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Lord Peston: My Lords, I listened with great interest to the noble Earl, Lord Howe. He spoke with great confidence. I should therefore like to introduce at least a word of uncertainty.
The noble Earl said, for example, that the words Benson and Hedges at the top of one's writing paper is an advertisement or promotion. It would never have occurred to me—I speak as an idiot, of course—that that was an advertisement or promotion; I would simply have thought that the letter was from Benson and Hedges. I can see the difference. Perhaps I should also give my own example. My House of Lords writing paper has "Lord Peston" written on the top, but it has never occurred to me that I am promoting or advertising myself. I thought that I was simply letting the letter's recipient know right from the beginning that the letter was from me, and that the best place for it, even before reading it, is probably in the wastepaper basket.
I am therefore very puzzled by the noble Earl's remarks that there can be no doubt at all that letterheads, price lists and the various other items he mentioned are very definitely promotions. Reflecting on it, if I were involved in a court case and someone said that he wanted to send people to prison because they had put Benson and Hedges on their writing paper, I would simply say, "You must be mad". It would never occur to me—I hate to use the expression of the noble Lord, Lord Clement-Jones, about the natural meaning of words—that that was promotion.
Despite my lack of sympathy for the tobacco companies, I do not doubt that they are entitled to legal protection in the normal course of their business. However, I honestly cannot remotely see this provision as a problem. I should be interested to hear whether the noble Lord, Lord Clement-Jones, who has a legal training which I do not, considers that there is a legal problem. But, speaking as a layman, I cannot see any legal problem here at all.
1.30 p.m.
Lord Skelmersdale: My Lords, I do not know when the noble Lord, Lord Peston, last looked at the Companion to the Standing Orders. If he has looked at if fairly recently, he will have discovered that the practice of overprinting House of Lords notepaper with one's own name is deprecated to say the very least. The Companion to the Standing Orders uses that phrase to mean what my children when they were very small used to understand as a "no, no".
Be that as it may, I support my noble friend Lord Howe because there is a confusion here. No matter what the noble Lord, Lord Peston, says, it is quite possible, if the tobacco company in its letterhead or logo has a product of the same name, for that to cause confusion, to say the very least, if not to be taken as a promotion. Therefore, I hope that my noble friend Lord Howe will stick to his guns.
Baroness Jay of Paddington: My Lords, I have just heard the most interesting comment this morning in the noble Lord's reference to the content of the Companion to the Standing Orders on overprinting of names. I believe that I am not alone in the House in not being aware of that. I also believe that most noble Lords who are present have probably transgressed that rule.
However, that is irrelevant to what I wanted to say on the main point. It seems to me—again we are back in this rather difficult territory of common sense and natural meanings—that there is some equivalence between what the noble Earl, Lord Howe, proposes, and what the noble Earl, Lord Liverpool, proposes in relation to private hospitality events and the nature of the distribution of tobacco products by people who are clearly in that business but who are not distributing them for the purposes of advertising. Although I know that it is difficult to draw a legal comparison—although perhaps the noble Lord, Lord Clement-Jones, will be sufficiently forensic to be able to do that—in our famous common sense and real terms, it seems to me that it is perfectly understandable that someone's writing paper is not a form of advertisement in exactly the same way as an hour or so ago we decided that it was clearly the case that people giving cigars or cigarettes in private hospitality arrangements—even if they are given by a tobacco company—does not constitute a form of advertisement.
Lord Geddes: My Lords, in which case surely there can be no objection to this amendment.
Lord Filkin: My Lords, I wish that I could say that the Government agreed with that. However, I genuinely have sympathy with the thrust of the amendment of the noble Earl, Lord Howe, to ensure that companies which are carrying out such business do not inadvertently stray into illegality. I hope that my comments will give some comfort in that respect.
The amendment seeks to provide that certain forms of business communication can never be an advertisement for the purpose of the Bill. I accept that the noble Earl has attempted to draw the boundaries of the amendment tightly but I must tell him that the Government do not support it for the following reasons.
