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Lord Monson: My Lords, even if this Bill does not contravene European law in any way, does the noble Lord agree that it may still be contrary to our British traditions of freedom? I believe that that was the point that the noble Earl was trying to make.

Lord Lester of Herne Hill: My Lords, I believe that the European Convention on Human Rights, drafted by British legal draftsmen, reflects traditional British, civil and political rights, including the right to the freedom of speech, going back at least to the 17th century. I have never regarded the European convention as some kind of alien construct, emanating from the French or the American Revolutions. It is as British as Magna Carta, and the values expressed, including the principle of proportionality—do not take a sledgehammer to crack a nut—are impeccably British values.

Baroness Jay of Paddington: My Lords, as the noble Lord was kind enough to refer to part of the argument I made in a similar discussion in Committee, I shall be grateful if I may be allowed to make the second part of the argument, to which he did not refer, but which is worth repeating, however briefly.

The Government and health educators have always made the point that tobacco advertising alone cannot be a suitable weapon to deal with the prevalence of smoking. Indeed, to successfully contain smoking prevalence, a wide range of measures and activities must be undertaken across the board. That is one of the arguments I was making in Committee.

There is one point which the noble Earl did not make. In many countries where a tobacco advertising ban has been introduced, one can assume that a sufficiently significant fall in tobacco consumption is

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related to the ban. But it has also been my consistent view that in the course of introducing a wide range of anti-smoking measures—as this Government have done and, indeed, has happened over the past few years—such as nicotine patches on the health service and health education in schools, it would be difficult to separate out the precise contribution that a ban on tobacco advertising has made.

That does not undermine the significance of introducing a tobacco advertising ban. But it makes it more difficult, even with all the successful monitoring methods which I am sure will be introduced, to see what impact the Government's measures and, for instance, the Bill of the noble Lord, Lord Clement-Jones, if it is successful, will have on the reduction of smoking. It would not be sensible to try to isolate it and monitor it in precisely the way the noble Earl's amendment suggests, particularly over a limited timescale. I suspect this will be another area where the friends of the noble Lord, Lord Lester of Herne Hill, in the legal profession will simply enrich themselves even further.

Lord Peston: My Lords, I start from a position very similar to that of the noble Earl, Lord Howe. If we were not debating this Bill today but were debating constitutional matters, and it was suggested that all Bills should have a sunset clause, and that the final clause should always be a review of the Act to see whether the Bill achieves the good it sets out to achieve, or removes the harm it sets out to remove, I would put my hand up and say that it was a good thing for all legislation. It would also have the enormous benefit that most Home Office Bills would disappear very rapidly.

But the question we must address today is why, of all the Bills that come before your Lordships' House, do we single out for special research a Bill to do with the banning of tobacco advertising and promotion? I can think of no non-cynical reason why that is put forward.

I shall follow the noble Earl's dictum of not making a Second Reading speech, although I am afraid my two noble friends made Second Reading speeches, albeit totally related to the points raised by the noble Earl, in pointing out how difficult it is to make these assertions.

I hope that the noble Earl does not divide the House on this matter, although if it was a general provision to be applied to all legislation, I would be hoping for a Division and the noble Earl would have me voting with him.

I come to the point on commercial freedom. We seem to have become involved with human rights. I ask noble Lords to address themselves to the pharmaceutical companies, which are in the business of producing drugs of immense benefit to mankind, as opposed to the cigarette manufacturers. They are subject to the strictest controls, especially in the fields involving chemistry, biochemistry and their effects on human beings—the so-called "side effects" problems. Even with drugs possessing enormous potential for

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good, there have only to be one or two experiments turning up the definite chance of side effects and the drugs are not given a licence. Commercial freedom is interfered with.

I compare that with the position of the tobacco companies producing a product that kills. For anyone to stand up in this Chamber and use the expressions, "human rights" and "commercial freedom", is absolutely preposterous. To hear noble Lords who claim to be concerned with human rights defending these companies on that basis is something that I am sorry that I have to sit here and listen to. We are dealing with companies producing a product that kills. I suggest that noble Lords compare what they do with the pharmaceutical companies and how they are regulated; there would then be something much more powerful than this Bill before your Lordships today.

3.30 p.m.

Lord Campbell of Alloway: My Lords, yes, I suppose that I claim to be a Conservative. But I am not very happy about sunset clauses. I never have been. I am not happy about having one in this Bill because, inevitably, there will be one or two massive test cases on the evidence as to whether the convictions in the criminal courts stand up. Then the assessment will be made by the courts. It is no use any noble Lord being confident in his opinion that this is right or that is wrong. That is totally beside the point. There will be a series of test cases, one of which will inevitably go to your Lordships' Appellate Committee, in which the whole of the evidence will be sorted out and a decision will be made as to whether the provisions of the Bill are right or wrong. That encapsulates the dispute between the Government—I am using the Government because after all they support the Bill—who give a certificate of ECHR compliance and those who say, "No". That dispute cannot be resolved by the assertion—confident or not—of any noble Lord in this House or anywhere else. It must be resolved by the courts. In view of that, what on earth is the logic of having a sunset clause? In the mean time, the whole thing would have been resolved by the courts. Therefore, I suppose, yes. I do not know whether it is a Conservative point of view, but it is my own.

The Earl of Listowel: My Lords, I understand the principled position that the noble Earl, Lord Howe, takes. But from what I have heard during the debate, I am concerned about the possibility of perpetuating inequalities in health. I hope that the noble Earl will bear that in mind when he makes a decision on whether or not to seek to divide the House. Of children in care, 75 per cent have no educational qualifications whatever. Only 4 per cent achieve five GCSEs grades A to C, whereas 50 per cent of the general population achieve those grades. Therefore, I argue that this group is particularly vulnerable to advertising. I hope that the noble Earl will bear that in mind when he makes his decision.

Lord Skelmersdale: My Lords, as noble Lords will appreciate from my activities today, I normally tend to

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lead with my chin. On this occasion I have waited to hear what was said. I noted that two things were not said. First, that since 1997 tobacco consumption has gone up by some 3 per cent. That is, I believe, a direct result of the Government's laxity in containing tobacco smuggling, which has increased by roughly the same amount. The two are equal.

It is noticeable that the proponents of the Bill believe that, with its massive and unprecedented nature, tobacco consumption is likely to be reduced by around 2.5 per cent in the long term. Therefore, overall, I cannot understand why they are so vehement—so dogmatic, if you like—about the good that this particular Bill will do. Of course it will do some good; it will certainly prevent some people taking up smoking. Whether it will stop people continuing to smoke is much more doubtful.

Earlier, I described myself as in general a fan of sunset clauses. I noted in Committee that the noble Lord, Lord Hunt of Kings Heath, talked about specific uses for sunset clauses and cited such acts as the Terrorism Act 2000, the Armed Forces Act 1996, the Imprisonment (Temporary Provisions) Act 1980 and the Northern Ireland (Emergency Provisions) Act 1973. With the greatest respect, that is a selective list. It is perfectly obvious why those temporary provisions Acts—as they all are to a greater or lesser extent—should need continuation clauses and to be reviewed regularly by Parliament.

Secondly, the Minister failed to mention the Electronic Communications Act 2000, which does not fall into that category. It is worth noting that that sunset clause was promoted not by a Back Bencher in either House of Parliament but by the Secretary of State for Trade and Industry. The noble Lord, Lord Clement-Jones, may know that full well because I know that he spoke at the seminar at which the Secretary of State promoted the provision. I hope that neither the Minister nor the noble Lord, Lord Clement-Jones, will rest on their previous argument that sunset clauses are necessarily for particular types of legislation.

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