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House of Commons
Session 2000-01
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Standing Committee Debates
Tobacco Advertising and Promotion Bill

Tobacco Advertising and Promotion Bill

Standing Committee A

Thursday 1 February 2001


[Mr Humfrey Malins in the Chair]

Tobacco Advertising and Promotion Bill

Clause 1

Prohibition of tobacco advertising

Amendment proposed [this day]: No. 3, in page 1, line 22, leave out from `form' to end of line 23 and insert

    `or participating in doing so'.—[Mrs. Spelman.]

2.30 pm

Question again proposed, That the amendment be made.

The Chairman: I remind the Committee that with this we are considering the following: Amendment No. 20, in page 1, line 24, leave out subsections (5) and (6).

Government amendment No. 16.

Amendment No. 4, in page 1, line 25, leave out `carry on business' and insert

    `transact business with a person living'.

Government amendments Nos. 18 and 19.

Amendment No. 8, in Clause 5, page 3, line 7, leave out `carry on business' and insert

    `transact business with persons living'.

Mr. Ian Bruce (South Dorset): The importance of the principles behind the amendments has been highlighted. After our truncated discussions on the Bill to find the loopholes, the Government have now tabled amendments to improve it. We heard in business questions that, after next Thursday when the Committee has finished with the Bill, it will be discussed on Report on the following Tuesday, after which it will receive its Third Reading. [Hon. Members: ``Hear, hear!''] While colleagues may be glad that progress is being made, I urge them to consider whether the Bill is adequate and whether it will succeed in reducing the consumption of tobacco.

Given that we have such limited time, I shall not speak for long on the amendments. I want simply to point out to the Government why they will have the greatest difficulty in ensuring, by legislation rather than voluntary agreement, that the Bill has the desired effect. The best way to deal with the problem is to return to basic principles.

This country has a statute on official secrets. The gentleman who wanted to produce his memoirs about his time in MI6 fell foul of laws made in this House forbidding him to publish. He therefore published his memoirs on the internet overseas. Publishers in the United Kingdom said to the courts, ``Well, they are on the internet. They are freely available for people to read. Therefore, the nonsense that the Westminster Parliament has produced cannot stand''. That was found to be the case with the courts. That is a direct parallel with what is happening in Committee.

Mr. Kevin Barron (Rother Valley): Will the hon. Gentleman give way?

Mr. Bruce: This is a complicated matter, so I will finish my argument, but I will happily give way soon.

Why did the Government not stay silent on the internet issue and take the view that, whatever is legal in the real world is legal in the internet world and whatever is illegal in the real world is illegal in the internet world? Instead, they relied on what might happen when people try to promote and use the law that they are trying to introduce. By giving the internet specific exclusions, they have left a loophole—a great portal—in the Bill, whereby all such regulations will be challenged. They will be challenged in the international courts, because that is what happened with the directive from the European Commission.

Mr. Barron: If something on the world wide web relates to publications abroad, is the hon. Gentleman saying that nothing can be done about it? If so, is he not arguing that hard-core pornography and other such matters should be available without any restrictions?

Mr. Bruce: Indeed, I am not. I have done a lot of work on pornography. All Governments—except that of the United States, which has other laws that could be used—have signed up to the convention on the child, under which they have to protect children from the effects of pornography and from being exploited by it. Co-operation on the internet on voluntary agreements has led to a flood of prosecutions for pornography in UK courts, because we found ways to tie pornographers into the jurisdiction. We have done so without specific regulations. The Bill would exclude certain people from operating over the internet.

I described to, the internet body, what now makes any country except the United Kingdom the best place to do e-business for tobacco and tobacco products. The Government have decided to go against their policy of making the United Kingdom the best place to do e-business, and to go by a voluntary agreement to stop tobacco advertising on computers, which is part of the voluntary code. They have said to the tobacco industry, ``It's simple. If you want to promote your products, you have multimillions to spend on advertising and promotion and clause 2 tells you how to do it.'' As long as there is a separation between the people who advertise and those who manufacture the cigarettes and produce international brands—not in factories in the United Kingdom, creating jobs, but in other countries' factories—they can use e-mail. If the cigarettes were branded only for the United Kingdom, they would probably fall foul of clause 2. E-mail is not mentioned in the Bill: internet service providers are included, but e-mail is not necessarily sent via that route.

