Tobacco Advertising and Promotion Bill

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Mrs. Spelman: I wanted briefly to have a stand part debate, as we are trying to make some progress. I should like to discuss a general issue that relates to clause 5 and to ask the Government about the style in which the Bill has been drafted. As an Opposition Front-Bench spokesperson, one scrutinises only a certain number of Bills during a Session. I have never come across this style of Bill—on the one hand, the Government set out offences of which people can be guilty, while on the other they set out a series of defences that can be used by people accused of those offences. The Minister might tell me that that is common, but it seems a strange way to proceed. I have considered several other Bills during my short parliamentary career that were not formulated in that way.

10.45 am

The Food Standards Bill, for instance, described serious offences of which people might be guilty, which might lead to lapses, food poisoning, and, ultimately, fatalities. However, that Bill was not formulated with offences on the one hand and defences on the other. This style makes it difficult, in some ways, to scrutinise the Bill clause by clause. It is difficult to debate properly the offences described without taking into account the defences that might be used. Perhaps that is a received part of the culture.

If I were a tobacconist or tobacco manufacturer reading the Bill, however, I would probably devote a great deal of time to looking at the defences that I might use, because I would realise that the stakes were quite high and that I had previously, as part of my normal custom and practice, put up tobacco advertisements or distributed literature that advertised tobacco. If I had been used to doing that for many years— even decades if it had been my job for most of my life—that would be a major change of culture. Clearly, the Government will be sending out a big signal in legislating to ban tobacco advertising. However, they are asking people who run such commercial premises to change the habits of a lifetime.

The clause should be read very carefully, as it outlines an important set of defences. The lay person must be aware of the defences that he can produce, the most important of which is being able to prove—I still prefer my formulation—that one could not reasonably have known that something was a tobacco advertisement, or, in the Government's formulation, that one had no reason to suspect that it was a tobacco advertisement. We therefore must return to the argument that, without certain definitions, it will be difficult to define a tobacco advertisement. In the past, a pile of cigarette packets would not have constituted a tobacco advertisement in the eyes of most people vending such products. Under the Bill, it will be necessary to know whether cigarette packets constitute a display, and, if so, how many. Unless that is clearly spelled out, people who have previously, legitimately and in a law-abiding manner carried out their trade will have to go to court to establish what is and is not an advertisement. Although the defences give scope to a person who has unwittingly committed an offence to defend himself, they are not completely watertight without a clear definition of an advertisement.

I am making a general observation about the style in which the Bill has been constructed. In relation to the swings and balances of offences and defences, it will be interesting to hear from the Minister why the Bill has been so constructed.

Mr. Ian Bruce (South Dorset): I certainly do not want to delay the Committee when we have insufficient time to discuss the Bill fully; nor do I want to adopt Government Members' Trappist tendency and allow the clause to be added to the Bill without pointing out how inadequately it covers the issue. The Government have published a Bill with a pile of loopholes that create a lawyers' charter. Conservative Members do not look forward to that bonanza, because unfortunately none of us is a qualified lawyer. Tobacco manufacturers spend £100 million a year on advertising and promotion and one can imagine the lawyers salivating as they look at clause 5 and saying, ``Look at all the wonderful sets of defences. We can get into court. We know that the tobacco industry successfully challenged the European Commission in the courts and won.''

I was contacted last evening by the Internet Service Providers Association, which is unhappy about the way in which the Government are dealing with issues relating to the internet. They told me that they had a meeting scheduled with the Minister a week on Wednesday, after the House has finished considering the Bill, to discuss how the Bill can be changed around. It is an inadequate Bill that will not do what is intended to do, and I am surprised that Labour Members have not leapt in and said to the Minister, ``Well, Minister, you ought to create a watertight Bill, not the dog's dinner that we have at the moment.''

We have already pointed out that Government Departments work in silos. When the Department of Trade and Industry found the regulation of investigatory powers legislation too complex, it passed it to the Home Office. The hon. Member for Pontefract and Castleford (Yvette Cooper) clearly, because of the dearth of talent on the Labour Benches, has a good career, but she has been given a dog's breakfast, and, unless she gets a grip on the Bill and provides something that will not go straight into the courts and involve us all in great expense—and not reduce tobacco consumption by a single cigarette—it will be one of the nails in the coffin of her political career.

Yvette Cooper: The clause sets out the defences for people who are involved in various aspects of tobacco advertising, promotion and distribution. Our approach is to set out a comprehensive ban on tobacco advertising and to provide for specific defences. I have made it clear from the beginning of our discussions in the Committee that that is our approach.

There is a reason behind that approach. Advertising is a fluid process, as is marketing. Companies continually change the way they appeal to us; they try to grab our attention by finding new ways to promote their products and new forms of advertising through sponsorship, coupons and so on—different ways of appealing to us in order to sell their products. That is what advertising and marketing are about.

How much more fluid is the process when one form of advertising is banned. International experience has shown that if one form of advertising is banned, money will flow into another form. That is certainly what has happened with tobacco advertising. We are well aware—even the hon. Member for South Dorset (Mr. Bruce) made the point in a previous sitting—that tobacco companies will look for loopholes and ways to get round the tobacco advertising ban. We do not doubt that various tobacco companies will attempt and, because of international constraints and so on, there will be a limit to how much we can do.

For those reasons, it is right to begin with a comprehensive ban and then to create specific, targeted defences. That will maximise our chances to have the flexibility to cope with new forms of advertising and new approaches. We shall then have targeted defences specific to the circumstances of individuals and companies at different stages along the chain of tobacco advertising and tobacco product promotion.

It is right that we provide some defences. I was not quite clear whether the Opposition were arguing that we should not provide particular defences for certain individuals. It is absolutely right that we should, whether it be for things that they could not foresee or could not suspect. It is also right that we should provide particular defences for those involved with the internet, because we note that there are particular circumstances there.

Mr. Ian Bruce: I think that my hon. Friend the Member for Meriden would agree that we do not have in the Bill a proper definition of what an advertisement is and what is banned. So we start off with an ill-defined offence and then we have a set of ill-defined defences against it. That is the basis of our objection to clause 5.

Yvette Cooper: We have had this discussion already. The word ``advertisement'' is used in legislation; it is common for words in legislation to have their natural meaning. We have had a detailed debate about advertisements, and it is perfectly acceptable and sensible that the Bill takes the approach of a comprehensive ban on advertising, with specific defences.

We have addressed in the Government amendments the points raised about internet service providers because we recognise the position of those involved in electronic distribution. Officials have had all kinds of discussions with ISPs and the Department of Trade and Industry on the issues around e-commerce. I recognise that ISPs have concerns, and we have given them reassurance both in the Government amdts and by making our intentions clear in an earlier debate.

Mr. Bruce: Will the Minister be having a meeting with the ISPA immediately after the Bill finishes its passage through the House of Commons?

Yvette Cooper: I understand that a meeting is scheduled between officials and the internet service providers, and I can also tell the hon. Gentleman that officials have had other conversations and contacts with ISPs and continuing discussions with the DTI to ensure that the Bill is fully compatible with the e-commerce directive and that we are fully up to date. We recognise that this is a complicated area, especially given the international issues involved, but it is a sensible approach to set out a comprehensive ban on tobacco advertising and then to set out specific, legitimate defences for individual circumstances, because in that way we will maximise our chances of reducing the kind of tobacco advertising that is so damaging to public health and especially to the health of children.

Question put and agreed to.

Clause 5, as amended, ordered to stand part of the Bill.

Clause 6

Specialist tobacconists

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Prepared 6 February 2001