense in which a tobacco company promotes its tobacco products merely by using its name and logo in ordinary daily business correspondence and business communications. Every time a company puts its name about on its letterhead, especially if the name coincides with that of a brand such as Benson and Hedges, it is promoting itself and its products. I do not think that we can get away from that. If Benson and Hedges or Rothmans of Pall Mall occupy a set of business premises and put their company name on the outside for all to read, they are promoting themselves and their products. Furthermore, the Clause 5 defences in this context simply do not apply. A company could not claim that by putting its name on the outside of its offices it did not know that it was promoting a tobacco product; quite plainly it is doing just that. Victoria Wine puts its name on the front of its shops and in doing so promotes the sale of alcoholic drinks. If the managing director of Victoria Wine writes a letter on company paper, he is in a real if limited sense promoting the company and its products even if the text of the letter is of a purely routine nature.
In Committee, the Minister said that companies promoting their business by printing their name on a letterhead are not the mischief at which the Bill is aimed. I was very glad to hear that. However, the fact remains that the Bill criminalises anyone who, without a statutory defence, publishes a tobacco advertisement. What is a tobacco advertisement? Answer: it is anything whose purpose or effect is to promote a tobacco product. That most certainly includes letterheads and the use of logos in correspondence.
In Committee, the noble Lord, Lord Clement-Jones, said that we cannot create a blanket exemption for letterheads or logos because there is a factual question of whether there has been an advertisement. I put it to him that he is wrong about that. A tobacco company letterhead is always a tobacco advertisement; it is not a question of degree. That is why I have tabled Amendment No. 32. The noble Lord may deprecate the notion of blanket exemptions, but I put it to him that it is wholly unreasonable not to have such an exemption for those ordinary tools of the trade without which a tobacco company, or any other business, simply could not function. Those tools encompass the company's letterhead, including its logo, its name on invoices, its name on e-mails and faxes, and name signs displayed on its business premises.
In a Bill framed in such sweeping terms, it is unreasonable not to give businesses at least a small degree of legal certainty. It is not a heavy price for the noble Lord to pay in exchange for putting an otherwise all-embracing set of criminal offences on the statute book. I beg to move.
"USE OF NAMES, LOGOS AND BUSINESS DETAILS
(1) A person shall not be treated as publishing a tobacco advertisement for the purposes of this Act solely by reason of the use of the items set out in subsection (2) below in—
(a) letterheads, price lists, invoices and other business stationery;
(b) items listed in paragraph (a) which are communicated electronically; or
(c) signs identifying business premises occupied by the person.
(2) The items mentioned in subsection (1) comprise—
(a) the name or names by which the person is known including the names of companies or limited liability partnerships registered under the Companies Acts;
(b) any trading names used by the person;
(c) a logo or other graphic representation of those names; or
(d) an address or addresses at which the person carries on business."
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