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Baroness O'Cathain: My Lords, is snooker a world sport?
Lord Hunt of Kings Heath: My Lords, the draft regulations that were developed in relation to the 1998 EC directive state that,
- "'exceptional global event' means an event or activity that takes place in at least two continents and three countries and which is the subject of a sponsorship contract for which the financial consideration is in excess of two and a half million pounds per annum".
Assuming that the Bill passes through this House and another place in its current form, it will be for the Government to make a policy decision in accordance with the current clause as it is and to make the appropriate regulations. At this stage I cannot say which sports will be involved and whether the same criteria will be used. I believe that those criteria give a general view of the kind of definitions that are likely to be used.
Lord Clement-Jones: My Lords, I do not want to be the nut in this particular nutcracker. I strongly agree with everything that the noble Baroness has said, as do
my party and all my colleagues on these Benches. However, taking my turn from that great Conservative, Rab Butler, I am conscious of the art of the possible. Therefore, I believe, as the noble Lord, Lord Peston, said, that 90 per cent of a loaf is better than no loaf at all. In those circumstances, the quicker that we move on to the other stages of this Bill, without too much comment, the better.
Baroness O'Cathain: My Lords, I thank all noble Lords who have intervened. I hope that people will read carefully what has happened and read what I have said in conjunction with the wonderful speech of the noble Baroness, Lady Finlay of Llandaff. The health of the nation is the most important point. From my older and noble friend Lord Peston I take the advice that 90 per cent of a loaf is better than no bread. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 21 [Commencement, short title and extent]:
Lord Skelmersdale moved Amendment No. 67:
- Page 10, line 39, at end insert—
The noble Lord said: My Lords, today I have been providing the House with the bread between which 65 amendments to this Bill have been sandwiched. I make no apology for returning to a matter that has surfaced at every stage of the Bill so far and on which the Minister sent me a letter, which, in spite of my rude comments earlier, I was eventually extremely grateful to receive. Unfortunately, the letter arrived too late, as I had already tabled my amendment. That was probably just as well as, having read the letter carefully, I would have tabled a similar amendment anyway.
Before turning to the contents of that letter, which is in the Library, but which I am sure many noble Lords have not seen, I want to refer to the Commission's vade-mecum on the directive, which is the subject of this amendment; namely, 98/34 EC as amended by 98/48 EC.
It goes on to give examples, one of which is of a law on pornography in which there is a specific provision on the liability of the information service provider.
The meat of the response of the noble Lord, Lord Hunt, to my concerns reads as follows:
Let us look specifically at Clauses 2 and 3 of this Bill. Clause 2 creates an offence to publish, print, devise or distribute a tobacco advertisement. Does not that amount to a prohibition? It stops stone dead any possibility that information of the nature described in the clause could be provided,
Clause 3, too, can hardly be said to be a non-specific rule. It makes proprietors, editors, procurers of advertising, distributors and sellers of electronic or printed publications personally liable. How is that non-specific?
It can hardly have escaped the attention of the House, as I said at the very beginning of today's proceedings, that tomorrow it will be three months since the Second Reading of the Bill. Had the noble Lord followed my suggestion then, there would be no danger of the threat in the directive—that of killing national legislation which has not complied with European legislation. That danger would have disappeared. It is that danger and no other which this amendment seeks to avoid. I beg to move.
The Earl of Northesk: My Lords, I am grateful to my noble friend for his explanation of this amendment and I rise to support its thrust.
My noble friend outlined the apparently unshakeable conviction of the Government that there is no requirement to notify this Bill on the basis of its provisions for the Internet. Like my noble friend, I am less certain.
Perhaps I can ask the Minister and the noble Lord, Lord Clement-Jones, whether any discussions have taken place with appropriate officials of the European Commission to ascertain its view on this matter. That is to say, do we know what the Commission's attitude is towards the notification status of this Bill?
The point should be made that this is not just a narrow procedural point. As I understand it—I hope the Minister can confirm this—if this Bill is enacted without notification and it subsequently transpires that it should have been notified, it will be open to anyone, on simple application to the court, to strike the whole Bill down in its entirety. To say the least, that would be unfortunate.
