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Earl Howe: My Lords, once again, I am grateful to all noble Lords who have spoken. This has been a useful short debate. The reason why I suggested that what counts here is the disruption and harm that could ensue from the use of the Bill's powers, rather than any other consideration, is precisely that to which various noble Lords have alluded. The loss of a set of books and records—the loss of a hard disk, let us say—can be extremely disruptive and harmful to a business. The issue is therefore not wholly to do with the intrinsic value of the items that may be seized.
I think particularly, however, of brand-shared goods. What if an enforcement officer were to come in and seize goods that he considered to be tobacco advertisements but in fact were no such thing? What would happen if an enforcement officer raided the premises of Alfred Dunhill Limited and took away luxury goods in the belief that they were advertising Dunhill cigarettes?
Lord Filkin: My Lords, the distinction is that the trading standards officer might need one or two of the items for an investigation or a prosecution. The trading standards officer would not be able to seize a whole warehouse of goods under this Bill, as he would under the Food Safety Act 1990 if he believed that the goods were injurious; for example, contaminated corned beef. There is a distinction in the nature of confiscation under the two measures.
Earl Howe: My Lords, that is a helpful clarification and I am grateful to the Minister. The amendments that I tabled were, as I said, designed to protect the "small" man, which this House has a particular duty to try to do. They propose straightforward and inexpensive remedies. To rely on the provisions of the Human Rights Act, much as I take on board everything the noble Lord, Lord Lester, said—I bow always to his superior knowledge on these matters—does not seem to me to provide an equivalent degree of convenience, at least, to the person who feels himself or herself aggrieved. However, the debate has taken us forward. As I say, I am grateful to all noble Lords who have spoken. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Earl Howe moved Amendment No. 62:
- After Clause 15, insert the following new clause—
The noble Earl said: My Lords, this amendment brings us back to the interesting but ultimately inconclusive debate we had in Committee on the merits of introducing a sunset clause in the Bill. Sunset clauses are by no means appropriate in every Bill, but in the right circumstances I am an unashamed fan of them. I take that position because I believe that much of the legislation that we place on the statute book needs to prove its worth. If it fails to do so, it has no business remaining on the statute book.
The Bill we are considering is justified by its promoter as a necessary measure in the fight to reduce smoking prevalence, especially among the young. I am the first to agree that that is a worthy and noble aim. We are not at odds over that. No one here wants to see young people, or people of any age come to that, take up smoking when we know the terrible consequences in terms of ill health that that can lead to. But the unanswered question remains: will this Bill have the desired effect? It is impossible to know until we have had experience of it in practice.
We need not, and should not, revisit Second Reading arguments at the end of Report stage, but if I were to summarise the doubts that I have about the likely effectiveness of the Bill, assuming it is enacted, they would be twofold. The first doubt is that the evidence that cigarette advertising increases tobacco consumption and induces non-smokers to take up smoking is at best mixed. There is evidence that it does and evidence that it does not.
The second doubt is that regardless of whether cigarette advertising does or does not have that effect a ban on such advertising may lead to perverse and unintended consequences that are far more damaging. As I said at Second Reading, I firmly believe that to be true. If you deny the tobacco companies the opportunity to compete by means of brand advertising, it follows inexorably that they will choose to compete in the only other way open to them—on price. The ready availability of cheap cigarettes is a much more powerful influence on smoking take-up and smoking prevalence than advertising.
