Tobacco Advertising and Promotion Bill

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Mr. Barron: I understand the difference between statute and legislation through statutory instrument. I entered the House in 1983, and saw the use of the statutory instrument grow under the previous Conservative Government. It is a sensible way of creating legislation; debating a clause such as this, which can be operative only when it contains detail, would take time on the Floor of the House. We have many better things to do. Most legislation that is debated in the House contains similar clauses, because the Government want not to get round Parliament but to make government work more sensibly.

The hon. Member for South Dorset talked about meeting the ISPA. The Government have ongoing meetings with all lobbies and organisations. The ISPA may be able to help to frame regulations within clause 7.

Yvette Cooper: The purpose of the clause is to set a power to amend any provision of the Bill

    ``in consequence of any developments in technology relating to publishing or distributing by electronic means.''

The power has to be set in consequence of developments in technology, not because the Government feel like changing the Bill. It must to be done in response to those developments in technology. The reason why we specify developments in technology around electronic means rather than around tobacco products is that tobacco products are covered by the Bill. If new tobacco products are developed, they will be covered by it. It is true that new products, which are not tobacco products, but cause us concern, are not covered. If they are not tobacco products, they will raise different issues and it would be right to have a separate discussion about them in Parliament; they should not be automatically covered by the clause.

It is also right to provide for rapid developments in technology. We all know how fast it is moving and how difficult it is for most of us to keep up with the speed of progress. The clause may allow us to provide new defences, where appropriate, if there are changes in the way in which electronic distribution takes place. It also allows for amendments to ensure that loopholes are not created with new technology around publishing or distributing by electronic means.

My hon. Friend the Member for Rother Valley (Mr. Barron) is right: the proposals would have to come before Parliament. They would go through the affirmative procedure and there would be scope for discussion. We should need—and it would be right—to have detailed consultation on the proposals.

I am glad that officials are meeting with the ISPA. There has been a great deal of contact with ISPs and we have discussed some issues during the passage of the Bill, such as the enforcement mechanism. We have said that we are keen to talk to the ISPA about how to work together in order to make the mechanism most effective without imposing additional burdens on ISPs. That is sensible. It is good that they are meeting, but we are not aware of any concerns that they have raised that would change the course of the Bill or cause us to amend it further. It is right for the Government to have that power if they are to keep up with the pace of technology.

Question put and agreed to.

Clause 7 ordered to stand part of the Bill.

Clause 8

Prohibition of free distributions

Mrs. Spelman: I beg to move amendment No. 10, in page 3, line 38, leave out ``a'' and insert'' his''.

The amendments pertain to the common, historical provision of coupons. I should imagine that several members of the Committee can remember back to their childhood when football cards were issued with cigarettes. They never inspired me to smoke and I doubt that much of the coupon practice has an impact today. It was an historical part of British culture that coupons were issued with cigarettes; many people have valuable collections of football cards. Under the Bill as it is drafted, the issuing of cards will become a practice of the past and the cards themselves museum pieces. The amendments are designed to point out to the Government some of the consequences.

Amendment No. 10 has rightly been selected to stand on its own. It is separate from the issue of coupons per se, and relates to legitimate defences and what is or is not reasonable. I have never attended an event at which I witnessed tobacco products or coupons being given away, but I am not a smoker and would probably not have been aware of it.

Under the Bill

    ``A person is guilty of an offence if in the course of a business he—

    (a) gives any product or coupon away to the public in the United Kingdom, or

    (b) causes or permits that to happen''.

My anxiety in trying to change minutely the wording from ``a'' to ``his'' relates to the possibility that a person may attend an event over which he or she has little control and for which he or she has little responsibility. I thought that the proposed wording would be tighter and would make it clear that responsibility lay with the person carrying out the business. If the business or function were, for example, a big sports event, over which the individual found guilty of giving away coupons had no control, it would be difficult to prosecute if his instructions or the agreement on which the business was established contained a clause that made it clear that he could carry out his business at that event. The word ``a'' disconnects the person who will be found guilty of the offence from ownership or responsibility for that business.

Although I have never witnessed it, I understand that such products have traditionally been given out at sporting and even charitable events or large social gatherings and university balls. Sometimes students become involved in the distribution of such products as a way of augmenting their income to support themselves at university. Traditionally, it has been done in that way, but of course such a person would have no responsibility for that event and might walk into a bit of a hole if he did not realise that such activity was now illegal.

The amendment is a probing amendment designed to make it clear who has responsibility for the business. If the person found guilty of the offence had no responsibility for the business, he might innocently walk into committing an offence without realising what he was doing.

Yvette Cooper: The clause makes it clear that the person who is guilty of committing an offence in the course of a business is someone who gives out any product or coupons to the public or causes or permits that to happen. Such people have defences under clause 8(4) if they did not know, had no reason to suspect or could not have reasonably foreseen that that would be the effect. Appropriate defences are provided for people who were not aware that products or coupons were being distributed at an event that they had organised or were simply attending an event at which products or coupons were being given away. The people involved in giving away the products or coupons—those who had been paid to stand around and hand them out—are involved in the course of a business in giving away a product.

Under the amendment, the offence would relate to activity in the course not of ``a'' business but of ``his'' business. It would catch the owner of the company but no one else in the chain for devising and commissioning a free distribution to the person making the free distribution. That would unacceptably narrow the scope of the offence. There may be a case in which the owner of a business was overseas, and therefore, beyond United Kingdom jurisdiction. It would be unacceptable if the ban on free distributions did not apply to anyone else involved in the business who distributed free coupons or products and was clearly in breach of the intention behind the Bill. If that person did not own the business and the owner was abroad, we could do nothing to stop the free distribution. That would clearly be wrong and against the intentions of the Bill.

The defences are clearly set out and perfectly reasonable. They parallel defences set out earlier in the Bill. The amendment would narrow the scope of the offence too far and would rule out cases that we want to catch under the terms of the Bill.

12.15 pm

Mrs. Spelman: The Minister's answer was glib, and shows what is wrong with the Bill. Having heard her explanation, I can see that at events such as I have attended, the Bill would not work brilliantly. For example, in corporate entertainment, gifts are often given to those invited. ``His'' and ``her'' presents are wrapped up and placed on the tables. In our household there is usually a problem because my husband gets the bouquet of flowers, perfume or a feminine gift, and I end up with the hip flask—we are a role reversal couple. It is usually assumed that Members of Parliament are men at such events. The gifts are handed out by those taking the coats or waiting on tables—casual labour—who may be students.

The rates of pay at such events for cloakroom assistants or waitresses are not fantastic. The young person hands out beautifully wrapped gifts, and the first person on the table who opens one ruins the surprise for everyone else, because then we all know what is inside the orange packet. The gift item may be a cigar case or a cigar. Perhaps the organisers think that the gentlemen on the table will want to smoke them after the meal.

At the point at which the present is opened, the casual employee suddenly discovers that the gift is a tobacco product, and being well versed in the law on tobacco advertising may become anxious. Should that person collect up the presents again lest they be found guilty of distributing them? The problem is not as easy and glib as the Minister thinks and will cause difficulty in practice. It is reasonable to trace the ultimate responsibility to the owner of the business. The owner may be abroad, as the Minister described, but if he is good at his job he will know what a business should and should not do. He is far more likely than the casual employee to know the minutiae of the Bill. Someone such as a managing director could be expected to be perfectly versed in the offences and defences set out in the Bill. The problem is not as easy as the Minister thinks, but I will not press the amendment.

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