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Earl Howe: My Lords, it has been a useful and helpful debate and I am grateful to all noble Lords who have commented so thoughtfully on my amendment. The amendment reflects, in essence, what the Joint Committee said—that is, that if the Bill is to merit its place on the statute book there must be credible and compelling evidence that the presupposition underlying it is well founded.
The noble Baroness, Lady Jay, said that it was probably impossible to separate out the contribution that a ban on tobacco advertising would make on smoking prevalence in the context of all the other anti-smoking measures that the Government are taking, but anything less than compelling evidence makes the Bill an act of faith.
The Minister and the noble Lord, Lord Clement-Jones, said that the evidence already exists. That is very good—the Bill will become law. I am certainly not stopping it, but I am inherently unhappy with an argument that we should sweep up a ban on tobacco advertising into the array of the Government's anti-smoking measures—and do so on a permanent basis—without assessing the effects of such a ban over the long term.
I am grateful to the noble Lord, Lord Peston, for his wise remarks. In particular, I am grateful to him for posing the question of why one should have a sunset clause in this Bill of all Bills. That is a perfectly sensible question. I notice that the noble Lord did not object to the Government's own sunset clause in the Ofcom Bill. But, be that as it may, he drew a comparison with the pharmaceutical industry, which I tried to follow. The whole point about the pharmaceutical industry is that we are dealing there with evidence-based medicine. There is definitely a body of evidence which tells you whether or not a drug is safe and efficacious.
The noble Lord took exception to anyone uttering the expressions "human rights" and "commercial freedom" in the context of the Bill. I am sorry about that. I understand his attitude towards the tobacco industry—it is an attitude that I respect even though I do not share it—but we must not forget that we are dealing here with a legal product. If it were an illegal product, I would be the first to agree with the noble Lord that the questions of human rights and commercial freedom should go out of the window, but we cannot do that here.
Lord Peston: My Lords, perhaps I may clarify the issue. One of the points I was trying to make is that if, before putting its products on the market, the tobacco industry had to meet the standards that pharmaceutical companies have to meet, no one would be able to buy any cigarettes in this country at all—and no one would argue that that was an infringement of their human rights or anything of that kind. That is the point I was trying to make.
Earl Howe: My Lords, I am grateful to the noble Lord. As I am grateful to my noble friend Lord Campbell of Alloway for being the kind of Conservative Back-Bencher who is not afraid to speak his mind.
I should also like to express my gratitude to the noble Lord, Lord Lester of Herne Hill, who, not for the first time today, has enlightened our proceedings. I would say to him that it is not entirely surprising that he seeks to raise the possibility of a legal challenge, as opposed to any other sort of challenge, to the validity of the Bill. The sort of challenge that I am proposing in this amendment is a challenge by the Minister of the day, and I should have thought that a ministerial decision based on the available evidence would be a much better route than legal action for determining whether the Bill's provisions should continue in existence.
The Government professed to believe that this Bill will lead to a reduction in smoking prevalence of about 2.5 per cent in the long term. Either that estimate is well founded or it is not. If the Government and the noble Lord, Lord Clement-Jones, are so confident about the science and the strength of the evidence, they have absolutely nothing to fear from the sunset clause: nothing at all. Nor would I wish to interfere with a ministerial decision that the Bill had had the desired effect and that it was proportionate.
However, notwithstanding the strength of the opposition to the arguments I have advanced, I beg leave to take the opinion of the House on this issue.
3.56 p.m.
On Question, Whether the said amendment (No. 62) shall be agreed to?
Their Lordships divided: Contents, 16; Not-Contents, 49.
Brougham and Vaux, L.
Burnham, L.
Erroll, E.
Gardner of Parkes, B.
Geddes, L.
Haslam, L.
Hooper, B.
Howe, E.
Liverpool, E.
Luke, L. [Teller]
Monson, L.
Moynihan, L.
Northesk, E.
Palmer, L.
Skelmersdale, L.
Vivian, L. [Teller]
Andrews, B.
Barker, B.
Bradshaw, L.
Campbell-Savours, L.
Carter, L.
Clement-Jones, L. [Teller]
Condon, L.
Dubs, L.
Elder, L.