As I said in Committee, the word "advertisement" should be allowed to carry its natural meaning. The principle of the Bill is set out as the noble Earl, Lord Howe, suggested—to set out a broad offence and then provide defences or exemptions as appropriate. By qualifying the meaning of the word "advertisement" we run the risk of opening loopholes by exclusion and thus creating gaps in the comprehensive ban on tobacco advertisement which we believe to be in the public interest.
However, once again I tell the House that it is not the Government's intention to interfere with normal commercial activity. The Bill will not remove a company's right to use its own legal name or trading name, for example, in company documents or websites in the ordinary course of business. A company name and logo on a letterhead is not the mischief at which the Bill is aimed, neither is a large sign outside a cigarette factory owned by British American Tobacco indicating who carries on business there.
However, to allow the amendment would allow creative minds to develop logos and signs far beyond what is needed for business purposes and to use them to promote tobacco products. The effect of the amendment would be that trading names used by a business and logos representing those names could never comprise an advertisement. We believe that that is not sensible or reasonable. For example, to take one illustration, if a tobacco company markets a dozen brands it would, if the amendment were passed, be allowed to put the logos of all of those brands on its letterhead and write to the public at large informing them about the company if not about the tobacco products it sells. Similarly, the amendment would permit tobacco companies to incorporate brand logos in their signage on their premises and to make those signs, in effect, advertising billboards.
The noble Earl, Lord Howe, asked what is or is not an advertisement. The comment of my noble friend Lady Jay about common sense is of comfort here. In most circumstances a company such as Gallaher or BAT will promote its own company and will be perfectly entitled to do so. It is when companies start to promote the product that they are at risk of prosecution. In Committee we discussed the nature of enforcement under the Bill and said that for the most part its provisions would be enforced by trading standards officers. When trading standards officers think that there has been a breach of the law, they draw that on the first occasion to the attention of the potential offender. They resort to court action only if he persists in his refusal to comply. I believe that that comment is of considerable comfort to the companies concerned in the matter. Finally, although no one wants to go to court, courts will reach a judgment on common sense.
In the light of what I have said, tobacco companies should not fear that their perfectly proper commercial activities will be at risk of prosecution in that respect.
Lord Clement-Jones: My Lords, noble Lords may have wondered whether they had elicited a forensic reply from me but I think that the Minister has dealt with the matter in a forensic manner. Although I have agreed with the content of many speeches of the noble Earl, Lord Howe, over the years, I am somewhat baffled by the content of his speech today. The Bill does not have the effect that he believes it will have. If it did have that effect, I would probably support him. As a former company secretary I advised companies on their letter headings and what they should contain. I advised them what criminal offences might be created if they got the matter wrong and so on. The Companies Act contains careful provisions as regards what letter headings should or should not contain and when exemptions apply with regard to revealing a company's directors, registered office and so on on the notepaper. People take a great deal of care with regard to their notepaper.
However, it is clear what mischief would arise if we did not have a general description of "advertisement" in the Bill and we had the exemption that we are discussing. For example, one could adopt a little coat
of arms with the company name and underneath a little logo, "Smoke a Few", or "Carry on Smoking". Is that the logo that one has in mind for the company notepaper? I am afraid that that would be the effect of the proposed new clause. I return to what we discussed in Committee; that is, whether—I refer again to the phrase "natural meaning"—we are on safer ground in terms of the purposes of the Bill if we have a general definition of the word "advertisement" than relying on the natural meaning of the word. I believe that that ensures the minimum number of loopholes. I appreciate that some noble Lords fear that the Bill may have other consequences. However, I cannot see how the noble Earl's fears could be realised. I believe that the shoe would be entirely on the other foot if we permitted a blanket exemption of the kind that he proposes as it could permit all kinds of weird and wonderful logos to appear on tobacco companies' notepaper.
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