So why am I proposing a sunset clause? Let us suppose that a ban on advertising does not achieve what its proponents hope. If during the years after this Bill comes into force the prevalence of smoking actually goes up, perhaps because of aggressive price cutting by the manufacturers, in those circumstances
Let us suppose that the ban had no discernible effect one way or the other on the prevalence of smoking. Why would a sunset clause matter in those circumstances? It would matter because, much as several noble Lords may wish to forget it, the price of enacting the Bill is an erosion of commercial freedoms. In this country, we do not go in for curtailing the freedom of individuals or businesses unless we can advance compelling social reasons for doing so. When we debated this issue in Committee, the noble Baroness, Lady Jay, demonstrated that she had overlooked that point when she said that to follow through the logic of the proposal we should cease to provide nicotine patches on the NHS after a certain period and put a time limit on health education programmes in schools. The difference between those elements of an anti-smoking campaign and a statutory ban on tobacco advertising is that the latter involves an infringement of civil and commercial liberties and the former do not. Parliament may well wish to give the Bill's proponents the benefit of any doubt that may currently exist by passing it into law in the first instance, but the onus is then on the Government to demonstrate, after an appropriate period, that Parliament's faith was well founded.
Such considerations, and others, underlay many of the conclusions that were reached by the Joint Committee on Human Rights. The committee bore in mind a number of key principles, one of which was the proportionality of the Bill's provisions, measured against its supposed effects. The issue of proportionality is especially relevant in the context of the Bill's brand sharing provisions and of Clause 10, which is about sponsorship. In more than one part of its report, the committee questioned whether enough evidence had been presented to Parliament to enable the public interest case to be demonstrated beyond peradventure. It opined that only by having access to such evidence would it be possible for each House of Parliament to assess the issue of justification under paragraphs 1 and 2 of Article 10 of the ECHR—that article deals with freedom of expression.
We have heard much from the Minister about the nature of the available evidence, which, as I said, is not by any means one sided. If that evidence needs buttressing, it is incumbent on the Government over the next few years to assemble the relevant data and to make a judgment about whether or not the Act has worked. My amendment states that if the Secretary of State cannot satisfy himself that the Act has resulted in a reduction in the prevalence of smoking, it should cease to have effect. Anything short of that and we come up against human rights considerations.
The noble Lord, Lord Clement-Jones, knows that I proposed the amendment on as serious and principled a basis as he is presenting the Bill. I hope that he will treat the amendment with commensurate respect. I beg to move.
Baroness Finlay of Llandaff: My Lords, the amendment refers in particular to the uptake of smoking among people under the age of 16. I refer to an excellent systematic review by Sowden and Arblaster on mass media interventions to prevent smoking among young people. It outlines many of the methodological difficulties in obtaining data from that population.
Data collections in the under-16s are notoriously difficult. It is estimated that 23 per cent of children under the age of 11 have experimented with smoking. In six years' time—the time limit in the amendment—most of those children will still be under 16. People in that age group may make a declaration of activity, but it is difficult to ascertain true activity, particularly illicit activity, in areas such as substance abuse, petty or major crime and sexual activity. It is known that such data are incredibly difficult to obtain.
The other compounding variable in this matter is the ability of youngsters to purchase cigarettes illegally; that is, the current regulations are being breached at the point of sale. Again, there is good documented evidence from the research database that youngsters are able to purchase cigarettes even though they are under age.
The impact on the nation's health will probably not be directly proportional to the prevalence of smoking in the population. For example, if consumption of tobacco can be decreased among high-risk groups, such as pregnant women and those with diabetes and, in particular, diabetic pregnant women, there will be a very large impact on the future health of the nation because the number of small to-date babies will decrease as will the risk of those babies subsequently becoming diabetic when they reach adolescence. But, if one looks at the prevalence overall, one will not see that shift in the figures.
The amendment seems designed to cut off the Bill at the knees and to put short-term pressure on the medical profession, which for years has campaigned for such a Bill in the interests of the health of the nation. It will force a rapid expenditure in collecting baseline data so that the Government can argue in six years' time for the Bill to continue.
The intention of the Bill is to improve the health of the population. It seems to me that the intention of the amendment is to allow the tobacco companies to promote their product again in six to 10 years' time. The Bill does not make the consumption of tobacco per se illegal. The tobacco companies, which do not want the Bill, will now save vast amounts of money in advertising. Therefore, when they cannot advertise, they will be able to redress the exploitation that has taken place through low wages in poorer countries in the global economy. Tobacco-producing countries, where the workers are known to be underpaid, could have decent working conditions and higher rates of pay. That would redress some of the broader issues across the whole world poverty differential.