Faulkner of Worcester, L. [Teller]
Filkin, L.
Finlay of Llandaff, B.
Gale, B.
Gibson of Market Rasen, B.
Greaves, L.
Hamwee, B.
Haskel, L.
Hayman, B.
Hooson, L.
Howarth of Breckland, B.
Hunt of Kings Heath, L.
Jay of Paddington, B.
Lester of Herne Hill, L.
Listowel, E.
McIntosh of Haringey, L.
MacKenzie of Culkein, L.
Maclennan of Rogart, L.
McNally, L.
Massey of Darwen, B.
Miller of Chilthorne Domer, B.
Mitchell, L.
Newby, L.
Northover, B.
Oakeshott of Seagrove Bay, L.
Peston, L.
Ramsay of Cartvale, B.
Rea, L.
Rodgers of Quarry Bank, L.
Scott of Needham Market, B.
Sharp of Guildford, B.
Simon, V.
Stone of Blackheath, L.
Symons of Vernham Dean, B.
Taverne, L.
Thomas of Walliswood, B.
Wilkins, B.
Williams of Crosby, B.
Williams of Mostyn, L. (Lord Privy Seal)
Woolmer of Leeds, L.
Resolved in the negative, and amendment disagreed to accordingly.
4.6 p.m.
Lord Campbell of Alloway moved Amendment No. 63:
- Page 9, line 13, at end insert—
The noble Lord said: My Lords, this amendment derives from a probing amendment moved at Committee stage on 18th January. I thank all noble Lords whose contributions on that occasion were reflected in the amendment that I move today, which was printed on 22nd January.
But at the outset I have given notice of my intention to do so to the noble Lord, Lord Clement-Jones, and the noble Baroness, Lady Williams of Crosby, that I have the misfortune to deal with a formal complaint made to the Commons Clerk of the Joint Committee on Human Rights, of which I am member, as to my conduct when moving the probing amendment.
Complaint was made by the noble Lord, Lord Clement-Jones, by letter of 15th February, to which a copy of the amendment I am moving today was attached. The noble Lord gave me no notice of his intention to write that letter or indeed no notice of any complaint that he had as to my conduct. The noble Lord said in the letter of the 15th to the Commons Clerk that the report of the Joint Committee on Human Rights of 17th December had been brought to his attention and that I gave the impression at Committee stage on 18th January that my amendment was,
I did not refer to paragraph 19 of the report, which suggested that such matters should be explored by Members of both Houses: for such was what I was doing. That was well understood by the noble Lord, Lord Hunt of Kings Heath, notwithstanding that he held the opinion that the Government were right in regard to compatibility with the ECHR—on which he would be the first to concede that mistakes have been in the past.
The sting in this is all too plain: that I, as a member of that committee, gave the false impression that the probing amendment—and the amendment that I move today—was in line with the views of the committee on which I serve in order to bolster the argument that there is an arguable case. I adhere to the view that there is an arguable case, particularly in the light of the judgments of the Court of Appeal in the transport case. As I said earlier, such matters cannot be resolved by the confident assertion of any noble Lord. They are resolved by a court of law, subject to supra-national law. So it comes to this.
I have been in this House for some 20 years. My conduct has never been called into question by anyone, save, perhaps, my own party.
"( ) On service of notice of appeal against conviction on the ground that the offence is not "prescribed by law" either—
(a) as is capable of justification under Article 10(2) of the European Convention on Human Rights as not requisite or proportionate to protect public health; or
(b) as is proscribed by Articles 28 and 49 of the Treaty establishing the European Community as an arbitrary or disguised restriction on trade between Member States more extensive than requisite to achieve a legitimate object,
the High Court may order a stay on enforcement of any penalty imposed pending determination of the appeal, or until further order, on such terms as may be deemed to be just and expedient."
"in line with the views of the Joint Committee of which he [is] a member".
First, that is totally untrue. Secondly, anyone who cares to read the Official Report of 18th January and the report of the Joint Committee on Human Rights of 17th December, will see at once that I referred to paragraphs in the report of the JCHR concerned with "prescribed by law" and "proportionality" only to identify the two areas of appeal against conviction as to which, on the basis that there was an arguable case, the measure of safeguard proposed by the amendment would be appropriate.
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