These people could send as much information as possible, or even set up a website. One can envisage an internet service provider who wants to get plenty of advertising—that is how ISPs make their money, not by taking it from people—setting up in almost any other country and saying, to anyone from 12-year-olds to 85-year-olds, ``We will give you free access and pay for your telephone calls to our website. The first thing you will see is the promotion of lots of nice cigarettes and cigarette products.''

Why would someone want to do that? If they are promoting specific brands and a distributor in the United Kingdom says, ``Everyone is asking for those brands'', there is nothing in the Bill to stop the distributor from buying cigarettes that have been advertised internationally on websites that are outside UK jurisdiction and importing and selling them on the back of the advertising.

I am not advocating that they should do that. Under the present voluntary code, they have said that they will not do so. We have not seen that sort of marketing. The Government must understand the unintentional consequences of their amendments: they are making certain that under no circumstances will anyone who behaves as I have described be committing an offence in the United Kingdom.

There are ways to get round the problem, but the correct one is to look again at the voluntary code. There may be a requirement to ban billboards or advertising in UK magazines. The Government must specify what is being done and then agree with the tobacco manufacturers a code of conduct. The tobacco industry will want something out of it. At the moment, I suspect that they will say to themselves, ``We've seen the Bill and we were worried, but we have found a route round it.'' The route has been provided in clauses 5 and 6, which are not altered by the Government amendments.

The other issue relates to the Department of Trade and Industry. We sign up to treaties—whether under the auspices of the World Trade Organisation, the European Union or other free trade areas—which state that it is illegal to differentiate in competition terms between a company based in the United Kingdom and one based overseas. If I were a UK tobacco manufacturer who could not sell my tobacco because someone was promoting imported tobacco, I suspect that the first thing that I would do was to take the matter to the High Court and say that the Bill was ultra vires on all the treaties that we have signed.

The Bill will rapidly come into disrepute, and the Government will not have time, as they will be out of office by May—

Mr. Ernie Ross (Dundee, West): What is the hon. Gentleman worried about?

Mr. Bruce: The Conservative Government will have to sort out the mess. I am here now—this is my last offer, as they say—to help this Government sort out the mess, but clearly they are not going to do so.

We have so little time to consider the Bill that I shall sit down. I hope that the Minister will understand that I want to advise and help the Government. Even if they continue down the legal route, they need a much better Bill and much better amendments.

Mrs. Caroline Spelman (Meriden): The Minister spoke to the amendments and was scrutinised by my hon. Friend the Member for South Dorset (Mr. Bruce), who is much more knowledgeable about the matter than I am. I am not 100 per cent. confident that the Government know what they are doing in their amendments and I will not accept them lying down. The amendments were brought to the attention of the Committee at relatively short notice. I have not had enough time to consult properly service providers and those who provide the means of electronic transmission to discuss with them how amendment No. 19, in particular, will affect them.

Mr. Barron: The hon. Lady must have received a copy of a letter that I received last week from the internet service providers. They are worried about clause 2(6), which one of the amendments removes and amendment No. 19 replaces, as they requested in their letter. The Government seem to have done exactly what the internet service providers wanted about the matter.

Mrs. Spelman: That intervention was not helpful, because that was only one part of the letter.

Mr. Barron: But it is true.

Mrs. Spelman: Yes. Perhaps the hon. Gentleman would like to intervene again.

Mr. Barron: What I said may not have been helpful to the hon. Lady, but it is true.

Mrs. Spelman: Yes, but it was not helpful because several points were made in that letter, which I too received. The Government have not met the internet service providers' desire on that point. The third paragraph of the letter that we received from the London Internet Exchange and the Internet Service Providers Association states:

    ``In order for the ISP Industry to co-operate with the aim of the bill to remove illegal material from UK websites, a universal procedure for notification of such content''—

the next four words are in bold—

    ``by a designated authority needs to be established as a priority.''

Nothing in the Government amendment offers that. The hon. Gentleman's selective quotation of the letter does not fairly reflect the ISPs' request.

We had an interesting discussion about the role of such an authority, and the Minister mentioned the possibility—


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