It would seem to be eminently preferable to use the money made available in that way either to cut the price of tobacco in this country, which would act as
Lord Lester of Herne Hill: My Lords, because the Bill, if enacted, will impose real restrictions on freedom of commercial speech, as the Joint Select Committee on Human Rights indicated in its eighth report, there will inevitably be questions as to the compatibility of the Act with European Community law and European convention law. In that report, the Joint Select Committee explained how the basic principles of proportionality and legal certainty came to be applied to this type of problem. It spelt out with clarity—I was not party to it so I can say this with even more enthusiasm—exactly what the issues and factors were.
The committee came to the conclusion that the objectives of the Bill were legitimate, that the question of the legal certainty of the Bill depended, among other things, on complicated questions of European Community law, and that, so far as concerned proportionality, it was important for both Houses to be satisfied on the basis of evidence that the means employed in the Bill were reasonably necessary to achieve the important legislative objectives of the Bill. As I understand it, a great deal of evidence has been produced which leads to the question: whose job is it under our constitutional system of government to assess that evidence?
I believe that this is an example of the beneficial effects of the Human Rights Act and the European Communities Act. The reality is that all three branches of government are involved in this exercise: the executive branch, which produces the evidence and, through its Ministers, seeks to justify the measure; the legislative branch—ourselves—whose job it is to act as a kind of political court to weigh the evidence and to decide whether the objectives are sufficiently important and whether the means employed are reasonably necessary; and the judicial branch.
We have plenty of safeguards in regard to the judicial branch, as British courts can apply the Human Rights Act and the European Communities Act. So where European Community law is supreme, our courts must give effect to it and must set aside this Act if, in truth, it were in breach of Community law. If it were in breach of convention law, our courts would have to make a declaration of incompatibility. If necessary, the European Court of Justice and the European Court of Human Rights could be involved in that. There is a sharing of responsibility across the three branches.
With respect to the noble Earl, Lord Howe, the question raised by this amendment is whether it makes sense to impose an arbitrary period of life to the Bill, after which it would automatically die, as the sun goes down at the end of the day. I suggest that that is not sensible. If the fears raised by the opponents of the Bill about its compatibility with human rights or anything
I do not know whether challenges would be made. I suspect that, given the commercial interests at stake, they will be made. I expect that members of my profession will find themselves enriched in the process. I am afraid that that is the effect of having lawyers in legal proceedings. All those safeguards are there and for the life of me I cannot see why a political fetter needs to be placed on the life of the Bill. If it became law, and if the opponents of the legislation were right, in a legal challenge either British courts or one of the two European courts would be able to provide effective remedies.
Therefore, I respectfully suggest that this House carries out its job in evaluating whether the objectives of the legislation are legitimate and whether the means employed are proportionate. If the answer is yes—I hope that that answer is given by this House and by the other place—then there is the matter of legality, which is not one for this House, but a matter for British and European courts. For those reasons I hope that the amendment will not be acceptable to the House.
"REVIEW OF THIS ACT
(1) The provisions of this Act shall remain in force for six years and shall then expire unless continued in force by an order made under subsection (2).
(2) If, prior to the expiration of six years from the date of commencement of this Act or the coming into force of any order made under this subsection, the Secretary of State is satisfied that the operation of this Act has led to a reduction in the prevalence
of smoking in the United Kingdom population, with particular reference to the uptake of smoking by persons under the age of 16, he may by order made by statutory instrument provide—
(a) that all or any of those provisions of the Act which are for the time being in force shall continue in force for a period not exceeding ten years from the coming into operation of the order, and
(b) that any of those provisions of the Act which are not for the time being in force shall come into force again and remain in force for a period not exceeding three years from the coming into operation of the order.
(3) No order shall be made under subsection (2) unless a draft of the order has been laid before and approved by a resolution of each House of Parliament."
3.15 p.m.
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