Lord Geddes: My Lords, I too rise to support the thrust and specific content of the amendment in the name of my noble friend Lord Skelmersdale.
There are two points that may be of benefit to the House in the debate. The first is to draw the attention of the House to, and to ask the Minister whether he thinks that there is any relevance in, the fact that both the Netherlands and the Danish Governments have notified remarkably similar legislation to the Commission and are awaiting a response.
The second point, of which I think the Minister is aware, and if not, I am now informing him, is that I am one of seven signatories from your Lordships' House who wrote to the European Commission on 13th February inquiring about that point. We were not satisfied at that stage, nor indeed are we now, that the Government—as my noble friend Lord Northesk has just asked—have inquired of the Commission about that matter. Since we did not have that information, we inquired of the Commission and are awaiting a response.
Lord Peston: My Lords, perhaps I may ask the Minister whether he is as puzzled as I am—indeed, puzzled to the point almost of hysterics—that the noble Lords opposite are seeking solace in Brussels for their concerns. Perhaps I may ask whether they have asked permission of the leader of their party to move in that direction. This has been a most enjoyable day, but I think that this is perhaps the high point.
Lord Filkin: My Lords, I respect the noble Lord's concerns about the relationship between this directive and the provisions of the Bill. But, as was said at Second Reading, and is still said, the Government do not consider that the Bill needs to be notified under the provisions of Directive 98/34/EC as amended. Therefore, the Government do not support the amendment.
A close examination of the provisions of the Bill relating to publishing, distributing or transmitting by electronic means has led us to the conclusion that these provisions are not notifiable. The Technical Standards Directive applies to Internet society services. These provisions are not services. Because we are not in doubt on this matter there have not been discussions with the European Commission, although we shall be interested to hear when noble Lords receive a response to their inquiry.
In general terms, the provisions amount to non-specific rules; that is, they are not specific to information society services and/or are merely enabling. In addition, a critical element of the definition of information society services in the directive is lacking in that none of the provisions regulates such services provided "at the individual request of the recipient". I note the contrary view to that of the noble Lord, Lord Skelmersdale. We shall study carefully what he has said when we consider Hansard and the rest of our debate on this amendment.
The noble Lord, Lord Geddes, is quite right that the Netherlands and Denmark have notified apparently similar provisions under the Technical Standards Directive. It is for them to decide what they think is necessary and not for us to question whether they have got it right. We have to make our own judgment on our own legislation as to whether we think that there is a requirement to consult the European Commission. Each measure needs to be considered on its own terms, and the decision of one member state whether or not to notify does not set a precedent for others.
We believe that any regulations made under the powers relating to brand sharing in Clause 11 may give rise to a requirement to notify in due course. But I believe that we have made the right decision in not notifying the Tobacco Advertising and Promotions Bill. Therefore, we suggest that the amendment is not needed.
"( ) The provisions of this Act which apply to publishing, distributing or transmitting by electronic means shall not come into force until—
(a) such time as they have been notified to the European Commission under the terms of Directive 98/34/EC (as amended by Directive 98/48/EC), and
(b) such standstill obligations as the Directive requires have expired."
"The directive requires notification of drafts whose justification, content and purpose indicate that they are directly or openly devoted, in whole or in part, to controlling information, society, services. In such a case, the provisions in a national regulatory instrument will be specifically designed and expressly drafted to reflect the fact that the activity/service is supplied at a distance by electronic means and at the individual request of a recipient of services. Thus not only are regulatory instruments covered, which as a whole are devoted to information, society, services, but also regulations of which only a part (possibly an article or even a paragraph) specifically concerns an information, society, service".
"You are quite right to suggest that any measure relating to the Internet needs to be scrutinised, but a close examination of the relevant provisions of the Bill leads us to the view that it is not notifiable. In general terms the provisions amount to non-specific rules; that is, they are not specific to information, society, services, and/or are merely enabling. In addition, a critical element of the definition of information, society, services in the directive is lacking in that none of the provisions regulate such services provided 'at the individual request of the recipient'".
I have no doubt that the noble Lord did not draft the letter himself before signing it. I find it difficult to accept the advice that he was giving. Indeed, I beg to differ.
"at the individual request of the recipient".
4.45 p.m.
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